ADMINISTRATIVE LAW Part-2

Q. 6 (b). Describe the permissible limits of legislative delegation in India. Give case law in support of your answer.

What are the powers which cannot be delegated by the legislature to the executive ?

Discuss the permissible limits of delegated legislation in the light of In re Delhi Law’s case.

Can a legislature in India delegate legislative power to the executive ? If so, to what extent? Explain with the help of decided cases.

What are the limits laid down by the judiciary on the power of the legislature to delegate its law making functions ? Refer to the leading cases.

Ans. Permissible limits of legislative Delegation. In Sita Ram Vishambhar v. State of U.P. [1972 Tax LR 1961 SC] the Apex Court observed “the present position as regards delegation of legislative power may not be ideal, but in the absence of any better alternative, there is no escape from it.” The question naturally arises how far the legislature can delegate its power ower of legislation to the administrative body or what is the constitutional limit within which the legislative power may be delegated.

Our Constitution does not contain any express prohibition against delegation of powers by the Legislature to the Executive or any subordinate body. But Supreme Court has held in In re Delhi Laws Act [A.I.R. 1951 SC 332]. and Basu Lal v. State of Bombay [A.I.R. 1961 SC 4] that the Legislature under our Constitution, cannot delegate its essential functions which have been entrusted to it by the Constitution. Such question has no meaning in England because in England, Parliament is supreme and it can delegate any amount of the powers. But the position is different in United States of America. The Legislature, i.e., Congress functions under a written Constitution and does not have uncontrolled power. In Panama Refining Co v. Ryans. 1293 US 338, 434 (1935) known as Hot Oil case, the Coun had laid down that the Congress can delegate legislative powers to the Executive subject to the condition, that it lays down the policies and establishes standards while leaving to the administrative authorities the making of subordinate rules within the prescribed limits.

In India, the question arose for the first time in In re Delhi Laws Aci case (A.IR 1951 SC 332], and the majority view was (Fazal Ali. Sastri and Das. JJ.) expressed that Indian Parliament was free to delegate its legislative powers to the Executive to any extent subject to only limitation that it must not efface itself or abdicate its powers. Majority view. however, was that Indian Parliament could not delegate its essential legislative functions to another agency.

No clear principle regarding the permissible limits of delegation was evolved by the Apex Court in In re Delhi Laws Act case But, in course of time the Supreme Court has settled the principle for ever that essential power of legislation cannot be delegated. In Baglav State of Madhya Pradesh, [AIR. 1954 SC 465] Supreme Court clearly laid down the said principle. In Banarsi Das v. State of M.P. AIR 1958 SC 909] the Supreme Court observed that the executive authority can be authorized to modify either existing or future laws but not in any essential feature. Exactly what constitutes an essential feature cannot be enunciated in general terms, but this much is clear from the opinions set out In re Delhi Laws Act case that it cannot include a change of policy The courts have in a number of cases laid down the principle that the legislature cannot delegate uncontrolled and unguided power, that it should lay down the policy subject to which delegation can take place. The discretion used in this connection must not go-

(a) beyond the permitted limit of parent Act. or

(b) run counter to it, or

The Supreme Court has reiterated in Registrar of Co-operative Societies v. K. Kunjabmu [AIR. 1980 SC 350) that The power to legislate carries within the power to delegate” but “Excessive delegation may amount to abdication” and “Delegation unlimited may invite despotism uninhabited. Therefore, the principle is that The Legislature cannot delegate its essential legislative function”. Legislature must be laying down policy and principle and delegate it may to fill in detail and carry out policy.

A legislature cannot delegate the power of repealing or amending any Act. In Parasuraman v. State of Tamil Nadu. AIR 1990 SC 401 the Supreme Court observed “It is well-established that determination of legislative policy and formulation of rule of conduct are essential legislative functions which cannot be delegated what is permissible is to leave to the delegated authority the task of implementing the object of the Act after the legislature lays adequate guidelines for the exercise of power.”

Q. 7 (a). Describe the Parliamentary control over Delegated Legislation in India.

Ans. Parliamentary Control over Delegated Legislation in India. “It is the function of the legislature to legislate, but if it seeks to give this power to the executive in some circumstances, it is not only the right of the legislature, but also its duty, as principal to see how its agent (executive) carries out the agency entrusted to it. Since, it is legislature which delegates legislative power to the administration, it is primarily for it to supervise and control the actual exercise of this power and ensure against the danger of its objectionable abusive and unwarranted use of the administration”. (Jain & Jain, Principles of Administrative Law, 1986 p. 76).

In India, the executive is responsible to Parliament, therefore, parliamentary control of delegated legislation is a normal Constitutional function. The legislature controls delegated legislation in three ways:

(A) Proceedings in parliament,

(B) Laying on the Table, and

(A) Proceedings in Parliament.-A number of proceedings are involved in exercise of control by the legislature over delegated legislation-

(i) Debate on the Bill containing delegation.-Members of the legislature may discuss anything about delegation including necessity, extent, type of delegation and the authourity to whom the power is delegated

(ii) Asking questions and giving notices. Any member may ask questions on any matter regarding delegation of legislative power and if dissatisfied, can give notice for debate as laid down under Rule 59 of the procedure and conduct of Business in Lok Sabha.

(iii) Resolution on motion. -Any member may move a resolution on motion, if the matter regarding delegation of power is urgent and immediate and the reply given by the government is unsatisfactory.

(iv) Demand for vote on grant. Whenever the budget demands of a ministry are presented before the legislature any member may propose a cut and through this proposal he may bring the exercise of rule-making power by that ministry under discussion.

(v) Directions by Speaker. The Speaker of Lok Sahba may refer bills containing provisions for delegated legislation to the committee to examine the extent of power sought to be delegated.

(B) Laying on the Table. Legislation made by the Executive is required by the Parent Act to be placed before the Parliament. There it undergoes several parliamentary procedures. It can be studied in following ways-

(i) Laying with no further Delegation. Here subordinate legislation after having been passed by administrative agencies are required to be laid before Parliament. Members of the Parliament are not empowered to move its amendment nor is the Government required to obtain a resolution before it becomes operative. Legislation is put up before Parliament with in a prescribed time.

(ii) Laid and made subject to annulment within forty days.– Sometimes the Parent Act provides that the regulations made by the Parliament should be laid before the House as soon as they are made. And the parent Act may further provide that if either House, with in a period of forty days after regulations are so placed before it, resolves that the regulations be annulled, the regulations shall cease to have any effect.

(iii) Laid and made subject to affirmative resolution. There can be two kinds of provisions under this heading: The first, that subordinate legislation shall be of no effect unless it is approved by resolution of each House of Parliament. The second type may be that subordinate legislation may cease to have any effect on the expiration of a stated period unless sometime before the expiration of that period it has been approved by resolution of each House of Parliament.

(iv) Laid in draft and made subject to affirmative Resolution. Under this section, before any order, regulation, etc. is made a draft of the order or regulation, is presented to each House of Parliament and the order or regulation shall not be made unless approved by resolution of each House.

(v) Laid in draft and made subject to annulment within forty days. Under this section, a draft of an order or regulation is placed before each House and if the House does not annul it within a period of 40 days after it has received the copy of the draft it is regarded to have been approved by the Houses of Parliament-Provisions to this effect are less common.

