ADMINISTRATIVE LAW

COMPILED BY NIDA MALLAM

 INTRODUCTION

The nature, content and scope of Administrative Law

Administrative law is the branch of public law which defines the relation between
individuals and state. But it is not a law in a true sense like other laws such as
property law or labor law. It is also not like private law which deals with relations of
individual inter se. it is a law to administer the administrative authorities and check
them from making any arbitrary decisions. Administrative law deals with the
organization, powers and duties of the administrative authorities and also the
procedure followed by the officials while exercising the powers. Administrative law is
limited to the law which limits the power of administrative authorities while
exercising the powers. It also provides remedies in the favor of the public when the
rights of the public encroached.

Administrative law is almost judge made law. Thus it suffers from more facilities and
benefits because of judicial lawmaking. Judiciary interprets law according to the
need of time and issues guidelines for such. It affects administrative law and makes it
more strong and beneficial. It is a branch of the constitution that regulates all three
branches i.e. legislative, executive and judiciary in the same way administrative
regulates all administrative authorities and protects them from corrupt practices. Its
main purpose is to focus on the judicial review of administrative actions. In this way,
there is protection from the arbitrary actions of the administrative actions.
Administrative actions can be legislative, executive or judiciary. Administrative can
do all of three actions when which is required to do so. By delegation legislation,
administrative has the power to make law when it comes to implementation of
administrative acts as an executive and when it comes to making quick decisions
then the administrative can act as the judiciary. The nature of administrative law
changes according to the need.

Scope means an area of study or the variety of subjects that are being discussed or
considered. As administrative law is almost judge-made law so it changes according
to societal needs but in the guidance of the basic principles so the scope of this law is
wider in comparison to other laws. Administrative law determines the powers and
duties of the organization and the administrative authorities. The scope of
administrative law is wide enough because, with the requirement of time,
Administrative Law incorporates and culls out new rules and regulations. The
concept of administrative law is founded on the following:-

1. Principles of natural justice and for rulemaking

2. Notion of the Rule of Law

3. Law conferred power to administration as per the legislation of Botswana

4. Accountability of powers, no power is absolute or uncontrolled

5. There should be a reasonable restriction on the regulations of such powers

6. The power of the court to issues writs

7. Opinions of public and mass media.

The relationship with constitutional Law

The relationship between the administrative law and constitutional law is not very
watertight, sometimes administrative law invades into the territory of constitutional
law, so it is very important to develop a proper understanding between the
relationships between these two. Both constitutional law and administrative law are
parts of the public law which shows that constitutional law is the mother of
administrative law and it cannot be totally separated from each other.

In constitutional law, arbitrary action is limited by the norms and principles of

administrative law of fairness, reasonable and justness. Administrative law deals with
the organizations, powers, functions, and duties of administrative authorities, on the
other hand, constitutional law deals with the general principles relating to the
organization and powers of various organs of the state and the relationship of these
organs with the individuals. The constitution describes the various organs of the
government at rest, while administrative law describes them in motion. It may be
pointed out that constitutional law deals with the rights and administrative law focus
on public needs.

It is a necessity of time to draw a line of between these two laws in order to define the
territory of the functioning of the jurisdiction of both the laws.

The rule of law

Lord Lester (PAC Report, 2003) "...The difficulty about our unwritten, flexible,
permeable, part monarchical and part parliamentary constitution is to make sure
that those principles [i.e. the rule of law and parliamentary sovereignty] apply in
practice."

The Rule of Law (Dicey 1885) dictates that:

• Nobody is above the law
• Everyone is equal before the law
• No set of laws exist which are above the courts

Bingham (in 2006) said the following about the rule of law: "...all persons and
authorities within the state, whether public or private, should be bound by and
entitled to the benefit of laws publicly and prospectively promulgated and publicly
administered in the courts..."
• So Bingham says the rule of law is about knowing what the law is and having
access to the law
• In R v Somerset County Council, Ex p. Fewings [1995], it was said that the
police have to point to a law if they wish to restrict your liberty. In other
words, to protect people from arbitrary interference the police can only detain
someone if there is a source of law for doing so

Separation of Powers
Definition: "...All would be lost if the same man or the same body of principal men
either of nobles, or of the people, exercised these three powers: that of making the
laws, that of executing public resolutions, and that of judging the crimes or the
disputes of individuals." (Montesquieu ‘The Spirit of Laws’ (1748))
• So, to have a proper constitutional settlement you need clearly separated and
independent powers of the three branches of Government: the legislature, the
executive, and the judiciary
• These branches check the powers of each other

Separation of personell → no individual should simultaneously occupy a place in

more than one branch of Government
• The Lord Chancellor used to be in a position, which violated the separation of
powers as he had a seat in all three branches

Avoidance of interference → no branch of Government should interfere in the

operation of another

Separation of function → no branch of Government should perform functions which

are the responsibility of another

Issue of elective dictatorship:

• An ‘elective dictatorship’ occurs if we have a Government with a large majority
in Parliament such that they can push through any legislation they like. In
essence, the Executive and the Legislative branches of Government have their
powers fused together enabling the Government of the day to do whatever
they want

CASES:
De Lille and Another v Speaker of the National Assembly
Common Law rules of natural justice state that when a statute empowered a
public body or official to give a decision affecting an individual’s rights or
legitimate expectations that person shall be heard before a decision affecting
the individuals rights is made. The party is to be heard by an impartial and
unbiased tribunal. (This is known as the “Nemo index sua causa” rule)
Labbeaus Peloewetse V Permanent Secretary To The President And
Others [2000] 1 Blr 79 (Ca)

In court, a review cannot simply be dismissed because the appellant took a

while to bring it forward, the reasons for the delay have to be looked at.
Legitimate expectations cannot be thwarted, protection of legitimate
expectations is at the root of the constitutional principle of the rule of law
which requires regularity predictability and certainty in the governments
dealings with the public.

Selebi Phikwe Town Council v AG & Another [2004] 2 BLR 453

Powers conferred upon the Minister are important public powers and cannot
be delegated nor abdicated to anyone else, not exercised outside the
parameters of legality.

Once powers conferred upon a minister are exercised in a manner that is final
and conclusive, the administrative act is complete, his statutory jurisdiction is
terminated, and he becomes functus officio. He does not have the power to
amend or repeal his decision.

Kenneth Kgotla Autlwetse v BDP and Others [2004] 1 BLR 230

Political parties are non-governmental organisations or voluntary

organisations and therefore they cannot person quasi-judicial or
administrative functions in such a way as to render it subject to judicial review
by the courts.
Sakhile Nyoni v Chairman, Air Botswana Disciplinary Committee and
Others [1999] 2 BLR 15

The High Court has an inherent or common law right to review the decisions
made by subordinate courts, quasi-judicial or administrative tribunals.

ESHUGBAYI ELEKO V GOVERNMENT OF NIGERIA [1931] AC 662:

“Judges should not shrink from deciding certain issues in the face of the executive”

Section 86- Constitution: Parliament shall have the power to make laws for the
peace, order and good government of Botswana.

Section 41- Constitution: No criminal proceedings shall be instituted or

cautioned against the government, president or anybody performing the functions of
the president f0r anything done or omitted to be done in his private, or official
capacity and no civil proceedings shall be instituted or continued in respect of
anything done or omitted to be done in his private capacity.

Section 87- Constitution: The power of parliament to make laws sha;; be

exercised by bills passed by the national assembly, to the house of chiefs and
assented by the president.
 THE NATURE AND FUNCTIONS OF ADMINISTRATIVE
INSTITUTIONS

Composition
Commission of Inquiries Act

Sections 2-5

1. Power to issue Commission of Inquiry into any matter of public

nature

It shall be lawful for the President, whenever he deems it advisable,

to issue a

commission appointing one or more commissioners, and authorizing such

commissioners, or any quorum of them therein mentioned, to inquire into the
conduct of any officer in the public service of Botswana, the conduct or management
of any department of the public service, or of any public or local institution or into
any matter in which an inquiry would, in the opinion of the President, be for the
public welfare.
3. Particulars of commissions

Each such commission issued in terms of section 2 shall specify the subject of
inquiry, and may, in the discretion of the President, if there is more than one
commissioner, direct which commissioner shall be chairman, and direct where and
when such inquiry shall be made, and the report thereof rendered, and prescribe how
such commission shall be executed, and may direct whether the inquiry shall or shall
not be held in public.
4. Mode of holding inquiry and as to preservation of order

In the absence of a direction to the contrary, the inquiry shall be held in public, but
the commissioners shall nevertheless be entitled to exclude any particular person or
persons for the preservation of order, for the due conduct of the inquiry or for any
other reason.
 Sections 8-17

8. Duties of commissioners defined

It shall be the duty of the commissioners, after taking such oath, or making such
affirmation, to make a full, faithful and impartial inquiry into the matter specified in
such commission, and to conduct such inquiry in accordance with the direction, if
any, in the commission; and, in due course, to report to the President in writing the
result of such inquiry; and also, when required, to furnish to the President a full
statement of the proceedings of such commission, and of the reasons leading to the
conclusions arrived at or reported.

9. Division of opinion of commissioners

If the commissioners, in any case, are equally divided on any question that arises
during the proceedings of the commission, the chairman of the commission shall
have a second or casting vote.

10. Commissioners' power to regulate proceedings

The commissioners acting under this Act may make such rules for their own
guidance, and the conduct and management of proceedings before them, and the
hours and times and places of their sittings, not inconsistent with their commission,
as they may from time to time think fit, and may from time to time adjourn for such
time and to such place as they may think fit, subject only to the terms of their
commission.

