Administrative Law

03.07.19
Features
 Administrative law is a heuristic science- which translates to an organized body of
discipline.
 Heuristic - It is not fixed as it is based on experimental research, thus highly changing.
Also, it is mostly unwritten.
 It is contextual, highly complex and not uniform - application of administrative law
varies from context to context.
 It is understood that sometimes, uniformity of law without context is ideal but
sometimes this uniformity of law falters before the actuality of life. This is the gap
administrative law tries to fill in.
 Fairness and justiceare the theme and basic purpose of administrative law, along with
relativity.
 Administrative law is a branch of public law.
- Private law regulates the relationship between individuals with the State e.g. Contract law,
SOGA etc.e.g. Consti law, administrative law, criminal law, tax law.
 Administrative law is anti-authoritarian. The power granted to the administrators suffer
with certain limitations, primarily being the arrogance of power by the officers. It is
believed that the power granted to the administrator shall not suffer from any misuse, as
it is one of the fundamental principles of Administrative Law.
 Democracy is recognised as a majoritarian system as the majority rules and takes primary
decisions in the governance of the country while constitutional democracy is anti –
majoritarian – They are majoritarian only in the sense that they confer to the rules and
norms of Constitution. Majority view confers to the rules and norms of the Constitution.
If not, then it won’t be upheld.
 Countries with no Constitution render any law made by the Parliament to be
unconstitutional.
 System is based on checks and balances- administrative law makes sure the system does
not work in an authoritarian manner- for law to be valid, it has to be reasonable, valid
and just- Administrative law makes the administrative actions reasonable, valid and just.
 Important case- Maneka Gandhi (AKA Gopalan v. State of Madras)- Law demands that
law also be fair- administrative law enforces fairness as well.
 Deals with the malignancy of administrative power and interference of people with the
administration – India suffers from various malignancy like misuse of power, corruption,
misuse of discretionary power, arrogance of power, political interference. Administrative
Law deals with these issues and tries to work in the best interests of the people. A society
cannot function without good administration. It will die under its own weight. A good
system is necessary for proper functioning.
 Administrative law enforces rule of law in the governance to make it good and
responsible- Rule of Law can be procedural or substantive but symbolises equality,
fairness, reasonableness and justice.
 Administrative Law is important in welfare states.

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  Administrative Law could also be understood as a chemotherapy for a cancerous
administrative process. Thus, it is a living subject and hence grows daily.
 Judge made law- not a law in a lawyer sense of the term- law in realist sense of the term.
 A new global administrative space has been created in the 21st century- a new discipline
called global administrative law- what you are trying to do at national level should be
done at international level as well, as far as administration is concerned- a lot of research
has been done in this area. (NOT A FEATURE)
 Objectives - 1. to keep administration within limits of law 2. To compel administration
toexercise that power- 3. To protect and develop the fundamental rights of individual –
4. To provide remedies if the administrative authorities exercise power in an
unreasonable manner.
04/07/2019
Administrative law covers both lex and legem. SC elaborated on this in Maneka Gandhi’s case.
[After emergency, Shah Commission was appointed to study the excesses of emergency. There
was an apprehension that she may leave the country. So, her passport was impounded without
any notice and hearing under the Passport Act. Challenged before SC. Govt argued there was no
violation of Art. 21. They argued they had followed procedure, and passport can be impounded
without notice and emergency. But it was argued that there must be fairness, justness and
reasonableness in the process.]
Govt said if notice was given, she would have vanished. Court said after impounding passport,
notice and reasoning should have been given to her. Post decisional fairness should’ve been
given.
Administrative law studies the law passed by the parliament and the natural law based on
reasonableness and fairness.
5 questions addressed by administrative law
 What sort of powers do administrative authorities exercise? – Read the specific law under
which the authority was created.
 What are the limits of those powers?
 What procedure do the administrative authorities follow in the exercise of these powers?
- Sometimes the procedure is given in the act, otherwise administrative authorities have
power to develop their own procedure. Otherwise, administrative authorities are to
follow the principles of natural justice.
 Accountability of the administration (mechanisms to ensure accountability)
 What are the ways to keep the administration within limits?
 What remedies are available against abuse of power by the administration?
Basic bricks on which the structure of administrative law is based –scope of
administrative law
 To check the abuse of power by the administration:
To keep the administration on rails – to keep them within their legal and constitutional
limits.
 To ensure impartial determination of disputes by the administrative process
2 systems of justice in India  judicial and administrative justice. As the administrative
grew, the power multiplied and people came into conflict with their power. If all this

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 litigation is passed over to traditional courts, they would collapse. This is why
administrative justice was devised. i.e., administrative disputes must be first decided by
administrative authorities. Decision making power is given to administrative officers,
boards, commissions etc. Bulk of administrative justice is carried out by tribunals.
Tribunal is an adjudicative mechanism which is part of the executive. Administrative law
ensures that administrative justice is reasonable, fair and just. Administrative law sees that
disputes of people are decided by administrative authorities in a fair and reasonable
manner.
 To protect people from unauthorised encroachment of their rights and interests.
- Administrative law plays a pre-emptive role. It ensures that your rights and interest are
not violated by the administrative authorities by SuoMotu actions.
 To make the exercise of public power by the administration accountable to the people
either via incarceration or compensation.
Assumptions in administrative law:
1. No administrative power can be unlimited.
If any unlimited/blanket power is given to any administrative officer, that power is not valid.
Everyone is expected to work within their own limits. Example: In UP, during agricultural
season, labour was not available as all were engaged in beedi making. Govt passed law to give
power to administrative to completely prohibit beedi making during agricultural season, if need
be. This was challenged on the grounds of Art. 19(1)(g). It was held that such power, affecting a
fundamental right, it becomes unlimited and such power isn’t valid.
2. Every power is a public trust.
Every administrative officer is only a trustee of the power given to him. It is not a personal
power. For example, if the law provides that the selection of any professor has been disapproved
by the executive committee, then the professor can go appeal to Chancellor. Chancellor cannot
choose to exercise/not exercise his power. He has no choice but to decide, in such a matter.
3. Every power can be misused – Administrative Law cannot be exercised for extraneous
consideration.
4. Every violation of right has a remedy. Every power can be controlled with the help of
the principles of Administrative Law.
The purpose of administrative law is:
1. To enforce rule of law.
Rule by law – lex; Rule of law – legem – fairness, reasonableness, justice.
2. To enforce the norms of good governance
3. To protect people from the power of administration by making administrative
accountable.
4. To bring transparency, accountability, fairness, effectivity.
2 systems of administrative law:
1. Continental system (European system): Originated in France and is a European concept.
It was thought that the judiciary is trying to put a block in the implementation of
government policies. Two systems of law and two systems of courts operating on the
same territory and governing the same thing. These are:
a. Civil Law
b. Administrative Law

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 If you have a dispute with the govt or govt officers, it will goto the administrative system
comprising of administrative law courts etc. Here, the law developed by the highest
administrative court on a case to case basis. This system is an administrative law system.
This system has done more justice than the common law system. This comprised of
bureaucrats and precedents decided the law in these courts.
2. Common law system: Every case to the Supreme Court on appeal. No separate systems.
The idea behind the factor of transparency was questioned with respect to decision
making by the bureaucrats.
Law symbolises restraint and is considered as tyranny. Law without liberty is tyranny and liberty
without law becomes a license. The remedy lies in the combination between law and liberty. Two
approaches in this respect:
1. Red light approach/Proscriptive approach/circumscriptive approach: Visible in
the writings of English writers. After industrial revolution in England, administrative
process started rising. Lots of government officers and agencies came into existence –
started interfering in the lives and liberties of people. The Englishmen who always valued
their liberty, resisted this phenomenon of regulation. According to them, if the growth of
administrative process is needed, it must be highly limited as there is a great chance of
the power being misused. This power was put under strict control mechanism, which
was essentially an outcome of analytical positivist school of jurisprudence. This approach
emphasises more on the concept of liberty. Lord Hewitt, 1949 – New Despotism; Prof
Allen – Bureaucracy Triumphant (These authors wrote on the Red-Light Approach).
Emphasises power.
2. Green Light Approach/Facilitative Approach/Prescriptive Approach: First
approach is the by-product of analytical-positivist theory while the current one is the
product of realist-sociological and functionalist school of law. This developed in USA.
This also emphasises on the legitimacy of administrative power.Further, emphasis was
laid that because the growth of administrative process is necessary for the growth of the
society (economic, social, political) lots of govt plans and policies are required to make a
society an equal society or a rule of law society. This approach advocated giving
administrative authorities maximum power; as much as necessary. However, control the
misuse of power.
- Facilitate the exercise of Power
a. This emphasises control mechanisms - Control the misuse of power. But this did
not emphasise on judicial control. They emphasized on government
responsibility. In Democracy, the government is responsible. Hence, they
exercise control over administrative power.
b. Power should be decentralised; consultation before action i.e., if the
administrative wants to make rules/regulations etc. This brings in efficacy and
efficiency.
c. Emphasis on right to information to bring transparency.
d. Emphasis on the role of civil society. It elaborated on people’s participation in
government process.
e. Control is exercised by people’s participation in administration because if the
administrative action is to become relevant for the needs of people, people’s
participation is necessary.

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India’s approach from the beginning was the Green Light Approach, as people were
apprehensive that they’d have to forego their liberty. Now it has become an amber light
approach.
3. Amber light approach: Combination of two earlier approaches. Known for
combination of brakes (red light) and accelerator (green light) running side by side.
Administrative power signified state power. The growth of administrative process
signifies loss of liberty of people. The Law represents control and discipline, thereby loss
of liberty. Hence, harmonious relation between liberty and law shall be there. If there is a
loss of liberty, danger of tyranny. If more liberty, liberty will become license of anarchy.
Therefore, combination of law and liberty, thus both must be equally emphasised. Thus,
there should be a growth of administrative process along with the protection of liberty.
Nature of Administrative Law:
- Administrative law is not a part of philosophy of law (which deals with the cosmology of
law. From there certain principles are devised as to how the society can be organised or
reorganised. These fundamental principles so devised are then considered universal.
They cover all space and time). It is a part of sociology of law (is the practical experience
of law. Deals with how the law can solve the problems of the people on a daily basis).
Therefore,administrative law is a product of sociologist and realist jurisprudence which
developed in US. This approach brings ‘law’ down from a pedestal, makes it accessible to
more people. It is an exercise in practicality.
- It is not logic, but an experience.
- It acts as a break and an escalator. If the administrative process has been created for a
purpose, the administrative law will compel to exercise power so that the object of
administrative power can be achieved but if misused, can act as a break.
- Tries to compensate the loss of liberty by infusing justice in administrative process. It
tries to maintain balance between power and liberty inclusive of the rights of the people
as it provides a remedy.
- Anti-Authoritarian and Anti-majoritarian: Administrative process must work according
to law. It becomes equally important also to work reasonably, fairly and justly. Exercise
of power must be reasonable, fair and just. It enforces accountability and protects the
rights and the interests of the people.
- It is the most insecure discipline subject to the extreme change of judicial behaviour
because it is largely a judge made law.
- Administrative Law is highly contextual, that in administrative law, relativity and
contextuality are the central points.
- Administrative Law is the dharma of the administration. It elucidates upon right conduct,
righteous behaviour and therefore, administrative law enforces reasonable conduct on
the part of the administration in order to achieve the dream of inclusive and equitable
society.
Reasons for the growth of administrative process:
It has become so prevalent.
1. This is the by-product of an intensive form of government. This growth shows a
functional approach to government.In the Victorian Era of Laissez Faire, the
government was constituted for:
i. Protection of people from external aggression

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 ii. Maintain law and order
It was understood that being a rational entity, he/she can rake rational decisions which
are good for him/her. People enjoyed their well-earned liberty and freedom. In West,
Industrial Revolution had started. Industries were being established; people were being
rushed to the centres of employment. The problem of housing, sanitation, crime, etc.
increased due to haphazard organization. Thus, From the era of laissez faire, we came to
the era of paternalism i.e., state must provide dos and don’ts. However, this wasn’t able
to solve problems. This led to the era of maternalism i.e., not only dos and don’ts, the
state must come forward and take care of the problems of the society.In paternalism,
state did nothing except laying down rules of wages. But, later an intensive form of
government was created. This form of government started taking care of people from
the prenatal stage to the death of the person. This functional expectation of the state led
to the growth of the administrative process. This is referred to as the functional
approach of the government. Government became the enabler of education, health, etc.
This is referred to as the intensive form of government. Only after India attained
independence, with the 42nd amendment, did the intensive government come into
existence for the upliftment of people. This led to a phenomenal growth of
administrative process which developed the administrative law.
2. Transnational dimension of administrative process, due to new economic liberalisation
policy and globalisation. The agencies and the free flow of goods etc were affecting the
lives of people and we needed laws to regulate them. With the current policy of
liberalisation, when the government withdraws from certain sectors such as business
trade, then will the growth of the administrative law recede? No, because another
important function will be added which is regulation. This power is so much, which has
again led to the growth of the administrative law. The policy of economic liberation
which was adopted in 1990, created a transnational administrative space. So many
institutions like WTO came into existence.
3. Corporatisation of business: Big businesses have coming in, which have international
dimensions. Even one individual can be a legal person. Concept of legal person is
growing. The big corporations work on Efficiency, Effectivity and Economy. There was
a need to add two E’s more. Ethics and Equity. In the absence of the last two E’s,
businesses will not be able to benefit society. These last two E’s can only be enforced
through a strong system of administrative law.
4. People demand that the government should not only define their rights but must also
solve their problems; change the attitude of the people. Earlier people only demanded
their rights to be recognised. They’re not satisfied with that and demanded that their
problems be solved. In the southern states of America, there was rampant slavery. There
was labour by purchasing black people from Africa.
o India had the problem of virtual slavery – land belonged to landlord and
everybody was a worker. Casteism – new form of slavery. Huge programmes for
the disadvantaged class were organised. This led to the growth of enormous
administrative process.
5. It is now recognized that all social, economic, political problems are solvable and
governments should solve them. Previously it was thought that there were certain things
of which the state cannot do anything. Eg, issues between a workman and an employer

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 were thought to be private matters. Family issues also weren’t thought to be a domain
for interference by the state. Nowadays, these have become the problem of the society.
This has led to growth of administrative process.
6. There is a need to control the forces which science and technology has unleashed. These
are also creating several problems for the society like privacy issues, health issues, rapid
transportation problems, rapid communication (data protection, cyber-crime). There is a
need to control these problems.
7. Inadequacy of the legislature and the courts to meet the legitimate needs of law and
justice in a society. There is an inadequacy on the parliament and legislatures to give us
the quantity and quality of law required for modern administration/governance. Law has
become very technical. This led to growth of delegated legislation i.e.,administrative law.
Ie for eg we are governed by rules of the university and not laws passed by the Rajasthan
legislature. Parliament passes only a skeletal legislation and gives the bodies so created
the power for close regulation of power. We needed tribunals, courts consisting of legal
and expert people to give justice to people where the law is too technical.

