LEGALITY OF ADMINISTRATIVE DIRECTIONS

S. JV. Jain*

I. INTRODUCTION

T H E GROWTH OF the administrative process has been accompanied

by the conferment of more and more discretionary powers on the
administrative authorities. T o control the exercise of these discretionary
powers resort has been had to various devices. These include promul­
gation of rules, announcement of statements of policy by the authority
exercising power, a n d the issuance of administrative directions. These
devices have given rise to a n u m b e r of legal problems. This article is
an attempt to analyze the legality of one such device, namely, adminis­
trative directions.
Administrative directions are issued by a higher authority to sub­
ordinate authorities and do not have statutory force. T h e y may be
specific to be applied to a particular case or general laying down general
principles of policy. They may be issued through a letter or a circular,
and they may even be oral given in a very casual m a n n e r . T h e y may
at times be published in the form of pamphlets, press notes, or public
notices. 1 T h e y may even be published in the government gazette. 3
Some writers call these various official pronouncements as "administrative
quasi-law" or "administrative quasi-legislation." 3 W h e t h e r a particular
official pronouncement has statutory force or not is not relevant here. 4
Even if devoid of statutory force, no official in practice would disregard
it, though no court would enforce it at the instance of a n individual.

II. N E E D FOR ADMINISTRATIVE DIRECTIONS

T h e need to resort to administrative directions, a n d indeed the

delegated legislation, arises because of the wide discretion t h a t has to
♦M.A., L.L.M., S.J.D. (Northwestern); Associate Research Professor, The Indian
Law Institute, New Delhi.
1. Thus all income tax circulars are these days published in the Direct Taxes
Bulletin—a quarterly publication issued by the Directorate of Inspection, Government
of India, New Delhi.
2. Thus the policy announcements of the Government of India relating to the
import trade control are published in the Gazette of India.
3. See, for example, Allen, Law and Orders 221 (1956); Megarry, "Adminis­
trative Quasi-Legislation," 60 L. Q. Rev. 125 (1944);Friedmann & Benjafield, Principles
of Australian Administrative Law 61 (1962).
4. See the following cases on the subject: Raman and Raman Ltd. v. State of
Madras, A.I.R. 1959 S.C. 694; East India Commercial Co. v. Collector of Customs, A.I.R.
1962 S.C. 1893; Kharak Singh v. State of UP., A.I.R. 1963 S.C. 1295; Jayantilal Amrat-
lal v. F. N. Rana, A.I.R. 1964 S.C. 648 (dissenting opinion of Wanchoo, J., which
reviews a number of earlier decisions). See also Griffith & Street, Principles of Adminis*
ttative Law 63-68 (1963).

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350 JOURNAL OF THE INDIAN LAW INSTITUTE [VOL. 8 : 349

be conferred on the executive by the statute to deal with the people's

problems in a welfare state. Instead of leaving the administrative
discretion unguided a n d unfettered for all time to come, power to make
rules a n d regulations is ordinarily conferred on the executive by the
statute so t h a t rules m a y be m a d e from time to time according to the
exigency of the situation a n d t h a t uncertainty involved in discretion
may give way to certainty a n d fixity. Promulgation of rules and
regulations having statutory force is not the only way to achieve
certainty; this could also be attained through the issuance of admini­
strative directions not having such a force. W h y is t h e n the device of
administrative directions preferred to statutory rules ? T h e r e are several
reasons for this. Certain formalities, like prepublication, consultation of
affected interests, laying before Parliament, publication in the gazette
may have to be followed for promulgation of rules. No such formalities
are required for issuing administrative directions a n d consequently
they are easy both to issue a n d to change. Consequently, the device of
administrative directions m a y have to be used when a completely new
kind of problem has to be dealt with in the working for which no past
experience is available. T h e trial and error method may have to be
adopted to pave way for the rules having some stability. Until
the problem has been worked for a sufficient period of time, the guides
or the standards for administrative action may have to be laid through
administrative directions which are easy to change and modify according
to the experience gained. 5 T h e issuing of directions where principles for
the exercise of power could be laid down with some degree of stability
is an anomaly. But the device of direction may have to be resorted to
because the factors may be fluid and subject to rapid change. And,
therefore, principles for the exercise of power cannot be stated without
precise articulation a n d have to be in a state of quick changes. 6
Further, a purely temporary situation may be dealt with through the
directions r a t h e r t h a n rules. 7

