Article 19 4 of 7

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DD Basu Commentary on the Constitution of India, Vol 1-4, 9e 2015/Volume 3/PART III FUNDAMENTAL
RIGHTS/Article 19 4 of 7
That a Constitution is construed to operate prospectively only, unless its terms clearly imply that it
should have retrospective effect. This is the rule in regard to statutes, and it is "one of such obvious
conveniences and justice, that it must always be adhered to in the construction of statutes, unless
there is something on the face of the enactment putting it beyond doubt that the legislature meant it
retrospectively. Retrospective legislation, except when designed to cure formal defects or otherwise
operates "remedially", is commonly objectionable in principle and apt to result in injustice, and it is
sound principle of construction which refuses lightly to imply an intent to enact it. And we are of no
reasons applicable to ordinarily legislations, which do not, upon this point, apply equally well to
Constitution".94
Firstly, a distinction is made between substantive and remedial rights.
1a) In general, the taking away of a remedial right with retrospective effect does
not constitute a violation of 'Due process'.95 Thus,
A statute which repeals a statute of limitation with retrospective effect, so as to revive barred claims, does not
operate as a deprivation of property, since a law of limitation simply bars the remedy and does not create any
substantive right in the debtor.96 On the same principle, the substitution of one remedy for another, e.g.,
damages for mesne profits, would not offend against due process merely because it should affect prior causes
of action.97
1b) A retrospective legislation is invalid if it seeks to take away a vested

substantive right of property;98 but not so, if the statute is not really retroactive or its
operation does not disturb a vested right i.e., legal right in existence at the time of the
impugned legislation.99 Thus--
1I. On the other hand, there is no bar to a statute to change any rule of
common law so long as it does not take away any vested right of property. The 'Due
Process' clause is attracted only in the latter case. In Munn v. Illionis, 100 the Supreme
Court observed--
"A mere common law regulation of trade or business may be changed by a statute. A person has no property,
no vested interest, in any rule of common law. That is only one of the forms, of Municipal law and is no more
sacred than any other. Rights of property which have been created by the common law cannot be done away
without due process; but the law itself, as a rule of conduct, may be changed at the will or even at the whim of
the legislature ...... Indeed the great office of statutes is to remedy defects in the common law as they are
developed and to adapt it to changes of time and circumstances."101
1II. Even where a law is given effect to from a date prior to its enactment, it may
not be retrospective in the sense of taking away a vested right.
Thus, it has been held that there is no violation of due process--
1i) Where income tax changes are given effect from the beginning of the
taxable year which is anterior to the commencement of the statute, because the basis of
income-tax is the income derived during the preceding year. 102
94 T.M. Cooley, A Treatise on the Constitutional Limitation, First Indian Reprint 2005, Chapter IV "Of the Construction of
State Constitution" at pp. 62-63.
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95 Chase Securities Corp. v. Donaldson, (1945) 325 US 304; Ganga Lumber Co. v. Rowley, (1945) 326 US 295.
96 Chase Securities Corp. v. Donaldson, (1945) 325 US 304; Ganga Lumber Co. v. Rowley, (1945) 326 US 295.
97 Society for Propagation of Gospel v. Pawlet, (1830) 4 Pet 480.
98 Blodgett v. Holden, (1928) 275 US 142; Untermeyer v. Anderson, (1928) 276 US 440.
99 Flemming v. Nestor, (1960) 363 US 603; City of Omaha v. Glismann, (1949) 339 US 960.
100 Munn v. Illinois, (1876) 94 US 113.
101 Munn v. Illinois, (1876) 94 US 113.
102 U.S. v. Hudson, (1937) 209 US 498; Welch v. Henry, (1938) 305 US 134.
1ii) Where a statute providing for tobacco marketing quotas is extended to crop
planted prior to its enactment, because the statute operated not upon production but
upon the marketing of the product.103
1iii) An estate tax which imposes a levy on the proceeds of insurance policies on
the death of the insured, taking place subsequent to the enactment of the taxing statute,
is not retrospective merely because the policies were purchased and the money
invested therein prior to the enactment, because the taxable event is the maturing of the
policies on the death which takes place after the enactment of the statue, 104 and not the
creation of the policies.105
In short, a statute is not retroactive in its operation--
"merely because some of the facts or conditions upon which its application depends came into being prior to
the enactment of the tax".106
Secondly,regulatory legislation is, as a rule, held immune from the limitations of the 'Contract clause' 107
or the 'Due Process' clause.108
"Federal regulation of future act ion based upon rights previously acquired by the person regulated is not
prohibited by the Constitution. So long as the Constitution authorizes the subsequently enacted legislation, the
fact that its provisions limit or interfere with previously acquired rights does not condemn it." 109
Retrospective laws are contrary to the general principle that legislation by which the conduct of
mankind is to be regulated ought to deal with future acts and ought not to change the character of past
transaction carried upon the faith of the then existing law. Accordingly the court will not ascribe
retrospective force to new laws affecting rights by express words or necessary implication it appears
that such was the intention of the Legislature.110 Although Art. l7 of the European Convention on
Human Rights provides that no one shall be held guilty of a criminal offence for conduct which did not
constitute an offence at the time when it was committed, Parliament has power to legislate
retrospectively in breach of this. It is hardly credible that any Government department would promote
or that Parliament would pass retrospective criminal legislation. 111
Article 7 of the European Convention of Non-Retroactivity in Criminal Trials prohibits retrospective
effect to criminal offence. The reason is that a person cannot regulate his behaviour in order to avoid
breaking the criminal law if the law may be retroactively changed.
1B) India.--In India, there is no specific limitation against retrospective legislation

save that contained in Art. 20(1), in the case of criminal legislation. 1
Penal statutes which create offences or which have the effect of increasing penalties for existing
offences will be only prospective by reason of the Constitutional restriction imposed by Art. 20 of the
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Constitution.2 But in Rattan Lal v. State of Punjab, 3 it was held that ex post facto law which only
modifies the rigor of the Criminal law as to the sentence, is not within the prohibition.
103 Mulford v. Smith, (1939) 307 US 38.
104 U.S. Manufacturers v. National Bank, (1960) 363 US 194 (200).
105 U.S. v. Jacob, (1939) 306 US 363 (367).
106 Home Building & Loan Assocn. v. Blaisdell, (1934) 290 US 398; East N.Y. Savings Bank v. Hahn, (1945) 326 US
230.
107 Home Building & Loan Assocn. v. Blaisdell, (1934) 290 US 398; East N.Y. Savings Bank v. Hahn, (1945) 326 US
230.
108 Flemming v. Rhodes, (1947) 331 US 100 (107).
109 Flemming v. Rhodes, (1947) 331 US 100 (107).
110 Phillips v. Eyre, 1870 LR 6 QB.
111 R v. Home Secretary exparte Bhajan Singh, 1976 QB 198.
1 Government of A.P. v. Hindusthan Machine Tools, AIR 1975 SC 2037 (paras. 8-10) : (1975) 2 SCC 274; Tirath Ram
v. State of A.P., AIR 1973 SC 405 (para 7) : (1973) 3 SCC 585.
2 West Ramnad Electric Distribution Co. Ltd. v. State of Madras, AIR 1962 SC 1753 : (1963) 2 SCR 747; State of
Maharashtra v. K.K.S. Ramaswamy, (1977) 3 SCC 525 : AIR 1977 SC 2091; Soni Devrajbhai Babubhai v. State of
Gujarat, (1991) 4 SCC 298 : AIR 1991 SC 2173; Kalpnath Rai v. State, (1997) 8 SCC 733 : AIR 1998 SC 201.
3 Rattan Lal v. State of Punjab, AIR 1965 SC 444 : (1964) 7 SCR 676
Again in the case of R v. R, 4 the defendant was convicted of rape of his wife and in a landmark
decision, the House of Lords upheld the conviction on the basis that the previous common law rule
that a woman could not refuse to consent to sex with her husband was anachronistic and wrong. 5
The rule against retrospectivity regarding penal laws is not restricted to Act s for Criminal offences, but
also applies to laws which provide for other penal consequences of a severe nature i.e. termination of
service.
But in cases whereby harshness of sentence is down graded by a subsequent legislation, the benefit
of such legislation can be given to the accused, who is still to be sentenced. 6
Retrospective Criminal Legislation is against Art. 11(2) of the Declaration of Human Rights of the
United Nations and Art. 7 of the European Convention for the Protection of Human Rights and
Fundamental Freedom.7 The principle that penal provision may not have retrospective effect is one
which is common to all the legal orders of member States. 8
Article 20(1) of the Constitution covers first two clauses of Art. 15.1 of the International Covenant on
Civil and Political Rights 1966 which was ratified by India on 10-4-1979. The third clause in Art. 15.1,
which is not provided under Art. 20 of the Constitution reads: "If subsequent to the commission of the
offence--provision is made by law for the imposition of a lighter penalty, the offender shall benefit
thereby."
The question, however, becomes relevant in connection with the reasonableness of the restriction
imposed by such legislation, if a fundamental right is affected thereby, and Art. 19(2)-(6) comes into
operation. Though the question has not yet been fully thrashed out, the Supreme Court has laid down
the general proposition that the retrospectivity of a statute is an element which may properly be taken
into consideration in determining the reasonableness of the restriction imposed by the statute. 9
India
A Legislature cannot legislate today with reference to a situation that obtained twenty years ago and
ignore the march of events and the constitutional rights accrued in the course of twenty years. This
would be most arbitrary, unreasonable and a negation of history. 10 Today's equals cannot be made
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unequal by saying that they were unequals twenty years ago and we will restore that position by
making a law today and make it retrospective. Constitutional rights and constitutional obligations
cannot be tempered with that way. A law which if made today would be plainly invalid as offending
Constitutional provisions in the context of existing situation cannot become valid by being made
retrospective. Past virtue (constitutional) cannot be made to wipe out present vice (constitutional) by
making retrospective laws.11
But a legislation could not be struck down although retrospective operation might operate harshly in
some cases.12 It was held that when Legislature can make a valid law, it may provide not only for the
prospective operation of the material provision of the said law, it can also provide for the retrospective
operation of the said provision. The legislative power, in addition, includes the subsidiary or auxiliary
power to validate laws which have been found invalid. If a law passed by a Legislature is struck down
by the Court as being invalid for one infirmity or other, it would be competent for the appropriate
Legislature to cure the said infirmity and pass a validating law so as to make the provision of the said
earlier law effective from the date on which it was passed. 13 Giving the statute retrospective operation
could be taken into consideration in determining the reasonableness of the restriction. 14
But it is open to the court to give retrospectivity of legislation to which Legislature plainly and expressly
refused retrospectivity, because, unlike UK, India has a written Constitution which confers justiciable
fundamental rights and so that the very refusal to make the Act retrospective or the non-application of
the Act with reference to a date or to an event that took place before the enactment may, by itself,
create an impermissible classification justifying the striking down of the non-retrospectivity or non-
application clause as offending the fundamental right to equality before the law and equal protection of
the laws.15
4 (1991) 1 AC 599.
5 See Edwin Shorts & Claire de Than, Civil Liberties, 1998 Edn., pp. 491-492.
6 State v. Gian Singh, AIR 1999 SC 3450 : (1999) 9 SCC 312.
7 R. v. Kirk, (1985) 1 All ER 453(EEC Court) .
8 Re Barretto,(1994) 1 All ER 447.
9 State of W.B. v. Subodh Gopal, AIR 1954 SC 92 (104); Express Newspapers v. Union of India, AIR 1958 SC 578
(621) : 1959 SCR 12; Norottamdas v. State, of M.P., AIR 1964 SC 1667 : (1964) 7 SCR 820; Ramakrishna v. State of
Bihar, AIR 1963 SC 1667 (1673) : (1964) 1 SCR 897; Hatising Mfg. Co. v. Union of India, (1960) 3 SCR 528 (536) : AIR
1960 SC 923; Sadhu Ram v. Custodian General, (1955) 2 SCR 1113 (1116) : AIR 1956 SC 43; Srikishen v. State of
Rajasthan, (1955) 2 SCR 531 : AIR 1955 SC 795; Hariprasad v. Divekar, 1957 SCR 121 : AIR 1957 SC 121.
10 See State of Gujarat v. Raman Lal Kesharlal Soni, AIR 1984 SC 161 : (1983) 2 SCC 33; K. Ravindranath Pai v.
State of Karnataka, AIR 1995 SC 1978 : 1995 SCC 246(Supp-2) .
11 B.S. Yadav v. State of Haryana, AIR 1981 SC 561 : 1980 SCC 524(Supp) ; K. Ravindranath Pai v. State of
Karnataka, AIR 1995 SC 1978 : 1995 SCC 246(Supp-2) .
12 Krishnamurthy & Co. v. State of Madras, (1973) 1 SCC 75 : AIR 1972 SC 2445; Shri Chinna Krishna Moorthy v.
State of Orissa, AIR 1964 SC 1581 : (1964) 7 SCR 185.
13 See also Narottamdas v. State of M.P., AIR 1964 SC 1667; Jawaharmal v. State of Rajasthan, AIR 1966 SC 764; V.
Pattabhiraman v. Asst. Commissioner Urban Law Tax, AIR 1971 Mad 61(FB) .
14 Express Newspaper (P) Ltd. v. Union of India, AIR 1958 SC 578; Raghubar Dayal Jai Parkash v. Union of India, AIR
1962 SC 263 : (1962) 3 SCR 547.
15 B. Prabhakar Rao v. State of AP, AIR 1986 SC 210 : 1985 SCC 432(Supp) ; D.S. Nakara v. UOI, AIR 1983 SC 130 :
(1983) 1 SCC 305.
The rule against retrospective construction is not applicable to a statute merely because a part of the
requisite for its action is drawn from a time antecedent to its passing. 16
In regard to procedural matters, in criminal matters, retrospective effect cannot be given unless even
after strict construction, legislative intent to give retrospective effect is clearly beyond any ambiguity. 17
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In National Agricultural Co-operative Marketing Federation of India Ltd. v. UOI, 18 the Supreme Court
held that legislative power to amend the enacted law with retrospective effect is subject to several
judicially recognised limitations, inter alia the retrospectivity must be reasonable and not excessive or
harsh, otherwise it runs the risk of being struck down as unconstitutional.
In Railway Board v. C.R. Rangadhamiah, 19 it was held that an amendment having retrospective
operation which has the effect of taking away benefit already available to the employee under the
existing rule is arbitrary, discriminatory and violative of rights guaranteed under the Constitution. 20
A restriction is not necessarily unreasonable merely because it creates a civil21liability in respect of a
transaction which has taken place before the date on which the Act was enacted. In every case, the
question for determination is whether there was any reasonable ground for giving the statute the
anterior effect. Thus,--
2i) On 27-11-1956, the Supreme Court22 interpreted Sections 26F of the

Industrial Disputes Act , 1947, to hold that the word 'retrenched' therein did not include
termination of services owing to a closure of an industry. After this pronouncement, a
number of industrial establishments were closed down, throwing out of employment a
large number of workmen without any compensation. Parliament, accordingly,
intervened and inserted s. 25FFF(1) in the Act, to provide that in the case of closures
certain classes of workmen should get compensation, as if they were 'retrenched'. The
amendment came into effect on 6-6-1957 but the new section was given retrospective
effect to include closures which had taken place before that date, but not before 27-11-
1956. It was contended that this giving of retrospective effect from an arbitrarily fixed
date, constituted an unreasonable restriction upon the employer's freedom under Art,
19(1)(g) to close down his business. Held, that the date, namely 27-11-1956 had not
been arbitrarily fixed but was fixed having regard to the Supreme Court decision and its
effect. In the circumstances, the impugned provision could not be struck down as
unreasonable.23
2ii) It has also been held that since freedom of contract is not guaranteed as a
fundamental right by our Constitution, it cannot be said that a restriction imposed upon a
contractual right or the effacement of a subsisting contract would ipso facto be
unreasonable, if done with retrospective effect. 24 The Court has thus upheld the
reasonableness of imposing regulations relating to an essential commodity with
retrospective effect, so as to affect rights accrued under subsisting contracts. 25
It was observed therein that though the retrospective effect of a statute would be an element to be
taken into consideration for determining the reasonableness of the restriction imposed but this does
not fully sustain the proposition that the retrospective invalidation of a contract is not a permissible
restriction, that could be imposed under Art. 19(6). It cannot be predicated off-hand and as a matter of
law that every restriction which operates with retrospective effect and affects rights obtained under
pre-existing law, is unconstitutional as obnoxious to the freedom guaranteed by sub-clauses (f) or (g)
of clause (1) of Art. 19. It might in particular cases, even be necessary to completely efface a
subsisting contract.
If a State Legislature passes an Act on a subject which falls outside its competence and within the
competence of Parliament, and is for that reason held invalid, Parliament can, by passing a
retrospective Act which incorporates the State Act, cure the invalidity. It is not necessary that the
invalidity must be cured by the same Legislature.26
Mere retroactivity does not render a taxing law an unreasonable restriction upon a right guaranteed by
Art. 19(1)(g), though it is a relevant consideration in considering the reasonableness of the law. 27 An
amendment which is clarificatory in nature, though retrospective, cannot be challenged as invalid. 28A
validating Act cannot be valid and effective if it simply deems a legal consequence without amending
the law from which the said legal consequences could follow. Thus, if certain area was not validly
included in a municipality, a validating Act which simply declares it to be included would be ineffective
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unless the law is amended retrospectively curing the defect in the inclusion of the area. 29 Where the
Legislature has power to levy a tax, it may with retrospective effect, validate the illegal assessment
made by the executive made without proper legislative sanction. 30 The Legislature has necessary
competence to make retrospective levy of tax. Inability to realise the tax is not a ground to hold such
levy as unreasonable.31 The test of length of time covered by retrospective operation cannot by "itself"
be treated as a decisive test.32 A competent Legislature can always validate a law declared invalid by
court provided the infirmities and vitiating factors noticed by court are removed or cured by Legislature
which can be made with retrospective effect.33 Under our Constitution, the ground on which infraction
of the rights to property is to be tested not by the flexible rule "due process", but on the more precise
criteria set out in Art. 19(5), mere retrospectivity in the imposition of tax cannot per se render the law
unconstitutional on the ground that it is infringing the fundamental rights. If the enactment in question
were beyond the legislative competence of the Union or a State, necessarily different considerations
arise. Such unauthorized imposition would undoubtedly not be reasonable restriction on the rights to
hold property besides being an unreasonable restraint on the carrying on of business, if the tax in
question is one which is laid on a person in respect of his business activity. Merely because the levy
has retrospective effect and could not be passed on to the consumer, will not amount to unreasonable
restraint.34 An illegally collected tax by Government need not be refunded unless the taxpayer bears
the entire burden and has not transferred the tax burden to others as consumers. Such interpretation
is justified in view of Art. 39(b) and (c) of the Constitution. 35 Mere excessiveness of a tax or even the
circumstance that its imposition might tend towards the diminution of the earning or profits of the
persons of incidence does not per se and without more, constitute the right under Art. 19(1)(g). 36
16 D.S. Nakara v. UOI, AIR 1983 SC 130 : (1983) 1 SCC 305 (supra); R.L. Marwaha v. UOI, (1987) 4 SCC 31 : (1987)
3 JT 292; Dilip v. Mohd. Azizul Haq, AIR 2000 SC 1976 : (2000) 3 SCC 607; N.K. Bajpai v. UOI, AIR 2012 SC 1310 :
(2012) 4 SCC 653.
17 Sukhdev Singh v. State of Haryana, AIR 2013 SC 953 : (2013) 2 SCC 212.
18 AIR 2003 SC 1329 : (2003) 5 SCC 23.
19 AIR 1997 SC 3828 : (1997) 6 SCC 623.
20 See also Andhra Pradesh Dairy Development Co-operative Federation v. B. Narasimha Reddy, (2011) 9 SCC 286 :
AIR 2011 SC 3298.
21 Shiv Dutt v. Union of India, AIR 1984 SC 1194 (paras. 30, 33) : (1983) 3 SCC 529.
22 Hariprasad v. Divekar, 1957 SCR 121 : AIR 1957 SC 121.
23 Hariprasad v. Divekar, 1957 SCR 121 : AIR 1957 SC 121.
24 Raghubar v. Union of India, AIR 1962 SC 263 (274) : (1962) 3 SCR 547.
25 Raghubar v. Union of India, AIR 1962 SC 263 (274) : (1962) 3 SCR 547.
26 P. Kannadasan v. State of Tamil Nadu, AIR 1996 SC 2560 : (1996) 5 SCC 670.
27 B.K. Industries v. Union of India, AIR 1993 SC 2123 : 1993 SCC 621(Supp-3) ; State of Mysore v. D. Cawasji & Co.,
(1970) 3 SCC 710 : AIR 1971 SC 152. See also Lohia Machines Ltd. v. UOI, AIR 1985 SC 421 : (1986) 2 SCC 197;
Jawaharlal v. State of Rajasthan, AIR 1966 SC 764 : (1966) 1 SCR 890.
28 Lohia Machines Ltd. v. Union of India, (1985) 2 SCC 197 : AIR 1985 SC 421.
29 Delhi Cloth & General Mills Co. Ltd. v. State of Rajasthan, AIR 1996 SC 2930 : (1996) 2 SCC 449.
30 Sat Pal & Co. v. Lt. Governor of Delhi, AIR 1979 SC 1550 : (1979) 4 SCC 232.
31 Premier Enterprises, Secunderabad v. CTO, AIR 2003 SC 4449 : (2001) 9 SCC 753.
32 Lohia Machines Ltd. v. UOI, AIR 1985 SC 421 : (1986) 2 SCC 197 (supra); see also Asst. Commr. of Urban Land
Tax v. The Buckingham and Carnatic Co., AIR 1970 SC 169 : (1969) 2 SCC 55; Krishnamurthi & Co. v. State of
Madras, AIR 1972 SC 2455 : (1973) 1 SCC 75; Rai Ram Krishna v. State of Bihar, AIR 1963 SC 1667 : (1964) 1 SCR
897.
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33 Ujagar Prints v. UOI, AIR 1989 SC 516 : (1989) 3 SCC 488.
34 Chhotabhai Jethabhai Patel & Co. v. Union of India, AIR 1962 SC 1006 : 1962 SCR 1(Supp-2) .
35 Mafatlal Industries Ltd. v. UOI, (1997) 5 SCC 536 : (1996) 9 SCALE 457.
36 Federation of Hotel & Restaurants Assn. v. UOI, AIR 1990 SC 1637 : (1989) 3 SCC 677.
While making a law with retrospective effect, it may be open to a party affected by the provisions of
the impugned Act to contend that the retrospective operation of the Act completely alters the character
of the tax imposed by it so as to make it outside the limits of the entry which gives the legislative
competence to enact the law, or it may be open to contend in the alternative the restriction imposed by
the Act and so unreasonable that they should be struck down on the ground that they contravene the
fundamental rights.37
2I. In some cases, it has been somewhat broadly stated that a restriction which
is reasonable does not cease to be so merely because it is given retrospective effect. 38
So stated, it is submitted, there is a danger of confusing the question of legislative power
with that of the reasonableness of the retrospectively as may be required by Art. 19. As
has been already stated, under our Constitution, there is no limitation upon the
legislative power to make retroactive legislation, apart from Art. 20(1) which is confined
to criminal liability.39 But it may also be stated that power to legislate conferred by Art.
245(1) includes power to legislate retrospectively. But whether it is exercised
prospectively or retrospectively, all legislative powers, as the opening words of that
Article say, are "subject to the provisions of the Constitution". Obviously Art. 13(2) is one
such provision which prohibits the State from making any laws contravening Part III of
the Constitution and any law so made is also declared to be void. If so, apart from Art.
20(1), all fundamental rights operate as a limitation on the power to give retrospective
effect to a legislation e.g., Art. 14.40
Regulatory law
Clauses (2)-(6) of Art. 19 presuppose the existence of a law which the Legislature has the
competence to enact but the reasonableness of the contents of such law in so far as it seeks to
impose restrictions upon any of the rights guaranteed by Art. 19(1). Hence, a retrospective law may be
unreasonable in the same way as a prospective law. The circumstances in which the retrospectivity
itself may be a ground for unreasonableness are not, of course, specified in the cases cited above.
But there may be cases where the restrictions imposed by a law may be reasonable as regards its
prospective operation, but not so as regards its retrospective operation, 41 if the circumstances which
justify the restrictions did not exist in the anterior period, 42 or the law arbitrarily takes away a vested
right.43 In such cases, the restrictions would be in excess of the requirement. The Legislature is
undoubtedly competent to legislate with retrospective effect to take away or impair any vested right
acquired under existing laws, but since laws are made under a written Constitution, and have to
conform to the dos' and don'ts of the Constitution, neither prospective nor retrospective laws can be
made so as to contravene fundamental rights.44
"That such a statute "affecting and changing vested rights, is very generally considered in this country
as founded on unconstitutional principles, and consequently inoperative and void. But this doctrine is
not understood to apply to remedial statutes, which may be of a retrospective nature, provided they do
not impair contracts or disturb absolute vested rights and go only to confirm rights already existing and
in furtherance of the remedy by curing defects and adding to the means of enforcing existing
obligations. Such statutes have been held valid when clearly just and reasonable, and conducive to
the general welfare, even though they might operate in a degree upon vested rights. 45
The question does ngt appear to have been examined from the above point of view in Srikishen's
cases.46 In that case, the impugned provision of the Marwar Land Revenue Act, 1949, had empowered
the Revenue Authorities to settle fair and equitable rents and to give retrospective effect to the rents
so settled. The Court negatived the contention that the power to give retrospective effect was an
unreasonable one, with the observation that if the Legislature had the power to fix reasonable rent for
9
the future, it had the power to fix it with retrospective effect, and a rate that was reasonable as regards
the future did not cease to be reasonable as regards a period prior to the enactment of the law.
As stated earlier, as an abstract proposition, the foregoing observation appears to be wide because
the retrospective operation would be reasonable where the circumstances existing prior to the date of
the settlement were so different that the Revenue Authorities should have act ed upon different
considerations.
III. On the other hand,--
2a) In some cases, the Court struck down as unreasonable the abridgement of a
vested right of property with retrospective effect, without sufficient justification, e.g. the
cutting down of the statutory purchase price payable to a landlord for the compulsory
transfer of his interest to his tenants, by resorting to indirect device. 47
These decisions have, however, lost their value since the repeal of Art. 19(1)(f) itself, as a result of
which the right of property is no longer a fundamental right in India.
37 Rai Ramkrishna v. State of Bihar, AIR 1963 SC 1667 : (1964) 1 SCR 897 (supra).
38 Sadhu Ram v. Custodian General, (1955) 2 SCR 1113 (1116) : AIR 1956 SC 43; Srikishen v. State of Rajasthan,
(1955) 2 SCR 531 : AIR 1955 SC 795; Hariprasad v. Divekar, 1957 SCR 121 : AIR 1957 SC 121; Shiv Dutt v. Union of
India, AIR 1984 SC 1194 (paras. 30, 33) : (1983) 3 SCC 529; Raghubar v. Union of India, AIR 1962 SC 263 (274);
Srikishen. v. State of Rajasthan, (1955) 2 SCR 531 (538) : AIR 1955 SC 795.
39 Norottamdas v. State of M.P., AIR 1964 SC 1667 : (1964) 7 SCR 820.
40 State of Gujarat v. Raman Lal Keshav Lal Sons, AIR 1984 SC 161 : (1983) 2 SCC 33; State of Orissa v. Bhupendra
Kumar Bose, AIR 1962 SC 945 : 1962 2 SCR 380(Supp) .
41 Cf. Ogden v. Saunders, (1827) 12 Wh 213.
42 Cf. Jayvantsinghji v. State of Gujarat, AIR 1962 SC 821 (832-3), below : 1962 Supp (2) SCR 411.
43 Jefferson City Gaslight Co. v. Clark, (1878) 95 US 644.
44 Ramakrishna v. State of Bihar, AIR 1963 SC 1666; Express Newspapers v. UOI, AIR 1958 SC 578 : 1959 SCR 12.
45 T.M. Cooley, A Treatise on the Constitutional Limitation, 1st Indian Reprint 2005, Chapter XI, p. 359.
46 Srikishen. v. State of Rajasthan, (1955) 2 SCR 531 (538) : AIR 1955 SC 795.
47 Jayvantsinghii v. State of Gujarat, AIR 1962 SC 821 (832-3) : 1962 Supp (2) SCR 411. [Right to property is no
longer a fundamental right, since the repeal of Art. 19(1) (f) in 1978].
Taxing law
2b) In Ramakrishna v. State of Bihar, 48 our Supreme Court has acknowledged