(vi) Laying before it, becomes operative. Under this section, it is required that an order or regulation, before it will come into operation, would be laid before the Houses of Parliament. This provision may be clearly laid down in the Parent Act. It is also a significant mode of parliamentary control over subordinate legislation.

(C) Scrutiny Committees. On the suggestion of Dr. Ambedkar a Committee was formed on 1st December, 1953 known as Committee on Subordinate Legislation of the Lok Sabha, in order to examine delegated legislation and to bring to the notice of Parliament whether delegated legislation is within permissible limit or not. It consists of fifteen members appointed by the Speaker for a year. It represents all political parties in the House in proportion to their respective strength in the House The Chairman is usually a member of the opposition and Ministers are debarred from the membership of the Committee. It scrutinizes the statutory rules, orders, sub-rules, bye-laws etc, made by any Administrative body and reports to the House whether the delegated power has been exercised properly within the limits provided under the Parent Act and Constitution. On the pattern of this Committee in the Lok Sabha, a Committee on Subordinate legislation has been formed in Rajya Sabha as well. The Committee of Rajya Sabha was appointed in 1964. It also consists of 15 members who are nominated by the Chairman of the Rajya Sabha. The Chairman of the Committee is also appointed by the Chairman of the House. With the institution of Rajya Sabha Committee, Parliamentary control of delegated legislation in India has become more effective, for the two Committees of both Houses can scrutinize many more rules per year than could have been done by one Committee.

The Committee on Subordinate Legislation in India performs useful works by scrutinizing the orders, rules, regulations, etc. make by the executive in the capacity of delegate. Through such committees Parliament controls the delegated legislation in an effective manner. The Committees scrutinize the subordinate legislation on basic provisions of Parent Act. This process involves the provision of laying the rule, regulations, orders, etc., before the Parliament. The intention behind this procedure is to make it public to the legislative, so that provisions under subordinate legislation may be discussed by the House during debates or on special motions.

The reports of the Committees are instructive and informative and throws a flood of light on the mode of parliamentary control over delegated legislation in India. As a result of the Committees’ suggestions many improvements have been made in the rules as well as in the provisions regarding parliamentary supervision. These have made many useful reports for the improvements of the process of delegated legislation.

Q. 7 (b). Describe procedural control over Delegated Legislation in India.

Ans. Procedural control over Delegated Legislation.- Since parliamentary control is not effective, certain procedural safeguards have been provided, which are relevant to keep constant watch over the exercise of this power by the administrative authorities. Cecil Carr puts great emphasis on this aspect. He suggests the following five heads:

(1) The authority exercising delegated legislation should be identifiable and trustworthy.

(2) The limits of delegated authority should be clearly defined.

(3) The interests likely to be affected should be consulted.

(4) The rules, etc., should receive enough publicity.

(5) There should be a provision for revocation or amendment of the rules.

The methods of procedural control can be studied under the following heads :

(1) Prior consultation on interests likely to be affected by proposed delegated legislation.

(2) Prior publicity of proposed rules and regulations.

(3) Publication of delegated legislation.

(i) Departmental practice regarding prior consultation of interests. The desire of Government department, says Prof. Griffith, to issue efficient and workable statutory instruments clearly makes the practice of consultation necessary. As Sir Cecil Carr has said, ‘It is unthinkable that any important rules would be made about Solicitors in England. without consulting the Law Society or about doctors without consulting the British Medical Association or about local Government without consulting the County Councils Association and the Association of Municipal Corporations.

Many a time, practice has been adopted that when proposed regulations are to be adopted, all the concerned associations whose interests are to be affected are informed about the introduction of the regulations and representations are made, objections heard and, if proper, alterations are made. There are many examples to the effect, which show conclusively that in words of Earl Russel, “Government departments do not write it down in a closed room and evolve these regulations out of their own hands……….they do their best to adopt them to the circumstances for which they are intended”

Some Acts provide not only for consultation of interested bodies but also for the consultation of certain advisory bodies which are formulated for such purposes. There are certain advisory bodies, says Prof. Griffith, whose purposes are expressed by the originating statute to be the consideration of draft regulations. Apart from these there are a large number of advisory bodies which have a general advisory function and their influence on policy and administration does, in practice, affect the type and content of subordinate legislation. This practice is in the fitness of the things, because by this method administration ensures the participation of affected interests and thus avoids various possible hardships.

In India, practice of prior consultation of interests likely to be affected by delegated legislation has been held to be mandatory in some cases. In Banwari Lal Agrawal v. State of Bihar, (AIR 1961 SC 849) the Supreme Court has held that Section 59 of Mines Act, which requires reference of draft regulations to Mining Boards in order to consult them is mandatory and regulations made in contravention of this requirement would be invalid. But in certain cases e.g.. Ibrahim v. RTA (AIR 1953 SC 79) prior consultation with affected interest was held to be directory.

Thus, the method of prior consultation has become more and more common during the course of this century. Today, says Prof. Griffith,” if a minister makes a regulation, which affects soon interested group which has not been consulted, that group would often protest vigorously”

(2) Prior publicity of proposed rules and regulations.- Another procedural safeguard against delegated legislation is prior publicity of proposed rules and regulations, so that persons to be affected by the regulations may know it before hand and make representations if they are to be aggrieved. In India, the practice of prior publication has been adopted wherever prior consultation has been deemed necessary. Some statutes provide for publication in the official Gazette, whereas others do not leave the matter at the discretion of the administrative authority. According to Section 23 of the General Clauses Act. 1897, the authority shall publish the draft rules for information of affected interests in such manner as it deems sufficient.

(3) Publication of Delegated legislation.-Publication of any law, rule or regulation, having force of law is extremely necessary to ensure full justice to the public. Law should be ascertainable and clear to the persons who are to be affected by it. It should be amply published, so that it may not come to the public as a surprise, which may create difficulties. If it is not known to persons, it would not be possible for them to regulate their conduct. It is, therefore, very significant that rules and regulations made by administrative agencies are published

Publication of delegated legislation has been essential requirement for its validity by the Courts. Thus, in well-known case Harla v. State of Rajasthan, AIR 1951 SC 467] the Supreme Court held that unless the Act or any other instrument having the force of law is made for public it cannot be said to have any force. In this case, the Apex Court observed that it is a principle of natural justice that the laws should be known to the public. It should be properly made and published. Publicity and accessibility are requirements of natural justice and they must be complied with. Therefore, to give legal force to any Act, or instrument including rules, regulations, etc., it is necessary that they should be published and made known to the public.

In Narendra Kumar v. Union of India, [AIR 1960 SC 430] clause 4 of the Non-Ferrous Metals (Control) Order, 1958, prohibited acquisition of non-ferrous metal except under a permit issued by the Controller” in accordance with such principle, as the Central Government may from time to time specify” The enabling section in the Parent Act (Section 3) required all rules to be made under it notified and laid before both Houses of Parliament. The Central Government communicated to the Chief Industrial Adviser, the permit-issuing authority, the relevant principles in a letter. These principles were nowhere notified. The Supreme Court held that they were not legally effective for want of proper publication.

