:f

Textbook
on
Administrative Law

Yashomati'buo"n
LLB, LLM, Ph.D
Assistont Professor' of Law
National Law School of India (Jiziuersity, Baizitilere

@'LexisNexis'
f
lntroduction to
Adminisrative La'rnz

1.1 INTRODUCTION
Administrative law as a bra.nch of study emerged in
the early parts of
;;;;F ";ntury. The idea of the state responsibitity and the state being
accountable to the puoptu in the 20th century. The economic
-iti" emerged
the- earlier century had given rise to the
;il;$-;; m*""" "t
principle of state nin-interference in the affairs of the common people
andgreaterautonomytothepeopletodeterminetheircorrftieoflife.The
-Jropo*rra"i
laissez Jaire rnodel that the role of state will be rninimal and
confined to the mairrtenance of law and order, protecting
the state against
foreign aggressions .|}a rairraicating disputes between the
citizens' But the
hardships to
negative consequences of iaissez faire econorny soon caused policy
the cornmon people tha,t made people rea|ize that the free market
and ensure well-being of
will not necessarily give rise to optimal wealth
t . -.1

12 Textbooh on Administratioe Lau^ Introduction to Adrninisratiae Lazp 3

|

all people. The profit rnaking goals of tlre la'issez faire economy caused in state responsibility had imposed additional responsibilities on these three
members and specific
hardship to a large section of the popul6,tion like children, women, poor and orgr,n" of lhe state. But the limited number of
judiciary had imposed inherent
old people who could not adequately fight for their interests in the unequal irrLtlorrrt duties of the legislature and the responsibilities. In
world and were forced to face lot of hardships. Conflicts arose between the ii*lartion on these organs to undertake the additional
have's and the have-nots, betrveen members of the different economic strata became responsible for the performance of various
this co.rt.*t the executive
like the factory owners and the workers. A realization came about in the welfare activities like establishing schools, hospitals and colleges, construction
minds of the educated people that the unregulated laissez faire policy was of rord" and other infrastructures etc. The executive was required
to perforrn
not conducive to the general well-being of society and required the positive state functions in exclusion of the legislative and the judicial
all the residuary
intervention by the State. In addition, the rise .of the democratic principles functions. In the woids of Professor Wade-
based on adult suffrage created new notions of State responsibility and the
If rhe state is to care for its citizens from the cradle to the grave, to protect the
state representatives were required to uphold the interests of the common to with
environment, to edrrcate them at all stages, provide thern employment,
people in their functioning. When people acquired the right to vote, they
training, houses, medical services, pensions, and, in last resort, food, clothing,
started making the political system respond tb their needs and the politicbl
and shelter, it needs huge administrative apparatus. Relatiwely little can be
parties and .their leaders \r/ere compelled to adopt pro-people.measures and done merely by passing Acts of Parliarnent. There are far too rnany problems
-rnany
ensure the well.being of the citizens. of detail, and far too matters that cannot be decided in advance.2
The 20th century further witnessed the mass destruction 9f human lives
during the two World Wars and also the independence of a large number of
colonized nations of Asia and Africa created a conscious global community 1.2 GROWTH OE EXECUTIVE FUNCTIONS-RESIDUARY
responsible towards the welfare of the people and protection of their rights. FUNCTIONS
The Universal Declaration of Human Rights (UDHR) recognized a set of In the case of In Re: Delhi Laus Act case3 the Supreme Court recognized
civil, political, economic, social and cultural rights as part of core human that the Indian Constitution had broadly identified the separation of functions
rights which are deemd inalienable for the purpose of promoting equality and
betnu.een the three principle organs of the state - legislature, executive and
development. The constitution of vast majority of these states incorporated judiciarl,. These principle organs were required to perforrn their essential
these rights as fundamental .in their governance and essential towards "'functions as part of their constitutional responsibility'
achieving their welfare goals. People expected their state to adopt welfare
measures in the form of education, health, food, employment opportunities under the constitution of India as adopted on the 26th of January' 1950,
etc. Notions of socio-econornic and political justice, rule of law and access the executive goverriment of the Union is vested in the President acting on
to justice became the norms of the da5r The consequence of all these the advice of the Ministers. A Pa,rliament is established to make laws and
actions was the increasing functions of the State. From the goals of minimal a Supreme Court is established with the powers defined in different articles
state intervention during the la'issez faire period to the ever increasing of the Constitution. The executive legislative and judicial functions of the
Government, which have to be discharged, were thus distributed but the
responsibility of the state under the notions of a welfare state, 20rt century
articles giving power to these bodies do not vest the legislative or judicial
witnessed a major transformation in the functioning of the state. powers in these bodies expressly-'
Traditionally there are three principle organs of the state - Legislature,
Executive and Judiciary. These organs are entrusted with the performance of Ro,m Jataaya Kapur a- state of Funjabs is the leading case dealing with
basic functions. The legislature is required to frame the policies and rnake the the scope and extent of a.drninistrative functions in constitutional India. A
legislations for the welfare of the people. The primary task of the executive writ peiition under Article 32 of t]ne constitution was filed challenging the
is to implement and execute the laws whereas the judicial function involves decision and the notifications issued by the Education Department (ED)
interpretation of laws, adjudication of disputes and administration of justice.
The executive function of implernenting the laws made by the legislature has 2. Wade and Forsyth, Administrative Larv, Oxford University Prcss, 10tb Ed. 2009' P- 4'
always been categorised as 'adrninistrative' functions generally.l The increase 3. (1951) SCR 747.
4. Id, Pa.ra 11.
1. Julius Stone, The Trventieth Centurv Administrative Explosion and After, Califomia Larv 5. AIR 1955 SC 549 : (1955) 2 SCR" 225
Review, Vol. 52, No. 3, (Aug., 196a), pp. 513-542, p. 513.

::-,'
of the Punja,b Governrnent as violative of the fundamental right of the
petitioners to carry on their business of printing, publication and sale of
school text books. After 1950 by several resolutions the government had
introduced state monopoly in the publication of text books. The entire act
of publishing, printing and selling of school text books !!-ere monopolized
by the Government and private publishers were ousted from the business.
The petitioners challenged these notifications on three fold ground.s of-
Firstly the concept of modern state function enable the state to undertake
any trade or business related activity, secondly whether the executive can
undertake such activities without any specific legislative sanction, and thirdly
whether the state can deprive the fundamental right of an individual without
authority of law.
The Court defining the functions of a modern welfare state recognized
that the functions of a modern state cannot be confined to mere police
functions like collection of taxes, maintenance of law and order and protection
of the state against external and internal aggression. A modern State i,s
certainly eapected to engage in aII a,ctiuit,ies necessary for the prornot,ion
of the social and econontic tnelfare of the cornmunity. Thus undertaking of
a business or cornrnercial activity by the state was held permissible under
the multiplicity of fundtions which a welfare state is required to perform.
Defining the scope of executive functions and responsibilities in the context
of separation of power doctrine the Court observed-
It may not be possible to frame an exhaustive definition of what executive
function means and implies. Ordinarily the executive power connotes the
residue of governmental functions that remain after legislative and judicial
functions are taken away. The Indi".r__go=$!!g!&t_hgt not indged recognized
,the doctrine of separation of powers in its ab-oiuGTfiidity but the functions
of the different parts or branches of the Government have been sufficiently
differentiated and consequently it can very well be said that our Constitution
does not contemplate assurnption, by one organ or part of the State, of
functions that essentially belong to another. The executive indeed can exercise
the powers of departmental or subordinate legislation when such powers are
delegated to it by the legislature. It can also, when so empowered, exercise
judicial functions in a limited way. The executive Government, however, can
never go against the provisions of the Constitution or of any law. This is clear
from the provisions of Article 154 of the Constitution but, as we have already
stated, it does not follow frorn this that in order to enable the executive to
function there rnust be a law already in existence and that the powers of
executive are limited rnerely to the carrying out of these laws.
Thus the scope of the executive function is described as residuary in
nature. Once the essential functions have been performed by the legislature
and judiciary, the executive can be conferred with the power to make
,
I
Introduaion to Adminisratioe Laztt ."'5 | '
judicial functions in
incidental or subordinate legislations as well as perform
a limited rnanner, but the executive can never act contrary to the provisions
or a statute. Justifying the role of the State Government
of the Constitution
it was emphasized that in o, uritten Constitution like ours the erecutiae
power may be such as is giuen to the erecutiue or 'is itnplied, ancillarg
or inherent. It tnust include all powers that mag be needed to carry out
into effect the airns and objects of the Constituti,on. It nt'ust n1'ean n'Lore
than rnerely erecuting the laws. It was further clarified that an act uould
be within the erecutiae pouer. of the state if it is not an act uthich has
been assigned. by the Constitution of India to other authorities or bodies
and, is not contrary to the prou'isions of any lau and d'oes not encroach
' upon the legal rights of any. rrlen-Lber of the public'"
Differentiating between the Australian constitution and the Indian
Constitution as regards the scope of executive powers' it was highlighted
that the executive power in Australia was limited to the execution and
maintenance of the Constitution and laws of the countryT whereas Articles
73 and 162 of the Indian Constitution dealing with the executive powers
of the union and the States respectively categorically lay down that the
executive power is co-extensive with the powers of the respective legislatures
to.make laws. Hence the executive authority of the Union Government is
in respect of matters enurnerated in List I. of the Seventh Schedule whereas
those of the State Government is restricted to areas specified in List II. It
was further emphasized that it was not riecessary under the provisions for
the legislatures to make prior legislations for the purpose of.t^he Executive
to act in respect of those areas. On the other hand the language of Article
162 of the Ind,ian constitution clearly ind.icates that the pouers of the
State erecut'iae to ertend to rno,tters upon uh'ich the state leg'islature
,i.s competent to legislate and are not confined to rnatters ouer urhich
Ieg,islation has been passed already. The same princi'ple underlies Article
73 of the Indian Constitution.s
Highlighting the important role of the executive in formulating policies
and enacting legislations in a parliamentary form of democracy the Court
observed-
The limits within r*-hich the executive Government can function under the
Indian Constitution can be ascertained without much difficulty by reference to
6. Ibid, Para 13.
?. Australian Constitution Section 61 - The executive power of the Commonwealth is vested
in the Queen a,nd is exercised by the Governor-General as the Queen's representative and
extends to the execution and maintenance of the Constitution and of the laws of the
C,ommonn'ealth-
8. Supra note 5, Para 8.

