Admin Law 2

Date and Time: Thursday 16 February 2023 8:08:00 PM IST
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Documents (51)
1. 11.1 Introductory
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IN Secondary Materials Publication: M P Jain & S N Jain: Principles of
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2. 11.2 Pecuniary Bias

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3. 11.3 Personal Bias

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4. 11.4 Departmental or Official or Policy Bias

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5. 11.5 Bias on Account of Judicial Obstinacy

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6. 11.6 Group Decision

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7. 11.7 Actual Bias and Apparent Bias

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8. 11.8 Initial Recommendation

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9. 11.9 Statute May Exclude Bias

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10. 11.10 Waiver

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11. 11.11 Necessity Excludes Bias

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12. 11.12 Postscript

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13. 11.13 Natural Justice—A History and Elaboration by the Supreme Court
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14. CHAPTER XII FAILURE OF NATURAL JUSTICE

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15. 12.1 Void/Voidable

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16. 12.2 Position in England
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17. 12.3 Position in India

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18. 12.4 Ultimate Relief

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19. 12.5 Additional Grounds not Contained in Original Order

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20. 12.6 Curing Failure of Natural Justice at Appellate Stage

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21. 12.7 Waiver
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22. 12.8 Review of the Authorities on Violation of Principles of Natural Justice by the Supreme Court
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23. 12.9 Audi Alteram Partem

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25. 47.2 Presentation of Documents in the Court

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26. 47.3 Official Secrecy

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28. 46.2 Scheme of 1964

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29. 46.3 Vineet Narain Versus UOI

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30. 46.4 The Central Vigilance Commission Act, 2003

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31. 46.5 Central Bureau of Investigation

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32. 46.6 Corruption Charges against State Ministers

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33. 46.7 The Prevention of Corruption Act, 1988

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34. 46.8 Public Servant

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35. 46.9 Competent Authority to Grant Sanction

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37. 24.2 European Community
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38. 24.3 Position in Britain

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39. 24.4 Position in India

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40. 24.5 Concluding Observations

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41. 25.1 Concept of Proportionality

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42. 25.2 Developments in Britain
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43. 25.3 Indian View

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44. 43.1 Need for Ombudsman

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45. 43.2 Ombudsmen in New Zealand

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46. 43.3 Ombudsman in Britain

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47. 43.4 Australian Ombudsman

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48. 43.5 Evaluation of the Institution

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49. 43.6 Ombudsman in India

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50. 43.7 The Scheme

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51. 43.8 State Lokayukatas

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11.1 Introductory
M P Jain & S N Jain: Principles of Administrative Law, 9th Edn (2 Vols)
M P Jain and S N Jain K Kannan
M P Jain & S N Jain: Principles of Administrative Law, 9th Edn (2 Vols) > M P Jain & S N Jain:
Principles of Administrative Law, 9th Edn (2 Vols) > CHAPTER XI RULE AGAINST BIAS
CHAPTER XI RULE AGAINST BIAS
11.1 Introductory
Hitherto, we have been discussing the ‘hearing’ procedure. This chapter turns to the other component of natural
justice, viz, Rule Against Bias. The law regarding bias is almost entirely of common law origin.
It is a fundamental requirement of law that the Doctrine of Natural Justice be complied with and the same has, as a
matter of fact, turned out to be an integral part of administrative jurisprudence of this country. The judicial process
itself embraces a fair and reasonable opportunity to defend though, the same is dependent upon the facts and
circumstances of each individual case. The facts in the instant case are singularly singular. The entire chain of
events smacks of some personal clash and adaptation of a method unknown to law in hottest of haste.1
The Apex Court, in Sayeedur Rehman v State of Bihar,2 observed:
“The omission of express requirement of fair hearing in the rules or other source of power claimed for reconsidering the
order, dated 22 April 1960, is supplied by the rule of justice which is considered as an integral part of our judicial process
which also governs quasi-judicial authorities when deciding controversial points affecting rights of parties.”
Incidentally, Hidayatullah, CJ in Channabasappa Basappa Happali v State of Mysore,3 recorded the need of
compliance with certain requirements in a departmental enquiry—as an enquiry fact have to be proved and the
person proceeded against, must have an opportunity to cross-examine witnesses and to give his own version or
explanation about the evidence on which he is charged and to lead his defense on this state of law.
The word “bias” in popular English parlance stands included within the attributes and broader purview of the word
“malice” which in common acceptation means and implies “spite” or “ill-will” and it is now well settled that mere
general statements will not be sufficient for the purpose of indication of ill-will. There must be cogent evidence
available on record to come to the conclusion, as to whether in fact, there was existing a bias which resulted in the
miscarriage of justice.4 “Malice” in its legal sense means malice such as may be assumed for a wrongful act done
intentionally but without cause or excuse or for one of the reasonable or probable cause. The term “malice on fact”
would come within the purview of the said definition. Even, however, in the absence of any malicious intention, the
Principle of Malice in Law can be invoked.5
11.1.1 Malice in Law
In the case of Ravi Yashwant Bhoir v District Collector, Raigad,6 the Chief Minister of Maharashtra, had declared
the conduct of the appellant as unbecoming of the President of the Municipal Council and declared him to be
disqualified for the remaining tenure of Municipal Counsellorship. Under section 55 of the 1965 Act, he was
disqualified for a period of 6 years.
On facts, the Supreme Court came to the conclusion that a minor charge such as not calling the meeting of the
council, did not warrant his order of removal and the explanation furnished by him was acceptable; on the other
charge of accepting tenders at higher rate, it was found to be a decision of the council itself and the appellant could
not be held exclusively responsible for it. The Supreme Court formed an opinion that the action of removal of the
appellant, from the elected office of the President, seemed to be politically motivated and a clear case of “legal
malice”. According to the Supreme Court, appellant could not have been removed in such a casual and cavalier
manner, without strict adherence to the safeguards provided under the statute.
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11.1 Introductory
To constitute malice in law, the act must have been done in bad faith and the power must have been exercised not
with the object of protecting the regulated entities or the public in general, but with the object of hitting those who
form the target. The act must have been done wrongfully and wilfully, without reasonable and probable cause. The
circular issued by the Reserve Bank of India to its constituent banks, not to deal with crypto currencies may
incidentally cause a collateral damage to one of the several activities of an entity, which does not come within the
purview of the statutory authority but that cannot be assailed as a colorable exercise of power.7
Explaining the concept of ‘malice in law’, the court observed:
“This Court has consistently held that the State is under an obligation to act fairly without ill will or malice in fact or in law.
Where malice is attributed to the State, it can never be a case of personal ill will or spite on the part of the State. “Legal
malice” or “malice in law” means something done without lawful excuse. It is a deliberate act in disregard to the rights of
others. It is an act which is taken with an oblique or indirect object. It is an act done wrongfully and willfully without
reasonable or probable cause, and not necessarily an act done from ill feeling and spite.
Mala fide exercise of power does not imply any moral turpitude. It means, exercise of statutory power for “purposes foreign
to those for which it is in law intended”. It means “conscious violation of the law to the prejudice of another, a depraved
inclination on the part of the authority to disregard the rights of others, where intent is manifested by its injurious acts”.
Passing an order for unauthorized purpose constitutes malice in law.
In the case of Ratnagiri Gas and Power Pvt Ltd v RDS Projects Ltd,8 the tenderer was found eligible for award of
the project work but later, on review by the competent authority, the tender was rejected. The High Court held the
rejection of tender to be an instance of malice in law. The Supreme Court reversed the judgment of the High Court.
Taking stock of the previous decisions of the court, explaining the legal concept of “malice in fact” and “malice in
law”, the Court came to the following conclusion:
“The final decision to reject the tender submitted by RTS was taken by the appellant RGPPL, in its capacity of the owner of
the project. GAIL and EIL perform only an advisory role whose opinions were recommendatory and meant to assess the
owner to take final call. The appellant RGPPL had from the date of receipt of the recommendations’ made to it by EIL and
GAIL till the end, maintained a consistent stand and expressed reservation about the capacity of RDS to undertake the
work. …….In that backdrop and as owner of a project being executed at a colossal cost running into hundreds of crores of
rupees, RGPPL was perfectly justified in adopting a careful approach to ensure that those found eligible by its technical
experts and consultants were indeed so qualified and possess the necessary wherewithal, experience and expertise to
execute the project at Dabhol.”
The court recorded its conclusion thus:
“We need hardly point out that in cases where the decision-making process is multi-layered, officers associated with the
process are free and indeed expected to take views on various issues according to their individual perceptions. They may
in doing so at times strike discordant notes, but that is but natural and indeed welcome for it is only by independent
deliberation, that all possible facets of an issue are unfolded and addressed and a decision that is most appropriate under
the circumstances shaped. If every step in the decision-making process is viewed with suspicion the integrity of the entire
process shall be jeopardized. Officers taking views in the decision-making process will feel handicapped in expressing their
opinion freely and frankly for fear of being seen to be doing so for malafide reasons which would in turn affect public
interest. Nothing in the instant case was done without a reasonable or probable cause which is the very essence of the
doctrine of ‘malice in law’ ‘vitiating administrative actions. We have, therefore, no hesitation in holding that the findings
recorded by the High Court to the effect that the process of annulment of the tender process or the rejection of the tender
submitted by RDS was vitiated by malafide is unsustainable and is hereby set aside.”
Allegation of legal malice was also repelled in the case of G. Jayalal v UOI.9 The facts of the case were that the
Selection Board had recommended its panel of candidates for the post of Director General, Doordarshan and
Director General, All India Radio. The government desired that the Selection Board should recommend names in
the panel in order of preference. Thereafter, on the basis of letter of the Officer on Special Duty (OSD), the
selection committee sent the panel of names of the selected candidates in the order of preference and the appellant
was placed in order of preference below the private respondent. Before the Supreme Court, against the action of
OSD allegation was made that it may not be a case of ‘malice in fact’ but it was a case of ‘malice in law’ and it was
not necessary to refer back the matter to the selection committee to prepare another panel in order of preference.
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11.1 Introductory
Relying on the previous decision in which ‘malice in law’ has been explained, the court came to the following
conclusion:
“Tested on the anvil of the aforesaid principles of law, it cannot be said that any wrongful act has been done to inflict any
legal injury on the appellant. It is difficult to hold that any act has been done to disregard or defeat his legal rights. What has
been stated by the OSD it basically requiring the Board to short-list the names in order of preference. The members of the
Board could have reiterated that they had earlier recommended the names in accordance with preference. They, we are
inclined to think correctly, did not say that the recommendations already made were in order of preference but gave the
preference initially by circulation and when it was set aside by the Tribunal, thereafter, by deliberation. Thus, the
submission pertaining to legal malice, being sans substratum, stands repelled.”
In the case of Mutha Associates v State of Maharashtra,10 a piece of land was proposed to be acquired in
accordance with the proposed revised development plan by municipal corporation for agriculture produce market
committee. The acquisition proceedings were later, withdrawn under the Land Acquisition Act by the State
Government. The allegation in the petition questioning the withdrawal of acquisition was on the ground that the
concerned minister in the government was favourably inclined towards the appellant, who was a builder and
therefore, the acquisition proceedings were withdrawn. The High Court of Bombay came to the conclusion that the
decision of withdrawal of acquisition was mala fide, as the government acted on the instructions of the minister. In
the appeal before the Supreme Court, the court examined the facts alleged in the petition and taking a different
view, held that the allegations of mala fide against the minister were not supported by necessary particulars and
there was nothing to show that the appellant had influenced, the decision of the government through the minister.
The court observed that consideration of material not disclosed to an affected party or non-application of mind to
the material available on the record, may vitiate the decision taken by the authority concerned, and may even be
construed malice in law but the action may still remain bona fide and in good faith. The court did not accept the
conclusion of the High Court that the minister had acted mala fide and influenced the decision of the government.
The conclusion of the court is thus:
“It is trite that every action taken by a public authority even found untenable cannot be dubbed as mala fide simply because
it had fallen short of the legal standards and requirements, for an action may continue to be bona fide and in good faith no
matter the public authority passing the order has committed mistakes or irregularities in procedures or even breached the
minimal requirements of the principles of natural justice. The High Court has attributed to the Minister, the appellant in Civil
Appeals Nos. 2856-57 of 2002, mala fides simply because the order passed by him was found to be untenable in law. Such
an inference was not, in our view, justified, no matter the circumstances enumerated by the High Court may have given rise
to a strong suspicion that the Minister acted out of extraneous considerations. Suspicion, however strong cannot be proof of
the charge of mala fides. It is only on clear proof of high degree that the court could strike down an action on the ground of
mala fide which standard of proof was not, in our opinion, satisfied in the instant case. To the extent the High Court held the
action of the Minister to be mala fide, the impugned order would require correction and Civil Appeals Nos. 2856 and 2857 of
2002 allowed.”11
Bias is included within the attributes and broader purview of the word “malice.” Therefore, the relevancy of factual
details is, otherwise, felt to assess the situation as, to whether there is existing cogent evidence of improper
conduct and motive resultantly a mala fide move on the part of the government against the officer.12 A company
applied to Howrah Municipal Corporation for sanction, for construction of its complex upto seven floors, which was
not granted within the prescribed limit. In compliance with the direction of the High Court, the corporation granted
sanction upto fourth floor. After completing the construction upto which the company applied for sanction for
construction upto seventh floor, the corporation sent replies and sought documents and additional information from
the company and insisted on the company, to submit fresh application for sanction with plans of three additional
floors, which was held to be not malicious.13 The doctrine that “no man can be a judge in his own cause” can be
applied only to cases, where the person concerned has a personal interest or has himself already done some act or
taken a decision in the matter concerned. Merely, because an officer of a corporation is named to be the authority,
does not by itself bring into operation the doctrine “no man can be a judge in his own cause”. Of course, in
individual cases, bias may be shown against a particular officer but in the absence of any proof of personal bias or
connection, merely because officers of a particular corporation are named as the authority, does not mean that
those officers would be biased.14 The presumption of bias is not legally available. The question of prejudice or bias,
has to be established and not inferred.15 Without any reliable material, bias cannot be inferred or arrived at by
conjecture.16 The allegation of bias must be genuine and there must be sufficient material in support thereof.17 Mere
acceptance of tea and refreshments by the arbitrator and holding of the hearing in the premises of a party, in the
presence of the other party, who did not raise any objection, would not be a sufficient ground.18 It is now a well-
settled principle of law that bias, which would mean and imply “spite or ill will” must be proved, by raising requisite
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plea in this behalf and by adducing cogent and sufficient evidence in support thereof. In fact, bias is a state of mind
and it shows pre-disposition. Thus, general statements would not meet the requirements of law. Certain
correspondence/orders which might have been passed against the petitioner as far back as in 1994 and 1998,
would not meet the requirement of law, to prove bias. Not only existence of a factual bias has to be proved, but it
must also be shown that the same has resulted in miscarriage of justice.19 In a case of punishment of compulsory
retirement, it was held that bias would have to be established either by evidence or on the material on record, which
were relied upon by the enquiring officer in coming to his conclusion, as to the guilt of the delinquent employee.20 In
a departmental inquiry, the charges were framed by the High Court and communicated to the enquiry officer. In the
report, he merely posed questions that arose for decision, in a manner different from the wording used in the
charges. The Apex Court observed that it is a way of expression, in considering the issue. However, it is not a sign
to show that the enquiry officer was biased or that he was prejudiced against the employee. Besides, the allegation
of bias was not made against the enquiry officer at the inception of the enquiry and the same came to be made for
the first time, in reply to the show-cause notice issued by the High Court. It was, therefore, held to be an
afterthought, to get over the report of the enquiry officer.21 Where the delinquent officer had admitted that the
complainant was not biased and the disciplinary authority had acted on the basis of his complaint. It was held that
allegation of bias against the disciplinary authority was not maintainable.22 It is the party, who makes any allegation
of bias or favouritism, that is required to prove the same. In the instant case, no allegation of bias was made.23
Challenge to transfer was based on malice, in fact, since it was alleged that employer, on account of appellant,
having raised voice against removal of a participant from venue of conference, had taken such action. Plea of mala
fides involves two questions, namely (i) where there was personal bias or oblique motive and (ii) whether
administrative action was contrary to objects, requirements and conditions of valid exercise of administrative power.
As far as the second aspect is concerned, power of transfer was vested in employer, in terms of letter of
appointment. Further, even in terms of provisions of Unfair Labour Practices Act, 1971, transfer by itself could not
be said to be an act of unfair labour practice, unless actuated by mala fides. There were allegations against person
present in conference but no allegation was made against the person, who passed transfer order. In this case, even
the person who was said to have acted in mala fide manner, had not been impleaded. In order to sustain a plea of
malice in law, something should be done without lawful excuse or act done wrongly and wilfully without justification.
Transfer of employee after 20 years to headquarters, in term of employment letter, the court said could not be done
without lawful excuse.24
In matters of preventive detention, sometimes, issues of malice are urged. In Sama Aruna v State of Telangana,25
detention order under Telangana Prevention of Dangerous activities of Bootleggers, Decoits, Drug Offenders,
Goondas, Immoral Traffic Offenders and Land Grabbers Act, 1986, was made in November 2016, for offences
alleged to have been committed during the year 2002-2007. Incidents that fell within 2 years though mentioned, the
detaining authority had not relied on them, as grounds of detention. Giving expansive meaning to malice in law to
include even taking into consideration irrelevant matters and picking up stale charges, the court said that the
influence of the stale incidents in the detention order is too pernicious to be ignored, and the order must therefore
go; both on account of being vitiated due to malice in law and for taking into account matters which ought not to
have been taken into account.
Bias may be defined as a pre-conceived opinion or a pre-disposition or pre-determination, to decide a case or an

issue in a particular manner, so much so that such predisposition does not leave the mind open to conviction. It is,
in fact, a condition of mind, which sways judgments and renders the judge unable to exercise impartiality in a
particular case.26 “Bias” in common English parlance means and implies — pre-disposition or prejudice (para 26).
Its concept, however, has had a steady refinement with the changing structure of the society: modernisation of
society, with the passage of time, has its due impact on the concept of bias as well (para 27).27 Bias, is a condition
of mind and, therefore, it may not always be possible to furnish actual proof of bias. But the Courts, for this reason,
cannot be said to be in a crippled state. There are many ways to discover bias; for example, by evaluating the facts
and circumstances of the case or applying the tests of “real likelihood of bias” or “reasonable suspicion of bias”.28
The Supreme Court in S. Parthasarathi v State of AP,29 proceeded on the footing of “real likelihood of bias” and
there was in fact a total unanimity on this score between the English and the Indian Courts. Mathew, J. observed:
“16. The tests of ‘real likelihood’ and ‘reasonable suspicion’ are really inconsistent with each other. We think that the
reviewing authority must make a determination on the basis of the whole evidence before it, whether a reasonable man
would in the circumstances infer that there is real likelihood of bias. The Court must look at the impression which other
people have. This follows from the principle that Justice must not only be done but seen to be done. If right-minded persons
would think that there is real likelihood of bias on the part of an inquiring officer, he must not conduct the inquiry;
nevertheless, there must be a real likelihood of bias. Surmise or conjecture would not be enough. There must exist
circumstances from which reasonable men would think it probable or likely that the inquiring officer will be prejudiced
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against the delinquent. The Court will not inquire whether he was really prejudiced. If a reasonable man would think on the
basis of the existing circumstances that he is likely to be prejudiced, that is sufficient to quash the decision [see per Lord
Denning, M.R. in Metropolitan Properties Co (F.G.C.) Ltd v Lannon,30 [WLR at p. 707]. We should not, however, be
understood to deny that the Court might with greater propriety apply the ‘reasonable suspicion’ test in criminal or in
proceedings analogous to criminal proceedings.”
Lord Thankerton however in Franklin v Minister of Town and Country Planning,31 had this to state:
“…I could wish that the use of the word ‘bias’ should be confined to its proper sphere. Its proper significance, in my opinion,
is to denote a departure from the standard of even-handed Justice which the law requires for those who occupy judicial
office, or those who are commonly regarded as holding a quasi-judicial office, such as an arbitrator. The reason for this
clearly is that, having to adjudicate as between two or more parties, he must come to his adjudication with an independent
mind, without any inclination or bias towards one side or other in the dispute.”
However, the English Courts have sounded a different note, though may not be substantial but the automatic
disqualification theory rule stands to some extent diluted. The affirmation of this dilution, however, is dependent
upon the facts and circumstances of the matter in issue. The House of Lords in the case of R. v Bow Street
Metropolitan/Stipendiary Magistrate, exp Pinochet Ugarte (No. 2)32 observed:
“…In civil litigation the matters in issue will normally have an economic impact; therefore a Judge is automatically
disqualified if he stands to make a financial gain as a consequence of his own decision of the case. But if, as in the present
case, the matter at issue does not relate to money or economic advantage but is concerned with the promotion of the
cause, the rationale disqualifying a Judge applies just as much if the Judge’s decision will lead to the promotion of a cause
in which the Judge is involved together with one of the parties.”
Lord Brown-Wilkinson at p. 136 of the report33 stated:
“It is important not to overstate what is being decided. It was suggested in argument that a decision setting aside the order
of 25 November 1998 would lead to a position where Judges would be unable to sit on cases involving charities in whose
work they are involved. It is suggested that, because of such involvement, a Judge would be disqualified. That is not
correct. The facts of this present case are exceptional. The critical elements are (1) that A.I. was a party to the appeal; (2)
that A.I. was joined in order to argue for a particular result; (3) the Judge was a director of a charity closely allied to A.I. and
sharing, in this respect, A.I.’s objects. Only in cases where a Judge is taking an active role as trustee or director of a charity
which is closely allied to and acting with a party to the litigation should a Judge normally be concerned either to rescue
himself or disclose the position to the parties. However, there may well be other exceptional cases in which the Judge
would be well advised to disclose a possible interest.”
Lord Hutton also in Pinochet case34 observed:
“There could be cases where the interest of the Judge in the subject-matter of the proceedings arising from his strong
commitment to some cause or belief or his association with a person or body involved in the proceedings could shake
public confidence in the administration of justice as much as a shareholding (which might be small) in a public company
involved in the litigation.”
Incidentally in Locabail,35 the court of appeal upon a detail analysis of the oft-cited decision in R. v Gough,36
together with the Dimes case,37 Pinochet case,38 Australian High Court’s decision in the case of J.R.L., ex p. CJL,
Re,39 as also the Federal Court in Ebner, Re,40 and on the decision of the Constitutional Court of South Africa in
President of the Republic of South Africa v South African Rugby Football Union,41 stated that it would be rather
dangerous and futile to attempt to define or list the factors, which may or may not give rise to a real danger of bias.
The court of appeal continued to the effect that everything will depend upon facts, which may include the nature of
the issue to be decided. It further observed:42
“By contrast, a real danger of bias might well be thought to arise if there were personal friendship or animosity between the
Judge and any member of the public involved in the case; or if the Judge were closely acquainted with any member of the
public involved in the case, particularly if the credibility of that individual could be significant in the decision of the case; or if,
in a case where the credibility of any individual were an issue to be decided by the Judge, he had in a previous case
rejected the evidence of that person in such outspoken terms as to throw doubt on his ability to approach such person’s
evidence with an open mind on any later occasion; or if on any question at issue in the proceedings before him the Judge
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11.1 Introductory
had expressed views, particularly in the course of the hearing, in such extreme and unbalanced terms as to throw doubt on
his ability to try the issue with an objective judicial mind (see Vakuta v Kelly43); or if, for any other reason, there were real
ground for doubting the ability of the Judge to ignore extraneous considerations, prejudices and predilections and bring an
objective judgment to bear on the issues before him. The mere fact that a Judge, earlier in the same case or in a previous
case, had commented adversely on a party-witness, or found the evidence of a party or witness to be unreliable, would not
without more found a sustainable objection. In most cases, we think, the answer, one way or the other, will be obvious. But
if in any case there is real ground for doubt, that doubt should be resolved in favour of recusal. We repeat: every application
must be decided on the facts and circumstances of the individual case. The greater the passage of time between the event
relied on as showing a danger of bias and the case in which the objection is raised, the weaker (other things being equal)
the objection will be.”
The court of appeal judgment in Locabail,44 though apparently sounded a different note but in fact, in more
occasions than one in the judgment itself, it has been clarified that conceptually the issue of bias ought to be
decided on the facts and circumstances of the individual case—a slight shift undoubtedly from the original thinking,
pertaining to the concept of bias to the effect that a mere apprehension of bias could otherwise be sufficient. The
test, therefore, is as to whether a mere apprehension of bias or there being a real danger of bias and it is on this
score that the surrounding circumstances, must and ought to be collected and necessary conclusion drawn
therefrom in the event, however, the conclusion is otherwise inescapable that there is existing a real danger of bias,
the administrative action cannot be sustained. If on the other hand, the allegations pertaining to bias is rather
fanciful and otherwise to avoid a particular court, tribunal or authority, question of declaring them to be
unsustainable would not arise. The requirement is availability of positive and cogent evidence and it is in this
context that the Supreme Court recorded45 its concurrence, with the view expressed by the court of appeal in
Locabail case.46 It is in the same vein, the Supreme Court termed it as reasonable likelihood of bias in Rattan Lal
Sharma case (Rattan Lal Sharma v Managing Committee Dr. Hari Ram (Co-Education) Higher Secondary School,47
wherein the court observed that the test is, real likelihood of bias, even if such bias was, in fact, the direct cause. In
this case, real likelihood of bias, has been attributed a meaning to the effect that there must be at least a substantial
possibility of bias, in order to render an administrative action invalid. This case, thus, in fact, has not expressed any
opinion, which runs counter to that in Girja Shankar case,48 which actually follows the earlier judgment in Rattan Lal
case,49 even though not specifically noticed therein.
“The various tests of bias thus range along a spectrum. At the one end, a court will require that, before a decision is
invalidated, bias must be shown to have been present. At the other end of the spectrum, the court will strike at the
decision, where a reasonable person would have a reasonable suspicion from the circumstances of the case that
bias might have infected the decision. In between these extremes is the ‘probability of bias’ (this being closer to the
‘actual bias’ test), and the ‘possibility of bias’ (this test being closer to that of reasonable suspicion).”50
The test of real likelihood of bias is, whether a reasonable person, in possession of relevant information, would
have thought that bias was likely and whether the adjudicator was likely to be disposed, to decide the matter only in
a particular way. Public policy requires that there should be no doubt about the purity of the adjudication
process/administration of justice. The court has to proceed observing the minimal requirements of natural justice,
i.e., the judge has to act fairly and without bias and in good faith. A judgment which is the result of bias or want of
impartiality, is a nullity and the trial ‘coram non judice’.51
Under section 132 of the Income-tax Act, 1961, the authorities are empowered to appoint the assessing officer as
an authorised officer for gathering information for the purposes of assessment, the mode of which might vary from
the mere issuance of a notice to the more intrusive method of entry and search. It was contended that the
assessing officer might be biased in doing so. The Supreme Court observed that ultimately, the question of bias will
have to be decided on the facts of each case. If the assessee is able to establish that the assessing officer was in
fact biased in the sense that he was involved or interested in his personal capacity in the outcome of the
assessment or the procedure for assessment, no doubt, it would be a good ground for setting aside the assessment
order. But to hold, as the High Court has that bias is established only because the authorised officer under section
132 and the assessing officer are the same person is an incorrect approach.52 Even though, it could be said that in
a sense, since the assessing officer was acting on behalf of the Revenue, in discharging the functions as an
assessing officer, he was a party to the dispute, nevertheless, there is no presumption of bias in such a situation.53
As said in H.C. Narayanappa v State of Mysore:54
“It is also true that the Government on whom the duty to decide the dispute rests, is substantially a party to the dispute but if
the Government or the authority to whom the power is delegated acts judicially in approving or modifying the scheme, the
approval or modification is not open to challenge on a presumption of bias. The Minister or the officer of the Government
Page 7 of 10
11.1 Introductory
who is invested with the power to hear objections to the scheme is acting in his official capacity and unless there is reliable
evidence to show that he is biased, his decision will not be liable to be called in question, merely because he is a limb of the
Government.”
The Supreme Court further observed that there is nothing inherently unconstitutional in permitting the assessing
officer to gather the information and to assess the value of the information himself.55 The issue as to the
constitutional validity of a provision, which permitted an examining board not only to hold an inquiry but also to take
action against doctors was raised, before the Supreme Court of the United States in Harold Withrow v Duane
Larkin.56 In negating the challenge the court said:
“The contention that the combination of investigative and adjudicative functions necessarily creates an unconstitutional risk
of bias in administrative adjudication has a much more difficult burden of persuasion to carry. It must overcome a
presumption of honesty and integrity in those serving as adjudicators; and it must convince that, under a realistic appraisal
of psychological tendencies and human weakness, conferring investigative and adjudicative powers on the same individual
poses such a risk of actual bias or prejudgment that the practice must be forbidden if the guarantee of due process is to be
adequately implemented.”
It is true that there may be cases, where the outcome of the assessment may be influenced by the fact that the
raiding assessing officer had himself, in the course of the raid, been witnessing to any incriminating material against
the assessee. The assessing officer’s decision on the basis of such material is not the final word in the matter. The
assessment order is appealable under the provisions of the statute itself and ultimately by way of judicial review.
Finally, the courts cannot read in limitations to the jurisdiction conferred by statutes, in the absence of a challenge
to the provision itself, when the language of the Act clearly allows for an ostensible violation of the Principles of
Natural Justice including the principle that a person cannot be a judge in his own cause.57 In UOI v Tulsiram Patel,58
in recognition of this principle this court held:
“101. Not only, therefore, can the principles of natural justice be modified but in exceptional cases they can even be
excluded. There are well-defined exceptions to the nemo judex in causa sua rule as also to the audi alteram partem rule.
The nemo judex in causa sua rule is subject to the doctrine of necessity and yields to it as pointed out by this Court in J.
Mohapatra & Co. v State of Orissa.”59
The maxim nemo judex in re sua literally means that a man should not be a judge in his own cause. The maxim has
come to mean that the deciding authority must be impartial. This is known as the rule against bias. The principle
that bias disqualifies an individual from acting as a judge flows from the following two maxims:
(i) No one should be a judge in his own cause; and

(ii) Justice should not only be done but also seen to be done.
The first maxim applies not only when the adjudicator is himself a party to the dispute he is deciding, but also when
he has some interest therein. The interest may be pecuniary or personal or of some other type. According to the
second maxim, it is not necessary to prove that a particular decision was actually influenced by bias. It is sufficient,
if there is a reasonable suspicion about the adjudicator’s fairness. The fountain of justice must not only be pure but
it must also enjoy public confidence and credibility. The adjudicator must not only be free from bias, but there must
not be even an appearance of bias.
An essential element of judicial process is that the judge has to be impartial and neutral, and be in a position to
apply his mind objectively, to the dispute before him. Proceedings before a judge may be vitiated if he is biased, or
if there are factors which may influence him to improperly favour one party at the cost of the other party in the
dispute.
On the applicability of the Doctrine of Bias in adjudicatory proceedings, the Supreme Court has observed:60
“Nemo judex in causa sua, that is, no man shall be a judge in his own cause, is a principle firmly established in law. Justice
should not only be done but should manifestly be seen to be done. It is on this principle that the proceedings in Courts of
Law are open to the public except in those cases where for special reason the law requires or authorises a hearing in
camera. Justice can never be seen to be done if a man acts as a judge in his own cause or is himself interested in its
outcome.”
Page 8 of 10
11.1 Introductory
Though justice is depicted to be blindfolded, it is only a veil not to see who the party before it is, while pronouncing
judgment or the cause brought before it by enforcing law and administer justice and not to ignore or turn the
mind/attention of the court away from the truth of the cause of lis before it, in disregard of its duty to prevent
miscarriage of justice.61
In R. Balakrishna v State of Kerala,62 the Apex Court observed that, in India, there is complete separation of
judiciary from the executive and the judges are not influenced in any manner either by propaganda or adverse
publicity against any party. The cases are decided on the basis of the evidence available on record and the law
applicable. There cannot be any presumption that the judicial verdict of the High Court might be consciously or
unconsciously affected by the popular frenzy, official wrath or adverse publicity. The apprehension must be
reasonable, genuine and justifiable. Merely because the High Court judge had acted as a prosecutor against the
accused/party, it cannot constitute a good ground for interference. In a case where an allegation of bias made
against the judges is found to be not proved, the court should not deny a right of hearing, if the person alleging the
said bias is, otherwise, entitled as it is valuable right recognised even under the Constitution and imposition of the
punishment of denying a right of hearing would amount to a violation of the principles of natural justice and hence,
should not be resorted to.63 In P.V. Narasimharao v State (CBI/SPE),64 though the apprehension of bias against a
judicial officer was found to be baseless, yet the trial of the case was transferred to another judicial officer on the
principle that justice should not only to done but also appear to have been done.
This principle applies not only to judicial proceedings, but also to adjudicatory proceedings. The question to be
examined is: to what extent the rule against bias applies to adjudicatory bodies.
Bias is usually of three kinds: (i) Pecuniary Bias; (ii) Personal Bias; and (iii) Departmental or Policy Bias.65 Each of
these concepts is discussed below separately.
1 Kumaon Mandal Vikas Nigam Ltd. v Girja Shankar Pant, AIR 2001 SC 24 : (2001) 1 SCC 182, 196 (para 20), relying
on Sayeedur Rehman v State of Bihar, (1973) 3 SCC 333 and Channabasappa Basappa Happali v State of Mysore,
AIR 1972 SC 32 : (1971) 1 SCC 1.
2 Sayeedur Rehman v State of Bihar, (1973) 3 SCC 333, 338 (para 11) : 1973 SCC (L&S) 122, as cited in Kumaon
Mandal Vikas Nigam Ltd. v Girja Shankar Pant, AIR 2001 SC 24 : (2001) 1 SCC 182, 196 (para 20).
3 Channabasappa Basappa Happali v State of Mysore, AIR 1972 SC 32 : (1971) 1 SCC 1; as cited in Kumaon Mandal
Vikas Nigam Ltd. v Girja Shankar Pant, AIR 2001 SC 24 : (2001) 1 SCC 182, 196 (para 21).
4 Kumaon Mandal Vikas Nigam Ltd v Girja Shankar Pant, AIR 2001 SC 24 : (2001) 1 SCC 182, 190 (para 10); relied on
in State of Punjab v V.K. Khanna, AIR 2001 SC 343 : (2001) 2 SCC 330, 336 (para 5).
5 R.S. Garg v State of UP, (2006) 6 SCC 430, 448 (para 26), relying on S.R. Venkataraman v UOI, AIR 1979 SC 49 :
(1979) 2 SCC 491; State of AP v Goverdhanlal Pitti, (2003) 4 SCC 739; Chairman & MD, BPL Ltd v S.P. Gururaji,
(2003) 8 SCC 567; Punjab SEB Ltd v Zora Singh, (2005) 6 SCC 776 and Shearer v Shields, 1914 AC 808 : 82 LJPC
216 : 111 LT 297 (HL).
6 Ravi Yashwant Bhoir v Districrt Collector, Raigad, AIR 2012 SC 1339 : (2012) 4 SCC 407.
7 Internet & Mobile Association v RBI, (2020) 10 SCC 274.
8 Ratnagiri Gas and Power Pvt Ltd v RDS Projects Ltd, AIR 2013 SC 200 : (2013) 1 SCC 524.
9 G. Jayalal v UOI, (2013) 7 SCC 130 : [2013] 3 SCR 868.
10 Mutha Associates v State of Maharashtra, (2013) 14 SCC 304 : (2013) 8 SCALE 411.
11 Also see, ADM Jabalpur v Shivakant Shukla, AIR 1976 SC 1207 : (1976) 2 SCC 521; UOI v Ramakrishnan, AIR 2005
SC 4295 : 2005 (8) SCC 394 and Kalabharati Advertising v Hemant Vimalnath Narichania, AIR 2010 SC 3745 : (2010)
9 SCC 437.
12 State of Punjab v V.K. Khanna, AIR 2001 SC 343 : (2001) 2 SCC 330, 340 (paras 10 and 11). No mala fides, no bias
Jasvinder Singh v State of J&K, (2003) 2 SCC 132, 137 (para 8); Onkar Lal Bajaj v UOI, AIR 2003 SC 2562 : (2003) 2
SCC 673, 691-92 (para 40); Federation of Railway Officers Association v UOI, AIR 2003 SC 1344 : (2003) 4 SCC 289,
303 (para 20).
13 Howrah Municipal Corporation v Ganges Rope Co Ltd, (2004) 1 SCC 663, 675 (para 22).
14 Delhi Financial Corporation v Rajiv Anand, (2004) 11 SCC 625, 632 (para 9), followed in Crawford Bayley & Co v UOI,
(2006) 6 SCC 25, 34, 36 (paras 18 and 23).
Page 9 of 10
11.1 Introductory
15 State of Rajasthan v Ram Chandra, AIR 2005 SC 2221 : (2005) 5 SCC 151, 161 (para 24), relying on S. Jeevanatham
v State, (2004) 5 SCC 230.
16 State of UP v Mohd. Waqar Husain, 1995 Supp (3) SCC 669.
17 UOI v Vijay Kumar Garg, 1997 (1) Scale (SP) 24.
18 Kashmir Electric and Hardware Corporation v State of J&K, (1996) 5 SCC 437 : 1996 (6) Supreme 309.
19 Abraham Kuruvila v S.C.T. Institute of Medical Sciences & Technology, (2005) 9 SCC 49, 52-53 (para 6). See also
South India Cashew Factories Worker’s Union v Kerala State Cashew Development Corp Ltd, (2006) 5 SCC 201, 206-
07 (paras 14 and 15).
20 Syed Rahimuddin v Director General, C.S.I.R., AIR 2001 SC 2418 : (2001) 9 SCC 575.
21 High Court Judicature at Bombay v Shirishkumar Rangarao Patil, AIR 1997 SC 2631 : (1997) 6 SCC 339, 359 (para
18).
22 High Court of Judicature at Bombay v Udaysingh, AIR 1997 SC 2286 : (1997) 5 SCC 129, 137-38 (para 10).
23 UOI v Bikash Kumar, (2006) 8 SCC 192, 195 (para 14).
24 Rajneesh Khajuria v Wockhardt Ltd., (2020) 3 SCC 86.
25 Sama Aruna v State of Telangana, (2018) 12 SCC 150.
26 State of WB v Shivananda Pathak, AIR 1998 SC 2050 : (1998) 5 SCC 513, 524 (para 25), relying on A.K. Kraipak v
UOI, AIR 1970 SC 150 : (1969) 2 SCC 262; S.P. Kapoor (Dr) v State of HP, AIR 1981 SC 2181 : (1981) 4 SCC 716;
Mineral Development Ltd v State of Bihar, AIR 1960 SC 468 : (1960) 2 MLJ (SC) 16; Financial Commissioner
(Taxation), Punjab v Harbhajan Singh, AIR 1996 SC 3287 : (1996) 9 SCC 281; Gurdip Singh v State of Punjab, (1997)
10 SCC 641 : 1997 SCC (L&S) 1742; R. v Sussex JJ, ex p McCarthy, (1924) 1 KB 256 : 1923 All ER Rep 233.
27 Kumaon Mandal Vikas Nigam Ltd v Girja Shankar Pant, AIR 2001 SC 24 : (2001) 1 SCC 182, 198 (paras 26 and 27).
28 State of WB v Shivananda Pathak, AIR 1998 SC 2050 : (1998) 5 SCC 513, 526 (para 33).
29 S. Parthasarathi v State of AP, (1974) 3 SCC 459, 465-66 (para 16) : 1973 SCC (L&S) 580; as cited in Kumaon Mandal
Vikas Nigam Ltd v Girja Shankar Pant, AIR 2001 SC 24 : (2001) 1 SCC 182, 198 (paras 27 and 28).
30 Metropolitan Properties Co (F.G.C.) Ltd v Lannon, (1968) 3 WLR 694, 707 : (1969) 1 QB 577: (1968) 3 All ER 304
(CA); see also State of Punjab v V.K. Khanna, AIR 2001 SC 343 : (2001) 2 SCC 330, 336 (para 6).
31 Franklin v Minister of Town and Country Planning, 1948 AC 87: (1947) 2 All ER 289 (HL), as cited in Kumaon Mandal
Vikas Nigam Ltd v Girja Shankar Pant, (2001) 1 SCC 182, 199 (para 29). See also State of Punjab v V.K. Khanna, AIR
2001 SC 343 : (2001) 2 SCC 330, 337 (para 7).
32 R. v Bow Street Metropolitan /Stipendiary Magistrate, exp Pinochet Ugarte (No. 2), (2000) 1 AC 119, as cited in
Kumaon Mandal Vikas Nigam Ltd v Girja Shankar Pant, AIR 2001 SC 24 : (2001) 1 SCC 182, 199 (para 30). See also
State of Punjab v V.K. Khanna, AIR 2001 SC 343 : (2001) 2 SCC 330, 337 (para 7).
33 R. v Bow Street Metropolitan Stipendiary Magistrate, ex p. Pinochet Ugarte (No. 2), (2001) 1 AC 119 , 136, as cited
in Kumaon Mandal Vikas Nigam Ltd v Girja Shankar Pant, AIR 2001 SC 24 : (2001) 1 SCC 182, 199-200 (para 31).
See also State of Punjab v V.K. Khanna, AIR 2001 SC 343 : (2001) 2 SCC 330, 337, (para 7).
34 Pinochet case, (2001) 1 AC 119 , as cited in Kumaon Mandal Vikas Nigam Ltd v Girja Shankar Pant, AIR 2001 SC
24 : (2001) 1 SCC 182, 200 (para 31). See also State of Punjab v V.K. Khanna, AIR 2001 SC 343 : (2001) 2 SCC 330,
337, (para 7).
35 Locabail (U.K.) Ltd v Bayfield Properties Ltd, 2000 QB 451, as cited in Kumaon Mandal Vikas Nigam Ltd v Girja
Shankar Pant, AIR 2001 SC 24 : (2001) 1 SCC 182, 200 (para 33). See also State of Punjab v V.K. Khanna, AIR 2001
SC 343 : (2001) 1 SCC 330, 338, (para 7).
36 R. v Gough, 1993 AC 646.
37 Dimes case, 3 House of Lords Cases 759.
38 Pinochet case, (2001) 1 AC 119 .
39 J.R.L., ex p. CJ.L, Re., (1986) 161 CLR 342 (Aus HC).
40 Ebner, Re, (1999) 161 ALR 55.
41 President of the Republic of South Africa v South African Rugby Football Union, (1999) 4 SA 147.
42 Locabail (UK) Ltd v Bayfield Properties Ltd, 2000 QB 451.
43 Vakuta v Kelly, (1989) 167 CLR 568.
Page 10 of 10
11.1 Introductory
44 Locabail (UK) Ltd v Bayfield Properties Ltd, 2000 QB 451, as cited in Kumaon Mandal Vikas Nigam Ltd v Girja Shankar
Pant, AIR 2001 SC 24 : (2001) 1 SCC 182, 201 (para 34). See also State of Punjab v V.K. Khanna, AIR 2001 SC 343
: (2001) 2 SCC 330, 339, (para 7).
45 Kumaon Mandal Vikas Nigam Ltd v Girja Shankar Pant, AIR 2001 SC 24 : (2001) 1 SCC 182, 201 (para 35); per
Banerjee, J. See also State of Punjab v V.K. Khanna, AIR 2001 SC 343 : (2001) 2 SCC 330, 339 (para 8); M.P.
Special Police Establishment v State of MP, (2004) 8 SCC 788, 800 (para 22).
46 Locabail (UK) Ltd v Bayfield Properties Ltd, 2000 QB 451.
47 Rattan Lal Sharma v Managing Committee Dr. Hari Ram (Co-Education) Higher Secondary School, (1993) 4 SCC 10 :
1993 (L&S) 1106, as cited in State of Punjab v V.K. Khanna, AIR 2001 SC 343 : (2001) 2 SCC 330, 339 (para 9). Mere
disagreement with another does not mean harboring grudge, Satya Narain Shukla v UOI, (2006) 9 SCC 69, 80-81 (para
28).
48 Kumaon Mandal Vikas Nigam Ltd v Girja Shankar Pant, AIR 2001 SC 24 : (2001) 1 SCC 182 : JT 2000 Supp (2) SC
206.
49 Rattan Lal Sharma v Management Committee, Dr. Hari Ram (Co-ed) Higher Secondary School, (1993) 4 SCC 10 :
1993 (L&S) 1106. See also Padma v Hiralal Motilal Desarda, AIR 2002 SC 3252 : (2002) 7 SCC 564.
50 Judicial Review of Administrative Action, by De Smith, Woolf and Jowell (5th Edn., at p. 527).
51 State of Punjab v Davinder Pal Singh Bhullar, AIR 2012 SC 364 : 2011 (3) SCALE 394.
52 UOI v Vipan Kumar Jain, (2005) 9 SCC 579, 584 (para 12) : (2003) 181 CTR (SC) 24 : [2003] 260 ITR 1 (SC).
54 H.C. Narayanappa v State of Mysore, AIR 1960 SC 1073 : (1960) 3 SCR 742, 753, as cited in UOI v Vipan Kumar
Jain, (2005) 9 SCC 579, 582 (para 7) : (2003) 181 CTR (SC) 24 : [2003] 260 ITR 1 (SC).
56 Harold Withrow v Duane Larkin, 421 US 35, 47 (1975) : 43 LEd 2d 712, as cited in UOI v Vipan Kumar Jain, (2005) 9
SCC 579, 583 (para 8) : (2003) 181 CTR (SC) 24 : [2003] 260 ITR 1 (SC).
57 UOI v Vipan Kumar Jain, (2005) 9 SCC 579, 583 (paras 9 and 10) : (2003) 181 CTR (SC) 24 : [2003] 260 ITR 1 (SC).
58 UOI v Tulsiram Patel, AIR 1985 SC 1416 : (1985) 3 SCC 398, 479 (para 101), as cited in UOI v Vipan Kumar Jain,
(2005) 9 SCC 579, 583 (para 10) : (2003) 181 CTR (SC) 24 : [2003] 260 ITR 1 (SC).
59 J. Mohapatra & Co v State of Orissa, AIR 1984 SC 1572 : (1984) 4 SCC 103.
60 J. Mohapatra and Co v State of Orissa, AIR 1984 SC 1572 : (1984) 4 SCC 103; Jain, Cases, Chapter X, 860.
61 Zahira Habibulla H. Sheikh v State of Gujarat, AIR 2004 SC 3114 : (2004) 4 SCC 158, 192 (para 54).
62 R. Balakrishna v State of Kerala, AIR 2000 SC 2778 : (2000) 7 SCC 129, 134-35 (paras 9, 10 and 11), following
Maneka Sanjay Gandhi v Rami Jethmalani, AIR 1979 SC 468 : (1979) 4 SCC 167 : (1979) 2 SCR 378.
63 WB Electricity Regulatory Commission v CESC Ltd, AIR 2002 SC 3588 : (2002) 8 SCC 715, 763 (paras 100 and 101),
relying on Maneka Gandhi v UOI, AIR 1978 SC 597 : (1978) 1 SCC 248.
64 P.V. Narasimharao v State (CBI/SPE), 1996 (6) Scale (SP) 1 (2) : 1996 JCC 561.
65 Generally, on bias, see, Ross Carnation, Disqualification of Judges for Interest, Association or Opinion, (1979) Pub Law
237. See also Amar Nath Chowdhury v Braithwaite & Co Ltd, AIR 2002 SC 678 : (2002) 2 SCC 290, 292-93 (para 6).
End of Document
11.2 Pecuniary Bias
11.2 Pecuniary Bias

A direct pecuniary interest, howsoever small or insignificant, disqualifies a person from acting as a decision-maker
in a dispute. In a classic English case, a public limited company filed a case against a landowner in a matter largely
involving the interests of the company. The Lord Chancellor, who was a shareholder in the company, heard the
case and gave to the company, the relief sought by it. His decision was quashed by the House of Lords, because of
the pecuniary interest of the Lord Chancellor in the company.66 Lord Campbell in his opinion emphasized that, while
no one could suppose that the Lord Chancellor was, in the remotest degree, influenced by his interest in the
company, it was very important that the maxim that no man is to be a judge in his own cause be held sacred. The
Dimes case refers to a court of law but similar principle applies to adjudicatory proceedings as well.67
In India also, the principle is followed that “any direct pecuniary interest, however small, in the subject-matter of
inquiry will disqualify an adjudicator.68 The Supreme Court has observed: “If a person has a pecuniary interest, such
interest, even if very small, disqualifies such person.”69 Thus, where a permit was granted by a regional transport
authority to one of its own members, the High Court had no hesitation in cancelling the permit on account of bias of
the authority.70
In one case,71 Chief Justice Gajendragadkar of the Supreme Court reconstituted the bench excluding himself from
hearing the case, because he was a member of the co-operative society, for which the land in dispute had been
acquired.
Under its administrative powers, the State Government appointed a committee, to select books for purchase for
school and college libraries. Some of the members of the assessment committee, were themselves authors of
books and some of these books were selected and purchased. The Supreme Court held in J. Mohapatra & Co v
State of Orissa,72 that such a procedure would be hit by the Doctrine of Bias. A person who has written a book,
which is submitted for selection, either by himself or by his publisher, is interested in the matter of selection as he
stands to benefit financially, if his book is selected because he gets royalty on the sale of the book. It is immaterial,
how much he benefits. It is also no answer to say that an author-member is only one of the members of the
assessment committee and that the ultimate decision rests with the State Government, which may reject any book
out of the list of approved books. The reasons are: the State Government would normally be guided by the list
approved by the committee, and one member can subtly influence the minds of the other members against
selecting books by other authors in preference to his own.73 “It can also be that books by some of the other
members may also have been submitted for selection and there can be between them a quid pro quo.” Further,
whether the other members are so influenced or not, is a matter impossible to determine. The Court has thus
observed: “It is not, therefore, the actual bias in favour of the author-member that is material but the possibility of
such bias. All these considerations require that an author-member should not be a member of any such
committee.”74
A pecuniary or proprietary interest in the subject matter of the dispute, ipso facto, disqualifies the adjudicator and it
is not necessary to prove, that there was a real likelihood of bias in the circumstances of the case.
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11.2 Pecuniary Bias
66 Dimes v Grand Junction Canal, (1852) 3 HLC 759.

67 See, R. v Hendon R.D.C., ex parte Chorley, (1933) KB 696 ; R. v Barnsley Licensing Justices, ex parte Barnsley and
District Licensed Victuallers’ Association, (1960) 2 QB 167.
68 See, Gullapalli Nageswara Rao v State of Andhra Pradesh, AIR 1959 SC 1376 : (1960) 1 SCR 580; Mineral
Development Ltd v State of Bihar, AIR 1960 SC 468 : 1960 SCJ 643 : (1960) 2 SCR 609.
69 Rattan Lal Sharma v Managing Committee, AIR 1993 SC 2155 : (1993) 4 SCC 10 : 1993 (2) LLJ 549.
70 Annamalai v State of Madras, AIR 1957 AP 739. Also see, Air Corporation Employees Union v Vyas, (1962) LLJ 31.
71 Jeejeebhoy vAssistant Collector, Thana, AIR 1965 SC 1096 : 1965 (1) SCR 636.
72 See J. Mohapatra & Co v State of Orissa, AIR 1984 SC 1572 : (1984) 4 SCC 103; Jain, Cases, Chapter X, 860.
73 See, A.K. Kraipak v UOI, AIR 1970 SC 150 : (1969) 2 SCC 262. Also see, under ‘Group Decision’, infra, this chapter
and ‘Initial Recommendation,’.
74 The Mohapatra ruling has been applied by the Gujarat High Court in Kumkum Prakasham v State of Gujarat, AIR 1990
Guj 12, having a parallel fact-situation.
End of Document
11.3 Personal Bias
11.3 Personal Bias

The law relating to personal bias is complex. Questions about this type of bias arise very frequently. Varied
circumstances may give rise to personal bias in the decision-maker, for or against a party, in a dispute which he is
called upon to adjudicate. The decision-maker may be a friend or a relation of one of the parties to the dispute, or
may have some business or professional relationship with him, or may have some personal animosity or hostility
against him, or may have some personal friendship or family relationship with him. Or the decision-maker may have
been involved in some capacity in the earlier stages of the dispute. All these circumstances create bias either in
favour of, or against, the party concerned. Personal bias disqualifies the decision-maker to act as such. Some of the
situations when personal bias arises and disqualifies a decision-maker are:
(i) The manager of a factory himself conducts an inquiry against the workmen, who are alleged to have
assaulted him.75
(ii) A person sits on a gram panchayat bench to hear appeal against his own conviction by a lower body.76 A
member of a decision-making body cannot be both a party and a judge in the same dispute.77
(iii) An accuser presides over a meeting of the disciplinary authority, while seeking to discipline the person
against whom he has made accusations.78
(iv) The adjudicator happens to be a relation of one of the parties to the dispute, on which he seeks to
adjudicate.79
In Mineral Development Ltd v State of Bihar,80 the Revenue Minister cancelled the petitioner’s licence for the lease
of certain land. There was political rivalry between the petitioner and the minister, who had even filed a criminal
case against the former. It was held that since there was personal bias against the petitioner, the minister should
not have taken part in cancelling his licence.
On the other hand, in Murlidhar v Kadam Singh,81 the chairman of an election tribunal was held not disqualified from
deciding the dispute relating to the petitioner’s election, on the ground that the chairman’s wife was a member of the
Congress Party, whose candidate, the petitioner had defeated. In an early English case, it was held that a
magistrate, who was a subscriber to the Royal Society for the Prevention of Cruelty to Animals, but who had no
control over any prosecution by the society, was not disqualified from trying a charge of cruelty to a horse, brought
by the society.82 The Deputy Registrar of Co-operative Societies was held not to be disqualified, when he was a
member of a society (it appears by virtue of his office) and acting under the relevant statute, he ordered its
supersession.83
The test of personal bias of the decision-maker is not whether there was actual prejudice against the petitioner or
not. The courts do not go into the facts of the case to see whether or not the petitioner had been prejudiced in fact.
The courts in England have espoused two tests to determine personal bias: (1) real likelihood of bias; (2)
reasonable suspicion of bias.84 As De Smith explains,85 “reasonable suspicion” test looks mainly to “outward
appearances”; “real likelihood” test focuses on the courts’ own evaluation of the probabilities. But, in practice, both
tests have much in common with each other and in a vast majority of cases, it may not make any difference
whichever test is applied; the result may still be the same. At times, it has been stated that “there really is little (if
any) difference between the two tests”.86 But, at times, it has been stated that there is a difference and that the “real
suspicion” test is broader, less stringent and more flexible than the “real likelihood” test.87 The landmark case on the
Page 2 of 13
11.3 Personal Bias
subject is Metropolitan Properties Ltd v Lannon,88 where Lord Denning has laid down that the test of bias is whether
there is “real likelihood” of bias or not in the facts of the case and this has to be ascertained with reference to the
“right minded persons”. The fact-situation in this case was as follows:
A block of flats belonged to a company. A tenant in a flat applied for fixing fair rent. The matter reached the rent
assessment committee of which, Lannon, a solicitor, was the chairman. Lannon lived with his father, who was a tenant in a
flat owned by a company, an associate company belonging to the same group, as the company which was now a party in
the matter before Lannon. Lannon had assisted his father and other tenants, in fixation of fair rent for their flats. The
decision of the assessment committee was challenged on the ground of Lannon’s bias. The petitioner company even
acknowledged that there was no actual bias or want of good faith on Lannon’s part, but contended that there was
unconsciously “a real likelihood of bias”. The court of appeal accepted the plea and quashed the decision of the rent
committee on the ground of the “real likelihood” of bias. Lord Denning delivering the judgment of the court, emphasized that
it was of fundamental importance that justice should not only be done, but should manifestly be seen to be done. He
emphasized that in considering whether there was a “real likelihood” of bias, the court does not look at the mind of the
decision-maker himself. The court does not look to see if he did, in fact, favour one side at the expense of the other. “The
court looks at the impression which would be given to other people. Even if, he was as impartial as could be, nevertheless,
if right-minded persons would think that, in the circumstances, there was a ‘real likelihood’ of bias on his part, then he
should not sit. And if he does sit, his decision cannot stand.” There must appear to be a “real likelihood” of bias; mere
surmise or conjecture is not enough. “There must be circumstances from which a reasonable man would think it likely or
probable that the justice, or chairman, as the case may be, would, or did, favour one side unfairly at the expense of the
other. The court will not enquire whether he did, in fact, favour one side unfairly. Suffice it that reasonable people might
think that he did.” It is to be noted that the perspective from which to view bias is to be that of a reasonable man; it is not to
be that of the individual affected himself, because he may be perverse or over-sensitive; nor it is the perspective of the
judge impugned himself, who is unlikely to accept that he was biased; nor it is that of the reviewing court itself which may
determine ex facto with a cold detachment, whether bias was likely to arise in the circumstances of the case.
According to Lannon, the existence of actual bias in the decision-maker is not necessary. What is necessary is the
‘real likelihood of bias’, which is to be ascertained by the court not on the ground whether the reviewing court itself
thinks that there was a ‘real likelihood of bias’ in the given situation, but by applying the yardstick as to “what a
reasonable man” would think about the matter: whether he would think that there was a real likelihood of bias in the
situation. Even, when the reviewing court may feel that there was no real likelihood of bias in the decision-maker in
the circumstances of the case, it may yet quash a decision, if, in its opinion, the right-minded people would think so.
“The court looks at the impression, which would be given to other people”. Nevertheless, “there must appear to be a
real likelihood of bias. Surmise or conjecture is not enough”.89 The test as now formulated by Lord Denning, looks to
“outer appearances” and comes very near to the “reasonable suspicion” test. The reason for not insisting on actual
proof of bias in the decision-maker, is that it is extremely difficult to prove, on a balance of probabilities, that a
person required to act in an adjudicative capacity, was in fact biased. Bias is an attitude of mind leading to a
predisposition towards the issue. Because of this circumstance, the law looks “to suspicion”, of bias arising from the
factual situation, in which the particular adjudicator is placed rather than the existence of actual bias. The reason
underlying adoption of such a broad test of bias, is that justice must be rooted in public confidence and this
confidence is destroyed, when right minded persons think that the adjudicator was biased. Cross L.J. explained the
test as follows in Hannam v Bradford Corporation:90
“If a reasonable person who has no knowledge of the matter beyond knowledge of the relationship which subsists between
some members of the tribunal and one of the parties would think that there might well be bias then there is in his opinion a
real likelihood of bias. Of course, someone else with inside knowledge of the characters of the members in question might
say: “Although things don’t look very well, in fact there is no real likelihood of bias.” That, however, would be beside the
point, because the question is not whether the tribunal will in fact be biased, but whether a reasonable man with no inside
knowledge might well think that it might be biased.”
In India, no uniform test of bias has been applied by the courts. There has been confusion in judicial thinking as
regards the test of bias. Thus, in Manak Lal v Prem Chand,91 a complaint alleging professional misconduct against
Manak Lal, an advocate of the Rajasthan High Court, was filed by Prem Chand. The bar council tribunal, appointed
by the Chief Justice of the High Court, to enquire into the alleged misconduct of Manak Lal, consisted of a chairman
and two other members. The Chairman had earlier represented Prem Chand in a case, he was, however, a senior
advocate and was once the Advocate-General of the Rajasthan High Court. The Supreme Court had no hesitation
in assuming that the Chairman had no personal contact with his client and did not remember that he had appeared
on his behalf in certain proceedings. The court was, thus, satisfied that there was no “real likelihood of bias,” but still
it held that the Chairman was disqualified on the ground that “justice not only be done but must appear to be done
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to the litigating public.” The court ruled that actual proof of prejudice was not necessary in such cases; it was not
necessary to prove that any prejudice was caused or that the biased member did improperly influence the final
decision of the tribunal; reasonable ground for assuming the possibility of bias was sufficient.92 The court
emphasized that a judge should be able to act judicially, objectively and without any bias. In such cases, the test is
not whether, in fact, bias has affected the judgment, but whether the litigant could reasonably apprehend that bias
attributable to a member of the tribunal might have operated against him, in the final decision of the tribunal.93 In
this case, therefore, the court looked at bias from the perspective of the person affected which is a wider test than
that of the reasonable man adopted in Lannon. In Lannon, such a test was rejected by Lord Denning; instead, the
test of ‘reasonable man’ was adopted.
The leading case in this area is A.K. Kraipak v UOI,94 in which again the Supreme Court adopted the perspective of
the affected person as a test of bias. For selection to the Indian Forest Service from amongst the employees of the
State Forest Service, a selection board was constituted consisting of several members, including the acting
conservator of forests, who was himself a candidate. The Board selected a number of candidates including the
acting conservator. Some of the unsuccessful candidates, challenged the list as finally prepared by the Union Public
Service Commission, on the recommendation of the State Selection Board inter alia, on the ground of bias. The
Supreme Court quashed the selections emphasizing that the concept of rule of law would lose all its validity, if, the
state instrumentalities were not obligated to discharge their functions in a fair and just manner. It was improper to
have a candidate himself sitting as a member of the selection board. There was a reasonable ground to believe that
he was likely to be biased, as he would be interested in safeguarding his own position, while making the selections.
At every stage of his participation, there would be a conflict between his interest and duty. The court emphasized
that the real question was not whether he was biased “because it is difficult to prove the state of mind of a person,”
but whether “there is reasonable ground for believing that he was likely to have been biased.” “There must be a
reasonable likelihood of bias. In deciding the question of bias, we have to take into consideration, human
probabilities and ordinary course of human conduct.” The other members of the selection board, who were
independent persons had filed affidavits saying that they were in no way biased by the presence of the person in
question, and that he did not participate in the board’s deliberations, when his name was being considered, but still
the selections made by the board were quashed by the court. The court stated that the bias of one member in a
group would infect the whole group. In a group decision, it is difficult to say, how one biased member may influence
in a subtle manner the decision of other members.95 The court also emphasized that while the list prepared by the
State Board was not the last word in itself in the matter of selection, nevertheless, the board’s list must have
weighed with the Union Public Service Commission in making the final list.96
In Parthasarathi,97 the Supreme Court applied the “real likelihood of bias” test, but this was to be based on the
“reasonable apprehension of a reasonable man fully cognisant of the facts.” The qualifying words in this formulation
“fully cognisant of the facts” restrict the scope of the ‘real likelihood of bias’ test as propounded in Lannon. In
Lannon, it is a matter of impression not of knowledge. Justice is “seen” to be done, not ‘known’ to be done.
Therefore, the actual knowledge of facts is not the determining factor. What impression a reasonable man, looking
at the facts from outside, has about the matter is the crux.98 In G. Sarana v Lucknow University,99 the Supreme
Court made some observations, which threw doubt on the applicability of this test. The petitioner, a candidate for a
professor’s post in a university, challenged the recommendation made by the selection committee, on the ground of
personal bias on the part of two members of the committee against him, in favour of the candidate recommended
for appointment. His allegation was that the two members of the selection committee were very friendly to the other
candidate, and that one of the members had strained relations with the petitioner. Though the court refrained from
giving any relief in the instant case because of waiver on the part of the petitioner,100 yet it did make observations
as regards the scope of the rule of bias. While doing so, it adopted practically all the various expressions, used to
test bias from time to time, in different cases. At one place, the court said that “the real question is not whether a
member of an administrative board, while exercising quasi-judicial powers or discharging quasi-judicial functions,
was biased, for it is difficult to prove the state of mind of a person. What has to be seen is, whether there is a
reasonable ground for believing that he was likely to have been biased.” At another place, the court formulated the
following principle: “In other words, whether there is a substantial possibility of bias animating the mind of the
member against the aggrieved.” Thus, the court used two different expressions, viz, “reasonable ground for
believing” that he was biased, and “substantial possibility of bias.” The latter test seems to be more restrictive than
the former. It is not clear what specific test the court had in mind, or whether it thought that all these various
expressions were synonymous, and, further, whether it was for the court to be satisfied as to the possibility of bias
in the circumstances, or whether it would apply the test of a “reasonable man” as propounded in Lannon, or
whether it will look at the matter from the perspective of the aggrieved person? The Court observed:
“In deciding the question of bias, human probabilities and ordinary course of human conduct have to be taken into
consideration.”
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In several cases, the courts have applied the test of bias from the perspective of the affected person, eg Manak
Lal.101 In Chamba Singh v State of UP,102 the consolidation officer sent a letter to the State Government, to file
objections in the consolidation proceedings before him. It was argued that this showed that the consolidation officer
was biased against the petitioners. The Allahabad High Court accepted the argument saying, it was improper for
the consolidation officer to ask the State to file objections, and that bias in law was clearly attributable to the
consolidation officer. The court emphasised that while hearing objections, he was acting as a quasi-judicial tribunal
and so it was necessary for him to conduct proceedings in such a manner, “as would not engender a reasonable
apprehension in a litigant that he would not get a fair trial in that forum.” “Judicial tribunals which are invested with
judicial or quasi-judicial powers, must conduct the proceedings in such a manner that justice must not only be done
but must appear to be done to the litigant public”. Nothing can be more subversive to the faith of a litigant in a
tribunal than when it takes up cudgels on behalf of another party. The consolidation officer asked the State
Government to file objections. Thus, bias in law was clearly attributable to the consolidation officer. The Allahabad
High Court emphasized that on an allegation of bias being made, it is not necessary to prove actual prejudice; what
is necessary is to show that the adjudicatory proceedings were conducted in such a manner that a litigant could
reasonably apprehend that the final decision would be biased.103 Similarly, in Cheliah,104 the Madras High Court
said that the presence of the Chairman in the Board Meeting, while his appeal against the Chairman’s decision was
being discussed and decided upon, “certainly created a reasonable impression in the party, whose rights are being
adjudicated, that there may be a likelihood of bias. This is sufficient in law”. As has already been pointed out, in
Lannon, the test of bias was adopted from the perspective of a reasonable man and not from that of a litigant. The
reason being that he may be over-sensitive, while a reasonable man would take a more rational and balanced view
of the circumstances of the case.
In Ashok Kumar Yadav v State of Haryana,105 the Supreme Court has unequivocally reiterated the proposition, as
expressed in Kraipak, that a fundamental principle of Administrative Law is that no one can be a judge in his own
cause. The question is not whether the judge is actually biased, but whether there is a real likelihood of bias. “What
is objectionable in such a case, is not that the decision is actually tainted with bias, but that the circumstances are
such as to create a reasonable apprehension in the mind of others, that there is a likelihood of bias affecting the
decision.” This principle applies in all situations where an independent mind has to be applied, to arrive at a fair and
just decision between the rival claims of parties. The principle has been applied to administrative bodies as well,
which must discharge their functions in a fair and just manner. As regards Kraipak, the court has observed:
“... A.K. Kraipak case is a landmark in the development of administrative law and it has contributed in a large measure to
the strengthening of the rule of law in this country. We would not like to whittle down in the slightest measure the vital
principle laid down in this decision which has nourished the roots of the rule of law and injected justice and fair play into
legality.”
Bias arises in varied situations. An adjudicatory authority may be disqualified, if there is a close connection between
it and the issue in controversy. No person can be an advocate for or against a person in one proceeding, and at the
same time sit as a judge in another proceeding to which that very person is also a party.106 Similarly, a lawyer ought
not to sit as an adjudicator, in a case in which one of his clients is a party. Nor he ought to sit as an adjudicator,
when he is already acting against a party. No person should sit as an adjudicator, in a case to which a near relation
or a close friend is a party. A person should not act both as a judge and a witness, or as a judge and a prosecutor,
or as a complainant and a judge at one and the same time.107 An inquiry officer would be disqualified to act as such
at a departmental inquiry against an employee, if he were also to be a witness against that employee, in the same
inquiry. It is incongruous that a person should act both as a judge as well as a prosecutor or as a prosecution
witness. In such a situation, the enquiry officer cannot be regarded as unbiased. In a classic case,108 a
departmental inquiry was held against an employee. During the course of the inquiry, the officer holding the inquiry
left his seat, gave evidence against the said employee and then resumed the inquiry and passed the order of
dismissal. The Supreme Court quashed the order of dismissal on the ground of bias of the inquiry officer. In the
instant case,109 the management of a school appointed a committee to inquire into certain allegations against the
principal. During the course of the inquiry, one of the committee members (M) testified against the principal. The
inquiry committee recommended dismissal of the principal and the management acted accordingly. The Supreme
Court quashed the dismissal order on the ground of bias. The court ruled that the bias of M had percolated
throughout the inquiry, thereby vitiating the principles of natural justice, and the findings made by the committee
were the product of a biased and prejudiced mind. The court reiterated the principle that for appreciating a case of
personal bias, “that test is whether there was a real likelihood of bias even though such bias has not in fact taken
place.” The court also reiterated the test of bias as laid down in Manak Lal.110 Similarly, if the inquiry officer in a
disciplinary proceeding against a civil servant, has strong personal animosity against him, it is improper for him to
conduct the inquiry.111 The officiating director (M) framed certain charges against his subordinate P.M. himself
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conducted an inquiry into those charges against P.P. had objected against M conducting the inquiry on the ground
that M was biased against him. M held P guilty of some of the charges and ultimately, P was dismissed from
service. The Supreme Court quashed the dismissal order on the ground, that the cumulative effect of the
circumstances of the case “was sufficient to create in the mind of a reasonable man, the impression that there was
a real likelihood of bias in the inquiring officer”. A government servant cast some aspersions on two ministers. The
collector, who was subordinate to one of the ministers conducted the inquiry. The Gujarat High Court refused to
quash the inquiry, as, in its opinion, there was no reasonable ground for assuming the possibility of bias. This is an
old case112 where the judge himself decided whether there was the possibility of bias or not in the situation. Had the
Lannon113 test been applied, the result may have been different as a reasonable person would think that the
subordinate would be biased, while holding an inquiry in a matter involving the credibility and reputation of his
superior.
An inquiry was commenced by the general manager of a factory against some workmen. After five witnesses had
been examined, the managing director took over the enquiry and examined the general manager as a witness. The
proceedings were quashed by the Supreme Court, because quite apart from the incongruity of the person, who was
at the initial stage presiding over the inquiry stepping into the witness box, at a later stage, the managing director
who later took over the enquiry, was from the very beginning in charge of the prosecution and was active in
securing proper evidence to establish the charges against the workmen.114 On a similar basis, if a member of a
tribunal recommends a particular applicant for a permit, he will be disqualified from sitting as the member of the
tribunal to decide the matter.115 It will be wrong for the person who takes an initial decision to sit with the appellate
authority while hearing an appeal from his own decision though, under the relevant statute, he is a member of the
appellate authority. In K. Chelliah v Chairman, Industrial Finance Corporation,116 disciplinary action, by way of
dismissal, was taken by the Chairman of a statutory corporation, against an employee. There was a provision in the
statute, for an appeal from the Chairman to the Board of Directors. Accordingly, the dismissal employee appealed
to the Board against the Chairman’s order. The Chairman himself was an ex officio member of the Board and he
participated in the meeting of the Board, in which the employee’s appeal was considered. The Board resolved to
dismiss the employee’s appeal without giving him a hearing, but after obtaining Chairman’s comments. The High
Court quashed the Board’s decision, on the ground of bias, as the presence of the Chairman in the Board Meeting,
who had everything to do with the subject-matter under consideration, created a reasonable impression in the party,
whose rights were being adjudicated upon, that there was a real likelihood of bias, and that was sufficient in law.117
The court ruled that it was not necessary for the petitioner to establish as a fact that the Chairman did influence the
Board. “The Chairman having participated, the decision should be deemed to be or reasonably held to be hit by the
principle of bias.” The fact that the other members were independent members, did not really govern the issue. “The
impugned order ex facie shows that the Chairman’s original order and his remarks did have a great play in the
ultimate decision”. It was not a case of bias, where the Chief Secretary of the State was the same person, who had
made earlier several adverse remarks against the appellant officer and he sat as the Chairman of the Joint
Screening Committee, which found the said officer not fit for promotion to selection grade;118 but there were other
important facts, which clearly made out a case of real likelihood of bias on the part of the Chief Secretary. Earlier on
account of the said officer’s speech at a public function, the State Government had started a disciplinary inquiry
against him, which was later on dropped but a remark passed by the said secretary against the said officer was
published in a newspaper, for which the officer unsuccessfully sought permission of the State Government to
prosecute him. He filed a writ petition, in which the High Court held that refusal to grant sanction was not justified
and ought to have been given in public interest, which was confirmed by the Apex Court. The Supreme Court held
that the background of the special facts, there arises the question of likelihood of bias. Further, on the date of the
meeting of the Joint Screening Committee, the Chief Secretary was defending the officer’s writ appeal before the
Division Bench of the High Court. The plea of bias, although not raised during the inquiry proceedings, if it is raised
in the High Court, it is sufficient as it goes to the root of the question and is based on “admitted and uncontroverted
facts” and does not require any further investigation of facts. Therefore, the Chief Secretary should have “recused”
himself from the Committee. As he did not do so and participated in the decision-making process and disqualified
the said officer, the entire recommendations of the Screening Committee must be treated as vitiated and invalid.
This defect is also not cured because of the remedy of an appeal.119
In Baidyanath Mahaptra v State of Orissa,120 G. as Chief Secretary of the Orissa Government, was a member of the
review committee, which recommended compulsory retirement of B. from government service. The government,
accordingly, issued the order retiring B. He challenged the order before the State Administrative Tribunal, of which
G. had by now, become the chairman. The Tribunal upheld the retirement order and rejected B.’s challenge to it. On
appeal, the Supreme Court held the tribunal’s order vitiated on the ground that, G. participated in the tribunal
proceedings and was a party to its decision. The court pointed out that G. “who had administratively taken a
decision against the appellant, considered the matter judicially as a Chairman of the Tribunal, thereby he acted as a
judge of his own cause.” The court emphasized that while it was true that there was no allegation of personal bias
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against G., and he might have acted bona fide, “nonetheless, the principles of natural justice, fair play, and judicial
discipline required that he should have abstained from hearing the appellant’s case”. But, the court refused to give
any relief to the appellant on this ground, as he had not raised any objection before the tribunal against the
participation of G. This is applying the Doctrine of Waiver to the facts of the case.121 However, the court quashed
the order on several other grounds.
Can a person who has framed the charges against a civil servant, act as the inquiry officer in disciplinary
proceedings against him? In Parthasarathi v State of Andhra Pradesh,122 this was held to be wrong. However, the
Supreme Court reached a contrary result in Sunil Kumar v State of West Bengal,123 where the inquiry officer was
the one, who had earlier drafted the charges against the civil servant concerned and had given the advice that there
was material for holding the enquiry against him. The court did not accept that, as this meant that he was acting
both as prosecutor as well as judge.124 The ruling in Sunil is debatable. In the instant case, the enquiry officer did
not merely frame charges against the petitioner, but he did something more than that—he really advised for holding
the inquiry against him. He, thus, became associated with the idea of initiating inquiry against him and his
commitment with the result of the inquiry became somewhat more direct and personal. This kind of situation does
create an impression in the right-minded person, that there is a real likelihood of bias in the circumstances of the
case. Instead of applying this test, the court took it upon itself to decide whether there was bias or not in the fact
situation. This is not a correct approach. As an inquiry officer, he would be interested in substantiating the charges,
which he drew initially, and also to establish that his initial advice to hold an inquiry was right. The court neither
referred to the test of bias, already established in several earlier cases, nor sought to apply the same to the fact-
situation of the instant case. Had the test of real likelihood of bias in the view of a reasonable man been applied to
the fact situation here, it would have pointed to only one result. It is best that such a situation is avoided and inquiry
is held by a completely fresh mind having no association with the case. As there is no dearth of officers in the
government, it should not be difficult for the government, to appoint an inquiry officer having no association with the
matter. It seems that there may be no objection, if the disciplinary authority draws the charges itself, but then
entrusts the inquiry into those charges to an impartial person.125
It has been held that bias cannot be attributed, when hearing is entrusted to the very person, who had earlier
decided against the person concerned without a hearing. A student was detained in his class by the principal and
the college council, on the ground of his using unfair means at the promotion examination. The High Court quashed
the order on the ground of violation of natural justice. The principal again proceeded with the charge, appointed an
inquiry committee and on its recommendation, the college council again recommended detention. This was
challenged on the ground of bias. It was argued that the principal and the council, having decided the matter once
earlier, had a bias in favour of their earlier decision and so, they were not capable of reaching a fair decision a
second time. Rejecting the contention, the Kerala High Court observed: “. . . it is not to be presumed that a person
who has once decided a matter without due hearing would have such a bias in favour of his decision as not to be
capable of reaching a fair decision after due hearing.”126 This again is a very doubtful proposition for, in such a
situation there does exist a real likelihood of bias, as the natural inclination of any person in such a situation will be
to vindicate the conclusions reached by him earlier. This point of view is supported, to some extent, by the Supreme
Court decision in Rattan Lal Sharma.127 Quashing the decision of the managing committee to dismiss the college
principal, on the ground of bias of a member of the inquiry committee, the court ruled that while the managing
committee would not be precluded from initiating a fresh disciplinary proceeding against the principal, no member of
the old inquiry committee should be a member of the new inquiry committee. That a party to a dispute cannot
himself act as a judge— this proposition is exemplified by the following case.128 The appellant, a godown keeper in
the government food grains depot, was held liable for shortage in rice. The government decided that he must pay
over Rs. 2000 on this account. When the appellant entered into service with the State, he had agreed to make good
any loss caused by his carelessness, misconduct etc. It was under this agreement that the government imposed the
said liability on him. Quashing government decision, the High Court ruled that no doubt the agreement provided for
recovery of loss or damages, but the agreement did not indicate how the liability was to be fixed. The agreement did
not make the government an arbiter, to fix the quantum of liability. The liability to pay damages and the power to
quantify damages were two entirely different things. The government could not itself take a one-sided decision and
fix the quantum of liability, as it had no such power under the agreement and also because no man can be a judge
in his own cause. In a dispute about a contract, a person cannot be both a party and a judge.
An important case on bias is Institute of Chartered Accountants of India v L.K. Ratna.129 The institute is a statutory
body established to maintain discipline and professional ethics among the chartered accountants. The instant case
arose out of disciplinary proceedings taken by the institute against a chartered accountant. The council is the
governing body of the institute. There is a disciplinary committee consisting of the President, Vice-President and
three members of the council. A complaint against a chartered accountant is first investigated by the disciplinary
committee; the report of this committee is then considered by the council. If the disciplinary committee finds a
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member guilty of professional misconduct, the council gives a hearing to the concerned member before imposing a
punishment. In Ratna, the council proposed to remove the name of the respondent from the register of accountants
for five years, on the ground of professional misconduct. The fine question which arose was whether the President,
Vice-President and the members of the disciplinary committee could participate in the council’s meeting, when it
considered the report of the disciplinary committee. The court ruled that “a member accused of misconduct is
entitled to a hearing by the council when, on receipt of the report of the disciplinary committee, it proceeds to find
whether he is or is not guilty.” The court also ruled that the members of the disciplinary committee would be
disqualified from participating in the council meeting, when it is considering the report of the disciplinary committee.
This is on the principle of bias; the council discharges a quasi-judicial function and the fundamental principle is that
“justice must not only be done but must also appear to be done.” To the member whose conduct has been
investigated by the disciplinary committee, the possibility of the council disagreeing with the report of the
disciplinary committee, in the presence of the President, Vice-President and other members of the disciplinary
committee, would be rather remote. His fears would further be aggravated by the circumstance that the President
who presided over the disciplinary committee meetings, would also preside over the council meeting, and he would
thus be in a position to control, and possibly dominate, the proceedings during the meeting. The danger of partisan
consideration being accorded to the inquiry report by the council, would be very real to the mind of the concerned
member. The objection on the ground of bias would have been excluded had the statute expressed itself to the
contrary, but the Act makes no such exclusion.130 The court rejected the argument of necessity.131 The court
pointed out that under the rules while the disciplinary committee must necessarily consist of the President and the
Vice-President, there was no such compulsion about the council meeting. The court suggested an amendment of
the Act, providing for the constitution of the disciplinary committee without the President and the Vice-President, so
as to give due recognition to the fundamental principles of law. The Ratana pronouncement has great significance
in the context of India. A number of statutory professional bodies have been created for maintaining discipline and
professional ethics among the practitioners of various professions. The Ratna ruling will be applicable to all such
bodies, while they dispose of cases of indiscipline among the members of the concerned profession. Through this
ruling, the Supreme Court has extended much better safeguards to professional persons.132
A student was rusticated from the college for three years for mis-behaviour. Some of the principal witnesses to the
incident in question were members of the staff; they were appointed as members of the inquiry committee as well
as of the disciplinary committee. The High Court held the decision was vitiated on the ground of bias. The court
noted that although these persons were professors in the college and had no personal grudge against the student,
and that they might have tried to hold an impartial inquiry, nevertheless, that would not create confidence in the
student that the enquiry was unbiased. The inquiry committee had reported that the student be rusticated from the
college. This meant that the staff members on the committee categorically expressed the view that the punishment
be imposed on the student. The disciplinary committee with the same staff members accepted the report of the
inquiry committee. It was true that there were many other highly qualified and respected academicians as members
of the two committees and “no allegations are made or can be made against their honesty, integrity and
impartiality.” However, the court ruled that by itself was not “sufficient to save the situation.”133 It needs to be
pointed out that in this case, the court looked at the matter from the point of view of the affected person rather than
that of ‘a reasonable person’ as laid down in Lannon. However, the result would have been the same, had the
Lannon test been applied.
In Divya Chandra v Vice-Chancellor, Roorkee University,134 some students of a university complained to the Vice-
Chancellor against a fellow student, that she had used unfair means at the examination. The Vice-Chancellor
appointed a committee of inquiry but the complaining students pressurized him to dissolve this committee and
appoint another committee out of a panel of names submitted by them. The Vice-Chancellor acted accordingly. On
the recommendation of the new committee, the senate resolved to withhold the result of the student. On a writ
petition filed by the student concerned, the High Court quashed the senate’s decision on the ground of bias,
because: (i) the inquiry committee was chosen by the complaining students themselves, who had a bias and enmity
against the petitioner - this amounted to a person being a judge in his own cause; (ii) the inquiry committee
practically held the petitioner guilty, even before holding the inquiry - this shows that the committee members were
determined to punish the petitioner; (iii) some members of the committee which recommended the punishment were
members of the senate and attended its meeting, when it approved the committee’s recommendation; (iv) some
members of the inquiry committee had earlier deposed against the petitioner before the preliminary inquiry
committee.
The principle that no man can be a judge in his own cause is illustrated by Arjun Chaubey v UOI.135 The appellant
was dismissed from railway service by the Deputy Chief Commercial Superintendent (DCCS). Most of the charges
levied against the said employee related to his conduct qua the DCCS himself,136 who himself considered the
employee’s representation and passed the dismissal order. No enquiry was held as the DCCS passed an order
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under Article 311(2) that it was not reasonably practicable to hold the inquiry.137 The Supreme Court quashed the
order on the ground that the said DCCS sat as a judge in his own cause. The court pointed out that if a proper
inquiry were held, the principal witness for the employer would have been the DCCS himself as the main accuser
and the target of the applicant’s misconduct. The court emphasised: “No person can be a judge in his own cause
and no witness can certify that his own testimony is true. Anyone who has a personal stake in an inquiry must keep
himself aloof from the conduct of the inquiry.” While quashing the impugned dismissal order, the court commented:
“The illegality touching the proceedings which ended in the dismissal of the appellant is ‘so patent and loudly
obtrusive that it leaves an indelible stamp of infirmity’ on the decision of respondent (DCCS)”. The father of a
candidate, being the secretary of the managing committee of the school, participated in her selection as a teacher
and by virtue of such improper selection, she became a member of the managing committee, which subsequently
confirmed her selection. In such circumstances, the Apex Court held that her selection amounted to flagrant
violation of the principles of natural justice.138 Where a provisional promotee, whose own promotion was pending
before the commission, was appointed as its member, it raised suspicion of undue favour and was held to be
improper and illegal.139 A party to a dispute regarding title of a property, cannot be appointed receiver of that
property, pending initiation of proceedings in the civil court by the parties.140
In S.P. Kapoor v State of Himachal Pradesh,141 Dr G made annual confidential reports relating to several
government doctors working under his administrative charge. Dr G was himself a candidate for promotion
competing with several of these doctors. It was held that it was not fair for the selection committee to take into
consideration the confidential reports made by Dr G, regarding the other doctors. The court also concluded that the
whole selection exercise was made in post-haste completing it in one day, which was unusual. It was clear that
some higher-up (such as the Chief Minister) was interested in the matter. The court, thus, required that the matter
of selection for promotion be considered afresh. The State Government appointed a committee, to select books for
purchase for schools in the State. One of the committee members happened to be the daughter-in-law of one of the
authors, whose books were ultimately selected. The selection was quashed on the ground of bias. The presence of
a near relation of an author in the committee, would raise reasonable apprehension of bias on the part of such a
member in the minds of the competitors.142
In I.T.C. Ltd v UOI,143 the Director, Directorate of Anti-Evasion (Central Excise), issued a show-cause notice to the
petitioner company, to show cause why central excise duty of Rs. 803 crores, which was allegedly short paid by the
company, should not be demanded under the provisions of the relevant act. The company moved a writ petition in
the High Court, requesting the court to prohibit the director from adjudicating in the matter because of bias on the
following grounds:(i) one and the same officer should not issue the show cause notice as well as decide the case
also; (ii) the said officer had made a press statement prior to the inquiry holding the company guilty of tax evasion;
(iii) under the reward scheme, the concerned officer would get reward from the government for unearthing tax
evasion and this created bias in him against the company, as he would be prompted to find tax evasion even
though actually it was not so. The Calcutta High Court rejected all these contentions. As regards the first contention,
the court argued that if an authority is expressly empowered by the statute, to make a draft order or provisional
decision and is empowered to entertain representations and consider objections against it in order, to decide
whether or not to give it final effect, the question of bias does not come into play, “in as much as such a state of
affair is neither intrinsically offensive nor abnormal in the process of administration”.144 The court by-passed the
second argument, by saying that the newspaper could not be relied upon as such, unless someone who heard the
statement testified as to its veracity.145 Also, it was not possible to draw any inference from an isolated statement,
without knowing the context in which it was made. The court rejected the third argument by saying:
“Simply because the reward rules entitled an officer to get a reward... is not sufficient to prove a case of bias, inasmuch as
a case of bias, has to be established with some materials and not on the basis of some vague allegations and/or on the
basis of mere interpretation of the reward rules.”
As a comment on the above formulation, it may be stated that it is not in accord with the ‘real likelihood’ rule. It is
not necessary to establish actual bias, to quash an adjudicatory proceeding on the ground of bias. Further, the
reward rules did create a financial interest in the concerned officer, which could be regarded as a disqualification.146
The best thing in the situation would be to separate the “adjudicatory” function from the “inquiry” function, by
suitably amending the law, so as to remove any suspicion of bias from the system.
The rule against bias was applied to trial by court-martial in Ranjit Thakur v UOI.147 The court-martial consisted of
three persons, one of whom was the Commanding Officer (CO) of the Regiment. Earlier, the appellant had sent a
representation directly to the higher officers, complaining against the CO, for which the CO had imposed on the
appellant, a sentence of 28 days’ rigorous imprisonment. While in custody, he refused to eat his food and to try this
offence, the court-martial in question was constituted, which imposed a sentence of one-year rigorous imprisonment
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11.3 Personal Bias
on him and he was also dismissed from service. The appellant challenged the sentence and the proceedings of the
court-martial through a writ-petition.148 One of the grounds of challenge was the bias on the part of the CO, who
himself was a member of the court-martial. Accepting the plea of bias, the Supreme Court ruled that having regard
to the antecedent events, the participation of the CO in the court-martial rendered the proceedings coram non
judice. The court emphasized: “A judgment which is the result of bias or want of impartiality is a nullity and the trial
‘coram non judice’.” Explaining the principle of bias, the court observed: “As to the test of the likelihood of bias what
is relevant is the reasonableness of the apprehension in that regard in the mind of the party. The proper approach
for the Judge is not to look at his own mind and ask himself, however, honestly, “am I biased?” but to look at the
mind of the party before him.” The court specifically approved the “real likelihood” test laid down by Lord Denning in
Lannon, but it may be noted, that there is some difference between the Lannon test and the one adopted here. In
Lannon, the “real likelihood of bias” was tested with reference to the reasonable man, whereas here the party
himself has been taken as the index. As already stated, this test is broader than the Lannon test.149 In any case, the
result would have been the same, had the ‘reasonable man’ test been applied in this case. Another ground to quash
the sentence of the court-martial, was that some mandatory procedural rules had not been observed by the court-
martial. Non-observance of the procedure as laid down in the Act, was held to go to the root of the jurisdiction of the
court-martial and vitiated its proceedings. The court emphasized upon the importance of following the procedural
rules.150
To sum up the above discussion, ‘bias’ is ’situational’ or ‘circumstantial’. It is not the ‘reality’ of the matter, but the
‘appearance’ which is important. A judge knowing the facts from inside may feel that there was no bias in the
decision-maker, but a reasonable man looking at the same facts externally, may still feel that justice was not done
in the instant case. In this context, therefore, the test of “actual bias” gives place to the broader test of “real
likelihood of bias”. Needless to say, where actual bias exists, administrative proceedings will be vitiated. But actual
bias is not always necessary for this purpose. Even where there is “real likelihood of bias”, proceedings are vitiated.
In several cases above,151 the courts have propounded a test of bias from the perspective of the litigant: what will a
litigant feel about the matter? In Rattan Lal Sharma,152 the Supreme Court has observed:
“... the test is not whether in fact, a bias has affected the judgment: the test always is and must be whether a litigant could
reasonably apprehend that a bias attributable to a member of the tribunal might have operated against him in the final
decision of the tribunal. It is in this sense that it is often said that justice must not only be done but also appear to be done.”
In Ramanand Prasad Singh v UOI,153 the Supreme Court held that the participation of a person in the selection as a
member of the selection committee, in which his brother was a candidate but he was not selected, was not violative
of the selection of other candidate on the principle of personal bias. One of the candidates for the posts of District
Food and Supplies Officer in Haryana, alleged bias against the Chairman of the Public Service Commission, when
the second interview was held, on the ground that he had approached the Supreme Court earlier. The Supreme
Court found that two more candidates had approached the Apex Court earlier, yet they were selected. His plea of
bias was rejected.154
Lord Denning rejected such a test in Lannon, as a litigant’s view is bound to be very subjective; he may be too
suspicious and may see bias everywhere, if he loses the case. It is, therefore, not his suspicions which are to be
determinative of bias. Instead, the test of a ‘reasonable man’, a less subjective test, has been adopted in
England.155
In Constable Davinder Singh v State of Haryana,156 bias was contended in the selection of constables alleging that
one of the candidates selected, was related to one of the selecting officers and some candidates had worked as
gunmen with VIPs. The Apex Court found that the selection of 40 candidates was done objectively and the same
could not be vitiated only on account of the said allegations. The mere fact that one of the members of the selection
committee was a member of an organisation, or was on the editorial board of a magazine brought out by that
organisation, and one of the candidates appearing before the said selection committee was the editor of that
magazine, was held to be not sufficient to infer that such a member would necessarily be favourably inclined
towards that candidate.157 Similarly, one of the members of the selection committee being a distant relative of a
candidate by six degrees, was held to be not violative of the principles of natural justice.158 A committee was
appointed to consider the question of inter se seniority of the two batches of the recruits of the civil services of the
Sikkim State. One of the recruits alleged bias against the head of the committee, as his wife also was one of the
recruits, hence her seniority should not have been determined by the committee. The Supreme Court rejected his
contention holding that such an objection should have been raised as soon as the committee was constituted.159 In
a departmental proceeding, the disciplinary authority appointed an inquiry officer. Subsequently, the disciplinary
authority was replaced by an ad hoc disciplinary authority, who, on the basis of the report of inquiry officer
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11.3 Personal Bias
appointed by the original disciplinary authority, passed the order of the employee’s removal from services. The
order of removal was set aside by the tribunal, on the ground that the inquiry officer was appointed by the original
disciplinary authority and not by the ad hoc disciplinary authority, who passed the order. The Apex Court held that in
absence of any prejudice or allegation of bias or mala fides against the inquiry officer, the order of the disciplinary
authority should not have been set aside.160 There can be two ways by which a case of mala fides can be made
out; one that the action which is impugned has been taken with the specific object of damaging the interest of the
party and, secondly, such action is aimed at helping some party which results in damage to the party alleging mala
fides. The court found that the first category was not pleaded and the second one was vaguely pleaded.161 Where
the Supreme Court, considering an employee’s case and his litigation against his officers, had directed that his case
for promotion should be considered by an interview committee, which did not include any of those officers, it
rejected the contention of bias by the employee, against the members of the said committee, on the ground of his
previous litigation.162 Similarly, where the Apex Court had directed that the case of extension in the service of the
employee should be considered by a three-member committee headed by an outsider as its chairman, so that the
decision be taken objectively, allegation of bias against its members was rejected.163
The principle, which requires that a member of a selection committee, whose close relative is appearing for
selection, should decline to become a member of the selection committee or withdraw from it, leaving it to the
appointing authority to nominate another person in his place, need not be applied in the case of a constitutional
authority, like the Public Service Commission, whether Central or State. If a chairman or member of the Public
Service Commission were to withdraw altogether from the selection process, on the ground that a close relative of
his is appearing for selection, no other person save a chairman and/or member can be substituted in his place. And
it may sometimes happen that no other member is available to take the place of such chairman or member and the
functioning of the Public Service Commission may be affected.164 If a party, with open eyes and full knowledge and
comprehension of the provision that for settlement of disputes by arbitration, the arbitrator will be one of the senior
officers of the government, statutory corporations and public sector undertakings, enters into a contract with them,
he cannot subsequently turn around and contend that he is agreeable for settlement of the disputes by arbitration,
but not by the named arbitrator who is an employee of the other party.165
75 Meenglas Tea Estate v Workmen, AIR 1963 SC 1719 : 1963 (2) LLJ 392. Also see, State of Punjab v Karam Chand,
AIR 1959 Punj 402.
76 Ramjag Singh v State of Bihar, AIR 1958 Pat 7.
77 Frome United Breweries Co v Bath Justices, (1926) AC 587 .
78 Taylor v National Union of Seamen, (1967) 1 WLR 532.
79 Amolak Chand v SDO, AIR 1962 Ass 80.
80 Mineral Development Ltd v State of Bihar, AIR 1960 SC 468; Jain, Cases, Chapter X, Section, B, 874. Also see, State
Road Transport Corporation v Satyanarayan Transport, AIR 1965 SC 1303.
81 Murlidhar v Kadam Singh, AIR 1964 MB 111.
82 R. v Deal Justices, ex parte Curling, (1881) 45 LT 439.
83 Durga Shankar v State, AIR 1982 Ori 20.
84 Reg. v Liverpool JJ, ex p. Topping (D.C.), (1983) 1 WLR 122 .
85 Judicial Review of Administrative Action, 262-64 (1980). Also see, Jackson, Natural Justice, 26-32 (1979).
86 Cross L.J. in Hannatn v Bradford Corp, (1970) 1 WLR 937. Jackson, Natural Justice, 26-32 (1979), thinks that there is
no antithesis between the two tests.
87 Slaughton, J. in Tracomin S.A. v Gibbs Nathaniel (Canada) Ltd, (1985) 1 Lloyds Rep 586, 596. In Parthasarathi v State
of AP, AIR 1973 SC 2701 : (1974) 3 SCC 459, the Supreme Court of India has characterised both the tests as
inconsistent with each other. Also see, Rawlings, (1980) Public Law 122; A lexis, (1979) Public Law 143,
88 Metropolitan Properties Ltd v Lannon, (1968) 3 All ER 304; Jain, Cases, Chapter X, Section B, 866.
89 For comments on the Lannon case, see, 43 Australian L.J., 71 (1969) and 3 New Zealand Universirty L.R., 440-2
(1968-69). Also, Wade, Bias—A Question of Appearance or Reality, 85 LQR 23 (1969); Hannam v Bradford City
Council, (1970) 2 All ER 690; Re Godden, (1971) 3 All ER 20.
90 Hannam v Bradford Corporation, (1970) 2 All ER 690.
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11.3 Personal Bias
91 Manak Lal v Prem Chand, AIR 1957 SC 425 : 1957 SCR 575; Jain, Cases, Chapter X, Section B, 869. For further
comments on Manak Lal, see under heading: ‘Waiver’, infra, this chapter. Also see, S.K. Golap v Bhuban Chandra
Panda, AIR 1991 Cal 295.
92 Decision by the High Court was set aside in the instant case because the judge, while practicing as a lawyer, prior to
his appointment as a judge, had appeared in a writ petition, in a case, on behalf of the petitioners in the instant case.
Though the judge might not be actually biased, the test was not that of ‘actual bias but of reasonable likelihood of bias’.
See, S.K Golap v Bhuban Chandra Panda, AIR 1991 Cal 295.
93 De Smith, Judicial Review of Adm. Action, 263 (1980).
94 A.K. Kraipak v UOI, AIR 1970 SC 150 : (1969) 2 SCC 262. See also B.P. Yadav (Dr) v Ratneshwar Prasad Singh (Dr),
AIR 1996 SC 3202 : (1996) 8 SCC 494, 501 (para 25). Also see, supra, Chapter IX: Jain, Cases, Chapter X, Section B,
877.
95 For a comment on this case see, M.P. Jain, Bias and Administrative power, 13 JILL 362 (1971); also, IV ASIL, 88
(1970). Also see, infra, under ‘Group Decision’, this chapter AIR 1970 SC 150 : (1969) 2 SCC 262.
96 Also see under heading: ‘Initial Recommendation’, infra, this chapter.
97 S. Parthasarathi v State of Andhra Pradesh, AIR 1973 SC 2701 : (1974) 3 SCC 459.
98 The Court applied the “reasonable suspicion of bias” test in D.L. Ramesh v Karnataka, AIR 1978 Kant 3.
99 G. Sarana v Lucknow University, AIR 1976 SC 2428 : 1977 (1) LLJ 68 : (1976) 3 SCC 585; Jain, Cases, Chapter X.
100 On Waiver, see, infra, this chapter, Shri Rattan Lal Sharma v Managing Committee, Dr. Hari Ram (Co-ed) Higher
Secondary School, AIR 1993 SC 2155 : (1993) 4 SCC 10 : (1993) 2 LLJ 549.
101 See, Manak Lal v Prem Chand, AIR 1957 SC 425 : 1957 SCR 575.
102 Chamba Singh v State of UP, AIR 1973 All 552.
103 Also see, D.K. Khanna v UOI, AIR 1973 HP 30.
104 K. Chelliah v Chairman, Industrial Finance Corporation, AIR 1973 Mad 122.
105 Ashok Kumar Yadav v State of Haryana, AIR 1987 SC 454 : (1985) 4 SCC 417; Jain, Cases, Chapter X, Section D,
917. See also A.U. Kureshi v High Court of Gujarat, (2009) 11 SCC 84, 85 (paras 9 and 10).
106 S.K. Golap v Bhuban Chandra Panda, AIR 1991 Cal 295.
107 Kamini Kumar v State of West Bengal, AIR 1972 SC 2060 : (1972) 2 SCC 420.
108 State of Uttar Pradesh v Nooh, AIR 1958 SC 86 : 1958 SCR 595. Also, Andhra-Scientific Co v Seshagiri Rao, AIR
1967 SC 408 : 1961 (2) LLJ 117; Kumari Kharbanda v State of Himachal Pradesh, ILR 1974 HP 1134.
110 Manak Lal v Prem Chand, AIR 1957 SC 425 : 1957 SCR 575.
111 S. Parthasarathi v State of Andhra Pradesh, AIR 1973 SC 2701 : (1974) 3 SCC 459. Also see, supra.
112 J.J. Mody v State of Bombay, AIR 1962 Guj 197.
113 Metropolitan Properties Ltd v Lannon, [1968] 3 All ER 304.
114 Andhra Scientific Co v Seshagiri Rao, AIR 1967 SC 408 : 1961 (2) LLJ 117. Also see, Darbari Rant v State of UP, AIR
1956 All 578.
115 Prem Bus Service v RTA, AIR 1968 Pun 344.
116 K. Chelliah v Chairman, Industrial Finance Corporation, AIR 1973 Mad 122.
117 On this aspect, see, Jackson, Natural Justice, 44-46 (1979); De Smith, Judicial Control of Administrative Action, 260-61
(1980).
118 Badrinath v Govt of TN, (2000) 8 SCC 395, 428 (para 66), following State of MP v Ganekar Motghare, (1989) Supp (2)
SCC 703 and State of UP v Raj Kishore Bhargava, 1992 Supp (2) SCC 92. See also Md. Shoaib v State of Bihar, JT
2001 (S2) SC 178.
119 Badrinath v Government of TN, AIR 1994 SC 961 : (2000) 8 SCC 395, 429-30 (paras 70-76), following V. Mahadevan
v D.C. Aggarwal, 1993 Supp (4) SCC 4 : (1994) 26 ATC 64; Tilak Chand Magatram Obhan v Kamala Prasad Shukla,
1995 Supp (1) SCC 21 : 1995 SCC (L&S) 251; Rattan Lal Sharma v Managing Committee, Hari Ram (Dr) (Co-
Education) Higher Secondary School, (1993) 4 SCC 10 : (1993) 25 ATC 449.
120 Baidyanath Mahaptra v State of Orissa, AIR 1989 SC 2218 : (1989) 4 SCC 664 : 1989 (4) SLR 220.
121 See, infra, this chapter on Waiver.
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11.3 Personal Bias
122 Parthasarathi v State of Andhra Pradesh, AIR 1973 SC 2701 : (1974) 3 SCC 459.
123 Sunil Kumar v State of West Bengal, AIR 1980 SC 1170 : (1980) 3 SCC 304 : 1980 LIC 654. For fact situation of the
case, see, supra, Chapter X. Also see, Jain, Cases. Chapter IX, Section J, 852.
124 In the instant case, the Court took the analogy of a magistrate, but this does not seem to be to the point. A magistrate
has nothing to do with the decision, whether to prosecute the accused or not; prosecution does not start on his advice;
he merely formulates the charges on the basis of evidence before him. In the instant case, the enquiry officer not only
framed the charges but even advised for holding an enquiry against the concerned person. Thus, he became
associated with the idea of holding an enquiry and his commitment with the result of the inquiry, became somewhat
more direct and personal.
125 P.M. Kurien v P.S. Raghavan, AIR 1970 Ker 142; K.R. Chari v Cantonment Board, Secunderabad, AIR 1961 SC 37.
126 P.M. Kurien v P.S. Raghavan, AIR 1970 Ker 142.
127 Ratan Lal Sharma v Managing Committee, AIR 1993 SC 2155 : (1993) 4 SCC 10 : 1993 (2) LLJ 549.
128 M.C. Joseph v State of Kerala, AIR 1973 Ker 216. Also see, infra, under Government Contracts, Chapter XXIII.
129 Institute of Chartered Accountants of India v L.K. Ratna, AIR 1987 SC 71 : (1986) 4 SCC 537 : (1987) 164 ITR 1; Jain,
Cases, Chapter IX, Section H, 786.
130 See, infra, under ‘Statute may exclude Bias,’ infra, this chapter.
131 Also, see, infra, under ‘Necessity excludes Bias’, infra, this chapter.
132 Institute of Chartered Accountants v L.K. Ratna, AIR 1987 SC 71 at p. 72 : (1986) 4 SCC 537.
133 Bhupendra Kumar Singhal v P.R. Mehta, AIR 1990 Guj 49; Jain, Cases, Chapter IX, Section I, 817.
134 Divya Chandra v Vice-Chancellor, Roorkee University, AIR 1992 All 298.
135 Arjun Chaubey v UOI, AIR 1984 SC 1356 : (1984) 2 SCC 578 : 1984 (2) LLJ 17; Jain, Cases, Chapter X, Section B,
881.
136 For example, the appellant challenged the DCCS, used offensive and abusive language, stormed into his office etc.
137 Supra, Chapter VIII, UOI v Tulsirain Patel, AIR 1985 SC 1416 : (1985) 3 SCC 398 : 1985 (2) LLJ 206; Jain, Cases,
634.
138 Gurdip Singh v State of Punjab, (1997) 10 SCC 641, 642 (para 3). See also Padma v Hiralal Motilal Desarda, AIR 2002
SC 3252 : (2002) 7 SCC 564.
139 B.P. Yadav v Ratneshwar Prasad Singh, AIR 1996 SC 494 : (1996) 8 SCC 494 : JT 1996 (3) SC 283.
140 East City Defence Personnel Welfare Association v State of AP, (1999) 6 SCC 130, 136 (para 17).
141 S.P. Kapoor v State of Himachal Pradesh, AIR 1981 SC 2181, 2196 : (1981) 4 SCC 716 : 1982 (1) LLJ 206.
142 Kumkum Prakashan v State, AIR 1990 Guj 12.
143 I.T.C. Ltd v UOI, AIR 1989 Cal 294.
144 See, infra, under “A Statue may exclude Bias”, this chapter.
145 See, infra, under “Prior utterances”, this chapter.
146 On pecuniary bias, see, supra, this chapter; (1852) 3 HLC 759.
147 Ranjit Thakur v UOI, AIR 1987 SC 2386 : (1987) 4 SCC 611 : 1988 (1) LLJ 256 : 1988 CrLJ 158; Jain, Cases, 882.
148 See, Alice Jacob, Court Martials and Right to Fair Trial, 29 JILI 411 (1987).
149 Metropolitan Properties Ltd. v Lannon, [1968] 3 All ER 304.
150 Infra, Chapter XIV & Chapter XVIII.
151 See, under heading personal bias, supra, this chapter.
152 Ratan Lal Sharma v Managing Committee, AIR 1993 SC 2155 : (1993) 4 SCC 10 : 1993 (2) LLJ 549.
153 Ramanand Prasad Singh v UOI, (1996) 4 SCC 64, 68 (para 13).
154 Rajinder Singh v State of Haryana, (1998) 8 SCC 454, 456 (para 6). See also Jagat Bandhu Chakraborti v G. C. Roy,
(2000) 9 SCC 739, 740 (para 4); Charanjit Singh v Harinder Sharma, AIR 2002 SC 2397 : (2002) 9 SCC 732, 734
(para 5).
155 Metropolitan Properties Ltd. v Lannon, [1968] 3 All ER 304.
156 Constable Davinder Singh v State of Haryana, AIR 1996 SC 1050 : (1996) 7 SCC 153, 154, (para 7).
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11.3 Personal Bias
157 Utkal University v Nrusingha Charan Savangi (Dr), AIR 1999 SC 943 : (1999) 2 SCC 193, 197 (para 10).
158 Rasmiranjan Das v Sarojkanta Behera, (2000) 10n SCC 502 (para 2).
159 U.D. Lama v State of Sikkim, (1997) 1 SCC 111, 118 (para 15). See also Utkal University v Nrusingha Charan Sarngi
(Dr), AIR 1999 SC 943 : (1999) 2 SCC 193, 196-97 (paras 9 and 10).
160 Assistant Superintendent of Post Officers v G. Mohan Nair, AIR 1999 SC 2113 : (1999) 1 SCC 183.
161 Girias Investment Private Limited v State of Karnataka, (2008) 7 SCC 53, 63 (para 14).
162 D.C. Aggarwal v State Bank of India, (2006) 5 SCC 153, 162-63 (paras 24 and 25).
163 D.C. Aggarwal v State Bank of India, (2006) 5 SCC 153, 163-64 (paras 26 and 27), relying on D.C. Aggarwal v State
Bank of India, (2006) 5 SCC 166 (CA No. 1609 of 1994 dated 13-5-1994).
164 Reference under article 317 of the Constitution of India, In re, (2009) 1 SCC 337, 344 (para 26).
165 Indian Oil Corporation Limited v Raja Transport Private Limited, (2009) 8 SCC 520, 527-28 (para 13).
End of Document
11.4 Departmental or Official or Policy Bias