the principle that the retroactivity of a taxing law may be unreasonable if it operates as
an arbitrary burden upon the assessees who are retrospectively hit by the impugned
legislation though the Legislature has the legislative competence to make a taxing law
retrospective.49
The Court, of course, held50 that the test of the length of time after which the assessee is hit
retrospectively is not, by itself the test of unreasonableness and that a validating statute cannot be
held to constitute an unreasonable restriction merely on the ground that it seeks to tax the assessee
after the lapse of a long period after the income or profit, which was not then assessable, had
accrued, particularly where the lapse of time is due to the fact that litigation regarding the
constitutionality of the taxing statute which has to be validated was going on for an inordinate length of
time. It is on this ground that the retrospective operation of the validating statute in the instant case 51
was upheld as reasonable. But, at the same time, the Court acknowledged the principle that
10
"We may have a statute whose retrospective operation covers a comparatively short period and yet it is
possible that the nature of the restriction imposed by it may be of such a character as to introduce a serious
infirmity in the retrospective operation".52
But, beyond this, the Court gave no other indication as to the circumstances in which a validating Act
or original taxing statute, which seeks to tax income or profits accrued anterior to the year of its
enactment, might be held to be unconstitutional. The Court 53 seems to have accepted the principle laid
down in Sutherland's Statutory Construction,54 which was relied upon by Mr. Setalvad--
"If the retroactive feature of a law is arbitrary and burdensome, the statute will not be sustained. The
reasonableness of each retroactive tax statute, will depend on the circumstances of each case. A statute
retroactively imposing a tax on income earned between the adoption of an amendment making the income
taxes legal and the passage of the income-tax Act, not unreasonable. Likewise, an income tax not retroactive
beyond the year of its passage is clearly valid. The longest period of retroactivity yet sustained has been three
years. In general, income taxes are valid although retroactive, if they affect prior but recent transactions.55
In Ramakrishna's case,56 the tax involved was, of course, not an income tax but a tax on passengers
but this would not make any difference in principle. The Court has upheld retroactivity in a law
directing refund of unlawful gain under a law of sales tax. 57
When a taxing law is declared invalid by Courts, legislation may be passed validating the law if the
grounds of illegality or invalidity are removed. Sometimes this is done by providing a law re-enacting
retrospectively a valid and valid taxing provision and declare that tax already collected under the
invalid law as tax collected under the re-enacted law. It was held that Legislature can give its own
meaning and interpretation of the law under which the tax was collected and by legislative fiat makes
the new meaning binding on Courts.58
Provisions enacted by State Legislatures levying cess or tax on minerals were struck down on the
ground that State Legislatures have no competency to legislate on the subject since Parliament alone
can deal with the same. In such circumstances, the Parliament stepped in and enacted a law with the
object to bail out the States of the predicament aforementioned. The Parliamentary legislation made
the objective very clear beyond doubt with retrospective effect. It was held that Parliament was
empowered to make a law with retrospective effect; it was equally entitled to make the law effective for
such anterior period as it thought appropriate. It could not be said that unless the levy created with
retrospective effect was also kept alive on the date on which the law was enacted by Parliament, such
a levy would be incompetent. This would amount to creating a fetter on Parliament for which there was
no basis in principle. It could not also be said that by virtue of the impugned enactment, the Parliament
had tried to annul the judgment of the Supreme Court. On the contrary, the Parliament had accepted
the law declared by Supreme Court and had accordingly enacted the law itself, about whose
legislative competence there could be no serious question. 59
Parliament when it imposes many ancillary powers, and can interfere with vested rights by validating
past unlawful collections and by making retrospective laws. 60 In Rai Ram Krishna v. State of Bihar, 61
the Supreme Court held that the power to make a law carried with it the power to give retrospective
effect and included the subsidiary power of validating laws which had been declared invalid. In that
case, the court held that character of a tax was altered because it was given retrospective effect and
mere length of period during which retrospective operation was given to a taxing statute was not by
itself enough to invalidate it. In C. Krishnamurthy v. State of Orissa, 62 the Orissa Sales Tax Validation
Act, 1961 was held as not ultra vires because it withdrew an exemption in respect of gold ornaments
retrospectively; for, though the fact that a provision was retrospective was relevant on
reasonableness, the retrospective effect was for a short time, and in any event, under the
circumstances, it was not an unreasonable restriction in public interest. In Krishnamurthy & Co. v.
State of Madras, 63it was held that s s. 2 and 4 of the Madras General Sales Tax (3rd Amendment) Act,
1967 did not violate Art. 19(1)(g). The amendment was necessitated to rectify and remove difficulty
created by the limited interpretation given to mineral oils by the High Court and to validate past levy
and collect a tax on all kinds of non-lubricating mineral oils. The fact that the dealer was not in a
position to pass on the sales tax to others did not affect the competence of the Legislature to enact a
11
law imposing sales tax retrospectively. In that case, the court relied on an article in 73 Harvard Law
Review at pages 692 and 705 where it was observed inter alia that "individual who claims that a
vested right has arisen from the defect (in legislation) is seeking a windfall since had the legislature's
or administrator's action had the effect it was intended to and could have had, no such right would
have arisen".
48 Rai Ramkrishna v. State of Bihar, AIR 1963 SC 1667 (1975) : (1964) 1 SCR 897.
49 Muhammadbhai v. State of Gujarat, AIR 1962 SC 1517 (1524) : 1962 Supp (3) SCR 875.
50 Rai Ramkrishna v. State of Bihar, AIR 1963 SC 1667 (1975) : (1964) 1 SCR 897.
51 Ramkrishna v. State of Bihar, AIR 1963 SC 1667 (1975) : (1964) 1 SCR 897.
54 Sutherland, Statutes and Statutory Construction, 1943, pp. 131-133.
55 Sutherland, Statutes and Statutory Construction, 1943, pp. 131-133.
57 Shiv Dutt v. Union of India, AIR 1984 SC 1194 (para 33) : (1983) 3 SCC 529.
58 State of Tamil Nadu v. Thirumagal Mills Ltd., (1972) 1 SCC 176 : AIR 1972 SC 1148. See also Rai Ram Krishna v.
State of Bihar, AIR 1963 SC 1667 : (1964) 1 SCR 897 (supra); Shri Prithvi Cotton Mills v. Broach Municipality, AIR 1970
SC 192 : (1969) 2 SCC 283; Janapada Sabha v. C.P. Syndicate Ltd., AIR 1971 SC 57 : (1970) 1 SCC 509;
Government of AP v. HMT, AIR 1975 SC 2037 : (1975) 2 SCC 274; Hindustan Gum & Chemicals Ltd. v. State of
Haryana, AIR 1985 SC 1683 : (1985) 4 SCC 124; Central Coal Fields v. State of Orissa, AIR 1992 SC 1371 : 1992
SCC 133(Supp-3) .
59 P. Kannadasan v. State of Tamil Nadu, AIR 1996 SC 2560 : (1996) 5 SCC 670 (supra).
60 Shinde Brothers v. Dy. Commr. Raichur, AIR 1967 SC 1512 : (1967) 1 SCR 548 - by HIDAYAT HULLAH J.
61 AIR 1963 SC 1667 : (1964) 1 SCR 897.
62 AIR 1964 SC 1581 : (1964) 7 SCR 185.
63 AIR 1972 SC 2455 : (1973) 2 SCR 54.
Validating Act
3i) The first question that arises in this context,64 it is submitted, is whether a
validating statute which validates a tax which was unlawfully imposed would be a
'reasonable restriction' within the meaning of Art. 19. In the U.S.A., the answer to this
question would be in the negative, for, it has been held that past benefits may be taxed
but not where it would constitute a ratification of what was unlawful when it was
imposed.65 If persons or property were assessed to taxation in a jurisdiction where they
were not, a healing statute would be equally ineffectual to charge them. In such a case,
there would be a fatal defect of jurisdiction; and even in judicial proceedings, if there was
originally a failure of jurisdiction, no subsequent law can confer it. 66 When a Legislature is
conferred a new legislative power, it may, according to the previous decisions in India,
exercise its powers retrospectively, so as to legislate with respect to objects or events
anterior to the conferment of the power, but when a law is invalidated by a competent
Court on the ground that the Legislature had no power to enact that law 67or that it
contravened a fundamental right, can the Legislature be said to be act ing 'reasonably' to
validate that earlier law which was no doubt invalid when it had made. 68 The previous
decisions in India, held that the Legislature was competent to exercise its powers
retrospectively, so as to legislate with respect to object or events anterior to the
conferment of the power, but when a law is invalidated by a competent Court on the
12
ground that the Legislature had no power to enact that law 69 or that it contravened a
fundamental right, can the Legislature be said to be acting 'reasonably' to validate that
earlier law which was no doubt invalid when it had been made? 70 The question here is
not one of legislative competence but the reasonableness of the restriction which is
being imposed by the validating Act upon a fundamental right by reviving a law which
was ultra vires or unconstitutional when it had been made. In Ramakrishna's case,71 the
question was not examined from the standpoint of Art. 19. So it happened also in the
Prithvi Cotton Mills case.72
Similarly, it was held that the Legislature can pass a retrospectively validating action taken under a law
which was void because it contravened fundamental rights. If the Legislature can by retrospective
legislation cure the invalidity of act ion taken in pursuance of laws which are void due to legislative
competence and can validate such action by appropriate provisions, the same power can be equally
exercised by the Legislature for validating the act ion taken under laws which are void for the reason
that they contravened fundamental rights.73 In the above case also, the question was not examined
from the standpoint of Art. 19.
But it was held that an enactment which is unconstitutional when it was passed, cannot be validated
by a subsequent Constitutional amendment. Relying on the passage from the book on Constitutional
Limitation (Vol. I at page 384) by Professor COOLEY,wherein it was observed that "a statute void for
unconstitutionality is dead and cannot be utilised by a subsequent amendment to the Constitution
removing the Constitutional objective, but must be re-enacted; it was observed, the Act cannot be
revitiated.74 The same principle was adopted in Behram v. State of Bombay, 75where the court held:
"Where a statute is adjudged unconstitutional, it is as if it had never been. Rights cannot be built up
under it, contracts which depended upon it for their consideration are void; it constitutes protection to
no one who has act ed under it and no one can be punished for having refused obedience to it before
the decision was made. And what is true of an Act void in totois true also as to any part of an Act
which is found to be unconstitutional and which consequently has to be regarded as having never at
any time been possessed of any legal force...". Any law made in contravention of Part III is dead from
the very beginning and cannot at all be taken notice of or read for any purpose whatsoever. 76
In Union of India v. Raghubir Singh, 77 it was held that whenever a statute is declared invalid, it cannot
be reinstated unless a Constitutional sanction is obtained thereafter by a Constitutional amendment or
an appropriately modified version of the statute is re-enacted which accords with the Constitutional
provisions.
Prithvi Cotton Mills case
The impugned Act in this 1969 case78was the Gujarat Imposition of Taxes by the Municipalities
(Validation) Act, 1963. In a previous case,79 the Supreme Court has held that a certain rule which
imposed a municipal rate under the Municipal Boroughs Act, 1925, was ultra vires. The Gujarat
Legislature passed the Act of 1963 to validate the assessments made under the Rule which had been
pronounced to be ultra viresby the Supreme Court. From the statement of facts in the judgment, it is
clear that in the Petition under Art. 226, from which the appeal came up before the Supreme Court, the
validating Actwas challenged as violative of Art. [19(1)(f) and] 19(1)(g) and that that contention had
been negatived by the High Court; but, while formulating the question for determination by the
Supreme Court in the appeal the Court did not take upon itself the task of examining the
reasonableness of the restriction imposed by the Validating Act, but raised a different matter
altogether namely, whether the Validating Act was 'ineffective in carrying out its avowed object'. From
the answer given by the Court, per HIDAYATULLAH, C.J., to the question posed, it is evident that the
Court was looking only at the aspect of legislative competence.
Thus observed the Court80 --
"Ordinarily, a court holds a tax to be invalidly imposed because the power to tax is wanting or the statute or the
rules or both are invalid or do not sufficiently create the jurisdiction. Validation of a tax so declared may be
done only if the grounds of illegality or invalidity are capable of being removed and are in fact removed and the
tax is thus made legal ... If the legislature has the power over the subject-matter and competence to make a
valid law,it can at any time make such a valid law and make it retrospectively so as to bind even past
13
transactions. The validity of a, Validating law, therefore, depends upon whether the Legislature possesses the
competence which it claims over the subject-matter ......".81
It was further held that "granted Legislature competence, it is not sufficient to declare merely that the
decision of the Court shall not bind for that is tantamount to reversing the decision in exercise of
judicial power, which the Legislature does not possess or exercise.
65 Forbes Pioneer Boat Line v. Everglades Drainage Dist., (1922) 258 US 388.
66 T.M. Cooley, A Treatise on the Constitutional Limitation, 1st Indian Reprint 2005, Chapter XI, pp. 382-383.
67 Turpin v. Lemon, (1905) 187 USA 151; Road Improvement Dist. v. Missouri, (1928) 273 US 88.
70 On this point, the validation of administrative act s done without the authority of law and the validation of an invalid
law cannot be placed on the same footing.
72 Prithvi Cotton Mills v. Broach Municipality, (1969) 2 SCC 283 (285, 287) : AIR 1970 SC 192 : (1970) 1 SCR 388.
73 West Ramnad Electric Distribution Co. Ltd. v. State of Madras, AIR 1962 SC 1753 : (1963) 2 SCR 747.
74 Saghir Ahmad v. State of U.P., AIR 1954 SC 728 : (1955) 1 SCR 707. But seeBhikaji Narayan Dhakras v. State of
M.P., (1955) 2 SCR 589 : AIR 1955 SC 781; L. Jagannath v. Authorised Officer, Land Reforms, Madurai, (1971) 2 SCC
893 : AIR 1972 SC 425.
75 AIR 1955 SC 123 : (1955) 1 SCR 613.
76 Rakesh Vij v. Raminder Pal Singh Sethi, AIR 2005 SC 3593 : (2005) 8 SCC 504.
77 Union of India v. Raghubir Singh, (1989) 2 SCC 754 : AIR 1989 SC 1933.
79 Patel v. Municipal Commr. (1964) 2 SCR 608 : AIR 1967 SC 1742.
It is a basic principle of the rule of law that the exercise of power by the executive or any other
authority must not only be conditioned by the Constitution, but must also be in "accordance with law". 82
In the result, the Supreme Court dismissed the appeal. 83 In coming to this conclusion, the Court failed
to give an answer to the following questions:
3a) It is well established that any imposition, which is not backed by a valid law,
must be held to constitute an unreasonable restriction under Art. 19
Prithvi Cotton Mills case
(6), inasmuch as that clause like the other limitation clauses under Art. 19, requires that a restriction
may be imposed only by 'law', which means a valid law, and, hence, if such imposition is made by a
subordinate legislation which is found by the Court to be ultra vires, the Court is bound to strike it
down.84 If that be so, if a Legislature subsequently validates the subordinate legislation or the action
taken under it which was ultra vires and, therefore, violative of Art. 19(6) at a, time when it was made,
is not such validation itself violative of Art. 13(2), read with Art. 19(6)? 85
14
3b) The Court had already held that the violation of the mandatory provision
under Art. 255 cannot be cured by making a validating Act, declaring that a previous Act
which had failed for want of compliance with Art. 255, 86shall nevertheless be valid. By
what logic could the Court sustain a validating Act which, seeks to validate some law
which had failed for contravention of some other mandatory provision, such as Art. 13(2)
read with Art. 19 or the like? In either case, the incompetence of the Legislature is ab
initio and is not curable by anything done subsequently.
Fortunately, in 1968, the Supreme Court realised the fallacy involved in GAJENDRAGADKAR J.'s
observation, and laid down that when a statute offends a fundamental right, e.g., Art.14 [or 31(2)], it
ceased to have any 'legal existence', so, that by enacting a validating Act, the Legislature cannot
validate either the offending Act or anything done under it. 87
It was reiterated that a law made in controvertion of Art. 13(2) is a still born law either wholly or
partially depending upon the extent of controvertion. Such a law is dead from the beginning and there
can be no question of its revival. A law which is still born and is dead right from its inception cannot be
taken notice of or read for any purpose.88
"The State Legislature has no power to enact that an acquisition made under constitutionally invalid
Act is valid".89
Of course, it is competent for the Legislature to so amend the unconstitutional Act, as to remove its
offending provisions and then to give retrospective effect to the chastened enactment. 90 But that would
be a different matter, because such retrospective amendment or the offending Act cannot validate
anything done under the offending Act which was void ab initio on account of contravention of a
fundamental right,91 and nothing done by the Legislature could resuciate or give effect to such a "still-
born" law.92 But a reference may have to be made to a decision of Supreme Court in Hari Singh v.
Military Estate Officer, Delhi 93 in which case the Punjab Public Premises Act was declared void as
being inconsistent with Art. 14. There was a corresponding law made by Parliament enacted in 1958.
After Supreme Court's decision on Punjab Act, Parliament re-enacted its own law in 1971 seeking to
remove the blemish pointed out by the Supreme Court and was to have retrospective effect from the
date of commencement of original Act. A new clause was also added saying that all orders made
under the old Act would be deemed to be valid and effective as if they were made under the new law.
This clause was challenged on the ground that 1958 Act being unconstitutional, the same could not be
validated in so far as anything done under the unconstitutional Act . Holding the clause as valid, court
said that it is a fallacious argument to be accepted, for, it overlooked the crucial point that the 1971 Act
was made effective retrospectively from the date of commencement of the 1958 Act and the action
done under the 1958 Act was "deemed" to have been taken under the amended law of 1971 and the
new Act was valid under Art. 14 of the Constitution.
82 P. Sambamurthy v. State of A.P., (1987) 1 SCC 362 : (1987) 1 SCR 873; Re. Cauvery Water Disputes Tribunal,1993
SCC 96 (2)(Supp-1) ; Peoples' Union for Civil Liberties (PUCL) v. Union of India, AIR 2003 SC 2363 : (2003) 4 SCC
399.
84 Yasin v. Town Area Committee, 1952 SCR 572 : AIR 1952 SC 115; State of Kerala v. Joseph, AIR 1958 SC 296 :
1958 SCJ 614; Narendra v. Union of India, AIR 1960 SC 430 : (1960) 2 SCR 375.
85 Saghir Ahmad v. State of U.P., AIR 1954 SC 728 (739) : (1955) 1 SCR 707, MUKHERJEE J. Deep Chand v. State
of U.P., AIR 1959 SC 648 : (1959) 2 SCR 8, SUBBA RAO J., followed in Mahendralal v. State or U.P., AIR 1963 SC
1019 : 1963 Supp (1) SCR 912.
86 Jawaharlal v. State of Rajasthan, AIR 1966 SC 764 (para s. 21-22) : (1966) 1 SCR 890.
87 Dy. Commr. v. Durganath, AIR 1968 SC 394 (405)CB : (1968) 1 SCR 561.
88 Mohendra Lal Jaini v. State of U.P., AIR 1963 SC 1019 : 1963 SCR 912(Supp-1) ; Deep Chand v. State of U.P., AIR
1959 SC 648; Rakesh viz. v. Raminder Pal Singh Sethi (Dr.), (2005) 8 SCC 504.
89 Dy. Commr. v. Durganath, AIR 1968 SC 394 (405)CB : (1968) 1 SCR 561.
15
91 Mahendra v. State of U.P., AIR 1963 SC 1019 (paras. 14, 22, 24) : 1963 Supp (I) SCR 912.
92 Cf. Shama Rao v. Union Territory, AIR 1967 SC 1480 (para 14) CB : (1967) 2 SCR 650; Mehra v. Khanna, AIR 1971
Del 1 (para 110). [The contrary view expressed by DESHPANDE, J., in this case (para 14), is an open revolt against
the Constitution Bench decision in MahendraLal's case,AIR 1963 SC 1019 : 1963 Supp (1) SCR 912, and all juristic
principles relating to fundamental rights].
93 AIR 1972 SC 2205 : (1972) 2 SCC 239.
In State of Gujarat v. Shri Ambica Mills, 94 JUSTICE MATHEW posed the question when a law takes
away or abridges fundamental right of citizen under Art. 19(1)(g) whether it would be void and
therefore non-est. JUSTICE MATHEW, relying on earlier decision in Keshav Madhav Menon v. State
of Bombay, 95 held that a law though inconsistent with fundamental right is void in so far as citizens are
concerned, but it will continue to be valid in so far as non-citizens are concerned. Learned Judge
observed that "Madhav Menon's case has taken the view that the word "void" in Art. 13(1) would not
have the effect of wiping out pre-constitutional laws from the statute book and that they shall continue
to be operative so far as non-citizens are concerned, notwithstanding the fact that they are
inconsistent with the fundamental rights of citizens and, therefore, become void under Art. 13(1)".
Learned author H.M. SEERVAI,96 relying on the above passage, has said:
"When MATHEW J held in Ambica Mills that on the assumption that the impugned law violated Art. 19(1), it
was valid qua citizen, he applied the doctrine of severability in application because in Art. 19, the Constitution
itself makes a distinction between citizen and non-citizen. Consequently, qua citizen the court would restrain
the enforcement of the Act by a permanent injunction or mandamus".
Learned author further elaborates by saying:
"It is submitted that in such a situation a distinction must be made between lack of legislative power and
violation of constitutional limitation, because it would be self-contradictory to say of one indivisible law that
there was power and was not power to enact. The situation is more satisfactorily explained by saying that there
was legislative power to enact the law, but as to some persons real or juristic the power was disregarded of
constitutional limitation with the result that the law could not be enforced against such persons. This conclusion
is further supported by the submission made by JUSTICE MATHEW which leads to the conclusion that the
doctrine of 'eclipse' must apply to pre-Constitution and post-Constitutional Laws which violate rights conferred
only on some persons or entities".
Learned author further says:
"For, the main point of the doctrine of eclipse is that if a limitation put on legislative power by fundamental right
or any other Constitutional limitation is removed, the law operates without re-enactment; the law then no longer
violates fundamental right and not having been wiped off the statute book (or become non-est), it is revived
without reenactment".
Learned author concludes by saying:
"It is submitted that both as a matter of language and as a matter of law, there is a clear distinction between
lack of legislative power and disregarding a restriction on power as regards a part of the subject matter of that
power".
Relying on the decision in M.P.V. Sundarama Iyer v. State of AP, 97 learned author says that JUSTICE
VENKATARAMA IYER (in Sundarama Iyer's case) was right in the distinction which he made between
lack of legislative power and violation of constitutional limitation and the most important result of this
distinction is that a Legislature having legislative power can legislate "conditionally" on the limitation
on its power being removed, whereas a Legislature not possessing legislative power cannot legislate
at all.
16
94 AIR 1974 SC 1300 : (1974) 4 SCC 656 : (1974) 3 SCR 706.
95 AIR 1951 SC 128 : 1951 SCR 228.
96 See H.M. Seervai, Constitutional Law of India, 4th, Edn.
97 AIR 1958 SC 468 : 1958 SCR 1422.
In P.L. Mehra v. D.R. Khanna, 98 JUSTICE DESHPANDE in his minority view held that the 'doctrine of
eclipse' applies to both post-Constitution and pre-Constitution laws. Learned Judge pleads that mere
amendment of the law should be sufficient to revive it in case of conflict of fundamental rights.
Learned Judge has explained and reiterated his view in his book Judicial Review of Legislation. This
book has been reviewed by learned author M.P. JAIN in Journal of Indian Law Institute99 wherein the
reviewing author says: "In the Ambica Mills case, the court has held that a law which takes away or
abridges the fundamental right of citizen under Art. 19(1)(g) is not void and therefore non-est as
regards the non-citizen). But it is somewhat early to say whether the Supreme Court would come
round to the view advocated by JUSTICE DESHPANDEviz., when a law is declared void as being
inconsistent with a fundamental right, it is revived when it is amended to remove the vice. For, in the
Ambica Mills case, JUSTICE MATHEW observes: "Therefore, when Art. 13(2) uses the expression
'void', it can only mean void as against persons whose fundamental rights are taken away or abridged
by law. The law might be "still born" so far as the persons, entities or denominations whose
fundamental rights are taken away or abridged, but there is no reason why the law should be void or
still born as against those who have no fundamental rights".
An Act which is unconstitutional under Arts.14, 19 and 31(2) of the Constitution is revived under Art.
31B read with Schedule IX, if the impugned legislation or provision is incorporated in Schedule IX.
Once it is included in IX Schedule of the Constitution, court held that a law which had no life when
enacted, gets revitalised with retrospective effect when the Act was enacted. So, the Act once void by
reason of Art. 13(2) of the Constitution assumed full force and vigour from the date of its
enactment.100(Further discussion on the effect of legislation included in IX Schedule will be made under
Art. 368).
A Legislature cannot declare that decision rendered by the Court is not binding, void or is of no effect.
The Legislature can with retrospective effect change the basis on which a decision is rendered by a
Court and change the law in general. However this power can be exercised subject to Constitutional
provision, particularly, legislative competence and if it is violative of fundamental rights enshrined in
Part III of the Constitution, such law would be void. 101
3ii) The second question is as to the length of time. In the U.S.A., it has been
seen, any attempt by the Legislature to tax past benefits other than recent ones has
been held to be violative of 'due process'. According to the decision in 'Ramakrishna's
case,1 the lapse of 10 years would not introduce an element of unreasonableness where
the period has been spent in litigation. But the litigation in that case did not terminate in
favour of the validity of the imposition but against it. The assessee had all along been
maintaining that it was invalid and he won up to the court of final appeal. From his
standpoint, obviously, it was arbitrary for the Legislature to hold lawful what was unlawful
according to the Judiciary and to make the assessee or perhaps his successors, in some
cases, to pay tax on a benefit received long ago when the funds 'or such payment may
no longer be available. The standpoint of the state, namely, that it could not come with a
validating Act so long as the litigation had not finally terminated, it is submitted, may not
be the sole consideration in adjudging the reasonableness of the validating statute.
A legislation cannot be struck down, although retrospective operation might operate harshly in some
cases.2 Whereas under the Indian Constitution, the ground on which infraction of the rights to property
is to be tested not by the flexible rule of "due process", but on the more precise criteria set out in Art.
19(5); mere retrospectivity in the imposition of the tax cannot per se render the law unconstitutional on
the ground of infringing the fundamental right under Art. 19(1)(f) or under Art. 31(1). 3
17
The Constitution Beach of the Supreme Court has summarised the tests for determining the
reasonableness of a retrospective taxing law as follows:
"In testing whether a retrospective imposition of a tax operates so harshly as to violate fundamental
rights under Art. 19(1)(g), the factors considered relevant include the context in which retroactivity was
contemplated such as whether the law is one of validation of taxing statute struck down by courts for
certain defects; the period of such retroactivity, and the degree and extent of anj unforeseen or
unforeseeable financial burden imposed for the past period etc."4 When a tax is invalidated by court,
the Legislature can, provided it is competent to enact the law in question, remove the lacunae pointed
out by court in the law and revalidate the tax law. Court cannot direct the State Legislature to amend
the law nor direct that amendments shall not be retrospective. It is the exclusive privilege of the
Legislature particularly in tax matters, to enact validation laws which may be directed to apply
retrospectively.5
The legislative power either to introduce enactments for the first time or to amend the enacted law with
retrospective effect, is not only subject to the question of competence, but is also subject to several
judicially recognized limitations. (1) The first is the requirement that the words must expressly provide
or clearly imply retrospective operation. (2) The second is that the retrospectivity must be reasonable,
and not excessive, harsh, otherwise it runs the risk of being struck down as unconstitutional. (3)
Where the amendment is introduced to overcome a judicial decision, it must be by removing the
statutory basis of the decision. But the absence of a validating clause would not by itself affect the
retrospective operation of the statutory provision, if such retrospectivity is otherwise apparent. Where
the degree and extent of the unforeseen and unenforceable financial burden is minimal and the law is
intended to have continuity i.e., status quo, such law cannot be said to be unreasonable, or
unconstitutional. While considering the validity of retrospective operation, though by itself is not a
decisive test, account must be taken of the surrounding facts and circumstances relating to the
taxation and the legislative background of the provision. 6
When a statute is interpreted by a Court, the interpretation by fiction of law, is deemed to be part of the
statute from the date of its enactment and hence even judicial decisions are in a sense retrospective.
The unreasonability of retrospectiveness must therefore lie on some additional factors.
The retrospective effect of a fiscal statute would have to be found to be unduly oppressive and
confiscatory before it can be held to be unreasonable as to violate Constitutional norms. Where, for
instance, it appears that the taxing statute is plainly discriminatory, or provides no procedural
machinery for assessment and levy of the tax, or that it is confiscatory, Courts would be justified in
striking down the statute as unconstitutional. Where the statute is retrospective and is ex facie
discriminatory, or so unreasonable or confiscatory that it violates Art s. 14 and 19 of the Constitution,
then it is not valid.7
98 AIR 1971 Del 1 (supra).
99 See Journal of Indian Law Institute, Vol. 16, 1974.
100 See Jagannath v. Authorised Officer, Land Reforms, AIR 1972 SC 425 : (1971) 2 SCC 893 : (1972) 1 SCR 1055.
101 Peoples Union for Civil Liberties (PUCL) v. Union of India, (2003) 4 SCC 399 : AIR 2003 SC 2363.
2 Krishnamurthy & Co. v. State of Madras, AIR 1972 SC 2455 : (1973) 1 SCC 75; See also Hathising Manufacturing
Co. Ltd. v. Union of India, AIR 1960 SC 923 : (1960) 3 SCR 528.
3 Chhotabhai Jethabhai Patel & Co. v. Union of India, AIR 1962 SC 1006 : 1962 SCR 1(Supp-2) ; See also Easland
Combines, Coimbatore v. Collector of Central Excise, (2003) 3 SCC 410 : AIR 2003 SC 843.
4 Ujagar v. Union of India, AIR 1989 SC 516 (para 30) CB : 1988 Supp (3) SCR 770; Cf. Empire Industries v. Union of
India, (1985) 3 SCC 314 (paras 50-51) : AIR 1986 SC 662.
5 Municipal Committee v. Model Town Residents' Assn., AIR 2007 SC 2844 : (2007) 8 SCC 669; National Agricultural
Co-operative Marketing Federation of India v. UOI, AIR 2003 SC 1329 : (2003) 5 SCC 23; Widia (India) Ltd. v. State of
Karnataka, AIR 2003 SC 3095 : (2003) 8 SCC 22; State of HP v. Yash Pal Garg, (2003) 9 SCC 583 : AIR 2003 SC
18
2089; Mycon Construction Ltd. v. State of Karnataka, (2004) 2 SCC 249 : (2003) 10 SCALE 547; Gujarat Ambuja
Cements Ltd. v. UOI, AIR 2005 SC 3020 : (2005) 4 SCC 214; R.C. Tobacco (P) Ltd. v. UOI, AIR 2005 SC 4203 : (2005)
7 SCC 725.
6 National Agricultural Co-op. Marketing Federation of India Ltd. v. Union of India, (2003) 5 SCC 23 : AIR 2003 SC
1329.
7 R.C. Tobacco (P) Ltd. v. Union of India, (2005) 7 SCC 725.
1V. In the absence of a constitutional prohibition such as Art. 20(1), there is

