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eSaurabhChopra: Administrative Law

Semester IV
222-282 minutes

LL.B. IV Term Paper : LB - 402 - Administrative Law

Topic 1 – Nature and Scope of Administrative Law

1.1 Definition and Scope of Administrative Law

Laissez faire – minimum intervention – Legislative body lacks time, expertise. More suited to
major policy decisions and leaving rest to administration.

Functions - modern state – Protector, Provider, Entrepreneur, Economic Controller, Arbiter.

Objective of Admin law – to ensure legal control of the admin power of the executive & to
provide protection to the individual against abuse of such power

Ker committee - Australia – “….although the administrative efficiency is a dominant objective of

the administrative process nevertheless the achievement of that objective should be consistent
with the attainment of justice to the individual”

Schwartz – describes function of admin law – Private individual v/ Govt agency endowed w/ all
powers, prestige & resources enjoyed by possessor of sovereignty. “Starting point is basic
inequality of parties. The goal of administrative law is to redress this inequality – to ensure that
as far as possible the individual and the State are placed on a plane of equality before the bar of
justice”

Justice Douglas, US SC observed “Absolute discretion like corruption marks the beginning of
the end of liberty”.

American approach to admin law denoted by definition of Admin law as propounded by the
leading scholar, Kenneth Culp Davis – According to him, administrative law is the law
concerning the powers & procedures of administrative agencies, including especially the law
governing judicial review of administrative action; it does not include the enormous mass of
substantive law produced by the agencies. An administrative agency according to Davis is a
governmental authority, other than a court & other than a legislative body, which affects the
rights of private parties through either adjudication or rule-making.
Sir Ivor Jennings – Administrative law is the law relating to the administration. It determines the
organization, powers & duties of administrative authorities.

Criticism of this definition by the book “Principles of Administrative Law” by MP Jain & SN
Jain - Difficulty in this formulation of administrative law is that it does not include the
consideration of purely discretionary functions (which may be called administrative) not falling
within the category of legislative or quasi-judicial. In modern administrative law, discretionary
functions are vast in scope & range.

Dicey – defines Administrative law as denoting that portion of a nation’s legal system, which
determines the legal status and liabilities of all State officials, which defines the rights &
liabilities of private individuals in their dealings with public officials & which specifies the
procedure by which those rights & liabilities are enforced.

1.2 Rule of Law - Dicey’s Rule of Law

Popularized in the 19th century by British jurist A. V. Dicey. The concept was familiar to ancient
philosophers such as Aristotle, who wrote "Law should govern".[4] Rule of law implies that
every citizen is subject to the law. It stands in contrast to the idea that the ruler is above the law,
for example by divine right.

Wade: Government is a subject of the Rule of Law, rather than the law being a subject of the
Government..

Lord Denning: "Our English law does not allow a public officer to shelter behind a driot
administratif.

Dicey (1) Supremacy of law (2) Equality before law (3) Predominance of legal spirit.

Dicey in 1885 – “Rule of law means “the absolute supremacy or predominance of regular law as
opposed to the influence of arbitrary power and excludes the existence of arbitrariness, of
prerogative, or even wide discretionary authority on the part of the government.”. Claimed in
England everybody was subject to the same body of law. Went ahead to criticize the system of
driot administratif prevailing in France where there were separate administrative tribunals for
deciding cases between the government & citizens. He went on to assert that in England there
was no administrative law.

Dicey factually wrong à ignored immunity enjoyed by the Crown (and thus the whole govt)
under the constitutional maxim that the king can do no wrong. He also ignored many statutes
which gave discretionary power to the executive which could not be called into question by
ordinary courts.

He ignored the growth of administrative tribunals which had come into existence by 1885.

He misunderstood driot administratif which he thought was designed to protect officials from
liability of their acts and as such was inferior to the British system. Later studies revealed driot
administratif is in certain aspects more effective in controlling the administration than the
common law system.

While Dicey was denying the existence of administrative law in England, his contemporary
Maitland, perceived its emergence in his work “Constitutional History of England” (1908).
However in 1915 after the famous cases Board of Ed v Rice(1911) & Local Govt Board v
Artlidge 1915 Dicey himself became conscious of the emergence of administrative law in
England.

Advantages of Dicey thesis

(1) Helped to make administrative authorities confine to their limits.

(2) Became a yard stick to test administrative actions.

(3) Helped for the recognition and the growth of the concept of administrative law.

Disadvantages of Dicey thesis

(1) Dicey thesis was not completely accepted even in his era.

(2) Even at this time, there was a long list of statutes which permitted the exercise of
discretionary powers of the Crown which could not be called to the Court.

(3) Dicey instead of not just disallowing arbitrary powers has also insisted that administrative
authorities should not be given discretionary powers.

(4) He failed to distinguish between 'arbitrary powers' to 'discretionary powers'.

(5) He misunderstood the real nature of droit administratif which was successful in France.

Source: http://www.lawnotes.in/Rule_of_Law#Advantages_of_Dicey_thesis#ixzz2RSNOq030

1.3 Theory of Separation of Powers

United States.

Prez(Executive) - Veto –> Return or Pocket. – Wages war (direction of legislature) – Appoints
Judges & Executive Dept heads – Power to grant pardons (Except in impeachments).

Legislature – Writes & Enacts laws – Sole power to declare war – Enacts taxes, authorizes
borrowing – Investigation – Impeachment – Ratification of treaties – Setting up of federal courts
– no of justice – override presidential veto (return veto)

Judiciary - US SC power to strike down laws inconsistent with constitution (unwritten) –

Marbury v Madison (1803) – Interprets the intent of the legislature – Polices its own members –
Discretion to lower court judges (Standard of review)

UK

Black Stone Theory of mixed Govt with checks & balances more relevant to UK – Separation of
Power is not an absolute or predominant feature of the UK Constitution. 3 Branches are not
formally separated & continue to overlap.

Lord Mustill summarised the prevailing modern viewpoint in the 1995 judgment, R. v Home
Secretary ex parte Fire Brigades Union - "It is a feature of the peculiarly UK conception of the
separation of powers that Parliament, the executive and the courts each have their distinct and
largely exclusive domain. Parliament has a legally unchallengeable right to make whatever laws
it thinks right. The executive carries on the administration of the country in accordance with the
powers conferred on it by law. The courts interpret the laws and see that they are obeyed."

India

Constitution does not exclusively define separation of powers but the functions of the three
branches have been expressly defined.

Delhi Laws Act – CJ Kania observed that although in the CoI there is no express separation of
power, it is clear that a legislature is created by the Constitution and detailed provisions are made
for making that legislature pass laws.

In Kesavananda Bharti case it was held that separation of powers is a basic structure of the
constitution & this structure cannot be destroyed by any form of amendment.

Cases

1. Rai Sahib Ram Jawaya Kapur v. State of Punjab, AIR 1955 SC 549.

Punjab Govt initiated the policy of undertaking the business of publishing, printing & selling text
books for use in aided govt schools of the state. Objection was raised on 2 grounds, viz,

(1) the state govt had no legislative authority or sanction to undertake the business envisaged;

(2) it infringed the Fundamental Right of the petitioners to carry on their business of publishing
books for schools.

On 1st issue court held that the extent of the executive powers of the govt corresponds with the
legislative. Thus a state govt’s executive power extends to all matter which fall within the
legislative sphere of the state & similarly the executive power of the Centre extends to the area
of legislative power available to the Centre.

Court defined the executive nature of the power in the following words
- It may not be possible to frame an exhaustive definition of what executive function means and
implies. Ordinarily the executive power connotes the residue of governmental functions that
remain after legislative and judicial functions are taken away.

- The executive Government, however, can never go against the provisions of the Constitution or
of any law. This is clear from the provisions of article 154 of the Constitution but, as we have
already stated, it does not follow from this that in order to enable the executive to function there
must be a law already in existence and that the powers of executive are limited merely to the
carrying out of these laws.

The executive function comprises both the determination of the policy as well as carrying it into
execution. This evidently includes the initiation of legislation, the maintenance of order, the
promotion of social and economic welfare, the direction of foreign policy, in fact the carrying on
or supervision of the general administration of the State.

The executive power is however not free from ultimate legislative control because of the
responsibility of the Council of Ministers to the legislature. Also if any activity needs
expenditure of money, the same must be sanctioned by the legislature as no money can be
withdrawn from the Consolidated fund without the Appropriation act. Further if the Govt
requires certain powers in addition to what they possess under ordinary law to carry on a
particular activity, then specific legislation is necessary. If it becomes necessary to invade or
encroach upon private rights in order to enable the Govt to carry on the activity in question, then
a specific legislation sanctioning such a course would be needed.

On the second issue the court held that no legal right of the petitioners much less a Fundamental
right was being invaded by the Govt action as they could carry on their business of publishing &
selling books without any restriction. They had no legal right to have their books prescribed as
text books in schools.

2. Asif Hameed v. State of J. & K., AIR 1989 SC 1899.

A number of unsuccessful candidates to the MBBS/BDS course in the two Government medical
colleges of Jammu & Kashmir for the 1988-89 Session had challenged in the High Court of
Jammu and Kashmir the selection to the above courses on the ground that the selection was
violative of the directions of the High Court in Jyotshana Sharma & Ors. v. State of Jammu &
Kashmir, (decided on 17.4.1987). In that case, the High Court had directed the State of Jammu
and Kashmir to entrust the selection process of the two medical colleges to a statutory
independent body, and till that was done, to entrust the process of selection to such a
body which was to be free from executive influence. In deference to the observations of the High
Court, the State Government issued the Jammu & Kashmir Government Medical Colleges
(selection of candidates for admission to first year MBBS/BDS course and other professional
courses) Procedure, Order, 1987. The Order provided for the constitution of a Competent
Authority for the purpose of making selections to the professional courses. Another order was
issued laying down the qualifications, functions, conditions of service and powers and duties of
the Competent Authority. The High Court allowed the writ petitions on the ground that the
selection was in violation of the court's directions in Jyotshana Sharma's case. The High Court
held the directions in Jyotshana Sharma's case to be of a binding nature and it reiterated the same
by issuing a mandamus.

Earlier the petitioners had filed a writ petition in the High Court challenging the appointment of
Prof. Satish Raina as the Competent Authority and non-implementation of the directions in
Jyotshana Sharma's case. The High Court has disposed of the writ by a consent order. The order
observed that the State Government had reconstituted the Competent Authority by appointing
two more persons on it, that the reconstituted competent authority shall carry on with the
selection process, and the petitioners shall have liberty to challenge the selection if still
aggrieved on any ground. Later, a committee of three academicians was constituted by the
Government to assist the Competent Authority. It was contended on behalf of the State and the
selected candidates that the High Court did not have the competence to issue directions to the
State Government to constitute a "Statutory Body" for selections to medical colleges. It was
further urged that the observations in Jyotshana Sharma's case were in the nature of suggestions
only, and even if those observations were taken as directions, the same had been complied with.

On behalf of the unsuccessful candidates it was inter alia contended that (1) the reconstituted
competent authority consisting of three members never functioned because Shri J.P. Kesar did
not join the other two members at any stage of the selection; (2) the scrutiny was not done by the
competent authority but by the committee appointed by the State Government; (3) the committee
appointed to assist the Competent Authority could only be appointed by the Authority itself
and not by the Government; and (4) there were discrepancies in the criterion, method and
procedure of holding the entrance examination and the viva voce. Allowing the appeals filed by
the State and the successful candidates and dismissing the appeals filed by the unsuccessful
candidates, this Court.

HELD: (1) Although the doctrine of separation of powers has not been recognised under the
Constitution in its absolute rigidity but the Constitution makers have meticulously defined the
functions of various organs of the State. Legislature, Executive and Judiciary have to function
within their own spheres demarcated under the Constitution.

(2) Judicial review is a powerful weapon to restrain unconstitutional exercise of power by the
legislature and executive. The expending horizon of judicial review has taken in its fold
the concept of social and economic justice. While exercise of powers by the legislature and
executive is subject to judicial restraint, the only check on Court's exercise of power is the self
imposed discipline of judicial restraint.

(3) When a State action is challenged, the function of the court is to examine the action in
accordance with law and to determine whether the legislature or the executive has acted within
the powers and functions assigned under the Constitution and if not, the court must strike down
the action. While doing so the court must remain within its self-imposed limits.

(4) While exercising power of judicial review of administrative action, the court is not an
appellate authority. The Constitution does not permit the court to direct or advise the executive
in matters of policy or to sermonize qua any matter which under the Constitution lies within
the sphere of legislature or executive, provided these authorities do not transgress their
constitutional limits or statutory powers.

(5) The High Court's direction for constituting "Statutory Independent Body" obviously mean
that the State legislature must enact a law in this respect. The Constitution has laid down
elaborate procedure for the legislature to act there under. The legislature is supreme in
its own sphere under the Constitution. It is solely for the legislature to consider as to
when and in respect of what subject matter the laws are to be enacted. No directions in this
regard can be issued to the legislature by the courts. The High Court was, therefore, patently in
error in issuing directions in Jyotshana Sharma's case and reiterating the same in the judgment
under appeal.

(6) The Legislature of Jammu & Kashmir having not made any law pertaining to medical
education the field is exclusively to be operated by the executive under Article 162 of the
Constitution of India read with section 5 of Jammu & Kashmir Constitution.

(7) When the Constitution gives power to the executive Government to lay down policy and
procedure for admission to medical colleges in the State, then the High Court has no authority to
divest the executive of that power.

(8) The procedure for selection laid down by the executive as well as the selection are always
open to judicial review on the ground of unreasonableness or on any other constitutional or legal
infirmity.

(9) The State Government have substantially complied with the directions of the High Court by
issuing orders constituting the Competent Authority and providing for method and elaborate
procedure for making selections to the medical colleges.

(10) The three member authority was not a statutory authority. It was entrusted with the
functions of executive nature. The mere fact that one member did not participate in the selection
does not ipso facto render the selections illegal.

(11) In the absence of any statutory provision to the contrary, it was perfectly legitimate for the
authority to function with two members.

(12) Selection of candidates for admission to medical colleges does not involved performance of
any judicial or quasi-judicial functions.

(13) The purpose of appointing a committee was to assist the competent authority. The scrutiny
having been approved by the competent authority, it cannot be said that the competent authority
abdicated its powers to the committee.

(14) The objective test for the entrance examination and viva voce for admission to the MBBS
course in the medical colleges of Jammu & Kashmir was the accepted method for selection.
(15) There is no material on the record to show that the procedure followed to fill the
reserved/general vacancies has resulted in excessive representation to the reserve category.

(16) It was open to the authority to either fix the minimum percentage of marks in the written test
for providing eligibility or to indicate the qualifying cut-off line by calling candidates for viva
voce in relation to the number of vacancies.

3. State of M.P. v Bharat Singh, AIR 1967 SC 1170.

SC invalidated a statutory provision which gave power to an executive authority to specify the
area where an externee was to stay because of the absence of a procedural safeguard of hearing.
Under the act, a DM or the state government, could extern a person from any place in the state
and require him to remain in a specified place in the state if the authority concerned was satisfied
that his activities were likely to be prejudicial to the security of the state or maintenance of
public order. This was subject to the safeguard that the grounds for making the order were to be
given to the person concerned & there was an advisory council and the government was required
to act in accordance with its opinion. The SC found that no hearing was provided for selecting
the place where the externee was to reside. In the opinion of the court, the person might not be
able to get means of livelihood in the specified place & the statute made no provision that the
person would be provided with any residence or means of livelihood.

Topic 2 – Delegated Legislation

2.1. Meaning - law made by an executive authority under powers given to them by primary
legislation in order to implement and administer the requirements of that primary legislation. It
is law made by a person or body other than the legislature but with the legislature's authority.

Often, a legislature passes statutes that set out broad outlines and principles, and delegates
authority to an executive branch official to issue delegated legislation that flesh out the details
(substantive regulations) and provide procedures for implementing the substantive provisions of
the statute and substantive regulations (procedural regulations). Delegated legislation can also be
changed faster than primary legislation so legislatures can delegate issues that may need to be
fine-tuned through experience.

Delegated legislation is used in two senses:-

(a) The exercise by a subordinate agency of the legislative power delegated to it by the
legislature

Examples:- Imports & Exports(Control) Act 1947, small legislation, 8 sections in all. S3
authorizes the Central Govt to prohibit or restrict the import or export of goods of any specified
description by order.

Essential Commodities Act, 1955, the Central & State Govt have promulgated a large number of
orders and rules. (16 sections total but under it Govt carries on the whole operation of controlling
& regulating production, movement, supply, sale & prices of a number of commodities.
(b) Subsidiary rules themselves which are made by the subordinate agency in pursuance of the
power as mentioned in point above. [Rules, regulations, bye-laws, orders, etc though the term
rules is more commonly employed]. Term regulations & bye-laws are usually used to denote the
legislation framed by statutory corporations under delegated legislative power. Generally in
respect of these corporations there are two levels of delegated legislation: the govt itself has
power to promulgate “rules” and accordingly, to distinguish the government-made “rules” from
what the corporation itself may make, a different terminology (regulations) is used for the latter.

Diff b/w Delegated Legislation & Administrative Power

(i) Publication (ii) Procedures ( Admin action – Principles of NJ, Delegated – norms of
procedure à relevant statute (iii) Grounds of Judicial Review (Admin – mala fide , Delegated
legislation – competency, mala fide unlikely )

2.2. Reasons for growth - Laissez faire led to oppression, demand for Govt control in industry &
commerce – demand for legislation too high for legislature to handle on its own, slow,
cumbersome, time consuming process. à hence delegation of legislative power to executive
body.

(i) Lack of technical expertise of Legislative bodies (ii) Delegated legislation à to economize
legislative time (iii) Flexibility, elasticity (iv) expedition & opportunity for experimentation (v)
Emergency situation – riots, war, breakdown of law & order

Defects of delegated legislation:-

• It lacks democracy as too much delegated legislation is made by unelected people.

• Delegated legislation is subject to less Parliamentary scrutiny than primary legislation.

Parliament therefore has a lack of control over delegated legislation and this can lead to
inconsistencies in laws. Delegated legislation therefore has the potential to be used in ways
which Parliament had not anticipated when it conferred the power through the Act of Parliament.

• Delegated legislation is the lack of publicity surrounding it. When law is made by statutory
instrument the public are not normally notified of it whereas with Acts of Parliament, on the
other hand, they are widely publicized.

• One reason for the lack of publicity surrounding delegated legislation is because of the volume
of delegated legislation made and this result in the public not being informed of the changes to
law. There has also been concern expressed that too much law is made through delegated
legislation.

2.3. Conditional Legislation - In this, the subordinate authorities are not delegated to legislate.

It is contingent and conditional. It is only a time factor. Upon reaching certain time or
circumstance, the readymade Act (legislated by supreme legislative authority) is put into force.
The subordinate authorities cannot use their discretionary power. It is their only duty to apply the
law after fact finding (e.g. to inquire whether facts requiring operation of the Act exist). The
conditional legislation delegate’s power is that of determining when a legislative declared rule of
conduct shall become effective.

2.4. Permissible limits of delegation of legislative power [discussed in Delhi Laws Act]

(i) Federal court (on eve of Indian Independence) had held in Jatindra Nath v Province of Bihar
that there could be no delegation of legislative power in India beyond Conditional legislation.
UK or US model?

(ii) Open to courts in India to follow either the English or American model on the question of
delegation of power

(iii) Nothing in Indian Constitution which prevents delegation of legislative power

Doctrine of excessive delegation categorized by the courts into 4 areas (none of them mutually
exclusive :- (i) Skeleton Legislation (ii) Power of inclusion/exclusion (iii) Power of modification
of statute (iv) Power to impose tax (& also power to exempt from tax)

2.5. Judicial control

(i) Constitutionality of Parent Act

(ii) Constitutionality of delegated legislation

(iii) Substantive ultra vires – Goes beyond the scope of authority conferred by the statute or is in
conflict with the delegating statute – “Approval of an ultra vires rule cannot validate it, making
of a rule and giving approval to a rule are two different concepts (Bar Council of Delhi v Surjeet
Singh AIR 1980 SC 1612) - Judicial interpretation usually broad hence judicial invalidation
infrequent.

(iv) Ground of mala fides of the rule making authority – difficult to substantiate in court. Test is
whether rules are reasonably related to the achievement of the specified purpose. (Direct nexus
not necessary – should be some nexus between the two)

(v) invalidated if goes against the basic policy of the statute (such challenges are rare).

(vi) Wrongly stating the provision does not invalidate the rules if rule made under some other
valid provision (Indian Aluminium Co v K.S.E Board AIR 1975 SC 1967)

(vii) Test of reasonableness on general principles as well as on FR u/ Article 14 & 19. One area
where SC does not appear to be willing to apply the test of reasonableness viz the area of
delegated legislation laying down scale of rates at which statutory bodies seek to provide
services to the public.
(viii) Another implied restriction is against making rules with retrospective effect. (allowed for
legislatures but not for delegated legislation). Reason à retrospective rules may prejudicially
effect vested rights. Accordingly courts invalidate retrospective rules unless authority making
them has power to do so under the parent statute.

(ix) Implied restriction on rule making power is that no tax or financial levy can be imposed by
any bye-law, rule or regulation unless the statute specifically authorizes such levy.

(x) Procedural Ultra vires – Whether rules directory or mandatory?

2.6. Legislative control

(i) Basis of legislative supervision – Duty as principal – since the legislature is the delegating
authority

(ii) Memorandum explaining proposals & drawing attention to their scope & stating whether
they are of exceptional or normal character.

(iii) Lok Sabha Standing Committee has emphasized that the rule is mandatory. Purpose of
memorandum to focus attention of MPs to the provisions involving delegation of power.

(iv) Laying procedure – Used to inform houses of the provisions of the bill – rules are to be laid
for 30 session days – Both the houses can make modifications and rule to come into effect in
only such modified form or not come into effect at all. Initiative to move a resolution to annul or
modify the rules has to be taken by the members of the House. Govt under no obligation to take
any initiative.

Laying of rules does not make them valid if they are ultra vires the statute under which they are
made and does not prevent courts from scrutinizing the rules under the statutes.

Two committees to exercise parliamentary control over delegated legislation.

Lok Sabha Committee (Leader of Opp chairperson, Equal representation of all parties, 15
members, prohibition of minister joining committee) &

Rajya Sabha Committee(15 members, Chairman of house appoints chairman of committee, no

prohibition of minister to join committee)

2.7. Procedural Control - Pre-and post-publication, consultation of affected interests(public

participation in rule making a desired safeguard;

In Harla v Rajasthan AIR 1951 SC 467 even when there was no law requiring publication SC
had held that promulgation or publication of some reasonable sort is essential to bring the law
into force as it would be against natural justice to punish people under a law of which they had
no knowledge and of which they could not even with the exercise of reasonable diligence, have
acquired any knowledge.
The General Clauses Act, 1897, sections 20-24

Section 20. Construction of Notifications, etc., issued under enactments.-

Where, by any (Central Act) or Regulation, a power to issue any (notification), order, scheme,
rule, form, or bye-law is conferred, then expressions used in the (notification), order, scheme,
rule, form or bye-law, if it is made after the commencement of this Act, shall, unless there is
anything repugnant in the subject or context, have the same respective meaning as in the Act or
Regulation conferring the power.

Provided that nothing in this section shall apply to any act or proceeding to which the Indian
Limitation Act, 1877 (15 of 1877)2 , applies.

(2) This section applies also to all 1[Central Acts] and Regulations made on or after the
fourteenth day of January, 1887.