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Module 1
Administrative covers both national and international aspects. The Present law is almost about
one and a half century old.
In Common Law Countries, it is not referred to as Administrative Law. This is primarily because
they do not have a written Constitution which made it difficult for them to decide the
boundaries of the Constitution and Administrative Law. They did not recognise Administrative
Law as a separate branch of discipline.
The first book on Administrative Law written in England was in around 1921 by Dr. FJ Port. In
India, before 1957, Administrative Law was unknown in the territory. People started knowing
about Administrative Law primarily owing to the First Seminar organised by the Indian Law
Institute themed as ‘Administrative Law’.
When people realised that the governments have been acting as social governments, it was
understood that Administrative Law needs to be studied as a separate branch of discipline.
Administration is basically something where if you take out Parliament, legislature and Judiciary,
whatever is left is administrative Law. Therefore, there can be no intensive government without
administration.
- FJ Port - ‘Administrative Law is made up of all legal rules, either formally expressed by
statutes or implied in prerogatives, which have as their ultimate object – the fulfilment of
Public Law. It is made by all rules and regulations.’
Purpose of Public Law – regulate the relationship between the individuals and the government.
- Sir Ivor Jennings – ‘Administrative Law relates to administration. It determines the
organisation, powers and duties of Administrative authorities.
- Griffith and Street – ‘Administrative Law deals with three aspects –
 The power the Administration exercises.
 The limits of these powers.
 The ways to regulate administration. – Control mechanism.
- KC Davies – ‘Administrative Law concerns the powers and the procedures of the agencies
including especially the law governing the review of the administrative actions.’
- Michael Moolan – ‘Administrative Law regulates the relations between the machinery of
the government and the individuals. At its core, the is the control of power especially a
review by the judiciary.’
- IP Massey – ‘Administrative Law is a branch of Public law which deals with the structure,
powers and functions of various organs of the administration and prescribes principles and
rules by which an administrative action is breached and thereafter controlled with a view of
reconciling power with liberty.
1. Administrative Law is not law in the sense of a ‘lawyer’ as it lacks a formal
origination i.e., Bare Act. It is a law in the realist sense of the terms. The source of
Administrative Law is not merely legislature, but there exist other sources too.
Sources:
- Statutory Law – Passing of the NLU Jodhpur Act for the administration prevailing in the
University
- The Administrative Authorities
- Judge-made Law – Precedents being the source of Administrative Law
- Higher Law – Principles of Natural Justice

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In administrative Law, certain things are included which is not normally included. For example –
government policies, resolutions, non-implemented instructions. Also, with respect to non-
standing traditions, if the administrative authorities are seen to be practising it for long time,
there can be no change that is brought immediately.
Constitution is the reflector and guarantor of Fundamental rights. For these rights, the source
remains to be the Higher Law. No written law can ever be the source to any law in general.
Administrative Law also emerges from the concept of Higher Law.
How are administrative policies which are not law, covered under the ambit of
Administrative Law?
The court tries to grant remedy in the form of an estoppel, with the help of these administrative
policies. Even if certain policies give you legitimate expectations, and you are deprived of them,
there could be relevant remedies which you could demand for.
2. Administrative Law could also be recognised as a part of law which tries to regulate
relationship between private individuals and state. Fulfilment of administrative law is
a fulfilment of public law.
3. It also tries to deal with the structure, powers and functions of administrative
authority including the limits of those powers and functions.
State of Punjab v Salil Sablok (2013)
Under the Constitution, provision of State Public Service Commission, Chairman shall be
appointed by the Governor on aid and advice of the Cabinet Ministers. The state of Punjab
appointed Chairman who was a politician, involved in Criminal cases and had humble
qualification. This was challenged as a Public Interest Petition in the State.
Court – There has been a violation of implied limitation of reasonableness and fairness.
4. Various Administrative authorities:
- Authority created by Constitution and Law.
- Authority created not by law but under Law.
- Authority which are agencies and instrumentalities of the state – As they are covered under
the ambit of Article 12 of the Constitution of India.
- Private authorities which perform public functions.
5. Administrative Law tries to prescribe principles and rules for the exercise of
administrative power. Administrative Law develops principles and doctrines and
through those, administrative law tries to infuse administrative authorities with rule
of law, fairness and justice.
6. Administrative action shall include the following:
- Administrative rule making function
- Administrative adjudicatory function
- Administrative function
7. How do the decisions of the administrative authorities reach?
- Courts follow the procedure laid down in advance. Administrative authorities do not
follow, any laid down procedures. Hence, there is a variety of decisions which stand
conflicted with each other. Statutory bodies in India, are allowed to develop their own
procedure.
8. How is administrative action controlled?
- It can be controlled by higher administrative authorities, authorities that are created for the
specific purpose and via judicial review.

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11/07/2019
Description of Administrative Law – How the administrative authorities reach this
decision?
Control mechanism of the administrative action is the thesis of the Administrative Law.
1. Constitutional Control – This could be of two types – Legislative Control and Judicial
Control. Under Judicial Control, there are two further types:
- Writ Jurisdiction of the Constitutional courts
- Tribunals.
2. Statutory Control – Where the law lays down certain mechanisms in order to control
administrative action. Example – Lokpal, Lokayukta, Competition Commission,
Pollution Boards, Consumer Boards, Prevention of Corruption Act, RTI, Human Rights
Commission.
To what extent is a statutory mechanism/judicial control effective?
- Structure of the Institution, how has the structure of an Ombudsman structured, the
autonomy granted, etc.
- The Character of the person administering these institutions. If the persons are of honesty
and integrity, then the institution will exercise better control.
- The societal environment in which the institution functions.
3. Non-statutory Control – Control by civil society, People’s participation, interest
representation, unions, various groups of people, mass media. The extent of the control
exercised by them depends on the social, economic and political factors in the society.
Aim of Administrative Law – Reconciliation of Power with Liberty.
Law represents power and law without liberty and control is tyranny or a dictatorship. Liberty
without a law becomes a license, meaning an anarchy. For this, the administrative law comes up
with various methods to reconcile the gap between the power and the liberty.
- Concept of Fundamental Rights
- Doctrine of Separation of Powers
- Doctrine of Rule of Law
An efficient administrative law system is necessary from the collapse under its own weight, for
example – if there exists a country which remains to be economically advanced.
Scope of Administrative Law –Administrative Law deals with six fundamental aspects of
administrative process.
- The sort of power administration exercises – It exercises various powers
i. Rulemaking power
ii. Administrative power
iii. Ministerial power – There doesn’t exist any discretion, it remains to be very
mechanical.
iv. Quasi – Judicial Power
Limits of this process:
i. Constitution
ii. Legislative limits
iii. Higher Law
How do you keep an administrative authority within the limits of their process?
i. Constitutional strategies

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 ii. Non-Constitutional strategies – Ordinary courts – They allow injunctions,
damages, compensation, declaratory action, granting of specific relief. It is not
preferred in India because it is very dilatory.
iii. Statutory strategies – Tribunals, Ombudsman, various commissions, investigative
agencies.
iv. Non-formal strategies – Civil society, NGO, interest representation, mass Media,
Lobbying.
Procedure followed by the administrative authorities while making decisions:
1. Procedure given in the Act itself where the authority has been formed from
2. Ordinary civil court procedure
3. Authorities given power to develop their own procedure
4. Authorities bound to follow the minimum procedure laid down by the principles of
natural justice.
Remedies
- forcing the administrative authority to exercise power according to law
CHECK NOTES
Globalisation dimensions of Administrative Law:
1. New Economic Policy
2. Multilateral treaties
How do you bring responsiveness and justice to international law?
Grounds for challenging the administrative action:
1. Illegality
2. Irrationality – if its arbitrary, unreasonable.
3. Procedural Impropriety – If the proper procedure has not been followed or the principles
are not complied with.
4. Proportionality
Nature of Administrative Law – written already.
Difference between Constitution and Administrative Law.
The Administrative Law existed from more than one and half centuries. In Common Law
countries, the administrative law developed as an individual subject only in 1957.
Keith, a constitutional Law Writer, said that it is logically impossible to differentiate between
administrative law and constitutional law.
In 1935, Hebert wrote a book and said that Administrative Law is nothing but a constitutional
jargon. This is primarily because both the disciplines are related to the executive or the
government. “To differentiate administrative law from constitutional law, the difficulty is that
both interlock closely and overlap considerably therefore, they are mutually exclusive and not
selectively exclusive.”
Similarities:
- Both have common concerns as both aim at creating good governments.
- Both aim at infusing reasonableness and fairness.
- Both have an identical mandate – Serve the people.
- Both do not favour abuse of power.
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 1. Prof. Hood Philips - Constitution is government at rest while the administrative law is
government in motion. By the term government at rest, what he tries to convey is the
way parties are elected, elections are conducted, rights of the people are affected, etc.
2. Jennings – Constitution deals with fundamentals of governance, power, structure, its
formation, etc. It also deals with the functionality aspect of the Executive in
Administrative Law.
3. Constitution Law deals with who governs while Administrative Law deals with how the
governance is done and their impact on the rights of the people. In Certain countries,
people are concerned with how the governance occurs and not who governs,
4. Constitution remains to be the source of the policy and programme, whereas
administrative law is policy delivery mechanism.
5. Constitution is anti-majoritarian while Administrative Law remains to be anti-
authoritarian. By being anti-majoritarian, the idea remains that there is no majority rule.
Something shall be held to be right only if it is upheld by the Constitution.
6. Constitution is a value laded document while administrative law is a value neutral
strategy. The Constitution has political theory, structure of the state, values of the
governance, rights of the people, duties of people. While the administrative law has
impartial determination of disputes by the administration. Government must function on
the principles of reasonableness and fairness.
7. Constitution must be a product of various factors. Could be because of a revolution
which threw away Monarchy and gave birth to Constitution. It maybe a product of an
assignment. It could also be a product of gradualism. It is wrong to say that Britain has
no constitution. The only fallacy remains is that it is not codified. Their Constitution is a
part of gradualism.
8. Constitution maybe the product of an agreement. For example – the US Constitution.
9. Constitution maybe a product of consensus. For Example – Indian Constitution.
While, Administrative Law is a product of evolution. Administrative courts, judicial courts from
time to time have given decisions, laid down principles, rules and the body of regulation evolved.
10. Constitution maybe a grundnorm while Administrative Law is merely a norm laid down
by the law or by a higher norm.
11. Constitution is a source of policy and administrative law is a policy delivery mechanism.
12. Constitution focuses on the governance of the country or the state while Administrative
Law might focus on a group, clan or a limited space.
13. Constitution is descriptive while Administrative Law is prescriptive. Constitution Law
looks after the governance of the whole state and lays down certain rules and principles.
Administrative Law lays down rules followed by the administration.
14. Constitution is inspirational as it promotes an egalitarian and a just society, while the
administrative law is aspirational as it elaborates on what people aspire for in governance.
15. Constitution deals with constitutionality of any action while Administrative Law deals
with legality of action.
Benja Field and Whitmore – Two Australian professors said that the difference between
constitutional law and administrative law is artificial. Administrative Law and Constitutional Law
always overlap.
What are the existing commonalities?

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 - Constitutional provisions relating to the control of administrative action. Art. 32, 226, 136,
227 and 300. Liability of the government for Tort by servant – Art. 311, 144.
- Part Three of the Constitution imposes limitation of the power of the government and
administration; thus, the Fundamental rights must be studied simultaneously. When the
administrative action is taken, question is whether it is reasonable or not.
- Constitutional limit on delegation of powers.
- Administrative agencies are provided for in the Constitution. For example – Finance
Commissions and Inter-state disputes body.
16. Source of Constitution Law and Administrative Law do not have a clear cut distinction
but administrative law has developed a separate discipline with time.
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Droit Administratif
- Droit means law in French.This kind of administrative Law which is seen in France is
different from the administrative law in common law countries. The French administrative
Law is the product of separation of powers which means that the judiciary should not
interfere in the administration. Judiciary is not supreme in administrative matters and
because of these fundamental reasons, there was a development of a different system. The
main characteristic of this system is that the administrative courts decide administrative
matters. Civil courts decide disputes between individuals. For this reason, there is no
unified judiciary in France and this system is followed in many European countries, like
Belgium, Germany.
- In India, there is a unified judiciary. There are so many courts in India, various authorities
exercising adjudicatory powers, but they are not a separate system because at the top all of
them merge and there exist the Constitutional court – the Supreme Courts and the High
Courts. In France, the system remains to be different. The administrative courts are
different and so are the civil courts. They are parallel to the constitutional courts who
govern the same people, territory and land.
How did this system develop in France?
- In France, when Napolean overthrew Louis XVII and became the Chief Counsel. Before
the revolution, the King was thrown out. The King had all the powers and was
administering the country with the help of a body which was called us ‘Council Du Roy’.
This council of the King was the advisory body to the King and also acted as the King’s
Court and decided all important disputes between nobles. They simply would just advise
the King but not take active participation in decision making. There was a different body of
ordinary courts who decided small disputes between private individuals and these ordinary
courts were in a bad shape as the King did not really care for them and they were supposed
to draw salary out of the fine they imposed on the people who came to them for
adjudication. These ordinary courts, helpless on their situation, started getting involved in
administrative system by claiming jurisdiction. This created a lot of problems for the
administration. It was clogged by the ordinary courts as they started interfering.
- Similarly, in India, priority of the government was to remove poverty and a scheme for the
abolition of Zamindari system. This became a subject of litigation in the courts. The Bihar
HC declared it to be unconstitutional and granted injunctions which delayed the
implementation of the scheme for a long time.

