A K KRAIPAK A CASE ANALYSIS * AAKRITI THAKUR INTRODUCTION Natural justice has been defined as a pervasive facet of secular law making fairness a creed of life. 1 These principles have been described as judge made rules or an example of judicial activism. 2 It was seen to be developed by the courts to prevent accidents in exercise of outsourced power of adjudication to administrative authorities. The principles of natural justice are not new age terms but have been a part of legal world for a long period now. The principles embody the rule of law that our Constitution enshrines in its basic structure. These principles are, however, not codified and can be attributed to judicial activism at times. They are seen to imbibe fairness, reasonableness, equity and equality 3 and to refer to the higher procedural principles developed by judges which every administrative agency must follow in taking any decision adversely affecting rights of a private individual. The Supreme Court with regard to natural justice has held the following: It has many colours and shades, many forms and shapes and, save where valid law excludes, it applies when people are affected by acts of authority. It is the bone of healthy government, recognised from earliest times and not a mystic testament of judge-made law. Indeed from the legendary days of Adam-and of Kautllya's Arthashastra-the rule of law has had this stamp of natural justice, which makes it social justice. We need not go into these deeps for the present except to indicate that the roots of natural justice and its foliage are noble and not new-fangled." 4 The necessity to follow such rules arose from the fact that in India, no minimum guidelines were prescribed for administrative bodies for exercising their decisions-making power. The principles therefore became the basis on which acts of administrative bodies were to be judged and the administrative bodies were required to comply with these principles in order to be reasonable while making its decisions. This was emphasized by the Hon ble Apex Court in the case of A. K. Kraipak v. Union of India 5 wherein they emphasized that the consequences of administrative actions, be it quasi-judicial or purely administrative in nature, 1 Mohinder Singh Gill v. Chief Election Commissioner, AIR 1978 SC 851. 2 I. P. MASSEY, ADMINISTRATIVE LAW, 195 (Eastern Book Company, 7 th ed, 2008). 3 Id at 196. 4 Supra note 1. 5 A. K. Kraipak v. Union of India, AIR 1970 SC 150. 1
can have varied impact on the rights of private persons and so the same should be exercised while following the basic principles of natural justice to ensure that the actions so undertaken are reasonable and fair. The case laid down the law with regard to the maxim of nemo judex in causa sua, i.e., no man will be a judge in his own cause. One important aspect of this maxim is fairness and the absence of biasness. This rule ensures that a judge, while deciding on any matter, should be impartial and without bias. However, in order to determine whether biasness exists in the mind of a judge or not, one should be well versed with the meaning of the term bias. Bias has been defined as an operative prejudice, whether conscious or unconscious. The requirement of this rule denotes that the judge must be impartial and must decide the case objectively on the basis of the evidence on record. 6 Therefore, if a person cannot take an objective decision for whatever reason, he shall be held to be biased. The rule therefore comes into play if it is shown that the officer concerned has a personal connection or personal interest or has personally acted in the matter concerned and/or has already taken a decision one way or the other which he may be interested in supporting. 7 Since it is nearly impossible to prove without any reasonable doubt the existence of biasness or mala fide intentions, the Court propounded that existence of real likelihood of biasness which can be inferred from mere suspicion of biasness would be a contributing factor in vitiating the decision so taken by the person in question. Hence, it has now become settled law that any show of favour or disfavour, antagonism, hostility, spite, prepossession which has the power to sway the mind will lead to violation of principles of natural justice. The rule of natural justice disqualifies the judge and any decision made by him if he is found to be biased in any manner. However, the critical point of how to determine existence of biasness was another issue propounded by the Court in the Kraipak case. The case therefore focuses on the intricacies involved in exercising administrative functions and the laws required to regulate the same. The five judge bench very aptly decided the case in a manner that the mischief was remedied and future mischief would have been suppressed and the purpose of ensuring fairness in actions of government was encouraged. 6 IP Massey, supra note 2, 201. 7 Crawford Bayley & Co. V. Union of India, (2006) 6 SCC 25. 2
A comparison with cases preceding A.K. Kraipak The application of the principles of natural justice can be found initially in the courts 8, i.e., in respect of judicial functions and from there it was extended to quasi-judicial functions of statutory bodies. 9 The principle found its birth in an expression of English common law, focusing on the procedural requirement of fairness. In India, the principles are found embodied in the Constitution, even though the term itself is not used as such. The Preamble embodies social and economic justice, Article 311 embodies almost all the principles of natural justice, duty to act fairly can be found in Articles 14 and 21 of the Constitution; and so on and so forth. The enforceability of these principles therefore gained enough weightage due to their embodiment in the Constitution and the principles can hence be found in various judgments of the various courts in our country. The case of State of U.P. v. Vijay Kumar Tripathi 10 led to the Supreme Court declaring that principles of natural justice must be read into the provisions of a law. Various other cases held the same and therefore gave rise to enforceability of the principles of natural justice. 