‘Absolute power corrupts absolutely’. In the presence of broad powers delegated to the executive, which exercises its law making power through subordinate legislation, there are increasing possibilities of arbitrariness and capriciousness. The safeguards exercised to check arbitrariness are exercised at two stages.
Judicial control is exercised at stage of delegation of the rule making power and discretion or at the stage of exercise of that rule making power or discretion.
Control at stage of delegation is exercised through controlling delegation of unfettered or uncontrolled powers. Arbitrary discretion violates doctrine of equality. Article 19(1) guarantees six fundamental rights. Any limitation imposed on it must not be “unreasonable”. Administrative action that infringes fundamental rights have been struck down if they fail the test of reasonability and proportionality[1]. Fundamental rights have often been used as an anvil to test the discretionary powers vested with the executive. Thus, arbitrary, unfettered discretion vested with the executive which is not guided by rules, procedures, principles or policy is inconsistent with Article 14, and is liable to be struck down by the court as infringing Article 14 and 19 of the Indian Constitution. Therefore, courts may declare a statute as ultra vires if there is delegation of unguided discretionary powers and primary legislative powers to the executive.
The correctness of the decision of executive is not open to judicial review. The courts cannot substitute its own decision in place of the executive. The courts can, however, review whether the executive has applied its mind to relevant material or whether its findings are based on wholly extraneous material and grounds. It is the decision making process and not the decision which is open to judicial review. Exercise of decision making must be in accordance with the rule of law.
GROUNDS OF JUDICIAL REVIEW:
FAILURE TO EXERCISE DISCRETION
If the authority abdicates its power or puts fetters on its discretion, or does not assume jurisdiction, it is deemed to have not exercised its jurisdiction and there is ‘non-application of mind’. Where authority acts under dictation, mechanically, or imposes fetters, there is failure of exercise of discretion.
SUB DELEGATION
The maxim delegatus non potest delegate applies to both the quasi-judicial and administrative actions. However, Indian courts have laid down that though quasi-judicial powers cannot be further delegated, whether administrative powers can be delegated or not is necessarily a subject of statutory interpretation. The purpose of delegation of power is that such a power must be exercised by the authority on whom the power is delegated and it must not be delegated to another authority, unless authorised by statute which delegates the rule making power.
However, sub delegation of arbitrary power cannot be made on sub delegate even in cases where statute permits such delegation, expressly or by necessary implication.[2]
FETTERS IN DISCRETION
When a statute gives power to make rules by formulating policies, the authority cannot impose fetters in its discretion by formulating and applying rules rigidly and uniformly to all cases, without having regard to facts of each case.[3] Thus, in the case of Gell versus Taja Noora[4] the court struck down the order of the Commissioner of Police, who was given the discretion to refuse to grant license to any land conveyance based on insufficiency or unfitness for conveyance of public, because it laid down a self-imposed rule of not granting license to any ‘victoria’ carriages without going into the merits of each individual carriage which had applied for license. Thus, the commissioner in the exercise of his discretion fettered himself with rules that did not allow him to be free to consider the merits of each individual applicant.
ACTING UNDER DICTATION
Acting under dictation implies an authority in substance acts through another. There is non-application of mind. The action of authority is not based on its own judgment as intended by the statute. The statute requires the authority to apply its own mind and judgment. So when an authority acts under the dictation of its superior, it in substance does not apply its discretion, and any such order passed under dictation is bad in law and liable to be struck down.In the case of Chandrika Jha versus State of Bihar[5], the Supreme Court struck down the order made by the Registrar at the behest of the Chief Minister who had no power to make such order under the statute. Hence, the Registrar had not exercised his discretion and the order was ultra vires.
ACTING MECHANICALLY AND NON-APPLICATION OF MIND
There is no exercise of discretion if the executive passes an order mechanically or casually, without caution and without applying its mind to the facts of the case. State of non-awareness of relevant grounds and material shows absence of arrival of subjective satisfaction in the mind of the authority. Therefore, in the case of Nandlal versus Bar Council of Gujarat[6], the Bar Council of Gujarat while forwarding the complaint against a lawyer to its disciplinary committee was held to have acted mechanically and without application of its mind. It was held that the Bar Council did not apply its mind to the facts of the case to determine whether there was at all any prima facie case made against the advocate. It mechanically forwarded the complaint for an inquiry. The authority is required to apply its mind to determine whether it has a reasonable belief that there is a prima facie case in fact made out against the advocate.
EXCEEDING JURISDICTION
An administrative authority must circumscribe its action within the jurisdiction given by the statute. A body can decide only those questions which it is authorised to decide under the statute. It would be exceeding its jurisdiction if it delves into matters or questions which it is by nature and intent of statute not authorised to delve into. Such an act would be ultra vires. In R versus Richmond upon Thames Council ex parte McCarthy and Stone Ltd.[7] , the local planning authority introduced local charges of 25 pounds for informal consultations between the property developers and officials of the planning authority. The House of Lords held that the imposition of such a charge was not incidental to the main function of planning and was hence not authorised by the statute. Therefore, the imposition of charges was unlawful and ultra vires the powers of the planning authority.
