Need of Adminstrative Procedures Act

LEGAL CERTAINTY : ADMINISTRATIVE RIGHT IN PUBLIC LAW.

By Advocate Sandeep N. Kapatkar, Pune.

A basic tenet of Rule of Law is that People ought to be able to plan their lives, secure in the knowledge of legal consequence of their action while dealing with Public Authorities. A public body makes representation that it would exercise its discretion in a particular manner, which has been reasonably relied on by the individual. The representation is said to generate legitimate expectation that power would indeed be exercised in this way. In this sense the principle of Legal Certainty would indicate that the individual ought to be able to plan his or her action on that basis. Public authority is bound by its own undertaking as to the procedure it will follow. Inconsistency of policy may amount to an abuse of discretion or contrary to citizen’s legitimate expectation particularly when undertakings or statements of intent are disregarded unfairly. A public authority has a duty to act with fairness and consistency in its dealings with the public and that if it makes inconsistent decision unfairly or unjustly it misuses its powers. Rule of Law enforces minimum standard of fairness, both substantive and procedural. Simon Brown LJ stated “Public authorities are required to act in high principled way, on occasions being subject to a stricter duty of fairness than would apply as between private citizens”.

Procedural legitimate expectation denotes existence of some procedural rights which the applicant claims to possess as a result of behaviour of the Public Body which generated the expectation. This being founded upon Governmental action, it justifies the expectation. This procedural substantive legitimate expectation can be called as Legitimate / Substantive Legal Certainty when there is intra vires representation or is so to be inferred from the act of the Public Authority. The assurances intended to be acted upon and in fact acted upon are binding. The factor of ostensible authority also favours the governed. While dealing with Law of Consideration – in Raz’s – Ethics in Public Domain (Oxford University Press) Chapter 17, it is noted that the applicant has legitimate expectation of principled faithful application of law. This argument is of importance when the applicant possesses an expectation which is normatively justified. It is always a legitimate expectation that each case will be examined individually. An unjustified breach of an undertaking by a public authority is equivalent to breach of contract for substantive and procedural purpose, which law accords with the standing principle of substantive legitimate expectation. This fundamental aspect of the Rule of Law is violated by the application of measure which were not in force at the time that the actual event took place.

Problems start cropping up causing concern when retroactivity is forced in the procedural legitimate expectation marring the very basis of Certainty. A person may have planned his actions on the basis of a published policy, schemes, directions, orders, representations made by the administration and will be entitled to seek redress when these are altered, even when such alteration is only prospective and not retrospective. The effect is not to make that, which had been an error, error no longer, but to remove nearly all opportunity of the affected without his consideration. Their duty as administrators is merely to exercise their, discretion in each case and not to shut the doors indiscriminately either on all applications or on applicants who did / didn’t confirm to some particular requirement, which is the bitter truth of present. In the administrative sphere the authority should be ready to face eventualities and willing to face exceptional cases and ought not to apply rigid methods. Flexibility is expected in administrative sphere otherwise the necessity of given discretion will be lost. In R v. Windsor Licensing Justices Ex. p. Hodes [1983] 1 WLR 685. it was held “If justices refuse renewal of a licence under new policy without considering the application of merits, their decision will be quashed”. There should be, ensuring of Order, decency, justice and enforcement of consistency. Further all policies are required to be made public so that the applicant may know what to do well in advance. The Policies must be based on proper and relevant grounds. Power given for public purpose are held in trust. The Administrative act is embroiled with, policy, motives and merits. However at the same time they must confine themselves to applying recognizable Principals of Law. It is only where powers are given for the personal benefit of the person empowered that the discretion is absolute. Plainly this has no application in public Law i.e. administrative sphere.

In case of retroactive effect the consideration of proportionality carves the differentiation, vis-à-vis accommodation of those who are agreeable to such change or are inherently part of new policy. This is the very manner in which concern is to how to give justice to those who have legitimate procedural substantive expectation in retroactive changes. Else it would be ill stated that there is Rule of Law. And as Justice Cardozo defines Law – “the principles of order revealing themselves in uniformities of antecedents and consequents. When the uniformities are sufficiently constant to be the subject of prediction with reasonable certainty, we say that the law exits”. No wonder the old policy will have to give way for the new policy, but of course by ensuring that new policy choice should be interpreted in a manner which takes account of affected under old policy. It would be unfair for the administration to resile from its own policy. When public body exercises it power to work injustice to the individual without any countervailing benefit to the public this is itself a misuse of power. The degree of injustice is required to be considered by the authority. Though expectation would not entitle an applicant to its realization in toto in the face of new policy, it would however entitle him to some other form of relief that was within the powers of the Public Authority. It is necessary to pursue the course of conduct which he was inducted to by following the representation. The form of a policy cannot be allowed to blind the individuals legitimate expectation on the very basis of the representation of the Public Body.

