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From Duty to Act Judicially to Duty to Act Fairly*
by Justice C.K. Thakker
Cite as : (2003) 4 SCC (Jour) 1
Classification of administrative functions
It is generally accepted that there are three categories of governmental functions; (i) legislative; (ii) executive; and (iii) judicial. Usually they are performed by three main organs of the Government in a State; (i) legislature; (ii) executive; and (iii) judiciary. Whereas the legislature enacts a law, the executive administers it and the judiciary interprets and declares what the law is.
The real difficulty, however, lies in distinguishing legislative, executive and judicial functions. No precise, perfect or scientific test has so far been evolved which distinguishes these functions from one another. A further difficulty arises where a single proceeding may combine more than one function. It is, therefore, not easy to classify them though several attempts have been made by jurists and authors on constitutional and administrative law.
Judicial functions
According to the Committee on Ministers' Powers,1 a pure judicial function presupposes an existing dispute between two or more parties and it involves four requisites;
(1) the presentation (not necessarily oral) of their case by the parties to the dispute;
(2) if the dispute is a question of fact, the ascertainment of fact by means of evidence adduced by the parties to the dispute and often with the assistance of argument by or on behalf of the parties, on evidence;
(3) if the dispute between them is a question of law, the submission of legal argument by the parties; and
(4) a decision which disposes of the whole matter by finding upon the facts in dispute and an application of the law of the land to the facts so found, including, where required, a ruling upon any disputed question of law.2
Quasi-judicial functions
A quasi-judicial function also presupposes an existing dispute between two or more parties and involves (1) and (2) above but does not necessarily involve (3) and never involves (4). The place of (4) is taken by administrative action, the character of which is determined by the choice of administration (usually by Minister).3
Administrative and quasi-judicial functions
Acts of an administrative authority may be purely administrative or may be legislative (or quasi-legislative) or judicial (or quasi-judicial) in nature. Decisions which are purely administrative stand on a wholly different footing from judicial as well as quasi-judicial decisions and they must, therefore, be distinguished. This is a very difficult task. "Where does the administrative end and the judicial begin? The problem here is one of demarcation and the courts are still in the process of working it out."4
Duty to act judicially
The real test which distinguishes a quasi-judicial act from an administrative act is the duty to act judicially, and therefore, in considering whether a particular statutory authority is a quasi-judicial body or merely an administrative authority, has to be ascertained whether the statutory authority has the duty to act judicially.
The question which one has to consider is as to when the duty to act judicially arises. As observed by Parker, J., "the duty to act judicially may arise in widely different circumstances which it would be impossible, and, indeed, inadvisable, to attempt to define exhaustively"5  (emphasis supplied)
Whenever there is an express provision in the statute itself which requires the administrative authority to act judicially, the action of such authority would necessarily be a quasi-judicial function. But this proposition does not say much, for it is to some extent a tautology to say that the function is quasi-judicial (or judicial) if it is to be done judicially.6 Therefore, the real question is: is it necessary that for an action to be quasi-judicial, the relevant statute must expressly require the administrative authority to act judicially?
Before we discuss this question, it will be necessary to quote the following observations of Atkin, L.J. in R. v. Electricity Commrs.7, as subsequent development of law on this aspect is based on varying interpretations placed thereon;
"Whenever any body of persons having legal authority to determine questions affecting the rights of subjects and having the duty to act judicially act in excess of their legal authority, they are subject to the controlling jurisdiction of the King's Bench Division exercised in these writs."8 (emphasis supplied)
In 1928, Lord Hewart, C.J.9 read the aforesaid observations to mean that the duty to act judicially should be an additional requirement existing independently of the "authority to determine questions affecting the rights of the subjects"—something superadded to it. The gloss placed by Lord Hewart, C.J. on the dictum of Lord Atkin, L.J. was improper and it stultified the growth of the principles of natural justice. It has led to many anomalies and inequitable situations. In every case that came before it, the court had to make a search for duty to act judicially in interpreting the provisions of the statute which resulted in confusion and uncertainty in law. But as Wade10 rightly says, in the correct analysis it was simply a corollary, the automatic consequence of the power "to determine questions affecting the rights of subjects". Where there is any such power, there must be the duty to act judicially.
