THE USE MADE OF IT (a) SAFEGUARDING OF FUNDAMENTAL RIGHTS

in two ways: by invalidating legislation, and by setting aside, or other­wise making ineffective, administrative orders which infringe them.

Parliament in England is sovereign and no court can question the validity of a statute. That is not the case in India. In India the Con­stitution is supreme, and there are in consequence constitutional limitations on the legislative powers of die Parliament in Delhi and of the State legislatures. One set of limitations arises from the existence of fundamental rights to which I have referred; another from the fact that the Constitution (as in the case of the Constitutions of Australia and Canada) provides for a division of legislative powers between the Central and State legislatures. If an Act of Parliament or of a State legislature abridges a fundamental right or is in excess of the legislative power of the law-making authority its validity may be challenged in the courts; and the easiest and usual way of doing this is by a petition to the Supreme Court under Article yi or to a High Court under Article 226. Now in a Welfare State—and India is such a state—a good deal of legislation will be concerned either with the imposition of taxes or other methods of extracting money from the public, either for ordinary revenue purposes or for financing public utility schemes.

The powers of the court when it has before it a petition challenging the constitutional validity of an enactment are very wide. It can dismiss the petition as disclosing no ground for interference¹ or (as the Supreme Court has done in at least two instances¹) it may at the same time

* As in Attar Singh v Th» Stat» of Uttar Pradtsh [1959] Supp. I, S.C.R. 928; Baku Barkya Thakur v Th» Stat» of Bombay [1961] 1 S.C.R. 128.

¹ Vishweshwar Boo v Stat» of Madhya Pradesh [1952] S.C.R. 1020; Raja Suriya Pal Singh v Stat» of Uttar Pradesh [1952] S.C.R. 1056.

declare the impugned Act to be valid in its entirety. It can declare an Act to be void.’ In a number of cases it has held that particular sections of an Act are invalid, and if these sections are severable the remainder of the Act will stand;² and the usual practice in such cases is to issue a writ in the nature of mandamus directing the respond­ent Government to forbear from enforcing the sections found to be invalid? The court may further direct the respondents to do some­thing—es, for example, where goods have been seized under a section of an act subsequently declared to be invalid, it may direct the return of the goods to the petitioner?

Of course if a High Court declares a provision of an act of the Central Legislation to be invalid that declaration will be operative only within the High Court’s territorial jurisdiction.

I am tempted to refer to one other question which, although not strictly germane to the subject of this paper, is of interest to lawyers. If a court holds that a section of an Act is invalid, it will ordinarily issue a mandamus or give a direction commanding the person or authority seeking to enforce the provisions of that section to refrain from doing so; and that will dispose of the proceedings before the court. But the question then arises, what is the effect of the court’s decision on persons who are not parties to those proceedings? Does it amount to a judgment against the statute which binds everyone, or is it the position (as it is in the United States) that the opinion of the court is merely of persuasive effect and operates only as a precedent for the determination of other similar cases? In the case of The State of Bombay v F. N. Balsara* the Supreme Court held that a provision in the Bombay Prohibition Act of 1949, that no person shall consume or use liquor, was invalid so far as it affected the consumption or use of medicinal or toilet preparations containing alcohol. Three years later

¹ A recent example is The Bullion and Grain Exchange Ltd. v State of Punjab [1961] I S.C.R. 668.

¹ Express Newspapers (Private) Ltd. v The Union of India [1959] S.C.R. 12; Hamdard Dawakhana (IFakf) Lal Kuari, Delhi v Union of India [i960] 2 S.C.R. 671.

* Mohd. Hanif Quareshi v State of Bihar [1959] S.C.R. 629.

⁴ Hamdard Dawakhana (JFakf) Lal Kuari, Della V Union of India [i960] S.C.R. 671.