11. Power to summon and examine witnesses on oath

(1) Commissioners acting under this Act shall have the powers of the High Court to
summon witnesses, and to call for the production of books, plans and documents,
and to examine witnesses and parties concerned on oath.
(2) Where the commissioners consider it desirable for the purpose of avoiding
expense or delay or for any other special reason, they may receive evidence by
affidavit or administer interrogatories and require the person to whom the
interrogatories are administered to make a full and true reply to such interrogatories.

(3) Summonses for attendance of witnesses, or other persons, or the production of

documents, may be in the prescribed form, and shall be signed by one of the
commissioners or by their secretary, and oaths and affirmations may be
administered by one of the commissioners or by their secretary.
12. False evidence

Any witness who wilfully gives or fabricates false evidence in any inquiry under this
Act concerning the subject matter of such inquiry shall be guilty of perjury, and be
liable to be prosecuted and punished accordingly.

13. Duty of witnesses summoned and penalties for contumacy, insult or

interruption of proceedings

(1) All persons summoned to attend and give evidence, or to produce books, plans or
documents at any sitting of any such commission shall be bound to obey the
summons served upon them as fully in all respects as witnesses are bound to obey a
summons issued from the High Court, and shall be entitled to like allowances as if
they had been summoned to attend at such court in any criminal proceedings at
Sessions, if the same shall be allowed by the commissioners, but the commissioners
may disallow the whole or any part of such allowances in any case if they think fit.
Orders for the payment of such witnesses shall be made as nearly as may be as orders
are made for the payment of witnesses in the High Court, and shall be paid in such
manner as the President may direct.

(2) Every person refusing or omitting, without sufficient cause, to attend at the time
and place mentioned in the summons served on him, and every person attending, but
leaving the commission without the permission of the commissioners, or refusing
without sufficient cause to answer, or to answer fully and satisfactorily, to the best of
his knowledge and belief all questions put to him by or with the concurrence of the
commissioners, or refusing or omitting without sufficient cause to produce any
books, plans or documents in his possession or under his control and mentioned or
referred to in the summons served on him, and every person who at any sitting of the
commission wilfully insults any commissioner, or the secretary, or wilfully and
improperly interrupts the proceedings of the commission, shall be guilty of an
offence and liable to a fine not exceeding P200 or to imprisonment for a term not
exceeding six months, or to both:

Provided that no person giving evidence before the commission shall be compellable
to incriminate himself, and every person shall, in respect of any evidence given by
him before the commission, be entitled to all the privileges to which a witness giving
evidence before the High Court is entitled in respect of evidence given by him before
such court.
14. Representation by advocate or attorney

Any person whose conduct is the subject of inquiry under this Act, or who is in any
way implicated or concerned in the matter under inquiry, shall be entitled to be
represented by an advocate or an attorney at the whole of the inquiry, and any other
person who may consider it desirable that he should be so represented may, by leave
of the commission, be represented by an advocate or attorney.
15. Payment of remuneration and expenses of commissioner and
secretary

The remuneration, if any, of any commissioner or secretary or other persons

employed in or about such a commission, together with the expenses to be incurred
in any inquiry made under the provisions of this Act, shall be determined by the
President and such sums shall be paid from the public revenues of Botswana.
16. Commissions, etc. to be published in Gazette

All commissions under this Act, and all revocations of any such commissions, shall
be published in the Gazette.

17. Non-liability of commissioner

No commissioner shall be liable to any action or suit for any matter or thing done by
him as such commissioner.
 Section 3- Constitution

3. Fundamental rights and freedoms of the individual

Whereas every person in Botswana is entitled to the fundamental rights and

freedoms of the individual, that is to say, the right, whatever his or her race, place of
origin, political opinions, colour, creed or sex, but subject to respect for the rights
and freedoms of others and for the public interest to each and all of the following,
namely-

1. (a) life, liberty, security of the person and the protection of the law;
2. (b) freedom of conscience, of expression and of assembly and association; and
3. (c) protection for the privacy of his or her home and other property and from

deprivation of property without compensation,

the provisions of this Chapter shall have effect for the purpose of affording protection
to those rights and freedoms subject to such limitations of that protection as are
contained in those provisions, being limitations designed to ensure that the
enjoyment of the said rights and freedoms by any individual does not prejudice the
rights and freedoms of others or the public interest.

Daniel Kwelagobe and Anor v Kgabo and Anor [1994] BLR 347
Where a body constituted by law acts outside its terms of reference or
jurisdiction or takes evidence in a manner specifically prohibited to it under the
terms of its constitution, then what such body does is null and void.

Where a body constituted by law investigates a party’s conduct without

informing them this is ultra-vires the rules of natural justice.
Tsogang Investments v Phoenix Investments
Any person affected by the decisions of the minister has locus standi to apply to
the courts where that decision was contrary to law or bad law.
Once a court of law or quasi-judicial body has given a decision the court or body
giving it is in respect of such matter functus officio.

Pelonomi Venson v Attorney General [1993] BLR 458

Where a commission is functus officio and no longer exists the commission’s

findings are not reviewable.
 OMBUDSMAN

The ombudsman is a part of the system of administrative law for scrutinizing

the work of the executive. He is the appointee not of the executive but of the
legislature. The ombudsman enjoys a large measure of independence and
personal responsibility and is primarily a guardian of correct behaviour. His
function is to safeguard the interests of citizens by ensuring administration
according to law, discovering instances of maladministration, and eliminating
defects in administration. Methods of enforcement include bringing pressure to
bear on the responsible authority, publicizing a refusal to rectify injustice or a
defective administrative practice, bringing the matter to the attention of the
legislature, and instigating a criminal prosecution or disciplinary action.

Ombudsman Act:

2. (1) For the purpose of conducting investigations in accordance

with the provisions of this Act there shall be appointed an officer, to be known as the
Ombudsman.

(2) The Ombudsman shall be appointed by the President after con- sultation with the Leader
of the Opposition in the National Assembly.

(3) A person shall not be qualified to be appointed as Ombudsman If he is a member of the

National Assembly, a member of any local authorty, a candidate for election as a member of
the National Assembly or a local authority nominated as such with his consent.

(4) The Ombudsman shall not perform the functions of any other public office, and shall not,
without the approval of the President in each particular case, hold any other office of
emolument other than the office of Ombudsman or engage in any occupation for reward out-
side of his office.

(5) Subject to the provisions of subsection (6), a person holding the office of Ombudsman
shall vacant that office at the expiration of four years from the date of his appointment.
(6) The provisions of subsections (2) to (5) of section ]06 o the Constitution (which relate to
removal of High Court Judges from of- fice) shall, with such modifications as may be
considered necessary, apply to the office of Ombudsman.

5. (I) All complaints to, and requests for investigation by, the Om- budsman shall be made in
writing direct to the Ombudsman.

(2) Notwithstanding the provisions of any other enactment, any complaint made to the
Ombudsman by any person who is in legal cus- tody or who is an inmate of any mental
hospital or similar institution shall be forwarded unopened to the Ombudsman by the person
in charge of the place where the complainant is detained or is an inmate.

6. (1) Where the Ombudsman proposes to conduct an investiga- 4

tion under this Act, he shall afford to the principal officer of any de- partment or authority
concerned, and to any other person who is. alleged to have taken or authorized the action in
question, an oppor- tunity to comment on any allegations made to the Ombudsman 10 re-
spect thereof

(2) Every investigation shall be conducted in private but except as provided in this Act the
procedure for conducting an investigation shall be such as the Ombudsman considers
appropriate in the circum- stances of the case.

(3) In conducting an investigation under this section, the Ombuds- man may obtain any
information from such persons and m such manner, and make such enquiries as he thinks fit,
and may determine whether any person may be represented by counsel.

7. (1) For the purposes of an investigation under this Act, the Om- budsman may require any
Minister, officer or member of any depart- ment or authority concerned or any other person
who is in his opinion is able to furnish information or produce documents relevant to the
investigation to furnish any such information or produce any such document.

(2) For the purposes of any such investigation the Ombudsman shall have the same powers as
the High Court in respect of the atten- dance and examination of witnesses (including the
administration of aths and the examination of witnesses abroad) and in respect of the
production of documents.
(3) No obligation to maintain secrecy or other restriction under the disclosure of information
obtained by or furnished to persons in the public service imposed by any law in force in
Botswana shall apply to the disclosure of information for the purposes of any investigation
un- der this Act; and the State shall not be entitled in relation to any such investigation to any
such privilege in respect of the production of documents or the giving of evidence as is
allowed in legal proceedings.

(4) No person shall be required or authorized by virtue of this sec- tion to furnish any
information or answer any question or produce any document relating to proceedings of the
Cabinet or any committee thereof; and for the purposes of this subsection a certificate issued
by the Secretary to the Cabinet with the approval of the President and certifying that any
information, question or document so relates shall be conclusive.

(5) The Attorney-General may give notice to the Ombudsman, with respect to any document
or information specified in the notice, that in his opinion the disclosure of that document or
information would be contrary to the public interest in relation to defence, external relations
or internal security; and where such a notice is given nothing in this section shall be
construed as authorizing or requiring the Ombudsman or any member of his staff to
communicate to any person for any purpose any document or information specified in the
notice.

(6) Subject to subsection (3), no person shall be compelled for the purposes of an
investigation under this Act to give any evidence or produce any document which he could
not be compelled to give or, produce in proceedings before the High Court.

