2nd September 2023

Can we rules and regulations a retrospective effect?/

If the law provides for it, rules and regulations can be given a retrospective operation. For eg, the
Administrative Tribunal Act, 1985 expressly authorizes the authority to make rules with
retrospective operation.
Giving rules and regulations retrospective operation may have negative repurcussions as well.
They are also the courts of equity and good conscious. If you have the power to give rules and
regulations a retrsopective operation, you should also tell what purpose you have achieved. What
social benefit It has accrued.

BS Yadav vs State of Haryana , 1980

In this case an authority existed to give rules and regulation regarding service rules for the govt
servant. Artilce 309 – the govt ca serivces rules with retrspective operation. The Haryaana Govt,
wanted to change the continous service rules on the basis of which seniority is decided
previously the law was senioiryt will be fixed on the basis of date of joining, Govt of Haryana
Changed it by making the tule to the date of confirmation. The seniority is therefore determined
by Date of confirmation and gave it retrospective operation by virtue of Article 309. Now the
seniority which was fixed for a long time, was distrubed consequenlty. It was thereby challenged
before the court of law. Under Article 309 – we have the power to make service rule with
retrospective operation. We have the power and the same has been exercised by us.
The court observed merely having a power does not entitle you to exercise the same in any
manner one likes. The court has to be informed the social purpose which was sought to be
achieved from it. What was the problem that the govt sought to resolve. Simply having a power
does not mean you can use that power arbitratarily.
The reason being the courts in India are not just courts of law but also courts of equity, justice
and good conscious.
The govt failed to convince the court regarding the purpose which it sought to achieve by virtue
of this legislation. The same has to be exericed reaosnably on certain fundamental purposes.

11. The rules framed by the adminstrative authourity are arbitrary

Arbitrariness of adminstrative action had been covered under Article 14. Arbitrary and
resonableness overlap yet there is a disticntion between the two. Arbitrary means, the rules and
regulations are vague. For example on FR only reaosnable restrcition can be imposed.

Any person should be able to understand what the governments wants us to do. If this is not the
case then the regulations are vague. Vagueness also exlcuded irrationality and reasonableness.
Arbitrariness also includes proportionality. It is a fundamental principle of adminstrative law. A
disproportionate act is not rational it is arbitrary. There must be a proportion between the means
and ends which we sought to achieve. No one can compel you to kill a fly with sledge hammer
because it lacks proportionality. The proportionality is an important principle of adminstrative
law relating to any legal action.
Proportionality also means if one has to choose amongst the various alternatives to achieve a
purpose then you choose that alternative to achieve the said purpose which is less burdensome
for the particular person.
12. The rules and regulations for adminstrative action violates or excludes judicial review.
Now,
judical review has become a inherent part of the Indian consitution. It is the basic feature of our
constituion and therefore cannot be barred completley in any manner. The parliament cannot
authourise the adminstrative authoutiry to bar judicial review. Although, reasonable restrictions
can be imposed like exhausting adminstrative options available to us.
Judicial review cannot be barred and thus the finality clause has no value. Courts no go areas has
been absolutely eliminated. The court can go anywhere.
13th Rules violate the common law rights of access to courts
Chester vs Bateson, 1920
During the war time no house owner can file a case against a tenant who is engaged in
manufacture of war material and imposed a penalty for taking legal action on this behalf . The
law was passed to ensure the safetly of family back home. The court held no matter it was a very
laudable purpose, the common law rights cannot be completely overridden. The court may not
allow the relief is different matter but prohibitng indivduals from going to the court altogether is
violation of the principle of IL
14th Ground Lack of proportionality (already discussed)

Balance between ends and means

choosing the least burdensome principles

FINALITY OF ADMINSTRATIVE ACTION

If there is a finality clause in the act itslef then what will be the impact of the this finality clause
in the admisntrative action. This clause is also known as ouster clasue/ escape / conclusive
evidence clause/ Ganga Clause.( where everything becomes clean. In England or UK the system
of governance – where parliament is supreme and there is no power judicial review. Courts are
completely barred from going into the legality of any actions of the parliament. British
democaracy is considered to be the real democratic system because people are ruled by their own
will. Whatever they say in a real democracy should be final. It is called the dmeocracy in the
purest forms.
What are representatives says in the parliament should be considered as final. We are not able to
that in India but they Britain is able to follow it? - In India, we need checks and balances because
we are not completely sure of the behaviour of our representative and that is why they don’t have
judicial review.
What is the impact of ouster clause – the decision of adminstrative authotity shall be final?
Institute of Patent Agents vs Vs Lockwood, 1894
This case laid down the Lockwood doctrine. In this case, parliament passed a law, and under that
particular law the adminstrative authourity was given power to frame rules and regulations and
then the act laid down that the rules and regulation laid down admisntrative authority under this
act shall be deemed as if enacted in the act itself.
Can the court consider the legality of adminstrative action ?
Parliament is supreme and it says that the action of adminstrative authourty are as such if
parliamnet does it. IF parliament does it, judicical intervantion is barred.
This is called Lockwood doctrine
Minister of Health vs R , 1931
This laid yaffi Doctrine. This doctrine overuled yaffir Doctrine. Here in this case, the house of
lords, took a different view. That out of the three organs of the govt, the judiciary is the weekest
because it does not have the purse of the parliament and sword of the executive and that is why it
is the weakest. Weakest always jealously guard their powers.
Even when finality clause is there the powers of judical review cannot be completely
obliterated.

4th September 2023

Position of finality clause as far as delegated legislationis concenred if the finality clause in the
parent act - the rules and regulations passed by adm authoituty will be considered as if passed by
the parliament itself. We discussed the law as developed in England – the Lockwood doctrine
The rules and regulations under this act will be considered as if made by the parliament – if this
kind of ifnality has been given then the court cannot review it. This is known as finlity doctrine.
The rules and regulations would be considered as final.
Misister of Health exparte Yaffi
But if the rules are incosnistent with the act then the rules will not be saved. They have made
certain rules which are inconsistent with the act itself. Then in this case, the act would declared
ultravires. The Yaffi doctrine overuled the Lockwood Doctrine. If the rules are themselves
inconsitent with the provisions of the Act
AG vs Rian, 1980
In this case the court haeld if there is a fianlity clause in the act itself stating that rules and
regulations framed under this act shall be final as if passed by the parliament.
This kind of finality clause shall save all the rules and regulation which are within the
jurisdiction of the court but if there are any rules and regulations which are in excess of the
jurisdition or violate the principles of common law then the same will not be held
If there is an error of jurisdiction then it can be challenged but if the error is within jurisdiction
then such rules and regulations cannot be challenged.
Distinction between error of jurisdiction and error of error withi
Anaesmic Limitied vs Compensation Commission, 1969 ( meaning of error within jurisdition
and what is error of jurisdiction)- Explained Yaffi
The river Nile was nationalised by Colnel Nassir of Egypt and all the companies of the Nile
region were exproporated and there proeprtues were taken away. A treaty was entered into with
UK by Egyotian govt. that we would pay the compnesation for nationalising your company.
They gave lumpsum amt to the govt that you can distribute them according to the loss of their
properties after deciding the assets held by them.
An Act was setting up a compensation commission which was handed over a list of the
companies and assets held by them. The commission had to decide the amt compensation in
accordance with assets held by them
That the decisions of the Compensation commision shall be final and conclusive.
In one case the commision decided – that one company whose name is there in the company list
shall not be entitled to nationalisation as they have laready transferred there assests before
nationalisation.
This commision has gone beyond there jurisdiction. The scope of power was to decide how
much there compensation should be and not that whether someone entitled or not. The court said
if there is an error of jurisdiction we can interfere. If the commission does something which is
beyond there jurisdiction then it can be challenged but if they are doing something within there
jurisdiction we do not have the authtoutity to decide wheter it was right or wrong.
no finality clause can bar the jutisictionc of the coiurt if an error of jurisdiction has been
committed.

