ADMINISTRATIVE LAW

RESEARCH PAPER

DUTY TO ACT JUDICIALLY TO DUTY TO ACT FAIRLY

SUBMITTED BY: SUBMITTED TO:

JYOTI MAURYA MR. JAGDISH JENA
ROLL NO.: 866 ASSISTANT PROFESSOR, LAW
SEMESTER: V ‘A’

NATIONAL UNIVERSITY OF STUDY AND RESEARCH IN LAW,

RANCHI

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 I. INTRODUCTION

Mainly, Government is composed of three organs legislature, executive and judiciary. These
organs are meant to perform certain task, the function of legislative is to enact the law,
executive is expected to administer the law and judiciary is to interpreted the law. However, in
Jayantilal Amritlal Shodhan v. F.N. Rana,1 court opined that there is no hard and fast rule and
it cannot be assumed that the legislature exclusively performs legislative function, executive
perform executive function and judiciary perform judicial function.

Nowadays, the executive performs various functions such as investigate, prosecute etc.
(administrative), make rules and regulations (legislative), adjudicate, impose penalty
(judicial).2 According to Schwartz the rule making (quasi-legislation) and adjudication (quasi-
judicial) have become the chief weapons in the administrative armoury.3

However, there is no precise or scientific test available to differentiate these functions from
each other. Through times courts have evolved number of tests to classify these functions but
failed to formulate any definite test for the purpose. Yet, such classification is essential and
inevitable as many consequences flow from it.

Acts of an administrative authority may be purely administrative or may be legislative or

judicial in nature. Decision which is administrative in nature is completely different from the
legislative or quasi legislative decisions. “Where does the administrative end and the judicial
begin? The problem here is one of demarcation and the courts are still in the process of
working it out.”4

In Automotive Tyre Manufactures Assn v. Designated Authority5, the apex court sets out certain
yardstick to determine whether a power is an administrative or quasi-judicial power. The
questions, what is the nature of power conferred; who are the person or persons on whom it is
conferred; what is the framework of the law conferring such power; what is the consequences
ensuing from the exercise of such power, and what is the manner in which such power is
expected to be exercised, must be regarded to determine the nature of the power.

1
1964 AIR 648.
2
C.K. Takwani, Lecture on Administrative Law, ed. 3, 2018.
3
Bernard Schwartz; Administrative Law, 1976.
4
Labour Relations Board v. John East Iron Works Ltd., AIR 1949 PC 129.
5
(2011) 2 SCC 258, 291

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 II. DUTY TO ACT JUDICIALLY

The duty to act judicially, is one of the genuine tests to differentiate between a pure
administrative decision and quasi-judicial decision. But the problem lies in the consideration
as to when duty to act judicially arise? As observed by Parker J., “the duty to act judicially may
arise in widely different circumstances which it would be impossible, and indeed, inadvisable,
to attempt to define exhaustively,”6

The action of the administrative authority would be a quasi-judicial function, if the express
provision of the statute specifically necessitates the authority to act judicially. But from the
above proposition it is still unclear, whether the relevant statute must expressly require the
administration to act judicially, for an action to be quasi-judicial.

A subsequent development took place in the said aspect after 1924, when Atkin LJ, in R. v.
Electricity Commissioner, ex p London Electricity Joint Committee Co. Ltd., 7 observed that,
“Whenever any body of persons having legal authority to determine questions affecting the
rights of the subjects and having the duty to act judicially, act in excess of their legal authority,
they are subject the controlling jurisdiction of the King’s Bench Division exercised in these
writs.”

In R. v. Legislative Committee of the Church Assembly, the court took consideration of the
above judgement and observed that the duty to act judicially is an additional requirement,
existing independently of the legal authority, “something superadded to it”. However, the said
judgement created confusion and ambiguity in law as in every case which came before it the
court have to search the statute to interpret the duty to act judicially.

Finally, the law concerning the issue was settled in Ridge v Baldwin8, in which the court held
that the duty to act judicially must not expressly be mentioned in any statute it needs to be
inferred.

