NATIONAL LAW INSTITUTE UNIVERSITY, BHOPAL

TRIMESTER-XI

PROJECT OF

ADMINISTRATIVE LAW-II

ON

PRINCIPLES OF NATURAL JUSTICE TO CONTROL

ADMINISTRATIVE DISCRETION

SUBMITTED BY: SUBMITTED TO:

HARSHIT SHRIVASTAVA Asst. Prof. SHUSHMA SHARMA

ROLL NO: 2016 BA.LL.B. 44

ACKNOWLEDGEMENT
 ADMINISTRATIVE LAW-II PROJECT

I extend my sincere thanks to everybody who helped with the completion of this project. I am
greatly obliged to our teacher for Administrative Law-II, Asst. Prof. Sushma Sharma who
allowed us to select the fine and interesting topic for the present project and also helped with the
research and compilation of necessary information for the completion of the project.

I am also thankful to the Library Administration for the provision of necessary books and texts
needed for the completion of this project.

Finally, I would like to thank my parents, seniors and batch mates for their support.

Thanking You,
Harshit Shrivastava
2016 BALLB 44

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CONTENTS

ABSTRACT....................................................................................................................................3
INTRODUCTION...........................................................................................................................4
DEVELOPMENT OF ADMINISTRATIVE DISCRETION..........................................................7
RULE AGAINST BIAS AS A MEANS TO CONTROL.............................................................10
DOCTRINE OF HEARING AND ITS DYNAMIC IN NATURAL JUSTICE...........................15
NATURAL JUSTICE VIS-A-VIS ADMINISTRATIVE DISCRETION: JUDICIAL TREND..19
COMPARISON AMONG PRINCIPLES OF NATURAL JUSTICE IN FRANCE, THE UK
AND THE USA.............................................................................................................................24
CONCLUSION..............................................................................................................................30

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ABSTRACT

This paper aims to find out the effectiveness of judicial trend towards the principles of natural
justice in administrative discretion. For the effective study this article is divided into seven parts.
The First part deals with the development of administrative law, how the changing concept of
state from police state to welfare state increased the activities of administrative authorities
which again lead to the accumulation of wide powers in the hands of administrative authority.
The Second part is about applicability of natural justice in various stages of development in
administrative law. In the Third part the author has studied how balance between incapacity of
authorities to provide hearing on one hand and protection of individual right on the other hand
can be achieved because the courts in India emphasises that in the modern complex
administrative system, it is not possible for the authorities to follow the whole procedure of
hearing. The Fifth part analytically studies the role of judiciary in the field of the principles of
natural justice from 1950 to till date. This can be classified into three different phases that is
before 1963, between 1963 and 1978 and after 1978. In the Sixth part a comparative analysis of
United States, United Kingdom and France with India for the application of the principles of
natural justice in the field of administrative action is dealt and important changes which can be
positively followed by our country is also highlighted. Lastly, this paper concludes with the
suggestions as to how the improvements that can be brought to the modern administration in
oreder to have an efficient administration.

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INTRODUCTION

The state exercises numerous categories of functions other than merely those which are
traditionally categorised as Sovereign. In order to exercise these functions in a proper manner
a wide discretionary power is conferred on the authorities, their subordinates, and various
departments. Such administrative discretion should be exercised in consonance with the
principles of natural justice and the rule of law.

Meaning of Discretion: Discretion is the power to decide or act according to one’s own
judgment.
The best definition of administrative discretion is given by Professor Freud,
“When we speak of administrative discretion we mean that a determination may be reached
in part at least upon the basis of consideration not entirely susceptible of proof or disproof. It
may be practically convenient to say that discretion includes the case in which the
ascertainment of fact is legitimately left to administrative discretion”. 1
Where a statute uses the word “may” before describing the power, the word “may” indicates
the freedom of the authority either to act or not to act or to act in one way or other. The grant
of discretionary power created possibilities of abuse of power and uncertainty about how it
would be exercised. The main concern of administrative law is to ensure that such
discretionary power is exercised properly in accordance with and within the limits of the law
that confers it.

As the function of the state becomes increasingly complex, the judicial control of
administrative action has advanced. The court has to perform the difficult task of allowing
maximum freedom to administrative authorities in the choice of their responses without
letting them act arbitrarily. The problem of administrative discretion is complex. It is true
that in any intensive form of government, the government cannot work without the exercise
of discretion by the officials. But it is equally true that absolute discretion is a ruthless
master.

1
Administrative powers over persons and property,1928, p.7.
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Discretionary power itself is not an evil but gives much room for misuse. The real problem is
conferring too much of power to the executives. The Supreme Court 2 itself cautioned that
wide discretion is very dangerous in the absence of legal norms for the proper exercise of
discretionary power by the administrative authority. Therefore the remedy lies in tightening
the procedure and not in abolishing the power itself.
Administrative Discretion and Natural Justice can be called as the two pillars of
administrative law. Administrative discretion is the creation of modern welfare state where as
natural justice is those principles which embodied in the nature itself. It is well established
that even where there is no specific provision in a statute, the duty to follow the principles of
natural justice, i.e., a reasonable opportunity of being heard or to decide without bias are
implied in the nature of the administrative function.
Discretion must be exercised according to common sense and justice, and if there is a
miscarriage in the exercise of it, it will be reviewed. Administration possesses vast
discretionary powers and if complete and absolute freedom is given to it, it will lead to
arbitrary exercise of power. The wider the discretion the greater is the possibility of its abuse.
It is rightly said that every power tends to corrupt and absolute power tends to corrupt
absolutely. All the powers have legal limit. When wider power is given to the authorities the
greater will be the need to control it. If a statute confers discretion on the executive, it must
contain guidelines for the exercise of such discretion.

When the discretion is conferred on the administrative authority without laying down any
parameters, then, there arises the problem of abuse of discretion by the authorities. In such
cases the only remedy available to the person affected is from the court of law. But as a
matter of fact the judiciary is not supposed to interfere with the exercise of administrative
discretion by the administrative authorities. There is growing realization that such power are
necessary to achieve a just social order and to make rule of law a positive reality, but that
does not mean that the administration must be given unlimited and unnecessary discretion,
nor does it mean that the administration must be free from all limitations in the exercise of
the discretion.