INDIAN POSITION
The authority of civil courts can be controlled by govt even though judicial review is a central
feature of indian consituttion and such right cannot be taken away.
Oriental Weaving vs _____ ( note nhi hua) case
the constitutional jurisdiction cannot be barred but civil jurisdiction can be barred. If there is an
error of the jurisdiction, then the court can interefere;. Justice Sikhri gave thejudgemen- the owrd
as if enacted by the parliament – it does not extend any adminsitrative sanctity.
Assistant collector , Central Excise vs RK Rye , 1989
Finally accepted Yaffi doctrine, if rules are beyond jurisidiction I.e violate the act itself then
court cannot be stopped. However
There cannot be ouster of courts, in case of substantive ultra vires and error of jurisdiction
Error within jurisidtion, or procedural ultra vires then we do not have the power.
Hinsa virodhik sangh vs Mirzapur Muncipal Corporation ( Facts missed iske )
Under the act, the power was given to the municpality for proper management of towns.
Muncipalty made a law that during the 9 days of the Jain festivals the slaughter houses shall
remain closed and it was laid down that the rules and regulations laid down by the corporation
shall be considered as laid down in the act itself.
If rules and regulations violate the basic provisions of the constituions then judical review is
always there. But if there is an error within juridicition then courts will exercise self restraint. In
case, of taxing statute the courts have always taken the view that if the authourity to whom the
power has been delegated is a reprsentative and authourity then court will allow wide delegation
of powers.
The rules and regulations framed under th
The court said that we will not interfere in civil court matters. The constitituional preview cannot
be barred in any case. I
BK Sreenivasan vs State of Kerala
That where there is a conclusive evidence clause in the act itself the court will not interefere if
there is an error within jurisdiction.
So in these case the court has tried to follow british model, if it is an error of jurisditcition but
within jurisdiction cannot interfere. However the power of consitutional to exercise juridicial
review cannot be barred only civil courts jurisdiction cannot be barred.

In which cases the delegation of law making power is permissible/ imperssible

Essential legislative function cannot be delegated. A plolicy must be laid down a guideline
should be laid down
A power to repeall any law is an essential legilsative function is an essential function an cannot
be delegated.
The power of modification, in the rules and regulations, cannot be given however the power can
be given to remove administrative difficulties and other non-essential aspects to make alterations
in the aspect.
The power to grant exemption from the existing law is an essentail legislatiove function and
cannot be delegated without laying down the policy and guidleines
The rules and regulations cannot be allowed to give a retrospective operation because it is a
legislative function it cannot be delegated.
The power of extensions of existing law to another law may be given but power cannot be given
to extend a furture law cannot be given. In future also if that legislature passes any law that could
be extended cannot be given
Henry VIIII clauses cannot be given like unlimited power to change the act rtc cannot be
delegated. In tacing matter vast powers to impose a tax can be given if the authoutity is
responsible and representative.
Power to create offences and impose penality cannot be given unless the policy is clearly laid
down. The permissible limits within which delegation is possible.

5/06/2023

Principles of Natural Justice

Difference between natural justice and justice of the nature. The former stands for fairness in
administrative action and the latter does not stand for fairness and is harsh and difficult. The ponj
are developed by philosophers in order to bring fairness in the administration of justice. the
justice of the nature on the other hand stands for justice according to fix principles irrespective of
fairness. The justice of the nature is very crude and the fundamental nature of the justice of
nature is survival of the fittest. The natural justice means that the fittest and non-fittest both can
survive, not necessary that the lion will prevail over the dear. The power should not always
prevail over the weak. The ponj means fairness. We also use another term fair play in action or
we sometime use the word juristic humanism or rational justice/universal justice/divine
justice/social justice. so many words used for the natural justice.
The whole concept of natural justice was developed to counter the exercise of arbitrary power of
the monarchs as they claimed to have divine right to rule and nobody can question their action in
any manner and therefore the PONJ developed by the philosophers in order to counter this claim
and to bring fairness in the governance. In America, they do not use the word natural justice but
use the term due process. The process which is fair and reasonable. Because due process can be
both substantive and procedural both. In Europe they use the term proportionality meaning that
there must be a balance b/w end and means. The end which you want to achieve and the means
which you use to achieve. The means should always be fair. They used the term proportionality.
In common law word we naturally use the term natural justice. the whole concept of natural
justice or fairness in action was developed in order to enable the weak to co-exist with the strong
and to control the arbitrariness in the governance. In western jurisdiction they derive the concept
of natural justice by drama written by Polyses about first century BC ‘Antigone’. This drama
visualises the concept of natural justice. law students also study this as the basis for whole
philosophy of natural justice. the first exercise of reason and courage not by a man but by a
woman and this daughter of king Antigone reasons to herself and she reasons that howsoever bad
a person may be after death he is entitled to have a decent burial. When she goes to bury the
body of her brother, the news reaches to the king and therefore Antigone was called by the king
and asks her did you know my law and decree. She said yes my lord, I knew your order and the
reason I violated that (this is the geneisis of the whole concept of natural law or natural rights)
that there is a law of god that after death every person is entitled to a dignified burial and the law
of god is supreme to everything and even to the law of king. Therefore, I buried the body of my
brother. While in jail the Antigone committed suicide but what she said gave rise to the whole
concept of basic rights of man and PONJ which must be followed without exception and which
make justice substantive and procedural a fair playing in action. From this concept of first
century the PONJ the whole concept of natural justice was developed. The PONJ are those
principles which are based on the essential nature and instinct of man and his consciousness and
represent his natural ideals of human values and hence are universal. Since that date the concept
was later developed and instead of nature they brought the concept of god in the medieval
period. Fairness in justice and not justice according to the law but justice according to the
fairness in the process. The whole concept from legal justice developed to fair justice. this
developed the universal humanism. These principles have been drawn from the beginning from
the nature of man and later on they developed the concept of law of god in medieval. When in
modern time, the existence of god was questioned then the principles of natural justice on the
basis of nature of man which is fair, reasonable, without exception. The Americans call it due
process and this due process can be procedural and substantive. In Europe the term
proportionality is used that there must be some fairness and fair relationship b/w the means and
the end you are trying to achieve. The fair, reasonable and just. The modern man thinks that these
principles are derived from the human nature itself, they are inherent in every human being for
no other reaons except that he is a human and therefore, they are eternal and not subject to
governance and they are superior to the written law. concretised the concept on 2 principles
• Audi alteram partem – no person can be punished without hearing.

• Nemo judex causa sua – no one can be a judge in his own cause because our experience
proves that it is very difficult to take a decision by a person against his own interest though he is
capable of doing so but it is very difficult. Therefore, where the interest of people is involved and
in order to decide that the person should have no authority to decide. Otherwise the justice would
not be possible. This is the basis of the PONJ.

THESE PRINCIPLES MAKE THE LEGAL JUSTICE AS HUMAN JUSTICE.

6/06/2023 – Claases missed

7/06/2023 – CRE

8/06/2023 – classed missed

Types of bias was being discussed.