nothing to prevent the Legislature in India to take away a vested right. 8 Even where in
giving such retrospective operation to a law, the Legislature nullifies the effect of some
earlier decision of a Court, it cannot be assailed on the ground that the Legislature is
purporting to exercise "judicial power". All that the Legislature is doing is to lay down the
law to be applied by Courts in future adjudication of disputes between the parties,
irrespective of any previous decision of the Courts.9 But what the Legislature cannot do
is to declare that in spite of court's decision, the law will be deemed to be valid. This
amounts to overriding court's decision by the Legislature and in consonance with the
doctrine of separation of powers, Legislature cannot directly nullify a court decision. In
one case, the High Court specifically ruled that the power to levy tax under the law could
be legal only if the concerned authority collecting the tax rendered services to the
taxpayers, and, as no service has been rendered, the collection of tax was illegal. This
finding of the High Court became final as it was not challenged. Therefore, the
Legislature passed an Amending Act declaring that the levy of tax would be deemed to
be valid in spite of the decision by the High Court. Supreme Court held that State
Legislature could not make a law declaring that the High Court's decision is wrong. The
Legislature had not cured the lacuna pointed out by the High Court. When the
Legislature seeks to validate a tax law declared as invalid by High Court, before the
validation can take place effectively, the basis of judgment has to be erased i.e., the
defects pointed out by the High Court have to be removed. It is not sufficient to declare
that the High Court's decision is not binding since Legislature has no power to overrule a
judgment.10
If in the light of such validating and curative exercise made by the Legislature - granting legislative
competence - the earlier judgment becomes irrelevant and unenforceable, that cannot be called an
impermissible legislative overruling of the judicial decision. All that the Legislature does is to usher in a
valid law with retrospective effect in the light of which earlier judgment becomes irrelevant. 11 No
individual can acquire a vested right from a defect in a statute and seek a windfall from the
Legislature's mistake. Validity of legislation retrospectively curing defects in taxing statutes is well
recognized and courts, except under extraordinary circumstances, would be reluctant to override the
legislative judgment as to the need for and wisdom of retrospective legislation. 12
A validating Act may make ineffective judgments and orders of Competent Courts provided it, by
retrospective legislation, removes the cause of invalidity or the basis which had led to the judgments. 13
The Supreme Court has held that power to enact includes power to re-enact or validate any provision
of law in the State Legislature provided the subject of legislation comes within State List of Seventh
Schedule with the restriction that such enactment should not nullify a judgment of a competent Court. 14
When a Legislature passed a law, without taking note of an earlier order of High Court or Supreme
Court which is contrary to the law passed and there is no non-obstante clause in the impugned
legislation annulling judicial orders, the earlier decision of judiciary still holds good since the
Legislature did not override the judicial order. 15
A Legislature cannot directly overrule a judicial decision. But when a competent Legislature
retrospectively removes the substratum or foundation of a judgment to make the decision ineffective,
the said exercise is a valid legislative exercise provided it does not transgress any other constitutional
limitation. Such legislative device which removes the vice in previous legislation is not considered an
encroachment on judicial power. The power of Legislature to legislate within its field, both
prospectively and retrospectively, cannot be questioned. It would be permissible for the Legislature to
19
remove a defect in earlier legislation. This defect can be removed both prospectively and
retrospectively and previous act ion can be validated. Even a court has power by virtue of validating
legislation to "wipe" out the judicial pronouncement of the High Court and the Supreme Court by
removing the defects in the statutes retrospectively when such statutes have been declared ultra vires
by courts in view of the defects.16
II. PROCEDURAL REASONABLENESS Natural justice as a condition for reasonableness
U.S.A.
1A) U.S.A.--It has already begin stated that 'procedural due process' requires
that in order that a restriction upon a right secured by the Bill of Rights may be valid, the
person to be affected must be rendered an opportunity to present his objections, 17 on
being given a reasonable notice.18
Procedural reasonableness like procedural due process means that the procedure or manner of
imposing or enforcing a restriction upon a fundamental right must be fair, just and reasonable. 19The
object of procedural due process is the protection of the individual against arbitrary act ion. 20
Procedural due process, in brief, requires that a person must be given an opportunity of being heard in
his defence, before he is deprived of his life, liberty or property. 21 At the very least, due process
requires that before a person is deprived of his life, liberty or property, he must be given "notice of
case against him" and "opportunity to meet it".22
'Due Process' as conventionally understood means procedural regularity or fairness. It focuses on the
means by which Government deprives people of things - whether life, liberty or property - and calls to
mind the assurance that the policy will be implemented only in ways that are not irregular, arbitrary or
unreasonable. When governmental action that imposes some deprivation or limits an individual's right
of act ion is at issue, interpreters of the clause who focus on this variety of due process essentially ask
whether the affected person received all the process that was due. 23
8 Kochuni v. States of Madras & Kerala (ii), AIR, 1960 SC 1080 (paras. 76-78) : (1960) 3 SCR 887.
9 Kochuni v. States of Madras & Kerala (ii), AIR, 1960 SC 1080 (paras. 76-78) : (1960) 3 SCR 887.
10 B. Krishna Bhatt v. State of Karnataka, AIR 2001 SC 1885 : (2001) 4 SCC 227; Gujarat Ambuja Cements Ltd. v.
UOI, AIR 2005 SC 3020 : (2005) 4 SCC 214; Hindustan Gum Chemicals Ltd. v. State of Haryana, AIR 1985 SC 1683 :
(1985) 4 SCC 124.
11 Prithvi Cotton Mills Ltd. v. Broact of Borough Municipality, (1969) 2 SCC 283 : (1970) 1 SCR 388. See also A.
Manjula Bhashini v. A.P. Women's Co-op. Finance Corpn. Ltd., (2009) 8 SCC 431 : AIR 2010 SC 3143.
12 Empire Industries Ltd. v. Union of India, 1985 SCR 292(Supp-1) : (1985) 3 SCC 314; Ujagar Prints v. Union of India,
(1989) 3 SCC 488 : AIR 1989 SC 516; Easland Combines Coimbatore v. Collector of Central Excise, AIR 2003 SC
843 : (2003) 3 SCC 410.
13 Bhubaneshwar Singh v. UOI, (1994) 6 SCC 77 : (1994) 3 SCALE 334; Camorin Match Industries (Pvt.) Ltd. v. State,
AIR 1996 SC 1916 : (1996) 4 SCC 281; Indian Aluminium Co. v. State of Kerala, AIR 1996 SC 1431 : (1996) 7 SCC
637. See also K. Sankaran Nair v. Devaki Amma Malathy Amma, (1996) 11 SCC 428; Meerut Development Authority v.
Satbir Singh, AIR 1997 SC 1467 : (1996) 11 SCC 462; State of Tamil Nadu v. Arooran Sugars Ltd., AIR 1997 SC 1815;
S.S. Bola v. B.D. Sardana, AIR 1997 SC 3127; Indra Sawhney v. UOI, AIR 2000 SC 498 : (2000) 1 SCC 168; District
Mining Officer v. Tata Iron & Steel Co., AIR 2001 SC 3134 : (2001) 7 SCC 358; Easeland Combines, Coimbatore v.
Collector of Central Excise, AIR 2003 SC 843 : (2003) 3 SCC 410; Satnam Overseas (Export) v. State of Haryana,
(2003) 1 SCC 561 : AIR 2003 SC 66; Bakhawat Trust v. M.D. Narayanan, AIR 2003 SC 2236 : (2003) 5 SCC 298.
14 Greater Bombay Co-operative Bank Ltd. v. United Yarn Tex (P) Ltd., AIR 2007 SC 1584 : (2007) 6 SCC 236.
15 P. Venugopalan v. UOI, (2008) 5 SCC 1 : (2008) 7 SCALE 255.
16 State of HP v. Narain Singh, (2009) 13 SCC 165 : (2009) 9 SCALE 326.
17 Mullane v. Central Hanover Tr. Co., (1950) 339 US 306 (314); Brock v. Roadway, (1987) 1075 St. 1740 (1743):
Memphis v. Craft, (1978) 436 US 1 (14-15).
20
18 Mullane v. Central Hanover Tr. Co., (1950) 339 US 306 (314); Brock v. Roadway, (1987) 1075 St. 1740 (1743):
Memphis v. Craft, (1978) 436 US 1 (14-15).
19 Holden v. Hardy, (1898) 169 US 366; Mathews v. Eldridge, (1976) 424 US 319.
20 Ohio Bell Co. v. PLUC, (1973) 301 US 292.
21 Holden v. Hardy, (1898) 169 US 366 (supra).
22 Joint Anti-Fascist Refugee Commission v. McGrath, (1951) 341 US 123.
23 See Craig R. Ducat, Constitutional Interpretation, 8th Edn., p. 475.
Learned author CRAIG R. DUCAT further says:
"This way of putting the question accurately suggests that procedural due process deals in degree of
protection. Usually we require government to employ more extensive procedure when it seeks to impose the
death penalty than when it suspends or revokes a driver's licence. How much process due ordinarily depends
upon balancing of several factors, such as importance of affected interest, the risk of erroneous decision, and
the cost of the procedures to be used. At a minimum, due process usually requires notice and sometimes
reason before government acts, at its maximum due process requirement takes the form of a full blown trial.
Throughout, the focus reminds the constitutionality of the methods by which government policy is
implemented." (at p. 476).
In Cleveland Board of Education v. Londermill, 470 US 532 (1985), employee was dismissed from
service without notice. When it was found that he obtained employment by suppression or
misrepresenting fact. He had declared that he was never convicted of felony which fact was not true.
On finding that the declaration was not true, his service was terminated, but without giving an
opportunity of being heard. While holding that the order is not valid, it was held "Due Process Clause
provide that certain substantive right -- life, liberty and property--cannot be deprived except pursuant
to constitutionally adequate procedures. The categories of substance and procedure are distinct.
Were the rule otherwise, the clause would be reduced to a mere tautology. "Property" cannot be
defined by the procedures provided for its deprivation any more than can life or liberty. The right to
due process "is conferred, not by legislative grace, but by constitutional guarantee". While the
Legislature may elect not to confer a property interest in public employment, it may not constitutionally
authorize the deprivation of such an interest, once conferred, without appropriate procedural
safeguards.
At the same time "due process" unlike some legal rules, is not a technical conception with a fixed
content unrelated to time, place and circumstances. Due process is flexible and calls for such
procedure protections as the particular situation demands. Hence in certain cases, a post-decisional
hearing was held sufficient.24
In another case, the court said: "The employees' statutorily defined right is not a guarantee against
removal without cause in the abstract, but such a guarantee is enforced by the procedure which
Congress has designated for the determination of the cause. When the grant of a substantive right is
inextricably intertwined with limitation on the procedures which are to be employed in determining that
right, a litigant in the position of appellee must take the bitter with the sweet". When a Legislature
confers a substantive right and also sets out a procedural mechanism for enforcing that right, the two
cannot be separated.25
India
2B) India.--It is now established that, subject to restrictions to be mentioned

hereafter, a restriction imposed upon a fundamental right guaranteed by Art. 19 is not
procedurally reasonable if it seeks or empowers an authority to restrict a fundamental
right without complying with the rules of natural justice. 26
If a penal law coming under Art. 21 directly infringes any fundamental right guaranteed by Art. 19, it
must, in order to be upheld, also satisfy the test of reasonableness of the restriction imposed by that
law as well as the requirement of natural justice which were implicit in and is the very quintessence of
21
the test of reasonableness.27 A logical conclusion would be that any law or order which affects a
person's fundamental right without hearing him would be null and void. 28
1. Opportunity to be heard
1. Subject to exceptions to be noted hereafter, a citizen's right of speech 29 or