In many adjudicatory proceedings before bureaucratic authorities, one of the parties is usually the administration
itself. The basic function of government departments is to formulate and apply policies. Therefore, when an
administrator acts as an adjudicatory authority in a dispute between his department and a private party, he may
have “official” bias towards the department to which he is attached, or may have a ‘policy’ bias, ie, he may be
interested in projecting and pursuing policies followed by his department. Officials being a part and parcel of the
administrative department, are interested in pursuing and implementing departmental policies. They do imbibe,
consciously or unconsciously, some pre-disposition or interest vis-a-vis the policies or subject-matters, they
administer. The officials, thus, imbibe ‘policy’ bias, and even when they are acting as adjudicators between the
department and private parties, they cannot be insulated completely from such bias.166 An official is, thus, not able
to shed his policy bias while acting as an adjudicator. An administrator-adjudicator cannot develop the same kind of
neutrality and objectivity towards the issues and policies canvassed before him as is the characteristic feature of a
judge. An official may be so highly placed in the departmental hierarchy that he may have himself participated in the
process of formulating a departmental policy; or, a minister or a high official may declare a policy beforehand, and
later he may be called upon to adjudicate upon a controversy in which the very same policy is in issue. In modern
administrative process, functions of administration, policy-making and adjudication are often mixed up. A difficult
question to answer is whether an official is to be deemed disqualified from acting as an adjudicator, because of
policy bias. On the one hand, it may be argued rather plausibly that if an official is already committed beforehand to
a policy, then the whole purpose of the hearing exercise may be frustrated because one of the purposes of hearing,
is to better inform the administrator’s mind, as regards the issues involved so that he may come to a right decision.
This can happen, if the adjudicator has an open mind. The official is less than objective in considering the issues
arising out of the policy in question. On the other hand, it may be argued that in many cases, the idea behind
hearing is not so much to do justice in absolute terms between an individual and the department concerned, as to
implement departmental policies. In fact, as noted above, one of the main reasons to establish the system of
adjudication outside the court-system, is to apply policy and law to controversies rather than law pure and simple.
The truth is that in the modern administrative age, where hearing functions are handled by administrators, it is
extremely difficult to insulate the officials discharging adjudicatory functions completely from policy bias and, to
some extent, their pre-disposition towards departmental policies has to be accepted as a fact of life. Such a
situation can be redeemed somewhat, and some safeguard against policy bias ensured, by appointing autonomous
tribunals outside the departments, or by appointing independent hearing officers, who may have nothing to do with
the formulation and implementation of departmental policies.167 But, in practice, such a sophisticated development
has not so far occurred in India (except that some tribunals have been established),168 and it may happen only in
the future. For the present, it is inevitable that officials who have consciously or unconsciously imbibed
departmental policies must continue to adjudicate. Some policy bias is, therefore, inherent in the present-day
system. Accordingly, a good deal of tolerance towards operation of policy bias has been developed by the courts
as, otherwise, the whole adjudicatory system would become unworkable.
The difficulties inherent in the situation can be illustrated in a telling manner by reference to an English case,
Franklin v Minister of Town and Country Planning.169 The British Parliament enacted the New Towns Act, 1946. The
power under the Act lay with the minister, to confirm the order designating the new town after a local public inquiry
had been held. In the instant case, the Minister of Town and Country Planning determined that Stevenage should
be the first of the new towns under the Act. A public inquiry was held and the order was confirmed by the minister.
Before, however, the minister did so, he had visited Stevenage and made a speech at a public meeting. When there
was some jeering at the meeting, he declared, “It is no good jeering—it is going to be done.” The order of the
Page 2 of 15
minister was sought to be challenged on the ground that by this positive statement of policy, he had in effect
declared that his mind was made up in advance and that he was, therefore, disqualified from considering the
subsequent report of the inspector fairly and without bias. The case went through three courts, which reached three
different conclusions. (i) The High Court held that the law required impartial consideration and that, in fact, it had not
been given; (ii) The Court of Appeal held that the law required impartial consideration but that it had been given
and, further, that the statute prescribed the procedure, which had been followed and so no question of bias arose;
(iii) The House of Lords held that no impartial consideration was needed as the minister’s function was
‘administrative’ and not quasi-judicial; the minister may be ‘biased’ but so long as he observed the procedure laid
down in the Act, his action was not invalid. According to Lord Thankerton, the only question was whether in fact the
minister “did genuinely consider the report and the objections.” The case of the appellants failed “in that they have
not established either that in the respondent’s [Minister’s] speech, he had forejudged any genuine consideration of
the objections or that he had not genuinely considered the objections at the later stage, when they were submitted
to him.” The decision of the House of Lords on the question of bias, has been characterised as unsatisfactory, for it
amounts to saying that all the procedural formalities by way of inquiry etc, prescribed by Parliament are useless in
effect; minister’s decision cannot be questioned, even if, he had already closed his mind and he thought merely of
his own policy and of nothing else. The case has been characterised as the “low-water mark of administrative
law.”170 On the other hand, the difficulties in the situation can be appreciated. The minister has to have a policy; he
has to advocate it and support it and Parliament confers the power on the minister. Thus, the law envisages in the
structures created by it, some departmental bias to operate in the decision-making process. Under the law, nobody
else, except the minister, could take the decision in question.171
It needs to be emphasized here, that the general proposition stated by the House of Lords in Franklin, that the rule
against bias does not operate in the area of an administrative function, is no longer true because of the emergence
of the Doctrine of Fairness. In India, the rule against bias has been applied in the area of appointments to public
posts, which is regarded as an administrative function.172
In commercial activities and contracts involving technical issues, the courts should even be more reluctant to
interfering with manner of how the terms of tender must be interpreted, if the authority that floats the tender make a
particular interpretation. If two interpretations are possible, the interpretation of the author shall be accepted. Courts
will interfere only to prevent arbitrariness, irrationality, bias, mala fides or perversity.173
So far as the courts are concerned, they do not ordinarily regard policy bias, to some extent, as an infirmity in an
adjudicator. A rule has, thus, come into vogue that ordinarily mere policy or official bias does not disentitle an official
from acting as an adjudicator in a dispute, in which either the departmental policy may be in issue, or the
department may be a party. An official is not disqualified to act in an adjudicatory capacity, merely because he is a
limb of the government department which is a party to the dispute, which he is called upon to decide. The reason,
as stated above, is that if, he was to be so disqualified, then the whole of the present-day edifice of adjudicatory
system will crumble to the ground. Therefore, if an official arrives at a decision in a matter, after giving full
consideration to the issues involved, and following natural justice in all respects, then merely because he is
connected with a department, which is also a party to the dispute, the proceedings taken before him are not vitiated.
However, there are limits to this rule. An official may become disqualified from acting as an adjudicator, and
deciding a dispute involving a policy, if he has personally identified himself too much with the formulation of, or has
exhibited an abnormal desire to uphold or implement, the policy in question. In such a situation, it could be said that
his mind is closed to the issues arising before him and that he is no longer fit to sit as an adjudicator.174 Thus, only a
blatant or very strong policy bias operates as a disqualification. Cases where the courts have disqualified officials
from acting in an adjudicatory capacity on account of strong policy bias, are rare indeed.175
An example of this is furnished by Blaze,176 where a clear case of bias arose in the following fact-situation: The
regional officer of a nationalised bank, acting as the estate officer under the Public Premises (Eviction of
Unauthorised Occupants) Act, 1971,177 passed an eviction order against a tenant occupying a portion of the bank
building. The bank was interested in having the premises vacated for its own purposes and therefore, had initiated
the eviction proceedings against the tenant. Earlier, the bank had terminated the tenancy and asked the tenant to
leave. As the tenant did not comply with the bank’s wishes, the regional officer of the bank, acting as the estate
officer, passed the impugned order of eviction. The tenant challenged the order inter alia, on the ground that the
estate officer made two orders on the same day. One was a type written, which was served on the petitioner, and
the other was in the manuscript, which was kept on the file. The contents of the two orders differed. The Court
assumed that perhaps the typed order was kept ready before the proceedings were completed. Also, the estate
officer who passed the eviction order was none else than the regional officer of the bank, which was interested in
getting the premises vacated for its own use. Quashing the eviction order, the High Court observed:
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“In the present case, from the very start of the proceedings, the impression gained was that the dice was loaded against the
petitioner. No amount of evidence or argument for the respondent could remove the impression or establish affirmatively,
that the end result of the estate officer was a product of detachment and impartiality. The likelihood of bias animating the
mind of the estate officer was inevitable and its exercise was very much conscious and not unconscious.”
The Blaze case is a sad commentary on the deplorable way in which adjudicatory functions are at times discharged
by administrators.
The department of transport of the Government of Andhra Pradesh drew a scheme for nationalisation of certain bus
routes. Under section 68C of the Motor Vehicles Act, 1939, when a state transport undertaking was of the opinion
that for providing an “efficient, adequate, economical and properly coordinated” road transport service, it was
necessary in public interest that road transport should be run by the undertaking to the exclusion wholly or partially
of other persons, it could prepare a scheme and publish the same in the official gazette. Any person affected by the
scheme could file objections before the State Government which, after considering the same and after giving an
opportunity to the objectors as well as the undertaking to be heard in the matter, may approve or modify the same.
The Supreme Court held in Gullapalli-I,178 that the hearing prescribed by the statute was to be of the quasi-judicial
type as there was a contest, a lis, between the undertaking and the objectors insofar as the pro-posed scheme
would affect the proprietary rights of the objectors. Thus, there was a triangular type of situation—proposal by the
undertaking, opposition by the objectors, and decision by the government. Accordingly, the court ruled that the
secretary of the transport department was disqualified to hear objections against the proposed scheme, as he was
an integral part of the department concerned and, therefore, he was too much involved in the making of the scheme
in question. He could not, therefore, have an open mind to hear objections against the scheme in question. The
secretary had policy bias and so he was disqualified to hold the inquiry. Under the law, there was no legal
compulsion to assign the task of hearing objections against the proposed scheme to the secretary. The function
could have been assigned to any other competent official. Therefore, the court insisted justifiably that the functions
of policy-making and hearing of objections against the policy be separated. It may be interesting to compare
Gullapalli I with Franklin. There are two significant differences between these two cases. (1) In Franklin, the power
to sanction new towns was specifically vested by law in the minister and, therefore, in spite of policy bias he could
not possibly be declared incompetent to discharge a statutory function assigned to him;179 and (2) the inquiry in
Franklin was held by an inspector who had no policy bias. On the other hand, in Gullapalli, the inquiry itself was
held by the secretary of the department concerned having policy bias and there was no legal compulsion to assign
the function of hearing objections to the secretary. The function could have been assigned to any other competent
official. Therefore, the court insisted justifiably that the functions of policy-making and hearing of objections be
separated from each other.
But since Gullapalli I, the Supreme Court has continuously diluted the stance adopted by it in that case. For
instance, in Gullapalli II,180 when the function of hearing objections was discharged by the minister instead of the
secretary to the transport department, the court saw no objection in the procedure on the premise that the minister
was not a part and parcel of the department concerned with the making of the policy in question, while the secretary
was. In the words of the Court, the secretary “is a part of the department” while the minister “is only primarily
responsible for the disposal of the business pertaining to that department.”181 The court thought that while the
secretary of the department being too much involved with departmental matters, would not be able to bring an open
mind to bear upon the objections raised against the scheme, the minister may be able to do so. In the particular
case, perhaps, it was a fact that while the secretary had taken a leading part in formulating the scheme against
which he himself heard the objections, the minister was not so much directly involved with the specific matter. The
case may be regarded as an authority for the proposition that an official who has identified himself too much with
the departmental policy or a cause, may not be the best person to hear objections against that very policy and that
someone else less committed to that policy should be entrusted with this task. But, as a general proposition, the
distinction between a minister and a secretary appears to be rather tenuous. A minister is as much an integral part
of the department as any other civil servant. In fact, under the business rules, civil servants are merely the agents of
the minister and are required to carry out his orders and functions under his directions. In a parliamentary form of
government, a minister is ultimately responsible for the acts of commission or omission of the civil servants under
his control. In policy-matters, a minister cannot have a more open mind than the secretary to the department. It can
be argued plausibly that being a civil servant, the secretary is committed much less to policy matters than the
minister. The role of a minister as an active policy-maker, is more predominant than that of the secretary in the
department, and, therefore, a minister may have a much stronger policy bias than the officials in his department,
who merely implement and execute the minister’s policies. Undoubtedly, Gullapalli II diluted to a great extent the
efficacy of the ruling in Gullapalli I. In several earlier High Court cases, no such distinction had been maintained and
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administrative proceedings were not quashed even though the hearing authority was a civil servant and not the
minister.182
In subsequent cases the Supreme Court appears to have further relaxed its attitude on the question of
disqualification arising from policy bias and the court has shown a further liberality of approach in this respect from
the departmental point of view. In Kondala Rao,183 the minister of transport heard objections against some schemes
of nationalisation of bus routes prepared by the transport corporation. The minister, a few days earlier, had presided
over a meeting of an official committee which had decided in favour of nationalisation of some of these routes. The
hearing by him was sought to be challenged on the ground that he had already pre-determined the issue and so
was disqualified to decide the dispute between the petitioner and the transport undertaking. The court rejected the
argument holding that the transport undertaking was a statutory corporation and though subject to some
government control, yet was not a government department and the government decided the matter in the exercise
of its statutory duty. The committee’s decision, the court held, was not a final and irrevocable decision. It was only a
policy-decision which meant that the committee advised the government to implement the policy of nationalisation
of bus services and this decision did not involve either expressly or by necessary implication a pre-determination of
the issue; it only meant that the policy would be implemented subject to the provisions of the Act. The Court
adopted the following remarks from an earlier case.184
“It is also true that the Government on whom the duty to decide the dispute rests, is substantially a party to the dispute but if
the Government or the authority to whom the power is delegated acts judicially in approving or modifying the scheme, the
approval or modification is not open to challenge on a presumption of bias. The minister or the officer of the Government
who is invested with the power to hear objections to the scheme is acting in his official capacity and unless there is reliable
evidence to show that he is biased, his decision will not be liable to be called in question, merely because he is a limb of the
Government.”185
The court treated the matter more as a question of ‘personal bias’ rather than that of ‘policy bias’ as is clear from
the following observation of the court:
“It is not suggested that the Minister in charge of the concerned portfolio has any personal bias against the operators of
private buses or any of them. We, therefore, hold that it has not been established that the Minister in charge of the portfolio
of transport had personal bias against the operators of private buses.”
In the Mudaliar case,186 the Government of Madras took a policy decision to nationalise certain bus routes. The
government then appointed an ad hoc committee to work out the details for implementing the policy decision. One
of the members of the committee was the Secretary to the Government, Home Department. After submission of the
report by the committee, schemes were published, under section 68C of the Motor Vehicles Act, by the Secretary,
Department of Industries, acting under the rules of business. Objections against the schemes were heard by the
Secretary, Home Department, who was authorised to do so under the rules of business and who was a member of
the committee which initially formulated the scheme. Objections were raised to such a hearing on the ground of
policy bias. It was argued that the Home Secretary had participated in the policy decision as a member of the ad
hoc committee and then he himself heard objections against the very scheme in the formulation of which-he had
participated, and thus he acted as a judge in his own cause. However, relying on Kondala Rao, but without referring
to Gullapalli I, the Supreme Court rejected the objections to hearing on the ground of bias by the Secretary, Home
Department.187 The court argued that the role of the committee was only advisory in character and that it did not
involve a pre-determination of the issues involved. This pronouncement of the court is somewhat debatable.
Konadla Rao was not applicable to the present fact-situation as that case referred to a minister who, according to
the court itself, is not regarded as an integral part of the department. Here was involved an official who, unlike the
minister, is regarded as an integral part of the department. The procedure in Kondala Rao was less objectionable
than in Mudaliar. In Kondala Rao, the scheme was formulated by the Transport Corporation and the minister was
not so much committed to it. The minister had only chaired the meeting which took a policy decision to nationalise
certain bus routes. It did not frame any scheme to implement this policy decision. Therefore, while the minister was
committed to the general policy of nationalisation of bus routes, he was not committed to any specific scheme. But,
here, the Home Secretary was actively engaged in formulating the scheme against which he heard the objections.
This does not seem to be proper. It would be difficult for a person in his position to hear objections with an open
mind because his mind would be duly committed to the scheme prepared by him. Such a person cannot dully and
objectively assess the validity of the objections raised against the scheme of which he himself was an author. In
such a situation, a ‘reasonable man’ would have enough cause to feel concerned about the matter. The test of real
likelihood of bias is duly satisfied here. Whatever the judicial rationalization, the fact remains that the hearing officer
had a strong policy bias in favour of the scheme in question as he had participated in formulating the same as a
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committee member and could hardly bring to bear an objective mind in considering objections against it. In such a
situation, a reasonable man had enough cause to feel concerned about the objectivity of the home secretary as a
hearing officer.
In Prakash Chandra Sahu v Managing Director, O.R.T. Co.188 it was argued that the minister of transport having
initiated and inspired the scheme of nationalisation of certain bus routes in the State as a minister, and having
thereby pre-judged the matter, was disqualified to hear objections to the scheme. Referring to Kondala Rao, the
High Court answered in the negative, saying that the State Government or any other authority authorised by it
deciding a dispute under section 68-D(2), between the state transport undertaking and the objector discharges only
its ‘statutory function’. The court asserted that in order to prove personal bias there must be reliable evidence
adduced by the parties. The court went on to the extent of asserting that even if the State Government determines
earlier the policy of nationalisation in the scheme of transport service yet that would not amount to bias so as to
disqualify the concerned minister from hearing the objections or according approval to the scheme.
The above case cannot be regarded as laying down good law. Specifically, about the procedure laid down in
section 68-D(2) of the Motor Vehicle Act, it has been characterised as quasi-judicial in nature and its purpose is to
enable the persons affected by the scheme to make an effective representation against the proposed scheme of
nationalisation. Also, if the objectors point out any lacunae in the scheme, the same can be corrected by the
government before it approves the scheme. The function of hearing the objections against the proposed scheme is
thus of crucial importance. It promotes consultation between the administration and the concerned persons in the
matter of policy-making and thus introduces an element of democratisation in bureaucratic procedures. Such an
inquiry also promotes the principle that a citizen has the right to be heard, before an administrative decision is
taken, which may adversely affect him. If this procedure is to have its full advantage and is to serve as an effective
instrument of public consultation and participation in policy-making, then it is necessary that hearing takes place
before a person, who has an open mind and does not have any preconceived notions about the scheme in
question, so that the merits and demerits of the scheme may be assessed fully and objectively. Otherwise, hearing
becomes an empty ritual which serves no useful purpose either from the government’s or the objectors’ points of
view. Therefore, the law laid down in the above cases, needs to be reconsidered by the highest court with a view to
ensuring that the statutory procedure of hearing objections remains an effective instrument of public consultation,
as regards the viability of the proposed scheme. What is being said here, concerns only the stage of hearing
objections and not the stage of approving the scheme after considering the objections. That function may be
discharged by the minister concerned even if he was the promoter or initiator or maker of the initial scheme of
nationalization. The statute confers the authority to hear objections on the State Government as such, and not on
any specific individual. Then why is it not possible for a government to appoint a high ranking officer having an open
mind and being unconnected with the scheme to hear objections? After hearing the objections, he can make a
report to the minister who can then consider the objections and decide whether the scheme is to be accepted as it
is, or needs to be modified. The statute does not specifically say that the concerned minister must hear the
objections; there is no legal compulsion on the minister to himself hear the objections personally and, therefore,
there is no warrant for the view that he performs a statutory function when he hears the objections. The Orissa High
Court decision may be faulted on another ground as well: the court ignored the well-established principle that actual
proof of bias is not necessary. The general rule about bias is not that actual bias must be proved. The reason for
not insisting on actual proof of bias is that bias being a mental condition, it is extremely difficult to prove, on a
balance of probabilities, that a person required to act in an adjudicative capacity was in fact biased. Bias is an
attitude of mind leading to a pre-disposition towards an issue. Bias may arise unconsciously. The person himself
may be unaware of his pre-disposition. It is not therefore, necessary to prove the existence of bias in fact.
Accordingly, the court was not correct in saying that to prove bias there must be reliable evidence adduced.
Because of this circumstance, the law looks rather to the ‘likelihood’ of bias arising from the factual situation in
which the particular adjudicator is placed. The very fact that the minister was involved with the framing of the
scheme should be sufficient to raise in the mind of reasonable men, a reasonable likelihood of bias if the minister
sits to hear objections against that very scheme.
In Hindustan Petroleum Corporation Ltd v Yashwant Gajanan Joshi,189 the corporation was acquiring land for laying
down a pipeline. The Central Government appointed one of the corporation’s employees as the competent authority
for the purpose under the relevant Act and for assessing compensation for right of user in land acquired by the
corporation.190 The Supreme Court refused to accept the argument that the government ought not to have
appointed an employee of the corporation for the purpose, as the corporation was itself an interested party in the
dispute relating to compensation. The court observed:
“We cannot accept the contention ... that merely because a person is an employee of the corporation, he would have a bias
in deciding the compensation...”
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While a party can raise the ground of bias against an appointment of an individual officer as competent authority on
sufficient material placed on record in this regard, he cannot be disqualified from acting as such only because he is
an employee of the corporation which has to pay compensation.
The court argued that if this argument were to be taken to its logical conclusion, the result would be that no
employee of the State Government or Central Government could be appointed as competent authority, where
petroleum and mineral pipelines are to be laid for a project initiated by the State or Central Government. “It would
be too broad a proposition to extend the theory of bias to exclude persons only because such person draws the
salary from the bodies like public corporation, State Government or Central Government.” In the instant case,
however, the court accepted the argument that, on facts, the competent authority might have been biased against
the respondent while determining compensation.
Similarly, under the Public Premises (Eviction of Unauthorised Occupants) Act, 1971, to evict an unauthorised
occupant from the premises of a nationalised bank (statutory corporation), the general manager thereof was
appointed as the estate officer.191 The Calcutta High Court rejected the argument, that thereby the bank cons-tituted
itself as a judge in its own cause. The court argued that the officers of a statutory body discharge statutory duties.
“Therefore, there is nothing wrong in appointing such an officer of a statutory authority to a quasi-judicial office.”192
However, though judicially sanctioned, the system cannot be characterised as a good system, as it does not always
operate impartially. The defects of such a system were tellingly exposed in Blaze,193 and also in Hindustan
Petroleum.194 The court’s view takes into account only administrative convenience. It is difficult to envisage that an
employee will not tilt in favour of his employer and not protect its interests. It is one thing for the court to say that it is
helpless as the system has statutory sanction, but it is quite another thing to argue as the court has done in the
instant case, that the system is not intrinsically faulty. It is therefore, necessary to change the system so as to
provide for adjudicators from outside the interested organisation with a view to eliminate any suspicion of bias. The
courts having failed to achieve such a desirable result through the case-law, the same result can be achieved by
change of administrative practices, or suitable amendments in the rules of business,195 or, in the last analysis, by
change in statutory law. In this regard the best model to emulate is the American model which is referred to
below.196
Selection of high functionaries like Chief Information Commissioner, it may be suggested that there could be
departmental official bias of persons who make the selection to pick persons of its own class. After all, under the
RTI Act, any person of eminence in public life with wide knowledge and experience in law, science and technology,
social service, management, journalism, mass media or administration and governance is qualified to become Chief
Information Commissioner or Information Commissioner. However, a strange phenomenon which we observe is
that all those persons who have been selected belong to only one category, namely, public service i.e. they are the
government employees. It is difficult to fathom that persons belonging to one category only, are always found to be
more competent and more suitable than persons belonging to other categories. In fact, even the search committee
which shortlists the persons consist of bureaucrats only. It suggested therefore, that search committee should make
criteria for shortlisting candidates on objective and rational basis. Persons of eminence in public life with wide
knowledge and experience in fields mentioned under the Act should be chosen as Information Commissioners and
that selections should not be confined to government employees only.197
Under Schedule X to the Constitution, power to adjudicate whether a member of a Legislative House has become
disqualified from membership of the House, owing to defection from one political party to another, has been vested
in the speaker of the House. The validity of the provision was challenged in Kihota Hollohon v, Zachilhu,198 on the
ground that the speaker depends on the support of the majority party for staying in office; he remains a member of
the political party which elects him to the office and, therefore, he would be subject to political bias as his decision
cannot be free from political pressures and his functioning cannot be free from reasonable likelihood of bias. It was
therefore argued that an “independent adjudicatory machinery for resolution of electoral disputes is an essential
incident of democracy which is a basic feature of the Indian constitutionalism.” But the Supreme Court rejected the
argument in a closely divided decision (3:2) on the ground that the office of the speaker is one of dignity and
impartiality; the office is held in the highest respect and esteem in parliamentary traditions. The speaker holds a
pivotal position in the scheme of parliamentary democracy and is the guardian of the rights and privileges of the
House. He takes far reaching decisions in the functioning of parliamentary democracy and thus he is expected to
decide the question of member’s disqualification impartially, objectively and in a non-partisan manner. Vesting of
adjudicatory power regarding disqualification arising out of defection of members of the House in such a
constitutional functionary should not be considered exceptionable. In the words of the majority:
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“It is inappropriate to express distrust in the high office of the Speaker, merely because some of the Speakers are alleged,
or even found to have discharged their functions not in keeping with the great traditions of that high office.”
The minority view, on the other hand, was that the law in question was invalid because it made the speaker’s
decision as ‘final’ and did not provide for any appeal to any outside agency against the speaker’s order and thus
compromised a fundamental feature of the Constitution.199 In the words of the minority Judges:200
“The Speaker being an authority within the House and his tenure being dependent on the will of the majority therein,
likelihood of suspicion of bias could not be ruled out.”
It may however be pointed out that the majority decision is based on abstract and theoretical considerations, and
not on pragmatic realities in India. Though in theory the speaker’s office is regarded as one of the dignity, in
practice, the situation is different. In India, speaker’s decisions are invariably challenged by one party or another,
not only on the floor of the House but even outside in the courts. In several cases, speakers’ decisions have been
quashed by the courts as being invalid qua the law or the Constitution. Partisan decisions by speakers of State
Legislatures constitute a common phenomenon. Even in the instant case, the speakers’ decision was quashed by
the court on another ground. The very fact that the Supreme Court has held the speakers’ decision on the question
of disqualification, as being subject to an appeal to itself under article 136, shows that the court does not wish to
leave the speakers absolutely free to take decisions under the anti-defection law. On the whole, therefore, the
minority view is preferable to the majority view in Kihota.
In short, the concept of policy bias remains nebulous in India. Rather than develop the concept of policy bias, the
courts have sought to minimise the significance of such bias in adjudication. The courts are reluctant to apply the
concept, except in situations of very obvious and blatant policy bias, as they are afraid that wider application of the
concept may strike at the root of the present-day system of administrative adjudication. However, in the interests of
fair adjudication, it will be better to avoid situations where policy bias may operate otherwise, hearings may
degenerate into empty formalities, and much of the value of public participation in policy making may be lost.
Unless, absolutely essential, the two capacities of policy maker and decision-maker ought to be kept separate. On
the whole, it may be sound administratively as well as procedurally, if departments appoint separate hearing officers
having no involvement with policy-making. Following the Supreme Court verdict in Gullapalli I, some States did
assign the task of hearing objections against schemes of nationalisation of bus routes to persons outside the
concerned department, e.g, to the legal remembrancer.201 This should become the common approach. This
however is an area, where the courts by themselves may not be able to achieve much. They can and they should
veto a very extreme case of policy bias. But more than that, it is for the legislature to create administrative
structures in such a manner, as to reduce the chances of policy bias and improve the opportunity for objectivity in
decision-making as far as possible. To the extent possible, the departments themselves ought to avoid policy bias,
by suitably tailoring their administrative practices.
It may be worthwhile to mention here a case from Singapore, Alkaff & Co. v The Governor-in-Council,202 where the
concept of policy bias was applied. The Commissioner of Lands was an ex officio member of the Singapore
Improvement Trust. The Trust approved certain backlane schemes. The Trust then applied to the Governor-in-
Council for approval of the schemes. Under the law, an inquiry was to be held before the Governor-in-Council could
accord his approval. Therefore, the Commissioner of Lands was appointed to enquire and report on the schemes
proposed by the Trust. After inquiry, the Commissioner recommended approval of the schemes and accordingly,
the Governor-in-Council issued the necessary orders approving the schemes. Quashing the orders, the court held
that, as a member of the Trust, the Commissioner had approved the schemes and thereafter his appointment to
enquire into the merits of those schemes could result in suspicion that justice might not be done. The court
emphasized that “it is beside the point” that, in fact, the Commissioner conducted his inquiries fairly and impartially,
and that it was essential that justice be so administered, as to satisfy reasonable persons, that the tribunal was
impartial and unbiased.
While the courts in India do show a good deal of tolerance towards policy bias, they have made progress in another
direction, viz, they do seek to ensure that there is not too much identification between an adjudicator and his
department in matters of adjudication. The courts have been able to free, to some extent, the adjudicator from the
control of his department or his senior officials while discharging his adjudicatory functions. The courts have been
able to evolve the principle that the department, or his senior officer, cannot dictate to a junior officer as to how he
should discharge his adjudicatory functions. The courts insist that in adjudicatory matters, an adjudicator must
exercise his own mind and not follow the dictates of his seniors. It is not open to the department, to control the
functioning of an adjudicatory authority in any specific matter. This norm seeks to introduce some impartiality and
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objectivity in adjudicatory proceedings. The courts have gone further than this, and even held that general
directions cannot also be issued by a department to adjudicatory bodies, and that such bodies should exercise their
own judgment.203
Some attempt has been made in the USA to tackle the problem of official bias. The Administrative Procedure Act,
1946 (APA),204 seeks to effectuate physical separation internally, within an agency between the functions of hearing
objections or representations against some proposed policy and the making of the policy. There are separate
hearing officers, known as administrative law judges, who are independent of the agency concerned; they can be
removed only for good cause established and determined by the Civil Service Commission—an independent body
by itself. Some of the other provisions applicable to Administrative Law Judges (ALJ’s) are: (i) They, may not
perform any duties inconsistent with their duties and responsibility as ALJ’s (ii) ALJ’s are to be assigned to cases in
rotation so far as practicable; (iii) when conducting a hearing, an ALJ is not responsible to or subject to supervision
or direction of any agency employee; (iv) ALJ is not to consult any person or party concerning a fact at issue in the
hearing, unless on notice and opportunity for all parties to participate; (v) Their pay is controlled by the Civil Service
Commission. Where an objector is entitled to a hearing, the hearing is to be held before an administrative law
judge. This officer then propounds a draft decision on the results of hearing. This is to be notified to the parties and
the final decision must take the draft decision into consideration. The final stage may combine adjudication and
policy making, but this is the best arrangement which has been found possible for the present.205 The administrative
law judge is the central figure in normal administrative adjudication. The provisions of the APA., mentioned here,
seek to ensure the impartiality and independence of administrative law judges. As Schwartz observes: “The key to
the operation of the federal APA is the independence of the hearing officer. The APA is structured so as to assure
that he will exercise his independent judgment, free from pressures by the agency.”206
In England, such inquiries are held before inspectors. The Franks Committee recommended that the inspectors
who hold enquiries on behalf of the departments, ‘be placed under the control of a minister not directly concerned
with the subject-matter of their work.’ This would most appropriately be the Lord Chancellor. The Committee
emphasized:207
“This change, by no longer identifying the inspector in the minds of the objectors with the Department of the deciding
Minister, would emphasize impartiality at an important stage of the adjudication and thus do much to allay public misgiving.”
But the government did not implement this recommendation of the Franks Committee and the inspectors still remain
an integral part of the departmental organization.208
A case may be mentioned here, which shows the correct judicial approach to situations involving policy bias.209
Applications were filed before the Karnataka State Road Transport Authority (KSRTA) by some bus operators for
renewal of their permits. The Karnataka State Road Transport Corporation (KSRTC) also made applications to
KSRTA for grant of permits on the same routes. The bus operators approached the High Court for a writ of
prohibition against the Transport Commissioner, restraining her from acting as the chairman member of KSRTA on
the ground that she was a member of the Board of Directors of KSRTC. The High Court ruled that the Transport
Commissioner, so long as she continued to be a member of the Board of Directors of the KSRTC, should be
restrained from functioning as chairman/member of KSRTA. Reference may also be made in this connection to an
English case, Hannam v Bradford City Council.210 Hannam was a teacher in a school which was maintained by the
council. The board of governors of the school terminated Hannam’s contract. The council had power to bar the
dismissal of Hannam. The appropriate committee of the council decided not to exercise that power. This committee
consisted of 10 members, three of whom were members of the board of governors of the school in question. These
three members had not attended the meeting of the school board of governors at which it was decided to terminate
Hannam’s contract. However, the decision of the council committee was quashed on the ground of bias by the
Court of Appeal. “When one is used to working with other people in a group or on a committee, there must be a
built-in tendency to support the decision of the committee, although one tries to fight against it”. Said one of the
judges, “The governors did not, on donning their committee hats, cease to be an integral part of the body whose
action was being impugned, and it made no difference that they did not personally attend the governors’ meeting”.
Where it was found that the preliminary inquiry committee, which is normally set up to ascertain facts, was set up
for collecting “a menagerie of witnesses who had a grudge against a member of the Rajasthan Higher Judicial
Service”, the Apex Court was critical of such an approach and held that the report of the committee was biased.211
In Suraj Parkash Gupta v State of J&K,212 the Supreme Court held that by not making direct recruitment after 1984,
by restricting direct recruits to 10% rather than permitting 20%, and by deliberately promoting the junior engineers
to the other 10% quota of the direct recruits, the State Government had definitely acted in a biased manner. Where
the two complainants against the delinquent constable were shown to be not traceable, without making any effort to
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trace them and produce them as prosecution witnesses so as the delinquent could cross examine them; non-
production of them, though being the fault of the department, was ascribed to the delinquent, finding him guilty in an
arbitrary manner, though the evidence of the main prosecution witness nullified the allegation against the
delinquent, it was held that the enquiry officer was biased in favour of the department and was carrying out the
command of some superior officer.213 A selection committee, headed by a nominee of the Chief Justice of India, is
constituted for the purpose of selecting a member of the Company Law Board. The Selection Committee selected a
certain person for the same and put two names in the reserve panel. Thereafter, the Appointments Committee was
to act on such recommendation of the Selection Committee. The secretary to the Appointments Committee, whilst
forwarding a name from the reserve panel, wrote an adverse note against the selected person, commenting that he
was not a fit person for the post in question, besides making certain allegations against him. The Appointments
Committee rejected the name of the selectee and directed for fresh proposal for the same. The secretary withheld
the representation of the selectee to the Appointments Committee against such rejection and placed it before the
Appointments Committee only when the candidate next below the selectee was exonerated by the disciplinary
authority of the charges against him. Thereafter, the secretary forwarded both the names with fresh adverse
comments against the selectee and recommendation, in favour of the candidate, the next below him. The Apex
Court held that in view of the facts, the candidate next below the selectee was unduly favoured and the candidate
selected had been deprived of the appointment which led to the only conclusion, that there was rank favouritism.214
11.4.1 Combining Functions of Prosecutor and Judge
Closely related to the problem of departmental bias is another serious problem, viz, combining the functions of
prosecutor and judge in one and the same department. Often what happens in modern times is that an
administrative agency may be given the power to initiate proceedings against alleged violations of law and also to
sit in judgment over the matter.
When such a dual function is discharged by one and the same official, then as stated earlier, this is a clear case of
bias unless clearly permitted by legislation. However, if the person adjudicating is different from the person
prosecuting, then the proceedings m ay not be flawed on account of bias merely because both the functions are
being discharged within the same department. This may be illustrated by the following case. In Hari v Deputy
Commissioner of Police,215 an externment order served by the Deputy Commissioner of Police under section 57 of
the Bombay Police Act, 1951 was challenged on the ground that the proceedings were initiated by the police and it
was the police which was the judge in the case also, and that it was against natural justice that the prosecutor
should be the judge. The Supreme Court, however, pointed out that the evidence or material on the basis of which
a person could be proceeded against, was collected by a police official of lower rank. The proceedings for
externment could be initiated by a police officer, above the rank of the inspector who had to inform the person,
proceeded against of the general nature of the material allegations against him. But, the order of externment could
be passed only by a commissioner of police or a district magistrate. Hence, the satisfaction was not that of the
person prosecuting but that of the police officer of a higher rank. It, therefore, means that it does not matter, if both
the prosecution and conviction are done by the one and the same department, so long as the two functions are
discharged by separate officers. In disciplinary proceedings against the employees, it happens every day that the
department itself may hold the preliminary investigation as well as the enquiry, at which the charges are sought to
be proved and the delinquent official is given the right and opportunity to defend himself. All this happens under the
roof of ’the same department though, of course, the officer who conducts the preliminary investigation would not
himself sit in final judgment over the charges.
The difficulty in combining the adjudicating and prosecuting functions in the same agency is, that the accused may
be prejudiced; he may not get fair treatment as the “convicting” part of the agency may be prone to accept whatever
proof is produced by its other part sponsoring the conviction. In the United States, the problem is sought to be
tackled somewhat by the Administrative Procedure Act, seeking to effect an internal separation within the agency,
concerned to minimise the danger arising out of combination of functions of prosecution and adjudication. Thus, an
employee engaged in performance of investigative or prosecuting function for an agency in a case, is not to
participate or advise in the decision-making process, except as a witness or counsel in public proceedings. As
stated above, hearing officers have been made independent of the agency concerned.
In departmental proceedings, enquiry officer often questions witnesses, to unravel truth. By such conduct, the
enquiry officer does not become the prosecutorial bias.216 Where statutory Reserve Police Force rules are silent on
the aspect of natural justice, of who the presenting officer shall be, and the enquiry officer himself, leading
examination in chief of prosecution witnesses and acted as prosecutor also, capacity of independent adjudicator will
be lost which would adversely affect his independent role. In a situation such as that, the High Court inferred bias
and the vitiation of enquiry, as found by the High Court was also upheld by the Supreme Court.217
11.4.2 Combining Informant and Investigator in the same person
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In a case where informant officer is also the investigator, by that itself, it cannot be said that investigation is vitiated
by bias or the like factor. The case will have to be decided on case-to-case basis without any universal
generalization having regard to proof of bias and prejudice against accused. While dealing with provisions of NDPC
Act and IPC, the Supreme Court said in Mukesh Singh v State (NCT of Delhi),218:
(I) That the observations of this court in Bhagwan Singh v State of Rajasthan (1976) 1 SCC 15, Megha Singh
v State of Haryana (1996) 11 SCC 709 and State v Rajangam (2010) 15 SCC 369 and the acquittal of the
accused by this court on the ground that as the informant and the investigator was the same, it has vitiated
the trial and the accused is entitled to acquittal are to be treated to be confined to their own facts. It cannot
be said that in the aforesaid decisions, this court laid down any general proposition of law, that in each and
every case where the informant is the investigator, there is a bias caused to the accused and the entire
prosecution case is to be disbelieved and the accused is entitled to acquittal.
(II) In a case where the informant himself is the investigator, by that itself cannot be said that the investigation
is vitiated on the ground of bias or the like factor. The question of bias or prejudice would depend upon the
facts and circumstances of each case. Therefore, merely because the informant is the investigator, by that
itself the investigation would not suffer the vice of unfairness or bias and therefore on the sole ground that
informant is the investigator, the accused is not entitled to acquittal. The matter has to be decided on a
case-to-case basis. A contrary decision of this court in Mohan Lal v State of Punjab,219 and any other
decision taking a contrary view that the informant cannot be the investigator and in such a case the
accused is entitled to acquittal, are not good law and they are specifically overruled.
11.4.3 Prior Utterances and Pre-judgment of Issues
Sometimes the minister or the official concerned may announce beforehand, the general policy which he intends to
follow. Will such a statement disqualify him from acting as the deciding authority on the ground that this indicates
his partiality to the issues in dispute? It is, however, a ticklish matter. On one hand, it may be argued that from a
practical point of view, such prior statements of policy ought to be encouraged, as these create some certainty in an
uncertain situation and individuals may be able to regulate their conduct accordingly.220 On other hand, it may also
be plausibly argued that if an official has already made up his mind regarding the policy to be followed in the issues
involved and to be raised at the hearing, then the very purpose of hearing may be frustrated. The purpose of
hearing is to better inform the administration about the issues, so that it may take a correct decision. In one case, in
an enquiry into objections to a scheme prepared by the Transport Department under section 68-D(2) of the Motor
Vehicles Act, 1939, the enquiry officer did not consider the objections raised, but decided to approve the scheme on
the basis of considerations of policy. Characterising the enquiry as farcical because the mind of the enquiry officer
was already foreclosed as regards the objections raised to the scheme at the inquiry, the High Court quashed the
scheme and held that the decision to approve the scheme or not, should be based not on considerations of policy
but on the conclusions which the inquiry officer comes to with regard to the objections.221 The correct legal position
appears to be that, unless a prior policy statement shows a “final and irrevocable” decision and foreclosing of the
mind of the authority as to the merits of the case before it, it would not operate as a disqualification to adjudicate.222
It is at times argued that if such statements are to disable an official from acting as the adjudicatory authority on the
ground of bias, then on the same analogy, the same judges should not be permitted to try the same issues more
than once which they frequently do, and that a higher standard cannot be expected of the quasi-judicial bodies than
the courts. Nevertheless, the answer to this argument is that a judge has no personal interest in the outcome of the
controversy, and he may still be prepared to hear arguments and reconsider the point of law already settled with an
open mind, whereas the same is not true of an administrator because of his personal involvement in the policy to be
pursued, and therefore in his case there is a danger of the hearing becoming a sham. An administrator is not as
disinterested as a judge in what he does or decides. As a practical solution, one may say that so long as the
adjudicator’s mind does not seem to be “irrevocably closed,” he may decide a matter even though his pre-
disposition to certain issues is known to the parties. In an oft quoted statement,223 Frank, J., of the United States
points out:
“If, however, ‘bias’ and ‘partiality’ be defined to mean the total absence of preconceptions in the mind of judge, then no one
has ever had a fair trial and no one will. The human mind, even, at infancy, is no blank piece of paper. We are born with
predispositions.... Much harm is done by the myth that, merely by.... taking the oath of office as a judge, a man ceases to
be human and strips himself of all predilections, becomes a passionless thinking machine.”224
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A distinction may however be made between pre-judging of facts, specifically relating to a party or a controversy,
and pre-conceptions or pre-dispositions about general questions of law, policy or discretion affecting a large
number of persons. The former should disqualify, but in the latter case a greater leeway may be permissible for
having some preconceived opinions, does not mean that he will not listen fairly to all the evidence.225 Thus, if officer
A has already expressed an opinion that officer B is guilty of the charges levied against him and that he be
dismissed from service, then A is disqualified from later holding an inquiry against B in those very charges, as he
has already pre-judged the charges and expressed his opinion before the hearing. He already has a closed mind. In
K.S. Rao v Hyderabad,226 it was held that the enquiry officer was not qualified to conduct hearing against the
petitioner for his removal from service, since prior to the enquiry he had expressed a strong view that he should be
dismissed from service on account of his abnormal mental condition. The High Court stated that it is a fundamental
principle of natural justice that the officer selected to make an enquiry should be a person with an open mind and
not one who has already pre-judged the issue. The Deputy Superintendent of Police in his charge-memo to two
constables, categorically expressed his opinion that they “had abused their position and brought discredit to the
department”. It was held that the Deputy Superintendent was disqualified to hold the inquiry.227 Where an officer
had expressed definite views on the conduct of a delinquent officer, he would not be permitted to hold an enquiry,
as it would produce a fear or apprehension in the mind of the delinquent, that he could not hope to get a fair trial.
However, when in a factual situation various, separate and distinct issues arise, a person who has already decided
one of such issues may not be incompetent to decide the other issues; judgment by him on one issue does not
amount to pre-judging the other issues. To illustrate this point, in one case, because of defalcation by the manager
of a co-operative bank, the Registrar of the Co-operative Societies issued a show-cause notice to the managing
committee, as to why it should not be suspended. He later suspended the committee on charges of
mismanagement. A few shareholders then claimed the entire money from the members of the managing committee.
The registrar himself undertook to arbitrate in the matter as he could do under the relevant law. It was argued that
the registrar was disqualified to act as an arbitrator in the matter as he had already unequivocally expressed his
opinion against the managing committee. The Supreme Court rejected the contention and held that no inference of
bias as such could be drawn against the registrar from the act of his removing the managing committee as the two
proceedings, removal of the committee for mismanagement and assessment of the individual liability of the
committee members, had nothing in common. The fact that the registrar had removed the committee, was no
reason to hold that he would be biased in investigating the individual responsibility of various members thereof. It
was also held that the fact that the Department of Co-operative Societies exercised a general control over all co-
operative societies, and that the registrar was the head of the department, would not also disqualify him.228 In
another case, from the haste shown by the registrar in superseding a Co-operative bank and other circumstances,
the High Court concluded that he had prejudged the issue and was guilty of bias.229
In the case of Oryx Fisheries Pvt Ltd,230 the company exported sea foods to a destination in Sharjah. The Marine
Products Export Development Authority issued a show cause notice to the fisheries company as to why its
certificate of registration as an exporter was not cancelled, as the sea food exported for the human consumption
was unfit for such use. Pursuant to the show cause notice, the registration certificate of the fisheries company was
cancelled. The main question that fell for the consideration was whether the authority in cancellation of the
registration certificate of the company had acted fairly and in compliance with the principles of natural justice and
whether the authority acted with an open mind. The court after examining the contents of the show cause notice
came to observe that the authority had “demonstrated a totally closed mind” at the stage of show cause notice itself,
which is inconsistent with the scheme of R. 43 under which the impugned action had been taken. The court came to
the conclusion that the contents of the show cause notice make it evident that the authority had prejudged the guilt
of the company at the stage of show cause notice itself, and the order of cancellation is also vitiated by bias.
Relying on its earlier decision, in the case of Kranti Associates,231 the court held that the requirement of recording
reasons in decision making process on the ‘doctrine of fairness’ is also a component of human right which requires
that “adequate and intelligent reasons must be given for judicial decisions”. In the result, the court quashed the
show cause notice leaving liberty to the authority to proceed afresh.
In the case of Trilok Sudhir Bhai Pandya,232 a paid employee of a private company was appointed as competent
authority for acquisition of the right of user under the Petroleum and Minerals Pipelines (Acquisition of Right of User
in Land) Act, 1962. Accepting the plea of bias raised by the affected parties, the court observed that the test of
likelihood bias is whether there is a reasonable apprehension in the mind of the party that the court or the tribunal
would not act with fairness and without bias on account of certain objective circumstances. There is no dispute in
the case that the salary, allowances, accommodation and transport of the competent authority were being borne by
the company for whom the acquisition was to be made and compensation to be paid. The competent authority was
virtually an employee of the private company and thereby there were reasons for the affected party to entertain a
reasonable apprehension in their mind that the competent authority may not act fairly and was likely to act with bias.
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The court relied on its previous decisions to make a distinction between authority conferred on a public authority
and a private employee. As a result, the court set aside the proceedings of the competent authority and directed the
Union of India to appoint another independent and unbiased person as the competent authority under the Act.
In UOI v Sanjay Jethi,233 after holding a Court of Inquiry (COI) against an army officer on the allegations of
irregularity in the hiring of Civil Hire Transport, a court of enquiry was held followed by a disciplinary enquiry. The
army officer approached the Armed Forces Tribunal which set aside the enquiry proceedings and directed
convening a fresh court of inquiry with a different presiding officer. The tribunal accepted the contention of the army
officer that the presiding officer of the court of enquiry was biased and prejudiced as he had already expressed
views against the officer in writing before he recommended disciplinary action against the officer. In the Supreme
Court the contention of the army officer was upheld and the appeal of Union of India was dismissed with the
following observations:
“We are compelled to report here that once a COI has been constituted to inquire into the allegations relating to a person’s
character and military reputation subject to the Act it should not be done by the persons who have expressed their views in
writing behind the back of the person and assume the role of the recommending authority which is statutory in nature to
take disciplinary action. The law does not countenance the same. In the present case it is irrefragably clear that the
recommendation of COI was the sole basis on which the disciplinary action has been initiated. Nothing else had come on
record, as observed by the Tribunal on earlier occasion, as well as by the impugned order and the said finding is
unassailable. That being the position, we find in the fitness of things, that the Presiding Officer should have recused himself
to preside over COI, however, we must make it clear that on earlier occasion the Tribunal had not quashed the entire
proceedings and the same was not challenged by either of the parties. Therefore, the additional COI which has been
directed by the Tribunal by the impugned judgment, shall only function as an additional COI and deal with the documents
which were produced earlier before the Tribunal in a tabular chart to which we have referred to hereinbefore.”
However, in the case of National Institute of Technology v U. Dinakar,234 the allegations of bias against the
presiding member of the enquiry committee comprising four other members was rejected both on the ground that 4
other members of the committee were neither made parties to the case, nor was it alleged that they did not act
independently. The plea was also rejected on the ground that it was raised for the first time in appeal of the High
Court and not in the earlier proceedings. The relevant observations of the court are:
“The bias or mala fide plea is generally raised by an interested party but the Court cannot draw any conclusion “unless
allegations are substantiated beyond doubt.” In this connection, one may refer to the decision in M.V. Thimmaiah v
UPSC.235 So far as the allegations of mala fide against Dr. Balaveera Reddy is concerned, though he was impleaded as a
party, no specific allegation was made to substantiate such allegation. The appellant Institute when discovered that
Respondent-1 was drawing salary in a higher scale of pay than the scale of pay to which he was entitled, constituted a five
member Enquiry Committee to look into the matter headed by Dr Balaveera Reddy. Though allegation of bias has been
made against Dr. Balaveera Reddy, “no allegation has been made against rest of the four members of the Committee.”
Even the other members were not impleaded as a party. In this background, it was not open for the High Court to give
finding of bias against one or the other member of the Committee, who decided the issue pursuant to which the notice was
issued to Respondent-1. The Division Bench of the High Court while wrongly held that the enquiry was tainted with bias,
erred in holding that Respondent-1 was entitled to the Central scale of pay.”
Similarly, in the case of UOI v S.P. Nayyar,236 the allegation of bias against the Chairman of Departmental
Promotion Committee, which was accepted by the High Court, was rejected by the Supreme Court in the appeal.
The officer’s grievance was that the Initiating Officer (IO) and the Reviewing Officer (RO) had given him grading
“Very Good” in the ACR but the Accepting Officer (AO) downgraded him as “good”. This was alleged to be a bias on
the part of the concerned accepting officer who had presided over the Departmental Promotion Committee resulting
in supersession of the officer. In reversing the judgment of the High Court and rejecting the plea of bias and mala
fide against the Chairman of the Departmental Promotion Committee, the Supreme Court observed:
“The bias and mala fide acts can be adjudged only on the basis of evidence. The assessment of character role by one or
other officer, giving a general grade such as “Good” cannot be the sole ground to hold that the officer was biased against
the person whose character role is assessed. In the instant case, there is nothing on record to suggest that Appellant 3,
E.N. Ram Mohan was biased against the respondent. Merely because he assessed the ACR of the respondent as “Good”
as against assessment of “Very Good” made by IO it cannot be said that he was biased against the respondent.
The Departmental Promotion Committee consists of a Chairman and the members. Even if bias is alleged against
the Chairperson, it cannot be presumed that all the members of the Committee were biased. No ground has been
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made out by the respondent to show as to why the assessment made by the DPC is not to be accepted. The High
Court failed to notice the aforesaid fact and wrongly discarded the assessment made by the DPC.”
166 Report of the Committee on Ministers’ Powers, 79; Keeton, The British Commonwealth, Vol. 1, 88-89 (1955).
167 See, supra, Chapter II; Jain Cases Chapter XII, Section C. Also see under heading: Institutional decisions, Chapter X.
168 For system of tribunals in India, see, infra, Chapter XIII; also Jain, Cases, Chapter XII.
169 Franklin v Minister of Town and Country Planning, (1948) AC 87. Reference to Franklin has often been made by the
Supreme Court.
170 Woolf J. in R. v City of London Corp. ex p. Allan, (1981) 79 LGR 223.
171 See. infra, this chapter, under “Statute may exclude Bias”.
172 See, A.K. Kraipak v UOI, AIR 1970 SC 150 : (1969) 2 SCC 262 : (1970) 1 SCR 457. D.K. Khanna v UOI, AIR 1973 HP
30; Ashok Kumar Yadav v State of Haryana, AIR 1987 SC 454 : (1985) 4 SCC 417. Also see infra, Chapter XV, under
Administrative Powers.
173 Slippi Constructions Contractors v UOI, (2020) 16 SCC 489.
174 H.C. Narayanappa v State of Mysore, AIR 1960 SC 1073 : 1960 (3) SCR 742; J.Y. Kondala Rao v AP State Road
Transport Corporation, AIR 1961 SC 82; Venkatachalam Iyer v State of Madras, AIR 1957 Mad 623.
175 K.S. Bhaskarananda v State of Karnataka, AIR 1990 Kant 182; Champa Singh v State of UP, AIR 1973 All 552, may
also be regarded as a case of policy bias.
176 Blaze and Cental (Pvt) Ltd v UOI, AIR 1980 Kant 186.
177 This Act provides for an expeditious procedure, to evict unauthorised occupants from public premise. Also see, in this
connection, infra, this chapter; Accounting and Secretarial Services Pvt v UOI, AIR 1993 Cal 102.
178 Gullapalli Nageswara Rao v AP State Road Transport Corporation (The first Gullapalli case), AIR 1959 SC 308 : 1959
Supp (1) SCR 319. Also see, Jain, Cases, Chapter X, Section C, 896.
179 Franklin v Minister of Town and Country Planning, [1948] AC 87. See also under heading: ‘Statute may Exclude Bias’,
infra, this chapter.
180 Gullapalli N. Rao v APSRTC, AIR 1959 SC 1376 : 1960 (1) SCR 580 (Gullapalli II). Also see, Jain, Cases, 899.
181 Gullapalli N. Rao v APSRTC, AIR 1959 SC 1376 at 1380 : 1960 SCJ 53 : (1960) 1 SCR 580. See also,
Satyanarayanamurthy v APSRTC, AIR 1961 SC 82. In Samarth Transport Co. v Y.B. Chavan, AIR 1961 Boni 80,
following Gullapalli II, Gullapalli N. Rao v APSRTC, AIR 1959 SC 1376 at 1380 : 1960 SCJ 53 : (1960) 1 SCR 580, it
was held that a minister is not a part of the department.
182 Gurdeva Narayan v State of Bihar, AIR 1955 Pat 131; Ramnath v Collector, AIR 1955 Pat 345; Laxmi Narain v A.N.
Puri, AIR 1954 Cal 335.
183 J.Y. Kondala Rao v AP State Road Transport Corporation, AIR 1961 SC 82.
184 H.C. Narayanappa v State of Mysore, AIR 1960 SC 1073 : 1960 (3) SCR 742.
185 J Y Kondala Rao v The Andhra Pradesh State Road Transport Corporation, AIR 1961 SC 82 at 90 : 1961 (1) SCR 642.
186 T.G. Mualiar v State of Tamil Nadu, AIR 1973 SC 974 : (1973) 1 SCC 336. See also Cantonment Executive Officer v
Vijay D. Wani, (2008) 12 SCC 230 (paras 7-13); Institute of Chartered Accountants of India v L.K. Ratna, (1986) 4 SCC
537: (1986) 1 ATC 714; Manak Lal v Dr. Prem Chand Singhvi, AIR 1957 SC 425; R. v Bow Street Metropolitan
Stipendiary Magistrate ex p Pinochet Ugarte (No.2), (2000) 1 AC 119 : (1999) 2 WLR 272 : (1999) 1 All ER 577 (HL);
Amar Nath Chowdhury v Braithwaite & Co. Ltd., (2002) 2 SCC 290; Rt. J.P. Linhan Inc., 138 F 2d 650; Naren Chandra
Naskar v Arun Bhattacharya, (2008) 13 SCC 406, 413 (para 25).
187 For a comment on this case, see, M.P. Jain, Administrative Law, IX A.S.I.L. 272 (1973). Also see, supra, Chapter X,
under Institutional Decisions.
188 Prakash Chandra Sahu v Managing Director, O.R.T. Co., AIR 1980 Ori 122. For detailed comments on this case, see,
M.P. Jain, Administrative Law, XVI A.S.I.L., 380-81 (1980).
189 Hindustan Petroleum Corporation Ltd v Yashwant Gajanan Joshi, AIR 1991 SC 933 : 1991 Supp (2) SCC 592; Jain,
Cases, 907. Also see, R.L. Goyal v State, AIR 1993 Raj 38.
190 Under section 2(a) of the Petroleum and Minerals Pipeline (Acquisition of Right of User in Land) Act, 1962, the Central
Government could appoint any one as the Competent Authority under the Act. There was no restriction on the power of
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the Central Government to appointing an employee of the corporation as the competent authority. At the same time,
there was no obligation on the government to do so.
191 This Act provides for an expeditious procedure to evict unauthorised occupants from public premises.
192 Accounting & Secretarial Services Pvt Ltd v UOI, AIR 1993 Cal 102. Also see, B.K. Mehra v Life Insurance Corporation
of India, AIR 1991 Cal 256.
193 Blaze and Central (P.) Ltd. v UOI, AIR 1980 Kant 186. Also see, Govindarajulu, infra, Chapter XXXII.
194 Hindustan Petroleum Corporation Ltd v Yashwant Gajanan Joshi, AIR 1991 SC 933 : 1991 Supp (2) SCC 592.
195 For discussion on Rules of Business, see, infra, Chapter XXI.
196 The Administrative Procedure Act (USA) 1946. See also, infra, this chapter.
197 Anjali Bhardwaj v UOI, (2019) 18 SCC 246.
198 Kihota Hollohon v, Zachilhu, AIR 1993 SC 412 : 1992 Supp (2) SCC 651; Jain, Cases, 912.
199 It needs to be pointed out that this case falls in the area of constitutional law and therefore, the validity of the law has
been challenged. The case is being mentioned here because of the discussion of the concept of policy bias therein.
200 Kihota Hollohon v Zachilhu, AIR 1993 SC 412 at 471 : JT 1992 (1) SC 600.
201 See, Malik Ram v State of Rajasthan, AIR 1961 SC 1575 : 1962 (1) SCR 978; Nehru Transport v Rajasthan, AIR 1963
SC 1098. In Kashi Pd. v Regional Transport Authority, AIR 1961 All 214, objections were heard by a committee of
officials against a scheme prepared by the transport department. The procedure was held not invalid.
202 Alkaff & Co. v The Governor-in-Council, (1937) MLJ 202.
203 Sirpur Paper Mills v Commissioner; Wealth Tax, AIR 1970 SC 1520 : (1970) 1 SCC 795 : (1970) 77 ITR 6. See, supra,
Chapter VIII and, infra, Chapter XIV; Jain, Cases, Chapters VII, Section C. and Chapter XIII.
204 See, supra, Chapter II; Jain, Cases, Chapter XII, See Section C.
205 Also see, supra, under Institutional Decisions, Chapter X, 552-561.
206 Schwartz, Administrative. Law, 304 (1984). Also, Schwartz, Recent Developments in American Administrative. Law,
(1980) LVIII Can B.R., 319; Schwartz, Casebook, 490-96 (1988).
207 Paras. 40, 303. See, Jain, Cases, Chapter XII, Section B, for relevant excerpts from the Report of the Franks
Committee.
208 Wade, Administrative Law, 866 (1982).
209 K.S. Bhaskarananda v State of Karnataka, AIR 1990 Kant 182; Jain, Cases, Chapter X, Section C, 887.
210 Hannam v Bradford City Council, (1970) 2 All ER 690; supra. For a comment on this case by Paul Jackson, see, 34
MLR 445.
211 R.C. Sood v High Court of Judicature at Rajasthan, (1998) 5 SCC 493, 507 (para 25).
212 Suraj Parkash Gupta v State of J&K, (2000) 7 SCC 561, 584 (para 33), See also Oriental Insurance Co. Ltd v T.S.
Sastry, (2004) 1 SCC 136, 139 (para 9).
213 Kuldeep Singh v Commissioner of Police, AIR 1999 SC 677 : (1999) 2 SCC 10, 20 (para 42).
214 A.K. Doshi (Dr.) v UOI, (2001) 4 SCC 43, 49-50 (paras 13 and 14).
215 Hari v Deputy Commissioner of Police, AIR 1956 SC 559 : 1956 CrLJ 1104 : 1956 SCR 506. See also Mohd. Yunus
Khan v State of UP, (2010) 10 SCC 539, 549-50 (para 28).
216 Pravin Kumar v UOI, (2020) 9 SCC 471.
217 UOI v Rama Lakhan Sharma, (2018) 7 SCC 670.
218 Mukesh Singh v State (NCT of Delhi), (2020) 10 SCC 120 : (2021) 1 SCC (Cri) 356.
219 Mohan Lal v State of Punjab, (2018) 17 SCC 627.
220 See Friendly, The Federal Administrative Agencies—The Need for Better Definition of Standards (1962).
221 Premchand Jain v State of Madhya Pradesh, AIR 1966 MP 117.
222 See, Kondala Rao v State of Andhra Pradesh S.R.T. Corporation, AIR 1961 SC 82 : (1961) 1 SCR 642, and the
Mudaliar case, supra. But cf. Gullapalli Nageswara Rao v State of Andhara Pradesh, II, AIR 1959 SC 1376 : 1960 (1)
SCR 580.
Page 15 of 15
223 See, Griffith and Street, Principles of Administrative Law, 155 (1973); De Smith, Judicial Review of Administrative
Action, 272 (1980); Davis, II Administrative Law Treatise, 130 (1958).
224 In re Linahan, 138 F. 2nd 650, 651-53 (1943). See also G.N. Nayak v Goa University, (2002) 2 SCC 712, 723 (para
33).
225 A teetotaler may not be disqualified to deal with liquor licensing applications: see, Paul Jackson, Natural Justice, 40
(1979).
226 K.S. Rao v Hyderabad, AIR 1957 AP 414, 417. See also, Joti Pd v Supdt of Police, AIR 1958 Punj 327.
227 P. Sreeramulu v State, AIR 1970 AP 114.
228 Registrar, Co-operative Societies v Dharam Guard, AIR 1961 SC 1743 : (1961) 31 Comp Cas 454.
229 Jose Kuttiyani v Registrar, Co-op. Societies, AIR 1982 Ker 12.
230 Oryx Fisheries Pvt. Ltd. v UOI, (2010) 13 SCC 427 : 2010 (11) SCALE 554.
231 Kranti Associates (P) Ltd. v Masood Ahmed Khan, (2010) 9 SCC 496 : (2010) 9 SCALE 199.
232 Trilok Sudhir Bhai Pandya v UOI, AIR 2012 SC 1668 : (2011) 10 SCC 203.
233 UOI v Sanjay Jethi, 2013 (13) SCALE 82.
234 National Institute of Technology v U. Dinakar, AIR 2015 SC 476 : (2014) 13 SCC 180.
235 M.V. Thimmaiah v UPSC, (2008) 2 SCC 119 : (2007) 14 SCALE 537.
236 UOI v S.P. Nayyar, (2014) 14 SCC 370 : (2014) 8 SCALE 174.
End of Document
11.5 Bias on Account of Judicial Obstinacy

Bias has many forms. It may be pecuniary bias, personal bias, bias as to subject-matter in dispute, or policy bias
etc. In the instant case, there is a new form of bias, namely, bias on account of judicial obstinacy.237 All judicial
functionaries have necessarily to have an unflinching character to decide a case with an unbiased mind. Judicial
proceedings are held in open court to ensure transparency. Access to judicial record by way of inspection by the
litigant or his lawyer and the facility of providing certified copies of that record are factors, which not only ensure
transparency but also instil and inspire confidence in the impartiality of the court proceedings.238 Unlike suits,
proceedings under article 226 of the Constitution are not conducted strictly, following the provisions contained in the
Code of Civil Procedure, but are held in accordance with the procedure devised by the High Court itself, under
which a fair hearing is provided to the parties concerned, before a decision is rendered. In other words, principles of
natural justice are observed strictly in letter and spirit. One of the requirements of natural justice is that the hearing
should be done by a judge with an unbiased mind.239 An essential requirement of judicial adjudication is that the
judge is impartial and neutral and is in a position to apply his mind objectively to the facts of the case put up before
him. If he is predisposed or suffers from prejudices or has a biased mind, he disqualifies himself from acting as a
judge.240 But Frank, J. of the United States in Linahan, In re241 says:
“If, however, ‘bias’ and ‘partiality’ be defined to mean the total absence of preconceptions in the mind of the judge, then no
one has ever had a fair trial and no one will. The human mind, even at infancy, is no blank piece of paper. We are born with
predispositions… Much harm is done by the myth that, merely by …taking the oath of office as a judge, a man ceases to be
human and strips himself of all predilections, becomes a passionless thinking machine.”
If a judgment is overruled by the higher court, the judicial discipline requires that the judge whose judgment is
overruled must submit to that judgment. He cannot, in the same proceedings or in collateral proceedings between
the same parties, rewrite the overruled judgment. Even if it was a decision on a pure question of law which came to
be overruled, it cannot be reiterated in the same proceedings at the subsequent stage by reason of the fact that the
judgment of the higher court which has overruled that judgment, not only binds the parties to the proceedings but
also the judge who had earlier rendered that decision. That judge may have his occasion to reiterate his dogmatic
views on a particular question of common law or constitutional law in some other case, but not in the same case. If
it is done, it would be exhibitive of his bias in his own favour to satisfy his egoistic judicial obstinacy.242
In S.K. Warkoo v State of J&K,243 the Apex Court recorded its strong disapproval of the fact that, when an SLP was
argued, it was not brought to the notice of the Bench that one of the members of the Bench had earlier heard the
matter, while presiding over a Division Bench, as the Chief Justice of J&K High Court. Had the matter been brought
to the notice of the Supreme Court, their Lordships would have declined to hear the matter. The fact having been
brought to the notice of the court through this review petition, the Apex Court issued notice to the counsel of the
respondent directing the record of the SLP to be put up alongwith the review petition before a Bench of which the
Judge concerned is not a Member.
In the commentaries of O. Hood Phillips and Jackson,244 it has been commented that principles of ‘natural justice’
also apply to the conduct of the courts. The right of each side to a dispute to be heard (audi alteram partem) and
the requirement that a judge should not be a party to a case and should be free from personal interest or bias in the
case before him (nemo judex in re sua), help to ensure the impartial discharge of judicial duties.
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241 Linahan, In re, 138 F 2d 650.
242 State of WB v Shivananda Pathak, AIR 1998 SC 2050 : (1998) 5 SCC 513, 524-25 (para 28).
243 S.K. Warkoo v State of J&K, (1998) 9 SCC 677 (paras 3 and 4).
244 O. Hood Phillips and Jackson, Constitutional and Administrative Law, 8th Edn., para 20-038 at p. 438.
End of Document
11.6 Group Decision
11.6 Group Decision

Where a decision is taken by a group of persons, such as a board or committee, bias of one member affects the
validity of the group decision and it does not matter that the biased member did not actively participate in the
decision, or that he remained silent and did not seek to influence the decision of other members in the group. The
reason is that in such a case, the question is not whether there was actual bias or not, but whether there was a
reasonable likelihood of bias. The principle was first stated explicitly and applied by the Supreme Court in
Kraipak.245 The Supreme Court said that in a group decision, each member of the group is bound to influence the
other. This view has been reiterated since then in a number of cases.246 In Sarana,247 the Supreme Court reiterated
the proposition that bias on the part of a member of the selection committee for filling certain posts may vitiate it
recommendations. On this point, the court had stated:248
“In deciding the question of bias, human probabilities and ordinary course of human conduct have to be taken into
consideration. In a group deliberation and decision like that of a Selection Board, the members do not function as
computers. Each member of the group or board is bound to influence the others, more so if the member concerned is a
person with special knowledge. His bias is likely to operate in a subtle manner.”
One member can subtly influence the minds of the other members in his favour. In Rattan Lal Sharma, the
Supreme Court quashed a group decision on account of the bias of one of its members.249
When a selection committee to select persons for civil posts includes as a member, the son-in-law of a selected
candidate (while some of his seniors were not selected), the selections were quashed on the ground of bias, even
though the committee was presided over by an independent person, eg the Chairman of the Union Public Service
Commission.250 The doctrine of bias, the court held, would apply in case the relationship between the adjudicator
and a party before him, was so close as to give rise to the reasonable likelihood of the adjudicator espousing the
cause of the party as his own. In the instant case, the relationship between the committee member and the
candidate selected was, sufficiently close to bring the doctrine of bias into play. “The nearness of the relationship
could reasonably give the impression to the other candidates that there was a ‘real likelihood’ of the member
espousing the case of his father-in-law.” The court emphasised, that the facts, that the member concerned
remained silent in the committee meeting, or that he did not influence the members of the committee, or that the
committee was aware of the member’s relationship with the candidate, were of no consequence. The law was not
concerned with whether the member concerned in fact participated in the consideration of his father-in-law’s
candidature or spoke to the prejudice of other candidates. “The law is concerned with determining whether there
was a reasonable likelihood of bias.” In a group discussion, each member of the group influences the other. The
selection list was therefore quashed as, in the court’s opinion, the petitioners could have legitimately believed that
there was a “reasonable likelihood of bias” in favour of the candidate selected to the detriment of the petitioners,
because of the presence of his son-in-law on the committee. When the mother-in-law of a candidate for post-
graduate course in a medical college was a member of the selection committee, his selection was quashed.251 A
similar question has now been considered in some detail by the Supreme Court in Ashok Kumar Yadav v
Haryana.252 The basic question raised in the case was: when a near relation of a member of a selection committee
is a candidate, what should the member do? Should he desist from interviewing all the candidates or only his
relation? Taking a broader view of the matter, the court has laid down the following proposition: if a selection
committee is constituted for the purpose of selecting candidates on merits, and one of its members is closely
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11.6 Group Decision
related to a candidate appearing for the selection, such member should not merely withdraw from participation in
the interview of the candidate related to him, but he must withdraw altogether from the entire selection process,
otherwise all selections would be vitiated on account of reasonable likelihood of bias affecting the selection process.
In Mohapatra,253 the Supreme Court applied the same principle. The court ruled that mere non-participation in the
discussion by an interested member or even his withdrawal from deliberations of the committee when his books are
being considered for selection, would not suffice because the evil of quid pro quo cannot be eliminated by this.
“Members deliberating would bear in mind that the turn for selecting their books would also come and the
concerned member who had not participated or had withdrawn, would then be favourably inclined to select their
books.”
245 A.K. Kraipak v UOI, AIR 1970 SC 150 : (1969) 2 SCC 262 : (1970) 1 SCR 457. Perhaps the germs of this ruling can be
found in Manak Lal v Prem Chand, AIR 1957 SC 425 : 1957 SCR 575.
246 D.K. Khanna v UOI, AIR 1973 HP 30; K. Chelliah v Chairman, I.F. Corp, AIR 1973 Mad 122; Institute of Chartered
Accountants of India v L.K. Ratna, AIR 1987 SC 71 at p. 72 : (1986) 4 SCC 537; Bhupindra Kumar Singhal v P.R.
Mehta, AIR 1990 Guj 49; Ranjit Thakur v UOI, AIR 1987 SC 2386 : (1987) 4 SCC 611.
247 G. Sarana v Lucknow University, AIR 1976 SC 2428 : 1977 (1) LLJ 68 : (1976) 3 SCC 585.
248 G. Sarana v Lucknow University, AIR 1976 SC 2428 : (1976) 3 SCC 585.
249 Ratan Lal Sharma v Managing Committee, AIR 1993 SC 2155 : 1993 (2) LLJ 549.
250 D.K. Khanna v UOI, AIR 1973 HP 30; supra.
251 Also see, Kirti Deshmankar v UOI, AIR 1990 MP 3357 : (1991) 1 SCC 104.
252 Ashok Kumar Yadav v Haryana, AIR 1987 SC 454; Jain, Cases Chapter X, Section D, 917.
253 J. Mohapatra & Co v State of Orissa, AIR 1984 SC 1572 : (1984) 4 SCC 103.
End of Document
11.7 Actual Bias and Apparent Bias

A distinction is made between actual bias and apparent bias. Actual bias is rarely established, but clearly provides
grounds for removal. More often there is a suspicion of bias which has been variously described as apparent or
unconscious or imputed bias. In such majority of cases, it is often emphasised that the challenger does not go so
far as to suggest that the arbitrator is actually biased, rather that some form of the objective apprehension of bias
exists.254
Actual bias would lead to an automatic disqualification, where the decision-maker is shown to have an interest in
the outcome of the case. Actual bias denotes an arbitrator who allows a decision to be influenced by partiality or
prejudice and thereby deprives the litigant of the fundamental right to a fair trial by an impartial tribunal.255
The question of bias is always the question of fact. The court has to be vigilant while applying the principles of bias
as it primarily depends on the facts of each case. The court should only act on real bias and not merely on
likelihood of bias.256
In the case of Ashok Kumar Lingala v State of Karnataka,257 the Supreme Court found that there was no
overlapping of areas, over which government granted permission for mining to disputing parties. One party was
granted mining lease on private land and the other party was granted mining lease on government forest land.
There was no overlapping of the areas and the dispute could be resolved by directing proper demarcation of the
area and land allotted to the parties.
A request was made at the Bar on behalf of one of the parties that in view of the bad blood generated between the
parties, the entire process of demarcation and identification of the leased areas be entrusted to the Geological
Survey of India.
The Supreme Court rejected their prayer observing:
“While the appellant may have some apprehension about the fairness of the officers of the department concerned we do
not consider them to be sufficient for us to mistrust the State functionaries in the absence of any material to suggest that
there is any real likelihood of bias.”
The court, therefore, directed that the demarcation of the area leased to the parties be undertaken by senior level
officers of the State.
A question of likelihood of judicial bias arose in the case of Narendra Singh Arora v State (Government of NCT of
Delhi).258 At the stage of a criminal trial, the additional district judge recused himself of the case passing a formal
order that for personal reasons he did not want to try the case. The same case against acquittal went in revision
before the High Court, and the same trial judge by that time had become the High Court Judge and unmindful of his
recusal at the trial stage, he dismissed the revision in the same case. The revisional order of the High Court was
questioned in the Supreme Court on the alleged ground of judicial bias on the part of the judge concerned. In the
above factual background the court observed:
Page 2 of 4
“It is well-settled law that a person who tries a cause should be able to deal with the matter placed before him objectively,
fairly and impartially. No one can act in a judicial capacity if his previous conduct gives ground for believing that he cannot
act with an open mind or impartially. The broad principle evolved by this Court is that a person, trying a cause, must not
only act fairly but must be able to act above suspicion of unfairness and bias.”
In the case of Ramesh Chandra v University of Delhi,259 the court held that if Hon’ble Retired Judge, before his
appointment as a judge was enquiry officer of any of the parties (Delhi University herein), the disciplinary authority
could not engage such retired judge as enquiry officer, as the other parties may allege bias against inquiry officer
and the reputation of the Hon’ble Judge may be at stake. Thus, in the above case, even in the absence of actual
bias, the court interfered and set aside the appointment of enquiry officer on the ground of apparent bias.
In the case of Sujasha Mukerjee v High Court of Calcutta,260 the petitioner lost chance of participating in the final
selection to the post of district judge because one of her written examination papers was moderated and her
percentage in that paper got reduced from 55% to 37%. The Supreme Court while deciding the appeal, granted her
relief directing that on recalculation the petitioner is found entitled to be considered for appointment after her
successful performance. In the course of decision of her appeal it was revealed that the senior most judge on the
Bench of the High Court, who had decided her case, was also one of the three judges who acted as examiners, and
had conducted the selection test. The court observed that this was highly objectionable and to avoid apparent bias,
the concerned judge ought to have recused himself from the case. The observations of the court are:
“We note that the senior most Judge of the three Judges/examiners is the author of the impugned judgment. It requires to
be immediately stated that this is alarmingly irregular and tantamount to being a Judge in one’s own cause. It was,
therefore, imperative for the learned Judge to recuse himself from the adjudication; and this facet would ordinarily be
sufficient to set aside the impugned judgment. However, keeping in perspective the gravity and urgency of the matters in
issue before us, rather than remanding the dispute to the High Court for a fresh determination by a Division Bench
comprising learned Judges who are not connected in any manner to the subject selection, we think it proper to proceed to
decide the dispute on its merits.”
The 99th Constitutional Amendment Act and the connected National Judicial Appointment Commission Act of 2014
were challenged and it was held unconstitutional by a majority of four judges against one in the case of Supreme
Court Advocates-on-Record Association v UOI.261
One of the grounds urged was, that the participation of law minister ex-officio, as one of the non-judicial members in
the judicial commission comprising five other members, including three judicial members in selection of the judges
to the higher judiciary would be vitiated because of likelihood of bias on the part of the law minister who represents
law department of the Central Government. The reasoning of the Presiding Member of the Constitution Bench
namely Khehar J is as under:
“Since the executive has a major stake in a majority of cases which arise for consideration before the higher judiciary, the
participation of the Union Minister in charge of Law and Justice as an ex officio Member of NJAC would be clearly
questionable. In today’s world, people are conscious and alive to the fact that their rights should be adjudicated in
consonance with the rules of natural justice. One of the rules of natural justice is that the adjudicator should not be biased.
This would mean that he should neither entertain a prejudice against either party to a lis nor should he be favourably
inclined towards any of them. Another component of the rule of bias is that the adjudicator should not have a conflict of
interest with the controversy he is to settle. What needs to be highlighted is that bias, prejudice, favour and conflict of
interest are issues which repeatedly emerge. Judges are careful to avoid adjudication in such matters. Judges are not on
one or the other side of the adjudicatory process. The political-executive in contrast, in an overwhelming majority of cases,
has a participatory role. In that sense, there would/could be an impact/effect of a decision rendered one way or the other a
success or a defeat a win or a loss. The plea of conflict of interest would be available against the executive, if it has a
participatory role in the final selection and appointment of Judges, who are then to sit in judgment over matters, wherever
the executive is an essential and mandatory party. Consequent upon the participation of the Union Minister in charge of
Law and Justice, a Judge approved for appointment with the Minister’s support may not be able to resist or repulse a plea
of conflict of interest raised by a litigant in a matter when the executive has an adversarial role. In NJAC, the Union Minister
in charge of law and Justice would be a party to all final selections and appointments of Judges to the higher judiciary. It
may be difficult for Judges approved by NJAC to resist a plea of conflict of interest (if such a plea was to be raised, and
pressed) where the political-executive is a party to the lis. The above would have the inevitable effect of undermining the
Page 3 of 4
independence of the judiciary even where such a plea is repulsed. Therefore, the role assigned to the political-executive
can at best be limited to a collaborative participation, excluding any role in the final determination. Therefore, merely the
participation of the Union Minister in charge of Law and Justice in the final process of selection as an ex officio Member of
NJAC would render the amended provision of article 124A(1)(c) as ultra vires the Constitution as it impinges on the
principles of independence of the judiciary and separation of powers.”
In his dissenting opinion Chelameshwar J, however, did not find any such alleged likelihood of bias or possibility of
favouritism by a Judge or a higher judiciary even though, in his appointment the law minister participated as one of
the members of the commission. The reasoning of Chelameshwar J, in his dissenting opinion is as under:
“I now deal with the submission that presence of the Law Minister in NJAC undermines independence of judiciary.
According to the petitioners, the presence of a member of the Executive invariably has the effect of shifting the power
dynamics. The presence of the Law Minister in NJAC which confers 1/6 of the voting power per se undermines the
independence of the judiciary. The submission is untenable. The Executive with a vast administrative machinery under its
control is capable of making enormous and valuable contribution to the selection process. The objection is justified to some
extent on the trust deficit in the Executive Branch in the constitutional sense, to be a component of NJAC. The same logic
applies a fortiori to the Judicial Branch, notwithstanding the belief that it is the least dangerous branch. The Constituent
Assembly emphatically declined to repose exclusive trust even in the CJI. To wholly eliminate the Executive from the
process of selection would be inconsistent with the foundational premise that the Government in a democracy is by chosen
representatives of the people. Under the scheme of our Constitution, the Executive is chartered clear authority to administer
critical areas such as defence of the realm, internal security, maintenance of public order, taxation, management of fiscal
policies and a host of other aspects, touching every aspect of the administration of the Nation and lives of its people. In this
context, to hold that it should be totally excluded from the process of appointing Judges would be wholly illogical and
inconsistent with the foundations of the theory of democracy and a doctrinal heresy. Such exclusion has no parallel in any
other democracy whose models were examined by the Constituent Assembly and none other were brought to our notice
either. Established principles of constitutional government, practices in other democratic constitutional arrangements and
the fact that the Constituent Assembly provided a role for the Executive clearly prohibit the interference that Executive
participation in the selection process abrogates a basic feature. The Attorney General is right in his submission that
exclusion of the Executive Branch is destructive of the basic feature of checks and balances—a fundamental principles in
constitutional theory.”
It is a matter of common knowledge and regular experience, that in majority of litigation, the State is a defending
party and in majority of cases, where it approaches the court against decisions of judicial or quasi-judicial bodies, it
espouses not any personal cause of any State functionary of higher or lower level, but only advances general public
interest. In some cases, for that reason, it supports its own policy decisions on the legal or administrative side. The
State litigation is totally impersonal and the law minister personally has no stakes in any government litigation. A
judge appointed to higher judiciary through a selection process in which the law minister may participate only as
one of the members of the commission, is not directly or even remotely likely to be favourably inclined to the cause
of the State, in the course of discharge of judicial functions. Therefore, there is no direct or indirect cause of
likelihood of any apparent or actual bias on the part of judge, even though he gets selected for appointment by a
commission comprising three judicial members and three non-judicial members including the law minister.
Interestingly, a two judge Bench of the Supreme Court of India in the case of State of Punjab v Brijeshwar Singh
Chahal,262 had occasion to consider and deal with the nature of the litigation by and against the government. The
court held in the context of appointment of government advocates that government litigation has an element of
public interest, and engagement by government of lawyer to present its case is not like any private party engaging a
lawyer of his choice. The court, therefore, held that in appointing government advocates instead of “Rule of Hire
and Fire,” a selection procedure should be adopted for appointing competent lawyers as government advocates for
representing the case of the government and thereby to uphold and protect public interest, by giving competent
assistance to the courts. The following observations of the Bench on the nature of government litigation are
pertinent:
“Poor assistance at the Bar by counsel who are either not sufficiently equipped in scholarship, experience or commitment is
bound to adversely affect the task of administration of justice by the Court. Apart from adversely affecting the public interest
which State Counsel are supposed to protect, poor quality of assistance rendered to the Courts by State Counsel can affect
the higher value of justice itself. A fair, reasonable or non-discriminatory process of appointment of State Counsel is not
thus, demanded only by the rule of law and its intolerance towards arbitrariness but also by reason of the compelling need
Page 4 of 4
for doing complete justice which the Courts are obliged to do in each and every cause. The States cannot in the discharge
of their public duty and power to select and appoint State Counsel disregard either the guarantee contained in Art. 14
against non-arbitrariness or the duty to protect public interest by picking up the best among those available and willing to
work nor can the States by their action frustrate, delay or negate the judicial process of administration of justice which so
heavily banks upon the assistance rendered by the members of the Bar.
Appointment of Government Counsel at the district level and equally so at the High Court level, is not just a professional
engagement, but such appointments have a “public element” attached to them.
Appointment of Government Counsel must like the discharge of any other function by the government and public bodies, be
only in public interest unaffected by any political or other extraneous considerations.”
254 Russsell on Arbitration, 22nd Edn., para 4.032.

255 Bihar State Mineral Development Corporation v Encon Builders (I)(P) Ltd., AIR 2003 SC 3688 : (2003) 7 SCC 418,
423-24 (para 18).
256 Cantonment Executive Officer v Vijay V. Wani, (2008) 12 SCC 230, 234 (para 7).
257 Ashok kumar Lingala v State of Karnataka, AIR 2012 SC 53 : (2012) 1 SCC 321.
258 Narendra Singh Arora v State (Government of NCT of Delhi), AIR 2012 SC 1642 : (2012) 1 SCC 561.
259 Ramesh Chandra v Delhi, (2015) 5 SCC 549 : (2015) 2 SCALE 203.
260 Sujasha Mukerjee v High Court of Calcutta, (2015) 11 SCC 395 : (2015) 2 SCALE 563.
261 Supreme Court Advocates-on-Record Association v UOI, (2016) 5 SCC 1 : (2015) 11 SCALE 1.
262 State of Punjab v Brijeshwar Singh Chahal, AIR 2016 SC 1629 : (2016) 6 SCC 1.
End of Document
11.8 Initial Recommendation
11.8 Initial Recommendation

At times, there may be an initial recommendation made by a person or body. It may not have any effect by itself and
a higher body may have to accept it (or reject it). The initial recommendation may be questionable because of bias
of the person or the body making it. Will the bias of initial decision maker have any effect on the ultimate decision
taken by an independent body? The response of the courts has been in the affirmative, because while the initial
recommendation may not be the final word in itself, nevertheless, it plays a significant part in the making of the final
decision.263 In Manak Lal’,264 it was sought to be argued that the decision of the bar council tribunal was not final as
it had to be submitted to the High Court, and so the rule against bias was not applicable to the tribunal. The
Supreme Court rejected the argument. The court said that in a quasi-judicial proceeding, justice must not only be
done but must appear to be done to the litigant public. Therefore, when a lawyer was charged for professional
misconduct and was given the privilege of being tried by a bar council tribunal, the inquiry before the tribunal must
leave no room for a reasonable apprehension in the lawyer’s mind that the tribunal might have been influenced by
bias in the mind of one of the tribunal members. In the context of the report of a selection committee not being final,
but required to be adopted by the university’s executive council, in Sarana,265 the Supreme Court adopted the
following statement from De Smith:266
“... on principle it would seem that where a report or determination lacking final effect may nevertheless have a seriously
prejudicial effect on the legally protected interests of individuals (e.g. when it is a necessary prerequisite of a final order) the
person making the report or preliminary decision must not be affected by interest or likelihood of bias.”
This proposition has now been reiterated by the Supreme Court in Mohapatra.267 The court rejected the argument
that the recommendations of the committee appointed to select books for purchase for school libraries were not
final; the ultimate decision rested with the State Government which could reject any books approved by the
committee. The court said that the State Government would normally be guided by the list approved by the
committee.
263 A.K. Kraipak v UOI, AIR 1970 SC 150 : (1969) 2 SCC 262.
264 Manak Lal v Prem Chand, AIR 1957 SC 425 : 1957 SCR 575.
265 G. Sarana v Lucknow University, AIR 1976 SC 2428 : (1976) 3 SCC 585 : 1977 (1) LLJ 68.
266 Judicial Review of Administrative Action, 257 (1980).
267 J Mohapatra and Co v State of Orissa, AIR 1984 SC 1572 : (1984) 4 SCC 103.
End of Document
11.9 Statute May Exclude Bias

A law may specifically exclude or modify the rule against bias in a specific situation and may make a person judge
in his own cause. A statutory provision may obligate an official to sit and decide a matter irrespective of his interest
in the subject-matter thereof. For example, a statutory provision may say specifically that an official is not
disqualified to act as an adjudicator in a particular matter irrespective of his interest therein.
The State Government received proposals for increase in fare from many government transport undertakings
including the Maharashtra State Road Transport Corporation (MSRTC), a statutory body, and the BEST.
Accordingly, draft notifications were issued by the government proposing fare increase and inviting objections
against the proposal. Under section 43 of the Motor Vehicles Act, the concerned Minister overruled the objections
against the proposal and thereafter final notifications were issued increasing the fare. These notifications were
challenged by the petitioner association. The petitioner contended before the High Court that the Minister could not
hear and decide the matter as he had interest in government transport under-takings which would be benefited by
such an increase. Rejecting the contention, the court ruled that though MSRTC was an agency of the State, it was,
nevertheless, an independent statutory corporation and BEST and other transport undertakings were owned by
local authorities. The minister had no personal interest in them. The Act imposed a duty upon the State Government
to issue directions under section 43 of the MVA, 1939. Under the business rules, the concerned minister had to
hear and decide the matter on behalf of the State Government.268
Section 3 of the Public Premises (Eviction of Unauthorised Occupants) Act,269 authorises the Central Government
to appoint gazetted officers of the government or officers of equal rank of statutory bodies to act as estate officers
under the Act. However, an officer of a statutory body is to act as an estate officer only in respect of the public
premises controlled by that authority. In B.K. Mehra v LIC,270 an officer of the LIC was appointed as the estate
officer who passed an order of eviction of the petitioner from the LIC property. The order was challenged on the
ground of bias, the argument being that the estate officer being an employee of the corporation, would have bias in
favour of his employer. The court rejected the argument saying that section 3 was “clear legislative authority” for the
impugned appointment. The principles of natural justice cannot override a statutory provision. “Legislation may
override rules of natural justice, but the latter cannot efface a legislation.” Natural justice can supplement but not
supplant legislation.271
A statute authorised the managements of private colleges to hold enquiries, and take disciplinary action, against
their teachers. In Madhavan,272 the appellant argued that when the management itself was the accuser and the
prosecutor, it could not also conduct the enquiry as no one could be a judge in his own cause. Rejecting the
argument, the High Court emphasized that to accept the argument would result in the total effacement of the
statutory provision under which the only agency to enquire and take disciplinary action was the management and
no one else. Natural justice cannot prevail against an express statutory provision. Franklin,273 noted earlier, can
also be regarded as an example of the principle being discussed here. There, the power to decide was specifically
conferred on the minister concerned, and so he had to decide irrespective of his having a policy bias in the matter.
Finally, it may be stressed that the courts at times interpret statutory provisions in such a way as to exclude, as far
as possible, the operation of bias from the adjudicatory proceedings. Rule against bias can certainly be excluded in
a specific situation by law. If the law envisages that a person or body will make a determination in spite of the
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presence of an interest in such a person or authority giving rise to bias, then the decision may not be invalidated on
the ground of bias.274 However, the intention of the law should be clear to this effect. In the absence of a clear
indication in the law, the court’s usual inference would be to regard this as a disqualification. Even in the face of a
statutory scheme requiring an interested person to make the determination, whatever escape routes are available
to dilute the effect of disqualification of the authority, they should be taken recourse to, except where this cannot be
done without paralysing the administration. In other words, only in the case of necessity, the statutory scheme may
have to be strictly followed.275
11.9.1 Institutional Bias
By amendment to the Customs Act, the former members of Customs Excise and Service Tax Appellate Tribunal
(CESTAT) are debarred from appearing, acting or pleading before the tribunal. In N.K Bajpai v UOI,276 the
petitioner, who was a former member of the CEGAT, challenged the restriction on his practice before the tribunal on
the grounds inter alia, that when he served and demitted office of the member of the tribunal, such disqualification
for practice was not provided in the Act or the Rules and such restrictions imposed by the tribunal are violative of
his fundamental right of practice of his profession guaranteed by article 19(1)(g) of the constitution. The court
negatived all his contentions holding that the provision of bar on practice by former member of the tribunal before
the tribunal is reasonable restriction permissible in the Constitution and that such restriction was reasonable to
avoid the possibility of institutional bias. The court also held that applying the restriction is not giving retrospective
effect to the law but the amended provision operates retroactively. On the subject of institutional bias, the pertinent
observations of the court are:
“Having regard to the prevalent values and conditions of the profession, most of the legal practitioners would not stoop to
unhealthy practices or tactics but the legislature, in its wisdom, has considered it desirable to eliminate any possibility of
conflict between the interest and duty and aimed at achieving this object or purpose by prescribing the requisite restrictions.
With the development of law, the Courts are expected to consider, in contradistinction to private and public interests, the
institutional interest and expectations of the public at large from an institution. These are the balancing tests which are
applied by the courts even in the process of interpretation or examining of the constitutional validity of a provision.
The element of bias by itself may not always necessarily vitiate an action. The Court would have to examine the facts of a
given case. Reverting to the facts of the present case, despite their absence from the object and reasons for the
amendment of section 129(6) of the Customs Act, it cannot be held that the element of bias was presumptuous or without
any basis or object. It may be one of the relevant factors which probably would have weighed in the mind of the legislature.
When you have been a member of a Tribunal over a long period, and other members have been your co-members whether
judicial or technical, it is difficult to hold that there would be no possibility of bias or no real danger of bias. Even if we rule
out this possibility, still, it will always be better advised and in the institutional interest that restrictions are enforced. Then
alone will the mind of the litigant be free from a lurking doubt of likelihood of bias and this would enhance the image of the
Tribunal. The restriction, as already discussed, leaves the entire field of legal profession wide open for the appellants and
all persons situated alike except to practice before CESTAT.”
The court held that the amendments introduced in the Act are primarily based on public perception and normal
behaviour of an ordinary human being. On the contention of non-applicability of the amendment retrospectively to
the past retirees as members of tribunal, the court observed:
“One must clearly understand a distinction between a law being enforced retrospectively and a law that operates
retroactively. The restriction in the present case is a clear example where the right to practice before a limited forum is
being taken away while leaving all other forums open for practice by the appellants. Though, such a restriction may have
the effect of relating back to a date prior to the present. In that sense, the law is not retrospective, but would be retroactive.
It is not for the Court to interfere with the implementation of a restriction, which is otherwise valid in law, only on the ground
that it has the effect of restricting the rights of the people who attain that status prior to the introduction of the restriction. It is
certainly not a case of settled or vested rights, which are incapable of being interfered with. It is a settled canon of law that
the rights are subject to restrictions and the restrictions, if reasonable, are subject to judicial review of a very limited scope.”
For the aforesaid reasons, the court also negatived the argument based on violation of fundamental rights of
practicing profession and held that the restriction of practice before the tribunal by former member of the tribunal is
a reasonable restriction to avoid likelihood of any institutional bias.
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268 Akhil Bharatiya Grahak Panchayat (Bombay Branch) v State of Maharashtra, AIR 1985 Bom 1425. Also see, Krishna
Bus Service Pvt Ltd v State of Haryana, AIR 1985 SC 1651 : (1985) 3 SCC 771; Laxmi Motor Service v RTA, Goa, AIR
1985 Bom 436. Also see, supra, this chapter, under Policy Bias. AIR 1991 SC 933 : 1991 Supp (2) SCC 592
269 This Act provides for an expeditious procedure to evict unauthorised occupants from public premises.
270 B.K. Mehra v LIC, AIR 1991 Cal 256.
271 The same principle has been applied by the Supreme Court in Maganlal Chhagganlal v Municipal Corporation of
Greater Bombay Corp., AIR 1974 SC 2009 : (1974) 2 SCC 402. See also State of UP v Sheo Shanker Lal Srivastava,
(2006) 3 SCC 276, 283 (para 14).
272 M. Madhavan Pillai v K.A. Balan, AIR 1979 Ker 120.
273 Franklin v Minister of Town and Country Planning, [1948] AC 87.
274 Jeffs v N.Z. Dairy Production and Marketing Board, (1967) AC 551 ; supra, Jain, Cases, Chapter IX, Section I, 798.
275 See R.R.S. Tracey, Disqualified Adjudicator: The Doctrine of Necessity in Public Law 1982 Pub Law, 628. On
‘Necessity excludes Bias’ see, infra, this chapter.
276 N.K. Bajpai v UOI, AIR 2012 SC 1310 : (2012) 4 SCC 653.
End of Document
11.10 Waiver
11.10 Waiver
There also exists the principle of waiver. A person can always waive an advantage. A party may waive his objection
to adjudication by a biased person. Waiver may be express or implied. Objection may be inferred as having been
waived if the concerned party knowing of the disqualification arising out of bias in the adjudicator as well as being
aware of his right to object thereto, “acquiesced in the proceedings by failing to take objections at the earliest
opportunity”.277 By appearing before the adjudicator and keeping silent, knowing all the facts, he will be deemed to
have abandoned his right later on, to object to hearing by him on the ground of bias.278 The principle was applied by
the Supreme Court as early as 1957 in Manak La1.279 Although the Supreme Court was of the opinion that the
chairman of the bar council tribunal was disqualified to act as such on the ground of personal bias, applying the
doctrine of waiver, the court refused to give any relief to the petitioner advocate against whom the tribunal had
conducted the inquiry. The petitioner never raised any objection before the tribunal to the continuance of the
chairman because of bias. He raised this objection for the first time before the High Court. The court observed:
“The alleged bias in a member of the tribunal does not render the proceedings invalid if it is shown that the objection
against the presence of the member in question had not been taken by the party even though the party knew about the
circumstances giving rise to the allegations about the alleged bias and was aware of his right to challenge the presence of
the member in the tribunal. It is true that waiver cannot always and in every case be inferred merely from the failure of the
party to take the objection. Waiver can be inferred only if and after it is shown that the party knew about the relevant facts
and was aware of his right to take the objection in question.”
The court concluded that the petitioner knew of the facts giving rise to the chairman’s disqualification to act as a
member of the tribunal. Being a lawyer of 10 years’ standing, he must be deemed to have been conscious of his
legal rights in the matter and, therefore, his failure to take the plea of bias at the earlier stage of the proceedings
“creates an effective bar of waiver against him”. The court concluded that the petitioner wanted to take a chance to
secure a favourable report from the tribunal and when he found that he was confronted with an unfavourable report,
he adopted the device of raising the technical plea of bias.
In Vidya Parkash v UOI,280 a summary court-martial under section 116 of the Army Act, 1950, was presided over by
the commanding officer of corps. The appellant was tried for absenting without leave. He was dismissed after trial.
The Supreme Court rejected a challenge to the validity of the court martial on the ground of bias. The court refused
to accept the plea that the appellant had raised any objection to the proceedings being presided over by the
commanding officer. This contention was neither raised before the court-martial nor even before the High Court
while challenging the dismissal order.
There may, however, be situations where an individual may not be in a position to object, eg., on account of fear of
antagonising his superiors,281 ignorance of full facts, or if he was “prevented by surprise from taking the objection at
the appropriate time, or if he was unrepresented by counsel and did not know of his right to object at the time”.282 In
such situations, waiver may not be inferred. It is suggested that waiver ought not to be inferred, unless the affected
person knew of bias in the decision-maker, and also of his right to object at the earliest stage on this ground.
Waiver of rights by an individual should not be inferred lightly.283 A correct approach was adopted by the Supreme
Court on the question of waiver in Mohapatra.284 The court said there: “...merely by submitting books for selection of
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11.10 Waiver
which some might have been selected, a person cannot be said to have waived the objection which he may have to
the constitution of the committee which selects the books”.
The tenability of the Sarana ruling,285 is open to grave doubt especially after the Mohapatra ruling.286 There the
court implied waiver on the part of the candidate-petitioner from the fact of his appearance before the selection
committee, without raising any objection as to its composition, although he later challenged its decision on the
ground of bias of two of its members. However, there was nothing on record to show that the candidate at the time
of interview knew all the facts which entitled him to object as regards bias of two members of the committee, or
knew that he was entitled to raise objection at the time to the composition of the committee on the ground of bias.
Waiver cannot be inferred unless the concerned person knows all the facts which entitle him to object as well as
knows his right and then waives his right. There can be no waiver of rights of which the person concerned is
unaware. The courts should be reluctant to infer waiver, particularly when the affected person did not know of his
right to object at the earliest stage. After all, a surrender of rights should not be inferred lightly. On the other hand, in
Mohapatra, the court struck the right note by ruling that a person cannot be taken to have waived his right to
challenge the committee’s decision on the ground of bias merely from the fact of submission of books to it. Waiver
is an intentional act done with knowledge and not an unconscious act. There can be no waiver unless the person
concerned is fully conscious of his right and he then intentionally abandons the same.287 As has been stated by the
court in The King v Essex Justices, ex p. Perkins:288
“Waiver on acquiescence ... presupposes that the person to be bound is fully cognizant of his rights, and that being so, he
neglects to enforce them, or chooses one benefit instead of another, either, but not both, of which he might claim. If the
applicant was not fully cognizant of his right to take objection, he could not be said to have waived his right by failing to
exercise it. Waiver presupposes an intention to forgo a right.”
Reference may be made here to Rattan Lal Sharma.289 The appellant (R), principal of a college, was dismissed by
the managing committee of the college. The managing committee appointed an inquiry committee consisting of
three members of whom M was one. M was a member of the managing committee as a teachers’ representative. R
raised objection to the appointment of M to the inquiry committee but the managing committee overruled his
objection. M although a member of the inquiry committee deposed before the committee against the principal. On
receiving the inquiry report, the managing committee passed the dismissal order against R. Under the relevant rules
as made by the government, the matter then went to the deputy commissioner for approval of the dismissal order
who approved the same after considering a representation from R. The principal then preferred an appeal to the
commissioner but he dismissed the appeal. Thereafter, R. moved a writ petition in the High Court seeking quashing
of the dismissal order on the ground of M’s bias, but the High Court rejected the petition on the ground of waiver by
R. The High Court argued that as R had specifically raised the plea of M’s bias before the deputy commissioner and
the commissioner, he could not raise the plea in the writ Petition. On appeal, the Supreme Court disagreed with the
High Court. The Supreme Court said that, generally, a point not raised before the tribunal or administrative authority
may not be allowed to be raised for the first time in the writ proceeding, particularly, when the plea requires
investigation of facts. But if the plea not specifically raised earlier before the subordinate bodies is raised before the
High Court in the writ proceedings for the first time and the plea goes to the root of the question and is based on
admitted and uncontroverted facts and does not require any further investigation into a question of fact, “the High
Court is not only justified in entertaining the plea, but in the anxiety to do justice which is the paramount
consideration of the court, it is only desirable that litigant should not be shut out from raising such plea which goes
to the root of the lis involved”.
The Supreme Court ruled that the deputy commissioner was obligated to consider the correctness and propriety of
the managing committee decision which was based on the inquiry committee report which showed on its face that
M was included and retained in the inquiry committee despite the appellant’s objection and M became a witness
against R, the appellant. “The illegality committed in conducting the depart-mental proceedings has left an indelible
stamp of infirmity on the decision of the managing committee.” The Supreme Court quashed the order of dismissal.
The managing committee could however proceed afresh with the departmental proceeding (the inquiry) from the
stage of issuance of the charge-sheet, but then none of the members of the inquiry committee were to be a member
of the new inquiry committee.
A question may be raised about the tenability of the doctrine of waiver. It is based on the premise that it is only the
affected person who is concerned with the adjudicator’s bias and no one else, and if he seeks to ignore his own
interest, it is his choice and no one else needs to interfere in it. But, there is a wider social interest at stake here: is
not public interest compromised when a decision is taken by a biased person and justice is compromised by
favoritism towards one party as against the other? This means that the doctrine of waiver should be applied only in
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11.10 Waiver
rare cases because society has a stake in impartial and objective adjudication and the credibility of the system will
suffer in the public eye if biased persons are allowed to sit as adjudicators.
277 De Smith, Jud. Rev. of Adm. Action, 275 (1980).

278 G. Sarana v Lucknow University, AIR 1976 SC 2428 : (1976) 3 SCC 585 : 1977 (1) LLJ 68; T.P. Dave v Lodge Victoria,
AIR 1963 SC 1144; P.M. Kurien v P.S. Raghavan, AIR 1970 Ker 142; Baidyanath Mahapatra v State of Orissa, AIR
1989 SC 2218 : (1989) 4 SCC 664; Inderpreet Singh Kahlon v State of Punjab, (2006) 11 SCC 356, 417 (paras 134,
135), per Dalveer Bhandari, J., dissenting.
279 Manak Lal v Prem Chand, AIR 1957 SC 425 : 1957 SCR 575. See also State of UP v Sheo Shanker Lal Srivastava,
(2006) 3 SCC 276, 283 (para 14) : 1957 SCR 575.
280 Vidya Parkash v UOI, AIR 1988 SC 705. Also, Madhya Pradesh v Ashok Deshmukh, AIR 1988 SC 1240; Sant Ram v
State, AIR 1989 HP 15.
281 See P. Sreeramulu v AP, AIR 1970 AP 114.
282 De Smith, Jud. Rev. of Adm. Action (1980), at 275.
283 Also see, infra, next Chapter on Waiver.
284 J. Mohapatra and Co. v State of Orissa, AIR 1984 SC 1572 : (1984) 4 SCC 103.
285 G. Sarana v Lucknow University, AIR 1976 SC 2428 : (1976) 3 SCC 585.
286 J. Mohapatra and Co v State of Orissa, AIR 1984 SC 1572 : (1984) 4 SCC 103.
287 See, Motilal Padampat Sugar Mills v Uttar Pradesh, AIR 1979 SC 621 : (1979) 2 SCC R 409; infra, Chapter XXII,
under Promissory Estoppel.
288 The King v Essex Justices, (1927) 2 KB 475.
289 Rattan Lal Sharma v Managing Committee, AIR 1993 SC 2155 : (1993) 4 SCC 10.
End of Document
11.11 Necessity Excludes Bias

Referring to the doctrine of necessity, Sir William Wade in his Administrative Law stated:290
“But there are many cases where no substitution is possible, since no one else is empowered to act. Natural justice then
has to give way to necessity; for otherwise there is no means of deciding and the machinery of justice or administration will
break down.”
It was further stated:
“In administrative cases the same exigency may arise. Where the statute empowers a particular minister or official to act,
he will usually be the one and only person who can do so. There is then no way of escaping the responsibility, even if he is
personally interested. Transfer of responsibility is, indeed a recognised type of ultra vires. In one case it was unsuccessfully
argued that the only minister competent to confirm a compulsory purchase order for land for an airport had disqualified
himself by showing bias and that the local authority could only apply for a local Act of Parliament.”
The Supreme Court has explained in Mohapatra,291 that the only exception to the rule of bias is necessity. An
adjudicator who is subject to disqualification on the ground of bias or interest, in the matter which he has to decide,
may be required to adjudicate if there is no other person who is authorised or competent to adjudicate, or if a
quorum cannot be formed without him, or if no other competent tribunal can be constituted. In such cases, the
principle of natural justice would have to give way to necessity, for otherwise there would be no means of deciding
the matter and the machinery of justice would break down.292 It is well settled that the law permits certain things to
be done as a matter of necessity which it would otherwise not countenance on the touchstone of judicial propriety.
Stated differently, the doctrine of necessity makes it imperative for the authority to decide and considerations of
judicial propriety must yield. It is often invoked in cases of bias where there is no other authority or judge to decide
the issue. If the doctrine of necessity is not allowed full play in certain unavoidable situations, it would impede the
course of justice itself and the defaulting party would benefit therefrom. Take the case of a certain taxing statute,
which taxes certain perquisites allowed to judges. If the validity of such a provision is challenged, who but the
members of the judiciary must decide it. If all the judges are disqualified on the plea that striking down of such a
legislation would benefit them, a stalemate situation may develop. In such cases the doctrine of necessity comes
into play. If the choice is between allowing a biased person to act or to stifle the action altogether, the choice must
fall in favour of the former as it is the only way to promote decision-making.293 In this case, a committee to select
books for purchase for school libraries was appointed by the government by a resolution. The committee consisted
of some officials ex-officio and some non-officials. Some of the non-official members were authors of books which
were considered for selection by the committee. The Supreme Court refused to accept the argument that the rule
against bias ought not to be applied in the situation because of necessity. The court argued: “There was ... nothing
to prevent those whose books were submitted for selection from pointing out this fact to the State Government so
that it could amend its resolution by applying a substitute or substitutes as the case may be. There was equally
nothing to prevent such non-official author-members from resigning from the committee on the ground of their
interest”. In another case, the question as to the disqualification of a member of the Legislative Assembly was
raised before the governor who obliged to obtain the opinion of the Election Commission and to take decision solely
on that basis. The Election Commission is a three member commission and the Chief Election Commissioner was
found to have likelihood of bias against the said member. The Supreme Court was of the opinion that the proper
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course to follow would be that the Chief Election Commissioner should call a meeting of the Election Commission to
adjudicate on the issue of disqualification of the member. After calling the meeting he should act as the chairman
but then he may recuse himself by announcing that he would not participate in the formation of opinion. If the two
Election Commissioners reached a unanimous opinion, the Chief Election Commissioner would have the opinion
communicated to the Governor. If the two Election Commissioners did not reach a unanimous decision in the matter
of expressing their opinion on the issue referred to the Election Commission, it would be necessary for the Chief
Election Commissioner to express his opinion on the doctrine of necessity. The Court was of the view that in the
special circumstances of this case this course of action would be the most appropriate one to follow because if the
two Election Commissioners did not agree, undoubtedly, the doctrine of necessity would compel the Chief Election
Commissioner to express his views so that the majority opinion could be communicated to the governor, to enable
him to take a decision in accordance therewith as required by article 192(1) of the Constitution.294 Where a statute
or a statutory rule constitutes a designated authority to take administrative or quasi-judicial decisions and where the
person concerned is disqualified to take a decision on the principle of likelihood of bias, then the law (in certain
circumstances) makes an exception in the situation and the said person is entitled to take a decision
notwithstanding his disqualification, for otherwise no decision can be taken by anybody on the issue and public
interest will suffer. But the position in the present case is that there is no statute or statutory rule, compelling the
Chief Secretary to be a member of the Screening Committee. If the committee is constituted under an
administrative order and a member is disqualified in a given situation vis-à-vis a particular candidate, whose
promotion is in question, there can be no difficulty in his “recusing” himself and requesting another senior officer to
be substituted in his place in the committee. Alternatively, when there are three members in the committee, the
disqualified member could leave it to the other two — to take a decision. In case, however, they differ, then the
authority which constituted the committee, could be requested to nominate a third member. Hence, the doctrine of
necessity is not applicable in the present case.295 However, the Supreme Court was of the view that ordinarily the
court would be loath to uphold the submission of bias against a person holding such a high constitutional office as
that of the Chief Election Commissioner.296 Bias cannot be presumed against an inquiry officer who is an officer of
the management.297
The Supreme Court refused to apply the argument of necessity in Ratna.298 The court pointed out that under the
rules, while the disciplinary committee of the institute must necessarily consist of the president and the vice-
president, there was no such compulsion about the council meeting. The council could hold its meeting without the
president and the vice president being present. The court suggested an amendment of the Act with a view to
providing for the constitution of the disciplinary committee without the president and the vice-president in order to
give due recognition to the fundamental principle of law. The Supreme Court also rejected the argument of
necessity in Rattan Lal Sharma.299 The managing committee of the college sought to justify the appointment of M to
the inquiry committee on the ground of necessity, viz it was necessary to appoint him as he was the staff
representative in the managing committee. But the court ruled that there was no such necessity as there was no
rule requiring inclusion of the staff representative in the inquiry committee so as to attract the doctrine of necessity.
The inquiry committee could have been constituted with other members of the managing committee.
The court did however apply the doctrine of necessity in Ashok Yadav,300 to selections made by a Public Service
Commission.301 When a near relation of a member of the commission is a candidate, it will be enough if the
concerned member desists from interviewing his relation; he should withdraw from the committee when his relative
appears for interview and he should not participate in the discussion in regard to the merits of that candidate and
even the marks or credit given to him should not be disclosed to the concerned member. There was however no
need for the member to withdraw himself from the entire selection process. This is an exception from the normal
rule stated earlier.302 The reason for this judicial stance is practical necessity. A public service commission is a
constitutional body. If a member thereof withdraws from the selection process on the ground that a close relation of
his is appearing for selection, no other person save a member can be substituted in his place. If no other member is
available to take the place of such a member, the functioning of the commission may be affected.303
But a question may be posed at this stage: should not the doctrine of necessity, stated above, apply only when a
commission has so few members that a ‘biased’ member cannot be replaced by another member? If, however, the
membership is big enough to replace an ‘interested’ member with a ‘non-interested’ member, then, should not, in all
fairness, the court refuse to apply this doctrine? Should not the court in such a case insist that the Yadav ruling will
not apply and that no ‘biased’ member should sit on the selection committee?
In the case of State of Gujarat v Justice R.A. Mehta (Retd.),304 a serious difference of opinion arose between the
Governor and the Chief Justice of the State on one side and Chief Minister of the State on the other, regarding the
appointment to the post of Lokayukt in the State. One of the reasons advanced, on the behalf of the State for and
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on the behalf of the Chief Minister, in opposing the proposed appointment was that justice Mehta, after his
retirement, is associated with an NGO and had been criticizing the policies of the government with regard to
protection of minorities. Rejecting the allegation of bias or likelihood of bias against justice Mehta on his
appointment as Lokayukt, the court interpreted the provision of the relevant Act and observed thus:
“The 1986 Act itself provides for statutory safeguards against bias. Section 8(3) of the said Act for instance provides that in
the event of reasonable apprehension of bias in the mind of the person aggrieved, such person is free to raise his
grievance and seek recusal of the person concerned. Thus, prospective investigates will not be apprehended as potential
victims unnecessarily.
Section 4 of the 1986 Act makes a retired Judge, who is elected as a Member of Parliament, or of a State Legislature,
eligible for the purpose of being appointed as Lokayukta provided he resigns from the said House and severs his
relationship with the political party to which he belongs. It is, therefore, difficult to imagine a situation where the allegations
of bias/prejudice with respect to a person would be accepted, merely on the basis of the fact that such a person has some
association with a particular NGO. We do not feel that that objections raised by the State Government are cogent enough to
ignore the primacy of the opinion of the Chief Justice in this regard. Thus, we are of the opinion that the views of the
Hon’ble Chief Minister in this regard may not resonate with those of the public at large and thus, such apprehension is
misplaced.”
290 As cited in State of UP v Sheo Shanker Lal Srivastava, (2006) 3 SCC 276, 283-84 (para 16).
291 J. Mohapatra & Co v State of Orissa, AIR 1984 SC 1572 : (1984) 4 SCC 103. Also see, Wade, Administrative Law, 426
(1982): De Smith, Jud. Rev. of Adm. Action, 276 (1980); R.R.S. Tracey, Disqualified Adjudicator.
292 In Mary Teresa Dias v Hon’ble Acting Chief Justice, AIR 1985 Ker 245, the doctrine of necessity was applied to the
High Court, hearing a writ petition by a person whom it did not recommend for appointment as a district judge. The
court observed: “When the High Court makes the recommendation and it is challenged before the same Court, the
Judges of that Court are bound to hear the petition “ex necessitate”—a region where the principle of natural justice, in
any case, have to yield.”
293 Election Commissioner of India v Subramaniam Swamy (Dr.), AIR 1996 SC 1810 : (1996) 4 SCC 104, 117 (para 16).
See also State of UP v Sheo Shanker Lal Srivastava, (2006) 3 SCC 276, 283 (para 15).
294 Election Commissioner of India v Subramaniam Swamy (Dr.), AIR 1996 SC 1810 : (1996) 4 SCC 104, 118 (para 17),
followed in Badrinath v Govt. of TN, (2000) 8 SCC 395, 432-33 (paras 79 and 83).
295 Badrinath v Govt of TN, (2000) 8 SCC 395, 432-33 (paras 79 and 83).
296 Election Commission of India v Dr. Subramaniam Swamy, AIR 1996 SC 1810 : (1996) 4 SCC 104, 117 (para 15). See
also D.C. Aggarwal v State Bank of India, (2006) 5 SCC 153, 164 (para 28).
297 South India Cashew Factories Workers’ Union v Kerala State Cashew Development Corp. Ltd., (2006) 5 SCC 201, 206
(para 13).
298 Institute of Chartered Accountants of India v L.K. Ratna, AIR 1987 SC 71 at p. 72 : (1986) 4 SCC 537.
299 Rattan Lal Sharma v Managing Committee, AIR 1993 SC 2155 : (1993) 4 SCC 10; followed in Badrinath v Government
of TN, (2000) 8 SCC 395, 432-33 (paras 79 and 83).
300 Ashok Kumar Yadav v State of Haryana, AIR 1987 SC 454 : (1985) 4 SCC 417.
301 On Public Service Commissions, see M.P. Jain, Indian Constitutional Law, 795-801 (1987).
302 Ashok Kumar Yadav v State of Haryana, AIR 1987 SC 454 : (1985) 4 SCC 417.
303 Ref., Javid Rasool Bhat v Jammu & Kashmir, AIR 1984 SC 873 : (1984) 2 SCC 631; Nagarajan v Mysore, AIR 1966
SC 1942 : 1966 (3) SCR 682.
304 State of Gujarat v Justice R.A. Mehta (Retd.), AIR 2013 SC 693 : (2013) 3 SCC 1.
End of Document
11.12 Postscript
11.12 Postscript
In R. v Gough,305 the House of Lords has sought to clarify the law regarding bias. The leading judgement is
delivered by Lord Goff. If actual bias is proved, then that is the end of the case and the person concerned must be
disqualified. But it is not necessary to prove actual bias in the adjudicating body for two very good reasons, vi., (1)
bias is such an insidious thing that, even though a person may in good faith believe that he was acting impartially,
his mind may unconsciously be affected by bias. (2) There is an overriding public interest that there should be
confidence in the integrity of the administration of justice. Therefore, the approach of the law has been to look at the
relevant circumstances and to consider whether there is such a degree of possibility of bias that the decision in
question should not be allowed to stand.
Hitherto, in the authorities, two rival tests for bias have been propounded, vi., (1) whether a reasonable and fair-
minded person sitting in the court and knowing all the relevant facts would have had a reasonable suspicion that a
fair trial by the defendant was not possible (reasonable suspicion test); (2) whether there was a real likelihood of
bias (real likelihood test).
As regards pecuniary or proprietary interest in the subject-matter of the proceedings (as in Dimes),306 there is no
question of investigating, from an objective point of view, whether there was any real likelihood of bias, or any
reasonable suspicion of bias, on the facts of the particular case. “The nature of the interest is such that public
confidence in the administration of justice requires that the decision should not stand.” In other cases of bias, as
regards the perspective from which bias should be viewed, Lord Goff has laid down, after a review of the case-law,
that it is unnecessary, in formulating the appropriate test for bias, to require that the court should look at the matter
through the eyes of a reasonable man, “because the court in cases such as these personifies the reasonable man,”
and also because the court has ascertained relevant circumstances from the evidence which may not be available
to an ordinary observer. Lord Goff has now stated the test in terms of “real danger” rather than “real likelihood”, “to
ensure that the court is thinking in terms of possibility rather than probability of bias.” Thus, Lord Goff has laid down
the following uniform test applicable to all adjudicatory bodies:
“Having ascertained the relevant circumstances, the court should ask itself whether, having regard to those circumstances,
there was a real danger of bias on the part of the relevant member of the tribunal in question, in the sense that he might
unfairly regard (or have unfairly regarded) with favour, or disfavour, the case of a party to the issue under consideration by
him.”
The new formulation of the rule against bias is somewhat narrow and restrictive, as compared to the test
propounded by Lord Denning in Metropolitan Properties. The “reasonable man” is now out, the reviewing judge
himself takes the place of the reasonable man. Further, the “real likelihood bias” test is now replaced by the “real
danger” test. This means that quite a few cases which could be caught by the old rule against bias, will now be out
of reach of the new formula.
It remains to be seen what impact, if any, the above ruling will have on judicial thinking in India on this point. Will the
Supreme Court in future continue with its approach so far propounded in the cases mentioned above or will it re-
orient its thinking in the light of the above ruling of the House of Lords? One thing may however be said regarding
the present case-law in India on the question of bias. It is in a state of confusion because the courts do not apply
Page 2 of 2
11.12 Postscript
only one test uniformly but have propounded several tests for the purpose. It may lead to great advantage if the
Supreme Court is able to evolve one uniform test for the purpose, as this would avoid unnecessary and avoidable
confusion in this area.
305 R. v Gough, (1993) 2 All ER 726.

