Administrative Law

Class Note 7

Shuvro Prosun Sarker

B.A. LL.B (Calcutta), LL.M (NUJS), PhD Candidate (NUJS)
Assistant Professor
School of Law, KIIT University

Disclaimer: This class note is skeletal in nature and

comprising only points of discussions. So this note should not
be construed as sample answers or model answers for the
purpose of any examination.

Shuvro Prosun Sarker, 2014.

Magna Carta (1215)

It included the fundamental acknowledgement

that the king was not above the law.
King John promised that no free man shall be
taken or imprisoned or in any way destroyed,
nor will we go upon him nor send upon him,
except by the lawful judgment of his peers or by
the law of the land.

Dr. Bonhams Case

8 Co. Rep. 114 (Court of Common Pleas) [1610]

Chief Justice Coke held that court could declare any
act of the parliament void if it made a man judge
of his own cause, or was otherwise against
common right and reason.

Due Process- US

5th Amendment of the US Constitution- 1791.

Introduced the due process clause.
Due process clause says, to the federal government
that no one shall be "deprived of life, liberty or
property without due process of law.
14th Amendment (1868), uses the same eleven words,
called the Due Process Clause, to describe a legal
obligation of all states.

Substantive Due Process

It is a principle which allows federal courts to protect
certain fundamental rights from government
interference under the authority of the due process
clause of the 5th and 14th Amendments to the US
Constitution.

It aims to protect individuals against majoritarian

policy enactments that exceed the limits of
governmental authoritythat is, courts may find
that a majority's enactment is not law, and cannot
be enforced as such, regardless of how fair the
processes of enactment and enforcement actually
are.

Procedural Due Process

Aims to protect individuals from the coercive

power of government by ensuring that
adjudication processes under valid laws are fair
and impartial (e.g., the right to sufficient notice,
the right to an impartial arbiter, the right to give
testimony and admit relevant evidence at
hearings).

Natural Justice

In simple term is means the natural sense of what is

right and wrong.
Requirements of natural justice
1. Impartial persons acting fairly,
2. Without prejudice or bias.
Two fundamental rules of natural justice1. A man must not be the judge of his own cause/ No
bias.
2. A mans defence must be heard fairly.

A man must not be the judge of his own cause/

No Bias
1. Personal Bias- arises from certain relationship
equation between the deciding authority and
the parties.
Mineral Development Corpn Ltd vs. State of Bihar
AIR 1960 SC 468

2. Pecuniary Bias- any financial interest would

vitiate administrative action.
R vs. Bow Street Metropolitan Stipendiary
Magistrate

(1999) 1 ALL ER 577 (HL)

***Economic liberalization, free market, share
and bias of a judge.

3. Subject matter bias- if the deciding officer or

judge is directly or otherwise involved in the
subject matter of the case.
G. Nageswara Rao vs. A.P. SRTC

AIR 1959 SC 308

4. Departmental Bias

AgainG. Nageswara Rao vs. A.P. SRTC

AIR 1959 SC 308
Hari K Gawali vs. Dy. Commissioner of Police
AIR 1956 SC 559

***Hearing Officers and Inspectors- US and UK

5. Policy Notion Bias- preconceived policy notions

6. Class bias/ personality bias

7. Bias on account of inflexibility

A mans defence must be heard fairly / audi

alterum partem
A person must be given an opportunity to defend
himself.

R vs. University of Cambridge (Dr. Bentley Case)

(1723) I Str 757

Requirements of Fair Hearing

1. Acting Judicially- duty to act fairly in hearings.
2. Right to notice- adequate information on the
case.
3. Right to know the evidence.
4. Right to present case and evidence
5. No evidence at the back of other party
6. Report of the enquiry to be shown at the other
party
7. Reasoned decision

Indian Constitution and Natural Justice

The principles of natural justice have come to be

recognized as being a part of the guarantee
contained in Article 14 of the Constitution
because of the new and dynamic interpretation
given by the Supreme Court to the concept of
equality, which is the subject matter of that
Article.

The constitution of India, while guaranteeing right

to life and personal liberty in Article 21 in the
same under procedure established by law, the
expression procedure established by law was
substituted by constituent Assembly for due
process clause as embodies in American
constitution Art. 21 of the constitution envisage.

In the A.K. Gopalans case, (AIR 1950 S.C 27) Supreme

Court held that procedure established by law meant
procedure prescribed by the statute.
Obviously it implies that law enacted by the state need
not be in conformity with the principles of natural
justice. Law in Art. 21 meant statute law and nothing
more. In case of a procedure prescribed by law it
cannot be questioned on the ground that it violates
principles of natural justice. There is no guarantee
that it will not enact a law contrary to the principles
of A learned author was prompted to observe that
this position of Art.21of the Indian constitution was
more of a statute justice land not natural justice.

Gopalans decision dominated the Indian scene for

twenty eight years till the decision of Supreme
Court in the celebrated case of Maneka Gandhis
which revolution the application rules of natural
justice in India. In the instant case, a writ
petition was filed under Art. 32 challenging the
impugned order interlaid amongst other
grounds for being impugned for denial of
opportunity of being heard prior the
impoundment of passport.

As per Manekas rationale, a procedure could no

more be a mere enacted or state prescribed
procedure as laid down in Gopalans but had
to be fair, just and reasonable procedure. The
most notable and innovative holding in
Maneka was that the principle of
reasonableness
legally
as
well
as
philosophically is an essential element of
equality or non-arbitrariness and pervades
Art. 14 like a boarding omnipresence and the
procedure contemplated by Art. 21 must
stand the test of reasonableness in Art. 14.