Gujarat National Law University

ADMINISTRATIVE LAW PROJECT

Mohinder Singh Gill & Anr v The Chief Election

Commissioner, New Delhi & Ors

Submitted to:

Mr Girish K

Assistant Professor of Law &

Faculty Convenor, Moot Court Committee

Submitted by:

Shubham Phophalia

BA LLB 16B153

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 Table of Contents

Sr No. Title Page No.

1. Acknowledgement.........................................................3
2. Introduction...................................................................4-7
- Development of Doctrine r/w position in
Britain
- Ridge v Baldwin
- Emergence of concept of fairness
- Issues in Concept
- Relation of Mohinder Singh case with right to
Fair hearing
3. Concept of Audi Altrem Partem...................................8-13
4. Audi Altrem Partem in India.........................................14-15
5. Right to fair hearing and MS Gill case.........................16-23
- Bench
- Issues and Facts of the case
- Arguments on behalf of petitioners
- Arguments on behalf of respondents
- Supreme court’s view along with reasoning
6. Views and Crux Findings...............................................24-25
7. Development of doctrine...............................................26-27
8. Conclusion.......................................................................28-29
9. Suggestions......................................................................30

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 Acknowledgement

Thanks to the Almighty who gave me the strength to accomplish the project with sheer
hard work and honesty. This research venture has been made possible due to the
generous co-operation of various persons. To list them all is not practicable, even to repay
them in words is beyond the domain of our lexicon.

This project wouldn’t have been possible without the help of my mentor Mr. Girish R.
who had always been there at my side whenever i needed some help regarding any
information. He has been my mentor in the truest sense of the term. The administration
has also been kind enough to let us use their facilities for research work. I thank them for
this and am grateful to them.

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 Introduction

An important concept in Administrative Law is that of natural justice or right to fair

hearing, being characterized as “fair play in action”. Natural Justice is a term that denotes
specific procedural rights. Although natural justice has an impressive ancestry and is said
to explain close relationship between common law and moral principles, it is not to be
confused with natural law of “canonists”, the medieval philosophers vision of 18th century.

Natural Justice comprises of two components, one of which is doctrine of Audi Alteram
Partem, which means listen to other side. The whole edifice is built upon adage that no
one should be condemned unheard. It is regarded as a fundamental principle of civilized
jurisprudence that a person against whom some action is proposed to be taken, ought to
be given a reasonable opportunity to defend himself. Besides promoting an individual’s
liberties, the right to fair hearing has also been used by courts as a base to build up
administrative procedures. It gives a sense of participation to concerned persons in
decision making.

a) Development of doctrine r/w Position in Britain

The year 1963 proved to be a watershed in development of concept of natural

justice in common law world. Before 1963, in England, the judicial attitude was
restrictive as regards to applicability of this doctrine and courts refused to apply it
to various proceedings by characterising them as administrative rather than Quasi-
Judicial. It could not be claimed when only a privilege and not a right was being
withdrawn. In Nakkuda Ali v Jayaratne1, cancellation of cloth dealer’s licence
without hearing by Privy Council was held justified because the same is not
required when executive action is taken to withdraw a privilege and also no “super
added” duty laid on controller to hear affected person.

1
(1951) AC 66;Jain, Cases, 473.

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 Lord Atkin in R v Electricity Commissioners, ex p London Electricity Joint
Committee Co. Also added that there must be some indication in parent act itself
casting a duty on concerned decision maker to hold hearing2.

(b) Ridge v Baldwin

It is regarded as a significant landmark decision in British Administration, also

known as Magna Carta of Natural Justice, since that restrictive judicial thinking
came to an end.
Lord Reid made it clear that whether in a particular case, audi alteram partem was
to be applied or not depended upon nature of duty, or power conferred, thereby he
widened the area within which the principles of natural justice came to be applied
post Ridge. The same rule was applied in Malloch v Aberdeen Corporation3 where
it was held that the employee concerned ought to have been given a hearing before
dismissal.

(c) Emergence of concept of Fairness

The proposition began to be propounded that whether the function being

discharged by Administration may be Quasi Jud. / administrative, it must be
discharged with fairness. In case of H(k) – An infant4, the question was raised as
regards to the nature of duty performed by immigration officer, where Lord Parker
emphasised that even if an immigaration authority wasn’t acting in quasi-judicial
capacity, he must give immigrant an opportunity of satisfying him that boy was
below 16 years. If there is no duty to act judicially, then there is no duty even to be
fair.5

2
(1924) 1 KB 171.
3
(1971) 2 AII ER 1278.
4
(1967) 1 AII ER 226; Jain, Cases, 1, 480.
5
Ibid