COMMENTS

Since the last date of the prescribed period was subsequent to the date of notification, declared to
be a holiday on the basis of the principles laid down in this section the last date of prescribed
period for obtaining the tender schedules was extended to the next working day; K.
Soosalrathnam v. Div. Engineer, N.H.C. Tirunelveli, AIR 1995 Mad 90.

Section 21. Power to issue, to include power to add to, amend, vary or rescind notifications,
orders, rules, or bye-laws.-

Where, by any 1[Central Act] or Regulations a power to 2[issue notifications,] orders, rules or
bye-laws is conferred, then that power includes a power, exercisable in the like manner and
subject to the like sanction and conditions (if any), to add to, amend, vary or rescind any
3[notifications,] orders, rules or bye-laws so 4[issued].

COMMENTS

(i) Section 21 has no application where a statutory authority is required to act quasi-judicially.
Thus, Election Commission in exercise of its power to register a political party under section
29A of the Representation of People’s Act has to act quasi-judicially and under this section it has
no power to review the order registering a political party for having violated the provisions of the
Constitution; Indian National Congress (I) v. Institute of Social Welfare , (2002) 5 SCC 685.

(ii) The State Government cannot invoke this section of the Act for withdrawal of consent if the
strength of the consent so granted for sub-lease the lessee executed sub-lease deed and on the
culmination of such consent into contract, the sub-lessee had already commenced the mining
operations thereby ‘materialising’ the consent and changing the conditions irrevocably from the
one existing at the time of grant of such consent; Government of Andhra Pradesh v. Y.S.
Vivekananda Reddy, AIR 1995 AP 1.
(iii) The provisions of the General Clauses Act, 1897 apply to all the Central Acts, and
Regulations/Rules made thereunder by virtue of this section of power exercisable in the like
manner under any of such Acts, Regulations or Rules includes, subject to the like sanction and
conditions, if any, power to add to, amend vary or rescind any Act or Rules or Regulations so
made; Durairaju Naidu v. State of Tamil Nadu, AIR 1994 Mad 68.

(iv) Where the power to order detention of a detenue has been exercised by the Central
Government or the State Government or their officer, then the power to revoke the detention
order can be passed by the authority ordering detention; Amir Shad Khan v. L. Himingliana, AIR
1991 SC 1983.

———–

Section 22. Making of rules or bye-laws and issuing of orders between passing and
commencement of enactment.-

Where, by any 1(Central Act) or Regulation which is not to come into force immediately, on the
passing thereof, a power is conferred to make rules or bye-laws, or to issue orders with respect to
the application of the Act or Regulation, or with respect to the establishment of any Court or
office or the appointment of any Judge or officer thereunder, or with respect to the person by
whom, or the time when, or the place where, or the manner in which, or the fees for which,
anything is to be done under the Act or Regulation, then that power may be exercised at any time
after the passing of the Act or Regulation, but rules, bye-laws or orders so make or issued shall
not take effect till the commencement of the Act or Regulation.

———–

Section 23. Provisions applicable to making of rules or bye-laws after previous publication.-

Where, by any 1(Central Act) or Regulation, a power to make rules or bye-laws is expressed to
be given subject to the condition of the rules or bye-laws being made after previous publication,
then the following provisions shall apply, namely:-

The authority having power to make the rules or bye-laws shall, before making them, publish a
draft of the proposed rules or bye-laws for the information of person likely to be affected
thereby.

The publication shall be made in such manner as that authority deems to be sufficient, or , if the
condition with respect to previous publication so requires, in such manner as the 2(Government
concerned) prescribed.

There shall be published with the draft a notice specifying a date on after which the draft will be
taken into consideration.

The authority having power to make the rules or bye-laws , and where the rules or bye-laws are
to be made with the sanction, approval or concurrence of another authority, that authority also,
shall consider any objection or suggestion which may me received by the authority having power
to make the rules or bye-laws from any person with respect to the draft before the date so
specified.

The publication in the 3(Official Gazette) of a rule or bye-law purporting to have been made in
exercise of a power to make rules or bye-laws after previous publication shall be conclusive
proof that the rule or bye-law has been duly made.

___________

Section 24. Continuation of orders, etc, issued under enactments repealed and re-enacted.-

Where any 1[Central Act] or Regulation, is, after the commencement of this Act, repealed and
re-enacted with or without modification, then, unless it is otherwise expressly provided any
2[appointment notification,] order, scheme, rule, form or bye-law, 2[made or] issued under the
repealed Act or Regulation, shall, so far as it is not inconsistent with the provisions re-enacted,
continue in force, and be deemed to have been 2[made or] issued under the provisions so re-
enacted, unless and until it is superseded by any 2[appointment notification,] order, scheme, rule,
form or bye-law, 2[made or] issued under the provisions so re-enacted 3[and when any 1[Central
Act] or Regulation, which, by a notification under section 5 or 5A of the 6 Scheduled Districts
Act, 1874, (14 of 1874) or any like law, has been extended to any local area, has, by a
subsequent notification, been withdrawn from the re-extended to such area or any part thereof,
the provisions of such Act or Regulation shall be deemed to have been repealed and re-enacted in
such area or part within the meaning of this section].

COMMENTS

Investigation conducted by Inspectors of Police, under the authorization of notification issued

under Prevention of Corruption Act, of 1947 will be proper and will not be quashed under new
notification taking the above power, till the aforesaid notification is specifically superseded or
withdrawn or modified under the new notification; State of Punjab v. Harnek Singh , AIR 2002
SC 1074.

———–

4. In re Delhi Laws Act, AIR 1951 SC 332.

Part C States – without having legislation of their own – Parliament had to legislate for these
states.

In re Art. 143, Constitution of India and Delhi Laws Act (1912) . The facts of the case being
simple wherefore certain Sections of (a) Delhi Laws Act (13 of 1912), S.7, (b) Ajmer-Merwara
(Extension of Laws) Act (52 of 1947), S.2 and (c) Part C States (Laws) Act (30 of 1950), S.2 are
scrutinized by the Court for their constitutionality.
7 judge bench - Constitutionality of the first two Acts under the scanner were upheld whereas the
second part of Section 2 of the Part C States (Laws) Act (30 of 1950) was held to be ultra-vires.

The legislative authority can so delegate its function if the delegation can stand three tests,

(1) It must be a delegation in respect of a subject or matter which is within the scope of the
legislative power of the body making the delegation,

(2) Such power of delegation is not negatived by the instrument by which the legislative body is
created or established, and

(3) ) It does not create another legislative body having the same powers and to discharge the
same functions which it itself has, if the creation of such a body is prohibited by the instrument
which establishes the legislative body itself.

The power of delegation is implicit and included in the power of legislation. This being the
touch-stone for not rendering the respective Acts ultra-vires. The same authority to which the
powers are delegated are also subjected to the above-stated tests.

Justice Fazl Ali – The Legislature cannot delegate its power to make a law; but it can make a law
to delegate a power to determine some fact or state of things upon which the law makes, or
intends to make, its own action depend. To deny this would be to stop the wheels of government

(1) The legislature must normally discharge its primary legislative function itself and not through
others.

(2) Once it is established that it has sovereign powers within a certain sphere, it must follow as a
corollary that it is free to legislate within that sphere in any way which appears to it to be the best
way to give effect to its intention and policy in making a particular law, and that it may utilize
any outside agency to any extent it finds necessary for doing things which it is unable to do itself
or finds it inconvenient to do. In other words, it can do everything which is ancillary to and
necessary for the full and effective exercise of its power of legislation.

(3) It cannot abdicate its legislative functions, and therefore while entrusting power to an outside
agency, it must see that such agency acts as a subordinate authority and does not become a
parallel legislature.

(4) The doctrine of separation of powers and the judicial interpretation it has received in America
ever since the American Constitution was framed, enables the American Courts to check undue
and excessive delegation but the Courts of this country are not, committed to that doctrine and
cannot apply it in the same way as it has been applied in America. Therefore, there are only two
main checks in this country on the power of the legislature to delegate these being its good sense
and the principle that it should not cross the line beyond which delegation amounts to abdication
and self-effacement.
(5) The power to introduce necessary restrictions and modifications is incidental to the power to
adapt or apply the law. The modifications contemplated are such as can be made within the
framework of the Act and not such as to affect its identity or structure or the essential purpose to
be served by it.

PATANJALI SASTRI J.--(i) It is now established beyond doubt that the Indian Legislature,
when acting within the limits circumscribing its legislative power, has and was intended to have
plenary powers of legislation as large and of the same nature as those of the British Parliament
itself and no constitutional limitation on the delegation of legislative power to a subordinate unit
is to be found in the Indian Councils Act, 1861, Or the Government of India Act, 1935, or the
Constitution of 1950. It is therefore as competent for the Indian Legislature to make a law
delegating legislative power, both quantitatively and qualitatively. as it is for the British
Parliament to do so, provided it acts within the circumscribed limits.

(ii) Delegation of legislative authority is different from the creation of a new legislative power.
In the former, the delegating body does not efface itself but retains its legislative power intact
and merely elects to exercise such power through an agency or instrumentality of its choice. In
the latter, there is no delegation of power to subordinate units but a grant of power to an
independent and co-ordinate body to make laws operative of their own force. For the first, no
express provision authorising delegation is required. In the absence of a constitutional inhibition,
delegation of legislative power, however extensive, could be made so long as the delegating
body retains its own legislative power intact. For the second, however, a positive enabling
provision in the constitutional document is required.

(iii) The maxim delegates non potest delegare is not part of the constitutional law of India and
has no more force than a political precept to be acted upon by legislatures in the discharge of
their function of making laws, and the courts cannot strike down an Act of parliament as
unconstitutional merely because Parliament decides in a particular instance to entrust its
legislative power to another in whom it has confidence or, in other words, to exercise such power
through its appointed instrumentality, however repugnant such entrustment may be to the
democratic process. What may be regarded as politically undesirable is constitutionally
competent.

(iv) However wide a meaning may be attributed to the expression "restrictions and
modifications," it would not affect the constitutionality of the delegating statute.

'MAHAJAN J.--(i) It is a settled maxim of constitutional law that a legislative body cannot
delegate its power. Not only the nature of legislative power but the very existence of
representative government depends on the doctrine that legislative powers cannot be transferred.
The legislature cannot substitute the judgment, wisdom, and patriotism of any other body, for
those to which alone the people have seen fit to confide this sovereign trust. The view that unless
expressly prohibited a legislature has a general power to delegate its legislative functions to a
subordinate authority is not supported by authority or principle. The correct view is that unless
the power to delegate is expressly given by the constitution, a legislature cannot delegate its
essential legislative functions. As the Indian Constitution does not give such power to the
legislature, it has no power to delegate essential legislative functions to any other body.
(ii) Abdication by a legislative body need not necessarily amount to complete effacement. There
is an abdication when in respect of a subject in the Legislative List that body says in effect that it
will not legislate but would leave it to another to legislate on it.

Das J.--(i) The principle of non-delegation of legislative powers founded either on the doctrine of
separation of powers or the theory of agency has no application to the British Parliament or the
legislature constituted by an Act of the British Parliament;

(ii) In the ever present complexity of conditions with which governments have to deal, the power
of delegation is necessary for, and ancillary to, the exercise of legislative power and is a
component part of it;

(iii) the operation of the act performed under delegated power is directly and immediately under
and by virtue of the law by which the power was delegated and its efficacy is referable to that
antecedent law;

(iv) if what the legislature does is legislation within the general scope of the affirmative words
which give the power and if it violates no express Condition or restriction by which that power is
limited, then it is not for the court to inquire further or enlarge constructively those conditions or
restrictions;

(v) while the legislature is acting within its prescribed sphere there is, except as herein after
stated, no degree of, or limit to, its power of delegation of its legislative power, it being for the
legislature to determine how far it should seek the aid of subordinate agencies and how long it
shall continue them, and it is not for the court to prescribe any limit to the legislature's power of
delegation;

(vi) the power of delegation is however subject to the qualification that the legislature may not
abdicate or efface itself, that is, it may not, without preserving its own capacity intact, create and
endow with its own capacity a new legislative power not created or authorised by the Act to
which it owes its own existence.

(vii) The impugned laws may also be supported as instances of conditional legislation within the
meaning of the decision in Queen v. Burah.

Bose J.--The Indian Parliament can legislate along the lines of Queen v. Burgh, that is to say, it
can leave to another person or body the introduction or application of laws which are, or may be,
in existence at that time in any part of India which is subject to the legislative control of
Parliament, whether those laws are enacted by Parliament or by a State Legislature set up by the
constitution. But delegation of this kind cannot proceed beyond that; it cannot extend to the
repealing or altering in essential particulars laws which are already in force in the area in
question

5. Lachmi Narain v. Union of India, AIR 1976 SC 714.

Section 2 of the Part States (Laws) Act, 1950, empowered the Central Government to extend by
notification in the official gazette, to any Part C State, or to any part of it, with such restrictions
and modifications as it thinks fit, any enactment in force in a Part A State. In 1951, the Central
Government, in exercise of this power, extended by a Notification the Bengal Finance (Sales
Tax) Act, 1941, to the then Part State of Delhi with certain modifications in s. 6. The section,
after such extension with modifications, provided:

6(1) No tax shall be payable under this Act on the sale of goods specified in the first column of
the Schedule subject to the conditions etc: and

(2) The State Government [Amended as Central Government in 1956] after giving by
notification in the official gazette not less than 3 months notice of its intention to do so, may by
like notification add to or omit from or otherwise amend the Schedule and thereupon the
Schedule shall he amended accordingly

A modified Schedule of goods exempted from tax under s. 6 was also substituted for the original
Schedule in the Bengal Act, by the Notification.

After the passing of the States Reorganisation Act, 1956, the Part States (Laws) Act became
Union Territories (Laws) Act, 1950 with necessary adaptations. In 1957, the Central Government
issued a Notification in purported exercise of the powers under s. 2 of the 1950- Act,
amending the 1951-Notification. By the 1957- Notification an additional modification of s. 6
of the Bengal Act was introduced in the 1951-Notification, namely the words "such previous
notice as it considers reasonable" were substituted for the words "not less than 3 months' notice"
in s. 6(2).

In 1959, Parliament passed the Bengal (Sales Tax) (Delhi Amendment) Act, 1959, making some
amendments in various sections of the Bengal Act but left s. 6 untouched. By various
notifications, exemption from sales tax was granted to several commodities but subsequently, the
exemption was withdrawn by other notifications after giving notice of less than 3 months.

Dealers in those commodities, who were aggrieved by the withdrawal of the exemption,
challenged the validity of' the withdrawal. The High Court dismissed their petitions. On the main
ground that Parliament, while enacting the Amending Act of 1959, had put its seal of approval to
the curtailed period of notice in s. 6(2) and as such, it should be taken to have keen provided by
Parliament itself in the Bengal Act.

Allowing the appeals to this Court (Apex),

SC HELD: The 1957-Notification purporting to substitute the words "such previous notice as
it considers reasonable" for the words 'not less than 3 months' notice" in s. 6(2) of the Bengal
Act, is beyond the powers of the Central Government, conferred on it, by s. 2 of the Union
Territories (Laws) Act, 1950; and in consequence, the various notifications, in so far as they
withdrew exemptions from tax with respect to the several commodities, are invalid and
ineffective, as the exemption was withdrawn without complying with the mandatory requirement
of not less than 3 months' notice enjoined by the section.
(1) (a) The primary power bestowed by s. 2 of the Union Territories (Laws) Act, 1950, on the
Central Government is one of extension, that is, bringing into operation and effect, in a Union
Territory, an enactment already in force in a State. The discretion conferred by the section to
make "restrictions and modifications" in the enactment sought to be extended, is not a separate
and independent power, which can be exercised apart from the power of extension, but is an
integral constituent of the power of extension. This is made clear by the use of the preposition
"with" one meaning of which (which accords with the context) is "part of the same whole".

(b) There are 3 limits on the power given by s. 2. (i) The power exhausts itself on extension of
the enactment. It can be exercised only once, simultaneously with the extension of the
enactment, but cannot be exercised repeatedly or subsequently to such extension.

(ii) The power cannot be used for a purpose other than that of extension. In the exercise of the
power, only such restrictions and modifications can be validly engrafted in the enactment sought
to be extended, which are necessary to bring it into operation and effect in the Union Territory.
Modifications which are not necessary for, or ancillary and subservient to the purpose of
extension, are not permissible. And only such modifications can be legitimately necessary for
such purpose, as are required to adjust, adapt, and make the enactment suitable to the peculiar
local conditions of the Union Territory for carrying it into operation and effect. (iii) The words
"restrictions and modifications" do not cover such alterations as involve a change in any essential
feature of the enactment or the legislative policy built into it.

(c) If the words "such restrictions and modifications as it thinks fit" are given the wide
construction of giving an unfettered power of amending and modifying the enactment sought to
be extended, as contended by the respondent, the validity of the section itself becomes vulnerable
on account of the vice of excessive delegation. Moreover such a construction would be
repugnant to the context and content of the section, read as a whole.

(2) The 1957-Notification transgresses these limits in two respects :

(a) The power has not been exercised contemporaneously with the extension or for the purposes
of the extension of the Bengal Act to Delhi but 6.6 years thereafter. The power of extension with
restrictions and modifications had exhausted itself when the Bengal Act was extended to Delhi
with some alterations by the 1951-Notification. The power given under s. 2 of the 1950-Act,
cannot be equated to the "Henry VIII clause" of the Acts of the British Parliament because while
the power under s. 2 can be exercised only once when the Act is extended, the power under a
"Henry VIII clause" can be invoked,if there is nothing contrary in the clause, more than once on
the arising of a difficulty when the Act is operative. Observations of Fazal Ali, J. at p. 850 in Re:
Delhi Laws Act case explained.

(b) The alteration sought to be introduced in s. 6(2) by the 1957-Notification goes

beyond the scope of the "restrictions and modifications" permissible under s. 2 of the
1950-Act, because, it purports to change the essential features of s. 6(2) and the legislative policy
inherent therein.
Section 6(2) before the issue of the 1957-Notification, requiring the Government to give "not less
than 3 months' notice" of its intention to add to or omit from or otherwise amend the Schedule to
the 1950-Act, embodies a determination of legislative policy and its formulation as an absolute
rule of' conduct could be diluted, changed or amended only by the legislature, in the exercise of
its essential legislative function, which could not be delegated to the Government.

(i) The language of the sub-section as it stood is emphatically prohibitive and it commands the
Government in unambiguous negative terms that the period of the requisite notice must not be
less than3 months, showing that the provision was mandatory and not directory.

(ii) The scheme of the Bengal Act is that the tax is to be quantified and assessed on the quarterly
turnover. and the period of not less than 3 months, notice conforms to the scheme and ensures
that the imposition of a new tax of exemption does not cause dislocation or inconvenience either
to the dealer or the Revenue.

(iii) By fixing the period at not less than 3 months, purchasers on whom the incidence of tax
really falls have adequate notice of taxable items.

(iv) Dealers and others likely to be affected by an amendment of the Schedule get sufficient time
to make representations and adjust their affairs. The span of notice was thus the essence of the
legislative mandate. The necessity of notice and the span of notice both are integral to the
scheme of the provision and it cannot be split up into essential and non-essential components, the
whole of it being mandatory.

(3)(a) Pt. Benarsi Das Bhanot v. State of Madhya Pradesh [1959] 2 S.C.R. 427 does not assist the
respondent. That was a case where the contention that 5. 6(2) of the C.P. & Bihar Sales Tax Act,
1947, was invalid on the ground of excessive delegation, was rejected, by the Court. In the
present case, it is the validity of a Notification purported to be issued under s. 2 of the 1950-Act
that is impeached as beyond the powers of modification conferred by the section.

(b) In the present case, the Central Government did not directly amend s. 6(2). More
than 6 years after the extension of the Act by the 1951-Notification, it amended the sub-
section indirectly by amending the 1951- Notification. But on the extension of the Act to Delhi,
the 1951-Notification had exhausted its purpose, and the purported amendment, through the
medium of such a "dead" Notification is an exercise in utility. Further, an amendment which was
not directly permissible could not be done indirectly.

(4) The High Court was in error in holding that Parliament had validated or re-enacted
referentially, with retroactive effect, what was sought to be done by the 1957- Notification when
it passed the Amending Act, 1959. The Amending Act leaves s. 6(2) untouched. It does not even
indirectly refer to the 1957-Notification or the amendment purportedly made by it in s. 6(2). Nor
does it re- enact or validate what was sought to be achieved by that notification. No indication of
referential incorporation or validation of the 1957-Notification or the amendment sought to be
made by it, is available either in the Preamble or in any other provision of the Amending Act.
Parliament despite its presumed awareness of the 1957-Notification, has said nothing in the
Amending Act indicating that it has in any manner incorporated, re-enacted or validated the
1957-Notification or the amendment sought to be made thereby, while passing the Amending
Act, 1959.

(5) A mere amendment of an Act by a competent legislature does not amount to re-enactment of
the parent Act.

(6) The respondent cannot contend that if the withdrawal of exemption without giving 3
months" notice was illegal, then the grant of exemption without giving 3 months' notice was also
void.

(a) Some of the goods were granted exemption by the 1951-Notification itself and, hence; there
is no question of giving notice for giving those exemptions.

(b) The validity of the notifications granting exemptions after the extension of the Act to Delhi
is not in issue in the writ petitions and whether or not the requisite notice was given before
granting exemption is a question of fact depending on evidence.

(c) To allow the respondent to take such a plea would be violative of the fundamental principle
of natural justice, according to which a party cannot be allowed to take advantage of his own
lapse or wrong.

(7) The respondent cannot also rely on s. 21 of the General Clauses Act, because, the source of
the power to amend the Schedule to the 1950-Act. is s. 6(2) of the Bengal Act and not s. 21 of
the General Clauses Act, and the power has to be exercised within the limits of s. 6(2) and for the
purpose for which it we conferred.

6. Darshan Lal Mehra v. Union of India, AIR 1992 SC 1848.

The proposal of the Nagar Mahapalika, Lucknow to levy theatre tax, @ Rs. 5 per cinema show
held in a building assessed on annual rental value of Rs. 10,000 or more and @ Rs. 3 per cinema
show held in a building assessed on annual rental value of less than Rs. 10,000 was
accepted by the State Government by following the procedure laid-down under the U.P. Nagar
Mahapalika Adhiniyam, 1959. The Lucknow Nagar Mahapalika Theatre Tax Rules,
1965 were framed and enforced with effect from December 15, 1965 and the theatre tax
was levied with effect from June 1,1967. The rate of tax was increased from time to time and
finally by a notification dated October 30, 1979 the theatre tax was enhanced to Rs.25 per show
on all class-I cinemas with annual rental value more than Rs. 10,000 and Rs. 20 per show on all
class II cinemas with annual rental value of Rs. 10,000 or less.

The theatre tax imposed by Nagar Mahapalika, Allahabad was challenged before the High Court
under Article 226 of the Constitution of India. A Single Judge of the High Court dismissed the
writ petition. Appeal against the judgment of the Single Judge was dismissed by a Division
Bench, which was reported as Niranjan Lal Bhargava Trust, Allahabad v. State of U.P. & others,
(1972) All. L.J. 279. Petitioner No.6 challenged the initial imposition of theatre tax by filing a
civil suit in the court of Civil Judge, which was dismissed. A single Judge of the High Court,
following the judgment in Niranjan Lal Bhargava case.
Trust case, dismissed the second appeal filed by him. About 20 days after the dismissal of the
regular second appeal by the High Court, the petitioners filed a WP in the High Court
challenging the imposition of theatre tax. The said petition is still pending before the High Court.

