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Constitutionalizing
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administrative law in the Indian
Supreme Court: Natural justice
and fundamental rights
Raeesa Vakil*
The Indian Supreme Court faces the challenge of reconciling a long tradition of common law
adjudication on administrative matters, with a constitutionally entrenched Bill of Rights.
This article examines the Court’s jurisprudence on one aspect of judicial review that encap-
sulates the difficulties this challenge presents: the use of uncodified administrative law “prin-
ciples of natural justice” in conducting judicial review for violation of constitutional rights.
I present the broad claim that the Indian Supreme Court’s erratic attempts to incorporate the
principles of natural justice into constitutional rights has led to an unpredictable and often
erratic form of judicial review. As the distinction between standards of administrative review
and constitutional review diminish, leading to a “constitutionalized administrative law,” this
doctrinal confusion endangers both the consistency of administrative adjudication and the
enforcement of fundamental rights. A resolution for this confusion must come from a more
thoughtful and consistent jurisprudence by the Court.
1. Introduction
Indian constitutional law posits three immediate challenges to current scholarship
on judicial review in common law countries. The first arises from constitutional
structure; although India adopts a parliamentary form of government, it eschews
parliamentary sovereignty. Instead, the Indian Supreme Court interprets the Indian
Constitution and its entrenched bill of rights to apply a strong form of judicial review
over both legislative and executive acts. The second challenge arises from India’s
legal traditions; the written Indian Constitution co-exists with a long, unwritten, and
uncodified tradition of common law. While constitutionally embedded rights override
* J.S.D. candidate, Yale Law School. Email: [email protected].
I•CON (2018), Vol. 16 No. 2, 475–502 doi:10.1093/icon/moy027

476 I•CON 16 (2018), 475–502
rights at common law in cases of conflict, judicial interpretation of these constitu-

tional rights has enabled Indian courts to incorporate common law principles without
repudiating them altogether. This has resulted in a complex and under-analyzed juris-

prudence on the reconciliation of constitutional and common law rights.1 The third
challenge arises from within the Indian judiciary: judicial architecture and conven-
tion have resulted in a diverse, vast, and often contradictory body of jurisprudence,
which undermines attempts to discern unified doctrine. In this context, it is unsurpris-
ing that studies of the Indian Supreme Court’s practice on judicial review tend to be
under-theorized, infrequent, and limited in scope.
This article examines the Indian Supreme Court’s jurisprudence on one aspect of
judicial review that encapsulates the difficulties that these three challenges present:
the use of uncodified administrative law “principles of natural justice” in interpreting
and enforcing constitutionally embedded rights. Principles of natural justice consti-
tute grounds for judicial review by courts, but they are also invoked by the Indian leg-
islature in statutes as substantive administrative procedure. Although these principles
derive from common law, modern Indian jurisprudence has attempted to root them
within the fundamental rights contained in the Indian Constitution. And, finally, a
vast body of jurisprudence on the principles of natural justice appears at times to defy
categorization and, indeed, detailed analysis.
The Indian Supreme Court’s recent expansion in its own jurisdiction, not only in
terms of the appeals in which it is willing to hear to “do complete justice”2 but also
in its broad reading of the text of fundamental rights as encompassing within them
several un-enumerated rights, has led to an unusually deep engagement of the Court
with administrative and regulatory processes. The Indian Supreme Court acts to
review regulatory decisions for compliance with substantive fundamental rights3; it
determines procedural compliance with statutes but also with stronger due process
requirements4; it sits in appeal over decisions of regulatory bodies when they act in
“quasi-judicial” capacities but also over administrative decisions that are not judicial
in character5; it occasionally takes control of, and directs, regulatory measures itself6;
and, not least, it plays a significant role in shaping the institutional design of regula-
tors.7 While some of these measures are attained through the Court’s appellate juris-
diction (civil, criminal, and special appeals), a significant proportion of such action
1
See generally Rajeev Dhavan, Indian Judges and English Methods, in Justice on Trial: The Supreme Court Today
120 (1980) [hereinafter Dhavan, Justice on Trial]; Rajeev Dhavan, The Supreme Court of India: A Socio-Legal
Critique of Its Juristic Techniques (1977) [hereinafter Dhavan, Supreme Court of India].
2
India Const. art. 136.
3
See, e.g., Bachan Singh v. State of Punjab (1980) 2 S.C.C. 684, Maneka Gandhi v. Union of India (1978)
1 S.C.C.
4
See, e.g., Sunil Batra v. Delhi Administration (1978) 4 S.C.C. 494.
5
See Arvind P. Datar, The Tribunalisation of Justice in India, Acta Juridica 288 (2006); Arun K. Thiruvengadam,
Tribunals, in The Oxford Handbook of the Indian Constitution 413 (Sujit Choudhry, Madhav Khosla, &
Pratap Bhanu Mehta eds., 2015).
6
See Nick Robinson, Expanding Judiciaries: India and the Rise of the Good Governance Court, 8(1) Wash.
U. Global Stud. Rev. 1 (2009).
7
See, for instance, Brahm Dutt v. Union of India (2005) 2 S.C.C. 431.
Constitutionalizing administrative law in the Indian Supreme Court 477
takes place through the use of the Court’s jurisdiction to enforce fundamental rights
through the use of writs. The Supreme Court’s deep interlinking of constitutional and
administrative cases presents a series of jurisprudential concerns, including, specifi-

cally, the application of the principles of natural justice in interpreting, applying, and
enforcing constitutional rights.
In this article, I make the broad claim that the Indian Supreme Court’s unsuc-
cessful attempt to resolve common law principles of administrative law with consti-
tutional rights has led to an unpredictable and often erratic form of judicial review
and enforcement of rights. As the distinction between standards of administrative
review and constitutional review continue to diminish, leading to a constitutional-
ized administrative law, I argue that this doctrinal confusion endangers both the con-
sistency of administrative adjudication and the enforcement of fundamental rights.
Finally, I suggest that the Supreme Court needs to actively engage with the conflicts
that this jurisprudence reveals by considering them in a more comprehensive and sys-
tematic manner.
2. The framework of rights and natural justice in Indian

constitutional law
2.1. Judicial review of legislation and administrative action in India
In Indian constitutional law, the power to engage in judicial review is taken to be a
self-evident truth, although no single provision of the constitution explicitly autho-
rizes it. Powers of judicial review are generally accepted as a fait accompli, and are
sometimes understood to inhere in the constitution8 or, alternatively, as deriving
from a reading of several constitutional provisions together.9 Part III of the Indian
Constitution establishes a bill of rights, known as the Fundamental Rights. Within
Part III, article 32 explicitly secures the “right to move the Supreme Court by appro-
priate proceedings for the enforcement of the rights conferred in this Part. . . .”10 This
provision allows the Supreme Court to issue directions in the nature of orders or writs
“for the enforcement of any of the rights conferred by this Part.”11 Additionally, arti-
cle 13 declares all pre-constitutional legislation that is inconsistent with fundamental
rights to be void,12 and prohibits the state from making “any law which takes away or
abridges the rights conferred by this part . . .”13 failing which laws so made are “to the
8
S. P. Sathe, Judicial Review in India: Limits and Policy, 35 Ohio St. L.J. 870 (1974).
9
See Gopal Subramanium, Writs and Remedies, in The Oxford Handbook of the Indian Constitution 614
(Sujit Choudhry, Pratap Bhanu Mehta, & Madhav Khosla eds., 2016); Chintan Chandrachud, Balanced
Constitutionalism: Courts and Legislature in India and the United Kingdom 11, 12 (2017); Soli Sorabjee,
Introduction to Judicial Review in India, 4 Jud. Rev. 126 (1999).
10
India Const., art. 32, § 1.
11
12
13
478 I•CON 16 (2018), 475–502
extent of such contravention,” void.14 Read together, these provisions form the basis
for the exercise of judicial review by the Indian Supreme Court.15
When it comes to the judicial review over administrative action, on the other hand,

the Indian Supreme Court has developed its jurisprudence by borrowing selectively
from British common law to exercise two broad groups of control. The first group of
controls consists of judicial, institutional, and private law remedies, such as appeals
from Indian regulatory and administrative bodies to constitutional courts and injunc-
tive relief in civil courts.16 Courts, in applying these controls, use a number of admin-
istrative law doctrines to review administrative action. The doctrines of illegality
(ultra vires)17 and of legitimate expectations,18 for instance, find their source in British
common law, but are applied and developed by Indian Courts to varying extents.19
Administrative action in India can also be challenged on other grounds, such as
unreasonableness and, increasingly on grounds of proportionality,20 arbitrariness,21
and, finally, procedural impropriety, i.e. for violations of the principles of natural jus-
tice.22 The tremendous body of jurisprudence generated by the judicial control of
administrative action remains largely untouched by statute, and it has been suggested
that Indian administrative law is “the common law of the Constitution, as for the most
part it is uncodified. . . .”23
The second, and highly significant body of judicial controls of administrative
action, lies in the use of rights-based review and remedies to control administrative
acts ranging from decision-making processes, subordinate legislation, and, on occa-
sion, executive action.24 This is because fundamental rights are enforceable against
14
Id.
15
Judicial review is also linked to articles 372(1) and 245(1) of the Indian Constitution. See Chandrachud,
supra note 9, at 11.
16
2 M. P. Jain & S. N. Jain, Principles of Administrative Law 2023 (8th ed. 2017); I. P. Massey, Administrative
Law 135 (8th ed. 2012).
17
See 1 M. P. Jain & S. N. Jain, Principles of Administrative Law 156–197 (8th ed. 2017); Massey, supra note
16, at 44; B. P. Banerjee, Judicial Control of Administrative Action 135, 135 (3d ed. 2016); Avtar Singh, In
Defense of Ultra Vires, 2 S.C.C.-J. 25 (1971).
18
See 2 Jain & Jain, supra note 16, at 1649; Massey, supra note 16, at 135.
19
Chintan Chandrachud, The (Fictitious) Doctrine of Substantive Legitimate Expectations in India, in Legitimate
Expectations in the Common Law World 245 (M. Groves & G. Weeks eds., 2016); Singh, supra note 17.
20
See Abhinav Chandrachud, Wednesbury Reformulated: Proportionality and the Supreme Court of India, 13(1)
Oxford U. Commonwealth L.J. 191 (2013); V. Sudhish Pai, Is Wednesbury on the Terminal Decline, 2 S.C.C.-J.
15 (2008); Chintan Chandrachud, Proportionality, Judicial Reasoning, and the Indian Supreme Court (2016);
University of Cambridge Faculty of Law Research Paper No. 12 (2016), available at https://ssrn.com/
abstract=2720080.
21
Prateek Jalan & Ritin Rai, Review of Administrative Action, in The Oxford Handbook of the Indian Constitution
432 (Sujit Choudhry, Pratap Bhanu Mehta, & Madhav Khosla, eds., 2016); 1 Jain & Jain, supra note 17, at
156–197.
22
See generally Abhinav Chandrachud, Due Process, in The Oxford Handbook of the Indian Constitution 777,
782 (Sujit Choudhry, Pratap Bhanu Mehta, & Madhav Khosla, eds., 2016); 1 Jain & Jain, supra note 17, at
465.
23
Upendra Baxi, Preface: The Myth and Reality of the Indian Administrative Law, in Administrative Law xviii (I.
P. Massey ed., 8th ed. 2012).
24
See generally Banerjee, supra note 17 (the author confines his study of judicial control of administrative
action entirely to rights-based review in consideration of its significance); Jalan & Rai, supra note 21, at
432.
the state, which is understood to include not just the legislature and the executive
but also a number of administrative and regulatory bodies.25 The range of actions
that can be challenged is wide: the term “law” in article 13 is defined to include “any