306 Dimes v Grand Junction Canal, (1852) 3 HLC 759.
End of Document
11.13 Natural Justice—A History and Elaboration by the Supreme Court

Natural justice is another name for common-sense justice. Rules of natural justice are not codified canons. But they
are principles ingrained into the conscience of man. Natural justice is the administration of justice in a common-
sense liberal way. Justice is based substantially on natural ideals and human values. The administration of justice is
to be freed from the narrow and restricted considerations, which are usually associated with a formulated law,
involving linguistic technicalities and grammatical niceties. It is the substance of justice which has to determine its
form.307 The expressions “natural justice” and “legal justice” do not present a watertight classification. It is the
substance of justice which is to be secured by both, and whenever legal justice fails to achieve this solemn
purpose, natural justice is called in aid of legal justice. Natural justice relieves legal justice from unnecessary
technicality, gramma-tical pedantry or logical prevarication. It supplies the omissions of a formulated law. As Lord
Buckmaster said, no form or procedure should ever be permitted to exclude the presentation of a litigant’s
defence.308 The adherence to principles of natural justice as recognised by all civilised States is of supreme
importance when a quasi-judicial body embarks on determining disputes between the parties, or any administrative
action involving civil consequences is in issue. These principles are well settled. The first and foremost principle is,
what is commonly known as audi alteram partem rule. It says that no one should be condemned unheard. Notice is
the first limb of this principle. It must be precise and unambiguous. It should apprise the party determinatively of the
case, he has to meet. Time given for the purpose should be adequate so as to enable him to make his
representation. In the absence of a notice of the kind and such reasonable opportunity, the order passed becomes
wholly vitiated. Thus, it is but essential that a party should be put on notice of the case before any adverse order is
passed against him. This is one of the most important principles of natural justice. It is after all an approved rule of
fair play. The concept has gained significance and shades with time. When the historic document was made at
Runnymede in 1215, the first statutory recognition of this principle found its way into the “Magna Carta”. The classic
exposition of Sir Edward Coke of natural justice requires to “vocate, interrogate and adjudicate”.309 In the celebrated
case of Cooper v Wandsworth Board of Works,310 the principle was thus stated:
“Even God himself did not pass sentence upon Adam before he was called upon to make his defence. ‘Adam’ (says God),
‘where art thou? Hast thou not eaten of the tree whereof, I commanded thee that thou shouldst not eat?’ ”
Since, then the principle has been chiseled, honed and refined, enriching its content. Judicial treatment has added
light and luminosity to the concept, like polishing of a diamond.311
Principles of natural justice are those rules which have been laid down by the courts as being the minimum
protection of the rights of the individual against the arbitrary procedure, that may be adopted by a judicial, quasi-
judicial and administrative authority, while making an order affecting those rights. These rules are intended to
prevent such authority from doing injustice.312
What is meant by the term “principles of natural justice” is not easy to determine. Lord Summer (then Hamilton, LJ)
in R v Local Govt Board,313 described the phrase as sadly lacking in precision. In General Council of Medical
Education & Registration of U.K. v Spackman,314 Lord Wright observed that it was not desirable to attempt “to force
it into any Procrustean bed” and mentioned that one essential requirement was that the tribunal should be impartial
and have no personal interest in the controversy, and further that it should give “a full and fair opportunity” to every
party of being heard.
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Lord Wright referred to the leading cases on the subject. The most important of them is Board of Education v
Rice,315 where Lord Loreburn, LC observed as follows:
“Comparatively recent statutes have extended, if they have not originated, the practice of imposing upon departments or
officers of State the duty of deciding or determining questions of various kinds. It will, I suppose, usually be of an
administrative kind; but sometimes it will involve matter of law as well as matter of fact, or even depend upon matter of law
alone. In such cases, the Board of Education will have to ascertain the law and also to ascertain the facts. I need not add
that in doing either they must act in good faith and listen fairly to both sides, for that is a duty lying upon everyone who
decides anything. But I do not think they are bound to treat such a question as though it were a trial. ...The Board is in the
nature of the arbitral tribunal, and a Court of law has no jurisdiction to hear appeals from their determination, either upon
law or upon fact. But if the Court is satisfied either that the Board have not acted judicially in the way which I have
described, or have not determined the question which they are required by the Act to determine, then there is a remedy by
mandamus and certiorari.”
Lord Wright also emphasised from the same decision, the observation of the Lord Chancellor that “the Board can
obtain information in any way they think best, always giving a fair opportunity to those who are parties to the
controversy for correcting or contradicting any relevant statement prejudicial to their view”. To the same effect are
the observations of Earl of Selbourne, L.O. in Spackman v lumstead District Board of Works,316 where the learned
and noble Lord Chancellor observed as follows:
“No doubt, in the absence of special provisions as to how the person who is to decide is to proceed, law will imply no more
than that the substantial requirements of justice shall not be violated. He is not a judge in the proper sense of the word; but
the must give the parties an opportunity of being heard before him and stating their case and their view. He must give
notice when he will proceed with the matter and he must act honestly and impartially and not under the dictation of some
other person or persons to whom the authority is not given by law. There must be no malversation of any kind. There would
be no decision within the meaning of the statute if there were anything of that sort done contrary to the essence of justice.”
Lord Selbourne also added that the essence of justice consisted in requiring, that all parties should have an
opportunity of submitting to the person by whose decision they are to be bound, such considerations as in their
judgment ought to be brought before him. All these cases lay down the very important rule of natural justice
contained in the oft quoted phrase “justice should not only be done, but should be seen to be done.”
Concept of natural justice has undergone a great deal of change in recent years. Rules of natural justice are not
rules embodied always expressly in a statute or in rules framed thereunder. They may be implied from the nature of
the duty to be performed under a statute. What particular rule of natural justice should be implied and what its
context should be in a given case, must depend to a great extent on the facts and circumstances of that case, the
framework of the statute under which the enquiry is held. The old distinction between a judicial act and an
administrative act has withered away. Even an administrative order, which involves civil consequences must be
consistent with the rules of natural justice. The expression “civil consequences” encompasses infraction of not
merely property or personal rights, but of civil liberties, material deprivations and non-pecuniary damages. In its
wide umbrella comes everything that affects a citizen in his civil life.317
Natural justice has been variously defined by different judges. A few instances will suffice. In Drew v Drew and
Lebura,318 Lord Cranworth defined it as “universal justice.” In James Dunber Smith v Her Majesty the Queen,319 Sir
Robort P Collier, speaking for the Judicial Committee of the Privy Council, used the phrase “the requirements of
substantial justice”, while in Arthur John Spackman v Plumstead District Board of Works,320 the Earl of Selbourne,
S.C. preferred the phrase “the substantial requirement of justice”. In Vionet v Barrett,321 Lord Esher, M.R. defined
natural justice as “the natural sense of what is right and wrong”. While, however, deciding Hookings v Smethwick
Local Board of Health,322 Lord Esher, M.R. instead of using the definition given earlier by him in Vionet case323
chose to define natural justice as “fundamental justice”. In Ridge v Baldwin,324 Harman, L.J., in the court of appeal
countered natural justice with “fair play in action”, a phrase favoured by Bhagwati, J. in Maneka Gandhi v UOI.325 In
H.K. (An Infant), Re.326 Lord Parker, C.J. preferred to describe natural justice as “a duty to act fairly.” In Fairmount
Investments Ltd v Secretary of State for Environment,327 Lord Russel of Killowen somewhat picturesquely described
natural justice as “a fair crack of the whip” while Geoffrey Lane, L.J. in R v Secy. of State for Home Affairs, ex p
Hosenball,328 preferred the homely phrase “common fairness”.
Page 3 of 6
How then have the principles of natural justice been interpreted in the courts and within what limits are they to be
confined? Over the years by a process of judicial interpretation two rules have been evolved as representing the
principles of natural justice in judicial process, including therein quasi-judicial and administrative process. They
constitute the basic elements of a fair hearing, having their roots in the innate sense of man for fair play and justice
which is not the preserve of any particular race or country but is shared in common by all men. The first rule is
“nemo judex in causa sua” or “nemo debet esse judex in propria causa sua” as stated in Earl of Derby’s case329 that
is, “no man shall be a judge in his own cause”. Coke used the form “aliquis non debet esse judex in propria causa,
quia non potest esse judex et pars” (Co. Litt. 1418), that is, “no man ought to be a judge in his own case, because
he cannot act as judge and at the same time be a party”. The form “nemo potest esse simul actor et judex”, that is,
“no one can be at once suitor and judge” is also at times used. The second rule is “audi alteram partem”, that is,
“hear the other side”. At times and particularly in continental countries, the form “audietur et altera pars” is used,
meaning very much the same thing. A corollary has been deduced from the above two rules and particularly the
audi alteram partem rule, namely “qui aliquid statuerit, parte inaudita altera acquum licet dixerit, haud acquum
fecerit” that is, “he who shall decide anything without the other side having been heard, although he may have said
what is right, will not have been what is right” [see Boswel’s case330] or in other words, as it is now expressed,
“justice should not only be done but should manifestly be seen to be done”. Whenever an order is struck down as
invalid being in violation of principles of natural justice, there is no final decision of the case and fresh proceedings
are left upon open. All that is done is to vacate the order assailed by virtue of its inherent defect, but the
proceedings are not terminated.
What is known as “useless formality theory” has received consideration of this court in M. C. Mehta v UOI.331 It was
observed as under:
“22. Before we go into the final aspects of this contention, we would like to state that cases relating to breach of natural
justice do also occur where all facts are not admitted or are not all beyond dispute. In the context of those cases there is a
considerable case-law and literature as to whether relief can be refused even if the Court thinks that the case of the
applicant is not one of ‘real substance’ or that there is no substantial possibility of his success or that the result will not be
different, even if natural justice is followed see Malloch v Aberdeen Corpn.332 (per Lord Reid and Lord Wilberforce), Glynn v
Keele University.333 Cinnamond v British Airports Authority,334 and other cases where such a view has been held. The latest
addition to this view is R. v Ealing Magistrates’ Court, ex p Fannaran,335 (Admn LR at p. 358) [see De Smith, Suppl. P 89
(1998)] where Straughton, L.J. held that there must be ‘demonstrable beyond doubt’ that the result would have been
different. Lord Woolf in Lloyd vMcMahon,336 has also not disfavoured refusal of discretion in certain cases of breach of
natural justice. The New Zealand Court in McCarthy v Grant,337 however goes halfway when it says that (as in the case of
bias), it is sufficient for the applicant to show that there is ‘real likelihood—not certainty—of prejudice’. On the other hand,
Garner’s Administrative Law (8th Edn., 1996, pp 271-72) says that slight proof that the result would have been different is
sufficient. On the other side of the argument, we have apart from Ridge v Baldwin,338 Megarry, J. in John v Rees,339 stating
that there are always ‘open and shut cases’ and no absolute rule of proof of prejudice can be laid down. Merits are not for
the Court but for the authority to consider. Ackner, J. has said that the ‘useless formality theory’ is a dangerous one and,
however inconvenient, natural justice must be followed. His Lordship observed that ‘convenience and justice are often not
on speaking terms’. More recently, Lord Bingham has deprecated the ‘useless formality theory’ in R. v Chief Constable of
the Thames Valley Police Forces, ex p Cotton,340 by giving six reasons. (See also his article ‘Should Public Law Remedies
be Discretionary?’ 1991 PL, p 64.) A detailed and emphatic criticism of the ‘useless formality theory’ has been made much
earlier in ‘Natural Justice, Substance or Shadow’ by Prof. D.H. Clark of Canada (see 1975 PL, pp 27-63) contending that
Malloch,341 and Glynn,342 were wrongly decided. Foulkes (Administrative Law, 8th Edn., 1996, p. 323), Craig (Administrative
Law, 3rd Edn., p 596) and others say that the Court cannot prejudge what is to be decided by the decision-making
authority. De Smith (5th Edn., 1994, paras 10.031 to 10.036) says Courts have not yet committed themselves to any one
view though discretion is always with the Court. Wade (Administrative Law, 5th Edn., 1994, pp 526-30) says that while futile
writs may not be issued, a distinction has to be made according to the nature of the decision. Thus, in relation to cases
other than those relating to admitted or indisputable facts, there is a considerable divergence of opinion whether the
applicant can be compelled to prove that the outcome will be in his favour or he has to prove a case of substance or if he
can prove a ‘real likelihood’ of success or if he is entitled to relief even if there is some remote chance of success. We may,
however, point out that even in cases where the facts are not all admitted or beyond dispute, there is a considerable
unanimity that the Courts can, in exercise of their ‘discretion’, refuse certiorari, prohibition, mandamus or injunction even
though natural justice is not followed. We may also state that there is yet another line of cases as in State Bank of Patiala v
S.K. Sharma,343 Rajendra Singh v State of MP,344 that even in relation to statutory provisions requiring notice, a distinction
is to be made between cases where the provision is intended for individual benefit and where a provision is intended to
protect public interest. In the former case, it can be waived while in the case of the latter, it cannot be waived.
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23. We do not propose to express any opinion on the correctness or otherwise of the ‘useless formality’ theory and leave
the matter for decision in an appropriate case, in as much as in the case before us, ‘admitted and indisputable’ facts show
that grant of a writ will be in vain as pointed out by Chinnappa Reddy, J”.
In some cases, it has been observed that where grant of opportunity in terms of principles of natural justice does
not improve the situation, “useless formality theory” can be pressed into service.345
“Useless formality theory” was also applied in the case of Dharampal Satyapal Ltd v Deputy Commissioner of
Central Excise, Guwahati.346 The government declared 10 years tax holiday for the north eastern region on 24
December 1997. However, by notification dated 31 December 1999, the said exemption was withdrawn
retrospectively for certain goods like pan masala, tobacco, cigarettes etc. The retrospective operation of withdrawal
of exemption was questioned in the High Court and Supreme Court. The principles of promissory estoppel and
natural justice were invoked by the petitioners. Rejecting the plea of denial of natural justice and applying “useless
formality theory”, the court refused to grant any relief to the petitioners. The relevant observations of the court are:
“To recapitulate the events, the appellant was accorded certain benefits under the Notification dated 8 July 1999. This
Notification stands nullified by section 154 of the 2003 Act, which has been given retrospective effect. The legal
consequence of the aforesaid statutory provision is that the amount with which the appellant was benefited under the
aforesaid Notification becomes refundable. Even after the notice is issued, the appellant cannot take any plea to retain the
said amount on any ground whatsoever as it is bound by the dicta in R.C. Tobacco. Likewise, even the officer who passed
the order has no choice but to follow the dicta in R.C. Tobacco. It is important to note that as far as quantification of the
amount is concerned, it is not disputed at all. In such a situation, issuance of notice would be an empty formality and we are
of the firm opinion that the case stands covered by “useless formality theory.”
In a given case post-decisional hearing can obliterate the procedural deficiency of a pre-decisional hearing.347
Though in all cases the post-decisional hearing cannot be a substitute for pre-decisional hearing, in the case at
hand the position is different. The position was illuminatingly stated by the Supreme Court in Managing Director,
ECIL v B. Karunakar,348 which reads as follows:
“31. Hence, in all cases where the enquiry officer’s report is not furnished to the delinquent employee in the disciplinary
proceedings, the Courts and tribunals should cause the copy of the report to be furnished to the aggrieved employee if he
has not already secured it before coming to the Court/tribunal and give the employee an opportunity to show how his or her
case was prejudiced because of the non supply of the report. If after hearing the parties, the Court/tribunal comes to the
conclusion that the non-supply of the report would have made no difference to the ultimate findings and the punishment
given, the Court/tribunal should not interfere with the order of punishment. The Court/tribunal should not mechanically set
aside the order of punishment on the ground that the report was not furnished as is regrettably being done at present. The
Courts should avoid resorting to short cuts. Since it is the Courts/tribunals which will apply their judicial mind to the question
and give their reasons for setting aside or not setting aside the order of punishment, (and not any internal appellate or
revisional authority), there would be neither a breach of the principles of natural justice nor a denial of the reasonable
opportunity. It is only if the Court/tribunal finds that the furnishing of the report would have made a difference to the result in
the case that it should set aside the order of punishment. Where after following the above procedure, the Court/tribunal sets
aside the order of punishment, the proper relief that should be granted is to direct reinstatement of the employee with liberty
to the authority/management to proceed with the inquiry, by placing the employee under suspension and continuing the
inquiry from the state of furnishing him with the report. The question whether the employee would be entitled to the back
wages and other benefits from the date of his dismissal to the date of his reinstatement if ultimately ordered, should
invariably be left to be decided by the authority concerned according to law, after the culmination of the proceedings and
depending on the final outcome. If the employee succeeds in the fresh inquiry and is directed to be reinstated, the authority
should be at liberty to decide according to law how it will treat the period from the date of dismissal till the reinstatement and
to what benefits, if any and the extent of the benefits, he will be entitled. The reinstatement made as a result of the setting
aside of the inquiry for failure to furnish the report, should be treated as a reinstatement for the purpose of holding the fresh
inquiry from the stage of furnishing the report and no more, where such fresh inquiry is held. That will also be the correct
position in law.”
The position was again reiterated in UOI v Vishwa Mohan,349 as follows:
“9. We are totally in disagreement with the above-quoted reasoning of the High Court. The distinction sought to be drawn
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by the High Court that the first charge-sheet served on the respondent related to the period when he was a clerk whereas
the other three charge-sheets related to the period when he was promoted as a bank officer. In the present case, we are
required to see the findings of the enquiry authority, the order of the disciplinary authority as well as the order of the
Appellate Authority since the High Court felt that the charges levelled against the respondent after he was promoted as an
officer were not of a serious nature. A bare look at these charges would unmistakably indicate that they relate to
misconduct of a serious nature. The High Court also committed an error when it assumed that when the respondent was
promoted as a bank officer, he must be having a good report otherwise he would not have been promoted. This finding is
totally unsustainable because the various acts of misconduct came to the knowledge of the Bank in the year 1989 and
thereafter the first charge-sheet was issued on 17 February 1989. The respondent was promoted as a bank officer
sometime in the year 1988. At that time, no such adverse material relating to the misconduct of the respondent was noticed
by the Bank on which his promotion could have been withheld. We are again unable to accept the reasoning of the High
Court that in the facts and circumstances of the case ‘it is difficult to apply the principle of severability as the charges are so
inextricably mixed up’. If one reads the four charge-sheets, they all relate to the serious misconduct which includes taking
bribe, failure to protect the interests of Bank, failure to perform duties with utmost devotion, diligence, integrity and honesty,
acting in a manner unbecoming of a bank officer etc In our considered view, on the facts of this case, this principle has no
application but assuming that it applies yet the High Court has erred in holding that the principle of severability cannot be
applied in the present case. The finding in this behalf is unsustainable. As stated earlier, the appellant had in his
possession the enquiry report/findings when he filed the statutory appeal as well as the writ petition in the High Court. The
High Court was required to apply its judicial mind to all the circumstances and then form its opinion whether non-furnishing
of the report would have made any difference to the result in the case and thereupon pass an appropriate order. In para 31,
this Court in Managing Director, ECIL,350 has very rightly cautioned:
‘The Court/tribunal should not mechanically set aside the order of punishment on the ground that the report was not
furnished as is regrettably being done at present. The Courts should avoid resorting to short cuts’.”
A review of Supreme Court decisions in applying principle of natural justice would unmistakably show that there is
no distinction between constitutional justice and natural justice. Rule of law permeates throughout the articles of the
Constitution and more so, when dealing with the constitutional rights of individuals. The concepts of constitutional
justice and natural justice converge. In fact, in India, constitutional justice has subsumed ‘natural justice’. The firm
principle of natural justice as it existed in common law and in the Constitutions of the world is now part of human
rights guaranteed by the United Nations international declarations and covenants, as incorporated in the
Constitutions of the member countries.351
307 Canara Bank v Debasis Das, AIR 2003 SC 2041 : (2003) 4 SCC 557, 570 (para 13), per Pasayat, J See also Canara
Bank v V.K. Awasthy, AIR 2005 SC 2090 : (2005) 6 SCC 321, 329 (para 8).
308 Canara Bank v Debasis Das, AIR 2003 SC 2041 : (2003) 4 SCC 557, 570 (para 14), per Pasayat, J. See also Canara
Bank v V.K. Awasthy, AIR 2005 SC 2090 : (2005) 6 SCC 321, 329-30 (para 10); Prakash Ratan Sinha v State of Bihar,
(2009) 14 SCC 690, 693 (para 9).
310 Cooper v Wandsworth Board of Works, (1863) 143 ER 414, 420 : 14 CBNS 180 : (1861-73) All ER Rep Ext 1554, as
cited in Canara Bank v Debasis Das, AIR 2003 SC 2041 : (2003) 4 SCC 557, 570 (para 15).
Bank v V.K. Awasthy, AIR 2005 SC 2090 : (2005) 6 SCC 321, 329-30 (para 10).
313 R. v Local Govt Board, (1914) 1 KB 160, 199 : 83 LJKB 86.
314 General Council of Medical Education & Registration of U.K. v Spackman, 1943 AC 627 : (1943) 2 All ER 337 : 112
LJKB 529 (HL).
315 Board of Education v Rice, 1911 AC 179 : 80 LJKB 796 : (1911-13) All ER Rep 36, 38C-F (HL).
316 Spackman v Plumstead District Board of Works, (1885) 10 AC 229 : 54 LJMC 81 : 53 LT 151.
Page 6 of 6
317 Canara Bank v Debasis Das, AIR 2003 SC 2041 : (2003) 4 SCC 557, 572 (para 19), per Pasayat, J. See also
Divisional Manager, Plantation Division, Andman & Nicobar Islands v Munnu Barrick, AIR 2005 SC 1158 : (2005) 2
SCC 237, 243 (paras 20 and 21); Canara Bank v V.K. Awasthy, AIR 2005 SC 2090 : (2005) 6 SCC 321, 331-32 (para
14).
318 Drew v Drew and Lebura, (1855) 2 Macq 1, 8 : 25 LTOS 282 (HL).
319 James Dunber Smith Her Majesty the Queen, in re, (1877-78) 3 AC 614, 623 (PC).
320 Arthur John Spackman v Plumstead District Board of Works, (1885) 10 AC 229, 240.
321 Vionet v Barrett, (1885) 55 LJRD 39, 41.
322 Hookings v Smethwick Local Board of Health, (1890) 24 QBD 712.
323 Vionet case, (1885) 55 LJRD 39.
324 Ridge v Baldwin, (1963) 1 QB 539, 578 : (1962) 1 All ER 834 : (1962) 2 WLR 716 (CA).
325 Maneka Gandhi v UOI, (1978) 1 SCC 248 : (1978) 2 SCR 621.
326 H.K. (An Infant), Re., (1967) 2 QB 617, 630 : (1967) 1 All ER 226 : (1967) 2 WLR 962.
327 Fairmount Investments Ltd. v Secretary of State for Environment, (1976) 1 WLR 1255 : (1976) 2 All ER 865 (HL).
328 R. v Secy. of State for Home Affairs, ex p Hosenball, (1977) 1 WLR 766 : (1977) 3 All ER 452 (CA).
329 Earl of Derby’s case, (1605) 12 Co Rep 114 : 77 ER 1390.
330 Boswel’s case, (1605) 6 Co Rep 486, 52-a : 77 ER 326. See also State of UP v Sheo Shanker Lal Srivastava, (2006) 3
SCC 276, 283 (para 13).
331 M. C. Mehta v UOI, AIR 1999 SC 2583 : (1999) 6 SCC 237, 245-47 (paras 22-23).
332 Malloch v Aberdeen Corporation, (1971) 2 All ER 1278 : (1971) 1 WLR 1578 (HL).
333 Glynn v Keele University, (1971) 2 All ER 89 : (1971) 1 WLR 487.
334 Cinnamond v British Airports Authority, (1980) 2 All ER 368 : (1980) 1 WLR 582 (CA).
335 R. v Ealing Magistrates’ Court, ex p Fannaran, (1996) 8 Admn LR 351.
336 Lloyd v McMahon, (1987) 1 All ER 1118 : 1987 AC 625 : (1987) 2 WLR 821 (CA).
337 Mc Carthy v Grant, 1959 NZLR 1014.
338 Ridge v Baldwin, 1964 AC 40 : (1963) 2 All ER 66 : (1963) 2 WLR 935 (HL).
339 John v Rees, (1969) 2 All ER 274 : 1970 Ch 345 : (1969) 2 WLR 1294.
340 R. v Chief Constable of the Thames Valley Police Forces, ex p Cotton, 1990 IRLR 344.
341 Malloch, (1971) 2 All ER 1278 : (1971) 1 WLR 1578 (HL).
342 Glynn, (1971) 2 All ER 89 : (1971) 1 WLR 487.
343 State Bank of Patiala v S.K. Sharma, AIR 1996 SC 1669 : (1996) 3 SCC 364 : 1996 SCC (L&S) 717.
344 Rajendra Singh v State of MP, AIR 1996 SC 2736 : (1996) 5 SCC 460.
346 Dharampal Satyapal ltd v Deputy Commissioner of Central Excise, Guwahati, (2015) 8 SCC 519: (2015) 6 SCC 612.
347 See Charan Lal Sahu v UOI, AIR 1990 SC 1480 : (1990) 1 SCC 613.
348 Managing Director, ECIL v B. Karunakar, AIR 1994 SC 1074 : (1993) 4 SCC 727, 758 (para 31) : 1993 SCC (L&S)
1184 : (1993) 25 ATC 704.
349 Union Bank of India v Vishwa Mohan, AIR 1998 SC 2311 : (1998) 4 SCC 310, 314 (para 9) : 1998 SCC (L&S) 1129.
350 Managing Director, ECIL, AIR 1994 SC 1074 : (1993) 4 SCC 727, 758 : 1993 SCC (L&S) 1184 : (1993) 25 ATC 704.
351 See Gleeson, Kiley and Nolan v Irish Land Commission, (1981) IR 23; The State (Furey) v Minister for Defence,
Supreme Court [1981] IR 75 and The State (Williams) v Army Pensions Board, [1983] IR 308 referred to in Gerard
Hogan and David Morgan, Administrative Law, 1986 Edn., p. 245.
End of Document
CHAPTER XII FAILURE OF NATURAL JUSTICE
Principles of Administrative Law, 9th Edn (2 Vols) > CHAPTER XII FAILURE OF NATURAL
JUSTICE

The Privy Council has said that ‘it has long been settled law’ that a decision which offends against the principles of
natural justice is outside the jurisdiction of the decision-making authority.1 Likewise Lord Rusell has said:2
“It is to be implied, unless the contrary appears, that Parliament does not authorise by the Act the exercise of powers in
breach of the principles of natural justice, and that Parliament does not by the Act require, in the particular procedures,
compliance with those principles.”
The rules of natural justice operate as implied mandatory requirements, non-observance of which invalidates the
exercise of power.3 Any order passed in violation of the principles of natural justice save and except in certain
contingencies, would be a nullity.4
Violation of natural justice is...to be classified as one of the varieties of wrong procedure, or abuse of power, which
transgress the implied conditions which Parliament is presumed to have intended.5
1 A.G. v Ryan [1980] AC 718.

2 Fairmount Investments Ltd. v Secretary of State for the Environment, [1976] 1 WLR 1255 at 1263, as cited by Wade
and Forsyth, Administrative Law, 9th Edn., 2005, p. 441.
3 Wade and Forsyth, Administrative Law, 9th Edn., 2005, p. 441.
4 Rajasthan State Road Transport Corporation v Bal Mukund Bairwa (2), (2009) 4 SCC 299, 318 (para 35).
5 Wade and Forsyth, Administrative Law, 9th Edn., 2005, p. 441.
End of Document
12.1 Void/Voidable
JUSTICE
12.1 Void/Voidable
12.1.1 Introductory
The principles of natural justice (audi alteram partem) have been characterised by the Supreme Court as
“foundational and fundamental concepts”.6
A few questions of some importance and complexity which have been cropping up before the courts time and again
are: When an authority required to observe natural justice in making an order, fails to do so, should the order made
by it be regarded as void or voidable? What are the implications of any such characterisation?
Generally speaking, a voidable order means that the order was legally valid at its inception, and it remains valid
thereafter until it is set aside or quashed by a court, that is, it has legal effect up to the time it is quashed. On the
other hand, a void order is no order at ail from its inception; it is a nullity and void ab initio.7
Before we go further, it may be necessary to enter into a caveat at this place with respect to a void order. Although
such an order may be deemed to be void ab initio, the uncertainties of Administrative Law are such that in most
cases a person affected by such an order cannot be sure whether the order is really valid or flawed or not until the
court decides the matter. An order “bears no brand of invalidity upon its forehead.” Therefore, the affected person
cannot just ignore the order treating it as a nullity or “non-est”. He has to go to a court for an authoritative
determination as to the nature of the impugned order.8 Thus, a court action becomes a necessity even when an
order may be void. For example, a challenge to an order as nullity for failure of natural justice gives rise to the
following crucial questions: Was the concerned decision-making authority obligated to follow natural justice in
passing the order in question? Did it fail to observe natural justice? As the discussion in the previous pages shows,
there is quite a good deal of uncertainty on both these points. Megarry, J., brings out this point clearly:9
“A decision reached by a tribunal wholly outside its jurisdiction and in complete defiance of natural justice is about as void
as anything can be: but if nobody who is entitled to challenge or question it chooses to do so, it remains in being.”
Thus, as the Privy Council has emphasized in Calvin,10 unless an order is declared void by a competent court, it
may have some effect or existence in the eyes of law. For example, as regards the question whether there can be
an appeal from such a decision, the Privy Council has emphasized that the decision cannot be considered as
“totally void, in the sense of being legally non-existent. So to hold would be wholly unreal.” The Privy Council has
emphasized that a void decision cannot be regarded as being completely nonexistent for purposes of appeal. As a
matter of fact, the decision, even though void, may lead to serious consequences for the concerned party. Its
consequences would remain in effect unless and until the decision is challenged. So, the decision would have
sufficient existence in law to justify an appeal. In the words of the Privy Council: “A decision of an administrative or
domestic tribunal, reached in breach of natural justice, though it may be called, indeed it may be for certain
purposes “void”, is nevertheless susceptible of an appeal”. The Privy Council has suggested that this condition
might be better expressed by saying that the decision is “invalid and vitiated”.
‘Void’ dictionarily means ‘ineffectual; nugatory; having no legal force or binding effect; unable in law to support the
purpose for which it was intended; nugatory and ineffectual so that nothing can cure it; not valid.’11 “A ‘void’ thing is
nothing; it has no legal effect whatsoever; and no right whatever can be obtained under it or grow out of it. In law it
Page 2 of 3
12.1 Void/Voidable
is the same thing as if the void thing had never existed.”12 The order, passed by an authority without the approval of
the higher authority as required by the statute, is non est and is therefore void. Its validity can be questioned or
invalidity be set up in any proceedings or at any stage13 but within limitation.14 Unless an order of the Court is
obtained, even an invalid order enjoys the presumption of validity. The meaning of void is relative, depending upon
willingness of the Court to grant relief.15 The order or action, if ultra vires the powers, becomes void and it does not
confer any right. But the action need not necessarily be set at naught in all events. Though the order may be void, if
the party does not approach the Court within reasonable time, which is always a question of fact and have the order
invalidated or acquiesced or waived, the discretion of the Court has been exercised in a reasonable manner. When
the discretion has been conferred on the Court, the Court may in appropriate case decline to grant the relief, even if
it holds that the order was void. In the instant case the acquisition proceedings had become final in all respects
including acceptance of compensation, hence it was held that the High Court was not justified in quashing the
notification.16
Nevertheless, conceptually, there is a lot of difference between a void and avoidable order. The question arises in
various contexts and has a number of ramifications. It has great practical value insofar as the courts take recourse
to conceptualists logic to answer a number of questions. For example, the following are some of the questions
which arise in regard to orders passed infringing natural justice and which the courts have sought to answer by
reasoning based on differentiation between void and avoidable orders, though not always with entire satisfaction:
(i) Can infringement of natural justice be waived by the person affected?

(ii) What is the effect of privative clauses on such orders? Are they protected?
(iii) Can the defect of failure of natural justice be cured later by the same body or by a higher body?
(iv) Can the court issue a writ (certiorari) to quash such an order without the affected person having taken
recourse to the alternative remedy available under the statute in question?
(v) Can the person affected ignore such an order without incurring any liability, civil or criminal?
(vi) Can the government seek to enforce an order challenged as void because of the failure of natural justice
pending the court’s decision on the matter?
(vii) Who can challenge such an order?
(viii) If the law prescribes a time-limit within which the order may be challenged, can it be challenged after the
period of limitation is over?
(ix) Can an order be challenged in collateral proceedings or only in direct proceedings to set it aside?
Usually, a violable order cannot be challenged in collateral proceedings. It has to be set aside by the court in
separate proceedings taken for the purpose. Suppose a person is prosecuted criminally for infringing an order. He
cannot then plead that the order is voidable. He can raise such a plea if the order is void. An aggrieved person need
not always challenge a void order and seek a prerogative order or injunction or declaration as a mechanism of
direct attack, as he can impugn the order collaterally. Certiorari and not a declaration is regarded as a suitable
remedy for setting aside a voidable decision.17 Declaration is of use against an action which is ultra vires and void
ab initio.18 The courts seek to answer the questions mentioned here by taking recourse to void/voidable dichotomy,
but their responses have not always been consistent. As De Smith points out, the case-law on the point is far from
being coherent.19 The main reason for this state of affairs is that the courts, at times, seek to make compromises
between theory and pragmatism, keeping in view administrative exigencies, so as not to unduly hamper
administrative process. Thus, voidness is a relative, and not an absolute, concept.
6 Rattan Lal Sharma v Managing Comm. Dr. Hari Ram H.S. School, AIR 1993 SC 2155 : (1993) 4 SCC 10 : (1993) 83
FJR 25; supra, Chapter XI.
7 Wade, Administrative Law, 349 (1988); De Smith, Judicial Review of Administrative Action, 151 (1980); Rubinstein,
Jurisdiction and Illegality, 5 (1965).
8 Hartley and Griffith, Government and Law, 364 (1975).
9 Hounslow L.B.C. v Twickenham G.D. Ltd., (1971) 1 Chapter 233, 259.
10 Calvin v Carr, [1979] 2 WLR. 755.
Page 3 of 3
12.1 Void/Voidable
11 Karnail Singh v State of Haryana, 1995 Supp (3) SCC 376.

12 Words and Phrases (American), Vol. 44, published by West Publishing Co., at page 319, as cited in Karnail Singh v
State of Haryana, 1995 Supp (3) SCC 376.
13 State of Orissa v Brundaban Sharma, 1995 Supp (3) SCC 249.
14 UOI v Nandlal, AIR 1996 SC 2206 : (1996) 4 SCC 459. See also State of Karnataka v B.S. Nanjundaiah, (1996) 8 SCC
49 : JT 1996 (1) SC 631.
15 R. Thiruvirkolam v Presiding Officer, AIR 1997 SC 633 : JT 1996 (10) SC 369 : 1996 (8) SCALE 297.
16 State of Rajasthan v D.R. Laxmi, (1996) 6 SCC 445, 453 (para 10).
17 Wade, Administrative Law, 1988, at 352, 642.
18 See, infra. Vol. II, for all these various remedies.
19 De Smith, Judicial Review of Administrative Action, (1980), at 131, 133, 241.
End of Document
12.2 Position in England
JUSTICE

The controversy between void and avoidable is making English Administrative Law rather complicated.20
The present controversy in England as regards void and avoidable orders appears to have come into sharp focus
with the Privy Council decision in Durayappah v Fernando.21 The concerned Minister dissolved the Jaffna Municipal
Council in Ceylon on the ground of incompetence. The Minister gave no hearing to the council before superseding
it. The Mayor challenged the order without associating with him the council members. The Privy Council ruled that
although the Minister ought to have observed natural justice in passing the order, nevertheless, no relief could be
given since the Minister’s order was only “voidable” and not a “nullity”, and as it had been passed against the
municipal council, it could not be challenged by the Mayor alone; the order could have been challenged by the
council. Had the council challenged the order, it would have been void ab initio. Had the order been a nullity, it
could have been challenged by anyone having a legitimate interest in the conduct of the council and the council
would be deemed to be in office. But since the order was voidable and not a nullity, it could be set aside only at the
instance of the person against whom it was passed, i.e. in the present case, the council. The Mayor alone had no
right as such to complain independently of the council because the Mayor had no office independently of the council
and when the council was dissolved, the office of the Mayor was also dissolved along with it.22
A few years earlier, a similar question had arisen before the House of Lords in Ridge v Baldwin.23 The watch
committee dismissed a chief constable without observing natural justice. He appealed to the Home Secretary who
confirmed the committee’s order. Under the relevant law, the decision of the Home Secretary was “final and
binding”. The chief constable then came to the court for a declaration that his dismissal was a nullity. The question
was whether his application was maintainable for it was argued against it that the decision of the Home Secretary
was final and binding and that appeal to him by the chief constable amounted to waiver by him. Lord Reid took the
position that the decision of the watch committee was a nullity because of the failure of natural justice on its part. He
referred to the argument that the decision of the committee was voidable and not void, but rejected the same
following observation:24
“Time and again in the cases I have cited it has been stated that a decision given without regard to the principles of natural
justice is void... I see no reason to doubt these authorities. The body with the power to decide cannot lawfully proceed to
make a decision until it has afforded to the person affected a proper opportunity to state his case.”
He also ruled that there was no waiver25 on the part of the chief constable in appealing to the Home Secretary.
Where two remedies are available, there is no general rule that by going to some other tribunal, the person
concerned puts it out of his power thereafter to assert his rights in a court. As to the argument that the decision of
the Home Secretary was final and binding, Lord Reid argued that in this case the Home Secretary had not given a
hearing to the appellant and decided the matter on his own independent judgment. He had merely decided that
there was sufficient material on which the watch committee could properly exercise its power of dismissal.
Therefore, the only operative decision was that of the watch committee and it was a nullity, the statement by the
Home Secretary could not make it valid. By a majority, the House held the dismissal of the chief constable “null and
void”.26 In Durayappah, the Privy Council did not follow the Ridge decision on this point. In fact, the Privy Council
Page 2 of 7
misinterpreted the decision of Lord Morris and mistook the minority view as the majority view and held the order to
be voidable.27
Durayappah has been subjected to critical comments by several scholars.28 The preponderance of legal academic
opinion has been that an adjudicative decision infringing natural justice should be regarded as void and not merely
avoidable. A fundamental question which arises is whether in case of non-observance of natural justice, should
relief follow as a matter of course or should the court claim discretion to give or not to give relief? Durayappah made
it a matter of court’s discretion. Wade criticises this approach. He asserts that for centuries natural justice has been
enforced as a matter of law and not of discretion. This is what he says further in this regard:29
“One motive for holding administrative acts to be voidable, when according to principle they are void, may be a desire to
extend the discretionary power of the court
... There are grave objections to giving the courts discretion to decide whether governmental action is lawful or unlawful: the
citizen is entitled to resist unlawful action as a matter of right, and to live under the rule of law, not the rule of discretion
... If the courts were to undermine the principle of ultra vires by making it discretionary, no victim of an excess or abuse of
power could be sure that the law would protect him.”
He again observes:30
“.... The motive was a desire to enlarge judicial discretion .... [lf] the decision were merely voidable, the court need quash it
only in case of ‘a real substantial miscarriage of justice.’ This policy is open to the objection that it would introduce
dangerous uncertainty—one might say, palm-tree injustice. Natural justice has for centuries been enforced as a matter of
law and not of discretion .... The right to natural justice should be as firm as the right to personal liberty. This is a vital part
of the rule of law.”
Another serious objection, according to Wade, to holding the action avoidable is that the litigant is then deprived of
what is often his best and sometimes his only remedy, a declamatory judgment,31 since it is of use only against
action which can be declared to be ultra vires, i.e. void ab initio. But his other argument against Durayappah
approach stems from the foundations on which the institution of judicial review is based in England. He points out
that the courts in England can control statutory powers only on two grounds-ultra vires and error on the face of the
record (which is regarded as an exception to the basic ultra vires rule). The fundamental principle of Administrative
Law is the doctrine of ultra vires. Courts cannot interfere with an intra vires decision, i.e. a decision within
jurisdiction and displaying no error on its face. The courts have, therefore, to stretch the doctrine of ultra vires, i.e.
lack of jurisdiction, to cover all the forms of error which they need to control and which yet do not appear on the
record. Therefore, bad faith, breach of natural justice, irrelevant considerations, “no-evidence”, all these must
somehow be fitted into this concept. For unless the court can show that the order is unauthorised, i.e. outside
jurisdiction, it has no constitutional warrant to intervene. The court must, therefore, postulate that Parliament
impliedly required the order to be made in good faith, etc., and that violation of this requirement makes it
unauthorised. This may be artificial reasoning but it is the foundation of the system of control of subordinate
power.32 Accordingly, Wade categorically asserts that administrative action which is irregular and ultra vires is void
and not voidable.33 He holds that the House of Lords decided the point expressly that “failure to give a hearing
renders the decision void, not voidable”. Wade even asserts that the presence of bias means that the tribunal is
improperly constituted, so that it is without jurisdiction and its decision is void. In principle it is vital that the
procedure and the merits should be kept strictly apart, since otherwise the merits may be prejudged unfairly. Lord
Wright once said:34
If the principles of natural justice are violated in respect of any decision it is, indeed, immaterial whether the same
decision would have been arrived at in the absence of the departure from the essential principles of justice. The
decision must be declared to be no decision.
Wade’s views are shared by many other scholars. Griffith and Street state that “failure to give a hearing renders a
decision void and not merely voidable” and that “the contrary Privy Council decision in Durayappah v Fernando
cannot be regarded as good English law.” At another place, they state: “The refusal of the Privy Council to allow the
Mayor of a municipal council dissolved in breach of natural justice to challenge the dissolution is out of line with the
recent trend of decisions.”35 Similarly, de Smith states:36
Page 3 of 7
“... there is a substantial body of recent judicial decisions to the effect that breach of the audi alteram partem rules goes to
jurisdiction (or is akin to a jurisdictional defect) and renders an order or determination void.”
Thus, the view has crystallised that failure to give a hearing renders a decision void or a nullity and not merely
voidable and that Durayappah approach does not represent good law. Breach of natural justice is even regarded as
going to the jurisdiction of the decision-making body so as to make an order or decision made by it void if it denies
natural justice.37 This view has been put into effect in many cases. In Malloch v Aberdeen Corporation,38 the House
of Lords characterised an order of dismissal of a teacher by a statutory body without giving him a hearing as a
‘nullity’ and as ‘null and void’. In Anisminic,39 the House of Lords has stated unequivocally that failure of natural
justice goes to the jurisdiction of the body concerned and gives rise to a jurisdictional error, therefore, its decision is
a nullity which a privative clause in the relevant statue cannot protect.40 Lord Diplock has stated that a breach of the
rules of natural justice should render the decision void.41 Lord Bridge has stated in Al-Medhawi:42
“... a breach of the rules of natural justice is certainly a sufficiently grave matter to entitle the party who complains of it to a
remedy ex debito justitiay.”
But, in spite of this, it is not always that the courts give relief to the person who is denied a hearing. In some cases,
the courts have claimed discretion to give relief or not even when denial of natural justice was established. One
such case is Glynn v Keele University,43 where the court refused to give any relief to the students against whom the
university had taken disciplinary action without observing natural justice. The court did not articulate the reasons for
doing so: it merely said that the disciplinary action was “intrinsically a perfectly proper one”. May be the court did not
want to intervene because the punishment meted out to the students was mild and not severe so as to affect their
future careers. The court said that nothing the students could have said could have affected the decision reached.
In some cases, the courts have asserted, while denying relief, that the case was so clear that hearing would have
been a useless formality as nothing that the person concerned could have said could have made any difference;
that the outcome of the decision would have been the same had natural justice been complied with. Sometimes, the
test propagated for giving relief is: there must be real likelihood of prejudice to the applicant by the failure of natural
justice.44 However, this judicial attitude has been criticised by the judges themselves as well as the scholarly
commentators.45 For example, Clark has observed:46
“The essential mission of the law in this field is to win acceptance by administrators of the principle that to hear a man
before he is penalised is an integral part of the decision-making process. A measure of the importance of resisting the
incipient abnegation by the courts of the firm rule that breach of audi alteram partem invalidates, is that if it gains ground the
mission of the law is doomed to fail to the detriment of all.”
Wade has characterised the doctrine that a hearing would make no difference as a “dubious doctrine.”47
But, in between these two extremes, there may be some situations where the courts taking a pragmatic, rather than
a theoretical, view of the matter, may justifiably resile from giving effect to the rule of voidness or nullity to its
extreme logical end. This is regarded as a valid and justified approach by the scholarly opinion. For example, an
absolute view of voidness may mean that a void order is challengeable in a court by any one. But, in practice, this is
not so. A void order may be challenged in a court not by any one but only by one who has locus standi to do so.
WADE himself accepts that although action which is ultra vires is properly described as void or a nullity, this
voidness necessarily depends upon the right remedy being sought successfully by the right person. For example, if
a person is dismissed without being heard, his dismissal may be held void if he challenges it. But if he does not
challenge the same, other people have to accept it also, for, as against third parties whose rights are not infringed,
a void act may well be valid if they have no legal title to challenge it. The denial of a fair hearing is a wrong which is
personal to the party aggrieved. If he does not complain, it is not the business of any body else to complain. Unless
the necessary proceedings are taken at law to establish the course of invalidity and to get it quashed or otherwise
upset, it will remain as effective for its ostensible purpose as the most impeccable of orders. The meaning of “void”
is thus relative rather than absolute, and the court may, in effect, turn ‘void’ acts into ‘valid’ ones by refusing to grant
remedies. Thus, he goes on to say:48
“‘Void’ is therefore meaningless in any absolute sense. Its meaning is relative, depending upon the court’s willingness to
grant relief in any particular situation. If this principle of legal relativity is borne in mind, confusion over ‘void’ or ‘voidable’
can be avoided. . . so long as the ultra vires doctrine remains the basis of administrative law, the correct epithet must be
‘void.’”
Page 4 of 7
Similarly, De Smith emphasizes that there are degrees of nullity, that voidness is a relative concept and that what is
null and void for one purpose may be valid for another. He brings out this point in the following words:49
“Is it correct to say that ‘there are no degrees of nullity’? If so, does it follow that ex nihilo nihil fit—out of nothing comes
nothing? Because the answers to these questions are in the negative, the differences between void and voidable acts are
less than one might suppose.”
He points out that the propositions about the void acts are subject to major qualifications.50 In the words of Lord
Diplock in Hoffman:51 “Order would be presumed to be valid unless the presumption is rebutted in competent legal
proceedings by a party entitled to sue.”
The practical difficulty of applying the voidness rule to its logical end may be illustrated by two typical English cases.
One such case is F. Hoffman La Roche & Co. A.G. v Secretary of State for Trade and Industry.52 Following the
Monopolies Commission’s report on excessive profits being made on the sale of certain drugs by the appellant
company, the Secretary of State made orders reducing their prices. The company sued for a declaration that the
commission’s procedure was contrary to natural justice and, therefore, its report and, consequently, the orders
made by the Secretary of State based on that report were invalid. The company also informed the government that
it would not obey the impugned order. The Secretary then sued for an injunction asking the company to obey the
order in question. The company demanded from the government an undertaking that it would indemnify the
company for the loss suffered by it in obeying the order if later it was held void by the court. The government
refused to give any such undertaking and the question was whether the court could issue an interim injunction
against the company to obey the order pending a decision on merits. The House of Lords granted an interim
injunction against the company by a majority of 4:1, pending a final decision on merits on the validity of the order in
question, and upheld the government’s contention not to give any such undertaking. The main arguments
developed by the Lords were as follows: the instant case was not one between subject and subject; it was a “law
enforcement action” in which proceedings were brought by the Crown to restrain a subject from breaking a law
where the breach was harmful to the public; its purpose was “to enforce or to protect jus publicum”. The impugned
order was law until it was invalidated by the courts. Even where a strong prima facie case of invalidity had been
shown upon the application for an interim injunction, it would still be inappropriate for the court to impose as a
condition of the grant of injunction a requirement that the Crown should enter into the usual undertaking as to
damages. The burden of implementing such an undertaking would fall upon public funds raised by taxation from the
general public and public interest would be affected thereby. While the benefit of the order would go to those who
purchase the drugs involved, the fulfilment of the undertaking would fall on the entire public.53 The company was
not able to show a strong prima facie case against the validity of the order in question. If interim injunction were
refused to the Secretary, it would mean that the law was not to be enforced and the company could charge the
forbidden prices and the breach of law would continue. The decision of the Lords is based primarily on ‘policy’
considerations, and weak prima facie challenge of the company.54 Lord Diplock deplored the use of such terms as
“voidable”, “voidable ab initio”, “void” or “nullity”. These are concepts developed in the private law of contracts and
are ill-adapted to the field of public law and create confusion.55 Lord Reid said: “.. an order made under statutory
authority is as much the law of the land as an Act of Parliament unless and until it has been found to be ultra vires.”
Wade supports the decision with his usual thesis that “void” does not mean “absolutely void” in the sense of a
transaction which is a “nullity incapable of any legal consequences”. He asserts: “Voidness is relative, not
absolute... The key is not absolutism but relativity.”56
Another limitation on the concept of voidness has been revealed by the Court of Appeal in R. v Secretary of State
for the Environment, ex p. Ostler.57 The Court held there that when a statute specifies a time-limit to challenge in a
court an order passed by an authority under that statute (in this case six weeks), the order could not then be
challenged on any ground whatsoever (even on the ground of nullity for failure of natural justice) after the lapse of
the specified period of limitation. Logically, one could argue that if an order is void ab initio it could be challenged at
any time without any limitation for such an order is non-est and has no existence in the eyes of law. In fact, this was
the view adopted in Ostler by the Divisional Court which ruled, following the Anisminic doctrine literally,58 that the
order could be challenged on the ground of breach of natural justice more than a year after it was confirmed even
though the statute fixed a six-week period for the purpose. But the Court of Appeal did not accept this view. On a
formal basis, Anisminic,59 was distinguished with the present case on the ground that while Anisminic involved a
clause which completely sought to oust the jurisdiction of the court altogether, here was a clause which merely
limited the time within which judicial review could be sought. The provision in question was treated more “in the
nature of a limitation period than of a complete ouster.” The truth however is that there are strong policy grounds
and considerations as to why the voidness rule needs to be limited as regards the time period within which an order
Page 5 of 7
could be challenged. Public authorities need to be given security before they can embark on expensive schemes.
The complainant may suffer hardship but the public interest in the finality of the administrative action is very strong.
One of the arguments advanced by Lord Denning in support of the effectiveness of the prescribed time-limit to bar
judicial review was that in his opinion an order vitiated by bad faith or lack of natural justice would not be “a nullity or
void from the beginning. It would only be voidable.”60 Wade criticises this statement. According to him, this amounts
to turning a blind eye to what the House of Lords has said in Ridge v Baldwin, or what Lord Diplock has said in
Hoffman. Wade supports the Court of Appeal decision in Ostler sans the argument that an order flawed by lack of
natural justice is voidable. According to him, the concept of voidness being relative and not absolute, even a void
order becomes unchangeable after the prescribed time-limit.61 That the question of what effect ought to be given to
the voidness concept of an administrative order is a policy question for the courts becomes very clear from the terse
remark of Lord Wilberforce in Malloch,62 that he saw no “public policy objection” in treating the dismissal order as
null and void.
Even the order of a superior court may be set aside for violation of natural justice.63
It becomes clear from the above discussion that the terms void, etc., as such do not fully suit the need of the
modern Administrative Law which has to reconcile so many diverse situations of conflicting private and public
interests. The concept of voidness because of the failure of the audi alteram partem rule is relative and not absolute
and the courts do not now usually use the term ‘void’ but instead use the terms ‘invalid’ or ‘nullity’. On the question
of voidness for failure of the audi alteram partem rule, the judicial dicta in Britain is inconsistent and confusing.
20 Gravells, Some Problems in Administrative Law: A Wasted Opportunity for Clarification, 93 LQR 327 (1977). Also, Law
Commission, Law Comm. No. 20 (cmnd., 4059, May, 1969).
21 Durayappah v Fernando, (1967) 2 AC 337.
22 For a discussion on the question of standing see, infra, under Judicial Control.
23 Ridge v Baldwin, (1964) AC 40. See supra, Chapter IX, also, Jain, Cases, Chapter VIII, 475.
24 Ridge v Baldwin, [1964] AC 40; See supra Chapter IX, also Jain, cases Chapter VIII, 475.
25 On Waiver, see, supra, Chapter XI, and, infra, this chapter.
26 The majority consisted of Lord Reid, at 80, 81; Lord Morris, at 117, 119, 125; and Lord Hodson, at 135; the minority
consisted of Lord Evershed and Lord Delvin, Lord Morris held that “the decision of the watch committee was invalid and
of no effect and null and void.” He said that the decision could be called voidable only in the sense that until and unless
the chief constable contested it, it would stand. Lord Hodson held that a decision contrary to natural justice was void,
being vitiated by “a want of jurisdiction”. On this point, see also, infra, under ‘Error of Jurisdiction.’
27 According to Wade: Durayappah endeavoured to reinstate the minority opinions in Ridge v Baldwin in opposition to the
majority of the House of Lords, who clearly held that a breach of natural justice rendered a decision void and not
voidable. Durayappah is flawed not only by this inconsistency but also by a serious misrepresentation of the opinion of
Lord Morris...”: 90 LQR 156-157. According to Megarry, J., in Hounslow L.B.C. v Twickenhan G.D. Ltd., (1971) 1 Ch
233 , 259 : “It seems to me that despite what was said in the Durayappah case, both the language used by Lord
MORRIS and the ratio of his speech show that he was holding that the decision reached in defiance of natural justice
was void and that this was accordingly the majority view in the House of Lords.” Hounslow L.B.C. v Twickenhan G.D.
Ltd., (1971) 1 Ch 233 , 259, at 259.
28 See, e.g., Wade, Unlawful Administrative Action; Void or Voidable, 83 LQR 499 (1967); 84 LQR 95 (1968).
29 Wade, Administrative Law, 349 (1988) at 353. Also see, Wade, 93 LQR 11.
30 Wade, Adm. Law, 527. (1988).
31 Wade, Administrative Law, 353. Also see, infra, Vol. II, for Declarations.
32 Wade, 93 LQR 11 (1977); Wade, Administrative Law, 528 (1988).
33 Wade, 93 LQR 11 (1977); Wade, Administrative Law, 528 (1988).
34 General Medical Council v Spackman, [1943] AC 627 at 644, as cited in Wade and Forsyth: Administrative Law, 9th
Edn., 2005, p. 507.
35 Principles of Adm. Law, 115, 231 (1973).
Page 6 of 7
36 Supra, De Smith, Judicial Review of Administrative Action, (1980), at 241.

37 Anisminic Ltd. v Foreign Compensation Commissioner, [1967] 3 WLR 382; supra, Chapter IX, also under ‘Error of
Jurisdiction’, Infra, Vol. II.
38 Malloch v Aberdeen Corporation, (1971) 2 All ER 1279, per Lord Reid, Lord Wilberforce and Lord Simon.
39 Anisminic Ltd. v Foreign Compensation Comm., (1967) 3 WLR 382; see, Infra, under ‘Judicial Control’. Also, Att. Gen. v
Ryan, (1980) AC 718.
40 See, Infra, Vol. II, under ‘Judicial Control-Ouster Clauses’ and also ‘Error of Jurisdiction’.
41 O’Reilly v Mackman, (1983) 2 AC 237.
42 Al-Mydhawi v Secretary of State for Home Dept., (1989) 3 All ER 843, 898.
43 Glynn v Keele University, (1971) 12 All ER 89; Jain, Cases, 620.
44 Cheall v A.P.E.X., (1983) 2 AC 180.
45 Lord Reid in Ridge v Baldwin, [1964] AC 40. But in Malloch v Aberdeen Corp., [1971] 2 All ER 1279, there seems to be
some change in his view where he says: “If that could be clearly demonstrated it might be a good answer.” Megarry, J.
criticises it in John v Rees, (1970) Chapter 345, 402; supra, Chapter IX, note. Also, J.L. Caldwell, Discretionary
Remedies in Adm. Law, (1986) Otago L.R. 253-257; Clark, (1975) P.L. 27.
46 Lord Reid in Ridge v Baldwin, [1964] AC 40.
47 Wade, Adm. Law, 573 (1988).
48 Wade, Administrative Law, supra. Also, Wade, 83 LQR 499. 501, 510.
49 De Smith, Judicial Review of Administrative Action, 151 (1980), at 152.
50 De Smith, Judicial Review of Administrative Action, 151 (1980), at 152. He also points out that what is null and void for
one purpose may be valid for another, and voidness is itself a relative concept. Also, Wade, 83 LQR 499, 501. 510
(1967); Craig, Adm. Law, 323-325 (1989).
51 F. Hoffman-La Roche & Co. A.G. v Secretary of State for Trade and Industry, [1975] AC 295. Jain Cases, Chapter IX,
936.
52 F. Hoffman La Roche & Co. A.G. v Secretary of State for Trade and Industry, (1975) AC 295. See, Jain, Cases,
Chapter IX, 936.
53 The fact was that the government itself was a big buyer of these drugs under its national health service scheme and,
thus, it would have saved a lot of money by reduction of prices of these drugs.
54 Lord Wilberforce in his dissenting opinion characterised Durayappah, v Fernando [1967] 2 AC 337, as a “puzzling
case.” He pointed out that the very question raised here was whether what was alleged as ‘law’ was law or not?
According to him, a piece of subordinate legislation is presumed to be valid against a person having no locus standi to
challenge it, but there is no such presumption when the same is challenged by a person having locus standi to
challenge it. He asserted that “an ultra vires act is simply void.” Then he made a very interesting remark: “In truth when
the court says that an act of administration is voidable or void but not void ab initio this is simply a reflection of a
conclusion, already reached on unexpressed grounds, that the court is not willing in case to give compensation or other
redress to the person who establishes the nullity.” He suspected that underlying most of the reasoning in the Court of
Appeal “is an unwillingness to accept that a subject would be indemnified for loss sustained by invalid administrative
action.” F. Hoffman-La Rache & Co. v Secretary of State for Trade and Industry, [1975] AC 295, at 358-59. See, Infra,
Vol. II, under ‘Compensation’ on this point.
55 F. Hoffman-La Rache & Co. v Secretary of State for Trade and Industry, [1975] AC 295 at 366.
56 90 LQR 155 (1974).
57 R. v Secretary of State for the Environment, ex p. Ostler, (1977) QB 122.
58 For discussion on Anisminic, see, Infra, Vol. II.
59 Anisminic Ltd. v Foreign Compensation Commission, supra.
60 Later, writing extra-judicially, Lord Denning himself recanted on his reasoning in Ostler and wished that he had rested
his decision solely on public policy grounds: The Discipline of Law, 77-8, 108-9 (1979).
61 See, Wade, Anisminic v East Elloe, 93 LQR 8 (1977). Also, a comment by him on Hoffman, 90 LQR 436. Smith v East
Elloe Rural District Council, (1956) AC 736, 769. In another comment, Gravells supports the decision in Ostler but
questions the reasoning adopted, because such reasoning is based on the assumption that the question in issue could
be resolved merely by reference to abstract concepts of Administrative Law. The conflict between the Anisminic
principle and the effective restriction of a time-limit clause could not be resolved merely on a “conceptual basis” but “it is
Page 7 of 7
necessary to examine the policy factors which operate within the particular context in question and to resolve any
conflict between public and private interests.” 93 LQR 327 (1977).
62 Malloch v Aberdeen Corporation, [1971] 2 All ER 1279.
63 Isaacs v Robertson [1985] AC 97, cited in Wade and Forsyth, Administrative Law, 9th Edn., 2005, p. 441 FN 12.
End of Document
12.3 Position in India
JUSTICE

In India by and large case-law has been free from the void/voidable controversy and, generally speaking, judicial
thinking has been that an adjudicative order made without following natural justice is void and a nullity.64 This is in
accordance with the majority view in Ridge v Baldwin. In Suresh v State,65 for example, the MP High Court refused
to follow the theory of voidable orders as expounded by the Privy Council in Durayappah,66 and held that an order
superseding a municipality was a nullity and void because of failure of natural justice. In Jwala Prashad v State,67
the Rajasthan Government had superseded the Rajasthan State Road Transport Corporation (a statutory body).
The erstwhile chairman of the corporation challenged the government order through a writ petition on the ground
that there was denial of natural justice to the corporation. The government took recourse to the Durayappah ruling
and raised a preliminary objection that the petitioner had no locus standi68 to file the petition because the order
being voidable and not a nullity, only the corporation, as such, and not the chairman alone independently of the
corporation, could challenge the same. The High Court left the question of void versus voidable open but ruled that
the petition by the chairman was maintainable because the petitioner’s right to act as chairman of the corporation
had been infringed; he had been deprived of pecuniary benefits and, therefore, he could not be regarded as merely
a busy body; since the order had been challenged as being null and void, it could be challenged by the petitioner
even though other members of the corporation did not join him. There is no need in India to distinguish between
void and avoidable orders for the purposes of locus standi to challenge the same as such a hypothesis has been
questioned in England itself.69
In Shiela Devi v Executive Engineers,70 the Allahabad High Court has taken the view that a decision made by an
authority in breach of natural justice is void ab initio, and can be challenged in a writ petition under article 226 even
though there exists a provision for appeal and the petitioner has not exhausted the alternative remedy provided
for.71 In the instant case, the facts were as follows. Under section 34 of the Northern India Canal and Drainage Act,
1873, if water was supplied through a canal, and there was wastage of water, if the divisional canal officer could not
locate the person through whose negligence water was being wasted, then all persons getting canal water were
jointly liable. The canal authorities imposed charges on these persons for unauthorised use of canal water. The
court held the order void as it was made without following natural justice. The Kerala High Court ruled in President,
Commonwealth Co-op. Society v Joint Registrar, Co-op. Societies,72 that a decision rendered contrary to the
principles of natural justice was void. In Jabalpore Electric Supply Co. v MP Electricity Board,73 the Calcutta High
Court opined that when an order is challenged as a nullity, the question of laches in challenging it loses
considerable force. The Court argued that a void act is a nullity in law; it is not only bad but incurably bad and there
is really no need for a court order to set it aside, for it is automatically null and void, though it may be convenient to
have a court order declaring it to be so. A voidable order, on the other hand, is not automatically void, it is only an
irregularity which may be waived; it is not to be avoided till the court sets it aside and the court enjoys discretion
whether to set it aside or not. Until set aside, it remains good. Thus, limitation ought not to affect the court declaring
the order void for it was never valid. No doubt, the court’s reasoning here emanates from the basic nature of void
orders and represents a logical extension of the principle of voidness. But, as has been seen, in England, voidness
is regarded as a relative, and not an absolute, principle and in Ostler,74 a statutory time-limit to challenge such an
order has been held to be binding. The situation in India is slightly different in so far as article 226 does not
incorporate any period of limitation to challenge administrative orders and no statute can dilute the power of the
High Courts, under article 226 to entertain petitions in their discretion. But the trend of the Supreme Court cases
has lately been to apply the principle of lathes rather strictly in challenges to administrative orders. Although, at
times, the Court takes a more strict view on this point than may appear to be warranted,75 it is also to be
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appreciated that when valuable rights have been created in others by lapse of time, or costly schemes of
development have been implemented, the courts may have to resort to the rule of laches so as to avoid disturbing
the status quo by refusing to declare an order a nullity even if passed in violation of natural justice. Therefore, at
some stage, conceptual logic has to give way to pragmatism, administrative exigencies and public interest. Thus,
the affected party may lose his right to challenge an order on the ground of non-hearing because of lathes on his
part and a ‘void’ order may remain effective.
The most significant case in the series is Nawabkhan v State of Gujarat.76 Section 56 of the Bombay Police Act,
1951, empowers the Police Commissioner to extern any undesirable person on certain grounds set out therein. An
order of externment passed by the commissioner on the petitioner was disobeyed by him and he was prosecuted
for this in a criminal court. During the pendency of his case, on a writ petition filed by the petitioner, the High Court
quashed the externment order on the ground of failure of natural justice to him, as laid down in section 59 of the
Act, while passing the order. The trial court then acquitted the appellant on the criminal charge. The government
appealed against the acquittal and the High Court convicted him for disobeying the order. The High Court took the
position that the order in question was not void ab initio; the appellant had disobeyed the order much earlier (17
September 1967) than when it was quashed by the High Court (16 July 1968); the order was in existence on the
date it was infringed by him; the High Court’s own decision invalidating the order in question was not retroactive and
did not render it “non-est” or a “nullity” from its inception but it was invalidated only from the date the court declared
it to be so by its judgment. Thus, the arguments adopted by the High Court were consistent with the view that the
order in question was voidable and not void. There was one lacuna, however, even in this approach of the court: in
Durayappah, the Privy Council had specifically stated that if the order (held to be voidable there) were challenged
by the council itself (the party affected by the order), it would then have held the order to be void ab initio.
Somehow, the High Court appears to have missed this significant point. Even when held to be voidable, the order
having been challenged by the person against whom it was passed, it ought to have been regarded as void ab
initio, and not void from the date of the court’s order.
However, the matter came before the Supreme Court on appeal by the government. The Court approached the
matter from a different angle. The order of externment, held the Court, affected a Fundamental Right [article
19(1)(d)]77 of the appellant in a manner which was not reasonable. The order was thus illegal and unconstitutional
and hence void. A determination was no determination if it was contrary to the constitutional mandate of article 19.
On this footing, the externment order being of no effect, its violation could not be regarded as an offence. The Court
ruled definitively that an order infringing a constitutionally guaranteed right made without hearing the party affected,
where hearing was required, would be void ab initio and of no legal efficacy to bind the parties from the very
beginning and a person cannot be convicted for non-observance of such an order. “Where hearing is obligated by a
statute which affects the fundamental right of a citizen, the duty to give the hearing sounds in constitutional
requirement and failure to comply with such a duty is fatal.”78 Beyond doubt, an order which infringes a fundamental
freedom passed in violation of the audi alteram partem rule is a nullity. When a competent court holds such official
act or order invalid, or sets it aside, it operates from nativity, i.e. the impugned act or order was never valid.79 The
appellant could not thus be convicted for flouting the Police Commissioner’s order which encroached upon his
Fundamental Right and had been made without due hearing and was thus void ab initio and so was never really in
existence.
In Nawabkhan, the Supreme Court did not give a categorical ruling on the wider question of applicability of the
above principle to areas other than Fundamental Rights. On the wider question regarding the effect of violation of
natural justice on an order where natural justice ought to have been observed, the Court, without giving a definitive
answer, said that there were three possible answers to this question, viz.:
(1) it spells death to the order and makes it still born so that it can be defied, ignored or attacked collaterally; or
(2) it means nullificability, not nullity, so that before disobeying it a court must declare it invalid, or
(3) it remains good and binding though voidable at the instance of a party aggrieved by a direct challenge.
The Court noted that all these various approaches have received judicial blessing from the House of Lords in the
landmark case Ridge v Baldwin.80 The Court, however, clarified two points. One, an order in violation of natural
justice is void in the limited sense of being liable to be avoided by the Court with retroactive effect. So, when the
order is declared void by a court, the court order goes back to the date when the impugned order had been made.
“An order is null and void if the statute clothing the administrative tribunal with power conditions it with the obligation
to hear, expressly or by implication.” Two, an order made in violation of natural justice may be directly and
collaterally challenged in legal proceedings.
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But the Court left open the question that when an authority infringes natural justice and passes an order, should the
citizen suffer it until upturned in a legal proceeding directly or collaterally, or can he resist the injury even if the seal
of authority simulates validity? Can a person defy a void order before it is declared so by the court? The Supreme
Court took note of the two views prevailing on this question. One, ‘law and order’ will be in jeopardy and it will lead
to anarchy if a person were to have discretion to disobey an order on self-determined voidness before a court
declares it to be so. Two, a person commits no crime if he disobeys an invalid order.81 The Court also noted that
judicial opinion in England could be found for supporting either of these two views. The Court deferred the matter
for consideration in future. It also suggested that “legislation, rather than judicial law-making will meet the needs
more adequately.”
Nawabkhan raises some critical issues. A few general comments may, however, be made at this place.82 It is vain
to hope, as the Court does, that the legislature will clarify the delicate issues involved through legislation for, so far,
the Indian Parliament has been very remiss in adopting a constructive attitude towards the problems of
Administrative Law. Therefore, the issues raised here will have to be sorted out by the courts themselves as best as
they can from case to case. It is unfortunate that the Supreme Court did not clarify the point under discussion, but
rather added to the confusion by using three different expressions to characterise the nature of orders under
discussion viz., ‘voidable’, ‘void with retroactive force’ and ‘null and void’. This shows that the Court itself was not
clear in its own mind about the matter. Much of the confusion in Administrative Law in India can be avoided if the
rule is accepted that, generally speaking, an order made without observing natural justice (including bias), where
natural justice ought to have been observed, is void ab initio. A person disobeys an administrative order at his own
risk, for if he disobeys an order, and the court later holds it as not void, then he suffers the consequences, for
whether an order is void or not can only be settled conclusively by a court order. Accepting the voidness rule will
make adjudicatory authorities take more care in passing orders after fulfilling all the necessary formalities. It will
also denude the courts of a discretion whether to set aside an order or not in case of violation of natural justice.
As the later discussion will show, exercise of discretion by the courts on this point is making the confusion worse
confounded. However, because of the exigencies of maintaining law and order, there may be some situations when
violation of a void order may not be excusable, e.g., when a prisoner escapes from the prison thinking that the
administrative order under which he has been detained is void. There may also be circumstances, as is shown by
Hoffman,83 where courts may insist that an order be obeyed by the affected person even if he challenges it as void
till such time that his contention is decided on merits by the court. It is an area where one general principle cannot
be held applicable to all the varying situations because what has to be reconciled here is public interest with private
rights. But such exceptional situations will be few and these have to be worked out by the courts on a case to case
basis. There is no need to keep the whole law in a muddled condition because of a few exceptional situations. In
most of the cases, the courts can meet the difficulty by using their power to grant stay orders, i.e., staying the
implementation of the order challenged until the court is able to decide the question on merits.84 Also, it appears to
be fair that Administrative Law makes provision for payment of compensation to a person who has suffered injury to
his person or property under a void order.85
In several cases, the courts have taken a strict view of the failure of natural justice and have set aside orders on
that ground. For example, in State of Gujarat v Chaturbhai,86 the Supreme Court quashed a notification acquiring
land of, the respondent issued under the Land Acquisition Act as it was issued without giving hint hearing under
Rule 4 of the Companies Acquisition Rules. In Sarjoo Prasad v General Manager,87 the appellant’s date of birth,
once accepted by the respondent, was unilaterally changed and the appellant retired from service without being
given an opportunity to sustain the original date of birth. the Supreme Court referred to Binapani,88 where it was
held that the date of birth without giving opportunity to the concerned employee could not be altered to his
disadvantage and prejudice because “an administrative order which involves civil consequences must be made in
conformity with the rule of natural justice. . .” In the instant case, the appellant was not afforded any natural justice
and on this ground the order correcting his date of birth and that of retiring him from service were set aside. The
Court ordered that he be continued in service. The respondent could, if he so desired and thought it necessary, hold
an inquiry into his correct date of birth after giving notice and giving an opportunity of being heard to the appellant.
Similarly, in Virendra Kuniar v UOI,89 an order of termination of service from the army on the ground of health was
set aside for failure to observe the relevant procedural rules and he was reinstated in service, and paid arrears of
salary from the date of termination of his service. Termination of a mining lease held invalid in Assam Silimanite,90
as it was done without giving an opportunity of being heard to the lessee.
In R.B. Shreeram Durga Prasad v Settlement Commission,91 the Supreme Court has reiterated the proposition that
an order made in violation of the principles of natural justice is a nullity. In Shiv Chander Kapoor v Amar Bose,92 the
Supreme Court has cited with approval Wade’S view regarding voidness being relative.93 In Management, M.S.
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Nally Bharat Engg. Co. Ltd. v State of Bihar,94 the Bihar government transferred a labour dispute for the labour
court at Dhanbad to the labour court at Patna. This was done on the application of the workman but without giving a
hearing to the management. On the order being challenged by the management, the Supreme Court held it null and
void saying that fairness demanded that the management should have been given an opportunity to have its say
against the proposed transfer of the case as it was a party thereto. “Denial of that opportunity is a fatal flaw to the
decision of the government.”95 The Supreme Court very categorically stated that the party who is denied natural
justice “need not establish particular prejudice for want of such opportunity” because “the principles of natural
justice know of no exclusionary rule dependent on whether it would have made any difference if natural justice has
been observed. The non-observance of natural justice is itself prejudice to any man and proof of prejudice
independently of proof of denial of natural justice is unnecessary.”96
However, in M.C. Mehta v UOI,97 the Supreme Court held that it is not always necessary for the Court to strike
down an order merely because the order has been passed against the petitioner in breach of natural justice. The
Court can under article 32 or article 226 refuse to exercise its discretion of striking down the order if such striking
down will result in restoration of another order passed earlier in favour of the petitioner and against the opposite
party, in violation of the principles of natural justice or is otherwise not in accordance with law. The Supreme Court
cited its own authoritative decision in Gadde Venkateswara Rao v Government of AP,98 in which a Panchayat
Samithi, in exercise of its statutory powers passed a resolution on 25 August 1960 to locate a primary health centre
at Dharmajigudem. Later, it passed another resolution on 29 May 1961 to locate it at Lingapalem. On a
representation by the villagers of Dharmajigudem, the Government passed orders on 7 March 1962 setting aside
the second resolution dated 29 May 1961 and thereby restoring the earlier resolution dated 25 August 1960. The
result was that the health centre would continue at Dharmajigudem. Before passing the orders dated 7 March 1962,
no notice was given to the Panchayat Samithi. The Supreme Court traced the said order of the Government dated 7
March 1962 to section 62 of the AP Panchayat Samithis and Zila Parishad Act 35 of 1959 and if that were so, notice
to the Samithi under section 62(1) was mandatory. Later, upon a review petition being filed, the Government
passed another order on 18 April 1963 cancelling its order dated 7 March 1962 and accepting the shifting of the
primary centre to Lingapalem. This was passed without notice to the villagers of Dharmajigudem. This order of the
Government was challenged unsuccessfully by the villagers of Dharmajigudem in the High Court. On appeal by the
said villagers to this Court, it was held that the latter order of the Government dated 18 April1963 suffered from two
defects, it was issued by the Government without prior show-cause notice to the villagers of Dharmajigudem and
the Government had no power of review in respect of Government orders passed under section 62(1). But that
there were other facts which disentitled the quashing of the order dated 18 April 1963 even though it was passed in
breach of the principles of natural justice. This Court noticed that the setting aside of the latter order dated 18 April
1963 would restore the earlier order of the Government dated 7 March 1962 which was also passed without notice
to the affected party, namely, the Panchayat Samithi. It would also result in the setting aside of a valid resolution
dated 29 May 1961 passed by the Panchayat Samithi. The Supreme Court refused relief and agreed that the High
Court was right in not interfering under article 226 even if there was violation of natural justice. Subba Rao, J.
observed as follows:
“Both the orders of the Government, namely, the order dated 7 March 1962, and that dated 18 April 1963, were not legally
passed: the former, because it was made without giving notice to the Panchayat Samithi, and the latter, because the
Government had no power under section 72 of the Act to review an order made under section 62 of the Act and also
because it did not give notice to the representatives of Dharmajigudem village.”
His Lordship concluded as follows:
“In those circumstances, was it a case for the High Court to interfere in its discretion and quash the order of the
Government dated 18 April 1963? If the High Court had quashed the said order, it would have restored an illegal order—it
would have given the Health Centre to a village contrary to the valid resolutions passed by the Panchayat Samithi.
The High Court, therefore, in our view, rightly refused to exercise its extraordinary discretionary power in the circumstances
of the case.”
There can be certain situations in which an order passed in violation of natural justice need not be set aside under
article 226 of the Constitution. For example, where no prejudice is caused to the person concerned, interference
under article 226 is not necessary.99 Similarly, if the quashing of the order, which is in breach of natural justice is
likely to result in revival of another order which is in itself illegal, it is not necessary to quash the order merely
because of violation of principles of natural justice.100 In M.C. Mehta v UOI,101 it was pointed out that at one time, it
was held in Ridge v Baldwin,102 that the breach of principles of natural justice was in itself treated as prejudice and
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that no other ‘de facto’ prejudice needed to be proved. But, since then the rigour of the rule has been relaxed not
only in England but also in our country. In S.L. Kapoor v Jagmohan,103 Chinnappa Reddy, J., followed Ridge v
Baldwin,104 and set aside the order of suppersession of the New Delhi Metropolitan Committee rejecting the
argument that there was no prejudice though notice was not given. The proceedings were quashed on the ground
of violation of principles of natural justice, but two exceptions were laid down namely, if upon admitted or
indisputable facts only one conclusion was possible, then in such a case, the principle that the breach of natural
justice was in itself prejudice, would not apply. The other exception was the “useless formality” theory. In K.L.
Tripathi v State Bank of India,105 Sabyasachi Mukherji, J. (as then he was) also laid down that principle that not
mere violation of natural justice but de facto prejudice (other than non-issue of notice) had to be proved. It was
observed,106 quoting Wade’s Administrative Law (5th Edn., pp. 472-75), as follows:
“It is not possible to lay down rigid rules as to when the principles of natural justice are to apply, nor as to their scope and
extent. ... There must also have been some real prejudice to the complainant; there is no such thing as a merely technical
infringement of natural justice. The requirement of natural justice must depend on the facts and circumstances of the case,
the nature of the inquiry, the rules under which the tribunal is acting, the subject-matter to be dealt with, and so forth.”
64 Collector of Monghyr v Keshav Pd., AIR 1962 SC 1694 : 1963 (1) SCR 98; supra; State of Orissa v Binapani Dei, AIR
1967 SC 1269 : 1967 (2) LLJ 266 : 1967 (2) SCR 625; Jain, Cases, 501; North Bihar Agency v State of Bihar, AIR
1981 SC 1758 : (1981) 3 SCC 131.
65 Suresh v State, AIR 1970 MP 154.
66 Durayappah v Fernando, [1967] 2 AC 337.
67 Jwala Prashad v State, AIR 1973 Raj 187.
68 For discussion on locus standi, see, Infra, Vol. II.
69 De Smith characterises the locus standi rule laid down in Durayappah v Fernando, [1967] 2 A.C. 337 (denying locus
standi to the Mayor) as “an unduly narrow finding”. He also states that the presupposition that there exists “a distinction
in the rules governing locus standi to impugn void and voidable decisions” “is not adequately supported by the case-
law.” De Smith, Judicial Review of Administrative Action, 241 (1980).
70 Shiela Devi v Executive Engineers, AIR 1971 All 343. In State of UP v Mohd. Nooh, AIR 1958 SC 86 : 1958 SCJ 242,
the Supreme Court laid down that where an inferior tribunal makes an order in contravention of natural justice, the
superior court may issue certiorari to correct the error of the tribunal of the first instance, even if an appeal to another
tribunal is available and recourse was not had to it.
71 See, Infra, Vol. II, for discussion on article 226.
72 President, Commonwealth Co-op. Society v Joint Registrar, Co-op. Societies, AIR 1971 Ker 34. Cf. Dhaunkal v Man
Kauri, AIR 1969 Punj 431.
73 Jabalpore Electric Supply Co. v MP Electricity Board, AIR 1974 Cal 309.
74 R. v Secretary of State for the Environment, ex. p. Ostler, [1977] QB 122.
75 Infra, Vol. II.
76 Nawabkhan v State of Gujarat. AIR 1974 SC 1471 : 1974 CrLJ 1054 : (1974) 2 SCC 121; Jain, Cases, Chapter XI,
945.
77 See, Jain, Indian Constitutional Law, 543-547.
78 Nawabkhan v State of Gujarat, AIR 1974 SC 1471 at 1477 : (1974) 2 SCC 121 : 1974 CrLJ 1054.
79 Nawabkhan v State of Gujarat, AIR 1974 SC 1471 at 1480 : (1974) 2 SCC 121 : 1974 CrLJ 1054.
80 Lord Reid and Lord Hodson opted for ‘nullity’, while Lord Evershed and Lord Delvin supported the ‘voidable’ theory and
Lord Harris of Both-y-Gest struck a practical note in between.
81 See Kadish and Kadish, Discretion to Disobey: A Study of Lawful Departures from Legal Rules (1973); Rubinstein,
Jurisdiction and Illegality: A Study in Public Law (1965).
82 For comments on this case, see, S.N. Jain, Is an Individual Bound by an Illegal Executive Order? Distinction between
“Void” and “Voidable” Administrative Orders, 16 J.I.L.I. 322 (1974); M.P. Jain, Annual Survey of Administrative Law, X
A.S.I.L. 523 (1974). An interesting difference in the fact-situations of Hoffman and Nawab Khan may be noted. In
Hoffman, the company was opposing the grant of an interim injunction against itself compelling it to obey an order
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before it was judicially decided whether the order was void or not for breach of natural justice. On the other hand, in
Nawab Khan, the petitioner was sought to be punished for disobeying an order which had been judicially held to be void
for breach of natural justice.
83 F. Hoffman-La Roche & Co. A.G. v Secretary of State for Trade and Industry, [1975] AC 295.
84 On ‘Stay Orders’, see, Infra, Vol. II.
85 On this point, see, Infra, Vol. II, under ‘Compensation.’
86 State of Gujarat v Chaturbhai, AIR 1975 SC 630.
87 Sarjoo Prasad v General Manager, AIR 1981 SC 1481 : (1981) 3 SCC 544 : 1981 (2) LLJ 380.
88 State of Orissa v Binapani Dei, AIR 1967 SC 1269 : (1967) 2 SCR 625. Also, Jain, Cases, 501.
89 Virendra Kuniar v UOI, AIR 1981 SC 947 : (1981) 1 SCC 485 : 1981 LIC 433.
90 Assam Sillimanite Ltd. v UOI, AIR 1990 SC 1417 : (1990) 3 SCC 182.
91 R.B. Shreeram Durga Prasad v Settlement Commission, AIR 1989 SC 1038 : (1989) 1 SCC 628, 630; supra, Chapter
IX; Jain, Cases, 608.
92 Shiv Chander Kapoor v Amar Bose, AIR 1990 SC 325 : (1990) 1 SCC 234 at 247.
93 Supra.
94 Management, M.S. Nally Bharat Engg. Co. Ltd. v State of Bihar, (1990) 2 SCC 48 : 1990 (2) LLJ 211 : 1990 (2) SLR 36;
Jain, Cases, 611. Also see, Infra, Chapter XIV.
95 Management of M/s M.S. Nally v State of Bihar, (1990) 2 SCC 48 at 57 : (1990) 2 LLJ 211 : (1990) 2 SLR 36.
96 S.L. Kapoor v Jagmohan, AIR 1981 SC 136 : (1980) 4 SCC 379; Jain, Cases, 536. Following are some other cases
where orders were voided as no opportunity of hearing was given to the affected persons; Babulal v State of Haryana,
AIR 1991 SC 1310 : 1991 (2) LLJ 327 : (1991) 2 SCC 335; Om Prakash Goel v H.P.T.D. Corp. Ltd., AIR 1991 SC 1490
: 1992 (1) LLJ 469 : (1991) 3 SCC 291; Shrawan Kumar Jha v State of Bihar, AIR 1991 SC 309 : 1991 Supp (1) SCC
330 : 1992 (6) SLR 718; S.C. and Weaker Section Welfare Association (Regd.) v State of Karnataka, AIR 1991 SC
1117; supra.
97 M.C. Mehta v UOI, AIR 1999 SC 2583 : (1999) 6 SCC 237, 243-44 (para 17), relying on Mohd. Swalleh v IIIrd ADJ,
(1988) 1 SCC 40 and following Gadde Venkaswara Rao v Government of AP, AIR 1966 SC 828 : (1966) 2 SCR 172.
98 Gadde Venkateswara Rao v Government of AP, (1966) 2 SCR 172, 189 : AIR 1966 SC 828. See also M.C. Mehta v
UOI, AIR 1999 SC 2583 : (1999) 6 SCC 237, 243-44 (para 17); Raj Kumar Soni v State of UP, (2007) 10 SCC 635,
642-43 (paras 16-18).
99 Aligarh Muslim University v Mansoor Ali Khan, AIR 2000 SC 2783 : (2000) 7 SCC 529, 539 (para 21), relying on M.C.
Mehta v UOI, AIR 1999 SC 2583 : (1999) 6 SCC 237, See also Mohd. Sartaj v State of UP, (2006) 2 SCC 315, 326
(para 20); LIC of India v Hansraj, 2005 (9) SCALE 538.
100 Aligarh Muslim University v Mansoor Ali Khan, AIR 2000 SC 2783 : (2000) 7 SCC 529, 539 (para 21), relying on
Gadde Venkateswara Rao v Government of AP, AIR 1966 SC 828 : (1966) 2 SCR 172. See also LIC of India v
Hansraj, 2005 (9) SCALE 538.
101 M.C. Mehta v UOI, AIR 1999 SC 2583 : (1999) 6 SCC 237.
102 Ridge v Baldwin, 1964 AC 40 : (1963) 2 All ER 66 (HL).
103 S.L. Kapoor v Jagmohan, AIR 1981 SC 136 : (1980) 4 SCC 379, 395. See also Aligarh Muslim University v Mansoor
Ali Khan, AIR 2000 SC 2783 : (2000) 7 SCC 529, 539 (paras 22, 23 and 25).
104 Ridge v Baldwin, 1964 AC 40 : (1963) 2 All ER 66 (HL).
105 K.L. Tripathi v State Bank of India, (1984) 1 SCC 43, 58 (para 31) : 1984 SCC (L&S) 62. See also Aligarh Muslim
University v Mansoor Ali Khan, AIR 2000 SC 2783 : (2000) 7 SCC 529, 539 (para 24); State Bank of Patiala v S.K.
Sharma, AIR 1996 SC 1669 : (1996) 3 SCC 364 : and Rajendra Singh v State of MP, (1996) 5 SCC 460.
106 Aligarh Muslim University v Mansoor Ali Khan, AIR 2000 SC 2783 : (2000) 7 SCC 529, 539-40 (para 24). See also Om
Prakash Mann v Director of Education (Basic), (2006) 7 SCC 558, 560 (para 9); P.D. Agrawal v State Bank of India,
(2006) 8 SCC 776, 793-94 (para 39).
End of Document
12.4 Ultimate Relief
JUSTICE

However, the principle of voidness is not applied in every case as a matter of course. The courts in India claim a
good deal of discretion in awarding relief to a petitioner. In many cases, the courts resile from applying the principle
of voidness in full force, to its logical end, and whittle down the principle in practice. While granting ultimate relief to
an individual on account of failure of natural justice, the courts do at times take into account pragmatic
considerations rather than take recourse to conceptual logic of void/voidable differentiation discussed above.
Rather than acting mechanically, the courts show awareness of the practical effects of their order. Ultimately, what
remedy will a court give in a given situation when failure of natural justice is established is a matter of judicial
discretion in the facts and circumstances of the case.
Ordinarily, when an authority required to observe natural justice does not observe the same, it results in the
quashing of the order, relegating the affected party to his original position, and leaving the concerned authority free
to start proceedings afresh if it so desires.107 But the courts may not always hold so and may not quash the order,
but maintain the status quo, direct the concerned authority to reconsider the matter after completing the
requirements of natural justice and either affirm or modify or cancel the earlier order made by it. Such a choice may
have to be made because the nature and quality of adjudicatory decisions vary, It may not always be physically
possible to restore the party to his original position for several reasons. The property under dispute may have been
destroyed as a result of the action of the Administration. Or, with the lapse of time, it may be physically impossible
to restore the original position, e.g., when a student expelled from college gets relief after a lapse of considerable
time and the academic session may have ended or may be on the verge of ending by then. Or, it may be that
restoring the party to the original position may be inexpedient as the position may have changed so fundamentally
in the meantime that to do so may create administrative problems, or may paralyse administration adversely
affecting public interest, e.g., dissolving a democratically elected body and appointing someone else to take over
the administration, or ordering new elections. Then, the Administration is not generally debarred from taking the
same action again after observing natural justice. In such a situation, public interest may require that the original
position may not be restored for if it is done, the party concerned may so act as to frustrate the ultimate adverse
action to be taken after giving him a hearing. The court may also decline to make a consequential order while
quashing an order if it is futile, if the authority may immediately pass a fresh order under powers given to it by law
on lines similar to the original order quashed by the court making a contrary order ineffective, e.g., the situation of
impounding a passport.108 At times, the court may refuse to void an order because of the general judicial apathy to
set aside governmental orders. Just, for example, in Arjun Chaubey,109 although the order of dismissal of the
petitioner was held vitiated by bias on the part of the decision-maker, the petitioner was not allowed to rejoin his
duties but he was deemed to have retired from service. In Rattan Lal Sharma v Managing Committee,110 while
quashing an order of dismissal of the college principal on the ground of bias, the Supreme Court awarded only 1/4
of the pay, and not full pay, from the date of his dismissal till the date of the Court Order and thereafter full pay. The
Court did so keep in view the financial difficulties of the college managing committee. After the Court order he was
to be reinstated as principal and paid his full salary.
The point to note is that in giving relief, the courts enjoy a discretion and they may tailor the ultimate relief to suit the
totality of circumstances in a given case.111 The idea of the court tailoring ultimate relief is inherent in Wade’s
contention that voidness is relative and not absolute. But this case to case judicial approach has one disadvantage;
it makes Administrative Law uncertain, unsystematic, confused and unpredictable as no one can be sure till the last
moment as to what relief would the court ultimately give to the aggrieved party. Also, if the court refrains from
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voiding the order, unless there are compulsive circumstances to do so, the principle of voidness for non-hearing is
very mush diluted in practice, and the compulsion on the Administration to follow natural justice becomes, to that
extent, less pressing. This will result in diluting the significance of natural justice in administrative process.
What relief do the courts give in a particular case may be examined in the context of a few fact situations under the
following two heads:
(i) Failure of the audi alteram partem;

(ii) Failure of a component norm of natural justice.
12.4.1 Failure of Audi alteram partem
As a result of a search of the premises of an assessee a certain amount of shortage of the stock of gold and gold
ornaments was detected and an inventory of the stock was prepared and a copy thereof was given to him. The
assessee requested the authorities to furnish the certified copy of the check list prepared at the time of raid with a
view to enabling him to check and verify the particulars. In reply thereto, the ITO expressed his inability to provide
the required documents. To say that the documents were not readily available with the officer, is no ground to deny
vital information to a person who is to be visited with a penalty. The Supreme Court held that in failure to supply that
important piece of information the principle of natural justice would stand violated.112 Rule 5(8)(i) of the Aligarh
Muslim University Leave Rules, 1969 contemplates that the employee who absents himself from duty without
having previously obtained leave or fails to return to his duty on the expiry of leave without having previously
obtained further leave, should be given a notice for an explanation for the same which in the instant case was not
done. Hence, there was violation of principles of natural justice.113 In Jagdamba Prasad Shukla v State of UP,114 an
employee contended that he was ill at Kanpur and to participate in the disciplinary proceedings, he was required to
travel to Gorakhpur which he failed to do on account of financial crunch as he was not paid subsistence allowance
in spite of his repeated requests, during the entire period of his one year and eight month’s suspension ending in
his removal from service. The Apex Court held that it was a clear breach of principles of natural justice on account
of denial of reasonable opportunity to the employee to defend himself in the departmental inquiry; but where the
employee took no stand before the authorities that because of non-payment of subsistence allowance, he was not
in a position to participate in the proceedings or that any other prejudice in effectively defending the proceeding was
caused to him, it did not amount to denial of opportunity so as to vitiate the departmental proceedings.115 The
Supreme Court, in a case, issued orders for the shifting of the brick kilns from Delhi but before passing such an
order no notice was issued to the landlords of the brick kiln owners. It was held that the principles of natural justice
would have required an opportunity of hearing being given to them which was denied.116 The order of retirement of
a govt. servant on the basis of a date of birth other than recorded in his service book on the justification that, if his
recorded date of birth was taken to be true, he would not have completed the prescribed minimum age on the date
of joining his training, without any notice to the employee, was set aside and it was held that he must be deemed to
be continuing in service until duly superannuated in accordance with law.117 The principles of natural justice
demand that any person who was going to be adversely affected by the order should have an opportunity of being
heard which was not met in the instant case.118 The Apex Court held that the principles of natural justice were
violated in a case where the factum of the impugned order was founded on the grounds at variance from the one in
the show-cause notice of which the appellant President of a Municipal Council was not even aware of, let alone
having been provided an opportunity to offer his explanation.119 In the cases where the termination is preceded by
an inquiry and evidence is received and findings as to misconduct of a definitive nature are arrived at behind the
back of the officer and where on the basis of such a report, the termination order is issued, such an order will be
violative of the principles of natural justice inasmuch as the purpose of the enquiry is to find out the truth of the
allegations with a view to punish him and not merely to gather evidence for a future regular departmental enquiry.
The punishment as such would be punitive.120
The Appellate Authority set aside the order of dismissal of an employee on the ground of it being vitiated by the
violation of the principles of natural justice and ordered the employee to report for duty within 15 days failing which it
would be presumed that he was not interested in service and order would be passed accordingly. The employee,
instead of reporting for duty, challenged the appellate order before the High Court which dismissed his writ petition.
Thereafter, he reported for duty but, the period of 15 days having expired, he was not allowed to join on the ground
that his dismissal stood revived due to his failure to join within the prescribed period. He filed another writ petition in
the High Court challenging the same but it was dismissed in limine. The Supreme Court held that the High Court
was not justified in doing so, as once the Appellate Authority had found the enquiry to be vitiated resulting in
violation of the principles of natural justice, de novo inquiry should have proceeded. It was ordered accordingly.121 A
bank filed claim before the Commissioner for the recovery of loan it had advanced to a company which was
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subsequently taken over by the govt. The Commissioner passed the award without issuing notice to the company
which was held to be violative of the principles of natural justice and hence was void. Notice should have been
issued to the company as well as the govt.122 In F.C.I. v Sone Lal,123 the employee who had been compulsorily
retired, pleaded before the courts below and the High Court that there was violation of the principles of natural
justice as he was neither supplied with the copy of the enquiry report nor was issued any show-cause notice, but his
plea could not be considered by the courts. The Apex Court remitted the matter for consideration of this issue. An
employee was given notional seniority under rule 47 of the AP State and Subordinate Services Rules
retrospectively, consequently an employee senior to him became junior to him. The Apex Court held that a
relaxation order affecting the rights of third parties without giving them an opportunity of hearing would be in
violation of the principle of natural justice and hence void and unenforceable in law.124
Where on the admitted or indisputable facts only one conclusion is possible and under the law only one penalty is
permissible, the Court may not issue its writ to compel the observance of natural justice, not because it approves
the non-observance of natural justice but because Courts do not issue futile writs. But it will be a pernicious
principle to apply in other situations where conclusions are controversial, however, slightly, and penalties are
discretionary.125
In Anandji Haridas and Co. (P) Ltd. v S.P. Kasture,126 The Supreme Court observed as follows:
“23. We are unable to accept the contention of Mr. Gokhale that a notice under section 11(4)(a) or 11-A(1) is a condition
precedent for initiating proceedings under those provisions or that it is the very foundation for the proceedings to be taken
under those provisions. The notice contemplated under rule 32 is not similar to a notice to be issued under section 34(1)(b)
of the Income Tax Act, 1922. All that sections 11(4) and 11-A(1) prescribe is that before taking proceedings against an
assessee under those provisions, he should be given a reasonable opportunity of being heard. In fact, those sections do
not speak of any notice. But rule 32 prescribes the manner in which the reasonable opportunity contemplated by those
provisions should be afforded to the assessee. The period of 30 days prescribed in rule 32 is not mandatory. The rule itself
says that ‘ordinarily’ not less than 30 days’ notice should be given. Therefore, the only question to be decided is whether
the defects noticed in those notices had prejudiced the appellants. It may be noted that when the assessees received the
notices in question, they appeared before the assessing authority, but they did not object to the validity of those notices.
They asked for time for submitting their explanation. The time asked for was given. Therefore, the fact that only nine days
were given to them for submitting explanation could not have in any manner prejudiced them. So far as the mistake in the
notice as regards the assessment year is concerned, the assessees kept silent about that circumstance till 1958. It was
only when they were sure that the period of limitation prescribed by section 11-A had expired, they brought that fact to the
notice of the assessing authority. It is clear that the appellants were merely trying to take advantage of the mistakes that
had crept into the notices. They cannot be permitted to do so. We fail to see why those notices are not valid in respect of
the periods commencing from 1 February 1953 till 31 October 1955. We are unable to agree with Mr. Gokhale’s contention
that each one of those notices should be read separately and that we should not consider them together. If those notices
are read together as we think they should be, then it is clear that those notices give the appellants the reasonable
opportunity contemplated by sections 11(4)(a) and 11-A(1). In Chatturam v CIT,127 the Federal Court held that any
irregularity in issuing a notice under section 22 of the Income Tax Act, 1922 does not vitiate the proceeding; that the
income-tax assessment proceedings commence with the issue of the notice but the issue or receipt of the notice is,
however, not the foundation of the jurisdiction of the Income Tax Officer to make the assessment or of the liability of the
assessee to pay the tax. The liability to pay the tax is founded on sections 3 and 4 of the Income Tax Act which are the
charging sections. Section 22 and others are the machinery sections to determine the amount of tax. The ratio of that
decision applies to the facts of the present case. In our opinion, the notices issued in the year 1955 are valid notices so far
as they relate to the period commencing from 1 February 1953 to 31 October 1955.”
Whenever an order is struck down as invalid being violation of principles of natural justice, there is no final decision
of the case and, therefore, proceedings are left open. All that is done is that the order assailed by virtue of its
inherent defect is vacated but the proceedings are not terminated. [See Guduthur Bros. v ITO,128 and Supdt. (Tech.
I), Central Excise v Pratap Rai129]. In CST v R.P. Dixit Saghidar,130 it was held as follows:
“5. We are unable to subscribe to the view of the High Court. The aforementioned passage quoted from the Tribunal’s order
shows that the Tribunal was of the view that once the order is quashed by the Assistant Commissioner, he could not in law
remand the case for a decision afresh. As has been noted, before the Assistant Commissioner the counsel for the
respondent had contended that the ex parte order should have been set aside because no notice had been received. When
principles of natural justice are stated to have been violated it is open to the Appellate Authority, in appropriate cases, to set
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aside the order and require the assessing officer to decide the cases de novo. This is precisely what was directed by the
Assistant Commissioner and the Tribunal, in our opinion, was clearly in error in taking a contrary view.”
In a given case, if the assessee knows about the proceedings and there is some irregularity in the service of notice,
the direction for continuing proceedings cannot be faulted. It would depend upon the nature of irregularity and its
effect and the question of prejudice which are to be adjudicated in each case on the basis of surrounding facts. If,
however, the service of notice is treated as non est in the eye of the law, it would not be permissible to direct de
novo assessment without considering the question of limitation. There also the question of prejudice has to be
considered.131
The emerging principles are:132
(i) Non-issue of notice or mistake in the issue of notice or defective service of notice does not affect the
jurisdiction of the assessing officer, if otherwise reasonable opportunity of being heard has been given.
(ii) Issue of notice as prescribed in the Rules constitutes a part of reasonable opportunity of being heard.
(iii) If prejudice has been caused by non-issue or invalid service of notice the proceeding would be vitiated. But
irregular service of notice would not render the proceedings invalid; more so, if the assessee by his
conduct has rendered service impracticable or impossible.
(iv) In a given case when the principles of natural justice are stated to have been violated it is open to the
Appellate Authority in appropriate cases to set aside the order and require the assessing officer to decide
the case de novo.
However, in Nagar Palika Nataur v UP Public Services Tribunal,133 the Supreme Court held that, where the
opportunity was afforded but not utilised, there was no violation of principles of natural justice. In a disciplinary
proceeding, due opportunity of hearing was granted to the delinquent employee. However, his request to call
certain witnesses made during the course of inquiry was denied on cogent reasons. It was, held that the inquiry was
not vitiated by violation of the principles of natural justice.134 Rule 49(i) of the MP Co-operative Central Bank
Employees Rules, 1977 provided for deemed termination of services in case of conviction and sentence of
imprisonment. It was contended that without holding a departmental inquiry, the termination was violative of
principles of natural justice. The Supreme Court observed that the provision presumed a proper trial and a judicial
conviction of the employee where he has a full right to defend himself in accordance with law and in view of such
trial and conviction, a separate departmental inquiry has been considered to be unnecessary. Hence, this cannot be
considered to be in violation of the principles of natural justice.135 Under para 2.3 of the Punjab PWD (B&R) Manual,
the instructions as per Appendix 7-C are given regarding, the enlistment of contractors in a register for the purposes
of contract in the Buildings and Roads Branch, PWD. It sets out that there will be three classes of contractors of on
the basis of assessment of performance, viz. class I, II and III of which class I is entitled to tender of any individual
works of any amount. In the instant case, the contractor in question, not being existed as class I contractor, though
in some previous years he was, was not entitled to tender in the contract in the question. Hence his tender was not
considered. The Supreme Court held that in the facts of the case, there was no violation of the principles of natural
justice.136 A candidate secured employment on a post reserved for the Scheduled Tribes on the basis of caste
certificate issued by the Tehsildar who, subsequently finding that he did not belong to a S.T., cancelled the
certificate. Disciplinary proceedings were started and he was given a show-cause notice alongwith the copies of the
documents which resulted in the termination of his services. He contended before the Court that the order of
termination was vitiated as he was not afforded an opportunity of personal hearing. The Apex Court found that, in
his reply to the show-cause notice, he did not state his desire for personal hearing and held that the order of
termination could not be said to vitiated as alleged.137 Rule 7-A of the Rules framed by the Hyderabad Karnataka
Education Society under the Karnataka Societies Registration Act, 17 of 1960, provided that whenever an ordinary
member failed to pay a paltry amount of Rs. 25/- per year as subscription for remaining as a member for that year
by the end of March of that year, despite having got a locus poenitentiae to pay up this paltry amount from the
beginning of the year within three months, he will automatically cease to be a member. It was contended that the
rule was harsh and arbitrary. The Apex Court observed that every member knew the relevant rule and the society
was not expected to give him further notice to show cause as to why he should not be treated a member for that
year. The Court held that such a notice was implicit in the rule itself which is well known to all his members, hence
there was no failure of principles of natural justice.138 If any right which is creature of statute, in the instant case a
trustees’ right, is limited or curtailed by that very statute, in the absence of any other right under that very statute or
the Constitution of India, such trustee cannot claim any right based on the principle of natural justice.139 An
employee, having been given charge-sheet for misconduct of making allegations against a senior officer, was given
opportunity to appear before the enquiry committee but he chose to stay away from the enquiry proceedings.
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Thereafter, he was issued a show-cause notice which was replied by him. After considering his reply, he was
discharged from service. It was held that there was no violation of the principles of natural justice.140 In a
disciplinary proceeding, the Supreme Court held that as the perusal of the charge-sheet showed that the allegations
against the employee were simple and not complicated, the refusal of permission to engage the services of an
advocate were not violative of the principles of natural justice.141
Subordinate legislation cannot be questioned on the ground of violation of principles of natural justice on which
administrative action may be questioned.142
Disciplinary action against public servants: As stated earlier, ordinarily in the case of failure of natural justice in a
disciplinary case, the court will quash the order leaving the concerned body free to decide to proceed with the
matter again after a fresh hearing,143 but it is not an invariable rule and in a suitable or an exceptional case, the
court may prohibit the concerned authority from holding any fresh enquiry.144 In UOI v M.B. Patnaik,145 the Court
prohibited a fresh enquiry having regard to the long lapse of time of 20 years since the alleged offences were
committed. In Bhagat Rain v State of Himachal Pradesh,146 taking into account the minor infraction of duty by the
delinquent employee and his low status, the Court posed the question “whether the game of holding the fresh
inquiry is worth the battle.” In the interest of justice and fair play, the Court itself took the exceptional course of
imposing the minor penalty of withholding his two increments.
When an order of dismissal is quashed for failure of natural justice, is the employee entitled to full wages for the
period between the order of dismissal and the order of the court? For this purpose, a distinction may be made
between a situation when the employee is under suspension and when he is not, pending disciplinary proceedings
against him. In the former case, if the government decides to take back the employee, he gets his full salary. But in
case the authority concerned decides to hold a fresh hearing against the employee on the same charges, then as
provided in the Central Services (Classification, Control and Appeal) Rules, 1965, the government servant shall be
deemed to be under suspension from the date of the original order of dismissal.147
Where, however, the employee has not been under suspension till the day of his dismissal, the judicial approach
has generally been to logically follow the result of quashing, namely, his reinstatement with full back salary.148 In
Anoop v Government of India,149 an order of discharge from Indian Police Service on the petitioner who was
undergoing training as a probationer without giving him a hearing was quashed by the Supreme Court. He was
reinstated in service with the same rank and seniority as he would have been entitled to have the order of discharge
not been passed. He also got the arrears of his salary and allowances up to the date of his reinstatement.
However, in UP Warehousing Corporation v Vijay Narain,150 the Supreme Court adopted a new approach. Here the
Court found dismissal of an employee of a public undertaking to be wrongful because of the non-observance of
natural justice by the undertaking. On a writ petition, the High Court ordered reinstatement of the employee with full
back wages. The Supreme Court, however, demurred and held that the writ was not an appropriate remedy for
ordering full wages. Such an order involved a “question of fact depending on evidence to be produced before the
tribunal. If after termination of the employment, the workman/employee was gain-fully employed elsewhere, that is
one of the important factors to be considered in determining whether or not reinstatement should be with full back
wages with continuity of employment.”151
Fixing price of a commodity: In fixing the price of a commodity ordinarily no hearing is required to be given to the
affected parties as it is regarded as a legislative, and not an adjudicatory, function.152 But where the relevant law
requires natural justice to be afforded to the concerned parties, but failure of natural justice has occurred, the
individual may never be restored to his original position when the court quashes the order. The benefit of the lower
price fixed by the authority in violation of natural justice goes to the consumers. The administrative authority which
has not received any benefit may not, in the circumstances, be required to pay compensation, if ultimately the
higher prices are fixed after following natural justice. This problem is very well reflected by the English case, F.
Hoffman-La Roche & Co. v Secretary of State for Trade and Industry.153
Miscellaneous Situations: A few miscellaneous situations may be noted here where the courts have thought it not
practical or expedient to nullify the order of the adjudicatory body and restore the status quo ante, i.e., restore the
person affected to his original position when failure of natural justice has occurred. In Maneka Gandhi v UOI,154 the
Supreme Court did not quash an order impounding the passport of the petitioner even though the Court said that
the order was “clearly in violation of the rules of natural justice”. The Attorney-General gave an undertaking that the
government would comply with natural justice, hear the party and reconsider the matter. The Court said that this
would remove the vice from the order. In justification of the court order it may be said that returning the passport to
the petitioner might have led her to leave the country thus frustrating any final adverse order passed by the
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government after hearing. Further, even if the passport had been ordered to be returned to her, the government
could have immediately passed a fresh order impounding the passport. Instead the Court kept the passport in its
own custody pending a final decision of the matter by the government after hearing her.
In S.L. Kapoor v Jagmohan,155 even though the Supreme Court found that the government order superseding the
New Delhi Municipality was vitiated as it was in violation of natural justice, still the Court let the matter rest there. It
did not formally quash the government order and reinstate the committee as only 15 days were left for the expiry of
the normal term of the committee and the petitioner had said that he was more interested in the principle of the
matter rather than getting the suppression order quashed. The Court expressed an anxiety that if the municipality
were to be reinstated “it may lead to confusion and even chaos in the affairs of the municipality.” The Court was
relieved of this anxiety as the petitioner did not press for such an order as he was only interested in having the
stigma cast on the committee by the impugned order removed. In effect, therefore, the Court’s judgment was more
like a declamatory judgment. Nevertheless, the Court did express the view that there was no rule to exclude natural
justice being dependent on whether it would have made any difference if natural justice’ had been observed. In
Swadeshi Cotton Mills v UOI,156 the mills were taken over by the government under the Industries (Development
and Regulation) Act, 1951, without following natural justice. The Supreme Court ruled that the company ought to
have been given a hearing before the take-over. The Court also noted that the consistent judicial view has been
that decisions in violation of the audi alteram partem rule are null and void. In view of these statements by the
Court, the logical course would have been to quash the take-over order and let the government undertake take-over
proceedings afresh according to law if it so desired. Nevertheless, in the instant case, the Court refused to quash
the impugned take-over order and instead directed the government to give a “full, fair and effective” hearing to the
company within three months on all aspects touching the validity and/or correctness of the order of takeover and
thereafter to take a fresh decision or necessary remedial action which was just and proper. Swadeshi is an example
of dichotomy between precept and practice on the part of the judiciary. The Court did not articulate the reasons as
to why it did not follow the logic of its own reasoning and, thus, compromised the principle of voidness for non-
observance of natural justice, in the instant case. But the unstated consideration for such a course of action might
have been that it would create confusion and chaos if the undertaking was handed over back to the owners and
thereafter an order of take-over was passed after giving hearing to them. The decision of the Supreme Court in the
instant case in effect boils down to giving a post-decisional, rather than a pre-decisional, hearing.157
Another illustration of a similar judicial strategy is furnished by P. Kasilingam v P.S.G. College of Technology.158 In
this case, the government acting as a tribunal set aside an order made by the management of a college without
hearing the management. It thus acted in breach of the rules of natural justice. While the Court accepted the
proposition that “ordinarily the Government must, in all such cases, as a matter of course, give the parties the
opportunity of making their representation before making a decision”, and that ordinarily an order passed without
observing natural justice (when it is necessary to do so) would be void, in this particular case, the Court did not set
aside the government’s order and did not send the case back for rehearing, for the Court took the view that no
useful purpose would be served as the government would make a similar order again. This seems to be an
unsatisfactory position to take and seeks to dilute the concept of natural justice. There was no inevitability about the
government order and after hearing the management, the government could have modified its position.
Reference may also be made to an old case D. Subba Rao v State of Andhra Pradesh.159 The State Government
removed the President of a panchayat samiti (a statutory body) without giving him a hearing. Without quashing the
order and reinstating the petitioner in office, the Supreme Court ruled that the petitioner be given an opportunity to
submit his representation and the same be considered by the government. The proper course would have been to
quash the order of removal, and the government could have then started the proceedings against the petitioner
afresh if it so desired. It is doubtful whether a hearing given by the government while its order remains intact could
be anything more than an empty formality because it is difficult to envisage that the concerned decision-making
body having once made the decision could now reconsider the matter with an open mind. It is a natural human
instinct to support the order already made and affirm the decision already reached. As the Allahabad High Court160
has very aptly and pithily stated:
“There is a world of difference between a hearing given before the determination is made by an authority and a hearing
given after such determination has been made.”
The only situation where a hearing is permissible after a determination has been made is when the situation is such
that the hearing has to be post-decisional.161 But even in such a case, the decision has to be tentative, and not final,
and the concerned authority must consider the representation of the affected person with an open mind. In all other
cases, hearing must be pre-decisional so that the representations made by the concerned party can be considered
before the authority arrives at a decision. At present, it is more a matter of judicial discretion as to what relief is
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given when an order is passed by the Administration without giving a hearing in a situation when hearing ought to
have been given. In Gullapalli II,162 there was failure of notice and, hence, there was no hearing. Still, the High
Court refused to give any relief in view of the supervening developments which had taken place thereafter. When
the matter came before the Supreme Court in appeal, it also refused to set aside the impugned order on this
“technical point of no practical utility”. The Court expressed the view that after its decision in Gullapalli II, which had
gone against the appellants, now to give another opportunity to them to make representations against the impugned
order would be “an empty formality” and would introduce “unnecessary complication and avoidable confusion”.
12.4.2 Denial of a Norm of Audi Alteram Partem
There may be a situation where hearing has been given but some component of fair hearing is denied or violated,
e.g., relevant documents may not have been shown to the concerned party, cross-examination of witnesses may
have been denied, or reasons may not have been given for the order made. In such a situation, in some cases the
non-observance of a norm of fair hearing has led the courts to quash the decision of the adjudicative body in
question. For example, in the following case,163 orders made by the Board of Technical Education cancelling
examination results of certain candidates was quashed because the notices issued by the Board to the concerned
candidates were so vague that they could not have defended themselves in the inquiry. In the absence of proper
notices, Board’s orders could not be sustained.164 In Travancore Rayons,165 the Supreme Court quashed a decision
of the Central Government acting as an appellate body from the collector of excise, on the ground that it failed to
give a personal hearing to the assessee company.166 In some other such cases, on the other hand, the courts have,
generally speaking, imposed two riders before giving relief: (1) whether any prejudice has been caused to the
petitioner by breach of the norm of natural justice; (2) Did the petitioner raise the matter of breach of the norm in
question before the adjudicative body itself? The second question is considered below under the heading of Waiver.
As to the first question, there are cases where relief has been denied by the courts to the petitioner for breach of a
norm of fair hearing by an adjudicative body on the ground that no prejudice has thereby been caused to the
petitioner. For example, in the following case,167 in an enquiry against a government servant, government failed to
furnish him with the copies of certain documents which were relied upon to establish charges against him.
Quashing the order of dismissal passed on the concerned person, the Supreme Court observed that the
government was not able “to satisfy us that no prejudice was occasioned to the appellant.” In this case the Court
assumed that the appellant was prejudiced by the non-supply of copies of documents to him and the onus was
placed on the government to show that he was not so prejudiced. Accordingly, the Court directed that the appellant
be treated as having continued in service till the date of his superannuating. The Government was also restrained
from holding a fresh inquiry against him because of the long time gap. But, in another case,168 the Supreme Court
refused to quash the dismissal order on the ground of non-supply of certain materials to him at the inquiry stage
because this “did not prejudice the appellant”. On the question whether absence of an opportunity to cross examine
witnesses would amount to violation of natural justice, the Supreme Court ruled in Tripathi that it would have to be
established that real prejudice was caused to the concerned person by the procedure followed by the adjudicatory
body in question.169
In theory, such judicial approach seems to be unjustifiable. Denial of a norm of natural justice is in itself sufficient
prejudice to the concerned person without any further proof of prejudice. In some cases, the courts have held quite
specifically and decisively that it is no argument to deny natural justice that hearing would have made no difference
to the result of the case in the instant case. A similar ruling ought to apply to the denial of a norm of natural justice.
Attention may be drawn in this connection to J.M.A. Industries v UOI.170 In this case, an order of the government
refusing registration of the appellant’s trademark was challenged. One of the grounds of challenge was that the
show cause notice issued to the party was inadequate as it only repeated the statutory language without giving any
facts.171 The Delhi High Court agreed with this contention saying that from the said notice, the petitioners could
have no true idea as to what facts or circumstances or reasons would the government consider in arriving at its
decision. Thus, though the court specifically held that the show cause notice was inadequate, yet it did not quash
the order saying that “it is doubtful if any actual prejudice has been caused to them by the inadequacy of the show
cause notice.” The court, however, asked the government to give one more hearing to the petitioners to show
cause. The decision seems to be somewhat odd. It makes the law worse confounded. As has been stated earlier,172
an adequate notice is the sine qua non of natural justice. Inadequate notice means denial of natural justice and this
should result in the impugned order being quashed without any question of prejudice to the concerned party. What
is the point of leaving the impugned order intact and yet asking the government to give an opportunity to the
petitioners to show cause. It would have been proper to follow the simple rule that an order made in violation of
natural justice is non est. Any deviation from this rule in individual cases would result in lack of consistency and
uniformity of law making it completely unpredictable. In Ganesh Sugar Mills v State of Uttar Pradesh,173 a notice
was sent by the State Government to the petitioner firm that over 3.5 lac rupees were due from it on account of non-
payment of sugarcane purchase tax. The Supreme Court ruled that the notice was vague and was thus liable to be
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quashed, but the Court did not do so for two reasons: (1) the point of vagueness of the notice had not been argued
before the High Court; (2) Considerable time had elapsed since the issue of the notice as the notice was issued on
13 March 1970 and the Court gave its decision on 20 December 1985. Instead, the Court asked the Cane
Commissioner to give the necessary details (not given in the original notice) to the assessee before adjudicating
upon the matter.
In the ECIL case,174 the Supreme Court has explained the effect of failure to give a copy of the inquiry report to the
concerned employee. In case he has been dismissed or removed from service, the question needs to be
considered whether any prejudice has been caused to him or not on account of the denial of the report to him. The
Court has observed:
“Where, therefore, even after the furnishing of the report, no different consequence would have followed, it would be a
perversion of justice to permit the employee to resume duty and to get all the consequential benefits...”
Therefore, the court/tribunal concerned would cause a copy of the report given to the aggrieved employee and he
be given an opportunity to show how he was prejudiced because of non-supply of the report. The court/tribunal
would not interfere if it comes to the conclusion that it would have made no difference to ultimate findings and the
punishment given. Only if the court/tribunal finds that the furnishing of the report would have made a difference to
the result in the case that it should set aside the order of punishment. The employee is to be reinstated but the
concerned authority can proceed with the inquiry by placing him under suspension and continuing the inquiry from
the stage of furnishing him with the report. The authority should decide according to law, whether the employee is to
get his back wages and other benefits from the date of dismissal to the date of his reinstatement after the
culmination of the proceedings and depending on the final result. If the employee ultimately succeeds and is
reinstated, the authority should decide according to law how it will treat the period from the date of dismissal till his
reinstatement and to what benefits, if any, he will be entitled. The reinstatement made as a result of setting aside of
the inquiry for failure to furnish the report should be treated as a reinstatement for the purpose of holding the fresh
inquiry from the stage of furnishing the report and no more, where such fresh inquiry is held.
However, in Ganges Waterproof Works (P) Ltd. v UOI,175 it was held that the allegation of denial of natural justice
must be substantiated by the complainant.
12.4.3 Giving of Reasons
The question may be considered more specifically in the context of failure to give reasons for its decision by an
adjudicative body.
It is now well established that a quasi-judicial authority has to give a reasoned decision.176 The judicial approach
ordinarily is to quash an administrative order for failure to give reasons,177 but this has not always happened. In
quite a few cases where an order was quashed by the court, apart from the absence of reasons, there were other
factors justifying court’s action such as non-application of the mind, failure of the audi alteram partem or some other
illegality.178 These cases may, therefore, not be of much use in trying to find out the effect of failure to give reasons,
except that these cases do indicate that the general approach of the courts is to quash an order where a quasi-
judicial authority has not given the reasons.
The situation of failure of audi alteram partem is to be distinguished from the failure to give reasons. The former
involves, when the administrative action has been quashed, bilateral acts both on the part of the individual and the
authority— individual getting an opportunity to present his case, and the authority required to consider the case on
the basis of evidence and arguments presented by the individual. In the latter case, the matter normally will be
unilateral—the affected individual having no further role in the decision-making process, but the authority removing
the defect by supplying reasons for its decision. In such a case, the quashing of administrative action may still serve
certain advantages to the individual: (a) The Administration will be obliged to give reasons along with the order
rather than defer the reasons and this introduces an element of fairness in the administrative process; the individual
may get some incidental advantage, e.g., in the case of dismissal from service; (c) he gets the psychological
satisfaction of vindicating his rights; and by lapse of time the authority may change its views. Further, when there is
more than one adverse party interested in the same matter, e.g., a trading licence, quashing of the action may
necessitate the authority to consider the matter afresh.
The fairness of procedure is assured only passing of just decision supported by reasons. Prior to cancelling
affiliation to medical college on the ground of alleged deficiencies in infrastructure, there was bound to be a
consideration of the materials submitted by the college management and a decision rendered thereon. Else, the
decision shall become vulnerable to challenge.179 Under the Punjab Religious Premises and Land (Eviction and
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Rent Recovery) Act, 1997, the Collector is required to pass an order within a period of 45 days from the date of
receipt of the application under section 4 of the Act and the order passed has to be fixed on the outer door or on
some other conspicuous part of the religious premises. The order passed must be a reasoned order.180
There may be three situations of failure to give reasons: (1) not passing a speaking order; (2) non-supply of reasons
to the party but communicating the same later to the court when the order in question is challenged: and (3) supply
of reasons to the party after undue delay of the communication of the non-speaking order but before the individual
has approached the court.
(i) When no reasons are given to the individual or even supplied to the court: The requirement to give reasons in
adjudicative orders is of the essence and goes to the root of the order. When no reasons are given by the
concerned authority for an order made by it, it may also be indicative of non-application of its mind by the authority
to the matter in question. Therefore, in such a situation, the normal rule should be that the non-speaking order be
quashed, and the authority directed to examine the matter afresh. Examination of the matter “afresh” does not
mean that the authority is to give “de novo” hearing but the affected individual may be given an opportunity to make
written or oral submissions either because of the discovery of new points or factors which may have arisen due to
lapse of time or otherwise.
Under the Mines and Minerals (Regulation and Development) Act, 1957, the government has power to grant a
mining lease to a person and to choose him from amongst various applicants. The situation is like that of lis inter
partes. In MP Industries v UOI,181 after refusing a mining licence to the petitioner without giving any reasons, the
government invited fresh applications, Though Subba Rao, J., one of the three judges constituting the bench, found
the action of the government to be bad for failure to give reasons, yet in the circumstances of the case he refused to
quash the order of the government, though the petitioner had contended that because of inviting fresh applications
he was placed in a disadvantageous position as he would have to compete with others who were not in the field
earlier. In the opinion of Subba Rao, J., due to the circumstances of the case, “if we interfere at this stage there
would be unnecessary complications and public interest might suffer.” The result in the case could be justified on
the ground that this was the first significant case where the court was laying emphasis on the necessity of an
adjudicative body to pass a speaking order or to give reasons for its action.
In Bhagat Raja v UOI,182 the appellate authority (Central Government) affirmed the order of the State Government
which had rejected the appellant’s application for granting a mining lease. No reasons were given by any of the
governments. The Supreme Court found that the appellate authority had a special form which was used whenever a
review application was rejected by it. The Court quashed the order and directed the Central Government to decide
the review application afresh.183 In Travancore Rayons v UOI,184 a case which involved the assessment of excise
duty, the Supreme Court quashed the order of the government on account of failure to give reasons and remanded
the case to it. In Mayer Simon v Advocate-General, Kerala,185 the Advocate-General refused his consent to the
petitioner for filing a suit under section 92 of the CPC. No reasons were given for the refusal. The court quashed the
order of the Advocate-General and directed him to deal with the matter afresh with expedition.186
The Bombay High Court has ruled that omission to give reasons amounts only to an irregularity which does not
vitiate the order.187 It is significant to note that in this case there was a statutory requirement that the decision “shall
be communicated to the parties in writing with reasons therefor.” In this case, the power involved was that of
adjudication upon ‘disputes’ regarding purchase and sale of commodities or payment of price, etc. and so was
quasi-judicial in nature. The High Court decision does not seem to be correct since it goes against the well settled
principle of natural justice that an adjudicative authority should give a reasoned decision.
(ii) No reasons communicated but reasons on the record: Where reasons are on the record but have not been
communicated to the individual, the court has adopted different postures. The cases under this heading do not
denote a uniform judicial approach. In some cases, the action has been upheld but not in others. In Ahmedabad
Municipality v Ramanlal,188 a municipality passed an order of eviction against a tenant but did not communicate the
reasons to the party though they were on record. Without quashing the order the Supreme Court contended itself
merely with saying that it showed inefficiency on the part of the municipality and warned that it should not happen
again. It ordered the municipality to give reasons.
In Nandram Hunatram v UOI,189 the government found that the partners in a firm to whom a mine was leased out by
the government were quarrelling among themselves, that the wages of labourers had not been paid and that the
mine was being flooded because essential services had stopped working. In the circumstances, the government
terminated the lease and took over the mine without giving any reasons. The Court upheld the government’s action.
It found that the facts were quite clear and well-known and that it was satisfied on the facts before it that the
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governmental action was justified. In Bhagat Ram v State of Punjab,190 the government passed an order removing a
member from a municipality without giving reasons for his removal. The order was challenged on the ground that it
did not state any reasons for the member’s removal. The Supreme Court reiterated the general principle, viz., that
inasmuch as very severe penal consequences flow from removal of a person from membership of a committee to
which he has been duly elected, and as no appeal is provided for under the statute against an order so removing
him, it is not only desirable but also essential that the State Government should indicate its reasons for making the
order. Nevertheless, in the specific facts and circumstances of the instant case, the Court refused to quash the
order primarily on the ground that the State Government had produced the relevant file before the High Court from
which the Court was satisfied that there had been a proper consideration of the petitioner’s explanation, that the
government was justified in rejecting the appellant’s explanation, and that there had been no violation of natural
justice.
In Ranganath v Daulatrao,191 the appellant had sought to recover from his tenant the possession of land of which he
was the Inamdar. Inams were abolished by the Hyderabad Abolition of Inams and Cash Grants Act, 1954. The
government denied him the relief because of the abolition of Inams by the Act by a non-speaking order. The
Supreme Court upheld the order because the matter did not involve adjudication of facts but rested on law and
there was no error in that regard. Again, in Woolcombers of India v Their Workmen,192 which involved a dispute
between an employer and his employees with regard to wages, the industrial court, while fixing wage rates, failed to
give reasons. The Court emphasized upon the necessity of adjudicatory bodies to give reasons for their decisions
and also stated that “the absence of reasons in support of conclusions is indeed a serious flaw in the award”.
Nevertheless, it refused to set aside the award merely for failure of the tribunal to give reasons if there was
evidence on record to support the tribunal’s conclusions. The Court then went on to examine the record to find
material in support of the tribunal’s conclusions. Having failed to find such material, it ultimately refused to uphold
the award of the tribunal.
In JMA Industries v UOI,193 the Central Government refused to register the trademark of the petitioner as it was not
in public interest to do so. The government gave no reasons for its order which was made under section 49(3) of
the Trade and Merchandise Marks Act, 1958. The order was challenged through a writ petition on the ground of
lack of reasons. These reasons were on record though these were not communicated to the petitioner. The High
Court refused to quash the order merely because the government failed to communicate the reasons to the
petitioner. In its counter-affidavit to the writ petition, the government did disclose the reasons to the court. Although
the court criticised the order characterising it as ‘cagey’, emphasized upon the giving of reasons by adjudicatory
bodies, called attention to the principle enunciated by the Supreme Court in a number of cases that “reasons must
be given for quasi-judicial orders and, in the absence of such reasons, the orders would be quashed by the courts”,
deprecated the tendency of administrative authorities of not supplying reasons to the affected party, yet refused to
quash the impugned order arguing that it “would be wasteful and unjust for this court to refuse to see the reasons
which were originally given in the order on the file to allow the writ petition only because before the writ petition was
filed the reasons were not communicated.194
In Bombay Oil Industries Pvt. Ltd. v UOI,195 the Government of India passed a non-speaking order. Said the
Supreme Court, the government order “leaves much to be desired.” The Court impressed on the Government that
while disposing of applications under sections 21, 22 and 23 of the Monopolies and Restrictive Trade Practices Act,
“it must give good reasons in support of the order and not merely state its bald conclusion.” The Court emphasized:
“The faith of the people in administrative tribunals can be sustained only if tribunals act fairly and dispose of matters
before them by well considered orders.” The Court also observed:
“The relevant material must be made available to the objectors because without it, they cannot possibly meet the claim or
contentions of the applicants under sections 21, 22 and 23 of the MRTP Act. The refusal of the Government to furnish such
material to the objectors can amount to a denial of a reasonable opportunity to the objectors to meet the applicant’s case.
And denial of a reasonable opportunity to meet the other man’s case is denial of natural justice.”
The Court also drew attention of the Government to the several of its judgments on the question of the need to give
reasons in support of the conclusions to which the Government has come. The Court suggested that the
“authorities concerned may, with profit”, see these decisions.196 But, having said all this, the Court refused to quash
the non-speaking order saying that “after hearing a longish argument” on behalf of the appellant, “we are satisfied
on the material produced before us and on perusal of the counter-affidavit of the Government that, there were good
reasons for passing the impugned order.” In K.L. Tripathi v State Bank of India,197 though reasons were not
expressly stated, the order was still upheld because “these reasons were implicit namely, the nature of the charges,
the explanation offered and the reply of the appellant to the show cause notice. These appear from a fair reading of
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the order impugned in this case.” Such decisions really make the requirement of giving reasons for an order more of
a directory, rather than of mandatory, nature.
The law laid down in the above cases cannot be said to be fair to the affected party. The government file may
contain reasons for taking an action, but the person affected has no access to the reasons unless these are
communicated to him. Reasons are not meant only for the satisfaction of the court; these are primarily meant for the
benefit of the affected party; reasons are not for being secured in the files but for communication to the concerned
party. If reasons are not communicated to him, how is he going to know whether he ought to challenge the order or
not in a court, and if to challenge it, on what grounds? Why should the party be forced to go to the court to get the
reasons from the adjudicatory body when it is its obligation to give reasons? The soft judicial attitude in this matter
towards adjudicatory bodies may encourage them not to give reasons for their decisions. In the instant case, the
court might have felt that if it were to quash the order, it could not give the petitioner any positive relief of directing
the government to register his trademark.198 At best the court could have asked the government to reconsider the
matter. But then, in this there was a chance, howsoever remote, that the petitioner might have got the relief he
desired. And, by doing so, the court would have vindicated the principle that a non-speaking order was invalid and,
thus, encouraged the culture among the administrators of passing speaking orders and communicating the reasons
for the orders made by them to the affected persons. The JMA ruling leads to the situation that a party may have to
file a writ petition to get the reasons for the order made by an adjudicatory body.
There are cases, on the other hand, where the Supreme Court has taken a strict view of non-communication of
reasons to the concerned party by an adjudicative body as, for instance, Ajantha Industries v Central Board of
Direct Taxes.199 Under section 127 of the Income Tax Act, 1961, the board may transfer a case from one ITO to
another after giving the assessee a reasonable opportunity of being heard and after recording the reasons for doing
so. It was held that merely recording of reasons in the file was not sufficient. It was essential to give the reasons to
the affected party. If a case is transferred from the usual place of residence or office of the assessee to a distant
place, it involves the assessee into a great deal of inconvenience and monetary loss. The order to transfer was
quashed for not communicating the reasons to the petitioner. In the case mentioned below,200 the Calcutta High
Court has ruled that an order made without giving any reasons is void ab initio and it could not become valid by
giving reasons in an affidavit filed by the concerned authority in the High Court in response to a writ petition filed in
the Court challenging the validity of the order.
It is suggested that in order to avoid confusion, and also to make adjudicators more vigilant in the discharge of their
duties, and in order to avoid dilution of the principles of natural justice, the courts should propound a simple rule that
it is mandatory, as a part of natural justice, that an adjudicatory body gives reasons for its decision, otherwise its
decision will not be regarded as a ‘decision’ at all. The courts should not countenance any argument seeking to
dilute the efficacy of the principle of reasoned decisions so elaborately argued out by the Supreme Court in
Travancore Rayons.201 Only as an exceptional matter, a non-speaking order may be upheld, e.g., when national
security is involved. Such a strict judicial view is essential to develop the culture among the administrators to pass
speaking orders in adjudicatory proceedings.
(iii) Supplying reasons to the party after undue delay of the order but before the matter comes to the court: Here the
situation is more or less the same as in (ii) above. The delay in giving reasons may cause financial loss to the
concerned person as, in the absence of reasons, he may not be able to choose his remedy against the
Administration. For instance, if a person imports certain goods and there is a dispute with regard to the rate of
customs duty to be imposed on such goods, and the customs authorities decide against the individual and delay
giving of reasons for their decision, it may cause him financial loss and subject him to wharfage charges for he may
not know what to do for this delay. The only course open to him may be to file a suit for damages against the
Administration, but the law relating to damages for wrongful administrative action is still in a very nebulous state.202
107 Dhakeswari Cotton Mills Ltd. v CIT, AIR 1955 SC 65 : 1955 SCJ 122; Shivji Nathubhai v UOI, AIR 1960 SC 606 : 1960
SCJ 579; Supdt. (Tech I) Central Excise v Pratap Rai, AIR 1978 SC 1244 : 1978 CrLJ 1266 : (1978) 3 SCC 113.
108 See, Maneka Gandhi v UOI, AIR 1978 SC 597 : (1978) 1 SCC 248; Jain, Cases, 522.
109 Arjun Chaubey v UOI, AIR 1984 SC 1356 : (1984) 2 SCC 578 : 1984 (2) LLJ 17; Jain, Cases, 881.
111 Also see, Infra, Vol. II.
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112 Tibhuvandas Bhimji Zaveri v Collector of Central Excise, (1997) 11 SCC 276, 283 (para 9).
113 Aligarh Muslim University v Mansoor Ali Khan, AIR 2000 SC 2783 : (2000) 7 SCC 529, 538 (para 19). See also Sun
Bevereeges (P.) Ltd. v State of UP, JT 2003 (9) SC 386 : 2003 (10) Scale 405; Zila Sahkari Kendriya Bank Maryadit v
Jagdishchandra, AIR 2001 SC 1178 : (2001) 3 SCC 332; termination on ground of illegal appointment without giving
opportunity of hearing, illegal, Lakhan Lal Tripathi v Commandant General, (2000) 10 SCC 184; punishment to
advocate for misconduct, unheard, failure of justice, Pinakin Bhallal Amin v Haresh Manibhai Patel, JT 2000 (10) SC
537; denial of opportunity to file objection, MP Transport Workers’ Federation Bhopal v Rajya Parivahan Karamchari
Mahasangh, (1998) 8 SCC 484. Detenu deprived of making effective representation, violation of principles of natural
justice, State of TN v Senthil Kumar, AIR 1999 SC 971 : (1999) 2 SCC 646.
114 Jagdamba Prasad Shukla v State of UP, AIR 2000 SC 2806 : (2000) 7 SCC 90, 93 (para 8).
115 Indra Bhanu Gaur v Committee, Management of M.M. Degree College, AIR 2004 SC 248 : JT 2003 (8) SC 471 : 2003
(9) Scale 454 : (2004) 1 SCC 281.
116 M.C. Mehta v UOI, AIR 2000 SC 3052 : (2000) 7 SCC 422, 424 (para 4).
117 Hari Singh v State of Bihar, (2000) 10 SCC 284 (para 2).
118 A.M.S. Sushanth v M. Sujatha, (2000) 10 SCC 197, 198 (para 4).
119 Tarlochan Dev Sharma v State of Punjab, AIR 2001 SC 2524 : (2001) 6 SCC 260, 271-72 (para 13).
120 Radhey Shyam Gupta v UP State Agro Industries Corporation Ltd., AIR 1999 SC 609 : (1999) 2 SCC 21, 36 (para 34).
121 Yashbir Singh v UOI, (1998) 8 SCC 574, 575-6 (paras 4 to 6). See also Sahi Ram v Avtar Singh, AIR 1999 SC 2169 :
(1999) 4 SCC 511, 512 (para 6); Gajanan L. Pernekar v State of Goa, (1999) 8 SCC 378, 380 (para 8); Prem K. Khosla
v Abhilesh Kumar, (1999) 9 SCC 443, 445 (para 5); Nar Singh Pal v UOI, AIR 2000 SC 1401 : (2000) 3 SCC 588, 593
(para 8); Haji Abdul Shakoor & Co. v UOI, AIR 2002 SC 2423 : (2002) 9 SCC 760, 762 (para 7); Jaswant Singh v State
of MP, AIR 2000 SC 3586 (2) : (2002) 9 SCC 700, 701 (para 7).
122 Canara Bank v State of TN, AIR 2000 SC 1196 : (2000) 3 SCC 210, 213 (para 6).
123 F.C.I. v Sone Lal, JT 2005 (9) SC 58 : 2005 (9) Scale 342.
124 N.K. Durga Devi v Commissioner of Commercial Taxes, (1997) 11 SCC 91.
125 S.L. Kapoor v Jagmohan, AIR 1981 SC 136, 145, 147 (paras 17 & 24), followed in Aligarh Muslim University v Mansoor
Ali Khan, AIR 2000 SC 2783 : (2000) 7 SCC 529, 542 (para 35).
126 Anandji Haridas and Co. (P) Ltd. v S.P. Kasture, AIR 1968 SC 565, 575 (para 23) : 21 STC 326.
127 Chatturam v CIT, AIR 1947 FC 32 : (1947) 15 ITR 302.
128 Guduthur Bros. v ITO, AIR 1960 SC 1326 : (1960) 40 ITR 298 : (1961) 1 SCR 71.
129 Supdt. (Tech. I), Central Excise v Pratap Rai, (1978) 3 SCC 113, 325 (para 5) : 1978 SCC (Cri) 371 : 1978 SCC (Tax)
149 : (1978) 114 ITR 231.
130 CST v R.P. Dixit Saghidar, (2001) 9 SCC 324.
131 Commissioner of Sales Tax v Subhash & Co., AIR 2003 SC 1628 : (2003) 3 SCC 454, 459 (para 12).
132 Commissioner of Sales Tax v Subhash & Co., AIR 2003 SC 1628 : (2003) 3 SCC 454, 463-64 (para 22).
133 Nagar Palika Nataur v UP Public Services Tribunal, (1998) 2 SCC 400, 401 (para 3). See also Commissioner of
Customs v Punjab Stainless Steel Industries, AIR 2001 SC 3129 : (2001) 6 SCC 284, 287 (para 5); UP Co-operative
Land Development Bank Ltd. v Chandra Bhan Dubey, AIR 1999 SC 753 : (1999) 1 SCC 741; Mayawati v Markandeya
Chand, AIR 1998 SC 3340 : (1998) 7 SCC 517.
134 Director General, Indian Council of Medical Research v Anil Kumar Ghosh, AIR 1998 SC 2592 : (1998) 7 SCC 97.
135 Hukmi Chand v Jhabua Co-operative Central Bank Ltd., (1998) 2 SCC 291, 293 (para 5).
136 State of Punjab v Pritam Singh, (1998) 9 SCC 606, 610 (para 10) : (1998) 3 RAJ 345.
137 State Bank of India v Luther Kondhpan, (1999) 9 SCC 268, 269 (para 3).
138 Hyderabad Karnataka Education Society v Registrar of Societies, AIR 2000 SC 301 : (2000) 1 SCC 566, 577 (para
24).
139 Krishna v State of Maharashtra, (2001) 2 SCC 441, 446 (para 8).
140 State Bank of India v K.C. Jharakan, (2005) 8 SCC 428.
141 Harinarayan Srivastav v United Commercial Bank, AIR 1997 SC 3658 : (1997) 4 SCC 384 JT : 1997 (4) SC 595.
Page 13 of 14
142 Tulsipur Sugar Co. Ltd. v Notified Area Committee, Tulsipur, AIR 1980 SC 882 : (1980) 2 SCR 1111;See also
Rameshchandra Kachardas Porwal v State of Maharashtra, AIR 1981 SC 1127 : (1981) 2 SCR 866; Indian Express
Newspapers (Bombay) P. Ltd. v UOI, AIR 1986 SC 515, 542 (para 76).
143 For instance, Mafatlal v Div. Controller, State Road Transport Corporation, AIR 1966 SC 1364 : 1966 (1) LLJ 437 :
(1966) 12 FLR 191; Devendra Pratap v State of Uttar Pradesh, AIR 1962 SC 1334; Anand Narain v State of Madhya
Pradesh, AIR 1979 SC 1923; Rattan Lal Sharma v Managing Committee, AIR 1993 SC 2155 : (1993) 4 SCC 10 : 1993
(2) LLJ 549; Shridhar v Nagar Palika, Jaunpur, AIR 1990 SC 307 : 1990 Supp SCC 157 : 1990 (1) SLR 830; UOI v
Shaik Ali, AIR 1990 SC 450 : 1989 Supp (2) SCC 717, supra; Ram Ekbal Sharma v State of Bihar, AIR 1990 SC 1368
: (1990) 3 SCC 504 : 1990 (2) LLJ 601.
144 Subramanian v Collector of Customs, AIR 1972 SC 2178 : 1972 (1) LLJ 465 : (1972) 3 SCC 542.
145 UOI v M.B. Patnaik, AIR 1981 SC 858 : (1981) 2 SCC 159 : (1981) 1 LLJ 453.
146 Bhagat Rain v State of Himachal Pradesh, AIR 1983 SC 454 : (1983) 2 SCC 442 : 1983 (2) LLJ 1. Also, P. Kasilingam
v P.S.G. College of Technology, AIR 1981 SC 789 : (1981) 1 SCC 405 : 1981 (1) LLJ 358.
147 See, Divisional Personnel Officer v Sunder Dass, AIR 1981 SC 2177 : (1981) 4 SCC 563 : (1982) (1) LLJ 154.
148 For instance, Devendra Pratap v State of Uttar Pradesh, AIR 1962 SC 1334 : 1962 Supp (1) SCR 315.
149 Anoop v Government of India, AIR 1984 SC 636 : (1984) 2 SCC 369 : 1984 (1) LLJ 337.
150 UP Warehousing Corporation v Vijay Narain, AIR 1980 SC 840 : (1980) 1 LLJ 222 : 1980 (1) LLN 297.
151 UP Warehousing Corporation v Vijay Narain, AIR 1980 SC 840 at 845 : (1980) 3 SCC 459 : 1980 (1) LLJ 222.
152 Supra, Chapter IX, AIR 1993 Bom 327.
153 F. Hoffman-La Roche & Co. v Secretary of State for Trade and Industry, AIR 1993 Bom 327 : (1975) AC 295. The case
has been discussed at supra, this chapter.
154 Maneka Gandhi v UOI, AIR 1978 SC 597 : (1978) 1 SCC 248; Jain, Cases, Chapter VIII, 522.
155 S.L. Kapoor v Jagmohan, AIR 1981 SC 136 : (1980) 4 SCC 379; Jain, Cases, Chapter VIII, 536.
156 Swadeshi Cotton Mills v UOI, AIR 1981 SC 818 : (1981) 1 SCC 664 : (1981) 51 Comp Cas 210; Jain, Cases, Chapter
VIII, 542.
157 On this aspect, see, under sub-heading: ‘Post-decisional hearing’, under heading ‘Exclusion of Natural Justice’,
Chapter IX.
158 P. Kasilingam v P.S.G. College of Technology, AIR 1981 SC 789 : (1981) 1 SCC 405 : 1981 (1) LLJ 358.
159 D. Subba Rao v State of Andhra Pradesh, AIR 1975 SC 94 : (1975) 4 SCC 808.
160 M.E.S. Co. v State, AIR 1975 All 29.
161 See, supra, Chapter IX, 300. Also see, Maneka Gandhi v UOI, AIR 1978 SC 597 : (1978) 1 SCC 248.
162 Gullapalli N. Rao v A.P.S.R.T.C., AIR 1959 SC 1376 : (1960) 1 SCR 580. Jain, Cases, Chapter X, Section C, 899.
163 Board of Technical Education, UP v Dhanwantari Kumar, AIR 1991 SC 271; Jain, Cases, 920.
164 On ‘Notice’, See under heading: ‘Notice’, Chapter X. Tara Chand Khatri v Municipal Corporation of Delhi, AIR 1977 SC
567 : (1977) 1 SCC 472.
165 Travancore Rayons v UOI, AIR 1971 SC 862 : (1969) 3 SCC 868.
166 Following are some other cases where orders have been quashed on the ground of having been made without giving
an oral hearing to the affected person. Ram Chander v UOI, AIR 1986 SC 1173 : (1986) 3 SCC 103; Jain, Cases, 758;
State of UP v Maharaja Dharmender Prasad Singh, AIR 1989 SC 997 : (1989) 2 SCC 505.; Jain, Cases, 597.
167 Kashinath Dikshita v UOI, AIR 1986 SC 2118 : (1986) 3 SCC 229 : 1986 (2) LLJ 468; Jain, Cases, 658.
168 Chandrama Tiwari v UOI, AIR 1988 SC 117 : 1987 Supp SCC 518; Jain, Cases, 662.
169 See, K.L. Tripathi v State Bank of India, AIR 1984 SC 273 : (1984) 1 SCC 43; Jain, Cases, 690, 692.
170 J.M.A. Industries v UOI, AIR 1980 Del 200.
171 See under sub-heading: ‘A Notice to be Effective Must be Adequate’, under heading: ‘Notice’, Chapter X.
172 See under sub-heading: ‘A Notice to be Effective Must be Adequate’, under heading: ‘Notice’, Chapter X.
173 Ganesh Sugar Mills v State of Uttar Pradesh, AIR 1986 SC 743 : (1986) 1 SCC 623.
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174 Managing Director, ERIL v B. Karunakar, AIR 1994 SC 1074, 1080 : (1993) 4 SCC 727. See also State of UP v
Harendra Arora, (2001) 6 SCC 392, 402 (para 12); Hiran Mayee Bhattacharyya v Secretary, S.M. School for Girls, 2001
(1) SLT 237.
175 Ganges Waterproof Works (P) Ltd. v UOI, AIR 1999 SC 1102 : (1999) 4 SCC 33, 36 (para 6).
176 See under heading: ‘Reasoned Decision’, Chapter X.
177 In the following cases, inter alia, decisions of adjudicatory bodies have been quashed for failure to give reasons:
Testeels Ltd. v N.M. Desai, AIR 1970 Guj 1; Sarju Prasad v Chotanagpur, RTA, AIR 1970 Pat 288; H.M. Ahmed v
State, AIR 1970 All 46; Ram Murti Saran v State, AIR 1971 All 54; B.K. Talwar v State of Haryana, AIR 1971 Punj 48.
178 For instance, State of Punjab v Baklawar Singh, AIR 1972 SC 2083 : 1972 SLR 85; supra; Mahabir Pd. v State of Uttar
Pradesh, AIR 1970 SC 1302 : (1970) 1 SCC 764; State of Gujarat v Krishna Cinema, AIR 1971 SC 1650 : (1970) 2
SCC 744; P.F. Co-op, Society v Collector, Thanajavur, AIR 1975 Mad 81; State of Gujarat v P. Raghav, AIR 1969 SC
1297 : (1969) 2 SCC 187.
179 Kanachur Islamic Education Trust v UOI, (2017) 15 SCC 702. Krishna Mohan Medical College and Hospital v UOI,
(2017) 15 SCC 719.
180 Harbhajan Singh v State of Punjab, (2020) 2 SCC 659.
181 M.P. Industries v UOI, AIR 1966 SC 671 : 1966 (1) SCR 466; Jain, Cases, 731.
182 Bhagat Raja v UOI, AIR 1967 SC 1606 : 1967 (3) SCR 302; Jain, Cases, 737.
183 To the same effect is Chowgule & Co. v UOI, AIR 1971 SC 2021 : (1971) 3 SCC 162.
184 Travancore Rayons v UOI, AIR 1971 SC 862 : (1969) 3 SCC 868; Jain, Cases, Chapter IX, 747.
185 Mayer Simon v Advocate-General, Kerala, AIR 1975 Ker 57.
186 Also see, Narayan Dos v State of Madhya Pradesh, AIR 1972 SC 2086 : 1972 CrLJ 1323 : (1972) 3 SCC 676; State of
Uttar Pradesh v Lalai Singh, AIR 1977 SC 202 : (1976) 4 SCC 213 : 1977 CrLJ 186. In these two cases the statute had
required the recording of reasons, though the administrative order was not quasi-judicial. The court restored the parties
to their original position quashing the action taken against them without recording reasons by the government. These
cases fall not under the rubric of natural justice but that of breach of a statutory mandatory procedural safeguard. Also
see, Infra, Chapter XIX, under Discretionary Powers.
187 Agricultural PM. Committee v Divisional Joint Registrar, Co-op. Societies, AIR 1984 Bom 269.
188 Ahmedabad Municipality v Ramanlal, AIR 1975 SC 1187 : (1975) 1 SCC 778.
189 Nandram Hunatram v UOI, AIR 1966 SC 1922 : 1966 Supp SCR 104.
190 Bhagat Ram v State of Punjab, AIR 1972 SC 1571 : (1972) 2 SCC 170.
191 Ranganath v Daulatrao, AIR 1975 SC 2146 : (1975) 1 SCC 686.
192 Woolcombers of India v Their Workmen, AIR 1973 SC 2758 : (1974) 3 SCC 318 : 1974 (1) LLJ 138.
193 J.M.A. Industries v UOI, AIR 1980 SC Del 200.
194 AIR 1980 Del. at 206.
195 Bombay Oil Industries Pvt. Ltd. v UOI, AIR 1984 SC 160 : (1984) 1 SCC 141.
196 UOI v Mohan Lal Kapoor, AIR 1974 SC 87 : 1973 (2) LLJ 504 : (1973) 2 SCC 836; Siemens, Engg. Mfg. Co. v UOI,
AIR 1976 SC 1785 : (1976) 2 SCC 981 and Uma Charan v State of Madhya Pradesh, AIR 1981 SC 1915 : (1981) 4
SCC 102 : 1981 (2) LLJ 303.
197 K.L. Tripathi v State Bank of India, AIR 1984 SC 273 : 1984 (1) LLJ 2 : (1984) 1 SCC 43. Also see, Sohanlal v State of
Punjab, AIR 1983 Punj 62.
198 See, Infra, Vol. II, under ‘Mandamus’.
199 Ajantha Industries v Central Board of Direct Taxes. AIR 1976 SC 437 : (1976) 1 SCC 1001 : (1976) 102 ITR 281.
200 Star Iron Works Pvt. Ltd. v Eastern Railway, AIR 1992 Cal 238.
201 Travancore Rayons v UOI, AIR 1971 SC 862 : (1969) 3 SCC 868.
202 See, Infra, Chapter XXIV, Vol. II, under ‘Compensation.’
End of Document
12.5 Additional Grounds not Contained in Original Order
JUSTICE