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 Since then the horizons of the right of hearing is expanding. The courts have
practically abandoned the classic approach of distinguishing between
administrative and quasi judicial functions. Thus in Pergamon Press 6, it was held
that it’s not necessary to label proceeding judicial, quasi judicial, administrative,
investigatory, it is the characteristics of proceedings that matter not precise
compartments into which they fall.
But enactment of Human Rights Act, 1998 and incorporation of European
conventionon on Human Rights and Fundamental Freedoms have brought a new
dimension, where article 6(1) of the said act provides that in determination of his
civil rights and obligations, everyone is entitled to fair and public hearing within a
reasonable time by an independent and impartial tribunal established by law,
which can be inferred from cases like in R v Secretary for state for Home
Department7 and Sheridan v Stanley Cole8

(d) Issues in Concept

1) Right to Notice
2) Right to know evidence
3) Right to claim for evidence in presence of other party
4) Right to Rebut – Right to cross examination and Right to legal representation
5) Right of other party to produce evidence
6) One who hears must decide
7) Reasoned decision/sound order

(e) Relation of Mohinder Gill case with Right to Fair Hearing

6
(1970) 3 AII ER 535, 541-542; infra.
7
(2005) AII ER 927.
8
(2003) 4 AII ER 1181.

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 The Audi Alteram Partem rule is a very flexible, malleable and adaptable concept
of natural justice. To adjust and harmonise need for acting fairly, it can be
modified and measure of its application cut short in reasonable proportion to
extigencies of the situation. There are various exceptions to this doctrine and one
such is Emergency, which require prompt action to be taken and this case dealt as
to how, “ Natural justice couldn’t be sacrificed in the name of urgency, unless
public injury flowing from least delay is self evident”.

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 Concept of Audi Alteram Partem

Supreme court observed in RS Dass v Union of India9, that rules of natural justice are not
rigid but flexible and depend upon setting and background of statutory provisions, nature
of the right affected, consequences, etc. Fair hearing does not stipulate that proceedings
be as formal, rather the objective is to ensure that fair hearing is given.

The advantage is that since there is a wide variety of adjudicatory bodies functioning in
country, courts can modulate hearing procedure to practical needs of specific body, but
the disadvantage is that in absence of any minimum procedural requirements, no one can
be sure what norms of natural justice are applicable, and thus the law becomes
unpredictable. The best example is Board of Mining Examination v Ramjee10 where it was
held that board gave no notice to short firer and no meaningful hearing done, but still
court upheld boards order saying that job of short fire was hazardous.

Fair hearing has certain components:

1. Notice – The starting point of adjudicatory process is notice to party

concerned detailing case against him of action proposed to be taken. It is
the sine qua non of fair hearing. In Olga tellis v Bombay Municipal
Corporation11, a departure from F/R of natural justice could be presumed by
legislature if circumstances warranted. In Fazal Bhai v Custodian General 12,
proper hearing, if, can be given without service of notice, all that has to be
seen is whether even though no notice was given a reasonable opportunity
being given.
-It has to be served properly to concerned person ( Daman Singh v
Punjab)13.
-Sufficient time to reply

9
AIR 1987 SC 593
10
AIR 1977 SC 965
11
AIR 1986 SC 180
12
AIR 1961 SC 1397
13
AIR 1985 SC 973

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 -A proper notice must indicate time and place of hearing as well as
allegations which notice is required to defend himself. Though not formal
reasons but mentioning of skeletal allegations must be there.

2. Disclosure of materials to party

- No material should be relied on against him without his being given an
opportunity of explaining them. The principle is confined to relevant
and material documents only14.
- Disclosure of Preliminary Inquiry Report: Broader than what SC held,
since Privy Council emphasized that it was not necessary to prove any
prejudice to defendant at inquiry because of withholding material
whereas SC in India, before giving relief in such situations does raise
question whether any prejudice was caused to concerned party by non
supply of material ( Comparison).
3. Hearing
Basic requirement of natural justice that adjudicatory body can’t make
decision adversely without giving him an effective opportunity of meeting
any allegations against him and presenting his own case ( Ridge v
Baldwin)15. Though oral hearing is not a universal rule since it is time
consuming rule and expensive. In cases like, determination of dispute
related to age of HC judge, by government by superseding a municipality,
by deputy registrar while superseding co-operative society, etc, are some of
the cases where personal hearing is not necessary.
4. Receiving evidence in presence of concerned party
- Natural Justice is not illusory, futile or an empty formality
- Statements of witness may even be recorded in the absence of
concerned party and no breach occurred if gist of these statements are
supplied to him.