association or freedom of movement,30 or of business31 cannot be curtailed without giving
him an opportunity to be heard.
24 Mathews v. Elridge, 424 US 319 (1976).
25 Arnett v. Kennedy, (1974) 416 US 134.
26 Nawabkhan v. State of Gujarat, AIR 1974 SC 1471 (1475) : (1974) 2 SCC 121. [See elaborate discussion on
Natural justice in Ch. VIII of the Author's Administrative Law.
27 Maneka Gandhi v. UOI, AIR 1978 SC 597 : (1978) 1 SCC 248; see also Nawabkhana v. State of Gujrat, AIR 1974
SC 1471 : (1974) 2 SCC 121 (supra).
28 Nawabkhana v. State of Gujarat, AIR 1974 SC 1471 : (1974) 2 SCC 121 (supra).
29 Virendra v. State of Punjab, AIR 1957 SC 896 (903) : 1958 SCR 308.
30 State of Madras v. Row, 1952 SCR 597 : AIR 1952 SC 196; Ebrahim Wazir v. State of Bombay, AIR 1954 SC 229 :
1954 SCR 933.
31 Dwarka Prasad v. State of U.P., AIR 1954 SC 224 : 1954 SCR 803.
3I. In some cases, the Supreme Court has demanded judicial enquiry for
deprivation of fundamental rights in normal times, e.g.--
4i) For the curtailment of the right of association.32
4ii) For curtailing the right of property of the superior of a Hindu religious
institution, by settling a scheme.33
III. Of course, if the administrative authority is required to proceed quasi-judicially, and it is subject to
appeal or' revision before a higher authority, it cannot be urged that the procedure is unreasonable
even where it is substituted for an initial Court procedure. 34
There are, on the other hand, some cases where the Supreme Court has exonerated a statute which
has omitted to provide for a compliance with the rules of natural justice, with a fond hope that such
rules would, in any case, be observed by the authority vested with the statutory power. 35
But it is now established by later authorities that natural justice must be complied with where the civil
rights of an individual are affected by an administrative act ion. 36 The test for determination whether an
administrative act or determination should fail for non-compliance with the requirement of opportunity
to be heard, therefore, is whether any civil right of the Petitioner is going to be affected by the
impugned act, or it would inflict upon him civil consequences.37 An administrative order which involves
civil consequences must be made consistently with the rule expressed in Latin maxim "Audi Alteram
Partem". It means that the decision maker should afford to the party to a dispute an opportunity to
present his case, the person concerned must be informed of the case against him and the evidence in
support thereof and must be given a fair opportunity to meet the case before an adverse decision is
taken.38 In that case, court also observed that price fixation by Government must be based on reason
though no rule of natural justice is applicable, being legislative in character. The principle of equality
enshrined in the Constitution must guide every State action, whether it is legislative, executive or
quasi-judicial.39In order to protect himself against the excesses of organized power, man has always
appealed to someone beyond his own creation. Such someone could only be God and His laws,
divine or natural law, to which all temporal laws and act ion must conform. This is the origin of concept
22
of natural justice. However, natural justice is not justice of the nature where lion devours the lamb and
the tiger feeds upon the antelope. Natural justice is of the "higher law of nature or natural law", where
lion and lamb lie down together and tiger frisks with the antelope. 40 Natural justice implies fairness,
reasonableness, equity and equality. Natural justice is a concept of common law and it is the common
law world counterpart of American "procedural due process". Natural justice represents higher
procedural principles developed by judges which every administrative agency must follow in taking
decision adversely affecting the rights of private individual. 41 The expressions "natural justice" and
"legal justice" do not present a watertight classification. It is the substance of justice which is to be
secured by both and whenever legal justice fails to achieve this purpose, natural justice is called in aid
of legal justice.42
In India, it has been held that whenever the Constitution requires "reasonableness" as a condition for
valid legal process (i.e., Arts. 19(2), 19(6), and 311(2)), such process must be in consonance with
natural justice, so that a law which violates this condition must be unconstitutional and void. 43
But in cases where the freedom of speech is likely to affect communal harmony and the speech is
likely to trigger communal antagonism and hatred, the person can be prevented from making to
speech and from entering the place under s. 144 of the Code of Criminal Procedure . For the said
purpose, the authorities can take into consideration the track record of such happenings in other
places involving such participants. In such cases quick decisions and swift as well as effective action
is necessary and it may not justify or permit the authorities to give prior opportunity or consideration at
length of the pros and cons. The imminent need to intervene instantly, having regard to the sensitivity,
and perniciously perilous consequences it may result if not prevented forth with, cannot be lost sight
of.44
The aim of both administrative enquiry as well as quasi-judicial enquiry is to arrive at a just decision
and if a rule of natural justice is calculated to secure justice, or to put it negatively, to prevent
miscarriage of justice, the principles of natural justice must be complied with. The duty to act judicially
need not be super-added, but it may be spelt out from the nature of the power conferred, the manner
of exercising it and its impact on the rights of the person affected and where it is found to exist, the
rule of natural justice would be attracted. It is now settled that even in administrative proceedings
which involves civil consequences, the doctrine of natural justice must be held to be applicable. 45 It
was further held that "natural justice is pragmatically flexible and is amenable to capsulation under the
compulsive pressure of circumstances" and the rule is not cast in a rigid mould and judicial decisions
establish that it may suffer situational modification. The core of it must, however, remain, namely that
the person affected must have a reasonable opportunity of being heard and the hearing must be a
genuine hearing and not an empty public relations exercise. What opportunity may be regarded as
reasonable would necessarily depend on the practical necessities of the situation.
Even when there is no specific provision in a statute or rules made thereunder, for showing cause
against act ion proposed to be taken against an individual, which affects the rights of that individual,
the duty to give reasonable opportunity to be heard will be implied from the nature of the function to be
performed by that authority which has the power to take punitive or damaging action. (by BEG C.J.). It
was further held that hearing may even be given after taking action in cases where emergent act ion
had to be taken. The applicability of the principles of natural justice could be excluded or restricted
only if the same is likely to paralyse the administrative process and defeat the urgency of the
measure.
32 State of Madras v. Row, 1952 SCR 597 : AIR 1952 SC 196.
33 Jagannath v. State of Orissa, 1954 SCR 1046 : AIR 1954 SC 400.
34 Digyadarshan Rajendra Ramdassji Varu v. State of A.P., AIR 1970 SC 181 p. 184 (para 6) : (1969) 1 SCC 844.
35 Babul Chandra v. Patna High Court, AIR 1954 SC 524.
36 Mohinder v. Chief Election Commr., AIR 1978 SC 851 (paras. 44-47) : (1978) 1 SCC 405.
23
37 Eurasian Equipment v. State of W.B., AIR 1975 SC 266 (paras. 14, 17-20) : (1975) 1 SCC 70; Baldev v. State of
H.P., AIR 1987 SC 1239 (para 5) : (1987) 2 SCC 510; Kapoor v. Jagmohon, AIR 1981 SC 136 : (1980) 4 SCC 379. See
also Shekhar Ghosh v. Union of India, (2007) 1 SCC 331.
38 Neelima Misra v. Harinder Kaur Paintal, AIR 1990 SC 1402 : (1990) 2 SCC 746.
39 See also Shri Sitaram Sugar Co. Ltd. v. UOI, AIR 1990 SC 1277 : (1990) 3 SCC 223.
40 UOI v. Tulsiram Patel, AIR 1985 SC 1415 : (1985) 3 SCC 398.
41 See Massey, Administrative Law, 6th Edn., p. 164.
42 Canara Bank v. Debasis Das, AIR 2003 SC 2041 : (2003) 4 SCC 557.
43 Fatehchand v. State of Maharashtra, AIR 1977 SC 1825 : (1977) 2 SCC 670; State of AP v. Nalla Raja, (1967) 3
SCR 28; John v. State of Travancore-Cochin, AIR 1955 SC 160 : (1955) 1 SCR 1011; UOI v. Goel, AIR 1964 SC 364 :
(1964) 4 SCR 718; Maneka Gandhi v. UOI, AIR 1978 SC 597 : (1978) 1 SCC 248.
44 State of Karnataka v. Dr. Praveen Bhai Thogadia, AIR 2004 SC 2081 : (2004) 4 SCC 684.
45 Maneka Gandhi v. Union of India, (1978) 1 SCC 248 : AIR 1978 SC 597.
Where a statute does not provide for procedural fairness, it may be ultra vires and when a substantive
unreasonableness is to be found in a statute, it may be declared unconstitutional. Principles of natural
justice cannot be dispensed with on mere ipso dixit. Statute which takes away somebody's right
and/or imposes duties can be upheld where for all intent and purport, there does not exist any
provision for effective hearing.46
In England, there was a time when CHIEF JUSTICE COKE asserted that a law made by Parliament
which violated "Common law and reason" (which includes the principle of natural justice), the court
must adjudge it as "void".47Since then, however, the doctrine of Parliamentary sovereignty has got the
upper hand over Judicial Review and it is now settled that courts cannot invalidate any Act duly
passed by Parliament on the ground that it has violated the principle of natural justice. The reason
was clearly explained in Lee v. Bude & Torrington Rly. Co. 48 by JUSTICE WILLES in 1871 in the
following words:
"It was once said that if an Act of Parliament were to create a man Judge in his own cause, the court might
disregard it. That dictum, however, stands as a warning, rather than authority to be followed. ... Are we to act
as regents over what is done by Parliament with the consent of the Queen, Lords and Commons? I deny that
any such authority exists. Learned Judge further said: "We do not sit here as a Court of Appeal from
Parliament. If an Act of Parliament has been obtained improperly, it is for the legislature to correct it by
repealing it, but so long as it exists, the courts are bound to obey it".49
In Nawabkhan v. State of Gujarat, 50 the Supreme Court said that the order of externment affected the
fundamental right under Art. 19(1)(d). It is not reasonable. A determination was no determination if it is
contrary to constitutional mandate of Art. 19. On this footing, an externment order being of no effect,
its violation could not be regarded as an offence. The court ruled that an order infringing a
constitutional guaranteed right made without hearing the party affected where hearing was required, it
would be void ab initio and of no legal efficacy to bind parties from the very beginning, and a person
cannot be convicted for non-observance of such an order. Where hearing is obligated by a statute
which affects fundamental rights of a citizen, the duty to give hearing sounds in constitutional
requirement and failure to comply with such a duty is fatal. Beyond doubt, an order which infringes a
fundamental freedom passed in violation of the "audi alteram partem" rule is a nullity.
Principles of natural justice will apply in cases where there is some right which is likely to be affected
by an act of the administration. Good administration, however, demands observance of doctrine of
reasonableness in other situation also where the citizens may legitimately expect to be treated fairly.
Doctrine of legitimate expectation has been developed in the context of principle of natural justice. 51 If
upon giving an opportunity of hearing to an affected employee, it is possible to arrive at a different
finding, principles of natural justice must be complied with. 52 It was further held therein that the
principles will apply even in cases when a mistake is sought to be rectified. 53 Application of the
24
principle of natural justice cannot be restricted to a particular set of instances and observance of the
principles of natural justice constitutes the sheet anchor of procedures. 54
Cantonment Board v. Taramani Devi 55was a case where the Cantonment Board granted permission to
the respondent to make addition to his building. The Officer-Commanding-in-Chief cancelled the
permission without hearing the respondent, but after hearing the Cantonment Board. When
challenged on the ground of violation of principle of natural justice, court said that no order, prejudicial
in nature, shall be passed at the back of a person, when it entails civil consequences. Even in cases
where there is no specific mandate to provide opportunity for hearing, that requirement has to be read
into the relevant provision. Power to recommend disciplinary act ion against an erring Public
Information Officer can be exercised only after affording an opportunity of hearing to the delinquent
officer. Court said that Information Commission performs adjudicatory function deciding rights and
liabilities and obligations of contesting parties. Court said that natural justice is the bedrock of judicial
system which must be read into the provisions of the statute. Court said that though the Information
Commission has only a power to recommend, it has far-reaching consequences on the career of
delinquent officer and therefore the principles of natural justice have to be followed. 56 The aim of rules
of natural justice is to secure justice, or to put it negatively, to prevent miscarriage of justice. 57In cases
where dealership in petrol and diesel is controlled by agreement, for termination of dealership,
procedure provided in the agreement has to be strictly followed. A finding that there is contamination in
the oil, on the basis of an inspection report prepared without notice to the dealer, cannot be acted
upon. The court said that cancellation of dealership agreement is a serious business and cannot be
taken up lightly. The authorities have to act fairly and in complete adherence to the rules and
guidelines framed. Court said that no person should be condemned unheard. Termination of
agreement was set aside.58
It is fundamental principle that right to adjudication by an independent body and impartial forum,
consistent with recognised principles of adjudication is a basic right of any individual. Where access to
court to enforce such right is sought to be abridged, altered, modified or substituted by directing a
person to an alternate forum, such legislative act is open to challenge when it violates the right to
adjudication by an independent body. It is violative of procedural equality and natural justice. 59
Rejection of tender
It follows, therefore, that since no person has any fundamental right to enter into business with the
Government,60 a person whose tender,61 though lowest (or whose bid62at an act ion, though highest)
has seen rejected by the Government, cannot complain of the violation of Art. 19(1)(g) on the ground
that the tenderer was not heard before canceling his tender or bid. He does not acquire any civil right
until his bid is accepted.63
Even though there may not be any fundamental right to have a contract with Government, in
contractual spheres as in all State action and all its instrumentalities have to conform to Art. 14 of the
Constitution of which non-arbitrariness is a significant fact. There is no unfettered discretion in public
law. A public authority possesses powers only to use them for public good. This imposes a duty to act
fairly and to adopt a procedure which is "fair play in action". 64 In the case of tender, the right to refuse
the lowest or any other tender is always with Government and the right to choose cannot be
considered to be an arbitrary exercise of power, though such power should not be exercised for any
collateral purpose. The decision to accept or reject a tender must be tested by the application of
Wednesbury principle of reasonableness, free from arbitrariness, bias or mala fides.65
46 Bidhanagar (Salt Lake) Welfare Association v. Central Valuation Board, (2007) 4 Supreme 542. See also Sarjoo
Prasad v. General Manager, AIR 1981 SC 1481 : (1981) 3 SCC 544; State of Orissa v. Binapani, AIR 1967 SC 1269 :
(1967) 2 SCR 625; Virendra Kumar v. UOI, AIR 1981 SC 947 : (1981) 1 SCC 485; Assam Sillimonite Ltd. v. UOI, AIR
1990 SC 1417 : (1990) 3 SCC 182; R.B. Sreeram Durga Prasad v. Settlement Commissioner, AIR 1989 SC 1038 :
(1989) 1 SCC 628.
47 See Bonham's case,(1610) 8 Co. Rep. 118.
48 (1871) LR 6 CP 577.
25
49 See also R. v. Barnsley Licncing JJ, (1960) 2 All ER 703. Also see D.D. Basu, Comparative Constitutional Law 2nd
Edn., p. 30.
50 AIR 1974 SC 1471 : (1974) 2 SCC 121.
51 Ashoka Smokeless Coal India (Pvt.) Ltd. v. Union of India, (2007) 2 SCC 640.
52 Shekhar Ghosh v. Union of India, (2007) 1 SCC 331.
53 See also Ram Ujavey v. Union of India, (1999) 1 SCC 685.
54 K. Gopal Reddy v. Secretary, Vijaya Co-operative House Building Society, 2004 AIHC 1687(AP) .
55 AIR 1992 SC 61 : 1992 SCC 501(Supp-2) .
56 Manohar v. State of Maharashtra, AIR 2013 SC 681 : (2012) 13 SCC 14; see also Kesar Enterprises v. State of UP,
AIR 2011 SC 2709 : (2011) 13 SCC 733.
57 Automotive Tyre Manufacturers' Assn. v. Designated Authority, (2011) 2 SCC 258 : (2011) 1 SCALE 149.
58 Hindustan Petroleum Corpn. Ltd. v. Super Highway Services, (2010) 3 SCC 321 : (2010) 2 SCALE 508.
59 UOI v. Madras Bar Assn., (2010) 11 SCC 1 : (2010) 5 SCALE 514; see also State of AP v. McDowell & Co., (1996) 3
SCC 709 : AIR 1996 SC 1627.
60 Achuthan v. State of Kerala, AIR 1959 SC 490 : 1959 Supp (1) SCR 787.
61 Quenim v. Tandel, AIR 1974 SC 651 (para 11) : (1974) 2 SCC 169.
62 Trilochan v. State of Orissa, AIR 1971 SC 733 : (1971) 3 SCC 153; State of Orissa v. Harinarayan, AIR 1972 SC
1816 (para 17) : (1972) 2 SCC 36.
1816 (para 17) : (1972) 2 SCC 36.
64 Food Corpn. of India v. Kamadhenu Cattle Feed Industries, (1993) 1 SCC 71.
65 Tata Cellular v. Union of India, (1994) 6 SCC 651.
Order refusing to grant the licence is administrative and not judicial in nature. Authority while refusing
to grant a licence can rely on confidential reports based on secret enquiries about the applicants
without disclosing the applicants the source of adverse information and without giving them an
opportunity to confront the information.66
Blacklisting
On the other hand, such opportunity must be given if the Petitioner is black-listed 67 for entering into
future contracts with the Government, since such order involves a civil consequence, 68 because,
though a person has no fundamental right to enter into any business with the Government, he is
(under Art. 14) entitled to equal and fair treatment with others, even though it is a privilege. To deprive
him of such treatment in the matter of earning his livelihood as well as to undermine his reputation, is
a 'civil consequence'.69
It was held in Erusian's case that "State need not enter into any contract with anyone, but if it does so,
it must do so fairly without discrimination and without unfair procedure. Reputation is a part of person's
character and personality. Blacklisting tarnishes one's personality. Exclusion of a member of the public
from dealing with the State in sales transaction has the effect of preventing him from purchasing and
doing a lawful trade on the goods in discriminating against him in favour of other people.
Fundamentals of fair play require that the person concerned should be given an opportunity to
represent his case before he is put on the blacklist. The full bench decision of the Kerala High Court in
V. Punnen Thomas v. State of Kerala, 70 was impliedly overruled.71 It was held that it is an implied
principle of the rule of law that any order having civil consequences should be passed only after
following the principles of natural justice. It has to be realised that blacklisting any person in respect of
business ventures has civil consequences for the future business of the person concerned in any
event. Even if the rules do not express so, it is an elementary principle of natural justice that the
26
parties affected by any order should have a right of being heard and making representation against
the order.72 Deletion of name from the list of approved contractors on account of vigilance report
without affording to the affected person an opportunity of hearing is not valid. 73 But once show-cause
notice is issued and explanation received, the Government is not bound to supply the materials which
are the basis of show-cause.74 In M/s. Southern Printers v. Fertilizer & Chemicals Travancore Ltd., 75 it
was observed that the cry of natural justice is that prior notice and an opportunity of being heard
should be given before refusing to issue tender form to a qualified contractor and deleting his name
from qualified contractors list and blacklisting him for ten years as personal and professional
reputation of the contractors would be at stake.
In Grasons Pharmaceuticals (P) Ltd. v. State of UP, 76 the grievance of the appellant before the
Supreme Court was that the order of blacklisting passed against him was against the principles of
natural justice in as much as he had not been supplied with all materials on the basis of which the
charges in the show cause notice were issued. The Supreme Court said: "Appellant has only a
contractual relationship with the State Govt. and the said relationship is not governed by any statutory
rule. There is no statutory rule which requires that an approved contractor cannot be blacklisted
without giving an opportunity of show cause. It is true that an order of blacklisting an approved
contractor results in civil consequences and in such a situation, in the absence of statutory rules, the
only requirement of law while passing such an order was to observe the principle of 'audi alteram
partem' which is one of the facets of the principles of natural justice".
A new principle of natural justice is being developed by holding that fairness and transparency in
public administration require that the recording in the confidential report of a Government servant
(whether poor, fair, average, good or very good) (whether serving in civil, judicial, police or any other
State service) (except military) must be communicated to him within a reasonable period, so that he
can make a representation for upgradation. This rule prevails even if there may be no rule or
Government order requiring communication of the entry or even if there is a rule or Government order
prohibiting it because the principles of non-arbitrariness in State act ion envisaged by Art. 14 of the
Constitution require such communication. Non-communication of entries in annual confidential report
of a public servant, whether he is in civil, judicial, police or in other service (other than military) has
civil consequences because it may affect his chance of promotion or get other benefits. 77 Even a
purely administrative order which entails civil consequences must be consistent with the rules of
natural justice. The expression "civil consequences" encompasses infraction of not merely property or
personal rights, but civil liberties, material deprivation and non-pecuniary damages. Anything which
affects a citizen in his "civil life" comes under its wide umbrella. 78
But if a person is given an opportunity to explain fails to avail that opportunity cannot complain failure
of natural justice.79
2V. It has, on the other hand, been held that where urgent action is required to
prevent injury to life or property or to avert some social, economic or other public
mischief, the law may provide that the competent authority may make an ex-parte order,
subject to the right of the affected party to make representation against that order. In
such circumstances, a post-decisional hearing would meet the ends of justice.80 In
situations where a dangerous building is to be demolished 81 or a company is to be
wound up to save depositors82 or there is imminent danger to peace83 or a trade which is
dangerous to society is to be prohibited,84 dire social necessity requires exclusion of
elaborate process of fair hearing. In the case of power theft being detected by offi cials,
immediate disconnection is necessary where natural justice is not applied. 85
Even in cases of urgency, the requirement to act fairly remains, so that the court has to make an
adjustment between the need of expedition and the need to give full opportunity to the party
affected86e.g., by insisting upon 'minimal' natural justice such as a mere notice or a post-decisional
hearing wherever possible87 except where the giving of such opportunity would paralyse the
administration.88
27
At the stage of investigation under Code of Criminal Procedure , no notice need be given to the
party.89 In cases of need for urgent action, a pre-decisional hearing may be excluded by implication
where the statute offers a post-decisional hearing by way of cancellation of that order. 90
66 Chingleput Bottlers v. Majestic Bottling Co., (1984) 3 SCC 258 : AIR 1984 SC 1030.
67 Raghunath v. State of Bihar, AIR 1989 SC 620 (para 4) : (1989) 1 SCC 229.
1816 (para 17) : (1972) 2 SCC 36.
69 Eurasian Equipment v. State of W.B., AIR 1975 SC 266 (paras. 14, 17-20) : (1975) 1 SCC 70; Baldev v. State of
H.P., AIR 1987 SC 1239 (para 5) : (1987) 2 SCC 510; Kapoor v. Jagmohon, AIR 1981 SC 136 : (1980) 4 SCC 379. See
also Southern Printers v. Fertilizer & Chemicals Travancore Ltd., AIR 1994 SC 1277 : 1994 SCC 699(Supp-2) .
70 V. Punnen Thomas v. State of Kerala, AIR 1969 Kerala 81 : 1968 KLT 800.
71 See also Joseph Vilangadan v. Executive Engineer, (1978) 3 SCC 36 : AIR 1978 SC 930 : (1978) 3 SCR 514.
72 Raghunath Thakur v. State of Bihar, (1989) 1 SCC 229 : AIR 1989 SC 620.
73 Southern Painters v. Fertilisers and Chemicals of Travancore Ltd., 1994 SCC 699(Supp-2) : AIR 1994 SC 1277.
74 Gronsons Pharmaceuticals (P) Ltd. v. State of U.P., AIR 2001 SC 3707 : (2001) 8 SCC 604.
75 Southern Printers v. Fertilizer & Chemicals Travancore Ltd., AIR 1994 SC 1277 : 1994 SCC 699(Supp-2) (supra).
76 AIR 2001 SC 3707 : (2001) 8 SCC 604.
77 Dev Dutt v. UOI, AIR 2008 SC 2513 : (2008) 8 SCC 725.
78 Sahara India (Firm) v. CIT, (2008) 14 SCC 151 : (2008) 6 SCALE 733; see also Mohinder Singh Gill v. Chief
Election Commissioner, AIR 1978 SC 851 : (1978) 1 SCC 405.
79 Shivang Transport Company v. Bharat Coking Coal Limited, AIR 2007 Jhar 9. See "De-listing or Black-listing," in
Judicial Review of Public Action by Justice Fazil Karim, 1st Edn. 2006, Vol. 1, p. 732.
80 Liberty Oil Mills v. Union of India, AIR 1984 SC 1271 (paras. 15, 21) : (1984) 3 SCC 465; Maneka Gandhi v. Union
of India, AIR 1978 SC 597 : (1978) 1 SCC 248; State of Maharashtra v. Kamal, (1985) 1 SCC 234 (para 20) CB : AIR
1983 SC 906; State of Punjab v. Gurdial, AIR 1980 SC 319 : (1980) 2 SCC 471.
81 Nathubhai v. Municipal Corpn., AIR 1959 Bom 332.
82 Joseph v. RBI, AIR 1962 SC 1371 : 1962 SCR 632(Supp-3) .
83 Babulal Parate v. State of Maharashtra, AIR 1961 SC 884 : (1961) 3 SCR 423.
84 Cooverjee v. Excise Commissioner, AIR 1954 SC 220 : 1954 SCR 873.
85 Hydrabad Vanaspati Ltd. v. AP State Electricity Board, (1998) 4 SCC 470 : AIR 1998 SC 1715.
86 Wiseman v. Borneman, 1971 AC 297; Duryappah v. Fernando, (1967) 2 All ER 152(HL) .
87 Mohinder Singh Gill v. Chief Election Commissioner, AIR 1978 SC 851 : (1978) 1 SCC 405; Maneka Gandhi v. UOI,
AIR 1978 SC 597 : (1978) 1 SCC 248.
88 State of Punjab v. Gurdial Singh, AIR 1980 SC 319 : (1980) 2 SCC 471.
89 UOI v. W.N. Chadha, AIR 1993 SC 1082 : 1993 SCC 260(Supp-4) .
90 Swadeshi Cotton Mills v. UOI, AIR 1981 SC 818 : (1981) 1 SCC 664.
In Olga Tellis v. Bombay Municipal Corpn., 91 the statute empowered the Commissioner to remove the
constructions without notice, the Supreme Court read "audi alteram partem" rule in it observing that
reading the provision "as containing command not to issue notice "before" the removal of an
encroachment" will make the law invalid.
28
It may be noted that in some cases, it was held post-decisional hearing does not subserve the rules of
natural justice. Once a decision has been taken, there is a tendency to uphold it and a representation
may not yield any fruitful purpose. The authority who embarks upon a post-decisional hearing will
naturally proceed with a closed mind and there is hardly any chance of getting proper consideration of
the representation on such a post-decisional opportunity. 92 In cases where an order causes serious
injury as soon as it is made, an injury not capable of being entirely erased when the error is corrected
on subsequent appeal. Where a member of a highly respected profession is found guilty of
professional misconduct and suffers penalty, the damage to his professional reputation is immediate
and far reaching. In such a case, after the blow suffered by the initial decision, it is difficult to
contemplate complete restitution through an appellate decision. In such cases there is manifest need
to ensure that there, is no breach of fundamental procedure in the original proceeding and to avoid
treating an appeal as an overall substitute for the original proceeding. 93
Justice P.N. BHAGAVATI in his foreword to Administrative Law by I.P. MASSEY (6th Edition) has
stated thus:- "The Supreme Court has held that if in a given case prior hearing would frustrate the
object and purpose of the exercise of the power, it can be dispensed with, but in that event it must be
substituted by post-decisional hearing. This is a striking advance made by the Supreme Court on the
English Law because there the law is that the requirement of prior hearing may be dispensed with if it
would frustrate the object and purpose of the exercise of the power and in such cases, there need be
no hearing at all, but in India, the Supreme Court has introduced the necessity of post-decisional
hearing in such cases. Sometimes an attempt is made by lawyers appearing on behalf of the
government to contend that even where prior hearing is not given, the exercise of the power does not
become bad and it can be cured by post-decisional hearing. But this is a gross misunderstanding of
the decision of the Supreme Court in Mohinder Singh's case,94 and Maneka Gandhi's case,95 because
it is clear law that if prior hearing is required to be given as part of the rule of natural justice, failure to
give it would indubitably invalidate the exercise of the power and it cannot be saved by post-decisional
hearing. It is only where the necessity of prior hearing cannot be read into the statute because to do
so would be to defeat the object and purpose of the exercise of the power, that post-decisional hearing
is required to be given and if that is not done, the exercise of the power would be vitiated".
In Administrative Law by P.P. CRAIG (1999) the learned author has stated thus:- "How far can a defect
of natural justice be cured by an appeal within the administrative hierarchy or by a re-hearing by the
original body? The authorities have been reviewed by the Privy Council in Calvin v. Carr .96 It was
argued that a breach of natural justice at the original hearing conducted by racing stewards, could not
be cured by an appeal to a Committee of the Australian Jockey Club since there would be nothing to
appeal against, the decision being a nullity.
LORD WILBER FORCE reviewed the authorities and adopted a tripartite distinction. First, where the
re-hearing was by the same body or some other complete form of it, the general rule was defects of
the original hearing could be cured. Secondly, there were cases, where after considering the whole
hearing structure in its particular context, a fair hearing might be required at the original stage and on
appeal. This second proposition was not, however, an absolute one. His Lordship posited a third
situation where, looking again at the whole context, it could be seen whether the end result was fair
despite some initial defects. This would depend inter alia, on the type of appeal process, for example,
if the appeal body was only entitled to a transcript from the original decision, then the later hearing
would probably be inadequate."97
If natural justice is violated at the first stage, the right of appeal is not so much a true right of appeal as
a corrected initial hearing; instead of a fair trial followed by an appeal, the procedure is reduced to
unfair trial followed by a fair trial.1
In Judicial Review of Administrative Action,2 by the RT. HON. LORD WOOLF, JEFFREY JOWELL QC,
ANDREW LE SUCTER,it is said: "There are situations where the absence of procedural fairness
before a decision is made can subsequently be "adequately cured", for example, on appeal. A prior
hearing may be better than a subsequent hearing, but a subsequent hearing is better than no hearing
at all, and in some cases, the courts have held that statutory provisions for an administrative appeal,
or even full judicial review on the merits are sufficient to negative the existence of any implied duty to
have a hearing before original decision is made. This approach may be acceptable where the original
29
decision does not cause significant detriment to the person affected or where there is also a
paramount need for prompt act ion or where it is otherwise impracticable to afford antecedent
hearings."
The question whether a decision vitiated by a breach of the rules of fairness can be made good by a
subsequent hearing does not admit of a single answer applicable to all situations in which the issue
may arise. Whilst it is difficult to reconcile all the relevant cases, case-law indicates that courts are
increasingly favouring an approach based in large part upon an assessment made of whether, in all
the circumstances of the hearing and appeal, the procedure as a whole satisfied the requirements of
fairness. Of particular importance are - (1) the gravity of the error committed at first instance; (2) the
likelihood that the prejudicial effects of the error may also have permeated the rehearing; (3) the
seriousness of the consequences for the individual; (4) the width of the powers of the appellate body;
and (5) whether the appellate decision is reached only on the basis of the material before the original
tribunal or by way of fresh hearing or rehearing de novo.
In general, it is increasingly the case that the courts will not intervene on grounds of procedural
unfairness where the procedurally unfair decision is subject to correction by a procedure which has
proper procedural safeguards. In Calvin v. Carr, 3 the Privy Council doubted that there was a general
rule that a failure of fairness at the initial hearing is not to be cured by a procedurally correct appeal; in
particular it was suggested, a more latitudinarian attitude should be taken towards the proceedings of
domestic tribunal, whose authority is derived from the consensual rules of a voluntary association.
Thus, in that case, an appeal to the Committee of the Australian Jockey Club was held, for this reason
to cure a defective decision of race stewards who had disqualified the owner of a horse alleged to
have been raced improperly. In Lloyd v. McMohan, 4 the House of Lords confirmed this trend outside
the context of domestic tribunals. It was held that the decision of a district auditor to surcharge
councillors for failure to set a valid rate, without affording them oral hearing would, had it been
procedurally defective, have been cured by the statutory appeal from the auditor's decision to the High
Court. It should be noted, however with reference to the criteria set out above that the scope of the
appeal was very wide, all the evidence being susceptible of re-examination including merits of the
decision.
There are, however, limits to the extent in which procedural unfairness can be "cured". There may be
a situation in which, although the provision of a right of appeal is not required, a court will be satisfied
that nothing short of compliance with the requirement of procedural fairness at both stages will afford
to the individual the standards of fairness demanded in the particular context. For example, trial on
indictment is not an adequate alternative to judicial review for committal on inadmissible evidence
given the importance of providing a right to cross-examine at a preliminary stage. Similarly,
inadequate consultation is not corrected by appeal where a budgetary decision was easier to overturn
before it was firmly made; while procedurally defective decision will not be cured by the decision-
maker communicating with the aggrieved party after the decision in defence to the decision. 5
91 AIR 1986 SC 180 : (1985) 3 SCC 545.
92 H.L. Trehan v. Union of India, (1989) 1 SCC 764 : AIR 1989 SC 568. See also K.I. Shepard v. UOI, AIR 1988 SC
686 : (1987) 4 SCC 431.
93 Institute of Chartered Accountants of India v. L.K. Ratna, AIR 1987 SC 71 : (1986) 4 SCC 537.
94 Mohinder Singh's case, (1978) 1 SCC 405.
95 Maneka Gandhi's case, (1978) 1 SCC 248.
96 Calvin v. Carr, 1980 AC 574.
97 CHAPTER 13, NATURAL JUSTICE HEARINGS. pages 437-438.
1 H.W.R. Wade & C.F. Forsyth, Administrative law, 9th Edn., Part VI, Natural Justice, Chapter XIV, Fair Hearings
General Aspects at p. 527.
2 Rt. Hon. Lord Woolf, Jeffrey Jowell QC, Andrew Le Sucter, Judicial Review of Administrative Action, 6th Edn., 2007.
30
3 (1980) AC 574.
4 (1987) AC 625 (HL).
5 Rt. Hon. Lord Woolf, Jeffrey Jowell QC, Andrew Le Sucter, Judicial Review of Administrative Action, 6th Edn., 2007 at
pp. 456, 457 and 459.
In Constitutional & Administrative Law,6 it is said: "Three matters may be mentioned briefly: (1) if
fairness or natural justice would otherwise entitle someone to be heard, a court should be slow to
brush aside that right on the ground that a hearing would make no difference to the outcome. 7 The
second matter is whether the failure by an authority to give a hearing to which the individual is entitled
is cured by a full and fair hearing given later by an appellate body. No absolute rule applies.
Sometimes the appeal proceeding may take the form of a full re-hearing and this may cure the earlier
defect, but in other situations the individual may be entitled to a fair hearing at both stages. In
intermediate cases, the court must decide "whether at the end of the day there has been a fair result
reached by fair methods8 ...".
In Judicial Review of Public Action9 by JUSTICE FAZAL KARIM (Retd. Judge of Pakistan Supreme
Court, it is said:
"The view that if the right of hearing is a statutory right and the provision giving it is mandatory, then failure to
give a hearing by the tribunal of first instance renders it "void ab initio" and incurable so that even full hearing
by the appellate authority will not cure it seems also to be unexceptionable. A right of appeal, unless it is
restricted in some respect, is a right of re-hearing where the whole matter is re-heard. It is sometimes said that
failure to provide hearing by the first tribunal renders its decision void, so that it is legally non-existent even for
the purpose of appeal. But it is well established that where an appeal is provided, the impugned decision which
suffers from failure to provide a hearing is not totally void in the sense of being non-existent and that an appeal
lies even against an order which is wholly void. An appeal being a continuation of the original proceedings, it
appears to us that if the original tribunal failed to give a hearing, but the appellate authority gives full hearing,
judicial review will not lie on the ground that original authority's order stood vitiated for lack of hearing". 10
In 1972, the House of Lords made a distinction between an administrative and a judicial decision in
this behalf. While a judicial decision, must, in the absence of any statutory provision or exception be
based on prior hearing,11 the case of an administrative order which does "not make" any final decision
nor takes away any right, but simply makes a preliminary order to set the law in motion (e.g., to make
an exparte order to re-open the re-assessment in a taxing statute) the requirements of natural justice
or fairness would be satisfied if the statute provides for a fullfledged appeal against the final decision
where the aggrieved party may raise all pleas including the preliminary order. 12 In that case, the court
said: "Fairness does not necessarily require a plurality of hearing or representation and counter-
representation."
In the USA also, the traditional view of "due process" was a hearing given "prior" to the making of
decision affecting the individual.13 Later cases, however, laid down that there are certain situations and
functions where a post-decisional hearing would satisfy procedural due process i.e., where the
Government seeks to withdraw a privilege or benefit of that nature. 14 In short, though "due process"
guarantees a hearing, it does not give any fixed mandate as to the "time" when that hearing should be
given.15Hence a post-decisional hearing would satisfy "due process" where summary or immediate act
ion is necessary to prevent danger to the public.16
In certain circumstances, due process would be satisfied if a hearing is offered after a temporary
deprivation or suspension of the individual's right takes place, but before the final decision or order is
made e.g., (1) The termination of disability (i.e., social welfare) benefits;17(2) Destruction of food
deemed by health officials to be injurious to health.18
Our Supreme Court has held that defect at initial stage if renders proceedings null and void cannot be
cured at appellate stage even if fairness of appellate authority is beyond dispute. 19
In a case, it was held that though in all cases post-decisional hearing cannot be a substitute for pre-
decisional hearing, when in case the individual did not raise any ground relating to violation of
principle of nature justice before the lower forum, and no prejudice also is not shown for such
31
violation, a post-decisional hearing can obliterate the procedural deficiency of a pre-decisional