The petitioners - the cinema owners/lessees in these WP u/ A32 CoI challenged the imposition of
theatre tax by the Respondent- Nagar Mahapalika, Lucknow, contending that Section 172(2) of
the Act was unconstitutional because the legislature abdicated its function by delegating the
essential legislative powers upon the Nagar palikas to levy all or any of the taxes enumerated
in the Section; that the classification of cinemas on the basis of annual rental value for the
purpose of fixing the rate of tax was arbitrary and as such was violative of Article 14 of the
Constitution of India; and that the classification had no nexus with the objects sought to be
achieved. Dismissing the WPs of the cinema owners/lessesse,

SC HELD : 1.01. The taxes under Section 172(2) of the U.P. Nagar Mahapalika Adhiniyam,
1959 can be levied by the Mahapalikas only for implementing those purposes and for no other
purpose. The Mahapalikas have to provide special civic amenities at the places where
cinemas/theatres are situated. So long as the tax has a reasonable relation to the purposes of the
Act the same cannot be held to be arbitrary. The rate of tax to be levied and the persons or the
class of persons liable to pay the same is determined by inviting objections, which are finally
considered and decided by the State Government.

1.02. The tax is levied in accordance with the statutory rules framed by the State Government
and the said rules are laid before each House of the State Legislature for not less than 14 days
and are subject to such modifications as the legislature may make during the session they are so
laid.

1.03. The annual rental value under the Act indicate the extent of the accommodation, its quality,
the locality in which it is situated and other factors which relate to the enjoyment of the building.
The theatre tax is levied as a tax on amusement and entertainment. The amusement in a building
is affected by all those factors which are taken into consideration while fixing the annual rental
value of the building. Higher rental value in relation to a cinema house shows that it has better
accommodation, better situation and better facilities for amusement and entertainment.
The higher annual value is indicative of a better quality cinema house, as compared to a cinema
house, which has a lesser annual rental value. There is nothing unreasonable or improper in
classifying the cinema houses on the basis of annual rental value.

7. Govind Lal v. A.P.M. Committee, AIR 1976 SC 263.

The appellant was prosecuted for having purchased a certain quantity of ginger without obtaining
a licence as required by the Gujarat Agricultural Produce Markets Act. 1964. The trial court
accepted the factum of purchase but it acquitted the appellant on the ground that the relevant
notification in regard to the inclusion of ginger was not shown to have been promulgated and
published as required by the Act.

On appeal, the High Court reversed the acquittal and sentenced the appellant to a fine of Rs. 10/-.
The High Court proceeded on the assumption that the notifications were property made. In the
erstwhile composite State of Bombay there was in operation The Bombay Agricultural
Produce Markets Act of 1939. On the bifurcation of the State in 1960 the said 1939 Act was
extended by an appropriate order to the State of Gujarat. That Act remained in operation in
Gujarat till the year 1964 in which year the present Act came into force. Section 5 of the Act
requires the Director to notify in the Official Gazette his intention to regulate the purchase and
sale of agricultural produce. The section also requires the publication in Gujarati in a newspaper
having circulation in the area. The section further requires that the objections should be
invited from the public. Section 6(1) provides that after the expiry of the period for making
objections and after considering the objections and suggestions received and after holding
necessary inquiry, the Director may, by notification in the Official Gazette, declare the area
specified in the said notification to be a market area in respect of the agricultural produce to be
specified in the notification. Sub-section (1) of s. 6 further requires that the notification
under the said section shall be published in Gujarati in a newspaper having circulation in the said
area. Sub s. (5) of s. 6 provides that the Director may, at any time by notification in the official
gazette, exclude any area from a market area specified in a notification issued under sub-s. (1) or
include any area therein and exclude from or add to the kinds of agricultural produce so
specified. The sale or purchase of the agricultural produce concerned without a licence is made
an offence by s. 36 of the Act.

On appeal by special leave, the appellant contended that the notification under s. 6(5) of the Act,
covering additional varieties of agricultural produce, must not only be published in the Official
gazette but must also be published in Gujarati in a newspaper.

The respondent contended that (1) the procedure in regard to the publication which is laid down
in sub-s. (1) of s. 6 must be restricted to notifications issued under that sub-section and cannot be
extended to those issued under sub-section (5) of s. 6; (2) Assuming that the words "this section"
are wide enough to cover every sub-section of s. 6. the word 'shall' ought to be read as 'may'.

HELD: (1) Section 6(1) means what it says. That is the normal rule of construction of
statutes, a rule not certainly absolute and unqualified, but the conditions which bring into
play the exceptions to that rule did not exist. It is not reasonable to assume in the legislature
an ignorance of the distinction between a "section" of the statute and the "sub-section" of that
section. The requirement laid down by s. 6(1) that a notification under "this section" shall also be
published in Gujarati in a newspaper would govern any and every notification issued under any
par of s. 6, that is to say, under any of the sub-sections of s. 6.

(2) Sometimes the legislature does not say what it means. That has given rise to a series of
technical rules of interpretation devised or designed to unravel the mind of the law-makers. The
words of the concluding portion of s. 6(1) are plain and unambiguous rendering superfluous the
aid of artificial guide-lines to interpretation.

(3) "Shall" must normally be construed to mean "shall" and not "may", for the distinction
between the two is fundamental. The use of the word "shall" or "may" is not conclusive on the
question whether the particular requirement of law is mandatory or directory. In each case
one must look to the subject-matter and consider the importance of the provision disregarded and
the relation of that provision to the general object intended to be secured. It is the duty of courts
to get at the real intention of the legislature by carefully attending to the whole scope of the
provision to be construed. The amendment to s. 6(1) notification in regard to
matters described therein is equated with a fresh declaration of intention in regard to those
matters, rendering it obligatory to follow afresh the whole of the procedure prescribed by s.
5. The object of these requirements is quite clear. The fresh notification can be issued only after
considering the objections and suggestions which the Director receives within the specified time.
In fact, the initial notification has to state expressly that the Director shall consider the objections
and suggestions received by him within the stated period. The publication of the notification in
the Official Gazette was evidently thought by the legislature not an adequate means of
communicating the Director's intention to those who would be vitally affected by the proposed
declaration and who would therefore be interested in offering their objections and suggestions. It
is a matter of common knowledge that publication in a newspaper attracts greater public
attention than publication in the official gazette. That is why the legislature has taken care to
direct that the notification shall also be published in Gujarati in a newspaper. A violation of this
requirement is likely to affect valuable rights of traders and agriculturists because in the absence
of proper and adequate publicity their right of trade and business shall have been hampered
without affording to them an opportunity to offer objections and suggestions. Once an area is
declared to be a market area. no place in the said area can be used for the purchase or sale of any
agricultural produce specified in the notification without the necessary licence. A
violation of the said provisions attracts penal consequences under s. 36. It is. therefore, vital from
the point of view of the citizens' right to carry on trade or business, no less than for the
consideration that violation of the Act leads to penal consequences, that the notification must
receive due publicity. There is something in the very nature of the duty imposed by ss. 5 and 6
something in the very object for which the duty is cast. That the duty must be performed.

(4) The legislative history of the Act reinforces this conclusion. In the Bombay Act, which was
made applicable to Gujarat till 1964, it was not necessary to publish in the newspaper
notifications corresponding to s. 6(5) notifications under the new Act. The Gujarat Legislature,
having before it the model of the Bombay Act made a conscious departure from it by providing
for the publication of the notification in a newspaper and by substituting the word
'shall' for the word 'may'.

(5) A notification under s. 6 must be published in Gujarati in a newspaper. This requirement

is mandatory and must be fulfilled. Admittedly, the notification in question was not
published in a newspaper at all, much less in Gujarati. Accordingly, the inclusion of new
varieties of agricultural produce in that notification lacks legal validity and no
prosecution can be founded upon its breach.

(6) The High Court took into consideration a wrong notification. Reliance on the earlier
judgment of Gujarat High Court on the construction of the Bombay Act was also wrong since the
language there was wholly different.

8. Sonik Industries, Rajkot v. Municipal Corpn. of the City of Rajkot (1986) 2

SCC 608 : AIR 1986 SC 1518.

The Rajkot municipality framed Draft rules for the levy of rates on buildings and lands in Rajkot.
The Draft Rules were published and objections were invited and, thereafter the State
Government accorded its sanction to the rules. The issue dated November 28, 1964 of "Jai
Hind", a Gujarati newspaper published from Rajkot carried a Notice purporting to be under
section 77 of the Bombay Municipal Boroughs Act, 1925 as adopted and applied for the
information of persons holding buildings and immovable property within the Municipal
limits of Rajkot that the Municipality had resolved to enforce the "Rules to the
Rajkot Borough Municipality for the levy of Rate (Tax) on buildings and lands" sanctioned by
the State Government of Gujarat, with effect from January 1, 1965. Thereafter an assessment
list was prepared and steps were taken to demand the tax. F The appellants, a registered
partnership firm instituted a suit in the Court of the Civil Judge, Senior Division Rajkot for a
declaration that the aforesaid Rules were invalid. The Trial Court decreed the suit. An Appeal
against the decree of the Trial Court was dismissed by the Extra Assistant Judge, Rajkot. A
Second Appeal preferred by the Municipality was referred to a larger Bench of the High Court
consisting of learned Judges who held that the conditions of section 77 had been complied with.
In accordance with the said opinion, the learned Single Judge allowed the Second Appeal. Hence
the appeal by Special Leave.

Dismissing the appeal, the SC,

HELD :

1.1 The general principle is that if the mode of publication adopted is sufficient for
persons affected by the rules with reasonable diligence to be acquainted with them,
publication of the Rules has taken place in contemplation of the law.

1.2 In the case of Municipal taxation, the conventional procedure enacted in most statutes
requires publication of the proposed rules providing for the levy and inviting objections thereto
from the inhabitants of the Municipality. Thereafter when the rules are finalised and
sanctioned by the State Government, it is mandatory that they be published so that the
inhabitants of the Municipality should know how the levy affects them in its final form. The
rules, and consequently the levy, take effect only upon publication in accordance with
the statute. The object of the requirement is that a person affected by the levy must
know precisely the provisions of the levy and its consequences for him.

1.3 The requirement of section 77 was complied with in asmuch as information was
thereby given to all persons holding buildings and immovable property within the
Municipal limits of Rajkot that the rules mentioned therein had been sanctioned by the State
Government and that the rules could be inspected in the Municipal office. The
mandatory requirement of section 77 was that the rules should be published, which requirement
the notice satisfies. The mode of publishing the rules is a matter for directory or substantial
compliance. It is sufficient if it is reasonably possible for persons affected by the rules to obtain,
with fair diligence, knowledge of those rules through the mode specified in the notice. Had the
Act itself specified the mode in which the rules were to be published, that mode would have to
be adopted for publishing the rules. In the opinion of the Legislature, that would have
been the mode through which the inhabitants of the Municipality could best be informed of the
rules.

1.4 Section 77 provides the final stage of the procedure enacted in sections 75 to 77 for imposing
a levy. The period referred to in section 77, after which alone the tax can be 3 imposed, is
intended to enable persons affected by the levy to acquaint themselves with the contents of the
rules, and to take preparatory measures for compliance with the rules. The period has not been
particularly prescribed in order to enable a person to take advantage of the benefit of section 102
before the tax is imposed.

OBSERVATION

It would have been more desirable for the Municipality to have published the rules in the
Newspaper along with the notice reciting the sanction, though the omission to do so and
notifying instead that inspection of the rules was available in the Municipal
office still constitute sufficient compliance with the law.

9. Atlas Cycle Industries Ltd. v. State of Haryana, AIR 1979 SC 1149.

The appellants were prosecuted for the offence of acquiring a controlled commodity at a rate
higher than the maximum statutory price fixed for such commodity by the Iron JUDGMENT:

Control Order, 1956. In the course of proceedings before the trial court the appellants made an
application u/s 251A & 288 Cr.P.C. raising various objections to their prosecution including, that
the notification fixing maximum selling prices of various categories of Iron & Steel including the
commodity in question was not placed before the Parliament and as such was not valid.
Observing that the laying of the notification before the Parliament could be proved by
contemporaneous record and that it was not possible to hold that cognizance of
the offence was taken on an invalid report and the order framing the charge was a nullity
the trial Court dismissed the application.

In its writ petition filed under Arts. 226 and 227 of the Constitution, the appellants
challenged their prosecution on the ground that the control order and the notification did not
have the force of law as they had not been laid before the Houses of Parliament within a
reasonable time as required by the Essential Commodities Act. The High Court
dismissed the writ petition. On the question, whether the notification fixing the maximum
selling price of the commodity was void, for not having been laid before both Houses of
Parliament. Dismissing the appeal, the Court

HELD: 1. Non-laying of the notification fixing the maximum selling prices of

various categories of iron and steel including the commodity in question before both
Houses of Parliament cannot result in nullification of the notification. The
legislature never intended that non- compliance with the requirement of
laying as envisaged by section 3(6) of the Act should render the order void.
2. Though section 3(6) of the Act provides that every order made by the Central
Government or by any officer or authority of the Central Government shall be laid before
both Houses of Parliament as soon as may be after it is made, the important point to be
considered in the absence of a provision prescribing the conditions, the period and the legal
effect of the laying of the order before the Parliament is whether the provision
is directory or mandatory. The use of the word 'shall' is not conclusive and decisive of the
matter and the Court has to ascertain the true intention of the legislature, which is the
determining factor, and that must be done by looking carefully to the whole scope,
nature and design of the statute.

3. Two considerations for regarding a provision as directory are: (1) absence of

any provision for the contingency of a particular provision not been complied with or followed
and (2) serious general inconvenience and prejudice that would result to the
general public if the act of the government or an instrumentality is declared invalid for
non-compliance with the particular provision.

4. The policy and object underlying the provisions relating to laying the delegated
legislation made by the subordinate law making authorities or orders passed by
subordinate executive instrumentalities before both Houses of Parliament, being to
keep supervision and control over the aforesaid authorities and instrumentalities, the "laying
clauses" assume different forms depending on the degree of control which the
Legislature may like to exercise. The three kinds of laying which are
generally used by the Legislature are (i) laying without further procedure (ii)
laying subject to negative resolution, (iii) laying subject to affirmative resolution. Each case
must depend on its own circumstances or the wording of the statute under which the rules are
made.

5. In the instant case, section 3(6) of the Act merely provides that every order made
under section 3 by the Central Government or by any officer or authority of
the Central Government, shall be laid before both Houses of Parliament, as soon as may be, after
it is made. It does not provide that it shall be subject to the negative or the
affirmative resolution by either House of Parliament. It also does not provide that it
shall be open to the Parliament, to approve or disapprove the order made under
section 3 of the Act. It does not even say that it shall be subject to any modification which either
House of Parliament may in its wisdom think it necessary to provide. It does not even specify the
period for which the order is to be laid before both Houses of Parliament nor does it
provide any penalty for non-observance of or non-compliance with the direction as to the
laying of the order before both Houses of Parliament. The requirement as to the laying of the
order before both Houses of Parliament is not a condition precedent but subsequent to the
making of the order. In other words, there is no prohibition to the making of the orders
without the approval of both Houses of Parliament. Therefore the requirement as to laying
contained in section 3(6) of the Act falls within the first category i.e. "simple laying" and is
directory and not mandatory.

10. Rajnarain Singh v. Chairman, Patna Administration Committee, AIR 1954

SC 519.

An executive authority can be authorised by a statute to modify either existing or

future laws but not in any essential feature. Exactly what constitutes an essential feature
cannot be enunciated in general terms but it is clear that modification cannot include a
change of policy. Essential legislative function consists in the determination of the legislative
policy and its formulation as a binding rule of conduct. Modifications which are
authorised are limited to local adjustments or changes of minor character and do
not mean or involve any change of policy or change in the Act.

Section 3(1)(f) of the Patna Administration Act of 19 15 (Bihar and Orissa Act I of
1915) as amended by Patna Administration (Amendment) Act of 1928 (Bihar and Orissa Act IV
of 1928) is intra vires because any section or sections of the Bihar Municipal Act of 1922 can be
picked and applied to Patna (whether with or without modification) provided that does not effect
any essential change in the Act or alter its policy and the words "restriction" and " modification"
are used in the restricted sense.

The notification dated 23rd April, 1951, by which the Governor of Bihar picked S.104 out of the
Bihar and Orissa Municipal Act of 1922, modified it and extended it in its modified form to the
Patna Administration and Patna Village areas is ultra vires as it effects a radical change in the
policy of the Act and thus travels beyond the authority conferred by s. 3(1)(f).

In re The Delhi Laws Act, 1912, etc. ([1951] S.C.R. 747) applied.

Topic 3 – Administrative Discretion

3.1 Meaning of discretion; Judicial Review of conferment and exercise of discretionary power,
abuse of discretionary power;

According to Lord Halsbury, Administrative discretion 'includes the case in which the
ascertainment of fact is legitimately left to the administration determination'.

Legislature is often compelled to confer vast discretionary powers because it is not always
possible to lay down standards or norms for the exercise of administrative power.

Raunaq International Ltd. vs. I.V.R. Construction Ltd. & Ors. (1999) 1 SCC 492: Supreme Court
said the principle governing the process of judicial review and held that the writ court would not
be justified in interfering with commercial transactions in which the State is one of the parties
except where there is substantial public interest involved and in cases where the transaction is
mala fide.

Jespar I. Slong vs. State of Meghalaya & Ors., (2004) 11 SCC 485: Supreme Court held that
“17……fixation of a value of the tender is entirely within the purview of the executive and
courts hardly have any role to play in this process except for striking down such action of the
executive as is proved to be arbitrary or unreasonable……”
Reliance Airport Developers (P) Ltd. vs. Airports Authority of India & Ors., (2006) 10 SCC 1:
Supreme Court held that while judicial review cannot be denied in contractual matters or matters
in which the Government exercises its contractual powers, such review is intended to prevent
arbitrariness and must be exercised in larger public interest.

Tata Cellular vs. Union of India, (1994) 6 SCC 651: Supreme Court held the need to find a right
balance between administrative discretion to decide the matters on the one hand, and the need to
remedy any unfairness on the other.

UP State Road Transport Corporation vs Mohd. Ismail, AIR 1991 SC 1099: Supreme Court of
India held that:

The administrative discretion should be used according to rules of reason and justice and not
according to private opinion, according to law and not humor.

It is not to be arbitrary, vague and fanciful but legal and regular.

It must be exercised within limit to which an honest man competent to the discharge of his office
ought to confine himself.

3.2 Nature and Scope of Judicial Review

Two methods to control discretionary power (i) Procedural safeguards of natural justice (ii)
Application of doctrine of excessive delegation in relation to delegated legislation.

Courts control the exercise of discretionary powers through writs.

Pattern of judicial review based on executive cannot be the judge of its own actions.

Basic principle: - Courts do not go in to the merits of judicial discretion

3.3 Grounds of Judicial Review:

3.3.1 Abuse / Misuse of discretion –

 mala fides/ ill-will, (narrow sense) motive, - Personal animosity, vengeance, personal
benefit
o In Pratap Singh v St of Punjab – civil surgeon – leave revoked turned into
suspension –alleged to have taken 16 Rupee Bribe from patient – Applicant
proved mala fide against CM- Tape recording of telephone conversation with
CM, absence of affidavit denying allegation from CMO–– Govt action even
though prima facie intra vires was quashed
 Unreasonableness / Arbitrariness,
 Improper Purpose, (broader than mala fide) – Example Land acquisition for purpose X
but used for purpose Y.
 Ignoring relevant considerations, Relying on irrelevant considerations;
3.3.2 Non application of mind – acting mechanically, acting under dictation, imposing fetters by
self imposed rules or policy decisions;

3.3.3 Violation of the Principles of Natural Justice

11. Dwarka Prasad Laxmi Narain v. State of U.P., (1954) SCR 803: AIR

1954 SC 224.

A law or order which confers arbitrary and uncontrolled power upon the executive in the
matter of regulating trade or business in normally available commodities must be held
to be unreasonable. Under cl. 4(3) of the Uttar Pradesh Coal Control Order, 1953, the
licensing authority has been given absolute power to grant or refuse to grant, renew or refuse to
renew, suspend, revoke, cancel or modify any licence under this Order and the only thing he
has to do is to record reasons for the action he takes. Not only so, the power could be exercised
by any person to whom the State Coal Controller may choose to delegate the same, and
the choice can be made in favour of any and every person. Such provisions cannot be held to be
reasonable:

Held, therefore that the provision of cl. 4(3) of the Uttar Pradesh Coal Control
Order, 1953, must be held to be void as imposing an unreasonable restriction upon the freedom
of trade and business guaranteed under art. 19 (1) (g) of the Constitution and not coming
within the protection afforded by cl. (6) of the article.

12. A.N. Parasuraman v. State of Tamil Nadu, AIR 1990 SC 40: (1989) 4

SCC 683.

The appellants are interested in running educational institutions which are covered
by the expression "private educational institution" within the meaning of Section 2(f) of the
Tamil Nadu Private Educational Institutions (Regula- tion) Act, 1966. The vires of the Act
especially sections 2(c), 3(a), 3(b), 6, 7, read with sections 15, 22 and 28, was
challenged before the High Court, by way of a writ petition.

The High Court struck down section 28 and upheld the other sections. This appeal by
certificate is against the High Court's judgment upholding the validity of the said
sections. As regards the striking down of section 28, it has not been impugned by the respondent-
State. The appellants contended that the Act does not lay down any guideline for the
exercise of power by the delegated authority and so the decision of the competent authority is
bound to be discriminatory and arbitrary. It was also con- tended that the Act imposed
unreasonable restrictions on the appellants in the running of tutorial institutions, and such
regulations were violative of Article 29(1)(g) of the Constitution of India.

On behalf of the respondent, it was stated that sufficient guidance is available to the authority
concerned, by virtue of subsection (2)(c) of Section 4 and hence the appellants' contentions were
not justified.
Allowing the appeal,

HELD: 1.1. It is well established that determination of legislative policy and formulation of rule
of conduct are essential legislative functions which cannot be delegated. What is
permissible is to leave to the delegated authority the task of implementing the object of the Act
after the legislature lays down adequate guidelines for the exercise of power. Examined in this
light, the impugned provisions of the Tamil Nadu Private Educational Institutions (Regulation)
Act, 1966 miserably fail to come to the required standard. These sections are held to be invalid.
They are inextricably bound up with the other parts of the Act so as to form part of a single
scheme, and it is not possible to sever the other parts of the Act and save them. Hence, the entire
Act is declared ultra vires.

1.2. There is no indication, whatsoever, about the legislative policy or the accepted rule of
conduct on the vital issue about the maintenance of academic standard of the institution and
the other requirements relating to the building, library and necessary amenities for the
students, as the Act is absolutely silent about the criteria to be adopted by the prescribed
authority for granting or refusing permission. Even the rules which were made under Section 27
in 1968 and called the Tamil Nadu Private Educational Institutions (Regulation) Rules, 1968, are
not called upon to lay down any norm on these issues and naturally do not make any
reference to these aspects. The result is that the power to grant or refuse permission is to be
exercised according to the whims of the authority and it may differ from person to person
holding the office. The danger of arbitrariness is enhanced by the unrestricted and unguided
discretion vested in the State Government under Section 2(c) of the Act in the choice of
competent authority.