14
Chandrama Tiwari v India AIR 1988 SC 117
15
Treatise on Administrative Law, MP Jain, Edition 1996, Vol 1, pg 246

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 5. Receiving evidence produced by concerned person
Held in Dhakeswari Cotton Mills Ltd v CIT16 that principles of natural
justice violated by refuse of ITAT to look into account books produced by
taxpayer where he did not have the opportunity to produce earlier. The
proceedings that affect their life and property should not continue in their
absence and they should not be precluded from participating in them.

6. Cross Examination
- Not regarded as an obligatory in all situations.
- In KL Tripathi v State Bank Of India17,” If the credibility of person who
has entitled or something in didpute is found, right of cross examination
must form part of fair play in action but where there is no lis regarding
facts but certain explanation of circumstances, there is no requirement.”
- In USA, this right is better secured as S.556(d) of APA lays down: “A
party is entitled to present his case or defence by oral or documentary
evidence.......and to conduct such cross examination as may be required
for full and true disclosure of facts”.18
7. Right to counsel
- Informality, speed and cheapness as hallmark of administrative
adjudication result from absence of lawyers. According to Allen,
“esperience has taught me that to deny persons who are unable to
express themselves the services of a competent man is very mistaken
kindness”19.
- Comparison with other countries:
- In Australia, appearance of lawyer before a tribunal is rule, his non
appearance an exception.

16
AIR 1955 SC 65
17
AIR 1984 SC 273
18
Schwartz, Administrative Law: A casebook, 534 (1988)
19
Whitmore, The Lawyer in Administrative Justice (1990) 33 MLR 481

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 - In USA, the same is guaranteed by the combined effect of due process
clause of US Constitution and s.555(b) of Administrative Procedure
Act,1946.
- In England, after publication of Franks Report, many of the restrictions
were removed.
- In India, certain statutes recognize while certain not, for eg, S. 282 of
Income Tax Act, 1961.

8. Reasoned Decision
-As Lord Denning emphasized in Breen20 , the giving of reasons for a
decision is one of the fundamentals of good administration. Reasoned
decision is not only for the purpose of showing that the citizen is receiving
justice, but also a valid discipline for tribunal itself.
- Comparison:
In England, the Franks Committee insisted that there should be
adjudicatory bodies to give reasons and S.12 of Tribunals and Inquiries Act,
1958 provides that a tribunal must give written or oral reasons for its
decision, unless grounds of national security requires contrary.
In USA, S.557(c) of Administrative Procedure Act requires that
administrative decisions be accompanied by findings and conclusions.
The statutory obligation to give reasons in USA is broader than in England,
since in USA, this obligation rests on all adjudicatory bodies but only
tribunals in case of England.
- Position in India

The statutory duty to record reasons for decision can be enforced by writ of
mandamus.

20
Breen v AEU (1971) 2 QB 175

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 In Maneka Gandhi v UOI21, the court ruled that authority is not by itself the
final authority to determine the question that non disclosure of reasons is
in public interest. Bhagwati J., stressed that giving reasons is a healthy
check against abuse/ misuse of power as order impounding the passport
can be quashed if the reasons for doing so are irrelevant. Maneka case
represents the high watermark of judicial insistence on adjudicatory
authorities to give reasons for their decisions.

In Harbhajan Singh v UOI22, SC held that u/s 86 of CPC, reasons are must
for granting/rejecting permission to person to sue a foreign embassy.

It was held in Ajantha Industries v Central Board of Direct Taxes 23, that
order is bad on account of non communication of reasons.

In SN Mukherjee v UOI24, “ It is not required that reasons should be as

elaborate as in court of law. The extent and nature of reasons would depend
on particular facts and circumstances. What is necessary is hat reasons are
clear and explicit so as to indicate that authority has given due
considerations to points in controversy.”

Basis to claim Right of Hearing

A person can claim from any of the four sources:

1. The requirement of hearing may be spelt out of certain F/R guaranteed

by constitution.
2. The most significant one is Art. 14

21
AIR 1987 SC 597
22
AIR 1987 SC 9; Jain, Cases, 566
23
AIR 1976 SC 437
24
AIR 1990 SC 1984

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 3. The parent statute under which Administration proposes to take action
against a person may itself impose the requirement of hearing. (Art. 311)
4. A significant but complicated problem arises when right of hearing is
claimed in residuary area, under common law. But the silence of statute
has no exclusionary effect except where it flows from necessary
implication.25

25
Jain, Indian Constitutional Law, Ch 22 (1987)

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 Audi Alteram Partem in India