If may be noted that there is no general statute requiring publication of the rules and orders. It would be desirable if some general provision is added to the General Clauses Act, 1987, on the lines of the statutory Instruments Act. 1946 in England.

Q. 7 (c). Discuss the judicial control over Delegated Legislation.

Can the Courts invalidate the rules made by the government under powers delegated to it by Parliament? If so, on what grounds? Discuss each of them.

How does the judiciary controls Delegated legislation? Explain it with reference to the doctrine of ultra vires in this context.

Ans. Judicial Control of Delegated Legislation.- Judicial review of legislation is an essential feature of the Indian Constitution Law. Judiciary exercises effective control over delegated legislation in India. Its validity can be examined on several grounds. These grounds are far wider than those available in England. Whenever, the law made by Executive is found to be inconsistent with the provisions of Constitution or it is ultra vires the Parent Act which gives the law making power to the Executive, it is declared null and void by the court. The power of examining the validity of delegated legislation in India, has been vested in the Supreme Court and High Courts.

The Constitution by incorporating a list of fundamental rights of the citizens has widened the ambit of judicial review.

In India, so far as the jurisdiction of the court to examine subordinate legislation is concerned, delegated legislation may be held to be invalid on account of anyone of the following reasons:

(1) The enabling Act being ultra vires.

(2) The subordinate legislation violating the Constitution.

(3) The subordinate legislation being ultra vires the delegating Act.

1. A law will be ultra vires if it violates a constitutional prohibition. (a) Implied constitutional limit. Where the law is unconstitutional it is devoid of any effect and is unenforceable. It is now settled that there is a limit beyond which delegation may not go. The limit is that essential powers of the legislature cannot be delegated which consist in the determination of choice of the legislative policy and formally enacting that policy into a binding rule of conduct. The Legislature. accordingly, may not delegate its function of laying down legislative policy to an outside authority in respect of a measure and its formulation as a rule of conduct. A law may, therefore, be challenged on the ground that in making delegation of power it has transgressed the permissible limits.

Thus in In re Delhi Laws Act case, the majority of the Judges held that exercise of delegated law-making power invalid because the enabling Act was ultra vires for it had exceeded the constitutional limits in permitting the executive to repeal a law existing in the area. Sometimes certain provisions in the Act may be unconstitutional on the ground of excessive delegation. For instance in Hamdard Dawakhana v Union of India, [AIR 1960 SC 554]. Section 3(d) of the Drugs and Magic Remedies (Objectionable Advertisements) Act was declared ultra vires. The whole Act was not struck down, because the other provisions were found to be good law. The Court held that the words used in Section 3 (d) do not lay down any certain criteria or proper standards and surrender unguided and uncannalised power to the executive. There must be definite boundaries within which the powers of administrative authority are exercisable. Delegation should not be so indefinite as to amount to any abdication of the legislative function.

(b) Express Constitutional limit.-No Legislature, has the power to transgress the distribution of powers embodied in the Constitution. The Legislative powers of the Union are divided between Parliament and the State legislature. The ambit and limits of the respective powers are defined in the Constitution. Union Parliament can make laws for the whole of India or any part thereof in respect of matters in the Union as well as concurrent list. Residuary powers belong to the Union. Accordingly, an Act of Parliament which encroaches upon a subject in the State List is invalid. Article 245 of the Constitution empowers a State Legislature to make laws for the whole or a part of the State. In re Delhi Laws Act case, the Court held exercise of delegated law-making power invalid because the enabling Act had transgressed its constitutional limits.

(c) Constitutional Rights.- Another condition leading to unconstitutionality of an Act is, where the legislature has the power to make laws on a particular subject but such power is subjected to certain restrictions which are not observed by it. Thus, no legislature can pass an Act violative of fundamental rights, provision relating to commerce or Article 300-A. The Supreme Court in Chintamani Rao v. State of M.P [AIR 1951 SC 118] held, C.P. Regulation of Manufacturers of Biris Act, 1948, void since it violated Article 19 (1) (g) of the Constitution.

2. Subordinate Legislation in violation of the Constitution.-The decision of the Supreme Court in M/s. Dwarika Prasad v. U.P. [AIR 1954 SC 224], is an instance of subordinate legislation in conflict with the Constitution, being held ultra vires.

Here, a few provisions of the U.P. Coal Control Order, 1953 made under Section 3 (2) of the Essential Supplies Act, 1946, were declared ultra vires as infringing Article 19 (1) (g).

In Southern Agrifurane Industries Ltd. v. C.T.O. [(2005) 2 SCC 575], the Apex Court observed that while dealing with the constitutionality of delegated legislation the Court is well within its power to consider relevance of the background in which the power of administrative rule making has been exercised. While determining the constitutionality of delegated legislation no straitjacked approach is desirable.

According to the view expressed by the Apex Court, in those cases which involve serious infringement of public interest, proportionality approach is better approach. Thus, ‘context’ has become an important factor while determining the constitutionality of delegated legislation. (Food Corporation of India v. Bhanu Lodh, (2005) 3 SCC 618).

In Rashid Ahmad v. Municipal Board [AIR 1950 SC 163), certain bye- laws made by a Municipality were held constitutionally void under Article 19 (1) (g).

In Narendra Kumar v. Union of India. [AIR 1960 SC 430] the Supreme Court considered the question whether under a valid Act the point of unconstitutionality of the delegated legislation would be raised or not. There the Non-ferrous Metals Order, 1958, made under Essential Commodities Act, 1955, was challenged. The Supreme Court said that though a law might not be unconstitutional an order made thereunder could still be challenged under the Constitution, because the law could not be presumed to authorize any thing unconstitutional.

In Laxman v. State of M.P. [(1983) 3 SCC 275] the Supreme Court of India declared an order null and void being violative of Articles 14,19 (1) (c). 19 (1) (f) and 301.

In Central Inland Water Transport Corporation Lad. v. Brojonath [AIR 1986 SC 1571] the Supreme Court declared Rule 9 (1) of Central Inland Water Transport Corporation Ltd. Services, Discipline and Appeal Rules. 1979 unconstitutional being violative of Articles 19. 39 and 41. The Supreme Court held that such rule affects Article 14 therefore, the impugned rule is struck down as violative of Article 14.

3. Subordinate Legislation being ultra vires of the delegating Act. Delegated legislation may be ultra vires the Parent Act or enabling statutes or any general law and may be challenged on these grounds.

The various circumstances which may attract the invalidating rule of ultra vires to the exercise of power of delegated legislation may be stated as follows.

(a) In excess of delegated authority. The delegated power is limited by the terms of delegation. If the rules are not within the powers entrusted by the Legislature, they are liable to be challenged as ultra vires. It is observed here, however, that the effective application of the rule that the delegated powers must not go beyond the terms of the enabling authority is conditioned by the delegating Act defining the precise limits of the law making power. Where the legislature has delegated the power to make rules in very wide terms, there would be little scope left to apply the rule of ultra vires.

The delegated authority must make rules within the powers delegated or follow the procedure prescribed in the Parent Act. Where it does not, the Court will upset it.

The Supreme Court in Kerala State Electricity Board v. Indian Aluminium Company, (AIR 1976 SC 1031 at 1040) held that in all circumstances the power of delegated legislation should be exercised within the scope of the rule-making power provided in the statute.

