This Case Analysis is completed by Arushi Chopra (pursuing BBA LLB from Symbiosis Law School, Noida)
Facts
Chhattisgarh Excise Act, 1915 gave powers to State governments to enact laws for regulating excise licences. State government enacted Chhattisgarh Excise Settlement of Licences for Retail Sale of Country / Foreign Liquor rules, 2002 providing for procedure and eligibility for granting the licence. In the writ petition in SC in 2005, district level committees formed under the rules were directed to review the applications. The committees and Commissioner of excise found no flaw in granting of licences. It is contended that investigations were not conducted strictly contrary to the parent acts and court directions. Also, state-issued a notification amending Rule 9 retrospectively owing to an error in the English version.
Issues
- Whether retrospective amendment of rule 9 is valid?
- Whether strict scrutiny of applications was necessary and in this regard whether the exclusion by administrative agencies are valid?
- Whether complete selection can be declared invalid as a remedy if second issue was affirmative?
The issue of admissibility of sur-rejoinder by the respondent is out of the scope of this paper.
Doctrine and Rules
The retrospective application of the delegated legislation was discussed and the exception where the same can be granted was provided to understand whether the said retrospective amendment came under such exceptions. The doctrine of proportionality and the objectives of the parent act was looked into to understand whether the selection was valid considering the intensity of deviations.
Judgement rendered
The court held that the retrospective amendment of rule 9 is valid as it is clarificatory in nature. The amendment does not make a rule but seeks to remove the conflict in the English and Hindi versions. While the Hindi version provided that the criminal antecedents of the person who is seeking the licence are required and the rule did not mention such requirements from the family members. However, this provision was erroneously put in the English version and the retrospective clarification to correct this is valid.
As for the second, the court held that strict scrutiny was necessary for accordance with the parent act and the exclusions made by the committee cannot be justified as it was not provided in the act. The court looked into the objective of the Act to determine whether powers exercised by administrative agencies was within the scope of their powers. The objective was to regulate licences to improve public health in accordance with Article 47 of the Indian Constitution. As the act did not provide for any exclusion and rules were framed for strict scrutiny in order to fulfil the objectives of the parent Act, the administrative agencies were not justified in making exclusions in criteria.
Having answered affirmatively to the second issue, the court was to determine the remedy. It was prayed to cancel the selection process completely as the process was out of boundaries under which the administrative agency could operate as per the objectives of the act. Applying the doctrine of proportionality, it was held that cancelling the entire process of selection was possible if the process was so arbitrary and tainted that it is impossible to distinguish valid ones from invalid ones. However, this was not the case as selections that were not conducted after all criteria were met could be easily identified. Also, the selection process cannot be cancelled when there are multiple committees responsible for the selection as in the present case.
The court acknowledged the fact that the process applied by the administrative court was not in accordance with the parent act and directions of the court. However, the court did not cancel the selection process and presumed faith in the administrative agencies to conduct the selection fairly in future.
Opinion
I am in consonance with the part in the judgement of the main issues. The court was right in not cancelling the whole selection procedure as a whole taking into consideration the facts and circumstances of the case. There are many cases where the selection process has been cancelled in the past. The cancellation of board exams due to mass cheating has been considered to be valid. However, the present case is to be differentiated with regards to the number of agencies performing the selection process. In the case of board examination, the whole examination process is conducted by one agency alone while in this case, the selection is done by multiple agencies. Thus, invalidating the whole selection of all the committees for a wrong action by one committee would be unjustified. This would be unfair for people who were granted a licence by meeting criteria and they would not get the right to carry on the business even after being granted a legitimate licence. Furthermore, the stand of the court that the valid and invalid licences can be identified and thus cancellation of whole selection would not be justified.
The court was also correct invalidating the retrospective application of the amendment to rule 9 as it was merely a clarificatory notification. Retrospective delegated legislation is not in the spirit of the law as the executive is not the law-making authority and giving such power to the administrative bodies is not justified. However, the main purpose of delegated legislation is to ensure that the act made by the legislature is properly carried out. Thus, retrospective applicability of delegated legislation can be done if it is essential to ensure compliance with the objectives of the act. If the notification would not be applied retrospectively, it would create a lot of confusion as to the text in the Hindi and English versions being contradictory. Thus, according to me, the judgement rendered by the court regarding its issue was good in law.
The court could not provide any remedy as the licence period had already been completed. This indicates the delay in justice delivery due to which the invalid act by the executive could not be corrected. This circumstance was an instance where the judicial check over the executive was not effective as a remedy to those affected could not be possible.