I
".qf
.6,1,' Textbooh on Administratioe Laut
the form of the executive which our Constitution has set up. Our Constitution,
though federal in its structure, is modelled on the British Parliamentary
system where the executive is deemed to have the primary responsibility for
the formulation of governmental policy and its transmission into law though
the condition precedent to the exercise of this responsibility is its retaining
the confidence of the legislatiwe branch of the State. The executive function
comprises both the determination of the policy as well as carrying it into
execution. This evidently includes the initiation of legislation, the rnaintenance
of order, the promotion of social and economic welfare, the direction of foreign
policy, in fact the carrying on or supervision of the general administration
of the State.
In India, as in England, the executive has to act subject to the control of
the legislature; but in what way is this control exercised by the legislature?
Under Article 53(1) of our Constitution, the executive power of the Union
is vested in the President but under Article 75 there is to be a Council
of Ministers with the Prime N{inister at the head to aid and advise the
President in the exercise of his functions. Tlhg_plgglglq;i has thus been made
a formal or constitutional head of the executive and the real executive powers
are vested in the Ministers or the Cgllnet. fh. 6"-.-pr".'i"ions obtain in
regard to the Go.rernmeff;fTTffi;l-tl; Governor or the Rajpramukh, as
the case may be, occupies the position of the head of the executive in the
State but it is virtually the Council of Ministers in each State that carries
on the executive Government. In the Indian Constitution, therefore, we ha,ve
the same system of parliamentary executive as in England and the Council
of Ministers consisting, as it does, of the members of the legislature is,
....Iike the British Ca.binet, "LhypMhich joins, a buckle which fastens the
legislative part of the State to the executive part"- The Cabinet enjoying, as
it does, a majority in the legislature concentrates in itself the virtual control
of both legislative and executive functions; and as the Ministers constituting
the Cabinet are presumably agreed on fundamentals and act on the principle
of collective responsibility, the most important questions of policy are all
forrnulated by thern.
Thus when the executive government formulates a particular policy in
furtherance of their welfare activities it is not necessary to have a prior
legislation in place. Subsequent parliamentary approval through authorization
of expenditures rvill be deemed sufficlent. However specific legislation rnay
be necessary if the Gouernrnent require certein pouers in addi.tion to uhat
they possess under ordinaru law in ord,er to co,rry on the part'icular trade
or business- For example specific legislation is required if the government
action will give rise to encroachment of private rights. In this case no
fundarnental right of the petitioner to carry on their trade or commerce was
infringed by state action, hence no legislation was necessary. Ram, Jatnaya
Kapoor stands for the recognition of the growing administrative power in
India which is indispensable in fulfilling the goals of a modern welfare state
having multifarious obligations.
. .t .
bodies have been
The Executive body and the various administrative various welfare obligations
.oirrr"t"a with the responsibility of carrying out the
the q'elfare philosophy
ll-ifr":*"*. The Constitution of India has adopted
to attain the goals of
and through its various provisions it has attempted
lJo-."onJ*ic and political justice. Part III of the Constitution
ha's secured
through the various
l'rrrUrrr, liberty, political justice and religious autonomy attain
irirrar*",.trl rights whereas Part IV justicehas directed the State to the
by ensuring that the citizens
;igh", objectives of social and economic
rn'ork, decent standard
have adequate means of livelihood, equal pay for equal
of living, proper nutritional standards, access to social security
and legal aid,
p."t""ti", of environrnent and many such goals. For the purpose of carrying
lrr, tfr"r. a.dditional responsibilities it became necessary to create a 111a11moth
administration involving huge manpowel and financial resources' A large
number of ministerial departments and bureaucratic officers were created to
The Indian Constitution
perform the various state functions and obligations.
has created and recognized, a number of administrative bodies such as
Election commission (Article 324), Public service commission (Article 315),
All India services (Article 312), Finance commission (Article280), Inter-
s*r. w"rur Dispute Authority (Article 262), Inter-state council (Article
263), Administrative Tribunals (Article 323A), National cornmission for
scrreautea castes (Article 338) and National commission for scheduled
Tlibes (Article 33SA). These administrative authorities were granted lot of
discretionary powers to make subordinate rules, decide quasi-judicial issues
and to take administrative actions. In addition, the concept of rninisterial
responsibility backed by huge bureaucracy, laid the foundations for a rnassive
administration. It was realised that mere dependency on the legislature
for making laws on each and every issue or approaching the judiciary for
resolving all disputes arising in the course of implementation of the laws
was detrimental in the running of an efficient administrative systern. Thus
the modern day ad.rninistration became the repository of huge authority
and power.
Power corrupts and, absolute power corrupts absolutely This
observation made by Edward Coke is of profound importance in the grorvth
of administrative law. With the increase in the functions and powers of the
administration it was felt necessary that there should be an adequate check
on the workings of the administration so as to prevent abuse of powers
which will be detrirnental to the welfare of the people. It is essential that
the various administrative bodies should carry out their functions and
responsibilities in accordance with the constitutional goals and provisions'
Adequate control should be exercised over the administration by rneans of
,.1
'.18. " Textbooh on Adrninistratiae Laza ,=

political checks through the Parliament and legal control through the process
of judicial review. Ttre adrninistrative bodies are required to adhere to a po*..". It sets forth the powers that may be exercised by adrnirristrative
set of identified norms and rules in performance of their duties so as to Ig".r.i"", lays down the principles governing the exercise of those powers, and
legal remedies to those aggrieved by administrative action.
prevent abuse of powers. arbitrariness, maladministration, non-performance piovides
of duties and breach of legal rights of the citizens. These norms and rules
This definition divides administrative law into three parts: (1) the powers
. have been developed by the judiciary and are known as the principles of by law
administrative law. vested in adrninistrative agencies; (2) the requirements irnposed
upon the exercise of those powers; and (3) the remedies against unlawful
If discretionary power is to be tolerable, it must be kept under two kinds
of control: political control through the Parliament, and legal control through airninistrative action.lr
Professor I.P. Massey has defined Administrative Law as that "branch
of
the courts. Equally there must be control over the boundaries of legal power, powers of administrative
beyond which there is normally no discretion.e public law which deals with the organisation and
ana q,rusiadministrative agencies and prescribes principles and rules by
which an official action is reached and reviewed in relation to individual
1.4 DEFINING ADMINI.STRATIVE LAW
liberty and freedom".r2 He further describes the four foundational bricks of
Administrative law is a judge-made law and comprises of various principles of administrative law as-
state accountability and good governance q'hich have been developed through 1. Checking abuse or rerouting of administrative power;
different case laws. The essence of administrative law is to ensure that the ' 2. Ensuring citizens an impartial determination of their disputes by
multitude of functions which are performed by the different administrative ' officials;
authorities are in accordance with established legal principles of fairness and 3. Protecting citizens from unauthorised encroachment on their rights
accountability and are within the fold of legality and propriety. Administrative and interests;
law aims to prevent abuse of administrativb pbwers and prescribes for remedial
4. Making those who exercise public power accountable to the people.
measures in case of breach of individual rights, liberties and privileges.
Professor M.P. Jain has described the scope, content and ambit of
In light of the multifarious nature of administrative functions and the Administrative Law as-
constantly evolving norrns of accountability it. has been difflqqlt to lay down
a single comprehensive definition of adrninistrative law. Different scholars Administrative Law deals with the structure' powers and functions of the
have described the nature and scope of adrnirristrative law based on the organs of administration; the limits of their powers; the methods and
procedures
desired objectives. Some of the relevant definitions are- fc;llo*ed by thern in exercising their powers and functions; the rnethods by
Sir Williarn Wade and Professor Christopher Forsyth in their book which their powers are controlled including the legal remedies available to a
person against ttr.* *t." his rights .r. i"ofri.tg.Jby their operation.l3
Adrnini,stratiue Law has defined administrative law as the law relating to
ttne control of goaernmental pouter.lo It is further described as "the primary This statement has four limbs.
purpose of administrative law, therefore, is to keep the powers of government
(a) The first limb deals with the composition and powers of organs of
within their legal bounds, so as to protect the citizen against their abuse....
administration.
It is also the concern of administrative las' to see that public authorities
can be compelled to perform their duties if they make default"- (b) The second l.imb refers to the limits on the powers of administrative
authorities.
Professor Bernard Schwartz has defined the scope of Administrative larn'
in the following words- (c) The third limb refers to the procedures used in exercising those
powers.
Administrative law is that branch of the law that controls the administrative (d) The fourth limb refers to the control of the Administration through
operations of government. Its primary purpose is to keep governmental powers judicial and other means.

9. Wade and Forslth, Administrative Law, Oxford University Press, 10tr'Ed. 2009 1l- B*"-d S.h-'".trJdministrative Law, Aspen Publishers, 3'd Ed' 1991'
ro. Id. 12- IP Massey, Administrative Law' Eastern Book Company, 8"" Ed' 2012'
fg. I\.Ip Jain & SN Jain, Principles of Administrative Law, LexisNexis, 6ih Ed. 2013'
.l
I fO Textbooh on Administratiae L4@
An analysis of these various descriptions of administrative law clearly
indicates that the primary objective is to ensure that the powers of the
government are exercised in accordance with constitutional and legal principles
so that certain lirnitations can be imposed on their functions for the purpose
of preventing unfettered or arbitrary exercise of pow-ers and ensuring that
the rights of the citizens are protected from unauthorize.d administrative
encroachment. Thus administrative law can be described as a body of
principles dealing with the manner of exercise of governrnental powers ald
duties and protecting citizen's rights.
1.5 LINKING THE PRINCIPLES OF ADMINISTRATIVE LAW TO
THE CONCEPT OF GOOD GOVERNANCE
The ernergence of Administrative law as a branch of public law was a
phenomenon of the early 20th century. The essential norms of administrative
law impose a negative obligation on the power of the various administrative
authorities requiring that in the course of their functioning they should not
rnisuse or abuse their powers and violate the rights of the common people.
It fundamentally deals with limiting and regulating the powers of the
administrative authorities. This theoretical understanding of .administrative
Iaw did not impose any positive obligation on the state authorities to ensure
that the working of the administration is towards achieving the welfare of
the people. The goals of proper and effective governance were not reflected in
the definitional scope of administrative law. The modern day understanding of
the principles of good governance attempts to bridge that gap and introduces
a positive obligation on the administration.
Santosh Hegde J. had recently observed that Good gouernarr.ce 'is our
fund,amental rightra but the origin of the notions of good governance can
be traced to ancient Indian literature. The popular ancient Indian text of
Kautilya's Arthashast"ols had ernphasized that the traits of a king of a well
governed State have been described as - "irl the happ'iness of his subjects
l'ies his happiness, i,n thei,r welfare his welfare, uhateuer pleases h'imself, he
does not consider o,s good, but uhateaer pleases his subjects he considers
as good" - The concept of good governance in ancient rndian implied that the
immense power given to the king should be used for the common interest
and welfare of the people- Kautilya's perception of the state was similar to
a modern welfare state wherein the primary duty of the king was to protect
his vulnerable and weak subjects like children, old people, women, disabled
14. Santosh Hegde delivered the 12"nNani Palkhivala'Memorial Lecture on the topic'Is Good
Governance a Right of a Citizen in Democracy', The Hindu, September 3, 2O1S.
15. Arthashastra-TYeatise on the art of Government and Administration.
_,
justice.
ma,intain la,w and order as well as ensure proper adrninistration of
in the ancient Indian system the bureaucratic accountability was considered
an essential part of good governance and it was the responsibility of the
chief officer of ea,ch state department to look after the performance of each
person under their charge'
In modern day the goal of administration is to ensure ffLore goaernarlce
and, Iess gouernrnenl by adhering to the norms of good governance. It is
part of the present day demand that to bring in reforrns in the traditional
administrative structure and replacing the mammoth adrninistrative structure
of the last century with a lean but robust administration which will function
on t|e ideals of good governance. The international comrnunity, under the
auspices of the United Nations has taken a lead in promoting the goals
of lood governance as a mechanism to ensure the existence of stable,
transparent and efficient state functioning'
The term ,good. governance' assumed significance when the u/olld ,
Bank _and the Internationa.l Monetary Fund as part of their structural
ad]-ustment policy il"a. "afterence to the principles of good' governance
as a condition for providing financial aid to nations. The underlying
rationale is that the applicability of good governance principles can help
to combat corruption, nepotism, bureaucracy, mismanagement by means of
transparency, accountability and proper procedules. The UN Economic and
Social Commission for Asia. and-lbe--qgcific in their leadin[@-What is
Go eharacteristics of good governance'
These characteristics are - (i) Participatory, (ii) Consensus oriented, (iii)
Accountable, (iv) Transparent, (v) Responsive. (vi) Effective and Efficient,
(vii) trquitable and Incllsive, and (viii) Rule of Larv. The objective behind
application of these principles in the day to day governance is to make
running of administration more democratic and accountable' and ensure
the participation of the common people in the task policy formulation. In
addition it is expected to minimize corruption and ensure inclusion of the
minorities and the vulnerable sections into the decision making process and
consequently rnake the administration more responsive to the present and
future needs of the society.
The term ,governance' refers to the process of decision-rnaking and,-_the
process by uhich d,ecis'ions are in-Lplemented, (or not implem,ented,).r7 It
lncludes both formal and informal actors who are involved in the decision
16. S.S. Ali, Kautilya and the Concept of Good Governance, The Indian Journal of Political
Science, Vol. 67, No. 2 (Apr - June, 2006), pp- 375 - 38O.
LV UN Economic and Social Commission for Asia and thc Pacific, What is Good Gouent'ance?
\-/ at http: / /wwv. unescap.org/sites/default/fi les/good-governance. pdf.
 T
I ' Introduction to Adminisrative Laut 13 |
;:f 12r Textbooh on Administrdtiae Luzt)
-

making process as well as in the implementation of the decisions made and
the different formal and inforrnal structures which have been created to arrive
at and implement the decision.r8 In present day governance, the government
is an important functionary along with other institutions and actors like
media, lobbyists, international donors, multi-national corporations, financial
institutions, political parties, research institutes, religious and caste leaders,
NGOs etc. who play significant role in the decision-making process or in
influencing such processes. In addition to formal, process of policy making
through the Parliament, in every modern society these actors participates
and acts as advisors through informal processes. In such environment there
is every possibility that government policy making will lack transparency
and public welfare objective, and be vitiated by the motives of the several
interest groups, including corrupt objectives.
In addition, there are traditional barriers to the emergence of Good
Governance in society. The rigid structure of bureaucracy and the attitudinal
problems of civil servants often act as impregnable to all reform measures. The
Second Administrative Reforrns Commission has described the bureaucracy
as roooden, inflerible, self-perpetuating and inward, looking. Rigid and
formalistic procedural rules create obstacles for citizens' to access goverument
institutions and thereby promoting corruption and red tapism. Lack of
adequate administrative grievance redressal system poses serious difficulty in
implementation of citizens' rights and timely enforcement of essential service.
All these factors act as barriers in creating a citizen-centric and accountable
administration. In these circumstances compliance with the principles of good
governance becomes essential in creating an accountable, corruption-free,
participatory and citizen-centric administration.
1.6 CHARACTERISTIC FEATURE OF THE EIGHT PRINCIPLES
OF GOOD GOVERNANCE ACCORDING TO THE UNITED
NATIONSl9
1. Participation
(a) Both men and worren should participate.
(b) Pirticipation can be direct or indirectly through legitimate
intermediate institutions or representatives.
(c) Concerns of the vulnerable sections of the society should be taken
into consideration.
(d) Freedom ofspeech and expression and the right to form organizations
and associations should be respected.
2. TransParencY
(a) Decisions and their enforcements should be in accordance with rules
and regula,tions'
(b) Information should be freely available and directly a.ccessible by
all those *'ho are likely to be affected by it'
(.) Information should be provided in easily understandable forrns.
3. Rule of Law
(a) Governance should be prescribed within a fair legal framework
which is enforced imPartiallY.
(b) Protection of the human rights as well as the rights of the
minorities.
(c) Enforcement of laws through independent judiciary and an impartial
and incorruPtible Police force.
4. ResPonsiveness
(a) Decisions and their implementations should be within a reasonable
framework.
5. Consensus oriented
(a) Mediation between the different interest groups in society should be
undertaken to reach a brciad consensus about 'what is in the bes{
interest of the whole community and how this can be achieved.'.
(b) Identification of broad and long-term goals based on principles of
sustainable human develoPment.
(c) Preparing a proper plan of action for achieving the goals of such
develoPment-
6. Equity and Inclusiveness
(a) members of the society should feel that they have a stake in
All
the develoPmental Process-
(b) No member or community should be excluded from the mainstream
of society.
(c) Adequate opportunities for all sections of the society, including
the most vulnerable sections to improve and maintain their well-
being.
7. Effectiveness and EfficiencY
(a) The state activities should work towards meeting the needs of the
society by making the best use of resources at their disposal.
(b) The concept of efficiency refers to sustainable use of natural
resources and the protection of the environment-