III. L E G A L BASIS FOR T H E ISSUE OF D I R E C T I O N S

As noted earlier, the directions are issued from a higher authority

to a subordinate authority. This could take place in three possible
situations :

5. Thus a provision for the development rebate which allowed additional depre­
ciation on a new plant and machinery for income tax purposes was made in 1955 by
the Finance Act. Various difficulties and the problems which the new provision gave
rise to were attempted to be solved through the issue of circulars. See The Direct Taxes
Administration Enquiry Committee Report 38-42 (1959).
6. See Friendly, The Federal Administrative Agencies—The Need for Better Definition
of Standards 146 (1960). See a comment on the Simms Motor Units case by Robson in
10 Modern L. Rev. 70(1947).
7. See, for example, an income tax circular dated 4-10-1963. There were two
opinions among the assessees in the matter of closing of accounts for the samvat year
2019. T h e Central Board of Direct Taxes recognized both the dates through the
circular.

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1966] LEGALITY OF ADMINISTRATIVE DIRECTIONS 351

(1) W h e n the power is conferred on a specified authority by a

statute and the directions come from a superior authority.
(2) W h e n the power is conferred on a specified authority by a
statute but the authority has subdelegated the power, a n d
the directions are issued by this authority to its delegate.
(3) W h e n the power is conferred by a statute on the government
(or the President or t h e Governor as the case may b e ) 8 a n d
the directions are issued by it to the subordinate civil
servants.
Whether the directions could be legally issued in each of these
situations has to be separately considered.
T h e first situation is where the power is conferred on a specified
authority by the statute but the directions come from a superior a u t h o ­
rity. W h e t h e r the directions could be legally issued is a question whose
answer may affect deeply the' internal administration of the government.
If the idea behind the designation of a n official in the statute is to
create a particular kind of public authority outside the control of the
minister, then obviously no directions can come from above. However,
there may not be such difficulty if his position is to be regarded as the
same as that of an ordinary civil servant. In the two cases where the
problem arose the answer of the courts was the first one. T h u s , in
Commissioner of Police v. Gordhandas Bhanji^ the Commissioner of Police
was designated as the cinema licensing authority under the Bombay
Police Act, 1902. T h e Commissioner cancelled a cinema licence on
the direction of the Government of Bombay. T h e Supreme Court held
that the Commissioner was the only authority under the statute to
exercise the power a n d the government could not issue a direction to
the Commissioner. In this case was involved a particular direction in
the sense that the direction was issued to be applied to a particular
individual. T h e result would be the same if a general direction is
issued, i.e., a direction laying down a principle or rule of policy to be
applied amongst the generality of applicants. T h e question of validity
of such a direction arose in Sri Rama Vilas Service v. Road Traffic Board.10
T h e Government of M a d r a s issued directions laying down the
principles for the issue of motor vehicles permits to various transport

8. President is the chief executive of the Central Government and the Governor
of the State Government. Under article 53 of the Constitution the executive power of
the Union is vested in the President (the corresponding article for the state is 154).
Under section 2 of the General Clauses Act, 1897, also the Central Government means
the President and the State Government means the Governor. Therefore, unless context
in an exceptional case requires that the President or the Governor has to act personally,
where power is conferred on either of them, it is to be exercised by the relevant govern­
ment.
9. A.I.R. 1952 S.C. 16.
10. A.I.R. 1948 Mad. 400.