IRRELEVANT CONSIDERATIONS
As per Professor H.W.R. Wade, courts will intervene through judicial review only in cases where firstly, the authority has acted on grounds which were never intended to be allowed by the statute, and secondly where the authority has failed to take consideration and pay heed to something which the statute expressly or impliedly required it to consider.
In Ranjit Singh versus Union of India[8], the court had impliedly read into the statute certain relevant considerations. In the present case, the government had arbitrarily reduced the quota to manufacture guns on the premises that the Industrial Policy Resolution of 1956 had envisaged a monopoly in the Central Government for manufacturing of arms and ammunitions. The court held that the government had failed to consider relevant factors such as the production capacity of the factory, quality of guns produced and the economic viability, maintenance of law and order and internal security. Since the government had failed to consider these factors, its action was held to be arbitrary and was therefore struck down.
Similarly where a detention order was passed on the basis of confessional statement of the detenue before the Customs Authority, however the facts concerned with whether the confessional statements were voluntary or not were not placed before and considered by the detaining authority, which was held to be a relevant and material fact, the detention order was held to be bad.[9]
UNREASONABILITY
Lord Greene M.R. in the case of Associated Provincial Picture Houses Ltd versus Wednesbury Corporation enunciated two ideas of ‘reasonability’. The first deals with action based on mala fides, improper purposes or taking into account irrelevant considerations. The second deals with actions that are so unreasonable that no reasonable public body could have made it.
In Mixnam’s Properties Ltd versus Chertsey Urban District Council, Lord Diplock held that unreasonability means such manifest arbitrariness, injustice and partiality that no legislature could have intended to give an authority to make such rules.
In India, all discretionary powers are required to be in conformity with the Constitution of India. The exercise and delegation of discretionary power is judged from the point of view of Article 14 and 19 of the Constitution to determine as to whether any arbitrary or uncontrolled power has been conferred onto the executive.
Statutes may require the satisfaction of a precedent condition such ‘a reasonable ground to believe’ before taking an action. The Supreme Court has held that the action of an officer will be without jurisdiction if the reasons for his belief that precedent conditions have been satisfied do not exist or are not relevant to the relief required by the statute.[10] Secondly, there must be some material on which the reasonable belief is based. Reason to believe requires that belief should be reasonable and based on relevant considerations and material. There should be a rational nexus between the reason and belief. The courts however, cannot go into the adequacy of the evidence which develops a reasonable belief.
DOCTRINE OF PROPORTIONALITY
If the action taken by authorities is grossly disproportionate to the ends it seeks to achieve, such that it shocks the consciousness of the court, the courts can review and strike down the action. This doctrine balances the needs with ends and ensures that the punishment sought to be imposed is proportionate to the offence.
The Hon’ble Supreme Court while quashing the order of dismal from services and imprisonment of an army officer awarded by court martial under the Army Act, who had defied the orders of senior officials by rejecting the food supplied, commented on the need of the sentence suiting the offence and the offender. Therefore, the punishment was struck down as severe, harsh and disproportionate, and irrationality and perversity were recognized by the Apex Court as grounds of judicial review.[11] However, the Hon’ble Supreme Court has held that the doctrine of proportionality shall be used by courts to examine the administrative conduct of authorities only when the fundamental rights of an individual are alleged to be disproportionately violated.
PROCEDURAL REGULARITY: PRINCIPLES OF NATURAL JUSTICE
Procedure of decision making concerns with the structure of decision making and not its impact. The opportunity to participate in the decision affecting them and the rationality and reasonableness of the decision are important facets of procedural regularity. Both substantive and procedural justice needs to be abided in a procedure. In substantive justice, administrative authorities must act within the jurisdiction conferred onto them under the statute, while procedural justice deals with principles of natural justice, like right to be heard and make representation.
The main principles of natural justice are:
- Audi altarem partem; and
- Nemo judex in causa sua
The principle of audi altarem partem means a person has a right to be heard and given due notice of an enquiry and hearing. The public authority must convey the delinquent that a departmental enquiry is being initiated against him[12], or before imposing a punishment due hearing must be given to enable him the right of representing as to why the proposed action should not be taken against him. This principle is increasingly finding its base in the principle of protection of interests and legitimate expectation.
Another aspect of procedural regularity is an absence of bias. The decision making procedure must not only aim to prevent actual bias from creeping in but also must not give an appearance or risk of bias in decision making. Grounds of invoking judicial review include the presence of personal bias, bias with respect to subject matter, pecuniary bias, or presence of pre conceived notions.
JUDICIAL REVIEW OF DEPARTMENTAL ENQUIRY OF SERVICES UNDER THE UNION
It is pertinent to discuss the case of Ram Chander versus the Union of India[13], which elucidates the role of natural justice in departmental hearing concerning civil servants. The Hon’ble Supreme Court discussed the role of the Constitutional (Forty-Second Amendment) Act, 1976 on departmental inquiries and the role of natural justice.