2
Dwaraka Prasad v. U.P, AIR 1954 SC 224.
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When the authority is exercising decision making power, then it has to follow the principles
of natural justice. Now in the complex and fast growing governmental policies, the
administrative authority is least bothered about the violation of individual right. Whenever
administrative discretion is used beyond the power of the authority, then the affected party
has every right or opportunity of being heard, when his right is violated even though there is
a silence on the procedure to be followed. The present study tries to find out how far the
administrative authorities are following the principles of natural justice while exercising
discretionary power, what the judicial trend is in this regard and where is the lacunae lie and
how it can be rectified.

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DEVELOPMENT OF ADMINISTRATIVE DISCRETION

Administrative law is the law applied by the administrative authorities in the functioning of the
Government. It cannot be said to originate in a particular era.
It is as old as the executive system of the government. 3 The historical perspective of
administrative law can be traced in the era before Christ. It is a slow development over times. 4
Administrative law as a branch of law has gained recognition and developed as a branch of
public law only in the present century. It is said as the outstanding development of the 20th
century. The main reason for the development of administrative law was the transformation of
the concept of state, that is, socio-economic and political changes. The state was originally
confined with its traditional function of defense, administration of justice and maintenance of
law and order. In the laissez faire era of free enterprise and maximum contractual freedom, the
functions and responsibilities of the state were reduced to minimum.

The failure in laissez faire system resulted in the transformation of negative concept of police
state into the positive social welfare state. The increase in the population of cities resulted in
many problems like overcrowding, unhygienic condition of living, unemployment and
exploitation of labour etc. To make over all these problems, the state took social welfare
responsibilities and the functions and powers of the state were expanded. The activities of state
extended to all aspects of human life. Such expansion of functions vested with executive
authorities a plethora of powers.5

In India Administrative law was existent in India even in ancient times. Under the Mauryas and
Guptas, several centuries before christ, there was well organised and centralized administration
in India.

In “Kautiliyas arthashastra” a well planned and systematic administrative set up was given. The
authorities were called “adyakshakas” and each one is given a well planned portfolio in the
Arthasastra.6 The rule of “Dharma” was observed by kings and Administrators and nobody
claimed any exemption from it.

3
Parker, The Historic basis of Administrative law, 1 Rutg.L.R. 499 (1958).
4
Robson in Ginsberg(ed), Law and Opinion in England in the 20th century. P. 200.
5
S.P .Sathe, Administrative law 7th edn. Lexis Nexis, Third Print 2008 P 5
6
Rangarajan, Kautilyas Arthasastra, Penquin Books,1992.
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The basic principle of natural justice and fair play were followed by the kings and officers as the
administration could be run only on those principles accepted by Dharma, which was even a
wider word than “Rule of Law” in England and “Due process of Law” in America, yet, there was
no Administrative law is existence in the sense in which we study it today. In India,
Administrative Law has its special significance because of the proclaimed objective of the Indian
Constitution to build up a welfare society. This has generated administrative processes which
resulted in further development of Administrative Law in India. The primary objective of
Administrative Law is to ensure legal control of the administrative power and to provide
protection to the citizens against the abuse of such power.7

Rule of law and Administrative Law:

Dicey’s concept of rule of contains three basic principles:

a) The absolute supremacy or predominance of regular law as opposed to the influence of
arbitrary power, and excludes the existence of arbitrariness, of prerogative, or even wide
discretionary authority on the part of the government.8
b) It means equality before law or the equal subjection of all classes to the ordinary law of
the land administered by the ordinary law courts.9
c) The constitution is the result of the ordinary law as developed by the traditional courts
through the common law tradition and provides for the legal protection of the individual
not via bill of rights, but through the development of the common law.10 Building up his
argument on this principle Dicey asserted that there was no rule of law in France,
because under the system of Droit administratiff prevailing there, separate administrative
courts were established for deciding cases between the government and the citizens.
But Dicey’s analysis of French system was the grave misunderstanding about the working of the
system. Although the Conceil d’etat, the highest administrative court in France was technically
apart of the administration and it was functionally independent and very effective in controlling
the abuse of administrative power. Hence it could be seen that there is a well established system
of Administrative law prevailed in France.

7
Gaurav Akrani, www.kalyan-city blogspot.com.
8
Entick v Carrington (1765) 19 St Tr 1030, Lord Camden.
9
Conway v Rimmer (1968) AC 910.
10
Ridge v Baldwin (1964) AC 40).
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The noticeable feature of modern legal systems is the extent to which officials whether they be
judicial or administrative, make decisions in the absence of previously fixed, relatively clear and
binding legal stands.11 The vagaries of language, diversity of circumstances, and the
indeterminacy of official purpose are, as HLA Hart12 has reminded us, considerations which
guarantee discretion some continuing place in the legal order and makes its elimination an
impossible dream. The proper legal strategy is to keep it to a minimum and make efforts towards
its regulation by fixed and certain rules. The principle that discretions must be exercised
according to law is indeed deeply entrenched in the common law, although the demarcation line
between the legality and the merits of the exercise of discretion may vary depend upon the
particular context in which the issues arises.13

Discretion according to Coke was a science or understanding to discern between falsity and
truth, between right and wrong between shadows and substances, between equity and colourable
glosses and pretences and not to do according to their wills and private affections. 14 The
authority in which discretion is vested can be compelled to exercise that discretion, but not to
exercise it in any particular manner. In the exercise of its discretionary power the authority must
not do what it has forbidden to do, nor must it do what it has not been authorized to do.

11
D.J.Galligan, Discretionary powers, Clarendon press, reprint 1990, p.21.
12
HLA Hart, The concept of law, Oxford UP, 1961.
13
J.M. Evans, de SMITH‟s , Judicial Review of Administrative Action, Stevens & Sons Ltd, 4th edn London 1980
p.279.
14
Rook’s case (1958) 5 Co. Rep. 99b, 100a.
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RULE AGAINST BIAS AS A MEANS TO CONTROL

Rule against bias is one of the important doctrines of principles of natural justice. According to
Dictionary “anything which tends or may be regarded as tending to cause such a person to decide
a case otherwise than on evidence must held to be biased”.15

Rule against bias is based on three maxims:

(i) No man shall be a judge in his own cause.

(ii) Justice should not only be done, but manifestly and undoubtedly seen to be done,16 and

(iii) “Judges, like Caesar’s wife should be above suspicion”17

The rules of natural justice are developed with the growth of civilization and the content thereof
is often considered as a proper measure of the level of civilization and the rule of law prevailing
in the community.

