February 8, 2023

Meaning of ‘Finality Clause’ in Law

Finality’ is a good thing but justice is a better.

Finality clause means, a clause in a provision which made the decision final by certain authorities.

When any statutory provision has the words ‘shall be final’, it constitutes finality clause. It generally excludes the jurisdiction of the courts to interfere in the matter. But, the Indian court refused to accept such complete exclusion of jurisdiction by way of finality clause.

Kihoto Hollohon v. Zachilluhu (1992)

In the case of ‘Kihoto Hollohon v. Zachilluhu (1992)’ the court refused to accept the exclusion of jurisdiction from interfering the matters decided by Loksabha speaker on the question of disqualification of MPs. The para 6(1) of newly added Tenth Schedule provided that speaker’s decision shall be final on the question of disqualification. On this the court said,

A finality clause is not a legislative magical incantation which has the effect of telling off Judicial Review. Statutory finality of a decision presupposes and is subject to its consonance with the statute. The principle that is applied by the courts is that in spite of a finality clause it is open to the court to examine whether the action of the authority under challenge is ultra vires the powers conferred on the said authority.

An action can be ultra vires for the reason that it is in contravention of a mandatory provision of the law conferring on the authority the power to take such an action. It will also be ultra vires the powers conferred on the authority if it is vitiated by mala fides or is colourable exercise of power based on extraneous and irrelevant consideration.

On the meaning and effect of such finality clause, Prof. Wade in `Administrative Law’ 6th Edn, at page 720 says:

“Many statues provide that some decision shall be final. That provision is a bar to any appeal. But the courts refuse to allow it to hamper the operation of judicial review. As will be seen in this and the following section, there is a firm judicial policy against allowing the rule of law to be undermined by weakening the powers of the court. Statutory restrictions on judicial remedies are given the narrowest possible construction, sometimes even against the plain meaning of the words. This is a sound policy, since otherwise administrative authorities and tribunals would be given uncontrollable power and could violate the law at will. `Finality’ is a good thing but justice is a better.”

“If a statute says that the decision `shall be final’ or `shall be final and conclusive to all intents and purposes’ this is held to mean merely that there is no appeal: judicial control of legality is unimpaired. “Parliament only gives the impress of finality to the decisions of the tribunal on condition that they are reached in accordance with the law. This has been the consistent doctrine for three hundred years.”

Learned Professor further says:

“A provision for finality may be important in other contexts, for example when the question is whether the finding of one tribunal may be reopened before another, or whether an interlocutory order is open to appeal……”.

Durga Shankar Mehta v. Raghuraj Singh

In Durga Shankar Mehta v. Raghuraj Singh, AIR 1954 SC 520 the order of the Election Tribunal was made final and conclusive by s. 105 of the Representation of the People Act, 1951. The contention was that the finality and conclusiveness clauses barred the jurisdiction of the Supreme Court under Article 136. This contention was repelled. It was observed:

“…..but once it is held that it is a judicial tribunal empowered and obliged to deal judicially with disputes arising out of or in connection with election, the overriding power of this Court to grant special leave, in proper cases, would certainly be attracted and this power cannot be excluded by any parliamentary legislation.

…… But once that Tribunal has made any determination or adjudication on the matter, the powers of this Court to interfere by way of special leave can always be exercised. …… The powers given by Article 136 of the Constitution, however, are in the nature of special or residuary powers which are exercisable outside the purview of ordinary law, in cases where the needs of justice demand interference by the Supreme Court of the land …… Section 105 of the Representation of the People Act certainly give finality to the decision of the Election Tribunal so far as that Act is concerned and does not provide for any further appeal but that cannot in any way cut down or effect the overriding powers which this court can exercise in the matter of granting special leave under Art. 136 of the Constitution.”

Union of India v. Jyoti Prakash Mitter

Again, in Union of India v. Jyoti Prakash Mitter, [1971] 3 SCR 483 a similar finality clause in Articles 217(3) of the Constitution camp up for consideration. This Court said:

“….The President acting under Article 217(3) performs a judicial function of grave importance under the scheme of our Constitution. He cannot act on the advice of his Ministers. Notwithstanding the declared finality of the order of the president the Court has jurisdiction in appropriate cases to set aside the order, if it appears that it was passed on collateral considerations or the rules of natural justice were not observed, or that the President’s judgment was coloured by the advice or representation made by the executive or it was founded on no evidence….”

Union of India & Anr. v. Tulsiram Patel & Ors.

Referring to the expression “final” occurring in Article 311(3) of the Constitution the Court in Union of India & Anr. v. Tulsiram Patel & Ors. [1985] Supp. 2 SCR 131 at page 274 held: “……The finality given by clause (3) of Article 311 to the disciplinary authority’s decision that it was not reasonably practicable to hold the inquiry is not binding upon the court. The court will also examine the charge of mala fides, if any, made in the writ petition. In examining the relevance of the reasons, the court will consider the situation which according to the disciplinary authority made it come to the conclusion that it was not reasonably practicable to hold the inquiry. If the court finds that the reasons are irrelevant, then the recording of its satisfaction by the disciplinary authority would be an abuse of power conferred upon it by clause (b)……”

Brundaban Nayak v. Election Commission of India & Anr

In Brundaban Nayak v. Election Commission of India & Anr., [1965] 3 SCR 53, in spite of finality attached by Article 192 to the decision of the Governor in respect of disqualification incurred by a member of a State Legislature subsequent to the election, the matter was examined by the Court on an appeal by special leave under Article 136 of the Constitution against the decision of the High Court dismissing the writ petition filed under Article 226 of the Constitution.

Union of India v. Jyoti Prakash Mitter

Similarly, in Union of India v. Jyoti Prakash Mitter, [1971]3 SCR 483, in spite of finality attached to the order of the President with regard to the determination of age of a Judge of the High Court under Article 217 (3) of the Constitution, the Court examined the legality of the order passed by the President during the pendency of an appeal filed under Article 136 of the Constitution.