When a statutory functionary makes an order based on certain grounds, its validity must be judged by the reasons
so mentioned and cannot be supplemented by fresh reasons in the shape of affidavit or otherwise. Otherwise, an
order bad in the beginning may, by the time it comes to court on account of challenge, get validated by additional
grounds later brought out. The issue was brought to a head in 63 Technologies Ltd v UOI,203 which was a
profitmaking company having 99.99% shares in National Spot Exchange (NSEL). The latter provided an electronic
platform for trading of commodities between willing buyers and sellers through brokers representing them. The
government of India had issued an exemption notification in respect of forward contracts of one-day duration of sale
and purchase of commodities traded on NSEL from the operation of Forward Contracts (Regulation Act, 1952. On
alleged violation of exemption order, the government extracted an undertaking from NSEL that all existing contracts
will be settled on due dates. There was a complaint that over 13000 persons who traded on the platform of NSEL
were duped by other trading members, who defaulted in payment obligations amounting to Rs.5600 cr. Due to the
sudden and abrupt stoppage of fresh contracts, and media reports, market participation on NSEL’s platform
reduced considerably forcing NSEL to suspend trading and close its spot exchange. Several suits, including a
representative action were filed in Bombay High Court for recovery of Rs.5600 cr against 24 defaulter traders, apart
from several arbitration proceedings.
The Forward Market Commission (FMC) passed an order that 63 Moons Technologies was not fit and proper to
hold equity in any commodity exchanges and must dilute its holding. The Ministry announced that 63 Moons
Technologies (FTIL) and NSEL appeared to be maintaining separate identities for fraudulent purpose, where one
had defrauded market participants and the other was cash rich and hence they had to be amalgamated under s 396
of the Companies Act. A draft order of amalgamation which was published was challenged. After hearing
objections, a final amalgamation order was passed merged and all assets and liabilities of NSEL were to become
the assets and liabilities of 63 Full Moon. The objections for the order were:
First and foremost, the condition precedent to passing an amalgamation order is that compensation be assessed
under section 396(3) of the Act. Compensation has to be assessed qua both the transferor and transferee
company. In the present case, compensation has been assessed only for NSEL or its shareholders, without any
compensation being awarded to FTIL or its shareholders. Secondly, a member or creditor is required to be placed
in the same position “as nearly as possible”. In the present case, the amalgamated company would become a
company of negative net worth upon amalgamation, having had a positive net worth of almost INR 2800 crores pre-
amalgamation. This being so, the very basis for application of section 396 would disappear as the amalgamated
company i.e. the transferee company would have to pay the compensation that is assessed. This obviously cannot
be done when the amalgamated company itself becomes a negative net worth company. Contrary to the objections,
the expert reports and the forensic audits performed brought out that that the Board of FTIL and its promoters under
the leadership of Shri Jignesh Shah have been actively controlling and directing the affairs of NSEL and it is due to
the poor governance and irregularities perpetrated into the affairs of NSEL by FTIL and its promoters that the
defaulting members defrauded the Exchange to the extent of Rs 5500 crores thereby causing huge financial loss to
more than 13,000 investors.
This letter would show that the immediate reason for amalgamation, according to the FMC, and which was faithfully
carried out by Government, is that NSEL, as a corporate entity, seemed financially and physically incapable of
effecting any substantial recovery from defaulting members. This was the “emergency situation” according to the
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FMC, which should lead to an order of amalgamation of the holding and subsidiary companies so that the holding
company’s financial resources could be used to pursue proceedings by which monies owed to the alleged duped
investors/traders could be recovered. The enforcement agencies however had attached assets belonging to
defaulters and liquidated assets of NSEL substantially even without amalgamation.
The FMC had submitted the following recommendation to the Central Government.
(i) merging/amalgamating NSEL with FTIL in public interest so that the human/financial resources of FTIL are
also directed towards facilitating speedy recovery of dues from the defaulters at NSEL and FTIL takes
responsibility to resolve the payment crisis at NSEL at the earliest.
(ii) Further, it is suggested that together with merger/amalgamation of NSEL with FTIL, taking over of the
management of FTIL may also be considered so that the affairs of FTIL can be managed in a professional
way by bringing in an institutionalised framework as recommended by the Working Group appointed by the
Government of India.
But the recoveries effected by Economic Offences Wing were to the tune of Rs. 558.83 Cr and Rs. 5444.31 Cr were
attached. The Enforcement Directorate had attached assets worth Rs. 837.01 Cr belonging to 12 defaulters had
been attached.
TIL has submitted an affidavit-cum-undertaking dated 11 April 2019, stating that it will continue to infuse funds into
NSEL so that recovery of dues from defaulters does not, in any manner, get stymied. The “emergency situation” of
2013 which, even according to the Central Government, required the emergent step of compulsory amalgamation
has, by the time of the passing of the Central Government order, disappeared. Thus, the raison d’être for applying
section 396 of the Companies Act has, by the passage of time, itself disappeared. It was important to notice that the
leveraging of combined assets, capital, and reserves was only to settle liabilities of certain stakeholders and
creditors when the order was read as a whole and given the fact that the businesses of the two companies were
completely different. So far as achieving economy of scale and efficient administration is concerned, the Supreme
Court said that it was difficult to see how this would apply to the fact situation in this case where NSEL was
admittedly a company which has stopped functioning as a commodities exchange at least with effect from July 2013
with no hope of any revival. Thus, the consolidation of businesses spoken about did not exist; as a matter of fact, as
NSEL’s business has come to a grinding halt, as had been observed by the FMC and the Central Government
itself. Each one of these expressions, when read with the rest of the order, therefore, only showed that the sole
object of the amalgamation order is very far from the high-sounding phrases used in the opening, and is really only
to effect speedy recovery of dues of INR 5600 crores,
The three grounds stated were:(a) Restoring/safeguarding public confidence in forward contracts and exchanges
which are an integral and essential part of Indian economy and financial system, by consolidating the businesses of
NSEL and FTIL; (b) Giving effect to business realities of the case by consolidating the businesses of FTIL and
NSEL and preventing FTIL from distancing itself from NSEL, which is, even otherwise, its alter ego; and (c)
Facilitating NSEL in recovering dues from defaulters by pooling human and financial resources of FTIL and NSEL.
Further, we are also satisfied that each of these three grounds constitute a facet of public interest in the context of
the provisions in section 396.”
It was important to note that the first and second grounds mentioned by the High Court were not contained in the
draft order of amalgamation. Had they been so contained, objections and suggestions would have been made by all
stakeholders, which the Central Government would then have been bound to consider before passing the final
order.
Further, under section 396(4)(b), the Central Government may, after considering suggestions and objections from
the stakeholders mentioned, make modifications in the draft order as may seem to it desirable in the light of such
suggestions and objections. No modification had been made in the body of the Central Government order as finally
made. If the Central Government had actually considered that each of these three reasons impact public interest, it
would have explicitly said so after suggestions and objections were made by the various stakeholders. The fact that
the Central Government has not amended the body of the final order is of great significance — it was only the
original reasons given in the draft order that continued as such in the final order which were not in furtherance of
public interest at all. Grounds (a) and (b), part of which was culled out from answers to objections and suggestions
given in the final order, were only given separately by the Central Government after the amalgamation order to
show that the principles of natural justice as laid down by sub-section (4) of section 396 had, in fact, been followed.
But the fact remained that the reasons given before the court and what were stated in the impugned order were
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different. The justification proffered before court were not set out in the impugned order. There was no opportunity
to the appellants to counter the allegations made against them. There had been a failure of natural justice.
203 63 Technologies Ltd v UOI, (2019) 18 SCC 401.
End of Document
12.6 Curing Failure of Natural Justice at Appellate Stage
JUSTICE

Can failure of natural justice at the original stage be cured by the appellate body giving a hearing? Failure of natural
justice arises when either no hearing is given at all, or there has been some defect in the hearing procedure
adopted, by the original adjudicative body. In the first situation, the general rule is that a breach of natural justice at
the original stage cannot be cured by sufficiency of natural justice at the appellate stage. Because of the failure of
natural justice, the order of the lower body is a nullity, and even if this order is affirmed by an upper tribunal, or there
is natural justice provided by the upper tribunal, neither the order of the lower, nor of the upper body can be
sustained. The orders of both, lower as well as of the upper tribunals must fall. Megarry, J., ruled in Leary,204 that
failure of natural justice in the lower tribunal is not cured by providing natural justice to the appellant by the
appellate tribunal. It is very instructive to take note of the exact words used by Megarry, J., for the purpose:
“If one accepts the contention that a defect of natural justice in the trial body can be cured by the presence of natural justice
in the appellate body this has the result of depriving the member of his right of appeal from the expelling body.205 If the rules
and the law combine to give the member the right to a fair trial and the right of appeal, why should he be told that he ought
to be satisfied with an unjust trial and a fair appeal? Even if the appeal is treated as a hearing de novo, the member is being
stripped of his right to appeal to another body from the effective decision to expel him.”
The proper course in such a situation would be for the original body to hear the matter de novo. It would not be
proper if instead of the lower tribunal rehearing the matter, the appellate body were to itself hear it and, thus,
discard its appellate function. If a person never had a fair trial by the appropriate trial body, it would not be open to
the appellate body to itself give the man a fair trial which he never had. If the contention is accepted that a defect of
natural justice in the trial body can be cured by the appellate body providing natural justice, then it deprives the
person concerned of his right of appeal from the trial body. If the law gives a person the right to a fair trial and a
right of appeal, why should he be satisfied with an unjust trial and a fair appeal? Even if the appeal is treated as a
hearing de novo, he is still being deprived of his right of appeal to another body. The decision of the trial body being
a nullity because of denial of natural justice by it, there is no question of its ratification or curing on appeal. Thus,
failure of natural justice in the trial body cannot be cured by a sufficiency of natural justice in an appellate body.
However, if under the law, the appellate body has power to rehear the matter de novo, then rehearing by the
appellate body may he held to cure the defect. Thus, in Stringer v Minister of Housing,206 a statutory provision
provided for appeal from the local planning authority to the Minister, and it also provided that the Minister on appeal
could deal with the application as if it had been brought to him in the first instance. On the basis of these provisions,
the court ruled that when the decision of the local planning authority was void, the Minister could rehear the matter
de novo, deal with the application and make a decision on it.
The Leary principle has been followed in India in a number of cases. Accordingly, the Orissa High Court ruled in
Laxmidhar v State of Orissa,207 following Leary, that when the trial body did not observe natural justice, the same
cannot be remedied by an appellate body giving a sufficient hearing to the party concerned, and where evidence
was not received properly, the entire proceeding became vitiated because its foundation was not in accordance with
law. In Kashiram,208 the SDO cancelled the licence without giving a hearing to the licensee. He appealed to the
district magistrate who heard him at length and upheld the order. The Court ruled that “on the facts and
circumstances of the present case”, “the defect of non-observance of the rule of natural justice” by the lower
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authority was not cured by the hearing before the appellate authority. In G. Rajalakshmi v Appellate Authority,209 the
Andhra Pradesh High Court was called upon to consider the question: if the trial tribunal does not consider all the
objections filed before it, can the appellate tribunal consider the merits of the lis like the original authority and record
findings thereon, or is it improper for it to do so? Agreeing with the approach of Megarry, J. in Leary, the High Court
ruled that a failure of natural justice in the tribunal of first instance cannot be cured by sufficiency of natural justice in
the appellate, body. The court emphasized that such an approach would curb the tendency of the tribunals to give a
short shrift to the proceedings before them. Therefore, the proper course in such a case would be to remit the
matter to the original tribunal and, thus, vindicate and strengthen the larger principle of natural justice. In Farid
Ahmed v Ahmedabad Municipality,210 the commissioner who was the competent authority to give a personal
hearing to the objectors in land acquisition proceedings did not do so. His recommendations with regard to the
acquisition of land were to be approved by a standing committee of the municipality and ultimately confirmed by the
State Government. An appeal against the order of acquisition lay to the city civil court. It was held that if the order
was at its inception invalid, its invalidity cannot be cured by its approval by the standing committee and confirmation
by the State Government. As regards appeal to the court, the court stated that appeal did not lie on all matters
which could be considered by the commissioner. Therefore, the appeal was not a complete substitute for a right to
personal hearing by the commissioner. Even assuming that all objections could be entertained by the court, the
court held that it was only the commissioner and not the judge who could hear objections under the Act. Again, in
Shri Mandir Sita Ramji v Government of Delhi,211 the collector who was the recommendatory authority under the
Land Acquisition Act gave no hearing but the Lt. Governor who was the ultimate authority to acquire land did. The
order of land acquisition was held bad as “... the fact that the collector is not the authority to decide the objection
does not exonerate him from the duty to hear the objector on the objection. ..”212 In Serajuddin & Co. v State of
Orissa,213 the Calcutta High Court quashed an order of the State Government cancelling a mining lease as the
lessee had not been given a hearing. Interestingly, an appeal from the State order had been take to the Central
Government, but it upheld the order after hearing the concerned party. Thereafter, as stated above, the State order
was challenged before the High Court which quashed the same. It was argued before the High Court that the State
order had merged with the Central order and, therefore, the State order could no longer be challenged as such.
Rejecting the contention, the High Court ruled that if the original order was a nullity, an order passed by the higher
authority in revision could be of no greater value or effectiveness even though the latter order complied with natural
justice; in such a case, the original order did not get merged with the order passed in revision. “If the foundation of a
structure is removed the superstructure cannot stand and must collapse.” Therefore, if the order of the lower
authority could not be saved and sustained, the order of the higher authority made in revision must also fall along
with it. In Mysore S.R.T. Corp v Mirza Khasim,214 the Supreme Court reiterated the principle that an initial order
which was null and void could not become valid by confirmation by a higher authority on appeal. The initial defect
could not be cured in this manner. Here was a case not of breach of natural justice but that of breach of article
311(2) insofar as a government servant was dismissed by an authority lower in rank than the appointing authority.
The order was without jurisdiction and, hence, void and inoperative. The order was confirmed on appeal by a higher
officer. Nevertheless, the Court held that the initial order being without jurisdiction was null and void and its
confirmation could not cure its initial defect. It has been noted later that failure to observe natural justice amounts to
jurisdictional error.215
The Supreme Court in L.K. Ratna,216 considered the question whether a provision for an appeal from the Council of
the Institute to the High Court could be considered as an adequate safeguard against any defect in procedure
committed during the initial proceedings? The Court ruled, after referring to Leary, that the consequences of initial
order were very material to decide whether the opportunity of hearing in appeal could cure the defect of the original
order. An order passed after trial caused to the person concerned immediate and serious injury which was not
capable of being completely erased when the error committed in the initial proceedings was later on corrected in
appeal. That would be so when a member of a professional body like the Institute of Chartered Accountants of India
was punished for his professional misconduct. As soon as a highly respected and trusted member was punished,
the damage to his professional reputation would be “immediate and far-reaching” which could never be completely
salvaged. The Court therefore held that the punishment imposed on the respondent by the Council of the Institute
without giving him an opportunity of representing against the report of the disciplinary committee violated the
principles of natural justice and an appeal to the High Court, under the Chartered Accountants Act, 1949, could not
cure that defect. The Court emphasized that it was necessary “to ensure that there is no breach of fundamental
procedure in the original proceeding, and to avoid treating an appeal as an overall substitute for the original
proceeding”.
All these cases are based on Leary. In 1979, in Calvin v Carr,217 considering the same question, the Privy Council
gave only a qualified endorsement to the Leary principle.
Page 3 of 5
The Australian Jockey Club disqualified the plaintiff for one year after a stewards’ inquiry and forfeited his
membership of the club. He appealed to the club committee which dismissed the appeal. The plaintiff then came to
the court seeking a declaration that the decision was void as the stewards had failed to observe the principles of
natural justice. The rules provided that the appeal before the committee would be by way of rehearing and so the
proceedings before the appeal committee constituted a de novo hearing. The question was whether the defects in
the stewards’ enquiry were thus cured. The Privy Council stated that no clear, absolute or automatic rule can be laid
down on the question whether defects in natural justice appearing at an original hearing, whether administrative or
quasi-judicial, can be cured through appeal proceedings or not. This is so because the situations in which this issue
arises are too diverse, and the rules by which they are governed so various. The rule laid down in Leary was too
broadly stated. It may apply in some proceedings where the conclusion is reached that a complainant has the right
to nothing less than a fair hearing both at the original and at the appellate stages. Some examples of such
proceedings are: membership of a trade union, planning, employment etc. But this principle may not apply to all
proceedings. There may be cases where defects at the initial stage may be cured by a full hearing at the appellate
stage. The court has a discretion to decide the matter. “What is required is examination of the hearing process,
original and appeal as a whole, and a decision on the question whether after it has been gone through the
complainant has had a fair deal of the kind that he bargained for.” In case of consensual domestic bodies where an
inquiry and appeal process have been established, it may not be advisable to introduce too great a measure of
formal judicialization. In such case, the court can decide that the complainant has “agreed to accept what is in the
end a fair decision, notwithstanding some initial defect.” But flagrant cases of injustice, including corruption and
bias, must be firmly dealt with by the courts. In the instant case, a domestic tribunal was involved; appeal from the
first stage was by way of hearing. The Privy Council felt convinced that the plaintiff’s case “has received, overall, full
and fair consideration”, and so it refused to interfere with the decision.
The ruling in Calvin v Carr to the effect that failure of natural justice at the original stage may be cured by a hearing
at the appellate stage is subject to three inherent limitations: (1) the ruling is concerned only with consensual bodies
and not with governmental or administrative bodies; (ii) the ruling refers to a two tier adjudicatory system—first tier
deciding the dispute originally and the second tier hearing appeal from the original decision; and (iii) the appeal is
by way of rehearing and the appellate body gives a full-fledged hearing to the party concerned. If the appeal is not
by way of rehearing, but is limited only to the points of law, and the appellant remains bound to accept the
determinations of fact as found by the original body, then the Calvin ruling would not apply.
Calvin v Carr qualifies the Leary principle to some extent. The Leary principle applies in all cases except those of
consensual domestic bodies (such as, social clubs etc.) where proceedings at both levels (original and appellate)
taken together satisfy the demands of natural justice. It is to be noted that in Calvin, the appeal was by way of
rehearing. This distinguishes Leary from Calvin in an important aspect. Ultimately, however, it is for the court to
decide whether the doctrine of Leary or Calvin should be applied in a particular situation. It is suggested that in
India, the Leary principle should be applied in most of the situations as it is necessary that the initial decision-
making bodies are made to follow the principles of natural justice rather meticulously. The Calvin principle will
introduce too much uncertainty into the law. Also, in India, adjudication is done primarily by government bodies, its
officials and statutory bodies which fall outside the pale of the Calvin principle. Even the professional bodies, like
the Institute of Chartered Accountants, are statutory bodies and not consensual bodies. The Calvin principle may be
applied, if at all, to bodies like clubs and associations which a person joins, and voluntarily accepts the rules
thereof.
Another factor militating against the application of the Calvin principle in India is that provisions for appeal from
lower bodies to higher bodies are rare, and appeals by way of ‘rehearing’ are rarer indeed. Also, judicial review is
not usually by way of an appeal, but through a writ petition, which is of much limited efficacy as compared to an
appeal and of much less efficacy as compared to a rehearing de novo as envisaged in Calvin.
While, in India, the dominant judicial trend remains in favour of applying the Leary rule, the Supreme Court has
invoked the Calvin rule in a few cases. Because of the special circumstances in these cases, the Court did not think
it fit to quash the original decision for want of natural justice, and, therefore, upheld the original decision by saying
that the hearing before the Supreme Court has rectified the lacuna. One example of such judicial approach is
furnished by Olga Tellis.218 There, no notice was issued by the commissioner to the squatters on municipal land
before seeking to evict them. The Court ruled that giving of a notice was mandatory. But, instead of quashing the
commissioner’s decision, the Court ruled that the failure of natural justice at his level was cured by a hearing given
to the affected persons in the Court on the writ petition. Another instance of a similar judicial approach is furnished
by Charan Lal Sahu v UOI.219 In the wake of the mammoth Bhopal tragedy as a result of the leakage of poisonous
Page 4 of 5
gas from the works of the Union Carbide, thousands of persons either died or were injured. To represent these
persons in claims for damages against the company, Parliament passed an Act to ensure that the claims arising out
of the disaster were dealt with speedily, effectively and equitably. The Act conferred on the Central Government an
exclusive right to represent the victims of”-the disaster, institute suit on their behalf and enter into a compromise.
Section 4 said that in doing so the Central Government “shall have due regard to any matters” which any affected
person “may require to be urged with respect to his claim...” The Central Government entered into a compromise
with Union Carbide as regards the quantum of compensation payable by the latter for the gas victims. This
compromise was challenged by the gas victims inter alia on the ground that under section 4, it was necessary for
the government, before entering into any compromise, to give a notice to the concerned persons of the proceedings
and an opportunity to them to advance their views if they so wanted. The Court agreed with this contention. Said
the Court, “The fact that the provisions of the principles of natural justice have to be, complied with is undisputed”,
and “... in case of a proposed or contemplated settlement, notice should be given to the victims who are affected or
whose rights are to be affected to ascertain their views.” The Court emphasized that “all civilized countries accept
the right to be heard as part of the due process of law where questions affecting their rights, privileges or claims are
considered and adjudicated.” In the instant case, the government gave no such notice to the people concerned as
to the impending settlement with Union Carbide. The critical question thus was: in the absence of such notice,
should the settlement be held as void? The Court emphasized that not giving of notice in the instant case was not
proper “because principles of natural justice are fundamental in the constitutional set up of this country. No man or
no man’s right should be affected without an opportunity being given to him to ventilate his views. Having said this,
however, the Court resiled from taking the logical step of voiding the settlement arguing that it had been arrived at
after great deal of efforts with a view to give immediate relief to the victims. Therefore, the Court treated hearing
before itself adequate for the purpose. “In the facts and circumstances of this case where sufficient opportunity is
available when review application is heard on notice... no further opportunity is necessary and it cannot be said that
injustice has been done.” The Court thus invoked the Calvin, in preference to the Leary, approach. Later, while
hearing a review petition, in Union Carbide Corp. v UOI,220 the Supreme Court endorsed the Sahu ruling. In this
case, because of special circumstances, viz. to provide expeditious relief to the victims, the Court preferred to follow
Calvin rather than Leary, and itself gave a full fledged hearing to the victims of the gas tragedy to show that the
settlement arrived at between the government and the company concerned was inadequate. It may be pointed out
that here the Calvin principle has been applied on a much broader basis than what was envisaged by the Privy
Council in that case. The Calvin principle was designed to apply to consensual bodies and that, too, when at the
appellate stage there was a rehearing de novo. In Sahu, none of these, conditions were fulfilled. The body involved
here (Government of India) was an administrative, and not a consensual, body discharging a statutory function, and
any hearing by the Court on a writ petition cannot be as broad based as a hearing before a body on a rehearing de
novo.
In Lloyd v McMahon,221 Lord Templeman commenting on the Leary, v Calvin dichotomy, has stated that Calvin can
apply only when the court is entitled to determine the appeal from the concerned adjudicatory body on the basis of
the evidence or information laid before the court itself. If a statute only allows an appeal to a court on a question of
law, or entitles or obliges the court of law to rely on the facts found by the tribunal, “and the defects in the inquiry
conducted by the tribunal may be so prejudicial to the aggrieved person that the court in its discretion may decide to
quash the decision and not to proceed with an appeal on merits in the absence of the views of the tribunal after a
proper inquiry”. In view of this clarification, in India, application of the Calvin rule in writ petitions is not justified as
the writ court does not usually go into facts. Therefore, in India, Leary should be applied as a rule, Calvin only as an
exception to be applied only when policy considerations strongly dictate that the original decision be not quashed as
in Sahu.
Section 3 of the High Denomination Bank Notes (Demonetisation) Act, 1978 provided that on the expiry of 16
January 1978 all high denomination notes shall cease to be legal tender in payment or on account at any place.
Section 7 of the Act provided that the High Denomination Bank Notes owned by a person other than a bank or
Government treasury might be exchanged only on tender of the note upto 19 January 1978. Section 8 provided that
on failure of tender of such notes by a person, he could tender the same upto 24 January 1978 together with a
statement explaining the reasons for his failure to apply within the said time-limit. A charitable society tendered such
notes on 23 January 1978 along with a letter explaining delay for failure to deposit the same within the prescribed
time. The Currency officer of the Reserve Bank of India rejected their claim for exchange on the ground that the
society had not explained satisfactorily its failure. The society preferred an appeal to the Central Govt. which after
giving personal hearing to the society dismissed the appeal. It was contended before the Apex Court that the
Currency Officer passed orders without affording it an opportunity of being heard to explain the reasons for delay in
tendering the notes. The Supreme Court held that even if it was presumed that such an opportunity of personal
hearing was imperative to comply with the rules of natural justice, the society could not raise any grievance on that
Page 5 of 5
score because the appellate authority gave it such an opportunity before dismissing its appeal and gave detailed
reasons for not accepting its explanation for delay.222 Section 41 of the TN Shops and Establishments Act 36 of
1947 and rule 9 of the TN Shops and Establishment Rules, 1948 show that the jurisdiction of the Appellate
Authority in labour law cases to record evidence and to come to its own conclusion on the questions involved in the
appeal, are very wide. Even if the evidence is recorded in the domestic enquiry and order of dismissal is passed
thereafter, it will still be open to the Appellate Authority to record, if need be, such evidence as may be produced by
the parties. Conversely, also if the domestic enquiry is ex parte or no evidence was recorded during those
proceedings, the Appellate Authority would still be justified in taking additional evidence to enable it to come to its
own conclusion on the articles of charges framed against the delinquent employee. In the instant case the
employee did not avail of the opportunity of hearing and was dismissed. The Appellate Authority set aside the
dismissal order on the ground that no domestic enquiry was held. The Apex Court observed that as the Appellate
Authority had full jurisdiction to record evidence to come to its own conclusion, the opportunity of hearing being
afforded to the employee at the appellate stage will sufficiently meet the demands for a just and proper enquiry.223
204 Leary v National Union of Vehicle Builders, (1970) 2 All ER 713; Jain, Cases, Chapter XI, 921. For a comment on
Leary, see, 34 Mod LR 86.
205 Leary arose out of the expulsion of a member by a trade union without giving him a hearing.
206 Stringer v Minister of Housing, (1970) 1 WLR 1281.
207 Laxmidhar v State of Orissa, AIR 1974 Ori 127.
208 Kashiram Dalmia v State, AIR 1978 Pat 265.
209 G. Rajalakshmi v Appellate Authority, AIR 1980 AP 100.
210 Farid Ahmed v Ahmedabad Municipality, AIR 1976 SC 2095 : (1976) 3 SCC 719.
211 Shri Mandir Sita Ramji v Government of Delhi, AIR 1974 SC 1868 : (1975) 4 SCC 298.
212 Shri Mandir Sita Ramji v Government of Delhi, AIR 1974 SC 1868 at 1869 : (1975) 4 SCC 298.
213 Serajuddin & Co. v State of Orissa, AIR 1974 Cal 296 : Jain, Cases, Chapter XI, 931.
214 Mysore S.R.T. Corp v Mirza Khasim, AIR 1977 SC 747, 754 : 1977 (1) LLJ 262 : (1977) 2 SCC 457.
215 Infra, under ‘Error of Jurisdiction.’
216 Institute of Chartered Accountants v L.K. Ratna, AIR 1987 SC 71 : (1986) 4 SCC 537 : (1987) 164 ITR 1; Jain, Cases,
Chapter IX, Section H, 786.
217 Calvin v Carr, (1979) 2 WLR 755; Jain, Cases, Chapter XI, 926.
218 Olga Tellis v Bombay Municipal Corporation, AIR 1986 SC 180 : (1985) 3 SCC 545. Jain, Cases, Ch IX, Section A,
642.
219 Charan Lal Sahu v UOI, AIR 1990 SC 1480 : (1990) 1 SCC 613.
220 Union Carbide Corp. v UOI, AIR 1992 SC 248 : (1991) 4 SCC 584; Jain, Cases, 952.
221 Lloyd v McMahon, (1987) 1 AC 625 .
222 Jayantilal Ratanchand Shah v Reserve Bank of India, (1996) 9 SCC 650, 658 (paras 12 to 16) : AIR 1997 SC 370.
223 United Planters’ Association of Southern India v K.G. Sangameswaran, (1997) 4 SCC 741, 753 (paras 18 and 28) : AIR
1997 SC 1300.
End of Document
12.7 Waiver
JUSTICE
12.7 Waiver
The question of waiver in relation to bias has already been considered earlier.224 The question of waiver in relation
to the non-observance of, or breach of a norm of fair hearing, needs to be considered here.
When a parts after having been given a show-cause notice does not reply thereto, or after having been given an
opportunity of being heard does not present himself at the time of the hearing, he may be regarded as having
waived his right to be heard and the concerned adjudicators body does not infringe natural justice by proceeding
with the matter ex parte.225 The concerned party cannot later on turn around and say that there was non-
compliance of natural justice. As the Supreme Court has observed,226 everyone has a right to waive an advantage
or protection which law gives him. In the following Calcutta case,227 during the course of proceedings before the
estate officer under the Public Premises (Eviction of Unauthorised Occupants) Act, 1971, for eviction of the
petitioners, they sought a number of adjournments which were granted. They did not appear personally before the
estate officer. Full opportunity of being heard was given to them but they did not avail of the same. The estate
officer duly issued notice to them expressing his intention to proceed with the matter at a specified time and place
but even then, the petitioner chose not to attend. The estate officer decided the matter ex parte against the
petitioner. The High Court ruled that in the circumstances of the case it could not be said that the petitioner did not
get reasonable opportunity of presenting his case before the estate officer and he was justified in proceeding ex
parte.228
Besides this, it is difficult to envisage that waiver can be implied in any other situation when the party is not given a
hearing. There are two powerful arguments against implying waiver of such a right. One, failure of natural justice
makes the decision void. It has been held that breach of natural justice goes to the root of the decision-making
authority.229 There is also the well established principle that defect of jurisdiction cannot be cured by acquiescence
of the parties concerned.230 Thus, an adjudicators body cannot decide a dispute without giving hearing to the
concerned parts by bringing in the plea of implied waiver. Secondly, in several cases, the Supreme Court has ruled
that the hearing procedure is a part and parcel of article 14 of the Constitution.231 In Basheshar Nato v Income Tax
Commissioner,232 the Supreme Court has ruled that an affected party cannot waive his fundamental right under
article 14 of the Constitution. It would, therefore, follow that the right to be heard being a part of article 14 cannot
also be waived by the concerned parts.
A rehabilitation policy announced by the State of Kerala to reserve 25% of future daily wage employment vacancies
which would arise to engage members of Abkari Workers Welfare Fund Board and whose services had been
terminated on account of ban of arrack in the State. A modification of the policy to provide to provide for absorption
to be limited only to dependent sons of workers had been issued in public interest and administrative expediency by
balancing interest of displaced workers, their families and unemployed youth. Promise became impossible task in
view of non-availability of vacancies. No doubt opportunity to be heard should be given prior to depriving persons of
the promise but must be taken as waived when there is a policy decision that sought to balance interest among
several sections of the people.233
It is at times argued before the courts that since the petitioner (aggrieved person) failed to raise an objection before
the adjudicators body itself as and when there was a breach of the norm of natural justice in question, he would
Page 2 of 3
12.7 Waiver
forfeit his right to raise the matter later and to challenge the order on that ground. In other words, the argument boils
down to saying that if a party does not raise the objection at the earliest opportunity, then it should be regarded as
waiver on his part rendering him incapable to raise the objection later. It is suggested that the courts should be
extremely slow and circumspect in entertaining the argument of waiver. The reason is that for waiver to arise it is
necessary to show that the concerned parts should not only know that a norm of natural justice is being infringed
but that he should also know that he has a right to object on that ground before the adjudicators body. In many
cases, the parties are not represented by lawyers before adjudicators bodies and, therefore, they would not know
whether or not a norm of natural justice is being infringed and that they have a right to object there and then. In
such a situation if the parts allow the proceedings to go on, he cannot be regarded as having waived his right to
object later. A person cannot waive a right unless he knows that he has such a right. Moreover, norms of natural
justice are so vague and indefinite that not even lawyers, what to say of lay men, can be sure whether or not a norm
of natural justice is being infringed by the adjudicators body in any specific fact-situation.
In several cases, mentioned earlier, courts have refused to quash decisions on the plea of lack of an opportunity to
cross-examine witnesses or not holding a personal hearing by saying that since the party did not earlier demanded
a personal hearing, or claim to cross-examine witnesses testifying against him, he could not later make a grievance
of that and seek to quash the decision on that ground.234 However, there is some judicial authority to support the
view that there are certain fundamental principles of natural justice which cannot be waived. In Mayes v Mayes,235 it
has been said: ...“A rule of natural justice which goes to the very basis of judicature cannot be waived. One cannot
convert a nullity into a validity.” This principle was applied by the court in Singapore in Tan Boon Chee, David v
Medical Council of Singapore.236 The facts of the case are noted earlier. The concerned doctor was represented by
a lawyer at the hearing by the inquiry committee and no objection was raised before the inquiry committee against
the procedure being followed by the members of the inquiry committee. Still the court quashed these proceedings
with the observation that the procedure shocked the court’s sense of justice and amounted to a glaring breach of
natural justice. The breach of natural justice was so fundamental that it could not be waived.
The existence of an element of bias renders the entire disciplinary proceedings void. Such a defect cannot be cured
at the appellate stage even if the fairness of the appellate authority is beyond dispute.237
224 Supra, Chapter XI, under heading ‘Waiver’.

225 Supra, Chapter X, AIR 1963 SC 1612 : 1963 (1) LLJ 295. Also see. Infra, Chapter XIII. Also, Gouranga Chakraborty v
State of Tripura, AIR 1989 SC 1321 : (1989) 3 SCC 314; Shahdoodul Hague v Registrar, AIR 1974 SC 1896 : (1975)
3 SCC 108 : 1974 LIC 1276, C.N. Nayak v Deputy Commr. of Transport, Belgaum, AIR 1987 Kant 52; Chuharmal v
UOI, AIR 1988 SC 1475.
226 Jaswant Singh Mathura Singh v Ahmedabad Municipality, AIR 1991 SC 2130 : 1992 Supp (1) SCC 5.
227 Accounting and Secretarial Services Pvt. Ltd. v UOI, AIR 1993 Cal 102.
228 The House of Lords has ruled in Al-Mehdawi v Secretary of State, (1989) 3 All ER 843, that even when a person lost
the opportunity of being heard before an adjudicatory body due to the negligence of his lawyer, and an ex parte
decision was made against him, the decision cannot be quashed on the ground of denial of natural justice to him.
229 See, Infra, under Judicial Control: Certiorari; U.C. Bank v Their Workmen, AIR 1951 SC 230 : 1951 SCR 380 : 1951 (1)
LLJ 621; also, See under heading: ‘Position in England’, supra, this Chapter.
230 U.C. Bank v Their Workmen, AIR 1951 SC 230 : 1951 SCR 380 : 1951 (1) LLJ 621.
231 See, Infra, Chapter XVIII. For cases on this point, see, Jain, Cases, Chapter XV; also see, Jain, Indian Constitutional
Law, Chapter 21 (1987).
232 Basheshar Nato v Income Tax Commissioner, AIR 1959 SC 149 : (1959) 35 ITR 190; Jain, Indian Constitutional Law,
470.
233 Kerala State Beverages (M & M) Corporation Ltd v PP Suresh, (2019) 9 SCC 710.
234 See, supra, Chapter X; Jain, Cases, Chapter IX.
235 Mayes v Mayes, (1971) 1 WLR 679, 684.
236 Tan Boon Chee, David v Medical Council of Singapore, (1980) 2 MLJ 116.
237 Mohd. Yunus Khan v State of UP, (2010) 10 SCC 539, 549 (para 27), following Arjun Chaubey v UOI, (1984) 2 SCC
578 and relying on State of UP v Mohd. Nooh, AIR 1958 SC 86; Rattan Lal Sharma v Dr. Hari Ram (Co-education)
Page 3 of 3
12.7 Waiver
Higher Secondary School, (1993) 4 SCC 10 : 1993 SCC (L&S) 1106 : (1993) 25 ATC 449; Secretary to Government
Transport Department v Munuswamy Mudaliar, 1988 Supp SCC 651; Meenglas Tea Estate v Workmen, AIR 1963 SC
1719; Mineral Development Ltd. v State of Bihar, AIR 1960 SC 468; A.U. Kureshi v High Court of Gujarat, (2009) 11
SCC 84 : (2009) 2 SCC (L&S) 567; Ashok Kumar Yadav v State of Haryana, (1985) 4 SCC 417 : 1986 SCC (L&S) 88;
S. Parthasarathi v State of AP, (1974) 3 SCC 459 : 1973 SCC (L&S) 580; Tilak Chand Magatram Obhan v Kamala
Prasad Shukla, 1995 Supp (1) SCC 21 : 1995 SCC (L&S) 251; Jagdambika Pratap Narain Singh v CBDT, (1975) 4
SCC 578 : 1975 SCC (Tax) 356; Maneka Gandhi v UOI, (1978) 1 SCC 248; Krishan Lal v State of J & K, (1994) 4 SCC
422 : 1994 SCC (L&S) 885 : (1994) 27 ATC 590; State Bank of Patiala v S.K. Sharma, (1996) 3 SCC 364 : 1996 SCC
(L&S) 717; UOI v Mustafa & Najibai Trading Co., (1998) 6 SCC 79; Vishnu Dutt v State of Rajasthan, (2005) 13 SCC
592 and Nawabkhan Abbaskhan v State of Gujarat, (1974) 2 SCC 121 : 1974 SCC (Cri) 467.
End of Document
12.8 Review of the Authorities on Violation of Principles of Natural Justice
by the Supreme Court
JUSTICE
12.8 Review of the Authorities on Violation of Principles of Natural Justice

by the Supreme Court
The Supreme Court in its decision in State Bank of Patiala v S.K. Sharma,238 has given an elaborate survey of the
authorities on the effect of violation of principles of natural justice. A full view of the judgment is produced here
because of its historic value though most of the cases mentioned, are already covered in the book otherwise.
“13. The first decision on this aspect is that of the House of Lords in Ridge v Baldwin,42 and the oft-quoted
words are that of Lord Reid, to wit:239
“Then there was considerable argument whether in the result the watch committee’s decision was void
or merely voidable. Time and again in the cases I have cited it has been stated that a decision given
without regard to the principles of natural justice is void and that was expressly decided in Wood v
Woad.240 I see no reason to doubt these authorities. The body with the power to decide cannot lawfully
proceed to make a decision until it has afforded to the person affected a proper opportunity to state his
case.”
It must, however, be remembered that that was a case where the appellant-chief constable was
dismissed without notice and without enquiry. He was tried and acquitted on a criminal charge of
conspiracy to obstruct the course of justice. Two other police constables, who were tried along with
him, were convicted. While acquitting the appellant, the learned Judge commented adversely at more
than one place upon the leadership qualities of the chief constable suggesting that he was found
wanting in that respect. Thereupon, the Brighton Watch Committee, without giving any notice or
hearing to him, dismissed him from service. The violation was thus of a fundamental nature. It was a
case of total violation of the principle of natural justice.241 There could not be a greater violation of
natural justice than that.
15. We may now consider the decision of the Privy Council in M. Vasudevasn Pillai v City Council of
Singapore.242 The facts of this case are rather involved. The Singapore Municipal Ordinance provided that
in a case of misconduct which in the opinion of the head of the department merited dismissal, the head of
the department should outline the case to the president or the deputy president and hold an enquiry. The
record of enquiry shall thereafter be considered by the president or the deputy president who was entitled
to cause such further enquiry as he may think appropriate and then make his final decision. If the decision
was to dismiss the employee, the decision was to be conveyed by the head of the department to the
employee who was given a right of appeal to the Establishment Committee. The appellants were daily-
rated unskilled labourers. On the allegation of misconduct, an enquiry was held by the head of the
department wherein the appellants participated. Thereafter, the deputy president asked certain questions
from the head of the department and the latter supplied the necessary information. This was not disclosed
to the appellants. They were dismissed. On appeal, as de novo hearing was afforded to the appellants by
the Establishments Committee. Thereupon, the appellants brought an action in Singapore Courts which
ultimately reached the Privy Council. The Privy Council recalled, in the first instance, the statement of law
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12.8 Review of the Authorities on Violation of Principles of Natural Justice by the Supreme Court
on this subject as stated by Lord Reid in Ridge v Baldwin,243 to the effect that unless the conditions of
service are governed by a statute or statutory rules, principles of natural justice have no place in a dispute
between master and servant. The statement from Ridge runs thus:
“The law regarding master and servant is not in doubt. There cannot be specific performance of a
contract of service and the master can terminate the contract with his servant at any time and for any
reason or for none. But if he does so in a manner not warranted by the contract he must pay damages
for breach of contract. So the question in a pure case of master and servant does not at all depend on
whether the master has heard the servant in his own defence: it depends on whether the facts
emerging at the trial prove breach of contract. But this kind of case can resemble dismissal from an
office where the body employing the man is under some statutory or other restriction as to the kind of
contract which it can make with its servants, or the grounds on which it can dismiss them.”
16. On the facts of the appeal before them, the Privy Council held, in the first instance, that at the stage of the
deputy president asking questions and the head of the department supplying him information, the
principles of natural justice had no application. Alternately, they held that even if the said principles did
apply, even then it must be held that the said violation was cured by what happened before the
Establishments Committee (i.e. on appeal). Since there was a rehearing before the Establishments
Committee and evidence was called de novo and also because no grievance was made with respect to the
proceedings before the Establishments Committee, the invalidity arising from the violation of principles of
natural justice at the earlier stage was cured. This decision was referred with approval in 1980 by the Privy
Council in Calvin v Carr,244 in the following words:
“Their Lordships regard this as a decision that in the context, namely one of regulations concerning
establishments procedures, justice can be held to be done if, after all these procedures had been gone
through, the dismissed person has had a fair hearing and put his case. It is thus an authority in
favouring the existence of the intermediate category, but not necessarily one in favour of a general rule
that first instance defects are cured by an appeal. Their Lordships are also of opinion that the phrase
‘hearing of evidence de novo’, though useful in that case, does not provide a universal solvent. What is
required is examination of the hearing process, original and appeal as a whole, and a decision on the
question whether after it has been gone through the complainant has had a fair deal of the kind that he
bargained for.”
16. Al Mehdawi v Secy. of State for the Home Deptt.245 was an interesting case. On the ground of overstaying
in the United Kingdom, the appellant was given a notice proposing to deport him. The appellant’s solicitors
lodged a notice of appeal and informed the appellant, on his correct address, of the action taken by them.
When the solicitors were notified of the date of hearing, they wrote to the appellant informing him of the
date of hearing, but this letter was sent on the old address. The appellant did not receive it. The solicitors
finding no response from the appellant, took no steps in the matter and the appeal was dismissed. The
solicitors again wrote to the appellant but on the old address again. When sought to be deported, the
appellant applied for judicial review of the deportation order on the ground of absence of notice to him. The
High Court and the Court of Appeal upheld his plea holding that notwithstanding absence of fault by the
Tribunal, there had been a breach of the principle of audi alteram partem, which constituted a fundamental
flaw in the decision-making process and that since the fault lay entirely with the appellant’s solicitors, there
was a clear case for quashing the Tribunal’s decision. On appeal to the House of Lords, the decision of
High Court and Court of Appeal was reversed. The House of Lords [Lord Bridge] observed:
“A party to the dispute who has lost the opportunity to have his case heard through the default of his
own advisers to whom he has entrusted the conduct of the dispute on his behalf cannot complain that
he has been the victim of the procedural impropriety or that natural justice has been denied to him. ...”
In other words, the House of Lords was of the opinion that natural justice merely imposed standards of
procedural fairness on the decision-making authority and that natural justice does not demand that the
person affected should actually receive a fair hearing.”246
17. We must, however, make it clear that it may be difficult to find uniformity in the large number of decided
cases in United Kingdom. For example, take the decision of the House of Lords in Malloch v Aberdeen
Corpn.247 It was a case where the statute concerned mandated that no resolution of a School Board for the
dismissal of a certificated teacher was to be valid unless notice of the motion for dismissal was sent to the
teacher not less than three weeks previous to the meeting. And, further that the resolution for the dismissal
was not to be valid unless agreed to by the majority of the full members of the Board. The teacher
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concerned, Malloch, was informed more than three weeks in advance. But his written request for an
opportunity to submit counter-representations was not granted and though he was present at the decisive
meeting, he was not permitted to state his case. The Court held that the statutory requirement of three
weeks’ notice before the decision was taken, conferred an implied right to be heard. It was not done. By
the notice dated 19 March 1969, the service of the teacher was terminated with effect from 24 April 1969.
The House of Lords held that the teacher concerned was denied by the education authority, which
employed him, the hearing to which he was entitled. It was further found that the hearing to be afforded
would not be a useless formality, as there was an arguable case for the teacher. Nonetheless, it was
observed by Lord Reid: (All ER at p. 1283).
“...it was argued that to have afforded a hearing to the appellant before dismissing him would have
been a useless formality because whatever he might have said could have made no difference. If that
could be clearly demonstrated it might be a good answer.”
Lord Guest (All ER at p. 1291) not only agreed with the above statement but also applied the test of
prejudice. He observed:
“A great many arguments might have been put forward but if none of them had any chance of success
then I can see no good reason why the respondents should have given the appellant a hearing, nor
can I see that he was prejudiced in any way.”
Lord Wilberforce too stated the principle in the following words: (All ER at p. 1294)
“The appellant has first to show that his position was such that he had, in principle, a right to make
representations before a decision against him was taken. But to show this is not necessarily enough,
unless he can also show that if admitted to state his case he had a case of substance to make. A
breach of procedure, whether called a failure of natural justice, or an essential administrative fault,
cannot give him a remedy in the Courts, unless behind it there is something of substance which has
been lost by the failure. The Court does not act in vain.”
18. In R. v Secy. of State for Transport, ex p Gwent County Council,248 the Court of Appeal too applied the test
of prejudice in a case of enhancement of toll charges over a bridge. The Act provided for a public hearing
before effecting increase. Dealing with a complaint of procedural impropriety, the Court of Appeal held that
unless prejudice is established to have resulted from the procedural impropriety, no interference was called
for. In another case, Bushell v Secy. of State for Environment,249 the House of Lords held that in the
absence of statutory rules as to the conduct of a local enquiry under the Highways Act, 1959, the
procedure to be followed was a matter of discretion for the Secretary of State and the Inspector—the only
requirement being that the procedure followed should be fair to all concerned including the general public.
It is thus clear that the approach of the Court depended upon the facts and circumstances of each case,
the law applicable, the nature of the right claimed by the person affected and so on. Having considered the
principles emerging from the above cases, we are inclined to say that the aforesaid statement of law in
Calvin v Carr,250 stated with reference to Vasudevan Pillai,251 is the appropriate one to adopt as a general
rule—and we are supported by the decisions of this Court in saying so. We must, however, forewarn that
decisions on the applicability of the principles of natural justice by this Court are legion. It is neither
possible nor necessary to refer to all of them, particularly in view of the recent Constitution Bench
judgments. We will refer only to a few of them to explain our viewpoint.
19. In State of UP v Mohd. Nooh,252 S.R. Das, C.J., speaking for the Constitution Bench, had this to say:
“If an inferior Court or tribunal of first instance acts wholly without jurisdiction or patently in excess of
jurisdiction or manifestly conducts the proceedings before it in a manner which is contrary to the rules
of natural justice and all accepted rules of procedure and which offends the superior Court’s sense of
fair play the superior Court may, we think, quite properly exercise its power to issue the prerogative writ
of certiorari to correct the error of the Court or tribunal of first instance, even if an appeal to another
inferior Court or tribunal was available and recourse was not had to it or if recourse was had to it, it
confirmed what ex facie was a nullity for reasons aforementioned.”
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20. In Jankinath Sarangi v State of Orissa,253 Hidayatullah, C.J. (speaking for the Bench comprising himself
and G.K. Mitter, J.) made the following pertinent observations: (SCC pp. 394-95, para 5)
“From this material it is argued that the principles of natural justice were violated because the right of
the appellant to have his own evidence recorded was denied to him and further that the material which
was gathered behind his back was used in determining his guilt. In support of these contentions a
number of rulings are cited chief among which are State of Bombay v Narul Latif Khan;254 State of UP v
C.S. Sharma255 and UOI v T.R. Varma.256 There is no doubt that if the principles of natural justice are
violated and there is a gross case this Court would interfere by striking down the order of dismissal; but
there are cases and cases. We have to look to what actual prejudice has been caused to a person by
the supposed denial to him of a particular right. ...Anyway the questions which were put to the
witnesses were recorded and sent to the Chief Engineer and his replies were received. No doubt the
replies were not put in the hands of the appellant but he saw them at the time when he was making the
representations and curiously enough he used those replies in his defence. In other words, they were
not collected behind his back and could be used to his advantage and he had an opportunity of so
using them in his defence. We do not think that any prejudice was caused to the appellant in his case
by not examining the two retired Superintending Engineers whom he had cited or any one of them.”
21. Pausing here, we may notice two decisions of this Court where the test of prejudice was rejected, viz.,
Chintapalli Agency Taluk Arrack Sales Coop. Society Ltd. v Secy. (Food and Agriculture) Govt. of AP,257
and S.L. Kapoor v Jagmohan,258 both rendered by three-Judge Benches. But if one notices the facts of
those cases, it would be evident that they were cases of total absence of notice as in the case of Ridge v
Baldwin.259 In the former case, the Government allowed a revision filed under section 77 of the Andhra
Pradesh Co-operative Societies Act, 1964 without notice to the opposite party, in spite of a request
therefor. Para 9 brings out the factual position and para 11 the legal proposition. They read thus: (SCC pp.
340-41, paras 9 and 11)
“On the very day, viz., 6 October 1976 when the respondents filed their revision before the
Government, the appellant filed an application to the Government disputing the claim of the village
societies. The appellant also filed before the Government a similar application on 28 October 1976. On
5 November 1976, the appellant prayed to the Government for an opportunity to file counter in the
revision petition filed by the respondents. The Government, however, without any notice to the
appellant, passed final orders on 4 December 1976, allowing the two review petitions filed by the
village societies and set aside the order of the Registrar dated 10 December 1975.
***
The short question that arises for decision is whether the order of the Government in revision which
was passed under section 77 of the Act is invalid for non-compliance with section 77(2) which provides
that no order prejudicial to any person shall be passed under sub-section (1) unless such person has
been given an opportunity of making his representation. It is submitted that the Government did not
afford any opportunity to the appellant for making representation before it. The High Court rejected this
plea on the ground that from a perusal of the voluntary applications filed by the appellant it was clear
that the appellant had anyhow met with the points urged by the respondents in their revisions petition
before the Government. We are, however, unable to accept the view of the High Court as correct.”
22. Similarly, S.L. Kapoor case,260 was one where a Municipal Committee was super-seded even without a
notice to the Committee, again a case like Ridge v Baldwin.261 After referring to certain English and Indian
decisions, Chinnappa Reddy, J., made the following observations: (SCC p. 395, para 24)
“In our view the principles of natural justice know of no exclusionary rule dependent on whether it
would have made any difference if natural justice had been observed. The non-observance of natural
justice is itself prejudice to any man and proof of prejudice independently of proof of denial of natural
justice is unnecessary. It will come from a person who has denied justice that the person who has been
denied justice is not prejudiced. As we said earlier where on the admitted or indisputable facts only one
conclusion is possible and under the law only one penalty is permissible, the Court may not issue its
writ to compel the observance of natural justice, not because it is not necessary to observe natural
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justice but because Courts do not issue futile writs. We do not agree with the contrary view taken by
the Delhi High Court in the judgment under appeal.”
The observations made in S.L. Kapoor,262 have to be understood in the context of the facts of that
case—and, of course, subject to the dicta of the Constitution Bench referred to hereinafter.
23. In Hira Nath Mishra v Principal, Rajendra Medical College,263 the denial of opportunity to cross-examine the
material witnesses was held not to vitiate the order made. It was a case where certain male students
entered a girls’ hostel during the night and misbehaved with the girls. The committee appointed to enquire
into the matter recorded the statements of the girls in camera and used them (on the question of identity of
the miscreants) against the appellants without allowing them to cross-examine the girls on the ground that
such a course would reveal the identity of the girls and would expose them to further indignities and also
because the enquiry was held by a committee of responsible persons.
24. In K.L. Tripathi v State Bank of India,264 Sabyasachi Mukherji, J., speaking for a three-Judge Bench,
considered the question whether violation of each and every facet of principles of natural justice has the
effect of vitiating the enquiry. The learned Judge observed: (SCC pp. 58-59, paras 32-34)
“The basic concept is fair play in action administrative, judicial or quasi-judicial. The concept of fair play
in action must depend upon the particular lis, if there be any, between the parties. If the credibility of a
person who has testified or given some information is in doubt, or if the version or the statement of the
person who has testified, is, in dispute, right of cross-examination must inevitably form part of fair play
in action but where there is no lis regarding the facts but certain explanation of the circumstances there
is no requirement of cross-examination to be fulfilled to justify fair play in action,. When on the question
of facts there was no dispute, no real prejudice has been caused to a party aggrieved by an order, by
absence of any formal opportunity of cross-examination per se does not invalidate or vitiate the
decision arrived at fairly. This is more so when the party against whom an order has been passed does
not dispute the facts and does not demand to test the veracity of the version of the credibility of the
statement.
The party who does not want to controvert the veracity of the evidence from record or testimony
gathered behind his back cannot expect to succeed in any subsequent demand that there was no
opportunity of cross-examination specially when it was not asked for and there was no dispute about
the veracity of the statements. Where there is no dispute as to the facts, or the weight to be attached
on disputed facts but only an explanation to the acts, absence of opportunity to cross-examination
does not create any prejudice in such cases.
The principles of natural justice will, therefore, depend upon the facts and circumstances of each
particular case. We have set out hereinbefore the actual facts and circumstances of the case. The
appellant was associated with the preliminary investigation that was conducted against him. He does
not deny or dispute that. Information and materials undoubtedly were gathered not in his presence but
whatever information was there and gathered namely, the versions of the persons, the particular
entries which required examination were shown to him. He was conveyed the information given and his
explanation was asked for. He participated in that investigation. He gave his explanation but he did not
dispute any of the facts nor did he ask for any opportunity to call any evidence to rebut these facts.”
It was accordingly held that the enquiry held and the punishment imposed cannot be said to have been
vitiated on account of an opportunity to cross-examine certain witnesses not having been afforded to
him.265
25. In Managing Director, ECIL v B. Karunakar,266 a Constitution Bench did take the view that before an
employee is punished in a disciplinary enquiry, a copy of the enquiry report should be furnished to him (i.e.
wherever an enquiry officer is appointed and he submits a report to the Disciplinary Authority). It was held
that not furnishing the report amounts to denial of natural justice. At the same time, it was held that just
because it is shown that a copy of the enquiry officer’s report is not furnished, the punishment ought not to
be set aside as a matter of course. It was directed that in such cases, a copy of the report should be
furnished to the delinquent officer and his comments obtained in that behalf and that the Court should
interfere with the punishment order only if it is satisfied that there has been a failure of justice. The
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following para (applicable in cases where the order of punishment is subsequent to 20-11-1990, the date of
judgment in UOI v Mohd. Ramzan Khan,267 is apposite: (SCC p. 758, para 31)
“Hence, in all cases where the enquiry officer’s report is not furnished to the delinquent employee in
the disciplinary proceedings, the Courts and Tribunals should cause the copy of the report to be
furnished to the aggrieved employee if he has not already secured it before coming to the
Court/Tribunal and give the employee an opportunity to show how his or her case was prejudiced
because of the non-supply of the report. If after hearing the parties, the Court/Tribunal comes to the
conclusion that the non-supply of the report would have made no difference to the ultimate findings and
the punishment given, the Court/Tribunal should not interfere with the order of punishment. The
Court/Tribunal should not mechanically set aside the order of punishment on the ground that the report
was not furnished as is regrettably being done at present. The Courts should avoid resorting to short
cuts. Since it is the Courts/Tribunals which will apply their judicial mind to the question and given their
reasons for setting aside or not setting aside the order of punishment, (and not any internal appellate
or revisional authority), there would be neither a breach of the principles of natural justice nor a denial
of the reasonable opportunity. It is only if the Court/Tribunal finds that the furnishing of the report would
have made a difference to the result in the case that it should set aside the order of punishment.
Where after following the above procedure, the Court/Tribunal sets aside the order of punishment, the
proper relief that should be granted is to direct reinstatement of the employee with liberty to the
authority/management to proceed with the inquiry, by placing the employee under suspension and
continuing the inquiry from the stage of furnishing him with the report.”268
26. To the same effect is the decision of another Constitution Bench in C.B. Gautam v UOI,269 a case arising
under Chapter XX-C of the Income Tax Act. At p. 110, the following observations are relevant: (SCC p.
110, para 40)
“This brings us to the question to relief. We find that the order of compulsory purchase under section
269-UD (1) of the Income Tax Act which was served on the petitioner in the night of 15 December,
1986, has been made without any show-cause notice being served on the petitioner and without the
petitioner or other affected parties having been given any opportunity to show cause against an order
of compulsory purchase nor were the reasons for the said order set out in the order or communicated
to the petitioner or other parties concerned with the order. In view of what we have stated earlier the
order is clearly bad in law and it is set aside.”
27. Even so, this Court did not set aside the order of compulsory purchase but devised an appropriate
procedure so that the “laudable object” underlying Chapter XX-C is not defeated and at the same time the
persons affected get an opportunity to put forward their case against the proposed acquisition.
28. The decisions cited above make one thing clear, viz., principles of natural justice cannot be reduced to any
hard and fast formulae. As said in Russell v Duke of Norfolk,270 way back in 1949, these principles cannot
be put in a strait-jacket. Their applicability depends upon the context and the facts and circumstances of
each case. (See Mohinder Singh Gill v Chief Election Commissioner,271). The objective is to ensure a fair
hearing, a fair deal, to the person whose rights are going to be affected. (See A.K. Roy v UOI,272 and
Swadeshi Cotton Mills v UOI).273 As pointed out by this Court in A.K. Kraipak v UOI,274 the dividing line
between quasi-judicial function and administrative function (affecting the rights of a party) has become
quite thin and almost indistinguishable—a fact also emphasised by House of Lords in Council of Civil
Service Unions v Minister for the Civil Service,275 where the principles of natural justice and a fair hearing
were treated as synonymous. Whichever the case, it is from the standpoint of fair hearing—applying the
test of prejudice, as it may be called—that any and every complaint of violation of the rule of audi alteram
partem should be examined. Indeed, there may be situations where observance of the requirement of prior
notice/hearing may defeat the very proceeding—which may result in grave prejudice to public interest. It is
for this reason that the rule of post-decisional hearing as a sufficient compliance with natural justice was
evolved in some of the cases. e.g., Liberty Oil Mills v UOI.276 There may also be cases where the public
interest or the interests of the security of State or other similar considerations may make it inadvisable to
observe the rule of audi alteram partem altogether [as in the case of situations contemplated by clauses (b)
and (c) of the proviso to article 311(2) of the Constitution of India] or to disclose the material on which a
particular action is being taken. There may indeed be any number of varying situations which it is not
possible for anyone to foresee. In our respectful opinion, the principles emerging from the decided cases
can be stated in the following terms in relation to the disciplinary orders and enquiries: a distinction ought
to be made between violation of the principle of natural justice, audi alteram partem, as such and violation
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of a facet of the said principle. In other words, distinction is between “no notice”/“no hearing” and “no
adequate hearing” or to put it in different words, “no opportunity” and “no adequate opportunity”. To
illustrate—take a case where the person is dismissed from service without hearing him altogether (as in
Ridge v Baldwin.277) It would be a case falling under the first category and the order of dismissal would be
invalid—or void, if one chooses to use that expression (Calvin v Carr.278) But where the person is
dismissed from service, say, without supplying him a copy of the enquiry officer’s report (Managing
Director, ECIL v B. Karunakar,279) or without affording him a due opportunity of cross-examining a witness
(K.L. Tripathi,280) it would be a case falling in the latter category—violation of a facet of the side rule of
natural justice—in which case, the validity of the order has to be tested on the touchstone of prejudice, i.e.,
whether, all in all, the person concerned did or did not have a fair hearing. It would not be correct—in the
light of the above decisions to say that for any and every violation of a facet of natural justice or of a rule
incorporating such facet, the order passed is altogether void and ought to be set aside without further
enquiry. In our opinion, the approach and test adopted in B. Karunakar,281 should govern all cases where
the complaint is not that there was no hearing (no notice, no opportunity and no hearing) but one of not
affording a proper hearing (i.e., adequate or a full hearing) or of violation of a procedural rule or
requirement governing the enquiry; the complaint should be examined on the touchstone of prejudice as
aforesaid.
29. The matter can be looked at from the angle of justice or of natural justice also. The object of the principles
of natural justice—which are now understood as synonymous with the obligation to provide a fair
hearing282—is to ensure that justice is done, that there is no failure of justice and that every person whose
rights are going to be affected by the proposed action gets a fair hearing. The said objective can be tested
with reference to rule 68(ii)(x)(b)(iii) of the State Bank of Patiala (Officers’) Service Regulations, 1979
concerned here. It says that copies of statements of witnesses should be furnished to the delinquent officer
“not later than three days before the commencement of the examination of the witnesses by the inquiring
authority.” Now take a case—not the one before us—where the copies of statements are supplied only two
days before the commencement of examination of witnesses instead of three days. The delinquent officer
does not object; he does not say that two days are not sufficient for him to prepare himself for cross-
examining the witnesses. The enquiry is concluded and he is punished. Is the entire enquiry and the
punishment awarded to be set aside on the only ground that instead of three days before, the statements
were supplied only two days before the commencement of the examination of witnesses? It is suggested
by the appellate Court that sub-clause (iii) is mandatory since it uses the expression ‘shall’. Merely
because the word ‘shall’ is used, it is not possible to agree that it is mandatory. We shall, however, assume
it to be so for the purpose of this discussion. But then even a mandatory requirement can be waived by the
person concerned if such mandatory provision is conceived in his interest and not in public interest, vide
Dhirendra Nath Gorai v Sudhir Chandra Ghosh,283 Subba Rao, J., speaking for the Court, held:
“Where the Court acts without inherent jurisdiction, a party affected cannot by waiver confer jurisdiction
on it, which it has not. Where such jurisdiction is not wanting, a directory provision can obviously be
waived. But a mandatory provision can only be waived if it is not conceived in the public interests, but
in the interests of the party that waives it. In the present case the executing Court had inherent
jurisdiction to sell the property. We have assumed that section 35 of the Act is a mandatory provision. If
so, the question is whether the said provision is conceived in the interests of the public or in the
interests of the person affected by the non-observance of the provision. It is true that many provisions
of the Act were conceived in the interests of the public, but the same cannot be said of section 35 of
the Act, which is really intended to protect the interests of a judgment-debtor and to see that a larger
extent of his property than is necessary to discharge the debt is not sold. Many situations may be
visualized when the judgment-debtor does not seek to take advantage of the benefit conferred on him
under section 35 of the Act.”
30. The principle of the above decision was applied by this Court in Krishan Lal v State of J&K,284 in the case
of an express statutory provision governing a disciplinary enquiry. It was a case where the employee was
dismissed without supplying him a copy of the enquiry officer’s report as required by section 17(5) of the
Jammu and Kashmir (Government Servants) Prevention of Corruption Act, 1962. This provision was
treated as mandatory. The question was how should the said complaint be dealt with. This Court held:
(SCC pp. 432-33, paras 26-29)
“Let it now be seen whether the requirement of giving copy of the proceeding of the inquiry mandated
by section 17(5) of the Act is one which is for the benefit of the individual concerned or serves a public
purpose. If it be former, it is apparent, in view of the aforesaid legal position, that the same can be
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waived; if it be latter, it cannot be. Though Shri Mehta has urged that this requirement serves a public
purpose, we do not agree. According to us, the requirement is for the benefit of the person concerned
which is to enable him to know as to what had taken place during the course of the proceedings so that
he is better situated to show his cause as to why the proposed penalty should not be imposed. Such a
requirement cannot be said to be relatable to public policy or one concerned with public interest, or to
serve a public purpose.
We, therefore hold that the requirement mentioned in section 17(5) of the Act despite being mandatory
is one which can be waived. If, however, the requirement has not been waived any act or action in
violation of the same would be a nullity. In the present case as the appellant had far from waiving the
benefit, asked for the copy of the proceeding despite which the same was not made available, it has to
be held that the order of dismissal was invalid in law.
The aforesaid, however, is not sufficient to demand setting aside of the dismissal order in this
proceeding itself because what has been stated in ECIL case285 in this context would nonetheless
apply. This is for the reason that violation of natural justice which was dealt with in that case, also
renders an order invalid despite which the Constitution Bench did not concede that the order of
dismissal passed without furnishing copy of the inquiry officer’s report would be enough to set aside
the order. Instead, it directed the matter to be examined as stated in paragraph 31. ...
According to us, therefore, the legal and proper order to be passed in the present case also, despite a
mandatory provision having been violated, is to require the employer to furnish a copy of the
proceeding and to call upon the High Court to decide thereafter as to whether non-furnishing of the
copy prejudiced the appellant/petitioner and the same has made difference to the ultimate finding and
punishment given. If this question would be answered in affirmative, the High Court would set aside the
dismissal order by granting such consequential reliefs as deemed just and proper.”
31. Sub-clause (iii) of rule 68(ii)(x)(b) of the State Bank of Patiala (Officers’) Service Regulations, 1979 is,
without a doubt, conceived in the interest of the delinquent officer and hence, he could waive it. From his
conduct, the respondent must be deemed to have waived it. This is an aspect which must be borne in mind
while examining a complaint of non-observance of procedural rules governing such enquiries. It is trite to
remember that, as a rule, all such procedural rules are designed to afford a full and proper opportunity to
the delinquent officer/employee to defend himself and are, therefore, conceived in his interest. Hence,
whether mandatory or directory, they would normally be conceived in his interest only.
32. Now, coming back to the illustration given by us in the preceding para, would setting aside the punishment
and the entire enquiry on the ground of aforesaid violation of sub-clause (iii) of rule 68(ii)(x)(b) of the State
Bank of Patiala (Officers’) Service Regulations, 1979 be in the interests of justice or would it be its
negation? In our respectful opinion, it would be the latter. Justice means justice between both the parties.
The interests of justice equally demand that the guilty should be punished and that technicalities and
irregularities which do not occasion failure of justice are not allowed to defeat the ends of justice. Principles
of natural justice are but the means to achieve the ends of justice. They cannot be perverted to achieve the
very opposite end. That would be a counter-productive exercise.
33. We may summarise the principles emerging from the above discussion. (These are by no means intended
to be exhaustive and are evolved keeping in view the context of disciplinary enquiries and orders of
punishment imposed by an employer upon the employee):
(1) An order passed imposing a punishment on an employee consequent upon a disciplinary/departmental

enquiry in violation of the rules/regulations/statutory provisions governing such enquiries should not be
set aside automatically. The Court or the Tribunal should enquire whether (a) the provision violated is
of a substantive nature or (b) whether it is procedural in character.
(2) A substantive provision has normally to be complied with as explained hereinbefore and the theory of
substantial compliance or the test of prejudice would not be applicable in such a case.
(3) In the case of violation of a procedural provision, the position is this: procedural provisions are
generally meant for affording a reasonable and adequate opportunity to the delinquent
officer/employee. They are, generally speaking, conceived in his interest. Violation of any and every
procedural provision cannot be said to automatically vitiate the enquiry held or order passed. Except
cases falling under—“no notice”, “no opportunity” and “no hearing” categories, the complaint of
Page 9 of 12
violation of procedural provision should be examined from the point of view of prejudice, viz., whether
such violation has prejudiced the delinquent officer/employee in defending himself properly and
effectively. If it is found that he has been so prejudiced, appropriate orders have to be made to repair
and remedy the prejudice including setting aside the enquiry and/or the order of punishment. If no
prejudice is established to have resulted therefrom, it is obvious, no interference is called for. In this
connection, it may be remembered that there may be certain procedural provisions which are of a
fundamental character, whose violation is by itself proof of prejudice. The Court may not insist on proof
of prejudice in such cases. As explained in the body of the judgment, take a case where there is a
provision expressly providing that after the evidence of the employer/Government is over, the
employee shall be given an opportunity to lead defence in his evidence, and in a given case, the
enquiry officer does not give that opportunity in spite of the delinquent officer/employee asking for it.
The prejudice is self-evident. No proof of prejudice as such need be called for in such a case. To
repeat, the test is one of prejudice, i.e., whether the person has received a fair hearing considering all
things. Now, this very aspect can also be looked at from the point of view of directory and mandatory
provisions, if one is so inclined. The principle stated under (4) hereinbelow is only another way of
looking at the same aspect as is dealt with herein and not a different or distinct principle.
(4) (a) In the case of a procedural provision which is not of a mandatory character, the complaint of
violation has to be examined from the standpoint of substantial compliance. Be that as it may, the order
passed in violation of such a provision can be set aside only where such violation has occasioned
prejudice to the delinquent employee.
(b) In the case of violation of a procedural provision, which is of a mandatory character, it has to be
ascertained whether the provision is conceived in the interest of the person proceeded against or
in public interest. If it is found to be the former, then it must be seen whether the delinquent officer
has waived the said requirement, either expressly or by his conduct. If he is found to have waived
it, then the order of punishment cannot be set aside on the ground of the said violation. If, on the
other hand, it is found that the delinquent officer/employee has not waived it or that the provision
could not be waived by him, then the Court or Tribunal should make appropriate directions (include
the setting aside of the order of punishment), keeping in mind the approach adopted by the
Constitution Bench in B. Karunakar.286 The ultimate test is always the same, viz., test of prejudice
or the test of fair hearing, as it may be called.
(5) Where the enquiry is not governed by any rules/regulations/statutory provisions and the only obligation
is to observe the principles of natural justice—or, for that matter, wherever such principles are held to
be implied by the very nature and impact of the order/action—the Court or the Tribunal should make a
distinction between a total violation of natural justice (rule of audi alteram partem) and violation of a
facet of the said rule, as explained in the body of the judgment. In other words, a distinction must be
made between “no opportunity” and no adequate opportunity, i.e., between “no notice”/“no hearing”
and “no fair hearing”. (a) In the case of former, the order passed would undoubtedly be invalid (one
may call it ‘void’ or a nullity if one chooses to). In such cases, normally, liberty will be reserved for the
Authority to take proceedings afresh according to law, i.e., in accordance with the said rule (audi
alteram partem). (b) But in the latter case, the effect of violation (of a facet of the rule of audi alteram
partem) has to be examined from the standpoint of prejudice; in other words, what the Court or
Tribunal has to see is whether in the totality of the circumstances, the delinquent officer/employee did
or did not have a fair hearing and the orders to be made shall depend upon the answer to the said
query. [It is made clear that this principle (No. 5) does not apply in the case of rule against bias, the
test in which behalf are laid down elsewhere.]
(6) While applying the rule of audi alteram partem (the primary principle of natural justice) the
Court/Tribunal/Authority must always bear in mind the ultimate and overriding objective underlying the
said rule, viz., to ensure a fair hearing and to ensure that there is no failure of justice. It is this objective
which should guide them in applying the rule to varying situations that arise before them.
(7) There may be situations where the interests of State of public interest may call for a curtailing of the
rule of audi alteram partem. In such situations, the Court may have to balance public/State interest with
the requirement of natural justice and arrive at an appropriate decision.
34. Now, in which of the above principles does the violation of sub-clause (iii) of rule 68(ii)(x)(b) of the State
Bank of Patiala (Officers’) Service Regulations, 1979 concerned herein fall? In our opinion, it falls under
Page 10 of 12
Principles Nos. 3 and 4(a) mentioned above. Though the copies of the statements of two witnesses (Kaur
Singh, Patwari and Balwant Singh) were not furnished, the respondent was permitted to peruse them and
take notes therefrom more than three days prior to their examination. Of the two witnesses, Balwant Singh
was not examined and only Kaur Singh was examined. The respondent did not raise any objection during
the enquiry that the non-furnishing of the copies of the statements is disabling him or has disabled him, as
the case may be, from effectively cross-examining the witnesses or to defend himself. The trial Court has
not found that any prejudice has resulted from the said violation. The appellate Court has no doubt said
that it has prejudiced the respondent’s case but except merely mentioning the same, it has not specified in
what manner and in what sense was the respondent prejudiced in his defence. The High Court, of course,
has not referred to the aspect of prejudice at all.”
Wherever the Court is justifying a denial of natural justice, it must take care that its decision is not described as a
“preconceived view” or one in substitution of the view of the authority who would have considered the
explanation.287
238 State Bank of Patiala v S.K. Sharma, (1996) 3 SCC 364, 376-91 (paras 13 to 34) : AIR 1996 SC 1669, per Jeevan
Reddy, J.
239 Ridge v Baldwin, 1964 AC 40 : (1963) 2 All ER 66 : (1963) 2 WLR 935.
240 Wood v Woad, (1874) LR 9 Exch 190 : 43 LJ Ex 153 : 30 LT 815.
241 It is in this context, it was observed that it is not open to an authority which has not given a notice or hearing to the
affected person to say that even if it had given such an opportunity, the affected person had nothing worthwhile to say
or that the result would not have been different even if such a notice or hearing was given. Of course, no definite
opinion was expressed on this aspect in Ridge v Baldwin, as pointed out by the Privy Council in Maradana Mosque
Trustees v Mahmud, (1967) 1 AC 13, 24 : (1966) 1 All ER 545 : (1966) 2 WLR 921 (PC).
242 M. Vasudevasn Pillai v City Council of Singapore, (1968) 1 WLR 1278.
244 Calvin v Carr, 1980 AC 574 : (1979) 2 All ER 440 : (1979) 2 WLR 755, PC. Calvin v Carr was a case where the first
contention of the plaintiff was that since the decision against him was arrived at in violation of the principle of natural
justice, it was void and no appeal lay against an order which was void.
“A condition precedent, it was said, of an appeal was the existence of a real, even though voidable, decision.”
The Privy Council dealt with the argument in the following words:
“This argument led necessarily into the difficult area of what is void and what is voidable, as to which some confusion
exists in the authorities. Their Lordships’ opinion would be, if it became necessary to fix on one or other of these
expressions, that a decision made contrary to natural justice is void, but that, until it is so declared by a competent body
or Court, it may have some effect, or existence, in law. This conditions might be better expressed by saying that the
decision is invalid or vitiated. In the present context, where the question is whether an appeal lies, the impugned
decision cannot be considered as totally void, in the sense of being legally non-existent. So to hold would be wholly
unreal.”
245 Al Mehdawi v Secretary of State for the Home Department, (1990) 1 AC 876.
246 This reminds us of what the Supreme Court of Canada said with respect to the meaning of the words “principles of
fundamental justice”. Section 7 of the Canadian Charter of Rights and Freedoms, 1982 declares “everyone has the
right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the
principles of fundamental justice”. In R v Beare, (1988) 2 SCR 387 (SC) (Can), the Supreme Court of Canada while
interpreting the words “principles of fundamental justice” said that it “guarantees fair procedure but does not guarantee
the most favourable procedure that can possibly be imagined”. Also see Grewal v Canada, (1992) 1 Can FCR 581.
247 Malloch v Aberdeen Corporation, (1971) 2 All ER 1278 : (1971) 1 WLR 1578, HL.
248 R. v Secretary of State for Transport, ex p Gwent County Council, (1987) 1 All ER 161, CA.
249 Bushell v Secretary of State for Environment, 1981 AC 75 : (1980) 2 All ER 608 : (1980) 3 WLR 22, HL.
250 Calvin v Carr, 1980 AC 574 : (1979) 2 All ER 444 : (1979) 2 WLR 755, PC.
251 Vasudevan Pillai, (1968) 1 WLR 1278.
252 State of UP v Mohd. Nooh, AIR 1958 SC 86 : 1958 SCR 595.
Page 11 of 12
253 Jankinath Sarangi v State of Orissa, (1969) 3 SCC 392.

254 State of Bombay v Narul Latif Khan, AIR 1966 SC 269 : (1965) 3 SCR 135 : (1966) 2 LLJ 595.
255 State of UP v C.S. Sharma, AIR 1968 SC 158 : (1967) 3 SCR 848 : (1969) 1 LLJ 509.
256 UOI v T.R. Varma, AIR 1957 SC 882 : 1958 SCR 499 : (1958) 2 LLJ 259.
257 Chintapalli Agency Taluk Arrack Sales Cooperative Society Ltd. v Secy. (Food and Agriculture) Government of AP, AIR
1977 SC 2313 : (1977) 4 SCC 337.
258 S.L. Kapoor v Jagmohan, AIR 1981 SC 136 : (1980) 4 SCC 379 : (1981) 1 SCR 746.
260 S.L. Kapoor case, AIR 1981 SC 136 : (1980) 4 SCC 379 : (1981) 1 SCR 746.
262 S.L. Kapoor, AIR 1981 SC 136 : (1980) 4 SCC 379 : (1981) 1 SCR 746.
263 Hira Nath Mishra v Principal, Rajendra Medical College, AIR 1973 SC 2114 : (1973) 1 SCC 805.
264 K.L. Tripathi v State Bank of India, AIR 1984 SC 273 : (1984) 1 SCC 43 : 1984 SCC (L&S) 62.
265 The very same test is applied by a three-Judge Bench in Sunil Kumar Banerjee v State of WB, AIR 1980 SC 1170 :
(1980) 3 SCC 304 : 1980 SCC (L&S) 369 : (1980) 3 SCR 179.
266 Managing Director, ECIL v B. Karunakar, AIR 1994 SC 1074 : (1993) 4 SCC 727 : 1993 SCC (L&S) 1184 : (1993) 25
ATC 704.
267 UOI v Mohd. Ramzan Khan, AIR 1991 SC 471 : (1991) 1 SCC 588 : 1991 SCC (L&S) 612 : (1991) 16 ATC 505.
268 The decision in State of Orissa v Binapani Dei (Dr.), AIR 1967 SC 1269 : (1967) 2 SCR 625 : (1967) 2 LLJ 266, it is
obvious, has to be read subject to this decision.
269 C.B. Gautam v UOI, (1993) 1 SCC 78.
270 Russell v Duke of Norfolk, (1949) 1 All ER 109 : 65 TLRN 225.
271 Mohinder Singh Gill v Chief Election Commissioner, AIR 1978 SC 851 : (1978) 1 SCC 405 : (1978) 2 SCR 272.
272 A.K. Roy v UOI, AIR 1982 SC 710 : (1982) 1 SCC 271 : 1982 SCC (Cri) 152.
273 Swadeshi Cotton Mills v UOI, AIR 1981 SC 818 : (1981) 1 SCC 664.
274 A.K. Kraipak v UOI, AIR 1970 SC 150 : (1969) 2 SCC 262.
275 Council of Civil Service Unions v Minister for the Civil Service, (1984) 3 All ER 935 : (1984) 3 WLR 1174 : 1985 AC 374,
HL.
276 Liberty Oil Mills v UOI, (1984) 3 SCC 465.
278 Calvin v Carr, 1980 AC 574 : (1979) 2 All ER 440 : (1979) 2 WLR 755, PC.
279 Managing Director, ECIL v B. Karunakar, AIR 1994 SC 1074 : (1993) 4 SCC 727 : 1993 SCC (L&S) 1184 : (1993) 25
ATC 704.
280 K.L. Tripathi v State Bank of India, AIR 1984 SC 273 : (1984) 1 SCC 43 : 1984 SCC (L&S) 62.
281 Managing Director, ECIL Hyderabad v B. Karunakar, AIR 1994 SC 1074 : (1993) 4 SCC 727 : 1993 SCC (L&S) 1184 :
(1993) 25 ATC 704.
282 See the discussion of this aspect at p. 515 of Wade: Administrative Law (7the Edn.). In particular, he refers to the
speech of Lord Scarman in CCSU v Minister for the Civil Service, (1984) 3 All ER 935 : (1984) 3 WLR 1174 : 1985 AC
374 at 407, where he used both these concepts as signifying the same thing.
283 Dhirendra Nath Gorai v Sudhir Chandra Ghosh, AIR 1964 SC 1300 : (1964) 6 SCR 1001.
284 Krishan Lal v State of J&K, (1994) 4 SCC 422 : 1994 SCC (L&S) 885 : (1994) 27 ATC 590.
(1993) 25 ATC 704.
(1993) 25 ATC 704.
287 Aligarh Muslim University v Mansoor Ali Khan, AIR 2000 SC 2783 : (2000) 7 SCC 529, 542 (para 34).
Page 12 of 12
End of Document
12.9 Audi Alteram Partem
JUSTICE
12.9 Audi Alteram Partem

The basic requirement of this maxim is that each party must have a reasonable notice of the case he has to meet;
and he must be given an opportunity of stating his case and answering (if he can) any arguments put forward
against it. This requirement of natural justice applies to all statutory functions i.e. administrative judicial or quasi-
judicial, because where holders of powers have been assigned duty to decide the rights of the individuals, those
likely to be affected must be given opportunity of having their say. This is a procedural propriety. The maxim covers
various forms of unfairness such as going back on an assurance, giving misleading advice, of the unreasonable
manner in which decision is reached. In this very developing field of law, the Courts are now prepared to apply the
doctrine of legitimate expectation where public bodies might have so acted that it would be unfair to go back on the
decision challenged.
For the detailed discussion of the subject see O. Hood Phillips and Jackson on Constitutional and Administrative
Law.288
288 O. Hood Phillips and Jackson, Constitutional and Administrative Law, 8th Edn., paras 31-016 to 018, pp. 708 to 711.
End of Document
47.1 Introductory
Principles of Administrative Law, 9th Edn (2 Vols) > CHAPTER XLVII RIGHT TO INFORMATION
CHAPTER XLVII RIGHT TO INFORMATION
47.1 Introductory
This is a topic of growing importance in Administrative Law. Significant progress has been made towards the goal of
open government in recent years in the USA, Australia and New Zealand. A mass of literature has accumulated
around this topic. It is therefore worthwhile to include a brief discussion of this topic in this book.
In democratic countries, at the present moment, the accent is on open government.1 Of course, there are quite a
few things which must be kept confidential in the interest of public security or national interest. Sometimes the law
may impose secrecy in the interest of the individual. But then the secrecy ought not to be more than what is
absolutely necessary. In this area, what is necessary is to draw a balance between ‘secrecy’ and ‘openness’ with an
accent on the latter. There are many reasons suggesting an open government. Participation in government by the
people is regarded as an important aspect of democracy and people cannot participate unless they have
information as to what is going on in the country. A modern democratic state being answerable to the people, the
people are entitled to know what policies and programmes, how, and why, are being followed by the government.
People have to pass verdict every five years on the performance of the government, and decide whether it should
stay in office or not. People cannot exercise their choice intelligently unless they are given adequate information
about the functioning of the government. Another factor justifying openness by the government is that being an
activist entity, government gathers a vast arsenal of powers in a welfare state—as has been described in the
previous pages. These powers are used to affect economic interests and personal liberty of the individual. It is
important that these powers are exercised for public good, not improperly, and for the purposes for which the
powers are conferred. This objective is best ensured by giving access to the individual to governmental information
and not shroud in secrecy as to how the government exercises its powers in individual cases. Since power tends to
corrupt, and absolute power tends to corrupt absolutely, there is an inherent danger that the vast powers available
to the executive may be used not for public good but for private gain, or for corrupt motive. It is therefore essential
that the people have as much information about government operations as possible. Openness in government is
bound to act as a powerful check on the abuse or misuse of power by the Government. It has already been
emphasized earlier that there should be public consultation in the exercise of legislative powers by the government.
This idea has to be made applicable to the whole gamut of governmental functioning. As Schwartz emphasizes:
“Americans firmly believe in the healthy effects of publicity and have a strong antipathy to the inherent
secretiveness of government agencies.”2 In India, so far, the progress towards open government has been rather
tardy. But the consciousness is there. As Bhagwati J. advised in S.P. Gupta v President of India: “Open government
is the new democratic culture of an open society towards which every liberal democracy is moving and our country
should be no exception.”3
This approach is depicted by a British case Attorney General v Jonathan Cape Ltd.4 An action was brought for
injunction to restrain the publication of the political diaries of the late Richards Crossman who was a cabinet
minister in the Labour Government of 1964 to 1970. The plea was that the publication of the diaries would reveal
the cabinet secrets and infringe the principle of collective responsibility of the government. Lord Widgery, CJ
accepted the proposition that when a cabinet minister receives information in confidence the improper publication of
such information can be restrained by the court. Collective responsibility was held to be “an established feature of
the English form of government” and that “some matters leading up to a cabinet decision may be regarded as
confidential”. But, in the instant case, injunction was refused against publication of the materials in question as they
were about ten years old and no longer required protection in public interest. The court emphasized that it should
intervene “only in the clearest of cases where the continuing confidentiality of the material can be demonstrated.”
Page 2 of 2
47.1 Introductory
Reference may also be made in this connection to an Australian case Commonwealth of Australia v John Fairfax
and Sons Ltd.5 Two journalists had obtained a number of foreign office cables and memoranda covering several
matters like Indonesia, East Timor, Anzus defence treaty. The government applied for an injunction to prohibit
publication of the materials on the ground of breach of confidentiality. Mason J. said in this connection:
“But it can scarcely be a relevant detriment to the government that publication of material concerning its actions will merely
expose it to public discussion and criticism. It is unacceptable in our democratic society that there should be a restraint on
the publication of information relating to the government where the only vice of that information is that it enables the public
to discuss and criticise government action”.
Mason J. also said:
“……the court will determine the government’s claim to confidentiality by reference to the public interest. Unless disclosure
is likely to injure the public interest it will not be protected. The court will not prevent the publication of information which
merely throws light on the past workings of government, even if it be not public property, so long as it does not prejudice the
community in other respects. Then disclosure will itself serve the public interest in keeping the community informed and in
promoting the discussion of public affairs. If, however, it appears that disclosure will be inimical to the public interest
because national security, relations with foreign countries or the ordinary business of government will be prejudiced,
disclosure will be restrained.”
There are several aspects of open government, e.g. (1) Presentation of documents by the government in the court
in the course of some litigation, (2) Official Secrecy; and (3) Access to Information. People’s right to know has two
aspects: (1) How far government should use criminal sanction to deter free flow of information? (2) How far
government is under a positive obligation to make available, on demand, information to the people not in the
prohibited category.
1 For materials on this topic see: Campbell, Public Access to Government Documents, 41 Aust. L.J. 73 (1967-68); N.T.
Chaturvedi (ed.), Secrecy in Government (1980); Galnoor, Government Secrecy in Democracies (1977); Rowat,
Administrative Secrecy in Developed Countries (1979): ILJ Official Secrecy and the Press (1982); Franks Committee,
Report on Official Secrets Act (U.K., 1972); Eagles, Cabinet Secrets as Evidence, 1980 Pub. Law 262, 268: R. Wraith,
Open Government (1977).
2 Administrative Law, 129 (1984).
3 S.P. Gupta v President of India, AIR 1982 SC 149, 234 : 1981 Supp SCC 87.
4 Attorney General v Jonathan Cape Ltd., (1975) 3 All ER 485. For comments on the case see, M.N. Bryan, The
Crossman Diaries—Developments in the Law of Breach of Confidence, 92 LQR 180 (1976).
5 Commonwealth of Australia v John Fairfax and Sons Ltd., (1981) 147 CLR 39, 52.
End of Document
47.2 Presentation of Documents in the Court
47.2 Presentation of Documents in the Court

It has been seen that in course of time, the courts have loosened the government privilege not to produce
unpublished documents in the court in the course of a court proceeding against it. Since the writing of the aforesaid
piece, one or two aspects of the government reluctance from making public certain secret documents have come to
light. These may be mentioned here.
One significant judicial pronouncement to be noted here is Khatri.6 A writ petition was brought in the Supreme Court
under article 32 by certain under-trials for enforcement of their fundamental right under article 21 on the allegation
that they were blinded by the police officer whilst in police custody. The court called for production of certain
documents by the state. The state objected to the production of these documents on the ground that they were
protected by sections 162 and 172 of the Criminal Procedure Code and that the petitions were not entitled to see
them or to make any use of them in these proceedings. The court considered the point in Khatri v State of Bihar.7
The court held that section 162 has no application in a proceeding under article 32 or 226. Section 162 has been
enacted for the benefit of the accused.8 A writ petition for enforcement of fundamental rights under article 21 is
neither an “inquiry” nor a “trial” in respect of any offence and so section 162 cannot be invoked by the state.
“...[E]ven a statement made before a police officer during investigation can be produced and used in evidence in a
writ petition under article 32 provided it is relevant under the Indian Evidence Act and section 162 cannot be urged
as a bar against its production or use.” Similarly, the bar placed by section 172 operates only in an inquiry or trial for
an offence and can have no application in proceedings under article 32 or 226. Accordingly, the court directed the
production of the documents in question.
6 Khatri v State of Bihar, AIR 1981 SC 1068 : (1981) 2 SCC 493.

7 Khatri v State of Bihar, AIR 1981 SC 1068 : (1981) 2 SCC 493.
8 Tahsildar Singh v State of Uttar Pradesh, AIR 1959 SC 1012 : 1959 Supp (2) SCR 875.
End of Document
47.3 Official Secrecy

47.3.1 The Official Secrets Act, 1923
To provide for protection of official secrets in India, Indian Official Secrets Act, 1889 was enacted and was amended
by the Indian Official Secrets (Amendment) Act, 1904. Later on Official Secrets Act, 1911 was brought into force in
India. It was recognized with passage of time that it is unsatisfactory to have two separate laws simultaneously in
force in India. The need was felt to consolidate the law. Accordingly, Indian Official Secrets bill was passed by the
Legislature, which received its assent on 2 April 1923.
The Official Secrets Act, 1923 deals with two aspects-(i) espionage or spying activity and (ii) disclosure of other
secret official information. The former is dealt with by section 3 and the latter by section 5. Section 3 is not relevant
for our discussion here. Section 5 is more relevant and important for our purposes.9 The provisions of section 5 may
be analysed under the following heads.
47.3.1.1 Persons in possession of official information
The coverage of persons having possession of official information who are liable under the section is extremely
wide. It includes the following:
(a) Any person in possession or control of secret official information.