In ancient India to render justice two characteristic features were applied. They are Impartiality
and Equity, which are regarded as the two pillars of justice. Impartiality includes both bias and
fair hearing.

According to Kane, the primary duty of king was to administer justice impartially 18. Brihaspati
states that the king while hearing a case between two litigants, the essential quality required by
him is impartiality.19 When the king is seated on the seat of justice let him be devoid of passion,
and show equality towards all, that is, to provide equal opportunity to both litigants. For
rendering justice, the Ancient Egypt recognized the impartiality. The judges were injected to
administer the law impartially.20

The fairness was applied in ancient procedural system. The judicial process of summoning the
accused is principles of natural justice applied by the king during ancient time. According to
Aristotle there are two concepts of justice, lawfulness and equality. Justice is that which is lawful

15
A.P.SRTC v. Sri Satyanarayana Transport (P) Ltd., AIR 1965 SC 1303
16
Lord Hewart in R v. Sussex Justices, Ex p. McCarthy, (1923) All ER 233.
17
Justice Bowen in Lesson v. General Council (1889) 43Ch D 366 (385): (1886-90) All ER 78.
18
Sethna. M. J. Jurisprudence Lakhani Book depot, 1973, p.173.
19
Ibid at p.174.
20
Ibid at p.164.
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and which equals for fairness. Aristotle states when justice is required the law which is needed
should be adopted and the principle of fairness to be applied.

The principles of natural justice were applied in judicial function. Then the trend changed and it
started applied to bodies acting judicially.

The real test, which distinguishes a quasi-judicial act from an administrative act, is the duty to
act judicially. In considering whether a particular statutory authority is quasi-judicial body or
merely an administrative body, it has to be ascertained that whether the statutory authority has a
duty to act judicially.21

The land mark case in this area is Rex v. Electricity Commissioners, ex p. London Electricity
Joint Committee Co.22 In this case the Commissioners had a statutory duty to make scheme with
regard to electricity districts and to hold local inquiries before making them. They made a draft
scheme which in effect allocated duties to one body which the Act required to be allocated to a
different kind of body. This was held to be ultravires, and the question was whether prohibition
would lie. It was argued that the proceedings of the commissioners were purely executive and
controllable by Parliament alone. All this arguments swept aside and the court made it plain that
any statutory authority acting ultravires could be called to order by the prerogative writs- by
prohibition, to prevent them proceeding further with an unauthorized scheme, and by certiorari,
to declare that any decision already taken was ineffective. Atkin L.J23 said:
“whenever anybody 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 to the controlling jurisdiction of the King’s Bench Division exercised in these writs”.

The administrative authority is required to act quasi-judicially if the legislature expressly

provides it. The administrative authority would apply the rules of natural justice when the
legislature concerned is silent about it to act judicially. Whenever there is express provision in
the statute itself which requires the administrative authority to act judicially, the action of such
authority would necessarily be a quasi-judicial function.

21
C.K. Thakker, Administrative law, Eastern Book Publication, 2nd Edn. 2012.
22
(1924) 1 K.B. 171.
23
Ibid at 205.
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In Nakkuda Ali v. Jayaraman,24 the collector of the textiles cancelled a license of a textile dealer
on the ground that, he was unfit to continue as a dealer. Before passing an order, he was not
heard. The Privy Council held that action of controller in cancelling of the license was executive
action and so the duty to act judicially was not required.

In Province of Bombay v. K .D. Advani,25 under Section 3 of the Bombay Land Requisition
Ordinance, 1947, the Provincial Government was empowered to requisition any land for any
public purpose “if the opinion of the government it was necessary or expedient to do so”. It was
contended that the government while deciding whether requisition was for public purpose, had to
act judicially. The respondent was having a double storey building. The government served a
notice to the respondent and took the building. The government did not wait for the reply.

After three years the government transferred it to Sindhi refugee. It collected the rent and gave a
portion of it to K.D. Advani. This function was challenged as violative of Principles of Natural
Justice. The Bombay High Court upheld the said contention. Reversing the decision the Supreme
Court held by majority that the government function of requisition of the property was not quasi-
judicial, for the decision was based on subjective satisfaction of the government and it was not
required to act judicially. The Apex Court held that it is purely administrative function and the
government need not follow the principles of natural justice.

There was a turning point in Ridge v. Baldwin,26 In this case, the Chief Constable of Brighton
had been tried and acquitted on a criminal conspiracy to obstruct the course of justice. Two other
Police officers were convicted and the judge twice took the opportunities to comment adversely
on the chief constable’s leadership of the force. Thereupon, the Brighton’s Watch Committee,
without giving a notice or offering any hearing to chief constable, unanimously dismissed him
from office. His solicitor then applied for a hearing and was allowed to appear before a latter
meeting. The Committee confirmed its previous decision. The Chief constable filed appeal to the
Home Secretary and was dismissed. Finally he turned to the Court of law claiming that his
dismissal was void since he had been given no notice of charge against him and no opportunity
of making his defense. But it was refused by the High Court and by a Court of Appeal. But it was
awarded by the House of Lords.
24
(1951) AC 66.
25
(1950) AIR SC 222.
26
(1963) 2 All ER 66
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The House of Lords, reversing the decision of Court of Appeal, held that all the administrative
action should follow the principle of fair hearing and that the power of dismissal of an employee
cannot be exercised without giving reasonable opportunity of being heard and without observing
the principle of natural justice. According to Lordship the duty to act judicially need not
necessarily be a prerequisite for issuance of a writ of certiorari. The House of Lords decided that
there is no point in labelling functions as quasi-judicial and administrative because even the
administrative or executive are subject to the rules of natural justice.27

Lord Reid made it clear that the duty to act judicially must arise from the very nature of the
function intended to be performed and it need not be shown to be super added.28
The same principle was applied in A. K. Kriapak v. Union of India.29 The Supreme Court held
that the selection committee, which is making selection, is administrative in nature. Even though
the selection committee is administrative in nature, it is under a duty to act judicially. The Apex
Court stated that the dividing line between Administrative function and quasi-judicial power is
quite thin and being gradually obliterated.
The duty to act judicially need not be super added and it may be spelt out from the nature of
power conferred, the manner of exercising it and its impact on the rights of persons affected.30

Kinds of Bias:

1. Personal Bias

Personal bias arises from a certain relationship equation between the deciding authority and the
parties which incline him unfavourably or otherwise on the side of one of the parties before him.
Such equation may develop out of varied forms of personal or professional hostility or
friendship. However, no exhaustive list is possible.