18. Supra note 17.

19. Id.
 I Introduaion to Adminisratioe Lazu
'-l 14 Textbooh on Adninistratiae Laut

(iii) Equitv demanding

8. Accountability and (iv) "*,?,t1,::Yt:,":*'jJt:1i":$:;\1'il"rt::},I
":1T:,1:. Efficiency by speedy and effective delivery

All formal and inforrnal state actors like governmental institutions, * :^ffiil o"" of Informa,tion and Communication Technologies'
private sectors, civil society groups must be accountable to thet *;- AR(l was set up with the
a^^^-,t ARC mandate to revamtr
th.e mandate,1,1""1il-,:1t',lt:::
pubfic and to their institutionsl stakeholdeN. fn" S""orra
i,,t" e,"".t;"", responsioe, occountable, sustai.nable and
Accourtabirity of aD orsanization or en institution
(c) Accoutrtabirity sbould "r:fi,;,;;;
b€ T#H;-"ii^t"t
tr;i';;;;;;;,*i" " in Jor
h, tne cointry at a teaek ol
tn" countru oJ sooernnent
sooernnent .rtrt
towar& thos; menber" oitl" *r'" de likely to u :o:;;r#;";; ;
ft{"iffiri["li.--.. "t cJnstitutional
coD.6titutional and administrative
€dministratil€ law p
principles
nciples ior
for
"n*t"a {I'
by their decisions and actions."o"i"ty making governance citizen-centric-
(d) Accountability is interlinked with transparency. ard the rule of 6) Conrpli"o* with Rule of Law
law. ,i,i ,"oi* sovemment institutions vibra.Et, responsive and accountablc
The notior of sood governa&e is d ideal {hich. iE r€ry difficult t " t"-n"ar citizeD needs
achieve in t tality by a nation. Very fw stat€s in the world have come to n-.-r'-tizarion of g(N€rnment selucg
sow€rnment se!
close adoptina and a-dapting their mode of governance in accords.nce vith ^.:\ D€centralization
Oii)
th€ core pri;ipbs or eooa sw€rna-c€ but €fft,rts should be every coutry G9 Transparetrcv
io work ;wands a"hie;ins the chalacter of a model state by restructuins (v) civil sqvi:es Reforlns
thek admidsira.tioh ba.sed on the above specified principles. (vi) Ethics in Covqnance
(vii) Process Reforms
1.7 EMERGENCE OF CITIZEN.CENTRIC ADMINISTRATION of the quality of Governance
lvlii Periodic and independent evaluation necessary for
On a day to day basis a citizen is less concerned with politics and governance The ARc has further laid. down the. essential pre-requisites
garb of good governance
of the state. The'prirnary involvement of the citizens with the state happens achieving cTtizen centric administration within the
a.s-
in relation timely access to various government services such as passport,
LPG connection, rati,on card, land documents, proper medical services etc. (a) Sound legal frarnework
But unfortunately in traditional' administrative and. governance studies (b)Robustinstitutionalmechanismforproperimplementationoflawsand
citizens have conferred a very marginal and minimal role. Modern studies their effective functioning'
have tried to confer a more prominent role to citizens because of the conscious (c)Competentpersonnelstaffingtheseinstitutions;andsoundpersonnel
realization that the ultimate beneficiary of all state activities is the citizen. . management Policies
Hence the recent concept of citizen-centric administration demands that (d) Right policies for decentralization, delegation and accountability'
modern administration should place citizens at the center of all administrative
functions. Thus the primary objective of principles of good governance is to CONCLUSION
promote citizen centric administration through the principles of transparency'
efficiency, equity and stability. The fundamental goal of a constitutionally The principles of Administrative Law, Good Governance and citizen-centric
administration are inter-connected and intertwined with each
other because
governed state is to promote the welfare of all its citizens and the Indian wherein the
of their common objective of creating an accountable state
Constitution has tried to promote socio-economic and political justice for through
rights and liberties Jf .o*-o., people are protected and enforced
all the citizens. structured legal process'
recognized legal institutions by identified and
According to Second Administrative Reforms Commission (ARC) the
concepts of good gouernance o,nd citi'zen centric administration are
'i,ntimatelg connected. The four pillars of the concept of good governance
are striving to achieve a pro-people model of governance through the values
of - (i) Ethos implying service to the citizen; (ii) Ethics referring to character
goals of administrative officers towards honesty integrity and transparency;
 Constitutional Foundations
of Administrative Larv

2.1 INTRODUCTION
The constitution is the grundnorm of India. It desgribes the primary
organs of the State - Legislature, Executive and Judiciary a'd lays
down
their structure, compositio-n, powers, functions and responsibilities and also
describes the inter-relationship between thcse core organs. It highlights
the relationship and responsibilities betrveen the state and the citizens
by prescribing the different fundamental riglrts, duties arrd the directive
principles of state policy. The Constitution describes fundarnental norms for
the functioning of state based institutions on the defined aspirations of the
 r
,^,t.,
I f8 Textbook on Administratioe Laut C on s tit utional F o undattons A d.rn in i s tratia e L azt;

people. It also deals with other issues like the federal structure of the state, 2.3 RULE OF LAW
liability of the state, conduct of elections etc. In addition, the concept of principles of constitutional law and is
constitutional law includes various principles like rule of law, separation of Rule of Law is one of the cardinal
io U" a foundational
power, independence of the judiciary and judicial review, essential functions il;J -orir"tof" stone for the growth of administrative la'w'
implies that law is the foundation of a civilized society and
theory and basic structure doctrine. i"i.
Lrr"t b" done in accordance rvith lan'. It irnplies that the law is
2.2 LINKING CONSTITUTIONAL LAW AND ADMINISTRATIVE LAW ""l,"'"* supreme.Eaeryone,uhetherind'iuid,ualorcollectiuely,isunquestionablg
he rnay be' houeuer hig-h he i"',hg
under the suprernacg of lau' Wh'oeaer
Administrative law is an offshoot of constitutional law and is a branch of ir",*a", the lau. Ni rnatter how pouerful he is and hou rich he rnay be."
public law. It deals with the executive wing of the state and is involved ifr" lo...ot of Rule of Law is not of recent origin and was in application
with the conduct and performance of the core functions of execution fromtimeimrnemorial'Inancientlnd'ia'tlrengli-onofDhartnowasbased
and implementation of legislations and legislative policies, and conducting on the concept of abidance to one's own duty. T]he terfrzffiThas been
and governing the administration. Administrative law does not deal with unrlerstood as law based duly which intrinsically refers to one's expected
the organizational structure and functional description of the various outigation and responsibility tgwards the members of the society' The dharma
administrative departments of the state. The core purpose of the law is to of a ruler was to protect the weak and ensure peace and prosperity in society'
describe the nature of the administrative functions, manner of performance AristotleinBooklVofhisfu]iticshadrecognizedlawasthefoundationof
of these functions by the administrative officers and to prescribe the society. +- t aw rs a oody of ,rrffihich are to be followed by every
member
official duties, magistrates and .other
procedures of administrative accountability so a.s to prevent arbitrariness of the society. In periormance of their with law.
and maladministration. The fundamental principles of administrative law officers in ancient Greece were required to act in accorda,nce Sir
originator of the concept had asserted that
is derived from different constitutional law principles such as rule of law, C"X", ,|".,-odurn day
separation of power; sovereignty of the Constitution, independence of the -pJ*"ta thesupremacyotf,nelawshould.prevailovertheExecutive_Kingisunder
judiciary, protection of the fundamental rights of the citizens etc. The no *i,n, but und'er God' and' the law' In Latin the principle is described as
power of judicial review of administrative actions is also derived from the quod, rer non d'ebet esse sub homine, sed' sub deo
et lege-'3
Constitutiotr.r It is the responsibility of the judiciary to ensure that the Discussing on the meaning of the term 'rule of law' lt"e*:-, C""ttt"tt
administration complies with constitutional norms and do not encroach upon has differeniiated between various phrases of 'a rule of law', 'the rule ot'.
the rights of the people. With the growing involvernent of the administration Iaw'. 'rule by law', 'rule under lawi and ''ul"-fla*''4
The phrase a rule
in majority of the state activities, it has been deemed necessary to study oi fr* ,.f;; ,"- anf-rule oT .otrd,r"t which is binding on the citizens or on
the functioning of the administration through the independent branch of the public officials. Even in a tyrannical society citizens would be subjected
to and regulated through la*s. unlike the phrase 'the rule of law'
study of adrninistrative law. which
The objective of various constitutional law principles like rule of law, governs and lirnits the f,owers and actions of aII public officials, there is-no
separation of powers, judicial review etc. is to establish a responsible and inherent limit to the ptwer of the ruling class by the interpretation of 'a
accountable administrative machinery in the governance of the state. Similarly rule of law'. Similarly differentiating between 'rule by law' and 'rule under
Iaw,, the former is particularly applicable in a totalita,rian state
the aim and objective of Administrative Law is to control governmental wherein
power and prevent all forms of maladministration. Historically the principles Iaws are used as an instrurnent for enforcing tyrannical rule and curbing
of Rule oT Law and Separation of Powers were deemed detrimental to the individual rights and freedoms through rule by law whereas the concept
bound by
growth of Adrninistrative Law, but subsequently these constitutional principles of rule under law emphasises that public officials are themselves
became the foundations for the growth of administrative law in the common laws.Theprincipleof.',leoflawappliestheconceptofruleunderthelaw
law countries. Today most administrative law principles developed by the which is the essential foundation of li'berty'
judiciary are premised on the doctrine of rule of law and other constitutional
law principles. u' Ashok Khot (2006) 5 SCC 1'
3. As quoted in T.N. Cod'auannan Thiru'mulpad' u' Ashok Khot (2006) 5 SCC 1'
4- Arthur L. Goodhart, The Rule of Law and Absolute Sovereignty, rJniversity of Pennsylvania
1. Articles 32 and 226 of t}re Indian Constitution
Law Review, Vol. 1O6' No' 7, (Mav' 1958), pp 94+963'
,t..--- nstit ut ional Fo un dations Adtn in i s tra t ir.t e Lattt
.l20 Textbook on Adtrzinistratiae Latn
C o