hearing.20
In Swadeshi Cotton Mills v. UOI, 21 the following observation of JUSTICE SARKARIA regarding pre-
decisional and post-decisional hearing must always be remembered by every adjudicating authority.
"In short, the general principle as distinguished from an absolute rule of uniform application seems to be that
where a statute does not in terms, exclude this rule of prior hearing, but contemplates a post-decisional
hearing, amounting to a full review of the original order on merits, then such a statute would be construed as
excluding the audi alteram partem rule at the pre-decisional stage. Conversely, if the statute conferring the
power is silent with regard to giving of a pre-decisional hearing to the person affected and the administrative
decision taken by the authority involves civil consequences of a grave nature and no full review or appeal on
merits against it is provided, courts will be extremely reluctant to construe the statute as excluding the duty of
affording even minimal hearing short of all formal trappings and dilatory features at the pre-decisional stage,
unless viewed pragmatically, it would paralyse the administrative progress or frustrate the need for utmost
promptitude. In short, this rule of fairplay must not be jettisoned save in very exceptional circumstances where
compulsive necessity so demands. The court must make every effort to salvage this cardinal rule to the
maximum extent possible with situational modification."
6 See A.W. Bradley and K.D. Ewing, Constitutional & Administrative Law, 13th Edn., p. 720.
7 John v. Rees, 1970 Ch. 345; R v. Chief Constable, Thames Valley exparte Cotton, (1990) 1 RLR 344.
8 Calvin v. Carr, 1980 AC 574 (supra).
9 2006 Edn., Vol. II, p. 1336,
10 Calvin v. Carr, (1979) 2 All ER 440(PC) (supra).
11 Wiseman v. Bornemann, (1969) 3 All ER 275.
12 Pearlburg v. Varty, (1972) 2 All ER 6.
13 Goldberg v. Kelly, (1970) 397 US 254.
14 Mathews v. Eldridge, (1976) 424 US 319.
15 Mathews v. Eldridge, (supra).
16 Fahey v. Mallonee, (1947) 322 US 345; Ewing v. Mytinger, (1950) 339 US 594; FDIC v. Mallen, (1988) 486 US 230.
17 Mathews v. Eldridge, (supra).
18 N.A. Cold Storage v. Chicago, (1908) 211 US 306.
19 Mohd. Yunus v. State of UP, (2010) 10 SCC 539 : (2010) 10 SCALE 286; see also Arjun Choubey v. UOI, (1984) 2
SCC 578 : AIR 1984 SC 1356.
20 Canara Bank v. V.K. Awasthy, (2005) 6 SCC 321 : AIR 2005 SC 2090LLJ : 2005 II LLJ 461(SC) ; Canara Bank v.
Debasis Das, (2003) 5 SCC 557 : AIR 2003 SC 2041 : 2003 II LLJ 531.
21 AIR 1981 SC 818 : (1981) 1 SCC 664.
In the particular background of terrorism, it may be necessary for the Government to declare an
organisation as a terrorist organisation even without hearing that organisation. At the same time when
the statute governing the same enables the organisation to review the decision and subsequently to
move the Review Committee for re-consideration, the absence for a pre-decisional hearing cannot be
a ground to vitiate the order, especially when the statute is enacted to protect the sovereignty and
integrity of the nation from the menace of terrorism. 22
It will be impossible and impracticable to give a formal hearing to those who may be affected
whenever a policy decision is taken and at times it will be against public interest. Not giving the
32
workmen an opportunity of being heard before the policy of disinvestment is declared, is not a ground
to quash the order.23
Prior consultation with person who are likely to be affected is not obligation when the scheme
prepared by the Government is legislative in nature even though retrospective in nature especially
when the right of workers to form an association is their right to collective bargaining is not taken
away.24
In cases where the enquiry officer finds the employee not guilty of the charges framed, but the
disciplinary authority takes a different view, a post-decisional hearing is not sufficient. In such cases,
the disciplinary authority has to provide reasonable opportunity before entering the finding of guilt,
though based on the same evidence.25 It was held that the said right of hearing cannot be taken away
by any legislative enactment or service rule including rules made under Art. 309 of the Constitution.
The principles of natural justice require the authority, which has to take a final decision and can
impose a penalty, to give an opportunity to the officer charged of misconduct to file a representation
"before the disciplinary authority" records its findings on the charges framed against the officer. 26
It was held that "to do a great right" after all, it is permissible sometimes "to do a little wrong," while
holding that the settlement by Government on behalf of victims of the Bhopal Gas Leak Disaster
without notice to the affected persons is not quite proper, cannot be set aside when review petition is
pending before Court where full opportunity for hearing is available. The Court took the said view in
view of the magnitude of the misery involved and the problems in the case. 27 Also see Swadeshi
Cotton Mills v. Union of India, 28where court upheld the action of the Government in taking over
management of the Company without hearing before act ion is taken, and the opportunity for post-
decisional hearing was held sufficient.
In K.I. Shephard v. Union of India, 29 it was held that post-decisional hearing will not be a substitute for
pre-decisional hearing. It was a case where some banks were amalgamated, consequent of which
some of the employees were thrown out of employment. It was observed that it is a common
experience that once a decision is taken, there is a tendency to uphold it and a representation may not
yield any fruitful result. It was observed that even in emergent situation, a pre-decisional hearing is
necessary especially in cases where the action results in loss of livelihood. The court observed that
post-decisional hearing may be resorted to "only" when a pre-decisional hearing may not be feasible
and the "only" choice is between no hearing and a post-decisional hearing.
A post-decisional hearing is not proper where the authority has already made up his mind. Such a
post-decisional hearing i.e., when the authority has made up his mind is not contemplated in law. The
result of such a hearing is a foregone conclusion.30 In that case, court also observed that a pre-
decisional hearing is warranted if upon hearing the affected employee, it is possible to arrive at a
different conclusion, especially when the decision involves civil consequences. But a post-decisional
hearing and judicial review ensure sufficient compliance of natural justice. 31
Where a statute does not in terms exclude the rule of prior hearing, but contemplates a post-
decisional hearing amounting to a full review of the original order on merits, then such a statute would
be construed as excluding the audi alteram partem rule at the pre-decisional stage. If the statute
conferring the power is silent with regard to the giving of a pre-decisional hearing to the person
affected, the administrative decision after post-decisional hearing is good. 32
1. No question of personal hearing arises where there is no charge against any
person individually, e.g., where a law provides for cancelling the examination at a centre
in toto on the ground of mass copying. In such a case, the Court cannot insist on a
detailed quasi-judicial inquiry, and would not interfere if there are sufficient materials
upon which the University could act.33 There is no necessity of a personal hearing when
the party has not suffered any civil consequences.34
Oral hearing is not regarded as a sine qua non of natural justice. A person is not entitled to an oral
hearing unless such a right is conferred by statute. 35
33
22 Peoples Union For Civil Liberties v. Union of India, (2004) 9 SCC 580 : AIR 2004 SC 456. See also Mohinder Singh
Gill v. Chief Election Commissioner, AIR 1978 SC 851 : (1978) 1 SCC 405; Olga Tellis v. Bombay Municipal Corpn.,
AIR 1986 SC 180 : (1985) 3 SCC 545; UOI v. Tulsiram Patel, AIR 1985 SC 1415 : (1985) 3 SCC 398.
23 BALCO Employees Union (Regd.) v. Union of India, (2002) 2 SCC 333 : AIR 2002 SC 350LLJ : 2002 I LLJ 550.
24 Kishan Prakash Sharma v. Union of India, (2001) 5 SCC 212 : AIR 2001 SC 1493.
25 Yoginath D. Bagde v. State of Maharashtra, (1999) 7 SCC 739 : AIR 1999 SC 3734.
26 See Punjab National Bank v. Kunj Behari Misra, AIR 1998 SC 2713 : (1998) 7 SCC 84; see also SBI v. Arvind K.
Shukla, AIR 2001 SC 2398 : (2004) 13 SCC 797; SBI v. K.P. Narayankutty, (2003) 2 SCC 449 : AIR 2003 SC 1100.
27 Charan Lal Sahu v. Union of India, (1990) 1 SCC 613 : AIR 1990 SC 1480.
28 Swadeshi Cotton Mills v. Union of India, (1981) 1 SCC 664 : AIR 1981 SC 818.
29 K.I. Shephard v. Union of India, (1987) 4 SCC 431. See also H.L. Trehan v. UOI, AIR 1989 SC 568 : (1989) 1 SCC
764; Ashwini Kumar v. State of Bihar, AIR 1996 SC 2833 : (1996) 7 SCC 577.
30 Shekhar Ghosh v. UOI, (2007) 1 SCC 331 : (2006) 11 SCALE 363.
31 Haryana Warehousing Corpn. v. Ram Avtar, AIR 1996 SC 1081 : (1996) 2 SCC 98.
32 Charan Lal Sahu v. Union of India, (1990) 1 SCC 613 : AIR 1990 SC 1480 : 1989 SCR 597(Supp-2) ; Swadeshi
Cotton Mills v. Union of India, (1981) 1 SCC 664 : (1981) 2 SCR 533.
33 Bihar S.E.B. v. Subhas, AIR 1970 SC 1269 : (1970) 1 SCC 648.
34 Nirma Industries Ltd. v. SEBI, (2013) 8 SCC 20 : AIR 2013 SC 2360.
35 A.K. Gopalan v. State of Madras, AIR 1950 SC 27 : 1950 SCR 88; F.N. Roy v. Collector of Customs, AIR 1957 SC
648 : 1957 SCR 1151; State of Assam v. Gauhati Municipal Board, AIR 1967 SC 1398 : (1967) 2 SCR 732; Farid
Ahmed v. Ahmedabad Municipal Council, AIR 1976 SC 2095 : (1976) 3 SCC 719.
In M.P. Industries v. UOI, 36 it was observed: "It is no doubt a principle of natural justice that a quasi-
judicial tribunal cannot make a decision adverse to a party without giving an effective opportunity of
meeting any relevant allegation against him; but the said opportunity need not necessarily be by
personal hearing. It can be by written representation. Whether the said opportunity should be by
written representation or by personal hearing depends upon the facts of each case and ordinarily it is
in the discretion of the tribunal."37Thus, it is well settled that the principles of natural justice do not
require personal hearing and if all the relevant circumstances have been taken into account before
taking the impugned act ion, the said action cannot be set aside "only" on the ground that personal
hearing was not given.38
DE SMITH in Judicial Review of Administrative Action39 says that in the absence of any clear statutory
guidance on the matter one who is entitled to the protection of the audi alteram partem rule is prima
facie entitled to put his case "orally". But, when oral evidence is taken from witnesses, a personal
hearing is a must.40 In the case of disciplinary proceedings, where there is a possibility of service being
terminated, oral hearing is necessary.41 Whether oral hearing is necessary or not, depended on the
nature of inquiry and where the person's reputation is likely to be affected, oral hearing is necessary. 42
A fair hearing does not necessarily mean that there must be an opportunity to be heard orally: "One is
entitled to an oral hearing where fairness requires that there should be such a hearing, but fairness
does not require that there should be oral hearing in every case". 43
Requiring the selected candidates to take the written examination afresh on account of large scale
copying of after an enquiry conducted by the authorities, is not subject to the rules of natural justice.
The selected candidates need not be heard before he is asked to write the examination. 44But when act
ion in case of examinees using unfair means is taken by administrative body in respect of examination
conducted by the Board under the relevant Act, the Committee act s as quasi-judicial authority and
principles of natural justices must be applied.45
34
1I. The right to be heard would not, however, require in all cases, an oral
hearing or representation by a lawyer.47 In the generality of cases, natural justice would
46
be complied with by offering an opportunity to submit a written representation.... 48

Though oral hearing is not an integral part of fair hearing, where complex legal and technical
questions are involved or where stakes are very high, oral hearing becomes a part of fair hearing. 49 In
Union of India v. J.P. Mitter, 50 the court refused to quash the order of the President in a dispute relating
to the age of a High Court Judge on the ground that the President did not grant oral hearing even on
request. The court held when opportunity is given to file written submission, there is no violation of
principles of natural justice if oral hearing is not given. 51
In situation where the person is illiterate or the matter is complicated and technical or expert evidence
is on record or if a question of law is involved or where the person is facing a trained prosecutor, same
professional assistance must be given to the party to make his right to defend himself meaningful. 52
But in cases when a person is being interrogated during investigation under the Customs Act or
FERA (now repealed), he is not entitled to a lawyer's assistance. 53 It was held that the law does not
concede an absolute right of representation to an employee in domestic enquiries as part of his right
to be heard and there is no right of representation by somebody else unless the relevant rules or
regulations and Standing Orders "specifically" recognise such a right or provide for such a
representation.
Irrespective of the desirability or otherwise of giving an employee facing charges of misconduct in a
disciplinary proceeding to ensure that his defence does not get debilitated due to inexperience or
personal embarrassments, it cannot be claimed as of right and that too as constituting an element of
princiRles of natural justice to assert that a denial thereof would vitiate the enquiry itself. 54 Even an
employee who is facing an enquiry is not entitled to have the assistance of legal practitioner, though
the management is represented by person having legal training. 55
Right of representation by a lawyer is not considered to be part of natural justice and it cannot be
claimed as of right.56 In Pett v. Greyhound Racing Assn. (II), 57 it was observed: "I find it difficult to say
legal representation before a tribunal is an elementary feature of fair dispensation of justice. It seems
to me it arises only in a society which has reached some degree of sophistication of its affairs". In that
case, on an earlier occasion in Pett(I) v. Greyhound Racing Assn., 58 LORD DENNING said: "When a
man's reputation or livelihood is at stake, he not only has a right to speak by his own mouth, he has
also a right to speak by counsel or solicitor. Even a prisoner can have a friend".
DE SMITH'S Judicial Review59 says:
"There is some authority for the proposition that a person who is entitled to appear before an adjudicatory body
is also usually entitled, in the absence of an express or implied provision to the contrary, to be represented by
a lawyer or by any other appropriate spokesman of his choice. However, this puts the case too high, and it is
more accurate to say that the decision-maker possesses a discretion whether to allow legal representation and
everything depends on the circumstances of the particular case. The court may then scrutinise the exercise of
that discretion according to the ordinary principle of review".
36 AIR 1966 SC 671 : (1966) 1 SCR 466.
37 See also UOI v. Jyoti Prakash Mitter, AIR 1971 SC 1093 : (1971) 1 SCC 393.
38 State of Maharashtra v. Lok Shikshan Sansthan, AIR 1973 SC 588; UOI v. Prabhavalkar, AIR 1973 SC 2102 :
(1973) 4 SCC 183; State of Assam v. Gauhati Municipal Council, AIR 1967 SC 1398 : (1967) 2 SCR 732 (supra);
Mohd. Ilyas v. UOI, (1970) 3 SCC 61; Harish Uppal v. UOI, AIR 1973 SC 258 : (1973) 3 SCC 319; UOI v. Amrik Singh,
AIR 1991 SC 564 : (1991) 1 SCC 654.
39 See De Smith, Judicial Review of Administrative Action, 1995 Edn., p. 437,
40 Travancore Rayons v. UOI, AIR 1971 SC 862 : (1969) 3 SCC 868.
41 Ram Chander v. UOI, AIR 1986 SC 1173 : (1986) 3 SCC 103.

35
42 Errington v. Minister of Health, (1935) 1 KB 249; R v. Burmingham City Justice, (1970) 3 All ER 945.
43 De Smith's Judicial Review, 6th Edn., Chapter VII, para 62, p. 396.
44 Union of India v Anand Kumar Pandey, (1994) 5 SCC (663) : AIR 1995 SC 388 : 1995 II LLJ 25. Hanuman Prasad v.
Union of India, (1996) 10 SCC 742.
45 Board of High School v. Ghanashyam Das Gupta, AIR 1962 SC 1110 : 1962 SCR 36(Supp-3) .
46 M.P. Industries v. Union of India, AIR 1966 SC 671 : (1966) 2 SCR 466; Union of India v. J .P. Mitter,AIR 1971 SC
1093 : (1971) 1 SCC 396.
47 Bd. of Trustees v. Dilip Kumar, AIR 1983 SC 109 : (1983) 1 SCC 124.
48 M.P. Industries v. Union of India, AIR 1966 SC 671 : (1966) 2 SCR 466; Union of India v. J .P. Mitter,AIR 1971 SC
1093 : (1971) 1 SCC 396.
49 State of U.P. v. Maharaja Dharmendra Presad Singh, (1989) 2 SCC 505.
50 Union of India v. J.P. Mitter, AIR 1971 SC 1093: (1971) 1 SC 396 : 1971 (I) LLJ 256.
51 See also Ganesh Santa Ram Sirur v. State Bank of India, (2005) 1 SCC 13; Articles by A.G. NOORANI in Jushi
Shivappai case in his book Constitution Questions and Citizens' Rights,Chapter titled "Citizen Rights, Judges and State
Accountability" at p. 104.
52 Krishna Chandra v. Union of India, (1974) 4 SCC 374; C.L. Subramaniam v. Collector of Customs, AIR 1972 SC
2178 : (1972) 3 SCC 542 : 1972 (I) LLJ 465; J.K. Aggarwal v. Haryana Seeds Development Corpn. Ltd., (1991) 2 SCC
283 : AIR 1991 SC 1221 : 1991 (II) LLJ 412.
53 Poolpandi v. Supt., Central Excise, (1992) 3 SCC 259 : AIR 1992 SC 1795.
54 Indian Overseas Bank v. Indian Overseas Bank Officers' Association, (2001) 9 SCC 540 : AIR 2001 SC 4007 : 2001
SCR 554(Supp-3) : 2001 (II) LLJ 1417.
55 Biecco Lawrie Ltd. v. State of WB, (2009) 10 SCC 32.
56 Kalindi v. Tata Locomotives, AIR 1960 SC 914 : (1960) 3 SCR 407; Mohinder Singh Gill v. CEC, AIR 1978 SC 851 :
(1978) 1 SCC 405.
57 (1969) 2 All ER 221 : (1969) 2 WLR 1228.
58 (1968) 2 All ER 221.
59 See De Smith, Judicial Review, 6th Edn., Chapter VII, para 75 at p. 404.
In para 78 (at p. 406), the learned author dE SMITH further says: "No matter what the status or
function of the decision-maker, it would be contrary to the requirement of procedural fairness to allow
one side to be legally represented but to refuse the same right to the other. In R v. Secretary of State
exparte Tarrant, 60 the learned Judge laid down the following criteria that may be considered by the
Prison Board while exercising a discretion whether to allow legal representations or not. (1) The
seriousness of the charge and the potential penalty (2) Whether any point of law is likely to arise; (3)
The capacity of a particular prisoner to present his own case; (4) Procedural difficulties; (5) The need
for reasonable speed in making their adjudication; and (6) The need for fairness as between prisoners
and prison officers". He further said that the above guidelines are not exhaustive.
"The position as to whether an individual can choose a representative, including, a lawyer is as
follows:--First, there appears to be no absolute right to such representation. Legal representation may
be counter productive, unnecessary or overly cumbersome in cases where a matter must be speedily
resolved, and hence the Courts have resisted claims that there should be 'right' to such
representation. Secondly, the courts have, however, emphasised that tribunals possess a "discretion"
as to whether to allow such representation and are willing to review the manner in which the discretion
is exercised. A tribunal is master of its own procedure and this provides the foundation from which it
can permit such representation. Consideration of the statutory scheme within a particular area may
convince the court that representation by a lawyer should, on construction be excluded. However, the
36
courts are in general reluctant to exclude the possibility of such legal representation "in toto" within a
particular area. In exercising this discretion whether to permit such representation, tribunals should
take the following factors into account: the seriousness of the charge or penalty; whether any points of
law are likely to arise; the capacity of a person to present their own case; procedural difficulties; the
need for speed in reaching a decision; and the need for fairness as between individual and the officer
concerned. Thirdly, there does not appear to be any general right to attend a hearing as the friend or
adviser of the individual directly concerned; whether such a right exists depends on the nature of the
tribunals in question. Any such tribunal does, however, possess the discretion to allow the individual to
be assisted by such an advisor."61
"In considering whether procedural fairness implies a right to legal representation (if a party is able to
obtain it), it should be borne in mind that only reasonable standards of fair adjudication, and not ideal
standards, are required."62
A right or representation by a lawyer or other person may prove to be a part of natural justice "in
suitable cases", but this is not as yet clearly established". It probably exists in the case of a formal
tribunal, or investigation or if there is no provision to the contrary, but regulations excluding it have
been upheld. In cases concerning non-statutory domestic tribunals, the Court of Appeal has favoured
the right of legal representation when a serious change was made, but has held that it may be
excluded by an associated rules. It may also be excluded, as both the Court of Appeal and House of
Lords have held, in disciplinary proceedings which demand a rapid hearing and decision, as in the
case of offences committed by prisoners, though on some occasions it has been held that principles of
fairness must be observed. There is also a right to legal assistance and representation under
European Convention of Human Rights. A party conducting his case in person will normally be allowed
the assistance of a friend to give advice and take notes." 63
Representation by a lawyer though not regarded as an element of natural justice, there are cases
where such denial may amount to denial of natural justice e.g., when one side is represented by a
legally trained official it will be denial of natural justice to refuse representation by a lawyer to the other
side.64
In departmental proceedings and domestic inquiries, an employee or a workman is normally allowed
to represent his case through his friend, co-worker or representative of the Union. According to
Supreme Court, it is desirable that in domestic inquiries, employees should be given liberty to
represent their case by persons of their choice, if there is no Standing Order against such a course
being adopted and if there is nothing otherwise objectionable in the said request. 65 In A.K. Roy v. UOI,
66
it was contended that a detenu has a right to represent through a lawyer. Supreme Court negatived
the contention. It however held that a detenu had a right to be assisted by a friend. It may be that
denial of legal representative is not denial of natural justice per se and, therefore, if a statute excludes
that facility explicitly, it would not be open to the tribunal to allow it. But it is not fair and the statute
does not exclude the right that the detenu should not even be allowed to take the aid of a friend.
Whenever demanded, the Advisory Board must grant that facility. 67 Denial of legal representation to a
party may amount to denial of natural justice when complicated questions of law and facts arise, when
elaborate evidence is to be tendered and the party concerned may not be in a position to handle the
case by himself or where the other side is represented by a lawyer. 68 In one case, in a departmental
enquiry, the delinquent officer was assisted by a Government servant. But pending enquiry the friend
who was a Government servant resigned and became an advocate. Whether such a person can
represent the delinquent officer thereafter was decided by Supreme Court by holding that the request
was justified and denial of assistance would be denial of justice. 69 Refusal to sanction the service of a
lawyer in the inquiry was held "not a proper" exercise of discretion under the rule resulting in a failure
of natural justice, particularly in view of the fact that the Presiding Officer was a person with legal
attainments and experience. It was said that the delinquent officer was no less adept having been in
the position of a Senior Executive could have defended but did not defend himself competently, but as
was observed by the learned Master of Rolls in Pett's case (I)70 that in defending himself one may
become "nervous" or "tongue-tied" when the officer has no legal background. Court said that the
refusal of permission resulted in denial of natural justice. 71
37
1. Bias
The principle expressed in the maxim "nemo judex in sua causa" (no one should be a judge in his own
cause) refers not only to the fact that no one shall adjudicate his own case; it also refers to the fact
that no one should adjudicate a matter in which he has a conflicting interest. In order to give effect to
those two aspects of the principle, the concern is not only to prevent the distorting influence of "actual
bias", but also to protect the integrity of the decision-making process by ensuring that, however
disinterested the decision-maker is in fact the circumstances should not give rise to the "appearance
of bias". As has been famously said, Justice should not only be done, but should manifestly and
undoubtedly be seen to be done.
In defining the scope of the rule against bias and its content, atleast two requirements of public law
are in play. The first seeks accuracy in pubic decision making. If a person is influenced in a decision
by his private interests or personal predilections, he will not follow or may be tempted not to follow the
required standards and considerations which ought to guide his decision. An accurate decision is
more likely to be achieved by the decision-maker who is in fact impartial or disinterested in the
outcome of the decision and puts aside any personal prejudice. The second requirement is for public
confidence in the decision-making process. Even though the decision-maker may in fact be
scrupulously impartial, the appearance of bias can itself call into question the legitimacy of the courts
and other decision-making bodies.72
Our Supreme Court has analysed the doctrine of bias and its development. Court said: "Under the
English Law, the genesis of bias has been described on the perception that the court is free from bias,
that is objectively impartial stems from the overworked aphorism of LORD HEWART CJ in R v.
Sussex JJ ed McCarth, 73 wherein he said: "... It is not merely of some importance, but is of
fundamental importance that justice should not only be done, but should manifestly and undoubtedly
be seen to be done". However, later the courts felt that too heavy a reliance upon the
HEWARTaphorism in instances of alleged bias produce the danger that the appearance of bias or
injustice becomes more important than the absence of act ual bias, the doing of justice itself. It is,
therefore, of importance that perceived bias is not too readily inferred, such as to negate the doing of
justice".
60 (1985) QB 251.
61 P.P. Craig, Administrative Law 4th Edn., 1999, pp. 428-429.
62 de Smith, Woolf & Jowell, Judicial Review of Administrative Action, 5th Edn. 1995, Chapter 9,,para 33, p. 452.
63 HWR Wade & C.F. Forsyth, Administrative law, 9th Edn., p. 520.
64 Kalindi v. Tata Locomotive & Engineering Co., AIR 1960 SC 914 : (1960) 3 SCR 407; See also Nand Lal Bajaj v.
State of Punjab, AIR 1981 SC 2041 : (1981) 4 SCC 327; Board of Trustees, Port of Bombay v. Dilipkumar, AIR 1983
SC 109 : (1983) 1 SCC 124.
65 Dunlop Rubber Co. v. Workmen, AIR 1965 SC 1392 : (1965) 2 SCR 139.
66 AIR 1982 SC 710 : (1982) 1 SCC 271.
67 See also Biecco Lawrie Ltd. v. State of WB, (2009) 10 SCC 32 : AIR 2010 SC 142 (supra).
68 N.N. Bagchi v. Chief Secretary of West Bengal, AIR 1961 Cal 1; Zonal Manager, LIC v. City Munsif, Meerut, AIR
1968 All 270.
69 CIT v. Rabindra Nath Chatterjee, (1979) 3 SCC 575 : (1979) 27 BLJR 125.
70 (1968) 2 All ER 545 (supra).
71 J.K. Aggarwal v. Haryana Seeds Development Corpn., (1991) 2 SCC 283 : AIR 1991 SC 1221.
72 See de Smith, Judicial Review, 6th Edn., Chapter X, paras 6 and 7, pp. 500-501.
73 (1924) 1 KB 256.
38
In Porter v. Magill, 74 the House of Lords finally decided that the proper test for finding perceived or
apparent bias after judicial debate for over two decades, which displayed the welcome interplay of
judicial pronouncement within the jurisdiction of the English common law, Scotland and Strasbury
jurisprudence. The test now is, whether the fair-minded observer, having considered the facts, would
consider that there was a reasonable possibility that the tribunal was biased.
Bias must be shown to be present. Probability of bias, possibility of bias and reasonable suspicion that
bias might have affected the decision are terms of different connotation. They broadly fall under two
categories i.e., suspicion of bias and likelihood of bias. Likelihood of bias would be the possibility of
bias and bias which can be shown to be present while suspicion of bias would be probability or
reasonable suspicion of bias. The former leads to vitiation of action, while the latter could hardly be
the foundation for further examination of act ion with reference to the facts and circumstances of a
given case. The correct test would be to examine whether there appears to be a "real danger of bias
or whether there is only a possibility or even a preponderance of probability of such bias, in the
circumstances of a given case. If it falls in the prior category, the decision would attract judicial
chastisement, but if it falls in the latter, it would hardly affect the decision. 75
Absence of bias can be defined as the total absence of any preconceived notion in the mind of the
authority or judge and in the absence of a situation where bias is absent, it is impossible to expect a
fair deal or trial and no one would therefore see any point in holding or participating in one as it would
serve no purpose. The apprehension of bias must be reasonable, i.e., which a reasonable person
would likely to entertain. The doctrine of bias emerges from the legal maxim "nemo debet esse judex
in propria sua causa". There may not be a case of actual bias, or an apprehension, but where the
circumstances are such so as to create a reasonable apprehension in the minds of others that there is
a likelihood of bias affecting the decision, the same is sufficient to invoke the doctrine of bias. In the
event that act ual proof of prejudice is available, the same will naturally make the case of a party much
stronger, but availability of such proof is not a necessary precondition, for, what is relevant is actually
the reasonableness of the apprehension in this regard in the mind of such party. In case apprehension
of bias exists, the trial/judgment, etc. would stand vitiated for want of impartiality and such
trial/judgment becomes a nullity. The trial becomes "corum non judice". The question as regards
whether or not a real likelihood of bias exists must be determined on the basis of probabilities that are
inferred from the circumstances of the case by the court objectively or upon the basis of the
impression that may reasonably be left upon the minds of those aggrieved or the public at large. 76
1. Once it is held that a statutory procedure which is violative of the principles
of natural justice would be branded as an 'unreasonable' restriction upon the exercise of
the relevant fundamental right, it is conceivable that if the Legislature makes an authority
or officer a judge in his own cause to make an order affecting the fundamental right of an
individual, such statutory provision is liable to be struck down as an unreasonable
restriction upon the individual's fundamental right.
1. It is, however, difficult to succeed on such ground because of the

countervailing considerations which would operate in this sphere--
5i) The authority who is vested with the power to adjudicate on matters arising
out of a statute which he is authorised to administer, may have an 'official' interest in
such causes, but seldom any 'personal' interest.77
5ii) In exercising the power of adjudication conferred by such statute, he has to