In D.K. Khanna v. Union of India,31 the High Court quashed the selection of the candidature of
the petitioner where his son-in-law was a member of the Selection Committee.

2. Pecuniary Bias

27
Ridge v. Baldwin (1963) 2 All ER 66.
28
Supra.
29
1970 AIR SC 150.
30
Maneka Gandhi v. Union of India, 1978(1) AIR SC 597.
31
AIR 1973 HP 30.
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Judicial approach is unanimous and decisive on the point that any financial interest, howsoever,
small it may be, would vitiate administrative action. The disqualification will not be avoided by
non-participation of the biased member in the proceeding if he was present when the decision
was reached. However, the rule against bias will not be applied where the judge though having a
financial interest, has no financial interest in the outcome of the case.
In Mohapatra and Co v. State of Orissa32 some of the members of the committee set up for
selecting books for educational institutions were themselves authors whose books were to be
considered for selection. It was held by the Supreme Court that the possibility of bias could not
be ruled out. Madan J. Observed, it is not the actual bias in favour of the author- member that is
material, but the possibility of such bias.

3. Subject-matter Bias
Those cases fall within this category where the deciding officer is directly, or otherwise,
involved in the subject matter of the case. Here again mere involvement would not vitiate the
administrative action unless there is a real likelihood of bias.33

AIR 1984 SC 1572.

32

R. v. Deal Justices ex p. Curling, (1881) 45 LT 439; Murlidhar v. Kadam Singh, AIR 1954 MP 111; Gullapalli
33

Nageswara Rao v. APSRTC, AIR 1959 SC 308.

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DOCTRINE OF HEARING AND ITS DYNAMIC IN NATURAL JUSTICE

The fair hearing is based on the maxim “Audi Alteram Partem” means that no man should be
condemned unheard or both sides must be heard before passing any order.34 There should be a
general right to both sides to be heard. In the quest for justice where the Rule of Law prevails
there has been no more spontaneously acceptable idea than the principle embodied in the maxim
audi alteram partem.35

A hearing is not a hearing in simple form but contains many ingredients from which the
administrative authorities need to follow at least the minimum requirements.

ESSENTIALS OF HEARING-

The conduct of a hearing must be fair. It is a reflection of deeper principle that a party is entitled
to present his case fully. There are statutory rules of procedure for tribunals, inquiries and courts
but in the absence these rules, the procedures to be followed will largely depend on the nature of
the adjudicating body in question. The fair hearing includes the following elements:

1. Notice:

One of the essential elements of principles of natural justice is notice. It is a basic principle of
natural justice. The authority concerned should serve the affected party with a notice of the case
against him. Notice is regarded as the minimum obligatory condition. It is the first limb of this
principle.36

In MCD v. Ajantha Iron & Steel Co. (P) Ltd.,37 without prior notice, disconnection of electricity
supply was effected on the allegation of theft of energy by the consumer. The said action was set
aside observing that t was not possible to assume the accusation as correct without issuing a full
fledged trial particularly when the service of notice was “a prerequisite for disconnection”. It was
not understood as to what was the difficulty in the way of the electric company to serve a notice
on the consumer before discontinuing the supply.

34
Painter v. Liverpool Oil Light Co., (1836) 3 A&E 433.
35
Paul Jackson, Natural Justice, Sweet and Maxwell, 1973.
36
Canara Bank v. Devasis Dass, AIR 2003 SC 2047.
37
(1990) Supp SCC 157,162.
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The term “Notice” originated from the Latin word “Notitia” means “being known”. In legal
sense it embraces circumstances that ought to induce suspicious or belief, as well as direct
information of the face. Notice is making something known of what a man was or might be
ignorant of before. And it produces diverse effect for, by it, the party who gives the same shall
have the same benefit, which otherwise he should not have had.38

Essential requisites of a notice-

a) Notice to Be Addressed Correctly

b) Notice to be served in sufficient time
c) Notice to mention time and place
d) Notice to be clear and unambiguous

2. Right to know the Evidence against him

Every person who has come to the administrative authority to prove his side, has the right to
know the evidence used against him. The element of hearing, right to know the evidence was
held in Dhakeshwari Cotton Mills v. Commissioner of Income Tax,39 where the appellant
Income Tax Tribunal did not disclose the information supplied to it by the department. The
Supreme Court held that adverse material in original form is not necessary. It is sufficient if the
summary of the contents of the material is supplied. The person is allowed to take note of
evidence or inspect the file against him to explain the same.40

3. Right to present case and Evidence

The administrative authority after disclosing the matter should afford a reasonable opportunity to
the party to present case. This element is the most important element in the principles of natural
justice. Donoghmore report says that there should be argument which heard from the affected
party which is regarded as fundamental.41 The right to present case implied that there must be an
opportunity to be heard and such an opportunity must be reasonable. It must grant an opportunity
on the part of the administrators to look into the relevant aspects like the need to award

38
CST v. Subhash and Co., (2003)3 SCC 454.
39
AIR 1955 SC 65.
40
H. Sabey and Co. Ltd v. Secretary of State for Environment, (1978) 1 All ER 586.
41
H.H Marshell, Natural Justice, Universal Law Publishing and Indian Print 1996.
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compensation, capacity of the accused to pay and several other relevant factors before taking an
action.42

If in a case where the persons to whom the hearing to be given is large in number, in such case
the opportunity need not be given to each individual. And this will not amount to failure of
natural justice. The authority may not be able to make enquiry with the entire person. In such
cases the hearing can be given at the discretion of the authority.43

Lord Boreburn in Board of Education v. Rice44 held that an administrative body entrusted
must act in good faith and listen fairly to both sides. Failure to accord fair hearing either to the
accused or the prosecution violates even minimum stands of due process of law. It is inherent in
the concept of due process of law that condemnation should be rendered only after the trial in
which the hearing is a real one, not sham. Since the fair hearing requires an opportunity to
preserve the process, it may be vitiated and violated by an overhasty, stage-managed, tailored
and partisan trail.45