Ordinance, order, bye law, rule, regulation, notification, custom or usages having
in the territory of India the force of law,” in addition to legislative enactments.26 To
enforce these rights, constitutional courts are empowered to issue certain writs and
directions, including the traditional writs of certiorari, prohibition, and mandamus.27
A significant overlap between constitutional review and judicial control of admin-
istrative action arises from this width of laws and authorities. For instance, the review
of administrative action on the grounds of fairness, arbitrariness, reasonableness, and
proportionality is sometimes invoked under the fundamental right to equality, under
article 14 of the Constitution, and to reasonable controls on several freedoms under
article 19 of the Indian Constitution.28 In addition to this, the review of administrative
action on substantive and procedural grounds (in other jurisdictions, a “due process”
requirement) is linked to article 21, which guarantees the right to life and personal
liberty subject to “procedure established by law”29 The “constitutionalization” of
Indian administrative law, therefore, has its roots in the constitution’s text but has
been actively extended by the Indian Supreme Court’s jurisprudence.
2.2. The principles of natural justice

The principles of natural justice are a set of common law procedural constraints that
apply primarily to administrative decision-making in India.30 The Supreme Court has
been largely unanimous in agreeing that natural justice encompasses two key prin-
ciples: the right to a fair hearing (audi alteram partem) and the rule against bias (nemo
iudex in sua causa).31 Nevertheless, the actual content of these rules remains remark
ably vague, and the Indian Supreme Court, in embracing this vagueness, has sug-
gested that the lack of clarity concerning their content is a positive development,
lending an essential measure of flexibility that is necessary when evaluating admin-
istrative action.32
In addition to this vagueness in content, the jurisprudence on the source and nature
of these principles is unclear. The principles of natural justice are variously invoked as
25
India Const., art. 12. See also Ananth Padmanabhan, Rights: Breadth, Scope, and Applicability, in The Oxford
Handbook of the Indian Constitution 432 (Sujit Choudhry, Pratap Bhanu Mehta, & Madhav Khosla, eds.,
2016); 1 Jain & Jain, supra note 17, at 581, 583.
26
India Const. art. 13, § 3. See also 1 H. M. Seervai, Constitutional Law of India: A Critical Commentary 400
(4th ed. 2017) (1991).
27
See generally Subramanium, supra note 9.
28
India Const., art. 19.
29
India Const., art. 21 provides, “No person shall be deprived of his life or personal liberty except according
to procedure established by law.” See generally Chandrachud, supra note 22.
30
See generally M. C. Setalvad, The Common Law in India (Hamlyn Law Lectures, 1960); P. Agrawala, The Indian
Judiciary and Natural Justice, 25(3/4) Indian J. Pol. Sci. 282 (1964).
31
See generally H. M. Seervai, 2 Constitutional Law of India: A Critical Commentary 1735 (4th ed., 2017) (1993).
32
See Ravi S. Naik v. Union of India (1994) Supp. 2. S.C.C. 641, 653; Union of India v. Tulsiram Patel
(1985) 3 S.C.C. 398, 477.
480 I•CON 16 (2018), 475–502
a part of article 21’s procedural and substantive review and are read into the consti-
tutional right against non-arbitrariness (under article 14, the guarantee of equality)
and in the requirement that limitations on freedoms must be reasonable (under article

19). Further, India, unlike several other countries, lacks a uniform administrative pro-
cedure, and relies on these judicially developed principles of natural justice to secure
fairness in administrative decision-making.33 The principles of natural justice, there-
fore, variously constitute both a ground and a standard of review.
By linking constitutional rights to the principles of natural justice, the Supreme
Court has been able to use these principles to review not only administrative action
but also legislative enactments on these grounds: either by reading these principles as
constituent parts of several fundamental rights or using them as interpretative tools
in understand these rights.34
As administrative law principles, natural justice operates as common law proce-
dural constraints on decision-making processes, mandating, for instance, the right
to be heard, to a reasoned decision, to cross-examine, and to have a hearing that is
free from bias.35 Administrative action can be, and often is, reviewed by the judiciary
on the grounds that the principles of natural justice have not been complied with; for
instance, a common judicial formulation on the jurisdiction of Indian High Courts
specifically mentions “violation of the principles of natural justice” as a ground for
issuing the writ of certiorari.36 In the context of legislative review these same require-
ments are read as necessary for legislations to be consistent with fundamental rights.
However, the content of the principles of natural justice is not identical in these two
fields, inevitably resulting in interpretative conflicts on what these principles are and
how they might be applied
2.3. Institutional structure

In addition to doctrinal incoherence, the jurisprudence on the principles of natural
justice and fundamental rights is unclear for structural reasons. The Indian Supreme
Court suffers from an extraordinarily wide jurisdiction: its caseload derives not only
from the Court’s jurisdiction over constitutional and federal questions but also because
it sits as a court of appeal over civil and criminal matters arising from twenty-four
high courts and numerous administrative tribunals. The Supreme Court’s own wide
reading of its jurisdiction has greatly diminished the role and function of lower courts,
resulting in a top-heavy system.37
Within the Indian Supreme Court, a maximum of thirty-one judges struggle with
this immense caseload, sitting in disparate benches of two or three judges, and not en
33
See generally 1 Jain & Jain, supra note 17, at 499, 543, 561, 627.
34
See generally id. at 467.
35
See generally id.
36
Basappa v. Nagappa, A.I.R. 1954 S.C. 440, ¶¶ 10, 11; Hari Vishnu Kamath v. Syed Ahmed Ishaque, A.I.R.
1955 S.C. 233, ¶ 21; Sant Lal Gupta v. Modern Co-op Housing Society (2010) 13 S.C.C. 336, 346.
37
Nick Robinson, Judicial Architecture and Capacity, in The Oxford Handbook of the Indian Constitution 330,
331 (Sujit Choudhry, Pratap Bhanu Mehta, & Madhav Khosla, eds., 2016).
banc.38 Often these benches will separately consider similar questions of great legal
and constitutional importance, inevitably resulting in inconsistent jurisprudence on
similar questions.39 Unsurprisingly, the content of the principles of natural justice is

one such area, a matter further complicated by the fact that regulatory statutes fre-
quently contain standard clauses enjoining regulatory adjudication bodies and tri-
bunals to be “guided by the principles of natural justice” in their decision-making.40
The content and scope of these principles of natural justice remain unclear, leading,
as one scholar has argued, to “a bewildering variety of procedures across the different
adjudicatory bodies.”41 The inevitable consequence has also gained limited scholarly
recognition: “because the principles are not rigid and do not apply uniformly in all
situations, the consequent uncertainty results at times in arbitrary actions.”42
The implications of inconsistent and unclear rules of procedure in administrative
law can be taken as self-evident. Even scholars who affirm, on the whole, that prin
ciples of natural justice must remain flexible and adaptable to every situation note
that without uniformity, “no one can be sure of what norms of natural justice are
applicable before a specific body. Only the Courts can spell out the norms for each body
as and when the occasion arises. . . . The consequence of this approach is that law
becomes completely unpredictable.”43
In light of these challenges posited by institutional and legal factors, Indian courts
are now faced with the task of reconciling differing constitutional and administrative
law approaches to natural justice.
3. The constitutionalization of administrative law through

fundamental rights
Justice Mathew, in one of the most significant decisions of the Supreme Court on con-
stitutional law, famously noted that the “fundamental rights have no fixed content;
most of them are empty vessels into which each generation must pour its content in
38
See Nick Robinson et al., Interpreting the Constitution: Indian Supreme Court Benches Since Independence,
46(9) Econ. & Pol. Wkly. 27 (2011) (indicating that although certain institutional mechanisms exist to
address such issues, they have not been effective).
39
See Nick Robinson, Structure Matters: The Impact of Court Structure on the Indian and U.S. Supreme Courts,
61(1) Am. J. Comp L. 101 (2012); Madhav Khosla, The Problem, 642 Seminar 12 (2013).
40
A sample clause may be found in § 22B(1) of the Securities Contract (Regulation) Act 1956, which
reads: “The Securities Appellate Tribunal shall not be bound by the procedure laid down by the Code of
Civil Procedure, 1908 (5 of 1908), but shall be guided by the principles of natural justice. . . .” Similar
provisions may be found in a number of statutes, and an indicative list is as follows: Administrative
Tribunals Act, 1985, § 22; Railway Claims Tribunal Act, 1987, § 18(1); Legal Services Authorities Act,
1987, § 22D; Special Court (Trial of Offences Relating to Transactions in Securities) Act, 1992, § 9A;
Securities and Exchange Board of India Act, 1992, § 15U; Recovery of Debts Due to Banks and Financial
Institutions Act, 1993, § 22.
41
1 Jain & Jain, supra note 17, at 647.
42
Massey, supra note 16, at 158.
43
482 I•CON 16 (2018), 475–502
the light of its experience.”44 The question of what these vessels may be filled with,
legally speaking, remains deeply disputed. Beyond generalized statements about inter-
preting rights expansively, the Court has yet to seriously engage in a principled analy-

sis of how rights may be interpreted and applied, choosing instead to adopt a wide and
sometimes inconsistent variety of approaches.45
Even in the absence of systematic structures, it is common for the Indian Supreme
Court to “fill” the contents of rights with recourse to legal principles, concepts, and
ideas from various sources. These range from the non-justiciable “Directive Principles
of State Policy” contained in part IV of the Indian Constitution46 to the use of inter-
national instruments and human rights treaties.47 Unsurprisingly, the use of com-
mon law principles of natural justice has been specifically cited by the Court as “an
instance of the expansive interpretation of a fundamental right.”48
Independently of fundamental rights, the principles of natural justice have seen
wide application by courts and regulatory bodies as essential components of admin-
istrative procedure.49 The application of these principles is not identical in constitu-
tional and administrative law, but over the years, Indian jurisprudence has seen the
evolution of a complex borrowing and inter-relationship between their administrative
and constitutional law usage. I will trace the evolution of the Court’s approach, (i)
from a firm rejection of principles of natural justice in interpreting and applying con-
stitutional rights, (ii) to its embrace of these principles as essential to constitutional
rights, and (iii) to a consequently complex and unclear doctrine.
3.1. Textualism and the exclusion of principles of natural justice