conform to the conditions and requirements laid down by the statute, failing which his
decision would be liable to the quashed by a superior authority on appeal or revision as
prescribed by the statute,--which would be conducive to the reasonableness of the
statutory provision.78
2iii) Another exception to the doctrine of bias is 'necessity', that is, where there is
no alternative tribunal available, e.g., in the case of the highest tribunal.79 There are two
39
ways in which doctrine of necessity has been held to apply. (1) If the person who makes
a decision is biased, but cannot effectively be replaced e.g., if a quorum cannot be
formed without him; (2) where the administrative structures make it inevitable that there
is an appearance of bias.80 The maxim is "ubi jus ibi remedium" (i.e., where there is a
right, there is a remedy). It is from this principle, the doctrine of necessity arises. The
doctrine is applied to tide over where there are difficulties. Law does not contemplate a
vacuum, and a solution has to be found out rather than allowing the problem to boil
over.81The normal rule against bias will be displaced in circumstances where the
individual whose impartiality is called in question is the only person empowered to act .
In Dimes v. Grand Junction Canal Co. Properties, 82 it was held that the Lord
Chancellor's signature on an enrolment order which was necessary in order for the case
to proceed to the House of Lords was unaffected by his shareholding in the Company
because no other person was given the power to so sign. Similarly, in Phillips v. Eyre, 83it
was held that the Governor of a Colony could validly assent to an Act of Indemnity which
protected inter aliahis own act ions because the relevant Act had to receive his
signature.84
The rule of necessity in the context of bias is well settled in Common Law. As POLLOCK said:
"...although a Judge had better not, if it can be avoided, taken part in the decision of a case in which
he had personal interest, yet he not only, must do so, if the case cannot be heard otherwise". 85
In Evans v. Gore, 86 the Supreme Court of America said: "Because of the individual relation of the
members of this court to the question ...we cannot but regret that its solution falls to us... But
jurisdiction of the present case cannot be declined or renounced. The plaintiff was entitled by law to
invoke our decision on the question as respects his own occupation in which no other judge can have
any direct personal interest and there is no other appellate tribunal in which under the law he could
go". Under Art. III
74 (2002) 2 AC 357 : (2002) 2 WLR 37 : (2002) 1 All ER 465(HL) .
75 N.K. Bajpai v. UOI, (2012) 4 SCC 653 : AIR 2012 SC 1310.
76 State of Gujarat v. R.A. Mehta, AIR 2013 SC 693 : (2013) 3 SCC 1; see also S. Parthasarathy v. State of AP, AIR
1973 SC 2701 : (1974) 3 SCC 459; State of Punjab v. V.K. Khanna, AIR 2001 SC 343 : (2001) 2 SCC 330; N.K. Bajpai
v. UOI, (2012) 4 SCC 653 : AIR 2012 SC 1310; State of Punjab v. Davinder Pal Singh Bhullar, (2011) 14 SCC 770 : AIR
2012 SC 364.
77 Liberty Oil Mills v. Union of India, AIR 1984 SC 1271 (paras. 15, 21) : (1984) 3 SCC 465; Maneka Gandhi v. Union
of India, AIR 1978 SC 597 : (1978) 1 SCC 248; State of Maharashtra v. Kamal, (1985) 1 SCC 234 (para 20) CB; State
of Punjab v. Gurdial, AIR 1980 SC 319 : 1980 Supp SCC. See also Maganlal Chagganlal v. Municipal Corpn. of
Greater Bombay Corpn., AIR 1974 SC 2009 : (1974) 2 SCC 402; State of UPL v. Sheo Shankar Lal Srivastava, (2006)
3 SCC 276 : AIR 2006 SC 3548; M. Madhavan Pillai v. K.A. Balan, AIR 1979 Ker 120; Franklin V. Minister of Town and
Country Planning,1948 AC 87.
78 Ahmedabad Municipality v. Ramanlal, AIR 1975 SC 1187 (para 23) : (1975) 1 SCC 778.
79 Tulsiram v. Union of India, AIR 1985 SC 1416 (para 93) : (1985) 3 SCC 398Mahapatra v. State of Orissa, AIR 1984
SC 1572 (paras. 10-12) : (1984) 4 SCC 103.
80 See de Smith, Judicial Review, 6th Edn., Chapter X, para 59.
81 See Lalit Kumar Modi v. Board of Control for Cricket in India, (2011) 10 SCC 106 : (2011) 11 SCALE 31.
82 (1852) 3 HLC 759.
83 (1870) LR 6 QB 1.
84 See also Re Manchester (Ringway Airport) Compulsory Purchase Order,(1935) 153 LT 219; Jeffs v. New Zealand
Dairy Production and Marketing Board, (1967) 1 AC 551; Wilkinson v. Barking Corporation, (1948) 1 KB 721. See P.P.
Graig, Administrative Law, 1999 Edn., p. 458.
85 F. Pollock, First Book of Jurisprudence, 6th Edn., 1929.
86 253 US 245 : 64 LW 887.

40
s. 1 of the US Constitution, the compensation of federal judge "shall not be diminished during their
continuance in office. By the impugned legislation some of the judges complained that their salaries
had been diminished contrary to constitutional provisions. Every federal judge including judge of the
Supreme Court was interested financially. The doctrine of necessity was applied. 87
The law permits certain things to be done as a "matter of necessity" which it otherwise will not
countenance on the touchstone of judicial propriety. The doctrine of necessity makes it imperative for
the authority to decide and consideration of judicial propriety must yield. It is often invoked in cases of
bias where there is no other authority or Judge to decide the issue. If the doctrine of necessity is not
allowed full play in certain unavoidable circumstances or situation, it would impede the course of
justice itself and the defaulting party would benefit therefrom. In such cases, the doctrine of necessity
comes into play. If the choice is between allowing a biased person to act or to stifle the action
altogether, the choice must fall in favour of the former as it is the only way to promote decision-
making.88
When no substitution is possible since no one is empowered to act, natural justice has to give way to
necessity, for otherwise there is no means of deciding and the machinery of justice or administration
will breakdown.89 A person who is subject to disqualification at common law may be required to decide
the matter if there is no competent tribunal or if a quoram cannot be formed without him. Here the
doctrine of necessity is applied to prevent failure of justice. Necessity may also play a part in excusing
an appearance of bias when it wanted not be impossible for anybody else to make the decision, but
when the particular administrative structure makes it inevitable that some appearance of bias will
occur.90
In Charan Lal Sahu v. Union of India, 91 the validity of Bhopal Gas Leak Disaster (Processing of
Claims) Act 1985 was considered by the Supreme Court. The Act authorised the Central Government
to represent all the victims in matters of awarding compensation.
One of the grounds of challenge was that the Central Government owned 22% share in the Company
and as such it is a joint tortfeasor and thus there was a conflict of interest between interests of
Government and the victim. The said contention was rejected applying the doctrine of necessity. It
was held that if the Government did not represent the whole class of gas victims, no other sovereign
body could so represent and thus the principles of nature justice was not attracted. 92 It was held that
when there is no Statute or statutory rule compelling a particular designated officer to be a member of
a committee, but only an administrative order designating that particular authority who is disqualified in
a given case to be the member, the 'doctrine of necessity' cannot be invoked and the designated
member could 'rescue' himself and request another officer be substituted in his place. 93 Under Art. 163
of the Constitution, a Governor has to act on the advice of Council of Ministers to sanction prosecution
of Ministers. But when the advice of Ministers is vitiated by bias or mala fides, the Governor has to act
independently. The contention that Minister's advice is valid on the principle of 'doctrine of necessity'
was held not applicable.94
In a case where doctrine of necessity is applicable compliance with the principle of natural justice
would be excluded.95
In the case of disqualification of members of legislative assembly, Speaker is only authority to take a
decision. We can rely on his personal knowledge of members from having seen and heard the
members in his capacity as speaker on various occasions and sessions of the House. In such
circumstances, judge can be permitted to be within also applying the doctrine of necessity. The
proceedings before a speaker cannot compared to a department proceedings or proceeding in a court
of law.96
Distinction has been made between 'bias' which disqualifies a decision maker and vitiates his decision
and preconceptions on a point on the basis that an "open mind" is not an empty mind. In Judicial
Review of Public Action,1 learned Judge has referred to a remark by JUDGE FRANK who is stated to
have said thus:
41
"Democracy must indeed fail unless our courts try case fairly and there can be no fair trial before judge lacking
in impartiality and disinterestedness. If, however, 'bias' and 'partiality' be defined to mean the total absence of
preconceptions in the mind of the judge, then no one has ever had a fair trial and no one evil will. The human
mind, even at infancy of education, formal and informal, creates attitude which precede reasoning in particular
instances and which therefore by definition are prejudices. Without acquired "slants", preconception, life could
not go on. Every habit constitutes a prejudgment; were those pre-judgments which we call habits absent in any
person, were he obliged to treat every event as an unprecedented crisis presenting a wholly new problems, he
would go mad. Interests, points of view, preferences are the essence of living. Only death yields complete
dispassionateness, for, such dispassionateness signifies utter indifference. To live is to have a vocation, and to
have a scheme of values is to have a point of view and to have a point of view is to have a prejudice or bias.
An "open mind" in the sense of a mind containing no preconception whatever would be a mind incapable of
learning anything, would be that of an utterly emotionless human being, correspondingly roughly to the
psychiatrists' description of the feeble minded. More directly to the point, every human society has a multitude
of established attitudes, unquestioned postulates. Comically they may seem parochial prejudices; but many of
them represent a community's most cherished values and ideas. Such social preconception, the value-
judgment which members of any given society take for granted and use as the unspoken axioms of thinking,
find their way into that society's legal system, become what has been termed "the valuation system of law".
The judge in our society owes a duty to act in accordance with the basic predilection inhering in our legal
system (although, of course he has the right, at times, to urge that some of them be modified or abandoned).
The standard of dispassionateness obviously does not require the judge to rid himself of the unconscious
influence of such social attitudes.
87 See also United States v. Herbert L. Will, 449 US 200 : 66 L ed 2d 392.
88 Election Commission of India v. Dr. Subramanian Swamy, (1996) 4 SCC 104 : AIR 1996 1810.
89 HRW Wade & C.F. Forsyth, Administrative Law, 9th Edn., 2005 p.. 459.
90 de Smith, Woolf & Jowell, Judicial Review of Administrative Action, 5th Edn. 1995, Chapter 13, paras 39, 42, pp.
544, 545.
91 Charan Lal Sahu v. Union of India, (1990) 1 SCC 613.
92 See also Sub Committee of Judicial Accountability v. Union of India, (1991) 4 SCC 699; J. Mahapatra v. State of
Orissa, (1984) 4 SCC 103. See also J. Mahapatra & Co. v. State of Orissa, AIR 1984 SC 1572 : (1984) 4 SCC 103.
93 See also State of M.P. v. Dr. Yashwant Trimbak, (1996) 2 SCC 305 : AIR 1996 SC 765; State of Maharastra v.
Ramdas Srinivas Nayak, (1982) 2 SCC 463.
94 M.P. Special Police Establishment v. State of M.P., (2004) 8 SCC 788.
95 State of U.P. v. Sheo Shankar Lal Srivastava, (2006) 3 SCC 276.
96 Jagjit Singh v. State of Haryana, (2006) 11 SCC 1.
1 See Judicial Review of Public Action, 2006 Edn. by Justice Fazal Karim, (Retd. Judge of the Pakistan Supreme
Court).
Much harm is done ... by the myth that merely by putting on a black robe and taking the oath of office as a
judge, a man ceases to be a human being and strips himself of all predilections, becomes passionless thinking
machine. The concealment of the human element in the judicial process allows an element to operate in an
exaggerated manner the sunlight of awareness has an antiseptic effect on prejudices. Freely avowing that he
is a human the operation of this class of biases."2
Whether a statute may be saved by inferring a requirement to observe natural justice, where
the statute is silent
2. In some cases,3 it has been held that where the statute affects civil rights
and yet does not require compliance with the principles of natural justice, it should not be
struck down as unconstitutional, but (following the principles laid down in English
42
decisions such as Cooper's case),4 the Court would infer such requirement though the
Legislature has been silent, and thus save the statute. When such an interence by
common law is made by the Court, and it is found that the administrative authority has
not observed the principles of natural justice, the Court would strike down the
administrative decision or order instead of annulling the law itself.
Where the statute is silent and a contrary intention cannot be implied, the requirement of the
applicability of the rule of natural justice is read into it to ensure fairness and to protect the action from
the charge of arbitrariness. Natural justice has thus secured a foothold to supplement enacted law by
operating as an implied mandatory requirement thereby protecting it from the vice of arbitrariness.
Unless the law expressly or by necessary implication excludes the application of the rule of natural
justice, Courts will read the said requirement in enactments that are silent and insist on its application,
even in cases of administrative act ion having civil consequences. However, if the statute expressly or
by necessary implication omits the application of the rule of natural justice, the statute will not be
invalidated for their omission on the ground of arbitrariness. 5 When there is no specific provision in a
statute or rules made thereunder for showing cause against action proposed to be taken against an
individual, the duty to give reasonable opportunity to be heard will be implied from the nature of the
function to be performed by the authority which has the power to take punitive or damaging act ion. 6
The principles of natural justice must be invariably followed unless the statute specifically excludes the
same.7Natural justice is implied by the courts when the parent statute under which action is taken by
the Administration is silent as to its applicability, omission to mention the right of hearing in the
statutory provision under which impugned act ion is being taken does not ipso facto exclude hearing.
There should be strong implication to exclude hearing. It is not permissible to interpret any statutory
instrument so as to exclude natural justice, unless the language of the instrument leaves "no option to
the court". The court has also emphasised that natural justice is so integral to good Government and
that onus is on him who urges exclusion to make out why? The court said: "This rule of fair play must
not be jettisoned save in very exceptional circumstances where compulsive necessity so demands.
The court must make every effort to salvage this cardinal rule to the maximum extent possible with
situational modification".8
In the USA, the right 'to due process' being guaranteed by the Constitution (by 5th and 14th
amendments), any law which denies or violates the guarantee of due process would be void and
struck down by court.9
Powers of legislature being limited by the Constitution, a statutory exclusion of natural justice, may in
certain cases render such law unconstitutional on the ground that denial of notice or hearing renders
the restriction upon a fundamental right as "arbitrary" to offend Art. 14 or unreasonable so as to offend
against Art. 19 or unfair so as to violate Art. 21.10
It is not always a necessary inference that if opportunity is expressly provided in one provision and not
so provided in another, the opportunity to be considered as excluded from that other provision. It may
be a weighty consideration to be taken into account but the weightier consideration is whether the
administrative action entails evil consequences.11Even in cases where a statutory provision which
provides for natural justice is repealed by amending the Act, no inference can be drawn that principle
of natural justice is excluded. It was held that repeal of a provision as to hearing has no relevance for
determining the nature of power conferred on the authority. It was observed that the applicability of
natural justice must rest on the need to observe for procedure in exercising the power in question. 12
No inference of exclusion should be made if opportunity of hearing is not provided in the statute and
silence in statute has no exclusionary effect.13 Even if a statute is silent on the application of principles
of natural justice, there is need to hear the parties whose rights and interests are likely to be affected
by the orders of the authority. A fair procedure has to be followed before taking a decision unless the
statute provides otherwise. The principle of natural justice must be read into unoccupied interstices of
the statute unless there is clear indication to the contrary. No form or procedure should ever be
permitted to exclude the presentation of litigant's defence or stand. Even in the absence of provision in
procedural laws, power inheres in every tribunal, court of a judicial, quasi-judicial character to adopt
modalities necessary to achieve requirements of natural justice. 14
43
It was stated that mere fact that the power affects rights or interests is what makes it "judicial" and so
subject to the procedures required by natural justice. In other words, a power which affects rights must
be exercised "judicially" i.e., fairly, and the fact that the power is administrative does not make it any
less "judicial" for this purpose.15
2. The statute would, of course, be struck down where the nature of the
function calls for a quasi-judicial procedure or compliance with natural justice, and yet
the statute prohibits or excludes it,16 instead of merely being silent.
1. As to the nature of functions which would require the application of the
principles of natural justice.
2 See Judicial Review of Public Action by Justice Fazal Karim, (Retd. Judge of the Pakistan Supreme Court). 2006
Edn., Vol. II at pp. 1357-1358.
3 Government of Mysore v. Bhat, AIR 1975 SC 596 : (1975) 1 SCC 110 (para s. 2, 18, 21).
4 Cooper v. Wandsworth Board, (1863) 14 CB 180.
5 Rash Lal Yadav (Dr) v. State of Bihar, (1994) 5 SCC 267.
6 Maneka Gandhi v. Union of India, (1978) 1 SCC 248 : AIR 1978 SC 597.
7 CIT v. B.N. Bhattacharjee, (1979) 4 SCC 121 : AIR 1979 SC 1725.
8 Swadeshi Cotton Mills & UOI,AIR 1981 SC 818 : (1981) 1 SCC 73.
9 Goldberg v. Kelly, (1970) 397 US 254; Vitek v. Jones, (1980) 445 US 480; Cleveland v. Loudermill, (1985) 470 US
532.
10 Maneka Gandhi v. UOI, AIR 1978 SC 597 : (1978) 1 SCC 248; Olga Tellis v. Bombay Municipal Corpn., AIR 1986
SC 180 : (1985) 3 SCC 545; Special Courts Bill, In re.,AIR 1979 SC 478 : (1979) 1 SCC 380.
11 S.L. Kapoor v. Jagmohan, (1980) 4 SCC 379 : AIR 1981 SC 136. See also Coal Mines Provident Fund Commr. v.
J.P. Lalla, AIR 1976 SC 676: (1976) 1 SCC 964; Swadeshi Cotton Mills v. UOI, AIR 1981 SC 818 : (1981) 1 SCC 664.
12 H. Puttappa v. State of Karnataka, AIR 1978 Kant 148.
13 Mohinder Singh Gill v. CEC, AIR 1978 SC 851 : (1978) 1 SCC 405; see also Girija Mishra v. Berhampur
Municipality, AIR 1993 Ori 152; Jagroop v. State of Punjab, AIR 1995 P&H 303; M.N. Gupta v. University of Delhi, AIR
1992 Del 212.
14 Mangilal v. State of Madhya Pradesh, AIR 2004 SC 1280 : (2004) 2 SCC 447; Sushil Kumar v. Maharishi Dayanand
University, Rohtak, AIR 2000 P&H 72; Rudamani Devaru v. Shrimad Maharaj Niranjan Jagadguru, AIR 2005 Kant 313.
15 H.R.W. Wade & E.F. Forsyth, Administrative Law, 9th Edn., 2005 at p. 490.
16 Cf. Shama Rao v. Union Territory, AIR 1967 SC 1480 (para 14) CB : (1967) 2 SCR 650; Mehra v. Khanna, AIR 1971
Del 1 (para 110). [The contrary view expressed by DESHPANDE, J., in this case (para 14), is an open revolt against
the Constitution Bench decision in Mahendra Lal's case,AIR 1963 SC 1019 : 1963 Supp (1) SCR 912, and all juristic
principles relating to fundamental rights]; Ujagar v. Union of India, AIR 1989 SC 516 (para 30) CB; Cf. Empire
Industries v. Union of India, (1985) 3 SCC 314 (paras. 50-51); Kochuni v. States of Madras & Kerala (ii), AIR 1960 SC
1080 : (1974) 2 SCC 121 (para s. 76-78); Mullane v. Central Hanover Tr. Co., (1950) 339 US 306 (314); Brock v.
Roadway, (1987) 1075 St. 1740 (1743): Memphis v. Craft, (1978) 436 US 1 (14-15); Nawabkhan v. State of Gujarat,
AIR 1974 SC 1471 (1475) : (1960) 3 SCR 887. [See elaborate discussion on Natural justice in Ch. VIII of the Author's
Administrative Law; Virendra v. State of Punjab, AIR 1957 SC 896 (903) : 1958 SCR 308; State of Madras v. Row, 1952
SCR 597; Ebrahim Wazir v. State of Bombay, AIR 1954 SC 229 : 1954 SCR 933; Dwarka Prasad v. State of U.P., AIR
1954 SC 224 : 1954 SCR 803; State of Madras v. Row, 1952 SCR 597 : AIR 1952 SC 196; Jagannath v. State of
Orissa, 1954 SCR 1046; Digyadarshan Rajendra Ramdassji Varu v. State of A.P., AIR 1970 SC 181 p. 184 (para 6) :
(1969) 1 SCC 844; Babul Chandra v. Patna High Court, AIR 1954 SC 524; Mohinder v. Chief Election Commr., AIR
1978 SC 851 (paras. 44-47) : (1978) 1 SCC 405.
Learned author at 492 of the same book stated: "Natural justice is thus but fairness writ large and
judicially. By this simple verbal "short-cut" the misuse of the term "judicial" can be avoided altogether.
44
At last we reach the result directly instead of a devious path; administrative powers which affect rights
must be exercised in accordance with natural justice."
Where a body or authority is judicial or where it has to determine a matter involving rights judicially
because of express or implied provision, the principle of natural justice audi alteram partem applies.
Where a body or authority is characteristically administrative, the principle of natural justice is liable to
be invoked if the decision of the body or authority affects individual rights or interests and having
regard to the particular situation it would be unfair for the body or authority not to have allowed a
reasonable opportunity to be heard.17 The duty to give reasonable opportunity to be heard will be
implied from the nature of the function to be performed by the authority which has the power to take
punitive or damaging action.18 The rule applies to administrative orders as well which confer rights and
impose duties.19
Where an administrative authority is not exercising quasi-judicial powers and as such there is no duty
to act judicially because the principles of natural justice are not attracted in such case, Court may still
insist on a "duty to act fairly". In the article "From Duty to act Judicially to Duty Act fairly" by
THAKKER, J.20 it is stated thus: "... the acting fairly doctrine" proved useful as a device for evading
confusion which prevailed in the past. 'The Courts now have two strings in their bow'. An
administrative act may be held to be subject to the requirement and observance of natural justice
either because it affects rights or interests and hence would involve a 'duty to act "judicially' or it may
be administrative, pure and simple, and yet, may require basic procedural protection which would
involve "duty to act fairly' In Administrative Law21 it is stated: "But it is now clearly settled, as is indeed
self-evident" that there is no difference between natural justice and "acting fairly", but they are
alternative names for a single but flexible doctrine whose conduct may vary according to the nature of
the power and the circumstances of the case. In the words of LORD DENNING MR "the rules of
natural justices - or of fairness - are not cut and dried. They vary infinitely". Attempts to represent
natural justice and "acting fairly" as two different things are a sure sign of failure to understand the
administrative powers are subject to the principles of natural justice. (page 493).
There is a distinction between natural justice and fairness which is not always observed. Fairness
must be observed even in circumstances where natural justice is inapplicable. 22 The object of fair play
or fairness is to ensure that the vast power in the modern State is not used for "improper purposes" or
misguided by 'extraneous' or irrelevant consideration and that a statutory authority arrives at a just or
reasonable decision either in permitting the interest or affecting the rights of persons. In judicial or
quasi-judicial proceedings, natural justice demands that the person is to be heard before decision is
taken (which right may arise from the express provision of the statute or by implication); but in
administrative proceedings even though the decision-making authority has no duty to offer to the
person concerned an opportunity to be heard, nevertheless he has a duty to act fairly which in the last
resort means that the person must be given an opportunity of stating his case or to make a
representation in that 23behalf and that such opportunity should be reasonable. 23
It is settled law that every act ion of the State or an instrumentality of the State must be informed by
reason. Action uninformed by reason may amount to be arbitrary and liable to be questioned under
Art. 226 or Art. 32 of the Constitution. The act ion must be just, fair and reasonable. Fair play and
natural justice are parts of public administration; non-arbitrariness and absence of discrimination are
hallmarks for good governance under rule of law. Therefore, when the State its delegated authority or
an instrumentality of the State or any person acts under a statutory rule or by administrative discretion,
when its act ion or orders visit civil consequences, fairness and justness require that in an appropriate
case, the affected citizen must have an opportuniW to meet the case. Audi alteram partem is part of
the principles of natural justice.24
Justice SUBBA RAO in his dissenting judgment observed thus: "Every act of an administrative
authority is not an administrative or ministerial act . The provision of a statute may enjoin on an
administrative authority to act administratively or act judicially or to act in part administratively and in
part judicially. If policy and expediency are the guiding factors in part or in whole throughout the entire
process culminating in the final decision, it is an obvious case of administrative act . On the other
hand, if the statute expressly imposes a duty on the administrative body to act judicially, it is again a
clear case of a judicial act . Between the two there are many acts, the determination of whose
45
character creates difficult problems for the court. There may be cases where at one stage of the
process the said body may have to act judicially and at another stage ministerially. The rule can be
broadly stated thus: The duty to act judicially may not be expressly conferred, but may be inferred
from the provision of the statute. It may be gathered from the cumulative effect of the nature of the
rights affected, the manner of disposal provided, the objective criteria to be adopted, the phraseology
used, the nature of power conferred or the duty imposed on the authority or other indicia afforded by
the statute."25
If there is power to decide and determine to the prejudice of a person, duty to act judicially is implicit in
the exercise of such power.26Fairness is a principle to ensure that statutory authority arrives at a just
decision either in promoting the interest or affecting the rights of persons. To use the time hallowed
phrase that "justice should not only be done, but be seen to be done" is the essence of fairness
equally applicable to administrative authorities. It has no set form of procedure. It depends upon facts
of each case ... Indeed it cannot have too much elaboration of procedures since wheels of
administration must move quickly ... It may be noted that the terms 'fairness of procedure', 'fair play in
action,' 'duty to act fairly' are perhaps used as alternatives to 'natural justice' without drawing any
distinction. But Prof. Paul Jackson27 points out that "such phrases may sometimes be used to refer not
to the obligation to observe the principles of natural justice, but, on the contrary, to refer to a standard
of behaviour which, increasingly the courts require to be followed even in circumstances where duty to
observe natural justice is inapplicable".28
What fairness requires is stated in Doody v. Secretary of State for Home Dept., 29 by LORD MUSTILL
thus: "(1) Where an Act of Parliament confers an administrative power there is a presumption that it
will be exercised in a manner which is fair in all circumstances; (2) The standards of fairness are not
immutable. They may change with passage of time, both in the general and in their application to
decision of a particular type; (3) The principles of fairness are not to be applied by rote identically in
every situation. What fairness demands is dependent on the context of the decision and this is to be
taken into account in all aspects; (4) An essential feature of the context is the statute which creates
the discretion as regards both its language and shape of the legal and administrative system within
which the decision is taken; (5) Fairness will very often require that a person who may be adversely
affected by the decision will have an opportunity to make representation on his own behalf either
before the decision is taken with a view to producing a formable result or after it is taken with a view to
procuring its modification or both; (6) Since the person affected usually cannot make worthwhile
representation without knowing what factor may weigh against his interests, fairness will very often
require that he is informed of the gist of the case which he has to answer".
Article 6(1) of the European Convention for the Protection of Human Rights and Fundamental
Freedom, 1950 provides: "In the determination of civil rights and obligations or any criminal charge
against him, every one is entitled to a fair and public hearing within a reasonable time by an
independent and impartial tribunal established by law...".
Natural justice is only "a fair plan in act ion".30
17 State of Punjab v. K.R. Erry, (1973) 1 SCC 120 : AIR 1973 SC 834.
18 Maneka Gandhi v. Union of India, AIR 1978 SC 597 : (1978) 1 SCC 248.
19 Union of India v. K.P. Joseph, (1973) 1 SCC 194 : AIR 1973 SC 303.
20 Published in (2003) 4 SCC 1(J) .
21 See H.W.R. Wade & C.F Forsyth, Administrative Law, 9th Edn., 2005.
22 A.G., Hong Kong v. Ng Yuen, (1983) 2 All ER 346.
23 Indra v. UOI, (1988) 2 UJSC 565; A.G; Hong Kong v. Ng Yuen, (1983) 2 All ER 346. See D.D. Basu, Human Rights
in Constitutional Law, 2nd Edn., pp. 457-458.
24 See M.J. Sivani v. State of Karnataka, AIR 1995 SC 1770 : (1995) 6 SCC 289; C.B. Gautam v. UOI, (1993) 1 SCC
78; Syndicate Bank v. Wilfred D'Souza, AIR 2003 Kant 337.
46
25 Radeshyam Khare v. State of M.P., AIR 1959 SC 107 : 1959 SCR 1440.
26 State of Orissa v. Dr. Binapani Dei, AIR 1967 SC 1269 : 1967 2 SCR 625.
27 See Paul Jackson, Natural Justice, 2nd Edn.,, p. 11.
28 Management of Nally Bharat Engineering Co. Ltd. v. State of Bihar, (1990) 2 SCC 48 : JT 1990 (2) SC 96 : (1990) 1
SCR 290.
29 (1993) 3 All ER 92.
30 Wiseman v. Borneman, (1969) 3 All ER 275; Furnell v. W.H.S. Board, 1973 AC 660(HL) ; Maneka Gandhi v. UOI,
AIR 1978 SC 597 : (1978) 1 SCC 248; Mohinder Singh Gill v. CEC, AIR 1978 SC 851 : (1978) 1 SCC 405.
Irrespective of whether the power conferred on a statutory body or tribunal is administrative or quasi-
judicial, a duty to act fairly, that is in consonance with the fundamental principles of substantive justice
is generally implied. The presumption is that in a democratic polity wedded to the rule of law, the State
or the Legislature does not intend that in the exercise of their statutory powers its functionaries should
act unfairly or unjustly.31 The requirements of fairness are not exhausted in the taking or consideration
of evidence, but extend to the concluding parts of the procedure as well as to the beginning and
intermediate steps.32
In Charan Lal Sahu v. Union of India, 33 after referring to almost all prior decisions, it was observed that
principles of natural justice are fundamental in the constitutional set up of this country. No man or no
man's right should be affected without an opportunity to ventilate his views. Justice is a psychological
yearning, in which men seek acceptance of their view point by having an opportunity before the forum
or the authority enjoined or obliged to take a decision affecting their right.
Compliance with the principles of natural justice is solely dependant upon facts and circumstances of
each case. The totality of the situation ought to be taken note of and if on examination of such totality,
it comes to light that the executive action suffers from the vice of non-compliance with the doctrine, the
law courts ought to set right the wrong inflicted upon the 'person concerned and to do so would be a
plain exercise of judicial power. As a matter of fact the doctrine is now termed as a synonym of
"fairness" in the concept of justice and stands as the most accepted methodology of a governmental
act ion.34
The adherence to the principles of natural justice as recognised by all civilised states is of supreme
importance when a quasi-judicial body embarks as determining disputes between parties, or any
administrative action involving civil consequences. Even an administrative order which involves civil
consequences must be consistent with the rules of natural justice. The expression "civil
consequences" encompasses infraction of not merely property or personal rights but civil liberties,
material deprivations and non-pecuniary damages. In its wide umbrella comes everything that affects
a citizen in his "civil life".35
Imposing ban on an association, which affects the fundamental rights could be passed only after
giving a reasonable opportunity and absence of hearing would render the decision arbitrary and
violative of Art. 14.36
The constitutional requirement of compliance with the principles of natural justice is derived from the
expression "reasonable restriction" in clauses (2)(b) of Art. 19. 37
An act which is legislative in character - primary or subordinate - is not subjected to rule of natural
justice. In case of legislative act of legislature, no question of application of rule of natural justice
arises. The duty to afford fair hearing arises only if the function is judicial or quasi-judicial (or
administrative), but not if it is legislative.38 In ITC case, the Supreme Court explained by holding:
"While adjudication determines the rights and liabilities of the parties in the litigation before the court, a
legislative act is the creation and promulgation of a general rule of conduct without reference to any
particular case and indicates a future course of action". However, in the case of subordinate
legislation, the legislature may provide for observance of principles of natural justice or provide for
hearing to the residents of the area of a Gram Sabha and also before establishing a Gram Sabha for
that area. Where the Legislature has provided for giving an opportunity of hearing before excluding an
47
area from a Gram Sabha or including an area in another local authority, such an opportunity must be
given before any declaration is made. Any deviation from the said rule would invalidate the
declaration.39 When delegating the power of subordinate legislation, the legislature may itself prescribe
a notice or some kind of hearing; in such a case, a failure to observe the statutory procedure may
render invalid the statutory instrument on the ground of ultra vires, but the general principles of natural
justice cannot be invoked.40 When a statute under which an authority is functioning itself lays down a
procedure for the authority to follow, then this procedure has naturally to be followed. If the prescribed
procedure falls deficient in any of the norms of natural justice, then the procedure may have to be4
supplemented with the rules of natural justice. In Mallock v. Abardeen Corpn., 41 the right of hearing
was superimposed by the court as a matter of natural justice over a statutory procedure for dismissal
of a school teacher by the School Board. The same principle was adopted by our Supreme Court
wherein it was said: "The principles of natural justice must be read into unoccupied interstices of the
statute unless there is a clear mandate to the contrary. On the other hand, if the statutory procedure is
detailed, fair and complete, it may give rise to an implication that natural justice has been excluded
and nothing more than the statutorily prescribed procedure need be followed by the concerned
authority".42
There are two reasons why "legislative" decisions have been held exempt from the duty to provide a
fair hearing; (1) Where the decision is taken by a minister or other elected official who is accountable
to Parliament or a local authority, the courts will be chary of adding an additional forum of participation
where one is already in place as part of the process of political accountability, (2) The second reason
is a practical one; bodies may be exempt from the duty to provide a hearing where the potential of
adversely affected interests is too diverse or too numerous to permit each individual to participate. 43
But the doctrine of fairness is not completely excluded in legislative decision. In dE SMITH'S Judicial
Review,44 learned author cited certain spheres where fairness is applied. "The participation of both
public interest groups and individuals asserting general interest, for example, in the environment, is
occupied in areas such as planning and education. The planning education allows interested parties
the opportunity to participate in planning appeals. Where, however, discretion exists to deny a hearing,
the courts have intervened, for example, to require the Secretary of State for the Environment not to
dispense with an inquiry as unnecessary, when the merits of proposal were the subject of acute local
controversy among the champions of conflicting facets of the public interest. It has also been held that
a prominent objector to a proposed development had a right to be positively consulted prior to the
holding of an appeal".45
When it is appropriate for the courts, rather than the legislature or administration, to extend rights of
participation to these kinds of situations is an issue of some difficulty. Undoubtedly, increasing public
participation in decision-making causes delay, hinders the conferral of the intended benefits of a
particular programme and imposes burden upon Government resources. The preparation and
presentation of effective representation also takes time and money, commodities that are evenly
spread among all segments of society. Whether, and how, procedural arrangements should be made
to enable broader ranges of interest to be represented raises fundamental issues about the adequacy
of existing institutional arrangement for ensuring that Government hears the concerns of the governed
and is sufficiently responsive and accountable to them.
While taking care not to hamper unduly effective administration, the common law duty of fairness
surely has a useful role in opening new channels of public participation, while leaving their precise
contours to be defined by legislative or administrative act ion. Learned author says: "...a legislative
type decision and one involving issues of national economic policy, is not ipso factoexempted from the
duty to act fairly.46 Even in the absence of a legitimate expectation of a hearing, it would seem fair to
allow representation by atleast some of those objecting to the decision whose interests are
substantially threatened by an adverse outcome".
31 Swadeshi Cotton Mills v. Union of India, (1981) 1 SCC 664 : (1981) 2 SCR 533. See also E.P. Royappa v. State of
Tamil Nadu, (1974) 4 SCC 3 : (1974) 2 SCR 348 : AIR 1974 SC 555 : 1974 I LLJ 172; Union of India v. Tulsiram Patel,
(1985) 3 SCC 398 : 1985 SCR 131(Supp-2) .
32 (Second) Morgan case v. US, (1938) 304 US 1. See also Justice B.P. Banerjee, Judicial Control of Administrative
Act,2001 Edn. at p. 649.
48
33 Charan Lal Sahu v. Union of India, (1990) 1 SCC 613 : AIR 1990 SC 1480 : 1989 SCR 597(Supp-2) .
34 Kumaon Mandal Vikas Nigam Ltd. v. Girja Shankar Pant, (2001) 1 SCC 182 : 2001 I LLJ 583 : AIR 2001 SC 24.
35 Canara Bank v. Debasis Das, (2003) 4 SCC 557 : AIR 2003 SC 2041 : 2003 II LLJ 531; Canara Bank v. V.K.
Awasthy, (2005) 6 SCC 321 : AIR 2005 SC 2090 : 2005 II LLJ 461(SC) .
36 Jafar v. Union of India, 1994 SCC 1(Supp-2) . See also FCI v. KCF, 1 (1993) 1 SCC 71.
37 See Hari Khemu Gawali v. Dy. Commr. of Police, Bombay, AIR 1956 SC 559; Gurbachan v. State of Bombay, 1952
SCR 993; Kishan Singh v. State of Rajasthan, (1955) 2 SCR 531 : AIR 1955 SC 795.
38 ITC v. State of Karnataka, 1985 Supp. SCC 476; UOI v. Cynamide India, (1987) 2 SCC 720 : AIR 1987 SC 1802.
39 State of Punjab v. Tehal Singh, AIR 2002 SC 533 : (2002) 2 SCC 7. See also Sundardas Kanyalal Bhatija v.
Collector, Thane, AIR 1990 SC 261 : (1989) 3 SCC 396; Charan Lal Salu v. Union of India, (1990) 1 SCC 613 : AIR
1990 SC 1480; Ramesh Chandra Kachardas Porwal v. State of Maharashtra, (1981) 2 SCC 722 : AIR 1981 SC 1127;
Madras City Wine Merchants' Association v. State of Tamil Nadu, (1994) 5 SCC 509; Panipat Woollen & General Mills
Co. Ltd. v Union of India, AIR 1986 SC 2082 : (1986) 4 SCC 368; Laxmi Narain & Sons v. State of Haryana, (2001) 10
SCC 370 : JT 2000 (10) SC 554; Bar Council of India v. High Court of Kerala, (2004) 6 SCC 311: AIR 2004 SC 2227.
40 UOI v. Cynamide India, (1987) 2 SCC 720 : AIR 1987 SC 1802 (supra).
41 (1971) 2 All ER 127.
42 See Institute of Chartered Accountants of India v. L.K. Ratna, AIR 1987 SC 71 : (1986) 4 SCC 537.
43 See de Smith Woolf & Jowell, Judicial Review of Administrative Action, 5th Edn., 1995, Chapter 8, at p. 416 (para
33).
44 6th Edn., Chapter VII, pp. 370-371(paras 28-30).
45 Wilson v. Secretary of State for the Environment, 1988 JPL 540; Manchester Development Ltd. v. Secretary of State
for Environment, 1993 JPL 439.
46 See British Coal Case1993 ICR 720.
When the Governor or President invokes the "pleasure" doctrine, while terminating the services, of a
person nominated by him, principle of natural justice may not apply. 47
1. Of course, the Court would not invalidate a statute where the duty to hear or
to observe the principles of natural justice can be inferred from ambiguous language of
the statute itself,48 because the Court has to, uphold a statute which admits of two
constructions.49
1. But if a statute, as properly interpreted, imposes a penalty, without