• Personal bias – genetic traits, person is very aggressive all this genetic tratis which a
person develops, all the environmental traits which a person develops that affect the
administrative decision-making. We are not concerned

• Personal bias such – factors angst whom the decision is being taken and those
factors are such whiimimpels a person to to take decision in one way or other

That person in the woner of mines and mineral corporation and in second elecrion this person
lost and rival won and the rival won and became the minister of mines and mineral and the first
thing he did is issue notice to this person that you have committed this breaches of the lease and
why your lease should not be cancelled and without any reply and any hearing he issued
notification about cancellation of the license. That was challenged in the court of law and ground
of challenge was the rivalry and the case was transferred out of the state as justice was not
possible in the state. Here the decision was because of personal bias and this was apparent on the
face and therefore the decision was quashed. The personal bias is any personal enmity or rivalry.
Maybe of highest order or lowest authority.
STATE OF MP V Mohammed Nooh 1958
In UP police dept a constable was habitually absent from duty without any notice and therefore
departmental enquiry constituted against him. Police officer made the head of enquiry and he
personally knew about the instances where the police constable used to give excuses. The
witnesses coming in front of the committee in favour of constable were lying. The superiendent
became so angry that I would personally give evidence against him. He came back and occupied
seat after giving witness. Thereafter the constable service was terminated. Challenged on ground
of personal bias and court said the personal bias is apparent. He himself became witness and
therefore clear case of personal bias. There was no need of such level involvement
SP Kappor v State of HP 1991
Head of dept. the personal promotion committee was constituted and he was the chairman and
personal reports of varu=ious persoanlled were to be considered for promotion and this person
being the head of the dept and he had written the reports of many people because he was the
head of dept. his application was also there because he wanted to become permanent. His report
was also considered and his report written for others was also considered. Ultimately this was
challenged on ground of (report of his rivals and he himself is a candidate and certainly there is a
personal bias on the face of it).
VC Aggarwal v SBI 2006
In this case a officer of the bank filed case against some other officers and the case was going on
that the departmental promotion committee was constituted and the person against whom the
case was filed and he was the chairman of that particular committee. The officer promotion was
not done. the SC gave the decision that the committee should be reconstituted and if there are
certain factors existing b/w person against whom administrative decision is taken and the person
who took the decision which either inclines him to take decision in favour or against. Then that
case is of bias.
As a person you can think of 100 factors like same village, community or same religion. So the
que is whether any connection would be sufficient. The answer is no and there are 2 tests
• Test of a reasonable man – man of ordinary prudence and ask him under these
circumstances the person can be bias, and if he says no then there is no bias but of he says yes
then the action is to be quashed. This is known as reasonable prudent person test.

• Real likelihood test/substantial probability test – here there are evidence on record and
as judge comes to conclusion as to whether under these circumstances the person could have
been biased then a real likelihood that the person is being biased. Here he will shuffle the
evidences and will himself decide as a judge and he will decide whther he was biased or not.
This is called substantial probability test. If the facts are not sufficient then the court will not
accept bias. In one case the father was the deciding officer in the rent case and son was
complainant. In this court said likelihood of bias.

Parmanand v state

Brother was the head of selection committee. Younger brother appeared in the interview. The
younger bro not selected. Here the challenge arose as to quashing the whole list and court said
the younger brother has not been selected and even if there was bias, it is meaningless and
therefore court said no real likelihood of bias and it is meaningless as the final decision making
has not been adversely affected.
• Peculiar bias – here the courts see the possibility of bias and not real likelihood of bias.
They say if the decisionmaker has any financial interest either in the decision or the subject then
there is possibility of bias. Slightest of financial interest is sufficient to consider bias.

Dr Boneham case 1610

Govt wanted to regulate the practice of medicine and therefore board was constituted and power
was given to cancel license if the person has committed the breach of rules and regulations and
you can impose fine as well along with cancellation and half of the fine can be kept by board for
own expenses and half of the fine has to be deposited. Dr. bonham license was cancelled and he
was fined heavily. He challenged this on the ground of element of peculiary fine as there is
financial bias is involved. Here the court said in case of financial involvement the real possibility
test is not applied and slightest financial involvement would be sufficient to quash the
administrative decision

Dimes v Propritoer grand

Case against co. and it was decided by the judges (administrative officer), thereafter appeal was
filed against this and appeal was heard by the judge and his decision was challenged on the
ground that the judge has certain shares in the com and therefore he decided the case in favour of
the company and this became a leading case for peculiar bias and brought to notice of court that
the judge was honest persona and no one can think that he is dishonest. But the court said that is
immaterial and if there is financial interest that would be sufficient to quash the administrative
action.
Assistant collector
In this case certain property was acquired by the govt for cooperative society and case ultimatelt
reached the supreme court and there justice gajanderkar was CJ and he constituted the bench and
when this case was involved. SG pointed that in this society you have shares. J opted out and
reconstituted this bench. Meaning slightest financial interest is considered sufficient in order to
quash the administrative decision.
9-10 –Sat/sun

11/06/2023

Your financial interest should be as such that you cannot be considered an honest and impartial
judge under those circumstances.
What should be standard of financial standard – when the judge should be recuse himself. Then
America made a recusal policy
(a) where the reletives have a financial interest, the judge should not recuse.
(b) where he himself has the interes – but even then he should inform the parties then bring the
fact to notice that you have financial interest.
In India, we still follow the policy of abundant caution, the bench was hearing a case regarding a
particular company. As the case was opened the judge said it is the company in which my
daughter is a legal advisor and therefore i will recuse.
In India the judge recuse as an abundant caution. But in America they do no recuse because of
abundant caution.
Departmental bias/offical bias/ Institutional bias
Where the prosecutor and judge are not the same person but they belong to the same department.
There is always a danger of departmental or insitutional bias. The manager of a factor was
assualted by labourer. And an enquiry was instituted. He enquiry officer of deuty manager – this
person has an affinity to the dept -hs senior is involved.
The question arise how he can be idnependant. His decision would be tainted by departmental
bias.
How do we deal with such case the judge and person belong to same dept,

G Nageshwar Rao vs Andhra Pradesh State Trading Corporation

In Andhra Pradesh the Government, Decided to nationalise the road transport. The secretary or
the department of transpoert was given power to prepare a schem and thereby they prepared a
full schem of nationalisation of road transpoert. Beofre the scheme could be put in order the
person who are affected by the schem must be given a notice of hearing. Many person will
become jobless.
The transport department published their schem in a papaer and invited pvt bus owner to explain
their pistion at a certain place.
The case was hovever heard by secretary of Transport Department, After hearing their all their
arguements were rejected and the scheme was approved. This was challegngedon grounds of
departmental bias.
Supreme Court quashed the decision of the Road nationalisation. On the ground of departmenral
bias
In an adminstrative decsion, the departmental bias is something which is inherent. On the
basis of this reasoning critised
The decision was criticised
G Nageshwar Rao v Andhra Pradesh
The govt. Hell bent on introducing nationalisation
This time the minsiter gave the hearing and the decision. This was again challenged by the SC.
That dept bias is there
The court decided that there is no departmental bias – since minister is not the employee but a
secretary is. Therefore, no bias.
However, in every policy matter, departmenral bias is something inherent.
In America and England they found a way out.
The insitution of hearing Officers
The Institution fo Hearing Persons
The federal govt keeps a list of person who are qualified to be judge. Whenever such a need
arises – the department requests the govt to send a person from this govt and a decision is given
and in this mannrer they are able to eliminate the danger of deparrmental bias.
In Indias we have not developed an institution like this so the element dept bias is always there

HARI VS COMMISIONER OF POLICE

An externment order was given the police.