The Indian Evidence Act, 1872 does not apply to adjudicatory bodies. The administrative
authority must allow the party to present his evidence to defend his side. The opportunity to
present evidence would amount to principles of natural justice. The strict provisions laid down in
the Evidence Act are not applicable to administrative adjudication, nevertheless, the proceeding
are subject to rules of natural justice. The rules of natural justice are not codified and cannot be
stated with exactitude.46 The policies and principle underlying Indian Evidence Act may be
imported into administrative adjudication on the ground of fairness.47

In Dhakeshwari Cotton Mill Ltd. CIT,48 the Supreme Court quashed the decision of the
administrative authority on the ground that not allowing the assessee to provide materials
evidence violates the natural justice, which implies that there is a violation of principles of
natural justice. In another case the commissioner allowed the assesses for an opportunity on
objection of the commissioner of Income Tax, the opportunity was given to the assessee. But the
42
Mangi Lal v. State of MP, (2004) 2 SCC 447.
43
M. C. Mehta v. Union of India, (1987) 1 SCC 395.
44
(1911-13) All ER 36.
45
Best Bakery case (2004)4 SCC 158.
46
Amulya Kumar v. L.M. Bakshi, AIR 1958 Cal 470.
47
Jain and Jain, Principles of Administrative Law, Wadhwa Publication, 6th edn. 2007.
48
AIR 1955 SC 65.
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opportunity given was not full.49 Therefore there was violation of principles of natural justice.
The tribunal must consider all relevant evidence which the party wishes to submit. It is clear that
the strict rule of evidence need not be observed provided that they observe principle of natural
justice. The technical rule of evidence does not apply to their proceeding so they can also rely on
hearsay evidence. Hearsay evidence is clearly admissible before a tribunal.

4. Reasoned Decision
The third principle of natural justice is that person should know the reason for the decision. This
was recommended by the Committee on Minister’s Powers in England. In Rama Varma
Bharathan Thampuran v. State of Kerala,50 it was held that the administrative bodies having
judicial powers must comply with natural justice and give reasons for the decisions. The
Committee on Minister’s Power go on to argue that when further proceedings are open to a
disappointed party it is contrary to natural justice that the silence of Minister or the Ministerial
Tribunal should deprive him of his opportunity. The duty of subordinate authority is to make
enquiry and the decisions are made by the superior authority. In this kind of situation the party
concern can defend him with reference to the report.

5. Institutional Decision
Personal hearing enables the authority concerned to watch the party charged, also of the witness
appearing and clear the doubt which arises during the proceeding and evidence and arguments
taken and at last giving the good and fair order or decision. That is why cardinal principle of a
judicial system is that a case should be decided by the authority hearing the argument and that a
successor cannot decide so. Lord Denning in Barnard v. National Dock Labour Band,51 stated
that while an administrative function can often be delegated, a judicial function rarely can be. No
judicial tribunal can delegate its function under expressly enabled to do so.

49
R. B. Shreeram Drug Prasad v. Settlement Commission, AIR 1989 SC 630.
50
(1979) 4 SCC 782.
51
(1953) 2 QB 18.
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 ADMINISTRATIVE LAW-II PROJECT

NATURAL JUSTICE VIS-A-VIS ADMINISTRATIVE DISCRETION: JUDICIAL

TREND

The Supreme Court played a very important role in the development of principles of natural
justice in India. The development can be attributed to different stages in the judicial era.

Development of principles of natural justice can be divided into three phases.

I. DEVELOPMENT BEFORE 1963

The famous case of A.K. Gopalan v. State of Madras52 was the first case filed challenging the
constitutional validity of an act under the provision of A.21 of the Indian Constitution. The court
were of the opinion that- "Procedure established by law" means procedure prescribed by law of
State.

A plain reading of Art. 21 the meaning seems to be that you cannot deprive a man of his personal
liberty unless you follow and act according to the law which provides for deprivation of such
liberty. it is observed that the word "law" in Art. 21 have not been used in the sense of "general
law" connoting what has been described as the principles of natural justice outside the realm of
positive law. "Law" in that article is equivalent to state-made law.53

In this case there was a very narrow view taken by the court regarding the application of natural
justice principle.

Before 1963 Principles of Natural Justice was not applied to administrative functions. It was
applied only to quasi-judicial functions.

In Province of Bombay v. Kushal Das Advani,54 under sec 3 of the Bombay Land Requisition
Ordinance, 1947, the Provincial Government was empowered to requisition any land for any
public purpose “if the opinion of the government it was necessary or expedient to do so”. It was
contended that the government while deciding whether requisition was for public purpose, had to
act judicially. The respondent was having a double storey building. The government served a

52
AIR 1950 SC 27.
53
Kania C. J; Patanjali Sastri; B. K. Mukherjea and Das JJ., in A.K. Gopalan v. State of Madras, AIR 1950 SC 27.
54
AIR 1950 SC 222.
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notice to the respondent and took the building. The government did not wait for the reply. After
three years the government transferred it to Sindhi refugee. It collected the rent and gave a
portion of it to K.D. Advani. This function was challenged as violative of Principles of Natural
Justice. The Bombay High Court upheld the said contention.
Reversing the decision the Supreme Court by majority held that the government function of
requisition of the property was not quasi-judicial, for the decision was based on subjective
satisfaction of the government and it was not required to act judicially. The Apex Court held that
it is purely administrative function and the government need not follow the principles of natural
justice.55

After this case the Apex Court had made it very clearly in each and every judgment that the
administrative authorities have to follow principles of natural justice only when they are acting in
a quasi-judicial capacity.

II. DEVELOPMENT AFTER 1963

There was a turning point in a landmark case Ridge v. Baldwin56 which held that principles of
natural justice can be followed by administrative actions.
The Ridge v. Baldwin is a landmark case which shifted the judicial attitude in order to secure
fairness in the sphere of administration. This case was the modern development of the principles
of natural justice. In this case, the Chief Constable of Brighton had been tried and acquitted on a
criminal conspiracy to obstruct the course of justice. Two other Police officers were convicted
and the judge twice took the opportunities to comment adversely on the chief constable’s
leadership of the force. Thereupon, the Brighton’s Watch Committee, without giving a notice or
offering any hearing to chief constable, unanimously dismissed him from office. His solicitor
then applied for a hearing and was allowed to appear before a latter meeting. The Committee
confirmed its previous decision. The Chief constable filed appeal to the Home Secretary and was
dismissed. Finally he turned to the Court of law claiming that his dismissal was void since he had
been given no notice of charge against him and no opportunity of making his defense. But it was
refused by the High Court and by a Court of Appeal. But it was awarded by the House of Lords.

