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The Problems of Administrative Justice
by S. K. Das Gupta*
Cite as : (1971) 1 SCC (Jour) 63

The problem of administrative justice is in the words of Prof. H. W. R. Wade, how to wield power without forgetting justice. The substance of such justice lies in fair procedure. The statutory requirement of holding a hearing relates to the essence of fair procedure. Administrative justice as it obtains in England has survived the inexorable working of such doctrines as parliamentary sovereignty and ministerial responsibility as well as the impact of Dicey's denial of the existence of administrative law. It has now become a doctrine for the interpretation of acts of Parliament under which the Court will presume that Parliament when granting a drastic power must intend that it should be fairly exercised. Two basic principles underlying this concept are: (i) nemo judex in causa sua1 and (ii) audi alteram partem.2 We have now a third important principle, viz., a statutory tribunal should base its decision on evidence having some probative value. These are commonly known as rules of 'natural justice' and any violation of these gives rise to judicial review. This paper will mainly deal with the application of audi alteram partem.

There are situations where there is an implied duty to listen to both sides such as in Board of Education v. Rice3, where the Board had been required to determine lis inter partes between a local educational authority and the managers of a School. But there could be situations where no duty is cast on the Government to give prior notice or opportunity to be heard. Thus it was held in Local Government Board v. Arlidge4, that a Government Department determining a housing appeal was not obliged to divulge one of its inspectors' reports to the appellant. In Venicoff's case5, where a deportation order was challenged the audi alteram partem rule was not applied, instead the Court stressed on the amplitude of executive discretion in the context of emergency. The rule that an alien deportee has no implied legal right to any hearing was reaffirmed by the Court as late as 1962. In November, 1967, the British Government accepted in principle the proposal of the Wilson Committee on Immigration Appeals for giving a deportee statutory right of appeal to an adjudicator. The position, however, deteriorated with the passing of Commonwealth Immigration Act, 1968. Not until July, 1970, provision was made for hearing or appeal against decisions of the Home Secretary and the Immigration Authorities to limit or exclude the admission of aliens to U. K. But this right of appeal was subject to grave limitations under Aliens (Appeals) Order, 1970, vide the recent case of German Student Rudi Dutscke.

Decisions in the fifties show a trend away from the audi alteram partem and towards the presumption that unless a procedural duty was cast none was to be implied. In Nakkuda Ali v. Jayaratne,6 the Privy Council dismissed the appeal of a textile dealer, who had applied for certiorari to quash the order revoking his licence, holding that the Controller of Textiles although obliged to act on reasonable grounds was under no duty to act judicially so that compliance with natural justice was unnecessary, the ratio decidendi being (i) that certiorari would issue only to an authority that was required to follow a procedure analogous to the judicial in arriving at its decision and (ii) the Controller was not determining a question affecting the rights of subjects but was merely taking executive action to withdraw a privilege. Similar reasoning was applied in R. v. Metropolitan Police Commissioner exp. Parker, 1953. The ratio as above had been criticised and contradicted, happily in Re. H. K. (An Infant).7 Lord Parker distinguished this case and in effect refused to accept the general principles of law laid down in the case. In R. v. Criminal Injuries Compensation Board exp. Lain,8 we have yet another direction ; judicial review is not confined to cases where the inferior body's powers are laid down by Parliament. The Court considered that the power of the remedy of certiorari could be used for review of the activities of all bodies rendering public duties and bound to act judicially. The trend of fifties had indeed been reversed when it was held in the leading case of Ridge v. Baldwin,9 that: (i) Chief Constable dismissible only for cause prescribed by statute was impliedly entitled to prior notice of the charge against him and a proper opportunity of meeting it before being removed by the local police authority for misconduct, and that (ii) the duty to act in conformity with natural justice could in some situations simply be inferred from a duty to decide 'what the rights of an individual should be'. We must add however that the awareness of the judges of common law requirement of fair administrative procedure had increased considerably with the: (a) enactment of the Tribunals and Enquiries Act, 1958, (b) the establishment of the Council on Tribunals, and (c) three watch words prescribed by the Franks Committee, viz., openness, fairness and impartiality.

Attempt is often made on the basis of judicial dicta to classify cases where prima facie right to prior notice and opportunity heard may be held to be excluded by implication : such exclusion is quite possible in the present state of flux in ratio decidendi if any of the following factors is present10:

(1) Where the functions in the competent authority are held to be non-judicial.

(2) Where the authority in which is vested the power to decide is entrusted with a wide discretion.

(3) Where legislation expressly requires notice and hearing for certain purposes, but imposes no procedural requirement for other purposes.

(4) Where the action taken constitute denial of a privilege as distinct from inference with a right.