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 - Revolution of 1789 – Napolean ended up becoming the Council General to improve the
socio-economic conditions of the people. He was disappointed with the working of the
ordinary courts and introduced a concept called Droit Administratif. Here, he abolished all
the King’s courts – Council du Roy, and established a new administrative court. This was
done to decide the administrative disputes speedily and to get relief to the people against
administrative flaws. He created Council d’ Etat consisting of bureaucrats. Half of it was
for looking after the administration including the administrative officers and the other half
to decide administrative disputes.
It was established in 1799. This body did not let people approach the courts directly. It shall be
judged initially by the Minister who would further in turn send the matter to the Court if he
deemed fit. This Council was again only advisory.
Dicey objected to this and questioned the veracity of the administrative court which is not a
court and tries to grant justice to people against administrative flaws. He argued that this violated
the principle of rule of law, hence no place in common
Further, the Blanco Decree was passed in 1882, when this was made a Court which could hear
cases, receive evidence and decide, but again cases could not be directly filed.
Another step was taken in 1889, when the Council d’Etat was made a full Court and they had an
original appellate board, where directly cases could be filed.
The Lower Courts did not apply the Law which was passed by the Parliament but the Law which
was developed by the Council d’Etat case to case. Thus, this was referred to as administrative
law.
Dicey questioned the way to get justice for people in France. To which, it was recognised
that any conflict between a case being administrative or normal case, the Tribunal des Conflits
decides.
Jurisdiction of the Administrative Court –
1. To decide private disputes against administration
2. To decide all service matters of the government servants
3. To decide all conflicts between government departments
4. Consultative body for drafting rules and regulations for the administration.
How this administrative body could give justice to the people?
1. Judges are with special knowledge.
2. Flexibility in law and procedures.
3. Could work with speed and efficiency and could provide effective remedies.
In 1885, AV Dicey wrote a thesis on Rule of Law and said that this concept remains to be
foreign to Common Law as it violates Rule of Law:
- Judges are not independent. There is departmental bias as they are a part of the
administration.
- There is no equality because if private individual disputes other courts hear, there shall be a
lack of uniformity.
- This also grants special privilege to government servants by making them accountable to
different system.
Whether Dicey was right?
The system is important but there are three more things which are important:
- Structure of the system
- Character of the people who manage that system

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 - Societal environment in which the system works if people speak the truth before the court.
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The French developed some of the very fine principles of Admin Law.
1. The doctrine of Legitimate Expectations
2. Principle of State no Fault Liability
3. Doctrine of Proportionality
4. Doctrine of Reasonableness
5. Control of Administrative Discretion
But, the administrative courts in France developed a different approach.
Requirement for Legitimate Expectations – In the Common Law countries, the government
is held responsible only for at which law provides and the government can be held responsible
only if there is a violation of the rights of the people. The expectation must be very legitimate
and should not be verbal. The government must also explain as to why it cannot fulfil the
legitimate expectations of a person who demands the same. This is all referred to as Doctrine of
Constitutional Morality.
They also developed the principle of Liability of the Government in Tort. To what extent
shall the government be held responsible for the tort committed by its officers and its servants.
In England, there is a Crown Proceeding Act and in America there is a Federal Torts Claims Act,
where they elaborate on the constitution of a tortious activity. Article 300 of the Constitution
deals with a law similar to this except it is not rigid as such. The law made by the administrative
courts in France remains to be the best law that has been made on this aspect which deals with
the no fault liability of the government and risk theory. They also developed the concept of
contributory tort. There is no need for a proof of negligence to claim for tortious act against a
person, and thus compensation is granted. In India, there is a need to prove negligence. Justice
requires that the state should be responsible to the workman for the risk state runs by reason of
its part in public service. If the state provides public service, it must be further responsible in
undertaking that service.
Then, came the principle of Principle of Proportionality. This is where a decision with respect
to reasonable restrictions are made. There does not remain any fixed formula under Common
Law, while Civil law developed a formula. In England, the action can be challenged on these
grounds:
- Legality
- Irrationality
- Procedural Impropriety
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Constitutional Principles
Allied Principles – Principles of legality. The Government is bound by the law in which a private
individual is bound and therefore, every administrative officer before taking any action must
show that there is legality for the action taken. No action could be taken without the authority of
the law. The King had the power to suspend the law and execute the law on his own discretion
in France. But, with the Bill of Rights it was decided that the Executive cannot suspend the laws
for no reason whatsoever.
1. The concept of due process was brought in which meant that if the due process affected
a person adversely, he must be allowed to participate in that decision making.

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 2. Access to Justice – Every person without discrimination on equal basis must have access
to the justice which is cheap and uncumbersome.
3. Accountability – Responsible government. The government must be responsible on ----
basis and daily basis.
4. Open Government – All the governments must be in the open. All governmental actions
must be on the table and not under the table. This led to the Freedom of Information
Act.
Rule of Law
It is a conceptual abstraction to control the misuse of power by administrative authorities and to
protect the life and liberty of the people and thus, to create a rule of law society. This is to check
the abuse of power by the government.
What is a rule of law society? A rule of law society has four characteristics:
i. Fairness
ii. Justice
iii. Equality
iv. Accountability
Rules and regulations not only bind the people, but also the state. Such rules and regulations
must enforce true independent course which regulate the conduct of the administration and
protect the liberty of the people.
Where, the government is responsible and accountable to the individual for this action. Rule of
law is a conceptual abstraction and therefore, very difficult to define and not easy to quantify.
How was this concept visualised?
Rule of Law society is not a destination but a process. Different Doctrines on HR?
- Doctrine to check arbitrary powers. There are rights, which are inalienable, hence, no
government has the right to violate. Rule of Law was developed to protect Human Rights
by protecting misuse by the State. Hence, Rule of Law is constitutionally imperative ipso
facto a part of every democratic constitution.
- It has become a legal concept. It is a principle of the court and administrative morality.
This also stands in contradiction to arbitration and reasonableness. Rule of Law also stands
for government limited by law, based on certain principles.
- It derived from the French expression – Principae de Legalite – Law based on principles of
law. It is an inherent attribute of democracies. Only Rule of Law societies are democratic
societies. It derived from natural law.
- The origin of this concept could be traced back to Plato and Aristotle. But it was Dicey
who gave it a concrete context and made it a legally enforceable concept.
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What is Constitutionalism – It is an eternal value of the Constitution. This is used in two senses:
- Eternal government
- Deepest layers of the Constitution
Central Normative contents of Rule of Law
There might be a difference in the opinion on the contents, even though there might not be any
disagreements about the value which the rule of law represents. Dicey was an individualist,
relevant to understand the normative values which he promotes.
Four major contents:

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- Pre-eminence or supremacy of law/Pre-eminence of supremacy of legality –
Supremacy of law. He meant that the law should be supreme in a society.
1. All government or administrative power must flow from law. He was against
administrative law which gave powers to administrative authorities. He was against
prerogative powers to the King.
2. Every person must be subjected to the same law. The idea that one group of people
is governed by a particular law and the other group by other law, it cannot be said
that there is effective delivery of justice, as this stands in clear violation of the rule of
law.
3. Every law, by which people are governed, must come ordinary legislative organs of
the State.He meant that law should not come from any other source.
4. Absence of wide discretionary powers – Where administrative officers exercise
discretionary power, it is a violation of the rule of law as discretion means an end of
law. Where Law ends, discretion begins. Dicey says that discretion is such which
destroys human freedom as discretion is likely to be misused as it is personal and
not based on any law.
5. The law which is to be supreme must be based on certain characteristics of law.
There are certain principles for Law:
 Generality: Law must be general and should not be for specific people. If the
Law is general, there is less disobedience.
 Certainty: Law must not be vague; it must be certain. Law should be so clear that
a person could understand what conduct is legal and what is not.
 Law must be transparent: Law must be made after open deliberations with the
people or their elected representatives. Law must not be made in secrecy.
 Law must be known to everyone and thus should be published. A law which is
not published cannot be applied. This is primarily because, if a law is not made
available to people, they cannot be expected to follow it. If the law under which
an administrative authority is functioning, the law must be laid down in a
recognisable manner. Sometimes, law was published via beating of drum in
villages.
 Prospectivity: Law must be made for future conduct. No one should suffer in
person and property except for the violation of the law laid down by the
ordinary legislative authorities in an ordinary legislative manner.
 The law must also be based on certain universal fundamental values.The values
of freedom, accountability, transparency, fairness, etc., then it shall be held as a
good law.
- Pre-eminence of Equality – Everyone must be on the same footing and granted the same
accountability to the same law to the ordinary processes. Dicey was against any special
privileges granted to a person. This was in contrary to the system that existed in France,
though.
- Pre-eminence of equal accountability – All must be accountable for the exercise of
power. No matter how high a person’s position is, the Law shall always be above the
person. Everyone must be held accountable by the same process.

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 - Pre-eminence of common law rights - If fundamental rights of the people must not flow
from any document or paper. They must flow from the customs and traditions recognised
by people. He was against any law on human rights and opposed writing human rights into
the constitution. He believed that if the paper was the source, one day someone could
come and throw that paper away. He is in favour of judge-made laws. He was against
written constitutions containing fundamental rights. He always said that a book or a paper
can only be a consequence of rights and not the source of rights. These fundamental rights
should be the eternal values of constitutionalism.
Saturday (Suhani’s notes)
How UN defines rule of law -
Rule of law is a principle of governance in which state and all entities, public (all agencies and
instrumentalities) and private (private authorities exercising public functions), are accountable to
law publicly promulgated, equally enforced and independently adjudicative and which is
consistent with the international human rights norms and standards. International Convention
on HR, 1948 lays down HR norms and standards. Law must be known to the public, equally
enforced by the executive and independently adjudicated by impartial courts.
Davis (America) - Rule of law has 7 meanings.
1. Law and Order - Only that society is called RoL which has established law and order.
2. Governance by fixed rules - Rules and regulations must be publicly promulgated, equally
enforced and must be based on HR norms.
3. Elimination of wide discretionary powers.
4. Due process - Nobody should be deprived of his life and liberty. American constitution
includes property also but we don’t include that without fair procedure of law.
5. Observance of NJ in admin.
6. Preference for judicial justice and not executive justice as seen in France.
7. Judicial review of all state actions. (legislative, executive, admin, judicial actions)
Harry Jones - Rule of Law and Welfare State, 1958. (Article)
1. Absence of arbitrary powers
2. Equality before law
3. Effective judicial remedies.
Every writer tries to explain RoL from his ow POV but the basic is that governmental power
must be put under control. People must be protected against misuse of power. There is no
dispute on value, dispute is on contents.

In developing countries, RoL is not just a negative concept, it doesn’t only provide don’ts but
also do’s. In 1959, International Commission of Jurists meeting in Delhi - Delhi Declaration.
RoL is like the modern form of law of nature. RoL is not merely a negative concept, it is a
positive concept, it obliges governments to create conditions in society (legislative, social,
economic, political) where every individual irrespective everything, has equal opportunity of
developing his personality to the fullest. Not only the rights of the people be protected,
government power not be misused but also such conditions as stated above should be created.
Therefore, no society can claim that it has become a RoL society. RoL is ideal but states must
keep moving in that direction.

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Critique of Dicey’s thesis
Dicey was observing French system, trying to compare it with British system and in the process
developed RoL.
1. He couldn’t visualise a welfare, intensive and social justice state. He was an individualist,
brought ups in Victorian Era of Laissez Faire. He never saw any policemen. He couldn’t
reconcile in a situation where admin process will grow so much that it affects life of each
and every individual and therefore Dicey was worried about fairness and FR of people
being violated. But growth of admin process doesn’t necessarily violate FRs of people. It
could be of positive use also as FRs have no meaning if it doesn’t help poor and
downtrodden.
2. Dicey disliked discretion with government officers to interfere with lives of people
because admin discretion means area without law. But he couldn’t differentiate between
discretion given under law and inherent discretion of the prerogative powers of the king.
Wide discretion exercised by executive as its inherent power violates RoL but not admin
discretion under law as it is limited and government servants are held accountable for
exercise of such discretion. He was unable to appreciate that no system of welfare
government can function without delegation of some discretion to admin authority.
Example - Admin discretion is an unavoidable evil. Legislature cant function without
some discretion. Even when the Constitution says to pass UCC, it hasn’t. The same goes
for admin as they have to look at contextuality which differs from person to person.
Same goes for judiciary - what cost and compensation, what penalty? What Dicey was
condemning was inherent discretion.
3. Dicey was obsessed with the possibility of misuse of power by admin officers. He
believed in the Red Light theory - give as little power to admin officers as possible
because it is likely to be misused. In France, admin officer exercising wide powers.
Whenever power is there, its misuse is inherent and cant be avoided. But power can be
missed by any body of the government. What thus is required is not the elimination of
power but safeguarding the power. There must be a mechanism to control the power.
Power can be controlled by political and legal standards. It could be done by vigilant
public opinion and a sense of justice which generally the people have.
4. Dicey believed in the monopoly theory of power, i.e., only legislature should make laws
for people, only judiciary must decide cases as judicial power is the monopoly of
judiciary. Execution of laws and actions is the monopoly of executive. But many believe
it’s not a power, it’s a service. Therefore the service can be outsourced. Delegation of
power can thus be done.
5. Exercising power - legislative, executive, judicial as an inherent power is different from
delegated power. In cases of misuse, delegated power can be taken back and thus can be
controlled. Therefore, Dicey cant differentiate between internet power of king and
delegated power of admin.
6. Everyone should be accountable to the same system, everyone should be accountable to
the same law. Dicey failed to appreciate equality before law doesn’t mean uniformity in
all situations. It only means that like should be treated alike. Differential treatment
should be allowed if there is a reasonable differentia and it ha intelligible purpose.
7. There cant be same law governing anyone, in his own country, 5 kinds of law governing
people. Common law of England, Customary Law, Law passed by Parliament - Statutory

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 Law, equity law passed by equity courts, (Equity courts headed by Lord Chancellor,
initially religious persons heads, later legal personalities heads - based on 12 principles,
whole equity developed which influence d development in law in every countries.
Example - Delay defeats justice, One who comes to court, must come with clean hands)
canon law/church law, , mercantile law (customs and traditions of trades), admiralty law
(governed actions of people on high seas). Dicey failed to understand different law need
not always violate the principles of fairness and justice.
8. Dicey was against judicial powers to executive. He was against administrative
adjudication. He failed to differentiate between internet power of the executive and
delegated power of the administration given under law.
9. Dicey was against discretion, we are also against wade discretion buts one discretion
should be present.
Critique of Dicey’s Rule of Law:
1. He thought that the French system was only administrative law, but that does not
remain to be true.
2. He was not able to appreciate which is inherent or which is delegated - He was also
unable to appreciate what was inherent and delegated. The powers have been
delegated to the Executive wherein the King has the inherent power to make laws.
Delegated power can be rarely misused but if the powers are inherent, they cannot
be inherent.
3. He could appreciate inherent or delegated powers to executive to make judicial
decisions.
Now in England, there would exist special courts. For example – Common Law Courts, Equity
Courts, Admiralty Courts, Commercial Courts, Ecclesiastical Courts. Also, special tribunals were
created. A Poor Law Act was created in the year 1834, wherein a Poor Law Board had been
created and they had the power to make rules and regulations and decide the disputes.
Dicey was against discretion, while the administrative professors feel there is an inherent
discretion always.
Parliament had passed the Constable Protection Act in 1750, under which special immunity had
been given to Police officers and then the Police had been given under various laws wide
discretionary powers of search and seizure. Because of this, Dicey realised his mistake in 1950
and accepted his mistake by agreeing to the existence of growth of administrative law. But,
Dicey’s thesis as an ideal is still valid because if there is no rule of law, there cannot be a check
on the misuse of power. Hence, in the rise of administrative process, there is certainly some
contradiction between rule of law and the growth of administrative process.
Can there be a reconciliation for rule of law with the growth of administrative process and law?
1. Absence of wide discretion – If you grant wide discretion to police officers and confine
it only to discretion regulated by law, then, the rule of law can be reconciled with the
administrative process. So, Dicey was against inherent discretion and wide discretion of
the government. But, in administrative process we talk only of delegated discretion and
limited discretion. It can be taken back at any time and limited by law.
2. Absence of law-making power: Dicey believed that the government should not have the
power to make Laws, everything should flow from the Legislature. In administrative law,
essential law-making power cannot be delegated. However, after essential law-making
power has been exercised by the legislature, secondary law power can be delegated.