Justice Mathew’s position on how the “empty vessels” of rights might be filled would
have met with great opposition in the early, post-independence years of the Indian
Supreme Court, which attempted to read the fundamental rights narrowly by adopting
a strictly textualist approach.50 This was consistent with the approach of the Indian
Constituent Assembly on judicial review; the drafters of the constitution considered,
and specifically rejected the use of the phrase “due process of law” for Article 21, after
44
Kesavananda Bharati v. State of Kerala (1973) 4 S.C.C. 225, 880.
45
See Madhav Khosla, Making Social Rights Conditional, 8(4) Int’l J. Const. L. 739 (2010); Arun
K. Thiruvengadam, Characterising and Evaluating Indian Social Rights Jurisprudence into the 21st
Century, 2d Azim Premji University Law and Development Conference, Bengaluru, India, Aug. 2013,
available at http://www.azimpremjiuniversity.edu.in/SitePages/pdf/Characterising-and-evaluating-Indian-
social-rights-jurisprudence-into-the-21st-century.pdf.
46
See generally Gautam Bhatia, Directive Principles of State Policy, in The Oxford Handbook of the Indian
Constitution 645 (Sujit Choudhry, Pratap Bhanu Mehta, & Madhav Khosla eds., 2016).
47
See generally Lavanya Rajamani, International Law and the Constitutional Schema, in The Oxford Handbook
of the Indian Constitution 144 (Sujit Choudhry, Pratap Bhanu Mehta, & Madhav Khosla eds., 2016);
Vijayshri Sripati, Towards Fifty Years of Constitutionalism and Fundamental Rights in India: Looking Back to
See Ahead (1950–2000), 14(2) Am. U. L. Rev. 413, 468–470 (1998).
48
M. Nagaraj v. Union of India (2006) 8 S.C.C. 212, 241.
49
1 Jain & Jain, supra note 17, at 14; Massey, supra note 16, at 183.
50
Chintan Chandrachud, Constitutional Interpretation, in The Oxford Handbook of the Indian Constitution 73,
77 (Sujit Choudhry, Pratap Bhanu Mehta, & Madhav Khosla eds., 2016).
considering the American judicial experience of due process review. The intention,
initially, was to exclude substantive judicial review and limit it to procedural review.
A claim that these rights included within their scope the principles of natural justice

was categorically rejected in one of the Court’s earliest decisions in 1950: A.K. Gopalan
v. State of Madras.51 In Gopalan, the petitioner, who had been detained under an exec-
utive order for preventive detention, filed a writ for habeas corpus, claiming that both
the order detaining him and the legislation it was passed under violated his funda-
mental rights.52 Article 21 of the Indian Constitution, the petitioner said, protected
his right to life and liberty “except according to due process established by law”53; the
term “law,” he then proposed, should be read as inclusive of the principles of natural
justice.54 This reading would entitle him to a series of procedural rights claimed under
the principles of natural justice, including an opportunity for an oral hearing, as well
as the right to have the reasons for his detention disclosed.
The majority rejected the petitioner’s claim, with Chief Justice Kania holding that,
“No extrinsic aid is needed to interpret Article 21 . . . to read the word ‘law’ as meaning
rules of natural justice will land one in difficulties because the rules of natural justice
as regards procedure, are nowhere defined, and in my opinion the Constitution cannot
be read as laying down a vague standard.”55
Justice Fazal Ali, in his dissent in Gopalan, took a markedly different approach. He
traced the evolution of common law procedural rights and the principles of natural
justice through a series of administrative law decisions in Indian, English, and
American law, and found that the right to an oral hearing before an administrative
authority was an essential principle of natural justice.56 Further, he held, these prin
ciples of natural justice were not vague but were well-defined, and it would wholly defeat
the purpose of procedural protections under article 21 of the Indian Constitution to
refuse to enforce them.57 The fact that the principles of natural justice were borrowed
from well-established administrative law, and not constitutional law in India and in
England, was, to Justice Fazal Ali, an argument in his favor. It indicated, he argued,
that executive acts that violated established common law rights would in any case
be subject to judicial review (“Even before executive authorities and Administrative
Tribunals an order cannot generally be passed affecting one’s rights without giving
one such hearing as may be appropriate . . .”58).
Justice Fazal Ali’s dissent in Gopalan suggested that it was inconceivable that
the Court should interpret fundamental rights to disenfranchise citizens of their
51
1950 S.C.R. 88 (India).
52
Id. ¶ 1. In addition to invoking his rights under article 21, the petitioner also made claims that the Act
violated articles 13, 19, and 22 of the Indian Constitution. I have limited my discussion to the petitioner’s
claims concerning the principles of natural justice.
53
54
Gopalan, 1950 S.C.R. 88, ¶ 16.
55
Id. ¶ 21.
56
Id. ¶¶ 77–86.
57
Id.¶ 85.
58
Id. ¶ 84.
484 I•CON 16 (2018), 475–502
established protections in common law, even if the newly enacted Constitution of

India specifically provided the Court with the power to strike down any law inconsist-
ent with the fundamental rights.59 The only resolution, his dissent implied, would be

to read these principles and rights together, a ruling that the Court was not willing to
accept not just because it favored a textualist interpretation of rights but also because
a direct implication of Ali’s opinion would be to transform current limited procedural
review of statutes to a more substantive standard.60 A stronger standard of procedural
review, comparable to American due process law, was something that the framers of
the Indian Constitution had deliberately rejected61 and the Court, ruling so soon after
the constitution was adopted, reiterated this rejection.
Even though, as Justice Fazal Ali pointed out, the principles of natural justice con-
tinued to apply in administrative law cases in reviewing executive action, their use in
constitutional litigation to enforce rights was rejected in Gopalan. The consequent pos-
ition, remarkably, was that the Court provided deeper and more detailed protections
of process rights in civil and administrative matters, even as it read similar protec-
tions in criminal matters more narrowly.62 Despite the obvious difficulties this implied,
Gopalan’s position on the use of the principles of natural justice was reiterated once
more in 1976, when the Supreme Court pronounced one of its most controversial
decisions in A.D.M., Jabalpur v. Shivakant Shukla.63
The context in which A.D.M., Jabalpur v. Shivakant Shukla took place was a state of
“emergency,” in which the government of India had invoked constitutional provisions
to temporarily suspend the fundamental rights.64 The Court in this case refused to
issue a writ of habeas corpus, rejecting the petitioners’ claim that their right to life
and liberty still subsisted as a common law right protected by the principles of natural
justice, or that the remedy of habeas corpus survived during constitutional emergen-
cies. The Court held, “If there is a pre-Constitution right which is expressly embod-
ied as a fundamental right under our Constitution, the common law has no separate
existence. . . .”65 Justice Beg went a step further, in his concurring opinion, adding: “It
seems to me to be legally quite impossible to successfully appeal to some spirit of the
Constitution or to any law anterior to or supposed to lie behind the Constitution to
frustrate the express provisions of the Constitution. . . .”66
59
India Const., art. 13, § 1, 2.
60
Chandrachud, supra note 22, at 782.
61
Id. at 780.
62
See generally Pratap Bhanu Mehta, India’s Judiciary, in Public Institutions in India 158, 165 (Pratap Bhanu
Mehta & Devesh Kapur eds., 1st ed. 2014); Aparna Chandra & Mrinal Satish, Of Maternal State and
Minimalist Judiciary: The Indian Supreme Court’s Approach to Terror-Related Adjudication, 21 Nat’l L. Sch.
India Rev. 51 (2009).
63
(1976) 2 S.C.C. 521 (India).
64
See generally Kalyani Ramnath, ADM Jabalpur’s Antecedents: Political Emergencies, Civil Liberties, and
Arguments from Colonial Continuities in India, 31(2) Am. U. Int’l L. Rev. 210 (2016).
65
A.D.M, Jabalpur (1976) 2 S.C.C. at 579 (opinion of A. N. Ray, C.J., writing for the majority). The case was
decided 4–1 by a bench of five judges, with Justice Khanna dissenting.
66
Id. at 598–599 (concurring opinion of Beg, J.).
The Supreme Court in A.D.M., Jabalpur went a step further than Gopalan 67 and sug-
gested that even in administrative law, the principles of natural justice found their
source only as implied statutory conditions, and not from common law. “The princi-