(b) Any person obtaining information in contravention of this Act.
(c) Any person to whom official information has been entrusted in confidence by any person holding office
under the government.
(d) Any person obtaining or having access to information owing to his holding any office (present or past), or
holding any government contract, or any person holding office under any of these persons.
47.3.1.2 Persons receiving the information
Not only is the person communicating the information guilty of an offence under section 5, but also the person
receiving it. It applies not only to government servants but also to all persons who have obtained the secret
information in contravention of the
Act. Under section 5(2), any person to whom secret official information has been communicated in contravention of
the Act, in other words, a person who is not a person being in lawful possession of the secret information commits
an offence by the mere fact of receipt of the same. An offence is also committed if the person receiving secret
information from a public officer further communicates it to another person.
47.3.1.3 The Secret Information
The official information covered by the section is also extremely broad. Any kind of information is covered provided
it is “secret”. This includes any official code, pass word, sketch, plan, model, article, note, document or information.
The only qualification is that it should be “secret”. Nowhere the word “secret” or words “official secrets” are defined
in the Act. The word “secret” in the Clause (c) of section 3(1) of the Act qualifies official code or password and
sketch, plan, model article or mode or other document or information. This is clear from the comma and the word
“or” which comes after the word “password”. This interpretation also receives support from sub-section 2 of section
Page 2 of 14
3.10 However, one thing is clear: the Act extends only to official secrets and not to secrets of a private nature. Thus,
the Act extends to secrets of a ministry or department of the government, but not to an incorporated body like a
university, government company or public corporation.
In the absence of any definition in the Act, it is for the government to decide what it should treat as secret and what
not. But does the government have an unquestioned right to decide what information it would classify as secret and
so keep it away from the public? Will any information classified as secret be “official secrets” and would be caught
by the Act? It appears from the cases mentioned below that the government does not seem to be the sole judge of
the matter and that the courts can review the decision of the government. The practice of the government is to treat
an information secret, even though there may be no danger to national security or public safety or any other public
interest, merely because it may embarrass the government, that is, the political party in power.
The newspaper Blitz published an article inviting the public to send in official secrets to the editor for which a lavish
payment was promised. The question was whether such an article would fall under section 5(1) of the Official
Secrets Act. The Bombay High Court ruled in R.K Karanjia v Emperor,11 that the said article would fall under section
5(1) of the Official Secrets Act. The court said that the expression “official secrets” was nowhere defined, “but
looking to the purpose and scheme of the Official Secrets Act, especially Ss. 3 to 10, which create offences against
the government for publication of official secrets, they have all reference to secrets of one or the other department
of the Government or the State and not to any secret of a private office.” A secret pertaining to any private office,
e.g., University or a corporation, would not be called an official secret. The court refused to accept the contention
that the term “official secret” used in the said article included secrets of any private institution. Referring to section
5(1) of the Official Secrets Act, the court characterised the provision as “very comprehensive in its nature” and “it
applies not merely to Government servants but also to all persons who have obtained that secret in contravention of
this Act.” The invitation to the public to send official secrets would fall under section 5(1) as “it is really an invitation
encouraging or inciting any person to commit an offence.” The court said that it was not concerned with the
intention or the motive underlying the article in question “but only with the direct or indirect tendency of the words
used in the article itself,” and in the court’s opinion that tendency was “to encourage or incite any person to commit
an offence.”
In State v K. Balakrishna,12 certain parts of the budget were published in a newspaper before the presentation of
the budget. It was held that the budget being a secret document of the government, the reception and publication
thereof fell within the mischief of section 5(2) and section 5(1)(b) of the Official Secrets Act. Although there is no
written rule declaring budget papers before being presented in the legislature as secret documents, on a
consideration of the views expressed in constitutional law books and the statements made by several witnesses,
there can be no doubt that the budget papers are usually treated as highly confidential before these are presented
to the legislature. The budget papers are “official secrets” and that it would amount to an offence under sections
5(2) and 5(1)(b) of the Official Secrets Act to publish them before they are actually presented to the Legislature. The
court also said that it was not a mere technical offence’ but a “serious offence which might have far reaching
consequences and repercussions on the economy of the State.”
In Nandlal More v The State,13 the Punjab High Court again considered the question of the premature leakage of
budget information. This was held to be an offence under the Official Secrets Act. The court rejected the argument
that the Budget proposals cannot be regarded as “official secrets” as they have to be made public after some time.
According to the court, “the fact that on a subsequent date the budget proposals have to be made public would not
detract from the secrecy of those proposals till such time as they are announced in Parliament.”
47.3.1.4 The disclosure of secret government information
A literal reading of section 5 indicated that disclosure of any kind of secret information will attract prosecution under
the Act whatever be the purpose or its impact. Even if disclosure is justified in public interest the person or persons
concerned will be liable to an action under the Act. Section 5(1)(a) uses blanket language by making punishable
“wilful communication” of any official secret to any person, other than a person to whom he is authorised to
communicate it, or a Court of Justice or a person to whom it is, in the interests of the State, his duty to communicate
it. There are no exceptions like communication in public interest, etc. Everything is punishable whether national
security or any other interest worth protecting is endangered or not. The section gives carte blanche to the
executive to prosecute anyone disclosing official information or, as per section 5(2), any person voluntarily receiving
such information knowing or having reasonable ground to believe that such information is being given to him in
contravention of the Act.
These provisions are harsh and the only redeeming feature is that mens rea, or the mental element, is the
necessary ingredient of an offence under the provisions, for the words used are “wilfully,” “voluntarily,” “knowing” or
Page 3 of 14
“having reasonable ground to believe.” Thus a mere “leak”, unless it was intentional or wilful, will not be covered by
the Act. The burden is on the government to prove mens rea as in the case of any other offence. In a department
where a matter or an information is handled by different persons it may be difficult to prove mens rea or fix
responsibility on any one for the leakage. This does provide some kind of safeguard to an individual against the
harshness of the law.
47.3.1.5 Punishment under Section 5
The Act by itself does not classify punishments according to the degree or the nature of harm caused by the
disclosure of secret information. There is a blanket provision which says that a person guilty of an offence under the
section shall be punishable with imprisonment which may extend to three years, or with fine, or with both. Thus, it is
a matter of judicial discretion to fix punishment in an individual case, subject to the maximum laid down in the
section, keeping in view the circumstances of the case and the degree of harm caused to the nation.
According to section 13(3) of the Official Secrets Act, no court can take cognizance of any offence under the Act
unless upon complaint made by order of, or under authority from, the appropriate government or some officer
empowered by the appropriate government in this behalf. This executive control over prosecutions under the Act
makes such a drastic law tolerable in practice.
It can be seen that the provisions of section 5 are so general, wide and obscure that everything connected with the
government could be brought within its fold. This omni-bus and “catch-all” provision is neither fair nor purposeful. In
a democracy some information must be revealed to the public to ensure good and proper government. Section 5
makes a criminal offence of all unauthorised disclosure of information from official sources, regardless of the
consideration whether the public interest really demands secrecy.
Literally read, it is the “disclosure” which is punishable and not the purpose of disclosure or prejudicial effect on
certain interest deserving of protection in the national interest. Both the person communicating, and the person
receiving official information, are guilty of an offence under the Act. If literally read and strictly applied, there will be
daily innumerable prosecutions of the press, completely hampering its work. Fortunately, however, this does not
happen. What makes the statute bearable is its extremely rare use by the government. But the threat for its use is
always there. The Franks Committee has stated that section 2 of the English Act is rarely activated in the court
room, but is seen by many as having a pervasive influence on the work and the behaviour of hundreds of
thousands of people.
47.3.2 Secrecy in Government of India: Government Practice
The normal rule in the Government of India is secrecy, and openness is an exception. Government papers and
documents are divided into two categories, namely, “non-classified” and “classified”. Greater secrecy is to be
observed in the case of the latter. The classified documents are divided into four categories, namely, “top secret”,
“secret”, “confidential,” and “personal—not for publication.” The “top secret” grading is given to information of a vital
nature affecting national security such as military secrets, matters of high international policy, intelligence reports,
etc. The “secret” marking is given to papers of information which is likely to endanger national security or cause
injury to the interests or prestige of the nation or would cause serious embarrassment to the government either
within the country or in its relations with foreign nations. The word “confidential” pertains to information whose
disclosure would be prejudicial to the interest of the nation or given advantage to a foreign nation or even cause
administrative embarrassment. “Personal—not for publication” is meant for cases where the information is fit for
communication to the individual members of the public, but it is desired that the information given to an individual is
not meant for publication. These are arbitrary divisions without having any legal sanction. What is marked, and how
it is marked, are matters within the prerogative of the government. It is also not clear whether there is any
procedure to reconsider the classification of documents. So, the initial classification lingers on long after the
document has ceased to be important.
As regards “non-classified” papers, the rule is that no official is to communicate any information to anyone which
has come into his possession in the course of his official duties, unless so authorised by general or special orders.
Similarly, note portions of a file referred by one department to another are to be treated as confidential.
A government servant under the civil service rules is under an obligation not to disclose to anyone including a fellow
government servant any information acquired by him during the course of his official duties. This is provided by rule
8 of the Central Civil Service (Conduct) Rules, 1955. A violation of this rule will subject the civil servant to
disciplinary action, apart from punishment under any other law, e.g., the Official Secrets Act, 1923.14
The extent of the secrecy in government will be clear from one instance. Under article 77 of the Constitution, the
President has to make rules for the more convenient transaction of the business of the Government of India and for
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the allocation amongst ministers of the said business.15 Under this article, the President has framed the Transaction
of Business Rules and the Government of India (Allocation of Business) Rules, 1961 which are also known as the
Rules of Business. The allocation rules were published till 1973 and were available to the public but these are now
treated as confidential. These rules mention the items of business allotted to each ministry or department of the
Government of India. The Rules of Business which provide for the exercise of powers vested in the Government of
India have always been treated as confidential by the government, and are not accessible to the public. However,
these rules have been supplied by the government to the courts as and when the question has arisen whether or
not the power was discharged by an authorised officer.16 It is somewhat illogical that though the President makes
these rules under the Constitution, yet they are treated as confidential without the Constitution explicitly giving any
confidentiality to them. In treating these rules as confidential the government intends to cover up its own
irregularities and deficiencies rather than protect, even remotely, any public interest.
There are innumerable instances when the most trivial matters are treated as secret which do not serve any interest
of the nation except perhaps saving the government from embarrassment. The reports of various enquiry
committees and commissions (like plane crashes or accidents) are treated as secret.17 Even the recommendations
made by the Interdepartmental study group, set up by the Government of India in 1977, to look into the Official
Secrets Act, 1923, have been treated as confidential. Printed Office manuals are kept secret.
The Official Secrets Act, 1923, uses criminal sanctions to suppress communication of official secrets.
47.3.3 Right to Information in India
Even prior to enactment of Legislation Securing Freedom of information, the Supreme Court by a liberal
interpretation deduced the right to know and access information on the reasoning that concept of an open
government is the direct result from right to know which is implicit in the right of Free Speech and expression
guaranteed under article 19(1)(a) of the Constitution.18
The need to enact a law on right to information in India was recognized unanimously by the Chief Ministers
Conference on ‘effective and responsive government’ held on 24 May 1997. The Parliamentary Standing
Committee on Home Affairs in its 38th report recommended that Government should take measures for enactment
of such legislation. In order to make the government more transparent and accountable to public the Government of
India appointed a working group on Right to Information and promotion of open of transparent government. The
working group submitted draft of Freedom to Information Bill to the government and also recommended suitable
amendments to Civil Service (Conduct) Rules with a view to bring them in harmony with the proposed Bill. The
Government of India considered the draft Bill and subsequently the Freedom to Information Act, 2002 was enacted
which received assent of the President on 6 January 2003.
In order to ensure greater and more effective access to information, Government of India later felt that the Freedom
of Information Act, 2002 must be made more progressive, participatory and meaningful. On this issue National
Advisory Council suggested number of change. In view of number of changes suggested by National Advisory
Council it was decided to repeal the Freedom of Information Act, 2002 which was not brought into force and to
enact another law for providing an effective framework for effectuating the right of information recognized under
article 19 of Constitution of India.
Accordingly the Right to Information Act, 2005 was enacted to radically alter the administrative ethos and culture of
secrecy and control, the legacy of colonial era and bring in a new era of transparency and accountability in
governance.19 The Act is meant to harmonise the conflicting interests of Government to preserve the confidentiality
of sensitive information with the right of citizens to know the functioning of the governmental process in such a way
as to preserve the paramountcy of the democratic ideal.20 As declared in the long title it is “an Act to provide for
setting out the practical regime of right to Information for citizens to secure access to information under the control
of Public authorities in order to promote transparency and accountability in the working of every public authority, the
constitution of a Central Information Commission and State Information Commission and for matter connected
therein”. Section 3 of the Act provides that subject to provisions of the Act all citizens shall have right to information.
Section 4 of the Act casts an obligation on public authority to maintain all its record and to publish within one
hundred twenty days from the date of enactment of this Act, the particulars mentioned in section 4(1)(b).
Section 5 enjoins the duty on every public authority to designate as many officers as Central Public Officers and as
State Public Officer as the case may be, in all administration or offices under it as may be necessary to provide
information to persons requesting for under the Act. Further, the authority is required to designate Central Assistant
Public Information Officer and State Assistant Public Information Officer at the sub-divisional or sub-district level.
Section 6 deals with request for obtaining information. Section 6 provides that an applicant making request for
information shall not be required to give reasons and any other personal details except those that may be
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necessary for contacting him. Section 7 deals with disposal of request. Under section 7(1) the Central Public
Information Officer or State Public Information Officer has to provide information within a period of thirty days or to
reject the same for any of the reasons specified in section 8 and 9. Proviso to section 7(1) provides that where the
information sought for concerns with life and liberty of person, the same shall be provided within 48 hours from the
date of receipt of request. Section 8 deals with exemption from disclosure of information.
Section 8 of the Act of 2005 has a more elaborate exemption clause than that of the Act of 2002. In addition, the Act
of 2005 also provides the Second Schedule which enumerates the intelligence and security organizations
established by the Central Government to which the Act of 2005 shall not apply in terms of section 24.21 It has been
held that the details disclosed by a person in his income tax returns are ‘personal information’ which stand
exempted from disclosure under Cl (j) of section 8(1) of the RTI Act, unless involves a larger public interest which
justifies the disclosure of such information.22 Section 9 enumerates certain grounds on which request for information
may be rejected. Section 11 deals with third party information. Section 12 provides for constitution of Central
Information Commission whereas section 15 deals with constitution of State Information Commission. Section 18
deals with powers and functions of Commission. Section 19 confers a right to appeal on a person against the
decision of Central Public Information Officer and State Public Information Officer. Section 20 deals and penalties.
While emphasizing the need that provisions of Right to Information Act, 2005 cannot be permitted to be misused
against judicial officers, the Supreme Court in the case of Khanapuram Gandaiah v Administrative Officer,23
observed that a judicial officer is entitled to get protection and the object of the same is not to protect malicious or
corrupt Judges, but to protect the public from the dangers to which the administration of justice would be exposed if
the judicial officers concerned were subject to inquiry as to malice, or to litigation with those whom their decisions
might offend. If anything is done contrary to this, it would certainly affect the independence of the judiciary.
Independence of Judiciary forms a part of basic structure of the Constitution of India. The independence of
Judiciary and the fundamental right to free speech and expression are of a great value and both of them are
required to be balanced.24
In the case of Tirpur Dyeing Factory Owners Association v Noyyal River Ayacutdars Protection Ass., it was held
that the right to information and community participation for protection of environment and human health is also a
right which flows from article 21.25
Full bench of the Delhi High Court dealt with fundamental questions of law with regard to the scope and applicability
of the Right to Information Act, 2005 with specific reference to the declarations of assets of the judges of the High
Courts and Supreme Court. A citizen submitted an application to the Central Public Information Officer of the
Supreme Court of India making a two-fold request (i) To furnish a copy of the 1997 resolution of the Full Court of
the Supreme Court, and
(ii) Information on any such declaration of assets etc. ever filed by Hon’ble Judges of the Supreme Court and further
information if High Court Judges are submitting declaration about their assets etc. to respective Chief Justices in
States.
The first request was granted by the Central Public Information Officer of the Supreme Court of India and copy of
the resolution was made available. However, the Central Public Information Officer of the Supreme Court of India
vide order dated 30-09-2007 declined to supply the information under the second head. The aforesaid order was
challenged before the Single Bench of the Delhi High Court. It was held by the learned Single Judge that such
personal information regarding asset disclosure need not be made public, unless public interest consideration
dictates it, under section 8(1)(j) of the Act. The aforesaid view was approved by the Full Bench of the Delhi High
Court in the case of Secretary General, Supreme Court of India v Subhash Chandra Agrawal,26 However, full court
of the Supreme Court resolved to place the information on the court website. Similarly, almost all the High Courts
have resolved to make public the information about the declaration of assets of the judges.
The Government wanted to amend the Act to exclude from the Act notings in files but due to general opposition to
the proposed change the move was dropped for the time being.
47.3.4 Position in England regarding Official secrets
The existing law in England on the question of criminal liability for disclosure of official secrets is similar to India.
The Indian Act is modelled on the English Act of 1911. The English Act is said to have been conceived in hysteria
when England faced the prospects of a great war and the major countries were engaged in re-armament. It seeks
to make everything secret, even those matters which should not be secret. Section 2 of the British Official Secrets
Act concerns with leakages of official information in such a wide range of situations that, according to one
calculation, the provision could give rise to 2000 differently worded charges. Section 2 makes it a crime, without any
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defence, “to report the number of cups of tea consumed per week in a government department...” The Act contains
no limitation as to materiality, substance or public interest.27 But, in England, the law has been reviewed by the
Franks Committee and in its report a general dissatisfaction with the Act has been expressed.28 The committee has
suggested the substitution of section 2 of the English Act with other more specific provisions. The committee has
described section 2 as:
“... (having) extensive ramifications, section 2 is short but it is in very wide terms and is highly condensed. It covers a great
deal of ground and it creates a considerable number of different offences. According to one calculation over 2000 differently
worded charges can be brought under it. It is obscurely drafted and to this day legal doubts remain on some important
points of interpretation...”
The Franks Committee commented further on this section:
“... leading characteristic of this offence is its catch-all quality. It catches all official documents and information of kind and
no distinction of degree. A blanket is thrown over everything; nothing escapes.”
The committee thought that the “distinction between espionage and leakage—that is, between those who intend to
help an enemy and those who disclose information with no such intention—is important and such a distinction
should be reflected in the structure of the law. Section 2 (which is equivalent to section 5 in India) in the Official
Secrets Act obscures such a distinction. The committee accordingly suggested that section 2 should be replaced by
a separate statute to be known as the Official Information Act. In making recommendations as to the contents of the
section, it started with the basic premise that the criminal law should not be invoked except where there is a specific
reason for giving this special protection to the information in question. The committee recommended that the
following information should be protected by criminal sanctions: (a) Official information relating to matters which
concern or affect the defence or security of the realm; (b) Foreign relations, i.e., matters which concern or affect
foreign relations or the conduct of foreign relations. Some foreign affairs, as distinct from foreign relations between
governments, are not secret at any stage; (c) Information relating to any proposal, negotiations or decision
connected with alterations in the value of sterling, or relating to the reserves, including their extent or any movement
in or threat to them.
The proposed Act should apply to the above categories of information only on the ground that unauthorised
disclosure would cause at least serious injury to the interest of the nation. The court would not be concerned with
the effect of disclosure on the interest of the nation, but the prosecution would have to satisfy the court that the
information fell within this category. The committee suggested a few safeguards against over classification. First,
the Secretary of State should make regulations about the classifications and re-classifications of documents, which
include provisions on levels of authority at which decisions on classifications may be taken. Secondly, the minister
should review the matter himself where there is an allegation that the classified information has been disclosed
without authority before the prosecution is launched. Thirdly, there should be a non-statutory committee consisting
of government representatives and outside interests to perform two functions—to guide the Secretary of State in
making regulations and to guide the people outside whether the information in their possession is classified or not.
According to the committee, criminal sanctions should also apply to protect the following official information: (1)
Information which relates to maintenance of law and order, i.e., information which is (a) likely to be helpful in the
commission of offences; (b) likely to be helpful in facilitating an escape from legal custody or prejudicial to prison
security; and (c) likely to impeded the prevention or detection of offences or the apprehension or prosecution of
offences; (2) Cabinet proceedings and documents; (3) Information given to government by private individuals,
whether given by reason of compulsory powers or otherwise, and whether or not given on an express or implied
basis of confidence.
Further, the use or disclosure of official information for purposes of private gain should be made an offence. The
institution of prosecutions should be controlled by the Attorney-General and the Director of Public Prosecutions. In
case of ordinary offences, that is, those relating to law and order and private gain, the prosecution should be
authorised by the Director of Prosecution, but in the case of politically sensitive subjects of defence and national
security and foreign relations, authorisation should be done by the Attorney-General.
However, nothing has happened and the 1911 Act continues to exist. Thus, it remains a criminal offence in Britain
to disclose or receive a great deal of useful and innocuous public information to which a US citizen has an
enforceable legal right.29
The curious case of Ponting which recently occurred in England can be mentioned here. Clive Ponting, an
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employee of the British Government, was accused of breaking secrecy law by giving sensitive documents relating
to the 1982 Falklands War to an opposition politician. The British Navy had sunk an Argentinian cruiser during the
war resulting in a great loss of life. The Government had asserted that the cruiser was sunk because it was going to
attack the British ships. The documents leaked by Ponting showed, on the other hand, that it was heading for home
for several hours when it was sunk. Thus, the documents in question showed that the Government had suppressed
facts. Ponting was prosecuted under the secrecy law but the jury acquitted him. Accused under the 1911 law of
passing information to an unauthorized person, Ponting asserted that he had obeyed a higher duty to the public
because he thought that Ministers were hiding the truth. The burden of Ponting’s case was that Ministers misled
Parliament to protect the reputation of the government as well as their own. A special factor in the fact situation was
that the document in question was not ‘classified’ and that Ponting had not made the disclosure with a view to any
personal advantage. It is also clear from Ponting’s case that the government keeps back even from Parliament
information which may prove embarrassing to itself and thus the principle of ministerial responsibility to Parliament
is sought to be by-passed.
The Official Secrets Act, 1920, after experience of security problems during the First World War was designed to
enact for the peace time. In the year 1989, the Parliament enacted Official Secrets Act, 1989. The 1989 Act
substituted the widely drawn section 2 of 1911 Act by enacting specific categories of official information and
providing offence in connection with disposing information or other articles in respect of each category.
47.3.5 Access to information in UK
The Local Government (Access) to Information Act, 1985 enforced a statutory duty on local authority to disclose
information. In the year 1994 the Government issued a code of Practice on access to government information,
which was revised in the year 1997. This Code was non-statutory one and a little publicized document. However the
obligation under the code was to be legally enforceable. Thereafter in the year 2000, the Freedom of Information
Act, 2000 was enacted in UK Section 1 of the Freedom of Information Act, 2000 provides a general right of access
to information held by public authorities, local authorities and a wide variety of bodies listed in schedule one. An
aspect of right to know is the right of the individual to know what information is held about him in the government
records. Parliament enacted an Act namely Data Protection Act, 1998 which replaces the 1984 Act. The Data
Protection legislation is meant to provide protection for privacy in relation to personal information. The definition of
data was amended by Freedom of Information Act, 2000 to extend to all data held by Public authority. The
parliament has also enacted Public Interest Disclosure Act, 1998 to protect the workers to disclose information in
public interest, from victimization by their employees.
47.3.6 Access to Information in USA
Amongst the common law countries, the USA has a much better tradition for open government than any other
country. One manifestation of this has been the court refusal to accept extreme claims of executive privilege so as
to allow the government, by its mere fiat, to suppress evidence required by the parties in a legal proceeding.30 The
most dramatic assertion of this principle occurred when the court rejected the claim of President Nixon to an
unreviewable privilege to withhold Watergate tapes.31
The US Constitution does not contain any specific provision for access to administrative documents but such a right
has been conferred by statutes. Originally, the Administrative Procedure Act, 1946, contained provisions for routine
disclosure of government held information. section 3 stated as a general principle that there should be free access
to documents, but there were broad exemptions from this provision. The APA attempt failed because of broad
exemptions and vagueness of the language. The APA exempted from disclosure records involving “any function of
the United States requiring secrecy in the public interest” as well as “information held confidential for good cause
found.” Furthermore, only “persons properly and directly” concerned were entitled to procure certain public records.
There was no provision for judicial review. Thus recalcitrant government officials could easily find reasons for
withholding information, notwithstanding clear congressional intent to the contrary.32
In 1966 was enacted the Freedom of Information Act (FOIA) replacing APA. The enactment of FOIA is regarded as
a “landmark event” in the history of American Administrative Law.33 It rejects the notion that the executive should
enjoy a conclusive and unchallengeable right to withhold information from the public. The FOIA entitles any one to
have access to any identifiable document as it casts a positive duty on the government to supply information as it
states unequivocally that public access to most documents is to be the general rule and no document is to be
withheld unless it falls under any of the exempted categories. On the US Freedom of information Act, 1966,
Schwartz says: “before then, the people’s ‘right to know’ was a journalistic slogan rather than a legal right. The 1966
statute changed all this, since it gave the citizen, for the first time, a legally enforceable right of access to
government files and documents. The FOIA effects a profound alteration in the position of the citizen vis-à-vis
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government. No longer is the individual seeking information from an administrative agency a mere suppliant.” As
stated by the Attorney-General, the policies underlying the Act are as follows:34
— that disclosure be the general rule, not the exception;

— that all individuals have equal rights of access;
— that the burden be on the government to justify the withholding of a document, not on the person who
requests it;
— that individuals improperly denied access to documents have a right to seek injunctive relief in the courts;
— that there be a change in government policy and attitude. The whole purpose of the Act was to reverse the
self-protective attitude of the agencies.
The exempted categories are documents—
(1)
(a) specifically authorized under criteria established by an executive order to be kept secret in the interest
of national defense or foreign policy and
(b) are in fact properly classified pursuant to such executive order;
(2) related solely to the internal personnel rules and practices of an agency;
(3) specifically exempted from disclosure by statute;
(4) trade secrets and commercial or financial information obtained from a person and privileged or confidential;
(5) inter-agency or intra-agency memorandums or letters which would not be available by law to a party other
than an agency in litigation with the agency;
(6) personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted
invasion of personal privacy,
(7) investigatory records compiled for law enforcement purposes, but only to the extent that disclosure would
harm any of the following specified interests: (a) enforcement proceedings; (b) fair trial or an impartial
adjudication; (c) personal privacy; (d) confidentiality of investigative sources; (e) techniques, procedures,
and safety of law enforcement personnel;
(8) reports prepared by, on behalf of, or for the use of an agency responsible for the regulation or supervision
or financial institutions; or
(9) geological and geophysical information and data, including maps, concerning wells.
Though the first exemption mentioned above gives power to the executive to specify documents that are to be kept
secret in the interest of national defence or foreign policy, yet the exemption applies only when the documents are
“in fact properly classified”. This gives jurisdiction to the courts to determine de nova whether an invocation of
executive privilege was justified. As Rowat says, a judge in the United States can examine “even classified
documents to see if they were properly classified or whether excised parts were legitimately blanked out to protect
national security or individuals. A department’s fear that a decision to withhold information will be overturned by the
courts is a very sobering corrective to over secretiveness. If a citizen appeals to the courts and wins his case, the
judge can now pay all of the court costs.”
The Act ensures access to governmental information and records in three broad ways: (i) publication in the Federal
Register; (ii) making available for inspection and copying certain specified information; and (iii) making available
reasonably described records on request. Firstly, each administrative agency is required to publish certain
descriptive and explanatory information in the Federal Register for the guidance of the public. The information to be
published in the Federal Register is:
(i) description of its central and field organisation and the established places at which the employees from
whom, and the methods whereby, the public may obtain information, make submittals or requests, or
obtain decisions;
(ii) statements of the general course and method (including all formal and informal procedures available) by
which its functions are channelled and determined;
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(iii) rules of procedure, description of forms available and instructions as to the scope and contents of all
papers, reports, or examinations;
(iv) substantive rules of general applicability adopted as authorized by law, and statements of general policy or
interpretations of general applicability formulated and adopted by the agency;
Secondly, the following information is to be made available for public inspection and copying:
(i) final opinions, including concurring and dissenting opinions, as well as orders, made in the adjudication of
cases;
(ii) those statements of policy and interpretations which have been adopted by the agency and are not
published in the Federal Register; and
(iii) administrative staff manuals and instructions to staff that affect a member of the public.
Thirdly, and this is of paramount importance, each agency is to make promptly available to a person upon request
for records which (a) reasonably describes such records, and (b) is made in accordance with published rules,
stating the time, place, fees (if any), and the procedures to be followed.
If the document falls under any of the above-mentioned exempted categories, the public has no right of access. In
substance, thus, the agency is to promptly make available to any person identifiable records (the obligation of the
individual is to describe these records reasonably) on request for such records. If the records are not so made
available, the individual can file a complaint before a district court. This is an important safeguard against abuse of
power by agencies. The federal district courts have jurisdiction to enjoin the agency from withholding records and to
order the production of records improperly withheld from the complainant. Under the normal rule in a court action
against actions of agencies, the presumption of validity is attached to agency acts, and the individual challenging
any such action has the onus to prove its invalidity, but under the FOIA the burden is on the agency to sustain its
action in withholding information. All that the complainant has to say is that he made a request for identifiable
records which the agency turned down. The burden then shifts to the concerned agency to justify its refusal. The
agency can discharge this burden by showing that the document falls within the exempted categories. If the record
in question does not fall within the exceptions, the court must order its production.
The court determines the matter de novo whether the records come within any of the exceptions. The court has
been expressly given power to examine the contents of such agency records in camera to determine whether such
records or any part thereof shall be withheld under any of the exemptions.
An example of the working of this Act can be seen in the case of Consumers Union v Veterans Administration.35
The Consumers Union is the largest consumer organisation in the United States. It tests commercial products and
reports its findings in its monthly magazine. In 1955, the Veterans Administration initiated a testing programme in
order to evaluate hearing aids for procurement and distribution to veterans. The VA’s policy had been to limit
access to information about the testing programme, disclosing test results to no one outside the government.
Consumers Union sought the test score but the VA refused to divulge the records. The Consumers Union then
brought action under the Freedom of Information Act. The Union started with the advantage that it did not have to
overcome the presumption in favour of the correctness of the agency’s action. The Act provides expressly that in an
action to compel production of any agency records, “the court shall determine the matter de novo and the burden
shall be upon the agency to sustain its action.” According to the court, the whole purpose of the Act “was to reverse
the protective attitude of the agencies, disclosure was made the general rule and only information specifically
exempted by the Act may now be withheld. The exemptions did not include anything like the VA’s test and the court
ordered production of the test records of the Consumers Union.
The working of the FOIA does give rise to certain problems and difficulties. The agencies receive a large number of
requests from the public. Their compliance produces problems in terms of time, personnel and costs. Some
agencies are not able to give replies within the time prescribed by the Act. The Act also gives rise to an unforeseen
problem. Business corporations use it not only to get general information from the government which would be of
value to them, but also to get information on their competitors. New business and law firms have sprung up which
specialise in this activity, and which carry appeals to the courts. Now the competitors are fighting back with what are
called ‘reverse freedom of information cases’, in which they seek a court injunction forbidding the government to
release requested documents, and the government is having greater difficulty in collecting sensitive information
from business corporations.36
On the whole, however, it appears that the American experience with the Freedom of Information Act has been
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happy. No longer does an individual seek information from an administrative agency as a mere suppliant. Rowat
concludes:
“The general opinion in the United States is that the Freedom of Information Act as amended in 1974 and supplemented by
the Privacy Act has been highly successful in meeting its objectives. Many of the difficulties that its enforcement has
created are temporary problems of implementation, and the others can be solved by further minor amendments to refine
the law. Clearly, a strong Freedom of Information Act has not, as opponents feared, seriously slowed the wheels of
government administration. Indeed, it appears to have been well accepted by most administrators, who are attempting to
implement it in good faith. Many of them even admit that its effect on the administration has been salutary, and results in
the preparation of better documents and reports. As Professor Anderson has noted, open records laws exert ‘a pervasive
preventive effect by virtue of the sobering influence of prospective public scrutiny.’37”
In 1974, a similar Act regulating government control of document which concern a citizen was enacted namely
Privacy Act, 1974. The Privacy Act furthers right of an individual for gaining access to information held by the
Government. The Privacy Act, 1974 confers on an individual : (i) The right to see records about oneself subject to
exemption, contained in Privacy Act, 1974; (ii) The right to amend the record if it is inaccurate, irrelevant untimely or
incomplete; (iii) Right to sue the government for violation of the statute including permitting others to see one’s
record unless specifically permitted by Act.
47.3.7 Access to information in Australia
The Freedom of Information Act, 1982 (FOIA) extends to all commonwealth government departments and most
authorities. It deals with three principal matters:
It requires the publication of information concerning the functions and documents of agencies and making available
for inspection and purchase of certain specified documents.
It provides for general access to documents of an agency and official ministerial documents, subject to a number of
exceptions.
The Act provides a machinery whereby a person who claims that a document of an agency or an official document
of a minister contains information relating to his personal affairs that is incorrect and can seek the amendment of
that information.38
It is the second aspect of the FOIA in which we are interested for our present purposes.
The Act begins with the denial of the theory of official secrecy. Section 3(1) asserts the right of the Australian
community to access to government information. The object of the Act is stated to be inter alia: “to extend as far as
possible the right of the Australian community to access to official information in the possession of the Government
of the Commonwealth by... creating a general right of access to information in documentary form in the possession
of Ministers, departments and public authorities, limited only by exceptions and exemptions necessary for the
protection of essential public interests...” Section 11 states the general principle that every person is to have a
legally enforceable right to obtain access to official documents other than documents exempted from access under
the Act. Thus, access has to be given to official documents unless the FOIA Act itself withholds the same.
A person wishing access to a document has to make a written request to the concerned body. There is no test of
standing required of an applicant, nor need he show any reason for wishing to have access to a document. The
body has to make a decision within 30 days. If no decision is made within the prescribed period, it would mean that
the access to the document has been denied. Fees may be charged for permitting access to the documents. Under
certain circumstances, access to a document may be deferred, viz. where publication of the document in question is
required by law; where the document has been prepared for presentation to a particular person or body; if the
premature release of the document concerned would be contrary to the public interest; where the minister considers
that the document concerned is of such general public interest that the Parliament should be informed of its
contents before it is otherwise made public. A number of documents are exempt from access, e.g., documents are
exempt if it would be contrary to the public interest to disclose them because disclosure could reasonably be
expected to cause damage to the security, defence, or international relations of the Commonwealth. Also,
documents are exempted the disclosure of which would divulge information communicated in confidence between
governments. Documents are exempt if disclosure would cause damage to the Commonwealth-State relations.
Other documents exempt from disclosure are: documents submitted to the cabinet for its consideration or proposed
to be submitted; internal working documents revealing opinions, advice, consultation which may have taken place
within a body and disclosure of which would be contrary to the public interest; documents affecting enforcement of
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the law and protection of public safety, e.g. endangering the life or physical safety of any person. The following
documents inter alia are also exempt:
(1) Documents affecting financial or property interests of the Commonwealth.

(2) Documents affecting adversely the national economy. These are documents dealing with such matters as
exchange rates, interest rates, borrowings by the government etc.
FOIA provides an elaborate system for review of decisions under the Act. First, the decision denying access to a
document is reviewable within the concerned body itself at a level higher than the decision-making level. If still the
decision is adverse to the applicant he may seek review through an appeal to the Administrative Appeals Tribunal.
Then the Ombudsman also has a role to play in this area. When a person has been denied access to a document
by an agency (but not a Minister) he may complain to the Ombudsman who may investigate the action of the
agency concerned. The Ombudsman then makes a report. An appeal may also be brought before the
Administrative Appeals Tribunal against the refusal to grant access to a document directly in case of a decision
taken by the Minister. The tribunal has a recommendatory power only in some cases and the Minister is to decide
ultimately. In some cases, the Tribunal decides the matter on the same basis as the agency or the Minister could
have decided it. An appeal lies to the Federal Court against a decision of the Tribunal on a question of law. The
Tribunal can see the document in question where it sees it necessary to categorise the document.39
The Freedom of Information Act, 1982 was subjected to successive amendments in 1983, 1986, 1988 and 1991. In
the year 1983, the Act was amended inter alia to provide greater right to access to documents created before
enactment of Freedom of Information Act, transfer the review functions under the Act to Administrative Appeals
Tribunal and to empower the tribunal to consider whether there are reasonable grounds for a claim that a document
is exempt in case where a conclusive certificate has been issued and to require the relevant minister to consider
whether to revoke a certificate if the tribunal finds no reasonable grounds for its issue. The time for compliance of
requests has also been reduced form 60 days to 30 days. Section 33-A has been incorporated with a view to apply
an overriding public interest test to Commonwealth/State relations exemption.
By an amendment in the year 1986, application fees for processing applications and for internal review of a decision
by an agency were introduced. The amendment also reduced the obligations on agencies to provide statements
and statistics under the Freedom of Information Act.
Amendments made in the year 1988 include a requirement for consultation with a third party prior to a decision to
release a document where disclosure of that document might involve the unreasonable disclosure of personal
information about that person. A right was also conferred on third parties to seek review of a decision to release a
document following the process of consultations.
Amendments to the Freedom of Information Act, 1982 made in the year 1991 inter alia simplified the procedure for
making request and the procedure for imposing charges, clarified the interpretation of some of the provision of the
Act and the operation of provisions allowing the review by Administrative Appeal Tribunal of the decision made by
the government agencies or request of access to document. Subsequently, lesser procedural amendments have
been made in the Act. Since introduction of Commonwealth in the Freedom of Information Act, 1982, all States
have introduced the Freedom of Information Legislation. Each Act is modelled on Federal Act, although some of the
States have sought to improve upon Federal provisions.
47.3.8 Access to Information in New Zealand
The Official Information Act, 1982, represents a significant development in New Zealand Administrative Law as it is
an advance towards a more open system of government. The Act seeks to make official information more freely
available and regulates the manner in which official information is to be made available to members of the public. It
also establishes a right for individuals to seek access to personal information held about them, and to request
correction of that information where necessary. There is a further provision enabling individuals to find out the
reasons for any decisions made in respect of them.
The Official Information Act applies to all central government departments and most central government
corporations and organisations. It also applies to Ministers of the Crown. It does not, however, apply to local
organisations such as councils, education boards and hospital boards.
Briefly, the Act establishes the principle that official information is to be made available unless good reason exists
under the Act for withholding it. A New Zealand citizen or permanent resident or a body incorporated in New
Zealand can request for official information. A request for official information cannot be refused because the
Page 12 of 14
applicant does not have a sufficient personal interest. The Act contains a number of reasons why information can
be withheld, for example, to protect the privacy of natural persons, or to avoid prejudice to the maintenance of the
law, or to New Zealand’s security or defence or international relations, or to prevent damage to New Zealand’s
economy. Information can also be denied for several other reasons, e.g. to maintain “collective and individual
ministerial responsibility”, “political neutrality of officials.”
When access to information is denied, the applicant can ask the concerned department or organisation to have the
decision reviewed by another officer. The Ombudsman also has the function of reviewing decisions made under the
Act, He has power to:
(a) investigate and review any decision by which a Minister, department or organisation;
(i) refuses to make official information available to any person;

(ii) decides how, or for what charge, a request is to be granted;
(iii) imposes conditions on the use, communication or publication of information;
(iv) gives a notice refusing to confirm or deny the existence or non-existence of any information requested;
(b) investigate and review any complaint of undue delay in responding to a request for official information...
Investigations under the Official Information Act are handled by the Chief Ombudsman. The Chief Ombudsman
conducts his investigations and reviews under the Official Information Act in the same manner as if they were
investigations under the Ombudsmen Act.40 Full enquiries are made and the Chief Ombudsman will study, as
necessary, any papers and documents relating to the complaint. Investigations are carried out in private.
If the Ombudsman forms an opinion that the request for information should not have been refused, or that the
decision complained of in respect of the request was, for example, unreasonable or wrong, then he makes a report
to the appropriate department or Minister or the organisation. He has authority to make such recommendations as
he thinks fit. The complainant is also entitled to a copy of the Ombudsman’s recommendation. The procedure then
is as follows:
(a) The Minister then has 21 days in which to decide whether the Chief Ombudsman’s recommendation
should be accepted.
(b) If the Minister has not otherwise directed in writing within 21 days, the Minister, department or organisation
concerned has a public duty to observe the Chief Ombudsman’s recommendation from the twenty-second
day after which it was made. In other words, the Ombudsman’s recommendation becomes legally binding if
it is not vetoed by the concerned Minister. The Minister is to give the grounds for his veto which are then
published in the gazette and laid before Parliament.
The courts also have a significant role to play under the Act, but only after recourse to the Ombudsman. Courts can
review: (i) the initial unfavourable decision by a department, Minister, or Organisation; (ii) Ombudsman’s
unfavourable determination on at least two grounds, viz. “without jurisdiction” and “error on the face of the record”;
(iii) a Minister’s veto on the ground that it contains material errors of law.
The Act also provides for the preparation of the Directory of Official Information containing—(a) the structure and
functions of departments and organisations; (b) a general description of the kinds of documents held; (c) a list of
manuals and documents containing policies, principles, rules or guidelines, in accordance with which decisions are
made.
The Law Commission released a detailed review of the Official Information Act, 1982. It was found that biggest
problems were large and broadly defined requests, delays in responding the requests, resistance to the Act outside
the Core State Sector and absence of coordinated approach to supervision, compliance, policy advice and
education. The Commission made several recommendations including reduction of response time to 15 days,
requiring bodies that do not appeal Ombudsman’s decision to court to release information and giving the Ministry of
Justice core coordination responsibility in lieu of creating an Information Commission. However, the
recommendations made by the law Commission are yet to be acted upon. The Local Government Official
Information and Meeting Act, 1987 provides for access to information held by local authorities. The Privacy Act,
1993 allows the individual to obtain correct records about themselves held by public and private bodies and is
supervised by Privacy Commission.
Page 13 of 14
9 Section 5 runs as follows.

(1) If any person having in his possession or control any secret official code or pass word or any sketch, plan, model,
article, note, document or information which relates to or is used in a prohibited place or relates to anything in such
place, or which is likely to assist, directly or indirectly, an enemy or which relates to a matter the disclosure of which is
likely to affect the sovereignty and integrity of India, the security of the State or friendly relations with foreign States or
which has been made or obtained in contravention of this Act, or which have been entrusted in confidence to him by
any person holding office under Government, or which he has obtained or to which he has had access owing to his
position as a person who holds or has held office under Government, or as a person who holds or has held a contract
made on behalf of Government, or as a person who is or has been employed under a person who holds or has held
such an office or contract—
(a) wilfully communicates the code or pass word, sketch, plan, model, article, note, document or information to any
person other than a person to whom he is authorised to communicate it, or a Court of Justice or a person to whom
it is, in the interests of the State, his duty to communicate it; or
(b) uses the information in his possession for the benefit of any foreign power or in any manner prejudicial to the
safety of the State; or
(c) retains the sketch, plan, model, article, note or document in his possession or control when he has no right to
retain it, or when it is contrary to his duty to retain it, or wilfully fails to comply with all directions issued by lawful
authority with regard to the return or disposal thereof; or
(d) fails to take reasonable care of, or so conducts himself as to endanger the safety of the sketch, plan, model,
article, note, document, secret official code or pass word or information; he shall be guilty of an offence under this
section.
(2) If any person voluntarily receives any secret official code or pass word or any sketch, plan, model, article, note,
document or information knowing or having reasonable ground to believe, at the time when he receives it, that the
code, pass word, sketch, plan, model, article, note, document or information is communicated in contravention of this
Act, he shall be guilty of an offence under this section.
(3) If any person having in his possession or control any sketch, plan, mode, article, note, document or information,
which relates to munitions of war, communicates it, directly or indirectly, to any foreign power or in any other manner
prejudicial to the safety or interests of the State, he shall be guilty of an offence under this section.
(4) A person guilty of an offence under this section shall be punishable with imprisonment for a term which may extend
to three years, or with fine, or with both.
10 Sam Alan Abdulla v State of Gujrat, AIR 1996 SC 569 (para 7, 8) : (1996) 1 SCC 427.
11 R.K Karanjia v Emperor, AIR 1946 Bom 322.
12 State v K. Balakrishna, AIR 1961 Ker 25.
13 Nandlal More v The State, (1965) CrLJ 392 (PB).
14 See the Central Secretariat Manual of Office Procedure, 1977.
15 Jain, Indian Constitutional Law, 115.
16 Sanwal Ram v Addl. District Magistrate, AIR 1982 Raj 139. Also see R.K. Jain v UOI, (1993) 4 SCC 119.
17 The leakage of information of a report of a Commission of Inquiry by a person may result in his prosecution. For
instance, the leakage of the report of the Paul Commission, appointed by the Tamil Nadu Government, led to the
prosecution of the person concerned. Speaking about it, Justice Krishna Iyer has commented: “To plead secrecy of the
report of a commission of enquiry, or prohibit publication of the report or prosecute under the Official Secrets Act a
person for leakage of the report, is contrary to the basic right to know enjoyed by citizens in our country.” The Indian
Express, 26 February 1982.
18 See M. Nagaraj v UOI, AIR 2007 SC 71 : (2006) 8 SCC 212, para 20.
19 Namit Sharma v UOI, 2012 (8) SCALE 593 : (2013) 1SCC 745.
20 Chief Information Commissioner v State of Manipur, AIR 2012 SC 864 : (2012) 2 MLJ 442 (SC) : 2011 (13) SCALE
460.
21 Namit Sharma v UOI, 2012 (8) SCALE 593 : (2013) 1SCC 745.
Page 14 of 14
22 Girish Ramchandra Deshpande v Central Information Commissioner, (2012) 8 MLJ 122 (SC) : 2013 (2) MPLJ 295 :
2012 (9) SCALE 700 : (2013) 1 SCC 212. See also R.K. Jain v UOI, 2013 (4) Bom CR 76 : 2013 (6) SCALE 49.
23 Khanapuram Gandaiah v Administrative Officer, AIR 2010 SC 615 : (2010) 2 SCC 1, para 10 to 13.
24 Central Public Information Officer, Supreme Court of India v Subhash Chandra Agrawal (2011) 3 MLJ 194 (SC) : 2010
(12) SCALE 496 : (2011) 1 SCC 496.
25 Tirpur Dyeing Factory Owners Assn. v Noyyal River Ayacutdars Protection Association, (2009) 9 SCC 737, para 27 :
(2009) 8 Mad LJ 1164.
26 Order dated 12 January 2010 passed in LPA No. 501/2009.
27 Williams, Offences Against the State, (1974) Crim. LR 639; Willaim Birtles, Official Secrets, 1973 Pub. Law 100.
28 (1972) Cmnd. 5104.
29 Wraith, Open Government, 63 (1977); Schwartz and Wade, Legal Control of Government, 80-3 (1972).
30 US v Reynolds, 345 US 1 (1953).
31 US v Nixon, 418 US 683 (1974).
32 Rowat, Laws on Access to Official Documents in T.N. Chaturvedi (ed.), Secrecy in Government, 10-11.
33 Robinson, Access to Government Information: An American Experience, (1983) 14 Fed. LR 35.
34 Schwartz, Administrative Law, 130 (1984).
35 Consumers Union v Veterans Administration, 301 F. Supp. 796 (SDNY) (1969).
36 Rowat, Laws on Access to Official Documents in T.N. Chaturvedi (ed.), Secrecy in Government at 15-16.
37 Rowat, Laws on Access to Official Documents in the Chaturvedi (ED.) Secrecy in Government at 16. For an analysis of
the judicial response to the Freedom of Information Act, see Furby, The Freedom of Information Act: A Survey of
Litigation under the Exemptions, 48 Mississippi L.J. 784 (1977): Michael Singer, Administrative Secrecy in Developed
Countries, 343 (1979).
38 L. Curtis, Freedom of Information in Australia, (1983) 14 Fed. L. Rev. 5.
39 For further discussion on the Act see Bayne, Freedom of Information, (1984).
40 See Chapter 26 of MP Jain Principles of Administrative Law, 6th Edition 2010 (Paper Back edn.).
End of Document
46.1 Introductory
Principles of Administrative Law, 9th Edn (2 Vols) > CHAPTER XLVI CENTRAL VIGILANCE
COMMISSION
CHAPTER XLVI CENTRAL VIGILANCE COMMISSION
46.1 Introductory
A serious problem afflicting the Indian polity is that of corruption both at the political as well as administrative levels.
The problem of corruption has become endemic in India. Corruption gives rise to all kinds of vices as it distorts the
administrative process of decision making as administrative decisions cease to be objective and merit based but
become motivated. All kinds of irrelevant considerations come into play in decision-making. Decisions are not made
on the merits of the case but on irrelevant grounds.
Corruption not only corrodes the moral fibre of the society but is also harmful to the national economy and national
interest. Corruption is an abuse of public resources for private gain. Corruption undermines two of the basic
principles on which democracies are based, viz., the equality of citizen’s rights and transparency of political
decision-making. Corruption weakens national economy and stifles growth.
There are many factors leading to the growth of corruption in the body polity. Increasing intervention of the state in
economic and social life has increased the occasions for corruption. Some other factors contributing to the
phenomenon are. Vesting of large unqualified discretionary powers in the administrators; red tapism, inefficiency
and complicated rules of administrative procedures; lack of transparency in government operations.
In Madhya Pradesh v Shri Ram Singh,1 the Supreme Court has expressed its concerns at the prevailing
administrative corruption in the country:
“Corruption in a civilized society is a disease like cancer, which if not detected in time is sure to maliganise the polity of
country leading to disastrous consequences. It is termed as plague which is not only contagious but if not controlled
spreads like a fire in a jungle. Its virus is compared with HIV leading to AIDS, being incurable. It has also been termed as
Royal thievery. The socio-political system exposed to such a dreaded communicable disease is likely to crumble under its
own weight. Corruption is opposed to democracy and social order, being not only anti-people, but aimed and targeted
against them. It affects the economy and destroys the cultural heritage. Unless nipped in the bud at the earliest, it is likely to
cause turbulence shaking of the socio-political-economic system in an otherwise healthy, wealthy effective and vibrating
society.”
Corruption assumes many forms. For example, the Supreme Court has said that “no employee of a nationalised
bank or any other public sector corporation should engage himself in collecting donations for any trust or other
organisation from persons with whom he comes into contact in the course of his employment”. Such a practice is
likely to lead to harmful results because “in the world of commerce quid pro quo and not charity is the rule”.2
Incorruptibility is an essential requirement for public confidence in the Administration of government departments.
To attain this result, it is necessary to have in place an effective machinery to enforce the anti-corruption law strictly
without fear or favour. A word may therefore be said on the subject of the machinery to fight administrative
corruption.
To strengthen the existing mechanism for checking corruption amongst government servants, the Central Vigilance
Commission was created in February, 1964, by a resolution of the Government of India. The Commission was
established as a result of the recommendations of the Committee on Prevention of Corruption (known as the
Page 2 of 2
46.1 Introductory
Santhanam Committee) which was appointed in 1962. The committee had recommended that the commission
should be concerned with two major problems facing the Administration, namely—
(a) prevention of corruption and maintenance of integrity amongst government servants, and
(b) ensuring just and fair exercise of administrative powers vested in various authorities by statutory rules or
by non-statutory executive orders.
Thus, the committee had recommended two major matters to come within the purview of the commission, that is,
cases of corruption and cases involving maladministration.
The government accepted the recommendations of the committee as regards corruption but not maladministration,
because the latter problem was big enough to require a separate machinery by itself, and if the commission was
burdened with the additional responsibility for maladministration along with corruption, it would dilute its
effectiveness in dealing with cases of corruption.
1 Madhya Pradesh v Shri Ram Singh, AIR 2000 SC 879, at 883.

2 Decision of the Court, dated 16 April 1985.
End of Document
46.2 Scheme of 1964
COMMISSION
46.2 Scheme of 1964

To strengthen the existing mechanism to check corruption, the Central Government created the office of the Central
Vigilance Commissioner (CVC) in 1964 through an administrative resolution.
The Central Government envisaged the status and functions of the Central Vigilance Commission to be as follows:
The Central Vigilance Commission will have, in the sphere of vigilance, a status and a role broadly corresponding to
those of the Union Public Service Commission. It will have extensive functions designed to ensure that complaints
of corruption or lack of integrity on the part of public servants are given prompt and effective attention, and that the
offenders are brought to book without fear or favour. In the constitutional and legal sense, its functions would be
advisory. But in reality, they would be advisory in the same sense as those of the Union Public Service
Commission. The combined effect of the independence of the Commission, the nature of its functions, and the fact
that its report would be placed before Parliament, would be to make the Commission a powerful force for
eradication of corruption in the public services”.3
The role of the CVC was envisaged to be advisory. He was to ensure that complaints of corruption or lack of
integrity on the part of public servants were given prompt and affective attention and that the offenders were
brought to book without fear or favour.
The CVC had jurisdiction and powers in respect of matters to which the executive powers of the Centre applied.
The following categories of employees fell within the commission’s purview:
(i) government servants employed in the ministries and departments or the Government of India and the
Union Territories; and
(ii) employees of public sector undertakings, statutory corporations and port trusts, etc.
The latter (public undertakings, etc.) had to pass a formal resolution accepting the commission’s jurisdiction. As a
practical matter, the Commission restricted itself to cases pertaining only: (i) to gazetted officers; and (ii) employees
of public under-takings and nationalised banks, etc., drawing a basic pay of Rs. 1000/- per month and above.
The Central Vigilance Commissioner was to be appointed by the President. He had the same security of tenure as
a member of the Union Public Service Commission. Originally, it was provided that he would hold office for a period
of six years, or until he attained the age of 65 years whichever was earlier. However, through a resolution of the
government, dated 22nd February, 1977, his term had been reduced from six to three years with the proviso to
extend his term in public interest for not more than two years. After the Commissioner had ceased to hold office
there was a bar on his employment in the government (whether Union or state), or on his accepting any political
public office.
The commission was attached to the Ministry of Home Affairs but it was not subordinate to any ministry or
department and had the same measure of independence and autonomy as the UPSC.
Page 2 of 5
46.2 Scheme of 1964
It was not as if vigilance in the matter of corruption on the part of government servants came into existence for the
first time with the creation of the CVC. Even earlier there existed several organisations to deal with this matter.
As early as 1963, by an executive resolution, the government established the Central Bureau of Investigation.
Before 1963, there existed the Special Police Establishment (SPE) under the Delhi Special Police Establishment
Act, 1946 to investigate offences committed by the Central Government servants while discharging their official
duties.4 With the creation of the Central Bureau of Investigation (CBI), the SPE was made a wing of the CBI for
purposes of investigation, the CBI derives its power from the Delhi Special Police Establishment Act, 1946. The CBI
functions under the administrative control of the Prime Minister.
Then, there existed the Chief Vigilance Officer in each ministry/department having a number of vigilance officers
under him.
There was the Chief Technical Examiner’s Organisation created in 1957 in the Ministry of Works, Housing and
Supplies for the purpose of conducting a concurrent technical audit of works of the Central Public Works
Department with a view to securing economy in expenditure and better technical and financial control.
There also existed Commissioners for departmental enquiries attached to the Ministry of Home Affairs for the
purpose of conducting enquiries in disciplinary proceedings against government servants.
All the above-mentioned paraphernalia continued to exist with some modifications even after the creation of the
Central Vigilance Commission.
The following structural changes were made in the existing patterns when the CVC was created.
Firstly, the Chief Technical Examiner’s Organisation was transferred to the administrative control of the CVC, and
this organisation could now be entrusted by the Commission with the task of investigation complaints relating to civil
works of the Government of India.
Secondly, the Commissioners for departmental enquiries were transferred to the control of the CVC.
Thirdly, the Chief Vigilance Officer in each ministry or department came to be appointed in consultation with the
CVC. The CVC had also been given the powers to assess the work of these officers and the assessment was
recorded in their character rolls.
Status quo, was, however, maintained with regard to the CBI including the SPE. This organisation was not placed
under the control of the CVC, though it had been given certain functions in relation to the recommendations made
by the CBI in cases investigated by it.
The CVC’s main concern was with matters of corruption, misconduct, lack of integrity or other kinds of malpractices
or misdemeanours on the part of the government servants. Its role was limited. It was only advisory. The main tasks
of the CVC were co-ordination, supervision and advice rather than investigating the complaints itself. It had no
adjudicatory functions as such in disciplinary proceedings against government servants. It was not even the
“competent authority” for giving sanction for criminal prosecutions for offences committed by the public servants
while discharging their official functions. It had no machinery to investigate or enquire into complaints of corruption
except to a limited extent.
More specifically the functions of the CVC were as follow:
(1) Whenever complaints were received by the CVC, it referred them either to the CBI, or the concerned
ministry/department for investigation.
These bodies after investigation had to send their report to the CVC for advice. The CVC could drop a
complaint at the initial stage itself if it considered it to be vague, or if the allegations contained therein
were not verifiable. Thus, during the year 1976, out of 665 complaints, 492 were dropped by the CVC
itself and the remaining 173 were forwarded to the CBI and the concerned ministries or departments
for investigation.
Page 3 of 5
46.2 Scheme of 1964
The CVC did not thus investigate the complaints itself. It had to depend on other organisations for the
purpose. However, there was one exception. The Chief Technical Examiner’s Organisation attached to
the CVC conducted technical examination of public works including checking of bills of contractors,
contracts and muster rolls.
(2) The CVC advised as to the action to be taken in the following cases:
(i) Reports of investigation by the C.B.I. involving departmental action or prosecution in cases either
referred to it by the Commission or otherwise.
(ii) Reports of investigation by the ministry or department involving disciplinary action in cases either
referred by the Commission or otherwise.
(iii) Cases received direct from public sector undertakings and statutory corporations, etc.
(3) The CVC had power to require that oral enquiry in any departmental proceeding should be entrusted to
one of the Commissioners for departmental enquiries.5
The CVC oversaw the enquiries conducted by the Commissioners and here the CVC had two major
functions: (i) to ensure that enquiries were completed expeditiously, and (ii) to tender advice to the
disciplinary authorities for taking action on the reports of the Commissioners.
(4) All Chief Vigilance Officers were required to furnish to the CVC for its assessment a resume of the
vigilance work done in their organisation with special emphasis on preventive vigilance.
(5) The CVC could suggest chances in the procedure or practice where it appeared that the existing procedure
or practice afforded scope for corruption or misconduct. CVC could also initiate review of administrative
procedure and practice insofar as the same related to the maintenance of integrity in the administration.
(6) The CVC discharged miscellaneous functions such as conducting orientation courses for Vigilance Officers
and courses in the conduct of departmental proceedings, review of vigilance arrangements in
ministries/departments/public undertakings, advice in matters relating to interpretation of law and
procedures governing departmental proceedings, etc.
There used to be a separate cell in the CVC for enforcement of orders regarding reservation of posts for candidates
belonging to the scheduled castes and tribes.
In 1969, the government issued orders that the CVC should be consulted in cases of compulsory retirement of
government servants on grounds of lack of integrity. These orders were, however, withdrawn in 1976, thus
depriving the CVC of the jurisdiction in this matter.
The CVC had to submit an annual report to the Ministry of Home Affairs, particularly, mentioning the cases in which
its recommendations had not been accepted or acted upon. A copy of the report together with the government’s
memorandum explaining the reasons for non-acceptance of any recommendation made by the CVC was to be laid
by the Ministry of Home Affairs before each House of Parliament.
Several States have opted to control corruption through a Vigilance Commission rather than through the
Ombudsman mechanism. The Vigilance Commission has much weaker status than the Ombudsman. The Vigilance
Commission is an agency of the executive and not of the legislature. He owes his position to the executive will as it
has no statutory basis. It has no investigatory mechanism at its disposal and therefore does not investigate
complaints itself but depends on other public agencies for this purpose. The Vigilance Commission has no
adjudicatory functions and is not a competent authority for sanctioning criminal prosecutions for offences committed
by public officials while discharging their official duties.6
The type of problems which can arise in practice in the functioning of the Vigilance Commission because of its non-
statutory basis is very well illustrated by the Supreme Court case, Sunil Kumar Banerjee v State of WB.7 An Enquiry
Officer was appointed to enquire into certain charges against the appellant who was a member of the Indian
Administrative Service. The Enquiry Officer submitted his report after enquiry giving his findings on various charges
levelled against the appellant. The report was then sent to the State Vigilance Commissioner for his advice.
Thereafter, the disciplinary authority, viz., the State Government, came to its own conclusions on the findings of the
enquiry officer.
Page 4 of 5
46.2 Scheme of 1964
The appellant was reduced from the higher to the lower salary in the same grade. He challenged the order inter alia
on the ground that consultation with the Vigilance Commissioner who had no statutory status was unjustified, and
that the Government did not furnish the report of the Vigilance Commissioner to the petitioner though the ultimate
findings of the government were based on that report. The Supreme Court overruled this objection holding that the
disciplinary authority committed no serious or material irregularity in consulting the Vigilance Commissioner. The
conclusions of the disciplinary authority were not based on the advice tendered by the Vigilance Commissioner, but
were arrived at independently, on the basis of the charges, the relevant material placed before the Enquiry Officer
in support of the charges, and defence of the appellant. The final conclusions of the disciplinary authority were so
much at variance with the opinion of the Vigilance Commissioner that it was impossible to say that the disciplinary
authority’s mind was in any manner influenced by the advice tendered by the Vigilance Commissioner. In the words
of the Court: “(I)f the disciplinary authority arrived at its own conclusion on the material available to it, its findings
and decision cannot be said to be tainted with any illegality merely because the disciplinary authority consulted the
Vigilance Commissioner and obtained his views on the very same material.”
The Court held that there was no merit in the appellant’s argument that a copy of the report of the Vigilance
Commissioner ought to have been supplied to him. The findings communicated to him were those of the disciplinary
authority and no reference was made therein to the views of the Vigilance Commissioner. That the preliminary
findings of the disciplinary authority happened to coincide with the views of the Vigilance Commissioner was neither
here nor there.8
The formulation of the Supreme Court on the question of supply of the Vigilance Commissioner’s report to the
petitioner does not seem to be satisfactory. Howsoever much the Court may discountenance and devalue the
importance of consultation with the Vigilance Commissioner, the truth of the matter is that his views were taken into
account by the disciplinary authority in arriving at its own conclusions. There is no denying the fact that it amounts
to considering some materials obtained behind the back of the petitioner and this can be regarded as amounting to
violation of natural justice.9
If the Vigilance Commissioner’s report is not to be taken into account at all by the concerned disciplinary authority,
or if it plays no role in influencing its mind, then consultation with him seems to be an empty formality which serves
no purpose and the institution of the Vigilance Commissioner practically becomes otiose.
In the instant case, the initial findings of the disciplinary authority were in consonance with the report of the
Vigilance Commissioner. It had practically adopted the Vigilance Commissioner’s views in toto. This shows that his
views did have an impact on the mind of the disciplinary authority. It was only as a result of consultation with the
Public Service Commission that the government changed its views. PSC has a constitutional status,10 but the
Vigilance Commissioner merely has an administrative status. If consultation with him is all right, then there can be
nothing wrong on the part of the government if it consults any other person or authority, for on what basis can any
distinction be drawn between the Vigilance Commissioner and any other administrative authority? Natural Justice,
requires that the decision-making authority must apply its own mind to the material before it and it ought not to be
influenced by any material obtained behind the back of the concerned party.23 In the instant case, the Court could
argue that the Vigilance Commissioner’s views had not influenced the disciplinary authority’s mind on the ground of
variance between the two views. But what will happen in a case where there is no such variance between the views
of the two authorities? In the light of the above decision, the present-day position is thus unsatisfactory. Therefore,
to avoid any difficulty of the type raised here, three options are available to the State Government:
(i) it should not consult the Vigilance Commissioner for the purpose of drawing conclusions from the material
on record or,
(ii) If he is consulted, a copy of his report be submitted to the delinquent officer for his comments thereon
before a final decision is taken;
(iii) The Vigilance Commissioner be given a legal status and provision be made in the law for consulting him.
Thus, his position may be supplementary to the Public Service Commission. The first option will make the Vigilance
Commissioner otiose, so choice has to be made from out of the two other alternatives. It is necessary to reconcile
the demands of natural justice with the new institutional functioning.
Page 5 of 5
46.2 Scheme of 1964
3 See L.M. Bhatia, Central Vigilance Commission—Its Role in Administrative Vigilance, XVII Indian Jl. of Public Adm., 65
(1971).
4 See, comments infra.
5 The Commissioners had no statutory powers to compel attendance of witnesses or production of documents. To
remedy the deficiency, the Departmental Inquiries (Enforcement of Attendance of Witnesses and Production of
Documents) Act, 1972 was enacted.
6 In Jammu & Kashmir, the Government Servants’ Prevention of Corruption Act of 1975 provides for an Anti-corruption
Tribunal to conduct inquiries into allegations of corruption and to recommend appropriate action and a Vigilance
Commission to conduct the investigations. The Tamil Nadu Public Men (Criminal Misconduct) Act of 1973 covered only
political corruption, but it was repealed in 1977.
7 Sunil Kumar Banerjee v State of WB, AIR 1980 SC 1170 : (1980) 3 SCC 304.
8 The government’s findings in this case were first in accord with the views of the Vigilance Commissioner. The
government changed its mind later after consulting the Public Service Commission.
9 Supra, Chapter XII, Vol. I.
10 The Public Service Commission is a constitutionally-created body and consultation with the PSC is required in
disciplinary matters. Articles 315-323 of the Constitution lay down the composition and the powers of Public Service
Commissions. See, M.P. Jain, Indian Constitutional Law, Chapter XXXVI, Vol. II.
End of Document
46.3 Vineet Narain Versus UOI
COMMISSION
46.3 Vineet Narain Versus UOI11

The Supreme Court’s pronouncement led to a fundamental change in the composition of the CVC. In Vineet, the
Supreme Court directed that CVC be given a statutory status.
The factual matrix of the case was as follows:
“CBI conducted raids on the premises of S in connection with some havala transactions. CBI seized two diaries containing
accounts of vast payments made to persons identified only by initials which corresponded to the initials of several high
ranking politicians and bureaucrats. As time passed and CBI did nothing in the matter of investigating the contents of the
diaries, a PIL writ petition was moved in the Supreme Court under article 32 complaining of inertia on the part of the CBI
when accusations were made against high dignitaries.”
The main allegation was that the CBI had failed to carry out its public duty to investigate the offences disclosed. The
main question, therefore, before the Supreme Court was how to insulate CBI from political pressures. The question
is of great significance and relevance for the purpose of upholding rule of law in the country.
During the course of hearing on this petition, the court came to the conclusion that “inertia was the common rule
whenever the alleged offender was a powerful person”. The court observed in this connection:
“Everyone against whom there is reasonable suspicion of committing a crime has to be treated equally and similarly under
the law and probity in public life is of great significance.”
It thus became necessary for the Court to examine the constitution of these investing agencies and then control
was to make them more effective in future. The Court felt it necessary that CBI, the premier agency to investigate
into offences by public men and bureaucrats, be insulated from “extraneous influence of any kind”. Accordingly, the
court issued several directions with a view to ensure proper investigation in a charge of corruption against the high
and the mighty and effective prosecution thereof in the court. The main directions were as follows:
(a) The Central Vigilance Commission (CVC) be given statutory status.

(b) The CVC be made responsible for the efficient working of the CBI.
The court also laid the qualifications for the CVC and procedure for his selection. In Vineet Narain, the Supreme
Court formulated a scheme for the operation of the CVC and CBI designed to confer functional freedom on these
bodies and to insulate them from political pressures. Accordingly, Parliament has enacted The Central Vigilance
Commission Act, 2003 incorporating the directions issued by the court: The Act gives a statutory status to the CVC
and amends the Delhi Special Police Establishment Act, 1946 on the lines suggested by the Supreme Court.
11 Vineet Narain v UOI, AIR 1998 SC 889 : (1998) 1 SCC 226 : 1998 CrLJ 1208.
Page 2 of 2
46.3 Vineet Narain Versus UOI
End of Document
46.4 The Central Vigilance Commission Act, 2003
COMMISSION

CVC now becomes a three-member body consisting of a Central Vigilance Commissioner and two Vigilance
Commissioners. They will be appointed by the President on the recommendation of a committee consisting of:
(a) Prime Minister;

(b) Home Minister, and
(c) Leader of opposition in Lok Sabha.
The term of office of each of these members is four years or till the age of 65, whichever is earlier.
On ceasing to hold the office, these persons are ineligible for appointment for any office of profit under any
government.
The main functions of the Commission inter alia are:
(i) exercise superintendence over the functioning of the Delhi Special Police Establishment in so far as it
relates to the investigation of offences under the Prevention of Corruption Act, 1988;12
(ii) inquire into allegations of corruption referred to it by the Central Government;
(iii) inquire into complaints of corruption against any official;
(iv) tender advice to the Central Government or a government-controlled body on any matter referred to it;
(v) exercise superintendence over the vigilance.
The following categories of civil servants fall within the jurisdiction of the Commission:
(i) Members of All India Services serving in connection with the affairs of the Union;
(ii) Group A officers of the Central Government;
(iii) Such employee of public sector undertakings as may be notified in the Gazette.
The Central Vigilance Commissioner/Vigilance Commissioner can be removed from office only by an order of the
President on the ground of proved misbehaviour or incapacity after the Supreme Court, on a reference made by the
President, reports after an inquiry that he should be removed on such ground.
The Commission submits an annual report to the President. The Commission enjoys power to summon witnesses,
documents etc.
The expenses of the Commission are charged on the Consolidated Fund of India. The Central Government has to
consult the Commission while making rules/regulations governing the vigilance or disciplinary matters relating to
persons appointed to public services and posts in connection with the affairs of the union or to members of the All-
India Services.
Page 2 of 2
12 See Center for PIL v UOI, AIR 2012 SC 1002 : (2012) 2 MLJ 155 (SC) : 2012 (2) SCALE 228 (the Central Vigilance
Commission cannot, while exercising the power of superintendence direct Delhi Special Police Establishment to
investigate or dispose of any case in a particular manner).
End of Document
46.5 Central Bureau of Investigation
COMMISSION

The Central Bureau of Investigation was established on 1 April 1963 by a resolution of the Central Government.
This step was taken to meet the felt need of having a central police agency at the disposal of the Central
Government to investigate into cases inter alia of bribery and corruption. In 1987, Anti-Corruption Division was
created in the CBI.
There is no separate Act regulating the functioning of the CBI. Its powers of inquiry and investigation flow from the
Delhi Special Police Establishment Act of 1946.
The Supreme Court undertook a review of the functioning of the CBI in the Vineet Narain case. It transpired in that
case that the CBI was not actively pursuing cases of corruption against persons occupying high positions in
government and public life although there was evidence against them. Accordingly, under article 32 read with the
article 142, the Court issued a few directions with a view to make CBI an autonomous and effective investigation
body. These directions were incorporated in the Delhi Special Police Establishment Act in 2003.
The Delhi Special Police Establishment Act, 1946, is an Act to make provision for the constitution of a special police
force in Delhi for the investigation of certain offences in the Union Territories.
The Central Government has been authorised to constitute a special police force to be called the Delhi Special
Police Establishment for the investigation in any Union Territory of offences notified under section 3 of the Act.
Under section 3, the Central Government may, by notification in the Official Gazette, specify the offences or classes
of offences which the DSPE may investigate.
Under section 5, the Central Government may by order extend to any area in a State, not being a Union Territory,
the powers and jurisdiction of members of the DSPE for the investigation of any offences or classes of offences
specified under section 3. However, a member of the DSPE cannot exercise powers and jurisdiction in any State,
not being a Union Territory, without the consent, of State Government.13
The superintendence of the DSPE in so far as it relates to investigation of offences under the Prevention of
Commission Act, vests in the Central Vigilance Commission. In all other matters, the superintendence of DSPE
vests in the Central Government.
The administration of the DSPE vests in the Director. The Director is appointed by the Central Government on the
recommendation of a Committee consisting of:—
(a) The Central Vigilance Commissioner;

(b) Vigilance Commissioners;
(c) Secretary of Home Affairs, Central Government;
(d) Secretary (Coordination and Public Grievances) in the Central Secretariat.
Page 2 of 3
The Committee is to recommend a panel of names for consideration. He is to belong to the Indian Police Service.
The views of the incumbent Director are also to be considered by the Committee. The Committee is to draw a panel
of IPS Officers on the basis of their seniority, integrity, experience in investigation and anti-corruption work. The
Director should hold office for not less than two years.
The notification made by the Central Government under section 3 confers and determines the jurisdiction of the CBI
to investigate an offence. The jurisdiction of the CBI to investigate an offence is to be determined with reference to
the notification issued under section 3.
Section 6A(1) adds a rider on the power of investigation of DSPE. The Establishment “shall not conduct any inquiry
or investigation into any offence” under the Prevention of Corruption Act except with the previous approval of the
Central Government where the allegation relates to—
(a) Central Government employees above the level of joint secretary;

(b) Employees appointed by the Central Government in public enterprises established by the Centre and in
societies and local authorities owned or controlled by that Government.
This statutory provision has been added to the DSPE Act in 2003. Earlier, the Central Government had issued a
directive requiring prior sanction of the designated authority to initiate the investigation against officers of the
government and public sector undertakings. In Vineet Narain,14 the court declared this directive ultra vires mainly on
the ground that being a non-statutory direction it came in conflict with section 3 of DPSE Act. The court observed on
this point:
“In the absence of any statutory requirement of prior permission or sanction for investigation, it cannot be imposed as a
condition precedent for initiation of the investigation once jurisdiction is conferred on the CBI to investigate the offence by
virtue of the notification under section 3 of the Act.”15
In view of this court verdict, the directive has now been made statutory.
Section 5 of the Delhi Act enables the Central Government to extend the powers and jurisdiction of members of the
Delhi Police Establishment to any area in a state. Section 6 of the Act says “nothing contained in section 5 shall be
deemed to enable any member of the Delhi Special Police Establishment to exercise powers and jurisdiction in any
area in a State, not being a Union Territory or railway area”.
It has been ruled that the High Courts under article 226 of the Constitution and the Supreme Court under article 32
can direct the CBI to investigate into any specific case.16
When a direction is given by the court in an appropriate case to the CBI to register and investigate, consent of the
concerned State as envisaged in section 6 of the Act, is not a condition precedent to compliance by the CBI of the
Court order.17
While the High Court has power under article 226 of the Constitution to direct CBI to conduct an inquiry against a
person, it can do so only when there is sufficient material to come to a prima facie conclusion that there is a need
for such an inquiry. Such an inquiry cannot be ordered as a matter of routine or merely because a party makes
some allegations. If after considering the material on record comes to a conclusion that the material does disclose a
prima facie case calling for an investigation by CBI.18 This is because article 21 guarantees the right to life which
includes the right of a person to live without being hounded by the CBI to find out whether he has committed any
offence or not.
13 For an example for extension of jurisdiction of DSPE to the State of Bihar for investigation of a specific case, see, CBI v
Rajesh Gandhi, AIR 1997 SC 93 : (1996) 11 SCC 253 : 1997 CrLJ 63.
14 Vineet Narain v UOI, AIR 1998 SC 889 : (1998) 1 SCC 226 : 1998 CrLJ 1208.
15 Vineet Narain v UOI, AIR 1998 SC 889, 913 : (1998) 1 SCC 226 : 1998 CrLJ 1206.
16 Kashmeri Devi v Delhi Administration, AIR 1988 SC 1323 : 1988 Supp SCC 482 : 1988 CrLJ 1800; Maniyeri Madhavan
v Sub-Inspector of Police, AIR 1994 SC 1033 : (1994) 1 SCC 536 :1994 CrLJ 3063; Central Bureau of Investigation v
State of Rajasthan, AIR 2001 SC 668 : (2001) 3 SCC 333.
Page 3 of 3
17 State of Bihar v Ranchi Zila Samta Party, AIR 1996 SC 1515 : (1996) 3 SCC 682 : 1996 CrLJ 2168.
18 Common Cause, A Registered Society v India, AIR 1999 SC 2979 : s(1999) 6 SCC 667. Secretary, Minor Irrigation &
Rural Engineering Services, UP v Sahngoo Ram Arya, AIR 2002 SC 2225 : (2002) 5 SCC 521 : 2002 CrLJ 2942.
End of Document
46.6 Corruption Charges against State Ministers
COMMISSION

Hitherto, there has been no regular machinery put in place to probe into charges of corruption brought against
Ministers at the State level. There have been many occasions when such charges were levelled against State
Ministers. Such cases have been treated on an ad hoc basis without evolving any set pattern to deal with such
matters. In some cases, the Central Government has appointed commissions of inquiry under the Commission of
Inquiry Act to probe into charges of corruption and misuse of power by the State Chief Ministers. For example, in
1966, such a commission was appointed to probe into charges of corruption against Bakshi Ghulam Mohammad,
ex-Chief Minister of Jammu & Kashmir.19 A Commissioner of inquiry was appointed in 1973 to probe into charges
against the Chief Minister of Tamil Nadu.20 In 1977, a commission of inquiry was appointed to enquire into charges
against the Chief Minister and a few other Ministers of Karnataka.21
In some cases, enquiry officers on an ad hoc basis have been appointed by the State Government themselves
under administrative powers to enquiry into charges against ex-ministers or ex-Chief Ministers.22 However, not
much has come out of the labour of these bodies. Hardly any follow up action has been taken by way of prosecution
in a Criminal Court. The difficulty has been that such inquiries have been undertaken either at the instance of the
Central Government or the State Government assuming office after the old government quits into whose actions the
inquiry is instituted, and soon the matter of inquiry gets embroiled into political controversy. The matter assumes the
character of Centre v State controversy or that of political vendetta by a new State Government against the old
government of a different political hue.
Antulay23 is an instructive case. Antulay was the Chief Minister of Maharashtra. He resigned from his office in 1982.
There were allegations against him that while in office as Chief Minister, Antulay collected funds from the public by
setting up certain trusts under his control, in exchange for showing favour, or not showing disfavour, in exercise of
his official functions. In Antulay the Supreme Court answered an important question: Is a private compliant in
respect of offences committed by a public servant maintainable in, and cognisable by, the Court?
The Supreme Court answered the question in the affirmative. The Court argued as follows: In the absence of a
statutory provision to the contrary, “a locus standi of a complainant is a concept foreign to criminal jurisprudence”.
Penal statutes are enacted for the larger good of the society, an object of statutes is to punish the offenders in the
interest of the society. Therefore, “the right to initiate proceedings cannot be whittled down, circumscribed or
fettered by putting it into a straight-jacket formula of locus standi unknown to criminal jurisprudence, save and
except specific statutory exception.”
Antulay’s case is of great public significance insofar as an ex-Chief Minister was being prosecuted for the first time
on a private complaint. But this cannot serve as a model for the future. It needs great effort, tenacity and resources
on the part of an individual to launch a prosecution of this type, and not many can mobilise such resources.24 Nor
can the matter of containing corruption and abuse of power be left solely in the hands of the government for political
considerations come into the picture. No ruling party likes to take action against its own members for corruption and
misuse of power.
In addition to these two channels, a third channel is also necessary to contain the malady, viz., a strong and
Page 2 of 3
independent Ombudsman system having constitutional sanction so that its autonomy is not compromised in
practice. But even such an institution may fail to deliver the goods unless it gets strong political backing and support
in its efforts. The problem at the Central level will be solved as and when the Lokpal Bill becomes law, but the
problem at the State level still remains to be tackled in earnest.
It needs to be emphasized that corruption and misuse of power by holders of high offices in the states constitute a
serious malady affecting public interest as such factors distort the whole process of policy and decision-making and
a strong mechanism is needed to fight the same.
There have been cases galore of political corruption at State level. A few examples of such cases may be
mentioned here.
After Shri Bhajan Lal ceased to be the Chief Minister of Haryana, in 1987, serious charges were brought against
him prima facie showing commission of offence punishable under the IPC as well as under the Prevention of
Corruption Act. The complaint was presented in the Chief Minister’s Secretariat and it was directed to the
Superintendent of Police who directed the SHO to investigate in the matter. Later, the Supreme Court quashed the
investigation on a technical ground.25
In 1988, a PIL writ petition was filed in the AP High Court charging the then Chief Minister Shri N.T. Rama Rao of
corruption, favouritism and misuse of power. After considering the matter, the High Court recorded its prima facie
findings that the CM had misused his official position in several matters.26
Cases of corruption were filed in the courts against two ex-Chief Ministers of Bihar, viz. Lalu Prasad Yadav and Dr.
Jaganath Mishra. Known as the Bihar Fodder Scam case, the allegation was that there had been large scale
defalcation of public funds, fraudulent transactions and falsification of accounts to the tune of more than 700 crores
in the Animal Husbandry Department in the State with the connivance of these persons holding high political offices
in the State.
On a public interest writ petition being filed in the Patna High Court, the Court took away the investigation from the
State Police and entrusted it to the Central Bureau of Investigation as it was of the view than as in-depth
investigation was required to be made. The question was raised in the instant case whether the High Court could
pass such an order under article 226.27
The Supreme Court upheld the High Court order. The Supreme Court clarified that the purpose of the High Court
order was not to give any advantage to political party or group of people. It was also not to cast a slur on the state
police. The order was passed “to investigate corruption in public administration, misconduct by the bureaucracy,
fabrication of official records, and misappropriation of public funds by an independent agency that would command
public confidence.” The Supreme Court thus ruled that the order made by the High Court was just and proper. The
Court however directed that the CBI would conduct its investigation under the over-all control and supervisions of
the Patna High Court.
The great importance of this case lies in the fact that an enquiry into a State matter was entrusted to CBI without
the consent, in fact against its wish, of the State Government.
Ms. Jayalalitha was the Chief Minister of Tamil Nadu during the period 1991-96. In 1996, the State Governor
granted sanction for private prosecution of the Chief Minister on certain charges of corruption under the PCA. In his
communication dated 25 March 1995, the Governor stated that he had perused the allegations made and the
materials produced in detail and found that a case had been made out for according sanctions for prosecution of
the Chief Minister.28
On 27 April 1996, the Madras High Court dismissed the writ petition filed by the CM under article 226 challenging
the order of sanction passed by the Governor.29 The Court rejected the petitioner’s argument that she was not given
any notice or opportunity before the impugned order was passed. The Court ruled the order in question was only an
administrative order and not a quasi-judicial order and so no hearing need be given to the petitioner before passing
such an order. The Court ruled that a private complaint was maintainable under PCA. The Court also invoked article
361 of the Constitution granting immunity to the Governor against any court action. The High Court ruled that the
sanction under the PCA was the “exclusive function of the Governor to be exercised by the Governor and that the
immunity the Head of State enjoyed under article 361 was absolute and beyond question by court.” The Court did
Page 3 of 3
not agree with the proposition that according of sanction by itself would offend one’s rights, much less the
fundamental rights, or cast a stigma on the persons, since what the Governor had passed was only an
“administrative order”.
Granting special leave to appeal under article 136, the Supreme Court stayed the operation of the Governor’s order
sanctioning the prosecution of the Chief Minister on certain charges of corruption and criminal misconduct.30
In the elections held for the Tamil Nadu Legislature, Ms. Jayalalitha’s Party AIDMK was defeated at the polls and
the DMK Government took office under the Chief Ministership Karunanidhi. The DMK Government filed a number of
cases of corruption against the ex-Chief Minister, Ms. Jayalalitha.
Although there have been any number of corruption cases filed against Chief Ministers and Ministers, and while
there have probes and inquiries conducted by Commissions of Inquiry, CBI, or ad hoc Inquiry Committees, and
even trials in the courts, the sad fact remains that there is hardly any instance of any such person having been
brought to book. The persons accused of corruption are elected again and again by the people to the legislatures.
There are cases galore of political power being misused for personal gain by Chief Minister/Ministers. This
underlines the fact that there is an urgent need for an effective legal frame work to tackle corruption at high places.
19 State of Jammu & Kashmir v Baskhi Ghulam Mohammad, AIR 1967 SC 122 : 1966 Supp SCR 401.
20 M. Karunanidhi v India, AIR 1979 SC 898 : (1979) 3 SCC 431 : 1979 CrLJ 773.
21 State of Karnataka v UOI, AIR 1978 SC 68 : (1977) 4 SCC 608. See M.P. Jain, Indian Cost. Law, 796-799 (203).
22 See, Harekrishna Mahtab v Chief Minister Orissa, AIR 1971 Ori. 175. The government appointed an officer to conduct a
preliminary inquiry to report to the government whether the available materials revealed a prima facie case for
appointment of a statutory commission of inquiry.
23 A.R. Antulay v Ramdas Sriniwas Nayak, AIR 1984 SC 718 : (1984) 2 SCC 500 : 1984 CrLJ 647.
24 The case has seen many ups and downs. The case has come before the Supreme Court several times: see, A.R.
Antulay v R.S. Naik, AIR 1984 SC 718; R.S. Nayak v A.R. Antulay, AIR 1984 SC 684; A.R. Antulay v R.S. Nayak, AIR
1988 SC 1531; A.R. Antulay v R.S. Naik, AIR 1992 SC 1701.
25 State of Haryana v Bhajan Lal, AIR 1992 SC 604 : 1992 Supp (1) SCC 335 : 1992 CrLJ 527. See, infra, for more
details.
26 D. Satyanarayana v N.T. Rama Rao, AIR 1988 AP 139.
27 State of Bihar v Ranchi Zila Samta Party, AIR 1996 SC 1515 : (1996) 3 SCC 682.
28 The Hindu, Intl. Ed., dated 8 April 1995, p. 1.
29 The Hindu, Intl. Ed., dated 6 May 1995, p. 4.
30 The Hindu, Intl. Ed., 20 May 1995, p. 8.
End of Document
46.7 The Prevention of Corruption Act, 1988
COMMISSION

Parliament has enacted the above Act in order to curb corruption among the public servants. It is not the purpose of
this Treatise to dilate upon the criminal law aspects of corruption. This matter is foreign to the scope of this book.
What is being attempted here to take into cognizance the Administrative Law aspects involved in the enforcement
of the Act. The Supreme Court has Characterised PCA as a “social legislation” designed to curb illegal activities of
the public servants. It needs to be interpreted liberally so as to advance its object.31
A public servant can also be prosecuted for bribery and corruption in a criminal court. With a view to expedite such
trials, the Prevention of Corruption Act, 1988 (PCA) makes certain provisions.
As it is in the interest of the public that corruption be eradicated, so also it is in the public interest that honest public
servants should be able to discharge their duties free from false, frivolous and malicious accusations. PCA thus
seeks to balance both the objectives. On the one hand, it seeks to provide for expeditious trial of corruption cases;
on the other hand, it provides for certain safeguards against frivolous trials. One such safeguard contained in
section 19 of the PCA is that before a public servant can be prosecuted for the specific offences made punishable
under the Act,32 sanction of the State Government is necessary in case a of a person who is employed in
connection with the affairs of a State and is not removable from his office save by or with the sanction of the State
Government. Similar is the case with respect to the employees of the Central Government. In case of other
persons, sanction of the authority competent to remove him from office is requisite.
No court can take cognisance of such an offence against a public servant without such previous sanction.
Explaining this provision, the Supreme Court has said that sanction of that competent authority alone is necessary
which is competent to remove the public servant from the office which he is alleged to have misused or abused for
corrupt motive, and for which prosecution is intended to be launched against him. Further, the authority entitled to
grant sanction must apply its mind to the facts of the case, evidence collected and other incidental facts before
according sanction. The Court has emphasised:
“A grant of sanction is not an idle formality but a solemn and sacrosanct act which removes the umbrella of protection of
government servants against frivolous prosecutions and the aforesaid requirements must therefore be strictly complied with
before any prosecution could be launched against public servants.”33
In Mohammed Iqbal Ahmad v State of AP,34 the Supreme Court has emphasized two significant aspects of sanction
for prosecution. First, any case instituted without a proper sanction must fail as the entire proceedings are rendered
void ab initio. Therefore, the prosecution must prove that valid sanction has been granted by the sanctioning
authority. Secondly, the sanctioning authority must be satisfied that a case for sanction has been made out
constituting the offence. The sanctioning authority at the time of giving sanction must be aware of the facts
constituting the offence and must apply its mind. The grant of sanction is not an idle formality. It is a sacrosanct act
which affords protection to the government servants against frivolous prosecutions. All the facts constituting the
offence must be placed before the sanctioning authority and it should then arrive at its satisfaction.
In State of Maharashtra v R.S. Nayak,35 Nayak filed a complaint against Chief Minister Antulay charging him with
Page 2 of 4
the commission of offences under sections 161 and 185 of the Penal Code and section 7 of the PCA.36 The
Supreme Court ruled that the complaint was not maintainable without the requisite sanction of the government
under section 19 of the PCA.37
The Court also stated that the sanction must be given by the Governor in his individual discretion and not on the
advice of the Ministers. For the interest of democratic government and its functioning, the Governor must act in
such a case on his own on this point, the Court observed: “When there is to be a prosecution of the Chief Minister,
the Governor would, while determining whether sanction for such prosecution should be granted or not under
section 6 (section 19) of the Prevention of Corruption Act, as a matter of propriety, necessarily act in his own
discretion and not on the advice of the Council of Ministers.”
This ruling will advance the cause of justice, for no Chief Minister could possibly advise the Governor to give
sanction for his own prosecution.
An interesting question was raised in R.S. Nayak v A.R. Antulay.38 Antulay was the Chief Minister of Maharashtra.
He reigned in 1982 but continued to be a member of the State Legislature. On being moved by Nayak, the
Governor granted sanction to prosecute Antulay under section 6 (section 19) of the PCA. Nayak then filed a
complaint against Antulay in the court, the main burden of which was that Antulay as Chief Minister obtained funds
from the public by setting up certain trusts under his control, in exchange for showing favour, or not showing
disfavour, in exercise of his official functions. Antulay raised the objection that since he was an MLA, and so a
public servant,39 the previous sanction of the State Legislature was also necessary to prosecute him.
The Supreme Court rejected Antulay’s contention saying that the courts should interpret the Act in such a way as
would advance the object and purpose of the Act, viz., eradication of bribery and corruption. A trial without a valid
sanction is a trial without jurisdiction of the court. But sanction is necessary only if the concerned person is a public
servant when the court is called upon to take cognisance of the offence committed by him. If he has ceased to be a
public servant by that time, no sanction could be necessary for prosecuting him.
The relevant date with reference to which a. valid sanction is sine qua non for taking cognisance of an offence
committed by a public servant as required by section 6 (section 19) PCA is the date on which the court is called
upon to take cognisance of the offence of which he is accused. Antulay having resigned from the office of the Chief
Minister, he had ceased to be a public servant on the date his prosecution was taken cognisance of by the court.
The Court also ruled that a member of a State Legislature (MLA) cannot be regarded as a public servant.40
The act of giving consent to prosecuting a public officer under the PCA is an administrative, and not a quasi-judicial
act. Nor there is a lis involved therein. This means that there is no question of giving an opportunity to the
delinquent public servant at that stage. Also, the order of sanction need not contain any detailed reasons in support
of giving sanction. But the basic facts constituting the offence must be apparent on the impugned order and record
must bear out the reasons in that regard. However, before granting sanction the concerned authority must have
before it the necessary report and the material facts which prima facie establish the commission of the offence
charged and the concerned authority must apply its mind to the material on record. Proper application of mind to the
existence of prima facie evidence of the commission of the offence is only a precondition to grant or refuse to grant
sanction.41
An interesting question has been considered by the Supreme Court in Mansukhlal Vithaldas Chauhan v State of
Gujarat.42 Charges of corruption were laid against an employee of the Gujarat Government. Sanction for his
prosecution was granted by the Secretary to the Gujarat Government after the High Court issued mandamus to the
Secretary to grant sanction in the instant case within a month. The crucial question raised in the case was whether
the sanction granted in pursuance of mandamus can be regarded as valid?
The Supreme Court answered in the negative. The Court emphasized:
“Sanction lifts the ban for prosecution. The grant of sanction is not an idle formality or an acrimonious exercise but a solemn
and sacrosanct act which affords protection to government servants against frivolous prosecutions”.43
Page 3 of 4
Sanction is a weapon to ensure discouragement of frivolous and vexatious prosecutions and is a safeguard for the
innocent but not a shield for the guilty.
The validity of the sanction depends on the applicability of mind by the sanctioning authority to the facts of the case
as also the material and evidence collected during investigation. It follows from this that the sanctioning authority
must apply his own independent mind for the generation of genuine satisfaction whether prosecution should be
sanctioned or not. Therefore, observed the Court:
“The mind of the sanctioning authority should not be under pressure from any quarter nor should any external force be
acting upon it to take a decision one way or the other. Since the discretion to grant or not to grant sanction vests absolutely
in the sanctioning authority, its discretion should be shown should be shown, to have not been, affected by any extraneous
consideration.”44
The sanction granted would be invalid if the sanctioning authority is put under some sort or obligation or compulsion
and is thus not able to apply its independent mind for any reason whatsoever. The order of sanction would be bad
for the reason that discretion of the authority “not to grant sanction” is taken away and the authority is compelled to
act mechanically to sanction the prosecution.45 Accordingly, in the instant case, the grant of sanction was held to be
invalid because issue of mandamus by the High Court to grant sanction left the authority with no choice except to
pass the order of sanction. The authority, thus, is mandamus.
No sanction under section 19(1) of the PCA is needed when prosecution is launched against a retired public
servant for an offence under the Act committed by him while he was a public servant.
No sanction is required to prosecute a public servant after retirement.46 The Supreme Court has observed in
Kalicharan:47
“A public servant who committed an offence mentioned in the Act, while he was a public servant, can be prosecuted with
the sanction contemplated in section 19 of the Act if he continues to be a public servant when the court takes, cognizance
of the offence. But if he ceases to be a public servant by that time the court can take cognizance of offences without any
such sanction”.
This proposition has been reiterated by the Supreme Court in Padmanabhan.48 An accused facing prosecution for
offences under the PC Act cannot claim any immunity on the ground of want of sanction, if he ceases to be a public
servant on the date when the court takes cognizance of the said offences.
31 Madhya Pradesh v Shri Ram Singh, AIR 2000 SC 870, at 873; R.S. Nayak v A.R. Antulay, AIR 1984 SC 684.
32 The offences are those punishable under sections 7, 10, 11, 13 and 15 of the PCA.
33 R.S. Nayak v A.R. Antulay, AIR 1984 SC 684, 697 : (1984) 2 SCC 183 : 1984 CrLJ 613; see, comments ahead.
34 Mohammed Iqbal Ahmad v State of AP, AIR 1979 SC 677 : (1979) 4 SCC 172 : 1979 CrLJ 633.
35 State of Maharashtra v R.S. Nayak, AIR 1992 SC 1219.
36 At the time of the case, it was section 5 of PCA, 1947. It is now section 7 of the PCA, 1988.
37 At the time of the case, it was section 6 of the PCA, 1947.
38 R.S. Nayak v A.R. Antulay, AIR 1984 SC 684 : (1984) 2 SCC 183 : 1984 CrLJ 613.
39 For explanation of the term “public servant”, see infra.
40 For discussion on “who is a public servant”, see, infra.
41 State of Bihar v P.P. Sharma, (1992) Supp. (1) SCC 222 : AIR 1991 SC 1260 : 1991 CrLJ 1438; State of Maharashtra v
Ishwar Piraji Kalpatri, AIR 1996 SC 722 : (1996) 1 SCC 542 : 1996 CrLJ 1127; Mohammed Iqbal Ahmad v State of AP,
AIR 1979 SC 677 : (1979) 4 SCC 172 : 1979 CrLJ 633; Balram Swain v Orissa, AIR 1991 SC 279.
42 Mansukhlal Vithaldas Chauhan v State of Gujarat, AIR 1997 SC 3400 : (1997) 7 SCC 622 : 1997 CrLJ 4059.
43 Mohammed Iqbal Ahmad v State of AP, AIR 1979 SC 677 : (1979) 4 SCC 172 : 1979 CrLJ 633.
Page 4 of 4
44 Mansukhlal Vithaldas Chauhan v State of Gujarat, AIR 1997 SC 3400, 3405 : (1997) 7 SCC 622 : 1997 CrLJ 4059.
45 See cases discussed above.
46 S.A. Venkataraman v State, AIR 1958 SC 107; C.R. Bansi v State of Maharashtra, AIR 1971 SC 786; State of WB v
Manmal Bhutoria, AIR 1977 SC 1772; K. Veerraswami v UOI, (1991) 3 SCC 655; Kalicharan Mahapatra v State of
Orissa, AIR 1998 SC 2595 : (1998) 6 SCC 411.
47 Kalicharan Mahapatra v State of Orissa, AIR 1998 SC 2595 : (1998) 6 SCC 411. Also see, discussion ahead.
48 State of Kerala v Padmanabhan Nair, AIR 1999 SC 2405 : (1999) 5 SCC 690 : 1999 CrLJ 3696.
End of Document
46.8 Public Servant
COMMISSION
46.8 Public Servant

A case was registered against a public servant under section 13(2) of the Prevention of Corruption Act, 1988. He
retired from service but the investigation into the case continued. Thereafter a charge sheet was served on him. He
challenged his prosecution on the ground that since he had retired from service he could no longer be tried under
the Act.
In Kalicharan Mahapatra v State of Orissa,49 the Supreme Court rejected the contention arguing that an offence
committed by a public servant under the Act would vanish off from penal liability at the moment he demits his office
as a public servant. He has to be a public servant at the time of commission of the offence in order to make him
liable under the PCA. He cannot commit any such offence after he demits his office. If the contention now raised
were to be accepted “it would lead to the absurd position that any public servant could commit the offences under
the Act soon before retiring or demitting his office and thus avert any prosecution for it or that when a public servant
is prosecuted for an offence under the Act he can secure an escape by protracting the trial till the date of
superannuation”.
Therefore, the public servant who committed the offence while he was a public servant is liable to be prosecuted
whether he continues in office or not at the time of trial or during the pendency of the prosecution.
In this connection, the provisions of section 19(3)(a) and (b) may be noted:
“(a) No finding, sentence or order passed by a special judge shall be reversed or altered by a court of appeal,
confirmation or revision on the ground of the absence of, or any error, omission or irregularity in, the
sanction required under sub-sec. (1), unless in the opinion of that court, a failure of justice has in fact been
occasioned thereby.
(b) no court shall stay in proceedings under this Act on the ground of any error, omission or irregularity in the
sanction granted by the authority, unless it is satisfied that such error, omission or irregularity has resulted
in a failure of justice.”
49 Kalicharan Mahapatra v State of Orissa, AIR 1998 SC 2595 : (1998) 6 SCC 411.
End of Document
46.9 Competent Authority to Grant Sanction
COMMISSION

Under the provisions of the Bombay Municipal Corporation Act, the Municipal Commissioner was the appointing
authority. He also had the power of dismissal but he could exercise the same with the prior approval of the Standing
Committee.
The Municipal Commissioner granted sanction for prosecuting the respondent under the PCA. The respondent
raised a preliminary objection that the sanction granted the Municipal Commissioner without obtaining the previous
approval of the Standing Committee was not valid. The Supreme Court rejected the contention in State v K.K.
Jagtiani.50 The Commissioner was held to be the competent authority to grant the sanction. The Standing
Committee would come in at the end of the inquiry or the criminal trial. The Standing Committee is not the
competent authority, the previous approval of the Standing Committee was only a pre-condition to the exercise of
the power of dismissal vested in the Commissioner.
A Judge of the Supreme Court/High Court is a public servant by virtue of cl. (iv) of section 2(c) of PCA, 1988.
Though there is no master and servant relationship or employer and employee relationship between a High
Court/Supreme Court Judge and the President of India in whom the executive power of the union is vested under
article 53, cl. (iv) of section 2(c) includes every Judge. Under section 19(1)(c), the authority competent to remove a
public servant from his office can give sanction for his prosecution under the PCA. Therefore, for the purpose of
section 19(1)(c), the President of India is the authority competent to give previous sanction for prosecution of a
Supreme Court/High Court Judge.51
In Kalicharan,52 sanction to prosecute the appellant who was a Lecturer in a government medical college was
granted by the Secretary, Medical Education Department of the State Government. The order of sanction was
challenged on the ground that the officer concerned was not competent to grant the sanction. Rejecting the
contention, the Supreme Court observed that section 19 [section 6 of PCA, 1947] of the PCA does not specify any
particular officer of the government as the competent authority to grant sanction. No material was put on record to
show that any officer other than the Secretary had been authorised for the purpose of granting sanction. The object
of section 19 is that there should be no unnecessary harassment of a public servant: the idea is to save the public
servant from harassment which may be caused to him if each and every aggrieved or disgruntled person is allowed
to institute a criminal complaint against him. “The protection is not intended to be an absolute and unqualified
immunity against criminal prosecution”. Therefore, where the sanction order has been passed by an authority who
is competent under the law to represent the State Government, “the burden is heavy on the party who challenges
the authority of such order to show that the authority competent to pass the order of sanction is somebody else and
not the officer who has passed the sanction order in question.”53
When there is to be a prosecution of the Chief Minister of a State, the State Governor while determining whether
sanction for such prosecution under section 19 of PCA ought to be granted or not, as a matter of propriety, has
necessarily to act in his own discretion and not on the advice of the Council of Ministers. That is the only way to
promote justice.54
When sanction to prosecute a public servant was not granted despite the expiry of 12 years, the Supreme Court
quashed the investigations against him. The Court emphasized that under article 21 of the Constitution, every
citizen has a right to speedy trial of the case pending against him.55
Page 2 of 8
46.9.1 Who is a Public Servant?
There are two definitions of a public servant—one is to be found in section 21 of the Indian Penal Code and another
in section 2(c) of the Prevention of Corruption Act, 1988, section 21 of the Indian Penal Code, lays down a number
of categories of persons who can be designated as public servants.
The question whether a person is a ‘public servant’ or not under section 21 of the Indian Penal Code, has been
considered by the Supreme Court in several cases.
The Court has ruled that a ‘public servant’ is an authority who is appointed by the government or a semi-
governmental body and who is in the pay or salary of the same. Secondly, a public servant discharges his duties in
accordance with the rules and regulations made by the Government.
On this view a Municipal Councillor has been held not to be a ‘public servant’. A Municipal Councillor does not owe
his appointment to any governmental authority. He is elected by the people and functions outside governmental56
edicts and commands.
On the same logic, a member of a State Legislative Assembly cannot be regarded as a public servant. The mere
fact that a MLA gets allowance by way of honorarium does not convert his status into that of a public servant, under
section 21 of the Indian Penal Code.57
A Minister or a Chief Minister has been held to be a public servant under section 21 of the Indian Penal Code. He is
appointed by the Governor and is in the pay of the Government. All these incidents made him a public servant
within the meaning of cl. 12 of section 21 of the Indian Penal Code.58
The employees of a co-operative society registered under the State Co-operative Societies Act are not public
servants within the meaning of cl. 12 of section 21 of the Indian Penal Code. A co-operative society is only
registered with the Registrar Co-operative Societies under the State Act. What cl. 12 of section 21 of the Indian
Penal Code envisages is that it be a corporation created by a law and not mere registration.59
Employees of the Life Insurance Corporation,60 or of a nationalized banks61 are public servants under section 21 of
the Indian Penal Code. A nationalised bank is a corporation established by a Central Law and is owned and
controlled by the Central Government.62
If a person is proposed to be prosecuted for an offence under the Indian Penal Code, then the question whether he
is a public servant or not is to be decided with reference to section 21 of the Indian Penal Code. But if he is to be
prosecuted under the Prevention of Corruption Act, 1988, the question of his being a public servant is to be decided
with reference to section 2(c) of the PCA, 1988.
The Court has emphasized that the Act of 1988 “contains a very wide definition of public servant” in section 2(c)
which is much broader than definition of “public servant” as given in section 21 of the Indian Penal Code. The
reason to give a comprehensive definition of ‘public servant’ in section 2(c) is to curb effectively bribery and
corruption not only in Government establishments and departments but also in other Semi-governmental authorities
and bodies and their departments where the employees are entrusted with public duties. The Court has
emphasised that while construing the definition of ‘public servant’ in section 2(c) “the court is required to adopt a
purposive approach as would give effect to the intention of the legislature”. The Act has been brought into force to
purify public administration. The Court has observed:
“When the legislature has used sue, a comprehensive definition of ‘public servant’ to achieve the purpose of punishing and
curbing growing corruption in government and semi-government departments, it would be appropriate not to limit the
contents of the definition clause by construction which would be against the spirit of the statute. The definition of ‘public
servant, therefore deserves a wide construction.’ ”63
Accordingly, the Supreme Court has ruled that an employee of the District Co-operative Central Bank Ltd. is a
public servant by virtue of the words “a person in the service of an authority or a body owned or controlled or acted
by the Government” in section 2(c)(iii) of the PCA, 1988.
An employee of a nationalised bank is a public servant. On account of nationalisation, a nationalised bank is a

corporation established by a Central Act and is owned and controlled by the Central Government and this falls
Page 3 of 8
under section 2(c)(iii) of the PCA, 1988.64 Similar is the position of an employee of the Life Insurance Corporation
which is a statutory corporation established by a Central Law.65
46.9.2 Special Judges
Under section 3 of the PCA, the concerned government has power to appoint special judges to try the offences
made punishable under the Act. Section 3 is an enabling and empowering provision under it, the Central or State
Government may, by notification in the Official Gazette, appoint as many special Judges as may be necessary “for
such area or areas or for such case or group of cases as may be specified in the notification” to try the offences
made punishable under the PCA, or any conspiracy to commit or any attempt or any abetment of any of the
offences punishable under the Act. These offences are triable by special judges only. A Sessions Judge, or an
Additional/Assistant Sessions Judge can be appointed as a special judge. A special judge follows the procedure
laid down in the Criminal Procedure Code for trial of warrant cases by the Magistrate. A special judge, as far as
practicable, holds the trial of an offence on day-to-day basis.66
The Supreme Court has ruled that section 3 of the PCA, is an empowering section and depending upon the
necessity, the Government has to appoint special judges for an area or areas or case or group of cases. Even if in
an area a special judge has already been appointed, if necessity may arise for appointing one or more special
judges to deal with a particular case or group of cases because of some special features of that case or cases or for
some other special reasons.
The constitutional validity of section 3 of the PCA, was challenged under article 14 of the Constitution on the ground
that it confers unfettered, unguided and absolute discretion on the Government and is thus capable of leading to
abuse of power by the Government. The Supreme Court has however upheld the validity of section 3 in J.
Jayalalitha v UOI.67 The Court has agreed with the basic proposition that conferment of discretionary power on the
executive which in the absence of any policy or guidelines permits it to pick and choose is unconstitutional.68 But,
the Court has ruled in the instant case that section 3(1) does not confer unfettered or unguided power because the
object of the Act and section 3 itself indicate when, and under what circumstances, the power conferred by section
3 has to be exercised. The policy can be gathered from the preamble, the provisions of the enactment and other
surrounding circumstances. The Court has clarified that the policy underlying section 3 is that cases of corruption
are to be tried speedily and are to be completed as early as possible. This is the policy of the Act. Therefore, while
exercising the power under section 3, the Government is to be guided by the said policy. The Legislature has
provided that the Government “shall appoint as many special judges as may be necessary. The words “as may be
necessary” provide the guideline according to which the Government has to exercise its discretion to achieve the
object of speedy trial. The legislature could not have anticipated as to how many special Judges would be needed
in an area. Therefore, the legislature could not have laid down any fixed rule or guideline. The legislature had
therefore to leave this matter to the discretion of the State Government as it would be in a better position to know
the requirement. This is why discretion has been conferred on the State Government to appoint as many special
judges as may be necessary.69
46.9.3 Who can Investigate the Offence
Section 17 of the PCA 1988 lays down the categories of police officers who can investigate the offences under the
PCA. In case of the Delhi Special Police Establishment, no officer below the rank of an inspector of police can
investigate the offence. In metropolitan areas, no police officer below the rank of an Assistant Commissioner of
Police, and elsewhere not below a Deputy Superintendent can investigate without the prior order of the Metropolitan
Magistrate or a Magistrate I Class. However, if a police officer not below the rank of an Inspector of Police is
authorised by the Government in this behalf by general or special order, he can also investigate in such offences
without the order of Metropolitan Magistrate or the Magistrate I Class, as the case may be, or make arrest without a
warrant.
However, according to the second proviso of section 17, where, the offence of possessing “disproportionate
wealth”70 is to be investigated, such an investigation is not to be conducted without the prior order of a police officer
not below the rank of a Superintendent of Police.
The main purpose underlying this provision is to protect the public servant against harassment and victimisation.
The provision seeks to achieve the object of successful investigation into the serious offences. Section 17 is a
safeguard against investigation of offences by public servants, by petty or lower rank police officer.71 Section 17 has
been held to be a mandatory and not a directory provision. Investigation may have to be quashed if sectuib 17 has
been violated.
The question of interpretation of the second proviso has arisen in a few cases. D presented a complaint against the
Page 4 of 8
former Chief Minister Bhajan Lal making certain serious allegations against him prima facie showing commission of
serious offences by him punishable under the PCA. The complaint was directed to Superintendent of Police who
made the following endorsement “Police register a case and investigate”. The SHO of the police station registered a
case and proceeded to investigate. Bhajan Lal challenged the investigation by filing a writ petition in the High Court
under article 226. The Supreme Court quashed the investigation being carried on by SHO on the ground that the
SP’s order to SHO to investigate was not valid on the following grounds:
(1) The order does not comply with the salutary legal requirement of disclosing the reason for according the
permission;
(2) The prosecution has not satisfactorily explained the circumstances which impelled the SP to pass the order
directing the SHO to investigate the case;
(3) The direction manifestly seems to have been granted mechanically and in a very casual manner;
(4) The SHO neither got any order from the Magistrate to investigate offences under sections 161 and 165 of
the IPC, nor the offence under the PCA.
Thus, it was held that the SP had passed the order mechanically and in a very casual manner. SHO had no legal
authority to investigate.72
On the other hand, in State of MP v Shri Ram Singh,73 the order passed by the SP authorising the Inspector to
investigate was found to be valid. The order showed application of mind by the SP and the circumstances which
weighed with him to direct authorisation to order the investigation.
In H.N. Rishbud v State of Delhi,74 the Supreme Court has ruled that that a defect or illegality in investigation,
however serious, has no direct bearing on the competence or the procedure relating to cognizance or trial. If
cognizance is in fact taken, on a police report vitiated by the breach of a mandatory provision relating to
investigation, the result of the trial which follows it cannot be set aside unless the illegality in the investigation can
be shown to have brought about a miscarriage of justice. It is a well established proposition that an illegality
committed in the course of investigation does not affect the competence and the jurisdiction of the court for trial.75
46.9.4 Sanction under Section 197 of the Cr.PC
Section 197(1) debars a court from taking cognisance of an offence except with the previous sanction of the
Government concerned in a case where the acts complained of are alleged to have been committed by a public
servant in discharge of his official or purporting to be in the discharge of his official duty and such public servant is
not removable from office save by or with the sanction of the Government.
This section has now been authoritatively interpreted by the Supreme Court in P.K. Pradhan v State of Sikkim.76
This provision touches the jurisdiction of the court itself. The offence alleged to have been committed must have
something to do, or must be related in some manner, with the discharge of official duty.
For claiming protection under section 197, it has to be shown by the accused that there is reasonable connection
between the act complained of and the discharge of official duty. An official act can be performed in the discharge
of official duty as well as in dereliction of it. For invoking protection under section 197 of the Cr.PC, the acts of the
accused complained of must be such that the same cannot be separated from the discharge of official duty, but if
there was no reasonable connection between them and the performance of those duties, the official status
furnishes only the occasion or opportunity for the acts, then no sanction would be required. If the case as put
forward by the prosecution fails or the defence establishes that the act purported to be done is in the discharge of
duty, the proceedings will have to be dropped.
There is however a subtle difference between section 19 of the PCA and section 197 of the Cr.PC under section 19
of the PCA, no sanction is required to prosecute an ex-public servant when he committed the offence while he was
a public servant. While, under section 197 of the Cr.PC, the necessity for previous sanction applies even to former
public servants as the section uses the phraseology “when any person who is or was a public servant.”77
The protection given by section 197 of the Cr.PC, applies not only to a person who is presently a public servant
when the prosecution is launched, but also extends to a person who was a public servant while committing the
offence, but is no longer so when the prosecution is being launched.
Page 5 of 8
When a public servant is alleged to have committed the offence of fabrication of record or misappropriation of public
fund he cannot be said to have acted in discharge of his official duties. It is not the official duty of the public servant
to fabricate the false record and misappropriate funds in discharge of his official duties. The official capacity only
enables him to fabricate the record or misappropriate the public fund. Under these circumstances, it would not be
necessary to secure sanction under section 197 of the Cr.PC to prosecute the delinquent officer.78
Protection of section 197 of the Cr.PC, cannot be claimed by an employee of a state enterprise. Even though, a
public enterprise may be characterised as ‘State under article 12 of the Constitution, that is only for the enforcement
of fundamental rights, that does not make public undertakings as government departments. Employees of public
enterprises are not regarded as government servants.79
46.9.5 Disciplinary Proceedings
Disciplinary proceedings can be initiated against government servants under the service rules framed by the
government and article 309 of the Constitution of India.
These proceedings are conducted according to the principles of natural justice. In these proceedings, the
disciplinary has much more discretion to hold the person guilty and his decisions are subject to peripheral, and not
intense, judicial review. The quality of evidence required to hold a delinquent public servant guilty on a charge of
corruption is not of the same standard as is required in a court proceeding.
If evidence against a public servant is not strong enough to prosecute him under the Prevention of Corruption Act
on a charge of corruption he may still be proceeded against by way of a departmental inquiry. The Supreme Court
has ruled that judicial review in such matters is extremely limited in scope. The court would ensure that the
principles of natural justice are duly observed at departmental inquiries. The court seeks to ensure that the
delinquent officer receives a fair treatment but does not ensure that the conclusion which the disciplinary authority
has reached is necessarily correct in the eye of the court. If the findings of the disciplinary authority are based on
some evidence, the court would not interfere. Technical rules of the Evidence Act do not apply to disciplinary
proceedings. Adequacy or reliability of evidence cannot be canvassed before a court. The disciplinary authority is
the sole judge of facts subject to there being some evidence on record to support the findings. The court would
interfere if there is no evidence or if the findings are perverse, i.e., findings are such that no reasonable person
would ever reach.
Accordingly, the Supreme Court upheld in B.C. Chaturvedi v UOI,80 the finding of the disciplinary authority that the
delinquent possessed assets disproportionate to his known sources of income. It is an offence under the Prevention
of Corruption Act, but proceedings were initiated against him not under the PCA, but by way of a departmental
inquiry as the evidencing against him was not strong enough to convict him in a court of law.
There is no legal bar for both proceedings—disciplinary proceedings and prosecution under the PCA—to proceed
simultaneously. The disciplinary proceedings are meant not really to punish the guilty but to keep the administrative
machinery unsullied by getting rid of bad elements. The approach and the objective in the criminal proceedings and
the disciplinary proceedings is altogether distinct and different. In disciplinary proceedings, the question is whether
the concerned, public servant is guilty of such conduct as would merit his removal from service or a lesser
punishment, as the case may be. On the other hand, in the criminal proceedings, the question is whether the
offences registered against him under the Prevention of Corruption Act are established and, if so, what sentence
should be imposed on him. The standard of proof, the mode of inquiry and the rules governing the inquiry and trial
in both the cases are entirely distinct and different.
There may however be circumstances when it may be advisable to stay disciplinary proceedings pending the
completion of the trial.81
It may be mentioned here that under article 311(2) of the Constitution, no civil servant can be dismissed, removed
or reduced in rank except after an enquiry in which he has been informed of the charges against him and given a
reasonable opportunity of being heard in respect of those charges. This stipulates an inquiry according to the
principles of natural justice.82
A civil servant can be compulsorily retired before his normal age of retirement. Compulsory retirement is not
regarded as penal and, therefore, no hearing need be given to the person concerned.83
46.9.6 Members of Parliament/State Legislatures
Page 6 of 8
The Supreme Court has ruled in P.V. Narasimha Rao v State,84 that members of Parliament or the state legislatures
are “public servants” under section 2(c) of the PCA. Section 2(c) under section 2(c)(viii) runs as follows:
“Public servant means any person who holds an office by virtue of which he is authorised or required to perform any public
duty.”
A member of Parliament or State Legislature holds an office and by virtue of such office he is required or authorised
to carry out a public duty, viz., effectively and fearlessly representing the constituency.
Under section 19(1)(c) of the PCA, a public servant cannot be prosecuted without the consent of the authority
competent to remove him from office. This however does not lead to the conclusion that an MP cannot be treated
as a public servant under section 2(c)(viii) of the PCA, 1988. An MP has to be treated as a public servant for the
purposes of PCA.
The Court has taken the view that the concept of public servant has been enlarged in section 2(c) of the PCA. A
comparison of the definition of ‘public servant contained in section 21 of the IPC with that in section 2(c) of the PCA,
1988, would denote that section 21 of the IPC, does not include many categories of persons which are included in
section 2(c) of the PCA. These categories are: Sub-cls. (ix), (xi) and (xii), Cl. (viii) of section 2(c) is also broader in
amplitude than Cl. 12(a) of section 21 of the Indian Penal Code.
In case of a Member of Parliament since there exists no authority capable of removing him from the membership of
Parliament, the majority view expressed is that an MP can be prosecuted under PCA without the need of having
any sanction. The authority has observed in this connection:
“The requirement of sanction under section 19(1) is intended as a safeguard against criminal prosecution of a public
servant on the basis of malicious or vexatious allegations by interested persons. The object underlying the said requirement
is not to condone the commission of an offence by a public servant. The inapplicability of the provisions of section 19(1) to
a public servant would only mean that the intended safeguard was not intended to be made available to him.”
But the majority put a rider. Before filing a charge-sheet in respect of offences under the PCA against an MP in a
criminal Court, the prosecuting agency shall obtain the permission of the Chairman/Speaker of the Rajya
Sabha/Lok Sabha, as the case may be.85
But, on the other hand, the majority expressed the view that a member of Parliament can be prosecuted for such
offences only after obtaining the permission of the Chairman/Speaker of the concerned House, as the case may be.
On the other hand, the minority Judges (Bharcha and Rajendra Babu, JJ) disagreed with such a more extreme
view. They ruled that in the absence of an authority competent to give sanction, members of Parliament cannot be
prosecuted for offences under the PCA.
All Judges however urged upon the Central Government to have a suitable law enacted by Parliament to remove
the lacuna.
In Antulay,86 the Court had ruled that a member of the State Legislative Assembly was not a Public Servant within
the meaning of any clauses (especially, third, seventh and twelfth) of section 21 of the Indian Penal Code.
50 State v K.K. Jagtiani, AIR 1996 SC 1910.