55
Province of Bombay v. Kushal Das Advani, AIR 1950 SC 222.
56
(1963) 2 All ER 66.
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 ADMINISTRATIVE LAW-II PROJECT

The House of Lords, reversing the decision of Court of Appeal, held that all the administrative
action should follow the principle of fair hearing and that the power of dismissal of an employee
cannot be exercised without giving reasonable opportunity of being heard and without observing
the principle of natural justice. According to Lordship the duty to act judicially need not
necessarily be a prerequisite for issuance of a writ of certiorari. The House of Lords decided that
there is no point in labelling functions as quasi-judicial and administrative because even the
administrative or executive are subject to the rules of natural justice.57

In this case the House of Lords do not made any distinction between administrative and quasi
judicial function. So whatever may be the nature of function the application of natural justice
principles was made compulsory.

This development in England has had its parallel development in India31 culminating in the
historic decision in A.K. Kraipak v. Union of India,58 where the Supreme Court had observed:
"The dividing line between an administrative power and a quasi-judicial power is quite thin and
is being gradually obliterated".

III. DEVELOPMENT AFTER 1978

In 1978 there was another major development happened in the application of natural justice
principles in India.

Maneka Gandhi v. Union of India59 is the landmark case of the year in administrative law,
especially in the area of natural justice. It will be enough for the purposes of this survey to
analyse the judgment of Bhagwati J. who formed the majority on the bench. The passport of the
petitioner was impounded by the Government of India under section 10(3)(c) of the Passport
Act, 1967, in public interest.60 The petitioner asked for a copy of the statement of reasons for
making the order as required by section 10(5). 61 To this the government replied that it had

57
Ridge v. Baldwin (1963) 1 All E R 66.
58
AIR 1970 AC 150.
59
AIR 1978 SC 597.
60
S. 10 (3) (c) of the Passport Act authorises the passport authority to impound or revoke a passport “if the passport
authority deems it necessary so to do in the interest of the sovereignty and integrity of India, the security of India,
friendly relations of India with any foreign country, or in the interests of the general public”.
61
S.10(5) requires the passport authority impounding or revoking a passport to “record in writing a brief statement
of the reasons for making such order and furnish to the holder of the passport...on demand a copy of the same unless,
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decided "in the interest of the general public" not to furnish her a copy of the statement of
reasons for making the order. The petitioner challenged the government's order through a writ
petition in the Supreme Court under Article 32 on several grounds. We are interested here mainly
in one ground, viz., that the order impounding the passport was null and void as it had been made
without affording her an opportunity of being heard in defence. The question of the scope of
natural justice in revocation of a passport was, therefore, directly raised in this case.62

Thus, in the words of Bhagwati J.:

“The law must, therefore, now be taken to be well settled that even in an administrative
proceeding, which involves civil consequences, the doctrine of natural justice must be held to be
applicable.”

In Aligarh Muslim University v. Mansoor Ali Khan,63 the court held that even if an authority
has discretion to refuse extraordinary leave to obtain employment abroad, nonetheless this
should be exercised reasonably. In this case, the respondent, who was working as a laboratory
assistant in the University, was granted two years extraordinary leave in order to join a job in
Libya. Before the expiry of this time period, he applied for extension of leave for a further period
of three years. However, he was granted leave for a further one year only. Nonetheless, at the
expiry of his term of employment, he entered into a further two-year contract in the foreign
country.

At the end of the first year of this contract (i.e. at the conclusion of the extension of leave granted
to him) he applied for a further extension of leave for a period of one year to cover the remainder
of the contract. He assured the university that he would definitely join duty immediately on the
expiry of the extended period of such leave. The university sent him a telegram stating that his
request for further extension was refused and that he should resume duties by a particular date
failing which "he would be deemed to have vacated" the post and would cease to be in the
university service.

in any case, the passport authority is of the opinion that it will not be in the interests of the sovereignty and integrity
of India, the security of India, friendly relations of India with any foreign country or in the interests of the general
public to furnish such a copy”.
62
Maneka Gandhi v. Union of India, AIR 1978 SC 597.
63
(2000) 7 SCC 529.
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 ADMINISTRATIVE LAW-II PROJECT

The court held that the rules of natural justice were violated but refused to set aside the order on
the ground that no prejudice was caused to Mansoor Alikhan.

The courts do not like the idea of confining the rules of natural justice within any rigid formula.
The court insists that what is required is fair play in action. While over time the courts have been
expanding the parameters of the applicability of principles of natural justice or fairness in
administrative process.64 The courts insists that natural justice is not fixed but a flexible
concept,65 that there is no invariable standard of hearing and that each case has to be decided on
its own merits.

64
M P Jain and S N Jain, Principles of Administrative Law, 6th edn. P. 388.
65
Rattanlal Sharma v Managing Committee, AIR 1993 SC 2155.
23
 ADMINISTRATIVE LAW-II PROJECT

COMPARISON AMONG PRINCIPLES OF NATURAL JUSTICE IN FRANCE, THE UK

AND THE USA

I. PRINCIPLES OF NATURAL HEARING IN UNITED KINGDOM

In the quest for justice under the Rule of Law there has been no more spontaneously acceptable
idea than the principle embodied in the maxim Audi Alteram Partem.66 The principle of fair play
is so deeply rooted in the minds of modern Englishmen.67

The rule of fair hearing in England is followed similarly as that of in India with few
modifications. The numerous administrative authorities, both local and central which came into
being in the nineteenth and twentieth centuries had increased the scope of principles of natural
justice. The natural justice is not for the power exercised but for the person concerned who are
affected with legal rights or interest.
In Copper v. Wandsworth Board of Works,68 where the judgment of the case makes with clarity,
the right to be herd. Under an act of 185569 it was provided that no one might put up a building in
London without giving seven days notice to the local board of works and that if any one did so,
the board might have the building demolished. A builder nevertheless began to erect a house in
Wandsworth without having given due notice and when his building had reached the second
storey the board of works sent men late in the evening who demolished it. The board did exactly
what the act said, they might do it. And their action was, of course, purely administrative.
Nevertheless, the builder brought a successful action for damages for the injury to his building,
merely on the ground that the board had no power to act without first asking him what he had to
say for himself.