Agricultural training Board v Aylasburg Mushrooms:

Where new regulations have been introduced, the new regulations shall not be binding upon
any party who was not consulted in the process of making those regulations.

Pandor v The State

When the disclosure of identity of an informer can help show that the accused was innocent
of the offence charged exceptionally such disclosure shall be ordered.
NATURE, BASIS AND FUNCTION OF JUDICIAL REVIEW

Judicial review, power of the courts of a country to examine the actions of the
legislative, executive, and administrative arms of the government and to
determine whether such actions are consistent with the constitution . Actions
judged inconsistent are declared unconstitutional and, therefore, null and void.
The institution of judicial review in this sense depends upon the existence of a
written constitution.

The conventional usage of the term judicial review could be more accurately
described as “constitutional review,” because there also exists a long practice of
judicial review of the actions of administrative agencies that require neither that
courts have the power to declare those actions unconstitutional nor that the
country have a written constitution. Such “administrative review” assesses the
allegedly questionable actions of administrators against standards of
reasonableness and abuse of discretion. When courts determine challenged
administrative actions to be unreasonable or to involve abuses of discretion,
those actions are declared null and void, as are actions that are judged
inconsistent with constitutional requirements when courts exercise judicial
review in the conventional or constitutional sense.

Whether or not a court has the power to declare the acts of government agencies
unconstitutional, it can achieve the same effect by exercising “indirect” judicial
review. In such cases the court pronounces that a challenged rule or action
could not have been intended by the legislature because it is inconsistent with
some other laws or established legal principles.

Application of the general principles of judicial review is not

straightforward.The attitude of the courts towards judicial review has been far
from consistent, alternating between strict and liberal interpretations of
theprinciples of judicial review and when judicial review should be
available,resulting in some very fine distinctions and a degree of contradiction,
whichmakes the subject difficult to tackle.The role of judicial review is as the
legal control of the use of power by theexecutive. The Court, when employing
judicial review, is exercising itssupervisory jurisdiction as opposed to its
appellate jurisdiction.‘Judicial review is the means by which the Court exercises
a supervisoryjurisdiction over inferior courts, tribunals and other public bodies
(including individuals charged with public law functions.)

‘Judicial review is the procedure whereby the High Court is able, in certaincases
to review the legality of decisions made by a wide variety of bodieswhich affect
the public, ranging from government ministers exercisingprerogative or
statutory powers, to the actions of certain powerful self-regulatory bodies’
- Maripe B.Judicial Review and the Public / Private dichotomy: An
appraisal of developingtrends; 4 UBLJ (2006) 23-53

Distinction between Judicial/Quasi-judicial/ Administrative actionA judicial

decision is a decision made according to administrative policy. Ajudge attempts
to find what is the correct solution according to legal rules and principles. An
administrator attempts to find what is the most expedient and desirable
solution in the public interest. There will always be grey areas.Nevertheless the
mental exercises of judge and administrator are fundamentally different. The
judge’s approach is objective, guided by hisidea of the law. The administrator’s
approach is empirical, guided merely by expediency.

We can divide the principles applicable to judicial review under threeheadings:

a) The criteria and method the court will apply in deciding whether
judicial review is applicable
b) Grounds for review
c) Remedies that apply

Judicial Review is not concerned with the merits of a decision, ie whether itis
right or wrong(the facts), but rather whether the decision maker has
keptwithin the legal limits and followed the broad principles of fairness
 andrationality. The Court is not seeking to replace the substantive decision
butrather whether the decision is legal and/or rational/ reasonable and
abidedby the rules of natural justice.The grounds of judicial review have
classically been classified under threeheads. Illegality, Irrationality and
Procedural Impropriety.

JHB Stock Exchange and Another v Witwatersrand Nigel Ltd and

Another 1988 (3) SA 132 (A)

A decision is unreasonable if not other reasonable authority would have arrived

at it

AG v Kgalagadi Resources Development Company [1998] BLR 495

To qualify as a subject for judicial review the decision must have consequences
which affect some person (or body of persons) other than the decision maker. It
must affect such person by defying rights and obligations of that person which
are enforceable by or against him in private law.

Associated pictures houses v Wednesbury Corp

Courts are entitled to review unreasonable decisions made by tribunals and the
test is one of reasonableness in relation to what the courts think or whether the
decision was in the publics best interest.
 JURISDICTION AND EXCLUSION OF REVIEW

Anisminic v Foreign Compensation Commission [1969] 2 A.C. 147.

Courts are extremely reluctant to give effect to any legislative provision that attempts
to exclude their jurisdiction

Sechele v AG

Where a judicial officer takes a stand based on legal principles as a result of facts or
material placed before him, it does not follow that where the same principle of law
arises in another case that would be a valid ground for the judicial officer.

Student Representative Council v University of Botswana 1989

Although the relationship between students and the university is contractual, it is

also governed by common law principles. The right to education is too important a
right to be left to the absolute discretion of anyone without scrutiny by the courts to
determine whether or not any principle of natural justice had been violated.
No public body can be conferred power by parliament to impose any condition it
please being conditions that are ultra vires the laws of Botswana.
 DISCRETION – THE WEDNESBURY DOCTRINE

Prima facie, it may seem irrelevant to ask the obvious question: Could it have
possibly been the intention of the Parliament that any body should behave
unreasonably? The answer is, of course, no, and it is this understanding that provides
the basis for jurisdiction.

Critical to the evaluation of the Wednesbury principleis an appraisal of where it can

be located within the scheme of administrative law, and its articulation in a different
category of challenge to administrative action.

The purpose of the introduction is twofold: If we concede that the Wednesbury

principle is a tool for challenging administrative action,

Where is the principle located within the scheme of administrative law?

Why is there a necessity to study unreasonableness under a different category, is this
not covered by the ultra vires doctrine?

The way in which such challenge is made is relevant; and in this respect, the
Wednesbury principle is understood with respect to grounds of judicial review of
administrative action. In relation to this, as the ultra vires principle already exists, a
question that is often asked is the reason for the necessity of a discrete principle
relating to unreasonableness.

Grounds of review and the location of the Wednesbury principle

Special reference may be made to the “GCHQ case”, wherein it was stated that
grounds of judicial review may be subsumed under three main heads, which are:
1. Illegality
2. Irrationality
3. Procedural impropriety

It is in the second aforementioned category that the Wednesbury principle finds

relevance, and Lord Diplock has elucidated the concept, by stating that “irrationality”
is applicable in a decision which is so outrageous in its defiance of either logic, or
morals, that no sensible person could have arrived at that conclusion on proper
application of his mind. He also adds that whether or not a decision falls within the
ambit of this category is subjective, and depends on the interpretation of the judge.

The doctrine of ultra vires and the need for a separate ground of “unreasonableness”
In understanding the need for a separate ground of “unreasonableness”, the import
of the ultra vires doctrine is deserving of mention. The ultra vires doctrine refers to
an action which is in excess of the powers of decision making bodies, and the
reasoning or implications of this principle are important insofar as they uphold the
sovereignty of parliament, and the rule of law (such importance is to be illustrated in
comparison with the Wednesbury principle).

Very often, there are cases wherein there is more than one ground of challenge, and
this is because the facts of any case are likely to introduce several levels of
complexity. It has been observed that numerous decisions have unreasonableness as
a common factor. However, the use of the term “unreasonableness” is not specific
enough. Questions related to this are: What do the judges mean when they use the
term “unreasonableness”? Does it refer to outrageous behaviour, or a duty of the
public body to act reasonably? What the researchers seek to do in this project is to
answer these questions, by way of analysis of the Wednesbury case, and the principle
that evolved thus.

A. Cases Preceding the Wednesbury Principle

In understanding the true import of the Wednesbury case and the principle it laid
down, it is necessary to refer to the cases preceding the Wednesbury principle, and
this can be broadly divided into three parts:
1. Early decisions on the unreasonableness principle
2. Developments in the principle of unreasonableness in the 20th century
3. The cases referred to in the Wednesbury judgment

I. Early decisions on the unreasonableness principle

The principle of unreasonableness does not flow out of the Wednesbury doctrine
alone, and it has been widely recognized that unreasonableness has been established
as one of the many traditional grounds of review, in administrative law, which pre
dates Wednesbury by many years.

In this respect, reference in made to Sir Edward Coke CJ’s dicta in Rookes Case ,
which contains a statement which has not lost its accuracy over four hundred years,
and this principle remains the same to this day.

Rookes Case
In this case, the Commissioner of Sewers had levied charges for repairing a river
bank. Ideally, these charges ought to have been divided equally among all the owners
benefited, but this charge had been thrown on one adjacent owner. According to law,
they had the power to levy this charge in their discretion, but this charge was
disallowed as inequitable.

Coke opined: “… notwithstanding the words of the commission give authority to the
commissioners to do according to their discretions, yet their proceedings ought to be
limited, and bound with the rule of reason and law. For discretion is a science or
understanding to discern between falsity and truth, between wrong and right,
between shadows and substance, between equity and colourable glosses and
pretences, and not to do according to their wills and private affections…”
While the discretion conferred by the authority to the commissioners allowed them
to exercise such discretion as they thought fit, the additional limitation of such
discretion being in conformity with the “rule of reason” was imposed by Coke in this
case.