 The horizons of the right of hearing have been constantly expanding since 1962. In
Board of High School v Ghanshyam Das26, court recognized the nature of right
affected and power conferred on authority as controlling question of hearing.
 Commenting on Ridge, SC stated that extent of area must depend on nature of
jurisdiction and power conferred on an authority by statutory provisions.
 In OP Gupta v India27, SC approved Lord Ried’s opinion. As Hegde J. Observed in
Kraipak28, “The horizon of natural justice is constantly expanding and what was
considered as an administrative power some years back is now considered as a
quasi judicial power.”
 Kraipak is regarded as an epoch making decision as it had immense law creative
potentialities. It widened the area of right to hearing.
 Bhagwati J. In Maneka Gandhi case emphasized that natural justice is a great
humanizing principle intended to invest law with fairness and to secure justice.
The soul of justice is fairplay in action. The law must therefore, now be taken to be
well settled that even in an administrative proceeding, which involves civil
consequences.
 The same was noticed in present case: “The advances made by natural justice far
exceed old frontiers and if judicial creativity belights penumbral areas it is only for
improving the quality of government by injecting foreplay into its wheels. If to
condemn unheard is wrong, it is wrong except where it is overborne by dire social
necessity.”
 With the development which took place from MS Gill case, in the Indian Law case
today, the terms ‘fairness’, ‘fairplay’ and ‘natural justice’ are used interchangeably.
Hearing is now insisted upon in a wide variety of administrative proceedings and
this would not have been possible had the concepts of quasi judicial and natural

26
AIR 1962 SC 1110; Jain, Cases, 616
27
AIR 1987 SC 2258
28
AIR 1970 SC 150; Jain, Cases, 504

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 justice because hearing serves as a safeguard against administrative arbitrariness in
decision making.
 But the fact remains that in India, the two concepts, quasi judicial and natural
justice have not gone out of vogue, one it is necessary to do so for purpose of Art.
32 for as SC has ruled in Ujjam Bai29, the court will entertain a writ petition against
the decision of qusi-judicialbody only if it has committed an error of jurisdiction
and not merely an error of law. Second, if parent statute does not so require an
administrative body is not required to give reasons for its decision, but a quasi
judicial body is so obligated to give reasons as held in Mahabir Jute Mills case 30.
Third, a quasi judicial body can’t review its own decision, but not such restriction
on an administrative body.

29
AIR 1962 SC 1621
30
AIR 1975 SC 2057

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 Right to Fair Hearing and MS Gill case

Citation : AIR 1978 SC 851

Bench :
KRISHNAIYER, V.R.
BEG, M. HAMEEDULLAH (CJ)
BHAGWATI, P.N.
GOSWAMI, P.K.
SHINGAL, P.N.

Main Acts involved: Representation of People Act, 1951 - Sections 58; Conduct of
Election Rules, 1961 - Rule 56(1); Constitution of India - Article 226

Issue: This is a petition under Article G 226 of the Constitution of India on behalf of Shri
Mohinder Singh Gill, a Congress candidate from the '13-Ferozepore Parliamentary
Constituency, Punjab' and Shri Nasib Singh, a voter and supporter of petitioner No. 1, for
quashing the notification dated 22nd March, 1977, issued by the Election Commission of
India, ordering the cancellation of poll held in the aforesaid Constituency and ordering
the repoll in the entire aforesaid Parliamentary Constituency. A writ of mandamus is also
prayed for directing the Chief Election Commissioner and Shri Gurbachan Singh, a
Deputy Commissioner and Returning Officer, Ferozepore, (respondents 1 and 2
respectively) to declare the result of the election. In the alternative, it was prayed that
writ of mandamus may be issued directing respondents No. 1 to act strictly in accordance
with the provisions of Section 64A(2) of the Representation of the People Act, 1951 (43 of
1951), hereinafter referred to as 'the Act', and to confine his directions in regard to postal
ballot papers only.

The other respondents to the writ petition are: Shri Mohinder Singh Sayanwala, M.L.A.
Ferozepore, Akali candidate (respondent No. 3), Shri Avtar Singh Malhotra, a candidate of
Communist Party of India (respondent No. 4) and Shri Manohar Lal, Shri Makhan Singh
and Shri I. B. Francis, all independent candidates as respondents 5, 6 and 7 respectively
and Shri N. Khosla, Chief Electoral Officer, Punjab, as respondent No. 8.