11 The application however became obscure when the question arose with respect to administrative actions. The cases of Kishan Chand v. Commissioner of Police 12 and Bapu Rao v. State 13, the Courts held that the said principles would only be applicable to quasi-judicial functions and not administrative functions. Furthermore, the judicial or quasi-judicial tribunals were required to conform to the principles in order to maintain the rule of law. 14 The same view has been taken in number of subsequent cases. 15 The application of natural justice to administrative actions can be found in the case of Ridge v. Baldwin 16, a 1963 U.K. case law which had been referred to as the Magna Carta of principles of natural justice. The House of Lords laid down that all functions of administrative actions have to comply with the principles of natural justice. However, the same did not find its application in India until much later. The case specified that to say that a 8 Rattan v. Managing Committee (1993) 4 S.C.C. 10; Yadav v. J.M.A.I, (1993) 3 S.C.C. 259. 9 Durga Das Basu Administrative Law, 239 (Kamal Law House Kolkata, 6 th ed., 2004). 10 State of U.P. v. Vijay Kumar Tripathi, 1995 Supp (1) SCC 552. 11 Hindustan Petroleum Corpn. v. H. L. Trehan, (1989) 1 SCC 764; D. K. Yadav v. J. M. A. Industries Ltd, (1993) 3 SCC 259; State Bank of India v. K. P. Narayan Kutty; (2003) 2 SCC 449. 12 Kishan Chand v. Commissioner of Police, AIR 1961 SC 705. 13 Bapu Rao v. State, AIR 1956 Bom 300. 14 Cf. Rep. of the Committee on Ministers Powers, (1932) Cmd. 4060, p. 75. 15 G. N. Nayak v. Goa University, AIR 2002 SC 790; Radheshyam v. State of M.P, A. 1959 S.C. 107. 16 Ridge v. Baldwin, [1963] APP.L.R. 03/14. 3
statutory function is not quasi-judicial but administrative is not to say that such authority has not to observe the rules of a fair play. This view was explained by eminent scholar and judge Durga Das Basu to mean that all statutory powers, including those which are administrative, must be exercised reasonably and bona fide and not arbitrarily. 17 Ridge case therefore brought new liberality in approach to the question of application of principles of natural justice. In India, the case of State of Orissa v. Dr. Bina Pani 18 laid down the law with regard to the principles of natural justice in India. The Supreme Court held that the principles will have to be made applicable to all administrative actions ensuing civil consequences. The term civil consequences was defined as whereby a person whose rights are affected or is having dispute in relation to authority deciding the matter. Therefore, the case initiated the application of principles of natural justice to administrative actions with civil consequences as well, in contrast to the other cases depicting the application only to quasi-judicial functions. The above mentioned case laws depict a narrower application of the principles of natural justice to various actions of the Government. This view was expanded in the Kraipak case and therefore depicted a shift from the earlier situation. Therefore a development in the scope of this facet of law was brought about with the Kraipak case. 17 Durga Das Basu, supra note 11, 294. 18 State of Orissa v. Dr. Bina Pani, AIR 1967 SC 1269. 4
Case Facts Under Rule 4(1) of the Indian Forest Service (Recruitment) Rules, 1966, the Central Government was vested with the power to recruit to the service any person from amongst the members of the State Forest Service adjudged to be suitable. 19 The Regulations framed there under were Indian Forest Service (Initial Recruitment) Regulations, 1966; and Regulation 3 of the said Regulation provided for constitution of a special selection board, which included the Chief Conservator of Forests of the State Government concerned. The Central Government thereafter constituted a special selection board as per the provisions of the Regulation for selecting officers in the senior scale and in the junior scale to Indian Forest Service from those serving in the forest department of Jammu and Kashmir. The issue arose when Naqishbund, promoted as Chief Conservator of Forests but not yet confirmed, had his name listed at the top in the selection list whereas his competitors, M. I. Baig (Conservator of Forests), G. H. Basu (Conservator of Forests in Kashmir Forest Service) and A. N. Kaul (Conservator of Forests) were not selected at all. Naqishbund was also one of the candidates for the All India Service and was selected for the same. He did not sit in the Board during selection being considered for him. But he did sit in the board when the names of Basu, Baig and Kaul were considered and also when the list was being prepared in order of preference. A petition was filed by the Gazetted officers Association represented by A. K. Kraipak under section 32 of the Constitution challenging the impugned selection list so prepared by the selection board. A five judge bench was constituted to decide the matter of the case. The question before the Court was therefore whether principles of natural justice can be made applicable to the administrative actions, and if so whether biasness of Naqishbund was a disqualifying factor or not. The Court held the following: The dividing line between an administrative power and a quasi-judicial power is quite thin and is being gradually obliterated... Under our Constitution the rule of law pervades over the entire field of administration. Every organ of the State under our Constitution is regulated and controlled by the rule of law. In a welfare State like ours it is inevitable that the jurisdiction of the administrative bodies is increasing at a rapid rate. The concept of rule of law would lose its vitality if the instrumentalities of the State are not charged with the duty of discharging their functions in a fair and just manner. 19 Indian Forest Service (Recruitment) Rules, 4(1) (1966). 5
