AUTHORISING EX POST FACTO REASONING: CRITIQUE OF J.S. LUTHRA ACADEMY v. STATE Of JAMMU AND KASHMIR

Citation: (2018) 18 SCC 65

Authored by Bhavpreet Singh Dhatt & Kritika

The Supreme Court, in the judgment of J.S. Luthra Academy and Another v. State of Jammu and Kashmir and Another, (2018) 18 SCC 65, accepted the government’s ex post facto reasoning to uphold the allotment of land in favour of an educational institution. This approach of the Supreme Court is problematic and is fraught with probable adverse ramifications for fundamental rights enshrined in the Constitution. Before discussing the approach adopted by the court herein, a brief discussion of the facts is necessary.

The appellant, J.S. Luthra Academy, an educational institution, was ordered to be evicted from certain lands, which were Waqf properties. The appellant made representations to the State Government seeking the allotment of an alternate site, whereupon the government had sanctioned 4 Kanals of land. This allotment was challenged on several grounds, including the violation of the original scheme and plan and the decision of the government not to auction the site. A writ petition was filed, which was dismissed by the Single Judge of the Jammu and Kashmir High Court. An intra-court appeal was filed before the Division Bench which was allowed and the allotment in favour of the appellant was quashed. The matter went to the Supreme Court, wherein the order of the Division Bench was set aside and the allotment was restored. The Supreme Court discussed several legal principles, including those relating to allocation of public resources and the tests governing arbitrariness. Although the ultimate conclusion arrived by the court in restoring allotment was probably correct, the reasoning encapsulated under these observations was highly problematic:

“24. As a corollary of the above, it is evident that an executive action would not be arbitrary merely because the action is not explicitly stated to have been taken for a particular reason or based on a particular principle which in itself is reasonable; rather, it would be open to the Court to see whether such a reasonable principle is discernible from the facts and circumstances of the case. Just like the Court has the power to look into the underlying purpose of an executive action to determine whether it is motivated by extraneous reasons while examining it for arbitrariness, so also the Court may determine whether there is a germane objective being served through the execution of the action, by examining the surrounding facts and circumstances in which the executive action was effected.”

AUTHORISATION OF EX POST FACTO REASONING

The observations quoted above are to the effect that a governmental action would be approved even when it is “not explicitly stated to have been taken for a particular reason or based on a particular principle which itself is reasonable” and that the court would “determine whether there is a germane objective being served through the action, by examining the surrounding facts and circumstances..”. These observations are problematic since they permit governments to act without adequate and discernible reasons which are clearly spelt out and the courts would still uphold them based on apparently equitable considerations. This contradicts the principle enunciated in East Coast Railway v. Mahadev Appa Rao[i] viz., that an administrative order must be judged through the reasons provided therein or those in records contemporaneously maintained[ii]. This view[iii] was based on the celebrated observations made by Vivian Bose, J. in Commissioner of Police, Bombay v. Gordhandas Bhanji[iv] wherein it had been observed that “public orders, publicly made, in exercise of a statutory authority cannot be construed in the light of explanations subsequently given by the officer making the order of what he meant, or of what was in his mind, or what he intended to do.” After Bhanji, this principle was reiterated in Mohinder Singh Gill v. Chief Election Commissioner[v], as it was observed that “when a statutory functionary makes an order based on certain grounds, its validity must be judged by the reasons so mentioned and cannot be supplemented by fresh reasons in the shape of affidavit or otherwise. Otherwise, an order bad in the beginning may, by the time it comes to court on account of a challenge, get validated by additional grounds later brought out.” [vi]

The observations made in J.S. Luthra Academy ignored this settled position of law and are not traceable to any first principle of Administrative Law. The court does not provide any authority or basis for devising this apparently new norm. The absence of a contemporaneous and clearly discernible basis for the action is likely to increase the room for arbitrariness.[vii] The reasoning apparently promotes more space for the State in making administrative orders and a restrictive judicial approach in matters of fundamental rights violations. All that was required was for the court to have stressed on the requirement of providing a proper basis for the order therein or in contemporaneous records and held that the absence thereof would vitiate the decision.

[i] East Coast Railway v. Mahadev Appa Rao, (2010) 7 SCC 678; [ii] The observations made in para 8 of East Coast Railway v. Mahadev Appa Rao, (2010) 7 SCC 678 are clear and emphatic as to this legal principle: “8. The High Court was also of the view that no reasons for cancellation of the test having been recorded even on the file contemporaneously maintained for that purpose, the same could not be supplied in the affidavit filed in reply to the writ petition challenging the said order, especially when the cancellation of the test was not, according to the High Court, necessitated by any irregularity in the conduct of the test or any mala fides vitiating the same. In the absence of any such infirmity the cancellation of the examination was arbitrary and unsustainable, declared the High Court.”; [iii] Hindustan Petroleum Corpn. Ltd. v. Darius Shapur Chenai, (2005) 7 SCC 627; [iv] Commissioner of Police, Bombay v. Gordhandas Bhanji, AIR 1952 SC 16; [v] Mohinder Singh Gill and Another v. Chief Election Commissioner, New Delhi and Others, (1978) 1 SCC 405; [vi] The observations made in Mohinder Singh Gill and Another v. Chief Election Commissioner, New Delhi and Others, (1978) 1 SCC 405 are rather interesting: “8. The second equally relevant matter is that when a statutory functionary makes an order based on certain grounds, its validity must be judged by the reasons so mentioned and cannot be supplemented by fresh reasons in the shape of affidavit or otherwise. Otherwise, an order bad in the beginning may, by the time it comes to court on account of a challenge, get validated by additional grounds later brought out. We may here draw attention to the observations of Bose, J. in Gordhandas Bhanji [Commr. of Police, Bombay v. Gordhandas Bhanji, 1951 SCC 1088 : AIR 1952 SC 16] : “Public orders, publicly made, in exercise of a statutory authority cannot be construed in the light of explanations subsequently given by the officer making the order of what he meant, or of what was in his mind, or what he intended to do. Public orders made by public authorities are meant to have public effect and are intended to affect the actings and conduct of those to whom they are addressed and must be construed objectively with reference to the language used in the order itself.” Orders are not like old wine becoming better as they grow older.” [vii] The principle of arbitrariness was elaborately discussed in Kumari Shrilekha Vidyarthi and Others v. State of U.P. and Others, (1991) 1 SCC 212 wherein it was observed: “36. The meaning and true import of arbitrariness is more easily visualized than precisely stated or defined. The question, whether an impugned act is arbitrary or not, is ultimately to be answered on the facts and in the circumstances of a given case. An obvious test to apply is to see whether there is any discernible principle emerging from the impugned act and if so, does it satisfy the test of reasonableness. Where a mode is prescribed for doing an act and there is no impediment in following that procedure, performance of the act otherwise and in a manner which does not disclose any discernible principle which is reasonable, may itself attract the vice of arbitrariness. Every State action must be informed by reason and it follows that an act uninformed by reason, is arbitrary. Rule of law contemplates governance by laws and not by humour, whims or caprices of the men to whom the governance is entrusted for the time being. It is trite that ‘be you ever so high, the laws are above you’. This is what men in power must remember, always.”