Let us consider some leading decisions.
In Nakkuda Ali v. Jayaratne11, the Controller of Textiles cancelled a licence of a textile dealer on the ground that the holder was unfit to continue as a dealer. Before passing the impugned order, no hearing was afforded by the Controller. In an action against the Controller, the Privy Council held that the action by the Controller of cancellation of a licence was an executive action of withdrawal of privilege and the dealer had no right to hold the licence and the Controller was not under a duty to act judicially.12
Similarly, in R. v. Metropolitan Police Commr., ex p Parker13, a cab-driver's licence was revoked on the ground of alleged misconduct without giving opportunity to him to rebut the allegations. The Court upheld the order on the ground that the licence was merely a permission which could be revoked at any time by the grantor and in doing so, he was not required to act judicially.
But as Schwartz14 says, for an individual to lose his licence is to suffer an "economic death sentence" and is wholly contrary to the spirit of Anglo-American administrative law and this is an unwarranted restriction upon the application of the rules of natural justice.
de Smith15 also says:
"Demolition of a property-owner's uninhabitable house might be for him a supportable misfortune; deprivation of a licence to trade might mean a calamitous loss of livelihood; but the judicial flavour detected in the former function was held to be absent from the latter. The decision, whilst not unique, was inconsistent with the general attitude of the English courts towards the licensing and regulation of trades and occupations and in general towards the right to earn one's living."
(emphasis supplied)
The law was finally settled in the historic case of Ridge v. Baldwin16, wherein Lord Reid pointed out how Hewart, C.J. misunderstood the observations of Atkin, L.J. and observed:
"If Lord Hewart meant that it is never enough that a body simply has a duty to determine what the rights of an individual should be, but that there must always be something more to impose on it a duty to act judicially before it can be found to observe the principles of natural justice, then that appears to me impossible to reconcile with the earlier authorities."17 (emphasis supplied)
In Ridge16, the House of Lords, reversing the decision of the Court of Appeal held by majority that the power of dismissal of an employee couldn't be exercised without giving reasonable opportunity of being heard and without observing the principles of natural justice. According to Their Lordships, the duty to act judicially need not necessarily be a prerequisite for issuance of a writ of certiorari, and the judgment in Nakkuda Ali11 was given under a serious misapprehension and cannot be regarded as authoritative.
Province of Bombay v. Khushaldas Advani6 was the first leading case decided by the Supreme Court on the point. Under Section 3 of the Bombay Land Requisition Ordinance, 1947, the Provincial Government was empowered to requisition any land for public purpose "if in the opinion of the Government" it was necessary or expedient to do so. It was contended that the Government while deciding whether requisition was for a public purpose, had to act judicially. The High Court of Bombay18 upheld the said contention. Reversing the decision of the High Court, the Supreme Court held by majority19 that the governmental function of requisitioning property was not quasi-judicial, for the decision was based on the "subjective satisfaction" of the Government and it was not required to act judicially.
Das, J. (as he then was), however, rightly deduced the following principles:
(i) if a statute empowers an authority, not being a court in the ordinary sense, to decide disputes arising out of a claim made by one party under the statute which claim is opposed by another party and to determine the respective rights of the contesting parties who are opposed to each other there is a lis and prima facie, and in the absence of anything in the statute to the contrary it is the duty of the authority to act judicially and the decision of the authority is a quasi-judicial act; and
(ii) if a statutory authority has power to do any act which will prejudicially affect the subject, then, although there are not two parties apart from the authority and the contest is between the authority proposing to do the act and the subject opposing it, the final determination of the authority will yet be a quasi-judicial act provided the authority is required by the statute to act judicially.20
The minority, however, construing the provision of the Ordinance, held that the duty to act judicially was implicit.21
In Radeshyam Khare v. State of M.P.22, the Supreme Court was called upon to consider the C.P. and Berar Municipalities Act, 1922 which inter alia contained two provisions. Whereas Section 53-A empowered the Government to supersede a municipality for a temporary period not exceeding 18 months for securing "a general improvement in the administration of the municipality", Section 57 empowered the Government to suspend the municipality for an indefinite period for an incompetent or ultra vires action. Section 57 expressly provided for a reasonable opportunity to be given to the municipality before making an order, while Section 53-A did not contain such provision. The majority23 held that unlike Section 57, the power under Section 53-A was administrative in nature. Subba Rao, J. (as he then was) in his dissenting judgment held that the order under Section 53-A was also quasi-judicial in nature.