2.1. Section 6 which empowers the competent authority to grant or refuse to grant permission for
establishing and running an institution does not give any idea as to the
conditions which it has to fulfil before it can apply for permission under the Act, nor are
the tests indicated for refusing permission or cancelling under Section 7 of an already granted
permission.

2.2. The only safeguard given to the applicant institution is to be found in the first proviso to
Section 6 which says that the permission shall not be refused unless the applicant has been
given an opportunity of making his representation, but that does not by itself protect the
applicant from discriminatory treatment. So far as Section 7 dealing with power to cancel the
permission granted earlier is concerned, no objection can be taken to the first part of the section,
where under the permission may be cancelled in case of fraud, misrepresentation, suppression of
material particulars or contravention of any provision of the Act or the Rules. But the other
ground on which the authority can exercise its power being contravention "of any direction
issued by the competent authority under this Act" again suffers from the vice of arbitrariness.

2.3 Section 15 is too wide in terms and does not indicate the nature of the direction or the extent
within which the authority should confine itself while exercising the power. Similarly under
Section 22, the State Government has been vested with unrestricted discretion in picking and
choosing the institutions for exemption from the Act.
13. J. R. Raghupathy v. State of A. P., AIR 1988 SC 1681.

These appeals by Special Leave and a petition for Special leave arose out of different judgments
of the High Court. The main issue involved was whether the location of Revenue Mandal
Headquarters in the State of Andhra Pradesh under S. 3(5) of the Andhra Pradesh
District (Formation) Act, 1974, was a purely governmental function, not amenable to the writ
jurisdiction of the High Court. Writ Petitions were filed in the High Court by individuals and
gram panchayats questioning the legality and propriety of the formation of certain Revenue
Mandals and location of certain Mandal Headquarters notified in preliminary notification issued
under sub-s. (5) of Section 3 of the Act. In some cases, the High Court declined to interfere with
the location of Mandal Headquarters, holding that the government was the best judge of the
situation, or on the ground that there was a breach of guidelines it directed the Government to
reconsider the question of location of the Mandal Headquarters. In some cases, the High Court
quashed the final notification for location of the Mandal Headquarters at a particular
place, holding that there was a breach of guidelines based on the system of marking and
also on the ground that there were no reasons disclosed for deviating from the preliminary
notification for location of the Mandal Headquarters at another place. Allowing Civil Appeal
Nos. 1980, 1982, 1985 and 1987 of 1986 and all other appeals and Special Leave Petitions
directed against the judgments of the High Court, whereby the High Court had interfered with
the location of the Mandal Headquarters, the Court,

HELD: It was difficult to sustain the interference by the High Court in some of cases
with the location of the Mandal Headquarters and the quashing of the
impugned notification on the ground that the Government had acted in breach of the guidelines
in that one place or the other was more centrally located or that location at the other place would
promote general public convenience or that the Headquarters should be fixed at a particular place
with a view to developing the areas surrounded by it or that merely
because a particular person who was an influential Member of Legislative Assembly
belonging to the party in opposition had the right of representation but failed to avail of it. The
location of Headquarters by the Government by the issue of the final notification under sub-s (5)
of s. 3 of the Act was on a consideration by the Cabinet Sub- Committee of the proposals
submitted by the Collectors concerned and the objections and suggestions received from the
local authorities like Gram Panchayats and the general public, keeping in view the relevant
factors. Even assuming that any breach of the guidelines for the location of the Mandal
Headquarters was justiciable, the utmost that the High Court could have done was to quash the
impugned notification in a particular case and direct the Government to reconsider the question.
There was no warrant for the High Court to have gone further and direct the shifting of the
Mandal Headquarters at a particular place. The guidelines are merely in the nature of instructions
issued by the State Government to the Collectors regulating the manner in which they should
formulate their proposals for formation of a Revenue Mandal or for the location of its
Headquarters keeping in view the broad guidelines laid down in Appendix I to the White Paper
issued by the Government laying down the broad guidelines. The guidelines had no statutory
force and they had also not been published in the Official Gazette. They were mere departmental
instructions for the Collectors. The ultimate decision as to the formation of a Revenue Mandal or
location of its Headquarters was with the Government. It was for that reason that the
Government issued preliminary notification under sub-s (5) of section 3 of the Act.
Deviation from the guidelines in some of the aspects was usually for reasons of administrative
convenience keeping in view the purpose and object of the Act i.e. to bring the
administration nearer to the people. There was nothing on record to show that the decision
of the Government in any of these cases was arbitrary or capricious or was one not
reached in good faith or actuated with improper considerations or influenced by extraneous
considerations. In a matter like this, conferment of discretion upon the Government in the matter
of formation of a Revenue Mandal or location of its Headquarters in the nature of things
necessarily leaves the Government with a choice in the use of the directions conferred upon it.

It was difficult to sustain the judgments of the High Court in the cases where it had interfered
with the location of Mandal Headquarters and quashed the impugned notifications on the ground
that the Government had acted in breach of the guidelines in that one place or the other
was more centrally located or that location at the other place would promote general public
convenience or that the Headquarters should be fixed at a particular place with a view to
developing the area surrounded by it. The location of Headquarters by the Government by
the issue of the final notification under sub- section (5) of Section 3 of the Act was on a
consideration by the Cabinet Sub-Committee of the proposals submitted by the
Collectors concerned and the objections and suggestions received from the local authorities
like the gram panchayats and the general public. Even assuming that the Government
while accepting the recommendations of the Cabinet Sub- Committee directed
that the Mandal Headquarters should be at one place rather than at another place as
recommended by the Collector concerned in a particular case, the High Court would not have
issued a writ in the nature of mandamus to enforce the guidelines which were
nothing more than administrative instructions not having any statutory force, which did not
give rise to any legal right in favour of the writ petitioners. The petitions filed under Article 226
of the Constitutions before the High Court were dismissed.

14. Coimbatore District Central Cooperative Bank v. Coimbatore District

Central Co-op. Bank Employees Assn., (2007) 4 SCC 669.

Issues:

1. Whether the punishment of stoppage of 1 to 4 increments with cumulative effect on the 1 to 53

workers is justified?

2. Whether the 53 workmen are entitled to be paid wages for the period of suspension? After
considering the evidence in its entirety and relevant case law on the point, the Court held that all
the four charges levelled against the workmen were proved. It also held the inquiry to be legal,
valid and in consonance with the principles of natural justice. The evidence established that
threat was administered by the employees.

SC declared that the doctrine of proportionality has not only arrived in our legal system but has
come to stay. With the rapid growth of the administrative law and the need to control possible
abuse of discretionary powers by various administrative authorities, certain principles have been
evolved by reference to which the action of such authorities can be judged. If any action taken by
an authority is contrary to law, improper, irrational or otherwise unreasonable, a court competent
to do so can interfere with the same while exercising its power of judicial review.

'Proportionality' is a principle where the Court is concerned with the process, method or manner
in which the decision-maker has ordered his priorities, reached a conclusion or arrived at a
decision. The very essence of decision-making consists in the attribution of relative importance
to the factors and considerations in the case. The doctrine of proportionality thus steps in focus
true nature of exercise the elaboration of a rule of permissible priorities.

de Smith states that 'proportionality' involves 'balancing test' and 'necessity test'. Whereas the
former ('balancing test') permits scrutiny of excessive onerous penalties or infringement of rights
or interests and a manifest imbalance of relevant considerations, the latter ('necessity test')
requires infringement of human rights to the least restrictive alternative. ['Judicial Review of
Administrative Action';

In Halsbury's Laws of England, (4th edn.); Reissue, Vol.1(1); pp.144-45; para 78, it is stated;
"The court will quash exercise of discretionary powers in which there is no reasonable
relationship between the objective which is sought to be achieved and the means used to that
end, or where punishments imposed by administrative bodies or inferior courts are wholly out of
proportion to the relevant misconduct. The principle of proportionality is well established in
European law, and will be applied by English courts where European law is enforceable in the
domestic courts. The principle of proportionality is still at a stage of development in English law;
lack of proportionality is not usually treated as a separate ground for review in English law, but
is regarded as one indication of manifest unreasonableness."

The doctrine has its genesis in the field of Administrative Law. The Government and its
departments, in administering the affairs of the country, are expected to honour their statements
of policy or intention and treat the citizens with full personal consideration without abuse of
discretion. There can be no 'pick and choose', selective applicability of Government norms or
unfairness, arbitrariness or unreasonableness. It is not permissible to use a 'sledge- hammer to
crack a nut'. As has been said many a time; "Where paring knife suffices, battle axe is
precluded". In the celebrated decision of Council of Civil Service Union (CCSU) v. Minister for
Civil Service, (1984) 3 All ER 935 : (1984) 3 WLR 1174 : (1985) AC 374 (HL), Lord Diplock
proclaimed;

"Judicial review has I think developed to a stage today when, without reiterating any analysis of
the steps by which the development has come about, one can conveniently classify under three
heads the grounds on which administrative action is subject to control by judicial review. The
first ground I would call 'illegality', the second 'irrationality' and the third 'procedural
impropriety'. This is not to say that further development on a case by case basis may not in
course of time add further grounds. I have in mind particularly the possible adoption in the future
of the principle of proportionality'"

CCSU has been reiterated by English Courts in several subsequent cases. We do not think it
necessary to refer to all those cases.
So far as our legal system is concerned, the doctrine is well-settled. Even prior to CCSU, this
Court has held that if punishment imposed on an employee by an employer is grossly excessive,
disproportionately high or unduly harsh, it cannot claim immunity from judicial scrutiny, and it
is always open to a Court to interfere with such penalty in appropriate cases. In Hind
Construction Co. v. Workmen, (1965) 2 SCR 85 : AIR 1965 SC 917, some workers remained
absent from duty treating a particular day as holiday. They were dismissed from service. The
Industrial Tribunal set aside the action. This Court held that the absence could have been treated
as leave without pay. The workmen might have been warned and fined. (But) "It is impossible to
think that any reasonable employer would have imposed the extreme punishment of dismissal on
its entire permanent staff in this manner." The Court concluded that the punishment imposed on
the workmen was not only severe and out of proportion to the fault, but one which, in our
judgment, no reasonable employer would have imposed. (emphasis supplied)

In Indian Chamber of Commerce v. Workmen, (1972) 1 SCC 40 : AIR 1972 SC 763, the
allegation against the employee of the Federation was that he issued legal notices to the
Federation and to the International Chamber of Commerce which brought discredit to the
Federation the employer. Domestic inquiry was held against the employee and his services were
terminated. The punishment was held to be disproportionate to the misconduct alleged and
established. This Court observed that "the Federation had made mountain out of a mole hill and
made a trivial matter into one involving loss of its prestige and reputation."

In Ranjit Thakur referred to eariler, an army officer did not obey the lawful command of his
superior officer by not eating food offered to him. Court Martial proceedings were initiated and a
sentence of rigorous imprisonment of one year was imposed. He was also dismissed from
service, with added disqualification that he would be unfit for future employment. Applying the
doctrine of proportionality and following CCSU, Venkatachaliah, J. (as His Lordship then was)
observed:

"The question of the choice and quantum of punishment is within the jurisdiction and discretion
of the court-martial. But the sentence has to suit the offence and the offender. It should not be
vindictive or unduly harsh. It should not be so disproportionate to the offence as to shock the
conscience and amount in itself to conclusive evidence of bias. The doctrine of proportionality as
part of the concept of judicial review, would ensure that even on an aspect which is, otherwise,
within the exclusive province of the court-martial, if the decision of the court even as to sentence
is an outrageous defence of logic, then the sentence would not be immune from correction.

Irrationality and perversity are recognized grounds of judicial review."

Held Doctrine of proportionality not applicable in this case. - Normally, when disciplinary
proceedings have been initiated and finding of fact has been recorded in such inquiry, it cannot
be interfered with unless such finding is based on 'no evidence' or is perverse, or is such that no
reasonable man in the circumstances of the case would have reached such finding. In the present
case, four charges had been levelled against the workmen. An inquiry was instituted and findings
recorded that all the four charges were proved. The Labour Court considered the grievances of
the workmen, negatived all the contentions raised by them, held the inquiry to be in consonance
with principles of natural justice and findings supported by evidence. Keeping in view the
charges proved, the Labour Court, in our opinion, rightly held that the punishment imposed on
workmen could not be said to be harsh so as to interfere with it. In our opinion, therefore, the
High Court was not right in exercising power of judicial review under Article 226/227 of the
Constitution and virtually substituting its own judgment for the judgment of the Management
and/or of the Labour Court. To us, the learned counsel for the appellant-Bank is also right in
submitting that apart from charges 1 and 2, charges 3 and 4 were 'extremely serious' in nature
and could not have been underestimated or underrated by the High Court.

In this connection, it is profitable to refer to a decision of this Court in Bengal Bhatdee Coal Co.
v. Ram Prabesh Singh & Ors., (1964) 1 SCR 709 : AIR 1964 SC

486. In that case, the respondents were employees of the appellant. A strike was going on in the
concern of the appellant. The respondents obstructed loyal and willing trammers from working in
the Colliery and insisted those workmen to join them in the obstruction. A charge-sheet was
served on the respondents and disciplinary inquiry was instituted. They were found guilty and
were dismissed from service. Since another reference was pending, approval of the Industrial
Tribunal was sought which was granted. In a reference, however, the Industrial Tribunal held
that penalty of dismissal was uncalled for and amounted to victimization. The Management
approached this Court.

Allowing the appeal, setting aside the order of the Tribunal and upholding the order of dismissal,
this Court stated;

Now there is no doubt that though in case of proved misconduct, normally the imposition of a
penalty may be within the discretion of the management there may be cases where the
punishment of dismissal for the misconduct proved may be so unconscionable or so grossly out
of proportion to the nature of the offence that the tribunal may be able to draw an inference of
victimisation merely from the punishment inflicted. But we are of opinion that the present is not
such a case and no inference of victimisation can be made merely from the fact that punishment
of dismissal was imposed in this case and not either fine or suspension. It is not in dispute that a
strike was going on during those days when the misconduct was committed. It was the case of
the appellant that the strike was unjustified and illegal and it appears that the Regional Labour
Commissioner, Central, Dhanbad, agreed with this view of the appellant. It was during such a
strike that the misconduct in question took place and the misconduct was that these thirteen
workmen physically obstructed other workmen who were willing to work from doing their work
by sitting down between the tramlines. This was in our opinion serious misconduct on the part of
the thirteen workmen and if it is found as it has been found proved, punishment of dismissal
would be perfectly justified.

In M.P. Electricity Board v. Jagdish Chandra Sharma, (2005) 3 SCC 401, this Court held that
dismissal for breach of discipline at workplace by employee could not be said to be
disproportionate to the charge levelled and established and no interference was called for on the
ground that such punishment was shockingly disproportionate to the charge pleaded and proved.

M.P. Gangadharan & Anr. v. State of Kerala & Ors., (2006) 6 SCC 162, the constitutional
requirement for judging the question of reasonableness and fairness on the part of the statutory
authority must be considered having regard to the factual matrix in each case. It cannot be put in
a straight-jacket formula. It must be considered keeping in view the doctrine of flexibility.
Before an action is struck down, the Court must be satisfied that a case has been made out for
exercise of power of judicial review. The Court observed that we are not unmindful of the
development of the law that from the doctrine of 'Wednesbury unreasonableness', the Court is
leaning towards the doctrine of 'proportionality'. But in a case of this nature, the doctrine of
proportionality must also be applied having regard to the purport and object for which the Act
was enacted.

Union of India v. Parma Nanda, (1989) 2 SCC 177, a similar mistake was committed by the
Central Administrative Tribunal which was corrected by this Court. In that case, P, an employee
was chargesheeted alongwith other two employees for preparing false pay bills and bogus
identity card. All of them were found guilty. A minor punishment was imposed on two
employees, but P was dismissed from service since he was the 'mastermind' of the plan. P
approached the Central Administrative Tribunal. The Tribunal modified the punishment on the
ground that two other persons were let off with minor punishment but the same benefit was not
given to P. His application was, therefore, allowed and the penalty was reduced in the line of two
other employees. The Union of India approached this Court. It was urged that the case of P was
not similar to other employees inasmuch as he was the principal delinquent who was responsible
for preparing the whole plan was a party to the fraud and the Tribunal was in error in extending
the benefit which had been given to other two employees. Upholding the contention, this Court
set aside the order passed by the Tribunal and restored the order of dismissal passed by the
Authority against him.

15. Om Kumar & Others v. Union of India, AIR 2000 SC 3689 117

Summary: Case to re-open the quantum of punishment in a previous case decided by the court
i.e. upward increase in punishment. SC after discussing Wednesbury Principle & Proportionality
test held that the matter should not be reopened and it would be difficult for court to decide the
quantum of punishment in this case.

Proceedings arising out of an order of this Court dated 4.5.2000 proposing to re-open the
quantum of punishments imposed in departmental inquiries on certain officers of the Delhi
Development Authority (hereinafter called the DDA) who were connected with the land of the
DDA allotted to M/s. Skipper Construction Co. It was proposed to consider imposition of higher
degree of punishments in view of the role of these officers in the said matter.

SC explained:-

(a) Wednesbury principle:

Lord Greene said in 1948 in the Wednesbury case that when a statute gave discretion to an
administrator to take a decision, the scope of judicial review would remain limited. He said that
interference was not permissible unless one or other of the following conditions were satisfied, -
namely the order was contrary to law, or relevant factors were not considered, or irrelevant
factors were considered; or the decision was one which no reasonable person could have taken.
These principles were consistently followed in UK and in India to judge the validity of
administrative action. It is equally well known that in 1983, Lord Diplock in Council for Civil
Services Union v. Minister of Civil Service [1983 (1) AC 768] (called the GCHQ case)
summarised the principles of judicial review of administrative action as based upon one or other
of the following - viz. illegality, procedural irregularity and irrationality. He, however, opined
that proportionality' was a "future possibililty".

(b) Proportionality:

The principle originated in Prussia in the nineteenth century and has since been adopted in
Germany, France and other European countries. The European Court of Justice at Luxembourg
and the European Court of Human Rights at Strasbourg have applied the principle while judging
the validity of administrative action. But even long before that, the Indian Supreme Court has
applied the principle of 'proportionality' to legislative action since 1950, as stated in detail below.

By 'proportionality', we mean the question whether, while regulating exercise of fundamental

rights, the appropriate or least restrictive choice of measures has been made by the legislature or
the administrator so as to achieve the object of the legislation or the purpose of the administrative
order, as the case may be. Under the principle, the Court will see that the legislature and the
administrative authority 'maintain a proper balance between the adverse effects which the
legislation or the administrative order may have on the rights, liberties or interests of persons
keeping in mind the purpose which they were intended to serve'. The legislature and the
administrative authority are however given at area of discretion or a range of choices but as to
whether the choice made infringes the rights excessively or not is for the Court. That is what is
meant by proportionality.

The above principle of proportionality has been applied by the European Court to protect the
rights guaranteed under the European Convention for the Protection of Human Rights and
fundamental freedoms. 1950 and in particular, for considering whether restrictions imposed were
restrictions which were 'necessary' - within Articles 8 to 11 of the said Convention
(corresponding to our Article 19(1) and to find out whether the restrictions imposed on
fundamental freedoms were more excessive than required. (Handy side v. UK (1976) (1) EHR p.
737). Articles 2 and 5 of the Convention contain provisions similar to Article 21 of our
Constitution relating to life and liberty. The European Court has applied the principle of
proportionality also to questions of discrimination under Article 14 of the Convention
(corresponding to Article 14 of our Constitution.

On account of a Chapter on Fundamental Rights in Part III of our Constitution right from 1950,
Indian Courts did not suffer from the disability similar to the one experienced by English Courts
for declaring as unconstitutional legislation on the principle of proportionality or reading them in
a manner consistent with the charter of rights. Ever since 1950, the principle of 'proportionality'
has indeed been applied vigorously to legislative (and administrative action) in India. While
dealing with the validity of legislation infringing fundamental freedoms enumerated in Article
19(1) of the Constitution of India, - such as freedom of speech and expression, freedom to
assessable peacably, freedom to form associations and unions, freedom to move freely
throughout the territory of India, freedom to reside and settle in any part of India, - this Court had
occasion to consider whether the restrictions imposed by legislation were disproportionate to the
situation and were not the least restrictive of the choices. The burden of proof to show that the
restriction was reasonable lay on the State. 'Reasonable restrictions' under Article 19(2) to (6)
could be imposed on these freedoms only by legislation and Courts had occasion throughout to
consider the proportionality of the restrictions. In numerous judgments of this Court, the extent
to which 'reasonable restrictions' could be imposed was considered. In Chintaman Rao v. State of
UP. (1950 SCR 759), Mahajan J (as he then was) observed that 'reasonable restrictions' which
the State could impose on the fundamental rights 'should not be arbitrary or of an excessive
nature, beyond what is required for achieving the objects of the legislation.' 'Reasonable' implied
intelligent care and deliberations, that is, the choice of a course which reason dictated.
Legislation which arbitrarily or excessively invaded the right could not be said to contain the
quality of reasonableness unless it struck a proper balance between the rights guaranteed and the
control permissible under Articles 19(2) to (6). Otherwise, it must be held to be wanting in that
quality. Patanjali Sastri CJ in State of Madras v. VS. Row (1952 SCR 597), observed that the
Court must keep in mind the 'nature of the right alleged to have been infringed, the underlying
purpose of the restrictions imposed, the extent and urgency of the evil sought to be remedied
thereby, the disproportion of the imposition, the prevailing conditions of the time.

Article 21 guarantees liberty and has also been subjected to principles of 'proportionality'.
Provisions of Criminal Procedure Code, 1974 and the Indian Penal Code came up for
consideration in Bachan Singh v. State of Punjab (), the majority upholding the legislation. The
dissenting judgment of Bhagwati J [sec ] dealt elaborately with 'proportionality' and held that the
punishment provided by the statute was disproportionate.
So far as Article 14 is concerned, the Courts in India examined whether the classification was
based on intelligible differentia and whether the differentia had a reasonable nexus with the
object of the legislation. Obviously, when the Court considered the question whether the
classification was based on intelligible differentia, the Courts were examining the validity of the
differences and the adequacy of the differences. This is again nothing but the principle of
proportionality. There are also cases where legislation or rules have been struck down as being
arbitrary in the sense of being unreasonable [See Air India v. Nergesh Meerza and Ors. ()]. But
this latter aspect of striking down legislation only on the basis of 'arbitrariness' has been doubted
in State of A.P. v. Mc Dowell and Co. ().

In Australia and Canada, the principle of proportionality has been applied to test the validity of
statutes (See Cunliffe v. Commonwealth (1994) 68 Aust. LJ 791 (at 827, 839)(799, 810, 821). In
R v. Oakes [(1986) 26 DLR (4th) 2001 Dickson, CJ. of the Canadian Supreme Court has
observed that there are three important components of the proportionality test. First, the
measures adopted must be carefully designed to achieve the objective in question. They must not
be arbitrary, unfair or based on irrational considerations. In short, they must be rationally
connected to the objective. Secondly, the means, must not only be rationally connected to the
objective in the first sense, but should impair as little as possible the right to freedom in question.
Thirdly, there must be 'proportionality' between the effects of the measures and the objective.
See also Ross v. Brunswick School Dishut No. 15 (1996) (1) SCR 825 at 872 referring to
proportionality. English Courts had no occasion to apply this principle to legislation. Aggrieved
parties had to go to the European Court at Strasbourg for a declaration.
34. in USA, in City of Boerne v. Flares [(1997) 521 U.S. 507], the principle of proportionality
has been applied to legislation by stating that "there must be congruence and proportionality
between the injury to be prevented or remedied and the means adopted to that end".