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Facts:

The appellant and the third respondent were candidates for election in a
Parliamentary constituency. The appellant alleged that when at the last hour of
counting it appeared that he had all but won the election, at the instance of respondent
no. 3 mob violence broke out and postal ballot papers and ballot boxes from certain
Assembly segments, while being brought for counting, were destroyed and the
Returning officer was forced to postpone the declaration of the result. The Returning
Officer reported the happening by wireless to the Chief Election Commissioner. An
officer of the Election Commission who was deputed to be an observer at the counting
stage gave a written report to the Commission in addition to an oral report about the
incidents which marred the last stages of the counting. The appellant met the Chief
Election Commissioner and requested him to declare the result. Eventually, however,
the Chief Election Commissioner issued a notification stating that the counting in the
constituency was seriously disturbed by violence and that ballot papers of some of the
assembly segments had been destroyed by violence, as a consequence of which it was not
possible to complete the counting of votes in the constituency and declare the result
with any degree of certainty. The notification further stated that taking all
circumstances into account, the Commission was satisfied that the poll had been
vitiated to such an extent as to affect the result of the election. In exercise of the
powers under Art. 324 of the Constitution it cancelled the poll already held and ordered
a re-poll in the entire constituency.31

Issues:
Whether hearing needs to be given to candidates when poll is being cancelled by
Election Commissione because of disorder in constituency.

31
Mohinder Singh Gill & Anr V. The Chiief Election Commissioner, New Delhi & Ors India.lawi.asia,
http://india.lawi.asia/mohinder-singh-gill-and-anr-v-the-chiief-election-commissioner-new-delhi-and-ors/ (last
visited Mar 30, 2018)

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Article 226: Whether Election Commissioner’s order for fresh poll could be challenged
by filing writ petition-Representation of the People Act, 1950-Ss.80 and 100(1)(d)(iv)--
Scope of Natural justice—Issue of notice to affected parties and opportunity to hear
before passing an order under Art 329(b) If necessary Notice, if should be given to the
whole constituency.
Words and phrases-"Civil consequence"-Election "called in question" meaning of.

Arguments on behalf of petitioners:

The case of the petitioner in the writ petition is that the aforesaid notification was issued
without affording an opportunity to petitioner No. 1 and in complete violation of the
provisions of the Act and the Conduct of Election Rules, 1961. It was pleaded that the
power to order fresh poll at any polling station in case of loss etc. of polling boxes before
counting is circumscribed by the provisions of Section 58 of the Act and the power to
order fresh poll at a particular polling station in the event of destruction, loss of any
ballot papers before counting is completed is circumscribed by Section 64A of the Act. It
was thus pleaded that in view of the provisions of Section 58 and Section 64A of the Act,
the Election Commission had the power to order repoll for a particular polling station
and that this power could be exercised only if the ballot papers are unlawfully taken out
of the custody of the Returning Officer or intentionally or accidentally destroyed or lost
or damaged or tampered with before the counting has been completed and not
thereafter. It is thus pleaded that this power could be exercised only in respect of any
particular polling station and not for the whole of the Parliamentary Constituency as
such. It is further pleaded that in the instant case, the counting having already been
completed, the alleged result-sheets in form 20 duly made and the particulars announced
by the Assistant Returning Officers, no order for fresh poll could be made by the Election
Commission in any of nine assembly segments of the Constituency.

As regards the postal ballot papers, even if these are destroyed, there is no provision for
repoll. However, it was pleaded that the power to order fresh poll in respect thereof could
only be exercised under section 64A(2)(b) if the Chief Election Commissioner was

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satisfied that the same would affect the result of the election. On the contrary, if the Chief
Election Commissioner was satisfied that the result of a fresh poll in respect of postal
ballots would not, in any way, affect the result of the election, it was incumbent upon him
to direct the Returning Officer to further conduct and complete the election by
declaration of the final result on the basis of the result sheets received from the nine
assembly segments. It was pleaded that in view of the number of postal ballots cast, there
could be no question of the Chief Election Commissioner of India coming to any other
conclusion than that fresh poll of postal ballots would not, in any way, affect the result of
the election. It was also pleaded that the Returning Officer had never recommended for
any fresh poll and thus the notification dated 22nd March, 1977, ordering fresh poll was
without jurisdiction and in violation, of the provisions of the Act and the Rules. Apart
from pleading that the impugned order was passed without giving any opportunity to the
petitioner, it was further stated in paragraph 31 that petitioner No. 1 approached the
Election Commission and requested that the order/notification calling for repoll being
invalid, the Election Commission should recall the impugned notification and declare the
result but the representations bore no fruit.

The Chief Election Commissioner told them that he had verified the facts from Shri
Menon and he was satisfied that the counting of all the nine assembly segments was over
and that disturbances took place only at the time of counting of the postal ballots, the
destruction of which, in no way, affects the result of the election and that he was
directing the Returning Officer to declare the result accordingly.

 Mr. B. Sen, in support of his submission that the purpose of Article 324 was merely to
vest the executive authority as to the conduct of elections in the Election Commission
without any legislative backing, and for the proposition that the entire machinery for
the conduct of elections is contained in the Act and the Election Commission cannot
travel outside it, relied on the following observations of the Supreme Court in N. P.
Ponnuswami v. Returning Officer, Namakkal Constituency and others32. A bare

32
(1952) 1 SCR 218

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 perusal of Articles 324, 327 and 328 shows that the power of Parliament under Article
327 or of the Legislature under Article 328 are 'subject to the provisions of this
Constitution'.