51 Shamsher Singh v State of Punjab, (1974) 2 SCC 831; K. Veeraswamy v UOI, (1991) 3 SCC 651.
53 Shivendra Kumar v Maharashtra, AIR 2000 SC 3079, at 3083.
54 Maharashtra v Ramdas Shrinivas Nayak, AIR 1982 SC 1251.
55 Mahendra Lal Das v State of Bihar, (2002) 1 SCC 149 : AIR 2001 SC 2989 : 2001 CrLJ 4718; Ramanand Chaudhary v
State of Bihar, AIR 1994 SC 948 : (2002) 1 SCC 153 : 1994 CrLJ 1221.
Page 7 of 8
56 Ramesh Balkrishna Kulkarni v State of Maharashtra, AIR 1985 SC 1655 : (1985) 3 SCC 606 : 1986 CrLJ 14; State of
Tamil Nadu v T. Thulasingham, AIR 1995 SC 1314 : 1994 Supp (2) SCC 405 : 1995 CrLJ 2080.
57 R.S. Nayak v A.R. Antulay, AIR 1984 SC 684 : (1984) 2 SCC 183 : 1984 CrLJ 613.
58 M. Karunanidhi v UOI, AIR 1979 SC 898 : (1979) 3 SCC 431 : 1979 CrLJ 773.
59 State of UP v Viswanath, 1980 Cr LJ 494 (All); S.S. Dhanoa v Municipal Corporation, Delhi, AIR 1981 SC 1395 : (1981)
3 SCC 431 : 1981 CrLJ 871.
60 State v O.P. Dogra, AIR 1986 SC 312 : (1985) 4 SCC 319 : 1985 CrLJ 1905.
61 UOI v Ashok Kumar Mitra, AIR 1995 SC 1976 : (1995) 2 SCC 768 : 1995 CrLJ 3633.
62 Ashoka Marketing Ltd. v Punjab National Bank, AIR 1991 SC 855 : (1990) 4 SCCC 406.
63 Government of AP. v P. Venku Reddy, AIR 2002 SC 3346 : (2002) 7 SCC 631, at 636 : 2002 CrLJ 4333. Also, State of
Maharashtra v Prabhakarrao, (2002) 7 SCC 636.
64 UOI v Ashok Kumar Mitra, AIR 1995 SC 1976 : (1995) 2 SCC 768 : 1995 CrLJ 3633.
65 Section 2(c)(iii) of the PCA, 1998, runs as follows:
“Public servant means any person in the service or pay of a corporation established by or under a Central Provincial or
State Act, or an authority or a body owned or controlled or aided by the Government or a Government company as
defined in section 617 of the Companies Act, 1956.”
66 J. Jayalalitha v UOI, AIR 1999 SC 1912, at 1921 : (1999) 5 SCC 138 : 1999 CrLJ 2859.
67 J. Jayalalitha v UOI, (1999) 5 SCC 138 : AIR 1999 SC 1912 : 1999 CrLJ 2859.
68 Jain, Treatise, I.
69 Also see, Jyoti Pershad v Administrator for the Union Territory of Delhi, AIR 1961 SC 1602 : (1962) 2 SCR 125; Kathi
Raning Rawat v State of Saurashtra, AIR 1952 SC 123 : 1952 CrLJ 805 : 1952 SCR 435.
70 According to section 13(i)(e): “A public servant is said to commit the offence of criminal misconduct— if he or any
person on his behalf, is in possession or has at any time during the period of his office, been in possession for which
the public servant cannot satisfactorily account, of pecuniary resources or property disproportionate to his known
sources of income.”
71 A.C. Sharma v Delhi Adm., AIR 1973 SC 913 : (1973) 1 SCC 726 : 1973 CrLJ 902; A.R. Antulay v R.S. Nayak, AIR
1984 SC 718, at 732 : (1984) 2 SCC 500 : 1984 CrLJ 647.
72 State of Haryana v Bhajan Lal, AIR 1992 SC 604 : 1992 Supp (1) SCC 335 : 1992 CrLJ 527.
73 State of MP v Shri Ram Singh, AIR 2000 SC 870.
74 H.N. Rishbud v State of Delhi, AIR 1955 SC 196 : (1955) 1 SCR 1150 : 1955 CrLJ 526.
75 Also see, State of MP v Shri Ram Singh, AIR 2000 SC 870, at 877.
76 P.K. Pradhan v State of Sikkim, AIR 2001 SC 2547 : (2001) 6 SCC 704 : 2001 CrLJ 3505.
78 Shamboo Nath Misra v State of UP, AIR 1997 SC 2102 : (1997) 5 SCC 326.
79 Mohammed Hadi Raja v State of Bihar, AIR 1998 SC 1945 : (1998) 5 SCC 91 : 1998 CrLJ 2826.
80 B.C. Chaturvedi v UOI, (1995) 6 SCC 749 : AIR 1996 SC 484.
81 State of Rajasthan v B.K. Meena, AIR 1997 SC 13 : 1996 6 SCC 417.
82 For a full-fledged discussion on this aspect, see M.P. Jain, Indian Constitutional Law, Chapter XXXVI, vol. 2, under
heading ‘Reasonable Opportunity to show cause’ 1693-1710. Also see, M.P. Jain, A Treatise on Adm. Law, Chapter X,
vol. 1.
83 K. Kandaswamy v India, AIR 1996 SC 277 : (1995) 6 SCC 162; State of Orissa v Ramchandra Das, AIR 1996 SC 2436
: (1996) 5 SCC 331; State of UP v Lalsa Ram, AIR 2001 SC 1137 :(2001) 3 SCC 389. For a detailed discussion on this
aspect, see M.P. Jain, Indian Constitutional Law, Chapter XXXVI, Vol. 2, under heading ‘Compulsory Retirement’.
84 P.V. Narasimha Rao v State, AIR 1998 SC 2120 : (1998) 4 SCC 626 : 1998 CrLJ 2930. Also see, Jain, Indian
Constitutional Law, 103-104 (2003)
85 P.V. Narasimha Rao v State, AIR 1998 SC 2120 at 2165 : (1998) 4 SCC 626 : 1998 CrLJ 2930— per S.C. Agrawal, Dr.
A.S. Anand and Roy, JJ.
86 R.S. Nayak v A.R. Antulay, AIR 1984 SC 684.
Page 8 of 8
End of Document
24.1 Introductory
Principles of Administrative Law, 9th Edn (2 Vols) > CHAPTER XXIV LEGITIMATE EXPECTATION
CHAPTER XXIV LEGITIMATE EXPECTATION
24.1 Introductory
Along with the doctrine of promissory estoppel there has also emerged the doctrine of legitimate expectation. The
doctrinal confusion of using interchangeably both the doctrines has been dealt with in great detail in State of
Jharkhand v Brahmputra Metallics Ltd, Ranchi,1 referred also in the previous chapter.
The doctrine of legitimate expectation has been developed in the context of principles of natural justice.2 The
doctrine of legitimate expectation is founded on the principle of reasonableness and fairness.3 Legitimate
expectation is now considered to be a part of the principles of natural justice. If by reason of existing state of affairs,
a party is given to understand that the other party shall not take away the benefit without complying with the
principles of natural justice, the said doctrine would be applicable. The legislature, indisputably, has the power to
legislate but where the law itself recognizes existing right and does not take away the same expressly or by
necessary implication, the principle of legitimate expectation of a substantive benefit may be held to be applicable.4
The doctrine of legitimate expectation is a nascent addition to the rules of natural justice. It goes beyond statutory
rights by serving as another device for rendering justice.5 At the root of the principle of legitimate expectation, is the
constitutional principle of rule of law, which requires regularity, predictability and certainty in government’s dealings
with public.6 Ordinarily, the doctrine of legitimate expectation would not have any application where the legislature
has enacted a statute, which in the instant case is not the case, thus resulting in application of the principle of
promissory estoppel. Hence, there may not be any reason as to why the doctrine of legitimate expectation would
not apply.7 A legitimate expectation is different from anticipation and an anticipation cannot amount to an assertible
expectation. Such expectation should be justifiable, legitimate and protectable.8 It is distinct and different from
desire and hope. It is based on a right. It is grounded in the rule of law as requiring regularity, predictability and
certainty in the government’s dealings with the public. It operates both in procedural and substantive matters.9
The doctrine of “legitimate expectation” is a “latest recruit” to a long list of concepts fashioned by the courts, for
review of administrative actions. No doubt, the doctrine has an important place in the review. Under the said
doctrine, a person may have reasonable or legitimate expectation of being treated in a certain way by an
administrative authority even though he has no right in law to receive the benefit. In such a situation, if a decision is
taken by an administrative authority adversely affecting his interests, he may have justifiable grievance in the light
of the fact of continuous receipt of the benefit, legitimate expectation to receive the benefit or privilege which he has
enjoyed all throughout. Such expectation may arise either from a express promise or from consistent practice which
the applicant may reasonably expect to continue.10 Legitimate expectation is not a legal right. It is an expectation of
a benefit, relief or remedy, that may ordinarily flow from a promise or established practice. The term “established
practice” refers to a regular, consistent, predictable and certain conduct, process or activity of the decision-making
authority. The expectation should be legitimate, that is, reasonable, logical and valid. Any expectation which is
based on sporadic or casual or random acts, or which is unreasonable, illogical or invalid cannot be a legitimate
expectation. Not being a right, it is not enforceable as such. It is a concept fashioned by the courts, for judicial
review of administrative action. It is procedural in character based on the requirement of a higher degree of fairness
in administrative action, as a consequence of the promise made, or practice established. In short, a person can be
said to have a “legitimate expectation” of a particular treatment, if any representation or promise is made by an
authority, either expressly or impliedly, or if the regular and consistent past practice of the authority gives room for
such expectation in the normal course. As a ground for relief, the efficacy of the doctrine is rather weak as its slot is
just above “fairness in action” but far below “promissory estoppel”. It may only entitle an expectant: (a) to an
opportunity to show cause before the expectation is dashed; or (b) to an explanation as to the cause for denial. In
appropriate cases, the courts may grant a direction requiring the authority to follow the promised procedure or
Page 2 of 4
24.1 Introductory
established practice. A legitimate expectation, even when made out, does not always entitle the expectant to a
relief. Public interest, change in policy, conduct of the expectant or any other valid or bona fide reason given by the
decision-maker, may be sufficient to negative the “legitimate expectation”. The doctrine of legitimate expectation
based on established practice (as contrasted from legitimate expectation based on a promise), can be invoked only
by someone who has dealings or transactions or negotiations with an authority, on which such established practice
has a bearing, or by someone who has a recognized legal relationship with the authority.
A total stranger unconnected with the authority or a person who had no previous dealings with the authority and
who has not entered into any transaction or negotiations with the authority, cannot invoke the doctrine of legitimate
expectation, merely on the ground that the authority has a general obligation to act fairly.11
Expectation is a part of the principles of natural justice. No fresh right can be created by invoking the doctrine of
legitimate expectation. By reason thereof only the existing right is saved subject, of course, to the provisions of the
statute.12 The doctrine of legitimate expectation would apply only when a practice is found to be prevailing. It is a
positive concept. But, in a case where purported expectation is based on an illegal and unconstitutional order, the
same is wholly inapplicable, as the same cannot be founded on an order which is per se illegal and without
foundation.13 Consistent past practice adopted by the state can furnish grounds for legitimate expectation.14 Where
the applicants had submitted applications knowing fully well that the same would not obligate the corporation to allot
plots to them and that the requisite sanction of change of land use from industrial to residential was yet to be
obtained, denial of allotment due to refusal of government to sanction such a change would not enable the
applicants to contend that they had legitimate expectation in the matter of allotment.15 A case for applicability of the
doctrine of legitimate expectation, now accepted in the subjective sense as part of our legal jurisprudence, arises
when an administrative body by reason of a representation or by past practice or conduct, aroused an expectation
which it would be within its powers to fulfil unless some overriding public interest comes in the way. However, a
person who bases his claim on the doctrine of legitimate expectation, in the first instance, has to satisfy that he has
relied on the said representation and the denial of that expectation has worked to his detriment. The court could
interfere only if the decision taken by the authority was found to be arbitrary, unreasonable or in gross abuse of
power or in violation of principles of natural justice and not taken in public interest. But a claim based on mere
legitimate expectation without anything more, cannot ipso facto give a right to invoke these principles. It is well
settled that the concept of legitimate expectation has no role to play where the state action is as a public policy or in
public interest unless the action taken amounts to an abuse of power.16 The standard of duty to care in medical
services may also be inferred after factoring in the position and stature of the doctors concerned as also the
hospital; the premium stature of services available to the patient certainly raises a legitimate expectation.17 Where
the party, having satisfied the statutory requirements, was granted an interim license for trading in electricity which it
started, it, therefore, had a legitimate expectation that in considering the application for grant of permanent license,
the same criteria, as laid down in the statute, shall be applied.18
The doctrine of legitimate expectation has two aspects:
(1) Procedural.—The procedural aspects of this doctrine are very well established by now and have already
been referred to. The doctrine envisages that if the administration promises to follow natural justice, or if
there is a long established practice to do so in a given situation, then the administration is held bound to
follow natural justice in that situation. This is regarded as an aspect of fairness.19
(2) Substantive.—The substantive aspect of the doctrine of legitimate expectation is what is being discussed in
this Chapter. This aspect is still in its formative stage.
The substantive aspect of the doctrine is also rooted in fairness.20 Put simply, what the doctrine of substantive
legitimate expectation envisages is that if the administration by a representation has created a legitimate
expectation in some person, then it will be unfair on the part of the administration to whittle down or take away such
legitimate expectation.
Several questions arise in this connection, e.g.:
(a) What is a legitimate expectation?

(b) Can a person claim a substantive benefit or a right on the basis of legitimate expectation?
(c) Can a person claim on the basis of legitimate expectation that the government fulfil a promise or
representation made by it?
Page 3 of 4
24.1 Introductory
(d) When can a decision which disappoints a legitimate expectation of a substantive benefit or advantage be
held invalid on that account?
One whose legitimate expectation has been defeated by executive action, has locus standi to challenge the
executive action as illegal.21 A legitimate expectation can provide a sufficient interest to enable one, who cannot
point to the existence of a substantive right to obtain the leave of the court to apply for judicial review. It is to be
confined mostly to the right of a fair hearing before a decision, which results in negative promise or withdrawing an
undertaking. The doctrine does not give scope to claim relief straightaway from the administrative authorities as no
crystallized right as such, is involved.22
Legitimate expectation extends to an expectation of a benefit. This may arise from what a person has been
permitted to enjoy and which he can legitimately expect to be permitted to continue to enjoy. But the same can be
changed on rational grounds after giving an opportunity to comment to the affected person. It may also extend to a
benefit in the future which has not yet been enjoyed but has been promised.
The term legitimate expectation is much broader in scope than promissory estoppel in at least two respects:23
(1) For promissory estoppel to arise after a representation or promise has been made by a public authority, it
is necessary that the promisee or representee relying on the promise or the representation should have
changed his position. There is no such condition in case of legitimate expectation. There is only the
promise or the representation in the case of legitimate expectation.
(2) Legitimate expectation may arise not only out of a promise or representation, either generally or specifically
to the concerned party, but also out of a past practice followed by the concerned authority.
On the other hand, promissory estoppel cannot arise from a past practice; it arises only out of a promise or
representation as regards some future course of action.
At times, the courts treat legitimate expectation merely as a procedural doctrine. But this is not a correct approach.
As stated above, it is both substantive as well as a procedural doctrine.
Every fact situation giving rise to promissory estoppel also creates a legitimate expectation in the representee, that
the administration will fulfil its representations. But the reverse is not always true. A fact situation may create a
legitimate expectation without at the same time giving rise to promissory estoppel.
At times, the expressions ‘legitimate expectation’ and ‘promissory estoppel’ are used interchangeably, but that is
not a correct usage because ‘legitimate expectation’ is a concept much broader in scope than ‘promissory
estoppel’.
A critical question which has arisen in this area has been, whether the doctrine of legitimate expectation comes in
the way of the executive, changing its policy from time to time? Here the judicial approach has not been consistent
or uniform. On the one end of spectrum, there are cases where the courts have refused to put any fetter on the
discretion of the executive to frame or reframe policy with a view to keep its discretion unfettered. Then, in the
middle, there are cases which say that while the executive can change the policy, it should give an opportunity to
the affected persons to raise objections to the proposed new policy. In this formulation, legitimate expectation is
nothing more than a procedural safeguard.
However, the courts have invariably insisted that change in policy ought to be based on rational grounds.
But, on the other end of the spectrum, there are cases where legitimate expectation has been regarded not only as
procedural but also as a substantive safeguard and, therefore, the court has insisted that while change in policy can
take place from time to time, the policy-maker should, nevertheless, seek to accommodate legitimate expectations
of the people arising out of the old policy. The law in this area is still in the developmental stage and is thus hazy at
present. The plea of legitimate expectation as yet remains a weak plea in Indian Administrative Law. A claim for a
benefit based on legitimate expectation is more often negated by the courts. It is rarely that such a plea is found
acceptable by the courts.
1 State of Jharkhand v Brahmputra Metallics Ltd, Ranchi, (2020) SCC OnLine SC 968.
Page 4 of 4
24.1 Introductory
2 Ashoka Smokeless Coal India (P.) Ltd v UOI, (2007) 2 SCC 640, 702 (para 183). See also Council of Scientific and
Industrial Research v Ramesh Chandra Agrawal, (2009) 3 SCC 35, 53-54 (para 36).
3 Monnet Ispat and Energy Ltd v UOI, (2012) 11 SCC 1 : (2012) 7 JT 50.
4 Southern Petrochemical Industries Co Ltd v Electricity Inspector & ETIO, (2007) 5 SCC 447, 499 (para 133).
5 Official Liquidator v Dayanand, (2008) 10 SCC 1, 61 (para 102) following State of Karnataka v Umadevi (3), (2006) 4
SCC 1. See also University of Rajasthan v Prem Lata Agarwal AIR 2013 SC 1265 : (2013) 2 MLJ 730 (SC) : 2013 (2)
SCALE 225, (2013) 3 SCC 705.
6 J. Raz, The Authority of Law, (1979) Chapter 11, as cited in Official Liquidator v Dayanand, (2008) 10 SCC 1, 61 (para
102).
7 Southern Petrochemical Industries Co Ltd v Electricity Inspector & ETIO, (2007) 5 SCC 447, 449 (para 132).
8 Monnet Ispat and Energy Ltd v UOI, (2012) 11 SCC 1 : (2012) 7 JT 50.
9 Jitendra Kumar v State of Haryana, (2008) 2 SCC 161, 183 (para 58), relying on Chanchal Goyal (Dr.) v State of
Rajasthan, (2003) 3 SCC 485; Bombay Dyeing & Mfg. Co. Ltd. (3) v Bombay Environmental Action Group, (2006) 3
SCC 434; UOI v Hindustan Development Corporation, (1993) 3 SCC 449 and Kuldeep Singh v Government of NCT of
Delhi, (2006) 5 SCC 702.
10 Confederation of Ex-Servicemen Associations v UOI, (2006) 8 SCC 399, 416 (para 33).
11 Ram Pravesh Singh v State of Bihar, (2006) 8 SCC 381, 390-91 (para 15).
12 State of TN v Seshachalam, (2007) 10 SCC 137, 145 (para 16), relying on State of HP v Kailash Chandra Mahajan,
1992 Supp (2) SCC 351 : (1992) 21 ATC 528. See also Commissioner of Municipal Corporation, Shimla v Prem Lata
Sood, (2007) 11 SCC 40, 54 (para 38); Howrah Municipal Corporation v Ganges Rope Co. Ltd., (2004) 1 SCC 663, 680
(para 37).
13 Poonam Verma v Delhi Development Authority, (2007) 13 SCC 154, 163 (para 31).
14 State of Haryana v Jagdish, (2010) 4 SCC 216, 238-39 (para 51), relying on Official Liquidator v Dayanand, (2008) 10
SCC 1.
15 Jasbir Singh Chhabra v State of Punjab, (2010) 4 SCC 192, 213-14 (para 44).
16 Sethi Auto Service Station v Delhi Development Authority, (2009) 1 SCC 180, 190-91 (paras 32 and 33).
17 Malay Kumar Ganguly v Dr. Sukumar Mukherjee, (2009) 9 SCC 221, 279 (para 154).
18 Global Energy Limited v Central Electricity Regulatory Commission, (2009) 15 SCC 570, 588 (para 67).
19 See, Jain, Treatise, I, under Natural Justice, Chapter IX.
20 As Lord Scarman has stated in Preston v IRC, (1985) 2 All ER 326, unfairness in the purported exercise of power can
amount to an abuse or excess of power. For discussion on Preston, see, Jain, Treatise, I, Chapter XIX; also Chapter
XXIII, supra.
21 See, infra.
22 Bannari Amman Sugars Ltd v Commercial Tax Officer, (2005) 1 SCC 625, 633 (para 8) : JT 2004 (10) SC 500 : 2005
(2) Civ LJ 802; relied in MRF Ltd., Kottayam v Assistant Commissioner (Assessment) Sales Tax, (2006) 8 SCC 702,
722 (para 38). See also State of Arunachal Pradesh v Nezone Law House, Assam, (2008) 5 SCC 609. See also V.
Ramakrishna Rao v Singareni Collieries Company Ltd., (2010) 10 SCC 650 (paras 15 to 18).
23 See, supra, Chapter XXIII.
End of Document
24.2 European Community
24.2 European Community

The concept of legitimate expectation is of European origin. It is one of the fundamental principles of the European
Community Law.24 It is from European Droit Administrative that the concept is being gradually assimilated by the
British Courts with the common law as may be discerned from the following discussion.
What matters in the European Community is whether the applicant can demonstrate “an expectation which is
worthy of protection”.25
24 See, Durbeck v Hauptzollant Frankfurt an Main Flughafen, (1981) ECR 1095, at 1120; Mulder v Minister Van Landbouw
en Visserji, (1988) ECR 2321; Spagl v Hauptzollant Rosenteim, (1990) ECR 453. For some more cases on legitimate
expectation from European Law, see, Sedley, J.’s opinion in R. v Maff, ex p. Hamble Fisheries, (1995) 2 All ER 714.
25 Schwarze, European Administrative Law, 867 (1992).
End of Document
24.3 Position in Britain

Because of judicial resistance, the concept of promissory estoppel against the government has not made much
headway in Britain. The courts do not support this concept on the ground that a public authority ought not to fetter
its discretion.26 Nevertheless, the British Courts are seeking to develop an alternative, broader and more flexible
concept of ‘legitimate expectation’ as an aspect of fairness with a view to control administrative action and avoid
injustice to an individual.
The term ‘legitimate expectation’ has already been taken note of earlier in its procedural aspect.27 The procedural
aspect of the doctrine of legitimate expectation is now well established. Thus, if the administration promises to
‘follow natural justice, or if there is a long established practice to do so in a given situation, then the administration is
held bound to follow natural justice in that situation. This is regarded as an aspect of the doctrine of fairness.
At this place what we are discussing, is the substantive dimension of legitimate expectation which, the courts
assert,28 is “rooted in fairness”.29
As Lord Scarman has stated in Preston, unfairness in the purported exercise of a power can amount to an abuse or
excess of power. In the instant case, the term unfairness was used to rule that in certain circumstances breach of
representations made by a public authority may be regarded as unfair.
The question is: can a person claim a benefit or a substantive right on the basis of legitimate expectation? Can a
person claim on the basis of legitimate expectation that the government fulfil a promise or representation made by
it? When can a decision which disappoints an expectation of a substantive benefit or an advantage, be held invalid
on that account?
The law in this area is still in the developmental stage. Put simply, what the doctrine of legitimate expectation
envisages is that if the administration by a representation has created a legitimate expectation in some one, then it
will be unfair for the administration to whittle down or take away such legitimate expectation.
The term legitimate expectation is much broader in scope than estoppel in at least two respects. One, for estoppel
to arise after a representation or promise is made by a public authority, the promisee or representee relying on the
representation or promise should have changed his position to his detriment. There is no such condition in case of
legitimate expectation. There is only the promise or past practice in this case.
Secondly, legitimate expectation may arise not only out of a promise or representation but also out of a past
practice followed by the administration either generally or specifically with respect to the concerned party. On the
other hand, estoppel cannot arise from a past practice; it arises only out of a promise or representation as regards
some future course of conduct.
Every fact situation giving rise to promissory estoppel also creates a legitimate expectation in the representee that
the administration will fulfil its representation. But the reverse is not true. A fact situation may create a legitimate
expectation without at the same time, giving rise to promissory estoppel. At times, the expressions legitimate
expectation and promissory estoppel are used interchangeably but that is not a correct usage because ‘legitimate
expectation’ as a concept is broader than ‘promissory estoppel’.
Page 2 of 7
The doctrine of legitimate expectation has been invoked in Britain in varied factual situations.
Let us take note of some of the pronouncements by the British Courts on the question of legitimate expectation.
24.3.1 CCSU
The statement of Lord Diplock in CCSU is regarded as envisaging legitimate expectation extending to an
expectation of a benefit. This may arise from—
(i) what a person has been permitted by the concerned authority to enjoy and which he can legitimately
expect to be permitted to continue to enjoy until “there has been communicated to him some rational
grounds for withdrawing it on which he has been given an opportunity to comment”;
(ii) he has received assurance from the concerned authority that the benefit will not be withdrawn without
giving him first an opportunity of advancing reasons for contending that it should not be withdrawn.
(iii) It may also extend to a benefit in the future which has not yet been enjoyed but has been promised.
Lord Fraser also observed in the same case as follows:
“But even where a person claiming some benefit or privilege has no legal right to it, as a matter of private law, he may have
a legitimate expectation of receiving the benefit or privilege, and, if so, the courts will protect his expectation by judicial
review as a matter of public law… Legitimate or reasonable expectation may arise from an express promise given on behalf
of a public authority or from the existence of a regular practice which the claimant can reasonably expect to continue.”
Lord Fraser thus put the doctrine of legitimate expectation on a more general basis. Legitimate expectation could be
based on an express promise or representation or by established past action or settled conduct. The representation
must be clear and unambiguous. It could be a representation to the individual or generally to a class of persons.
In this case, the House of Lords also ruled that legitimate expectation could be defeated by considerations of
national security.
24.3.2 Schmidt
In Schmidt v Secretary of State for Home Affairs,30 an alien was given a permit to enter Britain for certain period. He
was refused permission to stay in Britain beyond the stipulated period of the permit. The court ruled that he had a
legitimate expectation to stay in Britain for the permit period, but he had no legitimate expectation to stay in Britain
thereafter.
24.3.3 HTV
A public authority was prevented by the court to unfairly or unjustly depart from its past rulings. The concerned
authority had, by its conduct, led the concerned persons to believe that they could safely rely on its interpretation of
law.31
25.3.4 Findlay
A change in policy concerning parole for prisoners was not held to be in infringement of the legitimate expectation
of certain prisoners, notwithstanding the fact that under the earlier policy, they would have expected to be released
earlier. It was held that the prisoner’s legitimate expectation could be nothing more than that his individual case
would be considered under whatever policy the minister thought fit to adopt.32
24.3.5 Ruddock
In R. v Secretary of State for Home Dept, ex p Ruddock,33 the applicant was a prominent member of the campaign
for nuclear disarmament. The Home Secretary authorized interception of her telephone. She sought judicial review
of the decision to tap her telephone. She argued that the Home Secretary has laid down the criteria to intercept
telephone calls in a circular and that the Home Secretary had failed to observe the criteria laid down by him. She
argued that she had a legitimate expectation that the published criteria for tapping telephone would be followed by
the Home Secretary. Taylor, J., said that the doctrine of legitimate expectation ‘in essence imposes a duty to act
fairly.’ While most of the cases are concerned with the right to be heard, ‘I do not think the doctrine is so confined.’
He went on to say:
“Indeed, in a case where ex hypothesis there is no right to be heard, it may be thought the more important to fair dealing
Page 3 of 7
that a promise or undertaking given by a Minister as to how he will proceed should be kept. Of course, such promise or
undertaking must not conflict with his statutory duty or his duty . . . in the exercise of a prerogative power.”
Taylor, J., has stated that the Home Secretary’s published criteria for regulating telephone tapping created a
legitimate expectation that these guidelines would be properly observed. But it was also ruled that the minister
cannot fetter his discretion and he can change the policy as and when he thinks it necessary. But, then, if the
practice has been to publish the current policy, it would be incumbent on the minister in dealing fairly to publish the
new policy, unless that would conflict with his duties.
If the criteria need to be changed for national security reasons, no doubt, the minister can change them. Had those
reasons prevented him also from publishing the new criteria, the minister can refrain from doing so. If the minister
decides to keep the criteria but depart from them in a single case for national security reasons, he could do so. In
the instant case, the guidelines for tapping telephone were widely publicized and the minister had in the past
reiterated the criteria for tapping a telephone several times. Taylor, J., stated:34
“It would be hard to imagine a stronger case of an expectation arising in Lord Fraser’s words in the CCSU,35 case ‘either
from an express promise given on behalf of a public authority or from the existence of a regular practice which the claimant
can reasonably expect to continue.’ Here it was both.”
Taylor, J., then ruled:
“If a Minister were proved to have failed unlawfully to abide by his own criteria, it may well be salutary that the court should
so declare, lest a Secretary of State be tempted in future to act similarly.”
In the instant case, the plaintiff contended that the Secretary of State issued the warrant to tap his phone unlawfully
as he did not fall within the guidelines. The court ruled that the Secretary of State did not do so either knowingly or
irrationally in the Wednesbury sense.36 The court refused to hold that the decision of the Secretary of state that a
‘warrant was justified in the specific situation by the criteria was outrageous in its defiance of logic.’37
24.3.6 Fire Brigade
Lord Brownie-Wilkinson has stated in Reg v Home Secretary, ex p Fire Brigade Union,38 on the basis of Lord
Diplock’s speech in the CCSU case,39 that ‘an executive decision which affects the legitimate expectations of the
applicant (even though it does not infringe his legal rights) is subject to judicial review.’
In this case, a scheme to compensate victims of crimes was introduced without legislation but under the prerogative
of the Crown. Although one did not have any legal right to any such compensation before the scheme was
introduced, after the introduction of the scheme any argument based on the ‘ex gratia and voluntary nature’ of the
scheme was regarded by the court as erroneous. One whose legitimate expectation was defeated by an executive
action has locus standi to challenge the executive action as illegal.
24.3.7 Khan
In Ex p Khan,40 a Home Office circular letter stated the criteria on which the Secretary of State would permit
children to enter the UK for purpose of adoption. The applicant and his wife were desirous to adopt a relative’s child
living in Pakistan. Accordingly, an application for entry clearance for the child was made but it was rejected on a
ground other than the ones stated in the department’s circular.
The Court of Appeal quashed the government’s decision. Paker, L.J., stated that the Home Office circular afforded
the applicant ‘a reasonable expectation’ that the procedures it set out would be followed. Of course, the Secretary
of State could change these procedures, but, vis-à-vis the recipient of the circular ‘a new policy can only be
implemented after such recipient has been given a full and serious consideration whether there is some overriding
public interest which justifies a departure from the procedures stated in the latter.’ Thus, Parker L.J. stated:
“This will leave the Secretary of State free either to proceed on the basis of the letter or, if he considers it desirable to
operate the new policy, to afford the applicant a full opportunity to make representations why, in his case, it should not be
followed”.
Parker, L.J., also suggested that if the new policy was to continue in operation, the department should redraft the
letter so that false hopes were not raised in those who wished to adopt. ‘To leave it in its present form is not only
bad and grossly unfair administration but, in some instances at any rate, positively cruel.’
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24.3.8 MFK
In certain circumstances, the doctrine of legitimate expectation may even be applied to tax authorities. If the tax-
payer places all the facts clearly before the tax authorities and if they make a clear, unambiguous and unqualified
representation, and the same is not contrary to law, then the representation will be binding on the tax authorities,
and they cannot then resile from it if the representation is relied on.
Characterizing the doctrine of legitimate expectation as a valuable and developing doctrine, Bingham, L.J., stated in
the MFK case:41
“If a public authority so conducts itself as to create a legitimate expectation that a certain course will be followed it would
often be unfair if the authority were permitted to follow a different course to the detriment of one who entertained the
expectation, particularly if he acted on it… The doctrine of legitimate expectation is rooted in fairness.”
In the instant case, the Inland Revenue Commissioners gave some advice to the tax-payer about his tax liability on
some transaction and he acted on it. Later the commissioners refused to follow the advice. The court refused to
hold that the commissioners were bound by their advice, as on facts the court found that there was no abuse of
power by them. Bingham, L.J. stated in this connection:
“Had I found that there was unfairness, significant enough to be an abuse of power, I would not exercise my discretion to
refuse relief.”
24.3.8 Dean
In Ex p Dean,42 investigating officers had undertaken to the applicant that proceedings would not be commenced or
continued against him in consideration of his assistance to them in their inquiries in relation to another offence. His
committal for trial was quashed, as the police had broken its promise of not prosecuting him. The court ruled ‘…the
prosecution of a person who has received a promise, undertaking or representation from the police that he will not
be prosecuted is capable of being an abuse of process.’
24.3.9 Oral Snuff
The courts do not let the doctrine of legitimate expectation come in the way of the concerned authority, changing
the policy. In the Oral Snuff case,43 the applicant manufacturer of oral snuff received not only encouragement from
the British officials to establish a factory in the UK but even received a government grant for the purpose. At the
time, the government was aware of the health risks from snuff. The applicant established the factory in 1985.
In 1988, acting on the advice of a committee, the government stated that it proposed to ban the snuff. The court
rejected the argument of the applicant based on legitimate expectation. Taylor, L.J., ruled that the discretion of the
Secretary of State could not be fettered by a moral obligation to the applicant, which was based on the
government’s earlier favourable treatment of him. If the Secretary of State concluded on rational grounds that a
policy change was required, his discretion could not be fettered by any moral obligations to the applicant deriving
from any earlier favorable treatment of him. ‘It would be absurd to suggest that some moral commitment to a single
company should prevail over the public interest.’
So, here public interest took precedence over individual interest. The court refused to fetter the discretion of the
administration to change policy except to the extent that the change should be based on rational grounds.
24.3.10 Richmond
In R. v Secretary of State, ex p Richmond,44 Laws, J., has sought to confine the doctrine of legitimate expectation to
a mere procedural matter of hearing. He stated that a public authority may have adopted a particular policy, and, by
promise or past practice, represented that this would be its continuing policy. In such a situation, it may be unfair for
the authority to change its policy unless it announces its intention in advance so as to allow an affected person to
make representations before any change is carried out. This is procedural but not substantive protection.
There can be no bar against any change in policy as such, because such a doctrine will put an obvious and
unacceptable fetter on the power of an authority to change the policy when it considers it necessary to do so. In the
court’s opinion, legitimate expectation only envisaged a right to be heard before change in policy. The court has
said in this connection, “…the putative distinction between procedural and substantive rights in this context has little
(if any) utility; the question is always whether the discipline of fairness, imposed by the common law, ought to
prevent the public authority respondent from acting as it proposes”.
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This is a very restrictive view. In Richmond, in the court’s opinion, legitimate expectation only envisages a right to
be heard before a change in policy.
24.3.11 Hamble Fisheries
The court has however differed from the restrictive view taken in Richmond.45
In the instant case, Sedley, J., has stated categorically that legitimate expectation is not merely a procedural benefit
or protection but that substantive legitimate expectation has also been recognized.
Here the applicant had contended that it was his legitimate expectation that either the licensing policy would not be
changed, or that when radical and severe measures were adopted, either proper transitional provisions, or, proper
‘pipeline’ provisions (i.e. provisions to cover transactions already in progress) would be made by the government.
In any case, the applicant contended that the department was duty bound to give separate consideration to his own
peculiar position and, if appropriate, to make an exception in his favour. Sedley, J., ruled that even though policy
change may take place from time to time, the policy maker should seek to accommodate legitimate expectations.
Sedley, J., has observed:
“Thus it is an obligation to exercise powers fairly which permits expectations to be counterpoised to policy change, not
necessarily in order to thwart it but . . . in order to seek a proper exception to the policy within the British Oxygen
principle.”46
He went on to observe:
“While policy is for the policy maker alone, the fairness of his or her decision not to accommodate reasonable expectations
which the policy will thwart remains the court’s concern. . . .”
While the court accepts ministerial freedom to formulate and to reformulate policy, ‘it is equally the court’s duty to
protect the interest of those individuals whose expectation of different treatment has a legitimacy which in fairness
out-tops the policy choice which tends to frustrate it’. Finally, Sedley, J., has said:
“Legitimate expectation is now in effect a term of art, reserved for expectations which are not only reasonable but which will
be sustained by the court in the face of changes of policy; secondly, that whether this point has been reached is determined
by the court, whether on ground of rationality, of legality, or of fairness, of all of which the court, not the decision-maker is
the arbiter.”47
It is to be noted that in Hamble, Sedley, J., put the case for recognition of substantive legitimate expectation on the
basis of fairness in public administration. On this point he observes:
“[T]he real question is one of fairness in public administration. It is difficult to see why it is any less unfair to frustrate a
legitimate expectation that something will or will not be done by the decision-maker than it is to frustrate a legitimate
expectation that the applicant will be listened to before the decision-maker decides whether to take a particular step. Such a
step does not risk fettering a public body in the discharge of public duties because no individual can legitimately expect the
discharge of public duties to stand still or be distorted because of that individual’s peculiar position.”
The position, therefore, seems to be as follows: the policy-maker is free to change his policy whenever he wants to
do so, given the duty of a public body to keep its discretion unfettered. Nevertheless, the fairness of his decision not
to accommodate the reasonable expectations of the people which the new policy will thwart, remains the concern of
the court.
The court may, at times, seek to protect the legitimate expectations of person arising out of the old policy.
Legitimate expectation has now been accepted as an interest worthy of protection to some extent. The courts may
intervene where the new policy entirely ignores legitimate expectation or gives manifestly improper weight thereto.
24.3.12 Coughlan
A health authority wanted to close a specially built home for very seriously injured long term patients because of
practical and financial difficulties. The court ruled that it was in breach of a promise to the residents that this would
be a home for life. The court prevented the authority from doing so. Rejecting the “rationality” test, the court held
Page 6 of 7
that it was for it to judge “whether there was a sufficient overriding interest to justify a departure from what has been
previously promised.”
The Court of Appeal thought that in the instant case, a lawful promise by the concerned authority had induced a
substantive legitimate expectation.
Thus, the case recognizes that substantive legitimate expectation form part of the law of Britain.
The Court of Appeal has thus recognised the doctrine of legitimate expectation. The court has made a distinction
between three situations:
(a) The court may decide that the public authority is only required to bear in mind its previous policy or other
representation, giving it the weight, it thinks right, but no more before deciding whether to change course.
Here the court is confined to reviewing the decision on Wednesbury grounds.48
(b) The court may decide that the promise or practice has induced a legitimate expectation of being consulted
before the particular decision is taken.
This refers to the procedural aspect of legitimate expectation.49

(c) The court may consider that a lawful promise or practice has induced a legitimate expectation of a benefit
which is substantive. It is for the court to decide in a proper case, whether to frustrate the expectation is so
unfair that to take a new and different course will amount to an abuse of power, “here, once the legitimacy
of the expectation is established, the court will have the task of weighing the requirements of fairness
against any overriding interest relied upon for the change of policy.”50
It is for the court to decide in which of the three categories a specific fact situation falls. In many cases, the difficult
task will be to decide into which category the decision should be allotted. The Coughlan situation was held to fall in
category (c).51 Accordingly the court enforced against the health authority, its promise made to the lady.52
This ruling brings the English law very much near the European Law which seeks to balance the protection of the
general public interest against the individual’s legitimate expectation.53
26 ain, Treatise, I, Chapter XIX; Jain, Cases, III, 2251-2267.

27 Jain, Treatise, I, Chapter IX; Jain, Cases, I, 486-500.
28 MKF Underwriters Agents Ltd., (1990) All ER 90.
29 Preston v IRC (1985) 2 All ER 326. Also, Lord Fraser in CCSU v Minister for the Civil Service, [1984] 3 All ER 935;
Jain, Treatise, I; Jain, Cases, I, 491-496. On Legitimate Expectation, see, Craig, Legitimate Expectations: A Conceptual
Analysis, (1992) 108 LQR 79.
30 Schmidt v Secretary of State for Home Affairs, (1969) 1 All ER 904.
31 HTV Ltd. v Price Commission, 1976 ICR 170.
32 In re Findlay, (1985) AC 318. Also see, R. v Home Secretary, ex p. Hargreaves, (1997) 1 WLR 906; Pierson v
Secretary of State for the Home Department, (1997) 3 All ER 577.
33 R. v Secretary of State for Home Department, ex p Ruddock, (1987) 2 All ER 518, 531.
34 R. v Secretary of State for Home Department, ex p Ruddock, (1987) 2 All ER 518 at 531.
35 Council of Civil Service Union (CCSU) v Minister for Civil Service, (1984) 3 All ER 935.
36 Associated Picture House Ltd. v Wednesbury Corporation, (1948) KB 223 . For detailed discussion on this case, see
Jain, Treatise, I, Chapter XIX. Also see, Jain, Cases, III, Chapter XVI, 2229-2236.
37 Also see, R. v Home Secretary, Exp. Urmaza, (1996) COD 479; R. v Home Secretary, Ex.p. Gangadeen, (1998) 1 FLR
762.
38 Reg v Home Secretary, ex p Fire Brigade Union, (1995) 2 WLR 464, 474.
39 Council of Civil Service Union (CCSU) v Minister for Civil Service, (1984) 3 All ER 935.
Page 7 of 7
40 R. v Secretary of State for the Home Dept., ex. Asif Mahmood Khan, (1985) All ER 40.
41 R. v Inland Revenue Commissioners, ex. p. MFK Underwriting Agents Ltd., (1990) 1 All ER 90; Jain, Cases, IV,
Chapter XXIII.
42 R v Croydon Justices, ex p Dean, (1993) QB 769.
43 Reg v Health Secretary, ex p US Tobacco International Inc., (1992) QB 353, 369. Also see, Re Findlay (1985) AC 318;
Lord Diplock in Hughes v Department of Health & Social Security, (1985) AC 776.
44 R. v Secretary of State, ex p Richmond, (1994) 1 All ER 577.
45 R v Ministry of Agriculture Fisheries and Food ex p Hamble (offshore) Fisheries Ltd., (1995) 2 All ER 714.
46 British Oxygen Co Ltd. v Minister of Technology, (1970) 3 WLR 488. See, Jain, Treatise, I, Chapter XIX; Jain, Cases,
III, 2263.
47 R v Ministry of Agriculture Fisheries and Food ex p Hamble (offshore) Fisheries Ltd., (1995) 2 All ER at 732.
48 Ref. Findlay and Hargreaves.
49 Ref. Attorney General of Hongkong v NgYuen Shiu, (1983) 2 AC 629.
50 (2001) QB at 242.
51 For extracts from the case, and comments thereon, see, Jain, Cases, IV, Chapter XXIII.
52 For extracts from the case, and comments thereon, see, Jain, Cases, IV, Chapter XXIII.
53 R. v North and East Devon Health Authority, ex. p. Coughlam, (2000) 2 WLR 622. For text of the case and further
comments thereon, see, Jain, Cases, IV, Chapter XXIII. Also see, R. v London Borough of Newham and Manik Bibi and
Atoya Al-Nashed, (2002) 1 WLR 237.
End of Document

Lately, for some time now, the courts in India have also been taking note of the developing doctrine of substantive
legitimate expectation. For example, the Supreme Court has stated in UOI v Hindustan Development Corporation:54
“It has to be noticed that the concept of legitimate expectation in administrative law has now, undoubtedly, gained sufficient
importance. It is stated that ‘legitimate expectation’ is the latest recruit to a long list of concepts fashioned by the courts for
the review of administrative action and this creation takes its place beside such principles as the rules of natural justice,
unreasonableness, the fiduciary duty of local authorities and ‘in future, perhaps, the principle of proportionality.’55
In National Buildings Construction Corporation v S. Raghunathan,56 the Supreme Court observed:
“The doctrine of ‘Legitimate Expectation’ has its genesis in the field of administrative law. The Government and its
departments, in administering the affairs of the country are expected to honour their statements of policy or intention and
treat the citizens with full personal consideration without any iota of abuse of discretion. The policy statements cannot be
disregarded unfairly or applied selectively. Unfairness in the form of unreasonableness is akin to violation of natural justice.
It was in his context that the doctrine of ‘Legitimate Expectation’ was evolved which has today become a source of
substantive as well as procedural rights. But claims based on ‘Legitimate Expectation’ have been held to require reliance on
representations and resulting detriment to the claimant in the same way as claims based on promissory estoppel.”
The Supreme Court in Punjab Communications Ltd v UOI,57 referring to a large number of authorities on the
question, observed that:
“A change in policy can defeat a substantive legitimate expectation if it can be justified on ‘Wednesbury’ reasonableness.
The decision maker has the choice in the balancing of the pros and cons relevant to the change in policy. Therefore, the
choice of the policy is for the decision maker and not for the Court. The legitimate substantive expectation merely permits
the Court to find out if the change in policy which is the cause for defeating the legitimate expectation is irrational or
perverse or one which no reasonable person could have made.”
In Jitendra Kumar v State of Haryana,58 it was held that a legitimate expectation is not the same thing as
anticipation. It is distinct and different from a desire and hope. It is based on a right. It is grounded in the rule of law
as requiring regularity, predictability and certainty in the government's dealings with the public and the doctrine of
legitimate expectation operates both in procedural and substantive matters.
In Sethi Auto Service Station v Delhi Development Authority,59 the Supreme Court, after analyzing the relevant
decisions on the doctrine of ‘legitimate expectation’ observed:
“A case for applicability of the doctrine of legitimate expectation, now accepted in the subjective sense as part of our legal
jurisprudence, arises when an administrative body by reason of a representation or by past practice or conduct aroused an
expectation which it would be within its powers to fulfill unless some overriding public interest comes in the way. However, a
person who bases his claim on the doctrine of legitimate expectation, in the first instance, has to satisfy that he has relied
on the said representation and the denial of that expectation has worked to his detriment. The Court could interfere only if
the decision taken by the authority was found to be arbitrary, unreasonable or in gross abuse of power or in violation of
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principles of natural justice and not taken in public interest. But a claim based on mere legitimate expectation without
anything more cannot ipso facto give a right to invoke these principles.”
The court further held that:
“It is well settled that the concept of legitimate expectation has no role to play where the State action is as a public policy or
in the public interest unless the action taken amounts to an abuse of power. The court must not usurp the discretion of the
public authority which is empowered to take the decisions under law and the court is expected to apply an objective
standard which leaves to the deciding authority the full range of choice which the legislature is presumed to have intended.
Even in a case where the decision is left entirely to the discretion of the deciding authority without any such legal bounds
and if the decision is taken fairly and objectively, the court will not interfere on the ground of procedural fairness to a person
whose interest based on legitimate expectation might be affected. Therefore, a legitimate expectation can at the most be
one of the grounds which may give rise to judicial review but the granting of relief is very much limited.”
In Monnet Ispat and Energy Ltd. v UOI,60 the Supreme Court held that the following principles in relation to the
doctrine of legitimate expectation are now well established:
(i) The doctrine of legitimate expectation can be invoked as a substantive and enforceable right.
(ii) The doctrine of legitimate expectation is founded on the principle of reasonableness and fairness. The
doctrine arises out of principles of natural justice and there are parallels between the doctrine of legitimate
expectation and promissory estoppel.
(iii) Where the decision of an authority is founded in public interest as per executive policy or law, the court
would be reluctant to interfere with such decision by invoking doctrine of legitimate expectation. The
legitimate expectation doctrine cannot be invoked to fetter changes in administrative policy if it is in the
public interest to do so.
(iv) The legitimate expectation is different from anticipation and an anticipation cannot amount to an assertible
expectation. Such expectation should be justifiable, legitimate and protectable.
(v) The protection of legitimate expectation does not require the fulfillment of the expectation where an
overriding public interest requires otherwise. In other words, personal benefit must give way to public
interest and the doctrine of legitimate expectation would not be invoked which could block public interest
for private benefit.
It has been held that where a change in the policy decision of the government is valid in law, any action taken
pursuant thereto or in furtherance thereof, cannot be invalidated on the plea of legitimate expectation.61 An
employee has legitimate expectation to be considered for promotion in time as the same is virtually a part of his
fundamental right under article. 16 of the Constitution of India,62 however, the theory of legitimate expectation
cannot be successfully advanced by temporary, contractual or casual employees.63
A reading of the relevant Indian cases, however, exhibit some confusion of ideas. It seems that the judicial thinking
has not as yet crystallized as regards the nature and scope of the doctrine. At times, it has been referred to as
merely a procedural doctrine; at times, it has been treated interchangeably as promissory estoppel. However, both
these ideas are incorrect. As stated above, legitimate expectation is a substantive doctrine as well and has much
broader scope than promissory estoppel.
24.3.1 Fundamental right of speech as basis
In Indibily Creative Private Limited v Government of West Bengal,64 dealing with the restraint imposed by the State
Police of West Bengal on exhibition of the Bengali film ‘Bhobishyoter Bhoot’ which was themed on society, culture
and satire in new age journalism, a 2 Judges Bench of the Supreme Court delved deep into the principles of
censorship, fundamental rights, freedoms of expression and literary genres. It also observed that once the Central
Board of Film Certification has approved and the producer has made arrangements for screening, a legitimate
expectation to exhibit the film for public viewing inheres and police power cannot whittle down such a legitimate
expectation. In essence, restrictions and restraints which are not backed by the force of law were termed to be
‘insidious’ for a democratic society.
24.4.2 Article 14 as the basis of the doctrine of legitimate expectation
At times, the doctrine has been based in India on article 14 of the Constitution.65 This constitutional provision
imposes the duty to act fairly on all public authorities and, therefore, people can have a legitimate expectation that
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they will be treated fairly by the state. As the Supreme Court has emphasized in Food Corporation,66 in all state
actions, the state and its instrumentalities have to conform to article 14 of the Constitution “of which non-
arbitrariness is a significant facet.”
No public authority has an ‘unfettered discretion’; it possesses powers only to use them for public good. This
imposes the “duty to act fairly” on all public authorities, and due observance of this obligation as a part of good
administration raises a “reasonable or legitimate expectation in every citizen to be treated fairly in its interaction with
the state and its instrumentalities, with this element forming a necessary component of the decision-making process
“in all state actions”.
The Supreme Court then went on to observe:
“To satisfy this requirement of non-arbitrariness in a State action,67 it is, therefore, necessary to consider and give due
weight to the reasonable or legitimate expectations of the persons likely to be affected by the decision or else that
unfairness in the exercise of the power may amount to an abuse or excess of power apart from affecting the bona fides of
the decision in a given case. The decision so made would be exposed to challenge on the ground of arbitrariness. . . The
mere reasonable legitimate expectation of a citizen, in such a situation, may not by itself be a distinct enforceable right, but
failure to consider and give due weight to it may render the decision arbitrary, and this is how the requirement of due
consideration of a legitimate expectation forms part of the principle of non-arbitrariness, a necessary concomitant of the rule
of law. Every legitimate expectation is a relevant factor requiring due consideration in a fair decision-making process.”
The court then went on to state that the expectation of the claimant is “reasonable or legitimate in the context, is a
question of fact in each case.” Whenever such a question arises, “it is to be determined not according to the
claimant’s perception but in larger public interest wherein other more important considerations may outweigh what
would otherwise have been the legitimate expectation of the claimant.” The court then observed:
“A bona fide decision of the public authority reached in this manner would satisfy the requirement of non-arbitrariness and
withstand judicial scrutiny. The doctrine of legitimate expectation gets assimilated in the rule of law and operates in our
legal system in this manner and to this extent.”
Once on the facts of a particular case it is found that nature of the activity or controversy involves public law
element, then the matter can be examined by the High Court in writ petitions under article 226 of the Constitution of
India to see whether action of the state and/or instrumentality or agency of the state is fair, just and equitable or that
relevant factors are taken into consideration and irrelevant factors have not gone into the decision-making process
or that the decision is not arbitrary. Mere reasonable or legitimate expectation of a citizen, in such a situation, may
not by itself be a distinct enforceable right, but failure to consider and give due weight to it may render the decision
arbitrary, and this is how the requirements of due consideration of a legitimate expectation forms part of the
principle of non-arbitrariness.68
24.4.2.1 Hindustan Development Corporation
Again, the question of the applicability of the doctrine of legitimate expectation in India arose in UOI v Hindustan
Development Corporation.69 Tenders were called for supply of wagons to the railways. The three big manufacturers
quoted less than the smaller manufacturers. The railways then adopted a dual pricing policy giving counter offers at
a lower rate to the bigger manufacturers who had formed a cartel and offered a higher rate to others, so as to
enable a healthy competition. The three big manufacturers complained that they were also entitled to a higher rate
and an order for supply of large number of bogies.
The Supreme Court held that the change into a dual pricing policy was not vitiated and was based on rational and
reasonable grounds. In this context, the court commenting on the doctrine of legitimate expectation observed that
legitimate expectation is not the same thing as anticipation. It is also different from a mere wish or desire or hope.
Nor is it a claim or demand based on a right. A mere dis-appointment would not give rise to legal consequences.
The court ruled as follows:
“The legitimacy of an expectation can be inferred only if it is founded on the sanction of law or custom or an established
procedure followed in regular and natural sequence. Such expectation should be justifiably legitimate and protectable.”
The court observed further:
“...legitimate expectation gives the applicant sufficient locus standi for judicial review and that the doctrine of legitimate
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expectation is to be confined mostly to right of a fair hearing before a decision which results in negativing a promise or
withdraw an undertaking is taken. The doctrine does not give scope to claim relief straightway from the administrative
authorities as no crystallised right as such is involved. The protection of such legitimate expectation does not require the
fulfilment of the expectation where an overriding public interest requires otherwise. In other words where a person’s
legitimate expectation is not fulfilled by taking a particular decision then decision maker should justify the denial of such
expectation by showing some overriding of such expectation by showing some overriding public interest. Therefore even if
substantive protection of such expectation is contemplated that does not grant an absolute right to a particular person. It
simply ensures the circumstances in which that expectation may be denied or restricted. A case of legitimate expectation
would arise when a body by representation or by past practice aroused expectation which it would be within its powers to
fulfil. The protection is limited to that extent and a judicial review can be within those limits … a person who bases his claim
on the doctrine of legitimate expectation, in the first instance must satisfy that there is a foundation and thus has locus
standi to make such a claim. In considering the same several factors which give rise to legitimate expectation must be
present. The decision taken by the authority must be arbitrary, unreasonable and not taken in public interest. If it is a
question of policy even by way of change of old policy, the courts can not interfere with a decision. In a given case whether
there are such facts and circumstances giving rise to a legitimate expectation, it would primarily be a question of fact. If
these tests are satisfied and if the Court is satisfied that a case of legitimate expectation is made out then the next question
would be whether failure to give an opportunity of hearing before the decision affecting such legitimate expectation is taken,
has resulted in failure of justice and whether on that ground the decision should be quashed. If that be so then what should
be the relief is again a matter which depends on several factors.”
The following ideas are inherent in the above quotation:
(1) Legitimate expectation gives the applicant sufficient locus standi for judicial review. A person basing his
claim on legitimate expectations must satisfy that there is a foundation and he thus has locus standi to
make such a claim.70
(2) The doctrine of legitimate expectation is confined mostly to the right of a fair hearing.71
(3) The doctrine does not give scope to claim relief straight away from administrative authorities as no
crystallized right as such is involved.
(4) Legitimate expectation need not be fulfilled if public interest requires otherwise.
The doctrine cannot come in the way of public interest. Public interest prevails over private interest.72
(5) Even if substantive protection of legitimate expectation is envisaged it does not grant an absolute right to a
particular person. It simply ensures the circumstances in which that expectation may be denied or
restricted.
(6) A case of legitimate expectation arises when a body by representation or past practice aroused
expectation which it would be within its powers to fulfil.
(7) Legitimate expectation cannot be affected by a decision taken by the authority which is arbitrary, or
unreasonable and which is not taken in public interest.
(8) The courts do not interfere with a policy decision subject to what has been said in (7) above.
These propositions have been reiterated in several subsequent cases.
The validity of proposition (7), mentioned above, is somewhat suspect. The doctrine of substantive legitimate
expectation envisages that a person cannot be denied of his legitimate expectation by administrative action. There
is no question of administrative action being unreasonable or arbitrary per se. An administrative action taking away
a legitimate expectation is bad in itself, without its also being unreasonable or arbitrary as well. An administrative
action which is arbitrary or unreasonable is per se invalid.
Needless to say that if an administrative action is unreasonable or arbitrary, it is bad ipso facto whether it takes
away a legitimate expectation or not. Or, vice versa, can it be said that if an administrative action denies legitimate
expectation of a person, such action may be characterized as arbitrary and quashed on that basis?
Reading propositions (2) and (5) together, it appears that the Supreme Court is hesitating in accepting legitimate
expectation as a substantive safeguard. It becomes amply clear from the case-law in Britain, cited above, that
legitimate expectation has substantive overtones, as well and it is not purely of a procedural nature.
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As regards proposition (8), it may be stated that while the government may be free to change its policy from time to
time, and the doctrine of legitimate expectation may not come in the way of formulation and re-formulation of
policies, for that is the discretion of the executive, nevertheless, it should not be forgotten that equities may arise in
favor of some persons when an existing policy is changed and it is only fair that the administration should take due
note of this factor, and provide for a transition period for the change from the old to the new policy. Reference may
be made in this connection to what the court has said above in Hamble Fisheries.
Proposition (4), mentioned above, is reiterated in case after case. The requirements of public interest can outweigh
the legitimate expectation of a private person.
Industrial units were set up in residential areas of Delhi which caused environmental pollution. This continued in
violation of the master plan in connivance of the authorities. The Apex Court observed that illegality would not
become legality on inaction or connivance of the authorities and they could not be allowed to continue.73
A reading of the cases in India shows that legitimate expectation, as such, does not as yet form an enforceable right
to provide an independent ground of challenge. It is regarded as merely a part of the rule of non-arbitrariness to
ensure procedural and substantive fairness of the decision. Also, the requirements of public interest can outweigh
the legitimate expectation of private persons.74
24.4.2.2 Wine Merchants
In Madras City Wine Merchants’ Association v State of Tamil Nadu,75 the fact situation was as follows:
Under the TN Prohibition Act, 1937, two sets of rules were promulgated viz, the TN Liquor (Retail Vending) Rules,
1989 and the TN Liquor (Retail Vending in Bar) Rules, 1992. Both introduced licensing systems–one for retail liquor
vending and the other for operating a bar. The latter license could be had only by one who held a license under the
former rules. The duration of the bar license was one year.
In 1993, the Bar Rules, 1992, were rescinded. The question arose whether the holders of the bar licenses had a
legitimate expectation that their licenses would be renewed after a year, the period for which the licenses were
initially issued. This also raised the question whether rescinding the bar rules was legal?
Refusing to apply the doctrine of legitimate expectation in the instant situation, the Supreme Court pointed out that
there was absolutely no promise of renewal of bar licenses at all. The bar rules were subordinate legislation and no
fetter could be imposed on repeal of subordinate legislation whenever needed in public interest. The decision not to
renew these licenses had been taken much before the time-limit for renewing the licenses. It became necessary to
repeal the bar order in public interest.
The highlight of the case is that the Supreme Court has extensively reviewed the English as well as the Indian case
law on the question of legitimate expectation and has concluded that legitimate expectation may arise in the
following situations:
“(a) if there is an express promise given by a public authority; or

(b) because of the existence of a regular practice which the claimant can reasonably expect to continue;
(c) such an expectation must be reasonable.”
The doctrine of legitimate expectation does not apply—
(i) when there is a change of policy; or

(ii) in public interest; or
(iii) when the position is altered by a rule or legislation.
24.4.2.3 Bharat Wools
A corporation76 controlled by the State Government invited applications for allotment of industrial plots to knit wear
manufacturers. Some persons including the appellants applied and deposited the earnest money.
The power to make allotment of plots vested in the allotment committee. Instead, the managing director of the
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corporation allotted two plots to the applicants without consulting the allotment committee and they deposited the
balance of the price of the plots. In the meantime, the Minister called for the record and, after hearing the parties,
cancelled the allotment in their favor.
They challenged the cancellation of the allotment on the ground that they were deprived of their legitimate
expectation by the minister. The High Court rejected the contention and upheld the minister’s order as there was
usurpation of power by the managing director. The power to make allotment of plots was vested in the allotment
committee. Instead, the power was usurped by the chairman of the committee who himself made the allotment
without reference to the committee. On this point, the court observed:
“He converted himself into sole repository of power and made offers of allotment whimsically and arbitrarily.”
The court ruled that the order of allotment suffered from patent arbitrariness and, therefore, setting aside of that
decision by the minister cannot be regarded as arbitrary or unreasonable.
It was also argued that no fresh applications be invited, and the plots be allotted to the applicants who had earlier
made the applications for the purpose. The argument was justified on the basis of legitimate expectation of these
applicants. But the court refused to accept the contention saying that an “element of speculation and uncertainty is
inherent in that very concept” and that the courts ought not to review administrative decisions on merits. “The
Courts should restrain themselves and restrict such claims only to the legal limitations.” These statements show
that the High Court was not very enthusiastic about the plea of legitimate expectation.
The applicants also pleaded promissory estoppel but the court rejected this argument by saying that the
government made no promise, that the applicants would necessarily get a plot. “By inviting applications, the
Government simply invited the individuals to come in a queue for competition.”
The plea of promissory estoppel cannot bar the government from taking a decision in larger public interest. The
court pointed out that more than one and a half year had elapsed, since the applications were invited for allotment
of plots. Land prices had in the meantime gone up substantially. It would be against public interest to allot the land
amongst original applicants at the price advertised then, “Public interest warrants that the Government and the
Corporation get maximum price and the most competent entrepreneur is given opportunity.”77
24.4.2.4 PTR Exports
The government changes its policy from time to time in public interest according to the changing circumstances.78
So far the courts have been taking the view that policy-making is the function of the government. Unless a promise
was made by the government that a policy would remain in force for some time, no case for applying promissory
estoppel may arise if a policy is modified or withdrawn. However, in such a case, there may be circumstances
calling for the application of the doctrine of legitimate expectation.
24.4.2.5 Elangovan
The Madras High Court has ruled that the question whether the expectation of a party is reasonable or legitimate is
a question of fact to be decided in each case by the court. Whenever such a question arises, the courts have to
determine the same not according to the perception of the claimant but in accordance with the larger public interest
wherein other more important considerations may outweigh, what would otherwise may have been the legitimate
expectation of an individual.79
24.4.2.6 MSN Medicals
A corporation granted license to occupy its shops for a period of three years at a time. In a bid to maximize its
income, the corporation decided to call tenders for these shops. The court ruled that as public interest was involved
in this exercise, there was hardly any scope for application of the principle of legitimate expectation.80 This means
that public interest overrides legitimate expectations of an individual.81
24.4.2.7 Food Corporation
The Food Corporation of India invited tenders for sale of a quantity of defective food-grains.82 The respondent’s bid
was the highest but the FCI did not accept it. Instead, it called all the tenderers for a conference and was able to
negotiate a much higher price for sale of the food-grains in question than the highest tender price. The respondent
did not raise his bid during negotiations while others did. The corporation was thus benefited to the tune of Rs. 20
lacs.83
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The respondent challenged through a writ petition FCI’s decision not to accept his tender as arbitrary. He also
claimed that he had a legitimate expectation that his bid being the highest would be accepted.
The Supreme Court rejected the petitioner’s contention arguing that a tenderer has no right that his tender be
accepted. A tenderer merely has the right that his tender will be considered fairly in terms of article 14 of the
Constitution. No doubt, the tender could not be arbitrarily rejected but if the corporation reasonably felt that the
amount offered by the respondent was inadequate as per the factors operating in the commercial field, the non-
acceptance of the bid could not be faulted. The process of negotiation itself involved giving weight to the legitimate
expectation of the highest bidder and this was sufficient.
A public authority has to act fairly and non-consideration by it of a person’s legitimate expectation, may make its
decision unfair which may amount to an abuse of power making the decision arbitrary. But the legitimate
expectation of a citizen “may not by itself be a distinct enforceable right, but failure to consider and give due weight
to it may render the decision arbitrary, and this is how the requirement of due consideration of a legitimate
expectation forms part of the principle of non-arbitrariness, a necessary concomitant of the rule of law Every
legitimate expectation is a relevant factor requiring due consideration in a fair decision-making process.”
Whether the expectation of the claimant is legitimate or not is a question of fact to be decided in each case “not
according to the claimant’s perception but in larger public interest wherein other more important considerations may
outweigh what would otherwise have been the legitimate expectation of the claimant.” The case thus lays down the
proposition that public interest may exclude a person’s legitimate expectation.
24.4.2.8 Ghaziabad Development
In the master plan prepared for development of an area in Ghaziabad, some land was reserved for ‘recreational’
purposes. Within this area fell the land of the petitioner. On 22 April 1991, the UP Government changed the land
use of the area in question from ‘recreational’ to ‘residential.’
The applicant then submitted an application on 20 July 1991 for permission to develop his land. On 24 September
1991, the government again changed the land use of the area from ‘residential’ to ‘recreational.’ Accordingly, the
application of the petitioner was rejected. He challenged the decision of the government on the ground that after the
land use of the area had been changed from ‘recreational’ to ‘residential’, he had a legitimate expectation that he
could develop a housing colony on his land. He, accordingly, challenged the change of user of land as arbitrary and
illegal.
The Supreme Court rejected the petition saying that no legitimate expectation could arise when construction of the
colony was subject to the permission of the GDA.84
The court went on to observe further that the grant of permission by the GDA was not automatic and the master
plan could always be amended. The court emphasized that legitimate expectation, as such, is not an enforceable
right. However, non-consideration of legitimate expectation of a person adversely affected by a decision may
invalidate the decision on the ground of arbitrariness.85 “In other words, the plea of legitimate expectation relates to
procedural fairness in decision-making and forms part of the rule of non-arbitrariness; and it is not meant to confer
an independent right enforceable by itself.”
24.4.2.9 S.B. International
The Government of India announced a scheme of advance licensing for import of raw materials subject to export of
finished goods being made within a specified time and value added was 1000 per cent. The petitioner entered into
an export contract and thereupon made application for grant of advance import license. Pending his application, the
scheme was modified and now the value added was to be 1900%. The petitioner argued that since he had made
application before the date of modification of the policy, it ought not to apply to him.86 The Supreme Court rejected
his contention arguing that mere making of an application does not create any right that the license would be
granted to him. The court also rejected the plea of ‘promissory estoppel’ as the necessary conditions for the same
as laid in the Motilal Padampat case87 were not fulfilled.
In the opinion of the author, in the above case, the Supreme Court has adopted a purely legalistic and technical
view completely ignoring the equities in favor of the petitioner. The fact situation attracted the doctrine of legitimate
expectation rather than that of promissory estoppel. The court ought to have considered whether in view of the
export commitment entered into by the petitioner on the basis of the policy then prevalent, and his making of the
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application for the grant of import license before the policy was changed, was it not equitable to provide him some
relief on the basis of legitimate expectation for which there was adequate foundation in the fact situation?
24.4.2.10 Punjab Communications
In Punjab Communications Ltd. v UOI,88 the Supreme Court has observed in relation to the doctrine of legitimate
expectation:
“… the doctrine of legitimate expectation in the substantive sense has been accepted as part of our law and that the
decision maker can normally be compelled to give effect to his representation in regard to the expectation based on
previous practice or past conduct unless some overriding public interest comes in the way… Reliance must have been
placed on the said representation and the representee must have thereby suffered detriment.”89
It is suggested that this formulation of the doctrine of legitimate expectation is not correct as it makes “legitimate
expectation” practically synonymous with promissory estoppel. Legitimate expectation may arise from conduct of
the authority; a promise is not always necessary for the purpose.
But, then, the court has gone on to maintain that “the protection for substantive legitimate expectation was based on
Wednesbury unreasonableness”. The court has explained the position as follows:
“In sum, this means that the judgment whether public interest overrides the substantive legitimate expectation of individuals
will be for the decision-maker who has made the change in the policy and the courts will intervene in that decision only if
they are satisfied that the decision is irrational or perverse.”
In the instant case, the change in policy by the government was held not to be “irrational or perverse according to
the Wednesbury principles.
24.4.2.11 International Trading
The Supreme Court has reiterated the proposition that legitimate expectation can be denied on the ground of public
interest.
As explained in International Trading,90 the change in policy can defeat a substantive legitimate expectation if the
new policy can be justified on Wednesbury reasonableness.91
The court has observed:
“The decision-maker has the choice in the balancing of the pros and cons relevant to the change in policy. It is, therefore,
clear that the choice of policy is for the decision-maker and not the court. The legitimate expectation merely permits the
court to find out if the change of policy which is the cause for defeating the legitimate expectation is irrational or perverse or
one which no reasonable person could have made. A claim based on merely legitimate expectation without anything more
cannot ipso facto give a right…” Legitimacy of an expectation can be inferred only if it is founded on the sanction of law.”
The court has observed further:
“If a denial of legitimate expectation in a given case amounts to denial of right guaranteed or is arbitrary, discriminatory,
unfair or biased, gross abuse of power or violation of principles of natural justice. The same can be questioned on the well
known grounds attracting article 14 but a claim based on mere legitimate expectation without anything more cannot ipso
facto give a right to invoke these principles.”
In the view of the author, the above quotation shows a confusion of ideas regarding the concept of legitimate
expectation. If a denial of legitimate expectation amounts to a denial of a ‘legal right’, as observed above, then there
seems to be no point in invoking the concept of legitimate expectation. Denial of a “legal right guaranteed” is
actionable by itself. Similarly, if an administrative action is “arbitrary, discriminatory etc.”, then article 14 of the
Constitution comes into play ipso facto and then there seems to be no need to take resort to the concept of
legitimate expectation.
24.4.2.12 National Building Construction
The Supreme Court has reiterated the proposition, stated by it earlier in Food Corporation, that whether the
expectation of the claimant is reasonable or legitimate in the context is a question of fact in each case. Whenever
the question arises, it is to be determined not according to the claimant’s perception but in larger public interest
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wherein other more important considerations may outweigh what would otherwise have been the legitimate
expectation of the claimant.
In the instant case92 the claim based on legitimate expectation was rejected on the ground that there was no
foundation for the same. The court observed that “there was hardly any legitimacy in the claim of the respondents.”
24.4.2.13 Raj Kumar
The Director General of the Border Security Force with the approval of the Union of India and in consultation with
the department. of Pension and Pensioners’ Welfare issued a GO/circular on 27 December 1995 notifying that a
member of the Force would be entitled to get pensionary benefits on resignation under rule 19 of the Border
Security Force Rules, provided he had put in the requisite number of years of service and fulfilled all other eligibility
conditions. The GO/circular empowered the competent authority ‘having regard to the special circumstances of a
case, to permit a member of the Force to resign before attainment of the age of retirement or before putting in such
number of years of service as may be necessary under the Rules to be eligible for retirement’. The competent
authority was also empowered to grant such permission “to make such reductions in the pension or other retirement
benefits of a member of the Force, if so eligible…”
The said GO/circular was misinterpreted by the authorities to mean that any member of the Force could resign with
the permission of the competent authority, even before completing the qualifying service for pension and would be
eligible for pension under rule 19(1) of the Border Security Force Rules, following which several personnel of the
Force resigned. Their resignations were accepted and in cases of some, the pension amounts were released
whereas cases of some were pending sanction.
In the meanwhile, realizing the mistake, a letter was issued by the authority concerned conveying the decision of
the Director General that all the personnel who resigned with less than 20 years of service under mistaken
impression of the pensionary benefits and were not granted pension, should be taken back immediately and
amount of GPF and other dues paid were required to be refunded. Subsequently, a circular was issued conveying
that the personnel whose resignations were accepted but who had not yet been granted pension, should be called
back to rejoin immediately. In persuasion of the said circular several personnel reported for work and were allowed
to rejoin. However, many did not rejoin the service and the pensionary benefits payable to them were stopped.
In the writ petition before the Supreme Court, it was submitted by them that the mistaken interpretation of the said
Rule 19 was on the part of the authorities for which the personnel were not to blame. It was urged that due to this
mistaken impression of the authorities which was also shared by them, they were prompted to resign in the hope of
getting pensionary benefits which were actually sanctioned to some of them and were in receipt of them. It was
urged that all this has resulted in double jeopardy as they had lost their service as well as pensionary benefit.
The Supreme Court observed that the personnel who had resigned in the hope of getting pensionary benefits,
although not eligible for pension under Central Civil Services (Pension) Rules, 1972, were given opportunity of
getting back into service by virtue of the departmental circular and despite the deadline for reporting for duty being
extended, they failed to avail the opportunity of returning to service. It was held:
“There cannot be any equity in favour of those that failed to avail of the opportunity of rejoining service. If any of them failed
to take advantage of the offer for re-induction into service, they have only themselves to thank.”93
24.4.3 The doctrine of Legitimate Expectation does not apply in the contractual field
As soon as a contract is concluded, the expectation, if any, comes to an end and, thereafter, the parties are bound
only by the terms of the contract. The doctrine of legitimate expectation has no application in relation to a dispute
arising out of a contract qua contract.94 In a case where a concluded contract has been arrived at, there cannot be
any legitimate expectation that he would be allowed to continue with the contract.
24.4.3.1 Indian Aluminium
A tripartite agreement was entered into between the company, the Electricity Board and the State fixing
concessional rate for supply of electricity to the company, a manufacturer of aluminium. Later, the agreement was
superseded by an Act of the State Legislature. The Act empowered the Electricity Board to increase tariff rates
notwithstanding any agreement with the consumers. The increase in electricity rates was contested by the company
on the ground of breach of legitimate expectation.
But the Supreme Court refused to apply the principle of legitimate expectation to the fact situation in the instant
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case, on the ground that when relationship between the parties is contractual, there is no scope for application of
legitimate expectation. The agreement was not the outcome of any unilateral promise or assurance held out by the
State or the Board to the Company. The agreement was the result of negotiations between the parties. Therefore,
the foundation for application of legitimate expectation was absent.95
24.4.3.2 Isaac Peter
The doctrine of legitimate expectation cannot be invoked to modify or vary the express terms of a contract, more so
when they are statutory in nature. In such a case, the mutual rights and liabilities of the parties are governed by the
terms of the contract and the laws relating to contracts. The contracts are entered into voluntarily pursuant to public
action, floating of tenders or by negotiation. There is no compulsion on anyone to enter into these contracts.96
As stated above, no one can have a legitimate expectation that his tender will be accepted. A tenderer merely has a
right of having his tender fairly considered in terms of article 14 of the Constitution.97
24.4.3.3 Chanchal
A person was appointed to a post on a temporary basis for six months, or till a person was regularly appointed
whichever was earlier. Her service, continued to be extended from time to time and, ultimately, her service was
terminated after 14 years. She challenged the termination order on the ground inter alia of legitimate expectation.
The Supreme Court denied the same saying that “it has not been shown as to how any act was done by the
authorities which created an impression that the conditions attached in the original appointment order were waived.”
As a comment on this case, it may be stated that to create a legitimate expectation, it is not always necessary to
make a representation or give an assurance; conduct of the authority for long may also give rise to legitimate
expectation. It is another matter to say that, in the instant case, the legitimate expectation could not be protected
because it went against the rules since a regular appointment could be made only by the Rajasthan Public Service
Commission and no legitimate expectation can be claimed against law.98
24.4.3.4 Umadevi
In Secretary, State of Karnataka v Umadevi,99 the Supreme Court observed that, when a person enters a temporary
employment or gets engagement as a contractual or casual worker and the engagement is not based on a proper
selection as recognized by the relevant rules or procedure, he is aware of the consequences of the appointment
being temporary, casual or contractual in nature. Such a person cannot invoke the theory of legitimate expectation
for being confirmed in the post when an appointment to the post could be made only by following a proper
procedure for selection and in cases concerned, in consultation with the Public Service Commission. Therefore, the
theory of legitimate expectation cannot be successfully advanced by temporary, contractual or casual employees.
24.4.3.5 Bansal
In J.P. Bansal v State of Rajasthan,100 the appellant was appointed as the chairman of the Rajasthan Taxation
Tribunal for a term of five years. Before the expiry of his term, the tribunal was abolished by the State Legislature
passing a law to that effect. Accordingly, Bansal lost his job before the expiry of the five year term. He claimed
compensation for the unexpired term on the ground of legitimate expectation.
As regards the plea of legitimate expectation, the Supreme Court has pointed out that the principle is still in an
evolutionary stage. As a substantive principle, it envisages that “if a representation is made that a benefit of a
substantive nature will be granted or if the person is already in receipt of the benefit that it will be continued and not
be substantially varied then the same can be enforced.”
The Supreme Court denied the plea:
“The principles of legitimate expectation have no application to the facts of the present case.”
The court has not argued out convincingly as to why the principle of legitimate expectation was not applicable to the
facts of the instant case.
Two reasons can be discerned from the judgment to deny legitimate expectation:
The tribunal was abolished by legislative action and not by administrative action. And legitimate expectation can be
nullified by law.
Administrative policies can change with changing circumstances.

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In the view of the author, the appointment being a fixed tenure appointment, it is bound to create a legitimate
expectation in the appointee to remain in service for the full period of the term. The facts fall squarely within the
ambit of the principle as stated by the court itself. It may be pointed out that the legitimate expectation may arise not
only by making a representation but also by conduct of the party concerned. Appointment for a fixed term to a
statutory office is a ‘representation’ by the government that the appointment would continue for five years.
Accordingly, its premature termination would amount to denial of legitimate expectation.101 But the same can be
denied on grounds (1) mentioned above. But the court never mentioned this ground in its judgement. It is doubtful
that ground (2) is relevant. Should a change of policy deny a legitimate expectation? While no one denies the
executive freedom to change its policy from time to time, change ought not to deny a legitimate expectation. The
new policy should not affect the position of those who have been assured that the status quo would be maintained
for a time period. The doctrine of ‘legitimate expectation calls for an equitable approach rather than a purely
legalistic approach. The question has been discussed earlier in the chapter but no fixed judicial policy has yet
evolved on this point.
One can find only a few cases where the courts have invoked the doctrine of legitimate expectation to quash
administrative action in question.
24.4.3.6 Sachindra
In Sachindra Kumar,102 an application for allotment of a house plot was made by the petitioner in pursuance of an
advertisement by the Patna Regional Development Authority. While land was allotted by the Authority to several
applications who had applied much after the petitioner, no land was allotted to him. He challenged the action of the
authority through a writ petition. The court characterized the action of the authority as illegal and irrational. The
court also observed:
“The petitioner had a reasonable or legitimate expectation that the respondent-authority being a State within the meaning of
article 12 of the Constitution of India103 that he would be allotted a piece of land or a flat in due course; but the authority has
failed to act in accordance with its policy decision. It is now well known that doctrine of legitimate expectation imposes in
essence a duty on the public authority to act fairly by taking into consideration all relevant factors relating to such legitimate
expectation.
Reference in this connection may be made to Navjoyti Co-operative Society v UOI.104 In this view of the matter too,
the action must be held to be irrational as has been held in Council of Civil Service Unions v Minister for the Civil
Service”105
24.4.3.7 Mogo Nagi
The State Government invited tenders for sale of pipes. It was stipulated that the highest rate would be accepted.
The government accepted the highest tender but allotted certain quantity of the pipes to a non-tenderer. In this fact-
situation, the Gauhati High Court invoked the doctrine of legitimate expectation. The court held the action of the
government to be arbitrary. The court ruled that the highest tenderer had legitimate expectation that the entire
quantity for which the tender was invited would be allotted to him?106 The High Court observed:
“Legitimate expectation is a relevant factor requiring due consideration in a fair decision-making process. In case of a
failure of a state or its instrumentality to give due weight to legitimate expectation of a citizen, it becomes an enforceable
right.”107
24.4.3.8 MP Oil
In MP Oil Extraction v State of MP,108 the Supreme Court has observed:
“The doctrine of legitimate expectation has been judicially recognised by this Court in a number of decisions. The doctrine
of ‘legitimate expectation’ operates in the domain of public law and in appropriate case, constitutes a substantive and
enforceable right.”
24.4.3.9 Nav Jyoti
In Nav Jyoti Co-operative Housing Society v UOI,109 the government announced a policy of allotting land to
cooperative housing societies on the basis of seniority of registration. After several societies were registered, the
policy was sought to be changed. The Supreme Court quashed the change in policy with the following remark:
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“In the aforesaid facts, the group housing societies were entitled to “legitimate’ expectation” of following consistent past
practice in the matter of allotment, even though they may not have any legal right in private law to receive such treatment.
The existence of ‘legitimate expectation” may have a number of different consequences and one of such consequences is
that the authority ought not to act to defeat the “legitimate expectation” without some overriding reason of public policy to
justify its doing so…”
24.4.4 No promise, no legitimate expectation
Where no promise was made by the government, the doctrine of promissory estoppel would not apply. In the instant
case no material was placed before the Supreme Court to show that any promise was made or any assurance was
held out to the parties concerned by any competent authority of the Government of India for their absorption in the
regular cadres.110
24.4.4.1 Kerala State Beverages (M& M) Corporation Ltd
In Kerala State Beverages (M & M) Corporation Limited v P P Suresh,111 in this case, the Supreme Court was faced
with the plight of Abkari workers in Kerala, who lost their employment owing to a government policy decision in
1996, banning the sale of Arrack throughout the State. Succeeding before the High Court, it was held that a
legitimate expectation existed in respect of the displaced Abkari workers claiming under a relevant government
order issued for rehabilitation. Setting aside the order of the division bench of the Kerala High Court, a 2 Judges
Bench of the Supreme Court drew the differences between Substantive and Procedural legitimate expectation, with
the former being in respect of continuation or conferment of benefits being awarded to similarly or identically placed
persons or entities, and the latter being relevant in terms of the manner in which an appropriate procedure would be
followed dealing with such a claim for benefit. The court also observed that overriding public interest would
supersede claims under legitimate expectation and freedom of decision making as long as it is not arbitrary or
unreasonable, cannot be interfered with.
25.4.4.2 Joshi Technologies International INC
In the case of Joshi Technologies International v UOI,112 a petroleum-sharing contract was entered into by the
International Company with Ministry of Petroleum and Natural Gas of Union of India. Section 42 of the Income-tax
Act, 1961 provided for deduction in the case of business for prospecting etc. for mineral oil. It also provided certain
additional allowances. It was the case of the company that Ministry of Law recommended that the benefit of section
42 of the Income-tax Act will also be extended to other companies in order to make their participation in the oils
viable. The tax department allowed special deduction under section 42 of the Income-tax Act for three production
years, but declined it for the subsequent year and re-opened assessment for all the years to deny the benefit of
deduction to the foreign company.
The company raised the plea of legitimate expectation which was turned down by the High Court and it was
affirmed by the Supreme Court, holding that in contractual field, principle of legitimate expectations cannot be
invoked. The relevant observations of the Supreme Court are as under:
“The scope of judicial review in respect of disputes falling within the domain of contractual obligations may be more limited
and in doubtful cases the parties may be relegated to adjudication of their rights by resort to remedies provided for
adjudication of purely contractual disputes.
As pointed out earlier as well, the contract in question was signed after the approval of the Cabinet was obtained. In the
said contract, there was no clause pertaining to section 42 of the Act. The appellant is presumed to have knowledge of the
legal provision, namely, in the absence of such a clause, special allowances under section 42 would be impermissible. Still
it signed the contract without such a clause, with open eyes. No doubt, the appellant claimed these deductions in its income
tax returns and it was even allowed these deductions by the Income Tax Authorities. Further, no doubt, on this premise, it
shared the profits with the Government as well. Howsoever, this conduct of the appellant or even the respondents, was
outside the scope of the contract and that by itself may not give any right to the appellant to claim a relief in the nature of
mandamus to direct the Government to incorporate such a clause in the contract, in the face of the specific provisions in the
contract to the contrary as noted above, particularly, article 32 thereof. It was purely a contractual matter with no element of
public law involved thereunder.”
24.4.4.3 P. Sushila
In the case of P. Sushila v University Grants Commission,113 the M. Phil and Ph.D. degree holders questioned the
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validity of the laid down minimum eligibility condition of passing NET/SLET as the minimum eligibility condition for
recruitment and appointment as lecturers in Universities/Colleges/Institutions.
The Supreme Court duly acknowledged the fact that earlier too, under the UGC Regulations, 2009, Ph.D. holders
and M. Phil degree holders, were exempt from NET/SLET Test, yet rejecting the plea of legitimate expectation, the
court observed:
“Legitimate expectation must always yield to the larger public interest. The larger public interest in the present case is
nothing less than having highly qualified Assistant Professors to teach in UGC institutions. Even if, therefore, the private
appellants before us had a legitimate expectation, given the fact that UGC granted them an exemption from NET and
continued to state that such exemption should continue to be granted even after the Government direction of 12 November
2008 would have to yield to the larger public interest of selection of the most meritorious among candidates to teach in
institutions governed by the UGC Act.”
24.4.5 The doctrine of legitimate expectation does not apply against public authorities in certain
circumstances
24.4.5.1 Reliance Telecom Limited
In a set of transferred cases from various High Courts in a matter concerning the sale of spectrum for
telecommunication services, the Notice Inviting Application of 2015 was challenged. Addressing a plethora of
submissions on the principles of judicial review governing auction of spectrum and rights of licensees, the Supreme
Court held that the argument that current licenses have a vested right or legitimate expectation in continuing with
the transaction owing to investments made by them cannot be accepted as legitimate expectation, cannot be
claimed in open market conditions where overriding public interest was primary.114
24.4.5.2 Sachindra Narayan
In a case involving payment of arrears and current pension to the employees of the Anugraha Narayan Sinha
Institute of Social Studies, Patna, it was argued that since the State Government had extended funds for payment
of pensions all through the preceding years, it was legally obliged to continue such support as it was a legitimate
expectation on the part of the employees. The Division Bench of the Patna High Court had agreed with this
argument and a 2 Judges Bench of the Supreme Court rejected such a claim, stating that legal obligations stem
from sanction of law and not out of pious hope, especially when the relevant legislation did not confer any statutory
duty on the State Government. It was held that payment of pension in the past will not create any enforceable right
for the future.115
24.4.5.3 M. Ramesh
Lt Cdr. Ramesh v UOI,116 the Supreme Court held that the State Cadre Police who were considered for selection for
IPS after Limited Competitive Exam (LCE) were not however called to appointment, with the scrapping of the
selection process, when neither results were announced nor the selection process completed. LCE was the third
method, apart from direct recruitment and promotion from State cadre, brought through amendment of recruitment
rules. All the candidates were already either of State Police or Central Police and there involved no alteration of
position. Apart from rejecting the plea of promissory estoppel, the Supreme Court also said that there could be no
legitimate expectation when it explained that it can arise when the citizens expect that they will be benefited under
some policy or decision announced by the state. At the same time, it is well settled that the Legislature and the
Executive can change any policy for good reasons, which are not arbitrary or mala fide and decision taken in public
interest. It accepted the reasons given by the government: (1) the percentage of vacancies had gone down; (2) The
selection process had been delayed which meant that the selected candidates, if appointed would have been older
by 5 years; (3) There were many petitions by way of litigations in court and several collateral controversies had
come about selection.
24.4.5.4 Hira Jikkoo
Administration of Union Territory of Chandigarh allotted plots under a development scheme and received full/part
payments. However subsequently, it was found that a portion of the area of land in question was already declared a
reserved forest under the Forest Act. Besides, it fell within the periphery of 900 metres from the Air Force and thus
infringed the Aircraft Act. Consequently, the administration failed to deliver possession to the allottees. The Apex
Court held that the doctrine of legitimate expectation would not be applicable against public authorities when their
mistaken advice or representation is found to be in breach of a statute and thus, against general public interest, as
regard for the public welfare is the highest law (Salus populi est suprema lex) and the law does not compel a man
to do that which he cannot possibly perform (lex non cogit ad impossibilia).117
Page 14 of 17
24.4.5.5 Lt. Col. P.K. Choudhary
In the case of UOI v Lt. Col. P.K. Choudhary,118 the facts were that certain new additional vacancies were created
on recommendations of Recruitment Committee which provided furnishing of age profile for Commanding Officers.
The others officers of the same category in “services” approached the Armed Forces Tribunal for giving them equal
opportunity of appointment and promotion with officers in Combat-Arms or Arms Support Services against the post
in additional vacancy. A plea of legitimate action was raised. Rejecting the contention and partly setting-aside the
order of the Armed Forces Tribunal, the Supreme Court rejected the plea of legitimate expectation set up by the
officers. The relevant observations of the court in rejecting the plea of legitimate expectations are as under:
“Coming to the case in hand, the plea of legitimate expectation does not appear to be of any assistance to the respondents
for two precise reasons. Firstly, there is no real basis for the respondents to argue that the Government of India had either
by representation or by any sustained course of conduct created an impression in the minds of the respondents that any
additional vacancies created to the lower age profile of commanding officers serving in Combat Arms or Combat Arms
Support shall also benefit those serving in the Service streams of the Army. There is no factual basis laid by the
respondents in the pleadings before the Tribunal to suggest that any such impression was gathered by the officers serving
in the Service streams. There is also no basis for the contention that a legitimate expectation arose in the minds of the
respondents that they shall be promoted to the next rank simultaneously with the officers serving in Combat Arms or
Combat Arms Support. As a matter of fact, the provisions of Para (68) of the Regulations for the Army extracted earlier
itself envisages the grant of promotion to the officers from different streams at different points of time depending upon
several factors which bring about the time-lag for such considerations. Consequences of the fact that such officers serving
in different streams may pick up the next rank at different points of time, the Regulations provide for grant of retrospectively
to the promotions so granted to restore inter se batch parity to such officers. There is no denying the fact that the said
Regulation continues to be operative and regardless of the date when the officer is promoted, his promotion is so related
back as to protect his seniority vis-à-vis his colleagues from the batch serving in others streams. Far from creating any
impression or any expectation that promotions shall be simultaneous, the Regulations clearly provide for grant of
retrospective effect to the promotions only with a view to restore seniority. This clearly implies that in the very nature of
things the promotions could be granted to the officers at different points of time and time-lag could additionally be in the 0-
1-2 scenario. We have, therefore, no hesitation in rejecting the contention that the legitimate expectation did arise in the
factual situation before us.
That apart, legitimate expectation as an argument cannot prevail over a policy introduced by the Government which does
not suffer from any perversity, unfairness or unreasonableness or which does not violate any fundamental or other
enforceable rights vested in the respondents. In the case in hand, the Government has, as a matter of policy, decided to
lower the age profile of officers serving in Combat Arms and Combat Arms Support pursuant to the recommendations made
by the Expert Committees. We have in the earlier part of the judgment dealt with the recommendations made by the
Committees and the objectives sought to be achieved by the policy decisions of the Government. There is nothing
perverse, unreasonable or unfair about the policy that the age of officers serving in Combat Arms and Combat Arms
Support will be lowered by creating additional vacancies to be allotted on Command Exit Model. In the absence of any
perversity, unreasonableness or unfairness in the policy so introduced, we see no reason to allow the argument based on
legitimate expectation to unsettle or undo the policy which is otherwise laudable and intended to render the Indian Army
more efficient and better equipped for Combat situations. It also is not a case where no reasonable person could have
taken the decision which the Government have taken as regards the need for lowering the age profile of the Commanding
Officers or their exit after 2½ to 3 years to occupy positions which the Government have created for the officers to occupy
till they are considered for promotion to the next higher rank.”
24.4.5.6 United Bank of India
The plea of legitimate expectation claimed by the Mortgagee Bank against Nazul Land was rejected in the case of
State of UP v United Bank of India.119 The facts of the case were that Nazul Land, which was a government grant,
was acquired by the company Amrit Bazar Patrika Ltd. The company mortgaged the property in favor of Union Bank
of India for obtaining loan. The bank as mortgagee obtained possession of the land on the basis of a mortgage
decree. The bank approached the State Government for conversion of Nazul land into free hold land and invoked
the doctrine of legitimate expectation. The High Court granted relief to the bank. The Supreme Court upturned the
decision of the High Court and held that the bank was never party to the government grant and having no previous
dealing with the State, could not invoke the doctrine of legitimate expectation.
The Supreme Court observed that the High Court also erred in giving the direction to convert leasehold interest as
Page 15 of 17
freehold interest in favor of the bank by applying the doctrine of legitimate expectation and issuing the writ of
mandamus against the state. The doctrine of legitimate expectation ordinarily would not have any application when
the legislature has enacted a statute. The expectation should be legitimate, that is, reasonable, logical and valid.
Any expectation which is based on sporadic or casual or random acts, or which is unreasonable, illogical or invalid,
cannot be a legitimate expectation. This doctrine cannot be applied in cases of invalid expectation. In the present
case, the mortgage done by Amrit Bazar Patrika itself is bad in law and the expectation is not valid at all in the eye
of the law. Further, for the application of the doctrine of legitimate expectation, any representation or promise
should be made by an authority. A person unconnected with the authority, who had no previous dealing and who
had not entered into any transaction or negotiations with the authority or who has no recognized legal relationship
with the authority, cannot invoke the doctrine of legitimate expectation. As the bank is not having any recognized
legal relationship with the state in view of the fact that the mortgage by ABP in favour of the bank itself is bad in law,
there is no question of invoking the doctrine of legitimate expectation in the present case as it applies to a regular,
consistent, predictable and certain conduct, process or activity of the decision-making authority. A person, who
bases his claim on the doctrine of of legitimate expectation has to satisfy that he has relied on the said
representation and the denial of that expectation has worked to his detriment. In the instant case, admittedly, the
state never recognised the appellant bank as a mortgagee. Further, the state was not aware about the alleged
mortgage, said to have been created by the lessee ABP Company by deposit of lease document. Moreover, the
state never represented or promised either to the lessee or to the bank to give any benefit under the lease. In such
circumstances, the High Court committed grave error in applying the doctrine of legitimate expectation in favor of
the bank. The appellant bank has no right, title or interest in the property so as to claim a right of conversion of the
property into a freehold property.
54 See, infra.
55 For discussion on the concept of ‘Proportionality’, see, infra.
56 National Buildings Construction Corporation v S. Raghunathan, AIR 1998 SC 2779 : 1998 (4) SCALE 694 : (1998) 7
SCC 66.
57 Punjab Communications Ltd. v UOI, AIR 1999 SC 1801 : [1999] 2 SCR 1033 : (1999) 4 SCC 727. See also Bannari
Amman Sugars Ltd. v Commercial Tax Officer, (2005) 2 MLJ 129 (SC) : (2005) 1 SCC 625 : 2004 (9) SCALE 604.
58 Jitendra Kumar v State of Haryana, (2008) 2 SCC 161 : 2007 (14) SCALE 125.
59 Sethi Auto Service Station v Delhi Development Authority, AIR 2009 SC 904, (2009) 5 MLJ 1464 (SC), 2008 (13)
SCALE 783, (2009) 1 SCC 180. See also UOI v Arulmozhi Iniarasu, AIR 2011 SC 2731, 2011 (7) SCALE 340, (2011) 7
SCC 397, [2011] 9 SCR 1.
60 Monnet Ispat and Energy Ltd. v UOI, (2012) 11 SCC 1. See also J.P. Bansal v State of Rajasthan, AIR 2003 SC 1405 :
(2003) 5 SCC 134 : 2003 (3) SCALE 154.
61 Kuldeep Singh v Government of NCT of Delhi, (2006) 5 SCC 702, 712 (para 25).
62 UOI v Hemraj Singh Chauhan, (2010) 4 SCC 290, 299 (paras 36 and 38).
63 Secretary, State of Karnataka, Umadevi, AIR 2006 SC 1806 : (2006) 4 SCC 1. See also University of Rajasthan v Prem
Lata Agarwal, AIR 2013 SC 1265 : (2013) 2 MLJ 730 (SC) : 2013 (2) SCALE 225, (2013) 3 SCC 705.
64 Indibily Creative Private Limited v Government of West Bengal, (2020) 12 SCC 436.
65 For discussion on article 14 in the context of Administrative Process, see, Jain, Treatise, I, Chapter XVIII; Jain, Cases,
II, Chapter XV.
66 Food Corporation of India v Kamdhenu Cattle Feed Industries, AIR 1993 SC 1601 : (1993) 1 SCC 71. For facts of the
case, see, infra, this Chapter.
67 On the principle of non-arbitrariness, see the discussion under article 14, Jain, Treatise, I, Chapter XVIII; Jain, Cases,
II, Chapter XV. See also MRF Ltd. v CST, (2006) 8 SCC 702, 723 (para 39).
68 Joshi Technologies International Inc v UOI, (2015) 7 SCC 728, cited and followed in State of UP v Sudhir Kumar Singh,
2020 SCC OnLine SC 847.
69 UOI v Hindustan Development Corporation, AIR 1994 SC 988 : (1993) 3 SCC 499.
70 On the question of locus standi, see, infra.
71 On Natural Justice, see Jain, Treatise, I, Chapters IX, X. Jain, Cases, I, 486-509. See also Bannari Amman Sugars Ltd.
v Commercial Tax Officer, (2005) 1 SCC 625, 633 (para 8) : JT 2004 (10) SC 500 : (2004) 192 CTR 492.
Page 16 of 17
72 UOI v International Trading Co, AIR 2003 SC 3983 : (2003) 5 SCC 437, at 444; Howrah Municipal Corporation v
Ganges Rope Co. Ltd., (2004) 1 SCC 663, at 680 : JT 2003 (10) SC 355; Bannari Amman Sugars Ltd. v Commercial
Tax Officer, (2005) 1 SCC 625, 633 (para 8) : JT 2004 (10) SC 500 : (2004) 192 CTR 492.
73 MC Mehta v UOI, AIR 2004 SC 4618 : (2004) 6 SCC 588, 617-18 (para 51).
74 Ghaziabad D.A. v Delhi Auto & General Finance Pvt. Ltd., AIR 1994 SC 2263 at 2268 : (1994) 4 SCC 42. Also, Food
Corporation of India v Kamdhenu, AIR 1993 SC 1601 : (1993) 1 SCC 71; UOI v Hindustan Development Corporation,
AIR 1994 SC 988 : (1993) 3 SCC 499; Jain, Cases, IV, Chapter XXIII.
75 Madras City Wine Merchants’ Association v State of Tamil Nadu, (1994) 5 SCC 509 : JT 1994 (4) SC 655.
76 The Punjab State Knitwear Development Corporation.
77 Bharat Wools, Ludhiana v State of Punjab, AIR 1996 P&H 223.
78 P.T.R. Exports (Madras) Pvt Ltd v UOI, AIR 1996 SC 3461 : (1996) 5 SCC 268.
79 M. Elangovan v Commissioner, Kodaikanal Municipality, AIR 1996 Mad 401.
80 M.S.N. Medicals, Thiruvalla v KSRTC, Thiruvananthapuram, AIR 1995 Ker 119.
81 Also see, UOI v International Trading Co., AIR 2003 SC 3983 : (2003) 5 SCC 437 at 444, where the court has
observed: “Doctrines of promissory estoppel and legitimate expectation cannot come in the way of public interest.
Indisputably, public interest has to prevail over private interest”.
82 Food Corporation of India v Kamdhenu Cattle Feed Industries, AIR 1993 SC 1601 : (1993) 1 SCC 71. Also see, infra,
under “Government Contracts”.
83 See, infra, next Chapter for further discussion on the norms for the award of a government contract.
84 Ghaziabad Development Authority v Delhi Auto & General Finance Pvt. Ltd., AIR 1994 SC 2263 : (1994) 4 SCC 42, 45.
85 Food Corporation of India v Kamdhenu Cattle, Feed Industries, AIR 1993 SC 1601 : (1993) 1 SCC 71 : JT 1992 (6) SC
259.
86 S.B. International Ltd. v Assistant Director-General of Foreign Trade, AIR 1996 SC 2921 : (1996) 2 SCC 439, 440.
87 Supra, Chapter XXII, Vol. I.
88 Punjab Communications Ltd. v UOI, AIR 1999 SC 1801 : (1999) 4 SCC 727.
89 Punjab Communication Ltd. v UOI, AIR 1999 SC 1801, 1813 : (1999) 4 SCC 727 : 1999 (4) Supreme 454. Also,
National Buildings Construction Corporation v S. Raghunandan, AIR 1998 SC 2779 : (1998) 7 SCC 66.
90 UOI v International Trading Co, AIR 2003 SC 3983 : (2003) 5 SCC 437.
91 Also see, Punjab Communications Ltd. v UOI, AIR 1999 SC 1801, 1813 : (1999) 4 SCC 727.
92 National Buildings Constructive Corporation v S. Raghunathan, AIR 1998 SC 2779 : (1998) 7 SCC 66.
93 Raj Kumar v UOI, AIR 2006 SC 938 : (2006) 1 SCC 737, 744 (para 14) : 2006 (1) SLR 802. See also Laxmi Sharma v
V.C., Chhatrapati Shahuji Maharaj University, (2006) 9 SCC 138, 143 (para 20).
94 Raj Chowdhury v UOI, AIR 2000 Cal 232.
95 Indian Aluminium Co. Ltd. v Karnataka Electricity Board, AIR 1992 SC 2169 : (1992) 3 SCC 580. Also, A.C. Royco v
UOI, AIR 1995 Cal 246; D. Wren International Ltd. v Engineers India Ltd., AIR 1996 Cal 424.
96 Assistant Excise Commissioner v Issac Peter, (1994) 4 SCC 104 : JT 1994 (2) SC 140.
97 Food Corporation of India v Kamdhenu Cattle Feed Industries, AIR 1993 SC 1601 : (1993) 1 SCC 71 : JT 1992 (6) SC
259.
98 Chanchal Goyal (Dr.) v State of Rajasthan, AIR 2003 SC 1713 : (2003) 3 SCC 485.
99 Secretary, State of Karnataka v Umadevi, AIR 2006 SC 1806 : (2006) 4 SCC 1 : 2006 (2) LLJ 722,
100 J.P. Bansal v State of Rajasthan, AIR 2003 SC 1405 : (2003) 5 SCC 134.
101 See Schmidt v Secretary of State for Home Affairs, (1969) 1 All ER 904.
102 Sachindra Kumar v Patna Regional Development Authority, AIR 1994 Pat 128.
103 For discussion on the concept of ‘Authority’ under article 12 of the Constitution, see, infra.
104 Navjoyti Co-operative Society v UOI, AIR 1993 SC 155 : (1992) 4 SCC 477; Jain, Cases, I, Chapter VIII.
105 Council of Civil Service Unions v Minister for the Civil Service, (1984) 3 All ER 935; Jain, Cases, I.
106 Also see infra, next Chapter.
Page 17 of 17
107 Mogo Nagi v Nagaland, AIR 1995 Gau.

108 MP Oil Extraction v State of MP, AIR 1998 SC 145, at 158 : (1997) 7 SCC 592.
109 Nav Jyoti Co-operative Housing Society v UOI, AIR 1993 SC 155 : (1992) 4 SCC 477; Jain, Treatise, I, Chapter IX;
Jain, Cases, I, 496. See also T. Vijayalakshmi v Town Planning Member, (2006) 8 SCC 502, 505-06 (para 13).
110 Official Liquidator v Dayananda, (2008) 10 SCC 1, 66-67 (para 114).
111 Kerala State Beverages (M & M) Corporation Limited v PP Suresh, (2019) 9 SCC 710.
112 Joshi Technologies International v UOI, (2015) 7 SCC 728 : 2015 (6) SCALE 632.
113 P. Sushila v University Grants Commission, AIR 2015 SC 1976 : (2015) 8 SCC 129.
114 Reliance Telecom Limited v UOI, (2017) 4 SCC 269.
115 State of Bihar v Sachindra Narayan, (2019) 3 SCC 803.
116 Lt Cdr. Ramesh v UOI, (2018) 16 SCC 195.
117 Hira Jikkoo v Union Territory Chandigarh, AIR 2004 SC 3648 : (2004) 6 SCC 765, 777 (para 22) : JT 2004 (5) SC 231;
relying on Jit Ram Shiv Kumar v State of Haryana, AIR 1980 SC 1285 : (1981) 1 SCC 11.
118 UOI v Lt. Col. P.K. Choudhary, AIR 2016 SC 966 : (2016) 4 SCC 236.
119 State of UP v United Bank of India, (2016) 2 SCC 757 : 2015 (12) SCALE 704.
End of Document
24.5 Concluding Observations

The doctrine legitimate expectation has not yet struck roots in India as there seems to be some confusion in judicial
thinking on the scope and range of the concept of legitimate expectation. The approach of the Indian court seems
lagging behind the approach of the British Courts. For the present, its status remains, as described in the words of
the Supreme Court, as “not by itself a distinct enforceable right”, but “failure to consider and give weight to it may
render the decision arbitrary”.120 But the concept is much more substantive and positive in nature than what the
Supreme Court has characterized it to be.
What needs to be realized is that the concept envisages not merely “expectation” but “legitimate expectation” which
means that there is already something super-added to just “expectation”—some kind of assurance or
representation by the administration or the fact that the expectation has been recognised over a period of time,
what needs to be realized that “legitimate expectation” is not equivalent to a “legal right”. The concept is more of an
equitable nature rather than legalistic in nature. It also needs to be pointed out that the Indian courts have to come
out of the Wednesbury groove. The test of Wednesbury is becoming outdated and is giving place to a broader test
of irrationality.
It is time that the courts develop a more positive outlook towards the doctrine as it is a useful medium to give relief
against administrative action to a person whose legitimate expectation, which is short of a right, and which does not
fall under the rubric of promissory estoppel. A number of such situations arise in daily life. To achieve this end, the
courts will have to keep several considerations in mind. As is shown by the cases in Britain, the doctrine is rooted in
fairness and also that it is not merely procedural in nature. It is substantive in nature as well. While one can claim a
privilege or benefit of being heard in certain circumstances by invoking this doctrine, it is not confined merely to a
claim of a right to be heard.
Further, the doctrine of legitimate expectation should mean something more than mere conferring locus standi to
challenge the administrative action in question or more than mere unreasonableness in the Wednesbury sense.121 If
an administrative action is irrational or unreasonable in the Wednesbury sense, then it is already invalid and there is
no need further to invoke the legitimate expectation doctrine to illegitimatize such action and the doctrine will then
have no purpose or meaning. Also, the doctrine should mean something more than arbitrariness or unfairness
under article 14. There is no need to invoke legitimate expectation if an administrative action can be nullified under
article 14.
The doctrine of legitimate expectation can be meaningful only if it can give an added dimension to the concept of
fairness over and above what is already envisaged under article 14 of the Constitution, viz that denial of legitimate
expectation, as such, amounts to unfairness under article 14.
In the context of the present-day administrative processes in the country, there is need for the courts to develop a
more positive attitude towards the protection of the legitimate expectation of the affected person. Hitherto, the
courts have been very hesitant and lukewarm in this respect.
There seems to be some confusion in judicial thinking in India on the question of the applicability of the concept of
legitimate expectation. Three points need to be emphasized in this connection.
Page 2 of 2
One, the doctrine of legitimate expectation is rooted in fairness.
Two, it is not merely procedural in nature. It is substantive in nature as well. While one can claim a privilege or a
benefit of being heard, it is not confined merely to a claim of a right to be heard.
Three, it applies to the area of policy-making as well.
While the doctrine does not go to the extent of saying that the executive cannot change an existing policy, it does
certainly envisage, in order to avoid unfairness to the persons adversely affected by the change in policy, that the
administration in order to be fair may have to provide, in some situations, proper ‘transitional provisions’, or if no
such provisions are made, provide proper ‘pipeline’ provisions’, (i.e. provisions covering transactions already in
progress). The basic idea is that the administration shall always act fairly in exercising its powers.122
It may be noted that Sedley, J. in Hamble Fisheries insisted that legitimate expectation is in reality a question of
fairness in public administration.123
Further, in view of the decision of Court of Appeal in Coughlam, it may be worth-while for the Indian Courts to
reorient their thinking on the question of legitimate expectation and the Wednesbury test.
On the Wednesbury test, see Lord Cooke’s observations in Ex p. Daly.124
120 See, Ghaziabad Development Authority v Delhi Auto & General Finance Pvt. Ltd., AIR 1994 SC 2263 : (1994) 4 SCC
45. Also, Food Corporation of India v Kamdhenu Cattle Feed Industries, AIR 1993 SC 1601 : (1993) 1 SCC 71 : JT
1992 (6) SC 259.
121 For the text of, and discussion on Wednesbury, see, Jain, Treatise, I.
122 On this point see author’s comments, supra. Also see R. v Ministry of Agricultural Fisheries and Food ex p Hamble
(offshore) Fisheries Ltd, (1995) 2 All ER 714; Jain, Cases, IV, Chapter XXIV.
123 R. v Ministry of Agriculture Fisheries and Food ex p Hamble (offshore) Fisheries Ltd., (1995) 2 All ER 714.
124 R. v Secretary of State for the Home Dept., Ex. p. Daly, (2001) 2 AC 532, at 549.
“[I] Think that the day will come when it will be more widely recognized that… Wednesbury ….was an unfortunately
retrogressive decision in English administrative law…”
End of Document
25.1 Concept of Proportionality
Principles of Administrative Law, 9th Edn (2 Vols) > CHAPTER XXV PROPORTIONALITY
CHAPTER XXV PROPORTIONALITY
25.1 Concept of Proportionality

The topic of proportionality has been touched upon briefly in Treatise, I.1 Since then, there have been a number of
judicial pronouncements on proportionality and, therefore, it has become necessary that there be some further
discussion on this topic.
As stated earlier, the doctrine of proportionality is of European origin and is very well entrenched in the European
Droit Administratif.2 The principle of proportionality has been characterized as the most important general legal
principle in the European Administrative Law.
The principle of proportionality envisages that a public authority ought to maintain a sense of proportion between his
particular goals and the means he employs to achieve those goals, so that his action impinges on the individual
rights to the minimum extent to preserve the public interest. This means that administrative action ought to bear a
reasonable relationship to the general purpose for which the power has been conferred.3
The implication of the principle of proportionality is that the court will weigh for itself, the advantages and
disadvantages of an administrative action. Only if the balance is advantageous, will the court uphold the
administrative action. The administration must draw a balance-sheet of the pros and cons involved in any decision
of consequence to the public and to the individuals. The principle of proportionality envisages that an administrative
action could be quashed if it was disproportionate to the mischief at which it was aimed. The measures adopted by
the administration must be proportionate to the pursued objective.
An administrative authority while exercising a discretionary power should maintain a proper balance between any
adverse effects which its decision may have on the rights, liberties or interests of persons and the purpose which it
pursues. All in all, it means that the decision-maker must have a sense of proportion.4
1 Jain, Treatise, I, Chapter XIX. Also see, Jain, Cases, III, 2243-2250.
2 Jain, Treatise, I, Chapter XIxgX. Also see Jain, Cases, III 2243-2250. Also see, Jain, Treatise, I, Chapter II, on Droit
Administratif.
3 Jain, Treatise, I, Chapter XIX.
4 See also under sub-heading ‘Proportionality’ in Chapter XIX, Discretionary Powers (III), Vol.
I.
End of Document
25.2 Developments in Britain

In many cases in Britain, proportionality has been treated merely as an aspect of the Wednesbury
unreasonableness.5 The main reason for judicial reticence in Britain in adopting proportionality as a distinct head of
judicial review is that it may involve the courts in assessing the merits of a discretionary decision taken by the
administration, and for long, the courts have been advocating the proposition that the courts do not probe into the
merits of a discretionary decision, but see if there is any flaw in the decision-making process and that this places
the courts in the role of a secondary reviewer and not a primary reviewer.
This point was specifically made clear by Lord Ackner in Brind.6 He reasoned that if proportionality were to add
something to our existing law, then it must be by imposing a more intensive standard of review than the traditional
Wednesbury unreasonableness. This would mean that an “inquiry into and a decision upon the merits cannot be
avoided, in the sense that the court would have to balance the pros and cons of the decision being challenged.
There have however been a few cases where the courts have applied proportionality, expressly or impliedly in the
context of challenges to penalty imposed by an administrative authority. This is exemplified by Hook. The licence of
a stall holder was revoked for urinating in the street and using offensive language. Lord Denning struck down the
decision to cancel his licence because the penalty imposed on the licensee was excessive and out of proportion to
the offence committed by him.7
After the enactment of the Human Rights Act, 1998, the House of Lords has adopted a position between
proportionality and Wednesbury as regards judicial review under the HRA.8 The House of Lords has evolved the
“rationality test” with “heightened scrutiny”. This test is somewhat different from the proportionality test. Many cases
may fall within both the tests, but in proportionality the intensity of judicial review would be greater than under the
rationality test. Under the proportionality test, the reviewing court may have to assess the balance struck by the
decision-maker, not merely whether it was within the range of reasonable decisions.
A proportionality test would also obligate the court to pay attention to the relative weight accorded to relevant
interests in a manner not generally done under the traditional approach to judicial review.
As a mere facet of Wednesbury unreasonableness, the principle of proportionality would remain very much
circumscribed, as the court will interfere only when the action impugned is totally out of proportion to the mischief
sought to be curbed, so as to border on the absurd.
For some time now, voices are being raised in Britain that a wider version of proportionality be accepted.9 Even the
judiciary has asserted at times that “judicial review is not fossilized,” and that heads of judicial review are not
exhaustive.10
Lord Cooke in the ITF case11 has criticized the Wednesbury test as tautologous and exaggerated. He has
observed:
“On the particular facts of this case the European concepts of proportionality and margin of appreciation produce the same
result as what are commonly called the Wednesbury principles. Indeed in many cases that is likely to be so. It seems to me
Page 2 of 3
unfortunate that Wednesbury and some Wednesbury phrases have become established incantations in the courts of the
United Kingdom and beyond. Associated Provincial Picture Houses Ltd. v Wednesbury Corporation, (1948) 1 KB 223, an
apparently briefly-considered case, might well not be decided the same way today; and the judgment of Lord Greene M.R.
twice uses (at pp. 230 and 234) the tautologous formula “so unreasonable that no reasonable authority could ever have
come to it.”
Jowell and Lester have stated:12
“All in all, the requirement that the decision-maker must have a sense of proportion seems ripe for full recognition as an
English principle of Administrative Law.”
More recently Lord Slynn in Alconbury,13 has expressed the view that proportionality should be recognised as a
general head of review. He has pleaded that even without the reference of the HRA, the time has come to
recognise that the principle of proportionality be recognized as a part of the English Administrative Law. Lord Slynn
maintains that trying to keep the Wednesbury principle and proportionality in separate compartments is
unnecessary and confusing.
One case is Edore v Secretary of State for the Home Department.14 The appellant in the instant case was a
Nigerian citizen, who entered Britain and stayed back after the expiry of her visa. She had two children born to a
British citizen. The children were very much emotionally dependent on their father. If the children were made to
return to Nigeria, their relation with their father would come to an end. The court trying to resolve the conflict
stated:15
“Where the essential facts were not in doubt or dispute, the adjudicator’s task was to determine whether the decision under
appeal was properly one within the decision-maker’s direction, namely, that it was a decision which could reasonably be
regarded as sticking a fair balance between the competing interests in play. If it were, then the adjudicator could not
characterise it as a decision “not in accordance with the law “and so even if he personally would have preferred the balance
to have been struck differently, he could not substitute his preference for the decision in fact taken. However, there would
be occasions where it could properly be said that the decision reached was outside the range of permissible responses
open to him, in that the balance struck was simply wrong.”
The other case is R. v Lewisham London Borough Council,16 where the court of Appeal held:17
“When the decision-maker comes to balance the factors he is entitled to place in the scales…Thus, even though the length
of delay and reasons for it are often balanced against the prospect of success, it is possible to envisage circumstances in
which an authority can rationally and properly conclude that even short delay for which there is a food explanation is not
good enough to justify an extension time for review.”
5 On Wednesbury, see, Jain, Treatise, 1, Chapter XIX.