Thus, the principle that legislation relating to restrictions on fundamental freedoms could be
tested on the anvil of 'proportionality' has never been doubted in India. This is called 'primary'
review by the Courts of the validity of legislation which offended fundamental freedoms.

Discussion here can be divided into two parts.

(a)(1) Classification test under Article 14:

58. Initially, our Courts, while testing legislation as well as administrative action which was
challenged as being discriminatory under Article 14, were examining whether the classification
was discriminatory, in the sense whether the criteria for differentiation were intelligible and
whether there was a rational relation between the classification and the object sought to be
achieved by the classification. It is not necessary to give citation of cases decided by this Court
where administrative action was struck down as being discriminative. There are numerous.

(ii) Arbitrariness test under Article 14:

59. But, in E.P. Royappa v. State of Tamil Nadu 1974 (4) SCC 31, Bhagwati, J. laid down
another test for purposes of Article 14. It was stated that if the administrative action was
'arbitrary', it could be struck down under Article 14. This principle is now uniformly followed in
all Courts more rigorously than the one based on classification. Arbitrary action by the
administrator is described as one that it irrational and not based on sound reason. It is also
described as one that is unreasonable.

(b) If, under Article 14, administrative action is to be struck down as discriminative,
proportionality applies and it is primary review. If it is held arbitrary. Wednesbury applies and it
is secondary review:

16. R. v. Secretary of State for the Home Department, Ex Parte Daly, 2001] UKHL 26

The House of Lords considered both common law and Article 8 of the convention and ruled that

the policy of excluding prisoners from their cells while prison officers conducted searches, which
included scrutinizing privileged legal correspondence was unlawful.

17. G. Sadananadan v. State of Kerala, AIR 1966 SC 1925: (1966) 3 SCR 590.

The petitioner was a wholesale dealer in Kerosene oil in Kerala State. The State
Government detained him under r. 30(1) (b) of the Defence of India Rules, 1962 on the alleged
ground that he was likely to act in a manner prejudicial to the maintenance of supplies and
services essential to the life of the community. By writ petition under Art. 32 of the
Constitution he challenged his detention as being mala fide, making certain specific
allegations against respondent No. 2, a police official. In particular, it was urged on his behalf
that after the coming into operation of the Kerala Kerosene Control Order, 1965 which
permitted kerosene trade to be carried only under a licence, there was no justification for ha
detention. On :behalf of the State an affidavit was filed by the Home Secretary generally denying
the petitioner's allegations. The affidavit stated, inter alia, that even after the passing of the
Kerala Kerosene Control Order it was possible for the petitioner to obtain a licence and carry on
the trade in a prejudicial manner.

HELD: (i) The Proclamation of Emergency and the notification, subsequently issued by the
President constitute a bar against judicial scrutiny in respect of the alleged violation of the
fundamental rights of a detenu. Nevertheless a detenu can urge in his support such statutory
safeguards as are permissible under the Rules, and when this Court is satisfied that the impugned
orders suffer from serious infirmities on grounds which it is permissible for the
detenu to urge, the said orders would be set aside.

(ii) The detention of a citizen under the Defence of India Rules is the result of the subjective
satisfaction of the appropriate authority; and so if a prima facie case is made Out by the
petitioner that his detention Is either mala fide, or is the result of a casual approach adopted by
the appropriate authority, the appropriate authority should place before the court sufficient
material in the form of prcper affidavit made by a duly authorised to show that the allegations
made by the petitioner about the character of the decision or its mala fides, are not well-founded.
In the present case no such material had been placed before the court. Respondent No. 2, though
impleaded, had not come forward to deny the specific allegations made against him. The Home
Secretary had taken it upon himself to deny the allegations against respondent No. 2, but his
denials were, at best based on hearsay evidence. The Home Secretary's affidavit suffered
from the formal defect that it did not distinguish between statements based on personal
knowledge and those made on the basis of information received. it moreover gave no sufficient
justification for the continuance of the petitioner's detention after' the passing of the Kerala
Kerosene Control Order. Under the circumstances there was no escape from the conclusion
that the impugned order was clearly and plainly mala fide.

(iii) It is the paramount requirement of the Constitution that even during Emergency, the freedom
of Indian citizens cannot be taken away without the existence of the justifying necessity
specified in the Rulesa themselves. The tendency to treat these matters in a somewhat and
cavalier manner which may conceivably result from the continuous use of such unfettered
powers, may ultimately pose a serious threat to the basic values on which the democratic way of
life in this country is founded. Cases of this kind may be rare; but even the presence of such rare
cases constitutes a warning deserving the attention of the authorities.

18. Express Newspapers (Pvt.) Ltd. v. Union of India, AIR 1986 SC 872.

Minister granted a lease to Express Newspaper who raised buildings for printing and publishing
the newspapers on leased land. Later the government sought to quash the action of the Minister
& the Express Newspapers were served with the notices of re-entry upon forfeiture of lease of
land granted to them. SC held that the action had been politically motivated & therefore vitiated
by mala fide intention.
19. State of Bombay v. K.P. Krishnan, (1961) 1 SCR 227: AIR 1960 SC 1223.

Govt refused to refer an industrial dispute with regard to payment of bonus for a certain year for
a tribunal for adjudication for the reason that the “workmen resorted to a go slow during the
year”. The court held that the reason given by the Govt was extraneous & not germane to the
dispute. The government acted in a punitive spirit and this was contrary to the objective of the
statute which was to investigate and settle disputes. “A claim for bonus is based on the
consideration that by their contribution to the profits of the employer the employees are entitled
to claim a share in the said profits, and so any punitive action taken by the Government by
refusing to refer for adjudication an industrial dispute for bonus would, in our opinion, be wholly
inconsistent with the object of the Act.

20. Ranjit Singh v. Union of India, AIR 1981 SC 461.

In 1950, the State Government issued a manufacturing licence renewable every year to the
petitioners for the manufacture by hand of a specified number of guns per month. The guns were
however not proof-tested.

After the Arms Act 1959, came into force, the government insisted that the guns manufactured
should undergo proof-testing. Pursuant to that condition in 1960, the petitioners installed
machinery and plant, by making substantial investment of funds. From 1964, the Government of
India, reduced the monthly quota of guns. The petitioners in their writ petitions under Article 32
alleged that this reduction had resulted in considerable hardship to them because of the fixed
overhead costs which could not be avoided. They also alleged that though in the case of a
number of other such manufacturers quotas were restored, in their cases, the Government refused
to restore the quotas.

The Union of India, however, denied the allegation of arbitrariness, and stated that: (a) what was
done was pursuant to the Industrial Policy Resolution of 1956 which envisioned an exclusive
monopoly in the Central Government in the matter of manufacturing arms and ammunition and
that in fixing the quota the manufacturing capacity of a concern was not a determining factor; (b)
there is no fundamental right under Article 19(1)(g) of the Constitution to carry on the
manufacture of arms; and (c) there was laches on the part of the petitioners.

Allowing the writ petitions,

HELD:

(a)(i) Any curtailment of the quota must proceed on the basis of reason and relevance. The
Government is entitled to take into consideration the requirements of current administrative
policy pertinent to the maintenance of law and order and internal security. If all relevant factors
are not considered, or irrelevant considerations allowed to find place, the decision is vitiated by
arbitrary judgment.

In the instant case the Government of India had not taken into careful consideration the several
elements necessary for forming a decision on the quota permissible to each of the petitioners.
That should be done and for that purpose the petitioners would be entitled to place before the
Government a fresh and complete statement of their case, with supporting material, to enable the
Government to reach a just decision. [850G-H] (ii) The Industrial Policy Resolution envisaged a
prohibition against an increase in the quota of guns, not its curtailment. No objection could be
taken to the government's instructions on the subject. The other factors governing the fixation of
the actual quota are the production capacity of the factory, the quality of the guns produced and
the economic viability of the unit. The Industrial Policy Resolution contains a specific
commitment to permit the continuance of the factories which were functioning for several years
earlier. [850C; D-E] (b) The Arms Act 1959, expressly contemplates the grant of licences for
manufacturing arms and an applicant for a licence is entitled to have it considered in accordance
with the terms of the statute and to press for its grant on the basis of the criteria set forth in it.
[851A-B] (c) The licences are granted for specific periods with a right to apply for renewal on
the expiry of each period. Each renewal constitutes a further grant of rights and it is open to the
applicant to show on each occasion that the quota governing the preceding period should be
revised in the light of present circumstances. In the instant case the petitioners had been
continuously agitating for the restoration of their quota. They are, therefore, not guilty of laches
and are entitled to relief.

21. Nandlal Khodidas Barot v. Bar Council of Gujarat and others AIR 1981 SC 477.

1. This is an appeal under Section 38 of the Advocates Act, 1961. In a proceeding transferred to
it under Section 36B of the Act, the Bar Council of India by its order dated 17 April, 1977 found
that the appellant was guilty of professional misconduct and suspended him from practice for a
period of one year. The complaint on which the proceeding was initiated was filed in the Gujarat
Bar Council on 9 October, 1971.

2. Section 35(1) of the Advocates Act, 1961 reads:

Where on receipt of a complaint or otherwise a State Bar Council has reason to believe that any
advocate on its roll has been guilty of professional or other misconduct, it shall refer the case for
disposal to its disciplinary Committee.

In Bar Council of Maharashtra v. M.V. Dhholkar etc, etc this Court having examined the scheme
and the provisions of the Advocates Act observed:

It is apparent that a State Bar Council not only receives a complaint but is required to apply its
mind to find out whether there is any reason to believe that any advocate has been guilty of
professional or other misconduct. The Bar Council of a State acts on that reasoned belief....

The Bar Council acts as the sentinel of professional code of conduct and is vitally interested in
the rights and privileges of the Advocates as well as the purity and dignity of the profession.

The function of the Bar Council in entertaining complaints against advocates is when the Bar
Council has reasonable belief that there is a prima facie case of misconduct that a disciplinary
committee Is entrusted with such inquiry....
3. In the case before us the Bar Council of Gujarat passed a resolution on 16 November, 1971
referring several complaint against different advocates including the one against the appellant to
the Disciplinary Committee of the Bar Council, The resolution reads:

Resolved that the following complaints be and are hereby referred to the Disciplinary Committee
of the Bar Council.

The names of the advocates and the complaints in which they were concerned were listed.
Nothing appears from the record of the case to suggest that before referring the complaint against
the appellant to the Disciplinary Committee, the State Bar council applied its mind to the
allegations made in the complaint and found that there was a prima facie case to go before the
Disciplinary Committee.

4. In Dabholkar's case referred to above, a bench of seven Judges decided the question whether
the Bar Council of a State was a "person aggrieved" to maintain an appeal under Section 38 of
the Advocates Act, the merits of the individual cases were left to be decided by another bench.
Our attention is drawn by Counsel for Bar Council of India to the following observation in tbe
judgment of this Court deciding the merits of the cases: (2)

The requirement of "reason to believe" cannot be converted into a formalized procedural road
block. it being essentially a barrier against frivolous enquiries. It is implicit in the resolution of
the Bar Council, when it says that it his considered the complaint and decided to refer the matter
to the disciplinary committee, that it had reason to believe, as prescribed by the statute.

5. Bat in the case before us the resolution does not even say that the State Bar Council bad
considered the complaint and found that there was a prima facie case. It must therefore be held
that the reference by the State Bar Council to the Disciplinary Committee was invalid and that
being so the proceedings before the Disciplinary Committee of Bar Council of Gujarat and also
before the Disciplinary Committee of the Bar Council of India on transfer were void. In the view
we take It is not necessary to consider the merit of the case.

6. The appeal is allowed and the order of the Disciplinary Committee of the Bar Council of India
suspending tie appellant from practice for one year is set aside.

22. Shri Rama Sugar Industries Ltd. v. State of Andhra Pradesh, (1974) 1 SCC 534: AIR
1974 SC 1745.

Section 20(3) (b) of the Act lays down that the Government may, by notification, exempt from
the payment of tax any factory which in the opinion of the Government, has substantially
expanded to the extent of such expansion for a period not exceeding two years from the date of
completion of the expansion. The Andhra Pradesh Government took a policy decision to grant
exemption from payment of purchase tax to new and expanded sugar factories in the cooperative
sector only due to present financial position of the Government. In pursuance of the said policy,
the exemption was granted for one year from the payment of tax to the cooperative societies of
growers of sugarcane. The benefit of the exemption was refused to the appellant and other joint
stock companies running the sugar factories. On behalf of the appellant it was contended that the
Government could not by laying down a policy to exempt only cooperative sugar factories fetter
their hands from examining the merits of each individual case. It was also contended that the
policy behind sec. 21(3) being to encourage new sugar facto- ries or expanded factories the
Government could not refuse to consider all except one class, that is, the cooperative sugar
factories, for the purpose of granting exemption. It was further urged that new sugar factories aid
expanded sugar factories all fall into one class and there is nothing particular or special about
cooperative sugar factories justifying their treatment as a special class deserving a special
treatment. The State of Andhra Pradesh contended that it had full discretion to decide the policy
in granting the exemption and that cooperative sugar factories consisting of cane growers is a
distinct category justifying their treatment as a class separate from other sugar factories. On facts
it was asserted by the State that the exemption was granted only to new cooperative sugar
factories and that too only for one year. It was also asserted that the case of the appellants was
individually considered and rejected on merits.

Dismissing the appeal and writ petitions, the majority of the Court,

HELD:

Per A. N. Ray, C.J., H. R. Khanna and A. Alagiriswami, JJ (1) The purpose of the Act is to
encourage new sugar factories and expanded sugar factories. But how that power is to be
exercised will have to be decided by taking into consideration all the relevant factors relating to
the sugar industry. It is well known that there is a difference in the sycrose content in the cane
produced in different areas. At one period the industry may be in a very prosperous condition
and might not need the exemption. It may also be that factories in a particular area are in need of
this concession but not factories in another area. We are therefore of opinion that it would be
open to the State Government to grant exemption to new factories only but not the expanded
factories, to grant the exemption for one year instead of three years or two years as contemplated
under the Section, to grant the exemption to factories in one area but not to factories in another
area, to grant the exemption during a particular period but not during another period.

(II)The cooperative sugar factories consisting of sugarcane growers fall under a distinct category
different from other categories and the Government is justified in treating the cooperative sugar
factories as a distinct class for the pur- poses of the protection and concessions, considering their
contribution to the sizable sugar industry now built up in this country.

(III)There is no reason to reject the statement on behalf of the State of Andhra Pradesh that they
had considered the request of the appellant as well as of the petitioners on their merits and that
the exemption had been granted only to new cooperative factories for the short period of one
year only.

Per minority (Mathew and Bhagwati, JJ.) :,Picking out cooperative societies of sugarcane
growers for favoured treatment to the exclusion of other new or substantially expanded
industries is wholly unrelated to the object of the exempting provision and the policy or rule
adopted by the State Government is legally not relevant to the exercise of the power of granting
exemption. Considering the object of sub-section (b) of Sec. 21 (3), there is no distinction
between a factory established by a cooperative society consisting of sugarcane growers or a
company or a firm whose share holders and partners are sugarcane growers. The classification
made by the policy or rule must not be arbitrary but must have a rational relation to the object of
the exempting provision. The Government, by making the policy decision, had shut its ears to the
merits of the individual applications, That the exemption is granted to few cooperative factories
and for a short time are not relevant considerations.

Topic 4 – Principles of Natural Justice

4.1 Administrative and quasi-judicial functions

4.2 Meaning and need for Administrative Adjudication, lis inter partes, concept of fairness

 specialized tribunal v generalized courts – faster

 Procedures (non applicability of IEA 1872)
 Less expensive
 Faster decisions

4.3 Nemo judex in causa sua (rule against bias) [No one should be made a judge in his own
cause]

Types of bias

 pecuniary,
 personal,
 bias as to subject matter or policy
o Partiality or connection with the issues (close & direct connection)
o Departmental or official bias
o Prior utterances & pre judgment of issues
o Acting under dictation
 Misc

4.4 Audi alteram partem (rule of fair hearing) [no one should be condemned unheard]

4.4.1 Notice (adequate defence, exception à absconding etc)

4.4.2 Right to cross-examination

4.4.3 Right to legal representation

4.5 Reasoned Decision (Speaking Order)

4.6 Effect of non-observation of the Principles of Natural Justice

4.7 Requirement of supplying Enquiry Report – Effect of non-supply of such Report.

23. A.K. Kraipak v. Union of India, AIR 1970 SC 150.

In pursuance of the Indian Forest Service (Initial Recruitment) Regulation, 1966,
framed under r. 4(1) of the Indian Forest Service (Recruitment) Rules made under the All India
Services Act, 1951, a Special Selection Board was constituted for selecting officers
to the Indian Forest Service in the senior and junior scales from officers serving in the
forest department of the State of Jammu and Kashmir. One of the members of the Board was the
Chief Conservator of Forests of the State, as )required by the Regulations. He was a
Conservator of forests appointed as Acting Chief Conservator superseding another Conservator
of Forests whose appeal to the State Government against his supersession was pending at the
time the selections by the Board were made. The Acting Chief Conservator was also one of
the candidates seeking to be selected to the Indian Forest Service. The Board
made the 'selection of officers in the senior and junior scales. The Acting Chief Conservator's
name was at the top of the list of selected officers, while the names of three
conservators, (including the officer who was superseded), who were the Acting Chief
Conservator's rivals, were omitted. The Acting Chief Conservator did not sit in the
Selection Board at the time his name was considered, but participated in the deliberations
when the names of his rivals were considered. He -also participated in the Board's
deliberations while preparing the list of selected candidates in order of preference. The
list and the records were sent to the Ministry of Home Affairs and the Ministry of
Home Affairs forwarded the list with its observations to the Union Public Service Commission,
as required by the Regulations, and the U.P.S.C. examined the records of the officers
afresh and made its recommendations. The Government of India thereafter notified the
list. The three conservators, whose names were not included in the list, and other aggrieved
officers filed a petition in this Court under Art. 32 for quashing the notification.

On the questions :

(1) Assuming that the proceedings in the present case were administrative proceedings, whether
principles of natural justice applied to them;

(2) Whether there was a violation of such principles of natural justice in the present case;

(3) Since the recommendations of the Board were first considered by the Home Ministry and the
final recommendations were made by the U.P.S.C., whether there was any basis for the
petitioners' grievances;

(4) Whether there were grounds for setting aside the selection of all the officers including those
in the junior scales,

HELD :

(1) The rules of natural justice operate in areas not covered by any law validly made, that is, they
do not supplant the law of the land but supplement it. They are not embodied rules and their aim
is to secure justice or to prevent miscarriage of justice. If that is their purpose, there is no reason
why they should not be made applicable to administrative proceeding also, especially when it is
not easy to draw the line that demarcates administrative enquiries from quasi-judicial ones, and
an unjust decision in an administrative enquiry may have a more far-reaching effect than a
decision in a quasi-judicial enquiry.

(2) The concept of natural justice has undergone a great deal of change in recent years. What
particular rule of natural justice should apply to a given case must depend to a great extent on the
facts and circumstances of that case, the framework of the law under which the enquiry is held
and the constitution of the Tribunal or the body of persons appointed for that purpose. Whenever
a complaint is made before a court that some principle of natural justice had been contravened,
the court has to decide whether the observance of that rule was necessary for a just decision on
the facts of that case. The rule that enquiries must be held in good faith and without bias, and not
arbitrarily or unreasonably, is now included among the principles of natural justice.

In the present case. at the time of selection, the other members of the Board did not know that the
appeal of the superseded conservator was pending before the State Government and hence there
was no occasion for them to distrust the opinion of the Acting Chief Conservator. There was a
conflict between his interest and duty and he was a judge in his own cause. Taking into
consideration human probabilities and the ordinary course of human conduct, there was
reasonable ground for believing that the Acting Chief Conservator was likely to have been
biased. He did not participate in some of the deliberations of the Board, but the facts that he was
a member of the Board and that he participated in the deliberations when the claims of his rivals
were considered and in the preparation of the list, must have had its impact on the selection, as
the Board, in making the selection, must necessarily have given weight to his opinion. In judging
the suitability of the candidates the members of the Board must have had mutual discussions and
though the other members filed affidavits stating that the Acting Chief Conservator in no manner
influenced their decision, in group discussions, each member was bound to influence the others
in a subtle manner and without their being aware of such influence.

In the circumstances of the case, the selection by the Board, could not be considered to have
been taken fairly and justly as it was influenced by a member who was biased.

(3) The Selection Board was undoubtedly a high powered body, and its recommendations must
have had considerable weight with the U.P.S.C. The recommendation made by the U.P.S.C.
could not be dissociated from the selection made by the Selection Board which was the
foundation for the recommendations of the U.P.S.C. Therefore, if the selection by the Selection
Board was held to be vitiated, the final recommendation by the U.P.S.C, must also be held to
have been vitiated.

(4) The selections to both senior and junior scales were made from the same pool and so, it was
not possible to separate the two sets of Officers. Therefore, it was not sufficient to merely direct
the Selection Board to consider the cases of the three conservators who were excluded, but all
the selections had to be set aside.

24. Ashok Kumar Yadav v. State of Haryana, AIR 1987 SC 454.

Issue: Whether the selection of candidate would vitiate for bias if close relative of a members of
the Public Service Commission is appearing for selection?

Held

The SC laid down the following propositions: -

1. When a selection committee is constituted for the purpose of selecting candidates on merits
and one of its members happens to be closely related to a candidate appearing for the selection,
such member should withdraw not only from participation in the interview of the candidate but
from the entire selection process altogether, otherwise selection would be vitiated on account of
reasonable likelihood of bias affecting the selection process.

2. This is not applicable in case of Constitutional Authority like PSC whether central or State.
This is so because if a member was to withdraw altogether from the selection process, no other
person save a member can be substituted in his place and it may sometimes happen that no other
member is available to take the place of such a member and the functioning of PSC may be
affected.

The SC conceptualised the doctrine of necessity in this case.

25. G.N. Nayak v. Goa University, AIR 2002 SC 790.

Facts

In August 1994, respondent-University issued an advertisement for the post of Professor, Marine
Science prescribing minimum and additional qualifications. The minimum qualification, stated in
two limbs, was as follows: "An eminent scholar with public work of high quality actively
engaged in research with 10 years of experience in post graduate teaching and/or research at the
University/National level Institution including experience of guiding research at doctoral level
(OR) an outstanding scholar with established reputation with significant contribution to
knowledge." Appellant and respondent 5, who were Readers in Department of Marine Science,
applied for the post. Both were called for interview. Meanwhile, respondent 2, who is the Head
of the Department, wrote a note to Vice Chancellor and Dean of Faculty of the University for
early holding of the interview since the appellant, who was a dedicated and intelligent faculty,
had received an appointment letter from another University for a similar post. Respondent 5,
who obtained a copy of the note, objected to the participation of respondent 2 and the Dean of
the Faculty to the Chancellor and Vice Chancellor of the University in Selection Committee
apprehending bias in favour of the appellant. Since no reply was forthcoming, respondent 5 filed
a Writ Petition before High Court for the same. The Writ Petition was, however, withdrawn.
Respondent 2 was not in the Selection Committee. Neither the appellant nor respondent 5 were
found suitable for the post. In October 1995, another advertisement was issued for the post
keeping the same minimum qualifications while amending the additional qualifications. A fresh
Selection Committee was constituted which included respondent 2. The Committee
recommended the appointment of the appellant. Respondent 5 filed another writ petition before
the High Court challenging the selection of the appellant The High Court allowed the Writ
Petition and set aside the selection of the appellant. The High Court held that the eligibility
criterial had been illegally amended by University contrary to the Statutes of the University;
that the appellant was not qualified and did not possess the essential qualifications for the post;
that the Selection Committee was not legally constituted; that the selection process was vitiated
by bias; and that no proper records were maintained disclosing inter-se grading among the
candidates. In appeal to this Court, the appellant, raising a preliminary objection, contended that
respondent 5, after withdrawing the earlier writ petition without liberty to file a fresh application
on the same cause of action, cannot be permitted to re-agitate the identical issues again. The
appellant held that he fulfils the prescribed minimum qualifications laid down under the first
limb if his three-year pre-doctoral research is counted besides his teaching experience.
Respondent 5 contended that the amendment of the qualifications in the second advertisement
for the post was illegal since the amendment had neither been prescribed by the Executive
Council nor recommended by the Academic Council and are contrary to the Statutes framed
under the Goa University Act, 1984; and that the Selection Committee was not legally
constituted under the Statutes.