The continuance of the Rookes ratio in other subsequent cases

The rationale used by Coke in the Rookes ratio was followed in 1647 – Estwick v City
of London– The question related to the discretion of a commissioner, and it was held
that where a commissioner has the power to do a certain thing at his discretion, such
discretion needs necessarily to be sound discretion, and it has to be according to law,
and in the event that this is not followed, the court has the power to redress things
done by them (in their non compliance of these conditions.)
While the Rookes ratio did not deal with judicial review of such discretion in explicit
terms, this case laid down that not only does such discretion have to be sound
discretion (which followed the Rookes ratio as such discretion necessarily needs to
follow the “rule of reason”), but also that the Court reserves the power to assess such
exercise of discretion.

1666 – R v Commissioner of Fens – The court in this case granted certiorari

against the commissioner of Fens merely on the allegation that they had proceeded
unreasonably, as the court could judge whether they (the commissioner) have
pursued their powers. This is a reiteration of the principle that the court can take it
upon itself to ensure that the discretion exercised by an authority wielding power is
exercised reasonably.

1773 – Leader v Moxon– The paving commissioners in this case were given the
power to make alterations in streets “in such a manner as the commissioner shall
think fit”, and the in the exercise of this discretion, the commissioners raised part of
a street by six feet, thus blocking the plaintiff’s doors and windows. It was held that
the commissioners had grossly exceeded their powers, and such discretion was
arbitrary. The emphasis once again was on the conformity of such discretion with the
“rule of reason”, and this echoed the ratio in the Rookes case.

II. Developments in the principle of unreasonableness in the 20th

century
1905 – Westminster Corporation v. L and NW Railway – The issue was about
the discretion of a local authority to erect certain public conveniences, and it was
opined by Lord MacNaghten in this case that such a body vested with discretion
should take care so as to keep within the limits of the authority committed to it, and
in the exercise of its discretion must act in good faith, and reasonably.

1925 – Roberts v Hopwood– Acting in the exercise of his discretion, the district
auditor had disallowed what in his opinion were “over generous” wages paid by the
Borough Council of Poplar to their employees under an Act which empowered them
to pay such wages as they “may think fit.” The House of Lords was of the opinion that
the Borough need not have paid more than what was reasonable. Once again, the test
was of reasonableness in the exercise of discretion.

III. Cases Referred to in the Wednesbury Judgment

The Wednesbury case did not arise in a vacuum, and the trend in precedents
contributed greatly to the judgment which was delivered, and which ultimately
shaped principles of unreasonableness. Although there were several cases referred to
in the judgment, the cases that are most important and on which most reliance was
placed will be discussed:
1. Theatre de Luxe (Halifax) Ltd. v Gledhill [1915] 2 KB 49
2. Harman v Butt [1944] KB 491
3. Theatre de luxe (Halifax) Ltd. v. Gledhill

a. Relevant provision
The relevant legislation was the Cinematography Act, 1909, and the provision which
found application was Section 2, sub section 1
This provides that the Cinematography Act is “ An Act to make better provision for
securing safety at Cinematograph and other Exhibitions” and for this purpose, A
county council may grant licences to such persons as they think fit to use the
premises specified in the licence for the purposes aforesaid”–i.e., for cinematograph
exhibitions–
“on such terms and conditions and under such restrictions as, subject to regulations
of the Secretary of State, the council may by the respective licences determine.”

b. Discretion exercised
Such discretion vested in the authority was manifested in the following way: A
licence was granted under the aforementioned Section, subject to the condition that
children under 14 years could not enter the premises after 9 pm , if they were
unaccompanied by a guardian or a parent
children under 10 years could not enter the premises, irrespective of whether they
were accompanied by a guardian or a parent.

c. Judgment delivered
– The majority (as per Lush and Rowlatt, JJ) opined that the condition was ultra
vires inasmuch as there was no connection between the ground upon which the
condition was imposed, and the use of the premise. In other words, there was no
connection between the health and and welfare of young children, and the use of the
premise for holding exhibitions.
– The minority (as per Atkin, J) was referred to in the judgment of the Wednesbury
case. Atkin J opined that the restriction upon the power of the authority to impose
conditions on the grant of licences to these houses is that the conditions must satisfy
three requirements:
1. They must be reasonable
2. They must be in respect of the use of the licensed premises
3. They must in the public interest.
If these requirements are satisfied, then the condition is not ultra vires, and the
authority can take into account the public interest so far as children are affected.

Harman v Butt
Relevant provision
The relevant provision was Section 1, sub section 2 of the Sunday Entertainments
Act, 1932, and acting under this provision, an authority, having power to grant
licences under the Cinematograph Act, 1909, allowed a cinematograph theatre in
their area (which was licensed under the aforementioned Act) to be open, and used
on Sundays for the purpose of cinematograph entertainments.
Discretion exercised
In the exercise of the discretion vested in it by virtue of the Cinematograph Act, the
authority imposed a condition on the cinematograph theatre. That is, such discretion
vested in the authority was manifested in the following way: a licence was granted
subject to one condition
that no child under the age of sixteen years should be admitted to the cinematograph
theatre.
Judgment
It was held that the imposition of this condition was not ultra vires, and the condition
was not unreasonable. Discretion when vested in an authority must be exercised in a
reasonable way, and there is nothing in the exercise of the discretion vested in the
authority which suggests that it was not exercised in a reasonable manner, in
accordance with the “rule of reason” (the original phrase used by Coke in the Estwick
case).
B. The Wednesbury Case
The Case of Associated Provincial Picture Houses Ltd. v. Wednesbury Corp.

Introduction and synopsis of the case

In modern days authorities both statutory and governmental – enjoy a wide range of
discretionary powers. This power is however, fettered by restraints. It is to be
exercised in public interest and for the public good. The wide range of authorities
and officers conferred with discretion adds to the intensity of the problem in as much
as quite frequently discretionary powers are wrongly exercised or otherwise abused.
In early times, the courts have been overseeing the exercise of discretionary powers
by way of judicial review. New developments in administration made the Courts to
adopt new techniques to discipline the exercise of administrative discretion but the
judiciary was very cautious in exercising its power of judicial review.

It was in Wednesbury Corporation case that the Court of Appeal in England ruled
that the courts could only interfere in an act of executive authority if it be shown that
the authority had contravened the law and that the power of the courts to interfere in
such matters is limited, except where the discretion has not been exercised within the
four corners of well-known legal principles. This observation signified the approach
the judiciary adopted.

In Associated Provincial Picture Houses Ltd. v. Wednesbury Corp., Lord Greene,

M.R. in a classic and oft-quoted passage held that when a statute gave discretion to
an administrator to take a decision, the scope of judicial review would remain
limited. He said that interference was not permissible unless one or the other
following conditions were satisfied viz. the order was contrary to law, or irrelevant
factors were considered, or relevant factors were not considered or the decision was
one that no reasonable person could have taken.

Facts of the Case

The facts of Wednesbury are critical to a discourse on the subject. The plaintiff
company, the owners and licensees of the Gaumont Cinema, Wednesbury,
Staffordshire, were granted by the defendants who were the licensing authority for
that borough under the Cinematograph Act, 1909, a licence to give performances on
Sunday under S.1 (1) of the Sunday Entertainments Act, 1932; but the licence was
granted subject to a condition that “no children under the age of fifteen years shall be
admitted to any entertainment whether accompanied by an adult or not.” In these
circumstances the plaintiffs brought an action for a declaration that the condition as
ultra vires and unreasonable.

To elucidate:
The plaintiffs and the defendants
The plaintiffs were the owners and licensees of the Gaumont Cinema, Wednesbury,
Staffordshire. The defendants were the licensing authority for that area, the
Wednesbury Corporation.
The discretion granted to the Wednesbury Corporation

1. Legislations relevant – Reference may be made to two important legislations in

this respect:
The Cinematograph Act – The Wednesbury Corporation had the power under this
Act to grant licences in any area for cinematograph performances.
The Sunday Entertainments Act – Section1, sub section 1 of this Act provided that if
an authority had, under the Cinematograph Act, the power to grant licences in any
area for cinematography performances, then such authority had the power to allow a
licensed place to be open and used on Sundays, “subject to such conditions as the
authority thinks fit to impose”.

The Wednesbury corporation, in this case, was an authority which had:

The power to grant licences in any area for cinematograph performances under the
Cinematograph Act, 1909, and the power to allow a licensed place to be open and
used on Sundays, “subject to such conditions as the authority think fit to impose.”

As there was no debate about the Wednesbury Corporation being an authority

contemplated under the Cinematograph Act, there was no debate about it being an
authority under the Sunday Entertainments Act.
The discretion exercised by the Wednesbury Corporation

The Wednesbury Corporation granted the license to the plaintiffs on the condition
that no children under 15 years, whether accompanied by an adult or not, should be
admitted to Sunday performances

The issue brought forth:

The claim of the plaintiffs was that the condition was ultra vires and unreasonable.

Judgment and rationale

The Court held that in considering whether an authority having so unlimited power
has acted unreasonably, the court is only entitled to investigate the action of the
authority with a view to seeing if it has taken into account any matters that ought not
to be or disregarded matters that ought to be taken into account. The Court cannot
interfere as an appellate authority overriding the decisions of such authority but only
as a judicial authority concerned to see whether it has contravened the law by acting
in excess of its power. Lord Greene, who rendered the leading judgment, dealt with
the law in detail and enunciated ––“principles of reasonableness”, and as an aside,
Indian Courts have followed these ‘Wednesbury principles of reasonableness’ in
various decisions.