(5) Where to impose an obligation to disclose relevant information to the party affected would be prejudicial to the public interest.

(6) Where an application to give notice and opportunity to be heard would obstruct the taking of prompt action, special action of a preventive or remedial nature.

(7) Where for any other reason it is impracticable to give prior notice or opportunity to be heard.

(8) Where appropriate substitutes for prior notice and opportunity to be heard are available.

(9) Where the matter in issue or the monetary value of the interest at stake is true trivial to justify an implication that notice or opportunity to be heard be afforded before action is taken.

(10) Where the power exercised is disciplinary.

It is obvious however that in each of the cases from (1) to (10) no hard and fast rule regarding denial of natural justice can be prescribed. Besides, the Courts had tried to apply the principle that it is of fundamental importance that justice should not be only be done but should manifestly and undoubtedly be seem to be done. The common law disqualification for interest and bias may however be waived. They may also be removed by statute, by express words or necessary intendment. Thus, two general problems arise in the context of the application of rules of natural justice to bodies other than Courts of Justice: (i) what is meant by judicial functions; (ii) to what extent must the application of the rules be modified in different contexts. It may be noted, however, that since Ridge case the courts have felt free to decide whether a particular power or duty is judicial and by and large the distinction between judicial, quasi-judicial and administrative is now considered old fashioned.

No clear distinction between the judicial and administrative function has really been drawn by the Courts. The important decision setting a limit to the concept of judicial function in administrative law is contained in Franklin v. Minister of Town and County Planning,11 where the House of Lords held that the Minister who in the face of objection by local citizens had decided to confirm his own draft order was under no judicial or quasi-judicial duty, and was acting administratively throughout, so that allegation that he was biased in deciding to make the final order were irrelevant ; their lordships' refusal to review the Minister's conduct by reference to the common law standards of bias was buttressed by characterising his functions as administrative. As Prof. Wade points out12 the right result was reached by the wrong road and it would have been more in conformity with rules to uphold the Court of Appeal in their finding that there was a legal duty to be impartial and that the Minister had done his duty. The said rules indeed required 'the Minister to observe natural justice but refused to carry natural justice to the point where it prevents a Minister doing his job'. We may recall in this connection the distinction drawn by Prof. Davis between 'legislative' and "adjudicative" facts, i.e., between questions of policy and questions which must be determined objectively—a distinction which divides administrative power from judicial power, inquiries from tribunals. It is in this context that we are warned by Prof. Wade against 'legal exaggerations' (or "tendency which the lawyers have to force their judicial technique or administrations without proper discrimination"). The House of Lords in Ridge v. Baldwin has re-affirmed that in the absence of clear statutory words to the contrary, every authority having the power or duty to decide on the merits of an issue must exercise that powers judicially. But this affirmation does not whittle down the binding character of Franklin case.

In Ridge v. Baldwin, Lord Reid distinguished three cases :

(1) Dismissal by a master of a servant.

(2) Dismissal from an office held during the Crown's pleasure.

(3) Dismissal from an office where there must be something against a man to warrant his dismissal.

In (1) a servant contract may be terminated any time for any reason, the question of hearing being irrelevant. In (2) there is no right to a hearing as no reasons need be given. In (3) an Officer cannot be dismissed without first telling him what is alleged against him and giving him a hearing. Indeed, this principle had been established as early as 1863 in Cooper v. Wandsworth Board of Works. But the hopes raised by the decision in Ridge v. Baldwin were dashed by the Privy Council decision in Vidyadaya University of Ceylon v. Silva,13 where the statute establishing the University armed the University Council with power to dismiss without specifying a right to be heard. A teacher of the University was dismissed without a hearing. It was held that the relation between Silva and the University was that of master and servant and this fell within : (1) of three cases distinguished by Lord Reid in Ridge v. Baldwin. It is submitted that Silva was not an ordinary servant because his employer's power of dismissal was regulated by statute and could therefore be exercised in a manner a Court could declare invalid. The Vidyadaya University Council had legal authority to determine questions affecting the rights of subjects and that is enough to give rise to judicial review in proceedings for certiorari to quash the decision or for a declaration that the decision is a nullity on ground that it is ultra vires or arrived at in violation of the procedural requirements of natural justice.

The hopes however revived in Durayappah v. Fernando,14 where the Court laid down that it was neither possible nor desirable to classify exhaustively the cases in which a hearing is required but three matters must be borne in mind—

(1) The nature of the property or office held or status enjoyed by the complainant.

(2) The circumstances in which the other deciding party is entitled to intervene.

(3) When the latter's right to intervene is proved, the sanctions he can impose on the complainant.