“If Lord Hewart meant that it is never enough that a body simply has a duty to determine what
the rights of an individual should be, but that there must always be something more to impose
on it a duty to act judicially before it can be found to observe the principles of natural justice,
then that appears to me impossible to reconcile with the earlier authorities.”

6
R. v. Manchester Legal Aid Committee, (1952) 1 All ER 480 (489).
7
(1924) 1 KB 171 (CA).
8
1964 AC 40, 70.

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Further, Lord Reid observed that the duty to act judicially should be inferred from, “the
cumulative effect of the nature of the rights affected, the manner of the disposal provided, the
objective criterion to be adopted, the phraseology used, the nature of the power conferred, of
the duty imposed on the authority and the other indicia afforded by the statute.”

Moreover, according to Wade, the duty to act judicially is the direct consequence of the power
to determine questions affecting individual’s right.9

In Province of Bombay v. Khushaldas Advani,10 Justice Das assume the following principle:

• If a statute enables an authority, other than court, to decide any dispute between two
contesting parties and determine their respective rights, in the absence of anything
contrary present it is the duty of the authority to act judicially, and the decision of the
authority will be said to be quasi-judicial decision.
• And if the authority is at the position to affect the right of the party, then although there
is only one-party present apart from the authority itself, and the conflict is between the
authority and the party, then also the authority is quasi-judicial authority and is under
the obligation to act judicially.

III. DUTY TO ACT FAIRLY

As the consequence of the judgment of Ridge case, several functions which were categorized
as administrative, pre-Ridge were declared to be quasi-judicial.

It is to be considered that “natural justice is nothing else but fairness in action”, 11 another
concept developed that is there must be “duty to act fairly” which refers to an implied
procedural obligation accompanying the performance of a function that cannot, without overly
straining linguistic usage, be characterised as "judicial in nature".12

In H.K. (An infant), Re,13 an Immigration Officer without giving appropriate opportunity of
hearing denied the entry of a boy from Pakistan who appeared to be over sixteen years. No
hearing was afforded before arriving at the decision. Parker, C.J. held that even if an

9
Wade & Forsyth, Administrative Law (2009) 514-517.
10
1950 SCR 621.
11
Wade, Administrative Law (7th Edn.), p. 513.
12
(2003) 4 SCC (Jour) 1.
13
[1967] 2 WLR 962.

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Immigration Officer was acting administratively and not in a judicial or quasi-judicial capacity,
"he must nevertheless act fairly".

In R. v. Commission for Racial Equality,14 Lord Diplock opined that:

“Where an act of Parliament confers upon an administrative body functions which involve its
making decisions which affect to their detriment the rights of other persons or curtail their
liberty to do as they please, there is a presumption that Parliament intended that the
administrative body should act fairly towards those persons who will be affected by their
decisions.”

The duty to act fairly lead to the development of certain other doctrine such as legitimate
expectation, proportionality etc.15 As stated by Lord Denning in Schmidt v. Secy. of State for
Home Affairs,16 in these cases, even in the absence of any substantive legal right, person can
have legitimate expectation to getting justice. In such cases, the court may protect his
“expectation” by invoking principle of “fair play in action”. The court may not expect an
administrative authority act judicially, but may still insist that it too act fairly.

However, the question that what are the standards of natural justice that should direct an
administrative action is a significantly more troublesome one to reply. Though it neither
possible nor necessary to set out any fixed or thorough standard. The idea of natura justice
can’t be placed into a restraint. It is vain, in this way, to search for definitions or norms of
natural justice from different cases and afterward attempt to apply them to fact on any given
case. The only essential point that has to be kept in mind in all cases is that the person concerned
should have a reasonable opportunity of presenting his case and that the administrative
authority concerned should act fairly, impartially and reasonably. Where administrative
officers are concerned, the duty is not so much to act judicially as to act fairly.17

In Mohinder Singh Gill v. Chief Election Commissioner18, after considering several cases,
Krishna Iyer, J. stated:

14
[1980] 3 All ER 265.
15
Supra note 2.
16
(1969) All ER 904.
17
Keshav Mill v. (1973) 1 SCC 380
18
1978 AIR 851.

