The Bar on Post-Participation Challenges: Whether Absolute Rule?

Whether the constitutional validity of a statute or rule can be challenged after you have already participated in the process?

Understanding the doctrine of Approbate and Reprobate

The main principle of Indian constitutional law and Indian administrative law is a guide to post-participation challenges that propose the issue of whether a party that has voluntarily acted in the procedures pursuant to a legislation or a rule may raise objections to the constitutionality of the proceeding.  This notion gets to the very heart of judicial justice by precluding parties to take conflicting positions, namely to enjoy the benefits when it suits them well and challenge the very power that bestowed such benefits upon them when the result of their actions proves to be a failure.  The effect of the concept is to safeguard the integrity of the legal proceedings and prevent an abuse of the procedure considering that it relies on the principles of waiver, estoppel, and approbate and reprobate.

Still the question is, can exceptions be made in this bar or is it absolute?  The answer has evolved over the decades of judicial interpretation being more complex. The Supreme Court has recognized that constitutional challenges involving basic rights and questions of legislative competence cannot be evaded by merely so doing although courts have repeatedly observed that parties cannot be hot and cold at the same time and case seeking safety under a statute when results are good and challenging the constitutionality of a law when results are bad.  This article scrutinizes the legal basis, court cases, exceptions and the practical implications of the post-participation issues concerning statutory and rule-based limitations.

Definition and Purpose

The principle of consistency and good faith in the legal proceedings is the basis of the notion of approbate and reprobate.  It prohibits a party to assume inconsistent positions which are not fundamental, nor accept a part of a transaction or legal document and reject another.  This doctrine does not allow a litigant to voluntarily accept the jurisdiction of an authorized body by statute, to participate in a court proceeding and to challenge the constitutionality of the same statute that they sought redress under after they obtained an undesirable decision.

The primary objectives of this doctrine are to defend those parties who have placed their trust in the conduct of others, ensure finality and certainty in litigation and to discourage the misuse of the judicial process by seeking to gain a tactical advantage by inconsistency in position.  The other stakeholders organize their business and present their cases depending on the involvement of a party in the proceedings.  The reasonable expectations of all the parties would be compromised in the event the additional challenges were allowed and the procedures would be unclear and lengthy.

Legal Basis and Underlying Principles

The prohibition against challenges after the participation is based on the following interrelated legal theories:

• Estoppel: A party cannot take a different position than before, based on what they have previously said or done. By participating in a proceeding in regard to a statute, a party implicitly accepts the statute to be legal. They are then unable to drop this position and say that the statute was imperfect by nature.
• Waiver: By participating in the procedures, one can waive the right to issue a challenge to the legality of the statute.  When a party is asserting benefits under the Act and is using it as an objection to the constitutionality of the Act, it is said to have waived that objection.
• Election: a party opting to follow the legal structure of proceedings is making a deliberate decision by deciding to participate in them.  They are not even able to repudiate this election once the outcomes prove to be adverse.
• Acquiescence: In case a party goes on with that without even lodging any objections, it can be said to be acquiescence in the validity of the statute and this would prevent any further action to challenge its proceedings by the party that consented to its working.

The General Rule: Bar against Post-Participation Challenges

Articulation of the Principle

Such an individual who voluntarily participates in the processes provided by a rule or legislation could not generally challenge its constitutional validity in future, as far as the decisions of the Indian judiciary have always shown.  According to several decisions of the Supreme Court a litigant may not consent and dissent, that is, to affirm and deny the same instrument or a legislative provision when it is convenient to do so.

The rationale is straightforward: by invoking a legislation, a party indirectly accepts its legitimacy, by acting under it, they partake in action and do so, and by seeking remedies and benefits under it, they implicitly accept the legitimacy of the legislation.  It would be tantamount of granting such a party to challenge the constitutionality of the act later, as a way of receiving carte blanche with the legal system in an attempt to retain benefits without bearing responsibilities.