(b) In conflict with the delegating statutes. Subordinate legislation to be valid, must not be in conflict with or repugnant to the delegating Act. In Ram Prasad v. State. [AIR 1952 All 848), Section 42 of the U.P. Panchayat Raj Act, 1947, laid down that every case or proceeding cognizable by Panchayat Adalat (Village Court) must be tried by a Bench constituted in the manner provided in the Act. The Court held the rule invalid on the ground of its being inconsistent with the main provision of the delegating Act.

Occasionally, the question has arisen whether a subordinate law becomes invalid, though otherwise within the scope of the delegating Act if it is in conflict with some other general provisions of law statutory or non-statutory.

It is doubtful if the Courts in England in the absence of an express authorization by Parliament would be willing to give such an operation to subordinate legislation.

(c) Disregard of prescribed procedure. A rule may become ultra vires for not being made in the manner prescribed by the enabling Act. Where the Parent Act has laid down the procedure to be followed by the administrative body while exercising law making power under it, it must follow that procedure, otherwise the delegated legislation may be declared bad. Delegated legislation in excess or contravention of delegated power is bad on the ground of procedure (District Collector v. C.D.G. N.T. Association, AIR 1989 SC 989).

In State of Tamil Nadu v. P. Krishnamurthy, (AIR 2006 SC 1622), the Supreme Court laid down that a delegated legislation will be invalid on the ground of infringement of the principles of natural justice, where the enabling Act under which the delegated legislation is made, makes the observance of the principles of natural justice necessary for doing such an act.

(d) Mala fide. There is no Indian case where a statutory rule has been held invalid on the ground of mala fide exercise of the rule-making power. But, if it is established that the rule-making authority has acted with ulterior motive, the Court would reject the rule.

(e) Unreasonableness. In India, the principle is well-settled that the Court will not examine the reasonableness of a rule.

But a contrary view had been taken in the cases of Surya pal Singh v. U.P. Government [AIR 1951 All 474 (F.B.)] and Brij Bhushan Lal v. State of UP. AIR 1952 All 868]. Both these decisions assumed that the Courts have a jurisdiction to examine the reasonableness of a statutory rule though no reason or authority is cited for the view. In S.B. Yadava v. State of Haryana (AIR 1981 SC 561) the pronouncement of the Court came very close to the proposition that unreasonable rules are ultra vires. In a large number of cases, the Supreme Court has held that Article 14 contained the principle of reasonableness.

Sub-delegation and its Necessity and Desirability

Q. 8 (a). What is meant by Sub-delegation? Discuss its necessity and desirability.

What is sub-delegation? Explain.

Ans. Sub-delegation and its necessity and desirability.-When a statute confers legislative powers on an administrative authority and that authority further delegates those powers to another subordinate authority or agency, it is called sub-delegation.

The need of sub-delegation is sought to be the basis of following factors:

(i) Power of delegation necessarily carries with it the power of further delegation.

(ii) Sub-delegation is ancillary to delegated legislation and objection to such process is likely to subvert the authority which the legislature delegates to the executive.

Generally sub-delegation of legislation is impermissible. It can be permitted when such power is expressly conferred under the statute. Because sub-delegate cannot act beyond the scope of power delegated to him.

In Narain Das v. State of M.P. (AIR 1974 SC 1232), the Supreme Court held that if sub-delegation is to be made through regulation, it could not be effected by passing a resolution.

Sub-delegation is subject to those controls which are exercised over delegated legislation. The doctrine of substantive ultra vires applies to sub-delegation also. Therefore, it is clear that a sub-delegate cannot act beyond the scope of power sub-delegated to him.

The practice of sub-delegation has been criticised by the jurists. Thus, S.A. De Smith states ” there is strong presumption against construing a grant of delegated legislative power as empowering the delegate to sub- delegate the whole or any substantive part of the law-making power entrusted to it”. Bachawat, J., in the leading case-Barium Chemicals Lid.

v. Company Law Board (AIR 1967 SC 295) has observed- “Naming of a delegate to do an act involving discretion indicates that the delegate was selected because of his peculiar skill and the confidence reposed in him and cannot redelegate that authority”. As a general rule if the statute directs that certain acts shall be done in a specified manner or by certain persons, their performance in any other manner than that specified or by any other person than one of those named is impliedly prohibited. Normally a discretion entrusted by Parliament to an administrative organ must be exercised by that organ itself.

Droit Administratif, Henry VIII Clause, Conditional Legislation

Q. 8 (b). Write short notes on the following:

1. Droit Administratif.

2. Henry VIII Clause.

3. Conditional Legislation.

Ans. (1) Droit Administratif. Dicey defines Droit Administratif as that portion of French Law which determines:

(i) the position and liabilities of state officials;

(ii) the civil rights and liabilities of private individuals in their dealing with officials as representatives of the State, and

(iii) the procedure by which these rights and liabilities are enforced.

In France, matters concerning State and the State officials are not decided by the ordinary courts. These are decided by the administrative courts. In deciding these matters, special rules are applied by the administrative courts, which are developed by them. If there arises any conflict of jurisdiction between ordinary courts and administrative courts, such conflicts are decided by an agency known as Tribunal des conflits. In France, Droit Administratif is a potent weapon in protecting the Government officials from the control of ordinary courts. Conceil d’Etat is the supreme administrative court. This court is not only an adjudicatory but it is also a consultative body.

The early common criticism of Droit Administratif was that it cannot protect the private citizen from the excesses of the administration. However, later researches have shown that no single institution has done so much for the protection of the private citizens against the excesses of the administration as has been done by the Conceil d’Etat (Hamson: Judicial Control of Administrative Discretion).

2. Henry VIII Clause. There are various forms of delegated legislation. The reason for this is that there is no uniform pattern of delegation in the delegated legislation. But the parameter for determining the question of validity is the same. That is, the legislature must lay down the policy of the Act.

Sometimes the power is conferred on the Government to modify the existing statute for the purpose of removing difficulties so that it may be brought into full operation. When the legislature passes an Act it cannot foresee all difficulties which may arise in implementing it. Legislature, therefore, introduces in the statute a removal of difficulty Clause envisaging that Government may remove any difficulty that may arise in putting the law into operation, that is called in England Henry VIII Clause and indicates “executive autocracy”

Henry VIII was the King of England in the 16th century. During his regime he enforced his will by using instrumentality alight of Parliament for the purpose of removing difficulties which came in his way. The origin of removal of difficulties clause is thus linked with the name of Henry VIII.

In England, according to the Committee of Minister’s power, the king is regarded popularly as impersonation of executive autocracy and such a clause cannot but be regarded as inconsistent with principle of parliamentary government.

In India Article 372 of the Constitution conferred power of making adaptations and modification in the existing law to bring it in accord with the Indian Constitution. However, it may be noted that such a provision is usually for a limited period. The Supreme Court of India also takes a liberal view of the removal of difficulties clause.