In this case, the Supreme Court dismissed the order of the Railway Board upholding the decision of the General Manager imposing severe penalty of removal from services without giving a reasoned order. The Railway Servant (Discipline and Appeal) Rules, 1968 expressly required the Board to record its finding and consider the matters mentioned therein. The word consideration implies due and objective consideration after due application of mind. The order was a mechanical reproduction without any consideration of any relevant material on record, including the alleged act of misconduct, the past activities of the employee or other attendant circumstances. The duty to give reasons is an incident of natural justice and judicial process. An appellant authority performing quasi-judicial functions must give reasons for its decisions on the basis of natural justice.
The first proviso to Article 311(2) of the Constitution of India required the disciplinary authority to afford a reasonable second opportunity to a delinquent servant so as to enable him to make a representation against the penalty being sought to be imposed upon him. After the Constitutional (Forty Second Amendment) Act, 1976 the requirement of the first proviso to Article 311(2) is dispensed with and is satisfied by holding an enquiry wherein the delinquent servant has been informed of the charges against him and given an opportunity to make a representation.
Along with the Constitutional (Forty Second Amendment) Act, 1976 dispensing the safeguard of the first proviso to Article 311(2), similar changes have been brought in the Railway Servant (Discipline and Appeal) Rules, 1968 and the Central Civil Services (Classification, Control and Appeal) Rules, 1965.The procedural safeguard of making a representation at the second stage of enquiry, that is before the punishment is imposed, has been taken away by the Forty Second Constitutional Amendment Act, and now there is no legal remedy left with the delinquent except by way of departmental appeal and judicial review.
In the case of Khem Chand versus the Union of India[14], the court held that a reasonable opportunity to show cause against an action proposed to be taken includes in it the opportunity to represent that he is not guilty of misconduct to merit any punishment, and that even if so, he does not merit a punishment that severe.
The second-stage hearing was a necessary safeguard against arbitrariness and excessive executive action which has been taken away by the Forty Second Constitutional Amendment Act.
It has been established in the case of Union of India and Others versus Tulsiram Patel [15], that the only time a delinquent officer gets a reasonable opportunity to show cause against the action proposed to be taken against him, allege that the evidence adduced is not worthy of credence and that the charges are not proved against him, or that the punishment is too extreme and a lesser punishment is sufficient, is at the time of the departmental appeal.
The Hon’ble Supreme Court therefore concluded in the case of Ram Chander versus the Union of India that given the position enunciated in Tulsiram’s case above, it becomes all the more important that the Appellant Authority must give a hearing to the delinquent along with a reasoned order addressing all the contentions raised by him in the appeal. A reasoned decision promotes public confidence and abides by the principles of fairness and justice.
CONCLUSION
Courts in India seemingly have a wide discretion in reviewing administrative actions. The courts have however not crystallised the application of the grounds of judicial review in the light of giving apparently paradoxical judgments. This has introduced an element of subjectivity. In the case of Shri Rama Sugar Industries versus the State of Andhra Pradesh[16], the Hon’ble Supreme Court held that the policy decision made by the government to exempt only new cooperative-sector sugar manufacturing units from payment of tax for three years under the power granted to it under the Andhra Pradesh Sugarcane (Regulation of Supply and Purchase) Act, 1951, was a valid exercise of power. This judgment goes against the proposition established and laid down by the judiciary that adoption of a uniform policy restricts and puts fetter on thediscretion of the executive[17]. When a statute gives power to make rules by formulating policies, the authority cannot impose fetters in its discretion by formulating and applying rules rigidly and uniformly to all cases, without having regard to facts of each case. Also, the said decision of the executive was not reasonable as it lacked reasonable relation or nexus with the object and purpose of the Act, namely giving exemption to new sugar factories in order to encourage the production of sugar.
[1] Indian Railway Construction Company Ltd vs. Ajay Kumar, 2003 (4) SCC 579.
[2] State vs. Haider AU, AIR 1957 MP 179.
[3] M.P. Jain and S.N. Jain, Principles of Administrative Law 38 (Wadhawa, Nagpur, 2001).
[4] (1904) ILR 27 Bom 199.
[5] AIR 1984 SC 322.
[6] AIR 1981 SC 477.
[7] 868 [1992] 2 A.C. 48.
[8] 1981 AIR 461
[9] Ashadevi vs. Shivraj, AIR 1979 SC 447.
[10] Sheo Nath vs. Appellate Assistant Commissioner of Income Tax, [1971] 82 ITR 147 SC.
[11] Ranjit Thakur vs. Union of India, (1987) SC 611, 620.
[12] Canara Bank vs. Debasis Das (2003) 4 SCC 557.
[13] 1986 AIR SC 1173.
[14] (1958) S.C.R. 1080.
[15] (1985) 3 S.C.C. 398.
[16] 1974 AIR 1745
[17] Gell vs. Taja Noora, (1904) ILR 27 Bom 199
Author: Parina Katyal
Juris Centre 