Application in various contexts

The concept can be used in numerous legal cases, including:

• Election Matters: Unless the challenge is made in connection with fundamental constitutional principles or competence in legislation, past contestants of elections under the rules of election cannot subsequently challenge the rules.
• Service Matters: The government employees are normally not allowed to challenge the legality of the service rules once they participated in the selection process, have accepted new offers, or received promotion benefits.
• Contractual and Tender Procedures: Parties that make such bids in accordance with tender regulations and participate in the assessment process are not allowed to challenge such regulations on appeal.
• Statutory Authority Proceedings: Litigants are normally prohibited to challenge the legality of the resulting statute when they assert the jurisdiction of statutory tribunals or authority and subject to proceedings before the tribunal.

Judicial Interpretation

Landmark Supreme Court Decisions

In Ashok Kumar Yadav v. State of Haryana, (1985) 4 SCC 417, it was reiterated that the applicants who participated in an examination and selection process conducted under specific regulations were not allowed to challenge the regulations once they had completely participated in the exercise.  The Court emphasized that such contradictory action is not allowed by the doctrine of approbate and reprobate. In S.P. Sampath Kumar v. Union of India, (1987) 1 SCC 124 the Supreme Court decided that employees who participated in a selection exercise and were employed after years of service could not dispute the regulations on which they were employed.  The Court observed that parties could not enjoy the fruits of a rule, and at the same time criticize its validity.

In Rajasthan SRTC v. Krishna Kant, (1995) 5 SCC 75, the Court ruled that a party that had already participated in the arbitration proceedings under the Arbitration Act could no longer challenge the provisions of the Act after deciding against it.

Latest Decisions of the Supreme Court

In N. Murugesan v. Union of India, (2022) 2 SCC 25, a two-judge bench of the Supreme Court invoked and upheld the approbate and reprobate theory, emphasizing that no party can accept and repudiate the same legal document in one breath. What is important is that this judgment lays down a necessary precedent wherein parties cannot assume two opposite positions to gain a tactical advantage, thus holding the scales of justice and consistency together in the administration of law.

In the landmark judgment of Joint Secretary (Welfare) Food Corporation of India Executive Staff Union v. Management of Food Corporation of India, (2023 INSC 588), the Supreme Court maintained the applicability of approbate and reprobate as developed under labor laws. The Court held that if the management, by their conduct, had acted for a continuous period of 18 years upon a Tribunal Award passed, which had provided for voluntary reinstatement and regularization of workers, it would amount to tacit acquiescence barring the applicant from challenging the same. What the ruling implied was that one party cannot manipulate the system by reversibly accepting the inconvenient orders.

Then in Navneet Kaur Harbhajan Singh Kundles v. State of Maharashtra, 2024 INSC 266, the Supreme Court held that once a respondent participated in the tendering process and was fully aware of all the terms and conditions of an auction notice, they could not contest the legality or validity of those terms and conditions. The Court held that a person who takes part in any process with full knowledge of such a process cannot later question it on any ground by applying the doctrine of estoppel and waiver.

High Court Decisions and Divergent Views

This principle has been utilized by different High Courts in different levels of strictness. A more flexible solution has been embraced by some who have acknowledged that non-participation under protest or even situations which involve violation of fundamental rights is not necessarily waiver. There are those who have come down hard on the bar, and believed that no voluntary participation, however the nature of challenge is, precludes later assertions to the invalidity.

Exceptions to the Rule: When Post-Participation Challenges are permitted

Despite the general bar, the Supreme Court has recognized several important exceptions where post-participation challenges are permissible:

Challenges to legislative Competence

It has been determined in courts that the very fact of participation does not negate claims on the legislative competence of the entity enacting the Act i.e. whether it was the constitutional capacity of Parliament or State Legislature to pass Acts on the matter. The problem of legislative competence is one of the basic topics of the constitutional system and cannot be neglected by parties.

Rationalization: This distribution of legislative powers between the States and Union is a constitutionally important matter that transcends the efforts of particular parties. This would mean that the unconstitutional laws can stay in place simply because the parties that were being affected by the law were initially obedient to the law.

Violation of Fundamental Rights

Even though it was previously involved, problems of allegations of violation of fundamental rights guaranteed by Part III of the Constitution have been affirmed, particularly when: the violation is egregious and concerns a fundamental constitutional right (such as equality (Article 14), freedom (Articles 19, 21), or protection against discrimination (Articles 15, 16). The party was either forced to do under the stress or compulsion or they had no viable choice. The underlying right violation was clear only when or after the involvement. In Kihoto Hollohan v. Zachillhu, 1992 Supp (2) SCC 651, the Supreme Court recognized that the participation did not exclude fundamental rights concerns and permitted the challenges to the Anti-Defection Law even when it is applied by MPs.