6 R. v Home Ministry, Ex. p. Brind, (1991) 1 AC 696.
7 R. v Barnsley MBC Ex p. Hook, (1976) 1 WLR 1052, at 1057.
8 Speech of Lord Steyn in R v Secretary of State for Home Dept, Ex. p. Daly, (2001) 2 AC 532; R. (on the application of
Louis Farrakhan) v Secretary of State for the Home Department, (2002) 3 WLR 481.
9 1987 Pub Law, 368.
10 Lord Roskill in Wheeler v Leicester City Council, (1985) AC 1054.
11 R v Chief Constable of Sussex, Ex. P. International Traders’ Ferry Ltd., (1999) 2 AC 418, at 452.
12 1987 Public Law, 368, 376.
13 R. (on the application of Alconbury Developments Ltd.) v Secretary of State for Environment, Transport and the
Regions, (2001) 2 WLR 1389.
14 Edore v Secretary of State for the Home Dept., (2003) 3 All ER 1265.
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15 Edore v Secretary of State for the Home Dept., (2003) 3 All ER 1265 at 1274, 1275.
16 R. v Lewisham London Borough Council, (2003) 3 All ER 1277.
17 R. v Lewisham London Borough Council, (2003) 3 All ER 1277 at 1292.
End of Document
25.3 Indian View
25.3 Indian View

The principle of proportionality in its broad European sense has not so far been accepted in India. Only a very
restrictive version thereof has so far come into play. The reason is that the broad principle does not accord with the
traditions of common-law judicial review. The European version of proportionality makes the courts as the primary
reviewer of administrative action, whereas in common-law, the courts have so far played the role of the secondary
reviewer. In European Droit Administratif, review of administrative action is entrusted to administrative tribunals and
not to ordinary courts and, therefore, the broad concept of proportionality can be followed. In common-law, the
tradition so far has been that the courts do not probe into the merits of an administrative action. This approach
comes in the way of a full-fledged acceptance of the principle of proportionality, for, if accepted, it will turn the courts
into primary reviewer of administrative action.
Accordingly, in India, the courts apply the principle of proportionality in a very limited sense. The principle is applied
not as an independent principle by itself as in European Administrative Law, but as an aspect of article 14 of the
Constitution, viz, an arbitrary administrative action is hit by article 14.18 Therefore, where administrative action is
challenged as ‘arbitrary’ under article 14, the question will be whether the administrative order is ‘rational’ or
‘reasonable’ as the test to apply is the Wednesbury test.19 As has been stated by the Supreme Court in Royappa,20
if the administrative action is arbitrary, it could be struck down under article 14. Arbitrary action by an administrator
is described as one that is irrational and unreasonable. Accordingly, a very restrictive version of proportionality is
applied in the area of punishments imposed by administrative authorities.
The doctrine of proportionality has not only arrived in the Indian legal system but has come to stay. With the rapid
growth of administrative law and the need and necessity to control possible abuse of discretionary powers by
various administrative authorities, certain principles have been evolved by courts. If an action taken by any authority
is contrary to law, improper, irrational or otherwise unreasonable, a court of law can interfere with such action by
exercising power of judicial review. One of such modes of exercising power, known to law is the ‘doctrine of
proportionality’.21
“Proportionality” is a principle where the court is concerned with the process, method or manner in which the
decision-maker has ordered his priorities, reached a conclusion or arrived at a decision. The very essence of
decision-making consists in the attribution of relative importance to the factors and considerations in the case. The
doctrine of proportionality thus steps in, to focus the true nature of exercise—the elaboration of a rule of permissible
priorities.22
In Modern Dental College and Research Centre v State of Madhya Pradesh,23 the Supreme Court was considering
the constitutional vires of the MP Act and Rules meant to regulate admission of students in post graduate courses
in private professional educational institutions and provisions made for fixation of fees. It quoted Aharon Barak
(former Chief Justice, Supreme Court of Israel from his book Proportionality: Constitutional Rights and Their
Limitation (Cambridge University Press 2012) to say a limitation of a constitutional right will be constitutionally
permissible if:
(i) it is designated for a proper purpose;

(ii) the measures undertaken to effectuate such a limitation are rationally connected to the fulfilment of that
purpose;
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25.3 Indian View
(iii) the measures undertaken are necessary in that there are no alternative measures that may similarly
achieve that same purpose with a lesser degree of limitation; and finally
(iv) there needs to be a proper relation (“proportionality stricto sensu” or “balancing”) between the importance
of achieving the proper purpose and the social importance of preventing the limitation on the constitutional
right.
It expatiated further: “Modern theory of constitutional rights draws a fundamental distinction between the scope of
the constitutional rights, and the extent of its protection. Insofar as the scope of constitutional rights is concerned, it
marks the outer boundaries of the said rights and defines its contents. The extent of its protection prescribes the
limitations on the exercises of the rights within its scope. In that sense, it defines the justification for limitations that
can be imposed on such a right.
It is now almost accepted that there are no absolute constitutional rights [Though, debate on this vexed issue still
continues and some constitutional experts claim that there are certain rights, albeit very few, which can still be
treated as “absolute”. Examples given are: (a) Right to human dignity which is inviolable, (b) Right not to be
subjected to torture or to inhuman or degrading treatment or punishment. Even in respect of such rights, there is a
thinking that in larger public interest, the extent of their protection can be diminished. However, so far such attempts
of the states have been thwarted by the judiciary.] and all such rights are related. As per the analysis of Aharon
Barak [Aharon Barak, Proportionality: two key elements in developing the modern constitutional theory of
recognizing positive constitutional rights along with its limitations are the notions of democracy and the rule of law.
Thus, the requirement of proportional limitations of constitutional rights by a sub-constitutional law i.e. the statute, is
derived from an interpretation of the notion of democracy itself. Insofar as the Indian Constitution is concerned,
democracy is treated as the basic feature of the Constitution and is specifically accorded a constitutional status that
is recognised in the Preamble of the Constitution itself. It is also unerringly accepted that this notion of democracy
includes human rights which is the cornerstone of Indian democracy. Once we accept the aforesaid theory (and
there cannot be any denial thereof), as a fortiori, it has also to be accepted that democracy is based on a balance
between constitutional rights and the public interests. In fact, such a provision in article 19 itself on the one hand
guarantees some certain freedoms in clause (1) of article 19, and at the same time empowers the state to impose
reasonable restrictions on those freedoms in public interest. This notion accepts the modern constitutional theory
that the constitutional rights are related. This relativity means that a constitutional licence to limit those rights is
granted where such a limitation will be justified to protect public interest or the rights of others. This phenomenon—
of both the right and its limitation in the Constitution—exemplifies the inherent tension between democracy's two
fundamental elements. On the one hand is the right's element, which constitutes a fundamental component of
substantive democracy; on the other hand is the people element, limiting those very rights through their
representatives. These two constitute a fundamental component of the notion of democracy, though this time in its
formal aspect. How can this tension be resolved? The answer is that this tension is not resolved by eliminating the
“losing” facet from the Constitution. Rather, the tension is resolved by way of a proper balancing of the competing
principles. This is one of the expressions of the multi-faceted nature of democracy. Indeed, the inherent tension
between democracy's different facets is a “constructive tension”. It enables each facet to develop while
harmoniously coexisting with the others. The best way to achieve this peaceful coexistence is through balancing
between the competing interests. Such balancing enables each facet to develop alongside the other facets, not in
their place. This tension between the two fundamental aspects—rights on the one hand and its limitation on the
other hand—is to be resolved by balancing the two so that they harmoniously coexist with each other. This
balancing is to be done keeping in mind the relative social values of each competitive aspects when considered in
proper context.
In this direction, the next question that arises is as to what criteria is to be adopted for a proper balance between
the two facets viz. the rights and limitations imposed upon it by a statute. Here comes the concept of
“proportionality”, which is a proper criterion. To put it pithily, when a law limits a constitutional right, such a limitation
is constitutional if it is proportional. The law imposing restrictions will be treated as proportional, if it is meant to
achieve a proper purpose, and if the measures taken to achieve such a purpose are rationally connected to the
purpose, and such measures are necessary. This essence of doctrine of proportionality is beautifully captured by
Dickson, C.J. of Canada in R v Oakes,24 in the following words (at p. 138):
“To establish that a limit is reasonable and demonstrably justified in a free and democratic society, two central criteria must
be satisfied. First, the objective, which the measures, responsible for a limit on a charter right or freedom are designed to
serve, must be “of” sufficient importance to warrant overriding a constitutionally protected right or freedom … Second … the
party invoking section 1 must show that the means chosen are reasonable and demonstrably justified. This involves “a form
of proportionality test…” Although the nature of the proportionality test will vary depending on the circumstances, in each
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25.3 Indian View
case courts will be required to balance the interests of society with those of individuals and groups. There are, in my view,
three important components of a proportionality test. First, the measures adopted must be … rationally connected to the
objective. Second, the means … should impair “as little as possible” the right or freedom in question … Third, there must be
a proportionality between the effects of the measures which are responsible for limiting the charter right or freedom, and the
objective which has been identified as of “sufficient importance”. The more severe the deleterious effects of a measure, the
more important the objective must be if the measure is to be reasonable and demonstrably justified in a free and
democratic society.”
The exercise which, therefore, is to be taken is to find out as to whether the limitation of constitutional rights is for a purpose
that is reasonable and necessary in a democratic society and such an exercise involves the weighing up of competitive
values, and ultimately an assessment based on proportionality i.e. balancing of different interests.”
De Smith in his Judicial Review of Administrative Action (1995), pp. 601-05, para 13.085 states that “proportionality”
involves “balancing test” and “necessity test”. Whereas the former (balancing test) permits scrutiny of excessive
onerous penalties or infringement of rights or interests and a manifest balance of relevant considerations, the latter
(necessity test) requires infringement of human rights to the least restrictive alternative.25
The doctrine of proportionality has its genesis in the field of administrative law. The government and its
departments, in administering the affairs of the country, are expected to honor their statements of policy or intention
and treat the citizens with full personal consideration without abuse of discretion. There can be no “pick and
choose”, selective applicability of the government norms or unfairness, arbitrariness or unreasonableness. It is not
permissible to use a “sledgehammer to crack a nut”. As has been said many a times, “where parting knife suffices,
battle axe is precluded.”26
The constitutional requirement for judging the question of reasonableness and fairness on the part of the statutory
authority must be considered having regard to the factual matrix in each case. It cannot be put in a straitjacket
formula. It must be considered keeping in view the doctrine of flexibility. Before an action is struck down, the court
must be satisfied that a case has been made out for exercise of power of judicial review.27
The first proposition in this regard is that the quantum of punishment imposed by a disciplinary authority on a civil
servant for his misconduct in service, is a matter of discretion of the disciplinary authority.
The second proposition is that the punishment has to be reasonable because of the constraints of article 14. This
means that if the punishment imposed is unreasonable, article 14 is infringed. The court can thus decide upon the
proportionality of the punishment when it is strikingly disproportionate. The court would not interfere with the matter
of punishment on compassionate ground,28 or because it considers the punishment disproportionate. The court
would interfere only in such extreme cases which on their face show perversity or irrationality. The Wednesbury
test29 is to be applied in such a case.
The Supreme Court has laid down the principle in Om Kumar,30 in these words:
“…When an administrative decision relating to punishment in disciplinary cases is questioned as ‘arbitrary’ under Art. 14,
the court is confined to Wednesbury principles as a secondary reviewing authority. The court will not apply proportionality
as a primary reviewing court…”
The court would thus intervene in the matter of punishment only when it is satisfied that Wednesbury principle has
been violated.31 Below are given a few examples as to how this proposition is applied to a specific factual situations.
In the judgment delivered by a 3 Judges Bench of the Supreme Court Anuradha Bhasin v UOI,32 dealing with the
validity of telecommunication restrictions imposed in Jammu & Kashmir in 2019, there has been a detailed analysis
of the principles, governing proportionality and constitutional limitations in respect of fundamental rights. Tracing the
doctrine of proportionality in all its dimensions, the Supreme Court reiterated the age-old principle that
proportionality was all about means and ends and that the substance and breadth of any restriction should not be
disproportionate to the purpose of the law and defeat the purpose of the law itself. Contrasting and comparing the
views of Ronald Dworkin and Robert Alexy, the Supreme Court observed that proportionality lies in the very nature
of rights and principles seen as normative rules.
Continuing the jurisprudential journey, the Supreme Court quoted from various precedents in India and referred to
international authorities in extenso. Summarising the principles of balancing competing interests and rights along
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25.3 Indian View
with legitimate goal, rational connection, necessity and balancing stages spelt out by global jurists on the subject.
Commenting on the values of a democratic society governed by a Constitution, the Supreme Court said that the
legitimacy of the aim was of vital importance along with the degree of measures that sought to impair freedoms.
The Supreme Court said that ‘the degree of restriction and scope of the same, both territorially and temporally, must
stand in relation to what is actually necessary to combat an emergent situation’. (Para 79)
In Sharma,33 the Supreme court has again laid down the principle as follows: The court cannot while exercising
power under article 32/226 interfere with the punishment because the court considers it to be disproportionate. “It is
only in extreme cases, which on their face show perversity or irrationality that there can be judicial review. Merely
on compassionate grounds a court should not interfere”.
The court thus interferes when the quantum of punishment is “shockingly disproportionate, or it shocks the
conscience of the court. The following cases illustrate the point:
(i) The appellant was removed from government service on the ground of misconduct. Taking the kind of
misconduct in view, the Supreme Court characterized the punishment of removal from service as arbitrary
and quashed the order in question.34
(ii) The Supreme Court has observed in Bhagat Ram:35
“It is equally true that the penalty imposed must be commensurate with the gravity of the misconduct,
and that any penalty disproportionate to the gravity of the misconduct would be violative of Art. 14 of
the Constitution.”36
Prima facie, this was a broad statement which seemed to accept the principle of proportionality as
such. But since then, the Supreme Court has qualified the statement. Instead of the ‘disproportionate’,
the expression ‘shockingly disproportionate’ has come to be substituted.
(iii) In the context of “unfair labour practice” under Labour Law, the Supreme Court has observed:37
“But, where the punishment is shockingly disproportionate, regard being had to the particular conduct and the past record
or is such, as no reasonable employer would ever impose in like circumstances, the Tribunal may treat the imposition of
such punishment as itself showing victimization or unfair labour practice”.
Accordingly, in several cases, the punishment of dismissal imposed on workmen by their employers have been
quashed on the ground that the same is grossly disproportionate to the nature of the charges, held proved against
the workman concerned.38
In a number of cases, the Supreme Court has refused to intervene with the punishment imposed by the disciplinary
authority as it was not found to be shockingly disproportionate to the offence in question.39
For example, in B.C. Chaturvedi v UOI,40 a government servant was dismissed from service because he was found
to have assets, disproportionate to his known sources of income. The Tribunal taking in view, his brilliant academic
record and 30 years of service, substituted the punishment of dismissal with compulsory retirement. The Supreme
Court, on appeal, set aside the Tribunal order and restored the order of dismissal imposed on him by the
disciplinary authority. The court maintained that the disciplinary authority is invested with discretion to impose
appropriate punishment keeping in view the magnitude or gravity of misconduct. The court observed further in this
connection:
“The High Court/Tribunal, while exercising the power of judicial review, cannot normally substitute its own conclusion on
penalty and impose some other penalty. If the punishment imposed by the disciplinary authority or the appellate authority
shocks the conscience of the High Court/Tribunal, it would appropriately mould the relief, either directing the
disciplinary/appellate authority to reconsider the penalty imposed, or to shorten litigation, it may itself, in exceptional and
rare cases, impose appropriate punishment with cogent reasons in support thereof”.
In a concurring judgment, Hansaria, J., emphasized that not only the Supreme Court, but even a High Court in a
writ petition can apply its judicial mind to the question of proportionality of punishment. “But then, while seized with
this question as a writ, court interference is permissible only when the punishment/penalty is shockingly
disproportionate.
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25.3 Indian View
25.3.1 Ganayutham
The respondent who was working as the Superintendent of Central Excise was subjected to the punishment of
withholding of 50% of the pension and 50% of gratuity. A writ petition was filed in the High Court which was later
moved to the administrative tribunal. The tribunal holding the punishment too severe, reduced the same.
The matter then came before the Supreme Court by way of appeal. The court set aside the order of the tribunal and
restored the original punishment saying that the punishment was not ‘irrational’ according to the Wednesbury test.
The court observed:
“In such a situation, unless the Court/Tribunal opines in its secondary role, that the administrator was, on the material
before him, irrational according to Wednesbury or CCSU norms, the punishment cannot be quashed”.41
25.3.2 Indian Oil
This proposition has been reiterated by the Supreme Court in Indian Oil Corporation v Ashok Kumar Arora.42 The
court has observed in that case:
“In such a situation, unless the court/tribunal opines in its secondary role that the administrator was, on the material before
him, irrational according to Wednesbury or CCSU norms, the punishment cannot be quashed”.
25.3.3 Satish
After an inquiry into the conduct of the respondent, certain charges of misconduct were held proved against him.
Consequently, he was awarded the punishment of removal from service. The Labour Court characterizing the
punishment to be excessive reduced the same. The Supreme Court quashed the Labour Court’s order and restored
the order passed by the disciplinary authority.43 The court observed:44
“It could not be said that the punishment awarded to the respondent was in any way “shockingly disproportionate” to the
nature of the charge found proved against him”.
25.3.4 Apparel Export
The respondent after an inquiry was found guilty of sexually harassing a female employee. Consequently, his
service was terminated. In a writ petition filed in the High Court, his punishment was reduced by the court. The
Supreme Court took exception to the High Court’s interference with the award of the punishment in the instant case
with the following observation:
“Even in so far imposition of penalty is concerned, unless the punishment or penalty imposed by the Disciplinary or the
Departmental Appellate Authority, is either impermissible or such that it shocks the conscience of the High Court, it should
not normally substitute its own opinion and impose some other punishment or penalty”.
Accordingly, in the instant case, the Supreme Court set aside the order of the High Court and restored the
punishment of removal from service of the respondent imposed by the disciplinary authority.45
25.3.5 Kakkar
Disciplinary proceedings were initiated against an employee of a statutory bank. It was alleged that he had
committed several acts of misconduct, while functioning as the assistant manager of the branch of the bank. He
was placed under suspension and proceedings initiated against him under the rules of conduct of the bank. Several
charges were found to be established against him and the punishment of dismissal was imposed on him.
In a writ petition, the High Court held the punishment to be excessive and reduced it to a loss of 75% of salary.
The matter then came in appeal before the Supreme Court. The court considered at length in C.M.D. United
Commercial Bank v P.C. Kakkar,46 the question of scope of judicial review of disciplinary punishments. The court
referred to its earlier decision in Om Kumar v UOI,47 and held that where punishments in disciplinary cases are
challenged as arbitrary vis-à-vis article 14 of the Constitution, the court would act as a secondary reviewer. The
question before the court would be whether the administrative order is “rational” or “reasonable” according to the
Wednesbury test. On this question, the court observed:
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25.3 Indian View
“The courts would then be confined only to a secondary role and will only have to see whether the administrator has done
well in his primary role, whether he has acted illegally or has omitted relevant factors from consideration or has taken
irrelevant factors into consideration or whether his view is one which no reasonable person could have taken. If his action
does not satisfy these rules, it is to be treated as arbitrary.”48
In the instant case, it has not been contended that any fundamental freedom has been affected. The court should
not interfere with the administrator’s decision imposing punishment unless “it was illogical or suffers from procedural
impropriety or was shocking to the conscience of the court, in the sense that it was defiance of logic or moral
standards”. “Unless the punishment imposed by the disciplinary authority or the appellate authority shocks the
conscience of the court/tribunal, there is no scope for interference.
When the court feels that the punishment is “shockingly disproportionate”, it must record reasons for coming to such
a conclusion. Mere expression that the punishment is shockingly disproportionate would not meet the requirements
of law. Also, in the normal course, if the punishment imposed is shockingly disproportionate it would be appropriate
to direct the disciplinary authority or the appellate authority to reconsider the penalty imposed.
In the instant case, the proceedings commenced in 1981. He was placed under suspension from 1983 to 1988, and
was superannuated in 2002. He was acquitted in a criminal case. In these peculiar circumstances of the case, the
Supreme Court sent the matter back to the High Court for fresh consideration only on the question of punishment
aspect.
25.3.6 Hoti Lal
In Hoti Lal,49 the service of a bus conductor in UP State Road Transport Corporation was terminated as he was
found to carry ticketless passengers in the bus. The High Court quashed the punishment of termination on the
ground that the punishment was “not commensurate with the gravity of the charge.”
On appeal, the Supreme Court reversed the High Court’s decision. The Supreme Court emphasized that the court
or tribunal while dealing with the quantum of punishment has to record reasons as to why it is felt that the
punishment was not commensurate with the proven charges. The scope for interference in this area is very limited
and is restricted to exceptional cases. In the instant case, the High Court advanced no reasons whatsoever as to
why it considered the punishment disproportionate. The court observed further in this connection:
“If the charged employee holds a position of trust where honesty and integrity are inbuilt requirements of functioning, it
would not be proper to deal with the matter leniently. Misconduct in such cases has to be dealt with iron hands”.50
25.3.7 Dev Singh
Dev Singh v Punjab Tourism Development Corporation,51 is one case where the Supreme Court did interfere with
the punishment of dismissal imposed on the appellant. The court found the punishment “too harsh” “totally
disproportionate to the misconduct alleged” and which “certainly shocks our judicial conscience”.
After reviewing the relevant cases,52 the Supreme Court has restated the position as follows:
“…. a court sitting in appeal against a punishment imposed in the disciplinary proceedings will not normally substitute its
own conclusion or penalty, however, if the punishment imposed by the disciplinary authority or the appellate authority
shocks the conscience of the court, then the court would appropriately mould the relief….”53
25.3.8 Mineral Development
This principle has also been applied to areas other than the award of disciplinary punishments to government
employees by disciplinary authorities. For example, in Mineral Development,54 the Supreme Court condemned a
government order cancelling the licence of the petitioner company saying that “the contraventions alleged, even if
true, appeal to be trivial for the drastic action taken by the State”. Again, the Court said in the instant case: “… it is
obvious that the licence affecting rights of great magnitude was cancelled to say the least, for trivial reasons.”
25.3.9 Akbar Badruddin
In Akbar Badruddin,55 fine imposed on an importer for importing some banned item was held to be “extremely
harsh, excessive and unreasonable”.
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25.3.10 Rajesh
Rajesh56 furnishes an example of application of the principle of proportionality to an area other than that of
punishments. In Rajesh, applications were invited by CBI for filling up 134 posts of constables. The selection
process consists of a written examination and a viva voce test. There were some allegations of favoritism and
nepotism while conducting the physical efficiency test; there were also some irregularities committed during the
written examination. As a result thereof, the entire selection list was cancelled. This was challenged in the High
Court through a writ petition.
The High Court after reviewing the various reports and the entire process categorically rejected the allegations of
nepotism and favouritism. The court also ruled that there was no justification for cancelling the entire list when the
impact of irregularities in the evaluation on merits could be identified specifically. On a reconsideration of the entire
record, the court found that only 31 specific candidates were selected undeservedly. The High Court allowed the
writ petition.
On appeal the Supreme Court upheld the High Court. The court ruled that when only 31 cases were tainted, there
was hardly any justification in law to deny appointments to the other selected candidates whose selection was not
vitiated in any manner. The court observed on this aspect of the case:57
“Applying a unilaterally rigid and arbitrary standard to cancel the entirety of the selections despite the firm and positive
information that except 31 of such selected candidates, no infirmity could be found with reference to others, is nothing but
total disregard, of relevancies and allowing to be carried away by irrelevancies, giving a complete go-by to contextual
considerations throwing to the winds the principle of proportionality in going farther than what was strictly and reasonably to
meet the situation. In short, the competent authority completely misdirected itself in taking such an extreme and
unreasonable decision of cancelling the entire selections wholly unwarranted and unnecessary even on the factual situation
found too, and totally in excess of the nature and gravity of what was at stake, thereby virtually rendering such decision to
be irrational”.
An aspect of the principle of proportionality is that the administration ought not to make an order harsher than what
the need of the situation demand. It is to be noted that the court has not invoked the Wednesbury test in the instant
case. The use of the term ‘irrational’ seems to be in a sense somewhat wider than the Wednesbury test. In the
instant case, the Supreme Court is very nearly playing the role of a primary reviewer.58
25.3.11 Mukul Kumar Choudhuri
In Chairman cum Managing Director, Coal India Limited v Mukul Kumar Choudhuri,59 the Supreme Court was of the
view that:
“What is otherwise within the discretionary domain and sole power of the decision maker to quantify punishment once the
charge of misconduct stands proved, such discretionary power is exposed to judicial intervention if exercised in a manner
which is out of proportion to the fault. Award of punishment which is grossly in excess to the allegations cannot claim
immunity and remains open for interference under limited scope of judicial review. One of the tests to be applied while
dealing with the question of quantum of punishment would be: would any reasonable employer have imposed such
punishment in like circumstances? Obviously, a reasonable employer is expected to take into consideration measure,
magnitude and degree of misconduct and all other relevant circumstances and exclude irrelevant matters before imposing
punishment.”
In this case, the misconduct in question was the Respondent’s unauthorised absence from duty for six months. The
court found that upon being charged of such misconduct, he fairly admitted his guilt and explained his reasons for
the absence. Not only were they beyond his control, but he had sent his resignation, which was not accepted. In
view of the circumstances of the case, it was held that, “no reasonable employer would have imposed extreme
punishment of removal in like circumstances. The punishment is not only unduly harsh but grossly in excess to the
allegations”.
25.3.12 Article 14: Discriminatory Action
However, if administrative action is challenged as discriminative under article 14, proportionality applies and it is a
primary review. Where administrative action is challenged as being discriminatory under article 14, equals are
treated unequally or unequals are treated equally, the question is for the constitutional courts to consider as primary
reviewing courts. The courts consider correctness of the level of discrimination applied and whether it is excessive
and whether it has a nexus with the objective intended to be achieved by the administrator. Hence, the court deals
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25.3 Indian View
with the merits of the balancing action of the administrator and is, in essence, applying the principle of
proportionality and is acting as a primary reviewing authority. Thus, the Supreme Court has stated in Om Kumar: “If,
under article 14, administrative action is to be struck down as discriminatory, proportionality applies and it is primary
review”. At another place, in the instant case, the court has stated: “Thus, when administrative action is attacked as
discriminatory under article 14, the principle of primary review is for the courts by applying proportionality”.60
There is no fundamental right to compassionate appointment and indeed it is a deviation from article 14, but when a
policy is laid down, it must stand the test of non-arbitrariness and proportionality. Interfering with a policy prohibiting
children of second wife from consideration for compassionate appointment in Railways in UOI v V.R. Tripathi,61 the
court examined the provision of the Hindu Marriage Act, which legitimized for the purpose of succession to children
of void and voidable marriages and said, “The issue essentially is whether it is open to an employer, who is
amenable to Part III of the Constitution to deny the benefit of compassionate appointment which is available to other
legitimate children. Undoubtedly, while designing a policy of compassionate appointment, the state can prescribe
the terms on which it can be granted. However, it is not open to the state, while making the scheme or rules, to lay
down a condition which is inconsistent with article 14 of the Constitution. The purpose of compassionate
appointment is to prevent destitution and penury in the family of a deceased employee. The effect of the circular is
that, irrespective of the destitution which a child born from a second marriage of a deceased employee may face,
compassionate appointment is to be refused unless the second marriage was contracted with the permission of the
administration. Once section 16 of the Hindu Marriage Act, 1955 regards a child born from a marriage entered into
while the earlier marriage is subsisting to be legitimate, it would not be open to the state, consistent with article 14
to exclude such a child from seeking the benefit of compassionate appointment. Such a condition of exclusion is
arbitrary and ultra vires.
Actions against debarment of medical colleges,62 seeding Aadhar requirement in PAN card registration63 and
mandating merger on alleged ground of public interest,64 have all registered successful challenges against
administrative actions on the test of proportionality. Factual issues that found favour with action as proportionate to
wrongs cited could be found in these decisions.65
25.3.13 Fundamental Freedoms
Again, in an administrative action affecting fundamental freedom, proportionality has to be applied. In this area,
proportionality of administrative action is to be treated by the courts as a primary reviewing authority. On this point,
the Supreme Court has stated in Om Kumar:66
“Administrative action in India affecting fundamental freedoms has always been tested on the anvil of ‘proportionality’ in the
last fifty years even though it has not been expressly stated that the principle that is applied is the ‘proportionality’
principle.”67
The Judgment of the 9 Judges Bench of the Supreme Court in K S Puttaswamy v UOI,68 contains a huge mine of
resources on fundamental freedom relating to privacy and deals with this doctrine in its diverse facets with
reference to several decisions from India and abroad. It said, The recent decision in Jeeja Ghosh v UOI,69
construed the constitutional protection afforded to human dignity. The court observed: (SCC p. 792, para 37)
“37. …human dignity is a constitutional value and a constitutional goal. What are the dimensions of constitutional value of
human dignity? It is beautifully illustrated by Aharon Barak [Aharon Barak, Human Dignity—The Constitutional Value and
the Constitutional Right (Cambridge University Press, 2015).] (former Chief Justice of the Supreme Court of Israel) in the
following manner:
‘The constitutional value of human dignity has a central normative role. Human dignity as a constitutional value is the factor
that unites the human rights into one whole. It ensures the normative unity of human rights. This normative unity is
expressed in the three ways: first, the value of human dignity serves as a normative basis for constitutional rights set out in
the constitution; second, it serves as an interpretative principle for determining the scope of constitutional rights, including
the right to human dignity; third, the value of human dignity has an important role in determining the proportionality of a
statute limiting a constitutional right.’
The court further said,
“325. Like other rights which form part of the fundamental freedoms protected by Part III, including the right to life and
personal liberty under article 21, privacy is not an absolute right. A law which encroaches upon privacy will have to
withstand the touchstone of permissible restrictions on fundamental rights. In the context of article 21 an invasion of privacy
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25.3 Indian View
must be justified on the basis of a law which stipulates a procedure which is fair, just and reasonable. The law must also be
valid with reference to the encroachment on life and personal liberty under article 21. An invasion of life or personal liberty
must meet the threefold requirement of (i) legality, which postulates the existence of law; (ii) need, defined in terms of a
legitimate State aim; and (iii) proportionality which ensures a rational nexus between the objects and the means adopted to
achieve them.”
****
638. The concerns expressed on behalf of the petitioners arising from the possibility of the State infringing the right to
privacy can be met by the test, suggested for limiting the discretion of the State:
“(i) The action must be sanctioned by law;
(ii) The proposed action must be necessary in a democratic society for a legitimate aim;
(iii) The extent of such interference must be proportionate to the need for such interference;
(iv) There must be procedural guarantees against abuse of such interference.”
****
640. It would be useful to turn to the European Union Regulation of 2016 [ Regulation No. (EU) 2016/679 of the European
Parliament and of the Council of 27April 2016 on the protection of natural persons with regard to the processing of personal
data and on the free movement of such data, and repealing Directive No. 95/46/EC (General Data Protection Regulation).]
Restrictions of the right to privacy may be justifiable in the following circumstances subject to the principle of proportionality:
(a) Other fundamental rights: The right to privacy must be considered in relation to its function in society and be
balanced against other fundamental rights;
(b) Legitimate national security interest;
(c) Public interest including scientific or historical research purposes or statistical purposes;
(d) Criminal offences: The need of the competent authorities for prevention, investigation, prosecution of criminal
offences including safeguards against threat to public security;
(e) The unidentifiable data: The information does not relate to identified or identifiable natural person but remains
anonymous. The European Union Regulation of 2016 [ Regulation No. (EU) 2016/679 of the European Parliament
and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal
data and on the free movement of such data, and repealing Directive No. 95/46/EC (General Data Protection
Regulation).] refers to “pseudonymisation” which means the processing of personal data in such a manner that
the personal data can no longer be attributed to a specific data subject without the use of additional information,
provided that such additional information is kept separately and is subject to technical and organisational
measures to ensure that the personal data are not attributed to an identified or identifiable natural person;
(f) The tax, etc.: The regulatory framework of tax and working of financial institutions, markets may require disclosure
of private information. But then this would not entitle the disclosure of the information to all and sundry and there
should be data protection rules according to the objectives of the processing. There may however, be processing
which is compatible for the purposes for which it is initially collected.”
In Christian Medical College Vellore Association v UOI,70 concerning the applicability of the National Eligibility Cum
Entrance Test (NEET) to educational institutions, run and managed by religious and linguistic minorities, the
Supreme Court was faced with the need to balance article 19(1)(g) which provides for a fundamental right to
establish and manage educational institutions and interests of general public stipulated as a reasonable restriction
in article 19(6). Carrying out an exhaustive disquisition on the dimensions of proportionality, a three Judges Bench
of the Supreme Court observed that modern constitutional theory regards well defined limitations as within the
constitutional scheme measured with the extent of protection accorded to rights. Terming the area of ‘constructive
tension’ between the rights, aspects and the people themselves as part of constitutional democracy, the Supreme
Court said that harmonious co-existence of rights and limitations was an imperative. Drawing from the already
existing case law on the point, the Supreme Court said that evolving a balance between the rights and limitations
within the constitutional framework was a requisite of constitutional adjudication in globalized societies, where many
stakeholders are involved. The Supreme Court held that the conduct of NEET in no way offended any principle of
Page 10 of 13
25.3 Indian View
proportionality or any fundamental right enjoyed by religious or linguistic minorities in aided/unaided educational
institutions.
“There are hundreds of cases dealt with by our courts. In all these matters, the proportionality of administrative action
affecting the freedoms under article 19(1) or article 21 has been trusted by the courts as a primary reviewing authority and
not on the basis of Wednesbury principles. It may be that the courts did not call this proportionality but it really was.”
Also, while assessing the constitutional validity of a statute or an administrative order vis-à-vis fundamental rights,
the court always does the balancing act between a fundamental right and the restriction imposed thereon. A
restriction which is disproportionate, or excessive can always be struck down.71
The petitioners in Internet & Mobile Association of India v Reserve Bank of India,72 tasted success to the challenge,
to the circular of Reserve Bank of India that sought to regulate the use of cryptocurrencies or virtual currencies or
VCs, as the Supreme Court coined. The impugned circular dated 6 April 2018 dealt entirely with virtual currencies
and the prohibition on dealing with the same. The caption and text were:
Prohibition on dealing in Virtual Currencies (VCs)
1. Reserve Bank has repeatedly through its public notices on 24 December 2013, 1 February 2017 and 5
December 2017, cautioned users, holders and traders of virtual currencies, including bitcoins, regarding
various risks associated in dealing with such virtual currencies.
2. In view of the associated risks, it has been decided that, with immediate effect, entities regulated by the
Reserve Bank shall not deal in VCs or provide services for facilitating any person or entity in dealing with or
settling VCs. Such services include maintaining accounts, registering, trading, settling, clearing, giving
loans against virtual tokens, accepting them as collateral, opening accounts of exchanges dealing with
them and transfer/receipt of money in accounts relating to purchase/sale of VCs.
3. Regulated entities which already provide such services shall exit the relationship within three months from
the date of this circular.
4. These instructions are issued in exercise of powers conferred by section 35-A read with section 36(1)(a) of
the Banking Regulation Act, 1949, section 35-A read with section 36(1)(a) and section 56 of the Banking
Regulation Act, 1949, sections 45-JA and 45-L of the Reserve Bank of India Act, 1934 and section 10(2)
read with section 18 of the Payment and Settlement Systems Act, 2007.
Applying the test of proportionality, the court observed that the persons who have suffered a deadly blow from the
impugned circular were only those running VC exchanges and not even those who were trading in VCs. Persons
trading in VCs, even now had different options but the VC exchanges did not appear to have found out any other
means of survival, if they were disconnected from the banking channels.
Adverting to the volume of activities of VC users, the court said, “The pleadings contained in the first writ petition
filed by the Association, would show that three companies who are members of the Internet and Mobile Association
of India, had a combined total of approximately 17 lakhs verified users throughout India. These companies held a
combined total of approximately Rs 1365 crores of user funds in trust. The approximate monthly transaction volume
of just these three companies was around Rs 5000 crores. Even according to the petitioner, the crypto-asset
industry is estimated to have a market capitalization of approximately 430 billion US dollars globally. India is
estimated to contribute between 2 and 10% based on varied estimates… The total number of investors in Indian
crypto-market was approximately 20 lakhs and the average daily trade volume was at least Rs 150 crores, at the
time when the writ petition was filed. Therefore, if a Central authority like RBI, on a conspectus of various factors
perceive the trend as the growth of a parallel economy and severs the umbilical cord that virtual currency has with
fiat currency, the same cannot be very lightly nullified as offending article 19(1)(g).
Applying the tests laid down in its earlier judgments and adverting to the recommendations of the European
Commission regarding regulation and not banning crypto currencies, the court dealt with the response of RBI before
the court and said, “we cannot lose sight of three important aspects, namely, (i) that RBI has not so far found, in the
past 5 years or more, the activities of VC exchanges to have actually impacted adversely, the way the entities
regulated by RBI function; (ii) that the consistent stand taken by RBI up to and including in their reply dated 4
September 2019 is that RBI has not prohibited VCs in the country, and (iii) that even the Inter-Ministerial Committee
constituted on 2 November 2017, which initially recommended a specific legal framework including the introduction
of a new law, namely, Crypto-token Regulation Bill, 2018, was of the opinion that a ban might be an extreme tool
Page 11 of 13
25.3 Indian View
and that the same objectives can be achieved through regulatory measures. Bill proposed in 2019 contemplated
introduction of digital currency as legal tender but it never took off. Indeed, the RBI had not come out with a stand
that any of the entities regulated by it, namely, the nationalised banks/scheduled commercial banks/cooperative
banks/NBFCs had suffered any loss or adverse effect directly or indirectly, on account of the interface that the VC
exchanges had with any of them.
The Supreme Court noted that there was no empirical data about the degree of harm suffered by the regulated
entities (after establishing that they were harmed). It was not the case of RBI that any of the entities regulated by it
had suffered on account of the provision of banking services to the online platforms, running VC exchanges. When
the consistent stand of RBI was that they have not banned VCs and when the Government of India is unable to take
a call despite several committees coming up with several proposals including two draft Bills, both of which
advocated exactly opposite positions, it was not possible to hold, that the impugned measure was proportionate.
18 See, Jain, Treatise, I, Chapter XIX.

19 Associated Provincial Picture House v Wednesbury Corporation, (1947) 2 All ER 680. For discussion on this case, see
Jain, Treatise, I, Chapter XIX; Jain, Cases, I, 187, 188, 213.
20 E. Royappa v State of Tamil Nadu, AIR 1974 SC 555 : (1974) 4 SCC 3 : 1974 (1) LLJ 172.
21 Coimbatore District Central Co-operative Bank v Coimbatore District Central Cooperative Bank Employees
Association, (2007) 4 SCC 669, 678 (para 17).
Association, (2007) 4 SCC 669, 678 (para 18) : 2007 (6) SCALE 45.
23 Modern Dental College and Research Centre v State of Madhya Pradesh, (2016) 7 SCC 353.
24 R. v Oakes, (1986) 1 SCR 103 (Can SC).
25 Cited in Coimbatore District Central Co-operative Bank v Coimbatore District Central Cooperative Bank
Employees Association, (2007) 4 SCC 669, 678 (para 19) : 2007 (6) SCALE 45.
Association, (2007) 4 SCC 669, 679 (para 21) : 2007 (6) Scale 45.
27 MP Gangadharan v State of Kerala, (2006) 6 SCC 162. See also Coimbatore District Central Co- operative
Bank v Coimbatore District Central Cooperative Bank Employees Association, (2007) 4 SCC 669, 682 (para 34) : 2007
(6) Scale 45.
29 See, Jain, Treaties, I.
30 Om Kumar v UOI, AIR 2000 SC 3689, at 3704 : 2000 LIC 304 : 2000 (7) Scale 524. Also see, UOI v G. Ganayutham,
AIR 1997 SC 3387 : 1997 SCC (L&S) 1806.
31 State of Tamil Nadu v A. Rajapondian, AIR 1995 SC 561 : (1995) 1 SCC 216 : 1995 (1) LLJ 953; Apparel Export
Promotion Council v A.K. Chopra, 1999 SC 625 : (1999) 1 SCC 759 : 1999 (1) LLJ 962.
32 Anuradha Bhasin v UOI, (2020) 3 SCC 637.
33 UOI v R.K. Sharma, AIR 2001 SC 3053 : JT 2001 (9) SC 76 : (2001) 5 SLR 731.
34 A.L. Kalra v P&E Corporation of India Ltd., AIR 1984 SC 1361 : (1984) 3 SCC 316 : 1984 (2) LLJ 186; Jain,
Cases, 753.
35 Bhagat Ram v State of Himachal Pradesh, AIR 1983 SC 454 at 460 : (1983) 2 SCC 442 : 1983 (2) LLJ 1.
36 Also see, V.R. Katarki v State of Karnataka, AIR 1991 SC 1241 : 1992 (1) LLJ 622 : 1991 Supp (1) SCC 267; S.R.
Tewari v UOI, (2013) 6 SCC 602 : 2013 (3) SCT 461 (SC).
37 Hind Construction & Engineering Co Ltd v Their Workmen, AIR 1965 SC 917 : 1965 (1) LLJ 462.
38 Hind Construction & Engineering Co Ltd v Their Workmen, AIR 1965 SC 917 : 1965 (2) SCR 85 : 1965 (1) LLJ
462. Also, Colour-Chem Ltd. v A.L. Alaspurkar, AIR 1998 SC 948 : (1998) 3 SCC 192 : 1998 (1) LLJ 694.
39 See, UOI v G. Gangayuthan, AIR 1997 SC 3387 : 1997 SCC (L&S) 1806 : JT 1997 (7) SC 572; Om Kumar v
UOI, AIR 2000 SC 3689 : 2001 (1) SLR 299; UOI v R.K. Sharma, AIR 1991 SC 3953; Manoj H. Mishra v UOI, 2013 (5)
SCALE 618 : (2013) 6 SCC 313; Chandra Kumar Chopra v UOI, 2012 (5) SCALE 384 : (2012) 6 SCC 369.
40 B.C. Chaturvedi v UOI, AIR 1996 SC 484 : (1995) 6 SCC 749 : 1996 (1) LLJ 1231.
Page 12 of 13
25.3 Indian View
41 UOI v G. Ganayutham, AIR 1997 SC 3387, at 3396 : 1997 SCC (L&S) 1806.
42 Indian Oil Corporation v Ashok Kumar Arora, (1997) 3 SCC 72 : AIR 1997 SC 1030.
43 UP State Road Transport Corporation v Subhash Chandra Sharma, AIR 2000 SC 1163 : (2000) 3 SCC 324 : 2000 (1)
LLJ 1117.
44 UP State Road Transport Corporation v Subhash Chandra Sharma, AIR 2000 SC 1163 at 1165 : (2000) 3 SCC 324 :
2000 (1) LLJ 1117.
45 Apparel Export Promotion Council v A.K. Chopra, AIR 1999 SC 625, at 630 : (1999) 1 SCC 759 : 1999 (1) LLJ 962.
46 C.M.D. United Commercial Bank v P.C. Kakkar, AIR 2003 SC 1571 : 2003 (2) LLJ 181 : (2003) 4 SCC 364.
47 Om Kumar v UOI, AIR 2000 SC 3689 : 2000 LIC 304.
48 C.M.D. United Commercial Bank v P.C. Kakkar, AIR 2003 SC 1571, at 1576 : 2003 (2) LLJ 181 : (2003) 4 SCC 364.
49 Regional Manager, UPSRTC v Hoti Lal, (2003) 3 SCC 605.
50 Regional Manager, UPSRTC v Hoti Lal, AIR 2003 SC 1462 : (2003) 3 SCC 605, 614 : 2003 (2) LLJ 267. See also Life
Insurance Corporation of India v R. Suresh, (2008) 11 SCC 319, 327 (para 32); UOI v J. Ahmed, (1979) 2 SCC 286;
ITC Ltd. v Presiding Officer, Labour Court, (1978) 3 SCC 504; Chandra Kumar Chopra v UOI, 2012 (5) Scale 384 :
(2012) 6 SCC 369.
51 Dev Singh v Punjab Tourism Development Corporation, AIR 2003 SC 3712 : 2003 (3) LLJ 823 : (2003) 8 SCC 9.
52 Bhagat Ram v State of HP, AIR 1983 SC 454 : (1983) 2 SCC 442; Ranjit Thakur v UOI, AIR 1987 SC 2386 : (1987) 4
SCC 611 : 1988 (1) LLJ 256; UP State Road Transport Corporation v Mahesh Kumar Mishra, (2000) 3 SCC 450 : AIR
2000 SC 1151 : 2000 (1) LLJ 1113.
53 Dev Singh v Punjab Tourism Development Corporation, AIR 2003 SC 3712 at 3713 : 2003 (3) LLJ 23 : (2003) 8 SCC 9.
54 Mineral Development Ltd. v State of Bihar, AIR 1960 SC 468 : 1960 (2) SCR 609.
55 Akbar Badruddin v Collector of Customs, AIR 1990 SC 1579 : (1990) 2 SCC 203, 220.
56 UOI v Rajesh PU, Puthuvalnikathu, AIR 2003 SC 4222 : (2003) 7 SCC 285.
57 UOI v Rajesh PU, Puthuvalnikathu, AIR 2003 SC 4222 : (2003) 7 SCC 285 at 289-90 : 2003 LIC 2653.
58 On the present-day thinking on the viability of the Wednesbury test, see, infra, under “Legitimate
Expectation”. Jain, Indian Constitutional Law, 1147-1152.
59 Chairman cum Managing Director, Coal India Limited v Mukul Kumar Choudhuri, AIR 2010 SC 75 : 2009 (11) SCALE
608 : (2009) 15 SCC 620.
60 See, Akbar Badruddin v Collector of Customs, AIR 1990 SC 1579 : (1990) 2 SCC 203, 220, infra.
61 UOI v V.R. Tripathi, (2019) 14 SCC 646.
62 Royal Medical Trust v UOI, (2017) 16 SCC 605.
63 Binoy Viswam v UOI, (2017) 7 SCC 59.
64 63 Moons Technologies Ltd v UOI, (2019) 16 SCC 401.
65 Food Corporation of India v Jagdish Balram Bahira (case of production of false caste certificate that resulted from
dismissal from service); Hanuman Laxman Aroskar v UOI, (2019) 15 SCC 401 (case of environmental clearance for
setting up an airport in an ecologically sensitive and fragile area).
66 Om Kumar v UOI, AIR 2000 SC 3689 at 3702 : 2000 (7) Scale 524; Jain, Cases, IV, Chapter XXIV.
67 Reference has been made to the following cases in this connection: R.M. Seshadri v District Magistrate, AIR 1954 SC
747 : 1955 (1) SCR 686; UOI v Motion Picture Association, AIR 1999 SC 2334 : (1999) 6 SCC 150; S. Rangarajan v P.
Jagjivan Ram, (1989) 2 SCC 574 : JT 1989 (2) SC 70.
68 K S Puttaswamy v UOI, (2017) 10 SCC 1.
69 Jeeja Ghosh v UOI, (2016) 7 SCC 761 : (2016) 3 SCC (Civ) 551.
70 Christian Medical College Vellore Association v UOI, (2020) 8 SCC 705.
71 See, Chintaman v State of MP, AIR 1951 SC 118 : 1950 SCR 759; State of Madras v V.G. Row, AIR 1952 SC 196 :
1952 CrLJ 966 : 1952 SCR 597; Indian Express Newspapers v UOI, AIR 1986 SC 515, 543 : (1985) 1 SCC 641.
72 Internet & Mobile Association of India v Reserve Bank of India, (2020) 10 SCC 274. Also see Teri Oat Estates
(P) Ltd. v UT of Chandigarh, (2004) 2 SCC 130 : 2004 (2) Supreme 539 for how the doctrine was applied to a factual
situation.
Page 13 of 13
25.3 Indian View
End of Document
43.1 Need for Ombudsman
Principles of Administrative Law, 9th Edn (2 Vols) > CHAPTER XLIII
OMBUDSMAN/LOKPAL/LOKAYUKTA AND CENTRAL VIGILANCE COMMISSION
CHAPTER XLIII OMBUDSMAN/LOKPAL/LOKAYUKTA AND CENTRAL

VIGILANCE COMMISSION

It becomes clear from the previous discussion that, in modern times, two tendencies have become manifest in
democratic countries. One, large powers have been, and are being conferred on the Administration with the result
that a huge administrative machinery having vast discretionary powers has come into existence. The Administration
has come to play a decisive role in influencing and shaping the socio-economic order in to-day’s society. The
Administration enjoys a vast reservoir of powers to order and effect the daily lives of the people over a wide
canvas.1
Two, a feeling has arisen in the public mind that vesting of such vast powers in the Administration has generated
possibilities and opportunities of abuse or misuse of power by administrative functionaries resulting in
maladministration and corruption.2 In the flush of power, the Administration very often exhibits a tendency to
disregard individual rights and interests in the name of public good. As Wheare observes:3
“It is not eccentric to conclude that if there is more Administration, there will be more maladministration.”
A few examples of maladministration may be cited here to bring home the point:
(1) An order to acquire a large tract of land belonging to several persons was issued by the government. Later,
it exempted a piece of land belonging to one family from the purview of the order. The Supreme Court held
in Chandra Bansi Singh v State of Bihar,4 that the release of this piece of land was “a pure and simple act
of favouritism without there being any legal or constitutional justification for the same.”
The Court held the release bad and non est under article 14. An interesting aspect of the case is that
while the petitioner sought striking down the entire notification so that his land would also be released
from acquisition, the Court, on the other hand, upheld the entire notification as originally issued as valid
after cancelling the notification exempting the piece of land in question.
(2) Allotment of petrol pumps for retail sale of petroleum products were made to a large number of persons. A
newspaper carried news of political patronage in the allotments. The Government of India issued an
omnibus order cancelling all allotments made without examining individual cases to ascertain tainted
selections. The order was quashed by the Supreme Court as an arbitrary exercise of power. The Court
itself appointed a committee to examine controversial cases of allotment.5
(3) Administrative orders are often challenged on the ground of mala fides but such a plea rarely finds
acceptance in the courts. The reason is that the burden of establishing mala fides rests on the person who
alleges it. The courts insist on proof.6
It is clear from the above stray examples of misuse/abuse of administrative power that greater the power given to
the executive, the greater the need to safeguard the citizens against its arbitrary or unfair exercise. Therefore, a
pressing problem of the day is to evolve an adequate and effective mechanism to contain these dangers by
controlling the Administration in exercising its powers, safeguarding individual rights, and creating procedures for
redressal of individual grievances against the Administration.
Page 2 of 5
In the common-law world, the courts have traditionally exercised control over administrative action. In recent years,
the courts have expanded somewhat their supervision over the Administration as has been discussed in the
previous pages.7 But it also becomes evident from the previous discussion on judicial control over administrative
action that, as a control-mechanism over the Administration, the courts play only a peripheral role. The courts do
not provide for a review in depth of the entire administrative field. Quite a few aspects of administrative functioning
fall outside the scope of judicial review. The courts do not substitute their discretion for that of the official on whom
the power is conferred by law.8 This by itself is a limitation of some consequence.
The efficacy of judicial review of administrative action is diluted by several significant restrictive factors, e.g., by and
large judicial review at present does not comprehend the merits of administrative decisions. A number of aspects of
administrative functioning fall outside the judicial purview; the legislature does not often lay down articulately the
norms and guide-lines for exercising the vast powers which are conferred on the Administration; failure of the
Legislature to lay down procedures which the Administration must follow while exercising its powers.
As already explained, the courts may compel the exercise of power by an administrative authority if it is mandatory
for it to act, but not when the power is merely enabling or permissive, howsoever harmful its non-exercise may be to
an individual. The courts have set before themselves the limited task of overseeing that the Administration functions
according to law, and not outside the law. The courts can therefore quash administrative action on such grounds as
ultra vires, mala fides, exercise of power for an improper purpose, or on irrelevant or extraneous considerations, or
after failing to take into account relevant considerations or when there is a patent error of law. Further, the courts do
not ordinarily review facts as decided by administrative authorities except to the limited extent as explained earlier.9
But even in the available limited area of judicial review, it is not always easy to get the relief sought and have the
administrative action quashed. The major hurdle is one of proof of such grounds as mala fides, improper purpose
etc. It is not easy to secure evidence on the issues involved as the courts are extremely reluctant to order the
concerned administrative authority to produce the relevant departmental files so that they may look into them to
satisfy themselves that the administrative action in question was not in any way vitiated and that there did not exist
any grounds on which the courts could quash it. The courts have repeatedly refused to examine government
records to find out the real reasons underlying an administrative action. Even if the courts may like to direct the
government to produce its record, the government can claim privilege from producing the same and thus get away
without producing it in the court.10
The burden of establishing the case lies wholly on the individual challenging the specific administrative action and it
is not easy for him to do so as he has no access to the government record. The court’s reluctance or inability to look
into departmental files remains a major hindrance in the way of challenging an administrative action at the present
moment and this saps the efficacy and vitality of judicial review to a considerable extent.11
Further, in writ petitions, which is the most common technique of challenging administrative action, the courts
mostly go by the affidavits filed by the parties concerned. They do not usually call for oral testimony or permit cross-
examination or the persons filing affidavits.12 In most of the cases involving challenge to the administrative action,
the courts have nothing more to go by than the order in question and the affidavits filed by various parties. At times,
the affidavits may be detailed and informative, but quite often they are laconic and elusive and seek to hide more
than what they reveal.
As already pointed out,13 there is no rule yet requiring the Administration to give reasons for its decisions outside
the sphere of natural justice.14 It may be that a statute under which an action is being taken may obligate the
Administration to give reasons for its action. This, of course, is quite rare. In such cases, the courts may be in
somewhat better position to scrutinise the validity of the administrative action in question.15 Even when the statute
prescribes the purposes for which, and the grounds on which, the power can be exercised, the authority concerned
is under no obligation to reveal the reasons or the facts which in its view warrant the action in question.
In a good many cases, orders are issued repeating verbatim the statutory language without giving any clue to the
facts on which the authority proceeded to take action.16 In such cases, the court could give relief on the basis of
defects in the order and/or in the affidavits filed on behalf of the concerned administrative authority.17 It is only rarely
that the party challenging the action succeeds in presenting some evidence in support of his contentions against the
validity of the administrative action in question and get relief from the court on that basis. Till recently, if the
obligation to give reasons was not imposed under the statute, the courts did not impose the obligation to give
reasons unless there was a provision for an administrative appeal.18 In recent years, however, the Supreme Court
has been exhibiting a tendency to insist upon the Administration to disclose reasons for its action to the court
Page 3 of 5
through its affidavits.19 To the extent the courts are able to do so, their review power would become more
meaningful.
While Administrative Law may provide legal remedies for many grievances and complaints against the
Administration, there do arise many grievances which lie beyond the reach of legal remedies. A democratic system
must provide some mechanism to assuage such grievances as well. As has already been seen, judicial review has
a limited range and that there is much which lies beyond this range.
On the whole, as things stand today, the contest between the government and the individual is a very unequal one
and the dice is heavily loaded against the individual. The result of the present situation in actual practice is that out
of a large number of cases which are filed in the courts against the Administration, it is only in a very few cases that
the courts are able to give relief and a large number of public grievances against the Administration thus go
unrectified. The judicial control of the Administration is helpful to the extent it is available, but the point to note is
that judicial review does not go far enough and does not cover many facets of the working of the Administration.
Further, judicial proceedings are dilatory, formal, time-consuming and expensive as court fees have to be paid and
lawyers have to be engaged to prosecute individual grievances and this makes it beyond the resources of many
persons to seek judicial redressal of their grievances against the Administration.
Besides the judicial control, the Administration itself has its own control mechanism to set right its lapses and faults.
But internal administrative checks have been found to be inadequate in practice, and these provide no guarantee of
good behaviour on the part of the Administration. Pointing out the inadequacies of administrative review of its own
decisions, the New Zealand Ombudsman20 has stated in one of his reports that while dealing with the large number
of complaints against discretionary administrative action, it has often become clear to him that an oft repeated
review of a decision within the department is no guarantee of the wisdom and fairness of the ultimate decision.21
What usually happens is that the first decision is made at a lower level of Administration, and, as it goes up to a
higher level for review, it starts building up its own defences within the department—a process of rationalization
generally brings out arguments in favour of the original decision that may not have been known even to the person
who took the original decision. The official bias is towards maintaining and supporting the original decision by
inventing fresh arguments in its support. In this atmosphere, only representation of a good case by a responsible
and independent person can generally ensure a genuine review by the Administration. It has, therefore, been felt
that some external agency, falling outside the administrative hierarchy, is absolutely necessary to detect and check
administrative lapses and faults and to supervise the Administration so that the rights of the individuals are not
unduly jeopardised.
Then there is the Legislature whose traditional function in a democracy is to oversee the Administration.22 But, as
the Legislature functions at present, it can hardly be effective in policing the Administration. With the development
of the party system, instead of the Legislature controlling the Executive, it is the other way around—it is the
executive which largely controls the Legislature.23
The Legislature is always faced with paucity of time and pressure of work. It is a big body and is usually engaged in
discussing policy matters and proposals for legislation and taxation. A number of bills always remain pending before
the Legislature for enactment. The legislative procedures are such that there is not much room for ventilating
individual grievances on the floor of the House. The Legislature acts more as a grand forum of the nation, or rather
in the nature of grand inquest, but is hardly suited to espousing, ventilating and rectifying individual grievances. The
Legislature has no mechanism at its disposal to probe into administrative faults and lapses in individual cases.
Raising of a matter on the floor of the Legislature soon acquires political overtones, receives a lot of publicity, and
may even become a matter of confidence in the government, and, consequently, redressal of individual grievances
through the Legislature becomes a far cry.
From the above discussion, it becomes clear that the traditional organs in a democracy do not provide an adequate
and effective control mechanism over the Administration. Lack of such a mechanism may negate democratic
values. In this connection, the following warning administered by the Supreme Court of India in Sadanandan,24 must
be kept in mind:
“... continuous exercise of the very wide powers conferred by the rules on the several authorities is likely to make the
conscience of the said authorities insensitive, if not blunt, to the paramount requirement of the Constitution that even during
the emergency, the freedom of Indian citizens cannot be taken away without the existence of the justifying necessity
specified by the (Defence of India) Rules themselves. The tendency to treat these matters in a somewhat casual and
Page 4 of 5
cavalier manner which may conceivably result from the continuous use of such unfettered powers, may ultimately pose a
serious threat to the basic values on which the democratic way of life in this country is founded.”
In these circumstances, the quest for an effective control-mechanism over the Administration has led the people to
the institution of Ombudsman which has been in operation for long in the Scandinavian countries.25 Sweden was
the first country to adopt this institution as early as in 1809; Finland adopted it in 1919; Denmark in 1953; and
Norway in 1963. Amongst the common law countries, with a parliamentary form of government, New Zealand was
the first country to opt for the Ombudsman system in 1962; next was Britain which established the system in 1966.
Australia established the Ombudsman system at the Centre in 1976. The institution has been adopted in all these
countries with the basic idea to control effectively the activities of, and prevent abuses by, public officials after it
came to be realised that the existing procedures and mechanism for the purpose were hardly adequate and
efficacious.
Ombudsman functions as an external agency, outside the administrative field to probe into administrative faults.
Ombudsman’s main task is to remedy individual grievances against the Administration. In achieving this objective,
Ombudsman also makes suggestions for the improvement of administrative procedures practices, rules and even
law. The investigation of individual cases may prove to be a catalyst for discovering general administrative
deficiencies.
The modus operandi of the Ombudsman system may be illustrated by referring to the functioning of the institution in
the three common-law countries—New Zealand, Britain and Australia. All these countries, like India, have
parliamentary form of government. Australia, like India, is a Federal country. The experiences of these countries
may be useful in devising the institution for India as and when it is sought to be established here.
1 See, Jain, A Treatise on Adm. Law, I, Chapter I.

2 On “Corruption”, see, infra, Chapter XLIV.
3 Wheare, Maladministration and Its Remedies, 3 (1973).
4 Chandra Bansi Singh v State of Bihar, AIR 1984 SC 1767 : (1984) 4 SCC 316.
5 Onkar Lal Bajaj v UOI, AIR 2003 SC 2562 : (2003) 2 SCC 673, supra, Chapter XXVII.
6 E.P. Royappa v State of Tamil Nadu, AIR 1974 SC 555 : (1974) 4 SCC 3 : 1974 (1) LLJ 172; Indian Railway
Construction Co. Ltd. v Ajay Kumar, AIR 2003 SC 1843 : (2003) 4 SCC 579, at 592 : 2003 (2) LLJ 150; State of Andhra
Pradesh v Goverdhanlal Pitti, AIR 2003 SC 1941 : (2003) 4 SCC 739.
7 Supra, Chapters XXXI—XL.
10 Supra, Chapter XLI, under “Public Interest Immunity.”
12 Barium Chemicals Ltd. v Company Law Board, AIR 1967 SC 295 : (1966) 36 Comp Cas 639; supra, Chapter XXXV.
13 Jain, Treaties, I
15 For example, see, State of Bombay v K.P. Krishnan, AIR 1960 SC 1222, 1223 : 1961 (1) SCR 227 : 1960 (2) LLJ 592.
This becomes clear from the area of preventive detention where the grounds for detention are given to the detenu and
thus the courts are able to quash orders of preventive detention after scrutinizing the grounds: Jain, Treatise, I, Chapter
XIX.
16 For example, see, Ram Manohar Lohia v State of Bihar, AIR 1966 SC 740 : 1966 CrLJ 608 : 1966 (1) SCR 709; Jain,
Treatise, I, Chapter XIX.
17 For example, G. Sadanandan v State of Kerala, AIR 1966 SC 1925 : 1966 CrLJ 1533 : 1966 (3) SCR 590; Partap Singh
v State of Punjab, AIR 1964 SC 72 : 1966 (1) LLJ 458 : 1964 (4) SCR 733.
19 Jain, Treatise, I, Chapter XIX. Partap Singh v State of Punjab, AIR 1964 SC 72 : 1966 (1) LLJ 458.
Page 5 of 5
20 Infra,
21 Report of the New Zealand Ombudsman, dated 31 March, 1964, pp. 6-7.
22 For example, article 75(2) of the Constitution of India says: “The Council of Ministers shall be collectively responsible to
the House of the people.” Also see, article 164(2) of the Constitution in respect of States.
23 See, on this point, Jain, Indian Constitutional Law.
24 G. Sadanandan v State of Kerala, AIR 1966 SC 1925 : 1966 CrLJ 1533 : 1966 (3) SCR 590; supra.
25 For a detailed discussion of the Ombudsman institution in various countries. see M.P. Jain, Lokpal—Ombudsman in
India, (1970).
End of Document
43.2 Ombudsmen in New Zealand


As already stated, the Ombudsman system was adopted in New Zealand in 1962 when the Parliamentary
Commissioner (Ombudsman) Act, 1962 was enacted.
In 1975, the 1962 Act was replaced by the Ombudsmen Act, 1975. The 1975 Act extended the jurisdiction of the
Ombudsman to many more governmental agencies and also to local governments. To cope with the increased
quantum of work, the Act provides for one or more Ombudsmen. One of them is to be designated as the Chief
Ombudsman for co-ordination and allocation of work among the Ombudsmen.26
Each Ombudsman is appointed by the Governor-General on the recommendation of the House of Representatives.
The Ombudsman thus is a nominee of the House and gets support from all sections of the House. This is very
important for if he does not get support from all sections, his work will not command respect and credibility. His
appointment by the House has much to commend itself for this shows that he is independent of the government
whose actions he investigates. If he is a nominee of the executive, he may be mistaken to be a part of the executive
itself.
Although, a nominee of the House, efforts are made to make him independent of Parliament in his day to day work.
The Ombudsman has a security of tenure as he holds office for a term of five years and can be re-appointed. He
can be removed from his office by the Governor-General upon an address from the House of Representatives on
certain grounds, viz., disability, bankruptcy, neglect of duty or misconduct.27
A person feeling aggrieved by an administrative action may make a complaint to the Ombudsman. He can
undertake investigation suo motu also. The basis on which an Ombudsman decides whether to embark on an “own
motion” investigation is a matter entirely for his discretion. The Act contains no guidelines for the purpose. A
committee of the House may refer any petition to him for investigation. With the consent of the Chief Ombudsman,
the Prime Minister may also refer a matter to an Ombudsman for investigation and report. The Ombudsman has
power to investigate any action, decision, recommendation or inaction relating to a matter of Administration on the
part of a department or organisation placed under his jurisdiction affecting any person in his personal capacity.
These bodies are listed in Schedule I to the Act. The Schedule can be modified by an Order-in-Council. He can
refuse to look into trivial, frivolous or vexatious complaints, or those not made in good faith, or a complaint where
the complainant does not have sufficient personal interest.
He can review an act even if it is declared final by the statute concerned. He cannot, however, review an act of the
Administration if from it an appeal on merits is available to a court or tribunal under the concerned statute. But the
Ombudsman may investigate even such a matter if by reason of special circumstances, it would be unreasonable to
expect him to resort to the appeal. The Ombudsman may refuse to investigate any complaint if it appears to him
that, having regard to all the circumstances of the case, any further investigation is unnecessary. In case of doubt
about the Ombudsman’s jurisdiction in any matter, he has power to refer it to the Supreme Court for a declaratory
order determining the question.
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The Ombudsman can give relief in the following situations: if the administrative action, decision, recommendation or
omission complained of—(a) appears to him to have been contrary to law; or, (b) was unreasonable, unjust,
oppressive, improperly discriminatory; or, (c) was if it based on a mistake of law or fact; or, (d) was it wrong; or, (e)
if discretionary power was exercised for an improper purpose, or on irrelevant grounds, or irrelevant considerations;
or, (f) if the action is not supported by reasons where reasons ought to have been given; or, (g) if the law or practice
under which the action was taken is itself unreasonable, unjust, oppressive or improperly discriminatory.
These grounds of review of administrative action by the Ombudsman are rather broad. The word ‘wrong’ is of wide
import as it may give rise to considerations of the applicability of the rules of natural justice. Ombudsman’s right to
intervene in the discretionary area on a broad basis has been explicitly recognised. This is of great importance
otherwise the Ombudsman would not be effective in resolving many justifiable complaints.
In modern times, expansion of governmental activities has resulted in transferring large areas of policy-making and
discretion to officials. The Ombudsman can recommend any of the following courses: (1) the matter be referred to
the appropriate authority for further consideration; (2) the omission be rectified; (3) the decision be cancelled or
varied; (4) any practice on which the decision was based should be altered; (5) any law on which the decision was
based should be reconsidered; (6) reasons should have been given for the decision: (7) any other steps should be
taken.
It is clear that the Ombudsman’s responsibility to examine the basic reasonableness of a law is of great
significance. Even if an administrative action be in accordance with law, it may not put an end to the work of the
Ombudsman as he has to further satisfy himself that the law in question is itself fair and just.
It is a firm rule of procedure that the department and the official in whose activity the Ombudsman initiates an
investigation must be informed. The Ombudsman can make such inquiries, and may hear or obtain information from
such persons, as he thinks fit.
The investigation is held in private and not under the glare of publicity. He can summon and examine persons on
oath. No person can claim to be heard by the Ombudsman as of right. He has access to the departmental records
and premises. But when the Attorney-General certifies that the evidence may prejudice the security, defence or
international relations of New Zealand, or may affect investigation of offences, or may involve disclosure of
deliberations or confidential proceedings of the cabinet or its committee, such evidence need not be produced. If
any department or any official is going to be affected adversely by the Ombudsman’s report, then the department or
the official concerned must be given an opportunity of being heard.
The Ombudsman has to communicate to the complainant the result of his investigation.
The Ombudsman first reports to the concerned department his recommendation in the matter as to the action to be
taken. If the department does not the action, the Ombudsman may then report to the Prime Minister and thereafter
may report to the House of Representatives on the matter as he thinks fit.
The Ombudsmen make an annual report to the House of Representatives on the exercise of their functions.
The reports made by the Ombudsman to Parliament throw interesting light on the comments made by him
regarding the various aspects of the working of the Administration. He has underscored the need to publicize
administrative procedures; he has criticised the issue of defective and confusing circulars and giving of wrong
information to the people. He has given relief for departmental mistakes, has criticised unjustifiable delay in
deciding matters, and has pointed out lacunae in administrative procedures, e.g., lacking in justice or in courtesy or
being offensive to the individuals concerned, or failure to give a hearing when it needs to be given.
He has found that many a time decision are taken by the Administration without having full facts before it. He has
held many discretionary decisions as unjust, unfair, unreasonable, oppressive, improperly discriminatory, or not
supported by law, and has, accordingly, given relief to the complainants. He has awarded damages against the
department when a person has suffered injury by maladministration. He has even suggested ex grand payment to
the complainant when the department was found to have moral, rather than legal, responsibility for the injury
caused to him.
Page 3 of 4
The Ombudsman does not review an administrative decision merely on merits, or when there is a difference of
opinion between him and the department concerned, unless it suffers from some defect mentioned earlier. He
exposes cases of administrative inertia or laxity. He has criticised the method of exercising discretion by the
Administration. At times, officers having discretionary powers adopt a firm rule of practice or a rule of thumb and
apply it to each and every case coming before them without looking into its special facts or circumstances and
applying discretion accordingly. The Ombudsman has criticised such an official attitude and has emphasized that
discretion should be exercised in individual cases on merits instead of being submerged in a firm rule of practice.
The Ombudsman has been able to exercise a good deal of influence upon the Administration. For example, the
government has accepted his assertion that it must always act honestly, and thus honour all promises, howsoever
bare and unsupported by consideration on the other side. Thus, full effect has been given to the doctrine of
promissory estoppel. A promisee is entitled as a matter of morality to succeed in enforcing the full effect of any
promise made by a department. Thus, in practice, in New Zealand, parties are entitled to rely upon promises, and
where appropriate, to base claims against the government upon them.28 In some cases, the Ombudsman even
suggests amendment of the law or regulations. An administrative action may be in accordance with a statutory
provision or a regulation but the same may be unreasonable, unjust, oppressive, or improperly discriminatory.
Section 13(1) defines Ombudsman’s jurisdiction thus:
“to investigate any decision or recommendation made, or any act done or omitted… relating to a matter of administration
and affecting any person or body of persons in his or its personal capacity.”
Thus, the jurisdiction of the Ombudsman extends to “a matter of administration” and this phraseology excludes
“matters of policy” from his purview.29 No statutory test has, however, been laid down to decide whether the
governmental action in question is a ‘policy’ matter or merely an ‘act of administration’.
Many a time, questions of policy and administration are inextricably mixed up. In such a situation, there may be
arguments between the Ombudsman and the department concerned but the final decision in the matter rests with
the Ombudsman and, therefore, only his self-restraint keeps him out of the area of policy. The underlying theory for
drawing a distinction between policy and Administration is that the Legislature and the Government, and no one
else, are responsible for policy matters.
Further, Ombudsman’s purview does not extend to a decision by a Minister. This restraint has been placed on him
in order to keep the theory of parliamentary form of government intact. The Ombudsman, however, has the right to
investigate the recommendation made by the department concerned to the Minister (Section 13(2)) and through
such a review he can indirectly express his views on the expediency or propriety of the Minister’s decision. If the
Minister disagrees with the departmental recommendation made to him, and the Ombudsman later holds the
recommendation to be justified, then it indirectly amounts to saying that the Minister’s decision in not accepting the
departmental recommendation was not right. On the other hand, if the Minister accepts the departmental
recommendation, and if the Ombudsman later holds the recommendation to be wrong, then it amounts to saying
indirectly that the Minister’s decision was also wrong.
The decisions of the Ombudsman are not challengeable or reviewable in a court of law except on the ground of lack
of jurisdiction. An interesting provision in the Ombudsman Act is that the Act is in addition to any other enactment or
any rule of law under which any remedy or right of appeal is provided. Nothing in this Act limits or affects any such
remedy or right of appeal.
A study of the Ombudsmen’s annual report to Parliament reveals that all Ombudsmen combined receive quite a
large number of complaints from the people. Of these, nearly 25 percent fall outside their jurisdiction either because
the department concerned was not one over which they had jurisdiction, or there existed a right of appeal to a
formal tribunal, or the complaint was trivial, or the complainant lacked sufficient personal interest in the matter. In
about 20 per cent complaints investigated by the Ombudsmen, investigations were dropped by the Ombudsmen but
in a large number of these, the department took steps to resolve the complaint. Out of the complaints fully
investigated by the Ombudsmen, nearly 20 per cent were found to be justified necessitating some corrective action
on the part of the department concerned.
It needs to be underlined that the Ombudsman himself does not make an executive order or decision. He only
Page 4 of 4
makes a recommendation to the department concerned, and it is for the department to take the corrective steps
recommended by him. The Ombudsman has broad freedom as regards the nature of the recommendation he can
make. If the department fails to take adequate action within a reasonable time, the Ombudsman may send a copy
of the report to the Prime Minister. In the ultimate analysis, he may report the matter to Parliament. However, the
recommendations of the Ombudsman are invariably implemented by the departments because of the fear of
adverse publicity.
The Ombudsman is required to make an annual report to Parliament on the exercise of his functions. These
provisions show that the ultimate arbiter in case of difference of opinion between the Ombudsman and the
Administration is Parliament. This is in consonance with the principle of parliamentary system of government and
ministerial responsibility.
The Ombudsman can also undertake investigations against the police but subject to certain riders. In the first
instance, the inquiry is to be made by the police itself. If the complaint is not investigated by the police, or if the
complainant is dissatisfied with the result of the police inquiry, the complainant may make the complaint to a
superior police officer and then come to the Ombudsman.
Responsibility has been entrusted to the Ombudsman to review decisions by government agencies to refuse
access to official information under the Official Information Act, 1982.30 The Ombudsman is also a member of the
Human Rights Commission.
During the year 2000-2001, the Ombudsman’s office received 3,679 complaints or requests for an investigation.31
26 In 1980, there were three Ombudsmen and two regional offices besides the head office. The Chief Ombudsman
handled complaints against the government departments, while the other Ombudsmen handled complaints against the
local authorities. The Chief Ombudsman is also a member of the Human Rights Commission.
27 M.P. Jain, The Ombudsman in New Zealand, 6 JILI 307 (1963). Also see, A.P. Jospeh, Constitutional & Admn. Law in
New Zealand, 123, 130 (1993).
28 On “Promissory Estoppel”, see, Chapter XXIII, supra.
29 The New Zealand Ombudsman has characterised such a view as “altogether too simplistic”. The Ombudsman Act
makes no such distinction. According to the Ombudsman, it is impossible to separate matters of “policy” from matters of
‘administration’ “in any definitive way”. “In many instances the resolution of a complaint requires action by a Minister,
either by way of modification or reversal of one of his decisions or by direction to a department to implement an
Ombudsman’s recommendation”. See, Report of the Chief Ombudsman, 37 (1984).
30 See, Chapter XLV, infra.
31 The Report of the Ombudsman for the year ended 30 June 2001, p. 27.
End of Document
43.3 Ombudsman in Britain


The Ombudsman in Britain, officially known as the Parliamentary Commissioner for Administration (PCA) has been
created by the Parliamentary Commissioner Act, 1967.32
The British Ombudsman is appointed by the Crown on the advice of the Prime Minister, and holds office during
good behaviour until he reaches the age of 65. His salary is charged on the Consolidated Fund. He is removable
only on an address from both Houses of Parliament. Thus, his tenure is protected in the same way as that of the
superior judges.
The departments placed under his jurisdiction are listed in Schedule II to the Act, but this list can be amended by an
Order in Council. Thus, additional departments can be brought within his purview without amending the statute as
time passes on and experience of his functioning is gained. Over a period of time, the number of bodies subject to
his jurisdiction has been expanded.33
A strong feature of the Act is that unlike the New Zealand model, the British Act expressly includes Ministers along
with their departments within the jurisdiction of the Ombudsman (section 4(4)). The British Ombudsman therefore
can therefore investigate and criticise a decision taken by the Minister personally.
Certain matters involving dominant considerations of national or public interest, mentioned in Schedule III, are
excluded from his area of operation, viz., exercise of powers to preserve the safety of the state; matters which a
minister certifies as affecting relations with other countries; grant of honours and titles, etc.; administration of
colonies; exercise of powers in relation to investigation of crimes; matters concerning extradition; exercise of
prerogative of mercy; actions taken in matters relating to contractual or other commercial transactions; or actions
taken in respect of appointments or removals etc., in the armed forces or civil service.
The Ombudsman does not normally investigate matters which fall within the competence of the courts. He,
however, has discretion to act if he thinks that the remedy available in the courts is not one which the complainant
could be reasonably expected to use,34 but the right of access to the courts is not affected thereby. He also does
not investigate any matter in respect of which the aggrieved person has a right of appeal, reference or review to or
before a tribunal constituted under a law or the Crown’s prerogative. He has discretion to refuse to pursue a case
where he thinks that there are insufficient grounds for the complaint or where he does not regard it as falling within
his scope. Barring special circumstances, he does not investigate a matter which is more than twelve months’ old.
In Re Fletcher’s Application,35 the court declined to question the Parliamentary Commissioner’s discretion whether
or not to undertake an investigation.
Complaints do not reach the Ombudsman directly. A restrictive feature of the system is that a person complaining of
any injury suffered by him by administrative action has to send his complaint to the Ombudsman only through a
member of the House of Commons.
There is no provision of direct access to the Parliamentary Commissioner by members of the public and this has cut
back the flow of complaints to the Ombudsman. A member of the public may thus be deprived of redress for
injustice caused by maladministration if the member of Parliament chooses not to refer his complaint to the
Ombudsman. The justification for this restriction however is that there may be a preliminary screening of complaints
by members so that the Ombudsman is not unduly over-loaded with work, and also that the traditional role of the
members of Parliament is not weakened.
Page 2 of 6
This provision is justified as being in recognition of the traditional function of the members of Parliament to seek
redressal of people’s grievances. There is also the underlying idea that members of the House of Commons may do
a preliminary screening of the petitions so that the Ombudsman is not overloaded with work. The architects of the
1967 Act entertained the fear that the Ombudsman might be swamped with complaints and so a filter ought to be
provided to keep worthless complaints away from him. The lack of direct access of complaints to the Ombudsman
has cut back the flow of complaints to him. In this respect, the British Ombudsman compares unfavourably with the
New Zealand Ombudsman to whom the complainants have direct access. Nor can the British Ombudsman act
proprio motu as may the New Zealand Ombudsman.
When the Ombudsman proposes to conduct an inquiry pursuant to a complaint, he is required to afford to the
department concerned, and to any person who has taken the action complained of, an opportunity to comment on
any allegations contained in the complaint. He makes investigations in private and is free to adopt such procedure
as he may consider appropriate in the circumstances of the case. He has wide powers in relation to the obtaining of
evidence. Section 8 very much strengthens his power to investigate by authorising him to require any Minister,
officer or member of a department or authority concerned, or indeed anyone else, to furnish information or produce
documents relevant to his investigation. He has the same powers as a court to compel the attendance and
examination of witnesses. He may determine whether any person may be represented by a counsel in the
investigation.
No statutory restriction enjoining secrecy on any one is to stand in the way of disclosure of evidence to the
Ombudsman. The Crown can claim no privilege in respect of the production of documents or giving of evidence
which the Crown enjoys by law in legal proceedings.36 However, cabinet proceedings cannot be divulged. Ministers
have discretion to prevent disclosure of information by the Ombudsman where the safety of the state or public
interest makes it necessary to do so.
Further, no person is compelled to produce before the Ombudsman any document or give any evidence which he
could not be compelled to give or produce in court proceedings.
The Ombudsman has to send a report of the results of his investigation to the department or the authority
concerned, as well as to the Member of Parliament who sponsored the complaint. If the Ombudsman finds injustice
caused by maladministration, he may recommend to the department to provide redress to the complainant. Redress
may be in any form, e.g. ex gratia payment, apology, reversal of the impugned decision. However, the Ombudsman
by himself cannot alter or rescind any decision.
If after investigation, it appears to him that injustice has been caused to the complainant in consequence of
maladministration, and that it has not been, nor will it be, remedied, he may, if he thinks fit, lay before each House
of Parliament a special report upon the case.
Each year the Ombudsman is to lay before each House a general report on the performance of his functions. The
House of Commons has set up the Select Committee on the Parliamentary Commissioner for Administration to give
guidance to the Ombudsman and to examine his reports and to report its own conclusions to the House. The
Committee frequently examines the Ombudsman and the officials of the departments which he criticises.
Occasionally the special reports made by the Ombudsman have been debated on the floor of the House of
Common. Ombudsman, receives a number of complaints every year. Of these, only about one third fell within his
jurisdiction, and in about 40 per cent of the cases he investigated, he found maladministration meriting criticism and
suggesting remedial action for redressal of the grievances of the complainants.
The main task of the British Ombudsman is to remedy individual grievances against the Administration. He is
concerned with the function of investigating complaints from people who claim to have sustained ‘injustice in
consequence of maladministration’ in connection with action taken in exercise of administrative functions of
government departments. Administrative action includes failure to act. It is not for him to criticise policy, or to
examine the merits of a discretionary decision taken by a department without its involving elements of
maladministration. A distinction is thus drawn between “maladministration” and “unmeritorious decision”. The former
lies, but the latter does not lie, within the ombudsman purview. Further, it is necessary that the complainant should
have suffered injustice.
The compendious terms ‘maladministration’ used in the statute has not been defined therein.37 This means that the
Ombudsman himself has to define this term and work out its ramifications. It has thus been left to the Ombudsman
to develop the concept of ‘maladministration’ from case to case. To a great extent, therefore, the extent of
jurisdiction of the Ombudsman is a matter of his own discretion.
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The British Ombudsman has interpreted the term ‘maladministration’ in a broad sense as including “bias, neglect,
inattention, delay, incompetence, ineptitude, perversity, turpitude, arbitrariness, corruption, unfair discrimination,
faulty procedure, harshness, misleading a member of the public as to his rights etc.” It does not include an
unreasonable exercise of a discretion, unless this has been due to faulty administration, e.g. not considering
relevant factors, or taking irrelevant matters into account, or adopting a wrong, unfair or ill-conceived procedure.38
To these have also been added decisions “thoroughly bad in quality” or “clearly wrong”. This has been done by the
Ombudsman on the advice of the Select Committee which recommended that while it would not encourage the
Ombudsman to substitute his decision for that of the government, it thought “that if he finds a decision which,
judged by its effect upon the aggrieved person, appears to him to be thoroughly bad in quality, he might infer from
the quality of the decision itself that there had been an element of maladministration in the taking of it, and ask for
its review”. Ombudsman now criticises discretionary decisions which are simply-bad on their merits. “Bad decisions
are bad administration and bad administration is maladministration”.39 Ombudsman now regards ‘maladministration’
as meaning simply bad administration, i.e., any action or inaction by government departments which he feels ought
to be criticised, including anything which is unreasonable, unjust or oppressive.
As already noted, in New Zealand, a different model is followed. There, the various grounds on which the
Ombudsman can interfere with an administrative decision have been worked out in the Act itself. The New Zealand
Ombudsman can hold a decision to be ‘wrong’ or ‘unreasonable’. The term ‘wrong’ is of broad import. Doubts were
expressed whether the British Ombudsman could also do so under the rubric ‘maladministration’. In this way, in
theory at least, the British Ombudsman was regarded as exercising a narrower jurisdiction than the New Zealand
Ombudsman.
Wheare also commended the New Zealand model where the relevant statute makes no reference to administration
or maladministration and thus avoids frustrating arguments about definitions, but includes explicitly a ‘bad’ law.40
But with the extension in Britain of the concept of maladministration, as noted above, the position in Britain
approximates the New Zealand model.
The British Ombudsman also criticises a ‘bad’ rule. Apart from investigating individual complaints of
maladministration, another function of the British Ombudsman is “to draw attention to lessons which should be
learnt” from the cases investigated by him and to suggest improving administrative practice generally.41 For
instance, the annual report for 1977, points out that “there have been changes in policies some involving legislation,
during the last ten years, which have come about as indirect results” of his investigations.
The Ombudsman system has now become a well established feature of the British Government. It provides a viable
method of investigation into complaints against government departments and of assisting the individual to secure
an appropriate remedy. The Ombudsman helps to set and maintain standards of good administration for
government departments. He also discharges some other functions besides his main function of inquiring into
complaints, e.g., he is also an ex-officio member of the Council on Tribunals.42
On the mutual relationship between the Ombudsman and the courts, Bradley observes that “many problems of
administrative law which are in the course of receiving judicial answers are at the same time coming before the
Ombudsman, there to be answered for his own purposes”. He further says: “The two forms of procedure are in fact
likely to remain very different and so is the constitutional status of the two systems, although there may be a need
for a few key links between the two to be established. But it would be unfortunate if the substantive rules and
principles developed by the two systems of control were to differ sharply. One hierarchy of broadly consonant
norms is needed, rather than two separate hierarchies of conflicting norms”.43
As regards the relation between the courts and the Ombudsman, the Act [section 5(2)(b)], provides that the
Ombudsman shall not investigate any administrative action in respect of which the individual has or had a remedy
in any court of law; but this rule is qualified by permitting the Ombudsman to investigate where he is satisfied that it
is not reasonable to expect the individual to go to the courts. It is in fact rare for the Ombudsman to refuse to
investigate a complaint. There may at times be some interaction between investigation by the Ombudsman and the
courts.
An interesting example of this is provided by the Congreve case.44 In the matter of increased TV license fee in
1975, the Home Office had threatened to revoke the licences of members of the public who had taken them out
before the current licences expired, in anticipation of an increase in fee. The Ombudsman found that, on the
assumption that the legal advice given to the Home Office was correct, there had been serious maladministration in
the procedure within the Home Office; but he did not feel justified that the Home Office should provide the remedy
Page 4 of 6
sought by the complainants, i.e., reconsider the decision to revoke the licences. One of the complainants promptly
instituted proceedings in the High Court against the Home Office, claiming that the Home Office had been abusing
its statutory powers. The Court of Appeal held unanimously that the Home Secretary’s threat to revoke the licences
was wholly unlawful, being an abuse of a power given to him for other purposes, and granted the complainant his
remedy. Lord Denning pointed out that the conduct of the department had been found by the Ombudsman to be
maladministration, and continued: “I go further, I say it was unlawful.”45 Thus, the same incident amounted both to
maladministration in the process and an ultra vires act in the decision or action pursued. A certain overlap between
the Ombudsman and the courts is inevitable and this may be in public interest.
An important contribution made by the Ombudsman is to get compensation for anyone who has been misled and
has thus suffered loss because of the wrong information or advice given by officials. As already seen, English law is
deficient in this respect.46 In one case, the Customs and Excise department wrongly advised a company that its
product would not be liable for purchase tax, and exaction of the tax drove the company into liquidation. The
department agreed to pay £6000 in compensation.47
Reference may be made to Barlow Clowes Affair.48 The Barlow Clowes investment business licensed by the
Department of Trade and Industry collapsed in 1988 causing substantial loss to many investors. The Ombudsman
investigated the matter and found that there had been maladministration by the DTI. Although the government did
not accept the Ombudsman’s findings, it did, however, provide ex gratia compensation upto 90% of the loss.45
On the whole, therefore, the Ombudsman has succeeded in achieving a notable improvement in administrative
justice. Also, a number of general reforms have resulted from exposure of bad department practices.
In Ex parte Dyer,49 the court has laid down the following propositions as regards the functioning of the British
Ombudsman: (1) he is susceptible to judicial review but the court would not readily be persuaded to interfere with
his discretionary powers given their width and high degree of subjective judgment involved; (2) he is entitled to limit
the scope of his investigation by choosing one of a number of complaints to investigate; (3) he is not required to
hand over a copy of the draft investigation report to the complainant for his comments; (4) once he sends his report,
after investigating a complaint, to the sponsoring member of Parliament, he becomes functus officio and, therefore,
cannot reopen the complaint.
Several suggestions have been made to make the Ombudsman system in Britain more efficacious. His appointment
merely on the advice of the Prime Minister was criticised. It was argued that the Ombudsman was an official of
Parliament, not a servant of the Executive, and so Parliament ought to be consulted in his appointment. Now, the
Prime Minister consults the Chairman of the Select Committee before making an appointment.
It has been suggested that complainants should have direct access to the Ombudsman instead of through the
members of Parliament. Neither in Australia nor in New Zealand there is any such restriction and complainants
have direct access to the Ombudsman there. The present system makes him too remote from the public and keeps
the number of complaints to him rather low.50
It has also been suggested that the Ombudsman should have power to suggest changes in administrative
procedures as well as in law and also that he should be able to carry out inspection of bodies within his jurisdiction,
and be able to draw Parliament’s attention to any unforeseen injustices resulting from legislation.
But the most important criticism that is raised against the present system is that the Ombudsman is working within a
very restricted frame of reference, viz., ‘maladministration causing injustice’. This phrase is regarded as a very
narrow basis for Ombudsman’s jurisdiction. He cannot question the merits of a decision, taken by a department in
the exercise of a discretion vested therein, if it was taken without maladministration. It has been suggested that
there should be a sharper definition of Ombudsman’s jurisdiction so as to enable him to give relief for unreasonable,
unjust. oppressive action. This was the suggestion made by Justice in 1977.51 It has also been suggested that the
concept of maladministration should be interpreted broadly so as to include a wrong administrative decision. In this
connection, the New Zealand model has been commended. The British Ombudsman commenting on the Justice
report in his report for the year 1977 stated that the limitations found on his powers by Justice were more theoretical
than practical, and as it was there was no difficulty in his powers to investigate complaints involving “unjust,
oppressive or unreasonable” administrative action.
Criticism has been directed against the restriction on the Ombudsman’s jurisdiction that nationalised industries,
complaints regarding government contracts and those relating to maladministration in personnel matters, e.g.
appointments, dismissal and superannuation, lie outside his purview.
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The Select Committee on the Parliamentary Commissioner for Administration52 has expressed the view that in
principle all areas of government administration should be investigable by the Ombudsman unless in particular
cases a compelling argument can be made out for their exclusion. Accordingly, government’s commercial activities
should not be exempt from his examination. “The Government has a duty to administer its purchasing policies fairly
and equitably, and if those policies are the subject of complaint then the complaints should be investigated; this is
particularly important if any future Government were again to use the award of contracts as a political weapon.”
The Ombudsman is not to question a bona fide commercial decision to purchase goods or services from one firm
rather than another, but if decisions of this kind are taken with maladministration then it is right that they should be
reviewed.53 As regards personnel matters, this committee has said, “...the exclusion of complaints from serving
public employees about matters of discipline, promotion, rates of pay and terms of service is justified, but we do not
consider that...bringing within jurisdiction other purely administrative acts of Government Departments in their
capacity as employers would cause any harm to anyone.” The government has not so far accepted these
recommendations.54
The concept of Ombudsman has been criticised by some scholars on the ground that what Britain really needs is a
reform of Administrative Law, as such, and that Ombudsman is a mere palliative and does not deal with the central
problem in the British system, namely, lack of a comprehensive body of Administrative Law.55
The fact however remains that quite a large number of cases involving some degree of maladministration is found.56
In course of time, the Ombudsman system has also been established in the area of health services to investigate
complaints against the administrative actions of health authorities. Thus, three Health Service Commissioners have
been appointed for this purpose.
Another Ombudsman system has been established to deal with complaints against administrative actions of local
authorities.57 These bodies come in touch with the people a great deal. A local commissioner can investigate a
complaint of maladministration against a local government. If the local commissioner reports that a complainant has
suffered injustice through maladministration, the local authority must notify the commissioner within three months of
the action taken or proposed to be taken in response to the report.58 Justice has commended this development:
“….this trend towards specialized Ombudsman is desirable in a country as populous as the United Kingdom. To
combine all types of Ombudsman function in one office would produce an unwieldy bureaucracy.”59
32 The office was created in 1966 in anticipation of the passage of the Act. The proposal to establish the Ombudsman was
made by Justice in its report in 1961, known as the Whyatt Report. A good deal of material is available on the British
Ombudsman, e.g.: M.P. Jain, Lokpal, Ombudsman in India, 1970, M.P. Jain, The First Year of Ombudsman in England,
14 J.I.L.I. 159 (1972); Frank Stacey, The British Ombudsman; Wade, The Ombudsman: The Citizen’s Defender, Law
and the Commonwealth (1971); Justice, The Citizen and the Administration (1961); Wheare, Maladministration and Its
Remedies (1973); Geoffrey Marshal, Maladministration, (1973) Pub. Law 32; Justice, Our Fettered Ombudsman; D.W.
Williams, Maladministration : Remedies for Injustice; Yardley, Principles of Adm. Law, 205-32 (1981); Craig, Adm. Law,
249-252 (1983); Beatson and Mathews, Adm. Law : Cases & Materials, 832-871, (1989); Bailey, Cases & Materials in
Adm. Law, 142-191 (1992); Patrick Birkinshaw, Grievances, Remedies & the State, 187-211 (1994); De Smith, Woolf
and Jowell, Jud. Rev. of Adm. Action, 41-58 (1995); Wade, ADM. Law, 87-112 (2000).
33 Craig, Adm. Law, 235 (2003).
34 This proviso has been used quite frequently by the Ombudsman in respect of tax complaints, for he takes the view that
it is unreasonable to expect the complainant to go through the cumbersome and expensive process of litigating against
the Inland Revenue. See, Yardley, Principles of Administrative Law, 209 (1981).
35 Re Fletcher’s Application, (1970) 2 All ER 527.
36 Supra, Chapter XLI.
37 ‘Wheare, Maladministration and its Remedies, (1973), gives the following examples of what, according to him, may
constitute maladministration:
(1) Transgression of law by the administrative authority.
This could arise from—(i) failure to carry out a duty imposed by law; (ii) action going beyond the powers
conferred by law; (iii) use of legal power for a purpose for which it was not intended; not following a procedure
laid down by law; making of arbitrary or unreasonable decisions in the application of legal powers.
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(2) Actions of officials actuated by bribery or corruption.
Influence may be used to persuade officials either to act or not to act in an area where they have discretion.
(3) Maladministration though not necessarily illegal, such as: (i) delay in reaching a decision; (ii) discourtesy or
rudeness; (iii) unfairness; (iv) bias; (v) incompetence; (vi) ignorance; (vii) high-handedness; (viii) mistakes; (ix)
failure to answer a letter; (x) losing paper; (xi) giving misleading statements to citizens about their legal position;
(xii) getting the facts of a case wrong; (xiii) failure to take into account the facts which the department ought to
have taken into account; (xiv) negligence; (xv) misconduct.
Wheare emphasizes that bad law or bad rules necessarily produce maladministration. Here actions in
accordance with law will constitute maladministration. Law may be ambiguous, obscure, self-contradictory,
obstructive, or may embody in itself principles of discrimination, bias, injustice and all this will inevitably
produce maladministration. See, WHEARE, Maladministration and its Remedies, (1973), 6-13.
38 See, Lord Denning MR’s judgment in R. v Local Commissioner for Administration, ex parte Bradford City Council,
(1979) QB 287, where an attempt has been made to give a definition of ‘maladministration’.
39 Wade, Adm. Law, 83 (1982).
40 Wheare, Maladministration and its Remedies, (1973), 13-14.
41 Annual Report 1977, p. 7; Carol Harlow, Ombudsmen in Search of a Role, (1978) 41 M.L.R. 446.
42 Jain, Treaties, I.
43 Bradley, The Role of the Ombudsman in relation to the Protection of Citizen Rights, (1980) CLJ.
44 Congreve v Home Office, (1976) QB 629.
45 Congreve v Home Office, (1976) QB 629 at 652.
46 Supra, Chapter XX.
47 Annual Report 1973.
48 R. Gregory and G Drewry, Barlow Clowes and the Ombudsman, Part I, (1999) PL 192; Part II, (1991) PL 408.
49 R. v Parliamentary Commissioner for Administration, ex parte Dyer, (1994) 1 WLR 621.
50 Justice, Our Fettered Ombudsman, 5, 16-19.
51 Justice, Our Fettered Ombudsman, 7-8, 23-6 (1977). In 1971, Justice suggested certain principles of good
administration. Presumably, breach of any such principle could amount to maladministration to be taken cognisance of
by the Ombudsman.
52 HC 593, Session 1979/80.
53 Justice has said on this point: “.... there is no convincing reason why an individual or organisation aggrieved by alleged
maladministration by a public body in relation to a contractual matter should not be enabled to have his complaint
considered by an Ombudsman...” Op. cit., 14.
54 See Gregory, (1982) PL 49 at 73-6.
55 J.D.B. Mitchell, (1968) PL 201. Also see, Jain, Treatise, I, Chapter I, 56.
56 Wade, ADM. Law, 94 (2000).
57 Justice, The Local Ombudsmen, (1980).
58 For details of this institution, see, Reg. v Local Commissioner, Ex. parte Bradford Council, (1979) 2 WLR 1; supra.
59 Justice. Our Fettered Ombudsman, 6.
End of Document
43.4 Australian Ombudsman


Australia has also opted for the Ombudsman system. Being a federation, Australia has a two-tier Ombudsman
system; practically, each state has its own separate Ombudsman and there is the Ombudsman system at the
Centre.
The Commonwealth Ombudsman system was established by the Ombudsman Act, 1976. The 1976 Australian Act
has been amended several times, the last Amendment Act having been passed in 1994. Most of the provisions in
the Australian Act correspond with the New Zealand Act.
The Ombudsman system consists of the following:
(a) a Commonwealth Ombudsman;

(b) 3 Deputy Commonwealth Ombudsmen; and
(c) a Defence Force Ombudsman.
The Commonwealth Ombudsman also acts as the Defence Force Ombudsman.
The Ombudsman (including the Commonwealth Ombudsman and the Deputy Commonwealth Ombudsman) holds
office for seven years and is eligible for re-appointment. He is appointed by the Governor-General and he retires at
the age of 65 years. To ensure his independence, he cannot be removed from his office except on an address by
the two Houses of Parliament praying his removal on the ground of misbehaviour or physical or mental incapacity’.
Thus, the Ombudsman in Australia is an executive government appointee and Parliament plays no role in his
appointment.
The Ombudsman has jurisdiction to investigate complaints against action taken by several major government
departments and prescribed authorities. The Ombudsman’s primary function is to investigate, either on a complaint
or suo motu, into a ‘matter of administration’ taken by a department or a prescribed authority. A complaint can be
made to the Ombudsman orally or in writing, but the Ombudsman can require the complainant to reduce his
complaint to writing.
‘Taking of action’ includes a reference to—(a) the making of a decision, or recommendation or the formulation of a
proposal; and (b) failure or refusal to take any action. Thus, the positive “taking of action” includes the negative
“failing to take action”.
The Act does not define a ‘matter of administration’ into which the Ombudsman can enquire “not only because of
the inherent difficulty of so doing, but also by reason of a definition resulting in the establishment of doubtful
dichotomies, for example, as between a matter of administration and a matter of policy.”60 Thus, Ombudsman has
flexibility and he can take a wider view of his functions. He can investigate matters arising from business activities
of governmental bodies within his jurisdiction.
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Ombudsman also has power to certify that there has been an unreasonable delay in the taking of a decision. This
amounts to a decision not to do the thing or act concerned and the interested person then becomes entitled to seek
review of that action.
Several types of action fall outside the Ombudsman’s jurisdiction, e.g., he cannot investigate into an action taken by
a Minister, but an action taken by a delegate of a Minister is within his jurisdiction. He may also investigate into
departmental advice to a Minister.
The Ombudsman may not investigate a complaint which is frivolous or vexatious, or has not been made in good
faith, or where the complainant became aware of the action complained of more than 12 months before making
complaint to the Ombudsman, or if an alternative remedy is available to the complainant. The complainant should
have sufficient interest in the subject-matter of the complaint. The Ombudsman can therefore refuse to investigate a
complaint on the ground that the complainant does not have sufficient interest in the subject matter of the
complaint. The Ombudsman does not investigate a complaint where the complainant has a right of access to a
court or tribunal unless he is of the opinion, that in all the circumstances of the case, the failure to exercise the right
is not unreasonable. Also, the complainant should seek to have his complaint resolved by the concerned authority
before coming to the Ombudsman.
Both the Ombudsman and the department concerned can refer to the Federal Court for determination of any
question relating to the exercise of a power or function by the Ombudsman. Thus, any doubt about the jurisdiction
or power of the Ombudsman can be resolved judicially.
Unlike the British Act, the Australian Act does not use the term ‘maladministration’. But, like the New Zealand Act, it
lays down a catalogue of circumstances in which the Ombudsman may consider an administrative action to be
defective. The crucial provision is section 15. The Ombudsman has to look for the following faults: that the action
(action means decision, recommendation, act or failure or refusal to take any action or to make a decision or
recommendation):
(i) appears to have been contrary to law;

(ii) is unreasonable, unjust, oppressive, or improperly discriminatory;
(iii) is in accordance with a rule of law, a provision of an enactment or a practice, but the rule, provision or
practice is or may be unreasonable, unjust, oppressive61 or improperly discriminatory;
(iv) is based either wholly or partly on a mistake of law or of fact; or
(v) is based either wholly or partly on improper motives, irrelevant grounds or irrelevant considerations;
(vi) reasons for a decision were not given but should have been given; or otherwise, in all circumstances,
wrong.
The intention underlying category (vii) is to enable the Ombudsman to question the propriety of an action by an
official where the impropriety might not fall within the other defined categories. The Ombudsman is not to canvass
the merits of an administrative action where there is no element of maladministration, but the power in category (vii)
appears to be wide enough to allow the Ombudsman to canvass the merits of a decision in the course of reaching a
conclusion that the action was wrong.
Category (ii) authorises the Ombudsman to condemn an action as unreasonable. The concept of
‘unreasonableness’ here appears to be broader than the judicial view thereof.62 The Ombudsman applies an
objective standard of reasonableness to the conduct in question.63 The Ombudsman can also find that a
discretionary power has been exercised for an improper purpose or on irrelevant grounds. Where the action
complained of involved a decision to exercise a discretionary power in a particular manner, or not to exercise it at
all, the Ombudsman may find that irrelevant considerations were taken into account, or that reasons should have
been given for taking or not taking the decision, but no reasons were given.
The Ombudsman has no power to set aside a decision of an administrator, or to require an action to be taken or not
taken, nor can he substitute his own decision for that of the decision-maker. He may suggest any of the following
remedial actions:
(i) The defective action should be referred to appropriate authority for further consideration;
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(ii) some particular action should be taken to rectify, mitigate or alter the effects of the defective decision;
(iii) a decision should be cancelled or varied;
(iv) a rule of law, provision of an enactment or practice on which a defective decision was based should be
altered;
(v) reasons should have been, but were not, given for a decision to which this section applies; or
(vi) some other thing should be done in relation to a defective decision.
The Ombudsman gives reasons for his opinions.
When the Ombudsman is investigating action taken under a statutory discretionary power, he may require the
department to refer a specified question relating to the taking of that action or exercising the power to the
Administrative Appeals Tribunal. If so, reference has to be made and the Tribunal then gives an advisory opinion on
that question.
The functions of the Ombudsman do not seek the resolution of a complaint as an end in itself.64 A complaint may
indicate a defective administrative practice or procedure. Investigation of a complaint may reveal that though a
practice or procedure is not in itself defective, there is, nevertheless, room for improvement with a view to achieve a
higher level of departmental efficiency and to avoid similar complaints in future. “The Ombudsman’s operations
should at all times be of assistance to good management.”65 The Ombudsman can also take a critical view of the
law under which administrative action complained of has been taken.
The Ombudsman has to make an annual report to Parliament of his operations, and may, from time to time, make
reports to Parliament during parts of a year. In addition, he may also make a special report to the Houses of
Parliament.
The Ombudsman thus enjoys a very wide jurisdiction to investigate official administrative action with a view to
helping a citizen. If a department does not take action as recommended by the Ombudsman within a reasonable
time, he can report to the Prime Minister. In addition, he may also make a special report to the Houses of
Parliament. This is the ultimate means of making the Ombudsman’s role effective. But this provision lies dormant
most of the time; the Ombudsman does not find it necessary either to report to the Prime Minister or make a special
report to Parliament, because most of the time the departments concerned accept his recommendations.
The Commonwealth Ombudsman also has functions under the Complaints (Australian Federal Police) Act, 1981.
Complaints against the police can be made to the Ombudsman. Most of these complaints relate to individual
behaviour of members of the Australian Police Force.
The Commonwealth Ombudsman also has functions under the Freedom of Information Act, 1982 (FOIA). The Act
accords to the Commonwealth Ombudsman a review role firstly in entertaining complaints about an agency’s delay
in dealing with a request for documents. The Act also explicitly states that the investigative powers of the
Commonwealth Ombudsman apply fully to complaints made about an agency’s decision under the FOIA, e.g., to
refuse to produce a document.66
The Commonwealth Ombudsman receives quite a large number of complaints, both written and oral. A large
number of cases are completed without the Ombudsman resorting to the formal technique of investigation. In
evaluating the work of the Ombudsman, it has been said that he deals effectively with a number of complaints and
that he provides very useful assistance to ordinary citizens who are in conflict with the Administration. His activities
have led to several procedural reforms within the administrative structure.
The Australian Prime Minister has said that the institutions of Ombudsman has helped the government
administration to be “responsible, adaptive and sensitive” to the needs of the citizens. According to the Prime
Minister, the institution has neither come in the way of ministerial responsibility nor has prejudiced in any way the
role of the members of Parliament.67
60 Commonwealth Ombudsman, First Annual Report, 1978, 20. But in his Fifth Annual Report, at 24, the Ombudsman
noted that the Act did not exclude a matter from being a “matter of administration” on the basis that it might also be “a
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matter of policy”. He suggested that the Act might therefore authorise him to investigate all actions of a department or a
prescribed authority.
61 The Ombudsman has explained the significance of this term as follows:
He says: “Oppressive conduct included an act or decision intended to bully a citizen or having the effect of over
burdening a complainant in the pursuit of his legal entitlement, e.g., where an authority requests more information than
it needs to make a decision. If an authority used its superior knowledge or position to place the citizen at a substantial
disadvantage it acts oppressively.” VI Report 16 (1982-83).
63 Third Annual Report, 18-19 (1979-80).
64 VI Annual Report, 16.
65 VI Annual Report, 16.
66 Infra, Chapter XLV.
67 VI Report, 121 (1982-83).
End of Document
43.5 Evaluation of the Institution


From the brief description of the Ombudsman system as it functions in common-law countries, it is possible to
develop a synthetic view of the essential features of the institution.
Keeping in view the fact that in the common-law countries, parliamentary system prevails, the first important
element of the Ombudsman’s office is that he is an agent of Parliament and functions on its behalf. Traditionally in a
parliamentary system, government is responsible to Parliament, and it is one of the functions of Parliament to
supervise the Administration as each Minister is individually responsible to Parliament. As Parliament, in view of its
structure, procedure and work, cannot effectively discharge this important task, so Ombudsman is appointed to
perform that task on behalf of Parliament. From this point of view, Ombudsman cannot be regarded as anything
foreign to, or incompatible with, the parliamentary form of government.
Some critics did assert that the Ombudsman will supplant the parliamentary system and undermine ministerial
responsibility to Parliament. The Australian Ombudsman has refuted this view as follows:68
“Experience has shown that far from eroding such traditional systems, the institution of Ombudsman has reinforced and
supported their functions. It is, I think, significant that on more than one occasion government Ministers as private Members
have chosen to lodge complaints with my office on behalf of constituents. Similarly, it is noteworthy that in a number of
cases Ministers have, as a result of investigations by my office of official actions, reviewed decisions in the light of
information not previously known to them. On the other hand, I quite often receive complaints under the Ombudsman Act
where it is apparent to me that report to the political process might well have a better chance of achieving a result the
complainant would like”.
Efforts have been made in all countries to make Ombudsman independent of the Executive as well as of Parliament
in his day to day work. Adequate precautionary provisions have been made in the law for the purpose. For example,
his tenure is fixed and he can be dismissed only by following a special procedure and on specified grounds only.
The primary function of the Ombudsman is envisaged to be redressal of individual grievances against the
Administration. He has jurisdiction to investigate into complaints by individuals against action taken by government
departments and public authorities.
Complaints are thus made to Ombudsman by individuals. He takes cognizance of such complaints. In New Zealand
and Australia, persons can directly complain to the Ombudsman, while in Britain, complaints are routed through
members of House of Commons. In New Zealand and Australia, he can even move suo motu to inquire into a
matter. Thus, the primary purpose underlying his office is to provide a forum in addition to the courts, to redress the
grievances of the individuals against the Administration. This has been found necessary because, as already
stated, the present-day judicial review has not been found effective enough to redress individual grievances.
Basically, the Ombudsman concerns himself with ‘bad’ administration or ‘maladministration’. In Britain, the
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compendious term ‘maladministration’ has been used leaving it to the Ombudsman himself to work the nuances of
this term from case to case. In New Zealand and Australia, specific grounds have been mentioned in the respective
law.
As regards the sanctions at his disposal, the Ombudsman cannot himself quash any offending administrative action
or to himself give relief to the complainant. He has power to recommend to the concerned department as to what
relief may be given to the specific complainant when his grievance is found to be justified. Ombudsman can also
report to Parliament on the results of his investigation into individual grievances. This is a power of consequence,
for no department wants to get adverse publicity in the press or be discussed on the floor of the Parliament.
Because of this ultimate sanction of reporting to Parliament, the recommendations made by the Ombudsman are
given due weight and are invariably accepted by the department concerned, and individual grievances redressed.
Ombudsman is in a very strong position to redress individual grievances arising out of bad administration. A major
difficulty, as pointed out above, in the present dispensation for getting relief against the Administration through the
courts is the difficulty of obtaining sufficient evidence of the impropriety committed by it. The strong point of
Ombudsman is that he has access to departmental files. On a complaint being made to him by an individual against
the Administration, the Ombudsman satisfies himself by looking into the relevant papers whether there was any
fault or lapse on the part of the Administration. The complainant is not required to lead any evidence, or to prove his
case, before the Ombudsman. It is for the Ombudsman to find out whether the complaint is justified or unjustified.
No court fees are payable for filing a complaint with the Ombudsman; no lawyer need be engaged because the
Ombudsman himself is the complainant’s lawyer. A probe by him into administrative functioning does not involve
much publicity; he works silently and discreetly and the Administration gets a chance of rectifying its mistakes
without much loss of face. The Ombudsman can give relief to an individual on many such grounds on which the
courts are not able to give relief. The proceedings of the Ombudsman are not formalised or routinised and do not
take long to be completed. The work of the Ombudsman is complementary to the work of the courts.
From a survey of the working of the Ombudsman systems in New Zealand, Britain and Australia, one thing stands
out, viz., the purpose of the Ombudsman is to control the Administration and thus give protection to the citizen
against injustice brought about by faulty administration. The Ombudsman is closely concerned with the correct
functioning of the administrative machine. His function is to locate ‘maladministration’ or faults in the administration.
He does not upset an administrative decision in the absence of an element of maladministration even though he
takes a different view of a decision on merits from what the Administration has taken. The Ombudsman has a
‘frontier’ with the law; in some respects an ‘overlap’; but his criteria for judging maladministration or injustice are not
co-extensive with those of the law courts. Ombudsman can thus deal with many facets of administrative action with
which the courts may not concern themselves, e.g. Ombudsman can give relief to the individual for delay in
administrative action, or when the complainant has not received any answer to his communication from a
department, or when he complains of departmental bias in making a decision and so on. Ombudsman also helps in
gradually improving administrative procedures by making recommendations for modifying these procedures.
Ombudsman thus can help in developing by his observations and suggestions a body of principles of administrative
due process. His functioning leads to setting and maintaining standards of good administration for government
departments which he does from case to case. An Ombudsman is a statutory watchdog over the Administration. He
acts as an external agency, outside the administrative hierarchy, to probe into administrative faults.
Ombudsman provides a valuable method of investigating individual complaints against government departments.
Citizens’ complaints against the administration are investigated by experienced staff who are not members of the
departments concerned. His findings of fact and his reasoned conclusions in a complaint may ultimately be
published and thus errors and mistakes committed by government officials in handling citizens’ affairs are exposed.
Ombudsman assists an individual to secure an appropriate remedy from the department. The remedy may take
several forms, e.g., apology, fresh decision, payment of ex gratia compensation; any other financial benefit (as for
example, waiver of arrears of tax, payment of interest or refunding of expenses), departmental review of his case
and similar other cases, review of relevant departmental policy, or review of delegated legislation contributing to
injustice to the citizen. The costs of his office are borne by the taxpayer and not by the complainants. A complainant
need not establish a breach of law; maladministration causing injustice is enough. On the whole, Ombudsman
seeks to hold the balance between the citizen and the state and thus he contributes to the greater efficiency and
humanity of the administrative process.
It needs to be emphasized that while basically the function of Ombudsman is to redress individual grievances
against the Administration, the value of the Ombudsman is not only curative but also preventive. He not only gives
relief to the aggrieved party in certain situations, but he also induces more care in the Administration while taking
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decisions, and, thus, many potential grievances are minimised and rights of the people protected and preserved
from infringement. His reports result in improving the quality of administration. Also, investigations by him lead to
modifications in departmental procedures which help to remove potential complaints at their source, Also, to the
extent the Ombudsman holds a large number of complaints against the Administration as unsubstantiated, he helps
in vindicating the Administration, raising its credibility, dispelling doubts about its fairness, and improving its image
in the public eyes. Removal of individual grievances keeps the public satisfied. Even when no relief is given by the
Ombudsman in a specific case, the mere fact that an independent authority has reviewed the matter, and given
reasons for the administrative action complained of, removes the sense of dissatisfaction from the complainant’s
mind and thus keeps the people satisfied. The Ombudsman thus helps in removing the crisis of confidence between
the Administration and the public which otherwise could be the negation of good administration. It is a sign of public
satisfaction with the functioning of the Ombudsman that the Ombudsman idea has come to be applied to many
more fields than originally thought of.
A few basic differences between the courts and the Ombudsman may be noted: unlike the courts, Ombudsman
does not have power to quash or reverse an administrative decision. He can however suggest various types of
remedies to the aggrieved individual which the court may not be able to provide. The Ombudsman does not follow
any elaborate court procedure. Action by him is fast and inexpensive. Courts do have advantage over the
Ombudsman in one respect, viz., courts are able to intervene very swiftly to prevent the recurrence or continuance
of wrongful acts, as they can grant declarations, injunctions, writs and stay orders. But the Ombudsman has no
such power. He makes a report after the event has taken place, However, on many administrative matters,
Ombudsman’s inquisitorial procedure is a much more efficient way to establish the truth than the adversary system
followed by the courts. On the other hand, there are disputes between citizens and the Administration which may be
better resolved by an authoritative application of law to the facts as established by an adversary procedure. Both
institutions are complementary to each other as both are seeking to evolve and elaborate in their own ways
principles of good administration and trying to enforce them.
The fact remains that wherever the Ombudsman system has been introduced, he has come to be regarded as a
positive weapon in the citizen’s armoury against arbitrary administrative action. Individual grievances against
administrative authorities are redressed by him.
In New Zealand, before reporting to Parliament, the Ombudsman should refer the matter to the Prime Minister. In
Britain, he has to refer the same to the Minister concerned.
In all the countries, publicity in the press and an enlightened and vigilant public opinion are major sanctions behind
the Ombudsman’s recommendations. No department wants to get an adverse press or public criticism by refusing
to accept what the Ombudsman wants, unless and until it is absolutely necessary or inevitable.
As regards the scope of activity of the Ombudsman, it may generally be said that he shares in common in all
countries the function of controlling the administration and thus protects the rights and liberties of the people.
Generally speaking, he concerns himself with faults in the administration. He serves as a general grievanceman,
hearing and rectifying complaints. He seeks to improve departmental procedures. His value is not only curative but
preventive as well. He gives not only relief to the aggrieved citizen, but also induces a general element of care in
the Administration in taking decisions, and to that extent many potential grievances are eliminated and rights of the
people protected and preserved from infringement.
The competence of the Ombudsman vis-à-vis ministerial actions is not uniform in all countries. In New Zealand, the
Ombudsman can scrutinise a department recommendation to the Minister but not a decision by the Minister. In
England, ministerial action would be outside the scope of his work.
As regards matters of discretion of the Administration, generally, it may be true to say that the Ombudsman does
not recommend a change in a decision merely because if he were to take the decision himself in the facts and
circumstances on record, he would have taken a different view from what the administration has taken in the
particular instance. However, within certain limits, he can probe into discretionary decisions as well. In Britain, he
will interfere if the element of fault is present. In New Zealand, he has somewhat wider choices, as even a wrong
decision may be called in question, but there the grounds on which he can make a recommendation have been laid
down in the Act itself. He makes a recommendation only when a statutory fault is present and not merely because
there is an honest difference of opinion between him and the Administration.
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It may be noted that much against the popular belief in India, Ombudsman is not directly concerned with fighting
corruption in the ranks of the civil servants. The main function of the Ombudsman in every country is to give relief to
the individual complainant if there is fault in the Administration. He is not concerned with undertaking the follow up
measures with a view to impose disciplinary sanctions against a civil servant. One of the important facts of life in all
these countries where the Ombudsman functions at present is that the element of corruption in government
services is extremely low. If one were to look at the Ombudsman’s reports in New Zealand, he would be surprised
that there is no mention anywhere of corruption as a ground for a wrong decision in any case. But things are
different in India, and that element has to be considered and given due weight in devising a scheme for the
Ombudsman to operate. It may, however, be noted that to the extent the lapses and faults of the Administration are
exposed by the Ombudsman, he will help in reducing corruption in the Administration.
On the whole, from a review of the working of the Ombudsman system in the common law countries, it appears that
Ombudsman has neither been found to be inconsistent with the system of judicial review nor with that of
parliamentary form of government. The Ombudsman, in reality, strengthens the latter and supplements the former.
As the Ombudsman acts as the eyes and ears of the Parliament, it is enabled to exercise its traditional role of
controlling the Administration more effectively. Ombudsman supplements the judicial review because there are
many aspects of the Administration which lie outside the purview of the courts. The Ombudsman can reach them
and make adequate recommendations.
It would also appear that to the extent the system of administrative tribunals is strengthened, Ombudsman’s
jurisdiction can be curtailed. Administrative tribunals can look into administrative decisions on merits and thus give a
wider protection to the people. But even with an extension and improvement in the tribunal system, certain aspects
of the public administration would still fall outside the tribunal system, and so Ombudsman never becomes
redundant. The experience of Britain is very relevant in this respect. After taking steps to reform the tribunal system
recently on the recommendations of the Franks Committee, it was found necessary to establish the system of
Ombudsman as well. The Ombudsman and tribunals are complementary to, but can never supplant, each other.
Unlike the courts, Ombudsman has no power to quash or reverse an administrative decision and, therefore, he
does not interfere with the responsibility of the administrators. He follows no elaborate court proceedings. His action
is fast and comparatively inexpensive as compared to the court proceedings. The Ombudsman has greater
capacity, opportunity and power to get at the facts of a case. He can deal with many facets of the actions of the
Administration with which the courts may not concern themselves and thus be able to give any relief, e.g., delay, no
answer to the applications, tardiness, bias in making decisions, not giving sufficient information or reasons for a
decision etc. Through his observations and suggestions, the Ombudsman may gradually develop a body of
principles of administrative due process. The mechanism of judicial review is not able to do that in a coherent
fashion. The courts have a load of work to do. The Ombudsman, as an independent external control agency, is
much more effective than any control-mechanism which the bureaucracy can provide within itself. Because of his
overall perspective and view of procedures as followed by the various departments of the Administration, he can
transmit his specialised experience and knowledge to the Government and the Administration so that all
departments benefit, and move towards an integrated and uniform approach in administrative matters. Thus, in all
the countries reviewed here, a view has been expressed that the Ombudsman system has led to an improvement of
administrative standards and efficiency.
In none of the countries reviewed here, the Ombudsman was adopted because of any very serious criticism against
the Administration, or that injustice was frequently perpetrated by it against the individuals. To take the example of
Britain, the Ombudsman has been established even when it has been asserted that the Administration maintains
traditions of integrity and impartiality. The Ombudsman can therefore be regarded as the manifestation of the
society’s respect for rule of law, social justice, equality before the law and democratic ideals. The feeling that there
might be isolated cases of injustice going unremedied under the present dispensation of things was the raison
d’etre for establishing the system. Also, the Ombudsman, by its mere existence, counteracts the tendencies of the
Administration towards transgression of authority and misuse of its powers. Besides, the Ombudsman is not merely
to control the Administration, he also has a number of other positive aspects as well. He works for the improvement
of administrative procedures and practices, and of law, for the benefit of the general public. He also helps in
increasing public confidence in the Administration. Complaints about administrative action are fully and impartially
investigated by him. The existence of a non-political agency, independent of the administration, duty-bound to
investigate and examine charges of wrong and negligence against administrative organs, and whose investigations
can be verified and criticised by anybody, must necessarily help in maintaining the confidence of the general public
in the Administration. If a grievance is justified, and thus he helps to keep the Administration in the narrow path of
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rectitude. But that is not all. Because many complaints against the Administration, on investigation, are found to be
unjustified and unsubstantial, to that extent the image of the Administration improves in the public eye;
Administration stands vindicated and the faith of the public in it is strengthened. This is a great advantage accruing
to the administration and the government.
In a democracy, co-operation between the Administration and the public is very essential for the effective
functioning of the Administration, but it becomes difficult to promote such co-operation if there is an element of
district and lack of faith on the part of the people in the Administration. In India, today, people have an apathy
towards the Administration and this is one major reason for the ineffectiveness of the Administration. The
Ombudsman helps in relieving this situation to a great extent. The public remain satisfied because a channel is
open to it for redress of its grievances against the administration. Even if no relief is given in a particular case, the
mere fact that an independent authority has reviewed the matter gives satisfaction to the complainant. Many
complaints arise, as the experience shows, because the Administration fails to communicate reasons, and the
complainant fails to appreciate the reasons, lying behind an administrative decision. If the same are explained to
the complainant, often he would feel satisfied that, after all the administration had not acted in an arbitrary fashion.69
The Ombudsman therefore serves an important public relations aspect; he acts as a bridge on the gulf which
usually exists between the people and the administration. The crisis of confidence between the Administration and
the public can be the negation of good administration and the Ombudsman helps in relieving this situation. The New
Zealand Ombudsman brings out this aspect of his work in the following words:
“It would be incorrect to look upon my office as being ‘anti-administration’. The Ombudsman is not concerned to try to find
fault if no fault exists; and it has proved necessary to advise a few complainants, in quite forceful terms, that they should
cease groundless attacks on departments or officials. In so far as thorough and independent investigation of allegations of
malpractice establishes that those allegations are unfounded, the office acts as a valuable shield to the administration,
while at the same time members of the public can be assured that any such allegations, if reasonably supported by
evidence or inference, will be carefully investigated. In fact, up to the present time, no such allegations have been found to
be justified”.70
Wherever the Ombudsman institution functions, it has come has come to be accepted by the administration and
there is no hostility, apathy or antipathy against it. In earlier stages, the civil servants might have felt some
apprehension that the Ombudsman might turn out to be a kind of witch-hunt, but by and large this apprehension
has now been dispelled by the way the system has worked so far. Ombudsman tells the administrators as to where
they have gone wrong so that matters can be improved. If a department were to take the view that whatever it has
been doing is the only way to do a thing, and if it starts defending its position in every case, then difficulties might
arise. But if a department were to do some objective, positive and constructive thinking, then it should welcome
suggestions made by the Ombudsman because in this way the working of the department may improve.
The administrators are also conscious of, and appreciate very much, the public relations aspects of the
Ombudsman. To the extent the Ombudsman upholds the administration against the individual, the Administration
stands vindicated and is protected against unjustified criticisms and its public image improves. To a very large
extent, the inarticulate public feeling that the bureaucrats act in an arbitrary fashion has been dissipated.
As a result of the institution of the Ombudsman, they administrators become somewhat more careful in taking
decisions. But this has not hampered their initiative. So long as they act honestly, they have nothing to be afraid of.
Departments may be able to use the Ombudsman as a lever to improve things in the department. The observations
made by the Ombudsman from time to time help in improving departmental procedures.
The way the Ombudsman has functioned has not in any way compromised the traditional principle of anonymity of
the civil service. The Ombudsman treats the department as a unit and does not mention any specific administrator
by name in his report. If there is anything sensitive and not desirable to be published, the Ombudsman can be
depended upon the exercise of his judgment.
The departments of government are apt to develop a sense of righteousness and a routinised and stereotyped
outlook. A psychology takes hold of them that the way in which they handle things is the only way to do them. The
functioning of the Ombudsman does help in keeping this feeling in check and at times the administrators are given
choices to take decisions, and sometimes the alternatives suggested may be better than what they have been
doing all along.
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Ombudsman thus promotes good governance in the country and helps the administrators in cultivating the sense of
responsibility and accountability.
Considering the working of the Ombudsman-system in other countries, and especially in New Zealand, and taking
into consideration the mores of its working, and the reasons which led to its adoption in those countries, the
adoption of the system in India would appear to be a great desideratum. In fact, the case in India to adopt the
Ombudsman is much stronger than in many countries where it has been adopted. If in those countries with a high
and sophisticated sense of administrative responsibility, nearly 25 per cent cases are found needing relief at his
hands, one wonders as to what would be the percentage of such cases in India. If Britain, with all its liberal
traditions, and great experience of administration, finds it necessary to go in for an Ombudsman, there does not
appear to be any less necessity for India to adopt the same. The arguments regarding the parliamentary system
and the court review procedures lose all their significance and validity when we find New Zealand, Britain and
Australia, three common law countries, with well established traditions of parliamentary form of government, opting
for it.
There is a much greater chance of administrative excesses in a country like India with practically no established
mechanism to redress individual grievances. In fact, the hang-over from the British period still remains in the
Administrative field and the Administration, at least that part of it which comes in contact with the public, hardly feels
that it owes any responsibility to the people. This mental attitude of the Administration needs to undergo a change.
The gulf between the people and the Administration needs to be bridged. There is at present a lot of talk of
corruption in the administrative ranks and this has completely undermined and corroded the moral authority and the
image of the administration.
The Ombudsman would help in redeeming the situation in two ways. To the extent he fails to discover “skeletons” in
the administrative cupboards, to the extent he finds the complaints to be unjustified, he will vindicate the
Administration and help in improving its public image. Secondly, he will inculcate a sense of responsibility in the
administrators and make them take more care in taking decisions.
A source of corruption may partially be traced to the existence of large discretionary powers, not properly defined
and articulated, and exercised by administrators without any effective review procedure. If the administrator knows
that each and every of his decisions is subject to a review by the Ombudsman, he will undoubtedly be more
cautious in arriving at his decisions, and will be slow in discriminating among people, or showing undue favours or
not giving to one what is due to him.
Above all there is the argument of higher values in support of the institution, India swears by the concept of social
justice and equality before law. It, therefore, becomes an extremely important matter that suitable methods and
machinery are provided so that individuals may have a fresh look into the working of the Administration and no one
harbours a sense of injustice. In a welfare state, justice should not only be done but seem to be done. Even a single
case of injustice would justify the institution of Ombudsman in the democratic society of India. Needless to say that
even good law badly administered may result in a denial of equality of law and, therefore, it becomes absolutely
essential not only to make good laws but also to ensure that the administration functions without discriminating
between one individual and another.
However, there are certain ‘musts’ which need be fulfilled before the institution of Ombudsman can attain success
in its work. The Ombudsman should be a person of integrity, free from political influences of the day, and one who
enjoys prestige and confidence both from the public and the Administration. He should be capable of cultivating a
good public relationship with the people coming to him for redress and with the Administration into whose activities
he will be probing. It is necessary that the Ombudsman, by his training and background, should be capable of
taking an objective, restrained and detached attitude; he should work in the spirit not of finding faults with the
departments, but as a guide, philosopher and helper to the Administration in its difficult assignment.
68 Commonwealth Ombudsman, Fifth Annual Report, 5 (1981-82).