Eminent British jurist and constitutional law theorist, Professor AV. Dicey DrovisionsoftheStatuteconferringthediscretion,constitutiorralprovisions
'highlighted the importance of Rule of Law-
"odoo.*"offa,irprocedure.Theexecutiveisa,ccounta,bletothePa,rliarnent
foritsactionandis-alsosubjecttojudicialreview.Thejudiciaryhasalso
powers such as upholding
When we speak of the rule of law as a characteristic of our country, not only
il*J; n=nb3r of checks o' the exercise of their
that s'ith us no man is above the larr but that everv man. whatever be his values' deciding disputes i1 accordance with the
rank or condition, is subject to the ordinary law of the realm and amenable constitutional prrncrples and adhering to established precedents,
;;;;; a validly enacted statute-,
to the jurisdiction of the ordinary tribunals. In Eugland the idea of legal "fwith the norms of procedural fairness and exercising judicial
equality, or the universal subjection of all classes to one law administered by ;;;;tt
the ordinary courts, has been pushed to its utmost limit. \A/ith us every official, l-i".tutiott ra'tionally and wisely'
from Prime N{inister down to a constable or a colleitor of taxes, is under the
same responsibility for every act done with legal justification as any other 2.3.2 DiceY on Rule of Law
citizen. The reports abound with cases in which officials have been brought doctrirre of rule of law based orr the following
before the courts, and made, in their personal capacity, liable to punishment, Prof. Dicey conceptua,lized the
or to the payment of darnages, for acts done in their official character but in three ProPosltrons-
hands of the governmental
excess of their lawful authority. A colonial Governor, a Secretary of State, a (i) Absence of discretionary power in the
military officer, and aII subordinates, though carrying out the commands of officials;
their official superiors, are as responsible for any act which the law does not (ii)Nopersonshouldbemadetosufferinbodyordeprivedofhisproperty
authorise as is a private and unofficial person.5 '--' for a breach of law established in the ordinary lega.I manner
"*""pa
before the ordinary courts of the land;
2.3.1 and traditions of
Conceptualization of Rule of Law (iii) The rights of the people must flow from the custorns of justice.
the people .."ogrrir"d by the courts in the administration
Justice O*""_n"b.rts speaking on the issue of The Rule of La.ra in the L
the political experiences
International Cominunity had emphasised that the idea of rule of law was r. Dicey had advocated these propositions based on m'. In
a feature of the 'highly civilized nations' characterized by first a countrg i. itr n.tgia-ra nufe of f"* f" tftt fo"na bodv and enjoys absolute
that has a representatiue .fornl of gouernrnent; second, a country where ,: ,"rr"io the pillir.merrtG-i[e highest raw-making
parliament and there was no inherent
indiuidual li.bertg ind freedorn are protected, by law; and third uhere there sorlreignty. AII laws were createJ by
limitation to the law-rnaking power of the Parliament' AII executive powers
are bounds aA@6 what the' joiernment can d,o to an ind,iai.d.ual.
Of these three cf,Gacteristics it is the last one which is considered as most *.."r.qrrl.edtobeexercised'inaccordancewithlawsoftheParliament'
essential for the application of rule of law and the other two conditions Tlreadministrativeofficers\^,ererequiredtoactinaccordancewiththeand fancies' There
facilitate in its irnplementation. In the words of Goodhart "These bounds Parliamentary laws and not act on their individual whirns
should be unanimity in the application of' the Iaws so that every citizen
and lim'its are ntarked by the control tohi,ch is ererc'ised ouer the public set of laws' Individual
officers of the Statd by rneans of laut- It is this uhich consti.tutes the of the country are equally got"t""a by the same officers wo*ld
interpretation i' the applicatfn of the laws by ad'rinistratiwe
rule of la,u or to use a rnore accurate phrase, goaernffLent under Iaw...A of being governed by the laws of the
consti,tuti.on rrlay conta,in a nt.ost elaborate bill of ri,ghts, but if its terrns gi.re ii". to unpreclictu.LiUty and instead
Parliament, citizens *o,rld be governed by laws as interpreted by individual
can be di,sre.garded at uill by the publi.c officers then these proaisions will power in the
be of little effect"-G Accordingly every organ of the State is required to abide officers. Hence Dicey advocated for absence of discretionary
by rule of law by imposing or adhering to certain checks and limits. The harrds of the governmental officers'
under the common law system the rights and liabilities of the citizens
are
legislative power is often regulated by the procedural norms of rule-making
as u'ell as the substantive provisions of the Constitution. The executive power createdbythelawsmadeuytt'.legisla,ture,implementedbytheadministeredis
There
is restricted to the implementation of the laws made by the Parliament. The officers and are determined by the judiciary in case of disputes'
exercise of discretionary power by the adrninistrative officers is bound by the onlyonesinglehierarchyofcourtsinEnglandwhichinterpretsthelawsand
including administrative issues. Allas \\"ell citizens
"#;;;; all disputes,
determines
;f;;' ttuore to be t'jed--bvjhe;ainaD''"Y1!"
5. A.V. Dicey, Introduction to the Study of the Las' of the Constitution, !0"' Ed. 1965. "; BffiJ . "'i-"*"ti-
r:-^-:-:-^+:^- the ground
on +L'o o*^rr-rl nf being a
of treing public
a oUbliC
6. Supra note 4 at p. 946. th"r. i" "" AC.tt -*L""tion
^-
 !
Con'nturiowt Fot datiog of Adfli,irfudnee Laa D51r :
official. Hence Dicey had dsued that under the dotions of rule of law all
p€opre shourd be sovened by same set of laws and shourd be subject ,i ffs*":'"1'lT:::it:T"Ti5,j:*Tf#"il*#":'"#,trf*:
the same lega.l gociedues. public 6tem .nd
; hi8hty (Erlali,rd adminisrration, ocupies a pl,e in tbevhich
Io the a.bsence of a Mitr4 constitution in Englard, Dicey h€.d agu€d c.dfida@ of the Ft@ch which ir hiSher e€ the thrt the supMe
thd.t the sour-ce of rights und€r the collmon tav s.as from the customs and il-t, or .L United Stat6 enjovs arldg tbe AIlEi@! peple.3
traditions existina in $ciety. He believed that if the source of legal rights
and liberries or rhe citizens w€re the mitten text of rhe constirution, then Dicev had aTu:d
tltat in @ftmdistinction to t'he politic€l scerario of
by simply anendire the constitution ;;f;;Lil;'iil;;';; France, the Enslish lesal svstem was based on tne norion or Pa'rliamentarv
b€ curtailed or restricted. It is the faith and belief of the peopte atore with iovereknty wheleir
th' la'wE msde bv the Parlia'mat wer€ supr€De alrd
the inherent vs.,ues iD soci€tv *n'* *-.:,T^"::T:t .r,.& "g-,"". *'" ;'ff:f:T1AH:i'*"#;"**H3.11,*"'*,*,ffi*fi:,i1t"3#;
form of abus€ exdcis€ of e'ecutive powers
hsve crftici6ed this 6i.gular focus of Dicey oa tlr€ Srourd. tllat the exercis€
Dicey's concept of Rule of Laq, ha.6 been a,subject
"{ e.n """tfi".Td .?ar.-..i"."o o"* by the administrativesrate authorities ha<i b€come a r€ality
criticisru. The principle point or criticism-was IiX.lil-":':]li i" e,*r",,a with the erowina expansion or acrivitieE. Lesislatioff orten
:-h":_F'-"-"-t:_1^
ffi#*"ytT"S$"i.'1"#"ffT::"",ff-*&-'"*i:qi1F,
t di6tinsdEh the EEslish coilnou l.ay
"v"h T-
oth:: lecal iffit m#,":,1*,.*:_i*"hffifr ?"""Lr#ffiT",*":" "ffT
tribuDa.ts like poor Law Boards w€re alleady in €xist€rce in
partrcurarrv rrom the droit adminbtrati! 3wTii1.ll15,-Y"il1 t:'"fr"*:, ;d,*;,".
l€8al s]€tem natters €latins to state, and *T*:i::- Iifll u"a""u reruriDs his second prcposition. His tbid proio€ition wss based
nittetr constitutiod.
Enslard tho6e coultrie. h.avins
dealt by sp€cific adninistrati!€ tdbunals^known*as tribuflal,*, :3L1l* i""abtiqe"i"ht.s frorD
ddminntratit ui"otJ in Mitten a depotic
i" Ua tU.t- courrlies having e. Constitution,
#1y"*,#tr;rrY!:f::!,T"Y.*I#Y*i;i"#T""Tr.*i l*:*;"*;ru*:T":ili":i,###*"'"i"il'",tr"hfaq::
atuassremainseparatehomdttmin*!,":,:,1"":lt:!:.,r"!!,*.:il-!::?::: d the citiiens are nor bs.6ed on a Eitten t€xt bur flow' rrcm
gttiltg of misprisiol i! thes iftterlere iL-any.maaner rtith .the actiuities ir.,,eh."
.
oJ adrninhtrctiae bodies or summo4-b,4::'_:y:_!: *^Ti::::"::::^^t2 gromd
in" .*ro,* alrd ttadiiiorc_ I,rris proposition ha.s b€en criricis€d or the
or rusubstarrtiated Fesumptions.becau€e trc comE'"n uld€rstandiDa
account oJ o,cts dofle in the course o! the perJormance o! Iheir dutiee-.' Lr*e rrarione has been tha.t a Mitten corEtitution nfth sp€cified
-.d* cftiz.€ns
aii"f"LiLil1ff"i1-{ffi;,s"i*l*ll;;#H#}jT"Ji "i*dor tu Fovides better protection asa.inst state abuses. As a
d,Et,,t was coDstituted * n,"'*?'fi".iT'""1i1,i"ff.*-'",#fi:':';g;;;;',";Yl"fffJ"il"?ffJ5"T"rffi":',ff#1i',."." "j
'n" ir'* d'" "i-
;::%;::J*?",":"ftr$,"":ffi,.*."ff',";Ti.g3'filX";13*'l; *r,ra"-" it ne€ds to be a-,<nowredspd or the com'on raw

droit ad,,ninistro.tir''s,s been rarse,v

"ffiff#ii,'i.""*;#:n-'#1ilIn rtr;""'*s":li%ffiL:;l;
for creating a very libers,l and pmgressirc system of admiristrative law.
li"'""Ltrff'.f:'fffJ#fffy,,r
of the citizena against executive infriuSemdt. Il1 cottDon Lw countri$ the
the words of P*lj-y* pdnciptre of rure of raw h.as been instrumdtal iE neeatias admiDistratii€
n (s t'd be €i.r without pcsibiuty or cmtBdictio! that th@ is no judicial -'d- q"T"ltF.:h: T]Y-ol* of accoudabilitv bv rD€ans of
gther count"y where th" .igtrt" pri""t" i.al als r.e so *lif-Fi6l6Eied :TI:T'"T
review of adrninistrative actions-
arbitrariness, the abuses "f
and the illeeal conduct of the administrative
a.'lFritiesandwhereth"y".rinjuries2.3.3SupremeCourtof|ndiaandRuleofLaw
:SffiH"ffi"H:T"m ff**;'l**i*"tr*"'f
""H'i3?il:il:T hT*"i*H*":,::ti#'""::T,"-*,""J#"H :;55tr1lil":ff
7. Justice David Annoussamy, FYench Legal Sfstem, Dr. Ambedkar Government Law College
& NLSIU Bangalore, 2"d Ed., 2011. 8. James W. Garner, French Administrative Larv, The Yale Law Journal, Vol. 33, No. 6'
(Apr., 1924), pp 597-627,599-

