" THE ONE WHO DECIDES MUST HEAR "

V. S. DESHPANDE*

The modern State, it is well-known, is exercising increasingly

greater powers over the business and property rights of individuals
with a view to regulation and better administration. The
fundamental notions of fair play or natural justice, as they are
called in the United Kingdom, or the doctrine of due process embodied
in the Fourteenth Amendment of the United States Constitution or
the requirement of clauses (5) and (6) of article 19 of the Indian
Constitution that the restrictions imposed by the State on such rights
must be reasonable and in the interest of the general public—generally
result in a hearing given to the affected party before the administrative
power is exercised against him. It is also a part of the same
principle that the decision whether to exercise the administrative
power or not must be taken by the same person who has heard the
objecting party. The reason why this should be so is not far to
seek. It is only the person who has heard the arguments and the
evidence and seen the demeanoui* of witnesses, if any, who is best
fitted to reach a proper decision. This rule is also calculated to
satisfy the complaining parly that he has had the fullest opportunity
of impressing his viewpoint on the person who really counts. The
justice would thereby not merely be done but would also appear to
have been done.
While a truly judicial decision is rendered by a definite
person-nvho has heard the case, the authorship of the administrative
decision even after a quasi-judicial hearing may not at times be
traceable. The decision may be made by a Government or a depart-
ment or an administrative agency and it may not be traced to any
particular person. As distinct from the personal decision of the truly
judicial type, the latter decision has sometimes been called an insti-
tutional decision. While it may not be always possible for the
administrative decisions to be personal, the requirements of a fair
hearing demand that the connection between the hearing and the
* Additional Legal Advisor to the Government of India, Ministry of law, New
Delhi.
(The views expressed in this Article are the personal views of the author and do
not in any way represent the official views—V.S.)

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424 " T H E ONE WHO DECIDES MUST H E A B "

decision should be as close as possible. The statutes conferring power

on administrative authorities may vest the power of such hearing and
decision either in a definite person or in a body like the Government
or an administrative agency. To illustrate these two types, let us
take two Indian statutes which restrict the right of property. They
are (1) the Land Acquisition Act, 1894,1 and (2) the Requisitioning
and Acquisition of Immovable Property Act, 19522. The inquiry
and decision into the objections of interested persons under section 11
of the Land Acquisition Act and under section 3 of the Requisition-
ing and Acquisition of Immovable property Act3 has to be by one
definite person. On the other hand, the hearing and decision as to
whether a requisitioned property should be acquired by the Central
Government is to be done under the proviso to section 7(1) of the
Requisitioning and Acquisition of Immovable Property Act by the
Central Government and not by any one definite person. Govern-
ment is an impersonal body and can function only through its officers.
An authorised officer may, therefore, hear the objections and may take
the decision in the name of the Government. If he is not authorised
to take the decision he will submit the record of hearing with his
proposals thereon to the higher authority for such decision. Here
also the decision will be in the name of the Government. This is how
the system of hearing and decision by the Government functions.
It makes the institutional decision as personal as is possible under
the circumstances. Section 5A(2) of the Land Acquisition Act,
1894, is a typical instance of how this works out. The Collector,
thereunder, gives the hearing and submits the case for, the decision of
the appropriate Government together withuthe record of the proceed-
ings held by him and a report containing his recommendations. It
will be seen that such procedure closely tallies with the one evolved
in the United States and now embodied in section 8(a) of the
Administrative Procedure Act, 1946, and also in the United Kingdom
as would appear from Chapters 23 and 24 of the Report of the
(Franks) Committee on Administrative Tribunals and Inquiries,
1957.
Section 68-D of the Motor Vehicles Act, 1939, as amended by
Act No. 100 of 19564 gives any person affected by a scheme for the
1. India Code Vol. I, Part I I , p . 11.
2. Ibid p. 30.
3. Requiring personal hearing according to the decision in Panna Lai v. State of
Delhi, A.I.R. 1954 Punjab 251.
4. India Code Vol. V I I , Part I I I , p . 15.