The requirement of acting judicially in essence is nothing but a requirement to act justly and fairly and not arbitrarily or capriciously. The procedures which are considered inherent in the exercise of a judicial power are merely those which facilitate if not ensure a just and fair decision. In recent years the concept of quasi-judicial power has been undergoing a radical change. What was considered as an administrative power some years back is now being considered as a quasi-judicial power 20 Therefore the Court laid down that the principles are to be applied to administrative actions also. The next question addressed to by the Court was of the exercise of biasness on part of Naquishbund. The main factors it considered were that of human probabilities and ordinary course of human conduct. It held: It was in the interest of Naqishbund to keen out his rivals in order to secure his position from further challenge. Naturally he was also interested in safeguarding his position while preparing the list of selected candidates... In a group deliberation each member of the group is bound to influence the others, more so, if the member concerned is a person with special knowledge. Ms bias is likely to operate in a subtle manner. It is no wonder that the other members of the selection board are unaware of the extent to which his opinion influenced their conclusions 21 Therefore the Court struck down the decision taken by the Selection Committee in lieu of the above mentioned contentions and held that the principle of nemo judex in causa sua was violated in the present case. 20 A. K. Kraipak v. Union of India, AIR 1970 SC 150. 21 Id. 6
Later Developments and Recommendations A. K. Kraipak became the precedent for the innumerable cases which followed after it. The point of law however remained the same or not will be depicted from the cases mentioned below: The Supreme Court in the case of Mohinder Singh Gill v. Chief Election Commissioner 22, propounded that natural justice was a pervasive facet of secular law and that it applies where people were affected by acts of authority. The landmark judgment of Maneka Gandhi v. Union of India 23 also found the application of the principles of natural justice along the precedent of Kraipak case. The precedent of A. K. Kraipak was followed in the recent cases of Rajendra Shankar Shuka and Ors. v. State of Chhattisgarh and Ors. 24 and The D.F.O, South Kheri and Ors. v. Ram Sanehi Singh 25. The case of A. K. Kraipak has become the source from which a river of case laws emerged deciding matters regarding application of principles of natural justice. It can clearly be seen that the case is a landmark judgment which led to the development of administrative law and has contributed to the strengthening of the concept of rule of law in our country. It brought within the sweep of principles of natural justice the actions performed under administrative functions as well and not only under quasi-judicial functions. The five judge bench correctly construed that administrative actions can have varied impact on the rights of private persons, sometimes the impact is more severe than one which could have been made through quasijudicial functions. Hence, the recognition of the basic standards whereby due procedure is followed and it does not lead to wrongful disadvantage of private persons becomes necessary and the same was afforded by the Hon ble Court in this case. The Court rightly pointed out, in this regard, that the dividing line between quasi-judicial functions and administrative functions is becoming increasingly obscure; as both the powers were decision making powers and therefore the duty to act fairly was a crucial duty imposed on the exercise of both the powers. 22 Mohinder Singh Gill v. Chief Election Commissioner, AIR 1978 SC 851. 23 Maneka Gandhi v. Union of India, 1978 AIR 597. 24 Rajendra Shankar Shuka and Ors. v. State of Chhattisgarh and Ors., AIR 2015 SC 3147. 25 The D.F.O, South Kheri and Ors. v. Ram Sanehi Singh, AIR 1973 SC 205. 7
The words of Justice Hewart in the case of R v Sussex Justices, Ex parte McCarthy 26 must be cited here: Not only must Justice be done; it must also be seen to be done 27 Giving due regard to this statement, the application of principles of natural justice gives the scope to judges to remedy any wrong done by executive in discharge of its quasi-judicial and administrative functions. The judiciary therefore gets vested with the power to make sure that justice is not only done, but it is seen to be done as well. The principles ensure the basic standard provisions which every authority must follow in order to ensure that the power exercised is not arbitrary or unfair. The principles humanize the actions of executive and provide hope for fair play among the private persons. One recommendation which is given at this stage is to create and adjudicatory and regulatory body or tribunal for determining whether the basic principles of natural justice had been complied with by various organs of the government and to provide remedy to private persons affected from violation of the principles of natural justice. This step would lead to the development of this specific area of law, leading to the specifications for exercise of the principles being laid down through judgments given based on specialised knowledge of the adjudicators. Furthermore, the actions of bodies will be regulated by a specialised body responsible solely for the same and will lead to faster rectification of wrongs and lessening of the burden on the Indian judiciary for deciding cases where such application of principles of natural justice are called into question.the existence of Administrative Tribunals can be used in furtherance of this step wherein the Tribunals can be vested with the extensive power of declaring any action of executive void if it violates principles of natural justice, and thereby keep a check on such actions of the body.the case of A. K. Kraipak can hence be seen to be the source of a vast knowledge of law which has been developed by Courts in various judgments and has to be further developed in light of the increasing complexities faced in cases every day against the actions of executive. The case led to opening of minds and delivery of justice through the application of principles of natural justice and it also became the base on which many of the major judgments rest today. Therefore, a better understanding of this judgment will lead to better delivery of decisions in administrative matters and this paper through its analysis had provided for the same. 26 R v Sussex Justices, Ex parte McCarthy, [1924] 1 KB 256. 27 Id. 8