Textbooh on Administratiee Lazn
a. It is considered to be the foundational stone for creating an accountable
responsible administration. The Supreme Court of India has recognized
principle as part of the basic structure doctrine of the Constitution. The
of law constitutes the core of our Consti,tut'ion and it 'is the esserLce
he rule of tato that the ererc'ise of the power by the State uhether
e the Legislature or the Executiue or any other authority should be
r.in the constitutional I'irni.tations.e In numerous landmark judgments it
defined and described the changing dimensions of rule of law, including
nultiple facets.
{ Bachan Singh u. State of Punioblo the jurisprudence of rule of law
analysed.by the Supreme Court-
f]he rule of law perrneates the ent fabric tution and indeed
therever we find arbitrariness or unreasonableness there is denial of the
ule of la{v. That is why Aristotle preferred a government of laws rather
han of men.. "La,w" in the context of the rule of law, does not rnean any
rw enacted by the legislative authority, howsoever arbitrary or despotic it
ray be. Otherwise even under a dictatorship it would be possible to say
hat there is rule of law, because every law made by the dictator howsoever
.rbitrary and unrea,sonable has to be obeyed and every action has to be taken
n conforrnity with such law. In such a case even where the political set up
; dictatorial, it is law that governs the relationship between men and men
,nd between men and the State. But still it is not rule of Iaw as understood
n modern jurisprudence, because in jurisprudential terrns, the law itself in
uch a case being an emanation from the absolute will of the dictator it is
n effect and.substance the rule of man and not of law which prevails in
uch a situatior. &"lAnecessary eleruerrLof-.tbte--rule.Sf -law is that the
aw must not be arbitr3gy_-og_llgational-a-nd it rnust satisfy the test of reason
thA-aemocr"tfEim of politv seeks to eosure this element by making
accountable to the people- Of course, in a country like
.he United Kingdorn, where there is no written constitution irnposing fetters
>n legislative power and providing for judicial review of legislation, it may be
lifficult to hold a law to be invalid on the ground that it is arbitrary and
rrationa,l and hence violative of an essential element of the rule of law and
;he only remedy if at all would be an appeal to the electorate at the time
i/hen a fresh mandate is sought at the election. But the situation is totally
lifferent in a country like India which has a written Constitution enacting
lundamental rights and conferring power on the courts to enforce them not only
tgainst the executive but also against the legislature- The fundamental rights
'5.P. Gupta a. [Jnion of Ind'ia MANU/SC/OO80/1981-
--
(1982) 3 SCC 24: AIR 1982 SC 1325.
- I
Constitutional Foundations of Administratizte Laztt 25
|
erect a protective arnrour for the individual against arbitrary or rrnreasonablc
executive or legislativc action.ll
12
In the case of the Court highlighted
that the ConstitutFi-6T-India is the basic law of the land and the rule of
law flows frorn the Constitution. In the recent judgment of National Leqal
,6uic"" Authoritg u. (Jnion of Ind,ioi3 the Supreme Court while upholding
v"'--______-___--_-
the iFT of tfie transgender community to seek gender identity alternate to
the one assigned at the time of birth recognised it as a hurnan right and
necessary for protection under the rule of law. Rule of law is an important
and pillar of the Indian Constitution and aims to fulfil the goals of social
justice through public order. The Court recognizing the substantiue rule of
lau.r observed that-
It is ttre rule of proper law, which balances the needs of society and the
individual. This is the rule of law that strikes a balance between society's
need for political independence, social equality. economic development, and
internal order, on the one hand, and the needs of the individual, his personal
liberty, and his human dignity on the other. It is the duty of the court to
protect this rich concept of the rule of law'
h€C W"an-" St"t" n the constitutional question before the
S,rpr...r6tffi*r" ".*h.ther"f.Governor under Article 213 of the Constitution
had the power to re-prornulgate ordinances from time to tirne without getting
them reflaced by Acts of the Legislature. Negating the act of the Governor
the Court held that the power under Article 213 has been conferred for
the purpose of enabling the Governor to take immediate action at a time
when the legislative assembly was not in session and not for the purpose
of re-promulgating ordinances for an indefinite period of tirne and thereby
take over to himself the power of the legislature to legislate. Upholding
t/ne locus stand,i of the petitioner in fiIing the PIL under Article 32 the
Court observed that ",it ,is a right of eaery citizen to in s'ist that he should
be gouerned by lo,us rnad,e in o,ccordance uith the constitution and not
laus ma4e by the erecut,iae in aiolation of the constitutional prouisions"-
Emphasising the relevant importance of determining the scope and lirnits
of the po!\'er of the Governor to re-promulgate ordinances in chartering out
the extent of Executive power the Court observed-
11- Ibid, Para 10.
12. ArR
1976 SC 1207
13..(?913) 3 scs 43&
14. AIR 1987 SC 579.
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The power conferred on the Governor to issue Ordinances is in the nature of
an ernergency power which is vested in the Governor for taking immediate
actioi-TEere-SffiEEtiou may become necessary at a time when the Legislature
is not in Session. The primary law making authority under the Constitution
is thd Legislature and not the Executive but it is possible that t'hen the
Legislature is not in Session circumstances may arise which render it necessary
to take immediate action and in such a case in order that public interest
may not suffer by reason of the inability of the Legislature to make law to
deal with the emergent situation, the Governor is vested with the power to
promulgate Ordinances. But every Ordinance promulgated by the Governor'
must be placed before the Legislature and it would cease to operate at the
effiation of six weeks from the reassembly of the Legislature or if before
the expiration of that period a resolution disapproving it is passed by the
Legislative Assembly and agreed to by the Legislative Council, if any. .--.
The Executive cannot by taking resort to an emergency poe;er exercisable
by it only when the Legislature is not in Session, take over the law-making
function of the Legislature. That would be clearly sub1g5l4g;Jb9.-dgrnocratic
plggggq_lghlqh liesat the cole for then the people
made by the Legislature as provided in the
Constitution but by laws made by the Executive. The Government cannot
by-pass the Legislature and without enacting the provisions of the Ordinance
into an Act of the Legislature, re-promulgate the Ordinance as soon as the
Legislature is prorogued. Of course, there may be a situation wheie it may
not be possible for the Government to introduce and push through in the
Legislature a Bill containing the same provisions as in the Ordinance, because
the Legislature may have too much legislative business in a particular Session
or the time at the disposal of the Legislature in a particular Session may be
short, and in that event, the Governor may legitimately find that it is necessary
to re-promulgate the Ordinance. Where such is the case, re-promulgation
of the Ordinance may not be open to attack. But otherwise, it n'ould be
a colourable exercise of tinue an
Ordinance with o"L'stantia,llv the same orovisions bevond the period limited
by the Constitution, by adopting the methodology of re-promulgation. It is
settled law that a constitutional authority cannot do indirectly what it is not
perrnitted to do directly. If there is a constitutional provision inhibiting the
constitutional authority from doing an Act, such provision cannot be allowed
to be defeated by adoption of any subterfuge- That would be clearly a fraud
on the constitutional provision.
,.
In this case the Court applied the rule K U* test to invalidate the act
of re-promulgation by the Governor. EvEE-Tho-@- the Constitution does not
specifically prohibit re-promulgation of Ordinances but proper interpretation
of the ordinance making powers under Article2l3 and Articlel23 clearly
lays down the proposition that any executive effort to make an ordinance
extend beyond the six rnonths period will be misuse of power and give to
coloura,ble ecercise of pouer. Legislature is the constitutional authority for
Constitutional Foundztians of Adrninistratioe Lau'27"1x':
the purpose of law making and if the Executive by means of Ordinances
attempt to regulate the life and liberty of the citizens it would be contrary
6o the principles of rule of law. It is the constitutional right of the citizens
to be governed by the laws made by the Parliament in the ordinary course
of law making-
ln p. Sambamurthy u. St adeshls the Court emphasised
the imp6itancercf the power of judicial review. It is an inherent constitutional
power of the Supreme Court and the High Courts to review administrative
,"r-io5 _ggfudini the decisions of thg tlibqnals,Jn this cise tG6i6TiIilI6i-iiity
of Tt" p6i,iso of Articf.SZfD(S) of the Co*titntion was challengedl6 on the
ground that it was in violation of the rule of law principle as it negated the
scope of judicial review. Uphotding the contention that irtdependent
judiciary
judicial of actions are an integral part
and the po$,ef of review executive
of rule of law, Supreme Court held that Article37lD(S) was unconstitutional
because under the provision the State Government was given the power to
modify or annul .any order of the Tribunal before it became effective- It
observed
Invariably the state Government would be a party in every service dispute
brought before the Administrative tibunal and the effect of the Proviso is
that the state Government which is a party to the proceeding before the
Administrative .Tribunal and which contests the claim of the public servant
who comes before the Administrative Tribunal seeking redress of his grievance
against the State Government would have the ultimate authority to uphold or
reject the determination of the Ad14lnistrative Tribunal. It rvould be open to
the State Governrnent, after it has losl before the Administrative Tribunal,
to set at naught the decision giveh by the Administrative Tribunal against
it- such a provision is, to say the least, shocking and is clearly subversive of
the principles of justice. A party to the litigation cannot be given the power
to override the decision given by the Tribunal. It would be violating the basic
concept of justice'and make a mockery of the entire adjudicative process. Not
only is the power conferred on the state Government to modify or annui the
decision of the Administrative Tribunal starting and wholly repugnant to the
notion of justice but it is also a power which can be abused or rnisused.
.:/ lIn r98z sc 663 : (1987) 1 scc 362.
16. Article 3Z1D (5) The order of the Administrative Tlibunal finally disposing of any case
shall become effective upon its confirmation by the State Government or on expiry of 3
months from the date on which the order is made; whichever is earlier.
provided that the State Government may, by special order made in writing and for reasons
to be specified therein, modifu or annul any order of the Administrative tibunal before it
becomcs effective and in such a case, the order of the Administrative Tiibunal shall have
effect only in such rnodified form or have no effect, as the ca^se mav be'
 T'-
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Constitutional Foundations of Administratioe Law 29 |

jails
Emphasising that Article3TlD(5) was in violation of the principles of rule what meaning has the rule of law if the pool are allowed to languish in
without the slightest justification as if they are the casta\r'ays of the society?
of law the Court observed-
The rule of la!r' does not exist merely for those who have means to fight for
It is a basic principle of the rule of law that the exercise of power by theirrights and very often for perpetuation of the status quo which protects
the executive or any other authority must not only be conditioned b5' the a.rd their dominance and permits them to exploit large sections of
p.e-'se.o-es

Constitution blt must also be in accordance with law and the power of judicial the communit), but it exists also for the poor and the down trodden' the
review is conferred by the constitution with a view to ensuring that the law ignorant and ihe illiterate $,ho constitute the large bulk of- humanity in this
ciourrtry. It is the solemn duty of this Court to protect and uphold
the basic
is observed and there is compliance with the requirement of law on the part the and it is this duty we are
hrr-a., rights of the weaker sections of society,
of the executive and other authorities. It is through the power of judicial
review conferred on an independent institutional authority stlch as the High trying to discharge in entertaining this public interest litigation.
court that the rule of law is maintained and every organ of the state is kept
within the limits of the law. If the exercise of the power of judicial review The Supreme Court has emphasised the core principle of rule of law as
for
can'b€ set at naught by the state Government by overriding the decision anti-thesis of arbitrariness in numerous judgments. Fhaewati J.. speaking
given against it. it would sound the death knell the rule of law. The rule of ih" Coll.t' l Auth,oritg of Indiars bad
law would be me vernment to unthink able that ln a d em o cr acy g o u ern e d
defy the law and yet to get away with it- The Proviso to cl (5) of Article "atego.i"al\:sffi-T6tTfF;
Uy lne nite of Lau, the executiue Gouernment or any of its officers
sLould, possess o.rbitrary pourer ouer the i.nterest of the indiaidual.
371-D is, therefore, violative of the basic structure doctrine. Euery
action of the erecutiue Gouernment rnust be informed tuith reason and
t" Ashoh Kho-tr-7 the Court further That is the uerg essence of the Rule
orders would amount to violation
should, ie free from arbitrar,iness.
recogniied ttt"t -w aisoUedience of judicial oJ Law an',d, its b-are rninimal requ,irement". ln Dr. subrama?ian
syamlt
of the rule of law principles. It observed- -ni"rt"r,
,i. CAfo the importance of the prin@ed with
tlre;br*""t1,"" t[at 'Absence of arbitrarg power is the first essential of
Disobedience of this Court's order strikes at the very root of the rule of law
on which the judicial system rests. The rule of law is the foundation of a the rule of law upon which our whole constitutional sastern 'is based''
democratic societg Judiciarv is the gttardiat of the rulg of law' Hence' it is J-ustice K.K. Ivlathew had observed in the article '!he Welfary 9-!?!9.*1L"ti
onit-Tffi[trd pitt". U"t also the central pillar of the democratic State. ffiustice' that the modern day understanding of Rule
"ofthe judiciary is to perform its duties and functions effectively and remain
If
true to the spirit with which they are sacredly entrusted to it, the dignity
and authority of the courts have to be respected and protected at all costs.
Otherwise, the very cornerstone of our constitutional scheme will give way and
with it will disappear the rule of Iaw and the civilised Iife in the society. Khan Chand22 observed-

Inu)feena Sethi u. State of Biharrs Supreme Court recognized another Wemaystatethatthevestingofdiscretioninauthoritiesintheexerciseof

power under an enactment does not by itself entail contravention of Article
facet offi In this case a letter was written to the 14. What is
Supreme Court alleging illegal detention of 14 prisoners in the Hazaribagh
Central Jail for almost two to three decades without due process of law.
;l reti: : I ll . ,'