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 V.S. DESHPANDE 425

coordinated road transport service published under section 68C the

right to file objections thereto before the State Government. It
further provides that the State Government shall hear the objector
and then modify or approve the scheme. In dealing with this
statutory provision, the recent decision of the majority of the
Supreme Court in Gullapalli Nageshwara Rao v. Andhra Pradesh State
Road Transport Corporation5 has, however, construed the rule of personal
decision so literally as to mean that as the decision was of the Minis-
ter the hearing also should have been by the Minister himself. As
the hearing was by the Secretary while the decision was by the Minis-
ter, the rule of personal decision was held to have been violated. This
conclusion which, with the greatest respect, seems to be somewhat
startling as it runs counter to the accepted meaning of the rule as
applied to bodies like Government, was reasoned out by the majority
of the Supreme Court as below. The Government is an impersonal
body and can function only through the machinery and in the manner
prescribed by law. Under the General Clauses Act, section 2(60)
as respects anything done or to be done after commencement of the
Constitution, "state Government" means the Governor (corres-
pondingly under section 2(8) "central Government" means the
President). Under Article 154 (1) the executive power of the state
is vested in the Governor (corresponding to article 77(1) vest-
ing in the President the executive power of the Central Government)
and is exercised by him either directly or through subordinate
officers. Under article 166(3) (corresponding to article 77(3) in respect
of the central Government), the Governor shall make rules for the
more convenient transaction of the business of the state and for the
allocation among the Ministers of the said business. According to
these rules of business the Minister in charge gives direction for the
disposal of cases in his department. The objections of the private
operators were heard by the secretary who recorded the entire pro-
ceedings and presumably submitted them and discussed the matter
with the Chief Minister who passed the order. While the Statute,
i.e., section 68-D of the Motor Vehicles Act, 1939, and the rules
framed thereunder imposed the duty to give personal hearing on
the state Government, the actual procedure prescribed by the rules
imposed the duty of hearing on the Secretary and the duty to decide
on the Chief Minister. This divided responsibility is destructive of
the concept of judicial hearing. Such a procedure defeats the object

5. A.I.R. 1959 S.C. 308.

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426 " T H E ONE WHO DECIDES MUST H E A R "

of personal hearing. Personal hearing enables the authority con-

cerned to watch the demeanour of the witnesses and to clear up his
doubts during the course of the arguments. The party appearing is
also enabled to persuade the authority by reasoned argument to
accept his point of view. The proceedings were, therefore, held
to be vitiated.
This was the decision of three of the five learned judges. The
remaining two learned judges delivered dissenting judgments but
they proceeded on the view that the hearing was an administrative
one and not a quasi-judicial one. They did not consider the
question how the hearing and the decision should have been made by
the Government assuming that the proceeding was a quasi-judicial
one. It would be worthwhile, therefore, to examine more fully
the rule of personal decision.
In India, this rule of personal decision has assumed real signi-
ficance only after the commencement of the Constitution specially
because restrictions on fundamental rights given by Article 19 of
the Constitution have to be reasonable. Before the Constitution
such a right could be conceived only in terms of natural justice or on
the grounds of "justice, equity and good conscience." Considerable
assistance may be derived from the American law as to administrative
procedure in determining how farthe rule of personal decision may be
required to be followed to make restrictions on the concerned
fundamental rights reasonable. The concept of natural justice has
been much discussed in the English case law. Several statutes consti-
tuting the subordinate civil courts in the different states of India
purport to empower the courts to decide questions on the grounds of
"justice, equity and good conscience" in the absence of any specific
provision of law on the point. This expression has been construed
to mean the rules of English law in so far as they are applicable to
Indian conditions. It would, therefore, be useful to enquire what the
rule of personal decision means in the United Kingdom and the
United States.
In the United Kingdom, in Local Government Board v. Arlidge*
Lord Chancellor Haldane referred to the majority view of the Court
of Appeal to the effect that a case could not be argued before one man
and decided by another 7 . But he rejected the argument in the
following words : 8
6. [1915] A.C. 120.
7. Ibid p. 129.
8. Ibid p. 133.