The use of Henry VIII Clause conferring power on a minister to modify the provisions of Acts of Parliament should be abandoned in all but most exceptional cases and should not be permitted by Parliament except upon special ground stated in a ministerial memorandum of bill. Henry VIII clause should never be used except for sole purpose of bringing the Act into operation but subject to the limit of one year. In India, it cannot violate the doctrine of excessive delegation as laid down in In Re Delhi Laws Act case. Accordingly, it cannot go beyond the permissible limits of delegation of legislative power.

Generally, the judiciary takes a liberal view of the ‘removal of difficulties clause. In Gammon India Lid. v. Union of India, [AIR 1974 SC 960] Section 34 of the Contract Labour (Regulation and Abolition) Act, 1970 provided that if any difficulty arises in implementing the provisions of the Act. the Central Government may make such provisions, not inconsistent with the provisions of the Act as appeared to it to be necessary or expedient for removing difficulty. The Supreme Court held that Section 34 of the Act is valid as it does not amount to excessive legislation. It simply authorises the Government for removal of difficulties which might arises in giving effect to the law.

3. Conditional Legislation. Where the Legislature lays down the principle of a particular statute and then ‘eaves the following to the Executive or to the delegate, it is called “conditional legislation. It includes the following-

(1) the time when provision should be enforced,

(2) the period during which it is to be implemented or suspended, and

(3) the place where it should be applied

In delegated legislation, the delegate completes the legislation by supplying the details with in the limits prescribed by the statute. In case of conditional legislation, the power of the legislation is exercised by the Legislature conditionally leaving it to the discretion of the external authority, the time and manner of carrying the legislation into effect, as also the determination of the area to which it is to extend. The above principles have been confirmed in Bhatnagar v. Union of India, (1957 SCR 703) and Hamdard Dawakhana v. Union of India. (AIR 1960 SC 555). Rent Control Act, 1960 enables the State Government by notification to apply all or any of the provisions of this Act, to any other area in the State, with effect from such date as may be specified in the notification, and cancel or modify any such notification. This is plainly a cause of conditional legislation because the Government is not empowered to vary or alter any of the provisions of the Act, but is enabled only to determine the area to which it should apply or cease to apply.

The Act entitles the Government under Section 34 by notification, to make rules to carry out the purposes of the Act, such as, the procedure to be followed by the Controller and the Rent Tribunals and the other authorities in the performance of their functions, and the manner in which notices under this Act should be given and served, the procedure to be followed in the enquiry and the fee leviable on the application. This type of delegation is styled as conditional legislation and is inevitable because the Legislature lacks both the leisure and the skill necessary to work out the various functions laid down in the Act, and is permitted in law.

In Hamdard Dawakhana v. Union of India, (AIR 1960 SC 555), it was observed by the court that “the distinction between conditional legislation and delegated legislation is this, that in the former the delegated power is that of determining when a legislative declared rule of conduct shall become effective and the later involves delegation of rule-making power which constitutionally may be exercised by the administrative agent. This means that the Legislature having laid down the broad principles of its policy in the legislation can then leave details to be supplied by the administrative authority. By delegated legislation the delegates complete the legislation by supplying details within the limits prescribed by the statute and in case of conditional legislation the power of legislation is exercised by the Legislature conditionally leaving to the discretion of an external authority, the time and manner of its legislation into effect as also the determination of area to carrying which it is to extend.

Patna High Court has distinguished between delegated legislation and conditional legislation in Raghunath Pandey v. State of Bihar (AIR 1982 Pat. 1). The Court reiterated the decision of Supreme Court in Hamdard Dawakhana case.

Institution of Ombudsman (Lokpal)

Q. 9 (a). What is meant by Ombudsman (Lokpal)? What steps have been taken in India for establishing this institution?

Discuss whether the institution of Ombudsman (Lokpal) in India for redressal of grievance of citizens against mal- administration.

How far Lokpal is desirable in India? Explain in the light of recent development.

Ans. The Institution of Ombudsman (Lokpal)-Its desirability. The administration today enjoys a vast reservoir of powers to order and affect the day-to-day life of the people. This tremendous increase in powers has generated the possibilities and opportunities of abuse of the powers by the administration at the same time. In the name of public good, it may disregard the individual interest. Therefore, it was necessary to evolve an adequate and effective mechanism to contain these dangers by keeping the administration under control. In some countries, a method was devised, which would to quote one writer, “register a small man’s battle against redtape and administrative injustice.” Sweden tried it in 1800, first against the monarch and then against administration. It was copied by Norway and New Zealand in 1962.

There are a number of aspects of administrative functioning which fall outside the judicial purview. In order to exercise control over these aspects it has become necessary to establish some institution competent enough to remove the grievances of the public. The problems of citizen’s grievance which have been germinated by a welfare State have caught the attention of the world for establishing an institution like Ombudsman. The institution of Ombudsman is meant for the achievement of these objectives.

Lokpal in India. In the year 2013, Lokpal and Lokayukta Act was enacted by the Parliament for the establishment of Lokpal and Lokayuktas ‘Lokpal’ means the body established under Section 3 of the Lokpal and Lokayukta Act. Section 3 of this Act lays down that the Lokpal shall consist of (a) a Chairperson, who is or has been a Chief Justice of India or has been a Judge of the Supreme Court or an eminent person who fulfils the eligibility specified in clause (b) of sub-section 2; and (b) such number of Members, not exceeding eight out of whom fifty percent shall be Judicial Members.

Proviso to Section 3 (2) says that not less than fifty percent of the members of the Lokpal shall be from among the persons belonging to the Scheduled Castes, the Scheduled Tribes. Other Backward Classes. Minorities and Women.

According to Section 3 (3), a person shall be eligible to be appointed-

(a) as a Judicial Member if he is or has been a Judge of Supreme Court or is or has been a Chief Justice of a High Court;

(b) as a Member other than a Judicial Member, if he is a person of impeccable integrity and outstanding ability having special knowledge and expertise of not less than twenty-five years in the matters relating to anti- corruption policy. public administration, vigilance, finance including insurance and banking, law and management.

According to Section 3 (4) of the Act, the Chairperson or a Member shall not be-

(i) a Member of Parliament or a member of the legislature of any State or Union territory,

(ii) a person convicted of any offence involving moral turpitude;

(iii) a person of less than forty-five years of age, on the date of assuming office of the Chairperson or Member, as the case may be:

(iv) a Member of any Panchayat or Municipality.

(v) a person who has been removed or dismissed from the service of the Union or a State

Appointment of Chairperson and Members. Section 4 of the Act lays down that the Chairperson and Members, shall be appointed by the President after obtaining recommendations of a Selection Committee consisting of-

(a) The Prime Minister-Chairperson;

(b) The Speaker of the House of People-Member:

(d) The Chief Justice of India or a Judge of the Supreme Court nominated by him-Member;

(e) One eminent jurist as recommended by the Chairperson and Members referred to in Clauses (a) to (d) above to be nominated by the President-Member.

Term of Office of Chairperson or Members. Section 6 of the Act says that the Chairperson and every Member shall on the recommendation of the Selection Committee be appointed by the President by warrant under his hand and seal and hold office as such for a term of five years from the date on which he enter upon his office or until he attains the age of seventy years whichever is earlier.