69 The Swedish Ombudsman has in fact made a suggestion that a legal obligation may be placed on the administration to
give reasons so that the number of complaints to him may be reduced.
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70 Report, 31 March 1964, p. 5.
End of Document
43.6 Ombudsman in India


43.6.1 Introductory
Needless to say that the need to establish an Ombudsman system is no less intense in India than other countries
having the same system for the considerations which led to the creation of Ombudsman in those countries exist in
ample measure in India as well.71 Administrative delay and discourtesy are proverbial. The mechanism and
procedure to redress the grievances of the individual against the administration are inadequate. The administration
in India has been acquiring vast powers in the name of socio-economic development and, thus, chances for
administrative excesses and abuse of powers abound. Therefore, close supervision over the administration, and a
mechanism for redressal of grievances become essential. If in countries like New Zealand, Britain or Australia
which have a high standard of administration, cases of maladministration can be found, there is no gainsaying the
fact that many more such cases will be revealed here if there were a proper mechanism for investigation. The
procedures to redress individual complaints through the courts or the legislature or the administration are as
inadequate as in other common-law countries.
There is a peculiar element present in the Indian scenario which is not so much visible elsewhere, viz., widespread
public perception of administrative corruption which has very much undermined public confidence in the
administration and has very much corroded its moral authority and image. Conferment of large administrative and
discretionary powers breed corruption and, therefore, if the administrator knows that his decisions are subject to
scrutiny by an independent authority, he will be more careful in arriving at his decisions and be less tempted to
misuse his powers and show undue favours to anyone. Impelled by these considerations, the Central Government
took some steps in the past to create the Ombudsman system but somehow all these steps proved abortive.
43.6.2 Recommendations of the Administrative Reforms Commission
In its report dated 20 October 1966, the Administrative Reforms Commission, after carefully evaluating the pros and
cons, advocated the adoption of the Ombudsman-type institution for redress of citizens’ grievances.72 The redressal
of citizens’ grievances, the Commission felt, is basic to the functioning of democratic governments, and will
strengthen the hands of the government in administering the laws of the land, its policies “without fear or favour,
affection or ill-will”, and enable it to go up in public faith and confidence without which progress would not be
possible.
In the view of the Commission, an institution for the removal of prevailing or lingering sense of injustice springing
from an administrative act is the sine qua non of a popular administration. In suggesting the Scheme, the
Commission took note, on the one hand, of the public feeling against the prevalence of corruption, wide-spread
inefficiency and administration’s unresponsiveness to popular needs, and, on the other hand, of the necessity to
give protection to the Administration, to project its true image, and to dispel from the public mind false notions and
prejudices against the quality and character of the Administration. The Commission thus pleaded the case for the
Ombudsman in these words:
“In essence, therefore, the main issue before us is how to provide the citizen with an institution to which he can have easy
access for the redress of his grievances which he is unable to seek elsewhere. In such cases, the fact remains that the
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individual himself has a feeling of grievance whatever the nature of the grievance may be, and it is up to the State to try to
satisfy him, after due investigation, that the grievance is untenable in which case no action is called for, or is false in which
case he must answer for having made a baseless accusation. The fact that he has had a reasonable opportunity of
presenting his case before an authority which is in a different hierarchy from the authority which passes the order and which
is independent and impartial, would in itself be a source of satisfaction to the citizen concerned even where the result of
investigation is unfavourable to him”.
In present circumstances with the expanding activities of Government, the exercise of discretion by administrative
authorities, howsoever large the field may be, can neither be done away with nor can it be rigidly regulated by
instructions, orders or resolutions. The need for ensuring the rectitude of the administrative machinery in this vast
discretionary field is not only obvious but paramount. Where the citizen can establish the genuineness of his case, it
is plainly the duty of the State to set right the wrong done to him. The need for giving this approach a concrete form
arises from the fact that parliamentary supervision by itself cannot fully ensure to the citizen that rectitude over the
entire area covered by administrative discretion. Nor have the various administrative tiers and hierarchies proved
adequate for the purpose. A tendency to uphold the man on the spot, a casual approach to one’s own
responsibilities, an assumption of unquestionable superiority of the Administration, a feeling of the sanctity of
authority and neglect or indifference on the part of a superior authority may prevent a citizen from obtaining justice
even at the final stage of the administrative system. It is in these circumstances, or in instances where he is unable,
for some compelling reasons, to seek other remedies open to him that an institution for redress of grievances must
be provided within the democratic system of government. It has to be an institution in which the average citizen will
have faith and confidence and through which he will be able to secure quick and inexpensive justice.73
While the scheme propounded by the Commission drew largely from the experiences of other countries,
nevertheless, it was sui generis in many respects and contained a number of peculiar features of its own to meet
the special circumstances of India. Some of these circumstances mentioned by the Commission were:74
(1) The experience of comparatively small countries like Sweden, Norway, Denmark, and New Zealand,
having small areas and containing small population, cannot be necessarily a precedent for India with such
a vast area and population. An institution of the type of Ombudsman on the analogy of those countries
would require a very large staff and it would not be possible to maintain the private and informal character
of investigations which has been a prominent feature of the institution in these countries.
(2) Norway, Sweden, Denmark, New Zealand and the United Kingdom have centralised administrations
whereas India is a federation based on a division of functions between the Centre and the States. This
would raise the problem of separate jurisdiction of the Ombudsman and so many authorities with which he
would have to deal. If the Ombudsman’s functions were to be the same as in those countries, it might lead
to a conflict of jurisdiction with the Central and State Governments, with Parliament, with the State
Legislatures and with the Judiciary. There might be constitutional difficulties so far as its functioning in the
State is concerned, because the executive powers, in relation to the State matters, vest in the State under
article162 of the Constitution.
(3) There operate in India the principles of parliamentary form of government and ministerial responsibility. In a
parliamentary democracy, Ministers are responsible to the Legislatures for the acts of permanent officials
under them. It is the Legislature which has the right as well as the duty to see that the Ministers and the
administration function on right lines. If a Minister or an administrator fails in his duty, or acts improperly,
unjustly or illegally, a corrective is available to the citizen both in the courts and the Legislature. Even when
commissions are appointed to investigate into the conduct of Ministers, it is the Parliament or Legislature
which becomes seized of the matter and is the final authority which takes action or to which action is
reported.
Politically, it is possible to argue that if the Prime Minister acts on the advice of another functionary,
rather than on his own judgment, it would dilute the responsibility of his colleagues to himself and
weaken his authority over them.
Under the Constitution, the Ministers, speaking technically, are only advisers to the President or the
Governor who, in theory, is responsible for the executive action of the government. No Minister has
any authority to pass executive orders. All enforceable orders are issued under the signature of the
executive officers in the name of the Head of the State though they act in accordance with the direction
of the Minister. No court can enquire into the question as to what advice has been tendered by the
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Ministers to the Head of the State. An investigation into the advice tendered by the Minister or by an
outside authority would, therefore, be against the spirit of the Constitution.
(4) As regards the permanent civil servants, article 311(2) of the Constitution lays down the requirement of a
formal inquiry. An inquiry made by the Ombudsman would not answer the requirements of article 311 and
the executive government would have to hold a separate inquiry to deal with the delinquent official. This
would only lead to long drawn investigations and inquiries, and it might, in the final result, involve a conflict
of findings between the Ombudsman and the departmental inquiry.
(5) The question of the rights of a citizen to have access to the Ombudsman vis-à-vis the rights of a
Parliament or Legislature to raise the same issue in the House by other Parliamentary means such as
interpellations, adjournment motions, etc., or investigation by the committee on petitions, will have to be
resolved.
(6) Courts in India have extensive powers to correct actions of the administrative authorities through writs and
this would have to be taken into account and provisions made to avoid any conflict of jurisdiction between
the Ombudsman and the courts and suitable procedures devised for the purpose.
(7) Interested persons might misuse the institution of Ombudsman to make false or baseless charges against
the Administration either to discredit it or delay or halt the implementation of various measures that might
be undertaken in pursuance of government policies and programmes.
In reply to the difficulties mentioned above in the way of setting up an Ombudsman in India, the Commission struck
an optimistic note and stated that if in formulating the details about the functioning of the institution, care was taken
to provide against the objections or conditions mentioned above, “there need be no apprehension that an institution
analogous to that of Ombudsman for India would not be made to serve the same purpose as it has done in the
Scandinavian countries and in New Zealand or is intended to do in the United Kingdom.”75
The Commission’s position on some of the difficulties pointed out above was as follows:76
(1) So far as constitutional difficulties are concerned, they can be resolved by constitutional amendment, if
necessary, and consequently they do not constitute any insurmountable difficulty in bringing into force the
proposed system.
(2) The system of Ombudsman has been regarded as essential by some of the enlightened democracies both
of British and other parliamentary models.
(3) The vastness of the country and its population need not deter us from establishing an Ombudsman. The
Indian judicial system already provides for the functioning of the judiciary and administrative tribunals and
for a hierarchy of appeals against the orders of subordinate authorities to superior authorities. The
Ombudsman-system is not envisaged as coming into clash with these institutions. The Ombudsman should
function only in respect of those matters for which such remedies are not available or where, in some
cases, it might not be reasonable to expect a citizen to take recourse to legal proceedings. This would
substantially reduce the number of complaints eligible for investigation and thus enable the Ombudsman to
devote its attention and energies only to those cases in which prima facie the need for redressing an act of
injustice or maladministration exists.
(4) The institution of Ombudsman would not be overwhelmed by the number of complaints it might be
receiving. Over a period of years, when the public becomes accustomed to the working of the system, it
would realise the futility of approaching it with cases which do not need its attention or in which the
complaints are not genuine. Apart from this, by a suitable division of functions between the Ombudsman
and other functionaries to deal with citizens’ grievances, it would be possible to distribute the work load in
such a manner that all the functionaries can do adequate justice to the complaints they receive.
(5) The Commission has also refused to accept the validity of the argument that regulatory check on the
actions of the executive in the discretionary field will lead to serious delays in developmental activities or
will promote a feeling of demoralisation in, or have a cramping effect on, the Administration. This malaise,
the Commission felt, mainly arises more from a sense of frustration or lack of appreciation of good work
done and from an exaggerated image of corruption, inefficiency and lack of integrity current in the public
mind than from actual investigation into complaints submitted by the citizens. The working of the institution
of Ombudsman will in the long run rectify and thus restore the correct image of the Administration, create
public confidence in its integrity, and thereby promote, rather than impede, the progress of developmental
activities.
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(6) The informal character of inquiries by the Ombudsman will save the public servant from exposure to public
gaze during the course of an enquiry, which often has the effect of condemning him in the public eye
before he is ultimately found guilty or innocent, as the case may be. The institution will thus be a protection
for, and a source of strength rather than a discouragement to, an honest official, whose susceptibilities
alone are germane in this context.
It may be pointed out here that the Commission was justified in taking an optimistic view of the institution and in
making most of the assumptions as mentioned above. For, most of the arguments which the Commission put
forward in support of its thesis to have an Ombudsman-type institution in India had already been put forward, and
found to be valid in practice, in foreign countries where such a system functions.
In the previous pages, it has been pointed out that the Ombudsman not only investigates into the complaints made
by the citizens against the Administration, but also seeks to create a better image of thereof in the public mind, for a
large number of complaints are in practice found to be devoid of any substance, and to the extent the Ombudsman
says so, the public is assured that there is nothing fundamentally wrong with the Administration. A better
relationship is established between the people and the Administration. After all, a standing suspicion in the public
mind against the impartiality or objectivity or rationality in administrative actions does no good to anybody. The
Ombudsman does help to remove such suspicions and doubts in the public mind by its work. If, however, there is
something bad, and the Ombudsman unearths it out by his operations, then it should be advantageous to all
concerned—the public, the government and, above all, the Administration itself.
Presence of the Ombudsman makes the Administration more cautious in taking decisions. The Administration looks
twice and takes somewhat more caution, before it takes a particular action. This is no mean gain. In fact, the
efficacy of the Ombudsman lies not so much in rectifying individual grievances which may not be many on paper; its
value lies in the number of cases which are averted from being transformed into complaints. Greater care taken by
the Administration means that rights and interests of the people are not interfered with in a trifling manner but only
after due and mature deliberation and consideration.
As regards the argument based on ministerial responsibility and Parliamentary form of government, it has already
been pointed out in the previous pages that the Ombudsman system is not incompatible with the same; it in no way
compromises the principle of Parliamentary system. On the other hand, it goes to strengthen the same. The
Ombudsman is a representative of Parliament, acts on its behalf, and reports to it, and thus the Parliament can act
much more effectively as a controller of the executive than would be the case otherwise.
The very fact that first New Zealand, and Britain and Australia, all countries having Parliamentary system, have
opted for the Ombudsman, would show that the Ombudsman is not regarded as incompatible with the
Parliamentary system. The practical experience of New Zealand is that the Ombudsman has in no way cut into the
prerogatives of the Parliament, or its members and that it fits admirably with the whole scheme. After the adoption
of the system by Britain there remains no scope for doubt on this point.
The Commission considered carefully the question whether ministerial decisions should come within the purview of
the Ombudsman or not. The position in other countries in this respect has already been noted. The Commission
recommended that these decisions should be included within the jurisdiction of the Ombudsman. The reasons
advanced by the Commission for its position were as follows:77
(1) Having regard to the manner in which democracy has been functioning in India, both at the Centre and the
States, cases of injustice at the ministerial level must be dealt with.
(2) It is only at the level of the Minister or the Secretary, subject to his instructions and directions, that many of
the important orders of the Government affecting the citizen acquire finality. At lower levels, correctives
through appeals, representations and personal access to various authorities are available, but at the level
of the Minister or his Secretary there is a finality from which, only in very rare cases, there is any escape.
(3) If the institution could deal effectively and expeditiously with matters at the source of authority, it would
have an exemplary effect on other officials and other levels of official hierarchy and thereby it would induce
a rise in the general level of efficiency, propriety and justice.
(4) It is true that it is open to the Parliament or the Legislature to deal with a Minister when he goes wrong, or
to deal with an officer, under him and for whom he is answerable when he commits a wrongful act or is
guilty of a culpable omission. But these institutions are not, in the nature of things, easily accessible to the
Page 5 of 5
common man, and the time at their disposal, their procedures, their conventions and practices would not
make for quick, speedy or effective action in a large number or cases.78
In these circumstances, it is necessary that an opportunity be given to an adversely affected citizen to

ventilate his grievance against the order of a Minister or his Secretary. The action of the Ombudsman
in respect of a ministerial decision need not be to the exclusion of legislative control. Thus, the
ministerial responsibility to the Legislature would not be diluted, but strengthened, by the establishment
of this institution.
(5) The appointment of the Ombudsman cannot be regarded as a breach of the spirit of the Constitution. In
recent years, in a number of cases, commissions under the Commissions of Inquiry Act have been
appointed to enquire into ministerial conduct.79 In essence, there is no difference between these and the
enquiries which the proposed institution would be conducting.
(6) There is not much substance in the political argument either. The Prime Minister’s hands would be
strengthened rather than weakened by the institution. Firstly, recommendations of such an authority will
save him from the unpleasant duty of investigating against his own colleagues. Secondly, it will be possible
for him to deal with the matter without the glare of publicity which often vitiates the atmosphere and affects
the judgement of the general public. Thirdly, it would enable him to avoid internal pressures which often
help to shield the delinquent. What applies to the Prime Minister applies mutatis mutandis to the Chief
Minister.
71 There is a good deal of literature in India on this subject. For instance, refer to M.P. Jain, Lokpal— Ombudsman in
India, (1969); Jaganndham and Makhija, Citizen, Administration and Lokpal, (1969); S.K. Agrawala, The Proposed
Indian Ombudsman, (1971); S.P. Sathe, Lokpal and Lokayukta: The Indian Ombudsman, 38 Jl. of University of Bombay
265 (1969); Donald C Rowat, The Proposed Ombudsman System for India, 5 Jl. of Const. and Parl. Studies 284
(1971); R.L. Narasimham, The Indian Ombudsman Proposal—A Critique, Law and Commonwealth, (1971):
Administrative Reforms Comm., Interim Report on Problems of Redress of Citizens Grievances, (1966).
72 Para 3 of the Report. For outlines of the Commission’s Scheme and its critique, see, M.P. Jain, Lokpal: Ombudsman in
India, 126-157.
73 Administrative Reforms Commission’s Interim Report (1966), para 8.
75 Administrative Reforms Commissioner’s Interim Report, (1966), para 18.
76 Administrative Reforms Commissioner’s Interim Report, (1966), paras 18 and 19.
77 Administrative Reforms Commission’s Interim Report (1966), paras 20 and 21.
78 For a discussion on parliamentary control of the Executive, see Jain, Treatise, I, Jain, Indian Const. Law.
End of Document
43.7 The Scheme

43.7 The Scheme

The Commission suggested that the special circumstances relating to India can be fully met by providing for two
special institutions for the redress of citizens’ grievances. One of these may be designated as Lokpal and he should
deal with complaints against the administrative acts of Ministers or Secretaries to the Government at the Centre and
in the States. There should be another authority in each State and at the Centre to be designated as Lokayukta for
dealing with complaints against the administrative acts of other officials.
In working out other details pertaining to the offices of the Lokpal and Lokayukta, the Commission sought to achieve
the following objectives: that these officers should be demonstrably independent of the Executive, Legislature and
the Judiciary, and be impartial; that their investigations and proceedings should be conducted in private and should
be informal in character; that their appointment, as far as possible, should be non-political, that their status should
compare with the highest judicial functionaries in the country; that they should deal with matters in the discretionary
field involving acts of injustice, corruption or favouritism; that their proceedings should not be subject to judicial
interference and they should have the maximum latitude and powers in obtaining information relevant to their
duties; that they should not look forward to any benefit or pecuniary advantage from the executive government.80
All these are unexceptionable ideals, and it has already been seen in the preceding pages as to how in various
countries efforts have been made to achieve them.
Keeping in view the above principles, the Commission sought to work out the details of the functioning of the offices
of Lokpal.
The Lokpal, as stated above, was to have within his purview investigation of complaints against the Ministers and
Secretaries, both at the Centre and in the States. The reason for combining Ministers’ and Secretaries’ decisions
and place them under one agency was that at the level at which Ministers and Secretaries function, it often
becomes difficult to decide where the role of one functionary ends and that of the other begins. The line of
demarcation between the responsibilities and influence of the Minister and Secretary is thin; in any case, much
depends on their personal equation and personality and it is most likely that in many a case the determination of
responsibilities of both of them would be involved.81
The Lokpal should be appointed by the President on the advice of the Prime Minister which would be tendered by
him after consultation with the Chief Justice of India and the Leader of the Opposition in the Lok Sabha. If there was
no such leader, Prime Minister will then consult a person elected by the members of the Opposition in the Lok
Sabha in such manner as the Speaker might direct.
The Lokpal was to have the same status as the Chief Justice of India. His tenure was to be five years subject to his
eligibility for reappointment for another term of five years in accordance with the same procedure. He could resign
his office by writing to the president. He was not to be removable from his office except in the manner prescribed in
the Constitution for the removal from office of a Judge of the Supreme Court, i.e. when a resolution passed by each
House of Parliament, by absolute majority of the membership in each House and by a majority of not less than two-
thirds of the members of that House present and voting, on grounds of proved misbehaviour and incapacity is
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43.7 The Scheme
presented to the President. The salary and other emoluments of the Lokpal would be the same as those of the
Chief Justice of India.
On his appointment as Lokpal, the individual concerned would resign his membership of any legislature if he was a
member before his appointment. He would also resign from any post or office of profit held by him prior to his
appointment whether in or outside the Government. He will also sever his connections with all business activities, if
any, and also resign his membership, if any, of a political party. After his retirement from the position of Lokpal, he
will be ineligible for any appointment under the Government (both Centre and State) or in a Government
Undertaking.82
The Lokpal was to be free to choose his own staff, but their number, categories and conditions of service would be
subject to the approval of the President. His budget would be subject to the control of Parliament.
Generally speaking, the Lokpal would have the power to investigate an administrative act done by or with the
approval of a Minister or a Secretary to Government at the Centre or in the State, if a complaint were made against
such an act by a person who was affected by it and who claimed to have suffered an injustice on that account. In
this context, an ‘act’ would include a “failure to take action”. The complaint could be made either by an individual or
by a corporation. The Lokpal could, in his discretion, inquire into a complaint of maladministration involving not only
an act of injustice but also an allegation of favouritism to any person or of the accrual of personal benefit or gain to
the administrative authority responsible for the act, namely, a Minister or a Secretary to Government at the Centre
or in the States. In addition to making investigations on the basis of complaints received by him, the Lokpal could
also suo motu investigate administrative acts of the types described above which could come to his notice
otherwise than through a complaint of an adversely affected person. In this respect, the Lokpal would differ from the
Ombudsmen in Britain and New Zealand but resemble more nearly the Ombudsmen in the Scandinavian countries.
The following matters would be excluded from the purview of the Lokpal:
(1) Action taken in a matter certified by a Minister as affecting the relations or dealings between the
Government of India and any foreign Government or any international organisation of States or
Governments.
(2) Actions taken under the Extradition Act, 1962 or the Foreigners Act, 1946.
(3) Action taken for the purpose of investigation of crime or protecting the security of the State including action
taken with respect to passports.
(4) Action taken in the exercise of power in relation to determining whether a matter shall go to a court or not.
(5) Action taken in matters which arise out of the terms of contract governing purely commercial relations of
the administration with customers or suppliers except complaints of harassment or delays in the
performance of contractual obligations.
(6) Action taken in respect of appointments, removals, pay, disciple, superannuation or other personnel
matters.
(7) Grants of honours and awards.
(8) A decision made in exercise of his discretion by an administrative authority unless the elements involved in
the exercise of discretion are absent to such an extent that no discretion has been exercised as all.
(9) Any action in respect of which the person aggrieved has or had the right of appeal, reference or review to
or before a tribunal constituted by or under any enactment.
(10) Any action in respect of which a person aggrieved has or had a remedy by way of proceedings in any court
of law. The Lokpal may, however, look into such a matter if he is satisfied that in the particular
circumstances it is not reasonable to expect the complainant to take or to have taken proceedings in a
court of law.
(11) An administrative action which was taken more than twelve months before the date of the complaint.
So the Lokpal, unlike that in New Zealand, was to have no discretion to investigate into any complaint which was
more than 12 months old. The Lokpal would, however, have discretion to refuse to investigate or give up
investigation if he was satisfied that (a) there existed a remedy for the injustice alleged to have been caused and
that the complainant should seek this remedy accordingly, or (b) the complaint was trivial, frivolous, or was not
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43.7 The Scheme
made in good faith, or (c) there was no sufficient ground for proceeding with his investigations. The complainant
was to be apprised of any such decision.
The procedure for investigating complaints by the Lokpal was to be as follows. On receipt of a complaint from a
person claiming to have suffered an injustice through an administrative act for which a Minister or a Secretary to
Government was finally responsible, the Lokpal would scrutinise it and come to the conclusion as to whether he had
jurisdiction to deal with it and if so, whether the case was worth investigating. If he decided in the negative on either
of these two points, he would reject the complaint and inform the complainant accordingly. If he decided to take up
the complaint for investigation, he would take the following steps:
(1) He would communicate the complaint to the Minister or the Secretary concerned and invite his comments
thereon.
(2) At this stage, it might be possible for the Minister or the Secretary concerned to rectify, on his own, any
faulty decision made by him, or he might seek to establish the correctness or justice of the action taken.
(3) The Lokpal on receipt of the comments as in (1) above, would decide whether the complaint was
actionable and inform the complainant in case the faulty decision had been rectified or he had decided not
to take any further action.
(4) In case he decided to proceed with the investigation, he would send an intimation of the same to the
Minister/Secretary concerned and the complainant.
(5) If on completion of the investigation, the Lokpal was satisfied that there was no cause for grievance, he
would inform the complainant accordingly and close the case. If, however, he considered that an injustice
had been done to the complainant, he would suggest to the Minister/Secretary concerned remedial action
where it was possible for him to provide the remedy.
(6) If Lokpal’s recommendation was accepted and remedial action taken the case would then be closed. If,
however, the recommendation was not accepted, the Lokpal might make a report on the case to the Prime
Minister or Chief Minister of the State as the case might be. The Prime Minister or the Chief Minister would
inform the Lokpal of the action taken in the matter within two months.
(7) If the Lokpal was satisfied with the action taken, he would close the case. If he was dissatisfied with the
action taken, he might bring it to the notice of Lok Sabha or the State Legislative Assembly, as the case
might be, through a special report or through the annual report. The Administration’s explanation in its
defence would also be brought out in the report.
(8) If, during his investigations, the Lokpal found that in a case the Minister Secretary concerned had by his
action shown undue favour to any person or secured any personal benefit or gain to himself, he would
report his conclusions to the Prime Minister or the Chief Minister, as the case may be, who will take further
action in the matter within two months of the receipt of the Lokpal’s report and inform the Lokpal of the
action taken.
(9) If, as a result of his study of any case or cases, the Lokpal considered that an amendment of the law would
be justified, he could make appropriate recommendations to the Prime Minister or Chief Minister as the
case might be.
(10) To enable the Lokpal to carry out his functions, he would be given powers of a court with regard to the
calling and enforcing attendance, of witnesses, examining them on oath, discovery and production of
documents, receiving evidence on affidavits etc. In regard to information available with the Government or
subordinate authorities, he would have access to whatever information, document, etc., he required and no
privilege would be claimed for any such information or document except when it might prejudice the
security or defence of the State or foreign relations or the investigation or detection of a crime or involve
the disclosure of proceedings of the cabinet or its committee.
The Commission, however, expressed the hope that the Lokpal would not find it necessary to exercise
the powers of a court and that his procedure would remain as informal as possible. The Lokpal would
conduct his investigation in private. He would not publish anything relating to the investigation till the
inquiry was completed and his findings were communicated to the complainant, or to the Legislature.
Publication of any matter pending before the Lokpal or decided by him save to the extent that it was
included in the special or annual report or was permitted by the Lokpal would amount to contempt of
court. This, however, would not apply to the publication of any report of the Lokpal sent to the
complainant or to the Lok Sabha or to the State Legislature concerned. The Lokpal and members of
Page 4 of 15
43.7 The Scheme
his staff were to be bound by the Official Secrets Act and they were not to disclose any information
obtained by them except for the purposes of investigation, for making reports, for taking proceedings
under the Official Secrets Act, perjury and contempt of Lokpal.83 Likewise the information or document
could be communicated to any person if the Minister certified it to be against public interest. Nor could
the Lokpal or his staff be called upon to give any evidence in any proceedings except under the Official
Secrets Act, for perjury or contempt of Lokpal of matters coming to their knowledge during any
investigation. They were also not to be liable for anything done in good faith under the Act.
(11) Each year, the Lokpal was to submit a report to Parliament or the State Legislature concerned on his
activities during the previous year. Besides giving a summary of the cases disposed of by him, he was to
indicate the need for amending any law in order to remove occasions for unintended hardship experienced
as a result of the administration of the existing law.
(12) If any person without lawful excuse obstructed the Lokpal in the performance of his functions or was guilty
of any act or omission in relation to an investigation, which, had the investigation been proceeding in a
court of law, would have constituted contempt of court, the Lokpal could certify the offence to the Supreme
Court. A person making a complaint of maladministration involving undue favour having been shown or to
the securing of a personal benefit, made a false statement before the Lokpal knowing it to be such, would
be guilty of an act constituting contempt of court. When an offence was certified, as above, the Supreme
Court could enquire into the matter and dispose it of as if the matter related to a charge of contempt of the
Supreme Court itself.
(13) The procedure detailed above for being followed by the Lokpal in matters of investigation of complaints,
would be followed by him mutatis mutandis to investigations taken up suo motu by him.
So far as the Lokayukta was concerned, it was envisaged that he would be concerned with problems similar to
those which the Lokpal would face in respect of Ministers and Secretaries though, in respect of action taken at
subordinate levels of official hierarchy, he would in many cases have to refer complainants to competent higher
levels. His powers, functions and procedures could be prescribed mutatis mutandis with those which had been
suggested for the Lokpal. His status, position, emoluments, etc. were, however, to be analogous to those of a Chief
Justice of a High Court and he should be entitled to have free access to the Secretary to the Government
concerned or to the Head of the Department with whom he would mostly have to deal to secure justice in deserving
cases. Where he was dissatisfied with the action taken by the department concerned, he should be in a position to
seek a quick corrective action from the Minister or the Secretary concerned, failing which he should be able to draw
the personal attention of the Prime Minister or the Chief Minister as the case may be. The procedure proposed to
be followed by the Lokpal would apply mutatis mutandis to investigations taken up by the Lokayukta.
Lastly, the Commission suggested that it would be necessary to give a constitutional status to the office, powers
and functions of the Lokpal in order to make him fully effective and to bestow necessary powers on him without his
coming into conflict with other functionaries under the Constitution. But, it was not necessary for the government to
wait till the necessary constitutional amendment materialised. The Government could take steps to set up the office
of the Lokpal pending the constitutional amendment because it would be possible for the Lokpal to function in a
large number of cases without having his position defined under the Constitution. The Government could proceed to
appoint the Lokpal as well as the Lokayuktas and they could commence their work to the extent they could without
the constitutional provisions. In course of time, the Government could undertake to effect amendment of the
Constitution and any consequential amendment of the relevant statute. By following this course of action, the
recommendations of the Commission may be implemented at an early date.
43.7.1 Comments on the above scheme
A few comments on the report of the Commission may be in order at this stage.
In drafting the outlines of its scheme to establish Lokpal and Lokayuktas in India, the Commission undoubtedly
drew largely from the experiences of other countries, nevertheless, it may also be appreciated that it was sui
generis and contained a number of features of its own to meet the special circumstances prevailing in India, e.g.
much larger population than other countries having the Ombudsman system, federal structure of the Indian polity,
parliamentary government, ministerial responsibility etc.
The recommendations of the Commission were evolved keeping in view three present-day felt needs in India (i)
evolving a suitable grievance procedure for individuals to invoke in complaints of maladministration; (ii) evolving a
mechanism to reduce corruption in the administrative services; and (iii) creating a mechanism to take cognisance of
complaints of favouritism etc. against Ministers.
Page 5 of 15
43.7 The Scheme
The whole tenor of the Commission’s report shows that by and large the Commission was motivated by a keen
desire to improve the public image of the Administration, and to remove from the public mind an exaggerated sense
of corruption, inefficiency and lack of integrity in the Administration.
The Commission’s scheme can be characterised as defective in one essential aspect, viz., it was not compatible
with the federal features of the Indian Constitution. The Lokpal, an appointee of the Centre was to probe into the
administration of the States. Similarly, the Lokayuktas were to probe into State Administration. This was a
controversial aspect of the scheme. The States could hardly be expected to fall in line to such a proposal which
would impinge on their autonomy.
According to the Commission’s plan, Lokpal (as well as Lokayuktas) were to have jurisdiction to give relief when a
person suffered “injustice from maladministration”. The term maladministration was not concretised; it was left to the
Lokpal to develop the norms constituting maladministration. The Commission’s scheme followed the British model
rather than the New Zealand or the Australian model.
According to the Commission, Lokpal was to be authorised to investigate any action “taken in exercise of
administrative functions”. This formulation seemed to exclude matters of ‘policy’ from his purview. The Commission
did not however suggest any test to distinguish between “administrative functions” and ‘policy’. Thus, there was
flexibility in this area.
Another commendable aspect of Commission’s report was to make the Minister’s administrative action subject to
Lokpal’s scrutiny. If Minister’s action is kept out of the Ombudsman’s purview, there is always a danger that the
Administration may try to oust the Ombudsman’s scrutiny by having as many decisions of the department endorsed
by the Minister as may be possible. This would very much compromise the capacity and efficacy of the
Ombudsman to give relief in matters of injustice perpetrated by departmental decisions.
The Commission made another commendable suggestion, viz., to give a constitutional status, rather than merely a
statutory status, to the Lokpal and Lokayuktas. The Commission observed that for the Lokpal to be fully effective
and for him to acquire power, without conflict with other functionaries under the Constitution, it would be necessary
to give a constitutional status to his office, his powers and functions. A statute can be repealed or amended any
time by the concerned Legislature so as to make Lokpal and Lokayuktas less effective. A constitutional status
would make Lokpal/Lokayuktas free from the political vagaries of the government and the Legislature. In order to
ensure the independence of his office from political or executive pressures, and to generate public confidence in
him, it is absolutely necessary to create the office of the Lokpal through a constitutional provision.
43.7.2 The Lokpal and Lokayuktas Bill, 1968
The Government of India accepted the recommendations of the Commission. The Government took the definitive
step towards the creation of the Ombudsman System in India when, in 1969, the Lok Sabha enacted the Lokpal
and Lokayuktas Bill, 1968.
By and large, the Bill followed the model suggested by the Commission with a few deviations. One major deviation
made by the Bill was to confine the jurisdiction of the Ombudsman to the central sphere only leaving the States out
of its purview whereas the Commission had suggested one comprehensive scheme covering the Centre-State
Administration as a whole. But because of the objections raised by many states against a central functionary
peeping into their administrative affairs, the idea to bringing the State Administration within the purview of the
Lokpal was dropped. It was left to the States to establish their own Ombudsman mechanism.
The chief feature of the Bill was to enable the Lokpal to initiate an investigation when a person made a complaint
that he had suffered injustice in consequence of maladministration or corruption. Complaints about
maladministration were characterised as “grievance” and a complaint about corruption was termed as “allegation”.
The Lokpal could initiate an investigation suo motu without a complaint being filed if in his opinion an administrative
action could have been the subject of a ‘grievance’ or, ‘allegation’.
As the operations of the Central Government are huge, and as the envisaged mechanism was to deal with cases
not only of ‘maladministration’ but ‘corruption’ as well, the Act provided for the appointment of one Lokpal and one
or more Lokayuktas depending upon the volume of work. Each of them was to function independently. The division
of work among them was on the lines suggested by the Commission, namely, Ministers and Secretaries were to fall
within the purview of Lokpal, and other officials to fall within the purview of the Lokayuktas.
Page 6 of 15
43.7 The Scheme
Not much need be said on this Bill as the whole endeavour to enact it as an Act proved abortive. The Bill could not
be passed in the Rajya Sabha, as the Lok Sabha was dissolved in January, 1970, and, consequently, the Bill
lapsed.84
A second attempt to enact the legislation to establish the Ombudsman system was made in 1971 when another Bill
was introduced in the Lok Sabha.
A few words about the Bill of 1971 are said below.

43.7.3 Bill of 1971
The Bill of 1971 referred only to the Central Administration and not to State Administration.
The Bill provided for the appointment, by the President of one Lokpal and one or more Lokayuktas. The Lokpal was
to be appointed after consultation with the Chief Justice of India and the Leader of the Opposition in the Lok Sabha.
If there was no such leader, a person elected by the members of the Opposition in the Lok Sabha for this purpose
was to be consulted. The Lokayuktas were to be appointed after consultation with the Lokpal. Presumably, the
President would have acted in this matter, as he does in other matters, on the advice of the Prime Minister in
keeping with the theory of parliamentary form of government.
Before entering upon his office, the Lokpal/Lokayukta was to subscribe to an oath in the prescribed form. He was
not entitled to be a member of Parliament or any State Legislature or to hold an office of trust or profit, or to be
connected with any political party or carry on any business. He was to hold office for five years. A complete ban
was imposed on the re-employment of the Lokpal/Lokayukta, after his retiring from his office in any capacity, by any
government, authority, government company, etc.
The Ombudsman was given a security of tenure just like a Judge of the Supreme Court. He could be removed,
before the expiry of his term, only on the ground of misbehaviour or incapacity and no other ground. To remove
him, an enquiry was to be held by a sitting or retired Supreme Court Judge; the enquiry report was to be placed
before both Houses of Parliament and each House was to pass an address for his removal by a majority of its total
membership and a majority of not less than two-thirds of its members present and voting. The salary of the
Lokpal/Lokayukta was fixed by the bill and was not to be varied to his disadvantage after his appointment. These
provisions made the Lokpal/Lokayukta immune from executive and parliamentary influence, and guaranteed his
independence, so that he could exercise his function without fear or favour.
The Lokayuktas were to be subject to the administrative control of the Lokpal. The Lokpal could issue general or
special directions to the Lokayuktas for ensuring convenient disposal of investigations by them, but the Lokpal was
not to act as an appellate or revisory authority over the Lokayuktas. The Lokpal was not to question any finding,
conclusion or recommendation of a Lokayukta. For reasons to be recorded in writing, however, the Lokpal could
himself investigate an action falling within the purview of the Lokayukta. A Lokayukta was to officiate as Lokpal in
case of vacancy in that office or inability of the Lokpal to perform his duties.
The function of the Lokpal was to investigate any action which was taken by, or with the approval of, a Minister
(other than the Prime Minister) or a Secretary, or any other public servant belonging to that class which had been
notified by the Central Government in consultation with the Lokpal for that purpose. Such an investigation could be
undertaken if a person made a complaint involving ‘grievance’ or ‘allegation’.
A “grievance” was a claim by a person that he had sustained injustice or undue hardship in consequence of
“maladministration.” “Maladministration” meant action taken in exercise of administrative functions in any case—(i)
where such action or the administrative procedure or practice governing such action was unreasonable, unjust,
oppressive or improperly discriminatory; or (ii) where there had been negligence or undue delay in taking such
action, or the administrative procedure or practice governing such action involved undue delay.
An “allegation” in relation to a public servant meant any affirmation that such public servant—(i) had abused his
position as such to obtain any gain or favour to himself or to any other person or to cause undue hardship or harm
to any other person; (ii) was actuated in the discharge of his function as such public servant by personal interest or
improper or corrupt motives; or (iii) was guilty of corruption or lack of integrity in his capacity as such public servant.
This definition of “allegation” covered circumstances of political corruption as well.
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43.7 The Scheme
“Action” had been defined broadly so as to mean action taken by way of decision, recommendation or finding or any
other manner and included failure to act.
The Lokpal could also initiate investigation suo motu without a complaint having been filed if in his opinion an
administrative action could be the subject of a “grievance” or “allegation”. From this point of view, the Lokpal was in
a much stronger position than the British Ombudsman. Similarly, a Lokayukta could investigate any action taken by
or with the approval of a public servant, other than the one who fell within the jurisdiction of the Lokpal, if such an
action amounted to “grievance” or “allegation” either on a complaint or suo motu.
Grievances arising from the following types of administrative action were exempt from being investigated by Lokpal
or Lokayukta—(i) action taken in a matter certified by a Secretary as affecting the relations or dealings between the
Government of India and a foreign government or any international organisation of governments; (ii) action taken
under the Extradition Act, 1962, or the Foreigners Act, 1946; (iii) action taken for the purpose of investigation of
crime or protection of the security of the state including action taken with respect to passport and travel documents;
(iv) action taken in the exercise of power in relation to determining whether a matter should go to a court of law or
not: (v) action taken in matters arising out of a commercial contract except where the complainant alleged
harassment or gross delay in meeting contractual obligations by the Administration; (vi) action relating to service
matters; and (vii) grant of honours and awards.
The entire judicial establishment also fell outside the scope of Lokpal/Lokayukta.
A “grievance” was not to be investigated if the complainant had a remedy available by way of proceedings before a
tribunal or court except where the Lokpal/Lokayukta was satisfied that the complainant could not have recourse to
such a remedy for some sufficient cause. He could also sot investigate into a complaint in respect of any action
which had been referred for inquiry, with his consent, to a commission of inquiry under the Commissions of Inquiry
Act, 1952.
The time-limit for making a complaint involving an “allegation” was five years from the date on which the action
complained against was alleged to have taken place. In the case of a “grievance”, the time was twelve months from
the date on which the complainant came to know of the action complained against, but this period could be relaxed
if the Lokpal/Lokayukta was satisfied that the complainant had sufficient cause for not making the complaint within
the period of twelve months.
In the case of a “grievance”, Lokpal/Lokayukta would not question any administrative action involving the exercise
of discretion except where he was satisfied that the elements involved in the exercise of discretion were absent to
such an extent that the discretion could not be regarded as having been properly exercised. A complaint involving a
“grievance” could be made by the person aggrieved or his legal representative or authorised agent. An “allegation”
could be made by any person other than a public servant. It is to be noted that the immunity given to discretionary
decisions from being questioned (except when discretion was not properly exercised) was only in respect of
complaints of maladministration but not with respect to complaints of corruption. The reason for this is that most of
the corruption cases arise out of discretionary powers and exclusion of such decisions have provided an undue
protection to corrupt public servants.
Any letter written to the Lokpal/Lokayukta by a person in police custody, or in a goal or in an asylum, had to be
forwarded to the addressee unopened and without delay. This overrode any law to the contrary.
When the Lokpal/Lokayukta proposed to conduct an investigation, he was to forward a copy of the complaint to the
public servant concerned as well as to the “competent authority”. The public servant was entitled to offer his
comments on the complaint. The Prime Minister was the “competent authority” in the case of a Minister or
Secretary, and in the case of any other public servant, the “competent authority” was to be prescribed by the rules.
The Lokpal/Lokayukta was to conduct an investigation in private, but he had discretion to conduct an investigation
in public in the case of a matter of definite public importance if he, for reasons to be recorded in writing, thought fit
to do so. The Lokpal/Lokayukta could follow such procedure for conducting an investigation as he considered
appropriate in the circumstances of the case. The identity of the complainant, or that of the public servant
concerned, was not to be disclosed to the public at any stage of investigation. He could refuse to investigate any
complaint if in his opinion it was frivolous or vexatious or was not made in good faith, or there were no sufficient
grounds for investigating, or the complainant should avail of other remedies open to him. The reasons for not
entertaining a complaint were to be communicated to the complainant.
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The Lokpal/Lokayukta was to have broad powers to collect evidence pertaining to an investigation undertaken by
him. He could require anyone to furnish information or produce documents relevant to the investigation. He was to
enjoy powers of a civil court in the matter of summoning witnesses and requiring discovery of documents. No
obligation imposed by law to maintain secrecy, and no privilege allowed by any law to the government was to apply
in the matter of disclosure of evidence for purposes of any investigation by the Lokpal/Lokayukta. However, this
was subject to a few exceptions. No evidence was to be produced which might prejudice the security or defence or
international relations of India, or detection of any crime, or which might involve disclosure of cabinet proceedings.
For this purpose, a certificate issued by a secretary certifying that any information, answer, or portion of a document
was of such a nature was to be binding and conclusive. This was a very restrictive provision as the Secretary of the
concerned department could nullify an investigation by withholding evidence from the Lokpal. Indeed, in Britain no
privilege can be claimed by the government against the Ombudsman in the matter of production of evidence. No
person was to give any evidence or produce any document in any investigation which he could not be compelled to
give or produce in court proceedings. This, therefore, meant that the rule against self-incrimination was to be
operative in an investigation before the Lokpal/Lokayukta.85
If after investigation into “grievance”, the Lokpal/Lokayukta was satisfied that the action in question had resulted in
injustice or undue hardship to the complainant or any other person, he was to recommend remedial measures and
fix the time for taking the same, and the “competent authority” was to inform the Lokpal/Lokayukta of the action
taken to comply with his suggestions within a month of the specified time. Similarly, if he found that an “allegation”
could be substantiated wholly or partly, he was to report in writing to the “competent authority” who was to report
back to him the action taken. The Lokpal/Lokayukta would close the case if satisfied with the action taken. If not so
satisfied, he could make a special report to the President and the report, along with an explanatory memorandum,
was to be laid before the Houses of Parliament. An annual report was also to be made to the President by the
Lokpal/Lokayukta which was to be laid before Parliament along with an explanatory memorandum. Provisions were
made for punishing contempt of the Lokpal/Lokayukta.
The primary idea of the Ombudsman in the Scandinavian and the common law countries (New Zealand, Britain and
Australia) where the institution has been introduced is to oversee maladministration, e.g., negligence, delay,
inefficiency, bias, abuse of power (which may not amount to corruption), and to make the Administration more
humane and accountable. However, the emphasis in India on Ombudsman has been both on maladministration as
well as corruption. The 1971 Central Bill assigned to the Ombudsman the twin tasks of corruption (allegation)
involving ministers (other than the Prime Minister) and government servants, and maladministration by these
functionaries. In view of the prevailing situation in India, this would have been an extremely heavy burden on the
functionary. It would have meant in practice that he would neglect one or the other function. It appears to be
advisable to have two separate institutions for the two functions—redressal of grievances and fighting corruption.
Again, the Bill of 1971 could not be enacted as an Act. The Bill was aborted owing to the dissolution of the Lok
Sabha. Thereafter, a third attempt to establish the institution of Ombudsman was made in 1977, when a new Bill,
entitled the Lokpal Bill, 1977, was introduced in the Lok Sabha. The Bill was referred to the Joint Select Committee
of the two Houses of Parliament. The Committee presented its report to the two Houses in July, 1978. When the Bill
was under consideration in the Lok Sabha, the House was dissolved and, consequently, the Bill lapsed.
A few words on the Bill of 1977 are said below because it made a fundamental deviation from the previous Bills and
even from the Report of the Administrative Reforms Commission.
43.7.4 Lokpal Bill of 1977
The Central Bill of 1977 completely threw overboard the Western idea of Ombudsman. The jurisdiction of the
Central Lokpal was confined only to “public men” which term included Central Ministers (including the Prime
Minister), members of Parliament, members of the legislative assemblies for the Union Territories and a few other
categories of elected functionaries.86 The government servants as such were beyond the purview of the Lokpal.
However, the Lokpal could inquire into the conduct of any other person only to the extent necessary to inquire into
any allegation of misconduct against a public man. Secondly, the proposed Lokpal was not to be concerned with
the cases of maladministration but only with cases involving corruption. The task of the Lokpal was to inquire into
allegations of misconduct against a public man. A public man would commit misconduct if he was actuated by
corrupt motives in the discharge of his functions, or abused his position to cause harm to anybody or used his
position to secure any valuable or pecuniary advantage for himself or his relatives or associates or committed an
act constituting corruption. In sum, the purpose of the Lokpal Bill, 1977 was to control political corruption.
Many other provisions of the 1977 Bill were on the same lines as those of the 1971 Bill except with the following
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major differences, apart from what is stated above. First, the Lokpal was to be appointed by the President after
consultation with the Chief Justice of India, the Chairman of the Rajya Sabha and the Speaker of the Lok Sabha.
The last two functionaries could consult the leaders of the various parties and groups in their respective Houses
before expressing their views on the appointment of the Lokpal. Secondly, the Bill provided for the appointment of
Special Lokpal or Lokpals by the President if he considered it necessary on a report from the Lokpal that it was
necessary to do so for expeditious disposal of complaints under the Act. Thirdly, the “competent authority” for the
Prime Minister was the Speaker;87 for a Minister, the Prime Minister; and for members of the Parliament, the
Chairman of the Rajya Sabha or the Speaker of the Lok Sabha as the case may be. Fourthly, no matter in respect
of which a complaint could be made under the Act was to be referred for inquiry under the Commissions of Inquiry
Act, 1952, except on the recommendation, or, with the concurrence of the Lokpal; and the Lokpal was not to inquire
into any matter which had been referred for inquiry under the Commissions of Inquiry Act, 1952 on his
recommendation, or, with his prior concurrence. Fifthly, power was given to the Lokpal to himself try summarily
certain offences, that is, the offence of giving false evidence before him and offences contained in sections 175,
178, 179 and 180 of the Indian Penal Code committed in his view or presence. A person convicted by the Lokpal
could appeal to the High Court.
Maladministration which is the primary concern of the Ombudsman in other countries was thus proposed to be kept
out of the purview of the Indian Ombudsman under the 1977 Central Bill. This was not proper. As stated in the
previous pages, there is a great need for an institution, independent of the executive, to supplement the system of
judicial control over administrative action in view of the limitation of judicial review so as to reduce the sense of
grievance presently nursed by the people against the Administration. The Administrative Reforms Commission
under the chairmanship of the Prime Minister at the time had suggested the installation of such an institution in its
very first report, but when he was himself the Prime Minister he failed to implement what the Commission had
recommended.
It has been suggested that, so far, the institution of Ombudsman has succeeded only in countries with small
population and that in a populous country like India, the Ombudsman may be overwhelmed with complaints of
maladministration and allegations against the Administration. The appointment of one Lokpal and a number of
Lokayuktas takes this factor into consideration. Further, being a federal country, the Central Administration is not
concerned with the totality of governmental functions but only with a portion of these, the other portion being
discharged by the States, and each State may have its own Ombudsman system. Specialized Ombudsmen for
specific activities may also be thought of.88 In the long run, however, it is necessary to improve the tribunal system
in India so that tribunals can provide an effective review-mechanism of administrative decisions.89 To the extent,
tribunals can provide such a review, the need to resort to the Lokpal would be reduced. Also, it has been the
experience of the Ombudsmen in other countries that many grievances against the Administration arise because of
the failure of the Administration to give reasons for the decisions taken by it and that if reasons are given as a
matter of course then the number of complaints may be reduced. It will be a great advantage to the individual
affected by an administrative action if the Administration were to disclose to him the reasons for acting in the way it
is acting. He can then decide whether he should challenge the action or not in a court of law. Many challenges to
administrative action are made at present because the individual affected, being ignorant of the reasons, does not
know whether the action suffers from some flaw or not. In the area of quasi-judicial adjudication, an obligation to
make speaking orders has come to be imposed on the concerned bodies.
A similar development is a desideratum in the area of administrative powers. The Conseil d'Etat in France has gone
far in the direction of requiring administrative decisions to contain reasons. In 1950, it annulled a decision in which
no reasons were given. In Britain, the Tribunals and Inquiries Act, 1958 imposes a statutory duty to give reasons, if
requested, for decisions by most tribunals and by Ministers required to hold statutory inquiries. In America, the
courts insist that administrative decisions must contain at least the findings upon which they are based.90 In India as
well such a rule should be promoted. Therefore, if the Administration in India were made to adopt the practice of
furnishing reasons for its decision to a person feeling aggrieved by it, then the number of complaints flowing to the
Ombudsman may be reduced and become manageable. In any case, there is a great need to supplement the
existing mechanism to supervise Administration in India, and the experiment of the Ombudsman is worth a trial. It is
bound to result in the improvement of administrative procedures affecting the individuals dealing with the
Administration.
43.7.5 Lokpal Bill of 1985
The Central Government again introduced the Lokpal Bill, 1985, in the Lok Sabha. The Bill closely followed the
model of the Lokpal Bill, 1977 which lapsed because of the dissolution of the Lok Sabha. The new Bill, like its 1977
counterpart, covered only allegations of misconduct. Grievances were excluded from Lokpal’s jurisdiction. The Bill
provided for an institutionalised framework for inquiry into charges of corruption in high places. The Bill did not
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provide for a mechanism for redressal of grievances against the Administration which is usually the most important
function assigned to the Ombudsman in other countries.
The Lokpal was to be appointed by the President in consultation with the Chief Justice of India. He was to be a
person who was, or had been, or was qualified to be, a Supreme Court Judge. Adequate provisions were made to
ensure that the Lokpal was able to act independently and without fear or favour. Thus, it was provided that the
Lokpal could be removed from his office only by an order made by the President on the ground of proved
misbehaviour or incapacity after an inquiry made by the Chief Justice of India.
The Lokpal was to inquire into complaints alleging that a public functionary has committed an offence punishable
under Chapter IX of the Indian Penal Code, or under the Prevention of Corruption Act, 1947. The expression ‘public
functionary’ covers Ministers, Ministers of State, Deputy Ministers and Parliamentary Secretaries of the Union. The
Lok Pal could also inquire into the conduct of any person other than a public functionary, if this was considered
necessary for the probe of the main allegation. Thus, senior officials were also covered by the Bill, the reason being
that often irregularities are committed by Ministers in collusion with senior officials.
The President, Vice-President and the Prime Minister are outside the jurisdiction of the Lokpal.
A complaint could be made to the Lokpal by anyone other than a public servant. The Lokpal was not to take up any
complaint made after five years of the alleged offence. The Lokpal was to present an annual report of his activities
to the President who would then cause the same to be laid before each House of Parliament.
The purpose of the Bill was to provide a convenient and effective forum for determining complaints and thereby
save the citizens from pursuing remedies through the courts which is a dilatory and expensive process. To provide
an incentive to the people to bring due complaints to the Lokpal, it was provided that the Lokpal can recommend to
the government payment of some compensation or reward to a complainant if allegations made in his complaint
were substantiated either wholly or partially and having regard to the expenses incurred by him in relation to the
proceedings pertaining to his complaint, the Lokpal thought that the complaint deserved to be compensated or
rewarded. On the other hand, there were provisions to discourage false or frivolous complaints. The Bill was
referred to a Joint Select Committee of the two Houses of Parliament for further consideration. During the course of
discussion on the Bill in the Lok Sabha, a significant question raised was whether or not the Prime Minister ought to
fall under the Lokpal’s jurisdiction. But, ultimately, this Bill could not also become a law.
The Bill of 1985 could not also be enacted into law.

43.7.6 Lokpal Bill, 1989
Again, the Lokpal Bill, 1989, was sought to be introduced in Lok Sabha. This Bill made Lokpal a three-member
body, and even the Prime Minister was brought within the jurisdiction of the Lokpal. The Bill lapsed with the
dissolution of the Ninth Lok Sabha.
Thereafter, The Lokpal Bill, 1996, was introduced in the Eleventh Lok Sabha on 13 September 1996. But this Bill
also lapsed with the dissolution of the Lok Sabha.
The Lokpal Bill, 1998 was introduced in the Lok Sabha on 3 August 1998. But before the Bill could be enacted, the
Lok Sabha was dissolved and, consequently, the Bill lapsed.
Again, the Lokpal Bill, 2001 was introduced by the Central Government in Lok Sabha in August 2001. Some of the
provisions contained in the Bill were quite different from the provisions made in the previous Bills. The Bill made the
following salient provisions:
Section 3(1) proposed to establish the institution of Lokpal consisting of a chairperson and two members. The
chairperson must be a sitting or retired Chief Justice or a Judge of the Supreme Court. The other two members
must be sitting or retired judges of the Supreme Court or the Chief Justices of the High Courts.
All members of Lokpal were to be appointed by the President after securing the recommendation of a committee
consisting of the following members:
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Vice-President of India;
Prime Minister;
Speaker of Lok Sabha;
Minister for Home Affairs;
Leader of Opposition in the Lok Sabha;
Leader of Opposition in the Rajya Sabha;
Leader of the House other than the House in which the Prime Minister is a member.
The chairperson or any member of Lokpal is not to be a member of Parliament or a State Legislature; he shall not
hold any office of profit, or be connected with any political party or carry on any trade or profession.
The Chairperson or a member of the Lokpal holds office for a term of three years or until he reaches the age of 70
years.
On retiring from the Lokpal, no member/chairperson is to hold any office of profit under any government. The
salaries and allowances of the chairperson/member are not to be varied to his disadvantage after his appointment.
The chairperson/member cannot be removed from office except by an order made by the President on the ground
of proved misbehaviour or incapacity after an inquiry made by a committee consisting of—(i) Chief Justice of India;
and (ii) two other Judges of the Supreme Court next to the Chief Justice in seniority and after giving the
chairperson/member a reasonable opportunity of being heard in respect of the charges levied against him.
The function of the Lokpal was to “inquire into any matter involved in, or arising from, or connected with, any
allegation made in a complaint”. A complaint has been defined as “a complaint alleging that a public functionary has
committed an offence punishable under the Prevention of Corruption Act, 1988”.91
A “public functionary” falling under the purview of the Lokpal was defined as the Prime Minister, Minister, Minister of
State or Deputy Minister of the Union Government, or a past or present member of a House of Parliament.
No enquiry was to be made into any matter connected with any allegation against the Prime Minister “insofar as it
relates to national security and maintenance of public order”.
Any person other than a public servant may make a complaint under this Act. If the Lokpal proposes to conduct an
inquiry in the complaint, it must send a copy thereof to the public functionary concerned and afford him to represent
his case. The Lokpal has been given the power of a civil court in respect of summoning witnesses, or receiving
evidence on affidavits. No obligation to maintain secrecy was to apply to the disclosure of information for the
purposes of any inquiry under this Act.
If the Lokpal were to find that the offence alleged in the complaint had been committed, then it would send the
report to the Speaker/Chairman of the House to be laid therein. A copy of the report was also sent to the competent
officer.
The competent officer was to inform the Lokpal within ninety days about the action taken on the basis of the report.
The competent officer, in relation to—the Prime Minister, meant the Lok Sabha;
(i) a Minister, meant the Prime Minister;

(ii) a member of a House, that House itself.
The Lokpal was to send an annual report to the President and he would cause the same to be laid before each
House with an explanatory memorandum.
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Two significant features of the Lokpal Bill, 2001, may be mentioned here. One, the Lokpal was envisaged to be a
three-member body and not a single person.
Two, over a period of time the character of the institution of Lokpal has under gone a drastic metamorphosis. In the
first Bill passed by the Lok Sabha in 1968, the main focus of the Bill was redressal of public grievances against the
Administration. But now this purpose has been lost. A complete go-by has been given to complaints of
maladministration. This aspect of the Lokpal’s functioning has now been given a complete go-by. Emphasis in the
Bill has come to be laid on corruption in administration. The Lokpal has been confined to investigate complaints
concerning a public functionary committing a Corrupt Act. The term public functionary means the Prime Minister, a
Central Minister and members of Parliament.
43.7.10 The Lokpal and Lokayuktas Bill, 2011
In pursuance of the efforts to constitute a mechanism for dealing with complaints on corruption against public
functionaries including in high places, the Government constituted a Joint Drafting Committee on 8 April 2011 to
draft a Lokpal Bill. Government introduced a revised Bill namely ‘Lokpal Bill 2011’ in the Lok Sabha on 4 August
2011. This Bill was referred to the Department-Related Parliamentary Standing Committee on Personnel, Public
Grievances, Law and Justice on the 8 August 2011 for examination and report and this was followed by discussions
in both the houses of Parliament and report and this was followed by discussions in both the houses on Parliament
on 27 August 2011. The Department Related Parliamentary Standing Committee after extensive discussion with all
the concerned Stakeholders suggested major amendments as regards the scope and content of the Bill introduced
in August 2011.
Upon consideration of the recommendations of the Standing Committee it was decided to withdraw the Lokpal Bill
2011 pending in Lok Sabha and to introduce a thoroughly revised bill for carrying out the necessary amendments to
the Constitution for the setting up of Lokpal and Lokayuktas. The Lokpal and Lokayuktas Bill, 2011 which was
reintroduced in the Lok Sabha on 22 December 2011 is a proposed anti-corruption law in India which seeks to
provide for the establishment of a body of Lokpal for the Union and Lokayukta for States to inquire into allegations
of corruption against certain public functionaries and for matters connected therewith or incidental thereto.’ This Bill
is pending before the Rajya Sabha.
43.7.11 Special Courts Act, 1979
No regular mechanism has been put in place so far for investigation into charges of corruption levied against
Central Ministers from time to time.
Efforts were made during the Janata regime (1977-79) to strengthen the machinery to try charges of misuse of
power by the holders of high public or political offices and for this purpose, the Special Courts Act, 1979, was
enacted by Parliament. Its purpose was to institute a machinery for the expeditious trial of such persons for abuse
of power. Originally, the Bill was designed to try persons holding high offices during the emergency (1975-77) for
misuse of power. The Bill was described by K. Iyer J. of the Supreme Court as follows:92
“... this measure is the embryonic expression of a necessitous legislative project, which, if full-fledged, will work a relentless
breakthrough towards catching, through the compulsive criminal process, the higher inhabitants of Indian public and
political decks, who have, in practice, remained ‘untouchable’ and ‘unapproachable’ to the rule of law”.
At the discussion stage in Parliament, the Bill was converted into a permanent measure. In its preamble, the Act
stated the lofty ideal that “all powers being a trust, and holders of high public or political offices are accountable for
the exercise of their powers”, “it is the constitutional legal and moral obligation of the state to prosecute persons
involved in the said offences”.
Provisions were made for special courts for the reason that ordinary criminal courts due to congestion of work and
other reasons could not bring the prosecutions to a speedy termination, and that it was imperative for the efficient
functioning of parliamentary democracy and constitutional institutions that the commission of offences by persons
holding high public or political offences in the country be judicially determined with the utmost dispatch.
The Act provided for the creation of special courts. Such a court was to consist of a sitting Judge of a High Court
nominated by the Chief Justice of the High Court. When the Central Government made a declaration that it was of
the opinion that there was prima facie evidence of the commission of an offence alleged to have been committed by
a person holding high public or political office in India, a prosecution in respect of such offence was to be instituted
in a special court. The court was to follow the procedure prescribed for the trial of warrant cases before a
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magistrate. An appeal from the special court’s decision lay as of right to the Supreme Court both on facts and on
law. The purpose of the Act was thus to provide a machinery for trial of cases of misuse and abuse of powers by
high functionaries of the state.
The court though called a special court was not any kind of star chamber. It was an ordinary court following the
ordinary criminal procedure with a right of appeal to the Supreme Court. The whole idea was to expedite trial but
not short circuiting of procedures or rules of evidence. Twice the question of the validity of the Act came before the
Supreme Court. First, in an advisory opinion, the Supreme Court upheld the constitutional validity of the original Bill
subject to some modifications being made therein.93 The Act enacted with these modifications again came for
scrutiny before the Supreme Court in State (Delhi Administration) v V.C. Shukla.94 The main point of contention was
that the Bill designed for trial of emergency offences was now made into a permanent statute and thus offended Art.
14 for lack of classification. Upholding the validity of the Act, the Supreme Court stated that the main object of the
Act was to provide for the speedy trial of certain classes of offences committed by persons holding high public or
political offices as a trust. Such persons were placed in a separate class. For maintaining democracy, administrative
efficiency and purity, it is necessary that, when such persons commit serious abuse of power and are guilty of a
breach of trust reposed in them, they form a special class of offenders. Quick disposal of such cases is necessary,
for if such cases are allowed to have their normal, leisurely, span before normal courts, then the whole purpose in
launching them may be frustrated. The term ‘high public or political office’ is not vague; it bears a clear connotation
as it means persons holding top positions wielding large powers.
The Act was a wholesome piece of legislation. Some such machinery is needed for the offences sought to be
covered by the Special Courts Act were those which would not be caught by the Prevention of Corruption Act, e.g.
relating to abuse or misuse of power.95 But, because of political considerations, the Act was repealed in 1980.
Lokpal Bill is therefore to be commended as it seeks to put in place a machinery for probing into charges of
corruption against Central Ministers. But it needs to be emphasized that while fight against corruption is indeed
important, the function of redressal of grievances of the people against the Administration is no less important.
People suffer both from administrative action as well as inaction. The amount of public interest litigation coming
before the Supreme Court and the High Courts is indicative of the need to install a mechanism for redressal of
individual grievances against the Administration. As early as 1967, the Administrative Reforms Commission
suggested the creation of such an institution. A democratic polity cannot afford to ignore this significant aspect of
administrative responsibility to the people.
As stated above, the primary motivation in the Scandinavian and Common-law countries for having the
Ombudsman system has been redressal of individual grievances against the Administration. Although these
countries have a much higher standard of administration than India, and although there was no public demand for it,
it was still thought prudent to have an Ombudsman to remove people’s grievances against the Administration.
Accordingly, it is absolutely necessary to install in India a grievance redressal mechanism. This will go a long way to
promote rule of law, administration according to law, transparency in administration and, above all, good
governance in the country. It will instill a sense of responsibility and accountability in the Indian bureaucracy which
is lacking at present.
43.7.12 Proposal for Litigation Ombudsman
The idea of an Ombudsman was again been revived by the Law Commission of India.96 The Commission argued as
follows: Government is a party in a large number of cases coming before the courts at the present moment. Parties
approach the courts for redress against government acts which constitute an infringement of their legal rights. In
addition, parties also seek redress from the courts in cases of ‘maladministration’, whether a legal right may or may
not be infringed. Official acts falling in this category “lie on the outer confines of ‘illegality’.” Some of these acts may
not be legal wrongs and border rather on “impropriety”, outside the region of ‘illegal acts’. “Official apathy,
oppression, unimaginativeness, lethargy or misunderstanding— these and similar factors are responsible for the
parties seeking redress in courts”. In many instances, the motivation of the parties to go to courts is “to give vent to
their sense of injustice, than to obtain legal relief as such”.
The Commission thus felt that there was need for evolving some mechanism whereby the pressure on the courts
could be relieved and grievances of the people of a legal nature redressed quickly and cheaply. “Such a
mechanism would advance the cause of justice, and also check the influx of cases into the higher courts”. Litigation
causes considerable expense of time, money and labour in all quarters. There should be some apparatus so as to
avoid the possibility of unnecessary litigation against the government.
With this end in view, the Commission suggested the creation of an office of Litigation Ombudsman to whom
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43.7 The Scheme
prospective litigants may (not must) have recourse for their grievances of a justiciable character. The point to note
was that the proposed office was to deal with cases of a legal nature, not with cases of maladministration— cases
of illegality rather than of impropriety as stated above. The reason for this approach was that statistically cases of
illegality are larger in number and their number was bound to increase with the passage of time. Such an office
should be created by enacting a law by each government, State as well as Central, for such of the ministries as
might be specified by the concerned government.
The Litigation Commissioner should be a retired High Court Judge appointed in consultation with the Chief Justice
of India at the Centre, and the Chief Justice of the High Court in the State. He should enjoy security of tenure (like a
High Court Judge) for three years. He could have a number of deputies if necessary. A member of the public
seeking to initiate writ proceedings against the government could approach the Ombudsman through a letter with
his grievance. No formal application for the purpose should be required. The Ombudsman could then make his
recommendation regarding the matter within two months and communicate the same in writing both to the applicant
and the government. The Litigation Ombudsman should have power to make a recommendation with respect to any
decision, act or omission of the government or its officer, if he is satisfied that the same:
(a) was contrary to law; or

(b) was unreasonable, unjust, oppressive, or improperly discriminatory, or was in pursuance of a rule of law or
a provision of any enactment or a practice which itself is unreasonable, unjust, oppressive, or improperly
discriminatory, wherein in the circumstances legal redress could have been claimed.
(c) was based wholly or partly on a mistake of law: or
(d) was wrong in law; or
(e) involved in the exercise of a discretionary power for an improper purpose, or irrelevant grounds, or by
taking irrelevant considerations into account, or omitted to give reasons where reasons should have been
given for the decision.
The Litigation Ombudsman, in his discretion, could refuse or cease to investigate a grievance if—(a) it is trivial,
frivolous or vexatious or is not made in good faith; or (b) the facts alleged show no legal cause of action and no
impropriety of the nature mentioned above. The Litigation Ombudsman would present an annual report to the
concerned legislature. The government in its annual report was to state the action taken on the preceding year’s
report of the Ombudsman. The above scheme was not to apply to a State where an Ombudsman appointed under
a State enactment would be functioning.
The Commission does not seek to make it compulsory for a citizen (seeking to sue the government) to resort to the
Litigation Ombudsman as a pre-requisite to the initiation of legal proceedings against the government. “The object
of the recommendation is only to provide to the citizen a forum from which he may, if so advised, first seek relief.
There should be nothing mandatory in the scheme, for the citizen”. The Commission hoped that the proposed
functionary will be able to furnish “Prompt, competent and honest advice” to the government on matters likely to
lead to litigation. The Commission hoped that if the recommendation was carried out in its proper spirit, and not in a
pedantic and bureaucratic manner it would “advance the cause of substantive justice, improve the image of the
Government and, to some extent, reduce congestion in the courts”.
The Commission realised that while a majority of cases reaching the proposed Ombudsman would be such as raise
“justiciable issues”, some cases might be of the other type as well—bordering on impropriety, rather than illegality.
The Commission suggested that the government should set up some other administrative machinery for the
purpose of dealing with cases of impropriety. As regards the State Ombudsmen, these could be adapted to deal
with cases envisaged here. The Commission feared that to have two functionaries in a State—a Litigation
Ombudsman as envisaged here and an Ombudsman (Lokayukta) might lead to overlapping of functions and
confusion to the citizen. The proposed legislation, the Commission suggested, be enacted by Parliament. Such a
law would fall, in part, within the entries in the Seventh Schedule to the Constitution relating to “Civil Procedure” and
“Administration of justice” and, in part, within the entries relating to the substantive subjects to which particular
litigation may relate.
The proposal made by the Law Commission was very welcome and could, if implemented, lead to expeditious
justice, relieving pressure on the courts and improving the grievance redressal machinery against the
Administration. But, as the Commission itself accepted, its proposal did not cover the entire gamut of complaints
against the Administration. Complaints raising non-justiciable issues may be as important, if not more important, as
the complaints raising justiciable issues, but the Commission’s proposal left such an important segment of
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43.7 The Scheme
complaints out of the purview of the proposed Ombudsman. However, the Commission’s proposal was not
implemented.

82 On Government Undertakings, see, infra, Chapter XLVI.
83 On “Official Secrecy”, see, Chapter XLV, infra.
84 For comments on this Bill, see, M.P. Jain, Lokpal: Ombudsman in India, 158-194.
85 For discussion on “Self-Incrimination”, see, Jain, Indian Constitutional Law.
86 The Bill as originally introduced in Parliament had included a State Chief Minister within the purview of the Lokpal.
However, the Joint Committee of the Parliament recommended the deletion of this provision as the Chief Minister was
primarily answerable to his Legislative Assembly. An amendment moved by the government on 10 May 1979 restored
the original position. For details of the Bill, see, S.L. Verma, Lokpal, Bureaucracy after the Common Man, (1978) 24
Indian Jl. of Public Adm., 1130-58, 1245-58; Rajeev Dhawan, A Comment on the Lokpal Bill, 1977, 19 J.I.L.I. 257
(1977).
87 In the original Bill, the Prime Minister was the competent authority in respect of complaints against himself. The Joint
Committee substituted the Speaker as the competent authority in this matter. The amendment moved by the
government made the Prime Minister as the competent authority, except that for a few matters the competent authority
in respect of a complaint against the Prime Minister was the Lok Sabha. The competent authority for the Chief Minister
as suggested by the government amendment was the Chief Minister himself. Further, under the aforesaid government
amendment, any report of the Lokpal in respect of the Chief Minister was to be forwarded to the Governor of the State
concerned who was to lay the same before the Legislature. The Chief Minister was also required to place before his
Council of Ministers a copy of the complaint against himself received from the Lokpal or any report of the Lokpal
concerning the Chief Minister.
88 Supra.
90 Wade, Adm. Law, 464 (1977).
91 For discussion on this Act, see, Chapter XLV, infra.
92 In re, the Special Courts Bill, 1978, AIR 1979 SC 478, 520 : (1979) 1 SCC 380.
93 In re, the Special Courts Bill, 1978, AIR 1979 SC 478, 520 : (1979) 1 SCC 380.
94 State (Delhi Administration) v V.C. Shukla, AIR 1980 SC 1382 : 1980 CrLJ 945 : (1980) 2 SCC 665.
95 See, Chapter XLIV, infra.
96 Law Commission of India: 100th Report on Litigation by and against the Government, Chapter 3.
End of Document
43.8 State Lokayukatas


While the idea of establishing Ombudsman at the Central level has proved abortive and jinxed so far, several States
have adopted the system. These States are: Orissa,97 Maharashtra,98 Rajasthan,99 Bihar,100 Uttar Pradesh,101
Andhra Pradesh, Karnataka,102 Madhya Pradesh,103 Gujarat,104 Himachal Pradesh and Delhi.
The State Acts do not follow any uniform pattern. In some of the States, the task assigned to the Lokayuktas is to
look into cases of corruption as well as maladministration. These Acts follow the model of the Central Bill of 1971. In
other States, the task assigned to the Lokayuktas is confined only to allegations of corruption involving Ministers
(other than the Chief Minister) and government servants.
To narrate briefly the main features of the system in Andhra Pradesh,105 the Governor appoints the Lokayukta after
consultation with the Chief Justice. Only a Judge or a retired Chief Justice of a High Court can be appointed to this
office. The Governor also appoints one or more Upa-Lokayukta from amongst the district judges. The term of office
for each is five years but any of them can be removed from office by the Governor for misbehaviour or incapacity
after an inquiry by a Supreme Court Judge or the Chief Justice of a High Court.
The function of the Lokayukta is to investigate any action taken by, or with the approval of, or at the behest of—(a)
a Minister or a Secretary; (b) a member of the State Legislature; or (c) a mayor of a municipal corporation. All other
public servants in the States fall under the purview of the Upa-Lokayukta. The Chief Minister does not come within
the purview of the Lokayukta.
The accent of the system is on investigation of ‘allegations’. i.e. complaints of corruption by public servants and not
on maladministration. The competent authority is bound to take action on the report of the Lokayukta or Upa-
Lokayukta within three months.
The Karnataka system106 closely follows the Andhra Pradesh model but with some differences. In Karnataka, the
Chief Minister falls within the purview of the Lokayukta. In appointing him, the Governor is to have more pervasive
consultation, i.e., he has to consult the Chief Justice of the High Court, the Chairman of the Legislative Council, the
Speaker of the Assembly and the leaders of Opposition in both the Council and the Assembly. Like Andhra
Pradesh, in Karnataka as well, provision is made for appointment of Upa-lokayuktas and only allegations (i.e.
charges of corruption) are to be investigated by the Lokayukta and not those of maladministration.
In both the Acts, the statutory corporation owned or controlled by the government, government companies,
universities and even co-operative societies under the control of the government fall within the purview of the Upa-
lokayukta.
Under the Delhi Lokayukta and Up-Lokayukta Act, 1995, the Lokayukta takes cognizance of “allegations” only.
Allegation is defined (as) that a public functionary—
(i) has failed to act in accordance with the norms of integrity and conduct “which ought to be followed by the
public functionaries or the class to which he belongs”;
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(ii) has abused or misused his position to obtain any gain or favour to himself or to any other person or to
cause loss or undue harm or hardship to any other person;
(iii) was actuated in the discharge of his functions as such public functionary by improper or corrupt motives or
personal interest;
(iv) is or has at any time during the period of his office been in possession of pecuniary resources or property
disproportionate to his known resources of income…
‘Public functionary’ has been defined by section 2(m) as “as person who is or has been at any time—
(i) Chief Minister or a Minister;

(ii) a member of the State Legislative Assembly (but not Speaker or Dy. Speaker);
(iii) a person having the rank of a Minister;
(iv) chairman, vice-chairman, managing director or a member of the board of directors of a co-operative society
subject to the control of government, a government company, local authority, corporation or a member of
the municipal corporation.
In an interesting case Ram Nagina Singh v S.V. Sohni,10710 the appointment of the Loktyukta in Bihar was
challenged through a writ petition for quo warranto under Art. 226. Dismissing the petition, the High Court made the
important point that when a statute confers power on the Governor to appoint the Lokayukta, the Governor is to
exercise the power on the aid and advice of the Council of Ministers.
The fact remains however that the Lokayukata (Ombudsman) institution in the states has not been very successful
so far. The reason is that each State Government seeks to install the system for cosmetic purposes, as a populist
measure, to give a sense of confidence to the public that corruption is being fought or that one can have redress
against maladministration, while, in practice, the government does not take the institution seriously. Its reports are
not implemented. The reasons are primarily political; the ruling party does not wish to mar its image by accepting
the fact that there has been any corruption or maladministration while it is in office. Examples abound when no
action has been taken even when the Lokayuktas have revealed specific instances of corruption or
maladministration.108
Information about the working of the State Ombudsmen is scarce. The Ombudsmen do not inform the public about
their functioning. Their annual reports are not released regularly. Some Ombudsmen have criticised their
governments for delays in placing the reports before the Legislatures. The lack of public information indicates that
the Lokayuktas have encountered difficulties which have reduced their utility in remedying individual grievances.
They lack adequate resources. They have no investigatory staff of their own and have to rely on public agencies to
investigate complaints. The agencies shuffle the task around administrative units, or put a low priority on furnishing
information. Many pending cases are carried over from year to year.
Furthermore, the Lokayuktas are often inaccessible to the public. Complainants lose heart or become disinterested
or abandon proceedings as soon as they are asked to file an affidavit or to visit the Lokayuktas office to record the
complaint or attend a hearing. The Maharashtra Ombudsman remarked in his first annual report (1972-73) that this
was particularly hard on the rural poor. He also referred to jurisdictional problems which in effect give police
immunity from investigation and place the execution of public contracts beyond review. Another serious limitation
has been the requirement that complainants exhaust other avenues of redress even if, in reality, those avenues are
purely theoretical.
Although for political reasons, Ombudsman type institution is sought to be created in the States, basically, the
Executive does not welcome the idea of Ombudsman; it is hostile or apathetic to the institution, and tries its best to
make it an effete institution. The government seeks to appoint pliable persons as Ombudsmen.109 Their
recommendations are not acted upon. In July 1976, the Maharashtra lokayukta found two ministers guilty of
malpractice, but the ministers leveled a countercharge against the lokayukta himself who incidentally was the ex-
Chief Justice of the Bombay High Court.110
The Bihar Government tried to prevent an investigation into the charge against a minister, and ultimately the
appointment of the lokayukta itself was challenged (though unsuccessfully) in the Patna High Court.111 Although the
ostensible aim of the legislation is to enable the lokayukta to probe charges of corruption against ministers, the
statutory provisions are drafted more to hide than to reveal. For example, under the Orissa Act, once a charge
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against a minister is made, there is to be no public hearing; the proceedings are to be held in camera: no lawyer is
allowed to argue and only the Lokpal decides the case. Section 10(1) says:
“Every such investigation shall be conducted in private and in particular, the identity of the complainant and the public
servants affected by the investigation shall not be disclosed to the public or the press, whether before, during or after the
investigation.”
Such provisions do not inspire public confidence that there will be impartial inquiry into allegations of corruption
against the ministers. Once a charge of corruption is made, everything is shrouded in secrecy. Perhaps, because of
the inaccessibility or executive opposition, the number of complaints to the Ombudsmen has been small, given the
large population of the States and frequent contact between public agencies and residents. Although Uttar Pradesh
is the most heavily populated State, the Ombudsman there receives the lowest number of complaints, less than two
hundred in 1979 and less than one hundred in 1978. Other Ombudsmen have not fared much better. The
Rajasthan Ombudsman has accepted less than one-third of the complaints as being within his jurisdiction, and of
the 494 complaints he accepted in 1973-74, he only disposed of 110; he had a somewhat better record in 1975-76,
of the 568 complaints, 213 were disposed of. In Maharashtra, between 1972 and 1975, an average of 840
complaints a year were received, of which seven hundred were disposed of (including those beyond jurisdiction or
not investigated). In Bihar, in recent years about nineteen hundred complaints have been received annually, and
2,250 have been disposed of as the office works off a sizable backlog, but these figures, are exaggerated by its
practice of recording complaints on which no action is taken.
Some aspects of the working of the Lokayukta in Maharashtra have been brought to light in Vishwasrao v
Lokayukta, Maharashtra.112 Though the case refers specifically to Maharashtra, yet it is of general interest as the
legislation pertaining to Lokayukta in the States is mostly common, using common ideas and phraseology.
The Maharashtra Lokayukta functions under the Maharashtra Lokayukta and Upa-Lokayuktas Act, 1971. He has
broad powers as he has jurisdiction to take cognizance of both—(i) allegations of misconduct among civil servants;
and (ii) grievances arising out of maladministration. The High Court has pointed out that, in a given case, an action
may constitute both a grievance and an allegation. In some cases, the action may amount to allegation and its
consequences might result in grievance. The overlap is inevitable as in one case the definition emphasizes the
consequence of an act, in the other the motive for it.
The petitioner was appointed as honorary pediatrician in a District hospital through a properly constituted selection
board. Thereafter, his appointment was suspended because of an interim stay granted by the Lokayukta on a
complaint filed before him by one of the candidates for the post. The petitioner through a writ petition in the Bombay
High Court under article 226 raised the question whether the Lokayukta had any jurisdiction to review his
appointment. The Lokayukta had taken the view that he could entertain and investigate the matter. The interesting
thing to note in the case is that the Government of Maharashtra supported the petitioner in questioning the
jurisdiction of the Lokayukta in the matter. The Lokayukta was unrepresented before the High Court, as he could
not engage a counsel to represent his case because there was no budgetary provision for the purpose. The High
Court itself had to request a lawyer to appear on behalf of the Lokayukta as amicus curiae. On this aspect of the
matter, the court observed:113
“We are pained to observe that this is wholly an unsatisfactory state of affairs. The State Government is obliged to treat the
Lokayukta with dignity and decorum. As a matter of fact, the State Government should have made proper arrangements for
its representation, if it thought that it cannot support the order passed by him”.
The main question involved in the instant case was whether the jurisdiction of the Ombudsman could be subjected
to judicial review.
The contention of the petitioner was three fold: One, the grievance of the complainant related to a matter of
appointment and so was wholly barred by section 8(1). Two, an alternate remedy by way of a writ petition was
available to the complainant and so the Lokayukta could not entertain the complaint under section 8(b). Three, the
Lokayukta had no power to grant stay of implementation of the order of appointment.
The High Court rejected all the contentions. The court explained the function of the Lokayukta as follows:
“From the provisions of the Act it is quite clear that the Act empowers the Lokayukta to carry on the investigation into a
complaint and then make a final report on the basis of the finding, recorded after the investigation. The final report of the
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Lokayukta is recommendatory in nature. Admittedly, under the Act the Lokayukta has no jurisdiction to pass a binding
order, which will operate on its own force.”
According to section 8(1)(a) of the Act read with item (d) in the Third Schedule, the Lokayukta is not to conduct any
investigation in case of a “complaint involving a grievance” with respect to appointments. Under section 8(1)(b), a
grievance is barred if the complainant has or had any remedy by way of proceedings before any tribunal or court of
law. The court however ruled that the complaint covered the area and field of ‘allegation’ as well as ‘grievance’, and,
therefore, the complaint was not barred under sections 8(1)(a) and 8(1)(b), as under these provisions only
‘grievances’ were barred.
Apart from it, the High Court also took the view that the remedy by way of a writ petition would not be a bar to
presenting a grievance to the Lokayukta. As the court explained, there is a difference between a ‘direct’ remedy and
a ‘collateral’ remedy against an administrative and quasi-judicial action. A remedy of statutory appeal or revision is
“direct and vertical remedy”. It is a re-hearing in which the merits of the impugned decision can be considered. But a
suit or writ petition attacking the validity of the decision are ‘collateral’ attacks on it where not the merits but its
validity or legality is considered. Collateral attack on a decision by way of a suit is always available. Therefore, if the
interpretation as proposed by the petitioner is accepted, then there will be no occasion for making any ‘grievance’
under the Act. Further, even when an alternative remedy is available, the Lokayukta has authority [proviso to
section 8(1)(b)] to conduct an investigation if he is satisfied that the complainant could not or cannot, for sufficient
cause, have recourse to such remedy. Further, said the court, once it is found that a complaint covers both the
areas, viz. that of an ‘allegation’ and a ‘grievance’ and is overlapping, then it cannot be said that only because a
part of it falls within the area of grievance, the Lokayukta would have no jurisdiction to entertain the complaint. That
would amount to pre-judging the issue. The court explained the position further as follows:
“When the Lokayukta decides to investigate he is merely commencing the process, after satisfying himself, prima facie, that
the complaint raises issues within the ambit of his powers. It is only after investigation, he can come to a definite finding. In
the cases where the complaint is overlapping, if he is prevented from investigating it, the whole purpose of the Act will be
set at naught. Therefore, taking any view of the matter, in the present case, it cannot be said that the Lokayukta had
assumed jurisdiction which was not vested in him by law.”
In the instant case, the Lokayukta had decided that he had jurisdiction to entertain the complaint. The High Court
commenting on this finding said: “This finding recorded by the Lokayukta cannot be said to be unreasonable or
perverse so as to call for any interference in the extraordinary writ jurisdiction of this court under article 226 of the
Constitution”.
As regards the third contention, the court ruled that the power to make an interim recommendation in consonance
with this power to make a final report must be implied in the Lokayukta. Otherwise, the very power to investigate,
which may result in a recommendation, would become barren or futile if, in the meanwhile, administrative action is
taken or implemented. In that case the report or the recommendation made by the Lokayukta will amount to a post-
mortem report. The court interpreted the Rules made under the Act to hold that the Lokayukta is empowered to
make an interim recommendation in time with in his power to make a final recommendation.
The respondent raised the objection that the petitioner had no locus standi to challenge the order of the Lokayukta.
The court explained the position as follows: The complaint contemplated under the Act is against a public servant
and the beneficiary or a third party does not come into the picture at all. “The lis, if any, is between the complainant
and the public servant”. The final recommendation of the Lokayukta can also be qua the act of the public servant
and it has nothing to do with the beneficiary.
The High Court stated its general attitude towards writ petitions seeking to prohibit investigations by the Lokayukta
in administrative decisions in the following words:
“Generally the court will not arrest or prevent investigation under the Act. More so at the instance of the beneficiary of a
suspect administrative action as it can only have the result of his continuing to enjoy the benefits, without an investigation
as to whether it was improperly motivated or not. Justice does not lie in favour of such a party. So far as public servants are
concerned, they are expected to participate in the inquiry or investigation and place before the Lokayukta all the relevant
materials… They are not expected to raise technical objections to shield maladministration. Therefore, normally this court
will not entertain any challenge so as to throttle the investigation itself. More so, at the instance of third party.”
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As the High Court emphasized, powers have been conferred on the Lokayukta “for the purpose of purity of
administration”. If Lokayukta is prevented from investigating a complaint at the instance of a third party, then the
whole object of the Act will be frustrated.
But, in the instant case, the court conceded that the petitioner had standing to file the writ petition as the Lokayukta
had issued her a notice of hearing on the question of his jurisdiction and heard her views on the question.
In the instant case, the writ petition was dismissed. It is obvious that this pronouncement of the High Court will go a
long way to strengthen the institution of the Lokayukta in the States. As the High Court emphasized in its judgment:
“The provisions of such an enactment, which is enacted for the eradication of the evil of corruption and maladministration
should be liberally construed so as to advance the remedy.”114
Some aspects of the Karnataka Lokayukta Act, 1984, has been considered by the Karnataka High Court in
Hottepaksha Rangaswamy v Chief Secretary, Government of Karnataka.115 The Act extends to both “grievances”
and “allegations”. Action can be initiated against a public servant when guilty of corruption, favouritism, nepotism or
lack of integrity.
Some stray matters coming before the State Lokayuktas may be mentioned here. The Lokayukta of Madhya
Pradesh has observed about a particular ex-Minister that he is unfit for holding any public office. The Lokayukta
found that he had flouted all the rules in appointing his son-in-law to a government post. The Lokayukta has
declared that a person like the ex-Minister is not fit for a responsible post like minister and he should not be
considered for any public office in future.116
In the same report, the Lokayukta has lamented that the State Government is not taking effective punitive action
against officials found guilty by his establishment. The Lokayukta has said very rightly that if a corrupt public servant
is allowed to function after a simple punishment or allowed to go scot-free, it not only encourages him to continue
corrupt deeds but also turns him into an enemy of the democratic system. Moreover, it also undermines the
credibility of the Lokayukta in the public eyes. He has cited several instances where government officials have not
co-operated with his establishment in probing corrupt officials. Officials take a long time in sending replies to
queries sent by the Lokayukta. At times, there is a ‘deliberate delay’ by government officials in conducting inquiries
so that the persons involved retire from service.
The Andhra Pradesh Lokayukta has also held an ex-Minister guilty of accepting bribe and held him “unworthy of
holding any responsible position”. The Lokayukta has said that “it would be detrimental to administration if such
persons hold responsible offices”, and has recommended that the person concerned be debarred from holding any
elective post till such time as the law permits.117
In some States, the office of the Lokayukta remains vacant for years. The most typical case is that of Bihar where
no Lokayukta has been appointed for years. On 14 January 1999, the Supreme Court issued a notice to the Bihar
Government asking it to explain why Bihar did not have a Lokayukta for more than three years. According to the
press report, the reason for not appointing the Lokayukta was that the State Government was not in a position to
ensure the appointment of a nominee of its choice to the post. The name of the incumbent needs to be cleared by a
committee consisting of the Chief Minister, Leader of the Opposition and the Chief Justice of the Patna High Court
and the Government is not in a position to secure clearance for its chosen person for the office.
The matter came before the Supreme Court on a PIL writ petition. The Court also asked 15 other States to file
affidavits specifying the steps taken up by them to set up/appoint Lokayuktas.118
On the whole the Indian record so far has not been impressive in respect of the Ombudsman institution.119 Given
the large population, ubiquitous governmental regulation of private activity, sprawling Administration, and general
belief in widespread corruption and maladministration, the number of complaints has been very low. The reasons
are obvious—illiteracy, lack of knowledge, inaccessibility, fear of offending authority, and a general feeling that
nothing will come out of Ombudsman’s intervention. The Executive has been and remains hostile to the
Ombudsman idea. Public agencies do not exhibit good-will or co-operation towards him. The Ombudsman cannot
achieve much in the face of Administration’s hostility and apathy. In the absence of deep-seated democratic values
in the policy and public administration, the Ombudsman idea has resulted in merely a symbolic institution rather
than a real protector of the people.
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If the institution has to have any semblance of success in the States, it is essential to fulfil at least the following four
minimum conditions:
(a) there should be a model law for the States to follow; at present there is too much variety in the State laws;
(b) some autonomy will have to be granted to the Ombudsman through a constitutional provision on the lines
of the Election Commission;
(c) selection of a proper person as Ombudsman would have to be ensured and necessary provisions for the
purpose need to be drafted. The final decision as to whom to appoint cannot be left solely in the hands of
the State Government of the day;
(d) the Ombudsman institution should be exclusively confined to removal of people’s grievances; charges of
corruption against administrators will have to be probed by some other high powered body; it cannot
inspire any confidence if allegations of corruption against the ministers are probed into by one appointed by
the Executive itself.
In July, 1999, Justice Mahendra Bhushan Sharma, former Lokayukta, expressed the view that the Rajasthan
Government should wound up the institution of Lokayukta. The institution served no purpose unless teeth were
given to it including powers to initiate disciplinary action against corrupt bureaucrats and make Lokayukta into an
independent investigating agency to hold inquiries. Justice Sharma maintained that none of the recommendations
made by him as Lokayukta was accepted by the government. He has submitted about 70 to 80 reports to the
government during his tenure, but no concrete action was taken thereon. This reflects the uselessness of the
institution.
A comparative study of the implementation of the States Acts providing constitution of Anti-Corruption Bodies
headed by Lokayuktas and Up-Lokayuktas demonstrates that the institutions are being tried to be politicized.
The power of appointment to the bodies virtually vests in the Chief Minister, who is the Head of the Cabinet and the
Governor, as the formal appointing authority, has to act on the aid and advice of the Cabinet in accordance with
article 163 of the Constitution in making a formal selection and appointment.
The appointment procedure provided in the State Acts requires consultation with the Chief Justice of the High Court
of the State and the Leader of the opposition. But the procedure of selection being neither objective nor
transparent, only such persons of the higher judiciary are considered, who are seen as favourable to the
Government of the day and are not likely to tarnish the image of the ruling party in power.
In order to maintain the independence of the institution, the Supreme Court in the case of Justice K.P. Mahopatra v
R.C. Naik,120 held that in the consultative process of selection for the head of the institution, the opinion of the Chief
Justice of the State would have primacy and other political members in the collegium for selection, would have only
an effective participatory role, limited to extending active assistance in selecting an independent, suitable and
competent person to the office of Lokayukta.
In the State of Gujarat, as the then Chief Minister for a long period of time had not made any appointment to the
office of Lokayukta, the Governor of the State took initiative and recommended a Retired Judge for appointment to
the office. The selection made by the Governor for appointment of Lokayukta of Gujarat was challenged in the High
Court where the two Judges on the Division Bench differed on the legal issue of permissible role of the Governor in
making selection and appointment. The difference of opinion between the two Judges was referred to the third
Judge, who agreed with the opinion of one of the members of the Division Bench, that in the circumstances, the
Governor could take initiative and make the selection and recommend appointment.
The matter was carried by the State of Gujarat to the Supreme Court. The Supreme Court121 also upheld the
majority view of the High Court of Gujarat that the State having shown apathy in filling the vacant post of Lokayukta,
it was legally permissible for the Governor to initiate selection process and recommend appointment. In order to
nullify the decision of the Supreme Court, the State of Gujarat, through its legislature, went to the extent of
amending the Act and based thereon, appointed a Retired High Court Judge of its choice as Lokayukta of the State.
In the Madhya Pradesh Act, in accordance with section 3, Lokayukta is to be appointed by the Governor, meaning
on the aid and advice of the State Cabinet headed by Chief Minister, after consultation with Chief Justice of the
High Court of State and the Leader of the Opposition in the Legislative Assembly. The appointment of Lokayukta
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made under section 3 was challenged in the High Court of Madhya Pradesh on the grounds inter alia that no
effective consultation with the Leader of Opposition could take place as she was bedridden for treatment in a
hospital at Indore. The High Court refused to interfere in the appointment made.
At the time, the appointment of Lokayukta was made and upheld by the High Court, as provided in sub-section (1)
of section 5 of the State Act, his tenure was for a fixed period of 6 years from the date of appointment with a bar
imposed by sub-section (5) on appointment for any further period and in any other employment in any other
capacity to any office under the Government of Madhya Pradesh.
As the term of the existing Lokayukta was to expire, by a legislative Act, sub-section (1) of section 5 was amended
by adding a proviso that the existing Lokayukta shall continue to remain in the office for a further period of one year
on expiry of his existing term of 6 years or till the new Lokayukta is appointed although the extended period of
existing Lokayukta shall not exceed for more than one year.
The provision in the un-amended original Act of providing a fixed tenure to Lokayukta, at the time of his initial
appointment, was with an aim to impart greater independence to the holder of the office, which was diluted by
amending the Act and adding a grace period of one year to his tenure. In the extended grace period he was
enabled to entertain new complaints, investigate them and submit final reports in the pending investigations. What
could not be done by executive action was achieved by legislative route.
Even in the extended period of one year, no new Lokayukta was appointed and the existing Lokayukta, just a few
days before his retirement, was consulted for appointment of a sitting Judge of the High Court as Up-Lokayukta. In
accordance with proviso (b) of sub-section (1) of section 3, Up-Lokayukta is to be appointed in consultation with
Lokayukta but where a sitting Judge of a High Court is to be appointed, the Chief Justice of the concerned High
Court has to be consulted. To avoid consultation with the Chief Justice of the High Court, the sitting Judge, as the
proposed appointee, was advised to resign from the office of High Court Judge.
The entire manner and methodology adopted by the Government in not appointing a successor Lokayukta and
appointing a Up-Lokayukta, after seeking his resignation from the office of the High Court, demonstrates how
imperative it has become to evolve an objective, fair and transparent selection process for appointing heads of the
anti-corruption bodies in the States.
Under the Act of the State of Madhya Pradesh, Lokayukta has been conferred with powers to investigate charges of
corruption not only against public servants and bureaucrats but also against Ministers and the Chief Minister
himself, who is given a decisive role in selecting and recommending appointment of Lokayukta and Up-Lokayukta.
The central legislation passed for constituting institutions of Lokpal at the Center and Lokayuktas in the States
continues to remain dormant due to lack of political will. The demand of the people is that the anti-corruption bodies
should be manned by impartial and independent members from judiciary and executive, so that even acts of
corruption in the highest centers of power can be investigated and brought to book. Unfortunately, India has still a
long way to go to set up strong anti-corruption bodies manned by competent, impartial, independent and non-
political persons of character.
The eternal question “who will watch the watchman” still remains unanswered. The decisive role in the
appointments conferred on the persons of political party in power is against principles of natural justice. Persons
who can be subjected to investigation on charges of corruption should not be allowed to have a decisive say in the
selection of the heads of the anti-corruption bodies created by law with the declared aim and object to rid the
country of corruption.
43.8.1 Ombudsman for Local Self-Government Bodies
The State of Kerala has created a very interesting institution, viz. Ombudsman for Local Self Government (LSG)
bodies. The object of the Ombudsman is “to conduct a detailed inquiry regarding any proceedings of the Local Self
Government bodies and the public servants holding office there under concerning corruption, maladministration or
defects in the administration and settle such complaints.”
The authority has been created under the Kerala Panchayat Raj Act, 1994 as amended in 1999. The authority
known as Ombudsman is to consist of seven persons as follows: (1) a person who is or has been a High Court
Judge as chairman; (2) two district judges; (3) two government officials not below the rank of government secretary;
(4) two “honest and respectable” social service workers. Adequate provisions have been made to ensure their
Page 8 of 12
independence and objectivity. Appointments are to be made by the State Governor on the advice of the Chief
Minister.
The institution has been created on the recommendation of the Sen Committee. The committee suggested that
while tribunals would adjudicate upon appeals from decisions taken in exercise of regulatory authority, there should
be an institution “to investigate the field of administrative activity, i.e. to investigate independently complaints from
individuals and groups and even the government relating to defective administration by the local bodies”. In the
words of the committee:122
“Ombudsman can go into the reasonableness of a decision. Ombudsman can follow up complaints which relate to action or
inaction. It can also take up matters relating to internal administration which need not necessarily affect any individual’s
interest. The Ombudsman system goes beyond the judicial process, as, after redressal of a grievance it can choose to
monitor the behaviour of the local authority concerned and it can point out systemic deficiencies and suggest
improvements”.
The Ombudsman system thus lies outside the court system. Its main objectives are two:
(1) redressal of grievances of people against the administration of the LSG bodies;
(2) supervisory to spot systemic deficiencies and suggest improvements.123
There is need for other States to emulate the Kerala System Local bodies which are immediately in contact with the
people and are in very bad shape. Their administration needs to be improved if they have to serve the people well.
The Kerala system may go a long way to improve the administration by local bodies.
43.8.2 Banking Ombudsman
The Banking Ombudsman Scheme is introduced under section 35A of the Banking Regulation Act, 1949 by RBI
with effect from 1995. Presently the Banking Ombudsman Scheme 2006 (As amended upto 1 July 2017) is in
operation. All Scheduled Commercial Banks, Regional Rural Banks and Scheduled Primary Co-operative Banks are
covered under the Scheme. The Banking Ombudsman can receive and consider any complaint relating to the
following deficiency in banking services:
• non-payment or inordinate delay in the payment or collection of cheques, drafts, bills etc.;
• non-acceptance, without sufficient cause, of small denomination notes tendered for any purpose, and for
charging of commission in respect thereof;
• non-acceptance, without sufficient cause, of coins tendered and for charging of commission in respect
thereof;
• non-payment or delay in payment of inward remittances ;
• failure to issue or delay in issue of drafts, pay orders or bankers’ cheques;
• non-adherence to prescribed working hours;
• failure to provide or delay in providing a banking facility (other than loans and advances) promised in
writing by a bank or its direct selling agents;
• delays, non-credit of proceeds to parties' accounts, non-payment of deposit or non-observance of the
Reserve Bank directives, if any, applicable to rate of interest on deposits in any savings, current or other
account maintained with a bank;
• complaints from Non-Resident Indians having accounts in India in relation to their remittances from abroad,
deposits and other bank related matters;
• refusal to open deposit accounts without any valid reason for refusal;
• levying of charges without adequate prior notice to the customer;
• Non-adherence to the instructions of Reserve Bank on ATM/Debit Card and Prepaid Card operations in
India by the bank or its subsidiaries;
• Non-adherence by the bank or its subsidiaries to the instructions of Reserve Bank on credit card
operations;
Page 9 of 12
• Non-adherence to the instructions of Reserve Bank with regard to Mobile Banking/Electronic Banking
service in India by the bank;
• Non-disbursement or delay in disbursement of pension (to the extent the grievance can be attributed to the
action on the part of the bank concerned, but not with regard to its employees);
• Refusal to accept or delay in accepting payment towards taxes, as required by Reserve Bank/Government;
• Refusal to issue or delay in issuing, or failure to service or delay in servicing or redemption of Government
securities;
• Forced closure of deposit accounts without due notice or without sufficient reason;
• Refusal to close or delay in closing the accounts;
• Non-adherence to the fair practices code as adopted by the bank;
• Non-adherence to the provisions of the Code of Bank's Commitments to Customers issued by Banking
Codes and Standards Board of India and as adopted by the bank;
• Non-observance of Reserve Bank guidelines on engagement of recovery agents by banks;
• Non-adherence to Reserve Bank guidelines on para-banking activities like sale of insurance / mutual fund
/other third party investment products by banks;
• Any other matter relating to the violation of the directives issued by the Reserve Bank in relation to banking
or other services.
A customer can also lodge a complaint on the following grounds of deficiency in service with respect to loans and
advances
• non-observance of Reserve Bank Directives on interest rates;

• delays in sanction, disbursement or non-observance of prescribed time schedule for disposal of loan
applications;
• non-acceptance of application for loans without furnishing valid reasons to the applicant; and
• non-adherence to the provisions of the fair practices code for lenders as adopted by the bank or Code of
Bank’s Commitment to Customers, as the case may be;
• non-observance of any other direction or instruction of the Reserve Bank as may be specified by the
Reserve Bank for this purpose from time to time.
• The Banking Ombudsman may also deal with such other matter as may be specified by the Reserve Bank
from time to time.
The amount, if any, to be paid by the bank to the complainant by way of compensation for any loss suffered by the
complainant is limited to the amount arising directly out of the act or omission of the bank or ` 20 lakhs (` Two
Million), whichever is lower. The Banking Ombudsman may award compensation not exceeding ` 1 lakh (` One
Hundred Thousand) to the complainant for mental agony and harassment. The Banking Ombudsman will take into
account the loss of the complainant's time, expenses incurred by the complainant, harassment and mental anguish
suffered by the complainant while passing such award.
If a complaint is not settled by an agreement within a period of one month, the Banking Ombudsman proceeds
further to pass an Award. Before passing an award, the Banking Ombudsman provides reasonable opportunity to
the complainant and the bank, to present their case. It is up to the complainant to accept the award in full and final
settlement of or to reject it. Any person aggrieved by an Award issued under Clause 12 or the decision of the
Banking Ombudsman rejecting the complaint for the reasons specified in sub-clause (d) to (g) of Clause 13 of the
Banking Ombudsman Scheme 2006 (As amended up to 1 July 2017) can approach the Appellate Authority. The
Appellate Authority is vested with a Deputy Governor of the RBI. Other recourse and/or remedies available to
him/her as per the law can also be explored. The bank also has the option to file an appeal before the Appellate
Authority under the Scheme.
One can file the appeal against the award or decision of the Banking Ombudsman rejecting the complaint within 30
days of the date of receipt of the Award, The Appellate Authority may, if he/she is satisfied that the applicant had
Page 10 of 12
sufficient cause for not making an application for appeal within time, also allow a further period not exceeding 30
days.
In DAV Public School v Indian Bank,124 without getting concurrence of the customer, the bank had opened internet
banking facility by linking individual account of principal to the account of the school, after which some person
hacked the customer’s account and withdrew Rs. 25,00,000. The bank was held liable for the mistake by the
ombudsman. The amount not having been paid by the bank, intervention through the State and National
Commission resulted in the same relief with additional relief of damages to the tune of Rs.1 lakh and Rs.10000 as
costs. The Supreme Court also confirmed the decision.
43.8.3 Electricity Ombudsman
The office of the Electricity Ombudsman has been established as per sub-section (6), (7) and 8) of section 42 of the
Electricity Act 2003, which reads as under:
(6) any consumer, who is aggrieved by non-redressal of his grievances by forum for redressal of grievances,
may make a representation for the redressal of his grievance to an authority to be known as Ombudsman
to be appointed or designated by the State Commission.
(7) The Ombudsman shall settle the grievance of the consumer within such time and in such manner as may
be specified by the State Commission.
(8) The provisions of sub-sections (5), (6) and (7) shall be without prejudice to right which the consumer may
have apart from the rights conferred upon him by those sub-section.
Many State electricity boards have created the office of ombudsman under the respective State laws by resort to
these provisions.
43.8.4 Insurance Ombudsman
In exercise of the powers conferred by section 24 of the Insurance Regulatory and Development Authority Act,
1999(41 of 1999) and in supersession of the Redressal of Public Grievances Rules,1998, the Insurance
Ombudsman Rules of 2017 have been published.
The object of these Rules is to resolve all complaints of all personal lines of insurance, group insurance policies,
policies issued to sole proprietorship and micro enterprises on the part of insurance companies and their agents
and intermediaries in a cost effective and impartial manner. These rules shall apply to all insurers and their agents
and intermediaries in respect of complaints of all personal lines of insurance, group insurance policies, policies
issued to sole proprietorship and micro enterprises.
There are at present 17 Insurance Ombudsman in different locations and any person who has a grievance against
an insurer, may himself or through his legal heirs, nominee or assignee, make a complaint in writing to the
Insurance ombudsman within whose territorial jurisdiction the branch or office of the insurer complained against or
the residential address or place of residence of the complainant is located.
The complaint can relate to:
(a) Delay in settlement of claims, beyond the time specified in the regulations, framed under the IRDAI Act,
1999.
(b) Any partial or total repudiation of claims by the Life insurer, General insurer or the Health insurer.
(c) Any dispute about premium paid or payable in terms of insurance policy
(d) Misrepresentation of policy terms and conditions at any time in the policy document or policy contract.
(e) Legal construction of insurance policies in so far as the dispute relates to claim.
(f) Policy servicing related grievances against insurers and their agents and intermediaries.
(g) Issuance of life insurance policy, general insurance policy including health insurance policy which is not in
conformity with the proposal form submitted by the proposer.
(h) Non issuance of insurance policy after receipt of premium in life insurance and general insurance including
health insurance. and
Page 11 of 12
(i) Any other matter resulting from the violation of provisions of the Insurance Act, 1938 or the regulations,
circulars, guidelines or instructions issued by the IRDAI from time to time or the terms and conditions of the
policy contract, in so far as they relate to issues mentioned at clauses (a) to (f).
43.8.4.1 The settlement process & recommendation:
The Ombudsman will act as mediator and
• Arrive at a fair recommendation based on the facts of the dispute.

• If the complainant accepts the full and final settlement, the Ombudsman will inform the company which
should comply with the terms in 15 days.
43.8.4.2 Award:
If a settlement by recommendation does not work, the Ombudsman will:
• Pass an award within 3 months of receiving all the requirements from the complainant and which will be
binding on the insurance company.
43.8.4.3 Once the Award is passed
The Insurer shall comply with the award within 30 days of the receipt of award and intimate the compliance of the
same to the Ombudsman.
97 The Orissa Lokpal and Lokayuktas Act, 1970.

98 The Maharashtra Lokayukta and Upa-Lokayuktas Act, 1971.
99 The Rajasthan Lokayukta and Upa-Lokayuktas Act, l973.
100 The Bihar Lokayukta Act, 1973.
101 The UP Lokayukta and Up-Lokayuktas Act, 1975.
102 The Karnataka Lokayukta Act, 1984.
103 The Madhya Pradesh State Legislature passed the law in 1975.
104 The Gujarat Lokpal and Lokayukta Act, 1975.
105 The AP Lokayukta & Upa-Lokayukta Act, 1983.
106 The Karnataka Lokayukta, 1984.
107 Ram Nagina Singh v S.V. Sohni, AIR 1971 Pat 36.
108 One such typical case has been reported in the press. Several senior officials were allegedly involved in the land grab
scandal in Bhopal unearthed in 1982. The Madhya Pradesh Lokayukta brought out this matter in his report submitted to
the government. He said in his report that the evidence available gave rise to the suspicion that the normal rules for the
allotment of land had been violated by the Revenue Department. He therefore suggested departmental inquiry against
certain officials. But the Madhya Pradesh Government did not take any action in the matter. The Overseas Hindustan
Times, 20 April 1985, p. 11.
109 In March 1984, two public interest writ petitions were filed in the Orissa High Court challenging the validity of the
Lokayukta Act, the manner of appointing the Lokpal as well as his personal integrity. One petition described the
incumbent of the office of Ombudsman as a man in whom the “people do not repose confidence of impartiality”; adding
that he might be biased towards the government. Although a retired High Court Judge, the allegation was that the
government had conferred on him several favours since his retirement from the High Court and such a person could not
independently discharge his duties as the Lokpal. See, India To-day, 15 May 1984, p. 18.
110 R.K. Dhawan in Public Grievances and the Lokpal says about the Maharashtra legislation: “Though the Act created an
impressive authority to deal with maladministration and graft complaints, it proved to be a thoroughly hypocritical
measure. The powers vested in this authority by one section of the Act are so sharply eroded by other provisions, and
the number of listed and unlisted ‘sacred cows’ is so large that the sum total of the entire exercise under the Act worked
out to an easily distinguishable naught.”
Page 12 of 12
111 Ram Nagina Singh v S.V. Sohni, AIR 1971 Pat 36.
112 Vishwasrao v Lokayukta, Maharashtra, AIR 1985 Bom 136.
113 Vishwasrao v Lokayukta, Maharashtra, AIR 1985 Bom 136 at 138 : 1985 Mah LJ 54 : 1985 (1) Bom CR 108.
114 Also see, Balram K. Gupta, A Balance-sheet of State Lokayuktas, 26 JILI 122 (1984).
115 Hottepaksha Rangaswamy v Chief Secretary, Government of Karnataka, AIR 1998 Kant 383.
116 Third Annual Report presented to the Vidhan Sabha on Dec. 10, 1985.
117 India Today, 28 February 1986, p. 28.
118 The Hindustan Times, 13 January 1999, p. 7.
119 The Hindustan Times, 8 July 1999, p. 7.
120 Justice K.P. Mahopatra v R.C. Nayak, AIR 2002 SC 3578 : (2002) 8 SCC 1.
121 State of Gujarat v R.A. Mehta, AIR 2013 SC 693 : (2013) 3 SCC 1.
122 For extracts from this report, see, Thoppil Sreekumar v State of Kerala, AIR 2001 Ker 150-151.
123 The Kerala High Court has declared some aspects of the Act as unconstitutional in Thoppil Sreekumar v State of
Kerala, AIR 2001 Ker 140.
124 DAV Public School v Indian Bank, (2019) 20 SCC 31.
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Date and Time: Thursday 16 February 2023 8:08:00 PM IST

Job Number: 190497524

2. 11.2 Pecuniary Bias

3. 11.3 Personal Bias

4. 11.4 Departmental or Official or Policy Bias

5. 11.5 Bias on Account of Judicial Obstinacy

6. 11.6 Group Decision

7. 11.7 Actual Bias and Apparent Bias

8. 11.8 Initial Recommendation

9. 11.9 Statute May Exclude Bias

10. 11.10 Waiver

11. 11.11 Necessity Excludes Bias

12. 11.12 Postscript

14. CHAPTER XII FAILURE OF NATURAL JUSTICE

15. 12.1 Void/Voidable

17. 12.3 Position in India

18. 12.4 Ultimate Relief

19. 12.5 Additional Grounds not Contained in Original Order

20. 12.6 Curing Failure of Natural Justice at Appellate Stage

21. 12.7 Waiver

23. 12.9 Audi Alteram Partem

24. 47.1 Introductory

25. 47.2 Presentation of Documents in the Court

26. 47.3 Official Secrecy

27. 46.1 Introductory

28. 46.2 Scheme of 1964

29. 46.3 Vineet Narain Versus UOI

30. 46.4 The Central Vigilance Commission Act, 2003

31. 46.5 Central Bureau of Investigation

32. 46.6 Corruption Charges against State Ministers

33. 46.7 The Prevention of Corruption Act, 1988

34. 46.8 Public Servant

35. 46.9 Competent Authority to Grant Sanction

36. 24.1 Introductory

38. 24.3 Position in Britain

39. 24.4 Position in India

40. 24.5 Concluding Observations

41. 25.1 Concept of Proportionality

42. 25.2 Developments in Britain

43. 25.3 Indian View

44. 43.1 Need for Ombudsman

45. 43.2 Ombudsmen in New Zealand

46. 43.3 Ombudsman in Britain

47. 43.4 Australian Ombudsman

48. 43.5 Evaluation of the Institution

49. 43.6 Ombudsman in India

50. 43.7 The Scheme

51. 43.8 State Lokayukatas

CHAPTER XI RULE AGAINST BIAS

The Apex Court, in Sayeedur Rehman v State of Bihar,2 observed:

Explaining the concept of ‘malice in law’, the court observed:

The court recorded its conclusion thus:

Bias may be defined as a pre-conceived opinion or a pre-disposition or pre-determination, to decide a case or an

Lord Brown-Wilkinson at p. 136 of the report33 stated:

Lord Hutton also in Pinochet case34 observed:

(i) No one should be a judge in his own cause; and

CHAPTER XI RULE AGAINST BIAS

11.2 Pecuniary Bias

66 Dimes v Grand Junction Canal, (1852) 3 HLC 759.

CHAPTER XI RULE AGAINST BIAS

11.3 Personal Bias

CHAPTER XI RULE AGAINST BIAS