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 There is a support only for the secondary law-making power of the government which is
delegated so that there is no misuse of the power. Essential Law-making power – a.
Laying down the policy of the law. b. Enacting the policy into a binding rule of conduct.
3. Absence of administrative adjudicatory power of the government – Dicey was against
inherent adjudicatory power of the government as he felt this would make them
dictators. But we say that some administrative power maybe given to the authorities
considering the principles of fairness and justice in mind.
4. No special privileges to the government – This means there should be the prevalence of
equality in front of the government. But we believe that some privileges maybe necessary
in the interest of fairness and public interest and thus should be given.
Rule of Law is possible only in a democratic society. A Rule of Law Society is a democratic
society. Rule of Law is essential for economic development of society.World Bank conducted a
research on the relationship between Rule of Law and economic development of society. They
developed an index and on the basis of that index, they made research worldwide and included
99 countries in 2014.
Rule of Law as a condition of economic development must include:
1. Open Government
2. Independent Judiciary
3. Protection of the FRs of the people
4. Regulatory enforcement
5. Limited Government
6. System and Efficiency of the Courts
7. Absence of Corruption, which also includes abuse of power and police discipline.
8. The Law and order situation of a country.
What is Rule of Law in individual sector? What is Rule of Law in International Law and
Freedom?
- State should not pan discriminatory norms
- State should not put unreasonable restrictions on freedom of people.
- State shall provide quick remedies in case of a violation of rights of people.
Criminal Justice System and Rule of Law
- Due criminal process, in case of arrest, detention, investigation and punishment.
- No arrest without the authority of law.
- Presumption of innocence
- Legal Aid
- Public Trial
- Fair Hearing
- Compensation to victim of crime
Rule of Law and Judicial Process
- Independent Judiciary
- Independent Legal Process
- Equal Access
- Speedy and Quality Justice
- Standards of Professional Ethics.

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Doctrine of Separation of Powers/Doctrine of Dispersal of Governmental
Powers/Doctrine of Splitting of Powers
- How to limit the powers of the government and thereby to protect the life, liberty, property
and dignity of the individuals? – This has remained unanswered.
- In order to check the misuse of the powers by the government, philosophers thought of
the concept of Natural law and Natural rights. It was argued that there are certain inherent
rights of the individuals which cannot be violated by any governmental authority.
- The second attempt was the concept of Law of God. God has vested certain rights in the
people which no human beings can take away.
- The third attempt remained to be the concept of Rule of Law, which meant that only law
must govern but not every law, only the ones based on fundamental principles – Justice,
Fairness, Freedom and Reasonableness.
- The Doctrine of Separation of Powers came down later. They are said to be contemporary
doctrines who are intimately connected to the Rule of Law. Rule of Law remains to be the
end while Separation of Powers is the means to achieve.
- Just like Rule of Law, Separation of Powers is not a prescribed doctrine. It is also difficult
to define, impossible to operationalise but inevitable and unavoidable for protecting the life
and liberty of the people.
John Randolf: “You may cover the whole constitution with limitations, express or implied, but
written limits are no limits because only power can limit power.” American Constitution is the
only constitution based on this fundamental of separation of powers. They wanted to limit the
powers when they came to America.
Lord Acton – “Every power tends to corrupt and absolute power tends to corrupt absolutely.”
Madisson – “Accumulation of legislative, executive and judicial powers in the same hand
whether one or few or many, whether hereditary, self-appointed or elected, maybe justly
pronounced as the definition of Tyranny.”
Jefferson – “concentration of Legislative, Executive and Judicial powers in the same hands is the
definition of despotic government. It would be no alleviation that these powers will be exercised
by plurality of hand and not by a single person because 173 despots would be surely be as
oppressive as one.
History:
The genesis of this could be traced back to Aristotle. Bodin In France and John Locke is also
credited with this view. However, Montesquieu, wrote a book in 1748 titled the “Spirit of the
Laws” in which a reference was made to such a separation. It was him who gave definite
contents to this doctrine.
RoL – Dicey
SoP – Montesquieu.
Purpose – To divide the government amongst itself and to create friction amongst various
organs of the state. Therefore, the purpose of the doctrine is to not to create efficiency but to
create friction.
When the Judiciary is seen to have a cosy relationship between the Judiciary and the Legislative,
Executive, only then will it be a cause of worry. If the government wants to put a person in Jail,
they cannot do it unless all the three organs of the government act in accordance. There should
be a Law, Executive must prosecute and Judiciary must decide upon the violation.
Friction is good, but there should not be a crisis.

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Montesquieu – De l'esprit des lois – When the Legislature, Executive and Judiciary are vested in
the same body, then there is no liberty. There is no liberty if Judicial powers may not be
separated and Legislative. When judicial power is joined with legislative power, the life and
liberty will be affected as it would be exposed to arbitrary control. When judicial power ..
Therefore, there would be an end to everything where the same man or body exercise these three
powers, this means the rights and liberties of the people are always at stake. Montesquieu spoke
of dispersion and he knew that no government can function if all these three organs are kept in
water-tight compartments. He speaks of dispersal. Thereafter, this doctrine has been used in four
different ways:
- Exclusivity or structural classical sense
1. All the three organs of the state must be separate.
2. Their functions and powers should be separate.
3. Functionaries must also be separate.
4. One organ of the government should not interfere into the functioning of the other.
On the basis of this structural sense, American Constitution was built up.
i. Functions are all separate – One legislates, other executes, other adjudges.
ii. Functionaries are also completely separate. No interference of one organ into the
other. For example – This doctrine is against judicial review.
In Marbury v Madison, which was decided by Classical Judicial Statesman – John Marshal – He
declared the law of the Parliament to be unconstitutional for the first time.
iii. As per this approach, there should be no overlapping, their functions must be kept in
an air tight container. Their functionaries also must be extremely distinct and
separate.
- Functional Sense
i. This means that all the three organs of the state must be divided so far as an exercise
of power and functions is concerned. Thus, the Legislature must exercise law-making
power, Judiciary must interpret the laws and protect the Constitution and the
Executive must enforce the legislations brought in by the Legislature.
ii. No usurpation or amalgamation by any of the organs.
iii. But again, interaction of functions is definitely possible.
All the sources for these powers are different but the channel for all of them remain the same
which is Administrative process.
iv. Essential power cannot be delegated, only ancillary powers can be delegated – One
organ can exercise the function of the other, but only the ancillary functions. The
rule-making power can be delegated to the Executive but essential law-making power
cannot be delegated, which is laying down the policy of law and enacting that policy
into a binding rule of conduct.
- Checks and Balances
The real meaning of separation of powers is basically the exercise of some control over the
other. The threat of liberty arises not from blended power but from unchecked powers. This is
in this sense that the Doctrine of Dispersal of Powers emerges.
- Creative Co-operative Sense/Mutuality
This is basically the interpretation of theory in the age of Globalisation and Free-market
economy. It elaborates that not only all the three organs of the state should be kept separate, but
all the three organs should cooperate with each other for the protection and the development of

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the rights. The principle of – Not discord but cooperation, no estrangement but engagement.
Cooperation and co-ordination and not confrontation to achieve public good.
What are the two manners in which Dispersal of Powers can be used?
- There could be a usage of separation of powers in a negative manner so as to keep one
organ of the state under control. Essentially, separation of powers demarcates limits. This
could be also looked at from a positive manner – not only enforcing limits but also
compelling actions.
- State of UP v Jeet Ram: Consumer Courts came into being for consumer disputes redressal.
He realised that no chairmans have been appointed in these Consumer Courts. Thus, he
filed a writ petition and went to the court wherein the courts ordered the government for
the appointment of a chairman to the Consumer courts for the speedy delivery of justice.
One of the objections remained that there is a violation of separation of powers. Another
argument was separation of powers must be used in a positive sense – If there is no
exercise of power which has been granted to you for public interest, you can be compelled
for the fulfilment of that duty of yours, in the public interest.
How can the powers be separated?
- One may be vertical separation. For example – the power of the state are separated and
dispersed – Federal power, state power, local government power and Panchayat power.
This is basically from centre to the state.
- Horizontal separation of powers – Separation within the organs. For example – The
Legislative power is separated between two houses – Rajya Sabha and Lok Sabha. Judiciary
is also given wide discretion like division of power in any manner it likes. The separation is
necessary as each power requires a different parameter for the exercise of the power. For
example – The main characteristic of legislative power is Deliberation. Main characteristic
of judicial power is Hearing of the parties, Executive is Coercion and Force wherever
necessary.
- Strict separation of powers is not possible. Thus, all the three governments must cooperate.
Separation of Powers has been given in the American Constitution and not in the Indian
Constitution.
- All the Legislative Powers are vested with the Legislature, judiciary with the Supreme
Courts and the Executive Powers with the President.
Though, even in America, in the functioning of the Constitution and its provisions, this doctrine
is not taken in the structural sense. It is taken in the sense of either checks and balances or in the
sense of creative cooperation. The effect still remains that the power of sources must be
different.
The President addresses the Congress during the sessions and he also possesses veto power,
which is only suspensory power and can be overruled by two thirds of the majority. He also has
a treaty making power with any country of the world. This need not approved by any other
governmental authority either. The President also can issue notifications that have the source of
law.
How is Executive impactful on Judiciary?
- Appointment of judges – which is to be approved by the Senate. Acceptance is the rule and
rejection is an exception. Roosevelt’s threat of Court Packing in 1930 wherein the President
had given special powers for trade regulations. Judges struck them down on the grounds of
Separation of Powers. This was when the plan of Court Packing was effectuated wherein

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 judges of own choices were to be appointed but this did not happen as there was no
majority from either sides – Conservative and Liberals.
How does the Congress interfere with the President?
Congress sanctions the budget and if the President does not sanction it, it will not be approved.
The appointments of all official dignitaries are done by the Senate, the treaties which are entered
into is approved by the Senate.
How does the Congress interfere with the Judiciary?
Congress passes the procedural laws. Congress creates the special courts and thirdly, the Senate
approves the judicial appointment.
How does the Judiciary interfere in the functioning of the Congress?
The Judiciary interprets the law and decides constitutional questions. The Judiciary sometimes
makes laws known as Judicial legislation.
How does the Judiciary interfere with the Executive?
The Judiciary exercises complete review process over the executive and the executive actions.
Most of the powers are shared, than divided.
Position in UK
The Parliament remains to be supreme and exercises supreme judicial power as the House of
Lords consists of nine lords elected from the Parliament. The Parliament also exercises executive
power. But a little change came when UK became the member of the EU, as the Judiciary was
made independent with the establishment of the Supreme Court of UK in 2009. The Parliament
had passed an Act in 1998, under this the Judiciary was also given some power to declare the law
passed by the Parliament and their actions as incompatible.
But, even today the Parliament remains the same. How will there be a reconciliation of the
Parliament and the Judiciary then? If any law of the Parliament violates the treaty obligations, the
Supreme Court shall declare the law to be incompatible with the treaty obligations and not
unconstitutional. Thus, the Parliament is at the liberty to change the law. – UK.
India: The doctrine of separation of powers is not prescribed but incorporated and therefore,
there is a division of powers and not in the strict sense, separation of powers. For example –
President exercises legislative powers, thus the ordinance making power. He addresses the joint
session of the Parliament. Then in the same manner, the President exercises judicial power. For
example – disqualification of the members of the Parliament, deciding the age of the judge.
In the case of JP Mittal, he was supposed to retire as per the High School Certificate but he
denied and contended that he needs to be the judge for 3 years more. The President decided
against the judge, and held that the age on the certificate shall be upheld.
The Legislature regulates the Secretariat and regulates the Judiciary as well. The Judiciary passes
certain legislations which is referred to as the Judicial Legislation. Example – The case of Visaka.
The Judiciary also exercises executive power, wherein it exercises power of the superior courts
over the inferior courts.
To what extent has the doctrine of separation of powers recognised in the Indian
context?
1. Ram Jivayya v State of Punjab – The doctrine of separation of powers has not been
recognised in the Indian territory in its classical sense. One organ of the government
should not usurp other organs of the government. The powers of the government can be
shared and there can be an interaction of the powers.

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 2. AC Golak Nath v State of Punjab – In this case, the court held that there is no
separation of powers but broad division of powers and therefore, there can be a
functional overlapping.
3. Kesavananda Bharati v State of Kerala – The division of separation of powers is the
basic structure of the Constitution and cannot be taken away even with an amendment in
the Constitution. If the powers are all combined together, it is the definition of
dictatorship. Constitution seizes to be a democratic one because of this.
4. Indira Nehru Gandhi v Raj Narain – In this case, the court held that usurpation of
powers of one organ of the government by the other is not allowed. Separation of
powers involve checks and balances;thus, one organ of the government cannot totally
take over the power of the other government.
5. Krishna Kumar v UOI – Court cannot give directions on what law to be passed or to
be included in the budget.
6. Mallikarjun v Andhra Pradesh – The Tribunal had passed an order saying that there
should be a rule of seniority,
7. State of Punjab v Salil Sablok – The problem here was that the Constitution said that
the government shall appoint the Chairman of Public Service Commission. No
procedure or qualification laid down by the Constitution. Can anybody be appointed as
the chairman? What should be the procedure? The case when decided by the Punjab HC,
said that everyone cannot be appointed by the Government, he must be ‘suitable’. There
must be a definite procedure as well which was further drafted by the Court and made it
mandatory for the government to follow. The SC said that not everyone can be suitable
and desirable, thus the government will decide. But the court said that the procedure is a
legislative discussion and should be developed by the government and not by the Courts.
Thus, lastly can the doctrine of separation of powers be brought by amending the
Constitution?
If you take away the doctrine and put all the powers in one organ, the constitution shall be
threatened.
8. IR Coelho – If by amending the Constitution, a statute is put in the 9th schedule, whether
the ------------? The court held that it should not bark judicial review. Certain schedules in
the Ninth Schedule deserve the judicial review.
What are the basic fallacies and the criticism of this doctrine?
- It is said that this doctrine suffers from historical fallacy. It was a time of 1688, right after
the Glorious Revolution wherein there was an agreement between the King and the People
– Common Law Courts shall exercise judicial powers and King shall exercise the Legislative
and Executive powers. This is what Montesquieu saw which is responsible for the
enjoyment of the British, as there existed separation of powers. But this collapsed because
the Parliament exercised all powers.
No country in the world was based on the classical theory of separation.
- Lacks Practicality. Welfare states cannot be governed by the strict implementation of this
doctrine. The administrative process cannot function if the rule making authority is not
given some adjudicatory power.
- This doctrine cannot be operationalised and functions of the state cannot be put in rigid
classification. Executive power is coercive, judicial power is advisory.
Notes for Friday?