PONJ a notice of hearing is to be given before a person is externed. DSP gave the hearign and
final decision was given by SP.
On a matter of polciy both are in the same dept therefore how there is no dept bias?
The judge said if there are two people – one giving you hearing and other one deciding then there
would be no element of departmental bias. If they are same person then only they will taint it
with departmental bias
This is not a very good solution – but under Indian circumtances this is the best which cna be
achieved.
There is always an allegiance – and the decision my not be completly unbiased.
There is a need to adopt a system similar to this one In India
12/09/2023

Institute of CA vs Ramanand, 1986

The members of the enquiry committee ( set up for the hearing) they were also the members of
the disciplinary committe. The disciplinary committee also heard the appeal.
The same commitite hearing, deciding, and hearing the appela the court said there is dept bias
Hindustan Petrochemicals Vs Yashwant, 1991
The company had the power to lay down pipleines and for that matter they had to acquire the
property and those person whose property has been has to compensated. The compensation was
decided by the members of that particular corporation. The company has to give a compensation
and company was doing the enquiry. Therefore, it was held that the departmental bias exists.

The conclusion – if people comes form same department but theur are two persons then the
departmental bias would not be operative.
SUBJECT MATTER BIAS
Here, you are not involved with parties but you are interested in the subject matter.
R vs Deal Justices Ex parte Curling, 1881
A person from a very prestigious society -
In enlgand there was tradition which was going from generation to another genetation – the fox
killing festival. People went out and killed festivals. It was therefore held that it is a cruelty to
animals and thus should be stopped.
A person was challaned for cruelty to animals. The police arrested him under the act. He was
brought before the magistrate. The magistrate heard the case and punished him.
The concerned person filed an appeal stating that the judge is biased because he is a very active
member of Royal society of prevention of cruelty to animals. He is biased agaisnt him.
The court siad that such bias insufficent. Unless there si some other evidence to prove that his
mind was clogged and he could not think of any other thing but charging and punishing people
foe animal cruelty.

Murlidhar vs Kadam Singh

Elections petitions were decided by election commission. In that particular case, a congress MLA
challaged the election of BJP MLA and the elction Commisssion quashed the election
His ground was subject member bias. The gorund was wife of the chairman was an active
member of congress party and thereofre the chairman is also biased.
The court held the same was insufficient – you need to show that the mind was completely
clogged and closed.

POLICY/ CONCIEVED NOTION BIAS

If you can prove that this person had certain strong notions and because of that he decided to
think in the matter he decided then the action can be quashed on grounds of pilyc bias or
conceieved notion bias.
In USA and in Britain is not considered a bias if you are predisposed about a policy.
FRANKLIN VS MINSITER OF HEALTH AND TOWN PLANNING,1948
A minister of helath wanted to reduce the population presssure on london he developed a new
township in London to shift the population and for the same he wanted to acquire the property in
that area. This health minsiter appointed a offcier conducting public enquiry. He held an enquiry
and he prepared a report in which he supported the idea. The minster also dedcided to hold a
public meeting and he was met with angry protests. The minister said that there is no use of
protests. It is my scheme and I will ensure that the schem is executed.
He thereby approved the report of the inspectot.
This action was challenged and one of the grounds of pre-concieved bias. He himself said
publicly but even that is not suffficent to prpve that his mind was completley.
The order of minsiter was quashed – this was a admisntrative matter and not a quasi judicial
matter.
We require very
T Govindaraja Thalliya vs Tamil Nadu
The govt wanted to nationalise the road transport and in order to underatand its feasiblity they est
a small committee . This committte in pricniple decided that nationalisation has to be done
Thereafter the schemewas oublished and objections invited then the minsiter who was a part of
the committee gave the hearing
The court agains rejected it that one has to bring in very strong bias to establish anything like
that.

UNCONSCIOUS BIAS
Pre-diposition bias.
This can be of two types – personality bias ( genetic material +environmental bias)
2) Class Bias
Dred Scott vs US , 1857
Classical judgement of American Supreme Court – in America colour bias is there A case was of
a black person. The quesstion was whether a black person file a suit. The case was he was with
his owner – they travelled to a state in North there was no slavery. And he became a free man
there. Thus, he should be declared free.

The court held that a black man is not a human person. He cannot be a citizen. A peson who is
not a citizen cannot maintain a suit and thereofre the suit was rejected
It showed a very storng class/colour bias.
BROWN VS BOARD OF EDUCATION, 1999
If the the oppuritnities are equal but they are seperated then there is discrimination exists.
In one of the cases the coproration increased the bus fare. The same was challenged before the
court. The judge declared the bus fairs as unreasonable and this decision was challenged on the
ground of class bias. He declared the increase in bus fair as unreasonable because he always uses
bus as a mode of transport. Therefore he is biased, and the deicison should be biased.
The court said it is not sufficent to quash the same

13/09/2023
NOTES MISSED because of depression
Obstinacy Bias
In a Calcutta HC case, certain people had lost their job and challenged it – the single judge gave
the benefit to them. The case went to appeal and the appellate judge reversed it. This single judge
whose decision had been reversed in appeal was very much upset. After two years, a person from
the same group filed a writ again for back wages – this judge again decided in favour of them –
this went to appeal again. The SC noted that this judge had given these persons the same benefit
two years back as well – this judge is so committed that he has given those persons the same
benefit again. They questioned why he was insisting on the persons getting the benefit when the
appellate court had reversed the decision.
The court held that this kind of a tenacity is known as obstinacy bias – you are not able to see the
law, you are only able to see what you want to do in that situation.
Audi Alteram Partem
Right to Fair Hearing or “no one should be condemned unheard.”
Right from the very beginning, the complaint of the people was that they were being punished
without any hearing or notice by those kings who claimed that they had a divine right to rule – as
a result of this behaviour, the common people suffered a lot. The rule of audi alteram partem is
considered to be the most ancient rule of fairness and justice and it is the legitimate expectation
of every human to be given an independent and fair trial and hearing before a decision is taken.
In Britain, the earliest struggle which started against the monarchy was on this particular ground
– before depriving a person of his life and property, every person must be given a fair hearing –
this was the most innate craving of every person during those days of monarchy and dictatorship.
This was the basic ground for the struggle in British history against the monarchy. Therefore, the
whole struggle between the King and the people ultimately culminated in the first charter of
human rights in 1215 known as Magna Carta. An agreement was reached between the King and
the people where the King agreed to three things:
• Whenever there will be a criminal case against a person, before that person is punished,
there will be a trial by an independent person. In that trial there will be three important things:
• That judge must vocate (ask the accused whether he has committed the offence), then
investigate (even if the accused admits, the judge must investigate on the matter – the
investigation must be with the help of the person who has expertise on the subject matter) and
only then adjudicate upon the matter.
• The offence must be proved by his peers.
This was essentially an agreement that no person shall be punished in body and property inl;ess
there is a trial by an independent person. The investigation in this respect pertains to a jury trial –
where the accused is convicted by his peers.
So much is the sacredness of this rule that even if you know everything about the crime and there
is nothing left to be done, the judge has to vocate, investigate and adjudicate – this is the law
even today.
If a person is himself admitting to the crime, then why do you need to give that person
notice and an independent trial?
This is the fundamental principle of criminal jurisprudence and even if there is nothing left to be
known, you are required to abide by it for three principles:
• Respect for the individual – when you ask that person, it means that you have a certain
level of respect for that person, irrespective of the fact that he may be a criminal.
• When you take any administrative decision, if you ask that person first and consult with
them, it will always improve the quality of the administrative decision.
• It will show that the administration is a responsible administration
Even if the law does not provide for a particular thing, the principles of natural justice shall fill
that gap.
The earliest instance when this principle was applied was said to be in 1615 in the Baggs Case.
Baggs Case 1615
Here a person was enfranchised, his membership to the society was terminated and his
citizenship was taken away without any hearing. The administration of that time said that this
was wrong – when you are taking away the citizenship of that person you are required to give
them notice.
The second instance was in 1723 in R v. Bentley.
R v. Bentley 1723
A student of Cambridge University was given a PhD. Once there was a function in the university
and the Chancellor was addressing the students – this person asked a lot of questions to the
Chancellor and the Chancellor was infuriated by this – he thought that the student was trying to
insult him and passed an order for his expulsion, cancelling his degree. This was challenged
before the court.
The court held that a person cannot have his degree cancelled without being given notice and
hearing – a person must at least know why such a serious action has been taken against him.
If the law does not provide for it, the law is unconstitutional – the gap is to be filled by the
principles of natural justice – notice and hearing are to be implied.
Cooper v. Bandsworth
A municipal committee made a rule that any person who manufactures a house must give 7 days’
notice to the municipal committee — the law said that if the notice has not been given then the
municipal corporation shall have the right to demolish the building. In this case,a person was
building a house and had constructed the first storey. Suddenly one evening, the demolition
squad from the municipality demolished his house without the person being made aware of it.
When this was challenged, the government said that the law clearly stated that there is no need
for them to give the concerned person notice and hearing. The person took the claim that he had
posted the notice but it did not reach the authorities.
The court held that even if the law permits for taking an action without notice and hearing, the
deficiency of law will be supplied by the principles of natural justice and it shall be implied that
even the, in a civilised, democratic society, you cannot take an action against any person, against
himself or his property, unless notice has been given.
Thus, even if the law does not provide so, the principles of natural justice and fairness provide
that notice and hearing must be given.
14/09/2023 - Thursday
15/09/2023

