Civil Death Cannot Be the Price of Past Mistakes: Orissa High Court Strikes Down Blanket Tender Ban on Previously Blacklisted Bidders

“Even a bidder blacklisted for a day shall be prevented from participating — such permanent debarment is unconstitutional”, In a ruling with wide ramifications for public procurement and the fundamental right to trade, the Orissa High Court quashed a tender condition that permanently barred bidders who had “ever” been blacklisted or debarred by any authority in India. The Court declared that such a clause amounted to “civil death” for contractors and violated Article 19(1)(g) of the Constitution, which guarantees the right to practise any profession or carry on any occupation, trade or business.

“Blacklisting is a serious administrative tool, but it cannot be used to destroy a citizen’s livelihood forever,” observed Chief Justice Harish Tandon, writing for the Bench that also included Justice M.S. Raman.

“Permanent Blacklisting Implies Civil Death — It Violates the Fundamental Right to Trade”

The Court was dealing with a batch of writ petitions filed against a tender floated by Balasore Municipality for the management of sweeping, sanitation, parking and toll collection in daily markets. Among various challenges raised, the most significant pertained to Clause 15 of the tender document, which read:

“The Bidder must not have been ever blacklisted or debarred either by the tender inviting authority or by any State Govt. or Govt. of India organization or by any PSUs or by any other department… Revocation of blacklisting / termination / debarment is not allowed.”

This clause operated as a blanket disqualification, barring any bidder who had ever faced blacklisting—even if the order was later revoked, or imposed for a trivial duration. “The word ‘ever’ in its grammatical meaning applies for all time to come,” the Court noted, emphasizing that the clause would disqualify even those whose blacklisting was temporary, set aside, or resolved.

“A clause that creates permanent hindrance on trade is antithetical to Article 19(1)(g)”

“Blacklisting of a contractor has an impact on the privilege and the advantage of entering into a lawful relationship with the Government or its instrumentalities for his livelihood in the form of gain,” the Court observed, while emphasizing that such exclusion, if perpetual, amounts to civil death.

Citing its own prior decision in Artatran Bhuyan v. State of Odisha (2025 SCC OnLine Ori 2844), the Court reiterated that a state instrumentality cannot weaponize blacklisting to impose lifelong disqualification. The judgment also relied on the Supreme Court's decision in State of Odisha v. Panda Infraproject Limited [(2022) 4 SCC 393], where even in a case involving death and structural collapse due to contractor negligence, the apex court refused to uphold an indefinite ban, and restricted blacklisting to five years.

The High Court stated: “Time and again, the apex Court has discarded the blacklisting order to operate perpetually and directed such debarment to be restricted by a particular period of time… Perpetual blacklisting tantamounts to a civil death.”

“Tendering discretion is not unfettered — it must operate within constitutional bounds”

While acknowledging that tendering authorities possess discretion to set eligibility criteria, the Court firmly held that such discretion cannot override constitutional rights or fundamental freedoms. It observed:

“We are not unmindful of the proposition that blacklisting is an effective tool against defiant contractors… yet it should not be used as a tool for civil death.”

The impugned Clause 15, in the Court’s view, was “arbitrary, unreasonable and disproportionate”, and therefore liable to be struck down under judicial review. The use of the word “ever” was declared to have the effect of eternal disqualification, which could not withstand constitutional scrutiny.

“Even a one-day blacklisting becomes a life sentence under this clause”

The Court summed up its constitutional concern with the following unequivocal observation:

“Clause 15 inculcates a clear and explicit expression that even a bidder, who suffered an order of blacklisting for a day, shall be prevented from participating… Such permanent debarment is opposed to the decisions rendered by the apex Court… as well as Article 19(1)(g) of the Constitution of India.”

Court Directs Fresh Tender Within Fifteen Days

Declaring the tender to be unconstitutional due to the impugned clause, the High Court quashed it entirely and directed the Balasore Municipality to issue a fresh tender that complies with the principles of proportionality and constitutional fairness.

“We thus quash and set aside the said tender because of the stringent terms and conditions which violate the constitutional rights. It is open to the Balasore Municipality to float a fresh tender… and such exercise shall be undertaken within Fifteen (15) days from the date of this judgment.”

As the entire tender stood vitiated due to Clause 15, the Court held that other issues raised in the batch of petitions had become academic, and did not warrant separate adjudication.

In this significant verdict, the Orissa High Court has emphatically reiterated that administrative efficiency cannot come at the cost of constitutional rights. By striking down a clause that turned past mistakes—no matter how trivial or long past—into permanent bars on livelihood, the Court has protected the spirit of Article 19(1)(g) and restored balance to the doctrine of blacklisting.

“Civil death cannot be imposed by administrative fiat. Blacklisting must have limits — both in law and in time.”

Date of Decision: 28 January 2026