It is submitted that before Ridge v. Baldwin16, State of Orissa v. Dr Binapani Dei24, A.K. Kraipak v. Union of India25, and several other cases, Subba Rao, J. anticipated the development of law on the point and observed: (SCR p. 1500)
"The concept of a 'judicial act' has been conceived and developed by the English Judges with a view to keep the Administrative Tribunals and authorities within bounds. Unless the said concept is broadly and liberally interpreted, the object will be defeated, that is, the power of judicial review will become innocuous and ineffective. The comprehensive phraseology of Article 226 of the Constitution supports rather than negatives the liberal interpretation of that concept. The argument that the court shall not obstruct the smooth working of the administrative machinery does not appeal to me, for the simple reason that the exercise of the power of judicial review or, to be more precise, the existence of such power in court—for hardly one act in thousands comes before court—eliminates arbitrary action and enables the administrative machinery to function without bias or discrimination. With this background, the principles, as I apprehended then, may be concisely stated thus: Every act of an administrative authority is not an administrative or ministerial act. The provisions of a statute may enjoin on an administrative authority to act administratively or to 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 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 provisions of the statute. It may be gathered from the cumulative effect of the nature of the rights affected, the manner of the disposal provided, the objective criterion to be adopted, the phraseology used, the nature of the power conferred or the duty imposed on the authority or other indicia afforded by the statute."26
(emphasis supplied)
In State of Orissa v. Dr Binapani Dei24, speaking for the Court, Shah, J. (as he then was) observed:
"Duty to act judicially would, therefore, arise from the very nature of the function intended to be performed: it need not be shown to be superadded. 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."27 (emphasis supplied)
In the well-known decision A.K. Kraipak v. Union of India25, Hegde, J. observed:
"13. The dividing line between an administrative power and a quasi-judicial power is quite thin and being gradually obliterated. For determining whether a power is an administrative power or a quasi-judicial power one has to look to the nature of the power conferred, the person or persons on whom it is conferred, the framework of the law conferring that power, the consequences ensuing from the exercise of that power and the manner in which that power is expected to be exercised. Under our Constitution the rule of law pervades over the entire field of administration. Every organ of the State under our Constitution is regulated and controlled by the rule of law. In a welfare State like ours it is inevitable that the jurisdiction of the administrative bodies is increasing at a rapid rate. The concept of rule of law would lose its validity if the instrumentalities of the State are not charged with the duty of discharging their functions in a fair and just manner. The requirement of acting judicially in essence is nothing but a requirement to act justly and fairly and not arbitrarily or capriciously."28 (emphasis supplied)
Duty to act fairly
The epoch-making decision in Ridge v. Baldwin16, expanded right of hearing to decisions having civil consequences. Many functions which were considered "administrative" pre-Ridge, were held to be "quasi-judicial" post-Ridge and principles of natural justice were applied.
But the courts were conscious that many functions performed by Government and other statutory authorities were "purely administrative", and neither judicial nor quasi-judicial.
Keeping in view that fact and also that "natural justice is nothing else but fairness in action",29 another concept developed viz. that there must be "duty to act fairly" to denote an implied procedural obligation—the contents of which may fall considerably short of the essential elements of a trial or a formal inquiry—accompanying the performance of a function that cannot, without overly straining linguistic usage, be characterised as "judicial in nature".
In H.K. (An infant), Re30, an Immigration Officer refused to admit a boy from Pakistan on the ground that he appeared to be over sixteen years of age and, hence, was not entitled to entry. No hearing was afforded before arriving at the decision. Parker, C.J. held that even if an Immigration Officer was acting administratively and not in a judicial or quasi-judicial capacity, "he must nevertheless act fairly".