Lord Greene M.R. also went on to explain the word ‘unreasonableness’ and held that
when an executive discretion is entrusted by a Parliament to a body, such as the local
authority, the discretion exercised by the authority can only be challenged in the
Courts in a strictly limited class of cases. He also described the various grounds of
challenge which went into the legality of public body’s actions. Unreasonableness
was used to describe actions based on illegality, irrelevancy and the like.

This Wednesbury test has been the major tool used by the Courts to control
discretionary decisions. To quote the learned judge on the crux of the judgment;
“What, then, is the power of the courts? They can only interfere with an act of
executive authority if it be shown that the authority has contravened the law. It is for
those who assert that the local authority has contravened the law to establish that
proposition. On the face of it, a condition of the kind imposed in this case is perfectly
lawful. It is not to be assumed prima facie that responsible bodies like the local
authority in this case will exceed their powers; but the court, whenever it is alleged
that the local authority have contravened the law, must not substitute itself for that
authority.

It is only concerned with seeing whether or not the proposition is made good. When
an executive discretion is entrusted by Parliament to a body such as the local
authority in this case, what appears to be an exercise of that discretion can only be
challenged in the courts in a strictly limited class of cases. As I have said, it must
always be remembered that the court is not a court of appeal. When discretion of this
kind is granted the law recognizes certain principles upon which that discretion must
be exercised, but within the four corners of those principles the discretion, in my
opinion, is an absolute one and cannot be questioned in any court of law.

What then are those principles? They are well understood. They are principles which
the court looks to in considering any question of discretion of this kind. The exercise
of such discretion must be a real exercise of the discretion. If, in the statute
conferring the discretion, there is to be found expressly or by implication matters
which the authority exercising the discretion ought to have regard to, then in
exercising the discretion it must have regard to those matters. Conversely, if the
nature of the subject matter and the general interpretation of the Act make it clear
that certain matters would not be germane to the matter in question; the authority
must disregard those irrelevant collateral matters.”

Summary
The Court of Appeal held that it could not intervene to overturn the decision of the
defendant corporation simply because the court disagreed with it. To have the right
to intervene, the court would have to form the conclusion that:
The corporation, in making that decision, took into account factors that ought not to
have been taken into account, or the corporation failed to take account factors that
ought to have been taken into account, or the decision was so unreasonable that no
reasonable authority would ever consider imposing it.
The court held that the condition did not fall into any of these categories. Therefore,
the claim failed and the decision of the Wednesbury Corporation was upheld. The
test laid down in this case, in all three limbs, is known as “the Wednesbury test”. The
term “Wednesbury unreasonableness” is used to describe the third limb, of being so
unreasonable that no reasonable authority could have decided that way.

C. Post-Wednesbury in Common law

These principles of Wednesbury unreasonableness underwent major modification
through the course of decisions in England. A classic example would be the decision
of Lord Diplock in the celebrated case of Council of Civil Services Unions v. Minister
for the Civil Services also known as GCHQ case. Through his judgment, Lord Diplock
widened the grounds of judicial review. He mainly referred to three grounds upon
which administrative action is subject to control by judicial review. The first ground
being “illegality”, the second “irrationality” and the third ‘procedural impropriety’.
He also mentioned that by further development on a case to case basis, in due course,
there may be other grounds for challenge. He particularly emphasized the principles
of proportionality. Thus, in a way, Lord Diplock replaced the language of
‘reasonableness’ with that of ‘rationality’ when he said:

“By ‘irrationality’ I mean what can by now be succinctly referred to as ‘Wednesbury

unreasonableness’…It applies to a decision which is so outrageous in its defiance of
logic or of accepted moral standards that no sensible person who had applied his
mind to the question to be decided could have arrived at it….”

The principle of proportionality envisages that a public authority ought to maintain a

sense of proportion between his particular goals and the means he employees to
achieve those goals, so that his action impinges on the individual rights to the
minimum extent to preserve public interest.

Thus implying that administrative action ought to bear a reasonable relationship to

the general purpose for which the power has been conferred. The principle of
proportionality therefore implies that the Court has to necessarily go into the pros
and cons of any administrative action called into question.
Unless the impugned administrative action is advantageous and in public interest
such an action cannot be upheld. At the core of this principle is the scrutiny of the
administrative action to examine whether the power conferred is exercised in
proportion to the purpose for which it has been conferred. Thus, any administrative
authority while exercising a discretionary power will have to necessarily establish
that its decision is balanced and in proportion to the object of the power conferred.
This is so as administrative decisions can often have profound implications on the
day-to-day lives of our citizens, their rights, liberties, and legitimate pursuits.

The test adopted by Lord Diplock also underwent criticism and it was said in another
decision as “conduct which no sensible authority acting within due appreciation of its
responsibilities would have decided to adopt” and these unexaggerated criteria give
the administrator ample and rightful rein, consistently with the constitutional
separation of powers.

In a recent decision, R (Daly) Vs. Secretary of State for the Home

Department , Lord Steyn explained the earlier decision and opined on the
principles of judicial review as under:

“26. The explanation of the Master of the Rolls in the first sentence of the cited
passage requires clarification. It is couched in language reminiscent of the traditional
Wednesbury ground of review (Associated Provincial Picture Houses Ltd. Vs.
Wednesbury Corporation [1948] I KB 223), and in particular the adaptation of that
test in terms of heightened scrutiny in cases involving fundamental rights …..There is
a material difference between the Wednesbury and Smith grounds of review and the
approach of proportionality applicable in respect of review where Convention rights
are at stake.”

However, in the case of ex-parte Daly, it is the speech of Lord Cooke of Thorndon
that has attracted much attention to the principle of judicial review as enunciated in
the Wednesbury Case.

“[32]…. And I think that the day will come when it will be more widely recognized
that the Wednesbury case was an unfortunately retrogressive decision in English
administrative law, in so far as it suggested that there are degrees of
unreasonableness and that only a very extreme degree can bring an administrative
decision within the legitimate scope of judicial invalidation. The depth of judicial
review and the deference due to administrative discretion vary with the subject
matter. It may well be, however, that the law can never be satisfied in any
administrative field merely by a finding that the decision under review is not
capricious or absurd.” (p447)

This widely cited quote has generated much debate and anxiety over the applicability
and future of the Wednesbury Principle. Some commentators feel that in the light of
the above statement in the Daly Case, the administrative power of discretion that has
remained protected from judicial review unless challenged on the grounds of
absurdity, irrationality or perversity was now open to the test of proportionality as
enunciated by Prof. Jeffrey Jowell in his article titled “Beyond the Rule of Law:
Towards Constitutional Judicial Review”.

Professor Jowell describes the proportionality test to involve a ‘sophisticated four

stage process’ posing the following questions:-
(1) Did the action pursue a legitimate aim?
(2) Were the means employed suitable to achieve that aim?
(3) Could the aim have been achieved by a less restrictive alternative?
(4) Is the derogation justified overall in the interests of a democratic society?

According to Professor Jowell, such a four-fold test can ensure that a prima facie
violation of a fundamental democratic right is not lightly sanctioned while providing
for a heightened scrutiny of a decision called into question.
According to De Smith, Woolf and Jowell on Judicial Review of Administrative
Action, there are three principal formulations by which proportionality is tested.

The principle of proportionality evaluates two aspects of a decision:

(1) Whether the relative merits of differing objectives or interests were appropriately
weighed or “fairly balanced”?
(2) Whether the measure in question was in the circumstances excessively restrictive
or inflicted an unnecessary burden on affected persons?
D. Wednesbury in the Indian Scenario
It may be stated at the onset that the Supreme Court has been applying the test of
reasonableness unreasonably and the proportionality principle disproportionately.
While the general trend has been stated below, the researchers have focused more on
the development of jurisprudence in the 21st Century.
Prior to making a statement on the evolution of case law in India, one must
scrutinize the case of Rameshwar Prasad v. Union of India, decided in 2005, by the
Hon’ble Supreme Court of India. The minority judgment by Hon’ble Justice Arijit
Pasayat has relied heavily on Wednesbury principles regarding the standards for
judging reasonableness of an executive action. Unfortunately it has overlooked that
the Wednesbury principles have been diluted, if not rejected, by the House of Lords
in Ex parte Daly in 2001 and previously by the Privy Council in 1999. This was
pointed out in the submissions but somehow has escaped attention.
 NATURAL JUSTICE & THE DUTY TO ACT FAIRLY

The words ‘natural justice’ are derived from the Roman word ‘Jus Naturale’, which
means principles of natural law, justice, equity, and good conscience. These
principles did not originate from any divine power, but are the outcome of the
necessity of judicial thinking, as well as the necessity to evolve the norms of fair play.

These are the principles which every disciplinary authority should follow while taking
any decision, which may adversely affect the rights of individuals. It is to be seen that
rules of natural justice are not codified anywhere; they are procedural in nature and
their aim is to ensure delivery of justice to the parties.

Adherence to rules of natural justice, as recognised by all civilised States, is of

supreme importance, when a quasi-judicial body embarks on determining disputes
between the parties or any administrative or disciplinary action is in question. Rules
of natural justice serve as hedge against any blatant discrimination against rights of
individuals. These rules are intended to prevent such authority from doing injustice.

Procedure which is held by the courts to be the rules of natural justice.

With the evolution of society, as well as legal jurisprudence, the concept of natural
justice has also undergone change. Rules of natural justice are not rules embodied in
any statute. These rules were part of the law and procedure during the British Raj
also, and are being observed in India since time immemorial. These rules have
become a part and parcel of the law, as well as procedure. These may be implied from
the nature of the duty to be performed under a statute. What particular rule of
natural justice should be applied depends on the facts and circumstances of each
case. With the passage of time, the old distinction between a judicial act and an
administrative act has withered away. Orders of the disciplinary authority, which
involve civil consequence, must be consistent with the rules of natural justice,
otherwise the orders are likely to be set aside by the courts.