Powers of Lokpal. According to Section 14 of the Act, the Lokpal has jurisdiction to inquire into allegations of corruption against anyone who is or has been Prime Minister or a Minister in the Union Government or a Member of Parliament, as well as officials of the Union Government under Groups A, B, C and D. The Lokpal can also inquire into allegations of corruption against Chairpersons, Members, Officers and Directors of any Board, Corporation, Society, Trust or Autonomous Body, either established by an Act of Parliament or wholly or partially funded by the Centre. It also covers any Society, Trust or Body that receives foreign contribution above Rs. 10 Lakh.

The Lokpal cannot inquire into any corruption charges against the Prime Minister if the allegations are related to international relations. external and internal security, public order, atomic energy and space, unless a Full Bench of the Lokpal, consisting of its Chairperson and all Members. considers the initiation of a probe, and atleast two third majority of the members approve of it. Such a hearing should be held in camera and if the complaint is dismissed the records shall not be published or made available to anyone.

Q. 9 (b). What are functions and powers of Lokayukta ? Discuss.

Ans. Lokayukta in States. Several States in India have enacted the Lokayukta statutes. These States are Orissa (1970). Maharashtra (1971), Rajasthan (1973), Bihar (1973), Uttar Pradesh (1975). Madhya Pradesh (1981). Himachal Pradesh (1983), Kerala (1983), Karnataka (1984), Gujarat (1975) and Andhra Pradesh (1983). Under U.P., Lokayakta and Up- Lokayukta Act, 1975, the Lokayakta shall be appointed by the Governor with the consultation of the Chief Justice of the High Court and Leader of the opposition in the Legislative Assembly Up-Lokayukta shall be appointed with the consultation of Lokayukta. The Lokayakta shall be a person who is or has been a Judge of the Supreme Court or a High Court They should neither be a member of any legislature nor connected with any political party or any profession. He shall hold office for five years.

Functions of the Lokayukta. The Lokayukta or Up-Lokayukta may investigate any action taken by (a) a minister or a secretary, or (b) any public servant including a public servant notified for this purpose by the laint which must State Government. He will investigate the matter on complaint be complained by an affidavit and complainant should not have any other remedy. The State Government may exclude any complaint involving a grievance or an allegation against a public servant, from the jurisdiction of the Lokayukta or Up-Lokayukta. On complaint if the Lokayukta or Up- Lokayukta is satisfied on investigation that injustice or undue hardship has been done, he shall recommend to the public servant and the competent authority concerned that such injustice shall be remedied or redressed. If he is not satisfied with the action he may make special report to the Governor.

The Lokayukta may investigate any action “taken by way of decision. recommendation or finding or in any other matter, and includes failure to act” which is taken by, or with the general approval of (i) a minister-other than the Chief Manister, (ii) a Secretary, or (iii) any public servant in any case wherein a complaint involving a ‘grievance’ or a grievance is made in respect of such action.

The Lokayukta and Up-Lokayukta shall present annually a consolidated report on the performance of their functions under the Act of the Governor.

Natural Justice

Q. 10 (a). What do you know by Natural Justice? Discuss.

‘Natural justice is the name given to certain fundamental rules which are so necessary to the proper exercise of power, that these are projected from the judicial to administrative sphere’. Comment.

Ans. Natural Justice. The term “Natural justice” signifies certain fundamental rules of judicial procedure. According to Lord Widgery in R. v Home Secretary, Ex., P. Hosenball, [(1977) | WLR 766], “the principles of natural justice are those fundamental rules, the breach of which will prevent justice from being seen to be done”. These rules do not require that the proceedings of an administrative Court must be conducted as in a court of law or in accordance with strict rules of evidence, but they seek to ensure that justice shall not only be done, but also be seen to be done. Natural Justice is the name given to certain fundamental rules which are so necessary to the proper exercise of power that they are projected from the judicial to the administrative sphere.

It is said that rules of natural justice have its origin in England and perform a function within a limited field similar to the concept of procedural “due process” as exists in the United States in which they lie embodied. According to United States Supreme Court, the principles of natural justice are implied in the procedural aspect of “due process”.

The aim and object of the principles of natural justice is to secure justice and to prevent miscarriage of justice. They provide minimum protection to the rights of the individuals against the arbitrary procedure that may be adopted by the judicial or quasi-judicial authority while making an order affecting those rights.

In India, the contents of natural justice were discussed in Gopalan v. State of Madras, (1950 SCR 88), in connection with the interpretation of the “procedure established by law” (clause of the Constitution). Fazal Ali, J., interpreted this clause as covering the rules of natural justice. He relied on Willes “Constitutional Law” and accordingly accepted four essentials of the concept of natural justice. They are as follows:

(1) Notice.

(2) Opportunity to be heard.

(3) An impartial tribunal.

(4) Orderly course of justice.

(1) Notice. A person cannot defend his case, unless he knows the formulation of subjects and issues involved in the case. Generally, a notice would be regarded as adequate, if it contains-

(a) time, place and nature of hearing.

(b) legal authority under which hearing is to be held.

(2) Opportunity to be heard. One of the cardinal principles of natural justice is that no man shall be condemned unheard (audi alteram partem [N.B. For the detailed study of this principle, please see answer to Q12].

(3) An impartial tribunal.-[N.B-For detailed study of this point please see answer to Q. 11].

(4) Orderly course of justice. Sometimes proceedings are started against a person both in the department and in a court of law. The question arises what will be impact of a judicial decision on administration adjudication. In Corporation of the City of Nagpur v Ramchandra. (AIR 1984 SC 626) it was held by the Apex Court that merely on the ground that the accused is acquitted by a court of law, the power of the authority to continue the departmental enquiry and action is not taken away, nor is its direction in any manner fettered because in a judicial proceeding the standard of proof differs much from that in an administrative proceeding

In Bharat Bank v. Employees (AIR 1950 SC 188) the Supreme Court has held that a tribunal must possess the following characteristics

(a) The proceedings before it must commence on an application which is in the nature of plaint.

(b) It must have the powers of a Court relating to discovery inspection and taking of evidence

(d) It must allow legal representation

(e) It must decide on the basis of the evidence before it and according to the provisions of the statute.

(f) The members constituting a tribunal must be qualified to be judges According to I.P. Massey (Administrative Law III Edition P 145)-“In India, there is an undeniable need for such an agency which could supervise the functioning of decision-making and rule-making administrative agencies Such an agency would help in the development of administrative justice as a system.

Thus in simple words the rules of natural justice can be summarised in the following manner :

(i) It signifies that one cannot be a Judge in his own cause

(ii) One who hears, should decide.

(iii) Opportunity to the parties of being heard and producing evidence in support of their allegation.

(iv) Right to cross-examination.

The broad principles of natural justice are as follows :

(i) A quasi- judicial authority cannot make any decision adverse to any party without giving him an effective opportunity of meeting any allegation against him.

(ii) Every person whose civil right is affected must have a reasonable notice of the case he has to meet.

(iii) He must have a reasonable opportunity of being heard in his defence.

(iv) He must have the opportunity of adducing all relevant evidence on which he relies, the evidence of the opponent should be taken in his presence and he must have the opportunity of cross-examining the witness examined or relied upon by the opponent, and documents which are necessary for the purpose of an effective exercise of the foregoing rights. should not be withheld from such person.