Held:

The phrase `research at the University/National level Institution', as appearing in the first limb of
the minimum qualifications, should be red ejusdem generis and in the context of the alternate
qualifications specified viz. `teaching experience' and the last phrase `including experience of
guiding research at doctoral level'. In other words, the research must be independent such that the
researcher could guide others aspiring for doctorate degree and not the research where the
researcher himself is striving for a doctorate degree. Since the appellant's research was pre-
doctoral, according to the letter of the law, the appellant was not qualified to be considered as a
candidate for a Professorship in 1996 since he had failed to meet the criteria by about four
months. However, this would not justify adopting a legalistic approach and proceeding on a
technical view without considering the intention of the University in laying down the condition
of eligibility, since it is for the University to decide what kind of research would be adequate to
qualify for Professorship. The University had intended, understood and consistently proceeded
on the basis that the pre-doctoral research could be Counted towards the 10 years experience
clause.

Respondent 5 cannot raise the grievance of the amendment of the qualifications by the
University contrary to the Statutes. He knew of the amendment. Yet he applied for the post and
appeared at the interview without protest He cannot now be allowed to contend that the
eligibility criteria was wrongly framed.

Each of the experts, constituting the Selection Committee, had been approved by the Academic
Council as being fit to be in the Selection Committee. The Executive Council merely prepared
the panel in the order of preference. If the preferred members were unavailable, the other
members approved by the Academic Council and recommended by the Executive Council could
be empanelled. Hence, there is no violation of the Statute in the constitution of the Selection
Committee.

Bias may be generally defined as partiality or preference. Any person or authority required to act
in a judicial or quasi-judicial matter must act impartially. It is not every kind of bias which in law
is taken to vitiate an act. It must be a prejudice which is not founded on reason, and actuated by
self interest-pecuniary or personal. Because of this element of personal interest, bias is also seen
as an extension of the principle of natural justice that no man should be a judge in his own cause.
Being a state of mind, a bias is sometimes impossible to determine. It is sufficient for a litigant to
successfully impugn an action by establishing a reasonable possibility of bias or proving
circumstances from which the operation of influences affecting a fair assessment of the merits of
the case can be inferred. Every preference does not vitiate an action. If it is rational and
unaccompanied by considerations of personal interest, pecuniary or otherwise, it would not
vitiate a decision. If a senior officer expresses appreciation of the work of a junior in the
Confidential Report, it would not amount to bias nor would it preclude that senior officer from
being part of the Departmental Promotion Committee to consider such junior officer along with
others for promotion.`

Respondent 5 has relied on the note to allege bias against respondent 2 who lavished praise on
the performance of the appellant. As the Head of the Department, it would be but natural that he
formed an opinion as to the abilities of the Readers working under him. The High Court is wrong
to infer bias merely because, at the previous selection in September 1995, the appellant was
found unsuitable. If the outcome of the previous selection was conclusive as to the non-
suitability of the appellant for all times to come, it was conclusive for respondent 5 also. Vet, the
respondent 5 applied again because he knew that a reappraisal by a new Selection Committee
might yield a different result.

As for the failure to keep any record as to the grading of the candidates under the Statute, the
procedure to be followed by the Selection Committee in making recommendations are required
to be such as may be laid down in the Ordinances. No Ordinance was shown which prescribes a
particular mode of rating the respective merits of the candidates. When appointments are being
made to posts as high as that of a Professor, it may not be necessary to give marks as the means
of the assessment. But whatever the method of measurement of suitability used by the Selection
Committee, it was an unanimous decision which has to be respected.

The preliminary objection by the appellant is misconceived. The first writ petition had been filed
on the ground of apprehended bias on the part of respondent 2. In the latter writ petition, the
allegation is of actual bias. Furthermore, the subject matter of the earlier writ petition was the
selection which was due to be held pursuant to the advertisement issued in August 1994. The
subject matter of the subsequent writ petition is in connection with the advertisement issued in
October 1995 and the selection which was held in May 1996. The subject matter of both the
proceedings, being different, the second writ petition before the High Court is competent

26. Amar Nath Chowdhuary v. Braithwaite & Co. Ltd., (2002) 2 SCC 290: AIR 2002 SC
678.

Disciplinary Proceedings-Bias-Appeal against order of Disciplinary Authority-Disciplinary

Authority also acting as Appellate Authority-Held, order of Appellate Authority vitiated on
account of bias-Dual function permissible only when permitted by an act of legislation or
statutory provision-Administrative Law-Bias.
Disciplinary proceedings were initiated against appellant by the respondent-Company.
Disciplinary Authority, who was the Chairman-cum- Managing Director of the company,
accepted the report of Inquiry Committee and removed the appellant from service. Appellant
preferred appeal against the said order under regulations framed by the company before the
Board of Directors which was dismissed by a non-speaking order. The Chairman-cum-
Managing Director presided over and participated in the deliberations of the meeting of the
Board. Appellant filed writ petition challenging the said order which was allowed by Single
Judge. In appeal, Division Bench reversed the order of Single Judge. Hence, this appeal.

Appellant contended that order of Appellate Authority was vitiated on account of legal bias by
the participation of Disciplinary Authority in the deliberations of meeting of the Board which
decided his appeal.

Respondent relied upon doctrine of necessity and contended that rule against bias is not available
as Chairman-cum-Managing Director was required to participate in the meeting of the Board
under the Regulations framed by the Company.

HELD:

1. Where an authority earlier had taken a decision, he is disqualified to sit in appeal against his
own decision, as he already prejudged the matter, otherwise such an appeal would be termed an
appeal from Caesar to Caesar and filing of an appeal would be an exercise in futility. Such a dual
function is not permissible on account of established rule against bias. In a situation where such a
dual function is discharged by one and the same authority, unless permitted by an act of
legislation or statutory provision, the same would be contrary to rule against bias.

2. Fair play demanded the Chairman-cum-Managing Director of the Company ought not to have
participated in the deliberations of the meeting of the Board when the Board heard and decided
the appeal of the appellant The Board could have constituted a Committee of the
Board/Management or any officers of the Company by excluding Chairman-cum-Managing
Director of the Company and delegated any of its power, including the appellate power, to such a
committee to eliminate any allegation of bias against such an appellate authority. Reliance on the
doctrine of necessity in the present case is totally misplaced.

3. The order and judgment under challenge as well as the order passed by the Appellate
Authority are set aside and the matter is sent back to the Appellate Authority to decide the appeal
by a speaking order, in accordance with law.

* The Doctrine of Necessity is the basis on which extra-legal actions by state actors, which are
designed to restore order, are found to be constitutional. The maxim on which the doctrine is
based originated in the writings of the medieval jurist Henry de Bracton, and similar
justifications for this kind of extra-legal action have been advanced by more recent legal
authorities, including William Blackstone.

In modern times, the doctrine was first used in a controversial 1954 judgment in which Pakistani
Chief Justice Muhammad Munir validated the extra-constitutional use of emergency powers by
Governor General, Ghulam Mohammad.[1] In his judgment, the Chief Justice cited Bracton's
maxim, 'that which is otherwise not lawful is made lawful by necessity', thereby providing the
label that would come to be attached to the judgment and the doctrine that it was establishing.

The Doctrine of Necessity has since been applied in a number of Commonwealth countries, and
in 2010 was invoked to justify extra-legal actions in Nigeria.

Grenada, 1985: Second use of the Doctrine of necessity

In a 1985 judgment, the Chief Justice of the High Court of Grenada invoked the doctrine of
necessity to validate the legal existence of a court then trying for murder the persons who had
conducted a coup against former leader Maurice Bishop. The court had been established under
an unconstitutional "People's Law" following the overthrow of the country's constitution, which
had subsequently been restored. The defendants argued that the court before which they were
being tried had no legal existence under the restored constitution, and they were therefore being
deprived of their constitutional right to a trial before a "Court established by law". The High
Court acknowledged that the lower court "had come into existence in an unconstitutional
manner", but "the doctrine of necessity validated its acts."[6] On this basis, the murder trials
were allowed to proceed.

Nigeria, 2010: Nigerian parliament creates an Acting President (Third use)

A related (although non-judicial) use of the doctrine took place when, on February 9, 2010, the
Nigerian National Assembly passed a resolution making Vice President Goodluck Jonathan the
Acting President and Commander in Chief of the Armed Forces. Both chambers of the Assembly
passed the resolution after President Umaru Yar'Adua, who for 78 days had been in Saudi
Arabia receiving medical treatment, refused to formally empower the vice president to exercise
full powers as acting president, as provided for in Section 145 of the country's constitution. No
provision of the Nigerian constitution empowering the National Assembly to pass any such
resolution, causing Senate President David Mark to assert that the Senate had been guided by
the "doctrine of necessity" in arriving at its decision.

Source: Wikipedia

27. Hira Nath Mishra v. Principal, Rajendra Medical College, (1973) 1 SCC 805: AIR 1973
SC 1260.

Unclothed boys in girls hostel case - Complain by 38 girl students – Inquiry – The identified
boys given paper & pen to state their defence – Committee on hearing both sides expelled the
boys on grounds of gross misconduct –

Appellant’s chief contention was that rules of natural justice had not been followed before the
Order was passed against them expelling them from the college. They submitted that the enquiry,
if any, had been held behind their back; the witnesses who gave evidence against them were not
examined in their presence, there was no opportunity to cross-examine the witnesses with a view
to test their veracity, that the Committee's report was not made available to them and for all these
reasons the enquiry was vitiated and the order passed by the Principal acting on the report was
illegal. The High Court held that rules of natural justice were not inflexible and that in the
circumstances and the facts of the case, the requirements of natural justice had been satisfied.
The petition was, therefore, dismissed.

Apex Court - We think that under the circumstances of the case the requirements of natural
justice were fulfilled. The learned Counsel for the respondents made available to us the report of
the Committee just to show how meticulous the members of the Committee were to see that no
injustice was done. We are informed that this report had also been made available to the learned
Judges of the High Court who heard the case and it further appears that the counsel for the
appellants before the High Court was also invited to have a look into the report, but he refused to
do so. There was no question about the incident. The only question was of identity. The names
had been specifically mentioned in the complaint and, not to leave anything to chance, the
Committee obtained photographs of the four delinquents and mixed them up with 20 other
photographs of students. The girls by and large identified these four students from the
photographs. On the other hand, if as the appellants say, they were in their own Hostel at the
time it would not have been difficult for them to produce necessary evidence apart from saying
that they were innocent and they had not gone to the girls Hostel at all late at night. There was no
evidence in that behalf. The Committee on a careful consideration of the material before them
came to the conclusion that the three appellants and Upendra had taken part in the night raid on
the girls Hostel. The report was confidentially sent to the Principal. The very reasons for which
the girls were not examined in the presence of the appellants, prevailed on the authorities not to
give a copy of the report to them. It would have been unwise to do so. Taking all the
circumstances into account it is not possible to say that rules of natural justice had not been
followed.

SC cited various judgments in support of its decision

In Board of Education v. Rice 1911 AC 179 Lord Loreburn laid down that in disposing of a
question, which was the subject of an appeal to it, the Board of Education was under a duty to act
in good faith, and to listen fairly to both sides, inasmuch as that was a duty which lay on
everyone who decided anything. He did not think that the Board was bound to treat such a
question as though it were a trial. The Board need not examine witnesses. It could, he thought,
obtain information in any way it thought best, always giving a fair opportunity to those who were
parties in the controversy to correct or contradict any relevant statement prejudicial to their view

More recently in Russell v. Duke of Norfolk 1949 1 All ER 109 at p. 118 Tucker, L.J. observed:
"There are, in my view, no words which are of universal application to every kind of inquiry and
every kind of domestic tribunal. The requirements of natural justice must depend on the
circumstances of the case, the nature of the inquiry the rules under which the tribunal is acting,
the subject-matter that is being dealt with, and so forth. Accordingly, I do not derive much
assistance from the definitions of natural justice which have been from time to time used, but,
whatever standard is adopted, one essential is that the person concerned should have a reasonable
opportunity of presenting his case."
More recently in Byrne v. Kinematograph Renters Society Ltd. 1958 2 All ER 579 Harman, J.
observed "what, then, are the requirements of natural justice in a case of this kind? First, I think
that the person accused should know the nature of the accusation made; secondly that he should
be given an opportunity to state his case; and thirdly, of course, that the tribunal should act in
good faith. I do not think that there really is anything more".

Rules of natural justice cannot remain the same applying to all conditions. We know of statutes
in India like the Goonda Acts which permit evidence being collected behind the back of the
goonda and the goonda being merely asked to represent against the main charges arising out of
the evidence collected. Care is taken to see that the witnesses who gave statements would not be
identified. In such cases there is no question of the witnesses being called and the goonda being
given an opportunity to cross-examine the witnesses. The reason is obvious. No witness will
come forward to give evidence in the presence of the goonda. However unsavoury the procedure
may appear to a. judicial mind, these are facts of life which are to be faced. The girls who were
molested that night would not have come forward to give evidence in any regular enquiry and if
a strict enquiry like the one conducted in a court of law were to be imposed in such matters, the
girls would have had to go under the constant fear of molestation by the male students who were
capable of such indecencies. Under the circumstances the course followed by the Principal was a
wise one. The Committee, whose integrity could not be impeached, collected and sifted the
evidence given by the girls. Thereafter the students definitely named by the girls were informed
about the complaint against them and the charge. They were given an opportunity to state their
case. We do not think that the facts and circumstances of this case require anything more to be
done.

There is no substance in the appeal which must he dismissed. The appeal is dismissed. There
shall be no orders as to costs.

28. J.K. Aggarwal v. Haryana Seeds Development Corpn. Ltd. , (1991) 2 SCC 283: AIR
1991 SC 1221.

A disciplinary inquiry was initiated against the appellant, who was the Company Secretary of the
Corporation on certain charges which if established might lead to his dismissal from service.

Inquiry-Authority rejected the appellant's prayer made at the initial stage of the inquiry for
permission to engage the services of a lawyer.

Before the High Court, appellant challenged the inquiry proceedings on grounds of denial of
natural justice. The High Court dismissed the Writ-Petition in-limine against which this appeal
was filed.

Allowing the appeal, this Court,

Held that :-
1. The right of representation by a lawyer may not in all cases be held to be a part of natural
justice. No general principle valid in all cases can be enunciated. In the present case, the matter is
guided by the Provi- sions of Rule 7(5) of the Civil Services (Punishment & Appeal) Rules, 1952

The Rule itself recognises that where the charges are so serious as to entail a dismissal from
service, the inquiry- authority may permit the services of a lawyer. This rule vests
discretion. In the matter on exercise of this discretion one of the relevant factors is whether there
is likelihood of the combat being unequal entailing a miscarriage or failure of justice and a denial
of a real and reasonable opportunity for defence by reason of the appellant being pitted against a
presenting officer, who is trained in law.

In the inquiry, the Respondent-Corporation was represented by its Personnel and Administration
Manager, who is stated to be a man of law. Moreover, appellant, it is claimed, has had no legal
background. The refusal of the service of a lawyer, in the facts of this case, results in denial of
natural justice.

2. Legal Adviser and a lawyer are for this purpose somewhat liberally construed and must
include "whoever assists or advises on facts and in law must he deemed to he in the position of a
legal adviser."

29. Bharat Petroleum Corpn. Ltd. v. Maharashtra General Kamgar Union, (1999) 1 SCC
626.

Issue: Representation of an employee in the disciplinary proceedings through another employee

who, though not an employee of the appellant-Corporation was nevertheless, a member of the
Trade Union.

Model Standing orders – Central govt – "In the enquiry, the workman shall be entitled to appear
in person or to be represented by an office bearer of a trade union of which he is a member."

Draft Standing Orders – framed by Corporation - 29.4 (para-3): If it is decided to hold an

enquiry the workman concerned will be given an opportunity to answer the
charge/charges and permitted to be defended by a fellow workman of his choice, who
must be an employee of the Corporation, The workman defending shall be given necessary time
off for the conduct of the enquiry."

Held:- the Standing Orders as finally certified cannot be said either to be not in consonance with
the Model Standing Orders or unreasonable or unfair. Model Standing Orders, no doubt,
provided that a delinquent employee could be represented in the disciplinary proceedings
through another employee who may not be the employee of the parent establishment to
which the delinquent belongs and may be an employee elsewhere, though he may be a member
of the Trade Union, but this rule of representation has not been disturbed by the Certified
Standing Orders, inasmuch as it still provides that the delinquent employee can be represented in
the disciplinary proceedings through an employee.The only embargo is that the representative
should be an employee of the parent establishment. The choice of the delinquent in
selecting his representative is affected only to the extent that the representative has to be a co-
employee of the same establishment in which the delinquent is employed. There appears
to be some logic behind this as a co-employee would be fully aware of the conditions
prevailing in the parent establishment, its Service Rules, including the
Standing Orders, and would be in a better position, than an outsider, to assist the
delinquent in the domestic proceedings for a fair and early disposal. The basic features of the
Model Standing Orders are thus retained and the right of representation in the disciplinary
proceedings through another employee is not altered, affected or taken away. The Standing
Orders conform to all standards of reasonableness and fairness and, therefore, the Appellate
Authority was fully justified in certifying the Draft Standing Orders as submitted by the
Appellant.

30. Maneka Gandhi v. Union of India (1978) 1 SCC 248.

Ratio: The apex court held that law which allows any administrative authority to take a
decision affecting the rights of the people, without assigning the reason for such action, can
not be accepted as a procedure, which is just, fair and reasonable, hence violative of Articles
14 and 21.

In this case the passport dated 01.06.1976 of the petitioner, a journalist, was impounded `in the
public interest' by an order dated 02.07.1977. The Govt. declined to furnish her the reasons for
its decision. She filed a petition before the SC under article 32 challenging the validity of the
impoundment order. She was also not given any pre-decisional notice and hearing.

Contentions

The Govt. argued that the rule of audi alteram partem must be held to be excluded because
otherwise it would have frustrated the very purpose of impounding the passport.

Held

The SC held that though the impoundment of the passport was an administrative action yet the
rule of fair hearing is attracted by the necessary implication and it would not be fair to exclude
the application of this cardinal rule on the ground of administrative convenience.

The court did not outright quash the order and allowed the return of the passport because of the
special socio-political factors attending the case.

The technique of post decisional hearing was developed in order to balance these factors
against the requirements of law, justice and fairness.

The court stressed that a fair opportunity of being heard following immediately the order
impounding the passport would satisfy the mandate of natural justice.

31. H.L. Trehan v. Union of India, AIR 1989 SC 568.

Ratio: Post decisional hearing against the principles of natural justice and violative of Article
14 of CoI.

Facts: The Caltex (Acquisition of Shares of Caltex Refining (India) Ltd. and of the
Undertakings in India of Caltex (India) Ltd.) Act 17 of 1977. by Section 3 provides for the
acquisition of shares of Caltex Oil Refinery (India) Ltd. (for short CORIL). Section 11(2)
of the Act provides that subject to rules made in this behalf under section 23, every whole time
officer or other employee of CORIL would, on the day of acquisition, continue to be
an officer or other employee of CORIL on the same terms and conditions and with the same
rights to pension, gratuity and other matters as are admissible to him immediately before that
day and shall continue to hold such office unless and until his employment under CORIL is duly
terminated or until his remuneration and conditions of service are duly altered by that company.
Consequent upon the taking over of the CORIL on December 30,1976, the Chairman of the
Board of Directors of CORIL issued a circular dated 8th March, 1978 to the effect that
the perquisites admissible to the management staff of CORIL should be rationalised in the
manner stated in the said circular. At this stage the undertaking of CORIL was transferred
and vested in the Hindustan Petroleum Corporation Ltd.-the appellant in C.A. No. 3214 of
1979. Respondent Nos. 1 to 4, employees of CORIL in the said appeal, filed a writ
petition before the High Court challenging the legality and validity of the impugned circular on
the ground, inter alia, that the employees had not been given any opportunity of being
heard before altering to their prejudice the terms and conditions of service and therefore the
impugned circular should be struck down as void being opposed to the principles of
natural justice. The High Court accepted the aforesaid contention of the respondents and quashed
the impugned circular. Hence this appeal by special leave. Civil Appeal preferred by the
respondents. Dismissing the appeals,

The SC Held that:

The High Court was perfectly justified in quashing the impugned circular. Even if any hearing
was given to the employees of CORIL after the issuance of the impugned circular that would not
be any compliance with the rules of natural justice or avoid the mischief of
arbitrariness as contemplated by Article 14 of the Constitution.

2(i) It is now a well established principle of law that there can he no deprivation or
curtailment of any existing right, advantage or benefit enjoyed by a Government servant
without complying with the rules of natural justice by giving the government
servant concerned an opportunity of being heard. Any arbitrary or whimsical exercise of power
prejudicially affecting the existing condition of service of a government servant will offend
against the provision of Article 14 of the Constitution.

2(ii) The post-decisional opportunity of hearing does not subserve the rules of natural justice.
The authority who embarks upon a post decisional hearing will naturally proceed with a
closed mind and there is hardly any chance of getting a proper consideration of the
representation at such a post-decisional opportunity.

32. K I Shepherd v. Union of India, AIR 1988 SC 686.

The Hindustan Commercial Bank, the Bank of Cochin Ltd. and Lakshmi Commercial Bank were
amalgamated with Punjab National Bank, Canara Bank, State Bank of India respectively in terms
of separate schemes drawn under the Banking Regulation Act, 1949, and pursuant
thereto 125 employees of these banks were excluded from employment, and their services were
not taken over by the respective transferee banks. Some of these excluded employees filed writ
petitions before the High Court which granted partial relief, but on appeal by the transferee
Bank the Writ Petitions were dismissed by the Division Bench.

Against this, appeals by Special Leave were filed before this Court. Some of the excluded
employees filed writ petitions before this Court directly.