Wade31 notes that this decision supplied such a simple and attractive basis for natural justice that it was followed with alacrity and its principle was adopted in several cases.
In R. v. Commission for Racial Equality32, Lord Diplock said:
"Where an act of Parliament confers upon an administrative body functions which involve its making decisions which affect to their detriment the rights of other persons or curtail their liberty to do as they please, there is a presumption that Parliament intended that the administrative body should act fairly towards those persons who will be affected by their decisions." (emphasis supplied)
It is under this head of "duty to act fairly" that the doctrine of legitimate expectations developed.33 As held by Lord Denning in Schmidt v. Secy. of State for Home Affairs34, even in cases, where there is no legal right, a person may still have "legitimate expectation" of receiving the benefit or privilege. In such cases, the court may protect his "expectation" by invoking principle of "fair play in action". The court may not insist that an administrative authority too act judicially, but may still insist that it too act fairly.
In Pearlberg v. Varty35, Lord Pearson stated:
"A tribunal to whom judicial or quasi-judicial functions are entrusted is held to be required to apply those principles (i.e. the rules of natural justice) in performing those functions unless there is a provision to the contrary. But where some person or body is entrusted by Parliament with administrative or executive functions there is no presumption that compliance with the principles of natural justice is required although, as 'Parliament is not to be presumed to act unfairly', the courts may be able in suitable cases (perhaps always) to imply an obligation to act with fairness."36
In the leading case of Keshav Mills Co. Ltd. v. Union of India37, a textile mill was closed down. A Committee was appointed by the Government of India to investigate into the affairs of the mill-company under the Industries (Development and Regulation) Act, 1951. After affording opportunity to the Company, a report was prepared by the Committee and submitted to the Government. A copy of the report, however, was not supplied to the Company. On the basis of the report, the Government took over the management of the Company. The said action was challenged by the company inter alia on the ground of violation of principles of natural justice inasmuch as no copy of the report submitted by the Committee to the Government was supplied to the Company nor was hearing afforded before finally deciding to take over the management.
Rejecting the contention and observing that no prejudice had been caused to the mill-company, the Supreme Court, did not interfere with the order.
Speaking for the Court, A.K. Mukherjea, J. stated:
"8. The second question, however, as to what are the principles of natural justice that should regulate an administrative act or order is a much more difficult one to answer. We do not think it either feasible or even desirable to lay down any fixed or rigorous yardstick in this manner. The concept of natural justice cannot be put into a straitjacket. It is futile, therefore, to look for definitions or standards of natural justice from various decisions and then try to apply them to the facts of any given case. The only essential point that has to be kept in mind in all cases is that the person concerned should have a reasonable opportunity of presenting his case and that the administrative authority concerned should act fairly, impartially and reasonably. Where administrative officers are concerned, the duty is not so much to act judicially as to act fairly."38 (emphasis supplied)
In Mohinder Singh Gill v. Chief Election Commr.39, after considering several cases, Krishna Iyer, J. stated:
"48. Once we understand the soul of the rule as fairplay in action—and it is so—we must hold that it extends to both the fields. After all, administrative power in a democratic set-up is not allergic to fairness in action and discretionary executive justice cannot degenerate into unilateral injustice. Nor is there ground to be frightened of delay, inconvenience and expense, if natural justice gains access. For fairness itself is a flexible, pragmatic and relative concept, not a rigid, ritualistic or sophisticated abstraction. It is not a bull in a china shop, nor a bee in one's bonnet. Its essence is good conscience in a given situation; nothing more—but nothing less."40 (emphasis supplied)
In M.S. Nally Bharat Engg. Co. Ltd. v. State of Bihar41, the Government, on an application by a dismissed workman transferred his case from one Labour Court to another Labour Court without issuing a notice or giving opportunity to the employer.