Treating the letter as a. public interest litigation the Court recognized the G_fa;a a modem Staie, it is but inevitable that the matter of details
UV
should be left to the authorities acting under an enactment. Discretion
has,
gross human rights violation against the n'eaker sections of the society.
therefore, to be given to the authorities concerned for the exercise
of the
Upholding access to justice and access to legal institutions as a legal right
of the poor, downtrodden ignorant and illiterate sections of the community, powersvestedinthemunderanenactment'Theenactmentmust'however'
prescribe the guidelines for the furtherance of the objects of the enactment
the Court raised the pertinent question-
r9. (r979) rr LLJ 2rr SC; N{ANU/SClo048/rs79'
t/1o*ro,Tt
F[M"fn"* J., Democracy, Equality and Fyeedom Eastern Book cornpanv (1979).
\/fi- (2N6) 5 scc 1. 3
18. (1982) 2 SCC 583. Jz \rs74) I scc 54e.
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and it is within the framework of those guidelines that the authorities can use 2.3.4 Rule of Law in Globat Context
their discretion in the exercise of the powers conferred upon them._..Discpetion
of Jurists (Ig-J) had organized an International
which is absolute, uncontrolled and without any guidelines in the exercise The International commission of The RuIe of Law
o-@le-iftb A;;;t of Jurists in New Delhi 1959 on the theme
-arbftqqlingss. When i-iidividuals act than 185 judges' lawvers .""d idefine
i?Y;;f;t*t Iid
ac-iording to tileir Jweet o'iii, tne.e is bound to be an element of .4riek--au_d_ iiT'ir". s""oiW ){ore attempted to and describe
choose' according to the notion of the individuals. If a Legislature bestows oarticipated tn tne \'ongress' The
Congress
sidE-fntrammelled discretion on the authorities acting under an enacrmentr,
ffi;;;;;-";ntext of modern constitutional a.d legal practice the Rule of
it abdicates its essential function for such discretion is bound to result in legal systems but too
discrimination which is the negation and antithesis of the ideal of equality il;-; notion familiar to lawyers of many different
meaning''
Jft t 't i"*"a as a phrase of uncertain
before law as enshrined in Article 14 of the Constitution. It is the absence
of any principle or policy for the guidance of the authority concerned in the Thecommissionheldthattheterrn"RuleofLawstandsforauniuersally
tOiii""Ut" set of princi'ples, joined' by respect for theeffectiue control
i'ndiu'idual and
exercise of discretion which vitiates an enactment and makes it vulnerable
to the attack on the ground of violation of Article 14. It is no answer to f,i'-oiiorr""." i7 ang irbitrarg rule w,ithd.rawn from
the above that the executive officers are presumed to be reasonable men ui ,n" people oaer whom it is erercised,,. It is deemed to be 'a living
who do not stand to gain in the abuse of their power and can be trusted concept permeating several branches of
the Law and having great practical
to use "discretion" with discretion. As mentioned on page 3 of parliamentary of the congress
Supervision of Delegated Legislation by Jojt" _E--Kg1qqll, 1960 Ed.
i-p"rt""". in the life of every human being.' The outcome three important
i, i"p"f".fy referred to as the O:Sl*4tg!:!2"ryt wherein
"The point is, however, that no one'o]rght to be trusted_1it[power without elements of Rule of ['aw were recognized-
restraint. Power can be of an encroaching nature, and itJ'enEroilhments are
u!ffifo. the sake of what are sincerely believed to be good, and indeed First,thattheindividualispossessedofcertainrightsandfreedomsandthat sgqn4, that
necessary' objectives. Throughout history the most terrible form of tyranny has f.i; to protection of th"re rights and freedoms by the apd
-State; well as for
b":
been the forcing on human beings .of .what someone believes to be good for there is an absolute need for "t i@redg$-lgdiglgrv 1s
effective machinery for the prot"ctiott oi ftttdui"ttt.I
rights and freedoms; and
them. The imposition of controls on the use of delegated legislative authority, would
therefore, does not imply a deep suspicion of malevolent intentions. Human third, that the establish-"ni of sorl4res919!gcj1.q-"llrygt9l' tgqditions
nature, being what it is, has to be. protected against itself, and where power p".*itmentoliveindignityandtofulfiltheirlegitimateasplratrons.--
is concerned the very existence of the pbssibility of restraint, as we shall see,
is a safeguard against abuses in which ends may be used 'to justify means Apledgewastakentopromoteruleoflawintheareaoflegislatir'e,
professionals' The
and the good in intent becomes the evil in effect". executive, criminal process, and the judiciary and legal
conclusions of the Congress were sumned up as-
Thus an analysis of the opinion of the supreme court in its numerous 1. Legislative and Rule of Law
judgments clearly indicate that the principle of rule of law is part of the
should try to uphold the dignity of man by recognizing
(i) Legislature
basic structure of our Constitution .and has been integral in protecting
civilandpoliticalrightsandbyestablishirrgsocial,economic,
the rights of the people from arbitrary exercise of administrative powers educational and cultural conditions'
by giving recognition to newer dimensions of the principle, But mere legal
recoFnition of rule of law is not adeouate to hring a transfnrmatll.e change Minimum standards and principles regulating the individual
(ii)
i@nt withinsocietywereessentialforRL.Suchstandardswouldimply
to adhere to three essential requipements to
ir, ."tiorr.(}tirsttv .certainlimitationsonthelegislativepower.Thelimitationsonthe
"F
th6re should be adequate rnscbgnism for enforcement legislative should be enshrined in a constitution and safeguarded
of laws, /corrdri,EBric
officials should recognize that they are bound by laws rtrd their actions by an independent judicial tribunal'
must be in accordance with the provisions of 'laws3nd tbirdly the society (iii)Legislaturehadtt'"'""po*itllitytoabstainfromenactingretroactive
+e
as a whole should have respect for rule of law in societyGd penal legislation, not discriminate Men
ensure that interfere with freedom of religious belief; not deny
the legal rights of all menlid-Gilen aie equally protected and enforced- ;AAt-n*; ""t
g/23- Art'hrtr L. Goodhart. The Rule of Law and Absolute Sovereignty, University of Pennsylvania ffiioneeringYears,TheInternationalComnrissionofJurists,
Law Revie*', Vol. 106, No. 7, (i\,Iay, 1958), pp 94!963, 961. p. 53.