16/09/2023 Missed
17/09/2023 – Sunday
18/09/2023
Different componests of fair heraring – notice (b) right to know the evidence agaisnt you (c)
right to present the case. Oral hearing is not a part of natural justice. Unless one can prove that a
prejudice can be caused.
Right to rebut evidence. It is rebutted in two manners. We crossexamine the other party who has
given the evidence against you.
Right to lawyer – he is trained person who can verufy the evidence either oral or both.
In your consitution righ to a lawyer is mandatory from Art 21 – Righ to life an personal liberty.
In case of criminal proceeding – no proceeding can proceed unless there is a lawyer. If any trial
takes place then it is considered to be non-est. In India – the right to a lawyer is a fundamental
right under Article 21 of the constituion. Now due process had become a part of the the due
process
As far as adminstrative proceedings are concerned, right to a lawyer emerges from a sense of
reasonableness and fairness. Therefore, right to lawyer is not a part of natural justice. But in
those case where absence of lawyer creares a serious prejudice. Then it will be read as part of the
provisions and incorporate into it by Natural Justice provisions
Why – lawyers are not seen in good light in any society. Shakespeare mentioned killing lawyers.
Lawyers are always interested in two things fat fee and forged facts.
At one place it has been written that animals are not stupid – they are very reasonable. Because –
they do not have doctors nor lawyers. Unfortunately, doctors have also started losing prestige
since they take the proffession as a bussiness and not as social service. In certain situations,
lawyers are the last wall for the protection of the constituional and human rights. So many
fundamental principles are involved we Expect the lawyers to protect are fundamental rights. For
example the in the dictator of Pakistan who abolished the SC, it was only a consequence of
movement of lawyers that the SC was restored in Pakistan. Society needs laywers especially in
the time of crises.
Question – whether the right to a lawyer becomes part of the natural justice.?
Yes whether fairness demands, right to lawyer becomes part of the natural justice. But where it
will not be fair then it wont be considered to be part of natural justice then it becomes the duty of
the court to provide legal aid. Someone staturest allow representation theough lawyers. Some
statutes prohibit it like in fmaily courts because they unnescesairily delay the matter. However
owing to pressure it was allowed later on.
The assistance of lawyer is allowed with the permission of presiding officer. In govt proceedings
the right of lawyer ca be exercised only with the permission. If the right is coming grom Ar 21,
then that right starts not only from trial but rihht from the investigation.
In admin proceedings, lawyers is necessary only when serious prejudice is cause. When the job
of a person is at state, reputation is at stake. Much depends on the contexuality. Consequenxes
are serious, matter is complicate and person is illiterate, here right to lawywer can be exercised.
However right to lawyer where you have the right to represented by next to kin. Such person
must not be a proffesional lawyer. Admin authrotuyt has the power to regulate this right. The
next of kin must be a person who working in the same industry.
The right can be regulated by law. You can abidcate this right as well. You may not ask for a next
of kin. You are not entitled to take the plae that proceeding is invalid because you were not
represented by next of kin provided you have the notice and you did not care to bring in the next
of kin.
OPEN HEARING –
fundamental principle that justice must be done in open. It was won by the people against the
king in Magna Carta. Otherwise it was done privatedly.
However, Magana carta provided – adminstration of justice shall be in open as far as possible.
All justice must be done in the open. In certain situation – perhaps this particular rule may do
injustice rather than justice. And therefore, in the interest of the justice itself exception can be
made – and where the context provides otherwise the open hearing may not be a natural justice
For eg – family law proceeding involving children are required to be in camera – in UK and
America. Admin law proceedings are in open unless there are adequate reasons to do it in
private. In cases where the national interest involded the inquiry may not be in open. But in all
cases where the fairnes, reasonablensess does not require then it must be open. Even public
enquiries can be held in camera if the contrext demands.
The fundamental principle of Admin law is – Due process of law – in every case one needs to
examine that the process must be due. Due means the process is reasonable, fair and
proportionate.
It is done when the security of the state is involved. The focal point of the adminstratie justice is
open hearing. In cases where the presenting officer is lawyer, then it becomes the right of the
other person. Where, the serious charges are made – reputation then we allow legal
representation. Where the matter is complicated and the person is illiterate. His discretaion is not
final and can be challenged in court of law. The admin authority may regulate it.
The concept of legal aid by the state developed to ensure balcnace, however the problem is we
do not have a choice to select lawyer. In legal aid cases, the first class lawyer is not there.
Uf you have no money to pay the court fee in advance then in that case, the rule is on your
application the court may allow the court to proceed
Forma corpris under CPC – not fee would be tkane if you hace good cause of action and if the
case is decided in your favour then you have to pay the court fee.
19/19/2023
19/09/2023
In administrative decision making one person hears the matter and another decides. For example
the chairman of the inquiry committee will hear the matter and then the VC will take the decision
based on the hearing report. In the same manner all decision of govt taken in name of governor
and president. Governor has never seen you nor has president but decision comes from them. The
problem of institutional decisions, it is not a decision of a particular person and is the decision of
a particular institution.
The above para copied from Yashaswi is not making any sense to me. Please refer some other
notes or book for the same.
In administrative adjudication this is a big problem, the problem of the institutional decision,
problem is that when you know that the person will try his best to convince the person but when
you know that someone else will take the decision then you are compromised in your defence
and this happens a lot in the case of governmental decisions. Is it not a violation of the principles
of natural justice. the problem is one who decides does not hear
ARLIDGE v Local govt board house of lord decision1915
in this case a house rendered unfit for human habitation was involved. The corporation decided
to demolish this and before demolition it is necessary that the person must be given notice and
hearing. The court sent an inspector to visit the place and give hearing. The officer visited the
house and met neighbours and presented his report to the board. Hearing was given to inspector
and his report was approved by board. So this was challenged in the court on ground of violation
of natural justice’fairness. House of lords said no as it is the usual practice in the administrative
decision making and are free to take help of any authority the board in every case cannot give
personal hearing and notice.
In us another case
Morgan v United states
1935 case. Govt wanted to rent storage facilities, for this officer was appointed to discuss and
hear various people who can rent the storage facilities and he after discussing prepared a report
placed before the secretary of the dept and the secretary decided the rates and was challenged
before the courts as one who decided did not hear. This officer did not even make a initial
recommendation and just collected the facts and placed before secretary. The SC quashed and
said that he heard and all the hearing material placed before the secretary. The secretary cannot
decide on that particular basis and therefore it is necessary that the person who is hearing must
make initial decision and then send to secretary and then the secretary can overrule it but initial
decision must be given. Just hearing and putting the file before vc would be wrong and first
make a decision and then put before the vice chancellor. The one who hears must make initial
decision and that particular initial decision be sent to higher authority for reconsideration.
In india there are thw cases
Nageshwara rao v ap trading corporation 1959
The govt wanted to nationalise the road transport and prepared a scheme which was published
and objections invited and the final decision was given by the secretaty. In this case the court
held that this is violation of fundamental principle as one who decided didn’t hear. This decision
was criticised a lot. In nageshwara rao the decision was quashed by the court as the secretary
cannot be independent as the secretary did everything. This means he is not acting acc to the
principle of reaosnablenss and fairness. One who decides must hear. This was wrong in the
administrative
Then came another case
In this case again road was nationalised and scheme was prepared and published and objections
invited and the minister gave the hearing. Ultimately the chief minister approved it and people
rushed to the supreme court. There is violation of ponj and by the tie court had realised that in
administrative proceedings this principle cannot be literally decided as the minister is not the
employee of the dept and minister can take independent decision and thus no violation that one
who decides must hear.
Should they report of the inquiry being shown? Meaning – you were heard by the member of
disciplinary committee and you have prepared a memo and sent everything to the vice
chancellor, can you take the decision that we be given a copy of report before it is sent to vc and
thus we have the possibility of pointing out the factual error. Thus the que is should the report be
shown and therefore the argument is (because of one who decides does not hear) that at-least
copy be given to other party so that he might point out the mistakes and in this case rule is that
report cannot be shown as matter of course and you have to prove that if the copy of report is not
given to you then what prejudice you suffered and what loss was done to you and if you can’t do
this then report shall not be given to you. The ponj is not violated if the other person has applied
independent mind and has given approval or rejection to your request of perusal of report.