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“Once we understand the soul of the rule as fairplay in action—and it is so—we must hold that
it extends to both the fields. After all, administrative power in a democratic set-up is not allergic
to fairness in action and discretionary executive justice cannot degenerate into unilateral
injustice. Nor is there ground to be frightened of delay, inconvenience and expense, if natural
justice gains access. For fairness itself is a flexible, pragmatic and relative concept, not a rigid,
ritualistic or sophisticated abstraction. It is not a bull in a china shop, nor a bee in one's
bonnet. Its essence is good conscience in a given situation; nothing more—but nothing less."19

IV. PRINCIPLE OF FAIRNESS VIS-A-VIS SUBSTANTIVE LAW

The development of the doctrine of fairness lead to several other question such as does fairness
apply only to the sphere of procedure or would it extend to substantive laws as well?

In R. v. Barnsley Metropolitan Borough Council, Ex parte Hook,20 Lord Denning M.R., held
the punishment to be to sever and disproportionate to the offence.

“So, in this case if Mr. Hook did misbehave, I should have thought the right thing would have
been to take him before the magistrates under the by-laws, when some small fine might have
been inflicted. It is quite wrong that the Barnsley Corporation should inflict upon him the grave
penalty of depriving him of his livelihood.”

Sir John Pennycuick observed that:

“It seems to me that the isolated and trivial incident at the end of a working day is manifestly
not a good cause justifying the disproportionately drastic step of depriving Mr. Hook of his
licence, and indirectly of his livelihood.”

Although, according to Schwartz, if a public authority regularly interprets or applies provision

in a particular way, there should be no change “unless there is good cause for departing from
it”.21 The same opinion was reiterated in the case Canara Bank vs V.K. Awasthy,22 the court
held that the court are required to follow rigid criterion of law. It observed that:

“when a statute gave discretion to an administrator to take a decision, the scope of judicial
review would remain limited. He said that interference was not permissible unless one or the
other of the following conditions was satisfied, namely the order was contrary to law, or

19
Supra note 18, para 52.
20
[1976] 1 W.L.R. 1052 (C.A.).
21
Supra note 3.
22
2005 (2) BLJR 1223.

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relevant factors were not considered, or irrelevant factors were considered; or the decision
was one which no reasonable person could have taken. These principles were consistently
followed in the UK and in India to judge the validity of administrative action.”

In Indian Scenario, Judiciary cannot question the action taken by administrative law, if the
broader interpretation of the doctrine is accepted then the discretionary power of the
administration will become redundant.23 The Court can only review the punishment or
measures taken by the administration only if it is “remarkably inconsistent” to the law.24

However, the importance of natural justice cannot be ignored from the substantial part of law
and duty of a statutory authority to act in public interest. To keep the check on the
administrative action the duty to give reason evolved.

In Siemens Eng. and Mfg. Co. of India Ltd. v. Union of India25 the Court held that “it is far too
well settled that an authority in making an order in exercise of its quasi-judicial function, must
record reasons in support of the order it makes. The learned Judges emphatically said that
every quasi-judicial order must be supported by reasons. The rule requiring reasons in support
of a quasi-judicial order is, this Court held, as basic as following the principles of natural
justice. And the rule must be observed in its proper spirit. A mere pretence of compliance would
not satisfy the requirement of law.”26

V. CONCLUSION

It is obvious that "acting fairly" is an extra tool in the court's shield. It is not meant to replace
another far more effective "acting judicially" tool. However, if the former cannot be used, the
court will strive to reach inequality by resorting to the latter—a less effective tool distinction
has been made in the United Kingdom between procedural law and substantive law and it has
been held that the doctrine of "acting fairly" will extend only to the area of procedure, in India
‘unfair procedure’ amounts to "arbitrary" and "unreasonable" exercise of authority. Such an act
will attract Articles 14, 19 and 21 of the Constitution.

23
Quasi-Judicial Proceedings and the Duty to act Fairly, LAWYERS CLUB OF INDIA,
https://www.lawyersclubindia.com/articles/quasi-judicial-proceedings-and-the-duty-to-act-fairly-8032.asp.
24
Om kumar v. Union of India, AIR 2000 SC 3689.
25
(1976) 2 SCC 981.
26
Supra note 25, para 6.

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