Over the years, two rules have evolved as representing the rules of natural justice in
judicial, quasi-judicial and administrative processes. The first rule is ‘nemo debet
esse judex in propria causa’, which means that no man shall be judge in his own
cause. The second principle is ‘audi alteram partem’, which means that no one
should be condemned unheard.

It is of importance to note that proceedings before the civil court are governed by the
Code of Civil Procedure; criminal proceedings are governed by the Criminal
Procedure Code, but in respect of departmental enquiries, no detailed guidelines
have been codified. So, in the absence of any codified law, proceedings under
departmental enquiries are mainly governed by the principles of natural justice.
However, principles of natural justice are subservient to statutory provisions. They
are not the rule of law that can override the codified laws of the land.

In the case of A.K. Kraipak Vs. Union of India (AIR 1970 SC 150), the
Supreme Court said that the aim of natural justice is to secure justice or to put it
negatively to prevent miscarriage of justice. These rules can operate only in areas not
covered by any law validly made, in other words, they do not supplant law, but
supplement it.

The nature of the rules of natural justice is flexible. They tend to change with the
exigencies of time, and circumstances of each case. Due to their flexible nature, they
may seem to be vague or uncertain, but they have been very well adopted by the
Indian legal system. Their aim is to prevent arbitrariness, as well as miscarriage of
justice.

Of course, they are not enforceable as fundamental rights, but nevertheless, they
ensure a strong safeguard against any arbitrary action that may adversely affect the
rights of individuals. These have been laid down by the courts as being the minimum
protection to rights of individuals against the arbitrary procedure that may be
adopted by a judicial or quasi-judicial authority, while making an order affecting
those rights. These rules are intended to prevent such authority from doing injustice.
In the past, there were only two rules forming the rules of natural justice; with the
course of time, many more subsidiary rules came up to be added to them. These
principles are now well settled and can be summarised as under:
(i) That every person whose civil rights are affected, must have a reasonable notice
of the case he has to meet
(ii) That he must have reasonable opportunity of being heard in his defence
(iii) That the hearing must be by an impartial tribunal
(iv) That the authority must act in good faith and not arbitrarily
(v) The order should be a speaking order

Audi alteram partem

Departmental enquiries relating to the misconduct of individuals should conform to
certain standards. One of the standards is that the person concerned must be given a
fair and reasonable opportunity to defend himself. It means that no man should be
condemned unheard and he has right to know the accusations levelled against him.
He has also the right to know the premise on which such accusation is based, and a
reasonable opportunity to adduce all relevant evidence in his defence. In many
statutes, provisions are made ensuring that a notice is given to the person against
whom an order is likely to be passed before a decision is taken, but some statutes
may not contain such provisions. It is here that the rules of natural justice come to
play their role.

They operate in those areas which are not covered by any law. These principles thus
supplement the law and prevent the occurrence of injustice. In the case of Nagar
Palika, Nataur Vs. U.P. Public Services Tribunal, Lucknow, 1998 SCC
(L&S)567, despite reminders, the employee neither submitted reply to the charge
sheet, nor appeared before the enquiry officer, and neither did he inspect the records,
in spite of the opportunity given to him. In such cases, the findings of the enquiry
officer on the basis of the available records that the charges were proved, was held
not violative of the rules of natural justice.

In the case of Ajit K Nag Vs. General Manager, Indian Oil Corporation
(2005) 7 SCC 764, it was held that non-observance of principles of natural justice
vitiates the order, only when some real prejudice is caused to the complainant by
such omission. The said principles are now applied, having regard to the facts and
circumstances in each case. Where the enquiry officer found one of the charges not
proved, but without issuing a show cause notice, the disciplinary authority found
even that charge to be proved, it was held that the rules of natural justice were
definitely violated causing prejudice to the delinquent.

In the case of Syndicate Bank Vs. Venkatesh Gururao Kurati 2006(2)

SCALE 101, it was held by the Supreme Court that non-supply of documents on
which the enquiry officer does not rely during the course of enquiry, does not create
any prejudice to the delinquent officer, so there is no violation of the rules of natural
justice.

In the case of Chatterji Vs. Durgadutt, 23 Cal LJ 436, it was held that the law
never acts by stealth; it never condemns any one unheard, so that a personal
judgment rendered against a party without notice or an appearance by him, is
vitiated by the same infirmity as a judgment without jurisdiction.

Nemo debet esse judex in propria causa

The maxim means that no person can be a judge in his own cause. The fundamental
rule of natural justice in departmental proceedings is that the disciplinary authority
should be impartial and free from bias. It must not be interested in or related with
the cause which is being decided by him. The personal interest can be in the shape of
some pecuniary benefit or some personal relation or even ill-will or malice or any
official bias against any of the parties. The real test is whether a man of ordinary
prudence would have a feeling of bias. This follows from the principle that justice
should not only be done, but should manifestly seem to be done. In an important
case of Mukhtar Singh Vs. State AIR 1957 ALL 297, it was held that the hearing must
be by an impartial tribunal, i.e. by a person who is neither directly nor indirectly
interested in the case. One who has any interest in the litigation is already biased
against the party concerned and the findings of such authority are liable to be struck
down.

In the industrial dispute cases, the question of bonafides or mala fides of the
employer carries importance. If it is shown that an employer was actuated by a desire
to victimise a workman, that may in some cases introduce an infirmity in the order of
the disciplinary authority. This is another reason why the enquiry in industrial
matters should be held with scrupulous regard to the rules of natural justice. It
should be noted that the enquiry officer cannot be the person who is himself a
complainant or is related to any of the witnesses or the concerned employee, or has
ill-will or malice against any of the person concerned.

In the case of Anandram Vaswani Vs. Union of India (1983)2 LLN 510, it
was observed by the court that in the domestic enquiries, the enquiry officer, as well
as the witnesses, were from the same establishment, which was sufficient to raise
serious apprehension in the mind of the charge sheeted employee. If some sort of
legal help may be provided to the employee, the balance which is tilted in favour of
the management, may tilt partially towards the delinquent. The court further
observed that the justice should not only be done, but should appear to be done, and
this is not a euphemism for courts alone, it applied with equal vigour to all those who
were responsible for fair play.

Reasoned order
It would be observed that about three or four decades ago, it was not required that
the administrative order or the order of disciplinary authority must be supported
with reasons. It was held by the Supreme Court in the case of Som Dutt Vs. Union Of
India, AIR 1969 SC 414 that there is no rule of natural justice that a statutory
tribunal should always and in every case give reason in support of the decision.

With the evolution of natural justice, a new dimension of reasoned order has been
added to these rules. There is a feeling among legal luminaries that the requirement
of providing reasons for any decision gives an assurance that the evidence relating to
the case has been duly considered by the authority. The findings should also be
supported by reasons because: it facilitates judicial review of findings of the enquiry
officer; findings offer assurance to the parties that the decision is the outcome of
rationality based on evidence as well as the records of the case; and it ensures against
arbitrary or hasty action on the part of deciding authority.

Due to these developments in the legal jurisprudence, now it is being held by the
courts that the order passed by an enquiry officer or administrative agency must be a
speaking order. If the order is not supported by reasons, it will amount to violation of
the rules of natural justice. If the order is passed with reasons, only then will it show
that there was proper appreciation of evidence by the disciplinary authority,
otherwise the aggrieved party will not be in a position to demonstrate before the
appellate authority, as to the manner in which the order passed by the initial
authority is bad or suffers from a particular illegality. It does not mean that the order
must be a lengthy one, and must deal with all minute details like the order of a
judicial court. It must at least show that there was proper appreciation of evidence
and application of mind before passing it.

In the case of Anjali vs. SBI 1993 (2) Bank CLR 372, termination from bank
service was based on findings which were founded on pure suspicion, and surmises
without subscribing, any reason. On appeal, it was held that the order was not a
speaking order, with no application of mind to the points raised by the employee.
Hence, termination from service was quashed, as the principles of natural justice
were violated.

This rule of natural justice of ‘speaking order’ is a comparatively new dimension

added to the principles and now emphasis is placed on giving reasons in the findings.
The concept of social security, length of service of the employee, nature of charges,
gravity of charges, status in life, family circumstances etc are now being given greater
importance by the courts. However, the courts have repeatedly held that no two cases
can be equal; each case is to be decided according to its merits and circumstances.