20/09/2023
Exception to the principle of Natural Justice
Something which fair – reasonale and just cannot be let got. It is a misnomer. Herein we talk
about
• Express consitution and statutory Exclusion
Under R56 J – fFndamental rules Compulaory retirment – if it does not carry a stigma then no
express exclusion is necessary.
• Impracticablity
If it impractical to notice and hearing then in that situation it will be considered as an exception.
Some people rebelled against the piolice force. They took arms and went into the forest, there it
was impossible to give notice.
• Emergency
if there is an emergency, then you may take action but after the emergency is over give notice
and hearing i.e. post -decisional hearing.
• Useless formailty
Things are very clear then it was
A teacher was given leave to do Mphill – but she was doing some other course. And she herself
said that. Even now if the teacher is given a hearing it is merele a useless prejudice.
• No Serious prejudice
If the adminstration takes an action then no serious prejudice would be caused
A person is on probation then services can eb dismissed without assigng any reason as it will not
cause any serious prejudice. This removal is implied.
• No infringement of rights
The perosn is on probation and his services were temrinated then ( yeah same examcple)
• Necessity
Only one person can take a decision and we say that this person is biaseed then who would take
the decision – in this case the necessity would save the situation and that person would take an
action.
AK Yadav vs Punjab Public Service Commission
only certain persons can take the interview and if we say that those certain persons are not
independet – they are related to this or related to that you cannot shift them but as per law only
they can take the interview. All the people who were to take the interview were related to
intervieweee. Court said nothing can be done but under the same circumstance in USA and UK,
they appoint some other board to give notice and hearing.
• Interim preventive action
If we are to take a preventive action then in that case the PONJ may not be so special.
• Confidentiality
In case of terrorism, public interest, secuirty of state, in these case confidentiality is imp. In USA
a special advocate is provided
IF there is a case where a lot confidentiality is involved – the case of terrorism, security of state,
public interest – in such cases. You can give the person notice and hearing because notice and
hearing because necessity and confidentiallity requires
It is better not to give any hearing then to give some hearing.
• Contractual Decisions
No notice or hearing needed if a certain contract is not renewed
• Policy Decisions
Hearing is not necessary here – For EG HALCOS Case it was decided it not essential
• Legislative or law making
Natural justice is not required unless it is not based upon decided facts.
• Action taken under order of the court
For eg if the court says to reconifrm some person then in that case notice and hearing is not
required
• Matter is abslutely discretionary
In this case, we do not need notice and hearing. IN these cases – wherein you are taking action –
they woulf be considered as exceptions – These are the principles \.
Like Selection committee – whome you will select. In this case there is no right to ask that why I
was not selected.
15. Apparently accepts the fault – no need
In the above circumstances the natural justice need not be adhered to. READ FROM THE
BOOK
ASSIGNMENT – International Adminsitrative Law – Not more than 5 pages. It must clearly lay
down the topic. The name the class and semester very clearly. So that it can be easily identified
and elaborated upon.
It is natural justice principle of fairness reasonableness and justice. If the natural justice
principles are applied here it would result in injustice rather than unfariness. Principles of natural
justice
In this case
The Doctrine of pleasure

Even in India – The mineisterial office is held the pleasure of president. However in India this
pleasure doctrine is not absolute and therefore under Articlr 311 of the constituion. The provision
is that no govt services can be terminated. Unless, he has been given notice or hearing. Without
hearing no
Under this provision, no govt has
Where the person is guilty of fraud
Junior Doctor Adminstrative Committee vs Dr. Nandwani
This doctro in the PG course by presenting forged documents, which was later on detected by the
committee. And his admission was rejected by the committee. Equity does not deman that you
should be given a hearing because
you are the authour of your own fraud
Where the decisions is academic in nature
BS Narwal vs Jawaharlal Nehru
A student has not made a defined academic during the semseter. H/she will not be promoted to
the next semester. Then person can be detained without hearing.
Like Attendance requirement if not fulfilled -
Examination at a centre were cancelled because there was mass cheating – there may be certain
students who may not be using such means. It is not possible humanly to give notice for the
hearing. It