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lJ 32 Textbooh on Administratizte Lau
members of society the right to responsible government; not place
restrictions on the freedom of speech, assembly or association; not
impair the exercise of fundamental rights and freedoms of the
individual and provide the procedural mechanisms to protect the
' oi-6r*i*sal
above mentioned freedoms.
2. Executive and Rule of Law
(i) Granting of power by the legislative to the executive should be
undertaken within th. @that legislature
should define the extent and purpose of $uc!_rjqkrgeited powers,
as well as the pro"Ed,rG-bliiiJh such dclegated powe, to u6
brought into effect.
(ii) When the executive directly and adversely affected a person or the
property rights of an individual, he or she should have the right
to present his or her case befof9__a_ecurt_as well as the right to
anLdequatil
(iii) In the absence of a judicial review mechanism, antecedent procedures
of hg.rtrg,_gtgggy and consultation should be established, through
whic@erests would be affected can have
an adequate opportunity to make representation.
(iv) RL would be strengthened if the executive were to be required
to formulate its rea.sons when reaching its decisions, and at the
request of conc"ffiTEFm.
"
3. Criminal Process and Rule of Larv
(i) Prohibition of retrospective enactment of penal legislation.
(ii) Principle of pr.rffition-of iri;;*"e would require that the burden
of proof should--6nly be shiffed--6nce facts creating a contrary
presumption had been established.
(iii) Power g_f ?rrest should be regulate4 and the arrested person should
be told at once the grounds of his or her arrest.
He / she should only be entitled to a legal advisor and be brought
before a judicial authority within a short period of time.
(iv) RL did not require any particular theory regarding punishment, but
must necessarily condelq11.,grlrgl, lnhrr.man or excessive preventive
measures or punishment - reformative measures should be adopted
wherever possible.
4. Judiciary and Legal Profession under the Rule of Law
(i) Independence of judiciary should be safeguarded.
(ii) Legal profession should be free tg manage its own affairs.
(iii) Equal access to justice.
,l
oneoftherecentirrterpretationsofruleoflawlrasbeenadvocatedbythe
has defined the co'cept of' Rule of Laut based
@ principles which were derived from various internationally
,"""Or.a standards.2s ftr-4*3ry-9bj::g"e of the project is not to simpll'
lq*-!ry-nnn99p-t but ry11--o-4--99eietv
specifica'Ilyr-rlterEs.of'.accorrntahiffy.respectforfundamentalrightsand
t"t"t'to-l,,stice'Thef@of-ruleoflaware-
1. The government and its officials and agents as well as individuals
and
private entities are accountable under the law'
2. The laws are clear, publicized' stable, and just; are applied evenly;
.andprotectfundamentalrights,includingthesecurityofpersonsand
PropertY.
3.Theprocessbywhichthelawsareenacted,administered,andenforced
is accessible, fair and efficient'
4.Justiceisdelil'eredtimelybycompetent,ethica|andindependent
representatives and neutrals who are of sufficient number, have
adequate
resourcesandreflectthemakeupofthecommunitiestheyserve.
tt-lt"-pr*s!!!'a!_@s
These four principles has been further developed into
,
*hth r.u esslntiil-'for creating a Rule of Law index for nations adhering
to the various norms of accountable and open governments.
According to the WJR the nine factors are- Factor 1: Constraints
on
Government Powers
1.1 Government po'x'ers are effectively limited by the legislature
1.2 Government powers are effectively limited by the
judiciary
1.3 Government powers are effectively limited by independent auditing
and review
1.4 Government bfficials are sanctioned for misconduct
1.5 Government powers are subject to non-governmental checks
1.6 Transition of power is subject to the law
Factor 2: Absence of CorruPtion
2.1 Go'ernment officials in the executive branch do not use public
officials'
for private gain
2.2Governmentofficialsinthejudicialbranchdonotusepublicoffice
for private gain
public
2.3 Government officials in the police and the military do not use
office for Private gain
25. lVorld Justice Project - Rule of Law Index 2014'
 I Laut 35 |
l*f 34 Textbooh on Administrative Lazp
2.4 Government officials in the legislative branch do not use public office
for private gain.
Factor 3: Open Government
3.1 The laws are publicized and accessible
3.2 The laws are stable
3.3 Right to petition the government and public participation
3.4 Official information is available on request
Factor 4: Fundamental Rights
4.1 Equal treatment and absence of discrimination
4.2 The right to life and security of the person is effectively guaranteed
4.3 Due process of law and rights of the accused
4.4 Freedom of opinion and expression is effectively guaranteed
4.5 Freedom of belief and religion is effectively guaranteed
4.6 Freedom from arbitrary interference with privacy is effectively
guaranteed
4.7 Freedom of assembly and association is effectively guaranteed
4.8 Fundamental labour rights are effectively guaranteed
Factor 5: Order and Security
5.L Crime is effectively controlled
5.2 Civil conflict is effectively limited
5.3 People do not resort to violence to redress personal grievances
Factor 6: Regulatory Enforcement
6.1 Government regulations are effectively enfiorced
6.2 Government regulations are applied and enforced without improper
influence
6.3 Administrative proceedings are conducted without unreasonable
delay
6.4 Due process is respected.in administrative proceedings
6.5 The government .does not expropriate u'ithout larvful process and
adequate compensation
Factor Z Civil Justice
7.1 People can access and afford civil justice
7.2 Civll justice is free of discrimination
7.3 Civil justice is free of corruption
7.4 Civll justice is free of improper government influence
7.5 Civil justice is not subject to unreasonable delay
Constitutional Foundatians of Administratiae
7.6 Civil justice is effectively enforced
7.7 ADR is accessible, impartial, and effective
Factor 8: Criminal Justice
8.1 Criminal in'estigation systern is effective
-
8.2 Criminal adjudication system is timely and effective
8.3 Correctional system is effective in reducing criminal behaviour
8.4 Criminal system is impartial
8.5 Criminal system is free of corruption
8.6 Criminal system is free of improper government influence
8.7 Due process of law and rights of the accused
Factor 9: Informal Justice
9.1 Informal justice is timely and effective
9.2 Informal justice is impartial and free of improper influence
9.3 Informal justice respects and protects fundamental rights
Based on the above factors the WJP has prepared the Rule of Law Index
of 99 countries covering more than 90 percent of the world's population.
Today the doctrine of rule of law is a4 integral part of the universal
notion of good governance. It has played a foundational role in extending
the power of judicial review over administrative actions in common law
countries and has consequently facilitated the growth of administrative law
in these countries. The broad encompassing concept has branched out and
is equally applicable to all organs of the state in every area of law.
2.4 SEPARATION OF POWERS
The doctrine of separation of power is the second constitutional principle
which played an instrumental role in the growth of administrative law. The
increased functions of the Executive organ of the state had given rise to
few legal challenges relating to the functioning and accountability of the
executive. One of the important issue was whether the increased functions
of the executive was contrary to the principles of separation of pouers and
whether such increased powers would lead to executive dominance over other
organs of the state.
The three core state functions of law making, execution of the law and
judicial functions have been traditionally entrusted with the three organs
of the State - Legislature, Executive and the Judiciary respectively. The
doctrine of separation of power was founded on the premise that concentration
of power in one or mor€ organs of the state would give rise to unregulated
and tyrannical exercise of power which would threaten the rights and liberties
 I t.,
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of the citizens. Lord Acton speaking on the issue of whether the Pope and
the King should-B-el--?;6md in a mann'er different from other ordina.ry rnen iL B"gfi.h Monarch and the Parliament as necessary for securing citizens'
and should be presumed that they can never do wrong observed - If there ,-lgh," il""u,.rse Parliament being the representative
of the people *'ould not
powers to the
is any presurnpt'ion i.t is the other way against holder of power. increasing lr,u."t .rUit.ary laws similarly the denial of the legislative
In the 17tl'
are
king would ensure that no unfair or
as the powerincreases. Historic responsibility has to make up for the arbitrary lari's rnade-
want of legal rgsponsibility. pouer tends to cor e poluer ;;;;".y England the legislative arrd tax imposing powers were exercised
corrupts absolutelll. Great men are alrnost alwaAs bad Tten, euen' uthen iy tn" Parliament and the government headed by the king administered
were also assured of freedom
mddaiot-Gnority; sti? more when gou super ad,d. iir" tr*, passed by the Parliament. Judges
them a tenure of service
the tendency or the certainty of corruption by .authorifg. If this principle is ifrr""gt, tie ACt Lf S.ttl"*"'t which secured
practice of tenure
applied to state functionaries it would necessarily imply that if the legislature a"ri"I their gooii behaviour differentiating from the earlierfelt that the secret
or the law makers are conferred with absolute power to administer the law during the pleasure of his Majesty. Hence Montesquieu
the functional
made by them as well as determine all disputes involving the law then of Sigtisnmdir's liberty was the separation of power and
the common people would have no opportunity of a fair redressal of their iodepeiderrce of the three department of the state from one another.
claims and would have to suffer from i4iustice in the absence of alternative principle of the doctrine in his book
\,lontgsSuleglgld down the underlying
remedial mechanism. This point was reiterated by the Indian Supreme Court nsO ) 1748' His fundamental propositions
in its pefi,inent observation in the case of #hoka Kumg,r Thakur u. Vni'on united in the
- will,
^" --ol t"i$9 The Gouernment cannot b" tffi." ,r*u O"r."Ir or J as there
th9
be no liberty
possibility
mA;ats pouers into separate organs. If it coutd, be trusted,, there uould secured to thei common people' There will always be of
be no need for co-equal branches in which power is shared. Separation oJ and similarly executed to the detriment of the
tvrannical laws being enacied
pouers is an ariom of d,ernocracy.2T
;;;i/t;-tt"trv ,r'"i" wiII be 3o libertv if the judici?l p-ow-gr- is no! se'ir'rated
Sjf--rlqbalocte---:vas one of the earliest scholar and.'philosopher to from the legislative and executiv" po*"r, b*u,,tse the judiciary through the
conceptually formalize the doctrine of separation of power in }llis Second power of 5uaiciat review protects the rights of the citizens
by exercising
officers'
effective control against arbitrary exercise of power by
Tbeatise of Gouglwng!!L-!(1689). In a well-ordered society different powers administrative
power then the judge
of the state should be exercised by different institutions. He .divided the If the iudicial power ls clubbed with the exeputive
state powers into three categories - legislative power, executive power and *r*-ni hn""=m- violence and oppression. rhns the doctrine implies
federative power. flg&g5l"ti"e. or law-making power was deemed supreme that one person or body of ffi*" should not exercise all three types of
whereas the e{gslrijye+o$.er-was relating to the internal affairs of the state powers. Legislative, executive and the jud'iciary should be separate and one
and the f.d".atiylpowers were maintaining the external affairs during war L.gr., *,."i perform or interfere with the functions entrusted with the other
and peace, infoGE6i-l6Falliances and leagues. Locke advocated that for bodies.
proper functioning of the state it was necessary that the legislative powers Blackstone in hisCommentaries on the Laws of England (1765) had
judicial functions
and executive powers, including the federative power should be exercised by similarly observed that if the legislative, executive and the
different institutions so that the law making authority is also made subject to were performed by one person then there would be no security of public
the same laws. However the credit for laying down the foundational stones of liberty.
the doctrine is popularly conferred to Frenchman and lawyer l\{ontesquieu.
I\{ontesquieu was greatly inspired by the w'ritings of Locke and the [W]herevertherightbothofmakingandofenforcingthelawsisvestedinone
wherever these
parliamentary form of governance in England, and was convinced that under and the same man' or one and the same body of men; and
a despotic rule where both the executive and the legislative powers were twopowersareurritedtogetlrer,therecanbenopublicliberty.Themagistrate
manner, since he
may enact tyranniJ U*I, ,.ri execute them in a tyrannical
held in the same hands it would be detrimental for the protection of the is possessed, in qrrJity of dispenser of justice, with aII the power which he'
rights and freedoms of the citizens. He advocated for the implementation thinks prlper to give himself-...Were [the judicial_power] joined
as legislator
would be
with the legislative, the life, liberty, and property' of the subject regulated
\ (2OO8) 6 SCC in the hands of arbitrary judges, *hose Jecisions would be then
- ,..26.
1.
zz.ih;*-;sirs:-
 ?'
I
f gS - Textbooh on Administratiae Lau.t
only by their opinions, and not by any fundamental principles of law; which,
though legislators may depart from, yet judges are bound to observe. Were
it joined with the executive, this union rnight soon be an overbalance for the
legislative.28
The practical rationality and importance of the doctrine has been
appreciated by subsequent jurists as well as helped in the constitution making
process of a large number of countries, including France and America. The
growth of the droit adm'inistratif as a separate branch of law in France is
a reflection of the ideology of separation of power._LErdison rvhile drafting
the. US Constitution consciously imp-lerrren!-elljlbe doctrirle- _of separation of
powe@According to Madison, "the accumulation
o@ erecutiae, and. jud,iciary, in the same hands,
uhether orle, a few, or n'Lany, and whether hereditary, self-appointed, or
elgctiue, may justly be pronounced, the uery d,efinit'ion of tyranny"3e Article
the US Constitution lays down that the Congress has been granted the
-.{ot
power to make the laws. It is also entrusted with the functions of controlling
the national budget, raising taxes, borrowing of money, authorization of the
expeirditures of the federal funds etc. ArticlqJ.Ir'provides that the Executive
branch will be headed by the President and his power will include the
power to enforce the laws passed by Congress, to make treaties with other
nations, to nominate judges, to appoint officers of the Government and to
oversee federal agencies. Article-dl states that the judicial power is vested
in the Supreme Court and such other inferior federal courts as established
by the Congress. The judicial power includes the power to hear all cases
and controversies arising under the Constitution, international treaties, federal
statutes, as well as disputes between the States.
2.4.1 Checks and Balance
The objective of the separation of power doctrine is not simply to
prevent
usurpation of power and dominance by one organ over the other organs of
the state. One of the cardinal objective of the doctrine is to ensure that
every organ of the state should act within the confines of law and does
not abuse their power. The wellbeing of the citizens is dependent on the
efficient functioning of the three organs in accordance rvith the rule of lar*'
principles. Tladitionally the legislature, executive and the judiciary are the
three pillars of the state functioning, hence the separation of power doctrine
further imposes the obligation on these organs to oversee the functioning
of each other and exercise necessarv checks in case of excessive exercise
28. Blackstone, Commentaries on the Laws (Dublin,l77l), vol. 1. pp. 146,269.
29. The Federalist (Philadelphia, 1871), no. 47.
Constitutional Found.ations of Ad.ministratiae Laut 39-'|,"
of power or abuse of power. Thus the separation of power theory is also
r.ecognized as a theory of checks and balances.
-' , The implication of checks and balances necessities the prevention of
water tight compartmentalization between the three organs of the state.
I\{ontesquieu in his conceptual framen'ork had not specified about strict
separation of pot'er but had highlighted that all state powers should not be
'in the same hands and the departments should not have control over the
acts of the other or exercise undue influence. The British Constitution which
inspired Montesquieu to formulate the doctrine had never adhered to the
strict concept of separation of power. In a parliamentary form of democracy
strict separation between Executive and legislature is an impossibility. The
Queen who is the executive head is an integral part of the legislature and
the ministers are also members of the either Houses of the Parliament.
' all
The House of Lords have been entrusted with both judicial and legislative
functions. The Lord Chancellor is at the same time a member of the House
of Lords, a member of the government, and the senior most member of the
judiciary. Thus even though l\'{ontesquieu. considered the English system of
State as the ideal for governance, but England had never advocated strict
separation of powers.
. While working out the concept of separation of power Madison had
recognized that even though the doctrine of separation of power is a
political truth but the doctrine does not imply that the various departments
should be completely and absolutely independent of each other. Hence the
US Constitution, even though acknowledges the separation of power as an
inherent principle of constitutional governance, has also inioifbiated the
provisions of checks and balances. Thus the law making power has been
conferred to the Congress, but the Executive has been given the power to
exercise Presidential veto and may refuse to sign the legislation into law. The
judiciary can also exercise a check on legislative power through the powers
of judicial revierv and can declare a lau' as unconstitutional. Similarly the
Congress can check the executive power as the right to remove the President
from office if he i.s gui.ltg of bri.berg, treason or other hi'gh crimes or
rnisdemeanours has-been bestowed on it. In addition the Congress can reject
any treaty negotiated by the President. refuse to confirm the appointments
made by the President to the judiciarl' or other government offices. The
judiciary has the power to review all executive actions. The power of the
judiciary is also curtailed by the process of impeachment of judges being
conferred on the Congress for any misconduct in office. The appointments
of the judges are made by the President on being ratified by the Senate.
Thus the application of checks and balances are inherent in the framework
of the US Constitution. In the words of Mr. Justice N4iller-
I 1
l,4{l Textbooh on Administratioe Lattt
F
It is believed to be one of the chief rnerits of the American system of written
constitutional law, that all the powers intrusted to government, rvhether state
or natiorral, are divided into the three grand departments, the executive, the
legislative, and the judicial. That the functions appropriate to each of these
branches of government shall be vested in a separate body of public servants'
and that the perfection of the system requires that the lines which separate
and divide these departments shall be broadly and clearly defined. It is also
essential to the successful working of this system that the persons intrusted
with power in any successful working of this system that the persons intrusted
with power in any one of these branches shall not be permitted to encroach
upon the powers confided to the others, but that each shall by the law of
its creation be limited to the exercise of the powers appropriate to its own
department and no other.3o
The importance of the doctrine of separation of power has to be realised
not from a philosophical or a theoretical perspective but as part of practical
necessity. It is important to realize the need for functional separation of
powers based on the concept .of division of functions and as a system of
checks and balances as modern day necessity in place of strict'separation
of powers.
2.4.2 Essential Functions Theory
The doctrine of separation of power was initially considered as an impediment
to the growth of administrative powers under the modern welfare state
functions. The increase of state responsibilities had imposed additional
burden on'iiib' d.ifferent organs' of the state, but due to the various factors
the legislature and the judiciary were often able to cope with the new
responsibilities. The growth of .residuary powers in the hands of the
administrative organs was deemed to be in violation of the . essence of the
separation of power doctrine. In this context an adjustment was attempted
to uphold the essential elements of the doctrine without compromising with
the necessity to grant residuary powers to the executive organ by developing
t}ae essent'ial functions theorg.
In the landmark decision of the US Supreme court in the case of Panama
Refining Co. u. Ryansr wherein the legality of the Executive Order issued
by the uS President dealing with transportation in interstate and foreign
commerce of petroleum and related products under the provisions of Section
9(c) of Title 1 of the National Industrial Recovery Act 1933 was challenged
on'the ground that the congress had failed to lay down the necessary policy
guidetines under the Section 9(c) as required under constitutional separation
30. The Federalist (Philadelphia' 1871)' no' 47'
3r. 293 US 388.
C onstit ut ional F o undations-of Adminis tratiz,e l-au,'*:d )',1!:'
of power. upholding the constitutional obligation of the congress to make
laws and lay down policy and necessary rules of conduct prior to the
delegation of powers to the executive, the Court propounded t,he essential
funct'ions theorY. It observed-
The Constitution provides that-
,.AIl legislative Powers herein granted shall be vested in a Congress of the United
of a Senate and House of Representatives".
States, which shall consist
Article I, S 1. And the Congress is empowered "To make all Laws which
shall be necessary and proper for carrying into Execution" its general powers.
Article I, $ 8, par. 18. The Congress manifestly is not permitted to abdicate
or to transfer to others the essential legislative functions with which it is thus
vested. Undoubtedly legislation must often be adapted to complex conditions
involving a host of details 1vith which the national Legislature cannot. deal
directly. The Constitution has never been regarded as denying to the Congress
tfue necessary resources of flexibility and practicality which will enable it
to perform its function in laying down policies and establishing standards,
while leaving to selected instrumentalities the making of subordinate rules
within prescribed limits and the determination of facts to which the policy as
declared by the Legislature is to apply. Without capacity to give authorizations
of that sort, we should have the anomaly of a legislative power which, in
many circirmstances calling for its exertion, would be but a futility. But the
constant recognition of the necessity and validity of such provisions and the
wide range of administrative authority which has been developed by means of
them cannot be allowed to obscure the limitations of the authority to delegate,
if our constitutional system is to be maintained.
The constitutionality of the essential functions theory $'as further reiterated
b)'the US Supreme Court in the subsequent case of Schechter Poultry Corp.
u. United, States.sz It was categorically held that-
Extraordinary conditions do not create or enlarge constitutional power. The
constitution established a national government with powers deemed to be
adequate, as they have proved to be both in war and peace, but these powers
of the national government are limited by the constitutional grants. Those
I'ho act under these grants are not at liberty to transcend the imposed limits
because they beliel.e that more or different porver is necessar5r.....The congress
is not permitted to abdicate or to transfer to others the essential legislative
functions with which it is thus vested.
The essential functions theory advocates that under the constitutional
scheme of separation of porvers every organ of the state has been conferred
with certain essential or core functions which the organ is required to perform
32. 295 US 495.
 Textboob on Administrative Laut
without delegating it to any other organ or department. once the essential
function has been performed the organ can delegate all other incidental,
subordinate or ancillary functions to other organs and bodies. Accordingly
the essential functions are-
(i) Essential Legislative Functions
o Monitoring and supervisirrg the policy of the governnent
o Passing of budgets
o Ratification of treaties and international covenants
o Passing of laws and discussing various actionb and policies of the
government
(ii) Essential Executive Functions
o N{aintaining.larv and order
o Administration of the state
o Dealing with foreign countries
o Ensuring implementation of the policies and programmes
(iii) Essential Judicial Functions
o Deciding disputes
o Interpretation of. laws
o Determining the legality of government actions
o Determining civil and criminal liability of private persons and state
officials.
2.4.3 tndian Constitution and Separation of Power
The text of the Indian Constitution has not included the phrase 'separation
of power' in any of its part but the notion of separation of power betrveen
the three organs of the state are implicit in the various provisions of the
Constitution. Article 53(1) specifies that the executive power of the Union is
vested in the President of India and shall be exercised by him directly or
through officers subordinate to him in accordance with the Constitution. The
power of the executive shall be co-extensive with that of the legislature.3s
The executive pos/er shall be exercised by the President under the aid and
advice of the council of Ministers.3n utrde. Article 245 the law making
power has been conferred to the Parliament for making laws for the whole
or any part of India and on the State legislature to make laws for the
whole or any part of the state. The subject-matter of the laws to be made
by the Parliament and the Legislature has provided under List I, II and
33. Article 73.
34. Article 74.
Constitutional Foundations of Administratiae Lao "43'l
-----------.----
''
III of the Seventh Schedule.35 The need to separate the judiciary from
the executive has been highlighted under Article.5O The jurisdiction of the
Union Judiciary and the state judiciary has been specifically incorporated
under Part V Chapter IV and Part VI Chapter V respectively. Thus the
functional separation between the three organs of the state has been broadly-
identified in the Constitution.
The Constitutional framers have also incorporated the principle of
to uphold the principles of
checks and balances between the three organs
accountability and rule of law. To uphold the norms of Executive dominated
Parliamentary democracy.the Constitution has ernpowered the President to
summon each House of the Parliament as well as prorogue and dissolve them.
He has the right to address and send messages to the Houses. The President
has the power to promulgate ordinances during recess of the Parliament.
The Council of lUinisters are collectively responsible to the House of the
People.36 Similar powers have been conferred to the Governor of a State. In
order to implement the norms of Parliamerrtary accountability the Council
of Ministers are colleetively responsible to the House of the People.37 The
Parliament has also been given the power to impeach the President under
Aticle 61. Similarly to incorporate judicial accountability the President has
been given the power to appoint judges of the Supreme Court as well as
pass order for the removal of the judges.38 The Governor has been given
similar power of appointment and removal of judges of the High Court.
The President has been conferred with the power to grant pardon and to
suspend, remit or commute sentences of any person convicted of any offence
by" lhe highest court bf India.3e Similar power has been granted to the
Governors of a State.40 The judiciary by the means of judicial review can
strike dowrr any law made by the Parliament or any administrative actions
on the grounds of ultra uires and violation of the Constitutional principles.{l
Under Article 145 the Supreme Court has been given some law making
powers to make rules for the general practice and procedure of the Court.
It has also been given executive powers of rnaking appointments of officers
and servants of the Court. Thus the principles of checks and balances have
been indoctrinated in the Constitution.
35. Article 246.
36. Articie 123.
37. Article 75(3).
38. Article 124.
39. Article 72.
40. Article 161.
41. Articlcs 32,226 and 136.
I Constitutional Foundations of Ad.ministrathte Lau;';45\
lM Textbook on Administrathse Lazrt
Indian constitution, unlike the constitution of United states of America and
Australia, does not have express provision of separation of powers. However,
the structure providecl in our constitution leaves no manner of doubt that
the doctrine of separation of powers runs through the Indian Constitution.
It is for this reason that this court has .recognised separatiort of power as a
basic feature of the Constitution and an essential constituent of the rule of
larv. The doctrine of separation of powers is, though, not expressly engrafted
in the Constitution, its sweep, operation and visibility are apparent from the
Constitution. Indian Constitution has made demarcation without drawing formal
lines between the three organs legislature, executive and judiciary'42
-
2.4.4 Supreme Court on Separation of Power
In Ram Jawaya Kapur u. The State of Pu?Jobtt the Suprenle Court
highI@ctheconceptoffurrctionaldivisionbetw€enthe
three organs of the State in place of strict separation of power and also
upheld the essential functions theory as the constitutional norm. It emphasised
the.concept of checks and balances when it categorically observed that "The
Ind,i,an Consti,tuti,on has not indeed recognised the doctrine of separation
oI powers in its absolute rigiditg but the functions of the different parts
or branches of the Gouernment haae been sufficiently differentiated and
consequently it can uery u)ell be sai,d that our constitution does not
contemplate assumption, by one organ or part of the state, of functions
that essentially belong to another".
ln Kesauanand,a Bharati u. State of Kpyg,laaa the doctrine of separation of
po*"r tive and the judiciary was recognized
as basic structure of the constitution. The same view was expressed by
the Court in several subsequent judgments.
In I the Court was required to
interpre-ih-;Ldtty .f 39th Constitutional Amendment which inserted
Article 329A in the Constitution. Appellant was found guilty of having
committed corrupt practices under the Representation of the People Act.
6 by 'checks and balanEes- inherent in a systenr of Government incorporating the
In I.R. Co"th" u. St"t. "f the nine-Judge Constitution
bench described the priuciples of equality, rule of law, judicial revieq' and
separation of powers as forming part of the basic structure.
42. State oJ Tamil Nad,u a. Stote oJ Kerala (2O14) 12 SCC 696. para 98
43. AIR 1955 SC 549.
44. (1973) 4 SCC 225.
45. 1975 Supp SCC 1.
46. (2oo7) 2 SCC 1.
Each of these concepts arc intimately connectecl. There can be no rule of
law, if there is no equality before the larv. These rvould be meanirrgless if the
violation was not subject to the judiiial rer-iew. AII these would be redundant
if the legislative, executive and judicial powers are vested in one organ.
Therefore. the duty to decide whether the limits have been transgressed has
been placecl on. the judiciarY.{7
Explaining the scope of separation of power cloctrine under the Indian
Constitution the Supreme Court WP. Kannad,asan u- State of Tamil Naduas
observed- V"
It must be remembered that our Constitution recognises and incorporates the
doctrine of separation of powers between the three organs of the State viz. the
legislature, the executive and the judiciary. B- ttt"teh ffiution has
parliamentarl' form of Government"""
q.tnnted the na.rlin.mentarv
adopted dividi-sTffit6-tween
rvhere the dividinglineEetween
thJlegislature and the execrrti *lhi:r,lhe-Jheory--oi-separq!1on of
EilEi3-iiifilt r"li.t. Ours is also a federal form of Government. The subjects
in respett of which the Union and the States can rnake laws are separately
set out in.List I and List II of the Seventh Schedule to'the Constitution
respectively. (List III is, of course, a concurrent list.) The Constitution has
invested the Supreme Court and High Courts with the power to invalidate laws
made by Parliament and the State Legislatures transgressing the constitutional
limitations. Where an Act made by a State Legislature is invalidated by the
courts on the ground that the State Legislature was not competent to enact
it, the State Legislature cannot enact a law declaring that the judgment of
the court shall not operate; it cannot overrule or annul'tJle decision of the
court. But this does not -e petent
It can. Similarl;i, it
'is open to a
legislature to alter the basis of the jrrdgment as-Bointcd orrt hy -tli$- Court
i; Sh;i-Pith"i Cotton l{ills Ltd. u. Bt'oaclr Borough Municipalitg [(1969) 2
SCC 2831 all the n'hile adhering to the constitutional limitations; in such a
case, the decision of the court becomes ineffective in thg sense that the ba^sis
upon which it is rendered, is changea. T!g--tte*.14,W-9l-!he amendedlaw so
made can be ch4llenged on other groundA- but not on the ground lhat it seeks
___ of the court. This is what is rneant
to irreffectuate or circumvent tlte decision
concept of separation of por*'ers. This aspect has been repeatedly emphasised
by this Court in numerous decisions commencing frorn Sltri Prithui Cotton
MiIIs. rJnder our Constitution, neither wing is superior to the. other. Each s'ing
derives its porver and jurisdiction from the Constitution. Each must operate
within the sphere allotted to it. Trying to make oue wing superior to the other
would be to introduce an imbalance in the system and a negation of the basic
concept of separation of powers inherent in our system of Government.4s
47. Id, para 129.
48. (1ee6) 5 SCC 670.
49. (1996) 5 SCC 670 Para 15.
I
lm Textbooh on