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Difference between Delegated Legislation and Law made by the Parliament:
1. Nomenclature: The law passed by the Parliament is designated as acts and statutes and
the law made by the administrative authorities is generally designated by various rules,
directions, notifications, etc.
2. The authority from which the law is emanating: The direct legislation comes from
Parliament and delegated legislation comes from administrative authorities.
3. The grounds of invalidity: Statutes are invalid if it violates the provisions of the
Constitution and delegated legislation is invalid on two grounds – Firstly, if it violates the
provision of the Constitution and Secondly, if it violates the provisions of the Parent Act
or the Enabling Act.
4. Defect Implications: If there is a defect in the Statute, when it violates the Constitution,
then it becomes invalid right from the time the statute was passed, often known as void
ab initio unless the Court allows prospective overruling. Delegated legislation is invalid
ab initio if it violates the Constitution, but then if it violates the Parent Act, the
legislation has the power to cure the defect and if it is cured, it becomes valid.
Classification of Delegated Legislation
1. Title-based classification: Rules and regulations can be classified according to the
title – Rules, bye-laws, ordinances, titles, etc.
2. Discretion-based classification: In this, there could be two types of classification
– Firstly, delegated legislation and secondly, contingent or conditional legislation.
This means that if the Parliament delegates the administrative authority and gives
the discretion to make any rules and regulations for the purpose of any act, it
shall amount to a discretion-based classification. Sometimes, power is delegated
but the administrative authority tends to lack the discretion to make any rules or
regulations.
3. Authority-based classification:
- Supreme legislation – When the law comes directly from the Parliament, it is supreme
legislation.
- Subordinate legislation – When the Legislature delegates power to any administrative
authority, all rules and regulations thus made are delegated legislation.
- Sub-delegated legislation – When these administrative authorities are granted powers to
delegate these powers to other authorities, this is sub delegated legislation.
4. Power-based classification: This talks about the type of power being delegated.
- Normal Delegation – Legislation has granted guidelines, laws and rules that are to be
followed.
- Exceptional Delegation – When the administrative authority is granted exceptional power
also known as Henry the VIII Clause, is referred to as exceptional delegation. It is this
exceptional delegation which grants powers to the authorities to make any rules and
regulations and also change the laws of the Parent Act.
5. Purpose based classification:
Inherent Dangers in the process of Delegated Legislation:
In England when the Administrative process was rising, it was thought that there are certain
dangers which are inherent. In 1929, Lord Hewart wrote a book called Despotic Legislation,
which specified that culmination of all powers into an administrative authority is sign of
despotism. There is an inherent threat to the threat of liberty and life of people. In 1932, very

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high-powered committee was established referred to as the CMP – Committee on Ministers’
Powers. In this rise of administrative process, there is a violation of Rule of Law which leads to a
violation of Separation of Powers.
1. Wide delegation is subversive of constitutional order – When wide powers are
given the administrative authority, it would violate the doctrines of Separation of Powers
and Rule of Law, the fundamental doctrines of the constitution which were developed to
protect the democratic ethos and the Fundamental rights of the people.
2. It will disturb the delegated constitutional balance - In the constitution, when
three organs are created and the power amongst all is delegated, a very fragile structure
on which the constitution rests is created which cannot be disturbed.
3. It destroys constitutional trust - Legislature was expected by the people to make
the law but not delegate the power as it would break the trust of the people.
4. It may be erosive of constitution ethos – If proper limits are not imposed, then
the constitution may undermine democracy thus leading to the people looking at the
administrative authorities instead of the law-making authorities, which leads to loss of
trust.
5. The law made by the administrative authorities isolated from popular
pressure and insulated from parliamentary audit would make law less acceptable
by the people – There are 2 pressures on the representatives.Firstly,
popularity.Secondly, auditing when power is delegated.Both these pressures stopped
operating. Therefore, they are tempted to make law which is less effective, less
communicable and less acceptable to the people and this has happened many times
wherein the legislations of privacy laws was withdrawn due to people’s objection.
6. Wide delegation may become a source of corruption and bad government.
E.g. if the power to make exceptions to a rule is delegated, sometime an exception can be
made in a manner which leads to corruption. Like in case of an emergency, purchase
made by a single tender also will lead to corruption.
7. Delegated legislation makes the Rule of Law into the rule of man – e.g. Cyber
Policy 2016 was criticized and the whole rules were withdrawn.
Reasons for the growth of Delegated Legislation:
In a country like England, where the Parliament is supreme, the delegated legislation is upheld
and granted more powers. In America, powers are shared rather than divided. In India, natural
concomitant is an intensive form of government.
One of the major reasons for the growth of delegated legislation remains the fact that the
governments are all intensive governments meaning, welfare governments or social justice
governments. The government tries to take care of the society and it people just the way a
mother takes care of her child from the cradle to the grave.
Thus, in order to achieve the goals of the Constitution, it was necessary that the government
should be expanded and elected. They should also be given law-making power and constitutional
hopes. The government was thus assigned the role of a facilitator, businessman, entrepreneur,
protector, etc, which demands the creation of a lot of laws that the Parliament was unable to
pass. Thus, Parliament delegated some rule making powers to the administrative authorities.
When General law is made applicable to everyone, it fails to do justice to the people. Thus, the
administrative authority has to be given some powers to look into some specifics and make laws.
Only the administrative authorities can take care of these specifics.

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 1. Need for Socialisation of Law –Law must be produced by the direct participation
and open deliberations of the people who are to be governed. This makes the law
a social instrument. This participation by the Legislature is not possible directly.
It will always be indirectly as they are the elected representatives. Law is an
instrument of social engineering.
In America, there is a direct participation.
2. Where experimentation is needed – Where law requires adaptation to unforeseen
circumstances, where law requires adjustment in view of the accumulated
experience, only then administrative rule making is the only answer.
The Quantity and Quality of Law – The intensive form of government requires a huge amount
of law and the 21st century requires specialised laws or technical laws, laws for cyberspace, atomic
energy, IPR, etc.
Delegated Legislation in Britain
 Because there is no written Constitution, supremacy of Parliament exists. ROL doctrine-
because of these three, there is no major constraint on the power of the Parliament.
 This does not mean that there is no limit on delegation.
 There is no exercise of power on administrative authorities.
Can be challenged on following grounds
1. On the grounds of unreasonableness. No Parliament can delegate or allow unreasonable
exercise of power.
2. On the grounds of impropriety in procedural requirements.
3. On the grounds of violation of natural justice, if no procedural requirements.
4. On the grounds of malafide.
Delegated Legislation in the US
Difference between (i) written constitution in the US; (ii) doctrine of separation of power is
fundamental.
Why do we say that doctrine of separation of powers is fundamental? Because all legislative
powers are vested in the Congress. All executive powers are vested in the President. All judicial
powers are vested in the Supreme Court. Now, these powers can only be exercised by the organs
in which this power is vested, and by no one else.
Delegatus non potest delegare- delegated power cannot further be delegated.
1. Field v Clarke- In this case, the Congress made a law that all the countries that
are importing goods duty free and on reciprocal basis, US will also allow their
good to be imported to the US duty free. In this power is delegated to the
President that in any country, power has not been given to any President to make
law or to meddle with any law. If any country imposes duty, you…… (Zone out
happened) Commented [VR1]: Ahem, what?
Conditional and contingent delegation will be considered as constitutional.
2. Panama Refining Company v US- During WW1, US was involved and when
the war ended, US economy was shattered. This was the period of The Great
Depression (1929 onwards). National Industrial Recovery Act, 1933 was passed
by the Congress. Under this Act wide powers were given to the President to take
various actions so that economy can be improved and trade and commerce could
be reorganized. One of such powers was that States were allowed to fix the quota
of exports of oil from their state to other states. Power was given to the President

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 that if any person is exporting from a State any amount of oil in excess to State
quota then you can prohibit that person from using inter-state commerce
channels. Like India, in US too, inter sate commerce channels are in control of the
Federal government. We will not allow any person to export oil,on the grounds
that it is an unconstitutional delegation of law-making power from Congress to
the President and thereby violates the fundamental doctrine of Separation of
Powers.
Constitution of the US Supreme Court at that time was 5 conservative judges and 4 progressive
judges. Five judges held that such delegation of powers is unconstitutional.
Sir's analysis- Doesn’t appear to be unconstitutional because President is not making any law but
is just stopping someone exceeding quota from trade.
3. Schechter Poultry Corporation v US- Under the same National Recovery Act,
1933, power was given to the President- a code for fair competition for trade and
fair industry because unfair trade was destroying trade and industry. This was
again challenged on the grounds that unconstitutional delegation of law-making
power- power delegated was development of code of conduct for fair trade. Commented [VR2]: What?
Constitution was again of 5:4. Declared unconstitutional.
President Roosevelt became angry and issued the famous threat of court packing because
President could do so much with help of legislature in order to help economy overcome
depression. President issued threat that if the court doesn’t behave, I will increase the number of
judges and regulate the decision making there. But fortunately, this situation didn’t arise as one
judge changed side- Change of one, saved nine.
Thereafter, not a single case with respect to, delegated power has been declared unconstitutional.
Court allows wide delegatory powers because it realized that delegation is necessary.
When Roosevelt had sent the proposal to increase the number of judges, Congress rejected this
proposal saying that they cannot disrespect one organ of the government.
Similar situation in India- Zamindari Act, Rural Poverty Act were passed to make Zamindars
subject to litigation and some courts held these acts unconstitutional. The whole scheme of land
reforms in rural India was delayed for a very long time and it was at this stage that Pt Nehru said
that our judges are living in Ivory palaces and have no idea of ground reality.
4. National Broadcasting Company v US- Federal Communication Act was
passed under which a Federal Communication Committee was established and
was given power to allow radio license on the basis of public interest, convenience
and necessity. This was challenged before the Court on the grounds of unwanted
delegation. The SC has by now realized the inevitability of delegation. Commented [VR3]: What?
5. Yakus v US- Emergency Price Control Act, 1942 was passed from the Congress,
Govt or President may fix the maximum price which he thinks is reasonable and
equitable to effectuate the purpose of the law. This was again challenged before
the SC that the Congress should have done it and that the powers have been
delegated it to the President. SC again held that this is constitutional because they
realized that when you are dealing with the Constitution, Constitution is not
interested but expounded. Chief Justice Marshall advised that judges must not
forget that it is the Constitution they are expounding, it is like the meaning is that
while dealing with the Constitution, judges must not only recite the words of the

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 Constitution but also play its tune, meaning thereby that the Constitution needs to
be interpreted as a whole.
6. Richtor v US- During war many companiesmisused their power and made huge
profits exploiting people and therefore the Congress passed a law which
mandatedthat if any company has made excessive profits during war, the
government must recover this excessive profit. What is excessive profit? Congress
didn’t lay down and left it to the President. Court said that excessive price is
excessive price and needs to be assessed by the Commented [VR4]: ……
7. Fahey v Mallonee- A lot of loan companies were exploiting people (double
investments in three years). Law passed in Congress and President was given the
power to takeover any company which was exploited. Public good is supreme,
such delegation is fine. Commented [VR5]: ????????
8. Miss Strata v US- Congress recognized that there is problem and it is given
minimum and maximum penalty, -------------- Commented [VR6]: ?????????
Sentencing Reform Act, 1948 was passed under which a Sentencing Commission was established
and given power under the Act- the power to issue guidelines. That how between maximum and
minimum, judges can issue their discretion. Miss Strata charged of offense of holding cocaine
filed case for violation by excessive delegation.
Court said that the exercise of discretion can be better exercised by experts committee in a way
better manner than by Congress.
9. Whitman vAmerican Tucking Constitution- Power is given to Environment
Board that you can develop the Air quality criterion and make it applicable.
Challenged for violation of separation of power. Power given to Board. Court said
that it can be handled better by an expert committee than by Congress.
Congress can lay down the guidelines with fill in the blanks allowing wide discretion to the
administration. Schwartz says that the requirement for standard of delegation has become a
matter of form. Indian SC follow same approach and allow wide discretionary power.Everyone
realizes that the delegation of power is a Constitutional necessity.
Because of the compulsive necessity of delegation, SC has now opened up from its restrictive
approach it used to adopt earlier. In that principle, they have allowed wide delegation power to
admin authorities.
Delegatory powers in India
Indian doctrine doesn’t explicitly entail delegation of power. There is separation of power. There
are, however, provisions which provide for exercise of law-making power by other organs.
Constitution has provided for administrative rule making also under Article 13(2); though not
explicitly provided for delegation of power but impliedly permitted with of course some
restrictions.
Constitutionality of delegated legislation in India in three periods:
- Period when the Privy Council was the highest court of appeal in Constitutional matters up
to 1935, and in other matters up to 1949. Privy Council was a body appointed by the
Crown of England to hear appeals from the British colonies all over the world. It was not a
court in the sense that it did not deliver the judgments but instead advised the King how a
case has to be decided. Very eminent people were members, and the Privy Council made a
very significant impact in the development of law in India. All people in the Privy Council
were Britishers but still it has made significant developments in Hindu/Mohd law.

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 Jurisdiction of the Privy Council was abolished in 1935 with respect to Constitutional
matters when the Federal Court was established by GOI in 1935. Other jurisdictions were
abolished in 1949 later.
What was the position of delegation in India when Privy Council was the highest
adjudicatory authority?
1. R v Durah- In 1866, legislative council was established in India before which law
came from Britain. Established by Indian Legislative Council Act, 1886. In 1886,
Indian Legislature passed a law by which Garo Hills was separated from other
jurisdiction of Bengal because it was an intensive tribal area. Now, what law was
to be applied here? Section 9 of the Act laid down that the Governor General of
Bengal by notification can extend any law applicable in Bengal, withcertain
incidental changes as she deems proper, to the Garo Hills. Under this criminal
law, Durah was tried for murder and was sentenced to death. Case came to the
High Court of Calcutta and was heard by British judges. Argument was that
Indian legislature is a delegate of British Parliament and therefore w/o specific
authorization, they cannot delegate any law-making power to any other authority.
It will be violative of the doctrine of delegatus non potest delegare. Calcutta High
Court quashed the judgment for the wrongful and improper delegation of power
to the Governor General. Indian Legislature could not have delegated this power.
The Privy Council reversed the decision of Calcutta High Court saying that it is
not the case of delegated legislation; it is the case of conditional legislation or
contingent legislation. Conditional legislation means that gun and gun powder is
provided by legislation and only the power to pull the trigger is provided
(delegated). Hence the punishment was valid and the decision of the Calcutta
High Courtwas overruled.
Two interpretations of this decision:
i. Indian Legislature isn't a delegate of British Parliament. They are not the agents of
BritishParliament for the exercise of this power. Hence the doctrine of delegatus non potest
delegare isn’t applicable.
ii. Conditional legislation- a) No limit on Indian legislature to delegate power because not
an agent; b) Only conditional delegation will be allowed and not delegation of any law-
making power.
Confusion continued because of two diff interpretations.
2. R v Binorilal - An ordinance was passed by the Governor General in theCouncil
by which law was made for the establishment of special courts in India, for the
trial of special offences. What was delegated? The power which was delegated to
the provinces was that whenever it wantedto issue a notification and make it
applicable to its problems, it could do so.The Bihar Government broughta
notification and made it applicable which was Challenged on the ground of
unconstitutional delegation.
The Privy Council rightly said that it is not the case of delegated legislation but a
case of conditional legislation. Law already exists,only the power of issuance of
notification was delegatedso as to make the law applicable. There does not exist
any discretion. It is a case of conditional legislation.