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352 JOURNAL OF THE INDIAN LAW INSTITUTE [VOL. 8 : 349

authorities who derived their powers to issue them under the Motor
Vehicles Act, 1939. T h e M a d r a s High Court held that this could not
be done. It observed :
Nowhere in the Act is there any express provision by which the two statutory
Boards [the transport authorities] must act in accordance with the orders of
the Government and there is nothing . . . in the Act, from which it can be
implied that the Government can, by order, direct the two Boards in the exer­
cise of their judicial and other functions. The Boards are completely
independent, unfettered by the Government save that they must observe notifi­
cations made pursuant to S. 43. That independence of action is essential for
the proper discharge of their statutory duties and indeed, in the interest of
justice. 11

Therefore, if it is desired that the government may issue directions

to a statutory authority, it is necessary to expressly make a provision to
t h a t effect in the statute. As a sequel to the decision of the Madras
High Court, the Motor Vehicles Act was amended by incorporating a
new section 43A which authorized the government to issue directions of
a general character to the transport authorities who were required to
comply with them. Another example where powers are conferred on
the designated authority by the statute, but an express provision is made
for the directions to be issued by a higher authority, is provided by the
Income T a x Act, 1961. Thus, under section 119(1) of the act all
officers and persons employed in the execution of the act are required
to observe and follow the orders, instructions and directions of the
Central Board of Direct Taxes. Further, under clause (2) of the section
every Income T a x Officer is required to follow instructions issued to
h i m by the Director of Inspection or by the Commissioner or by the
Inspecting Assistant Commissioner.
Even if there is an express provision in the statute for the issue of
directions, can they be issued to quasi-judicial bodies ? As the present
judicial view is, this cannot be done, a n d this is so whether the direc­
tions are of particular or general applicability. T h u s the courts have
regarded the assessment proceedings before an Income T a x Officer under
the income tax statute as quasi-judicial a n d have held that he should
exercise his own independent judgment without any control by the
superior authority. Accordingly, the Punjab High Court held illegal,
in Sewa Singh Gill v. Commissioner,12 a direction by the Commissioner of
Income T a x to the Income T a x Officer to get the draft assessment order
approved by the Inspecting Assistant Commissioner, even though the
statute contained an express provision for the issue of such directions.
It is a separate question whether, as a matter of policy, an Income T a x
Officer should be left completely independent uncontrolled by the
superior authority or there should be some control, a n d to what extent,

11. M a t 406-07.
12. (1962) 46 I.T.R. 152. See also Dineshaw Darbashaw Shroff v. Commissioner,
(1947) 11 I.T.R. 172; Mahadayal Premchandra v. Commercial Tax Officer, A.I.R. 1956
S.C. 667.

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1966] LEGALITY OF ADMINISTRATIVE DIRECTIONS 353

to check the misuse of power by him. Here the cases are taken to
reflect the judicial trend as far as the issue of directions of a particular
nature to a quasi-judicial body is concerned.
T h e question whether directions of a general nature could be issued
to a quasi-judicial body was considered by the Supreme Court in
Rajagopala JVaidu v. State Transport Appellate Tribunal.1* T o consider
the case, section 47 of the Motor Vehicles Act, 1939, confers a wide
discretion on the Regional Transport Authority for granting stage
carriage permits, one of the factors for their grant being " the interests
of the public generally." In order to limit the discretion of the various
regional transport authorities in the state, the Government of M a d r a s
issued directions of a general character laying down the principles for the
issue of these permits under section 43A of the act, A dissatisfied
applicant for a permit challenged the action of the government in
issuing these directions. Relying on earlier cases that these authorities
were discharging quasi-judicial functions 14 in granting permits a n d
the directions issued under section 43A h a d no statutory force, 15 the
Supreme Court held that no directions could be issued to these bodies
in the discharge of their quasi-judicial functions because this was against
the fundamental principle of the judicial process. For a comment on
the case, reference may be m a d e to the material noted in the footnote
below. 16
Now let us examine the second situation. Assuming t h a t the
authority, on whom the power has been conferred by the statute, can
validly subdelegate its power, 1 7 the question arises whether the authority
is denuded of all its power or whether it can control the exercise of the
power by the delegate through the issue of directions.
T h e r e is no Indian case on the point. A case which came close to
the problem is Mahadayal Premchandra v. Commercial Tax Officer18 In
this case the Assistant Commissioner h a d delegated his powers of
assessment to the Commercial T a x Officer. W h e n the appellants'
assessment came before the latter, he, instead of exercising his own judg­
ment, referred to the former for opinion a n d decided it in accordance