⁹ [1951] S.C.R. 682.

a man called Pesikaka was driving a motor car when he had an accident. When he was arrested his breath smelled of alcohol and in due course he was charged, inter alia, with a breach of the Bombay Prohibition Act.

The validity of subsidiary legislation purporting to be made under the authority of an enactment which is itself valid is frequently challenged by writ petitions. If in such a case the court finds that the rule or order is one which could not properly have been made, the usual practice is to issue a writ in the nature of mandamus requiring the author of the rule or order to forbear from enforcing it.

The writ jurisdiction has also been successfully invoked to nullify administrative orders. The District Magistrate of Ahmedabad had made an order prohibiting the applicant’s entry into the city without a permit. The Bombay High Court, on a petition under Art. 226 directed the District Magistrate not to prevent the applicant entering the city as that was something he was entitled to do in exercise of his right to move freely in India;² and the Supreme Court has, by a writ of mandamus, directed a State Government to forbear from putting into effect a notification making a reference under the Industrial Disputes Act, 1947, although the order making the reference was purely administrative.³

I must not of course be understood to imply that the validity of a legislative act can be challenged only by a petition under Arts 32 or

* Balram Khurshed Pesikaka v State of Bombay [1955] 1 S.C.R. 613.

¹ Jesingbhai Ishwarlal v Emperor, A.LR. 1950 Bom. 363.

¹ State of Bihar v D. N. Ganguly, A.I.R. 1958 S.C. 1018. z66. It can be questioned in a civil action or in crimininal proceedings, and this has been done. The most usual way of attacking an Act is however by a writ petition; and that is the only means of challenging an administrative order.

(l>) CONTROL OF SUBORDINATE TRIBUNALS

The second important aspect of the writ jurisdiction is its use as a means of ensuring the supervision of the High Courts over the actions of quasi-judicial and, on occasions, even administrative tribunals. Legislation in India, as in this country, increasingly tends to provide for the determination of questions which affect the rights of citizens by such tribunals; tribunals which may, and often do, consist of a single individual. The court usually exercises its control over quasi-judicial tribunals by means of the writ of certiorari; but such a writ can issue only if the tribunal has failed to keep within its jurisdiction, or to follow the rules of natural justice or has committed an error of law discoverable on the record. If the tribunal has no duty to act judicially it is purely an administrative body over whose decisions the court can exercise no control by writ. But the court is not devoid of power, for it can, it has been held, issue a direction setting aside an administra­tive order if it is made in defiance of a mandatory provision of law’ or in circumstances which run counter to elementary principles of justice. A licensing authority appointed under a Cloth Control Order had refused to renew a dealer’s licence to sell cloth, on the ground that his past conduct had not been above suspicion. The dealer had had no opportunity of being heard before the order was made. The court held that the refusal to renew the licence was an administrative act, but that as the effect of the order was to put the dealer out of business he ought to have had the chance of meeting the allegations against him; and it set aside the order.

The question whether a tribunal has the duty to act judicially depends on the intention of the legislature to be ascertained from the terms of the act by which the tribunal is constituted;⁴ and the tendency

’ Ram Charon Lal v State of Uttar Pradesh, A.I.R. 1952 AU. 752.

¹ Narkuda AU v M. F. de S. Jayaratne [1951] A.C. 66.

³ Rameshwar Prasad Kedarnath v District Magistrate, A.I.R. 1954 All. 144.

⁴ Province of Bombay v K. S. Advani [1950] S.C.R. 621.

of die High Courts in India is to lean towards a construction which will enable them to exercise powers of supervision. The number of quasi-judicial tribunals in India is large and increasing, and the matters upon which they are called upon to adjudicate cover a constantly growing held. Some are appointed only for a limited purpose like the Income Tax Commission; others are of a more permanent nature, and their decisions may directly affect the occupations and lives of ordinary citizens. Of these probably the most important is the Board of Revenue. The Board decides questions concerning agricultural tenancy rights and has necessarily to construe the provisions of an intricate tenancy law. Other examples are the authorities vested under the Motor Vehicles Act and the various Rent Acts with the power to grant permits to ply motor vehicles for commercial purposes and to make orders allocating vacant accommodation.