prescribing a procedure for imposing it, and is silent as to compliance with the
requirements of natural justice, the Court should strike down the statute as imposing a
reasonable restriction, without reading into it such requirements by implication, 50 even
though, in fact, the administrative authority has, in the case before the Court, complied
with the rules of natural justice.51
Comment on Chaturbhai v. Union of India
The foregoing view expressed on Kanti Lal's case52 should be preferred to the contrary view taken in
the earlier case of Chaturbhai,53 or in the later case of Bhat.54 The question of constitutionality of the
statutory provision itself was directly raised in Chaturbhai v. Union of India .55Sections 8 and 9 of the
Central Excises and Salt Act, 1944 now, the Central Excise Act, 1944, and rr. 210-215 made
thereunder, which prescribed certain penalties for the violation of the statutory provisions did not
provide for any notice or hearing before imposing such penalties and the validity of these provisions
was challenged as offending Art. 19(6). The Court (speaking through KAPUR J.) refused to hear this
contention with the following observations--
49
"The basis of this argument was that there is no provision.....for levying penalties nor any provision made for
notice or the taking of evidence ... If' the tribunal is to act judicially it must confirm to the principles of natural
justice and there is no dispute that in the instant case there was no breach of this rule ...The argument of
unreasonable restriction because of this ground must also fail".
If the Court had rested its decision on the ground that the Petitioner could not challenge the
constitutionality of the impugned provisions because there was no violation of natural justice in fact
and that, accordingly, he was not a person affected so as to have a locus standi to raise the
constitutional question, there was nothing for comment. If, however, by the earlier part of the
observation the Court suggested that the constitutionality of the impugned statutory provisions could
not be challenged because, from the nature of the function itself, the Court could come to the
conclusion that it was quasi-judicial so that the ordinary law would require the authority vested with the
power to exercise it in accordance with the rules of natural justice, the observation, it is submitted. is
open to criticism.
The impugned statutory provision, which imposed restrictions upon the right guaranteed of Art. 19(1)
(g) without providing for a hearing, constituted an unreasonable restriction and the Court was bound to
annul it irrespective of what the statutory authority did or did not do, in exercise of the statutory power.
Even if the legislature specifically authorises an administrative act ion without hearing, then, except in
cases of recognised exception, the law would be violative of principles of fair hearing now also read
into Art s. 14 and 21 of the Constitution.56 When the unconstitutionality of a statute is patently
established by what it provides, it cannot be saved with reference to what a subordinate authority, in
exercise of the power conferred by the statute, actually does. 57
1. It is submitted that in this sphere, the distinction between the English and
the American jurisprudence should not be overlooked:
2. In England, Parliament being sovereign, and there being no written

Constitution, Courts have no power to invalidate any law passed by Parliament on the
grounds of violating any supposed limitations, constitutional or otherwise, e.g., the
violation of the rules of natural justice. In such a situation, the Courts can afford relief
only by reading into the statute the rules of common law, wherever possible. That was
the principle enunciated in Cooper's case.58 In that case, the court observed 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 legislature. There was no
question of saving any statute from unconstitutionality.
47 Rash Lal Yadav (Dr) v. State of Bihar, (1994) 5 SCC 267 : JT 1994 (4) SC 228; A. K. Kraipak v. Union of India,
(1969) 2 SCC 262 : AIR 1970 SC 150 : (1970) 1 SCR 457; Pu Myllai Hlychho v. State of Mizoram, (2005) 2 SCC 92;
Union of India v. Tulsiram Patel, (1985) 3 SCC 398 : AIR 1985 SC 1416.
48 Cf. Raman v. State of Madras, AIR 1959 SC 694 (697-8) : 1959 Supp (2) SCR 227.
49 See Art. 14, ante.
50 e.g.,Kanti Lal v. Patel, (1968) 1 SCR 735 (740) : AIR 1968 SC 445; State of Madras v. Row, 1952 SCR 597 (607);
State of M.P. v. Bharat, AIR 1967 SC 1170 (1172) : (1967) 2 SCR 454; Sri Kishna v. State of Rajasthan, (1955) 2 SCR
531 (540); Himmat Lal v. Police Commr., AIR 1973 SC 87 (para 38) : (1973) 1 SCC 227; Faruk Mohammed v. State of
M.P., (1969) 1 SCR 833 (857) : AIR 1970 SC 93. See also Mathai v. State, AIR 1954 TC 47; Brahmanand v. State of
Bihar, AIR 1959 Pat 425; In re. Annadurai,AIR 1959 Mad 63; Dasappa v. Dy. Addl. Commissioner, AIR 1960 Mys 57.
51 e.g.,Kanti Lal v. Patel, (1968) 1 SCR 735 (740) : AIR 1968 SC 445.
52 e.g.,Kanti Lal v. Patel, (1968) 1 SCR 735 (740) : AIR 1968 SC 445.
53 Chaturbhai v. Union of India, AIR 1960 SC 424 (430) : (1960) 2 SCR 362.
54 Govt. of Mysore v. Bhat, AIR 1975 SC 596 (paras. 2, 18, 21) : (1975) 1 SCC 110.
55 Chaturbhai v. Union of India, AIR 1960 SC 424 (430) : (1960) 2 SCR 362.
50
56 Olga Tellis v. Bombay Municipal Corpn., (1985) 3 SCC 545 : AIR 1986 SC 180 : 1985 SCR 51(Supp-2) ; D.K. Yadav
v. J.M.A. Industries Ltd., (1993) 3 SCC 259 : (1993) 3 SCR 930 : 1993 II LLJ 696.
57 Krishna Sugar Mills v. Union of India, AIR 1959 SC 1124 (1145) : (1960) 1 SCR 39.
58 Cooper v. Wandsworth Bd., (1863) 14 CB 180.
The analysis of the doctrine of Parliamentary sovereignty discloses three fold principle; (1) Parliament
can, without any limitation, legally enact legislation dealing with any matter. The Constitution has
assigned no limits to the authority of Parliament over all matters and persons within its jurisdiction. A
law may be unjust and contrary to sound principles of Government; but Parliament is not controlled in
its discretion and when it errs, its errors can be corrected only by itself. 59 That is why, for British
Parliament, it is said, Parliament can do everything, make woman a man and a man a woman; (2)
Parliament can legislate for all persons and all places; (3) Parliament can delegate any Fowers to
other persons or bodies.60 E.W. RIDGES on Constitutional Law of England61 has said that Parliament
has unlimited power. The principle of Parliamentary sovereignty means neither more nor less than
this, namely, that Parliament has under the English Constitution, the right to make or unmake any law
whatever and further, that no person or body is recognised by the law of England to have a right to
override or set aside the legislation of Parliament. 62
U.K.
2. But in the U.S.A., since the Constitution imposes limitations upon the
competence of the Legislature, it is the duty of the Courts to enforce the Constitution and
to invalidate the law wherever the statute transgresses any of the limitations. This was
the doctrine enunciated in Marbury v. Madison .63 One of these limitations is the 'Due
Process' Clause' of the 14th Amendment which embodies the rules of natural justice by
requiring, inter alia, a notice and opportunity to be heard before affecting one's liberty
and property. Where the legislature omits to comply with this requirement, it is the duty
of the Court to annul the law.64 The requirement of 'due process' which means "fair
hearing", if violated the courts are bound to interfere irrespective of any other
consideration.65 It was held that "there can be no compromise on the footing of
convenience or expediency or because of a natural desire to be rid of harassing delay,
when "that minimal requirement" has been neglected. 66 It was further held therein that
whether "due process" has been violated or not is a matter of substance and not of form
and the court would not entertain trivial objections as to procedure which have no
substantial bearing on the ultimate rights of parties. In Synder v. Reclamation, 67 it was
observed that there was a violation of due process whenever there was a breach of a
"principle of justice so rooted in the "traditions" and "conscious" of our people as to be
ranked as fundamental. In an early case Hagar v. Reclamation District, 68 the court had
formulated the view that "hearing" before decision was one of the fundamental principles
and that accordingly "due process" required inter alia that "whenever it is necessary for
the protection of the parties, it must give an opportunity to be heard respecting the
justness of the judgment sought".69
Of course, where the impugned law admits of two constructions, the Court may adopt that constitution
which might save the statute from unconstitutionality. 70 But where, it admits of one construction only,
and the law plainly omits to offer any opportunity to be heard, and there are no exceptional
circumstances to justify a summary condemnation (e.g., in an emergency), it would be the duty of the
Court to condemn the statute.71 There is a plethora of cases72 where statutes have been annulled by
the American Supreme Court on the ground of denial of procedural due process, and in none of them
has the Court supplied the omission of the Legislature and held that an opportunity to be heard should
be implied and thereby the statute upheld.
1. Obviously, in India, since we have a written Constitution with judicial review,
the law should be the same as in the U.S.A.
51
But where statute provides for a hearing, but with or without detailed regulation, the courts are
empowered to supplement the procedure. In Wiseman v. Boardmen, 73
U.S.A.
it was observed "for a long time the courts have, without objection from Parliament, supplemented
procedure laid down in legislation where they have found that to be necessary for this purpose. But
before this unusual kind of power is exercised it must be clear that the statutory procedure is
insufficient to achieve justice and that to require additional steps would not frustrate purpose of the
legislation. In Lloyd v. McMohan, 74 it was held: "In particular, it is well established that when a statute
has conferred on anybody the power to make decisions affecting individuals, the courts will not only
require the procedure prescribed by the statute to be followed, but will readily imply so much and no
more to be introduced by way of additional procedural safeguards as will ensure the attainment of
fairness." No statutory procedure is likely to cover every possibility of unfairness. Gaps may therefore
be filled by resorting to "the justice of the common law." 75"It is now well recognised that the court has
power to expand procedure laid down by statute if that is necessary to prevent infringement of natural
justice and it is not plainly contrary to the intention of Parliament". 76 In R v. Home Secretary exparte
Doody, 77 concerning parole for convicted murderers serving mandatory life sentence, it was observed
that it was for the court "to decide what the elements of fairness demand" in the regime by which
Home Secretaries had chosen to exercise their powers and stressed that standards of fairness are not
immutable and depend on the context of those powers. Learned Judge referred to "a perceptible
trend" towards an insistence upon greater openness in the making of administrative decision.
The test today of whether to supplement statutory procedure is no longer whether the statutory
procedure alone could result in manifest unfairness. The preferable view is that fairness must, without
qualification, be attained and the "justice of the common law" may supplement that of the statute
unless by necessary implication the procedural code must be regarded as exclusive. 78 Under either
test, similar factors are likely to be relevant: the comprehensiveness of the code, the degree of
deviation from statutory procedure required and the overall fairness of procedures to the individual
concerned.79 In a recent case, our Supreme Court has said that in order to ensure a fair hearing,
courts can insist and require additional steps as long as such steps would not frustrate the apparent
purpose of legislation. Principles of natural justice are not intended to operate as roadblocks to
obstruct statutory inquiries.80
6i) Where there is no question of any fundamental right being infringed by

reason of the silence of the Legislature to afford such opportunity, or where the validity of
the law is not challenged,81 or in the non-statutory administrative sphere,82 the Court may
apply the English doctrine in Cooper's case83 to require an administrative authority to
offer such opportunity to the person to be affected by its decision.
59 Eriskine May, Parliamentary Practice, 7th Edn., p. 28.
60 See Sydney D. Bailey, British Parliamentary Democracy, 3rd Edn. at p. 207.
61 E.W. Ridges on Constitutional Law of England, Eighth Edn., at p.15.
62 A.V. Dicey, Law of the Constitution, 10th Edn., pp. 39-40.
63 See Art s. 13 and 14ante.
64 Fuentes v. Shevin, (1972) 407 US 67; Sniadach v. Family Finance Corpn., (1969) 395 US 337 (339); Bell v. Burson,
(1971) 402 US 535 (539).
65 Ohio Bell Tel Co. v. Public Utilities Commn., (1937) 301 US 292.
66 Market St. R C.V. Railroad Commn.,(1945) 324 US 548.
67 Synder v. Massachussets, (1934) 291 US 97.
68 Hagar v. Reclamation District, (1884) 111 US 701.