13. A.I.R. 1964 S.C. 1573.

14. New Prakash Transport Co. v. New Suwarana Transport Co., A.I.R. 1957 S.C.
232; Raman and Raman Ltd. v. State of Madras, A.I.R. 1959 S.C. 694; Abdulla Rowther
v. State Transport Appellate Tribunal, A.I.R. 1959 S.C. '696.
15. Raman and Raman Ltd. v. State of Madras, A.I.R. 1959 S C 694.
16. See S. N. Jain, "Directions and Quasi-Judicial Bodies," Pub. L. 217 (1965).
17. A power is ordinarily to be exercised by the authority on whom it is conferred;
this is expressed in the form of a maxim delegatus non potest delegare. However, the
power can be subdelegated if the statute expressly or by implication provides for this.
See de Smith, Judicial Review of Administrative Action 174-75, (1959); Willis, "Delegatus
Non Potest Delegare," 21 Can. B. Rev. 257 (1943); Griffith & Street, op. cit. supra
note 4, at 68-69.
18. A.I.R. 1958 S.C. 667.

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354 JOURNAL OF THE INDIAN LAW INSTITUTE [VOL. 8 : 349

with this opinion without giving the appellants an opportunity to meet

the points against t h e m . T h e Supreme Court quashed the assessment
on the ground t h a t the Commercial T a x Officer did not exercise the
power himself a n d the principles of natural justice were violated. T h e
point t h a t by delegation the Assistant Commissioner had denuded
himself of all his powers a n d did not have power to issue instructions or
directions to the Commercial T a x Officer was not taken.
In England an early decision Huth v. Clarke1** is a frequently cited
authority in support of the proposition that delegation of power by an
authority does not divest it of its power; the authority continues to keep
the power of supervision a n d control with itself. U n d e r this view no
distinction is m a d e between a n agency and delegation. W h e r e a person
is appointed as an agent, the principal keeps the power to control and
supervise him; the agent merely carries out the instructions of the
principal. Those following the Clarke case assimilate the position
of the delegate to that of an agent. 2 0 However, the Courts of Appeal
decision in Backpool Corporation v. Locker*1 in 1947 seems to have changed
this position. In this case, a clear distinction was m a d e between agency
a n d delegation. H e r e the Minister of Health had delegated his powers
/to requisition houses to the Blackpool Corporation. It was held by
Scott, L J . , t h a t the Minister of H e a l t h did not retain any power to
issue directions to the Corporation. In his opinion, the principle of
agency did not apply and the Corporation was not a n agent of the
Minister. By the delegation of his powers the Minister had denuded
himself of all those powers except which in his subdelegated legislation
he h a d expressly or impliedly reserved for himself.
T h e proposition laid down in the Blackpool Corporation case also gets
support from Simms Motor Units Ltd. v. Minister of Labour and National
Service.^ In this case, the Minister was authorized under the law to
delegate his power to a designated official. Subsequent to the delegation
t h e Minister tried to control the exercise of the discretion by the official
through administrative directions. T h e court held that this could not
be done; the Minister did not have power to limit the discretion of
the official through the instructions.
Authorities on both sides of the proposition laid down by Scott,
L.J., in the Blackpool Corporation case can be found. 2 3 I n order to

19. (1890) 25 Q.E.D. 391, 395.