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- When the period of Privy Council was over, confusion with respect to permissibility of
delegation of powers still prevailed. 1935 Act was passed and Federal Court was established
in India and made highest court of appeal.
3. Jatinder Nath Gupta vs Province of Bihar - In this case, the legislature passed
Bihar Maintenance of Public Order Act, 1948. It was applicable to Bihar. The life
of the Act was two years. Delegation: "If the state govt is so interested, it can
extend the life of this Act for one more year, with the modifications as they deem
fit". This delegation was challenged before the Federal Court. Federal court said
for the first time that the power of extension with modification is a legislative
function, and therefore cannot be delegated to administrative authorities.
Therefore, for the first time in India, it was laid down officially that law making
power cannot be delegated.
Justice Fazal Ali gave a dissenting opinion saying that it is not a case of delegation
of legislative power but a case of conditional delegation. Word "modification"
does not mean changing the policy of the law; it only means making changes to
remove difficulties and contradictions to remove limitations of the law; hence,
not delegated legislation but conditional legislation.
- India became independent and got a welfare Constitution with social justice at its core.
Parliament realized that this dream of welfare state cannot be realized unless some power is
delegated to administrative authorities. Delegation under the Constitution has become a
compulsive necessity. But the confusion as to whether they can delegate and to what
extent/limit were still present?
Government by President referred this for advice from the Supreme Court and thus the
first reference was made by the President to Supreme Court to elicit this advice- can we
delegate law making power? And if so to what limit? If you give Supreme Court the
advisory jurisdiction, you are making Supreme Court a guardian of Legislature - violating
Separation of Powers, so US has no advisory jurisdiction but Indian law has advisory
jurisdiction.
4. In Re Delhi Laws Act: Bible of Delegated legislature: The Govt decided that
three acts for opinion of the SC asking their opinion on delegation of legislation
under Article 143 shall be referred to. The first act pertained to when Privy
Council was highest court, next pertained to when Federal Court was highest
court, and the last one when Supreme Court is the highest court. 7 judges heard
this case and delivered 7 different opinions.
Continental Justice system is better than Indian Justice system. Reason? In Germany, they
don’t have statutes but Code. Example: IPC is a Code for Criminal law and if any criminal
case comes, oneis not supposed to read anything apart from the relevant Code. Secondly,
precedent has no value because they say that there are different law and different facts.
Role of lawyers in such society is highly limited and they cannot confuse matters. Trial is
not adversary. Lawyers not relevant, judge and people involved are relevant.
In Common law system, it is said that it is the conspiracy of lawyers which made such a
system to make huge money. Short legislations and easily written.
Justice Patanjali Shastri was the Chief Justice and when he was asked that what has been
decided by this case, he himself had no answer and said that nothing in this case can act as
a precedent in future. But he said that the case has decided three fundamental principles: 1.

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 In India delegation of law-making power is a compulsive necessity; 2. That the delegation
of law-making power cannot be w/o limit; 3. that essential legislative powers cannot be
delegated. He says that why there were 7 judgments and not one? Because a lot of
confusion and different opinions on the question of limits of delegation. Delegation of
law-making power is not specifically permitted by the Constitutional Courts, however,
nowhere Constitution prohibits the same either. So, there is an implied authority. The
Constitution impliedly permits, but the question is on limit as to what can be permitted
and what cannot be delegated. This case was argued by MC Setalvad and MC Chatterjee.
Setalvad says that no limit, nowhere given in the Constitution. MC Chatterjee says that
there are limits and power cannot be delegated w/o any limit.
Government was very eager to enforce the agenda of welfare state. What is this in Re
Delhi Law Act case? In this particular case, validity of three laws was referred to SC.
 One was Section 7 of Delhi Laws Act, 1912. At that point of time, Delhi was a part of
Punjab, and then Delhi was separated from Punjab- then they gave power to Central
government that you can extend to a part of territory any law which is in force in any
place in the British India- power of extension was delegated. It was further laid down
that govt can further make this law applicable to Delhi with such restrictions and
modifications as it may deem fit.
Supreme Court commented on two things- i) power of extension; ii) power of restrictions
and modification- constitutionally valid. It said that here, the word restriction and
modification simply means incidental changes to by-pass contradictions and difficulties in
application; word "modification" does not mean changing the policy of the law; it only
means making changes to remove difficulties and contradictions to remove limitations of
the law; hence, not delegated legislation but conditional legislation.
 Section 2 of Ajmer & Mewar (Extension of Laws) Act, 1949- Ajmer was made a separate
territory for the purpose of administration and legislature gave the powers to the Central
Government that it can apply to Ajmer any law which is in force in any other province
in India with such restriction and modification as it may deem fit.
Like the first Act, this was declared constitutional for the same reasons and reasoning.
 Section 2 of Part C states- Laws Act 1950- States were divided into A, B and C. this
Section 2 was in two parts. First, laid down that the State govt should extend any law to
part B and C states which is in force in part A states with such restriction and
modification as you may deem fit. Commented [VR7]: What?
Like the first Act, this was declared constitutional for the same reasons and reasoning.
Second part of Section 2: Power was also given to Central govt that they can repeal and
modify any law which is existing in Part C states with such restriction and modification as
you may deem fit.
This second part was declared unconstitutional. Power to repeal is an essential legislative
function which cannot be delegated. Now the Supreme Court held for the first time that
the law-making delegation of power is inevitable.
However, there are limits to this. Limits are that the power to repeal or modify an existing
law cannot be delegated because it is an essential power.
MC Setalvad representing the state argued that the Constitution vests legislative power in
the Parliament and the State legislature. Second thing, it says that Constitution does not
prohibit delegation of legislative power. He further says that delegation under the

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 Constitution is not under the agency of the people. After election, Parliament is supreme
within the area people have allocated. They are not agent of people and therefore, the
doctrine, delegatus non potest delegare has no application. He therefore argued that there is no
limit. Two possible limitations will be:
i. Parliament cannot completely efface itself and create a parallel legislative authority
because the Constitution talks of only one such authority.
ii. The Parliament cannot delegate power which it itself doesn’t possess. Eg- power on state
list subjects.
Apart from these two limitations, any amount of power and any power can be delegated.
MC Chatterjee argued from other side and took opposite position.
i. Constitution does not specifically allow delegation of law-making power therefore the
law-making power cannot be delegated.
ii. If the legislature is allowed to delegate law making power, it will be a violation of the
Constitutional trust doctrine and it will be a fraud on the Constitution.
iii. Doctrine of separation of powers, no matter not specifically incorporated is there from
the time division of power was incorporated. Therefore, Separation of powers is a port
of any structural organization.
delegatus non potest delegare is not a part of the Indian constitution because they are not
delegate/agents but representatives.
iv. By delegation, if delegation is allowed, it means that the parliament is allowed to create
parallel legislation which is prohibited by the Constitution - there are implied
prohibitions.
v. Colorable legislation- What Parliament cannot do directly, they are trying to do
indirectly.
SC chose a mid-path. - between no and yes. Court said that there are limits. It said that there
are two types of limits in the Constitution. One is the implied limits of the Constitution.
Implied limits are two:
1) essential legislative functions cannot be delegated.
2) only ancillary law - making power can be delegated.
Essential law-making power are two:
1) laying down the policy of law.
2) enacting that policy in binding rule of conduct and laying down the standards
and guidelines.Modification and repealing are essential law-making powers and
can't be delegated. Express provisions of Constitution cannot be violated.
These are legislations which only legislature can exercise.
Every case which goes to the SC even today on ground of unconstitutional delegation, first
question asked is on the basis of these two. Courts in India have taken a very liberal stance on
this.
- First, there is a need to be explicit policy before constitutional delegation of law-making
power. Where is the policy and where can it be found? It can be found out in internal sources
of the law itself(anywhere from preamble to body). Or you can show it to the court through
any external source also. These are the minutes of the Parliament. Why such a liberal
policy? Because court knows that welfare state-based constitution cannot be carried out
w/o delegation of power.
- Second, express limits are there which cannot be violated. What are the express limits?

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 1. Power to make law- you cannot delegate an authority to make law on a subject
which is not within your own power;
2. The essential division of power given in the Constitution; you cannot violate;
3. Territorial provision of powers should not be violated. State legislature has the
power to make laws on the whole state and cannot make law on something
which crosses this; Article 20 should not be violated. Ex post law cannot be
allowed. Fundamental rights should not be violated. Only reasonable restriction
can be imposed.
Where is the policy to be formulated?
1. From internal aids: From the Act itself.
 Sometimes it is given in the title itself. For example, Essential Supplies Act.
 From Object and reason clause may give out the policy.
 From Preamble-lays down the purpose of that particular Act.
 By Scheme of the Act.
 By Reading the whole Act together.
2. Policy may be found from external aids also
1. History of the legislation.
2. Why the Act was passed? What were the reasons?
3. From the debate in the Parliament.
4. From the problem itself for the solution of which the law was passed.
Policy must be laid down. Court should take liberal view but they cannot imagine policy.
Court must always try to take liberal view and from any source they should try to find the
policy because of presumption of constitutionality. Burden of proof is on legislation to
how that the delegation of power to admin is unconstitutional.
1. ST. Jones Teachers' Training Institute v National Council of Teachers'
Training Education - In 2003, National Council for Teachers' education was
established by an Act. Another purpose of the Act was to solve the problem of
haphazard establishment of private B.Ed colleges. An Act was passed to address
this problem.
Grants to private B.Ed Colleges- For which they made certain rules. One of the rules was
that the person who wants to open a college must apply through the Government and then
the Commission shall grant recognition. Rules and regulations were formed for the
purpose. Challenged for being unconstitutional for absence of policy (on what ground you
will give recognition, on what ground you will not).
From where they found the policy? During the course, various letters were exchanged
between the Commissioner and the governor on how to exercise this recognition. Court
said that if all letters are put together, policy of how to recognize can be deciphered. It is a
very difficult proposition of law. In this case, they said that the delegation of law-making
power shall be valid if policy has been laid down.
From where the policy has been laid down? From context- Context that privateB.Ed
colleges need to be controlled and brought under the purview of regulation.
To whom the law-making power is given? if the law-making power is given to a body
which was elected and is responsible, court will give a very liberal power because the
authority to which law-making power is given is authoritative and responsible, so no/less
chances of misuse.

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 Policy can also be found out of subject matter – Eg: Essential commodities Act. Purpose is
very clear to lay down the policy
- Policy can also be laid downfrom scheme of the law, and various provisions, history, etc. In
order for the rules to be valid, there must be a reasonable nexus between the rules and the
policy.Eg- Kerala decided to nationalize the alcohol trade and so the licenses to all the
private people were cancelled and therefore a lot of people became unemployed, thus no
person can trade in alcohol except the state. Also, those persons to whom the license is
given by state, the state itself can only trade in alcohol. The govt was given power under
this particular Act to make rules and regulations effectuate the policy of law. Policy was
nationalization of trade. One rule the govt made was that any person who is given license
will have to compulsorily employ one person out of those people who have been
retrenched because of nationalization. It was challenged before the supreme court.
Question: No matter if the policy of law is very clear- nationalization of alcoholic trade.
Rules are made. Whether rules have any definitive nexus to the policy of the Act?
SC: No nexus because policy is nationalization. So, to force an employer to employe
anyone against his wishes has no reasonable nexus, and therefore the law is
unconstitutional.
A policy, guidelines/standards, and nexus is required.
2. Raj Narain Singh vs Patna Administration Committee- In order to
administer the city of Patna, a law was passed establishing Patna Administration
Committee to exercise Patna Municipal functions and the law gave power to the
Committee that you can select at your discretion any provision rom Bihar or
Odisha Municipal Act 1952. It is your choice. You may modify that provision
and apply it then to the Patna city.
Delegation: to pick and choose any provision from a law which is already in existence
(passed by legislature), modify it and apply it.
Court held that this power is unconstitutional.
What was unconstitutional?
 Picking and choosing one provision from a particular act in isolation may totally take
away or distort the meaning
 Power to pick and choose and modify is a legislative power which cannot be delegated.
 The government had picked up one provision of the Act which was that the municipal
corporation can impose tax w/o any notice requirement. They removed the notice
requirement and court said that you have materially changed the basis of the law and
therefore it is invalid.
3. Hari Shankar Waghla vs State of MP- Essential Commodities Supplies Act,
1946 is a small Act under which S. 3 laid down that the govt shall have power to
make rules for the production, distribution and availability of essential
commodity at reasonable prices. Policy- to make essential commodity is available
to people at reasonable price.
Now, nexus of rule tested:
Section 6 of the Act further provided that any rule or law of the govt shall have effect
notwithstanding anything contrary given in any other enactment or any other law which is
for the time being in force in that area.

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 This Act had an effect of repealing an existing law, in practice. It, being an essential
function of legislature cannot be delegated.
Now, look at context:
Court held it to be constitutional. It said that this does not repeal but by-passes
contradiction.
4. Edward Mills vs State of Ajmer- Legislature passed Minimum Wage Act and
along with the Act, there was a schedule attached in which industries were listed
to which this Act was supposed to apply and they were to pay the minimum
wage as decided.
Power given to the Governor that you can make rules and regulations, add industries and
delete them from a schedule which was already laid down.
Ques: Whether this is valid or not? To add and subtract?
Court said that it will depend on whether the policy has been clearly laid down or not, on
the basis of which the schedule is amended. Policy is clear: exploitation of labour shall be
avoided, and when industry is making sufficient profit, they should pay minimum wages;
and if govt gets to the conclusion that certain industries are making sufficient profits, then
those can be added to schedule to make them pay minimum wages. If govt decides that
certain industries are not making sufficient profits, then they can remove it. If in
consonance with policy, then allowed. Arbitrary exercise cannot be allowed.
5. Jalan Trading CO vs Mill Mazdoor Sabha- Payment of Bonus Act.
Power given to make rules and regulations not inconsistent with the Act necessary and
expedient for the removal of doubt and for this purpose again a list was given that these
industries shall pay bonus and the power to add or delete industries was also given. Most
precise case. 3:2 majority held unconstitutional. Justice Hidayatullah held it
unconstitutional.
Purpose here is to share actual profit for the rules of which, no reasonable nexus is
probably possible.
6. Humdard Dawakhana vs. Union of India - Indian pharmaceutical companies
making Indian medicines were publishing advertisements in newspapers and
were claiming that they had magic remedies for certain incurable diseases
because of which they were defrauding people.
To keep a check on the above instances, the Legislature passed the Drug and Magic
Remedies Objectionable Advertisement Act, 1954. One provision made the publication of
advertisement in newspaper claiming magic remedies punishable offence. There was a
schedule attached comprising diseases in respect of which advertisement could not be
published. Power was given to the government to add any other disease to the
aforementioned schedule.
Humdard Dawakhana published an advertisement claiming to have a magic remedy and
prosecution was initiated against it. They argued that the govt. has been given power to add
a disease and no policy has been laid down in this respect. They have unfettered discretion
to add any disease. SC held that delegation of such a power is unconstitutional. It is a wide
delegation of law-making power. This decision was criticised on the basis of 2 points:
1. So far as the policy of the Act is concerned, it is clear from the title of the
Act itself- to prohibit advertisements of those diseases that are incurable.
Therefore, policy is very clear and SC did not take this into account.