Byles J stated that although there are no positive words in a statute, requiring that the party shall
be heard, yet the justice of the common law will supply the omission of the legislature.70

66
Paul Jackson, Natural Justice Sweet and Maxwell, 1973 p-10.
67
Muaugham J in Maclean v. The workers union, H.H. Marshal.
68
(1863) 14 CBNS 180 in Foulkes‟s Administrative Law, Butterworth’s publications,6 th edn. 1986 at p.233.
69
The Act, of 1855, provided that if seven days notice was not given before laying the foundation of a house or
making any drain, the Board could demolish the house, alter the drain etc.
70
(1953)- H.H. Marshal, Natural Justice , Universal Law Publishing and Indian Print 1996 at 54.
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 ADMINISTRATIVE LAW-II PROJECT

This principle was recommended by the Committee on Minister’s Power which issued its report,
commonly known as Donoughmore Report, in 1932. The Committee’s second principle deals
with the maxim Audi Alteram Partem. The Committee’s view of the principle of audi alteram
partem is, no party ought to be condemned unheard; and if it is right to be heard is to be a reality,
he must know in good time the case he has to meet. The Committee, however, maintained that
neither branch of this principle has any particular procedure, by which the evidence and
argument are “heard”, be regarded as fundamental. The audi alteram partem rule of the
principles of natural justice is applied in Parliament, Courts and Tribunals and also in contract.

Originally the administrative action followed the principle of natural justice. Till the middle of
20th century the fair hearing was followed. During the middle of 20th century there was a break
through to the tradition of applying fair hearing. The House of Lords had held that the deciding
minister’s function was “purely administrative” in nature and in no way judicial or quasi-
judicial15. The court began to hold that natural justice had no application to ordinary
administrative action.

The trend changed in Ridge v. Baldwin,71 where the case brought that even though it is
administrative in nature the administrative authority must follow the fair hearing.

At least they have to follow the minimum hearing which the rule of audi alteram partem gives.
To render justice the rule specifies that there should be:
1. Prior Notice

2. Opportunity to be Heard

3. Institutional Decision

II. PRINCIPLES OF NATURAL HEARING IN THE UNITED STATES OF

AMERICA

The law of administrative procedure starts with the constitutional requirements that no person
may “be deprived of life, liberty or property without due process of law”. Due process in its
application to administrative law is essential requirement of natural justice. It is a rule founded
upon the first principle of natural justice, older than written constitution.

71
(1963) 1 All E R 66.
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 ADMINISTRATIVE LAW-II PROJECT

Black’s law Dictionary gives the meaning of due process of law as implying “the right of the
person affected thereby to be present before the tribunal which pronounces the judgment upon
the question of life or liberty or property, in its most comprehensive sense, to be heard, by
testimony or otherwise and to have the right of controverting by proof, every material fact which
bears on the question of right in the matter involved. If any question of fact or liability be
conclusively presumed against him, this is not due process of law”.72

The history of U.S.A. shows that its Constitution, Acts and Rules and Case Laws laid down clean
standards for fair treatment of citizens by the Federal and State Governments, their agents and
local authorities. These standards are known as due process.

There are two Due Process Clauses in the Constitution: one in the Fifth Amendment applicable
to the Federal Government and one in the Fourteenth Amendment applicable to the States. The
courts have always construed the two clauses to impose exactly the same procedural
requirements on Federal and State agencies.73

In London v. City and Country of Denver,74 and Bi-Mettalic Investment Co. v. State Board of
Equalization of Colorado,75 the court have come to stand for the proposition that agencies are
bound by due process requirements only when they are engaged in adjudicatory function
involving a relatively small number of persons.76

The Fifth and Sixth Amendments to the American Constitution clearly mention the principal
ingredients of a fair hearing which includes:
1. Due process of law; this includes reasonable opportunity of hearing granted to the parties
to make their representation and submit material and arguments in defense,

2. Confrontation of witnesses; both the parties must have opportunity to cross examine and
contradict the witnesses deposing against them,

3. Speedy and public trial; a public trial is open and the deliberation in the court are
transparent,

72
Black’s Law Dictionary, 6th edn. P-500.
73
Michael Taggart, The Province of Administrative Law, Hart Publishing 1997 at p 183.
74
210 US 373.
75
239 US 441.
76
Garry Lawson, Federal Administrative Law, American case book series, West Publishing Co.1998 at p.348.
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 ADMINISTRATIVE LAW-II PROJECT

4. Impartial Judge and Jury; impartiality of the decision maker, judge and jury is sine qua
non of a hearing,

5. Assistance of a counsel;

6. Freedom from double Jeopardy and self incrimination

7. Rights of parties as may be granted by statutes, rules of courts and judicial decision.

In City of Chicago v. Cohn,77 held that an orderly proceeding in which a person is served with
notice and has opportunity to be heard and to protect and enforce his rights before a competent
court empowered to determine a cause is due process of law.

In Goldberg v. Kelly,78 the Court stated that:

“The right to be heard would be, in many cases, of little avail if it did not comprehend the right
to be heard by the counsel. We do not say that counsel must be provided at the pre-termination
hearing, but only that the recipient must be allowed to retain an attorney if he so desires.
Counsel can help delineate the issues, present the factual contentions in an orderly manner,
conduct cross-examination and generally safeguard the interest of the recipient. We do not
anticipate that this assistance will unduly prolong or otherwise encumber the hearing”

The American Regulatory Agency is entrusted with executive function because it is felt that only
then can it be expected effectively to administer a scheme of governmental regulation. The
merger of the duties of investigator, prosecutor, and Judge in the one organ makes the exercise of
the latter function in a truly judicial manner almost impossible to achieve. The key problem of
the American independent regulatory agency is thus the merger in it administrative and judicial
duties.

When the American due process is compared to English procedural fairness, it could be seen that
the due process is somewhat rigid due to the influence of American Administrative Procedure
Act. Principles of natural justice are embodied rules which can be made suitable according to the
circumstances of each case. Putting such a concept in a straight jacket will make the concept a
meaningless one.

III. PRINCIPLE OF NATURAL JUSTICE IN FRANCE

77
Words and Phrases, permanent Edn., West Publishing Vol.1 p-282.
78
397 US 254(1970).
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 ADMINISTRATIVE LAW-II PROJECT

In the French Administrative law, the principle of audi alteram partem is known as les droits de
la defense, which also means no one should be condemned unheard.
In France there is separate system of administrative law in the name of droit administratiff, and a
separate court Conceil D’Etat is constituted to hear the administrative matter. In France the state
is responsible to the citizen.