ples of natural justice which are so implied must always hang, if one may so put it on
pegs of statutory provisions or necessarily flow from them and have no independent
existence,”68 said Justice Beg. The implication was a dramatic and categorical denial
of the enforceability of the principles of natural justice in common law altogether—
whether in administrative proceedings, or those concerning fundamental rights,
unless specifically authorized by statute. After A.D.M., Jabalpur,69 it could be argued
that the principles of natural justice could not be applied without statutory authority
in either administrative or constitutional matters.
While constitutional review jurisprudence was rejecting the application of the
principles of natural justice, they were nonetheless being widely developed and used
in the separate field of review of administrative action. This first textualist phase in
the Court’s rights jurisprudence was simultaneously marked by four major kinds of
administrative law disputes; the first three related to civil matters, such as those raised
by corporations and business entities, those raised by trade unions, and those raised
by civil servants, and the last related to criminal matters arising from executive orders
for preventive detention and under national security laws.70
Early cases on procedural rights in the context of criminal law argued for a limited
approach to judicial review.71 The application of principles of natural justice in this
context was unsurprisingly narrow, since the Indian Supreme Court has historically
interpreted negative rights conservatively, while affirming positive rights through
broad principles of equity and justice.72 In the meantime, however, cases concern-
ing arbitrariness or reasonableness in administrative law were developing within
the framework of equality,73 a positive right under the Indian Constitution, as well
as outside the rights framework,74 and these cases granted an expanding role to the
67
1950 S.C.R. 88 (India).
68
A.D.M., Jabalpur, 1976 at 604 (concurring opinion of Beg, J.) (Justice Beg does concede that the princi-
ples of natural justice can be read into the content of some fundamental rights).
69
(1976) 2 S.C.C. 521.
70
Baxi, supra note 23, at xx–xxi.
71
See, e.g., S. Krishnan v. Madras, A.I.R. 1951 S.C. 301; S.N. Sarkar v. West Bengal A.I.R. 1973 S.C. 1425;
Fagu Shaw v. West Bengal, A.I.R. 1974 S.C. 613; State of West Bengal v. Ashok Dey, A.I.R. 1972 S.C.
1660. See also Durga Das Basu, Limited Government and Judicial Review: Tagore Law Lectures 28 (P. Ishwara
Bhat ed., 2016).
72
See Chandra and Satish, supra note 62.
73
Jagdish Pandey v. Chancellor v. University of Bihar, A.I.R. 1968 S.C. 353 (reading the principles of nat-
ural justice into the Bihar State Universities Act to save it from violating article 14); Government of
Mysore v. J.V. Bhat (1975) 1 S.C.C. 10 (reading the requirements of natural justice into the Mysore Slum
Areas (Improvement and Clearance) Act 1958 to save it from being struck down for violating article 14);
Hukam Chand Shyam Lal v. Union of India (1976) 2 S.C.C. 128 (reading the requirements of natural
justice into the Telegraph Rules 1951).
74
See, e.g., M.K. Nambyar v. State of Kerala, A.I.R. 1963 S.C. 1116; Sri Bhagwan v. Ram Chand, A.I.R.
1965 S.C. 1767 (holding the principles of natural justice to be applicable when there was a duty under
statute to act judicially); Associated Cement Companies v. PN Sharma, A.I.R. 1965 S.C. 1595 (on the
obligations of tribunals to apply principles of natural justice).
486 I•CON 16 (2018), 475–502
principles of natural justice. In the absence of encoded administrative procedure, the

principles of natural justice in administrative law constituted the applied procedure,
as well as forming the grounds on which administrative action was increasingly sub-

ject to judicial review.75
It is unsurprising, therefore, that this period saw the emergence of two separate
approaches to the principles of natural justice and fundamental rights: one predicated
on due process requirements concerning claims of personal liberty under article 21,
and the other, relating more closely to article 14 (the right to equality and equal treat-
ment) and article 19 (certain freedoms including speech, subject to “reasonable”
restrictions). Gopalan’s restrictions on the application of principles of natural justice
were predicated on a firm division between these two fields, Jabalpur eroded that distinc-
tion substantially, but as I will demonstrate, the Supreme Court was soon to collapse
the distinction altogether, in Maneka Gandhi v. Union of India.76
3.1. Maneka Gandhi v. Union of India and the incorporation of

natural justice in rights jurisprudence
Following the end of the “emergency,” the Court’s refusal to protect civil liberties in
A.D.M., Jabalpur77 came under deep criticism,78 and perhaps unsurprisingly, judges
who had upheld these suspensions of rights engaged in significant course-correction
thereafter.79 The damage of Gopalan80 was partially undone by the Supreme Court in
Maneka Gandhi,81 a significant decision in which seven judges ruled by a majority of
five to enforce a wide interpretation of fundamental rights.
In Maneka Gandhi,82 the petitioner’s passport was impounded by an administrative
order under the Passports Act 1967, on the grounds of “public interest,” without
allowing her a hearing or providing her reasons for this.83 She raised a composite chal-
lenge, claiming first that the administrative order should be vacated on the ground
that she had been denied a hearing, which violated natural justice.84 Second, she
also invoked her fundamental rights to challenge the Passports Act itself, on several
75
See generally M. P. Jain, Administrative Discretion and Fundamental Rights in India, 1(2) J. Indian. L. Inst. 223
(1959).
76
Maneka Gandhi v. Union of India (1978) 1 S.C.C. 248 (India).
77
A.D.M, Jabalpur (1976) 2 S.C.C. at 579.
78
See generally H. M. Seervai, The Emergency, Future Safeguards and the Habeas Corpus Case: A Criticism (1978);
Granville Austin, The Indian Constitution: Cornerstone of a Nation 341–343 (1966).
79
Bhagwati, J., Beg, J., and YV Chandrachud, J., who were all a part of the majority in Gopalan, overruled
their own decision subsequently in Maneka Gandhi (1978) 1 S.C.C. 248. See Austin, supra note 78, at
342.
80
Gopalan, 1950 S.C.R. 88.
81
(1978) 1 S.C.C. 248.
82
Id.
83
Id. The Passports Act 1967 required the authority to record reasons for impounding a passport, but it
could refrain from providing those reasons to the passport-holder on several grounds. The petitioner was
accordingly denied the reasons for impounding her passport. See id. at 275–276 (opinion of Bhagwati, J.,
for himself, Untwalia, J., and Fazal Ali, J.).
84
Id. at 273–274.
grounds: procedural impropriety under article 21, arbitrariness under article 14, and
as constituting unreasonable restrictions on her freedoms of speech and occupation,
under article 19.85 The Court, by a majority, ruled in favor of the petitioner.

The decision in Maneka Gandhi is significant for its comprehensive rejection of a
textualist reading of the fundamental rights,86 with an enduring impact on how the
enforcement of rights have been litigated in India subsequently.87 For now, however,
I will focus on two narrower aspects of the ruling that relate specifically to the prin
ciples of natural justice: the transformation of article 21 procedural review, and the
use of principles of natural justice in interpreting rights.88
Both the expansion of procedural review and the inclusion of principles of natural
justice in Maneka Gandhi89 depended on an inter-related reading of three fundamental
rights: article 21 (the right to life and liberty, subject to procedure established by
law), article 14 (the guarantee of equality and equal treatment before the law),
and article 19 (positive freedoms to speech, occupation, assembly, and so on, subject
to “reason able” restrictions). The majority in Maneka Gandhi90 conducted this
inter-related reading in an opinion authored by Justice Bhagwati, holding that the
content of the “procedure established by law” under article 21 must also satisfy
substantive tests under the other fundamental rights.91 This inter-related reading of
rights meant that the simple due process standard prescribed under article 21, of a
procedure established by law, now had to comply with article 19’s requirements
of reasonableness, and article 14’s requirements of equal treatment and non-
arbitrariness. Procedure under article 21, the Court famously held, must be “right
and just and fair, and not arbitrary, fanciful or oppressive; otherwise it wold be no
procedure at all and the requirement of Article 21 would not be satisfied.”92
This holding essentially transformed article 21’s bare procedural review to a sub-
stantive review, possibly comparable to a due process standard.93 Natural justice, as
Justice Bhagwati appeared to invoke it, was read into the rights contained in arti-
cles 14, 19, and 21; his analysis of the principles of natural justice flowed from ideas
of fairness (in article 14)94 and reasonableness (from article 19).95 These, in turn,
informed the content of procedure established by law.
85
Id.
86
As Justice Bhagwati put it for the majority, “The attempt of the Court should be to expand the reach and
ambit of the Fundamental Rights rather than attenuate their meaning and content by a process of judi-
cial construction.” Id. at 280.
87
See generally S. P. Sathe, Judicial Activism in India 110–129 (2002).
88
See S. N. Jain, Administrative Law Aspects of Maneka Gandhi, 21(3) J. Indian L. Inst. 382 [1979] (examining
the impact of Maneka Gandhi v. Union of India on administrative law).
89
Maneka Gandhi (1978) 1 S.C.C. 248.
90
Id.
91
Id. at 278–283.
92
Id. at 284 (opinion of Bhagwati, J., for himself, Untwalia, J., and Fazal Ali, J.).
93
See generally Chandrachud, supra note 22.
94
Maneka Gandhi (1978) 1 S.C.C. at 281.
95
Id. at 284.
488 I•CON 16 (2018), 475–502
With a more substantive standard for procedural review established, the Court
found it was now open to the Court to consider claims on the principles of natural
justice not only in administrative decisions but as considerations in applying the fun-

damental rights themselves.
This was not all: the nature of rights-based review meant that a law that did not
comply with the principles of natural justice could now be struck down as violating
procedural rights under article 21, reasonableness (article 19), and non-arbitrariness
(article 14).
Despite affirming these powers, the Court in Maneka Gandhi’s case was reluctant to
exercise them, choosing instead to interpret the Passports Act as compliant with nat-
ural justice, “by necessary implication.”96 Additionally, while saving the challenged
legislation from being declared unconstitutional, the Court found that the adminis-
trative order in Maneka Gandhi was illegal, by being in breach of its governing statute,
but also for being “clearly in violation of the rule of natural justice embodied in audi
alteram partem . . .”97 but refused to actually hold that it was void.98 The new standard
for judicial review of administrative action was now clearly restated by the majority:
“Every order made under a statutory provision must not only be within the author-
ity conferred by that statutory provision but must also stand the test of fundamental
rights.”99 The question of how strictly this standard was to be applied, or of the width
of the fundamental rights, remained uncertain.
The Court in Maneka Gandhi did not explore the implications of combining admin-
istrative law principles in rights-based review at all, although the decision had sig-
nificant repercussions for how legislative and administrative action were reviewed
thereafter.100 However, even within Maneka Gandhi, cracks in their jurisprudence
rapidly appeared. Justice Krishna Iyer, writing a concurring opinion in Maneka that
admittedly began with an acknowledgement of its redundancy,101 went on to suggest,
in a somewhat grandiose fashion, that no statutory “peg” was required to invoke nat-
ural justice: “An enacted apparition is a constitutional illusion. Processual justice is
writ patently on Article 21. It is too grave to be circumvented by a black letter ritual
processed by the legislature.”102 The legal status of the principles of natural justice
was therefore unclear, as were its implications for administrative law. The legacy of
Maneka Gandhi, just within the terms of its own holdings, was already one of doctrinal
confusion.
96
Id. at 292.
97
Id.
98
Id. at 292–293. See infra Section 4.2 for a detailed discussion on this point.
99
Maneka Gandhi (1978) 1 S.C.C. at 314.
100
See generally Jain, supra note 88.
101
Maneka Gandhi (1978) 1 S.C.C. at 328. In this context his entire opinion ought to be taken as obiter dicta
although his assertions are often cited in subsequent cases as precedent.
102
Id. at 337 (opinion of Krishna Iyer, J.).
3.2. A legacy of doctrinal confusion