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 2. If there is a schedule containing certain items and if there is a general clause
in the end titled “any other item which the government may think fit”. SC did
not take into account the rule of ejusdem generis. Only those things can be included
in the general category which have characteristics similar to those mentioned
specifically.
Policy and guideline test continues to be the main test.
7. Gwalior Rare Silk Company vs. Commissioner Sales Tax - Central Sales
Tax Act, 1956 was enacted by the Parliament. The Legislature did not fix the rate
of sales tax on various items but left it to the discretion of the Central
Government that in inter-state commerce they can fix the sales tax at 10% of the
value of the good or the sales tax which the state imposes on those goods,
whichever is lower. Taxing power is always considered as an essential law-
making power. If the central; sales tax is high as compared to state sales tax then
people will try to evade taxes. Majority judgement on behalf of 3 judges was
delivered by Justice Khanna- Delegation of imposing tax rate after laying down
the policy of law is a constitutional delegation of taxing power. There is a limit
and hence it is not an unfettered power. [policy- it should be such that the
central sales tax is not evaded by the people. The other 2 judges gave concurring
opinions:
1. Justice K.K. Mathew: He did not go into the question whether the policy of
law has been laid down or not. He did not consider it a relevant parameter. To
look for the policy of law form the nook and cranny of the Act itself or from
outside is not an edifying spectacle for a Supreme Court. This should not be the
test of constitutionality. The real test is the ‘abdication test’, according to which if
the Legislature has not completely abdicated its powers or completely effaced
itself or has not created a parallel legislative authority and so long it reserves the
power to repeal and modify the law, whatever remaining power is delegated is
valid. Every delegation of law-making power shall be constitutional so long
Legislature reserves for itself the power to repeal/modify the law or take away
the power delegated.
8. M.K. Papiah vs. Excise Commissioner - Karnataka Excise Act, 1966 was in
question. Power was given to the govt. to make rules and regulation and to fix
the rate of excise tax. It is a case of professional dishonesty. Just K.K. Mathew
with the concurrence of the other 2 held the delegation to be valid and
constitutional. It was opined that there is no use in finding the policy. He
repeated his concurrent opinion in Gwalior case. In lieu of the earlier decision,
he should have referred the case to a larger bench as 3 judge bench cannot
overrule the previous decision. Every delegation is valid because the Parliament
reserves the essential powers.
9. Registrar Cooperative Societies vs. Kunjabmu - Madras Cooperative
Societies Act, 1932 was in question. The act was passed to organise and
strengthen the cooperative society movement in that state. Policy: giving impetus
to the cooperative society movement. There was schedule containing the list of
societies to which the Act shall apply. Power was given to the government to
make rule and include or exclude any other cooperative society that they deem

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 fit and proper. Court discussed both the policy and guideline test and the
abdication test and clearly laid down that the policy and guideline test is the only
valid test to determine the constitutionality of delegated legislation. The doubts
created by Justice Mathews were removed. The previous decision was overruled.
What was wrong with the abdication test?
Firstly, the govt. will not misuse the power because they are representatives of the people
and are accountable to the people. Even representative can misuse power. If it is misused,
the legislature can take the power back. What is wrong with the second argument? --> the
Legislature will become supreme in case of delegation in the same manner as the
Parliament in England is and this is against the fundamental traits of the Indian
Constitution. This unrestricted delegation of law-making power shall make the Indian
Parliament, the British Parliament which is supreme in all respects. Parliament can repeal
the law but who controls the Parliament. It is the executive. The executive will always be
against the Parliament taking back the delegated power and they will not allow for this.
Thirdly, the executive will not allow the power to be taken back because it would be a
censor on the Executive- parliament and the executive would be censoring the executive be
shown in bad light.
Therefore, the test enunciated by Mathews was discarded. Thereby, the controversy
between the 2 tests was ended.
10. Kiran Gupta v State of UP – The UP Secondary Education Commission and
Selection Board Act was passed by the UP Legislature.
The selection board was given the power to frame rules and regulations for the recruitment
of teachers. This was challenged on the grounds that wide powers have been given to the
selection board from nowhere, without the existence of a policy. The court held that the
policy had been clearly laid down with respect to the selection of the teachers and thus the
Board is just a highly technical board, which gives them the strength to make good law.
11. Rajasthan v Basant Nahatta – The act passed by the Legislature authorised
the government to refuse the registration of any document if it is against public
policy.
Pursuant to this the government said that certain documents shall not be registered as per
the law. The court said that there is no clear distinction of what public policy constitutes to
be, hence the delegation is unconstitutional.
12. Bombay Dyeing and Manufacturing Company v Bombay Environment
Action Group – Whoever challenges the constitutionality of delegated
legislation, the burden shall lie on the very same person.
Delegation of Taxing Powers – If the taxes are arbitrarily imposed and forcefully collected, it is
the definition of dictatorship. Thus, taxing powers are not ordinary legislations. On the other
hand, it is also recognised to be an inherent power of the government. There are three inherent
powers of every government:
- Power to tax.
- Eminent Domain – Taking private property for public purpose.
- Police Power – Imposing restriction on freedom of persons for public good.
Taxation is a method of control and not just raising funds. In England, with the Settlement of
Powers in 1616, it was said that the King could not impose taxes only the Parliament could do
that. The Crown will exercise Executive powers with the Common law courts taking over the

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Judiciary of England. Now, no taxes can be imposed without the legislative permission of
England.
In the US, the Congress has the power to lay and collect the taxes as per Art. 8. In India, Art.
265 says that no taxes could be collected except by the authority of law.
Can the taxes be levied and collected by delegated legislation?
The courts have developed certain normative judicial principles for taxation:
- Law includes delegated legislation and therefore power to tax under certain conditions
maybe delegated.
- Delegation to administrative authorities must be specific and not implied.
- For this purpose, it must clearly lay down the policy of the law and its guidelines.
- This delegation also must be strictly construed.
13. Korean Weaving Mills v Union of India – An act was passed which provided
for Multi-point sales tax. Under this Act, the power was given to the government
that it could impose a single point tax also on select goods and services. This was
challenged on the grounds that the taxing power cannot be delegated as it is an
essential legislative function. Delegation of powers shall be constitutional, if the
Legislature expressly provides for the same by laying a clear policy down.
What can be delegated in taxing powers?
i. To select goods and services for the imposition of taxes.
ii. The power can be delegated after laying down the minimum and maximum rate of
taxes.
iii. Power can be delegated by laying down just the maximum rate of taxation.
iv. Even when no minimum and maximum have been laid down, only the policy has
been laid down, provided the policy is extremely clear.
v. The authority to whom the power is delegated must be representative and
responsible. Only then the Court will not interfere.
14. Avinder Singh v State of Punjab – There was a tax imposed on the alcohol,
wherein the essential legislative function was delegated.A municipal act was
passed under which power was given to the Municipal Corporation to impose
tax and determine the rate of tax which is necessary for the purpose of this
Act. Minimum maximum limits not laid down. No policy laid down.This was
challenged on the ground that policy has not been laid down and therefore they
have unfettered power. Court took the liberal view because Municipal Corp is an
enacted and responsible body and therefore, they cannot misuse power. “For
the purpose of this Act” is sufficient policy. Suppose expenditure 10 crore, they
can impose taxes only to the extent of this expenditure limit. However taxing
power cannot be further delegated unless specifically authorised. Imposing
different rates for different good may be permissible. Power to extend tax law
from one are to another area is permissible.Administrative authority can take
help from anybody for the collection of taxes.Municipal corporation is a
representative and representative body is not likely to misuse its powers.
Constitutional normative principles
The Constitution of India does not specifically incorporate and allow delegation, but impliedly
recognises it. Constitution does not vest law making power specifically into Parliament or State
Legislature. In America, there is specific vesting of this power in Congress. The classical example

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is Article 13(2). Legislature cannot delegate law making function in a manner that it either effaces
itself completely to create a parallel legislative authority or abdicate its function completely or
create a parallel legislative authority. Essential legislative powers cannot be delegated. Only
ancillary and subordinate powers can be delegated. Essential delegated function includes (a)
laying down the policy and purpose of the law and (b) laying down the guidelines and standards
according to which rules and regulations are to be framed.

Legislative policy of the act may be reflected in any manner as the legislature may think fit and
proper. It may be express or implied. It can be gathered from the provisions of the Act itself or
from external sources including existing law which it seeks to repeal (the reason why the old act
was repealed will give an indication towards the policy of the new law) or parliamentary
debates. Rules and regulations framed by the admin authority should not violate the express
provisions of the Constitution, including division of power, territorial operation, ex-post facto
legislation, trade and commerce, fundamental rights, Article 311.
Delegated legislation should not travel beyond the parent Act or Legislation.The rules and
regulations should not be vague and uncertain, unreasonable, malafide or arbitrary. This means
Article should not be violate Article 14. Rules and regulation should not be in a conflict with the
general laws of the land. case of Kerala- retrenched employee- violation of industrial
disputesAct. The constitutionality will depend on the facts and circumstances of every case. No
hard and fast principle apples except a few. Legal effect of delegated legislation is the same as
that of the parent Act if validly made.

There is a presumption of constitutionality of delegated legislation, in the same manner as there

is a presumption of constitutionality of an Act.If the parent Act has been put in 9 th Schedule it
will not save the delegated legislation from judicial review. The burden of proof of the validity of
the delegate legislation will lie on the person who challenges the rules and regulations.Sub-
delegation by the admin authority without specific authorisation is invalid.Delegated legislation
cannot violate the procedure laid down by the Act or laid down by the principles of natural
justice. For e.g. a law was passed which empowered the State Govt. that any permanent mines
lease that has been createdcannot be terminated without 3 months’ notice and the Mines and
Minerals Corp had the power to makes rules. They made a rule that in certain situations if the
person has committed a serious violation then the lease can be terminated without any notice.
The court held that rules and regulations are invalid.

Question arises- can rules and regulations be given retrospective effect. Subject to the provisions
of the Constitution and the provisions of the law, rules and regulations may be given
retrospective effect. Retrospectivity must be specifically authorised by the provisions of the Act.
Article 20 must not be violated. Delegated legislation should not only be legally valid but must
also be socially relevant- D.S. Yadav v. State of Haryana.

Functions that may not be delegated:

1. Essential Legislative Functions
2. Exceptional delegation is unconstitutional
3. Power of repeal of the existing law cannot be delegated

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4. Power of modification cannot be delegated but power to bypass contradictions and
difficulties can be delegated. Incertain situations, if policy is clear then modification can also be
given.
5. Power to exempt without policy and purpose cannot be delegated.
6. Retrospective operation cannot be given unless specifically authorised
7. Power of extension can be given but not future legislation. For e.g. if the Legislature passes
a law and says that government can extend to Rajasthan, any law which is in force in Delhi. They
cannot extend any future law that may be passed by the Delhi Legislature because the existing
law is in the knowledge of the Legislature and not future law. Generally, the power to create
offences and impose penalties cannot be delegated unless clear policy has been laid down.

13/08/2019
Control and Supervision of Administrative Rule-making
- Today, the argument does not question whether the Parliament should delegate or not? As
everyone feels that administrative rule-making is inevitable and therefore, some law-making
power must be delegated to the administrative authorities.
- The argument remains that if this delegation is inevitable, how can it be bound by certain
limitations and review process? If the necessary evil is not controlled, it can have various
serious consequences. These are as follows:
i. Excessive delegation may lead to dictatorship and may erode
democratic order – Hitler became a dictator because Parliament
delegated to him exceptional law-making power. The power to amend
the Constitution and also create laws in the country.
ii. Administrative rule making is isolated from popular pressure and
insulated against Parliament scrutiny, then the administrative
authorities make rules which are less exceptional – There exists an
inherent scrutiny because of the debate.
iii. If the delegation is not controlled and supervised then the
governance will cease to be a rule of law governance and become a
rule of man governance – This remains to be a serious matter as a
rule of law society gets converted into a rule of man’s society. This is
why the Constitution gives the Constitutional powers and Taxing
powers to the Parliament which is exercised by internal audit and
popular pressure.
What are the kinds of control exercised?
1. Parliamentary control.
Itis something which is inherent in delegated legislation, i.e., parliament can delegate power, it
can modify power, and take it back as well. Unfortunately, the Parliament’s control and
supervision of delegated legislation is very weak. This because of the volume of work. A large
amount of time is required in analysing delegations of legislative power. The Parliament also
does not have the expertise. Rule-making has become very technical and specialised. Even if they
have time, they will not be able to do justice to it. Further, gravity has shifted towards the
executive and the executive is making rules and regulations. Therefore, the parliament cannot
exercise control over delegated legislation. The executive controls the parliament and they will
not like that their power is interfered with in any manner. The whip system in India and the

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irrelevance of small opposition parties has made parliamentary supervision of DL illusory. If
parliament has delegated to gov., and the gov has made some rules and regulations. Other parties
have serious objections, can they vote against the majority party? That is why they don’t have the
whip system in the US. The parliament is being controlled by the executive and the opposition
has become almost irrelevant. This becomes clear from the fact that the parliament has not cared
to pass certain laws and rules related to DL.
- England – statutory instrument act, 1946. Rules publication act, 1893. They take care that
the rules and regulations are framed properly and reasonably. They have acceptance from
the people.
- USA – administrative procedure act, 1946. Federal register act, 1935. These two acts take
care that the rule-making power is properly exercised by the admin authority. In India,
there is no such uniform law. However, the delegated legislative procedure act, 1984 which
was amended in 2005, applies to central laws. It generally lays down a few provisions
related to laying of delegated legislation on the table of the house.
Parliamentary control is extremely fragile. This is because:
 as the gravity of the power is shifting towards the executive. The government is
controlling the parliament, instead of the other way around, and this is happening world
over.
 Volume of work is high. Laws are in hundreds, while rules and regulations are in 1000s.
Time-consuming.
 Whip system makes executive more powerful.
 Lack of concern. They feel such wok is useless and not worth the amount of time it
requires to peruse through the rules.
 The rules and regulations are often too technical. The rules framed by the Atomic
Energy Commission are beyond the understanding of the common man.
The Parliament exercises control and supervision by:
 General control. There is a requirement of a memorandum, i.e., Rule 37 of the
Conduct of Lok Sabha proceedings. It says that when a minister is moving a bill
containing provisions for DL in the Parliament, the bill must contain a memorandum,
which must explain:
− Need
− Scope
− Is delegation normal or exceptional?
− To whom is it being delegated?
− Is the authority responsible, or is it a governmental authority?
− Purpose of delegation?
− Whether the policy of law has been clearly laid down with reference to which
AAs shall make rules.
Bill goes through three readings – at every step, there is debate. Power is exercised through this
debate. Questions and notices – any member can ask questions to the minister presenting the
bill. If he is not satisfied, he can move an adjournment motion to discuss the matter on an
urgent basis.
It may also be discussed when the vote on grants is being passed. When the court on grant for
that ministry is being discussed, DL can also be discussed.