These rules are of a far reaching importance and are used by the courts for humanizing administrative action. Prof. Wade has rightly remarked- “These are of course indispensable to the administration of justice in courts of law. They should equally apply to the decisions of statutory tribunals. Finally they should apply also to administrative act in so far as the nature of the case admits. For, all powers ought to be exercised fairly both in appearance and reality”. In Union of India v. T.R. Verma. (AIR 1957 SC 882], the Supreme Court of India laid down stress on the importance of these rules and held them as essential attributes of justice. The importance of the concept is also recognised in the sphere of administration. In the above case, recording of evidence was held necessary. And in enquiry cases, as well as Enquiry Commission acting as an administrative agency, these rules of natural justice should be followed. “The right of a person to be given a hearing, before he suffers in some way under the official rod, is a vital principle which, if only the Judges themselves would apply consistently, would soon achieve recognition in every branch of Governmental activity.”

The rules of natural justice were originally applied to judicial proceedings. Gradually they came to be applied to quasi-judicial proceedings. The Supreme Court in A.K. Kraipak and Others v. Union of India, A.IR. 1970 S.C. 150], has extended the scope of principles of natural justice to administrative proceedings. The judgment in the aforesaid case strikes an optimistic note but it is sad to note that the courts have non-constantly upheld the extension of the rules of natural justice. The rule of natural justice received a set back in the case of Union of India v. J.N Sinha (A.I.R. 1971 S.C. 40) in which the court observed.

“Rules of natural justice are not embodied rules nor can they be elevated to the position of fundamental rights. These rules can operate only in areas not covered by any law validly made. Their aim is to secure justice or to prevent miscarriage of justice. They do not supplant the law but supplement it. If a statutory provision can be read constantly with the principles of natural justice the Courts should do so. But, if a statutory provision either specifically or by necessary implication excludes the application of any rule of natural justice, then the courts cannot ignore the mandate of the Legislature or statutory authority and read into concerned provision the principles of natural justice.”

In Hari Pada Khan v. Union of India, [(2005) 7 SCC 764], the Apex Court held that principles of natural justice are not rigid or immutable, therefore, they cannot be used to paralyse the exercise of administrative power when need of promptitude and urgency demand immediate action.

It is to be noted here that for the application of principles of natural Justice there must be some dispute between the contending parties [K. L Tripathi v. S.B.I., A.I.R. 1984 S.C 273].

In Matadayal v. Commercial Tax Officer [A.LR. 1985 S.C. 667] it was held that a decision based on information granted at the back of the party affected, without giving him an opportunity to rebut that information, or material, is opposed to the principles of natural justice. But, where a party, coming to know that the tribunal was using a document, raised no objection that had no opportunity of rebutting it, nor asked for an adjournment to meet the statements made in the document, a superior Court will not entertain such objection at a later stage.

Where a quasi-judicial authority, without exercising his own judgment and without giving the parties an opportunity of meeting the point of view adopted by a superior Officer, gives, his decision in accordance with instructions received from the superior Officer, there is an infringement of the principles of natural justice.

It is of the essence of judicial and quasi-judicial decision that the authority making such decision should be able to act impartially. objectively and without any bias. This principle is violated when the judicial or quasi-judicial authority is interested in any party before him.

In the case of Board of Mining Examination v. Ramjee (A.I.R. 1977 S.C. 967], the Supreme Court has disfavoured the extension of natural justice rule to administrative fields. Krishna Ayer J., observed-

“The court opined that natural justice is not judicial cure for all administrative irregularities. There would be no reach of natural justice, if the facts and circumstances of the case show that the decision maker had acted fairly. There should be no undue expansion of natural justice without considering the administrative realities and other factors of a given case. otherwise the result would be disastrous”

The Supreme Court in Maneka Gandhi v Union of India (1978) 1 S.C.C. 248] equated the rule of ‘Natural Justice to the American “due process” and emphasized its application in administrative procedures. The Court felt the necessity of spelling out fair procedure in all these cases where the Legislature enacts a law which may affect the rights of an individual.

The Courts in India have been acting as vigilant sentinels on the qui vive to see that the principles of natural justice are not violated by a judicial or quasi-judicial authority A constitutional requirement of compliance with principle of natural justice is derived from the expression ‘reasonable restriction in clauses (2) to (6) of Article 19.

In Smt. Sownutha Vishunu v. Union of India (A.I.R. 1985 S.C 1618], the Supreme Court held that the right of hearing is a concomitant of the principles of natural justice.

In Ashok Kumar Yadav v. State of Haryana [A.I.R. 2000 S.C. 454]. the Supreme Court admitted that rule against bias is a principle of natural justice and it is applicable to administrative actions also.

In High Court of Judicature at Bombay v. S.S. Patil (A.I.R. 2000 S.C. 22), the Supreme Court observed that interference with departmental authority can be permitted while exercising jurisdiction under Article 226 of the Constitution, if such authority held proceedings in violation of the principles of natural justice or in violation of statutory regulations prescribing the mode of such inquiry if the decision of authority is vitiated by considerations extraneous to the evidence and merit of the cases or if the conclusion made by the authority on the very face of it is wholly arbitrary or capricious that no reasonable person could have arrived at such conclusion on grounds very similar to the above.”

In Karnataka State Road Transport Corporation v. Kotturappa, [(2005) 3 SCC 409], the Apex Court opined. “The question as to what extent principles of natural justice are required to be complied with would depend upon the fact situation obtaining in each case. The principles of natural justice cannot be applied in a vacuum. They cannot be put in any straitjacket formula. The principles prin of natural justice are furthermore not required to be complied with if it will lead to a mere empty formality.

Q. 10 (b) How far is the requirement of giving a reasoned decision a component of natural justice?

Ans. Reasoned decision-Natural Law Perspective.- Recording of reasons in support of the decision is regarded as a necessary part of natural justice. Every quasi-judicial authority must record reasons supporting the decision taken by it. In Siemens Engineering and Mfg. Co. v Union of India (A.I.R. 1976 S.C. 1785), the Apex Court has raised the requirement of reasoned decision to the pedestal of a basic principle of natural justice Bhagwati, J., speaking for the Court opined, “It is essential that administrative authorities and tribunals should accord fair and proper hearing to the persons sought to be affected by their orders and give sufficiently clear and explicit reason in support of the orders made by them Then alone administrative authorities and tribunals exercising quasi-judicial functions will be able to justify their existence and carry credibility with the people by inspiring confidence in the adjudicatory process The rule requiring reasons to be given in support of an order is. like the principle of audi alteram partem (No man should be condemned unheard) a basic principle of natural justice which must inform every quasi-judicial process and this rule must be observed in its proper spirit and mere pretence of compliance with it would not satisfy the requirement of law.”

The Constitutional Bench of the Apex Court has observed in S.N Mukherji v. Union of India (A.I.R. 1990 S.C. 1984) as follows-

“Keeping in view the expanding horizon of the principles of natural justice, we are of the opinion that the requirement to record reasons can be regarded as one of the principles of natural justice which govern exercise of power by the administrative authorities.”

It was observed by the Apex Court in T.R. Thandur v. Union of India [(1996) 3 S.C.C. 690] that the requirement of recording reasons or of speaking order is implicit even in the absence of express statutory provision in that regard.