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 V.S. DESHPAKDE 427

" T h e Minister at the head of the Local Government Board

is responsible not only for what h e himself
does b u t for all that is done in his Department. T h e
volume of work entrusted to him is very great and he can-
not do the great bulk of it himself Unlike a j u d g e
in a court he is not only at liberty but is compelled to
rely on the assistance of the staff. W h e n , therefore, the
Board is directed to dispose of a n appeal, that does not
mean that any particular official of the Board is to dis-
pose of it."
T h e general procedure followed by Administrative Tribunals a n d
Inquiries has been the subject of intensive study by the Committee
(Donoughrnore) on Ministers' Powers (1928—32) appointed after the
trenchant criticism of administrative powers and procedure by Lord
Hewart in his New Despotism and also very recently by the Committee
(Franks) on Administrative Tribunals and Inquiries, 1957. The
report of the Franks Committee has led to the passing of the Tribunals
and Inquiries Act, 1958 9 ; b u t nowhere was the opinion entertained
that the head of the Government or head of a d e p a r t m e n t or body
must personally hear and decide a case as representing the Govern-
ment or the administrative agency. O n the contrary, the proce-
dure of Government departments in England has been to appoint a n
Inspector for holding the inquiry. T h e Inspector submits his report
which is taken into consideration by the minister in arriving at a
decision. 10
In the U n i t e d States also the heads of the administrative agencies
could not themselves hold ijie inquiry. Their decision took into con-
sideration the report of the trial examiners who heard the evidence
and wrote the report which they submitted to the agency head with
their recommendations. T o prevent abuse of this system the Supreme
Court of the United States also tried to assert the principle (which
provides the title to this paper) that " t h e one who decides must h e a r "
in the celebrated (First) Morgan case. 1 1 Section 310 of the Packers
and Stockyards Act 12 provides that whenever the Secretary was of
the o p i n i o n . . . . Secretary m a y d e t e r m i n e . . . . the rates etc. I t is
to be noted that in section 68-D of the Motor Vehicles Act, 1939,
as amended by Act No. 100 of 1956, with which our Supreme Court

9. 6 and 7 Elizabeth I I , C, 66.

10. Chapters 23 and 24 of the Franks Committee Report,
11. Morgan v. United States, 298 U.S. 468 (1936).
12. U.S.C.A. 211.

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428 "THE ONE WHO DECIDES MUST HEAR"

was dealing in the Gullapalli case, the power was entrusted not to any
particular officer as in the Morgan case b u t to the State Government
before whom the objections were to be filed and who after hearing,
was to approve or modify the scheme. T h e main argument accepted
by the United States Supreme Court in the first Morgan case was that
the Secretary m a d e the order without having heard the evidence or
arguments and only on the opinion derived from the consultation
with the employees of the Department. T h e United States Supreme
Court pointed out that the question was not merely of delegation of
authority by the Secretary to his subordinates to hear and decide the
case. T h e Assistant Secretary heard the argument b u t did not
make the decision. Congress required the Secretary to determine the
rates. If, therefore, the Secretary h a d not considered the evidence or
the arguments, it was manifest that the hearing h a d not been given.
But even in this case the United States Supreme Court conceded
that the rule of personal decision did not preclude obtaining aid or
assistance in the Department. Assistants m a y prosecute inquiries.
Evidence m a y b e taken by a n examiner. Evidence thus taken
m a y be sifted and analysed by competent subordinates.
But a personal hearing by the agency head resulting in a
personal decision by him was obviously not always practicable. T h e
Morgan decision was, therefore, extensively criticised. It was said that
"if the Secretary of Agriculture was to give to every order which he signs
t h e consideration which the Morgan case requires, he would probably
have to devote all his time to the conduct of matters which must be
considered petty from a national point of view. 1 3 Professor K.C.
Davis in his Administrative Law1* observerl that the Morgan rule was
" a statement of an ideal t h a t probably goes beyond what is practi-
cable." T h e Attorney-General's Committee on Administrative
Procedure which reported in 1941 recommended that the officers
who heard the administrative proceeding should be qualified and
independently selected and that they should have a role in the decision-
making process equivalent to that of a trial j u d g e . T h e Adminis-
trative Procedure Act which was passed in 1946 on those recommen-
dations assimilates the roles of the hearing and the deciding officers
within the administrative agency to those of trial and appellate
courts. U n d e r section 8(a) thereof the hearing officer makes an
initial decision of the case which, in the absence of an appeal to or
13. Feller *'Prospectus for the further study of Federal Administration Law"
47 Tale Law Journal 647 at 662.
14. (1951) p. 364.