It would be seen that the rules of natural justice are flexible, and cannot be weighed
in golden scales, nor can it be put in any straight-jacket. It depends on the extent to
which the rights of an individual are affected. The role of these rules is to ensure
justice to both the parties. Their contravention cannot be presumed, unless it can be
shown that injustice has actually been done. In certain matters, only representation
may be sufficient, while in others, full-fledged hearing and cross-examination may be
necessary. What the courts have to examine is that whether non-observance of any of
the rules is likely to prejudice any of the parties.

a) Section 10(9) Constitution- Any court or adjudicating authority shall be

recognized by law and shall be independent and impartial; the case shall be
given a fair hearing within a reasonable time.
 b) The Right To A Fair Hearing (Audi Alteram Partem)

i) Phirinyana v. Spie Batignolles [1995]- Rules of natural justice apply

except where it is stated otherwise.

ii) Cooper v Wandsworth of Works [1893]- A decision should not be made

without first seeking the explanation from the person whose rights would
be affected.

iii) Schmidt v Home Secretary [1969]- Where a party has no right or interest
capable of being infringed or affected there is no case at all.

iv) SRC of UB v UB [1989]- A public authority shall not attach any condition it
pleases to, especially without a fair hearing.

v) Glynn v Keele University [1971]- If the appellant body could cure the
defect, then the aggrieved party would have lost the right to appeal.

vi) Patricia De Lille and Anor v Speaker of the National Assembly [1998] -
Where a statute empowered a public body or official to give a decision
affecting an individual’s right or legitimate expectations, that individual
shall be heard before a decision affecting that individuals right is made.

vii) BHC v Rabana [1997]- The court set aside the decision and made an
order to the effect that the promise the employer went back on should be
initiated, this order is termed substantive relief.

viii) SRC of MCE and Another v Attorney General- Where a female student
falls pregnant, the law or regulation under consideration has to be
reasonable and fair, it should not be a punishment; as the male
counterpart responsible for such pregnancy suffers no punishment at all.

ix) Heatherdale Farms (Pty) Ltd and Others v Minister of Agriculture and
Another [1980] – It is clear on authority that a person who is entitled to
the benefit of the audi alteram partem rule need not to be afforded all the
facilities which are allowed to a litigant in a judicial trial.

2) Legitimate Expectations

Originally formulated by lord Denning in 1969, legitimate expectation has been

defined as the expectation which shall be protected (must be “legitimate”) but may not
amount to a right in the conventional sense[2]. Administrative authorities come out
with certain policies, statutes and actions that create a legal (Legitimate) expectation,
which when changed or altered deprives the individual (or group of individuals) of said
expectation and liberty. It means to say that where a person has no legally enforceable
right or interest, he might have some legitimate expectation, which would be unfair to
deprive him without hearing what he has to say or not fulfilling said expectation[3].

Doctrine of Legitimate Expectation was created to hold governmental action

accountable. It is quite difficult to claim reliefs from governmental policies and
statutes; hence, this doctrine was intended to give relief to people from governmental
actions even when they cannot claim a right under strict understanding of law. It
provides a central space between ‘right’ and ‘no right’, wherein a pubic authority can
be made accountable on grounds of an expectation, which is, legitimate. It helps
maintain and honour policy statements without unfair discrimination to persons
similarly situated.

Types of Legitimate Expectation

Legitimate Expectations are of two types-

1. Procedural- wherein a hearing or other appropriate procedure will be afforded

before a decision is made. It is pertinent to note that a procedure, which has been
followed so far, will be continued.

2. Substantive- That the benefit of treatment on question will be continued.

There are certain factors that have to be taken into consideration while determining
the extent of legitimate Expectation. The Expectation must be a reasonable one. The
nature of representation must be a clear and an unambiguous promise, which is
consistent over a long period of time. However, if the party knows that the assurance
could be obtained in an otherway, then the same would not be considered as a
legitimate expectation. It is also pertinent to show detrimental reliance in all these
cases.

The doctrine of legitimate expectation was introduced into English Law in 1970’s
through the Schmidt case; however, it is pertinent to note that the doctrine was
followed well before it was established. It had developed over time and the test of just
and reasonable exercise of power was taken. The fact that decision-maker proposes
to move away from its own policy creates a burden of justification as per the relevant
standards or rationality and relevance. This means that an obligation is created to
justify said departure from policy. The courts duty in such cases would not be to
impede the executive authority but rather reconcile its continuing need to initiate or
respond to the change with regard to the legitimate expectations relied on by the
citizens.

A similar stance was recognized in India as well. The doctrine was developed in the
Indian Judicial system after the Schmidt case; however, its principles had been
followed since time. The importation of this doctrine is recent and its first reference
was made in the State of Kerala Vs K.G. Madhavan Pillai case. The court in the case
held that the stay on the sanction order to open new schools and upgrade new ones
violated the legitimate expectation created to the respondents thereby violating the
principles of natural justice thereby vitiating said administrative order. It is also
pertinent to note that where an individual has a legitimate expectation to be treated
in a certain way, it’s the administrative authorities duty to ensure that the he is given
a fair hearing before denying such expectation. This doctrine of fair hearing may
arise through a promise or an established practice.

The Navjyoti Co-operative Group Housing Society Vs UO took a similar decision,

wherein the Apex Court held that changing the criteria requirement for allotment of
land to co-operative societies was violating them of their legitimate expectation, their
benefit ascertained to them hence adversely affecting them, and are therefore
entitled to a fair hearing.

The case of Punjab Communications Vs UOI and Ors, states when a legitimate
expectation may arise-

• If there is an express promise held out or representation made by a public

authority, or

• The existence of past practice which the claimant can reasonably expect to
continue, and
 • Wherein the promise or representation is clear and unambiguous

• Wherein the representation in question can be made either to an individual or

to a class or person.

The doctrine of legitimate expectation is analogous to the principles of natural

justice. It ensures fairness, reliance and trust in the government and equality in the
administrative and legal system. The doctrine ensures that government authorities
are held responsible for their action, which ensures regulation and control of power
and authority. However, there are many who argue against the same. They state that
policy-making exercise should not be unduly fettered.

Liberty to make policy is inherently a constitutional duty of the government. This

schema is derived from the authorities, and it is intended to represent a step towards
a determinate set of rules that is designed to strike a balance between the general
public interest and interests of individuals led by public authorities believing that
they would act in a particular way that would benefit them.

While this does make a valid claim, it is creates a leeway for government authorities
to abuse authority and avoid liability for the same. This doctrine in a way creates a
safety net against misuse of power by government authority making it an important
mechanism to smoothly run the country.

CASES

Mokokonyane v Commander, BDF [2000]- A decision affecting ones

legitimate expectations must:

i) Alter the rights and obligations of that person which are enforceable by or
against him in private law.

ii) By depriving him of some benefit or advantage which-

(1) He has in the past been permitted to enjoy and which he can legitimately expect
to be continued to do until it has been communicated to him some rational
ground for withdrawing it on which he had been given a hearing or,

(2) He has been notified by the decision maker that he will not withdraw without
first giving him an opportunity to be heard.
AG v Tshiamo Ndebele and Others- When a court sets aside a decision, it does
not award/give you anything. Substantive legitimate expectations were a conferred
benefit by the court, and that is awarded.

R v North and East Devon Health Authority exp Coughlan [2000]- Where a
court considers that a lawful promise or practice has induced a legitimate expectation
of a benefit which is substantive, not simple procedural, the court will decide whether
to frustrate the expectation is so unfair that to take a new and different course will
amount to abuse in power.

3) The rule against bias (nemo judex in causa sua)

a) Patricia De Lille and Anor v Speaker of the National Assembly [1998]- Dimes
v Grand Canal Function- Where a party or judge/ decision maker has an
interest in the suite eg. Shares with/ at one of the parties, he shall be
disqualified from sitting as a judge.

b) Metropolitan Properties Co. Ltd v Lannon 1969- The test for apparent bias is
whether or not right minded persons would think that, in circumstances there
was a real likelihood of bias on his part. The judge/ decision maker cannot sit
if the test is found to be affirmative.

c) R v Sussex Justice Exp. Mcathy [1924]- The mere appearance of bias is

sufficient to overturn a judicial decision. (R v Bow Street is the same)
 ACCESS TO JUDICIAL REVIEW (LOCUS STANDI)

In judicial review proceedings it is not the function of the Court to assess the
merits of the decision under challenge. The issue is whether the decision was
lawful, not whether it was ‘right’. Evidence not before the decision-maker, such as
that of experts relating to the period after the decision was made, is seldom
required to resolve that issue.

The admissibility of expert evidence will depend on what type of evidence it is.
Whilst statements of fact may assist the Court in understanding the context of the
decision in question, statements of expert opinion will only be admitted if they
were available at the time of the decision, and those amounting to legal argument
will generally be given little weight.

The Court will try to take a proportionate approach to inadmissible evidence at

the interlocutory stage. Parties will not necessarily be required to re-file
statements. Instead, the Court may invite them to make submissions at the
substantive hearing as to the appropriate weight to be given to particular
passages.

Who can take action?

The courts do not permit just anyone who feels the government has behaved
wrongly in taking a particular administrative action or administration decision to
bring a case. It must first be shown that the person has standing to sue (that is a
relevant or sufficient interest in the matter in dispute).
At one time it was necessary to show some interference with a legal right,
especially a right of property. In recent years it has been recognised that there are
many matters not involving the loss of property that can damage or affect
peoples' lives.

Sufficient interest
A person clearly has standing to sue if she or he has personally been affected by a
decision or action by government. Where the action in question is more general
and does not operate specifically against a particular person, judicial review may
be difficult to obtain. In recent years the test for standing has broadened to
include persons or organisations who can demonstrate some special interest in
the subject matter.

Attorney-General's fiat
The representatives of a group may ask the appropriate Attorney-General to
initiate proceedings on their behalf. This is called an Application for a Fiat.

Prerogative writs and equitable remedies

This rarely used group of remedies is historically important in understanding
administrative law and is also important in relation to decisions for which there is
no remedy.

A person who wants to challenge a government action by judicial review must be

prepared to do so in a higher court. There are several problems facing anyone
who considers such a step, including the relatively complicated legal work
involved, the consequently high legal fees and the intimidating atmosphere of the
courts, created by both the physical environment and the high level of legal
argument.