Rule of against Bias

Q. 11. ‘No Person shall be a judge in his own cause.’ Discuss fully this rule.

What is the effect of ‘Bias’ on the administrative authority? Point out the different kinds of ‘Bias’.

Discuss the application of the ‘Rule against Bias’ making reference to the decided cases.

Ans. Rule against Bias. The rule against Bias signifies that (i) no man shall be a judge in his own cause and (ii) and Justice should not only be done but seen to be done. In other words, a judge is disqualified from hearing a case in which he has a pecuniary interest or any other interest likely to be real cause of bias. One of the essential elements of judicial process is that an administrative authority acting in a quasi-judicial manner should be impartial, fair and free from bias. The Supreme Court in G Sarana v University of Lucknow [A.I.R. 1976 S.C. 2428] laid down that one of the fundamental principles of natural justice is that in case of quasi- judicial proceedings, the authority empowered to decide the dispute between opposition parties, must be one without bias, by which is meant an operative prejudice, whether conscious or unconscious towards one side or the other in dispute.

The Supreme Court in the case of Ashok Kumar Yadav v. State of Haryana (AIR. 1987 S.C. 454) extended the principle of bias to the action of administrative bodies The Supreme Court held that, “It is also important to note that this rule is not confined to cases where judicial power stricto sensu is exercised” It is equally applicable to cases where an independent mind has to be applied to arrive at a fair and just decision between the rival claims of parties.

There are various types of bias, which are as follows-

(1) Subject-matter bias,

(2) Pecuniary bias,

(3) Personal bias.

(4) Department bias, and

(5) Policy bias.

1. Subject-matter bias. A judge may have a bias in the subject- matter of the litigation which means that he is himself a party or has some direct connection with the subject-matter of litigation. According to Griffith and Street (Administrative Law, 4th edition, p. 156) ‘only rarely will this bias invalidate proceedings.”

The Supreme Court in Nageshwararao v. APSRT Corporation (A.LR. 1955 S.C. 308) held that the Secretary of the State Transport Department as the Head of the Department, is disqualified from hearing the objections of private operators under the Motor Vehicles Act.

However, a mere general interest in the general object to be pursued would not disqualify the judge. Thus, a Magistrate who subscribed to the society for the prevention of cruelty to animals was not thereby disqualified from trying a charge brought by that body of cruelty to a horse [R. v. Dean Justices, (1881) 45 LT 439).

2. Pecuniary bias. Second type of bias is pecuniary bias. However. slight it may be, it will disqualify any person from acting as a Judge. According to Griffith and Street (Principles of Administrative Law, 4th Edition, p. 156), “a pecuniary interest, however slight, will disqualify, even though it is not proved that the decision is in any way affected.” If the pecuniary interest of the adjudicator is apprehended, though it is not proved, yet it would disqualify him. On these grounds, the Appellate Court had reversed the judgment of Lord Chancellor Cotenham in Dimes v. Grand Junction Canal Co. [(1852) 3 H.L. 759) Indian Courts invariably followed the decision in Dimes case. Following the principles Lord Wright of Privy Counsel in Vasallihadas case observed “The simplest type of bias is where the judge is shown to have pecuniary interest in the result of the proceedings, if that is so, it will be held at once that he is disqualified, however, small the interest and however clear it may be that his mind could not be affected.” The rule was well followed in Teejee Bhoy v. Assistanı Collector. Thana, A.I.R. 1965 S.C. 1096), when the then Chief Justice Gajendragadkar reconstituted the Bench for hearing the case because he was a member of the co-operative society for which the land in dispute was acquired.

3. Personal bias. The third type of bias is personal bias Personal bias has always been a matter of judicial interpretation. With the growing interdependence of human relations, cases of personal bias favouring one or other party have grown tremendously. Personal bias can be of two types (a) where the presiding officer has formed the opinion without finally completing the proceedings (Iqbal Singh v. Collector of Hoshiarpur. A.IR 1956 Punj 365]. (b) where he is interested in one of the parties either directly as party or indirectly as being related to one of the parties. If it is established that the adjudicator is the friend or relative or business associate of a party, then it would disqualify him. And to entrust him with the function of adjudication would certainly affect the fairness of justice Another circumstance when personal bias comes in picture is, when the adjudicator may be personally hostile to course of trial. It is a recognized principle that justice should not only be done but should manifestly and undoubtedly be seen to be done. Again in Ex-parte Mc-Courthly. (1924) Lord Hewart said, “Nothing is to be done which creates even a suspicion that there has been an improper interference with the course of justice.”

In A.K. Kraipak v. Union of India, A.L.R. 1970 S.C. 150 ), a Special Selection Board was constituted under Regulation of Indian Forest Service (Initial Recruitment) Regulations, 1966. One member of the Board was himself a candidate for selection. When the Board was sitting to consider certain selection he did not take part in the deliberation of the Board at the time of his own selection, but he had taken part throughout while making selections of other candidates including his rival candidates. The petition was brought by the petitioner on the ground that entire Selection List, prepared by the Board is vitiated in law, as the whole proceeding of the Board was affected by the bias rule. The Court accepted the contention of the petitioner and held that there was reasonable likelihood of bias and. therefore, the entire Selection List is bad in law “If the purpose of the rules of natural justice is to prevent miscarriage of justice, there is no reason why those rules should be inapplicable to administrative enquiries”

Bhagwati, J., has observed regarding the importance of this case that A.K. Kraipak is a landmark judgment in the development of administrative law and it has contributed in a large measure to strengthening of the rule of law in this country [Ashok Kumar Yadav v. State of Harayana, A.I.R. 1987 S.C. 454 (468)].

In J. Mohapatra and Co. v. State of Orissa (A.I.R. 1984 S.C. 1572) Assessment Committee constituted for the purpose of recommending and selecting books of various authors and publishers for various school subjects included some persons also, who were themselves authors of the books, which were also to be considered for selection. The Supreme Court observed that the possibility of bias cannot be ruled out because some members whose books were in the list for selection were members of the Assessment Committee.

In Baidyanath Mahapatra v. State of Orrissa (A.I.R. 1988 S.C. 2218), a Government servant was prematurely retired at the age of 50 years on the recommendation made by the Review Committee. One of the members of this Review Committee was appointed as Chairman of the Tribunal, which confirmed the order of pre-mature retirement. The Supreme Court quashed the order of the Tribunal, because the member “who had administratively taken a decision against the appellant, considered the matter judicially as Chairman of the Tribunal, thereby he acted as a judge in his own cause.

4. Departmental bias. The problem of departmental bias arises in different situations when the function of Judge and Prosecutor are combined in the same department. In State of U.P. v. R.S. Sodhi (A.I.R. 1994 S.C. 38) the question before the Court was whether State police should investigate into the alleged fake encounters. Allegations were levelled against local police. The Supreme Court held that investigation into the matter by an independent agency was necessary and desirable. Therefore, the Court directed C.B.I. to investigate into the allegation.

5. Policy bias. The view of Wade (administrative Law, 1988, pp. 489-93) is that Ministerial or departmental policy cannot be regarded as disqualifying bias.