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 Pvt member bills may also be discussed. Pvt member may move a bill modifying the position.
[Note: In India, all rules are moved by the concerned ministers, as members of the house. In the
USA, no minister is a member of the house, all bills are private member bills. In the
Constituent Assembly, there was huge debate regarding which kind of system should be
adopted in India. The benefits of a Presidential system were discussed at large.
However, he believed that such a form of government would not suit India. This is
because to run a presidential system, a sophisticated process is needed. There must be a
maturity, which India may not have in the initial stages. Second, that the presidential
system has some genes of dictatorship, which are now at times visible in Trump’s reign.
Nehru feared that his successors may adopt forms of dictatorship. He also believed that
the PM is stronger than the President because for every action of the PM, there are
people behind it (PM cannot do anything if he knows that the people are not with him),
unlike a Presidential government, which is not a responsible government. Wars were
fought without declarations to that effect from the Congress. Idea behind choosing
parliamentary system is that direction is more imp than speed.]
 Special control – 2 methods: through the process of laying and through scrutiny by the
committees of the parliament.
− Process of laying. This refers to laying on the table of the house. Laying may take
various shapes. One form is known as simple laying, with no further procedure. In
England, about 70% of bills are in this category. Bill will merely say that xyz
authority shall have power to make rules and regulations under abc Act. Any rules
made must be laid on the table of the house. Then, if the Parliament wants, it can
go through the rules and regulations. But the rules and regulations will immediately
come into force.
In India, there is no law for laying. NLUJ Act does not provide for laying. It is made
effective immediately, no need for laying. Other countries have laws for laying.
Laying may be of three kinds:
▪ Simple laying, i.e., without further procedures. Also known as information
laying. As soon as rules and regulations are made, they will be laid on the table
of the house. It is just to inform the parliament that rules and regulations have
been made.
▪ Laying subject to affirmative resolution. Rules and regulations framed by
the govt are laid on the table of the house. They are effective but will cease to
be so if they are not approved by the Parliament by an affirmative legislation
within the time-limit prescribed. It is also known as laying subject to condition
subsequent. Example – Articles 352, 356, 123 – if emergency has been declared
by the President, that notification will have to be put before the Parliament,
which will have to approve it within a month. If an ordinance has been made
by the president. It is valid for 6 months, within which period the Parliament
will have to approve it.
Affirmative resolution may also be subject to condition precedent. Parent act may say that rules
will have no effect unless approved by the parliament. For example, Ministers’ Act, 1952 lays
down that the House can decide on the salaries, pensions, allowances and other benefits of the

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members of the party. The house allows the government to make the laws, which are then to be
brought before the parliament, which will vote on it and approve it by affirmative legislation.
[Power is given to person to determine his own salary. Is this type of a system violative
of the fundamental feature of natural justice?]
[missed a few lines here]
The Water Prevention and Control of Pollution Act, 1977 imposes cess on certain industries
which consume a lot of water. A list is given. Section 16(2) gives power to the Board to amend
the schedule and add more industries to the list. The amending schedule must be laid before
both Houses, and their approval sought within 15 days. If within 15 days no resolution is passed,
it will be deemed as though the schedule has not been amended.
▪ Laying subject to negative legislation. The Act may provide that the rules
and regulations may be laid on the table of the House after they are made and
the Parliament shall have the power to reject or amend those rules and
regulations. For central laws, the time-period provided is thirty days – rules and
regulations made will be placed on the table of the house, and if a negative
resolution is passed within thirty days, it will have no effect. In other countries,
the Parliament sends the rules back to the requisite administrative authority to
make the necessary amendments. However, in India, the Parliament itself
makes the necessary amendments.
UK - Statutory Instrument Act, 1956. Deals with the Parliamentary control of
delegated legislation. there, the parliament is supreme and there is no limit on
the power of the parliament to delegate law-making power. In India, there are
limits. Limits may implied (parliament should first lay down essential legislative
functions, i.e., the policy of the law and enacting the policy into a binding rule
of content) or express (ex-post facto, extra-territoriality)
PRAVEENA’S NOTES FOR THE RAINY DAY
Parliamentary Control in Delegated Legislation: this control is very weak and fragile for many
reasons:
1. Gravity in Parliamentary system is towards the executive - when executive takes control
to make rules, parliamentary control becomes illusory.
2. Further weakened by the whip system - when a party in the Parliament requires everyone
to be present in the House and vote in the same manner as the party (no absentees and
vote as per party directive or risk disqualification from party) and only executive (party
leader) can issue whip. Cannot vote as per your conscience, seems undemocratic. In
America, there is no whip system. Democratic system is less a form of govt. than a
discipline of mind and thereby whip system acts as a check and balance.
3. Parliament in India works for about 15% of the time - and a minute portion of that on
legitimate reasons-- no time to go into rules and regulations-- concern for administrative
rule making is low.
4. Rule making has become technical - established Atomic Commission and empowered it
to regulate all atomic energy related activities in India. rules highly technical
Parliamentarians with humble education-- their control becomes illusory.

Whatever control is there is exercised by two means: a) general control-- through Parliamentary
debate, motions, adjournments, questions, amendments, vote on grants, etc. and b) special
control-- by two means i) by laying procedures and ii) through Parliamentary committees.

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 Laying: Rules must be laid on the table of the house as soon as it is made-- for an
opportunity to scrutinize and exercise control.
What forms does laying take: (Simple, Negative and Affirmative w. variations)
1. Simple laying w/o any further direction-- informational laying (merely
informative); the rules framed by admin. authority are published and come into
operation; copy sent to Speaker and made accessible to any member of the
Houses who is interested. Is there a time limit on laying rules and regulations? 30
days in India
2. Laying with deferred operation: You may make rules and regulations-- lay
down before both Houses of Parliament for a certain period of time (no need for
approval) and no legal effect
3. Laying subject to affirmative resolution as a condition subsequent: Executive
has made rules and regulation-- copies are to be laid on the table of the House
and rules and regulations shall have no effect unless they are approved by an
affirmative resolution: declaration of emergency- art. 352, president rule - art.
356, ordinance-making power of the President. It imposes a serious obligation on
Parliament and Parliament may not keep that obligation.
4. Laying with immediate operation subject to negative resolution: The
executive has made rules and regulations-- they have the legal operation from
date made and published-- subject to annulment by resolution of Parliament
passed within a stipulated period of time.
5. Laying in draft-- no legal validity as merely in draft form--- if no negative
resolution is passed within stipulated period of time, begin to have legal validity
6. Laying with deferred operation until approved by affirmative resolution:
Admin authority is empowered to make rules and regulations which shall have no
legal effect unless affirmatively approved by the Legislature
7. Laying in draft with immediate operation: require affirmative resolution for
continuance.
Eg. salaries and allowances of MPs passed w. affirmative resolution-- Ministers’
Act 1952 which lays down that executive may bring a Bill for increase in
emoluments of MPs-- a commission of MPs may be appointed for this purpose--
always subject to affirmative resolution (with deferred operation)/ water cess
imposed--s. 16(2) of the Act-- Parliament has empowered the Board to amend
the Schedule and lay the notification before both Houses and seek approval
within 15 days.
Whether laying is mandatory or directory?
Since there is no law, you have to look at the parent Act to see if laying has been
provided, and of which kind.
In India we have a written constitution and even if the rules are laid and approved by the
Parliament, even then if they violate constitutional principles, the Courts can review such rules
and regulations. This is not the case in England. It depends on the facts, whether the laying is
mandatory or directory. If laying is directory and rules are not laid, the rules will still be valid. If
laying is mandatory and the rules are not laid, then rules have no validity.
− Scrutiny by Parliamentary committees (India).
 Procedural control – emphasised in the USA.

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 Judicial control – emphasised in India. Question then arises as to why any other kind of
control is required, if judicial control exists? Judiciary only looks at the constitutionality
aspect. Other control mechanisms are required to look into the merits of the law – the
courts will not go into this consideration. Further, except in exceptional circumstances,
the court cannot modify the rules and regulations.
15. Bailey v. Williamson
Parliament passed Park Regulation Act, 1972 to preserve the royal park. Power was given
to the govt to make rules and regulations under this Act. The Act provided that the rules
shall be laid forthwith before the Parliament, if Parliament is not sitting, then in the next
sitting, if this approved, shall not be enforced. Parliament had the right to disapprove the
rules.
Government formulated Hyde Park Rules [for a democracy, freedom of speech is
considered to be a centrality. There may be rules and regulation regulating free speech. In
London there is this Hyde Park where a person is not held accountable for whatever is said
against anything or anybody. Similarly, there is a rock in Athens where a person can
exercise free speech without being held accountable or liable for the content of the
speech], under which a person can be criminally prosecuted.
A person was prosecuted and he contended that the Hyde Park Rules were not laid before
the parliament as provided in the Act.
The Court held that non-laying will not affect the validity of the rule. The laying is
directory and not mandatory.
16. R v. Metal Craft
Every laying shall be considered as mandatory and if the rules and regulations are not laid
as required by the Act of the Parliament, the rules shall have no legal validity.
17. Atlas Cycle Industries v. State of Haryana
Essential Supplies Act, 1955- under this Act there is a provision empowering govt. to
formulate rules and regulations. In the Act, there is also a laying provision- rules to
be laid on the table of the House as soon as they are made - this is simple laying
The govt. of Haryana passed the Iron Steel Control Order which was related to iron
sheets required for defence purposes. They fixed the price of the iron sheets and laid
down that nobody can sell and purchase any steel sheet above the price fixed by the
order. On enquiry it was found that Atlas Cycle had purchased steel sheets above
that price and under the order there was a provision for criminal prosecution in case
of violation of the order. The rules had not been laid on the table of the House.
It was argued that the prosecution cannot go on because rules and regulations are
invalid (there is a laying provision and rules and regulations have not been laid. The
magistrate rejected the above argument and continued with the proceedings. An
appeal as made before the HC for quashing the FIR. The question was- what is the
validity of the rules which are not laid? HC certified that it was a case fit for appeal
before the SC as it involves substantial question in public interest. SC held: in order
to decide the validity, you have to decide first, whether the laying provision in the
Act is directory or mandatory.
 Use of the word “shall” will make no difference. There was usage of word
“shall” in this case. Shall may mean may and “may” may mean shall.
Therefore, you have to look at various factors in order to determine the

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 intention of the legislature and or ths purpose you have to see scope of the
Act, nature and purpose of the Act.
 Next the consequences if the rules are not laid must be looked at.
 Thirdly, you have to see whether laying s a condition precedent or a
condition subsequent. If the Act lays down that rules and regulations by govt.
have no validity unless laid down before the House and approved with
affirmative resolution, then in such a case laying down would be mandatory.
In the present case, ‘laying’ was only directory as it was only simple laying and not laying subject
to affirmative resolution. Lastly, what are the consequences for the people?  rules and
regulation formulated operative for a long period people are taking decision according to
these rules and then such rule is challenged court will look at the consequences keeping in
mind the legal consequences and legal relations. Simple laying is always directory, unless it is a
condition precedent or certain consequences are laid down (if the rules are not laid, any
transactions entered into shall be invalid). In India the laying process is very illusory as no one
takes interest in these rules and regulations.
18. Kunju v. State of Kerala
Whether directory or mandatory will depend on the intention of the legislature gathered from
the provisions of the statute.
19. Narendar Kumar v. UoI
Centre made Non-Ferrous Legal Control Order under the Essential Supplies Act. Under this
there was a laying provision where laying was a condition precedent and therefore it was laying
was held to be mandatory.
20. Jaan Mohd v. State of Gujarat
Rules and regulation under Market Agricultural Produce Act.The issue: rules should be laid in
the current session or the next session following?However, due to war the next session didn’t
take place. Rules were already in operation and therefore court held that laying is directory and
will not affect the validity of the rules
21. V.K. Krishnan v. Sec, Regional Transport Authority.
Rules made by the govt of T.N. under MVA.Rules must be laid on the table of the House as
soon as possible.There was another provision that the Leg may modify the rules within 14 days
of laying. In this case, it was held that laying is directory.
Specialised Committees:
In UK there are 3 committees
1. Committee of the House of Lords: Select Committee on the Merits of Statutory
Instruments. This committee has the power to reject any rule and regulation, however,
they cannot interfere with financial matters.
2. Committee of the House of Commons: General Committee on Delegated Legislation.
Speaker refers the rule to the committee and then the committee exercises specialised
control
3. In 1973, a committee of both the Houses was constituted: Joint Committee of the Two
Houses. 7 members from each House; they can only scrutinise the procedural matters
but not the substantive policy matters. They have to bring to the attention of the House
certain matters after the scrutiny -

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 1. Whether rules and regulations have drafting defects or not?
2. Whether rules and regulations bar judicial review?
3. Whether rules and regulations are given retrospective
operation?
4. Whether rules and regulations are properly published or the
publication was delayed?
5. Whether rules and regulations call for a further clarification?
6. Lastly, on any other ground but not on the ground of policy
because minister to whom power to make rules is given, is
responsible to the Parliament and his policy cannot be
questioned.
1473 set of rules and regulations - statutory instruments. In 70 cases, they made the
recommendation that the attention of the House must be drawn.
In USA, procedural acts came into being after the Panama case. Federal Register Act was passed
in 1935. Administrative Procedure Act was passed in 1946 which lays down the minimum
procedure for administrative agencies to follow while exercising rule making, adjudicatory or
administrative powers. If rules and regulation are not published, but you have actual knowledge
of them, will they be binding? they will not be binding.
INDIA
 2 committees of the Parliament:
1. Lok Sabha Committee on Sub-ordinate Legislation 1953 - 15 members appointed by
the Speaker, Chairman from the opposition party, minister cannot be a member. The
life of the committee is till the new committee is appointed.
2. Rajya Sabha Committee on Sub-ordinate Legislation 1964 - 15 members appointed by
the chairman of the Rajya Sabha, Chairman appoints the Chairman, ministers can be a
part of this committee, life of the committee is till new committee is formed.
 Contained in the report
1. Whether rules and regulations formed are within the power conferred or not
2. Whether rules and regulations violate any provisions of the Constitution?
3. Whether rules and regulations travel beyond the policy laid down in the Act?
4. Whether rules and regulations impose any tax?
5. Whether rules and regulations evade any court decision?
6. Whether rules and regulations oust the jurisdiction of a court?
7. Whether they are retrospective?
8. Whether they are properly published?
9. Whether they require further clarification?
These reports may be discussed or may not be discussed. Government always takes note of these
reports. These committees are powerful committees as they have powers of a civil court- they
can summon any person to appear before it, they can produce any document, they can issue
discovery
Another important function is to dex all the rules and regulations of the year, to print them and
put them in volumes so that they are available in Secretariat’s Library and L&S Library.
Initially these committees functioned effectively but later due to budgetary constraints

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I. PROCEDURAL CONTROL
In India, there is no procedural law. In England, there is the Statutory Instruments Act. In USA,
Federal Register and Admin Procedure Acts
Procedural issues:
1. Drafting:
 The office people draft rules and regulations. They are not specialised and so many a times,
rules and regulations suffer from bad drafting. In Australia, all rules and regulations should
be batted by office of the Attorney General. Therefore, in India there is a need for a
provison.
2. Ante-natal Publicity:
 Before rules and regulations become binding, they should be published in draft form. In
USA, ante natal publicity is taken care of by the authorities by virtue of law.
 In India there is no such law. In India, either the Act provides the procedure of publication
and the subsequent recommendation.
 Section 23 of the General Clauses Act: rules must be first published in a draft form in the
Gazette or they must be published in the manner laid down in the Act or they must be
published in any customary manner.
 The publication must specify the date, time, place and authority to whom the suggestions
can be made.
 The suggestions and recommendations must be duly considered and then rules must be
formulated.
 In India this is not done effectively.
 In Income Tax Act, 1922 there was a provision for ante natal publicity. In 1961 when the
Act was revised, this provision was dropped as it was thought that it was a waste of time.
 If a provision for ante natal publicity is provided in the Act, whether it will be directory or
mandatory
1. Raza Buland Sugar v. Rampur Municipality
Power was given to Municipal Corp to make rules and regulation and impose
taxation on sugar mills. But it was laid down that first the draft of those rules and
regulations must be published in a Urdu Daily so that majority of the people may
read it and give suggestions. Time, place, date and authority should be mentioned.
In this case, majority of pop in Rampur were Muslims and so the provision
mentioned “Urdu Daily”.
They published in a Hindi Daily but in Urdu language. Tax was to be imposed.
Question was whether rules are valid or invalid.
The court delved into the intention. The intention was that majority of the people.
Substantial compliance should be considered sufficient. They therefore developed
the Substantial Compliance rule and deviated away from the Strict Compliance
Rule. As per the SCR, if the purpose is being met, then the rules can be declared
valid.

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