However, these concerns are neither new nor unique to the understanding of the principles of natural justice. Similar doubts have been expressed as to the application of the administrative doctrines of arbitrariness in legislative review (“the criteria applied to administrative and quasi-judicial bodies cannot be applied to delegates of legislative power”206), and as to the importance of the administrative test of unreasonableness in equality matters under Article 14.207 Effect is unforeseeable jurisprudence; potentially troubling for governance and very dangerous for the guarantees contained in a constitutional bill of rights. Despite the confirmation of these powers, the court in the Maneka Gandhi case was reluctant to exercise them and instead chose to interpret the passport law as compatible with natural justice, “by necessary implication.” 96 Furthermore, although the Court prevented the contested legislation from declaring it unconstitutional, it held that the administrative order in Maneka Gandhi was unlawful because it infringed its applicable status, but also `manifestly infringed the rule of natural justice enshrined in audi alteram partem`. However, 97 refused to effectively set it aside.98 The new standard of judicial review of administrative measures has now been clearly formulated by the majority: “Any order made on the basis of a legislative provision must not only fall within the scope of the powers conferred by that legislative provision, but must also pass the fundamental rights test.” 99 The question of the stringency of that provision or the extent to which fundamental rights must be interpreted remains uncertain. India`s position on the “nullity” of illegal administrative orders became in the case of Nawabkhan Abbaskhan v. State of Gujarat, 175, which Maneka Gandhi preceded by several years. In Nawabkhan`s case, a police commissioner issued an “outsourcing” order under the Bombay Police Act of 1951 temporarily prohibiting the applicant Nawabkhan from entering a certain territory.176 Nawabkhan violated this order and was therefore prosecuted for such a violation.177 During his trial, Nawabkhan appealed to the Gujarat Supreme Court, have the original outsourcing arrangement lifted; He argued that the State had not given him a hearing before adopting it and that, therefore, the external order violated the principles of natural justice and should be removed.178 It was successful and that the High Court set aside the external order in a judgment written by Judge P.N. Bhagwati (who later wrote the majority opinion in Maneka Gandhi).179 The question that arose was whether Nawabkhan could still be prosecuted for violating an order that has since been overturned.180 He was acquitted by the trial court, his acquittal was overturned by the Supreme Court on appeal by the state, and, therefore, appealed to the Supreme Court. to remedy the situation. The Indian High Courts had already ruled in similar cases that such orders would be subject to appeal.182 However, the Supreme Court instead chose to consider the possibility that the outsourcing order violated Nawabkhan`s fundamental rights under Article 19(1)(d) of the Indian Constitution183, which, among other things, protects freedom of movement within Indian territory.184 The external order was void: The Court decided not to act for administrative reasons, but because it violated natural justice and legal law, and therefore a fundamental right.185 After arriving at this detour, the Court could easily find that the order was void.
In Indian constitutional law, unlike administrative law, the situation is categorical; Paragraphs 2 and 3 of Article 13 state that any administrative order or legislation that has “force of law” and is incompatible with fundamental rights is void.186 Administrative orders that were not unconstitutional could potentially remain “questionable”, the Supreme Court suggested.187 Justice Fazal Ali took a markedly different approach in his disagreement in the Gopalan case. He followed the evolution of common law procedural rights and principles of natural justice through a series of administrative decisions in Indian, English and American law, and noted that the right to an oral hearing before an administrative authority was an essential principle of natural justice.56 Moreover, these principles of natural justice were not vague, but clearly defined. and this would completely nullify the objective of procedural protection under Section 21 of the Indian Constitution to refuse to apply them.57 The fact that the principles of natural justice were borrowed from established administrative law and not constitutional law in India and England was an argument in his favour for Judge Fazal Ali. He pointed out that executive acts that violate existing common law rights would in any event be subject to judicial review (“Even before executive authorities and administrative tribunals, as a general rule, no order can be issued that interferes with one`s own rights without giving an appropriate hearing.” 58). The Covid-19 pandemic has wreaked havoc around the world, and India has been no exception. In response, the Indian government and its subordinate authorities led to a flood of administrative measures. In this article, I examine how administrative law has played a supervisory role in relation to such measures. I assess the responses of two important institutions responsible for ensuring the legality of administrative measures, namely Parliament and the Judiciary. For several months after the outbreak of the pandemic, Parliament stopped working. When it resumed its work, it functioned primarily as a forum for debate and information gathering through questions. However, the parliamentary procedures available to monitor the legality of administrative measures have not been used effectively. The judiciary reacted in five different ways: (i) the suspensive court; (ii) the Court of Deference; (iii) the pragmatic Court; (iv) the Public Interest Disputes Tribunal (PIL); and (v) the Vanilla Court.
I conclude that the pandemic has revealed some weaknesses in India`s administrative legal framework. These shortcomings are institutional rather than doctrinal in nature, meaning that they are due to an institutional reluctance to properly apply and use available and appropriate doctrinal norms and legislative procedures rather than to the absence of such legal norms or processes. In order to understand the application of the principles of natural justice as a ground for constitutional review, it is necessary to return to their origins as administrative norms. Under Indian administrative law, a law establishes an administrative decision-making procedure, in which case these principles complement but do not replace the legal procedure. Alternatively, a law does not provide for administrative procedures, in which case administrative authorities are required to take decisions in accordance with these principles, regardless of the nature of their decision-making processes.103 The content of the principles of natural justice is therefore flexible and varies according to the rigour with which they are applied depending on the type of administrative or regulatory procedure concerned. An often cited advantage of administrative tribunals is that they are faster and more efficient than courts; An adaptable procedure based on these principles of natural justice allows them to function fairly without adopting the extensive and detailed rules that govern judicial and appeal proceedings.104 In addition to doctrinal inconsistency, case law on the principles of natural justice and fundamental rights is unclear for structural reasons. The Supreme Court of India suffers from an extraordinarily broad jurisdiction: its workload derives not only from the jurisdiction of the Constitutional and Federal Court, but also from its work as a court of appeal in civil and criminal matters, resulting from twenty-four high courts and numerous administrative courts. The Supreme Court`s broad interpretation of jurisprudence has significantly diminished the role and function of the lower courts, resulting in a cumbersome system of summits.37 The majority in maneka Gandhi was able to do so by completely ignoring the distinction between quasi-judicial and administrative authorities, stating: This article examines the jurisprudence of the Indian Supreme Court on one aspect of judicial review, which summarizes the difficulties of these three challenges: the application of administrative “principles of natural justice” not codified in the interpretation and application of constitutional rights.