To understand the application of the principles of natural justice as a ground of con-

stitutional review, it is necessary to return to their origins as administrative standards.
Under Indian administrative law, a statute specifies a procedure for administrative
decision-making, in which case these principles supplement, but do not substitute,
statutory procedure. Alternatively, a statute does not specify administrative proce-
dures, in which case administrative authorities are bound to make decisions accord-
ing to these principles, regardless of the nature of their decision-making processes.103
The content of the principles of natural justice is accordingly flexible, varying in how
strictly they are applied according to the nature of the administrative or regulatory
process at stake. An oft-cited advantage of having administrative tribunals is that they
are faster and more efficient than courts; an adaptable procedure based on these prin-
ciples of natural justice allows them to function fairly without adopting the extensive
and detailed rules that govern judicial trials and appeals.104
Soon after Maneka Gandhi,105 following British precedent, Indian courts began
transforming the administrative standard of principles of natural justice to a more
generalized standard of “fairness.”106 This was a necessary implication of the unde-
fined nature of the principles of natural justice; designed to be flexible, their applica-
tion was hooked to an understanding of the statutes that governed which authority
was to apply these principles.107 Administrative law understandings of natural jus-
tice implied a high level of deference to legislation, a flexibility that was dependent on
interpretations of statutory authority, and most of all, an ends-based reasoning. The
purpose of the principles of natural justice was to achieve fairness; their applicability,
therefore, depended greatly on the circumstances, and embraced the possibility of not
applying them where the outcome would be unfair. The result was a complex but not
necessarily irrational jurisprudence adapted to the needs of the administrative state.
The situation was quite different when it came to rights jurisprudence. For instance,
the scope of procedure established by law under article 21 remains vastly unclear:
although Maneka Gandhi108 brought in a more substantial procedural review, there
is significant lack of clarity on what constitutes substantive and procedural review,
with the Supreme Court applying two different tests without distinguishing the cir-
cumstances in which either will apply.109 As has been noted “there appear to be no
judicially defined limits as to which substantive values a court will apply in an exercise
of substantive due process.”110 Amidst this unclear doctrine on substantive judicial
103
A.K. Kraipak v. Union of India (1969) 2 S.C.C. 262, 268 (K. S. Hegde, per curiam); SL Kapoor v. Jagmohan,
A.I.R. 1981 S.C. 136.
104
2 Seervai, supra note 31, at 1744.
105
106
See, e.g., OP Gupta v. Union of India, A.I.R. 1987 S.C. 2257; S.L. Kapoor v. Jagmohan, A.I.R. 1981 S.C.
136 (both citing Ridge v. Baldwin [1964] A.C. 40 (UK) approvingly).
107
See 1 Jain & Jain, supra note 17, at 376–383.
108
109
Chandrachud, supra note 22, at 792.
110
Id.
490 I•CON 16 (2018), 475–502
review, the addition of the flexible principles of natural justice have added a second
layer of incoherence. Questions of where these principles derive from, and how they
might be reconciled with fundamental rights were left open in Maneka Gandhi,111 leav-

ing subsequent decisions to muddle through complex questions of reconciliation that
arose thereafter.
A few examples of how Maneka Gandhi’s holding was applied will demonstrate the
point. Just a few months after Maneka Gandhi112 was decided, Justice Krishna Iyer, in
Madhav Hoskot v. State of Maharashtra,113 held, point-blank, that under article 21,
read with the other rights, “one component of fair procedure is natural justice.”114
Compounding his dismissal of the careful reading of the principles of natural justice
as implicated by rights and statutes, Justice Krishna Iyer went on apply these princi-
ples to hold that the petitioner in Hoskot had the right to be served a copy of a judg-
ment against him in time for him to file an appeal, and further, that the state was
obligated to secure the provision of free legal services to him when he was indigent or
otherwise disabled from procuring them himself. “Both these are state responsibilities
under Article 21,”115 he went on to hold, in a dramatic leap from the reasoning in
Maneka Gandhi. “Every step that makes the right of appeal fruitful is obligatory, and
every action or inaction which stultifies it is unfair and ergo, unconstitutional.”116
Justice Krishna Iyer also invoked article 39-A, part of the Indian Constitution’s list
of judicially unenforceable “Directive Principles of State Policy” as “an interpretative
tool for Article 21”117 to support his claim on natural justice.118
This somewhat free-wheeling approach to understanding the foundations of the
principles of natural justice continued at the Supreme Court in subsequent jurispru-
dence: for instance, in Sunil Batra v. Delhi Administration119 the Court considered the
case of a prisoner who had challenged solitary confinement as violating his rights
under articles 14, 19, and 21. Justice Krishna Iyer, in Sunil Batra, again, completed
the line of argument that he began in his concurring opinion in Maneka, holding,
“True, our Constitution has no ‘due process’ clause or the VIII Amendment; but, in
this branch of law, after Cooper and Maneka Gandhi, the consequence is the same.”120
Over time, in constitutional litigation this approach began to imply that the principles
of natural justice need not be linked procedurally to either fairness or reasonabless
111
112
Id.
113
(1978) 3 S.C.C. 544. This case was decided by Justice Krishna Iyer alone.
114
Id. at 558.
115
Id. at 552–553.
116
Id.
117
Id. at 556.
118
Article 39-A calls upon the state to provide “the operation of a legal system that promotes justice, on the
basis of equal opportunity’ as well as for the provision of free legal aid. India Const. art. 39-A.
119
(1978) 4 S.C.C. 494 (India).
120
Id. at 518. See also Ranjan Dwivedi v. Union of India (1983) 3 S.C.C. 307 (concerning the right of a per-
son accused of a crime to be represented by legal counsel at the expense of the state).
under articles 14 and 19, but were independently a part of procedure established by
law under article 21.121
By 1980, the Supreme Court had made an attempt to divide procedural violations

into three separate fields, when considering a broad challenge to the treatment of pris-
oners: “There must be a corrective legal procedure, fair and reasonable and effective.
Such infraction will be arbitrary, under article 14 if it is dependent on unguided dis-
cretion, unreasonable, under article 19 if it is irremediable and un-appealable; and
unfair, under article 21, if it violates natural justice.”122
The division of approaches that linked principles of natural justice only to arti-
cle 21 and due process was not wholly accurate, because the Court was, in parallel,
developing a robust administrative law jurisprudence on these principles under the
right to equality under article 14 as well. Within the application of the doctrine of
“arbitrariness” as a foundation for judicial review under article 14, the Court’s use
of the principles of natural justice had further muddied the waters. As with article
21 and due process concerns, the Court tended to invoke the phrase “principles of
natural justice” expressively, without necessarily applying their contents affirmatively.
In Tulsiram Patel,123 for instance, the Supreme Court considered a challenge to article
311(2) of the constitution, which provided for, but also expressly excluded in some cir-
cumstances, the right to a hearing in certain situations concerning civil servants.124
The Court went on to hold in the most expansive fashion, that “The principles of nat-
ural justice are not the creation of Article 14. Article 14 is not their begetter but their
constitutional guardian. Principles of natural justice trace their ancestry to ancient
civilizations and centuries long past. . . . “125 Nevertheless, after dilating at length upon
justice, human nature, and reason as the foundations of natural justice, and invoking
Aristotle,126 Hume,127 Dante,128 and proverbs that the court attributed to the Kiganda
tribesmen of Buganda129 as authority, the Court found that these high principles were
“not immutable but flexible.”130 Not only, the Court held, “can the principles of nat
ural justice be modified but in exceptional cases they can even be excluded.”131
121
See, e.g., In re Special Courts Bill (1979) 1 S.C.C. 380, 434 (an advisory opinion of the Supreme Court that
evaluated draft legislation for compliance with the principles of natural justice, among other grounds).
122
Sunil Batra (II) v. Delhi Administration (1980) 3 S.C.C. 488, 510 (opinion of V. R. Krishna Iyer, J.). Justice
Krishna Iyer upholds this separate, threefold test that allies natural justice to procedure established by
law under article 21 in some other decisions. See, for instance, P.N. Eswara Iyer v. Registrar, Supreme Court
(1980) 4 S.C.C. 680 (concerning a challenge to rules of procedure adopted by the Supreme Court in hear-
ing petitions for reviews of their own judgments).
123
Union of India v. Tulsiram Patel (1985) 3 S.C.C. 398.
124
India Const. art. 311, cl. (2).
125
Tulsiram Patel (1985) 3 S.C.C. at 463 (opinion of D. P. Madon, J., for the majority) (the case was decided
by a bench of five judges, with Thakkar, J., dissenting).
126
Id. at 464.
127
Id. at 467.
128
Id. at 466.
129
Id. at 470.
130
Id. at 477.
131
Id. at 479.
492 I•CON 16 (2018), 475–502
The consequence, unsurprisingly, has been a lack of clarity regarding the circum-
stances under which principles of natural justice can be applied. In Delhi Transport
Corporation v. D.T.C Mazdoor Union132 the Supreme Court read down a regulation