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 V.S. DESHPANDE 429

review by the agency, becomes the decision of the agency. Sub-

sequent to the Administrative Procedure Act, 1946, therefore, the
first Morgan decision has ceased to be a governing precedent in the
United States administratives law. In National Labour Relations
Board v. Stocker Mfg. Co.15 for instance it was observed: "due process
in administrative proceedings of the type now under consideration
does not require that the testimony be evaluated by an officer who
heard and observed the witnesses."
It would appear, therefore, that the rigour of this rule of
personal decision has been considerably modified by decisions and
statutes in both the United Kingdom and the United States of
America. The constitutional and statutory provisions with which
the Supreme Court was dealing in the Gullapalli case would also
seem to support only the modified application of this rule. Hearing
and decision by the State Government in this context can hardly be
construed as meaning hearing and decision by the Minister concern-
ed himself. The hearing and decision of this case was of neither
legislative nor of judicial nature. The State Government does not
exercise true judicial power. The power was, therefore, of either
executive or quasi-judicial. The majority of the Supreme Court
have themselves observed in paras (26), (27) and (28) of their
judgment in the Gullapalli case as reported in the All India Reporter,
issue of March 1959, that the procedural rules of business made by
the Governor apply not only to executive but also to quasi-judicial
acts. For, as observed by the Supreme Court, the concept of quasi-
judicial act implies that the act is not wholly judicial. It describes
only the duty cast on the executive body or authority to conform to
norms of judicial procedure in performing some acts in exercise of its
executive power. Under Article 154(1) of the Constitution the
executive power of the State shall be vested in the Governor and shall
be exercised by him either directly or through officers subordinate
to him in accordance with the Constitution. It is well-known that
such powers are exercised by the members of the civil services who
have been notified under article 166(2) as alone being competent to
authenticate the orders and other instruments made and executed
in the name of the Governor. For, all executive action of the State
Government has to be expressed to be taken in the name of the
Governor under article 166(1). It is doubtful how far the reference
to Article 166(3) of the Constitution in this context is apposite.
Thereunder the Governor shall make rules (a) for the more convenient
15. 182 F. 2nd 451 (CA 3,1950). '

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430 "THE ONE WHO DECIDES MUST HEAR"

transaction of the business of the Government of the State, and (b)

for the allocation among Ministers of the said business. T h e expres-
sion " t h e business of the Government of the S t a t e " is wider than the
expression "executive p o w e r " used in Article 154(1). T h e function
of the Government of administrative hearing and decision relates to
the exercise of the executive power and not to the doing of the busi-
ness of the State. T h e latter appears to include many more things
than the mere exercise of executive power. T h e hearing and decision
m a d e and executed in the n a m e of the Government are always authenti-
cated for the outside public by a civil servant and not by a Minister.
Indeed the true function of a Minister is to aid and advise the
Governor under article 163(1). T h e Rules of Business proper as
distinguished from those merely allocating business arnong Ministers
u n d e r article 162(2) are confidential though at times they have been
m a d e available to courts without claiming privilege. Further,
article 163(3) protects from disclosure such advice given by the
Minister to the Governor. Any noting m a d e by the Minister on the
file taking decision in a case will not a m o u n t to an order of the Govern-
ment. T o acquire this quality it has to be authenticated by the
proper civil servant. 1 6 I t is well-known that though the "State
G o v e r n m e n t " means the Governor, he almost never exercises executive
power himself b u t almost always does so through his subordinate
officers. Such subordinate officers would be civil servants and not
the Ministers as would appear from the scheme of the constitutional
provisions referred to above.
Section 68-D of the Motor Vehicles Act, 1939, as amended
by Act 100 of 1946, does not require the Minister himself to hear and
decide the case. T h e state Government is to do so. It would be
interesting to see that while the Gullapalli case was launched in the
Supreme Court directly under Article 32 of the Constitution other
exactly similar sister cases also arising under section 68-D of the
Motor Vehicles Act, 1939, were heard by the A n d h r a Pradesh High
Court, whose decision was announced shortly before that of the
Supreme Court, as reported in K. Gopalakrishnaiyya v. State of Andhra
Pradesh.11 It was pointed out by the A n d h r a Pradesh High Court
that in the rules m a d e by the Governor under Article 166(3) of the
Constitution no provision for personal hearing of such cases by the
Minister was m a d e . U n d e r those rules it was open to the Minister
to issue directions for the disposal of the case. T h e Minister directed
16. Pioneer Motors Ltd. v. M.A. Majid. A.I.R. 1957 Mad. 48 (D.B.)
17. A.I.R. 1959 A.P. 292 (D.B.) (June).