Setting aside the order and referring to several cases, the Supreme Court invoked the "acting fairly" doctrine. The Court stated:
"Fairness, in our opinion, is a fundamental principle of good administration. It is a rule to ensure the vast power in the modern State is not abused but properly exercised. The State power is used for proper and not for improper purposes. The authority is not misguided by extraneous or irrelevant considerations. Fairness is also 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. Fairness is thus a prime test for proper and good administration. It has no set form or procedure. It depends upon the facts of each case. ... Indeed, it cannot have too much elaboration of procedure since wheels of administration must move quickly."42
(emphasis supplied)
Quoting the observations of Paul Jackson, the Court said:
"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 Jackson 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 the duty to observe natural justice is inapplicable'."43 (emphasis supplied)
Importance
As it has been said,44 the "acting fairly" doctrine proved useful as a device for evading confusion which prevailed in the past. "The courts now have two strings to 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".
de Smith45 states:
"The principal value of the introduction of the duty to act fairly into the court's vocabulary has been to assist them to extend the benefit of basic procedural protections to situations where it would be both confusing to characterise as judicial or even quasi-judicial, the decision-makers' functions, and inappropriate to insist on a procedure analogous to a trial."
Difficulties
At the same time, however, the doctrine has created certain confusions. What is the difference between "natural justice" and "fairness"? If natural justice is nothing more than "fair play in action", are both concepts synonymous? If it is so, why distinction is sought to be made between the two? Does "fairness" apply only to the sphere of procedure or would it extend to substantive laws as well?
An apprehension was also voiced that the test of fairness may nullify, at least to a large extent, the effect of "all-embracing test of fairness, reflected in natural justice". It would thereafter be very easy for the court to narrow the scope of "acting with fairness to the point of extinction of natural justice".
Conclusions
In the opinion of the author, however, there is no real danger that the doctrine of "fairness" may become "all-pervasive replacing natural justice totally and completely" as expressed in some corners.46 Though in UK, distinction has been made between procedural law and substantive law and it has been held that the doctrine of "acting fairly" would apply only to the domain of procedure,47 in India "unfair procedure" amounts to "arbitrary" and "unreasonable" exercise of power. Such act would attract Articles 14, 19 and even 21 of the Constitution as interpreted in State of W.B. v. Anwar Ali Sarkar48, S.G. Jaisinghani v. Union of India49, E.P. Royappa v. State of T.N.50, Maneka Gandhi v. Union of India51 and several other cases52
To the author, therefore, it is clear that "acting fairly" is an additional weapon in the armoury of the court. It is not intended to be substituted for another much more powerful weapon "acting judicially". Where, however, the former ("acting judicially") cannot be wielded, the court will try to reach injustice by taking resort to the latter—less powerful weapon ("acting fairly").
- Report of the Committee on Ministers' Powers, 1932, CMD 4060 (4073-74).
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- Ibid.; see also Cooper v. Wilson, (1937) 2 KB 309 (340) : (1937) 2 All ER 726 : 106 LJKB 728.
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- For detailed and analytical discussion, see C.K. Thakker: Administrative Law, (1996), pp. 48-50.
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- McDermott, cited by Basu: Commentary on the Constitution of India, (1975), Vol. B, p. 151.
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- R. v. Manchester Legal Aid Committee, (1952) 1 All ER 480 (489) : (1952) 2 QB 413; see also Indian Sugar and Refineries Ltd. v. Amarvathi Service Coop. Society, (1976) 1 SCC 318 (323).
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- Das, J. in Province of Bombay v. Khushaldas S. Advani, AIR 1950 SC 222 : 1950 SCR 621.
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- (1924) 1 KB 171 : 93 LJKB 390 : 130 LT 164
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- Ibid., at p. 205 (KB).
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- R. v. Legislative Committee of the Church Assembly, (1928) 1 KB 411 (415).
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- Administrative Law, (7th Edn.), p. 632.
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- 1951 AC 66 : 66 TLR 214
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- Ibid., at pp. 78-79 (AC).
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- (1953) 1 WLR 1150 : (1953) 2 All ER 717 : 117 JP 440 : 97 SJ 590
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- Administrative Law, p. 115.