The courts have held that the authority who decides to whom a permit should be given, and that some (but not all) of the authorities constituted under the Rent Acts, are bound to exercise their powers judicially; and as a consequence die courts are able to exercise some measure of control over what they do. The situation in the Uttar Pradesh (United Provinces) provides a good illustration of the practical usefulness of the constitutional remedies embodied in Article 226. The relevant Rent Control Act consists of less than twenty sections not always expressed in very precise language; and the High Court has been able not only to ensure that the Act is properly administered but to explain and clarify what the principles laid down in the Act are.

The courts in India are as reluctant as those in this country to interfere in matters which are usually regarded as the domestic concern of the Universities or educational authorities; but the circumstances in India are such that the courts have felt compelled, in the exercise of their powers under Article 226, to intervene far more frequendy than here. The Governor of the Uttar Pradesh in his capacity as Chancellor of Allahabad University, and in the exercise of appellate powers vested in him under the University Act, had made an order that a certain professor had ceased to be a member of the Executive Council. The High Court held that in the exercise of these powers the Chancellor was bound to act judicially, and as his order was erroneous in point of law it was set aside.¹

The Universities of Gauhari and Calcutta have been ordered by

¹ Dr I thwart Prasad v Ths Registrar, University of Allahabadj 1955 A.LJ. 244; affirmed on appeal.

writ of mandamus to declare as having passed their final examinations students whom they, in contravention of their rules, had declared not to have passed;¹ and where the Syndicate of a University, acting beyond its powers, had cancelled the examination of a candidate, it was ordered by mandamus to reconsider the matter in accordance with its rules.^{[7] [8]}

Nowhere do examinations play a more important part than in India, and it is perhaps not surprising that some candidates who doubt their ability to satisfy their examiners in the ordinary way resort to more informal means. On such malpractices coming to light, the usual course is for the authority conducting the examination to hold an enquiry and, if the cheating is established, to cancel the examination result and, in some cases, to debar the candidate from sitting again for that examination for one or more years. This is a serious matter for the candidate, and every year a number of petitions are filed in which a candidate seeks to challenge the validity of the order made against him on the ground that the enquiry was held in violation of the rules of natural justice. The Supreme Court has held (thereby going further than the Privy Council was prepared to do in the recent case of University of Ceylon v Fernandof that it is a requirement of natural justice that the candidate whose conduct is in question must be given an opportunity of being heard before a decision is arrived at?

The utility of the writ jurisdiction is especially noticeable in connection with elections and local government administration. The democratic process of election has a firm hold in India and there are numerous bodies ranging from the Lok Sabha, the equivalent of our House of Commons, to the village panchayat, the members of which are elected by universal suffrage. Disputes, which are not uncommon, with regard to the conduct of an election are ordinarily decided by a tribunal, usually the district judge or the local executive officer; it is only recently that in the case of a dispute arising out of a parliamentary election there is an appeal to the High Court. It is obviously desirable that, if the election tribunal misdirects itself with regard to the law applicable, there should be a speedy remedy: and that is, in fact, provided by the writ jurisdiction.

Elections are not however the only matters about which disputes may arise. The Government in most States has a statutory power to remove the chairman or a member of a municipal body if he is guilty of certain malpractices or if, in its opinion, he has so abused his position as to render his continuance as a member detrimental to the public interest. The Government usually has also the power to dis­solve or supersede a municipal body if in its opinion the latter has failed in the performance of its duties or has abused its authority.¹ The exercise of these powers is likely to give rise to feelings of resent­ment, and it is here again that the writ jurisdiction provides a convenient means of challenging and, if necessary, of having set aside an order of the State Government when that order shows that it was made otherwise than in accordance with law.