It was contended on behalf of the excluded employees that the draft schemes did not include any
name of employees intended to be excluded; that no opportunity of being heard as afforded to
them before exclusion was ordered, and the authorities concerned had not acted fairly; that none
of them was responsible for ficticious, improper or on-business like advances of loan to parties
thereby bringing conditions nearabout bankruptcy for the appropriate banking companies, that
many other employees against whom there were definite charges already pending enquiry or
even orders of dismissal had been proposed had been taken over and retained in service of the
transferee banks while these excluded employees, without justification, had been called upon to
face this unfortunate situation. The transferee banks, the Reserve Bank of India and the Union of
India filed affidavits in opposition. It was contended on behalf of the Union of India that the
scheme in respect of each of the amalgamated banks had been approved by it as required under
the Act and since finality was attached to such schemes, the schemes could not be challenged,
particularly in view of the provisions contained in Article 31-A of the Constitution. It was
contended on behalf of the Reserve Bank of India that law did not require that the draft scheme
should contain the names of the employees to be excluded, that the incorporation of the names
finalised on the basis of scrutiny of the records before the schemes were placed before the RBI
was sufficient compliance of the requirements of the law; that the provisions of the Act did not
confer any right on the employees of being heard; that the scheme-making process was
legislative in character and, therefore, did not come within the ambit of natural justice, and the
action, not being judicial or quasi-judicial and, at the most, being administrative or executive was
also not open to challenge on allegations of violation of rules of natural justice; that moratorium
under the statutory provisions could not be beyond six months and in view of the fact that the
entire operation had to be finalised within a brief time frame, the requirement of an enquiry by
notice to all the officers to be excluded could not have been intended to be implanted into the
provisions of section 45 and that provision of compensation had been made for those who were
excluded from the respective schemes.

Held

1. Rules of natural justice apply to administrative action and the decision to exclude a section of
the employees without complying with requirements of natural justice was bad.

2.1 Fair play is part of public policy and a guarantee for justice to citizens. In our system of Rule
of Law, every social agency conferred with power is required to act fairly so that social action
would be just, and there would be furtherance of the well-being of citizens.
2.2 The rules of natural justice have developed with the growth of A civilization and the content
thereof is often considered as a proper measure of the level of civilization and Rule of Law
prevailing in the community.

2.3 Natural justice generally requires that persons liable to be directly affected by proposed
administrative acts, decisions or proceedings be given adequate notice of what
is proposed so that they may be in a position

(a) to make representation on their own behalf;

(b) or to appear at a hearing or enquiry (if one is held); and

(c) effectively to prepare their own case and to answer the case (if any) they had to meet.

Even when a State agency acts administratively, rules of natural justice would apply

3.1 Section 45 of the Banking Regulations Act provides a legislative scheme and the different
steps required to be taken have been put one after the other. On a simple construction of sub-
sections (5) and (6) and on the basis of the sequence pattern adopted in section 45, it is clear that
the Act contemplates the employees to be excluded to be specifically named in the draft
scheme. Since it is a draft scheme prepared by RBI and right to object or
to make suggestions is extended to both the banking company as also the transferee
bank, and in view of the fact that clause (i) of sub-section (5) specifies this item to be a
matter which may be included in the scheme, it must follow that the legislative
intention is that the scheme would incorporate the names of such employees as are intended
to be excluded in accordance with the scheme. Once it is incorporated in the scheme, the
banking company as also the transferee bank would be entitled to suggest/object to the inclusion
of names of employees.

3.2 In case some employees of the banking company are intended to be excluded, their names
have to be specifically mentioned in the scheme at the draft stage. The requirement of specific
mention is significant and the legislature must be taken to have intended compliance of the
requirement at that stage. The excluded employees in the instant case were in employment under
the contract in the banking companies which were private banks. They have been excluded from
service under the transferee banks and the contracts had been terminated as a result of
inclusion of their names in the schemes. This exclusion has adversely affected this category of
employees and has brought about prejudice and adverse civil consequences to them.

4.1 Natural justice cannot be employed in the exercise of legislative power. Power has been
conferred on the RBI in certain situations to A take steps for applying to the Central
Government for an order of moratorium and during the period of moratorium to
propose either reconstruction or amalgamation of the banking company. A
scheme for the purposes contemplated has to be framed by RBI and placed before the Central
Government for sanction. Power has been vested in the Central Government in terms
of what is ordinarily known as a Henery-8 clause for making orders for removal of difficulties.
4.2 Section 45(11) requires that copies of the scheme as also such orders made by the Central
Government are to be placed before both Houses of Parliament. This requirement does not make
the exercise in regard to schemes a legislative process. Framing of the scheme under section 45
does not involve a legislative process, and as such, rules of natural justice are applicable
to the instant case.

4.3 The fact that orders made by the Central Government for removing difficulties as
contemplated under sub-clause (10) were also to be placed before the two Houses of
Parliament makes it abundantly clear that the placing of the scheme before the two Houses is not
a relevant test for making the scheme framing process legislative.

5.1 RBI which monitored the three amalgamations was required to act fairly in the facts
of the case. The situation necessitated a participatory enquiry in regard to the excluded
employees. If an opportunity to know the allegations and to have their say had
been afforded, they could have no grievance on this score. The action deprives them of their
livelihood and brings adverse civil consequences and could obviously not be taken on the ipse
dixit of RBI owners without verification of facts. In view of the time frame, a detailed
enquiry may not be possible but keeping the legislative scheme in view, perhaps, a simpler
enquiry could be afforded.

5.2 In the facts of the case, there is no justification to hold that rules of natural justice
have been ousted by necessary implication on account of the time frame. On the other hand, the
time limited by statute provides scope for an opportunity to be extended to the
intended excluded employees before the scheme is finalised so that a hearing commensurate
to the situation is afforded before a section of the employees is thrown out of
employment.

5.3 There is no justification to think of a post- decisional hearing. Othe other

hand, the normal rule should apply. The excluded employees have already been
thrown out of employment and having been deprived of livelihood they must be facing
serious difficulties. There is no justification to throw them out of employment and then given
them an opportunity of representation when the requirement is that they should have the
opportunity as a condition precedent to action. It is common experience that once a decision has
been taken, there is a tendency to uphold it and a representation may not really yield any
fruitful purpose.

6. Protection of the umbrella of conclusive evidence is not attached to a situation as in the instant
case, so as to bar the question regarding the requirements of the procedure laid down under the
Act and the opportunity afforded to the excluded employees from being examined. There is,
therefore, nothing in sub-section (7A) of section 45 to preclude examination of the question.

Each of the three transferee banks should take over the excluded employees on the same terms
and conditions of employment under the respective banking companies prior to amalgamation.
The employees would be entitled to the benefit of continuity of service for all purposes including
salary and perks throughout the period. It is open to the transferee banks to take such
action as they consider proper against these employees in accordance with law. There is no
justification to penalise some of the excluded employees who have not come to the Court. They
too shall be entitled to the same benefits as the petitioners.

33. S.N. Mukherjee v. Union of India, AIR 1990 SC 1984.

Appellant dismissed from army through court martial for attempting financial fraud.

The requirement that reasons be recorded should govern the decisions of an administrative
authority exercising quasi-judicial functions irrespective of the fact whether the decision is
subject to appeal, revision or judicial review. It may, however, be added that it is not
required that the reasons should be as elaborate as in the decision of a Court of law. The extent
and nature of the reasons would depend on particular facts and circumstances. What is necessary
is that the reasons are clear and explicit so as to indicate that the authority has given due
consideration to the points in controversy.

The need for recording of reasons is greater in a case where the order is passed at the original
stage. The appellate or revisional authority, if it affirms such an order, need not give separate
reasons if the appellate or revisional authority agrees with the reasons contained in the order
under challenge.

Except in cases where the requirement has been dispensed with expressly or by necessary
implication, an administrative authority exercising judicial or quasi-judicial functions is required
to record' the reasons for its decision.

The provisions contained in the Army Act, 1950 and the Army Rules, 1954 negative a
requirement to give reasons for its findings and sentence by a Court Martial and reasons are not
required to be recorded in cases where the Court Martial makes a recommendation to mercy.
Similarly, reasons are not required to be recorded for an order passed by the confirming authority
confirming the findings and sentence recorded by the Court Martial as well as for the order
passed by the Central Government dismissing the post-confirmation petition.

Constitution Bench held that recording of reasons:

(i) guarantee consideration by the authority;

(ii) Introduce clarity in the decisions; and

(iii) Minimise chances of arbitrariness in decision making.

34. Managing Director, ECIL, Hyderabad v. B. Karunakar, (1993) 4 SCC 727.

Held that the delinquent employee has a right to the copy of the enquiry report before the
disciplinary authority takes decision on the question of his guilt. Court further emphasised that
this rule extends to all establishments – government, non-government, public or private. Failure
of the employee to ask for the report would not amount as waiver (i.e. giving up his right). Rules
standing/orders denying this first stage right will be invalid.
Topic 5 – Judicial Review

5.1 Review and Appeal

5.2 Power of Judicial Review of the Supreme Court and the High Courts – Articles 32, 136, 226
and 227 of the Constitution of India

5.3 Writs – Certiorari, Mandamus, Prohibition, Habeas Corpus, Quo Warranto

5.3.1 Certiorari – (to decide the legality of an order/decision already passed/given) and for that
purpose to produce all records of the case before the writ court - Grounds on which issued

5.3.2 Jurisdictional Errors – Excess of jurisdiction, exercising jurisdiction not vested; Non-
exercise of jurisdiction. The court exercising power does not act as an appellate court and
therefore neither the merits of the case nor re-appraisal of evidence is allowed; Errors of law
alone can be subject of judicial review but not the errors of fact howsoever grave they may be;
Review possible if a decision/order was based on ‘no evidence’ or on irrelevant considerations;

5.3.3 Non-compliance with the prescribed procedure or the rules of natural justice;

5.3.4 Errors of law apparent on the face of record can be corrected –

that may occur when the conclusion of law recorded by the lower court/tribunal is based on an
obvious mis-interpretation of the relevant statutory provision, or sometimes in ignorance

of it or even in disregard of it or is expressly founded on reasons which are wrong in law.

5.4 Mandamus – To command the performance of a statutory or public duty; not issued for
exercise of discretionary power or against the legislature/legislators; can be issued both against
the executive authorities as well as private individuals/persons.

5.5 Prohibition – To decide the legality of pending proceedings

5.6 Habeas Corpus – To decide the legality of an arrest/detention. It is necessary to produce the
arrested/detained person in the court and if dead, the dead body must be produced in the court.

5.7 Quo warranto – To decide the legal authority of a person to hold a public office.

5.8 Ouster clauses (constitutional and statutory exclusion) - An Ouster or Finality Claus is a
provision in an Act of Parliament to restrict or eliminate Judicial Review.

5.9 Curative Petition [discussed below in Rupa Ashok Hurra Case]

35. Syed Yakoob v. K.S. Radha Krishanan (1964) 5 SCR 64: AIR 1964 SC 477.

State transport – permit for two state carriages –

A writ of certiorari can be issued for correcting errors of jurisdiction committed by inferior
courts or tribunals; these are cases where orders are passed by inferior courts or tribunals without
jurisdiction, or in excess of it, or as a result of failure to exercise jurisdictions. A writ can
similarly be issued where in exercise of jurisdiction conferred on it, the Court or Tribunal acts
illegally or improperly, as for instance, it decides a question without giving an opportunity to be
heard to the party affected by the order, or where the procedure adopted in dealing with the
dispute is opposed to principles of natural justice. There is, however, no doubt that the
jurisdiction to issue a writ of certiorari is a supervisory jurisdiction and the Court exercising it is
not entitled to act as an appellate Court. This limitation necessarily means that findings of
fact reached by the inferior Court or Tribunal as a result of the appreciation of evidence cannot
be reopened or questioned in writ proceedings. An error of law which is apparent on the face of
the record can be corrected by a writ, but not an error of fact, however grave it may appear to be.

The appellant would have every opportunity to establish that the first respondent has no
workshop at Chidambaram. Instead of following the straight course, he is trying to shut out
further enquiry to arrive at the truth. In the circumstances I am of the view that this is not a case
which calls for the exercise of this Court's extraordinary jurisdiction to set aside the order of the
High Court.

36. Surya Dev Rai v. Ram Chander Rai, AIR 2003 SC 3044: (2003) 6 SCC 675. 261

Appellant filed a suit for issuance of permanent preventive injunction based on title and
possession over the suit property-agricultural land and also for ad interim injunction. Both trial
court and appellate court rejected the prayer. Appellant then filed a petition under Article 226 of
the Constitution. High Court summarily dismissed the petition holding it not maintainable as
appellant was seeking interim injunction against private respondents. Hence the present appeal.
The question which arose for consideration in this appeal was regarding the effect of amendment
made in Section 115 of C.P.C by Act 46 of 1999 on the power and jurisdiction of High Court
under Article 226 and Article 227 as against similar orders, acts or proceedings of courts
subordinate to High Courts, against which earlier the remedy of filing civil revision under
Section 115 of C.P.C. was available to the person aggrieved.

Held that

1. Amendment made in Section 115 of C.P.C. by Act No.46 of 1999 cannot and does not affect
the jurisdiction of High Court under Articles 226 and 227 of the Constitution in any manner. The
curtailment of revisional jurisdiction of High Court does not take away and could not have taken
away the constitutional jurisdiction of High Court to issue a writ of certiorari to a civil court nor
the power of superintendence conferred on High Court is taken away or whittled down. The
power exists, untrammeled by the amendment in Section 115 of C.P.C. and is available to be
exercised subject to rules of self discipline and practice which are well settled.Furthermore, the
interlocutory orders passed by the courts subordinate to the High Court against which remedy of
revision has been excluded by CPC amendment Act are nevertheless open to challenge in and
continue to be subject to certiorari and supervisory jurisdiction of High Court.
2.1. Certiorari under Article 226 is issued for correcting gross errors of jurisdiction, i.e., when a
subordinate court is found to have acted (i) without jurisdiction - by assuming jurisdiction where
there exists none, or (ii) in excess of its jurisdiction - by overstepping or crossing the limits of
jurisdiction, or (iii) acting in flagrant disregard of law or the rules of procedure or acting in
violation of principles of natural justice where there is no procedure specified, and thereby
occasioning failure of justice.

2.2. Any authority or body of persons constituted by law or having legal authority to adjudicate
upon questions affecting the rights of a subject and enjoined with a duty to act judicially or
quasi-judicially is amenable to the certiorari jurisdiction of the High Court. It can also be issued
if the lis is between two private parties.

2.3. It is a well-settled principle that the technicalities associated with the prerogative writs in
English law have no role to play under our constitutional scheme; that a writ of certiorari to call
for records and

examine the same for passing appropriate orders, is issued by superior court to an inferior court
which certifies its records to the High Court for its inspection so as to enable the High Court to
determine whether on the face of the record the inferior court has committed any of the
preceding errors occasioning failure of justice; and that a High Court cannot issue a writ to
another High Court, nor can one Bench of a High Court issue a writ to a different Bench of the
High Court; much less can writ jurisdiction of a High Court be invoked to seek issuance of a writ
of certiorari to the Supreme Court. High Courts are not constituted as inferior courts in our
constitutional scheme. Thus, the orders and

proceedings of a judicial court subordinate to High Court are amenable to writ jurisdiction of
High Court under Article 226 of the Constitution.

3. Supervisory jurisdiction under Article 227 of the Constitution is exercised for keeping the
subordinate courts within the bounds of their jurisdiction. The paramount consideration behind
vesting such wide power of superintendence in the High Court is paving the path of justice and
removing any obstacles therein. The power may be exercised in cases occasioning grave injustice
or failure of justice such as when (i) the court or tribunal has assumed a jurisdiction which it does
not have, (ii) has failed to exercise a jurisdiction which it does have, such failure occasioning a
failure of justice, and (iii) the jurisdiction though available is being exercised in a manner which
tantamounts to overstepping the limits of jurisdiction.

4. The broad general difference between writ of certiorari under Article 226 and supervisory
jurisdiction under Article 227, is that the writ of certiorari is an exercise of its original
jurisdiction by the High Court whereas exercise of supervisory jurisdiction is akin to appellate
revisional or corrective jurisdiction; that in a writ of certiorari, the record of the proceedings
having been certified and sent up by the inferior court or tribunal to the High Court, the High
Court if inclined to exercise its jurisdiction, may simply annul or quash the proceedings of the
subordinate courts but cannot substitute its own decision in place thereof whereas in exercise of
supervisory jurisdiction the High Court may not only
quash or set aside the impugned proceedings, judgment or order but it may also make such
directions as the facts and circumstances of the case may warrant, may be by way of guiding the
inferior court or tribunal as to the manner in which it would now proceed further or afresh as
commended to or guided by the High Court, and it may substitute such a decision of its own in
place of the impugned decision, as the inferior court or tribunal should have made; and that the
jurisdiction under Article 226 is capable of being exercised on a prayer made by or on behalf of
the party aggrieved whereas the supervisory jurisdiction is capable of being exercised suo motu
as well.

5.1. Writ of certiorari or the exercise of supervisory jurisdiction is not available to correct mere
errors of fact or of law unless the error is manifest and apparent on the face of the proceedings
such as when it is based on clear ignorance or utter disregard of the provisions of law, and a
grave injustice or gross failure of justice has occasioned thereby. Further the patent error is an
error which is self-evident, i.e., which can be perceived or demonstrated without involving into
any lengthy or complicated argument or a long-drawn process of reasoning. Where two
inferences are reasonably possible and the subordinate court has chosen to take one view the
error cannot be called gross or patent.

5.2. The power to issue a writ of certiorari and the supervisory jurisdiction are to be exercised
sparingly and only in appropriate cases where the judicial conscience of the High Court dictates
it to act lest a gross failure of justice or grave injustice should occasion. Care, caution and
circumspection need to be exercised, when any of the abovesaid two jurisdictions is sought to be
invoked during the pendency of any suit or proceedings in a subordinate court and the error
though calling for correction is yet capable of being corrected at the conclusion of the
proceedings in an appeal or revision preferred there against and entertaining a petition invoking
certiorari or supervisory jurisdiction of High Court would obstruct the smooth flow and/or early
disposal of the suit or proceedings. High Court may feel inclined to intervene where the error is
such, as, if not corrected at that very moment, may become incapable of correction at a later
stage and refusal to intervene would result in travesty of justice or where such refusal itself
would result in prolonging of the lis.

5.3. High Court in exercise of certiorari or supervisory jurisdiction will not convert itself into a
Court of Appeal and indulge in re-appreciation or evaluation of evidence or correct errors in
drawing inference or correct errors of mere formal or technical character.

5.4. In practice, the parameters for exercising jurisdiction to issue a writ of certiorari and those
calling for exercise of supervisory jurisdiction are almost similar and the width of jurisdiction
exercised by

the High Courts in India unlike English courts has almost obliterated the distinction between the
two jurisdictions. The parameters for exercise of jurisdiction under Article 226 or 227 cannot be
tied down in a straitjacket formula or rigid rules. Not less than often the High Court would be
faced with dilemma. If it intervenes in pending proceedings there is bound to be delay in
termination of proceedings. If it does not intervene, the error of the moment may earn immunity
from correction. The facts and circumstances of a given case may make it more appropriate for
the High Court to exercise
self-restraint and not to intervene because the error of jurisdiction though committed is yet
capable of being taken care of and corrected at a later stage and the wrong done, if any, would be
set right and rights and equities adjusted in appeal or revision preferred at the conclusion of the
proceedings. But there may be cases where `a stitch in time would save nine'. Therefore, the
power is there but the exercise is discretionary which will be governed solely by the dictates of
judicial conscience

enriched by judicial experience and practical wisdom of the Judge.

6. In the instant case, the order of the High Court refusing to entertain the petition filed by the
appellant, holding it not maintainable, is set aside. The petition is restored on the file of the High
Court, to be dealt with by an appropriate Bench consistently with the rules of the High Court,
depending on whether the petitioner before the High Court is seeking a writ of certiorari or
invoking the supervisory jurisdiction of the High Court.

37. Anadi Mukta Sadguru S.M.V.S.S.J.M.S. Trust v. V.R. Rudani, (1989) 2 SCC 691 : AIR
1989 SC 1607.

Appellant No. 1 is a public trust and the other appellants are its trustees. The Trust was
running a science college at Ahmedabad. The college initially had temporary affiliation to the
Gujarat University. From June 15, 1973 onwards the college had permanent affiliation.

A dispute between the University Area Teachers Association and the University was referred to
the Chancellor of the University who gave his award on June 12, 1970. The award was
accepted by the State Government as well as by the University. The latter issued direction to all
affiliated colleges to pay their teachers in terms of the award.

The appellants instead of implementing the award served notice of termination upon 11 teachers
on the ground that they were surplus, and approached the University for permission to remove
them. The Vice-Chancellor did not accept their request. Thereupon the Trust decided to close
down the college.

The retrenched persons demanded arrears of salary and allowances, provident fund and gratuity
dues, and closure compensation. But the management did not pay these dues. The employees
then moved the High Court to issue a writ of mandamus directing the Trust to pay the retrenched
employees their legitimate dues. The High Court accepted the writ petitions.

Before this Court, the appellants while conceding the just right of the employees to get
salary for 2 1/2 months and the provident fund dues contended that the Trust was entitled to get
reimbursement from the Government in lieu of these payments. As regards the arrears of salary
payable under the Chancellor's award, the appellants contended that it was the liability of the
Government and not

of the management of the college. As regards the closure compensation it was contended that
Ordinance 120E prescribing compensation was ultra vires, and, at any rate, it was not binding on
the Trust since it was enacted prior to the affiliation of the college. It was further contended that
the Trust was a private body and was not subject to the writ jurisdiction under Article 226.

Dismissing the appeals, it was,

Held: (1) The Court is only concerned with the liability of the management of the college
towards the employees. Under the relationship of master and servant, the management is
primarily responsible to pay salary and other benefits to the employees. The management cannot
say that unless and until the State compensates, it will not make full payment to the staff.

(2) The college had temporary affiliation even earlier to the Ordinance 120E. That apart, the
benefits under the Ordinance are to be given when the college is closed which in this case was
admittedly after the Ordinance was enacted.

(3) If the rights are purely of a private character no mandamus can issue. If the management of
the college is purely a private body with no public duty mandamus will not lie. These are two
exceptions to mandamus. But once these are absent and when the party has no other equally
convenient remedy, mandamus cannot be denied.

(4) Public money paid as Government aid plays a major role in the control, maintenance and
working of educational institutions. The aided institutions, like Government institutions,
discharge public function by way of imparting education to students. They are subject to the
rules and regulations of the affiliating University. Their activities are closely supervised by the
University authorities Employment in such institutions, therefore, is not devoid of any public
character.

(5) When the University takes a decision regarding the pay scales of the employees of the aided
institution, it will be binding on the management. The service conditions of the academic staff
are, therefore, not purely of a private character. It has super-added protection by University
decisions creating a legal right-duty relationship. When there is existence of this
relationship, mandamus cannot be refused to the aggrieved party.

(6) Article 226 confers wide powers on the High Court to issue writs in he nature of prerogative
writs. Under Article 226, writs can be issued to "any person or authority". It can be issued "for
the enforcement of any of the fundamental rights and for any other purpose."

(7) This is a striking departure from the English Law. Under the English Law, the prerogative
writ of mandamus is confined only to public authorities to compel performance of public duty,
and 'public authority' there means every body which is created by statute-and whose powers and
duties are defined by statute.

(8) The words "any person or authority" used in Article 226 are not to be confined only to
statutory authorities and instrumentalities of the State. They may cover any other person or body
performing public duty. The form of the body concerned is not very much relevant. What is
relevant is the nature of the duty imposed on the body. The duty must be judged in the light of
positive obligation owed by the person or authority to the affected party, no matter by what
means the duty is imposed. If a positive obligation exists mandamus cannot be denied.

(9) Mandamus cannot be denied on the ground that the duty to be enforced is not imposed by the
statute.