Thus the Court once again applied the principle of Cooper case. It follows that decision in Nakkuda Ali case must now be revived in the light of the decision in Durayappah v. Fernando. It is quite clear now the Court, instead of asking the formal question, was the act judicial? —now stresses the need for fairness on the part of governmental bodies. This was made clearer in Re. K. (H) (an infant),15 where the Court adopted the view that even if the immigration officer was not acting judicially he still had to act fairly, and to that extent in accordance with the principles of natural justice.

The trend in England on the whole,16 strengthens the doctrine of natural justice as an aid to the interpretation of statute. The Court has indeed travelled a long way from Arlidge case (1915) where the House of Lords missed an opportunity by being 'pro-administrative and anti-judicial'. In England indeed there is no such thing now as unfettered discretion. In Padfield v. Minister of Agriculture, Fisheries and Food,17 the House of Lords held that the Minister's discretionary power however wide it may seem is coupled with a duty to direct properly and mandamus was allowed in view of the reasons for not referring the matter in question to the appropriate Committee of investigation being considered unsatisfactory. This decision is considered a very important land-mark in administrative justice since the Ridge case as the latter was concerned only with procedure while Padfield case dealt with substantive powers the Executive possessed under the statute. Thus English Law is well on its way to adopting the very useful continental principle that the validity of administrative action is conditional upon its reasonableness.18

In Ridge case it was held that a breach of the rule audi alteram partem made the decision of the competent authority void. It appears however that bias has sometimes been regarded as making a decision voidable at the option of the Court which reviews the matter. In R. v. Paddington Valuation Officer exp. Peachey Property Corporation19, Lord Denning described ultra vires acts as voidable. In Durayappah v. Fernando,20 breach of natural justice was held to make a decision voidable. This position has now been rendered obsolete by the decision of the House of Lords in Anesminic v. Foreign Compensation Commission.21 The Parliament had intended by statute to keep the said Commission immune from judicial review. The House of Lords insisted on interfering judicially with the activities of the Commission (though this was plainly contrary to the tenets of the doctrine of Parliamentary sovereignty) re-affirmed that an inferior body could not determine finally the limits of its own jurisdiction and laid down that every breach of natural justice in such a body makes a decision void. It is remarkable indeed that even though the balance of power between the Legislature and Courts is very different in Britain from what it is in the United States, i.e., even after being saddled with a monolithic administrative system resistant to judicialisation , the House of Lords have not hesitated to uphold natural justice in the face of inhospitable statutory provision. Besides, there is now legal duty to give reasons for decision (the reasons being deemed to be a part of the records).

In India the judges are not powerless in the face of an Act of Parliament. We have fundamental rights which prevails over ordinary legislation. Our judges are already walking with stately self-confident steps of the guardians of a written Constitution. We believe in the heritage of English rule of law that power should be subjected to legal control and that the mechanism of control should be just and efficient. The decision in A. K. Kraipak v. Union of India,22 indeed confirmed our belief in this regard. This case was literally a ringing reiteration of the concept of rule of law which the Court stated, would lose its vitality if the instrumentalities of the state are not charged with the duty of discharging their functions in a fair and just manner. The Court laid down that: (i) whenever a complaint is made before a Court that some principle of natural justice had been contravened the Court has to decide whether the observance of that rule was necessary for a just decision on the facts of that case, (ii) it was neither possible nor desirable to fix the limits of a quasi-judicial power, and (iii) arriving at a just decision is the aim of both quasi-judicial enquiries as well as administrative enquiries. It was held therefore, selection list prepared by a Selection Board where one member of the Board was himself a candidate for selection though he had not taken part in deliberations of the Board at the time of his own selection, was vitiated in view of the reasonable likelihood of bias.23 The Court also re-affirmed the finding in State of Orissa v. Dr. (Miss) Binapani Ict,24 which dealt with an enquiry made as regards the correct age of a Government servant, viz., even an administrative order which involves evil consequences must be made consistently with the rules of natural justice. In Purtabpur Co. v. Cane Commissioner, Bihar,25 the Supreme Court held that the executive officers entrusted with statutory discretions may in some cases be obliged to take into account consideration of public policy and in some context the policy of a Minister or the Government as a whole when it is a relevant factor in weighing the policy but this will not absolve them from the duty to exercise their personal judgment in individual cases unless explicit statutory provision has been made for them to be given binding instruction by a superior. The Court reiterated that the rules of natural justice are not embodied rules. The question whether the requirements of natural justice have been met by the procedure adopted in a given case must depend to a great extent on the facts and circumstances of the case in point, the Constitution of the tribunal and the rules under which it functions.