52
69 See also Joint-Anti-Fascist Refugee Committee v. McGrath, (1951) 341 US 123.
70 Wisconsin v. Constantineaue, (1971) 400 US 433 (437, 439).
72 Fuentes v. Shevin, (1972) 407 US 67; Sniadach v. Family Finance Corpn., (1969) 395 US 337 (339); Bell v. Burson,
(1971) 402 US 535 (539).
73 Wiseman v. Boardmen, 1971 AC 297.
74 Lloyd v. McMohan, 1987 AC 625.
75 H.W.R. Wade & C.F. Forsyth, Administrative Law, 9th Edn., 2005, p. 506.
76 Atkinson v. United States of America Government, ILR 1971 AC 197.
77 (1994) 1 AC 531.
78 Furnell v. Whangerei High School Board, (1973) 2 WLR 92 : (1973) 1 All ER 400 : 1973 AC 660.
79 See de Smith, Judicial Review, 6th Edn., Chapter VII, para 14.
80 Natwar Singh v. Director of Enforcement, AIR 2010 SC 9(Supp) : (2010) 13 SCC 255.
81 Cf. Daud v. D.M., AIR 1972 SC 896 (para 14) : (1972) 1 SCC 655; Deokinandan v. State of Bihar, AIR 1971 SC
1409 (paras. 15, 34) : (1971) 2 SCC 330; Mohindra v. C.E.C., AIR 1978 SC 851 (paras. 6, 76, 91) : (1978) 1 SCC 405.
82 State of Orissa v. Binapani, AIR 1967 SC 1269 (para 12) : (1967) 2 SCR 625.
83 Cooper v. Wandsworth Bd., (1863) 14 CB 180.
India
6ii) Where, however, the constitutionality of the statute itself is challenged on the
ground that the omission of the Legislature to provide for such opportunity constitutes an
'unreasonable restriction' under Cls. (2)-(6) of Art. 19, and there is no ambiguity in its
text, it would not be legitimate on the part of the Court to read such a provision into the
statute to save it from unconstitutionality.
In a case where there is no ambiguity, in the text of the impugned statute, the Court has no jurisdiction
to re-write the statute, as a super-Legislature, to save it from unconstitutionality. We should remember
the observations of DOUGLAS J. on this point.84
"In the present case, the Wisconsin statute does not contain any provision whatsoever for notice and hearing.
There is no ambiguity in the State statute. There are no provisions which could fairly be taken to mean that
notice and hearing, might be given under some circumstances or under some construction but not under
others. Hence, the naked question ...is whether that Act on its face is unconstitutional". 85 In that case,
Wisconsin law provided that whenever someone by "excessive drinking" expresses himself or his family "to
want" or make himself "dangerous to the peace" Government officials could - without notice or hearing to the
drinker - post the drinker's name in retail liquor outlets as a person to whom sales or gifts of liquor are
forbidden for one year. Constantinean "successfully" challenged the posting of her name as not in compliance
with procedural due process. But this decision was distinguished in Paul v. Davis .86In that case, Davis was
arrested for shoplifting and his name was placed on a "list of active shoplifters" which was circulated to local
merchants. After the charges were dropped, Davis brought a federal civil rights act ion against the police
alleging that the circulation of his name had injured his reputation. It was contended that before the police
could validly deprive him of his liberty, interest in his representation, they were required to afford him
procedural due process. The court rejected his claim. The court said that acceptance of such an argument
would result in every legally cognizable injury which may have been inflicted by a State official acting under
"colour of law" establishing of Fourteenth Amendment and that would produce a vast constitutionalisation of
tort law, atleast with respect to tort claims against Government officials and the court was unwilling so to
expand the role of Constitutional Law. Thus, "reputation" alone apart from some more tangible interest such as
employment is neither 'liberty' nor 'property' by itself sufficient for the procedural protection of Due Process
clause. In distinguishing the two cases, in Paul's case, the court noted that Constantinean "of a right previously
held under State law" - the right to obtain liquor in common with the rest of the citizens. That added factor
53
significantly altered her status as a matter of State law. It was that altered legal status which combined with
injury resulting from defamation, justified the invocation of procedural safeguards.
If this were not so, no statutory provision could ever be declared to be unconstitutional on the ground
of procedural unreasonableness under Art. 19(2)-(6) for, in each case, the Court might relieve the
Legislature of its duty to conform to the requirements of the Constitution, by supplying its omissions by
a judicial finding87 as to whether the rules of natural justice should or should not be complied with, in
the facts of the particular case.
How the opportunity to be heard is to be offered
2. Since the requirements of natural justice vary according to nature of the
rights affected and other attending circumstances of each case, 88 it must be stated that
the Court cannot demand the same requirements in each case, to uphold the impugned
legislation as a 'reasonable' restriction. This may be discussed under the different heads
relating to natural justice.89 What are the requirements of natural justice cannot be laid
down in any straitjacket. This is a well settled position in law. The facts and
circumstances of the case in question would alone provide the answer whether natural
justice has been complied with or not. This is so well settled position by now that no
case law need be adverted to on this aspect.90 The principle of natural justice cannot be
examined in vacuum without reference to the fact situation in the case. 91 Where the facts
of the case are admitted, an enquiry would be an empty formality. 92
Requirements of natural justice are flexible and can be moulded in such a way as to take care of two
basic facts. (1) to make known the nature of the accusation, (2) to give opportunity to state the case.
Natural justice, is after all "no unruly horse, no lurking land mine." The unnatural expansion without
reference to realities can be "exasperating".93 The underlying principle to follow principle of natural
justice is to see that there is no failure of justice. It is this objective which should guide in applying the
rule to "varying situation". Where interest of State or public interest is involved, that will be relevant
circumstance to curtail of the rule of audi alteram partem. In such circumstances, Courts have to
balance public or State interest with the requirement of natural justice and arrive at appropriate
decision.94
The nature of hearing required is to be determined upon a construction of the governing statute, the
nature of function to be discharged by the authority in question, and the facts and circumstances of
each case. Natural justice is a flexible principle. The judges, anxious as always to preserve some
freedom of manoeuvre, emphasise that it is not possible to lay down rigid rules as to when the
principles of natural justice are to apply; nor as to their scope and extent. Everything depends upon
the subject matter. Their application resting as it does upon statutory implication, must always be in
conformity with the Scheme of the Act and the subject matter of the case. In the application of the
concept of fair play, there must be real flexibility.95 There must also have been some real prejudice to
the complainant; there is no such thing as a mere technical infringement of natural justice. 96
"Where, however, the question of propriety of procedure is raised in a hearing before a Tribunal other
than a court of law, there is no obligation to adopt regular forms of judicial procedure. It is sufficient
that the case has been heard in a judicial spirit and in accordance with the principles of natural justice.
In determining whether the principle of substantial justice has been complied with in the matters of
procedure, regard must necessarily be had to the nature of the issue to be determined and the
constitution of tribunal.1
86 (1976) 424 US 693.
87 As in Manick v. Union of India, AIR 1984 SC 1249 : (1984) 3 SCC 65 (para 10).
54
88 Local Govt. v. Arlidge, 1915 AC 120(HL) ; General Medical Council v. Spackman, 1943 AC 627 (638); N.P.T. Co. v.
N.S.T. Co., 1957 SCR 98 (106) : AIR 1957 SC 232.
89 Vide Author's Administrative Law.
90 Ashwini Kumar v. State of Bihar, AIR 1996 SC 2833 : (1996) 7 SCC 577; see also Ashwini Kumar v. State of Bihar,
AIR 1997 SC 1628 : (1997) 2 SCC 17.
91 Punjab Sind Bank v. Sakattar Singh, (2001) 1 SCC 214 : (2000) 7 SCALE 686.
92 Vivekanand Seth v. Chairman, J&K Bank Ltd., (2005) 5 SCC 337 : (2005) 4 SCALE 587; Gurjeevan Garewal (Dr.) v.
Dumitra Dash (Dr.), AIR 2004 SC 2530 : (2004) 5 SCC 263; State of Punjab v. Jagir Singh, (2004) 8 SCC 129 : AIR
2004 SC 4757; Karnataka State Road Transport Corpn. v. S.G. Koturappa, AIR 2005 SC 1933 : (2005) 3 SCC 409;
State of UP v. Neeraj Awasthi, (2006) 1 SCC 667 : (2005) 10 SCALE 286.
93 Shiv Sagar Tiwari v. Union of India, (1997) 1 SCC 444.
94 State Bank of Patiala v. S.K. Sharma, (1996) 3 SCC 364 : AIR 1996 SC 1669 : 1996 (II) LLJ 296.
95 Re. Pergamm Press Ltd.,1971 Ch. 388.
96 George v. Secretary of State for the Environment, (1979) 77 LGR 689. See Wade, Administrative Law, 9th Edn. at p.
497.
1 Local Government Board v. Arlidge, 1915 AC 120(HL) .
There is no universal rule as to the kind of hearing required by natural justice. But there is a minimum
which would be enforced even when a statute is silent provided the function is quasi-judicial.2 The
requirement of natural justice must depend on circumstances of the case, the nature of the enquiry,
the rules under which the tribunal is acting, the subject matter to be dealt with, and so forth. 3 In a
subsequent decision by House of Lords, it was held: "... the so-called rules of natural justice are not
engraved on tablets of stone. To use the phrase which better expresses the underlying concept, what
requirement of fairness demand when anybody, domestic, administrative or judicial, has to make a
decision which will affect the rights of individuals depends upon the character of the decision-making
body, the kind of decision it has to make and the statutory or other framework in which operates. In
particular, it is well established that when a statute has conferred on anybody the power to make
decision affecting individuals, the courts will not only require the procedure prescribed by a statute to
be followed, but well readily imply so much and no more to be introduced by way of additional
procedural safeguards as will ensure the attainment of fairness. 4 In Ajit Kumar Nag v. General
Manager (PJ) IOC Ltd., 5 the Supreme Court said: "We are aware of the normal rule that a person
must have a fair trial and a fair appeal and he cannot be asked to be satisfied with an unfair trial and
fair appeal. We are also conscious of the general principle that pre-decisional hearing is better and
should always be preferred to post-decisional hearing. We are further aware that it has been stated
that apart from Laws of Men, Laws of God also observe the rule of 'audi alteram partem'. It has been
stated that first hearing in human history was given in the Garden of Eden. God did not pass sentence
upon Adam and Eve before giving an opportunity to show cause as to why they had eaten the
forbidden fruit.6 But we are also aware that principles of natural justice are not rigid or immutable and
they cannot be imprisoned in a straitjacket. They must yield to and change with exigencies of
situation. They must be confined within their limits and cannot be allowed to run wild. It has been
stated, "To do a great right" after all "it is permissible sometimes" to do a little wrong". 7While
interpreting legal provision, a court of law cannot be unmindful of the hard realities of life. In our
opinion, the approach of the court in dealing with such cases should be pragmatic rather than
pedantic, realistic rather than doctrinaire, functional rather than formal and practical rather than
"precedented". Even in case where procedural requirements have not been complied with, the act ion
taken will not become ipso facto illegal unless it is shown that non-observance has prejudicially
affected the person i.e., would have made a difference in the result had the procedure been fully
complied with".8
But the flexibility of natural justice does not imply a variable standard of procedural justice. It was held:
"The well attested flexibility of natural justice does not mean that the court applies differential
standards, at will, but that the application of the principles (which, subject to known exception, are
55
constant) is necessarily as various as situations in which they are invoked. 9 In other words, the courts
apply the same principle in many different situations. 10
"The decision of the courts on the question whether the individual concerned has had a reasonable
opportunity of hearing or not in a particular situation depends ultimately upon the specific facts and
circumstances of each case including the nature of the decision-making body, the nature of the action
proposed, the grounds on which the act ion is proposed, the materials on which the allegations are
based, the attitude of the party against whom the action is proposed showing cause against such
proposed act ion, the nature of plea raised by him in reply, the requests for further opportunity that
may be made, his admissions by conduct or otherwise of some or all the allegations and such other
materials as may help in coming to a fair conclusion on the question. The courts discourage the idea
of subjecting hearing to legal strait jackets.
Fair hearing does not stipulate that proceedings be as formal as in a court. Natural justice is simple or
elementary justice as distinct from complex or technical justice, otherwise much of the justification of
having adjudicatory bodies outside the court system will evaporate in thin air. Courts do not like the
idea of confining the rules of natural justice within any rigid formula. The courts insist that what is
required is fair play in action. While over the time the courts have been expanding the parameters of
the applicability of natural justice or fairness in administrative process, the courts have at the same
time, exhibited an equivocal attitude on the question of norms of fair hearing to be observed by
adjudicatory bodies. Courts insist that natural justice is not fixed, but a flexible concept. The Supreme
Court has also said that since the rules of natural justice were not embodied rules, it is not possible
and practicable to precisely define the parameters of natural justice. 11 There is no invariable standard
of fair hearing and that each case has to be decided on its own merits. As the Supreme Court has
emphasised, the standards of natural justice vary with situation "contracting into a brief, even post-
decisional opportunity or expanding into trial type trappings". 12
The attempt is to keep the hearing procedure less formal consistent, however, with the minimal
fundamental concepts of procedural due process so as to promote justice and fair play. Adjudicating
bodies enjoy a good deal of freedom in ordering their hearing procedures, subject however, to overall
condition that the party affected gets a reasonable opportunity of presenting his case. Hearing
procedures thus vary from tribunal to tribunal and body to body." 13 The nature of hearing would vary
according to the nature of the function and what is just and fair exercise required in the context of
rights affected. In applying the test, the Court must examine the nature of the functions imposed by
the Statute and the requirements they are designated to meet. 14
4a) Trial procedure.--Though the procedure prescribed by some statutes is the

trial procedure as in a Court of law,15 there are areas where, owing to the nature of the
proceeding, legal evidence may not be available, or it is not possible to allow the person
to be affected to confront witnesses, speaking against him, e.g., in the matter of
externment of dangerous characters.
Where a member of a noble teaching profession is involved in sexual assault against girl students,
allowing them to be cross-examined is very hazardous which will expose the young girls of their
reputation. In such circumstances, they are not allowed to be cross-examined. 16
In that case the court observed that under Goondas Act which permit evidence collected behind the
back of the goonda and the goonda being merely asked to represent against main charges arising out
of evidences collected. Care is taken to see that witnesses who gave statements are not identified. In
such cases there is no question of the witnesses being cross-examined. No witness will come forward
to give evidence in the presence of the goonda. However unsavoury the procedure may appear to a
judicial mind, these are facts of life which are to be faced. 17
The Court has asserted that the right to cross-examine a witness is not an essential or integral part of
natural justice. Denial of opportunity to cross-examine a witness does not make the procedure
unreasonable as the witnesses would not like to come in the open to depose against bad character
due to fear of danger to their person or property, if they were confronted with the persons against
whom proceedings were sought to be taken.18 Even though in some cases not permitting to cross-
56
examine the witness may amount to breach of natural justice that by itself is no ground to set aside
the order unless the refusal has resulted in "real prejudice" to the aggrieved person. 19
In terms of Art. 311(2) of the Constitution, the procedural requirements which were required to be
followed were as under: (1) Opportunity to the officer concerned to deny his guilt and establish his
innocence which means he must be told that what the charges against him and the allegations on
which such charges are based. (2) He must be given a reasonable opportunity to cross-examine the
witnesses produced against him and examine himself or other witnesses on his behalf. (3) He must be
given opportunity to show cause that the proposed punishment would not be proper punishment to
inflict which means that the tentative determination of the competent authority to inflict one of the three
punishments must be communicated to him.20 It was further held then that if there is substantial
compliance of the said procedure the courts will not interfere and the delinquent officer also will have
to prove prejudice for non-compliance of the procedure. 21
2 NPT & Co. v. NST & Co., 1957 SCR 98; City Corner v. P. A. to Collector & Addl. Dt. Magistrate, Nellore, AIR 1976 SC
143 : (1976) 1 SCC 124.
3 Russell v. Duke of Norfolk, 1949 All ER 109.
4 Lloyd v. McMohan, 1987 AC 625.
5 (2005) 7 SCC 764 : AIR 2005 SC 4217.
6 See R v. University of Cambridge, (1723) 1 STR 557 : 93 ER 698.
7 Per Mukherjee CJ in Charan Lal Sahu v. UOI, AIR 1990 SC 1480: (1990) 1 SCC 613.
8 Haryana Financial Corpn. v. Kailash Chandra Ahuja, (2008) 9 SCC 31 : (2008) 10 SCALE 101; see also ECIL v. B.
Karunakar, (1993) 4 SCC 727 : AIR 1994 SC 1074.
9 R. v. Home Secretary exp. Moon, (1996) 8 Admn. LR 477.
10 See H.W.R. Wade & C.F. Forsyth, Administrative Law, 9th Edn., 2005 at pp. 498, 499.
11 Rattanlal Sharma v. Managing Committee, AIR 1993 SC 2155 : (1993) 4 SCC 10.
12 Mohinder Singh Gill v. CEC, AIR 1978 SC 851 : (1978) 1 SCC 405.
13 See M.P. Jain & S.N. Jain, Principles of Administrative Law, 14th Edn., Chapter VII, pp. 219-220.
14 Govt. of Mysore v. J. V. Bhat, (1975) 1 SCC 110 : AIR 1975 SC 596. See also New Prakash Transport Co. Ltd. v.
New Suwarna Transport Co. Ltd., AIR 1957 SC 232 : 1957 SCR 98; Ajit Kumar Nag v. General Manager (PJ) Indian Oil
Corporation Ltd., (2005) 7 SCC 764 : JT (2005) 8 SC 425; P. D. Agarwal v. State Bank of India, JT (2006) 5 SC 235.
15 e.g., Sections 90 of the (2) of the Representation of the People Act , 1951; Virindar v. State of Punjab, AIR 1956
SC 153.
16 Avinash Nagra v. Navodaya Vidyalaya Samithi, (1997) 2 SCC 534. See also Hira Nath Mishra v. Principal, Rajendra
Medical College, Ranchi, AIR 1973 SC 1260 : (1973) 1 SCC 805. See also S.K. Puri v. Principal, MA Mahavidyalaya,
Jabalpur, AIR 1973 MP 278; Hira Nath Mishra v. Rajendra Medical College, AIR 1973 SC 1260 : (1973) 1 SCC 805.
17 See also A. K. Roy v. Union of India, (1982) 1 SCC 271 : AIR 1982 SC 710.
18 Gurbachan Singh v. State of Bombay, AIR 1952 SC 221 : 1952 SCR 737; Hari v. Dy. Commr. of Police, AIR 1956
SC 559: 1956 SCR 506; Also see R v. Gaming Board exparte Beniam, (1970) 2 QBD 417. See also State of J&K v.
Bakshi Gulam Mohammed, AIR 1967 SC 122 : 1966 SCR 401(Supp) ; A.S. Motors (P) Ltd. v. UOI, (2013) 10 SCC
114 : (2013) 3 SCALE 15.
19 Telstar Travels (P) Ltd. v. Enforcement Directorate, (2013) 9 SCC 549 : (2013) 2 SCALE 519.
20 A. Sudhakar v. Post-Master General Hyderabad, (2006) 4 SCC 348.
21 See also Kuldeep Singh v. Commissioner of Police, (1999) 2 SCC 10.
The expression "reasonable opportunity" to show cause under Art. 311(2) has been interpreted to
mean that for the purpose of termination of service or reduction in rank under the constitutional
57
provision, the enquiry of the trial type will be required. It includes a right to the delinquent officer to
adduce evidence and to confront the evidence adduced against him. Even in cases to which Art.
311(2) is not applicable, the right to examine and cross-examine witnesses has been reduced from the
expression "reasonable opportunity," of being heard. 22
Outside Art. 311(2) of the Constitution or any statutory requirement in that behalf, the right to examine
or cross-examine witnesses is not an essential ingredient of natural justice or fair play, where a
decision has been arrived at in a just and objective manner with regard to relevant materials and
reasons and no real prejudice has been caused to the party aggrieved. 23 In that case, The Court said:
"The basic concept is fair play in action - administrative, judicial or quasi-judicial. The concept of fair
play in action must depend upon the particular lis, if there be any, between parties. If the credibility of
a person who has testified or given some information is in doubt or if the version or the statement of
the person who has testified is, in dispute, right to cross-examination must inevitably form part of fair
play in action, but if there is no lis regarding the facts, but only certain explanation of the
circumstances is required, there is no requirement of cross-examination to be fulfilled to justify fair
play in action. When on the question of fact there is no dispute, and no real prejudice has been
caused to a party aggrieved by an order, absence of any formal opportunity of cross-examination per
se does not invalidate or vitiate the decision arrived at fairly. This is more so when the party against
whom an order has been made does not dispute the facts and does not demand to test the veracity or
the credibility of the statement".24
The expression "reasonable opportunity" to show cause in Art. 311(2) of the Constitution has been
interpreted to mean that for the purpose of termination of service or reduction in rank under
constitutional provision, an enquiry of the trial type will be required in India, including the right of the
delinquent officer to adduce evidence and to confront the evidence adduced against him on the
assumption that the proceedings are quasipenal.25
Unless the relevant statute insists upon a trial type of hearing, natural justice would not require that
the witnesses examined by the enquiring authority should be examined in the presence of the Person
affected. Kanungo and Co. v. Collector of Customs, Calcutta, 26- a proceeding under Sea Customs Act
, 1978 (now repealed). It was held therein that he should be allowed to cross-examine such witnesses
from whom the authority had collected the materials.
In regard to procedure adopted for externment of person under city of Bombay Police Act , 1902 it
was held: "The law is certainly an extraordinary one and has been made only to meet those
exceptional cases where witnesses for fear of injury to their person or property are willing to depose
publicly against certain bad characters whose presence in certain areas constitute a menace to the
safety of the public residing therein. This object would be wholly defeated if a right to confront or
cross-examine these witnesses was given to the subject.27 In the above cases, right to cross-examine
witnesses was denied and found to be justified.28
There are types of intermediate cases where evidence is taken, witnesses are examined, etc., but
which does not come within trial types of cases. In such cases, ' fundamental rules ' of natural justice
must be followed.29 In trial types of case, where the principle of audi alteram partem applies "in its
fullest amplitude" means that a person against whom an order to his prejudice may be passed should
be informed of the allegations and charges against him, be given an opportunity of submitting his
explanation thereto, have the right to know the evidence, both oral and documentary, by which the
matter is proposed to be decided against him and to inspect the documents which are relied upon for
the purpose of being used against him, to have the witnesses who are to give evidence against him
examined in his presence and have the right to cross-examine them and to lead his own evidence,
both oral and documentary in his defence. The process of fair hearing need not, however, conform to
the judicial process in a court of law, because judicial adjudication of causes involves a number of
technical rules of procedure and evidence which are unnecessary and not required for the purpose of
fair hearing within the meaning audi alteram partem rule in a quasi-judicial and administrative enquiry.
Article 311(2) gives a constitutional mandate to the above principles by providing that a person
employed in a civil capacity under Union or the State shall not be dismissed or removed from service
or reduced in rank until an enquiry is held in which he is informed of the charges against him and he
has been given a reasonable opportunity of being heard in respect of these charges. To this extent the
58
"pleasure doctrine" enacted under Art. 310(1) is abridged. But in cases (1) where a government
servant is guilty of conduct deserving the penalty of dismissal, removal or reduction in rank which
conduct has led him being convicted on a criminal charge, (2) where the disciplinary authority is of the
view that it is not reasonably practicable to note an enquiry and (3) where the President or Governor
of a State is satisfied that in the interest of the security of the State, it is not expedient to hold an
enquiry, the above protection is completely taken away. The second proviso to Art. 311(2), even
though harsh, is based on public policy, public interest and public good. In such cases the principles of
natural justice before a decision is taken is restricted.30
Where oral hearing is given, it is laid down that a tribunal must: (a) consider all relevant evidence
which a party wishes to submit, (b) inform every party of all the evidence to be taken into account,
whether derived from another party or independently, (c) allow witnesses to be questioned, (d) allow
comment on the evidence and argument of the whole case. Failure to give the last two rights which
include the right of cross-examination... It is clear that the strict legal rules of evidence need not be
observed. But in cases where hearsay evidence is admitted, the same is to be tested by giving an
opportunity of cross-examination and if that is not possible, the right course is to exclude that hearsay
evidence from consideration.31
In all cases, the authority must act "honestly" and by "honest means". 32 The decision must be made in
good faith. Board of Education v. Rice, 1811 AC 179; Leeds Corpn v. Ryder, 33 which means it must not
be made in order to achieve some object other than that for which judicial or quasi-judicial power is
given.34 It must be arrived at without any bias and not in an arbitrary manner. 35
In such cases, therefore, the reasonableness of the restrictions imposed by the law cannot be
challenged on the ground that no witnesses were required to be examined against him 36 or that he
was not allowed to examine any witnesses.
In USA, s. 5 of the Administrative Procedure Act, 1946 specifically exempts cases relating to the
tenure of an officer or employee of the United States from the requirement of notice and hearing laid
down in the statute. The constitutional guarantee of due process (whether substantive or procedural)
has also been held inapplicable to the tenure of civil servants on the ground that the criterion for
retention or removal of subordinate employees is the confidence of superior executive officials. 37
22 Meenglas Tea Estate v. Workmen, AIR 1963 SC 1719 : 1963 II LLJ 392; Central Bank of India v. Karunamoy, AIR
1968 SC 266 : 1967 II LLJ 739.
23 K.L. Tripati v. SBI, AIR 1984 SC 273 : (1984) 1 SCC 43.
24 See also Surjeet Singh Chhabra v. UOI, (1997) 1 SCC 508 : AIR 1997 SC 2560.
25 UOI v. Verma, AIR 1957 SC 882 : 1958 SCR 499; see also Khem Chand v. UOI, AIR 1958 SC 300 : 1958 SCR
1080; State of MP v. Om Prakash, (1969) 3 SCC 775 : AIR 1970 SC 679; UOI v. Tulsiram, AIR 1985 SC 1416 : (1985) 3
SCC 398.
26 Kanungo and Co. v. Collector of Customs, Calcutta, AIR 1972 SC 2136.
27 Gurbachan Singh v. State of Bombay, (1952) 2 SCR 737 : AIR 1952 SC 221. See also Hira Nath Mishra v. Principal,
Rajendra Medical College, Ranchi, AIR 1973 SC (1973) 1 SCC 805.
28 See Avinash Nagra v. Navodaya Vidyalaya Samithi, (1997) 2 SCC 534; State of Maharashtra v. Saleem Hasan
Khan, (1989) 2 SCC 316 : AIR 1989 SC 1304.
29 State of Haryana v. Ram Kishan, AIR 1988 SC 1301 : (1988) 3 SCC 416.
30 Union of India v. Tulsiram Patel, (1985) 3 SCC 398.
31 H.W.R. Wade & C.F. Forsyth, Administrative Law, 9th Edn., 2005, pp. 518, 520.
32 Local Government Board v. Arlidge, 1915 AC 120 (House of Lords).
33 Board of Education v. Rice, 1911 AC 179; Leeds Corpn. v. Ryder, 1907 AC 420 (House of Lords).
34 Marshall v. Corporation of Blackport, 1935 AC 16.

59
35 Chingleput Bottlers v. Majestic Bottling Co., AIR 1984 SC 1030.
36 Hari v. Dy. Commr., 1956 SCR 506 (524) : AIR 1956 SC 559; Gurbachan v. State of Bombay, 1952 SCR 737 : AIR
1952 SC 221.
37 Washington v. McGrath, (1951) 341 US 923; Croghan v. US, (1950) 89 F. 1002(Supp) . See D.D. Basu,
Administrative Law, 6th Edn. at p. 291.

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1b) A retrospective legislation is invalid if it seeks to take away a vested

97 Society for Propagation of Gospel v. Pawlet, (1830) 4 Pet 480.

100 Munn v. Illinois, (1876) 94 US 113.

101 Munn v. Illinois, (1876) 94 US 113.

1B) India.--In India, there is no specific limitation against retrospective legislation

104 U.S. Manufacturers v. National Bank, (1960) 363 US 194 (200).

105 U.S. v. Jacob, (1939) 306 US 363 (367).

108 Flemming v. Rhodes, (1947) 331 US 100 (107).

109 Flemming v. Rhodes, (1947) 331 US 100 (107).

110 Phillips v. Eyre, 1870 LR 6 QB.

111 R v. Home Secretary exparte Bhajan Singh, 1976 QB 198.

6 State v. Gian Singh, AIR 1999 SC 3450 : (1999) 9 SCC 312.

7 R. v. Kirk, (1985) 1 All ER 453(EEC Court) .

8 Re Barretto,(1994) 1 All ER 447.

2i) On 27-11-1956, the Supreme Court22 interpreted Sections 26F of the

18 AIR 2003 SC 1329 : (2003) 5 SCC 23.

19 AIR 1997 SC 3828 : (1997) 6 SCC 623.

22 Hariprasad v. Divekar, 1957 SCR 121 : AIR 1957 SC 121.

23 Hariprasad v. Divekar, 1957 SCR 121 : AIR 1957 SC 121.

33 Ujagar Prints v. UOI, AIR 1989 SC 516 : (1989) 3 SCC 488.

39 Norottamdas v. State of M.P., AIR 1964 SC 1667 : (1964) 7 SCR 820.

41 Cf. Ogden v. Saunders, (1827) 12 Wh 213.

43 Jefferson City Gaslight Co. v. Clark, (1878) 95 US 644.

2b) In Ramakrishna v. State of Bihar, 48 our Supreme Court has acknowledged

54 Sutherland, Statutes and Statutory Construction, 1943, pp. 131-133.

55 Sutherland, Statutes and Statutory Construction, 1943, pp. 131-133.

61 AIR 1963 SC 1667 : (1964) 1 SCR 897.

62 AIR 1964 SC 1581 : (1964) 7 SCR 185.

63 AIR 1972 SC 2455 : (1973) 2 SCR 54.

75 AIR 1955 SC 123 : (1955) 1 SCR 613.

79 Patel v. Municipal Commr. (1964) 2 SCR 608 : AIR 1967 SC 1742.

93 AIR 1972 SC 2205 : (1972) 2 SCC 239.

Learned author further elaborates by saying:

Learned author further says:

Learned author concludes by saying:

94 AIR 1974 SC 1300 : (1974) 4 SCC 656 : (1974) 3 SCR 706.

95 AIR 1951 SC 128 : 1951 SCR 228.

96 See H.M. Seervai, Constitutional Law of India, 4th, Edn.

97 AIR 1958 SC 468 : 1958 SCR 1422.

99 See Journal of Indian Law Institute, Vol. 16, 1974.

7 R.C. Tobacco (P) Ltd. v. Union of India, (2005) 7 SCC 725.

1V. In the absence of a constitutional prohibition such as Art. 20(1), there is

15 P. Venugopalan v. UOI, (2008) 5 SCC 1 : (2008) 7 SCALE 255.

16 State of HP v. Narain Singh, (2009) 13 SCC 165 : (2009) 9 SCALE 326.

20 Ohio Bell Co. v. PLUC, (1973) 301 US 292.

21 Holden v. Hardy, (1898) 169 US 366 (supra).

22 Joint Anti-Fascist Refugee Commission v. McGrath, (1951) 341 US 123.

23 See Craig R. Ducat, Constitutional Interpretation, 8th Edn., p. 475.

Learned author CRAIG R. DUCAT further says:

2B) India.--It is now established that, subject to restrictions to be mentioned

1. Opportunity to be heard

1. Subject to exceptions to be noted hereafter, a citizen's right of speech 29 or

24 Mathews v. Elridge, 424 US 319 (1976).

25 Arnett v. Kennedy, (1974) 416 US 134.

4i) For the curtailment of the right of association.32

33 Jagannath v. State of Orissa, 1954 SCR 1046 : AIR 1954 SC 400.

35 Babul Chandra v. Patna High Court, AIR 1954 SC 524.

40 UOI v. Tulsiram Patel, AIR 1985 SC 1415 : (1985) 3 SCC 398.

41 See Massey, Administrative Law, 6th Edn., p. 164.

47 See Bonham's case,(1610) 8 Co. Rep. 118.

50 AIR 1974 SC 1471 : (1974) 2 SCC 121.

52 Shekhar Ghosh v. Union of India, (2007) 1 SCC 331.