NOTES MISSED
21/09/2023 – Notes missed Attended the lecture
22/09/2023 – Notes missed Attended the lecture
Continuation of exception of ponj.
Principles of natural justice can be excluded by law.
Ponj can be excluded on account of impractability.
In case of emergency
Useless formality
Will create no serious prejudice to the person, if the person is on probation no prejudice caused if
probation is not extended
Where there is no infringement of right of person (interview)
Ponj can be excluded in necessity ak Yadav v Punjab service commission – courts are of opinion
that they should appoint new committee (not sure about ratio)
Confidentiality so demands
Merely interim preventive action
There is a contractual agreement, after contract is over he does not need any notice and hearing if
the contract is not renewed
Where a decision is a policy decision – case of where employees went to court that before we
were transferred to private management we were not heard and policy decision and in policy
decision no need to follow ponj
In legislative ponj not always attracted unless the rule-making is to be made on the basis of
ascertained and decided facts.
Ponj are not attracted where you are taking action under the court order. Where the court decides
that this person may not be given seniority
Where the person already admits the facts then action can be taken against him without notice
and hearing because he agrees to facts
Doctrine of pleasure – in cases where this doctrine applies, notice and hearing not necessary. In
England every state employee holds his job at the pleasure of king and therefore services of any
employee can be terminated at pleasure of monarch. In india this in given in Art 310 of
constitution and says that every member of the central services holds the status at the pleasure of
president and state employee at pleasure of governor but in india the pleasure doctrine is not
absolute in view of consideration of india and therefore art 311 of constitution that no govt
servant can be terminated or punished in any manner unless he has been given notice and
hearing. The govt has the right to make rules and regulations and this should not be violated
(service rules)
Where the action is absolutely discretionary. Selection committee whom you will select isyour
choice and suitability can be judged and there is no right to have notice and hearing as to why I
was not selected. Where the matter is absolutely discretionary.
Where the person is guilty of fraud. Junior doctor administrative committee v doctor BS
Nandwani this doctor took admission in the pg course by presenting forged documents which
was later on detected by committee and his admission was cancelled without any notice and
hearing. Court said equity does not demand that you be given notice and hearing because you are
the author of your own fraud and
where decision is academic in nature, DS Narwal v JNU if a student has not made a defined
academic progress during the semester then he will not be promoted to the next semester. Every
student must have proof that he has attained academic excellence to be promoted to next
semester. Then he can be detained and at the end of semester and list is put on notice board and
you cannot say that before I was detained, I was not given any notice and hearing because the
purpose of ponj is to do fairness and where you do not deserve fairness because of academic
reasons then in that case notice and hearing is not necessary but if you have case that your
attendance is calculated wrongly then there you can have notice and hearing.
The examination of the entire centre was cancelled because of reports of mass copying then the
students cannot complain of not being given any notice and hearing before the result was
cancelled because humanly not possible to give notice and hearing to students and therefore
administrative demands it can be cancelled and disadvantage to few will not be allowed to
prevail over advantage to masses.
The extent of application of ponj will be determined on the basis of facts of particular case and
case of misbehaviour of students towards the principal the ponj were applied but in modified
manner because if general ponj would have applied then it would have led to injustice and so we
say that natural justice can be cribbed and cabled acc to the circumstances of the case.
This is a highly growing area and everyone who specialises in this will have good practice.
25/09/2023 – Notes missed Attended the lecture
Administrative discretion
Referred to as rule free area – you can take the decision but lo laid down criteria – undefined
power of administration aka freedom of choice – where you have the freedom to take any action
without pre-laid down standard and is also known as subjectively worded power – that you can
exercise discretion as you deem fit and proper – subjectively worded ‘as you deem fit and
proper’.
Most of the criticism of administration comes from misuse of discretionary power. However
administrative discretion is necessary evil meaning that no intensive system of governance and
no welfare governance can be undertaken unless you give discretion to the administrative
officers and if discretion is not given then you cannot lay down in detail about every eventuality
and therefore something has to be left at discretion of administrative authority. Man’s finest hour
came when he freed himswlf from the absolute discretion of the monarch. A time where the
theory was that king can do no wrong and this made the life of people miserable and finest came
when man freed himself from absolutism of rulers. Democracy is a blessing for people is often
said because of this. Misuse of discretion is the worst form of injustice and discretion is an
unavoidable necessity as not everything can be laid down in advance and inherent possibility of
misuse of discretion.
Dictionary meaning is freedom to act at one’s pleasure or choice or at will. As you know today
the discretion which is exercised by the administrative authority is the real source of corruption
and is pushing many developing countries to be declared as failed states. There is an
international organisation ‘transparency international’ in his book he writes that I am employee
of un development programme in African countries and lot of money was flowing for the
development of these countries but the tragedy was that while allocating tenders on the discretion
of person, the discretion was so misused that whole money was destroyed and I had no means to
check it. He resigned and started transparency international. Discretion choosing from various
available alternative without any reference to any pre-laid down standard. You can choose any
book from the bookshop and university will pay for it – any book of administrative law – this is
discretion. Without discretion no intensive form of govt/welfare govt can function.
Characteristics of administrative discretion
• Rule free area – you have freedom to take any action but is not a judge free area and can
still be judicially controlled to some extent. The court hve developed certain judicial manageable
standard acc to which the exercise of administrative discretion is controlled.

• Nothing like unlimited discretion – because we have a written constitution and we have
laws under which the discretion is given and therefore on braod principles the court can exercise
control over discretion

• Discretion means choice which is subjective but not whimsical – the whimsical is
unreaonsable/unfair and against the public policy or which violates the conscience of person. No
matter the choice is subjective and

• can be objectively controlled – courts can see whether exercised for bona-fide purpose.
Ex – university has discretion to give scholarship to any poor person. Can they give it to student
coming from rich family saying it is discretion. No, thus there is nothing like unlimited
discretion.

• Compulsive Necessity – no law can take control of every eventuality and law is general
and this generality falters over the specifics of life. The illustration of allowing the student late
for examination shows how generality fails in specificities and is leading to injustice.

Why is it a necessity?

• By-product of intensive form of govt – your welfare scheme cannot function unless some
discretion is given to administrative officials as law cannot provide for every eventuality

• For individualisation of justice – mass justice may lead to injustice to some individuals
and therefore individualisation is necessary
• Provides space for flexibility and experimentation –

• Generality of law falters before the specifics of life

Dangers of administrative discretion

• Being subjective it may lead to misuse

• Wide discretion if given violates the rule of law and makes rule of law a rule of man
which was there is case of monarchies. In welfare state the goals cannot be achieved without
giving discretion but the dangers are inherent and might lead to misuse of power and violates the
concept of rule of law and makes administration the rule of man

• Wide discretion is destructive of fundamental rights of the people. On fundamental rights

only reasonable restrictions can be put and if wide discretion is given to put restrictions then that
is unconstitutional because wide discretion the presumption is of unreasonableness.

How discretion is conferred?

For this various type of expressions are used
• As may deem fit and proper

• Take action which is appropriate

• They may exercise power which in their opinion is proper and expedient

• Can take action which is advisable under the cirucumstances

• Which is convenient

• Take action if they are satisfied for the need for action

• Take action which is necessary for public purposes

All these are wide and various expressions in England no limit to the grant of discretion by
parliament as there the parliament is supreme. The courts there thus have very limited control
over discretion on the ground of unreasonableness and arbitrariness and
basic central problem is if that is rule free area then how can it be objectively controlled by
courts and can it be? The answer is yes and for this purpose the courts have developed various
judicially manageable standards on which administrative discretion is controlled.
Judicial control over administrative discretion
Judiciary exercises power at two levels –
• At time of delegation when parliament or state legislature passes the law and delegates
authority to administrative discretion. Courts will see whether the delegation is excessive or not
and is excessive when it violates the provisions of constitution and law. for example – generally
discretion exercise is violated on the ground of violation of Art 14,19 and 21. The unlimited
power without laying any guidelines for the exercise of that power and in that case it will be
considered whether the delegation of power is excessive or not and if the power is given without
any limit and exercised without any reason in the arbitrary manner then you violate the art 14 as
the art 14 is not only available against unreasonable state classification but available against all
state action which are unreasonable and arbitrary.