In R v. Ministry of Agriculture, Fisheries and Food [1995] 2 All ER 714. Lord Sedley put the case for recognition of substantive legitimate expectation in terms of fairness in public administration. His Lordship said “The real question is one of fairness in public administration. It is difficult to see why it is any less unfair to frustrate the legitimate expectation that something will or will not be done by the decision maker than it is to frustrate legitimate expectation that the applicant will be listened before the decision maker decides whether to take a particular step. Such a doctrine doesn’t risk fettering a public body in the discharge of public duties because no individual can legitimately expect the discharge of public duties to stand still or be distorted because of that individual peculiar position”. In the Law of a number of European Countries there is a principle of proportionality which ordains that administrative measures must not be more drastic than is necessary for attaining the desired result. While testifying proportionality the decision makers requires to Judge whether the action was/is really needed as also whether it was within the range of courses available to the decision maker, and the decision chosen could be reasonably followed by the decision maker. Merits of alternative arrangement are also required to be weighed. The doctrine of proportionality requires the decision maker and reviewing authority to assess the balance which the decision maker has taken. It further requires attention to be directed to the relative weight accorded to interest and consideration of the affected. This be so, the constitutional courts are to test each action with standards u/article 14, 16, 19, 21, 22 of the Constitution. Common Law contains doctrine of last resort in making corrosive policies and decisions. The decision should have valued basis, and factual supportive evidence having sharp edges to sustain the decision. They cannot be kept in separate compartments. This context is everything in Law. Authorities are required to weigh substantially and factually (a) necessity/relevance of measure (b) suitability of the measure opted (c) whether the measure is excessive (d) whether measure is proportionate. The Rule of common sense is that any measure should cause least interference in the rights of the Governed, required at the occasion and should be least onerous. This in total requires a value judgment by the Public Authority and a course devoid of this is simply lawlessness.

It may appear that legal system have tended to take a very dim view of attempts by the legislature or administrators to apply these Rules in this manner. Though Apex Court in few judgments upheld the legitimate expectation, but when the public authority raises policy issues, none of the courts have interfered. It is not disputed that policy is administrators domain within the mandate of Legislature. Policies may change, but lack of planning, foresight of the maker, negligence, utter opaqueness, coupled with irrationality, unreasonableness and irrelevance prevail in the system threatening the reliance on public authority creating an impression of hegemony of the Administrator. Grotesquely the undemocratic idea that the public authorities have unfettered powers is getting deeply embedded in legal and social culture and it doesn’t sound encouraging the democratic structure of the Country. Principle of good governance and regulations which are vanishing are - transparency, proportionality, accountability, objective targets, consistency and endeavor to see that they are followed. It is necessary to devise legal principles of restrain, which are legal antidotes to the sovereignty for redressing the balance of forces between the Authority and the Governed. It is necessary to protect the citizenry against abuse of power. It therefore felt that time has ripened to have decision to be compliant of following factors:-

(a) Under circulated, notified policies;

(b) Thorough forehand planning.

(c) No decision be based on secret standards/policies,

(d) Time bound process,

(e) Promote Consistency and Predictability,

(f)  Administrators to base orders with reasons and all relevant factors & considering even proportionality,

(g) Reasons be communicated to the affected; as this is firstly, a Constitutional Right under article 21 and Secondly, without reasons, basic constitutional tenet i.e. rule of Law is suffered as there cannot be a meaningful review of administrative decision without reasons.

(h) Accountable decisions, providing penalties and remedy by way of damages to the affected.

It is therefore necessary in interest of governed that Administrative Procedure Act be passed by the Legislature. It is a hope that the legislature is not oblivious of changing time to break open and streamline the hermetical sovereignty long overdue.