20. See, for example, Willis, supra note 17; Currie, "Delegated Legislation,"
22 Austl. L. J. 110(1948-49).
21. [1948] 1 K.B. 349. See a note on the case by de Smith in 11 Modern L. Rev.
338-39 (1947).
22. [1946] 1 All E.R. 201. See a comment on the case by Robson in 10 Modern
L.Rev. 70 (1946).
23. See the following material for authorities against:. Currie, supra note 20;
Allen, op. cit. supra note 3, at 211; opinion of Denning, L . J . , in Metropolitan Borough
and Town Clerk of Lewi sham v. Roberts, [1949] 2 K.B. 608, 622. Also see Willis, supra
note 17. For an opinion supporting the proposition see Garner, " T h e Delegation of
Administrative Discretion,' 1 27 Public Administration 115(1949), See also de Smith,
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1966] LEGALITY OF ADMINISTRATIVE DIRECTIONS 355

properly appreciate the problem it is necessary to bear in m i n d that the

main idea of delegation is to enlighten the work of the delegating
authority. This would be frustrated to a great extent if the authority
is to supervise a n d control the work of the delegate by issuing directions
or by other means. 2 4 Since the delegating authority would be over­
burdened with other duties (the reason which necessitated delegation),
it is hard to expect of it to possess that expertise which the delegate
would acquire in the course of working the problem. Therefore, it
would be better that instead of issuing directions the delegate is left to
work the problem himself. Further, this control and supervision of the
delegate may stifle his responsibility and m a y not be in the interest of
administrative efficiency. T h e n , it is the delegate who is dealing with
the cases and can follow a consistent policy; interference by the
delegating authority may result in discrimination. 2 5
But the issue of directions by t h e delegating authority to t h e
delegate may be necessary either to coordinate the activities of the
delegates or to enable t h e m to follow a uniform policy. T o illustrate
the need for coordination, under the Imports and Exports (Control)
Act, 1947, the Government of India has been conferred power to control
the import a n d export of commodities. This control has been effected
through a system of import a n d export licensing. T h e Government has
delegated its power to grant licences to various licensing authorities.
For instance, the power to issue certain actual user's licences, 26 is with
the regional licensing authorities (called the J o i n t Chief Controller of
Import and Exports) at the ports. These authorities enjoy wide
discretion in issuing these licences. Some of the considerations for the
exercise of the power are the position of foreign exchange, availability
of indigenous sources of supply, the needs of the applicant's factory a n d
so on. N o w the "foreign exchange position" is a vague concept a n d
involves a great deal of subjectivity, for the position has to be considered
in the context of t h e needs of the whole national economy which would
be difficult to determine owing to the lack of d a t a and other factors.
T h e available exchange m a y have to be allocated for different industries
on a priority basis. In order t h a t the various regional licensing authori­
ties do not exceed the overall exchange limit and observe the required
priorities in granting licences, it is necessary to coordinate their activities

24. It is assumed here that control and supervision is not to a substantial extent so
that the delegating authority could not be said to apply its own mind; if it is otherwise
then in law there would be no delegation but simply it would be employing assistants to
discharge the statutory power by the authority. See de Smith, op. cit. supra note 17, at
177-78; Willis, supra note 17.
25. See Friendly, op. cit. supra note 6, at ch. 7. Though Friendly advocates
that federal administrative agencies should attempt to limit their discretion by issuing
rules or statements of policy, yet he is against their originating from the President. In
his view, these ought to be issued by the agencies themselves.
26. These licences are issued for the purpose of importing raw materials for use
in the licensee's factory.

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356 JOURNAL OF THE INDIAN LAW INSTITUTE [VOL. 8 : 349