(10) The judicial control over the fast expanding maze of bodies affecting the rights of the
people should not be put into water-tight compartment. It should remain flexible to meet the
requirements of variable circumstances. Mandamus is a very wide remedy which must be easily
available 'to reach injustice wherever it is found'. Technicalities should not come in the way of
granting that relief under Article 226.

38. Common Cause v. Union of India, AIR 2003 SC 4493 .

Delhi Rent Act – Section 30 – Upon executive to decide when to bring act into force - it is not
open to this Court to issue a writ in the nature of mandamus directing the Central Government to
bring Section 30 of the Act into force. But, we are of the view that this decision does not come in
the way of this Court issuing a writ in the nature of mandamus to the Central Government to
consider whether the time for bringing Section 30 of the Act into force has arrived or not.

SC observed: The Government received several representations from tenant organisations

demanding changes in some of the provisions and the Government on receipt of numeral
representations constituted an All Party Committee to re-examine as to whether the Act should
be notified or it should be amended in the light of the representations received. After detailed
examination, it was finally decided to carry out certain amendments to the Act. Accordingly,
Delhi Rent (amendment) Bill was drafted and introduced in the Rajya Sabha. The Amendment
Bill was referred to the Parliamentary Standing Committee which examined the amendments
suggested in depth. The Parliamentary Standing Committee finalised its reports in December,
2000. The Government after considering the Report accepted the recommendations of the
Committee on 3rd April, 2001 and thereafter the notice was sent to the Secretary-General, Rajya
Sabha to introduce the Amendment Bill.

From the facts placed before us it cannot be said that Government is not alive to the problem or
is desirous of ignoring the will of the Parliament. When the legislature itself had vested the
power in the Central Government to notify the date from which the Act would come into force,
then, the Central Government is entitled to take into consideration various facts including the
facts set out above while considering when the Act should be brought into force or not. No
mandamus can be issued to the Central Government to issue the notification contemplated under
Section 1(3) of the Act to bring the Act into force, keeping in view the facts brought on record
and the consistent view of this Court.

When the Legislature itself provides that the date of coming into force of the Act would be a date
to be notified by the Central Government, Section 5 of the General Clauses Act will have no
application. It is plain and evident from the language of the provision. Section 5(1) provides that
'where any Central Act is not expressed to come into operation on particular day, then it shall
come into operation on the day on which it receives the assent'. Sub-clause (3) provides that
'unless the contrary is expressed, a Central Act or Regulation shall be construed as coming into
operation immediately on the expiration of the day preceding its commencement'.' In simple
words it would mean that unless otherwise provided a Central Act would come into operation on
the date it receives Presidential assent and is construed as coming into operation immediately on
the date preceding its commencement. Thus, if a Central Act is assented by the President on
23.8.1995 then it would be construed to have come into operation on the mid-night between
22nd and 23rd August, 1995. Sub-section (3) has to be read as a corollary to sub-section (1).
Sub- section (1) provides that the Act would come into operation on the date it receives the
assent of the President where a particular day w.e.f. which the Act would come into force is not
prescribed whereas sub-section (3) provides the exact time of the day/night when the Act would
come into force. It would not apply to cases where the legislature has delegated the power to the
executive to bring into force the Act from a date to be notified by publication in the Official
Gazette.

39. Rupa Ashok Hurra v. Ashok Hurra, AIR 2002 SC 1771.

Question was whether an aggrieved person is entitled to any relief against the final
judgement/order of the Supreme Court, after dismissal of a review petition. The Supreme Court
in the said case held that in order to prevent abuse of its process and to cure gross miscarriage of
justice, it may reconsider its judgements in exercise of its inherent powers. For this purpose the
Court has devised what has been termed as a "curative" petition. In the Curative petition, the
petitioner is required to aver specifically that the grounds mentioned therein had been taken in
the review petition filed earlier and that it was dismissed by circulation. This has to be certified
by a senior advocate. The Curative petition is then circulated to the three senior most judges and
the judges who delivered the impugned judgement, if available. No time limit is given for filing
Curative petition.

Requirements: To entertain the curative petitions, the court has laid down certain specific
conditions. It laid down in order to prevent floodgates of unnecessary petitions seeking their
second review.

The requirements which are needed in order to accept the curative petitions are:

1) The petitioner will have to establish that there was a genuine violation of principles of natural
justice and fear of the bias of the judge and judgement that adversely affected him.

2) The petition shall state specifically that the grounds mentioned had been taken in the review
petition and that it was dismissed by circulation.

3) The curative petition must accompany certification by a senior lawyer relating to the
fulfillment of the above requirements.

4) The petition is to be sent to the three senior most judges and judges of the bench who passed
the judgement affecting the petition, if available.
5) If the majority of the judges on the above bench agree that the matter needs hearing, then it
would be sent to the same bench (as far as possible).

6) The court could impose exemplary costs to the petitioner if his plea lacks merit

A curative petition under the SC’s inherent power can be filed, seeking review of a decision
which has become final after dismissal of a review petition under Art 137, on very strong
grounds. Certainty of law important but not at the cost of justice – Curative petition maintainable
to prevent abuse of court and to cure a gross miscarriage of justice.

Apex Court held – Writ petition under Art 32 not maintainable after decision – yet in rarest of
rare cases SC can review its final judgment to prevent abuse of court and to cure gross
miscarriage of justice – A petitioner would be entitled to relief ex debito justitiae if he establishes
(i) Violation of principles of natural justice (i.e. not heard, non notice) (ii) non disclosure on the
part of the Judge giving scope for apprehension of bias

Topic 7 – Right to Information

7.1. Transparency and accountability of the administration; Right to Information under the
Constitution of India;

7.2. The Right to Information Act, 2005 - Object of the legislation – effective and responsive
Government/public authorities; Scope of the right to information – Obligation of public
authorities to supply information; Grounds of refusal to disclose information.

RTI Act 2005

Section 2(h) "public authority" means any authority or body or institution of self- government
established or constituted—

(a) by or under the Constitution;

(b) by any other law made by Parliament;

(c) by any other law made by State Legislature;

(d) by notification issued or order made by the appropriate Government, and includes any—

(i) body owned, controlled or substantially financed;

(ii) non-Government organization substantially financed, directly or indirectly by

funds provided by the appropriate Government;

Section 2 (j) "right to information" means the right to information accessible under this Act
which is held by or under the control of any public authority and includes the right to—
 (i) inspection of work, documents, records;

(ii) taking notes, extracts or certified copies of documents or records;

(iii) taking certified samples of material;

(iv) obtaining information in the form of diskettes, floppies, tapes, video

cassettes or in any other electronic mode or through printouts where such information is stored in
a computer or in any other device;

Section2 (e) "competent authority" means—

(i) the Speaker in the case of the House of the People or the Legislative Assembly of a
State or a Union territory having such Assembly and the Chairman in the case of the Council of
States or Legislative Council of a State;

(ii) the Chief Justice of India in the case of the Supreme Court;

(iii) the Chief Justice of the High Court in the case of a High Court;

(iv) the President or the Governor, as the case may be, in the case of other authorities
established or constituted by or under the Constitution;

(v) the administrator appointed under article 239 of the Constitution;

Section 8 (1) Notwithstanding anything contained in this Act, there shall be no obligation to
give any citizen,—

(a) information, disclosure of which would prejudicially affect the sovereignty and integrity of
India, the security, strategic, scientific or economic interests of the State, relation with foreign
State or lead to incitement of an offence;

(b) information which has been expressly forbidden to be published by any court of law or
tribunal or the disclosure of which may constitute contempt of court;

(c) information, the disclosure of which would cause a breach of privilege of Parliament or the
State Legislature;

(d) information including commercial confidence, trade secrets or intellectual property, the
disclosure of which would harm the competitive position of a third party, unless the competent
authority is satisfied that larger public interest warrants the disclosure of such information;

(e) information available to a person in his fiduciary relationship, unless the competent authority
is satisfied that the larger public interest warrants the disclosure of such information;

(f) information received in confidence from foreign Government;

 (g) information, the disclosure of which would endanger the life or physical safety of any
person or identify the source of information or assistance given in confidence for law
enforcement or security purposes;

(h) information which would impede the process of investigation or apprehension or prosecution
of offenders;

(i) cabinet papers including records of deliberations of the Council of Ministers, Secretaries and
other officers:

Provided that the decisions of Council of Ministers, the reasons thereof, and the material on the
basis of which the decisions were taken shall be made public after the decision has been taken,
and the matter is complete, or over:

Provided further that those matters which come under the exemptions specified in this section
shall not be disclosed;

(j) information which relates to personal information the disclosure of which has no relationship
to any public activity or interest, or which would cause unwarranted invasion of the privacy of
the individual unless the Central Public Information Officer or the State Public Information
Officer or the appellate authority, as the case may be, is satisfied that the larger public interest
justifies the disclosure of such information:

Provided that the information which cannot be denied to the Parliament or a State Legislature
shall not be denied to any person.

(2) Notwithstanding anything in the Official Secrets Act, 1923 nor any of the exemptions
permissible in accordance with sub-section (1), a public authority may allow access to
information, if public interest in disclosure outweighs the harm to the protected interests.

(3) Subject to the provisions of clauses (a), (c) and (i) of sub-section (1), any information
relating to any occurrence, event or matter which has taken place, occurred or happened twenty
years before the date on which any request is made under section 6 shall be provided to any
person making a request under that section:

Provided that where any question arises as to the date from which the said period of twenty years
has to be computed, the decision of the Central Government shall be final, subject to the usual
appeals provided for in this Act.

40. Secretary General, Supreme Court of India v. Subhash Chandra Agarwal, 166 (2010)
DLT 305 (FB). 288

The Full Court Resolution of the Supreme Court of India on 7th May , 1997 adopted by the Full
Court of the High Court of Delhi on 26th July, 1997 and reiterated on 8th July, 2008:
“Resolved that every Hon’ble Judge should make a declaration of all his/her assets in the form of
real estate or investments (held by him/her in his/her own name or in the name of his/her spouse
or his/her dependant family member within a reasonable time of assuming office and in the case
of sitting judges within a reasonable time of the adoption of this Resolution and thereafter when
ever any acquisition of a substantial nature is made, it shall be disclosed within a reasonable
time. The declaration so made shall be to Hon’ble the Chief Justice of this Court. Hon’ble the
Chief Justice should make a similar declaration for the purpose of the record. The declaration
made by the Hon’ble Judges or Hon’ble the Chief Justice, as the case may be, shall be
confidential.”

The facts of the case, briefly stated, are that the respondent (hereinafter, "the applicant") made an
application to the CPIO on 10th November, 2007 under the Act making two-fold request; viz., (i)
to furnish a copy of the 1997 resolution of the Full Court of the Supreme Court, and

(ii) information on any such declaration of assets etc. ever filed by Hon‟ble Judges of the
Supreme Court and further information if High Court Judges are submitting declaration about
their assets etc. to respective Chief Justices in States.

The first request was granted by the CPIO and a copy of the 1997 resolution was made available
to the applicant. The CPIO vide order dated 30th November, 2007, however, informed the
applicant that the information sought under the second head was not held or under the control of
the registry (of the Supreme Court) and, therefore, could not be furnished. The applicant
preferred an appeal before the nominated appellate authority.

Issues framed

(1) Whether the CJI is a public authority;

(2) Whether the office of CPIO of the Supreme Court of India, is different from the office of the
CJI; and if so, whether the Act covers the office of the CJI;

Held for issue 1 & 2

The expression "public authority" as used in the Act is of wide amplitude and includes an
authority created by or under the Constitution of India, which description holds good for Chief
Justice of India. While providing for Competent Authorities under Section 2(e), the Act specifies
Chief Justice of India as one such authority in relation to Supreme Court, also conferring upon
him the powers to frame rules to carry out the purposes of the said law. Chief Justice of India
besides discharging the prominent role of "head of judiciary" also performs a multitude of tasks
specifically assigned to him under the Constitution or various enactments. As said in the
impugned judgment, these varied roles of the CJI are directly relatable to the fact that he holds
the office of Chief Justice of India and heads the Supreme Court. In absence of any indication
that the office of the CJI is a separate establishment with its own Public Information Office under
the Act, it cannot be canvassed that the office of the CPIO of the Supreme Court is different from
the office of the CJI.
(3) Whether the asset declarations by Supreme Court judges, pursuant to the 1997 Resolution is
"information", under the Right to Information Act, 2005;

held that the respondent had right to information under Section 2(j) of the Act in respect of the
information regarding making of declarations by the Judges of the Supreme Court pursuant to the
1997 Resolution.

(4) If such asset declarations are "information" does the CJI hold them in a "fiduciary" capacity,
and are they therefore, exempt from disclosure under the Act;

CJI cannot be a fiduciary vis-à-vis Judges of the Supreme Court. The Judges of the Supreme
Court hold independent office, and there is no hierarchy, in their judicial functions, which places
them at a different plane than the CJI. The declarations are not furnished to the CJI in a private
relationship or as a trust but in discharge of the constitutional obligation to maintain higher
standards and probity of judicial life and are in the larger public interest. In these circumstances,
it cannot be held that the asset information shared with the CJI, by the Judges of the Supreme
Court, are held by him in the capacity of fiduciary, which if directed to be revealed, would result
in breach of such duty.

We hold that Section 8(e) does not cover asset declarations made by Judges of the Supreme
Court and held by the CJI. The CJI does not hold such declarations in a fiduciary capacity or
relationship.

(5) Whether such information is exempt from disclosure by reason of Section 8(1)(j) of the Act;

RIGHT TO INFORMATION VIS-À-VIS RIGHT TO PRIVACY

The right to privacy as an independent and distinctive concept originated in the field of Tort law,
under which the new cause of action for damages resulting from unlawful invasion of privacy
was recognized. This right has two aspects: (i) The ordinary law of privacy which affords a tort
action for damages resulting from an unlawful invasion of privacy and (ii) the constitutional
recognition given to the right to privacy which protects personal privacy against unlawful
government invasion. Right to privacy is not enumerated as a fundamental right in our
Constitution but has been inferred from Article 21.

The freedom of information principle holds that, generally speaking, every citizen should have
the right to obtain access to government records. The underlying rationale most frequently
offered in support of the principle are, first, that the right of access will heighten the
accountability of government and its agencies to the electorate; second, that it will enable
interested citizens to contribute more effectively to debate on important questions of public
policy; and third, that it will conduce to fairness in administrative decision-making processes
affecting individuals.

In the instant case the particulars sought for by the respondent do not justify or warrant
protection under Section 8(1)(j) inasmuch as the only information the applicant sought was
whether 1997 Resolution was complied with. That kind of innocuous information does not
warrant the protection granted by Section 8(1)(j). We concur with the view of the learned single
Judge that the contents of asset declarations, pursuant to the 1997 Resolution, are entitled to be
treated as personal information, and may be accessed in accordance with the procedure
prescribed under Section 8(1)(j);

(6) Whether the lack of clarity about the details of asset declaration and about their details, as
well as lack of security renders asset declarations and their disclosure, unworkable.

Held :- Such personal information regarding asset disclosures need not be made public” unless
public interest considerations dictate it, under Section 8 (1) (j), of the Right to information Act,
2005. The safeguard (of privacy), it was held, is made in public interest in favour of all public
officials and public servants.

DISCLOSURE OF ASSETS INFORMATION OF JUDGES - INTERNATIONAL TRENDS

Although Judges often balk at the invasion of privacy that disclosure of their private finances
entails, it is almost uniformly considered to be an effective means of discouraging corruption,
conflicts of interest, and misuse of public funds..." [Guidance for Promoting Judicial
Independence and Impartiality, 2001, USAID, Technical Publication]

Keith E. Henderson in his article "Asset and Income Disclosure for Judges: A Summary
Overview and Checklist" states that even though the OAS Convention created the legal basis for
income and asset disclosure of public officials, the legal question as to whether Judges are
deemed to be public officials remains unclear or is being debated on in a number of countries. In
some countries, Judges have raised issues of constitutional separation of powers and have taken
the position that the judicial branch itself must pass and enforce its own disclosure laws and
rules. This is exactly what is achieved by the 1997 and 1999 Resolutions. Other unresolved
issues relate to how to effectively and fairly implement and enforce disclosure laws and how
much of this personal information should be publicly available and in what form. The author has
pointed out that there are three basic sources of the assets declaration obligation:

a) Constitutional Obligation: Some constitutions impose an obligation to disclose assets of public

officials e.g. Colombia, Constitution Article 122.

(b) Legislative Obligation: Some countries regulate asset disclosure by statute, although there are
different types of Acts creating this obligation e.g. Poland, El Salvador, etc.

c) Court rules: In some countries, such as United States, Argentina, the judiciary itself regulates
the conduct of Judges.

Regarding the kind of assets to be disclosed, different countries have likewise adopted different
models depending on the development context:

Broad Disclosure - In the United States, there is an obligation to make a broad accounting of
financial holdings, including a list of gifts, lecture fees or other outside incomes. However, there
has been some criticism of some judges not fully disclosing their having received trip expenses
from private sources and these rules are still under debate.

Medium-size disclosure - In Argentina, judges are exempt from declaring some kinds of property
if it might jeopardize their security. For example, judges are not obligated to submit details of the
place where they live or their credit card numbers.

Narrow disclosure - In many transition countries, judges must declare only incomes - assets are
exempt. "

Edmund Burke who observed that "All persons possessing a portion of power ought to be
strongly and awfully impressed with an idea that they act in trust and that they are to account for
their conduct in that trust." Accountability of the Judiciary cannot be seen in isolation. It must be
viewed in the context of a general trend to render governors answerable to the people in ways
that are transparent, accessible and effective. Behind this notion is a concept that the wielders of
power - legislative, executive and judicial - are entrusted to perform their functions on condition
that they account for their stewardship to the people who authorize them to exercise such power.
Well defined and publicly known standards and procedures complement, rather than diminish,
the notion of judicial independence. Democracy expects openness and openness is concomitant
of free society. Sunlight is the best disinfectant.

RELEVANT INTERNATIONAL LAW – Discussed by the Hon’ble Apex Court in this case

The Universal Declaration of Human Rights of 1948 adopted on 10th December in Article 19
said :

"Everyone has the right to freedom of opinion and expression; this right includes freedom to hold
opinions without interference and to seek, receive and impart information and ideas through any
media and regardless of frontiers."

The International Covenant on Civil and Political Rights (ICCPR) was adopted in 1968. Article
19 of the Convention reads as follows:

(1) Everyone shall have the right to hold opinions without interference;

(2) Everyone shall have the right to freedom of expression, this right shall include freedom to
seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally,
in writing or in print, in the form of art or through any other media of his choice." India has
ratified the ICCPR. Section 2(d) read with 2(f) of the Protection of Human Rights Act, 1993
clarifies „human rights‟ to include the rights guaranteed by the ICCPR.

Topic 8 – Tribunals & Regulatory Bodies

8.1 Concept; Justice by Tribunals – Advantages: Openness, Fairness, Impartiality, Absence of

Technicalities of Evidence and Procedure, Cheapness;
Tribunal is a special court, convened by the government to inquire into a specific matter.

Tribunals do not follow Law of Evidence but follow Principles of Natural Justice instead.

Tribunals cannot determine legal questions unless empowered by an Act of the Parliament.

Tribunals have to follow judicially as opposite to administratively. They should function

impartially and judicially without regard to the executive policy.

Kinds of Tribunals

(1) Statutory Tribunal: These are set up by statutes

 Constitutional Remedies by way of Writ of Prohibition, Certiorari and Mandamus are

available
 They get the force of law directly.
 Generally solve the problems between members or between a member and a third party
 Judicial review for the decision is possible.
 Example: Bar Council of India setup under Advocates Act, 1961, Medical Council of
India set up under Medical Council Act, 1956 etc.

(2) Non-Statutory Tribunal: These are set up by members by way of contracts, expressed or
implied.

 Constitutional Remedies are not available

 They get the force of law indirectly.
 They generally solve the problems within themselves and cannot solve a problem
between a member and a third-party.
 No judicial review for the decision is possible.
 Examples: Clubs, Trade Unions, Societies etc.

8.2 Constitution of India, Articles 323A and 323B;

Article 323A - Administrative tribunals Parliament may, by law, provide for the adjudication or
trial by administrative tribunals of disputes and complaints with respect to recruitment and
conditions of service of persons appointed to public services and posts in connection with the
affairs of the Union or of any State or of any local or other authority within the territory of India
or under the control of the Government of India or of any corporation owned or controlled by the
Government

(2) A law made under clause ( 1 ) may

(a) provide for the establishment of an administrative tribunal for the Union and a separate
administrative tribunal for each State or for two or more States;
(b) specify the jurisdiction, powers (including the power to punish for contempt) and authority
which may be exercised by each of the said tribunals;

(c) provide for the procedure (including provisions as to limitation and rules of evidence) to be
followed by the said tribunals;

(d) exclude the jurisdiction of all courts, except the jurisdiction of the Supreme Court under
Article 136, with respect to the disputes or complaints referred to in clause ( 1 );

(e) provide for the transfer to each such administrative tribunal of any cases pending before any
court or other authority immediately before the establishment of such tribunal as would have
been within the jurisdiction of such tribunal if the cause of action on which such suits or
proceedings are based had arisen after such establishment;

(f) repeal or amend any order made by the President under clause ( 3 ) of Article 371D;

(g) contain such supplemental, incidental and consequential provisions (including provisions as
to fees) as Parliament may deem necessary for the effective functioning of, and for the speedy
disposal of cases by, and the enforcement of the orders of, such tribunals

(3) The provisions of this article shall have effect notwithstanding anything in any other
provision of this Constitution or in any other law for the time being in force

Article 323B. Tribunals for other matters

(1) The appropriate Legislature may, by law, provide for the adjudication or trial by tribunals of
any disputes, complaints, or offences with respect to all or any of the matters specified in clause (
2 ) with respect to which such Legislature has power to make laws

(2) The matters referred to in clause ( 1 ) are the following, namely:

(a) levy, assessment, collection and enforcement of any tax;

(b) foreign exchange, import and export across customs frontiers;

(c) industrial and labour disputes;

(d) land reforms by way of acquisition by the State of any estate as defined in Article 31A or of
any rights therein or the extinguishment or modification of any such rights or by way of ceiling
on agricultural land or in any other way;

(e) ceiling on urban property;

(f) elections to either House of Parliament or the House or either House of the Legislature of a
State, but excluding the matters referred to in Article 329 and Article 329A;
(g) production, procurement, supply and distribution of foodstuffs (including edible oilseeds and
oils) and such other goods as the President may, by public notification, declare to be essential
goods for the purpose of this article and control of prices of such goods;

(h) offences against laws with respect to any of the matters specified in sub clause (a) to (g) and
fees in respect of any of those matters;

(i) any matter incidental to any of the matters specified in sub clause (a) to (h)

8.3 Overview of Tribunals in India with particular reference to Administrative Tribunals

established under the Administrative Tribunals Act, 1985;

----------------------------------------------------------------------------------------

41. L. Chandra Kumar v. Union of India and others, AIR 1997 SC 1125

A seven-member constitutional bench of the supreme court has unanimously while reconsidering
the SAMPATH KUMAR'S CASE, has struck down clause 2(d) of articles 323A and clause 3(d)
of art. 323B which provided for the exclusion of the jurisdiction of the high courts under articles
226 and 227 and the Supreme Court under article 32 of the constitution as unconstitutional and
invalid as they damage the power of judicial review which is the basic structure of the
constitution.