that allowed a public corporation to terminate the services of the petitioners without
notice, or with pay in lieu of notice. The majority, citing Maneka Gandhi, held that “the
principles of natural justice are an integral part of the guarantee of equality assured
by Article 14 of the Constitution,”133 and consequently, the regulation in question
was “arbitrary, uncanalised and unrestricted violating principles of natural justice as
well as Article 14 of the Constitution.”134 The slight ambiguity implied here—Are the
principles of natural justice a part of article 14, or do they apply “as well as” that
provision?—has not been clarified. A similar confusion reigns when we consider juris-
prudence under article 19 and doctrines of reasonableness as including procedural
protections.135 “Questions have arisen in regard to the minimum procedural safe-
guards which must be provided for . . .” note Jain and Jain, in the context of article 19,
finding that “there is no uniformity of judicial approach under various fundamental
rights.”136
Evidently, the application of principles of natural justice by the Court has brought
with it a new set of challenges that deal with applying and interpreting constitutional
rights. Flexible administrative standards are sought to be incorporated into rights
litigation as grounds for review, and consequently, the Court has struggled with clearly
defining these grounds and ruling consistently on them. The immediate impact of
this is to render the content and application of fundamental rights unclear. However,
unlike administrative matters which are largely limited to civil processes, issues of
constitutional rights can entail penal consequences. When it is unclear whether a
litigant can or cannot rely upon procedural protections afforded by the principles of
natural justice in claiming enforcement of her rights, the consequence is a diminish-
ing, rather than an expansion, of the rights. This is precisely the opposite of what the
Court had sought to achieve in Maneka Gandhi.
132
(1991) Supp. 1 S.C.C. 600 (India).
133
Id. at 752.
134
Id. at 705.
135
See, e.g., Papnasam Labour Union v. Madura Coats Ltd, (1995) 1 S.C.C. 501 (The Court expressed its
power to review for “procedural perniciousness” as well as substantive law under article 19); Chaturbhai
Patel v. Union of India (1960) 2 SCR 362 (a challenge on grounds of unreasonableness because the
authority in question, they found, had nominally complied with the principles of natural justice was
rejected); Haradhan Saha v. Union of India (1975) 3 SCC 198 (“Procedural reasonableness for natural
justice flows from Article 19,” held the Court while dismissing a challenge to a preventive detention
law on those grounds). See also Kishan Chand Arora v. Commission of Police (1961) 3 S.C.R. 135; JK
Industries v. Union of India (2007) 13 S.C.C. 673.
136
4. Narrowing remedies in constitutional and

administrative law

The impact of the constitutionalization of administrative law is not limited to chang-
ing the understanding of constitutional rights; it has had significant consequences for
how rights have been enforced as well. Article 32 of the Indian Constitution provides
remedies for the enforcement of fundamental rights; indeed, taking recourse to the
Supreme Court for such enforcement is itself a protected right.137 These powers are
separate and distinct from the Supreme Court’s powers to address violations of other
legal rights; fundamental rights, accordingly, stand on a separate footing, not only in
terms of judicial review, but also in terms of the means available to the Supreme Court
to enforce them.138 Administrative decisions are usually challenged in lower civil
courts as well as high courts, and then reach the Supreme Court by way of appeal.
Violations of fundamental rights, on the other hand, can be directly challenged at
the high courts or the Supreme Court, and need not go through the civil appellate
system.139
Maneka Gandhi,140 as I have discussed, made it apparent that a violation of admin-
istrative principles might conceivably amount to a violation of fundamental rights;
however, this was not automatic and depended on the specific context of the case.
However, the transformation of these administrative principles to components of con-
stitutional rights has enabled litigants to move from a tiered appellate system to directly
litigating administrative issues before the Supreme Court, in the guise of fundamental
rights. “This constitutionalisation of administrative law,” argues one scholar, “ignores
its common law roots and results in a top-heavy system where constitutional courts
come to arrogate all administrative review powers.”141
The impact of this transformation raises a number of unanswered questions,
ranging from structural issues of access to justice, to the manner in which rights are
enforced as well as for the legality of administrative orders that are challenged under
the guise of rights enforcement. In this section, I will attempt to address two of these
137
138
See generally Sathe, supra note 87, at 290–301; Subramanium, supra note 9, at 614, 615. This is not the
case for the Indian High Courts, which can enforce fundamental rights through writ remedies but may
also use those remedies to enforce other legal rights. India Const., art. 226.
139
India does not have a separate system of administrative courts, although certain administrative bodies
include tribunals, which can exercise some of the powers of civil courts in decision-making. Their deci-
sions are appealable to high courts and the Supreme Court.
140
(1978) 1 S.C.C. 248.
141
Tarunabh Khaitan, Equality: Legislative Review under Article 14, in The Oxford Handbook of the Indian
Constitution 699, 716 (Sujit Choudhry, Pratap Bhanu Mehta, & Madhav Khosla, eds.,2016) (discussing
the use of administrative principles of unreasonableness in the context of the right to equality and equal
treatment under article 14 of the Indian Constitution). See also Farrah Ahmed & Tarunabh Khaitan,
Constitutional Avoidance and Social Rights Litigation, 35(3) Oxford J. Legal Stud. 607, 618 (2015) (making
a broad case for the use of administrative law principles as an alternative to invoking constitutional rights
in certain cases).
494 I•CON 16 (2018), 475–502
issues, focusing on significant Supreme Court decisions on these points, and consider-
ing the impact of the judgment in Maneka Gandhi to their application.

4.1. Can violations of natural justice be enforced as violations of
rights?
The Supreme Court actually dealt with the question of extending writ remedies for
fundamental rights to administrative illegalities in the case of Ujjambai v. State of Uttar
Pradesh,142 a case decided before Maneka Gandhi.143
Ujjambai v. State of Uttar Pradesh dealt with an order assessing the petitioner to sales
tax; the petitioner challenged this order before administrative authorities and the
Uttar Pradesh High Court, claiming the order assessing her to tax was based on a mis-
construction of an administrative notification.144 She was unsuccessful, but the High
Court granted her leave to file a civil appeal against this, to the Supreme Court.145 This
would have been the standard procedure in any such administrative litigation; the
petitioner in Ujjambai v. State of Uttar Pradesh, however, chose instead to file a writ peti-
tion at the Supreme Court, claiming that her fundamental right to conduct her pro-
fession and trade146 had been violated by the sales tax assessment order.147 The claim
was admitted, and was supported by the Union of India, which endorsed a wide read-
ing of the Supreme Court’s jurisdiction on this claim but was opposed by the State of
Uttar Pradesh, which argued that their order was legally passed by an administrative
authority, and consequently was not open to challenge on the grounds that it violated
fundamental rights under the Indian Constitution.148
Ujjambai v. State of Uttar Pradesh, as Justice S. K. Das notes in his concurring opin-
ion, could have been decided on the narrow questions of whether the sales tax order
in question was within statutory authority, and whether it violated the petitioner’s
fundamental rights.149 It was, however, referred by a constitution bench of five judges
to a larger bench of seven judges, to determine the general question of whether the
Supreme Court could hear a challenge to an (otherwise legal) administrative order
on the grounds that it violated fundamental rights.150 The Court in Ujjambai v. State
of Uttar Pradesh agreed with the respondents that an act done by an administra-
tive authority that was authorized by a statute could not usually be challenged on
the grounds that they violated fundamental rights. “To say that the doing of a legal
act violates a fundamental right,” noted Justice Kapur, “would be a contradiction in
142
(1963) 1 S.C.R. 778 (India).
143
144
See Ujjambai (1963) 1 S.C.R. at 844–846 (opinion of Kapur, J.), 923–924 (opinion of Hidayatullah, J.).
145
Id.
146
India const., art. 19, cl. 1(g). The petitioner also raised a second claim under art. 31, cl.1.
147
See Ujjambai (1963) 1 S.C.R. at 844–846 (opinion of Kapur, J.).
148
See id. at 848–849 (opinion of Kapur, J.).
149
See id. at 828 (opinion of S. K. Das, J.).
150
Id. at 822 (order making a reference to a larger bench by Venkatarama Aiyar, J.). See also id. at 847–848
(opinion of Kapur, J.).
terms.”151 The writ petition was accordingly rejected, by a majority of five judges to
two.152
The majority in Ujjambai v. State of Uttar Pradesh, borrowing from administrative

law cases, distinguished between acts done by administrative authorities within their
jurisdiction (errors of law) and acts done without jurisdiction (errors of jurisdiction).
They held that when an administrative authority was legally and validly granted dis-
cretion under statute to pass an order, then this legal use of discretion could not be
challenged on the ground that it violated fundamental rights.153 The remedy for such
acts was an appeal to the appropriate authority, whether an administrative tribunal,
or a civil court.154 If, however, an administrative authority acted without jurisdiction
(ultra vires) or violated the principles of natural justice, then there was no legality
attached to the act, and a claim for violation of fundamental rights would lie against
such act.155
A second, finer, distinction underlay the holding in Ujjambai. The majority here
strictly confined their ruling to administrative acts that were done in a “quasi-judicial”
capacity.156 Administrative acts done in executive capacity would still be vulnerable
to claims of violations of fundamental rights regardless of jurisdictional concerns.157
The violation of the principles of natural justice, on the other hand, implied that
the administrative authority was under an obligation to act judicially, or quasi-judi-
cially—as this was not a purely executive function, it would be treated like other judi-
cial decisions and remedied by appeals, not by claiming that the authority had itself
violated fundamental rights.158
Effectively, Ujjambai, sought to transform how the Supreme Court evaluated claims
of violations of fundamental rights against administrative authorities. Where pre-
viously such claims would only entail the examination of whether a right had been
infringed, Ujjambai imported an administrative law test and required the Court to
first enquire into the nature of the administrative act, and whether it was “admin-
istrative” or “quasi-judicial” in nature. After this was established, the Court would
have to ascertain whether the administrative action violated the principles of natural
justice or lacked jurisdiction, and only then could the inquiry into rights violations
151
See id. at 852 (opinion of Kapur, J.).
152
Justices Ayyangar and Subba Rao dissented; Justices Mudholkar, S. K. Das, Hidayatullah, and Kapur
wrote the majority’s opinions and Justice Sarkar agreed with the opinions of Justice Kapur and S. K. Das.
See id.
153
See id. at 842–843 (opinion of S. K. Das, J.), 848–849 (opinion of Kapur, J.), 942–943 (opinion of
Hidayatullah, J.). But see id. at 879–890 (per Subba Rao, J., dissenting).
154
See id. at 842–843 (opinion of S. K. Das, J.), 848–849 (opinion of Kapur, J.), 945–946 (opinion of
Hidayatullah, J.).
155
See id. at 834–845 (per S. K, Das, J., holding that a violation of principles of natural justice amounts to an
error in jurisdiction); 874–875 (per Kapur, J.), 944–945 (opinion of Hidayatullah, J.).
156
See id. at 836–837 (opinion of S. K. Das, J.), 879–881 (opinion of Kapur, J.). But see id. at 879–890 (opin-
ion of Subba Rao, J., dissenting), 960–964 (opinion of Ayyangar, J., dissenting).
157
See id. at 875–877 (opinion of Kapur, J., relying on Ram Jawaya Kapur v. State of Punjab (1955) 2 S.C.R.
225).
158
Ujjambai (1963) 1 S.C.R. at 857–858 (opinion of Kapur, J.).
496 I•CON 16 (2018), 475–502
begin. Ujjambai, unsurprisingly, was criticized for narrowing the Court’s jurisdiction
to enforce fundamental rights.159 More generally, however, subsequent jurisprudence
revealed that making a distinction between quasi-judicial and executive functions was

