Useless formality theory

What is known as ‘useless formality theory’ has received consideration of this Court in M. C. Mehta vs. Union of India (1999) 6 SCC 237.

It was observed as under :

“Before we go into the final aspect of this contention, we would like to state that case relating to breach of natural justice do also occur where all facts are not admitted or are not all beyond dispute. In the context of those cases there is a considerable case law and literature as to whether relief can be refused even if the Court thinks that the case of the applicant is not one of ‘real substance’ or that there is no substantial possibility of his success or that the result will not be different, even if natural justice is followed (See Malloch vs. Aberdeen Corpn. (1971) 2 All ER 1278, HL) (per Lord Reid and Lord Wilberforce), Glynn vs. Keele University (1971) 2 All ER 89; Cinnamond vs. British Airports Authority (1980) 2 All ER 368 CA) and other cases where such a view has been held. The latest addition to this view is R vs. Ealing Magistrates’ Court, ex p. Fannaran (1996 (8) Admn LR 351, 358) (See de Smith, Suppl p. 89 (1998) where Straughton, LJ held that there must be ‘demonstrable beyond doubt’ that the result would have been different. Lord Woolf in Lloyd vs. McMohan (1987 (1) All ER 1118 CA) has also not disfavoured refusal of discretion in certain cases of breach of natural justice. The New Zealand Court in McCarthy vs. Grant (1959 NZLR 1014) however goes halfway when it says that (as in the case of bias), it is sufficient for the applicant to show that there is ‘real likelihood not certainty of prejudice.’ On the other hand, Garner Administrative Law (8th Edn. 1996 pp 271-72) says that slight proof that the result would have been different is sufficient. On the other side of the argument, we have apart from Ridge vs. Baldwin (1964 AC 40, Megarry, J. in John vs. Rees (1969 (2) All ER 274) stating that there are always ‘open and shut cases’ and no absolute rule of proof of prejudice can be laid down. Merits are not for the Court but for the authority to consider. Ackner, J. has said that the ‘useless formality theory’ is a dangerous one and, however inconvenient, natural justice must be followed. His Lordship observed that ‘convenience and justice are often not on speaking terms.’ More recently, Lord Bingham has deprecated the ‘useless formality theory’ in R. vs. Chief Constable of the Thames Valley Police Forces, ex p. Cotton (1990 IRLR 344) by giving six reasons (see also his article ‘Should Public Law Remedies be Discretionary?’ 1991 PL p. 64). A detailed and emphatic criticism of the ‘useless formality theory’ has been made much earlier in ‘Natural Justice, Substance or Shadow’ by Prof. D. H. Clark of Canada (see 1975 PL pp 27-63) contending that Malloch (supra) and Glynn (supra) were wrongly decided. Foulkes (Administrative Law, 8th Edn. 1996 p. 323). Craig (Administrative Law, 3rd Edn. p. 596) and others say that the Court cannot prejudge what is to be decided by the decision-making authority. De Smith (5th Edn. 1994, paras 10.031 to 10.036) says Courts have not yet committed themselves to any one view though discretion is always with the Court. Wade (Administrative Law, 5th Edn. 1994, pp. 526-530) says that while futile writs may not be issued, a distinction has to be made according to the nature of the decision. Thus, in relation to cases other than those relating to admitted or indisputable facts, there is a considerable divergence of opinion whether the applicant can be compelled to prove that the outcome will be in his favour or he has to prove a case of substance or if he can prove a ‘real likelihood’ of success or if he is entitled to relief even if there is some remote chance of success.

We may, however, point out that even in cases where the facts are not all admitted or beyond dispute, there is a considerable unanimity that the Courts can, in exercise of their ‘discretion,’ refuse certiorari, prohibition, mandamus or injunction even though natural justice is not followed. We may also state that there is yet another line of cases as in State Bank of Patiala vs. S. K. Sharma (1996) 3 SCC 364; Rajendra Singh vs. State of M.P. (1996) 5 SCC 460 that even in relation to statutory provisions requiring notice, a distinction is to be made between cases where the provision is intended for individual benefit and where a provision is intended to protect public interest. In the former case, it can be waived while in the case of the latter, it cannot be waived.

We do not propose to express any opinion on the correctness or otherwise of the ‘useless formality theory’ and leave the matter for decision in an appropriate case, inasmuch as the case before us, ‘admitted and indisputable’ facts show that grant of a writ will be in vain as pointed by Chinnappa Reddy, J.”

 As was observed by this Court we need not go into ‘useless formality theory’ in detail; in view of the fact that no prejudice has been shown. As is rightly pointed out by learned counsel for the appellants unless failure of justice is occasioned or that it would not be in public interest to dismiss a petition on the fact situation of a case, this Court may refuse to exercise said jurisdiction (see Gadde Venkateswara Rao vs. Govt. of A.P. and others, AIR 1966 SC 828). It is to be noted that legal formulations cannot be divorced from the fact situation of the case. Personal hearing was granted by the appellate authority, though not statutorily prescribed. In a given case post-decisional hearing can obliterate the procedural deficiency of a pre-decisional hearing. (See Charan Lal Sahu vs. Union of India etc., (AIR 1990 SC 1480).