Certain averments were made with respect to violation of Article 14 of the Constitution

The petition has been opposed on behalf of the Election Commission of India as well as
on behalf of the main rival contestant, namely, Shri Mohinder Singh Sayanwala, an Akali
candidate, who had filed separate return.

Arguments on behalf of Respondents:

 Even before the polling took place, numerous representations were received from the
Akali candidate and the other persons making various allegations. They, inter alia,
requested that an Observer should be sent by the Election Commission at the time of
the counting. Due to paucity of personnel, the Election Commission could and did
appoint only one Observer at Ferozepore.
 It is further stated in the return that after going through the wireless report of the
Observer and the oral and written reports, the Election Commission was satisfied that
the poll in the entire Constituency had been vitiated to such an extent as to affect the
result of the election and, thereforee, the said poll was cancelled by the impugned
notification.
 It is further pleaded on merits on behalf of the Election Commission that it had
received complaints, inter alia, to the effect that the poll as well as the counting was
not carried out properly. It was also submitted that they had not verified from the
records received whether the counting had been completed or not and as to whether
the form had been filled and signed by the Assistant Returning Officers because no
records had been received by the Election Commission at New Delhi.
 In the instant case, the result of postal ballots had not been completed and it is only
after the same had been completed and entered in the result-sheet that a candidate

20 | P a g e
 could have exercised his right to ask for recount. It was also stated that the petitioner
has deliberately not mentioned that apart from postal ballot papers, some other ballot
papers had also been destroyed even before the time for asking of recount could be
reached.
 The provisions of Section 58 of the Act are not applicable and the provisions of
Section 64A of the Act do not completely circumscribe the power to order fresh poll in
the entire Constituency. The power to order repoll had not been exercised under
section 64A of the Act alone but as is indicated by the notification itself, the repoll has
been ordered in the exercise of inherent jurisdiction of the Commission vested in it
under Article 324 of the Constitution as well as in exercise of all other powers enabling
it to do so under the said Act.
 The decision to order redpoll is based on subjective satisfaction of the Election
Commission and the same is not open to judicial scrutiny under Article 226 of the
Constitution.
 Separate affidavit was filed on behalf of Shri Mohinder Singh Sayanwala wherein the
respondent supported the impugned order of the Election Commission.
“His jurisdiction is exclusive and is not liable to be challenged by way of a writ
petition. The nomination papers are still there. The repoll has been ordered. No other
candidate except the ones whose nomination papers had been accepted are entitled to
contest the election. After the repoll, the result will be declared and the successful
candidate will be notified. If the petitioner is aggrieved by the result of the election
ultimately, he will have a right to challenge it by way of election petition. That stage
has not yet reached as no election has been validly held.”

Supreme Court’s view along with reasonings:

In so far as the Election Commission in such a situation derives its powers from the law so
framed under Article 327 or Article 328 it cannot ignore it. But, where the Act so framed
under Article 327 or 328 omits to provide for a contingency or a situation, the said plenary

21 | P a g e
executive power relating to conduct of elections conferred upon the Election Commission
by Article 324(1) of the Constitution will become available to the Commission and the
Election Commission will be entitled to pass necessary orders in the interest of free and
fair elections.

The observations of the Division Bench of the Allahabad High Court in Moti Lal v.
Mangla Prasad and others33: “where the Act itself omits to provide for a contingency and
does not contain any provision for meeting the situation, the general power conferred
upon the Election Commission by Article 324(1) of the Constitution will come into play,
and the commission will have a right to pass the necessary orders, if they fall within the
ambits of its powers, enumerated in Art. 324(1).”

Puri J. of the Allahabad High Court in the decision reported as Jagdamba Prasad v. Sri
Jagannath Prasad and others, also followed the foresaid decision of the Allahabad High
Court and took the view that Section 64A of the Act is in aid of the paramount power of
conduct of elections conferred on the Commission under Article 324(1).

Learned counsel for the respondent also relied upon the decision of the Supreme Court in
the 'Symbols case' reported as Sadiq Ali and another v. The Election Commission of India,
New Delhi and others34 and submitted that this decision recognises the inherent plenary
powers of the Election Commission while conducting elections to issue necessary orders
which the circumstances of the case may necessitate.

It was held in Shiromani Akali Dal v Election Commission of India35, “In view of the
powers of superintendence, direction and control of elections conferred by Art. 324 of the
Constitution, the competence of the Election Commission to pass the impugned orders
could not be disputed.”