no easier than combing through jurisprudence to determine the content of the prin
ciples of natural justice. The question generated, over time, a rich and complex body of
jurisprudence on different kinds of tests that might be applied to arrive at an answer.160
Both, Ujjambai161 and Maneka Gandhi162 were decided by benches of equal strengths
(seven judges). Institutionally, this meant that the Supreme Court in Maneka Gandhi
could not overrule Ujjambai163—it could only distinguish it on the facts.164 The Court
in Maneka Gandhi, however, did not notice or respond to the holding in Ujjambai.
The majority chose, instead, to ignore it altogether, raising the difficult—and unan-
swered—task of reconciling the two holdings.
The majority in Maneka Gandhi was able to do this by ignoring the distinction
between quasi-judicial and administrative authorities altogether, holding:
The aim of both administrative inquiry as well as quasi-judicial inquiry is to arrive at a just
decision and if a rule of natural justice is calculated to secure justice, or to put it negatively, to
prevent miscarriage of justice, it is difficult to see why it should be applicable to quasi-judicial
inquiry and not to administrative inquiry. It must logically apply to both.165
The distinction between quasi-judicial acts, and administrative acts, held the majority
in Maneka Gandhi, was now largely irrelevant, specifically when it came to applying
the principles of natural justice. This was in line with precedent in administrative law,
which had developed over the years since Ujjambai to the point where “The dividing
line between an administrative power and a quasi-judicial power is quite thin and is
being gradually obliterated.”166 Yet, these decisions at administrative law, as well as
Maneka Gandhi, continue to be controlled by the still-binding precedent of Ujjambai.167
The consequent, and anomalous conflict can be summed up accordingly: the
Supreme Court need not enter into the question of whether an administrative
authority is acting judicially or administratively to determine whether a right has
been violated (per Maneka Gandhi) but this distinction remains a vital consideration
in determining whether the petitioner is entitled to a writ remedy for such violation
(Ujjambai). One possible resolution of this conflict could be to utilise Ujjambai’s excep-
tion for the principles of natural justice; this would mean that any violation of the
159
See K. B. Nambyar, Ujjambai v State of Uttar Pradesh and Another—Constitutional Law—Quasi-judicial
Authorities and Fundamental Rights, 4(3) J. Indian. L. Inst. 452 (1962); 1 Jain & Jain, supra note 17, at 399.
160
See generally 1 Jain & Jain, supra note 17, at 382–390.
161
Ujjambai (1963) 1 S.C.R. 778.
162
163
Ujjambai (1963) 1 S.C.R. 778.
164
See, e.g., State Trading Corporation v. State of Mysore (1963) 3 S.C.R. 792 (distinguishing Ujjambai
(1963) 1 S.C.R. 778 on facts).
165
Maneka Gandhi (1978) 1 S.C.C. at 286 (opinion of Bhagwati, J., for himself, Untwalia J., and Fazal Ali, J.)
(Ridge v. Baldwin (1963) 2 All E.R. 66. and Associated Cement Companies v. P.N. Sharma (1965) 2 S.C.R.
366, relied).
166
A.K. Kraipak (1969) 2 S.C.C. at 268 (K. S. Hegde, per curiam).
167
Ujjambai (1963) 1 S.C.R. 778.
principles of natural justice would allow a claim for a writ remedy. This leaves unan-
swered, however, the question of what happens to administrative orders that do not
violate the principles of natural justice and are still quasi-judicial and within jurisdic-

tion; for these, the Court continues to apply Ujjambai and exclude writ remedies.168
The curious result, as one scholar points out, is that “a violation of fundamental right
committed by an organ of the State ceases to be one when committed by the same
organ acting in a slightly different capacity.”169
Maneka Gandhi’s solution of avoiding the characterization question of quasi-judicial
or administrative functions is accordingly no solution at all. Jain and Jain, on a review
of the jurisprudence, cite more recent cases which point out that as long as Ujjambai
v. Uttar Pradesh’s artificial distinctions between “errors of jurisdiction” and “errors of
law” are sustained, “it may not be possible to completely avoid characterising a func-
tion discharged by an authority.”170 It is vital that the Indian Supreme Court makes an
attempt to resolve this conflict; until then, a small body of acts committed by admin-
istrative authorities will remain insulated from constitutional review for violations of
fundamental rights, entirely on the basis of an unclear and much-criticised legal test.
This position, as I have indicated, is the direct product of importing administrative
law principles into constitutional review without a careful consideration of the conse-
quences, especially as far as remedies are concerned.
4.2. What is the effect of declaring that a breach of natural justice

violates fundamental rights?
Indian courts have tended to avoid the void/voidable conflict endemic to common law
courts that are engaged with the question of the effect of a breach of the principles of
natural justice.171 This was achieved by early rulings in which Indian courts initially
tried, somewhat disingenuously, to avoid the void/voidable distinction altogether, by
ruling that any administrative order that violates the principles of natural justice is
void from the beginning, and not entertaining the question of voidability at all.172
However, as the Court began to overlap administrative and constitutional principles,
this presented a new set of challenges.
The position was first complicated by a confusing decision in Nawabkhan Abbaskhan
v. State of Gujarat,173 and then undone further by Maneka Gandhi.174 As a result of this,
168
See, e.g., M.P.S.E.B. v. Union of India (2006) 10 S.C.C. 736; Andhra Industrial Works v. Chief Controller
of Imports (1974) 2 S.C.C. 348.
169
Nambyar, supra note 159, at 456.
170
171
See generally for how this is addressed in the United Kingdom, William Wade & Christopher Forsyth,
Problems of Invalidity, in Administrative Law (William Wade & Christopher Forsyth eds., 11th ed. 2014);
Mark Elliott & Jason N. E. Varuhas, The Status of Unlawful Administrative Action, in Administrative Law
Text and Materials 82 (Mark Elliott & Jason N. E. Varuhas eds., 5th ed. 2017); William Wade, Unlawful
Administrative Action: Void or Voidable? (Part I), 83 Law Q. Rev. 499 (1967); William Wade, Unlawful
Administrative Action: Void or Voidable? (Part II), 84 Law Q. Rev 95 (1968).
172
See 1 Jain & Jain, supra note 17, at 711–719; Massey, supra note 16, at 265.
173
(1974) 2 S.C.C. 121 (V. R. Krishna Iyer, J., for himself and R. S. Sarkaria, J.).
174
(1978) 1 S.C.C. 248.
498 I•CON 16 (2018), 475–502
the jurisprudence in India on the illegality of administrative orders is as unclear as it

is on the principles of natural justice.
The Indian position on the “voidness” of unlawful administrative orders, was

established in the case of Nawabkhan Abbaskhan v. State of Gujarat,175 which pre-dated
Maneka Gandhi by a few years. In Nawabkhan’s case, a police commissioner passed an
order of “externment” under the Bombay Police Act, 1951, temporarily prohibiting
the petitioner, Nawabkhan from entering a designated territory.176 Nawabkhan vio-
lated this order, and was consequently prosecuted for such violation.177 While he was
being tried, Nawabkhan approached the High Court of Gujarat to have the original
order of externment quashed; he argued that the state had failed to give him a hear-
ing before passing it, and consequently, the externment order violated the principles of
natural justice and should be struck down.178 He was successful, and the High Court
quashed the externment order, in a judgment authored by Justice P. N. Bhagwati (who
would later author the majority opinion in Maneka Gandhi).179 The question that arose
consequently, was whether Nawabkhan could still be prosecuted for violating an order
which had since been declared void.180 He was acquitted by the trial court, had his
acquittal overturned in the High Court on appeal from the state, and consequently,
approached the Supreme Court for relief.
The Supreme Court, in an opinion authored by Justice V. R. Krishna Iyer (who would
also author an opinion in Maneka Gandhi, later) found that the externment order was
void from the beginning; Nawabkhan was consequently acquitted.181 The question
before the Court was straightforward; was the externment order passed by the police
commissioner “void” or “voidable”? If void, it had no legal force from the beginning,
and Nawabkhan could not be prosecuted for violating it. If voidable, the order was to
be treated as valid when he committed his violation, and consequently he could still be
prosecuted even though the order had since been struck down.
High courts in India had held previously in comparable cases that such orders
would be voidable.182 The Supreme Court, however, chose instead to entertain the pos-
sibility that the order of externment violated Nawabkhan’s fundamental rights under
article 19(1)(d) of the Indian Constitution,183 which protects, among other rights, the
freedom of movement within Indian territory.184 The externment order was void, the
175
(1974) 2 S.C.C. 121 (V. R. Krishna Iyer, J., for himself and R. S. Sarkaria, J.).
176
Id. at 123–124 (V. R. Krishna Iyer, J., per curiam).
177
Id.
178
Nawabkhan Abbaskhan (1974) 2 S.C.C. at 123–124. The principle of natural justice applied here, i.e.
the right to hearing, was invoked as common law principle, but also a statutory requirement under the
Bombay Police Act, 1951, § 59.
179
Id.
180
Nawabkhan Abbaskhan (1974) 2 S.C.C. at 123–124.
181
Id. at 121, 133 (V. R. Krishna Iyer, J., per curiam).
182
Suresh v. State of Madhya Pradesh, A.I.R. 1970 S.C. MP 154 (Madhya Pradesh); Jwala Prashad v. State
of Rajasthan, A.I.R. 1973 Raj 187 (Rajasthan); Shiela Devi v. Executive Engineer, A.I.R. 1971 All 343
(Uttar Pradesh). See also 1 Jain & Jain, supra note 17, at 711–713.
183
India Const., art. 19, § 1, cl. (d).
184
Nawabkhan Abbaskhan (1974) 2 S.C.C. at 126 (V. R. Krishna Iyer, J., per curiam).
Court held, not as a matter of legal principle under administrative law but instead,
because it violated natural justice and statutory law and, by implication, a funda-
mental right.185 Having arrived at this roundabout conclusion, the Court could eas-