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- Judicial Review of Administrative Action, 1980, p. 172.
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- 1964 AC 40 : (1963) 2 All ER 66 : (1963) 2 WLR 935 (HL)
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- Ibid., at p. 75 (AC) : 77 (All ER)
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- P.V. Rao v. Khushaldas S. Advani, AIR 1949 Bom 277 : (1949) 51 Bom LR 342.
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- Kania, C.J., Fazl Ali, Patanjali Sastri and Das, JJ.; Mahajan and Mukherjea, JJ. (contra).
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- AIR 1950 SC 222 (259-60) : 1950 SCR 621
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- Ibid., pp. 231-49 (AIR).
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- AIR 1959 SC 107 : 1959 SCR 1440
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- S.R. Das, C.J., Bhagwati, S.K. Das and Kapur, JJ. (Subba Rao, J. contra)
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- AIR 1967 SC 1269 : (1967) 2 SCR 625
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- (1969) 2 SCC 262 : AIR 1970 SC 150 : (1970) 1 SCR 457
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- AIR 1959 SC 107 (133-34) : 1959 SCR 1440
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- Supra fn 24 at p. 1271 (AIR).
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- Supra fn 25, at pp. 268-69 (SCC)
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- Wade: Administrative Law (7th Edn.), p. 513; de Smith: Judicial Review of Administrative Action (5th Edn.), pp. 397-98.
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- (1967) 1 All ER 226: (1967) 2 QB 617 : (1967) 2 WLR 962
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- Wade: Administrative Law (7th Edn.), p. 514; see also de Smith: Judicial Review of Administrative Action (5th Edn.), p. 398.
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- 1982 AC 779 : (1982) 3 WLR 159 : 126 SJ 449 (HL)
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- For detailed discussion of the doctrine, see C.K. Thakker: Lectures on Administrative Law (1998), pp. 277-84.
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- (1969) 1 All ER 904 : (1969) 2 Ch D 149
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- (1972) 1 WLR 534 : (1972) 2 All ER 6 : 116 SJ 335
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- Ibid., at p. 547 (WLR).
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- (1973) 1 SCC 380
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- Ibid., at p. 387 (SCC)
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- (1978) 1 SCC 405
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- Ibid., at p. 434 (SCC)
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- (1990) 2 SCC 48
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- Ibid., at pp. 55-56 (SCC)
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- Ibid., at p. 55 (SCC).
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- Wade: Administrative Law (7th Edn.), pp. 315-16; de Smith: Judicial Review of Administrative Action (5th Edn.), pp. 397-99.
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- de Smith: Judicial Review of Administrative Action (5th Edn.), p. 399.
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- Wade: Administrative Law (7th Edn.), pp. 513-14; Paul Jackson: Natural Justice (1979), pp. 102-03; Prof. Northey: The Aftermath of the Furnell Decision, (1974) 6 NZULR 19; Jain: Administrative Law, (1996); pp. 249-51; de Smith: Judicial Review of Administrative Action (5th Edn.), pp. 398-99.
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- Chief Constable of North Wales Police v. Evans, (1982) 1 WLR 1155 : (1982) 3 All ER 141 (HL); HTV Ltd. v. Police Commissioner, 1976 ICR 170 : 120 SJ 298; R. v. Secretary of State for Trade, 1981 QB 19 : (1980) 3 WLR 1 : (1980) 3 All ER 28; McInnes v. Onslow-Fane, (1978) 1 WLR 1520 : (1978) 3 All ER 217; see also Wade: Administrative Law (7th Edn.), pp. 515-16.
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- AIR 1952 SC 75 : 1952 SCR 284
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- AIR 1967 SC 1427 : (1967) 2 SCR 703
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- (1974) 4 SCC 3
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- (1978) 1 SCC 248
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- Mohinder Singh Gill v. Chief Election Commr., (1978) 1 SCC 405; Union of India v. Tulsiram Patel, (1985) 3 SCC 398; Delhi Transport Corpn. v. DTC Mazdoor Congress, 1991 Supp (1) SCC 600.
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