The remedies available are limited in effectiveness since the courts are concerned,
in theory at least, only with the legality of the process rather than whether the
decision under challenge was the correct one. Furthermore, all the remedies are
discretionary. The court may take into account such factors as delay in seeking
the remedy, the futility or usefulness of granting it, and the hardship caused to
others by granting it.

Remedies available in common law judicial review proceedings are

the prerogative writs of :
• Mandamus
• Prohibition
• Certiorari
• Quo warranto
Equitable remedies potentially available are:
• Declaration
• Injunction.

Declaration
A declaration (sometimes called a declaratory order or declaration of right) is a
formal statement from the court that a decision, act or procedure is unlawful. The
government will normally comply with the spirit of the decision; the problem is
that a declaration is not legally binding.

Injunction
When a court makes an injunction, it may order the body which has acted
unlawfully to take a particular action (a mandatory injunction) or, as is more
usually the case, it may order that a particular unlawful course of action cease (a
negative injunction). The courts are not inclined to make mandatory injunctions
because they involve the court in continual supervision of the conduct of the
person or body. A court will only issue an injunction if it is satisfied that the body
which has acted unlawfully may, or will, continue to do so - that is, it is a
discretionary remedy. This also applies to a declaration.

Mandamus
Mandamus is an order requiring a public body or official to perform a duty which
it has failed to perform. The important point here is that the body or tribunal
must be shown to have failed to carry out a duty.

Prohibition
Prohibition is an order to a lower court, tribunal or similar decision making body
requiring it to cease proceedings. This order should be sought where a body has
failed to exercise its jurisdiction properly or failed to provide natural justice, and
these proceedings are continuing. However, it should be noted that as a matter of
practice people seeking judicial review of a Commonwealth body's processes in
the High Court always seek prohibition regardless of whether an order has been
made.
 Certiorari
Effectively, certiorari is an order setting aside the decision of an authority. After a
decision-making body has finished its proceedings and made an order, and when
there has been an alleged error or abuse of process by the decision making body,
the appropriate remedy is an order for certiorari to transfer the proceedings to a
higher court so the matter can be reheard, and the decision of the lower court
quashed (set aside). Certiorari can be sought where there has been absence or
excess of jurisdiction, jurisdictional error or error of law on the face of the record,
failure to observe the requirements of procedural fairness or fraud.

Quo warranto
An order preventing a person from wrongfully exercising, or purporting to
exercise, functions of a public character.

Buxton v Minister of Housing and Local Government [1961]

i) The scheme of town and country legislation is to restrict development for

the benefit at large and not to confer new rights on any members of the
public.

Boyce v Paddington Borough Council- A plaintiff can sue without joining the
AG in two cases:

ii) Where the interference with the public right is such that some private right
of his is at the same time interfered with. For example, where an
obstruction is placed on a highway and this obstruction prevents the party
from accessing his premises.

iii) Where no private right is interfered with, but the plaintiff in respect of
his private right suffers special damage peculiar to himself, from the
interference with the public right.

R v Secretary of state for foreign and commonwealth- In a rare case, a public

spirited individual may be permitted to apply for judicial review in relation to a
matter in which he has no direct personal interest separate from the population as a
whole.
R v Inland Revenue Commissioner- If a body were proposing to exercise of
refrain from exercising its powers not for good reasons, that action or in action would
be ultra-vires and would be a proper matter for judicial review if it were brought to
the court by an applicant with a sufficient interest in having the body compelled to
observe the law. It would be a defect in public law if a pressure group or a single
public spirited taxpayer was prevented from bringing the matter to the attention of
the courts.
 ACCESS TO GOVERNMENT INFORMATION AND PUBLIC INTEREST
IMMUNITY

Public Interest Immunity—previously known as Crown privilege—is an exclusionary

rule of evidence. When it applies, it excludes relevant evidence (usually but not
exclusively documents) from production in court. Thus when the rule applies the
public interest in the due administration of justice has given way to a greater public
interest that calls for the evidence in question to remain secret. It has been much
discussed recently, not least in the Scott Report which made several suggestions for
reform and, more significantly, revealed in detail how PII claims were used by the
government in litigation. The government has responded by announcing important
reforms. A review of developments is thus appropriate.

An high-level definition of public interest immunity [‘PII’] was provided in the case
of R v. Chief Constable of West Midlands, ex p Wiley , in which it was stated: Public
interest immunity is a ground for refusing to disclose a document which is relevant
and material to the determination of issues involved in civil or criminal proceedings.
A claim [for] public interest immunity can only be justified if the public interest in
preserving the confidentiality of the document outweighs the public interest in
securing justice.

In this case, Lord Woolf set out the questions which must be answered in order to
determine whether or not PII should be granted in regard to a particular document/
piece of information. These enquiries are as follows:

I. Enquiries to be made by government ministers:

This generally applies to applications for PII made by government ministers. Before
submitting the claim to the Courts the decision-makers must engage in a ‘balancing
exercise’ to determine on the balance of probabilities whether the prima facie duty to
disclose outweighs the duty to grant PII on the document/ information in question.
Where this body feels that it does, then it will discontinue the case, effectively
allowing disclosure of the document; but, where it is uncertain or feels that it does
not, then it will submit a certificate to the Court requesting that PII be granted,
providing reasons for its decision. The Court will then decide if PII should be
granted.

II. Enquiries to be made by the Court:

Is the document/ information relevant to the proceedings to the extent that there is
a prima facie duty to disclose that document to all parties involved in the
proceedings?

If the answer to the first question is yes, then are the contents of the document/
information of the kind which are capable of attracting PII or does the document fall
within a class of documents which is recognized as being able to attract PII?

From the nature of these procedural enquiries it can be seen that there exists a
tension between the rights of an individual litigant (or group of litigants) to enjoy full
disclosure of all documents relevant to his case and the public interests which justify
the imposition of PII; after all, where such a tension does not exist the Courts will
either deem the document/ information irrelevant by virtue of enquiry II, in which
case there is no need for PII to be granted as the document will not be admitted into
the proceedings anyway; or, incapable of attracting PII because it’s content are not of
the kind or the document is not of the class which can attract PII.

R v Chief Constable of the West Midlands Police Force exp Wiley [1995] 1
A.C. 274, [1994] 3 ALL ER 420:
The recognition of a new class based public interest immunity requires clear and
compelling evidence that it is necessary.
NB: Statements made against the public do not attract public

Conway v Rimmer (1968)

The House of Lords unanimously overruled Duncan v Cammell Laird and Co (1942).
The first case concerned the question of whether a claimant could get the defendant
to disclose documents during wartime which related to the design of a submarine.
The second case concerned whether a probationary police officer could insist on
getting disclosure of reports written about him by his superintendent. In the earlier
case, the House of Lords held that an affidavit sworn by a government minister was
sufficient to enable the Crown to claim privilege not to disclose documents in civil
litigation without those documents being inspected by the court. In the later case,
their Lordships held that the minister’s affidavit was not binding on the court. The
second decision held that it is up to the court to decide whether or not to order
disclosure. This involves balancing the possible prejudice to the State if disclosure is
ordered against any injustice that might affect the individual litigant if disclosure is
withheld. Today, the minister’s affidavit will be considered by the court, but it is no
longer the sole determinant of the issue.

Burmah Oil Co Ltd v Bank of England (Attorney-General intervening)

[1979] 3 All.E.R.700

Facts: Burmah Oil (B) was in financial difficulties and sought a lending facility from
the Bank of England. Following lengthy negotiations between B and the Bank of
England, the Bank provided the facility in return for taking ownership of the shares
in B. Although there was a drop in the share prices when the Bank of England took
ownership, there was, eventually, a significant increase in the share prices. As a
result, B brought proceedings against the Bank of England, seeking to rescind the
agreement on the basis that the Bank had acted unconscionably and inequitably.

Issue: Whether B’s claim was successful.

Held: The House of Lords rejected the claim and held that this type of equitable
doctrine did not apply to a borrower in such circumstances, despite B being in
financial difficulties.

A.G v Jonathan Cape 1976 Q.B 752.

Facts
A Cabinet minister kept a diary of Cabinet discussions and events with the intention
to once publish the contents in a book. After the minister’s death, volume one of the
book (Diaries of a Cabinet Minister) was sent for approval to and rejected by the
Secretary of the Cabinet. Despite an undertaking by literary executors not to publish
the book without prior notice to the Treasury Solicitor, parts of the book were
published wihout consent. The Attorney-General applied for an injunction against
the publishers.

Issues
The reason for the Attorney-General’s request for an injunction was publishing the
book would be contrary to the public interest. More specifically, the doctrine of
collective responsibility required details of Cabinet discussions and potential
differences to be kept confidential.

Decision / Outcome
The Court held that it had the power to stop the publication of information that was
in breach of confidence based on public policy grounds. The preservation of the
doctrine of collective responsibility within the Cabinet was held to be in the public
interest. Agreeing with the Attorney-General, the Court found that the revelation of
individual Mnisters’ views and opinions disclosed within the framework of
confidential Cabinet meetings would undermine the doctrine – at least until a certain
period time passed. In this particular case, however, 10 years had passed and the
volume one did not contain any information that should have remained confidential.
Consequently, the injunction was rejected and publication was allowed to go ahead.
TESTS AND EXAMS:

(all of our tests and exams were in person and so we don’t have soft copies, or copies,
so I have attached the latest exam available for your ease and practice on the next
page)
These notes have been compiled through the use of Botswana Law
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and Lecture Notes

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