The case which is most apt in a situation like the present one is the one decided by the
Supreme Court in the case reported as The Bihar School Examination Board v. Subhas

33
AIR 1958 AII 794
34
(1972) 2 SCR 318
35
29 (ELR) 53

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Chandra Sinha and others36.In this case. the entire examination had been cancelled by the
authorities who had ordered for re-examination. It was argued before the Supreme Court
on behalf of the students that the order cancelling the earlier exam. and ordering for fresh
examination was bad as no opportunity to represent their cases to all the candidates was
given. The Supreme Court negatived the contention, “The Board had not charged any one
with unfair means so that he could claim to defend himself. The examination was vitiated
by adoption of unfair means on a mass scale. In these circumstances it would be wrong to
insist that the Board must hold a detailed inquiry into the matter and examine each
individual case to satisfy itself which of the candidates had not adopted unfair means. The
examination as a whole had to go.”

A deferred hearing is also provided by way of Election Petition, and no vested or civil
rights are involved till the declaration of the result and therefore the principles of natural
justice are not provided specifically but are in fact by necessary intendment totally
excluded while passing the impugned order. Since the petitioner No. 1 was heard not only
before the issue of the notification but in any case after the notification, we are of the
considered opinion that even if the principles of natural justice applied, they have been
complied with. The petitioner has not suffered any injustice in that behalf.

36
(1970) 3 SCR 963

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 Views of some Judges on the aspect of natural justice

Krishna Iyer J: What troubles us in this appeal, coming before a Bench of 5 Judges on a
reference under Article 145(3) of the Constitution, is not the profusion of controversial
facts nor the thorny bunch of lesser law, but the possible confusion about a few
constitutional fundamentals, finer administrative normae and jurisdictional limitations
bearing upon elections. The moral may be stated with telling terseness in the words of
William Pitt: 'Where laws end, tyranny begins'. Embracing both these mandates and
emphasizing their combined effect is the elemental law and politics of Power best
expressed by Benjamin Dizreeli:

"I repeat that all power is a trust-that we are accountable for its exercise-that, from the
people and for the people, all springs, and all must exist."

(Vivien Grey, BK. VI. Ch. 7) Aside from these is yet another, bearings on the, play of
natural justice, its nuances, non-applications, contours, colour and content. Natural
Justice is no mystic testament of judge-made juristics but the pragmatic, yet principled,
requirement of fairplay in action as the norm of a civilised justice-system and minimum
of good government-crystallised clearly in our jurisprudence by a catena of cases here and
elsewhere.

Chief Justice Hidayatullah perceptively articulated the insight "One must, of course,
take note of the synthesized authoritative content or the moral meaning of the
underlying' principle of the, prescriptions of law, but not ignored the historic revolution
of the, law itself or how it was connected in its changing moods with social requirements
of a particular age. (Judicial Methods, B. N. Rau Memorial Lecture) The old articles of the
supreme lex meet new challenges of life, the old legal pillars suffer new stresses. So we
have to adopt the law and develop its latent capabilities if novel situations, as here, are
encountered. That is why in the reasoning we have adopted and the perspective we have
projected, not literal nor lexical but liberal and visional is our interpretation of the

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Articles of the Constitution and the provisions of the Act. Lord Denning's words are
instructive "Law does not stand still. It moves continually. Once; this is recongnised, then
the task of the Judge is put on a higher plane. He must consciously seek to mould the law
so as to serve the needs of the time. He must not be a mere, mechanic, a mere working
mason, laying brick on brick, without thought to the overall design. He must be an archi-
tect-thinking of the structure as a whole building for society a system of law which is
strong, durable and just. It is on his work that civilised society itself depends."

Crux Finding of Judges

“Indeed, natural justice is a pervasive facet of secular law where a spiritual touch enlivens
legislation, administration and adjudication, to make fairness a creed of life. 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 Kautilya's Arthasastra-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 newfangled.”37

37
Treatise on Administrative Law, MP Jain, Vol 1, Edition 1996, pg 286

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 Development of Doctrine

In India, by and large judicial thinking is that an adjudicative order made without
following natural justice is void and nullity and this is in accordance with majority view in
Ridge v Baldwin,

In Shiela Devi v Executive Engineer38, Allahabad High Court held that a decision made by
an authority in breach of natural justice is void ab initio and can be challenged in a writ
petition u/Art 226 even though there exists a provision for appeal.