But the Supreme Court appears to have cried a halt to the process of extension of natural justice in India with the case of Union of India v. Col. J. N. Sinha.26 Their lordships laid down that:

"It is true that if a statutory provision can be read consistently with the principles of natural justice, the Courts should do so because it must be presumed that the legislatures and the statutory authorities intend to act in accordance with the principles of natural justice. But if on the other hand statutory provision either specifically or by clear implication excludes the application of any or all the principles of natural justice then the Court cannot ignore the mandate of the legislature or the statutory authority and read into the concerned provision the principles of natural justice. Whether the exercise of a power conferred should be made in accordance with any of the principles of natural justice or not depends upon the express words of the provision conferring the power, the nature of the power conferred, the purpose for which it is conferred and the effect of the exercise of that power."

The above decision of the Court, it is submitted, does not square with the English Rule of Law which was first laid down in Cooper case (1863) :

"Although there are no positive words in a statute requiring that the party shall be heard, yet the justice of the common law will supply the omission of the legislature."

In Colonel Sinha case, the question before the Supreme Court was if the order issued by the Government of India, retiring respondent compulsorily from Government service in exercise of the powers conferred under Fundamental Rule 56 was valid. Admittedly no opportunity was given to the respondent to show cause against his compulsory retirement. No reasons were given for compulsorily retiring the respondent. In the opinion of the Supreme Court however Fundamental Rule 56 merely embodied one of the facets of the pleasure doctrine embodied in Article 310 of the Indian Constitution and that the rule held the balance between the rights of the individual Government servants and the public interests. The Court relied on the express words of the rule : that the appropriate authority has the absolute right to retire a Government servant if it is of the opinion that it is in the public interest to do so. The Court emphasized that rules of natural justice are not embodied rules nor can they be elevated to the position of fundamental rights. These can operate only in areas not covered by any law validly made ; they do not suppliant the law they only supplement it.

It is submitted that we will 'forget' justice if content of law could not be supplemented by rules of natural justice. The would be undermining the substance of 'procedural due process'. I believe the whole firmament of judicial decisions between 1967 and 1970 beginning with Golak Nath case (1967) is dominated by the Court's desire to see that the rights of the individuals are not impaired or the form and objective of state actions are not given undue importance. This was also the ratio in the Bank Nationalisation case27 which over-ruled Gopalan case (1951). This was in so far as the fundamental rights were concerned. The requirement of natural justice is not far removed from enforceability of basic rights as the relevant principles are designed to prevent miscarriage of justice in cases where executive order has had some adverse effect on the individual. After all in the very first case where the Court would not apply audi alteram partem the decision went wrong because the impact of a deportation order on personal liberty was not considered.28 It is rather strange that in India we do not sufficiently realise that for administrative justice content of rule or regulation is a matter of major importance because the essence of justice is what is secreted in the interstices of procedure.

* Lecturer, University College of Law, Calcutta — Delegate from Calcutta University to the 4th Commonwealth Law Conference, New Delhi, January 6-13, 1971. Return to Text

  1. An adjudicator be disinterested and unbiased. Return to Text
  2. Parties be given adequate notice and opportunity to be heard. Return to Text
  3. (1911) AC 179. Return to Text
  4. 1915 AC 120. Return to Text
  5. (1920) 3 KB 72. Return to Text
  6. 1951 AC 66. Return to Text
  7. 1967 (2) QB 617. Return to Text
  8. 1967 (2) QB 864. Return to Text
  9. 1964 AC 40. Return to Text
  10. Cf. S. A. De Smith: Judicial Review of Administrative Action, second edition, p. 167. Return to Text
  11. 1947 (2) All ER 289. Return to Text
  12. "Towards Administrative Justice", p. 67. Return to Text
  13. 1964(3) All ER 865. Return to Text
  14. 1967(2) All ER. Return to Text
  15. 1967(1) All ER 226. Return to Text
  16. Notable exception to the rule being legislation/order on Commonwealth immigration. Return to Text
  17. 1968(1) All ER 694. Return to Text
  18. Yardley Sourcebook of English Administrative Law. Return to Text
  19. 1965(2) All ER 836. Return to Text
  20. 1967(2) All ER. Return to Text
  21. 1969(1) All ER 208. Return to Text
  22. 1969(2) SCC 262. Return to Text
  23. In Metropolitan Properties Co. (F. G. C.) Ltd. v. Lannon, 1968 (3) All ER 304, however the Court applied the rule against bias and rejected the subjective test of a real likelihood of bias in the eyes of the Court (previously applied to determinations by inferior body) in favour of that of the objective "reasonable suspicion of bias" in the eyes of the reasonable man. Return to Text
  24. AIR 1967 SC 1269. Return to Text
  25. (1969) 2 SCR 807. Return to Text
  26. 1970 (2) SCC 458. Return to Text
  27. 1970(1) SCC 249. Return to Text
  28. (Venicaff's case) 1920(3) KB 72. Return to Text
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