by a central agency. Since the various factors would be in a constant

flux, this coordination may have to be achieved through the issuance
of directions a n d not statutory rules.
T h e above also illustrates the need to issue directions for the sake
of uniformity. I n order that great disparity may not exist in the
exercise of power by these regional licensing authorities, it is necessary
that the broad stream of discretion may be channelized into narrow
ones through the directions coming from a higher authority.
I n order to reconcile the various policy considerations, it is suggested
that as a rule where the power has been delegated and the instrument
of delegation does not expressly or impliedly reserve any power for the
delegating authority, it should be held that it is divested of all powers to
issue directions a n d instructions to the delegate. T h e authority is
however not d e n u d e d of its powers to the extent reservations are kept
in the instrument of delegation. Further, whether any reservations are
kept or not, in no case should the authority be permitted to issue a
directive which applies to a particular case or individual as distinguished
from its application to the generality of individuals. This is to avoid
discrimination in the exercise of the discretion which may otherwise
result. 27
T h e third situation could be taken u p now. T h e Government is an
abstract body which acts through its ministers or civil servants. President
is the chief executive of the Government of India, and according to
article 53(1) of the Constitution, the executive power may be exercised
by h i m either "directly or through officers subordinate to him in
a c c o r d a n c e " with the Constitution. T o enable the President to
subdelegate his powers, article 77(3) provide that " t h e President shall
make rules for the more convenient transaction of the business of the
Government of India, and for the allocation among Ministers of the
said business." Therefore, when a power is conferred on the Govern­
ment, it has generally to be discharged in accordance with the Conduct
of Business Rules framed by the President under article 77(3). Though
there is a constitutional provision for the framing of t h e s e rules, yet
strangely enough, the Government regards such rules as confidential 28
a n d does not supply t h e m to the individuals when asked for. But
whenever a question has arisen whether a power conferred on the
Government was exercised by a proper authority or not, the courts have
always looked to the Conduct of Business Rules; 2 9 and the Government
has not so far created any difficulty by not producing the rules before
the courts. According to one of these rules (as have come to notice
through the cases) " t h e Minister in charge of a department shall be

27. See supra.

28. See Deshpande, " T h e One Who Decides Must Hear," 2 J.I.L.I. 422, 430
(1959).
29. See Gullapalli Nageswara Rao v. A. P. State Road Transport Corporation, A.I.R.
1959 S.C. 308; Godavari Shamrao Parulekar v. State of Maharashtra, A.I.R. 1964 S.C.
1128; Bachittar Singh v. State of Punjab, A.LR. 1963 S.C. 395.
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1966] LEGALITY OF ADMINISTRATIVE DIRECTIONS 357

primarily responsible for the disposal of the business appertaining to

that department. [Another rule] enacts that except as otherwise
provided by any other Rule, cases shall ordinarily be disposed of by or
under the authority of the Minister in charge who may, by means of
standing orders, give such directions as he thinks fit,..."30 T h u s except
only such matters as the minister reserves for his personal consideration
all others are disposed off by the civil servants in accordance with his
directions. 31 T h e issue of directions by the minister to his subordinates
does not create any problem of lack of statutory authority in view of
the Conduct of Business Rules, though here again, he may not legally
issue directions to an authority discharging quasi-judicial functions.
Sometimes the statute conferring power on the government may
itself expressly or by implication provide for its subdelegation to sub­
ordinate authorities. 3 2 This, of course, does not preclude the govern­
ment from using existing administrative machinery under the Conduct
of Business Rules. 3 3 T h e government may, however, exercise the power
of subdelegation under the statute. W h e n it is so, the position seems
to be the same as in case of subdelegation by a specified authority
(other t h a n the government). 3 4 W h e t h e r administrative directions
could be issued to the delegate would depend upon the terms of the
instrument of delegation.

IV. CONCLUSION

From the above analysis, the following generalizations could be

laid down :
(1) W h e n the power is conferred on a designated official by the
statute, its exercise cannot be controlled by a superior
authority through the issue of directions.
(2) W h e n the power is conferred on a specified authority by a
statute but the authority has subdelegated the power, whether
the delegating authority could issue directions to the dele^
gate would depend upon the terms in the instrument of
delegation.
(3) W h e n the power is conferred by a statute on the government
(or the President or the Governor as the case may be), the
exercise of the power by an official could be controlled by
the minister concerned, unless the power of subdelegation is
exercised by the government under a statute.
(4) In none of the above situations, clirections could be issued to
a quasi-judicial authority.

30. The Gullapalli case, supra note 29, at 325.

31. Deshpande, supra note 28, at 423, 431.
32. See, e.g., The Essential Commodities Act, 1955, §§ 4, 5.
33. Emperor v. Sibnath Banerjee, A.I.R. 1945 P.C. 156.
34. See Simms Motor Units Ltd. v. Minister of Labour and National Service, [1946] 1
All. E. R. 201.
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