Challenges under Protest

In cases where one party makes participation under express protest, that is, reserving the right to attack the validity of the statute, the courts have taken a somewhat more liberal attitude to allow subsequently attacks. The protest should be explicit, on time and one that is relayed to the concerned authorities and other parties.

Requirements for Valid Protest:

• Strong and categorical protest as soon as the opportunity presents itself.
•  Reporting to the authority in charge of proceedings.
•  Regular upholding of the objection in question.
• Any act of receiving benefits inconsistent with the challenge is unacceptable.

Exceptions to the Bar on Post-Participation Challenges

Subsequent Change in circumstances

Parties might be permitted to challenge those matters which they would have been unable to raise or to foresee at the earlier stage had circumstances changed in a material way following participation, either by the enactment of a constitutional amendment which alters the legal framework, by the supereminence of judicial precedent, which elucidates or otherwise overrules earlier law, or by new material facts since unknown or inaccessible.  Courts have accepted that parties ought to have the right to deal with changed legal or factual landscapes that are usually eminent after their initial engagement without being obstructed by the theory of waiver.

Collusive or Fraudulent Proceedings

The inadmissibility of post-participation challenges could not be applicable to instances where the participation was occasioned by fraud, collusion, misrepresentation by an official, and other procedural anomalies.  Courts recognize that any engagement obtained by immoral conducts like conscious misrepresentation, nondisclosure of relevant facts, or manipulative act cannot prevent the parties or compel them to oppose jurisdiction or the constitution.  Consent or participation has to be informed and voluntary to ensure the sanctity of the legal processes.

Public Interest and Constitutional Interpretation

In situations with great social concern, or with basic rights, or where important constitutional interpretation is necessary, the strict test of the participation bar has been compromised in anti-trust cases by the courts, in recognition that constitutional adjudication is not just aimed at resolving a particular dispute.  However, challenges may be made after participation has occurred about the procedure regularity versus the need to ensure constitutional faithfulness and the protection of core democratic values, where issues have an effect on the larger polity or other questions which require ultimate clarification of the constitutional concepts.

Nuances and Practical Considerations

Determining voluntariness of Participation

Courts look to whether participation was voluntarily given or coerced due to circumstances. Relevant factors include:

• Whether the party had viable alternatives
• Whether participation was necessary to avoid immediate prejudice
• Whether the party actively invoked the statutory provisions or simply responded to proceedings initiated by others
• Timing and nature of objections raised during participation

Balancing Individual rights and systemic Integrity

Judicial decisions reflect an ongoing tension between two important values: protecting individual constitutional rights and maintaining the integrity and finality of legal proceedings. Courts must balance preventing abuse of process against ensuring that genuine constitutional violations are not immunized from scrutiny merely because affected parties initially complied.

Conclusion

The rule prohibiting post-participation challenges is thus better characterized as a principle with important exceptions, not a strict rule. Courts steadfastly repeat that parties cannot take inconsistent positions-participating when it helps and opposing when it hurts-but they also recognize that participation alone cannot bar constitutional rights and legislative competence issues.

The current state of the law reflects a nuanced approach: participation generally creates an estoppel against contesting the validity of statutes, but this presumption can be refuted in cases involving fundamental constitutional principles, legislative competence, participation under protest, or altered circumstances. The doctrine achieves the two essential ends of ensuring finality and preventing abuse of process, without doing so at the cost of allowing invalid laws to escape challenge.

In each instance, courts are called upon to perform a fact-specific inquiry, examined in the type of involvement, the timing and nature of objections, the nature of the constitutional claim, and the balance between systemic integrity and individual rights.  This flexible approach ensures that valid constitutional questions are paired with proper judicial consideration of issues regardless of prior participation while spurious challenges by litigants seeking strategic advantage are avoided.  The principle remains sound: participation in the suit or proceeding at an earlier stage presumes against later challenge to the validity of the judgment, proceeding, or legislation in question, but when justice and constitutional government require, this presumption may be rebutted.

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This article is authored by Ms. Moubeethi Chakraborty, student at Christ Academy Institute of law Bengaluru.