Kerala High Court held in Commonwealth co-op society v MP Electricity Board that a
decision rendered contrary to the principles of natural justice was void.39

In Nawabkhan v Gujarat40, the SC did not give a categorical ruling on wider question of
applicability of above principle to areas other than F/R , three possible answers to the
question were:

1) It spells death to the order and makes it still born son that it can be defied or
attacked collaterally.
2) It means nullificability, not utility, so that before disobeying it a court must
declare it invalid
3) It remains good and binding though voidable at the instance of a party aggrieved
by a direct challenge.

In Piara Singh v State of punjab41 , the extension of reach of principles of natural justice
would certainly go a long way in providing protection to a vulnearable section of our
society.

38
AIR 1971 AII 343
39
AIR 1971 Ker 34
40
AIR 1974 SC 1471
41
(1980) 4 SCC 379

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In SL kapoor v Jagmohan42, the court took a bold step in holding that a separate showing
of prejudice caused is not necessary, and therefore the observance of natural justice is in
itself a prejudice caused.

In Dharampal Satyapal Ltd v CCE43,Administrative agencies in India are not bound by

technical rules of law courts; this accentuates the need to follow the minimum procedure
of fair hearing.

42
IP Massey, 9th ed 2017, pg 214
43
(2015) 8 SCC 519

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 Conclusion

“There are no victors in the game of law until the court verdicts”

 The principles of natural justice are not precise rules of unchaining contents;their
csope will vary according to context. Even where the rules of natural justice are
prima facie applicable, they may be partly or wholly excluded by clear statutory
language or necessary implication. Therefore, the whole concept of natural justice
has acquired a kaleidoscopic unpredictability.
 The exceptions to principle of natural justice in UK as well as in India mainly
relates to administrative proceedings.
 The concept of natural justice does not supplant the law of land but supplements
it. The SC has very well established in MS Gill case as well as in Swadeshi Cotton
Mills case that natural justice is so integral to good government that the onus is on
him who urges exclusion to make out why.
“This rule of fairplay must not be jettisoned save in very exceptional circumstances
where compulsive necessity so demands. The court must make every effort to
salvage this cardinal rule to the maximum extent possible with situational
modifications.”
 The word ‘exception’ in the context of natural justice is a misnomer because in
certain situations, the principles of natural justice are inapplicable not by way of
an exception but because nothing unfair can be inferred by not applying these
principles.
 It must be noted that all these exceptions as stated earlier are circumstancial and
not exclusive. They do not apply in the same manner to situations which are not
alike. They are not rigid but flexible. These rules can be adopted and modified by
statutes and statutory rules also by the Constitution of the Tribunal which has to
decide a particular matter and the rules by which such tribunal is governed.
 Every action of the authorities to be regarded as an exception must be scrutinised
by the Courts depending upon the prevailing circumstances. The cases where

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 natural justice principles have been excluded by implication suggest that the
Courts have accepted the doctrine even though the legislature has not adopted
express words to that effect but those cases appear to depend so heavily on their
particular circumstances that they do not yield a clear general principle. There are
arguable and also explicable instances too where the courts have concluded that
natural justice was not necessary.
 De Smith in his “Judicial review” very beautifully sums up the first exclusion by
highlighting the importance of Doctrine of Legislative Supremacy and
Parliamentary Sovereignity by doing away with the requirements of notice or
decline of an oral hearing to ensure administrative expediency.
 The exclusion to right of hearing was justified for the first time in case of UOI v JN
Sinha(1971 AIR 40)
 The Apex court in very significant and beautiful words in Umrao Singh case
emphatically stated that “ the principles of natural justice do not merely supplant
the law rather supplements it:”. Therefore, if the statute expressly or by necessary
implication, precludes the rule of natural justice, it will not suffer invalidation on
grounds of arbitrariness.

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 Suggestions

 However, it is necessary that this exclusion based principle must be used strictly
and not stretched too far, for it could become an untamed horse thereby leading to
potential abuse and gross misuse with tones of litigations and writs filed in courts,
wherein all the respondents would hide under the garb of what we call, Statutory
exclusion, etc. In order to invoke the exceptions the decision of the authorities
must be based on bonafide intention and the Courts while adjudicating the post
decision dispute must find the action of the concerned authorities to be fair and
just and every such exceptions to be adjudged admissible or otherwise only after
looking into the facts and circumstances of each case. The main objective behind
the reconciliation between the inclusion and exclusion of protection of Principles
of Natural Justice is to harmoniously construe individual’s natural rights of being
heard and fair procedure as well as the public interest. Larger public interest is to
be allowed to override the individual’s interest where the justice demands. Thus,
exclusion of natural justice should not be readily made unless it is irresistible,
since the Courts act on the presumption that the legislature intends to observe the
principles of natural justice and those principles do not supplant but supplement
the law of the land. Therefore, all statutory provisions must be read, interpreted
and applied so as to be consistent with the principles of natural justice.

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