ily making a finding that the order was void. In Indian constitutional law, unlike in
administrative law, the position is categorical; articles 13(2) and 13(3) establish that
any administrative order or legislation that has “the force of law” and is inconsistent
with fundamental rights is void.186 Administrative orders that were not unconstitu-
tional could possibly remain “voidable,” suggested the Supreme Court.187
Nawabkhan Abbaskhan188 has been rightly criticized for failing to address the actual
question that was raised in the case, i.e. whether administrative orders can be declared
void or voidable.189 The Court also raised and did not answer the second, complex ques-
tion of whether a citizen is bound by an illegal administrative order, holding simulta-
neously that illegal orders are not binding but also that allowing “post-legitimated
disobedience of initially unconstitutional orders”190 would result in jeopardizing law
and order. The resolution of this tricky issue, held the Court, was best approached by
legislation rather than judicial determination.191 (The issue has yet to be addressed by
legislation.)
Despite these gaps, Nawabkhan Abbaskhan192 was categorical on one limited, fairly
uncontroversial point: violations of fundamental rights rendered administrative orders
void.193 Naturally, an immediate retrenchment on this came in Maneka Gandhi.194 The
majority in Maneka Gandhi found that the petitioner’s passport had been unlawfully
impounded without a hearing, thus contravening her fundamental rights and the nat-
ural justice principle of audi alteram partem. Yet, the Supreme Court refused to interfere
with the actual order of impoundment, or hold it, in line with Nawabkhan, as void.195
Justice Bhagwati, writing for the majority, conceded in Maneka that “even where a
statutory provision empowering an authority to take action is constitutionally valid,
action taken under it may offend a fundamental right and in that event, though the
statutory provision is valid, the action may be void.”196 The violation of the principle
of audi alteram partem was conceded to have breached the petitioner’s fundamental
rights under article 21197; however, Justice Bhagwati held that by offering to allow the
185
Id. at 126, 130 (V. R. Krishna Iyer, J., per curiam).
186
India Const., art. 13, §2, §3.
187
188
Id.
189
See 1 Jain & S.N. Jain, supra note 17, at 714; S. N. Jain, Is an Individual Bound by an Illegal Executive Order?
Distinction between “Void” and “Voidable” Administrative Orders, 16(2) J. Indian L. Inst. 322 (1974).
190
191
Id. at 132 (V.R. Krishna Iyer, J., per curiam).
192
Id.
193
Id. at 133.
194
195
Id. at 292.
196
Id. at 312.
197
Id. at 292.
500 I•CON 16 (2018), 475–502
petitioner a post-decisional hearing, the attorney general had, on behalf of the gov-
ernment, cured this defect.198
Commenting on Nawabkhan and Maneka, M. P. Singh notes that an attempt to rec-

oncile these two decisions could be made by adopting Maneka Gandhi’s stance that a
post-decisional hearing is sufficient to comply with the audi alteram partem rule. He
notes, rightly, however, that this is hard to adopt, primarily because the majority in
Maneka Gandhi cites no authority for this position, and consequently, that their hold-
ing “amounts to conferring validity on something which was invalid or unlawful, or
indeed, according to [the] Nawabkhan ruling, did not exist.”199 Post-Maneka Gandhi, the
position on whether administrative orders can be void or voidable is no less clear200; the
power to declare an administrative order void is still discretionary, and the “exercise of
discretion by the courts on this point is making the confusion worse confounded.”201
As in the case of jurisdictional claims, the Supreme Court urgently needs to turn its
attention to resolving the questions that have arisen from the incorporation of admin-
istrative law principles into rights enforcement claims.
5. Conclusion
The Indian Supreme Court in 1978 tremendously expanded the scope of the funda-
mental rights embedded in its constitution. The decision in Maneka Gandhi202 is rightly
celebrated for being one of the most significant constitutional developments that wid-
ened access to justice, opened the path to substantive judicial review, and widened the
Court’s jurisdiction. Following Maneka Gandhi, the Court widely expanded its jurisdic-
tion by relaxing rules of standing and procedure that governed not only appeals but
also the process of bringing public interest litigations (PIL) to the Court. This “delegit-
imization of legal procedure,”203 when combined with the inherent flaws in its insti-
tutional structure, has contributed to a deeply erratic and fragmented jurisprudence
in general. The Court uses a variety of sources and techniques without adequate con-
cern for precedent or principle to achieve a result that reflects an institutional pre-
occupation with equality.204
198
Chief Justice Beg wrote a concurring opinion, but dissented on this point, holding that the order should
have been quashed instead of allowing the attorney general to remedy an admittedly illegal order.
Maneka Gandhi (1978) 1 S.C.C. at 402, 403 (opinion of Beg, C.J.).
199
M.P. Singh, Administrative Action in Violation of Natural Justice Affecting Fundamental Rights: Void or Voidable
(1979) 2 S.C.C.-J. 1, 4. See also Jain, supra note 189, at 331.
200
See State of Gujarat v. Chaturbhai, A.I.R. 1975 S.C. 630 (India) (an administrative order for the acqui-
sition of land was declared void for violations of natural justice); Assam Silimanite v. Union of India,
A.I.R. 1990 S.C. 1417 (India). But see M.C. Mehta v. Union of India (1999) 6 S.C.C. 237 (violations
of natural justice do not always result in a void order; the Supreme Court has the discretion to decide
whether or not an order should be void or sustainable).
201
202
203
Anuj Bhuwania, Courting The People: Public Interest Litigation in Post-Emergency India 26 (2017).
204
Pratap Bhanu Mehta, The Inner Conflict of Constitutionalism: Judicial Review and the Basic Structure in
India’s Living Constitution: Ideas, Practices, Controversies 179, 205 (Zoya Hasan, Eswaran Sridharan, &
R. Sudarshan eds., 2002).
Borrowing principles of natural justice from the common administrative law and
incorporating them into the content of fundamental rights has gradually resulted in
a “constitutionalized administrative law,” which has had a significant impact on the

interpretation of rights, the understanding of administrative law, and judicial rem-
edies for violations of constitutional rights and administrative law.
Concerns about the constitutionalization of administrative law principles through
the interpretation of fundamental rights arise because the Court incorporates them in
a manner that is unclear in three ways, as I have tried to indicate. First, the Supreme
Court’s jurisprudence on the nature of these principles is inconsistent; the Court has
not established whether it is using them as an interpretative guide to “fill” the con-
tents of rights, reading them as parts of rights themselves, or “pegging” them on to
statutory provisions. Second, inherent vagueness in the definition of the principles of
natural justice lends them flexibility which is arguably an advantage in administrative
law but turns to a disadvantage under constitutional law by allowing an inconsistent
and potentially unfair application of rights. The ad hoc application of the principles of
natural justice tie in closely to the Supreme Court’s preoccupation with achieving its
conception of a just result, without great regard for the procedures it adopts to achieve
this.205 Third, the use of administrative principles in constitutional litigation has
implications for how litigants claim remedies: administrative law has resulted in nar-
rowing access to constitutional remedies in some cases, and constitutional litigation
has contributed to doctrinal confusion in administrative remedies in other litigation.
These concerns, however, are not new, nor are they unique to understanding the
principles of natural justice. Similar doubts have been raised about the use of admin-
istrative law doctrines of arbitrariness in legislative review (“the tests applied against
administrative and quasi-judicial bodies cannot be applied to delegates of legislative
power”206), and about the import of the administrative law test of unreasonableness
in equality under article 14.207 The effect is an erratic jurisprudence; potentially trou-
bling for governance, and significantly dangerous for the guarantees contained in a
constitutionally embedded bill of rights.
Undoubtedly, institutional reasons in the Supreme Court’s structure contribute to
doctrinal confusion, both in the interpretation of the fundamental rights as well as in
the use of the principles of natural justice. However, Maneka Gandhi208 demonstrates
that at least a part of this comes from a failure to consider the consequences of con-
stitutionalizing administrative law. Within India’s judicial hierarchy, regulatory and
administrative bodies staffed by non-judicial members, as well as lower courts staffed
by judges, follow the Supreme Court’s precedent in applying the principles of natu-
ral justice. By constitutionalizing administrative law, the Supreme Court is willing to
205
See Pratap Bhanu Mehta, The Indian Supreme Court and the Art of Democratic Positioning, in Unstable
Constitutionalism: Law and Politics in South Asia 233 (Mark Tushnet & Madhav Khosla eds., 2015).
206
Abhinav Chandrachud, How Legitimate Is Non-Arbitariness? Constitutional Invalidation in Light of Mardia
Chemicals, 2 Indian J. Const. L. 179, 186 (2008).
207
Tarunabh Khaitan, supra note 141.
208
502 I•CON 16 (2018), 475–502
redirect this vast body of administrative litigation to itself, claiming administrative law
questions as issues of rights enforcement, and taking them away from administra-
tive tribunals, and civil and high courts. It is therefore incumbent upon the Indian

Supreme Court to also evolve a clear and rational jurisprudence to address the impli-
cations, both institutional and jurisprudential, of constitutionalizing administrative
law. In the absence of legislation defining these administrative principles and proce-
dures, the Court must now reflect upon and interrogate the legacy of Maneka Gandhi if
it is to avoid these doctrinal inconsistencies.

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* J.S.D. candidate, Yale Law School. Email: [email protected].

I•CON (2018), Vol. 16 No. 2, 475–502 doi:10.1093/icon/moy027

rights at common law in cases of conflict, judicial interpretation of these constitu-

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2. The framework of rights and natural justice in Indian

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2.2. The principles of natural justice

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2.3. Institutional structure

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3. The constitutionalization of administrative law through

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3.1. Textualism and the exclusion of principles of natural justice

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established protections in common law, even if the newly enacted Constitution of

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principles of natural justice. In the absence of encoded administrative procedure, the

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3.1. Maneka Gandhi v. Union of India and the incorporation of

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3.2. A legacy of doctrinal confusion

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4. Narrowing remedies in constitutional and

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4.2. What is the effect of declaring that a breach of natural justice

the jurisprudence in India on the illegality of administrative orders is as unclear as it

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