• On other reasons on which the administrative action is challenged. For example can be
challenged on ground of arbitrariness, unreasonable and unfairness and deprivation of personal
liberty without the due course.

26/09/2023
Judicial exercise of power of discretion
Adminsitrative discretion – what is dicretion and other asscoiated things.
Can we control the exercise of discretion – it is always subjective. Can it be controlled?/
Yes, Over the years the judiciary has developed certain judicially manageable standards.
Because exercise of discretion carries a lot of problems as well.
In India – judge proof discretion is not possible. No one can say that it is my discretion and
therefore how any one can interfere. It is not the person’s discretion but the power of people
vested in him for public purpoe. Judicial reviwe of adminsitrative acion
Judge proof discreation is not possible – Article 32 and 226 in the cons. He judge will always
ecercise power. Even if the constitution attaches finality to an administrative action. Even then it
is not final and exercise of discretion can be challeged undercoiurt of law
Article 217 – if there is a dispute about the age of judge of SC or HC the president will decide
the matter in consultation with CJI and decision of president shall be final.
Exercise of discretion is it final ( Missed)
Article 113 – if there is a state emergency or there is a threat then services of any govt servants
can be dispensed with.,and the decision o
Final for the authtourity but not for the court. Even when the discretion is committed to the
subjective satisfaction of the authority and it may be constitutional authtoutiy.
Even then the decisions of the Authourity can be challenged. It is a subjective satisfaction
Judicial review is directed only against the manner of that discretion – how it has been exercised.
It is important that the power of the court will not interfere if something is done if something is
done in public interest. Even if you have made a wrong choice in exercise of discretion.
For efg AIR INDIA vs KOCHIN International Airport Authoutity, 1998
Tenders were issued for the hiring of companies, who could handle services at the airport. So in
that case – there was a lower tender from somebody but it was not chosen anither higher tender
was selcted. We will negotiate with them. They would be able to provide better serivice.
IT was challenged why the lower standard was not accepted. It is a misuse of discretion.
It is done in public interest and therefore we do not like to interfere. Anyhting done in public
interest., the court will nt interferw.
Similarly, the court will review adminstrative discretion in all other case and no amount of
restriction on the part of the law can prohibit

Discertion is controlled by the court at two levels

At the time of delegation of disceretion through legislation. So at that particular point the court
controls discretion.
They control on the ground that they can see the discretion which is given does not violate the
provisions the of constituion and the law.
Whn the law is passed unlimited power cannot be delegate. Law making power in which you are
giving discretion can be delegated, only after you have laid down the policy of the law and you
have laid down the guidelines and you have given powers to the authtority then it shall be
considere violation fo the constitution.
Similarly it should also not violate any provisions of the law when the powers are delegated to
adminstrative authotirty. Unlimited powers cannot be delegated
The second level is at the exercise fo that power – when the power has been given and now there
are people to exercise that power of discretion – on that level it is controleled on thr grounds that
the
- discretion has not been exercised at all. Exercise of discretion is not discretion. The words may
or shall no longer matter.
It is not his personal right. But it his duty which has to be discharged anf thereofre cannot refuse
to exercise his/her jurisdiction. The chancellor may decide.
He has to exercise no manner in what manner he does that.
Hridya Narayan vs IPO
The Income tax officer has the power – discretion to ratify the award. Either suo moto or on
application. How it is decided is your disceretion. But the power given under this is a trust and
therefore you will have to ecercise power.
Exercise of discretion cannot be sub-delegated without the authourity of law. If the law gives VC
the authorutyt to take all disciplianry action. S/he cannot without making any rule further
delegate it.
Unless the law authorises you to delegate. We trust in your discretion so you cannot exercise the
power.
27/09/2023
JUDICIAL CONTROL OF ADMINISTRATIVE DISCRETION
Three classical cases of this issue
Slattery Vs Nalido, 1888
First few lines missed
Everybody was allowed to bury his near and dear ones in their own house. This at times created
problmes and therefore the municipal corporation changed the law. No person can bury bodies
within 100 yards of other persons dwelling.
The question was whether this is reasonable or unreasnable?
The long tradtion which British people have been followed is being interfered with. Moreover it
is their own property and no one has a right to object what they do with their own property.
The court observed – what wa\
This restriction is invalid – One can use his/her property in manner they like.
When we decide reasonableness we take into connsideration the (a) culture of the era (b)
customs and traditions of the people (c) contexuality (d) Proportionality of the measure and the
impact it has. It is reasonable to uphole the tradition. To change tradition would be violative of
reason. The times when agricultural societies prevailed they used to decide on the basis of
traditions rather than reason and logic. Customs and traditions of the people are more important
than the reason.

Crews vs Johnson , 1898

An old tradition of people singing and playing music on the streets to entertain people and preach
people also. The streets were used to play music and intereact with everyone. We are still moving
slowly towards reason. The Municpal corporation made a law to prohibit the singing and music
within 15 yards of a residential house if asked to desist i.e. if a persons’ s house is nearby does
not onject than you can sing but if he onjects and you are within 100 yards radius of his house
then you have a right to stop.
Whether it is reasonable or not?
Slowly, the society is changing. If that person objects whocse property is nearby then you cannot
play music there. The society is changing from Trasdition to reason. Therefore the court thought
that if you are singing within 50 yards -
You cannot sing then you have
The context of culture is changing. Reasonableness to a certain extent is a matter of culture.
Reason prevails over tradition. It is an age of reason. You judge everything on the basis of
reason.
Associated Provincial Picture House vs Wellsbury Corporation, 1948
Society has changed a lot. In those days Sunday was complete holiday and therefore on that day
no work was allowed and complete rest . There was a demand that on Sunday Picture house
should remain open. The law changed that the picture hous shall remain open on Sunday – But
no child bellow the age of 15 could enter with or without the guardian.
The question was whether this provision is reasonable or unreasonable. The test was laid down
Lord Denning and the test is known as Wellsbury test.
The test is if that piece of law is found reasonable by man of ordinary intelligence and prudence.
The mind of a intelligent mant is always conditioned by the conditions of the society at that
particular point. Therefore, the court uphel the provision. The society has changed and the
custom is being replaced by reason. The thinking is becoming progressive. Previously it was
very conservative and therefore the context has changed. The court held that it is reasonable. I
First test of reasonablenss
- It should be manisfest on the face alw without any evidence.
- The measure of the law must be such that no reasonable man can take that decision in acting in
good faith,
Meaning therefore that the law must not be capricious and it must be based on certain sense and
it must not be oppressive. If the law is oppressive then we can say
Reasonable or unreasonable it is your thinking which makes it

At a time slavery was not unreasonable to them – there is nothing like violation of human dignity
or there is any injustice. The Northern Amercia which was industrial area always thought that
slavery is the greates sin, since it violates the honour and dignity of a person to maximum extent.
The standard was so much different.
What was reasoanble to south was unreasanble no noth. Because of this dichtomy – no FR
chapter was laid down when it was drafted. It was later only in 19__
There was a war between the North and South. The traditional society are based on tradition and
not the reason. Notes missed at this point.
In the society there always a conflict between reason and tradition what is reasonable to one is
unreasonable to other. The reasonable person to
So many things which are reasonable to us migh unreasonable to the western society. Reasonable
or unreasonable there is no fixed standard. The context becomes very important.
In America that is why it is said The judges are either proggresive or conservative. South –
Conservative and North – progressive.
Birth control tradition or custom – this is the difference between the two. The police had the
unrestricted power to enter the house of any person.
The society ahs changed. It has no fixed standard and changes from time to time.