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 V.S. DESHPANDE 431

the Secretary to hear the objections. T h e r e was nothing therefore

to prevent the Secretary form hearing the case. T h e ultimate orders
are, however, always passed by the Government.
A previous case in which a similar question was discussed
was Saghir Ahmed v. The State of Uttar Pradesh1*, though the A . I . R .
report head notes have missed this ^oint. I n that case the Governor
of the State was to consider the objections. T h e objections were
actually heard by a Deputy Secretary. It was urged that it was not
possible for the State Government to delegate the hearing powers.
But it was held that under Article 154(1) of the Constitution such
delegation was proper a n d that the case is deemed to have been
considered by the Governor. 1 9
It may be added that u n d e r Article 166(2) orders of the Governor
properly authenticated shall not b e called in question on the ground
that it is not a n order or instrument m a d e or executed by the Governor.
This provision is intended to preclude inquiry as to which particular
officer of the Government passed the order. O n the facts of the case
before the Supreme Court also, therefore, it m a y be respectfully
urged that after the order was passed and authenticated, no further
inquiry was competent as to who actually passed the order.
T h e true legal position emerging out of the above discussion
would appear to be that where hearing and decision of a quasi-
judicial proceeding are required to be m a d e by Government, neither
the President/Governor nor a minister has to do so personally. T h e
hearing may be delegated to one of the officers who is authorised u n d e r
article 77(2)/166(2) to act for the President/Governor. According
to the Rules of Business and the directions issued by each minister
in his own ministry or department, only certain matters will be
referred to the minister. T h e rest will be disposed of by the authorised
civil servants. I n either case the decision would be that of the
Government. I t is to ensure the working of this system that article
77(2)/166(2) provides that the order or other instrument m a d e a n d
executed in the n a m e of the President/Governor a n d authenticated
by the authorised officer shall not be called in question on the ground
that it is not an order or instrument m a d e or executed by the President/
Governor.
I t is to be hoped that the rule of personal decision laid down
by the Supreme Court in the Gullapalli case m a y not perhaps be

18. A.I.R. 1954 All. 257 (D.B.)

19. Ibid paras 76—80 and 142-143 of the A.I.R.

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432 " T H E ONE WHO DECIDES MUST H E A R "

rigorously applied in view of the reasons discussed above. A too

rigid application of the rule would not harmonise with the
working of the executive Government. Incidentally, the
additional ground on which the hearing given by the Secretary
was invalidated was that it was given by one of the parties to the
disputes itself. In para 21 of the A.I.R. report of the judgment,
the parties to the disputes were said to be the State Transport
Undertaking on the one hand and the citizens who may object to the
scheme on the other hand. The third party was said to be the State
Government which was to decide the lis. This was intended to show
the existence of a lis. But later on in para 29 of the report, the hearing
given by the Secretary to the State Government was said to be the
hearing given by one of the parties to the dispute itself. The
distinction between the State Transport Undertaking and the State
Government made in para 21 was apparently not adhered to in para
29. It may be stated that when the Gullapalli case came to be heard
by the Supreme Court , for the second time, it was held that the
official bias of the Chief Minister who himself later gave the hearing,
was not such as to invalidate the proceedings.20 For, he had no
personal bias against the petitioners.
The reason why the rule of personal decision laid down by the
Supreme Court in this case cannot be literally applied to Govern-
ment would also show why the doctrine may not be literally applicable
to the working of administrative agencies other than Government.
To say all this is not however to deny the real importance of this
decision in emphasising a very salutary principle. The United States
Supreme Court decision in the first Morgan case had great influence
in inducing the Federal administrative agencies in the United States
to improve their procedure. Perhaps even more important was
the authoritative statement of the ideal though it might not have
been capable of literal application. This gave a great impetus
to the movement for the reform of the administrative process
of hearing and decision which ultimately led to a compromise
solution of the problem embodied in the Administrative Procedure
Act, 1946. The Gullapalli decision of our Supreme Court should
compare in all these respects with the United States Supreme Court
decision in the Morgan case. It should be a warning to the
administrators and should ensure that the hearing officer even in
India should have a role in the decision-making process. It is usual,

20. A.I.R. 1959 S.C. 1376.

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 V.S. DESHPANDE 433

for instance, that the officer who has heard the case places the record
of the hearing along with his own tentative conclusions or recom-
mendations before the deciding authority. In the language of
section 8(a) of the American Administrative Procedure Act this may
be called an initial decision by the hearing officer which becomes
final unless the ultimate deciding authority varies it by way of an
appeal or a review. This practice approximates to the procedure laid
down by the American Administrative Procedure Act, 1946, and the
U.K. Report on Administrative Tribunals and Inquiries, 1957, by the
Franks Committee and is based on the principle of natural justice
and fundamental judicial procedure. It would be a deviation from
this salutary practice, if, for instance, the deciding authority were to
give the final decision without having the evidence and the arguments
heard by the hearing officer and his recommendations. Against all
such lapses the decision would be a standing signal.

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