Notification Issued By Central Govt Not Invalid Merely Because It's Not Issued In President's Name : Supreme Court

The Supreme Court of India recently upheld the notification issued by the Central Government in 2019 to abolish the Odisha Administrative Tribunal (OAT). The bench comprising Chief Justice of India DY Chandrachud and Justice Hima Kohli dismissed the petition filed by the Odisha Administrative Tribunal Bar Association challenging the Orissa High Court's decision which upheld the abolition of OAT. 

In its judgement, the Supreme Court held that the notification abolishing OAT could not be held as invalid simply because it was not issued in the name of the President of India under Article 77(1) of the Indian Constitution. Article 77(1) of the Constitution states that all executive actions of the Government of India shall be expressed to be taken in the name of the President. The court noted–

"A notification which is not in compliance with clause (1) of Article 77 is not invalid, unconstitutional or non-est for that reason alone. Rather, the irrebuttable presumption that the notification was issued by the President of India (acting for the Union Government) is no longer available to the Union Government. The notification continues to be valid and it is open to the Union Government to prove that the order was indeed issued by the appropriate authority." 

Here, the court also noted that while the notification abolishing the OAT was not issued in the name of the President, even the notification by which the OAT was established was not issued in the name of the President. Thus, the court noted that if the arguments of the appellants were to be accepted, the notification establishing OAT would also be invalid. 

As per the court, both the notification establishing and abolishing OAT were, in substance, issued by the President (acting for the Union Government). The notifications were published in the Gazette of India in accordance with law and there was nothing on record to support the suggestion that an authority which was not empowered to issue the notification had issued it. 

The court also added that Article 77 of the Indian Constitution was a directory provision and referred to the form in which the decision taken by the executive was to be expressed. However, the court added, that the provision did not have any bearing on the process of decision-making itself. The court remarked–

"The public or the citizenry would stand to suffer most from the consequences of declaring an order that is not expressed in the name of the President null and void."

Case Title: Orissa Administrative Tribunal Bar Association v. Union of India & others | Civil Appeal No 6805 of 2022

Citation : 2023 LiveLaw (SC) 216

Click Here To Read Judgement