Before 1945 there was no procedural protection given in France. It was after 1945 in the case of
Champion, Aramu, Belloir Mattei, Tabti that les droits de la defense achieved actual recognition
as a principle general.79 The Counseil d’Etat for the first time recognized the notion of les droit
de la defense a general principle.

Trompier Gravier CE case the conclusion given by M. Chenot the commissionare de

government, Madame Trompier Gravier, who had a concession to sell newspapers from a kiosk
on the Boulevard St. Denis in Paris had this concession revoked by the perfect of the sieve on the
grounds that she had extorted money from the man who managed the kiosk for her. The Counseil
d’Etat decided that such a measure could not be taken without a hearing being held. The
Counseil d’Etat in Trompire Gravier therefore applied the guarantees made to civil servants by
Article 65 of the law of April 22, 1905 for all the citizens affected by administrative sanctions.

The “droit de la defense” is more extensive than the common law “right to a hearing” in that
they cover both the procedures to be followed before coming to a decision and the
communication of the decision itself. It thus covers:
a) The duty to listen to the party,

b) The duty to give reasons, and

c) The duty to explain the citizen’s rights in relation to the decisions.

The French Courts give effect to the European Court of Human Rights “idea of equality of
arms”, though they recognise that such a principle has to apply differently to a citizen’s dealings
before the administration compared with before a court.80

79
Public law, The British journal & Administrative Law, Stevens & Sons Ltd ,1980.
80
See Avis of CE Sec. 31 Mar.1995, Ministre de Budget C. SARL Auto-Industrie Meric, AJDA 1995 at p-739.
28
 ADMINISTRATIVE LAW-II PROJECT

In emergency cases, such as major civil disorder, the administration may have to act before the
affected parties can be consulted, but such situations are rare. 81 It means that in France also post
decisional type of hearing is followed as like in India.

The position of other countries like USA, UK and France is not much different compared to
India with respect to the application of principles of natural justice in administrative actions.

81
See CE 24 July 1987,ADJA 1988, 63(New Caledonia).
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CONCLUSION

Natural Justice is the principles embodied in the nature. Even if there is absence of prescribed
procedure in the statute to be followed by the administrative authority the rules of natural justice
need to be applied. The administrative authorities are not properly following these principles of
natural justice while exercising discretionary power. In any modern state the authority needs to
have some amount of administrative discretion. Granting of discretionary power is not bad, but
conferring it without any parameters is against rule of law and natural justice. Previously natural
justice principles are applied only to those bodies exercising quasi-judicial function and not to
purely administrative functions. But during the development of Administrative Law it was
decided by the judiciary that there need not be any distinction between administrative function
and quasi-judicial function for the purpose of natural justice. So whatever may be the nature of
power exercised by the administrative authority they need to follow principles of natural justice.

When the statute conferring the discretion is silent about the procedures to be followed by the
administrative authorities the principles of natural justice will apply. When the authorities
concerned are not following the principles of natural justice most often the judiciary is
intervening making such an action of the authorities as illegal. If the administrative authorities
are not following procedural fairness while making a decision the only remedy available to the
affected party is through court of law.

The court recognises that the quality of the discretionary decision will improve if the decision-
maker gives an opportunity to the affected person to present his case before deciding the matter.
The present judicial trend is to insist some kind of hearing in the case of discretionary power
involving questions of public interest or policy when the rights of an individual are adversely
affected.

The statutes while conferring administrative discretion should specifically mention the minimum
procedures to be followed by the administrative authority; this will ensure that the authorities
have arrived at a just decision. It is also suggested by many jurists for the passing of an Act
similarly in USA, that is an Administrative Procedure Act, which brings uniformity in
administrative actions, but as a matter of fact bringing such an Act will put principles of natural

30
 ADMINISTRATIVE LAW-II PROJECT

justice in a straight jacket. The post-decisional hearing will not render a proper justice. Therefore
pre-decisional hearing must be preferred

Moreover in France the conceil d’etat, that is the administrative courts are performing its
function in a very effective manner. As like in France, the functioning of the Administrative
Tribunals must also be made more effective in India. The locus standi must be relaxed to a very
good extent so that so many cases can be brought before the court of law.

Further, the judiciary can very seriously look into the possibility of compensatory justice in case
of a real violation of principles of natural justice which affected the rights of the individual
concerned and caused a real prejudice to him in any administrative action.

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BIBLIOGRAPHY

I. WEBSITE LINKS
1. http://legalperspectives.blogspot.in/2010/10/principles-of-natural-justice-not.html
2. http://www.legalservicesindia.com/article/article/the-application-of-natural-justice-while-
discharging-administrative-actions-1644-1.html
3. http://www.academia.edu/8782381/Trace_the_development_of_natural_justice_connect_
it_with_legal_justice_in_the_courts_of_law_and_administrative_agencies
4. http://journal.lawmantra.co.in/wp-content/uploads/2015/05/22-new.pdf
5. http://ijtr.nic.in/articles/art36.pdf
6. http://www.lawpact.org/uploads/PRINCIPLES%20OF%20NATURAL%20JUSTICE.pdf
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8. http://indiankanoon.org/search/?formInput=principles%20of%20natural%20justice
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1. S.P Sathe, Administrative Law, Lexis Nexis Butterworths, 7th ed.
2. M P Jain and S N Jain, Principles of Administrative Law, 6th ed.
3. Jain and Jain, Principles of Administrative Law, Wadhwa Publication, 6th edn. 2007.
4. C.K. Thakker, Administrative law, Eastern Book Publication, 2nd Edn. 2012.
5. H Marshell, Natural Justice, Universal Law Publishing and Indian Print 1996.
6. Parker, The Historic basis of Administrative law, 1 Rutg. L.R. 499 (1958).
7. Robson in Ginsberg (ed.), Law and Opinion in England in the 20th century.
8. Richard J. Pierce, JR, Administrative Law Treatise Vol-II, Aspen Law and Business
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9. Peter Layland & Terrywood, Administrative law, Oxford press, New Delhi,2002.
10. P. P. Craig, Thomson, Sweet & Maxwell, 5th edn., 2003.

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