tojudicialrestraintbasedonnarrowinterprgtatiorrofseparationofpower t
InthecaseofStateofW.mtBengalu.ComrnitteeforProtection as expressed in the earlier rcur- o
was whether the doctrine justified the
of Democratic Rignii,""il>f'n""gaPo"the issue raised and upheld the views "*p"""td
UV Srg'--Si"bg-J' t'herein he
as necessary obligation of
u"r"nces
HighCourtinexerciseoftheirpowelunderArticle226coulddirectthe
the Delhi special Police application of the trr."rr "r_.rr."r."3;d [o other branches of the
central Bureau "r r"r..Gu,tion, established under orr" orgtn of the "tti"-io
idVfSaa"a-tcorn"*nil
EstablishmentAct,lg46toinvestigateacognizableoffence.whichhastaken stateincaseofanyinactionorfailureioperforrrrtheirfunctions.Irrthe
without the consent of the
place within the terriiJal jurisdiciion of a 5tate, words of S'B' Sinha 'l'-
-StateGovernment.Theargumentoftheappellantwaslargelypremisedon Each organ of the
thedoctrineofsepaiatio.,ofpo*.,.Itwas-arguedthatundertheprovisions Separationof powers is a favourite topic for some of us'
without the consent of scheme performs one or the other functions
of DSPA CBI investig"tiott "o"ta not be i"itiatedapply on the constitutional
State in terms of the constitutional
which have u""r, or.igrr"a to the other organ. Although drafting of legislation
the State Go.r.rrrr,tu"t- and this would equally 32 and 226' Negating and its irnplementation by-i" and largeinare functions of the legislature and the
courts when exerctft tir.i, power under Aiticles the day to say that the constitutional
bench held that {gqldne of executive respectivJlyl l loo late
judge-made law is now well
the contention the riJe-.ludge- constitutional Tire
court's role in that behalf is non-existent' to put the doctrine of separation
separation or po*", L: g=4 ?9--{'!ul::-u-W?ii*1i;\#"ll recognised throughout the world' If one is
"ol"iJ;",t of power to such o it would not have been possible for any superior
court of
'igiaity,
.n, .o..narr,';.#; Je.'eloped or developing' to create
new rights
through interPretative Process'
*"d"ry.+-:;;,i;n. It was observed-
Separation of powers in one sense is
a limit ot acti'ue jurisdi'ction of
purpose: to act as check and'
each organ'

in the present case is that when the But it has another deeper and more relevant Thereby ttle actiue jurisdiction of
[T]he moot question for
consideration
III of ihe constitution, which include baldnceover the activities of other organs.
fundamental .ignts, as enshrined in Part the organ i. ,ro, Jtfi""ged; nevertheless there ate method's of prod'ding to
of speech [Article 19(1)(o)] and
the right to equalftf(eri"il 1g, the Jreedom bv procedure established communicate the institutiln of its excesses
and shortfall in duty' constitutional
the right not to be d;tJ; libertv except between the organs of
-* "f !i9 ""9 instant t"""' "t" violated' can their mandate sets the dynamics of this communication
by law (Article zUl separation of powers as
"fi"g"a.,il .tht polity. Therefore, it is suggested to, not understand has been reinvented in
violationbeimmunisedfromjudicialscrutinyonthetouchstoneofdoctrineof doctrine
operating in l,t""tt"'- Sepl-ration of
powers
executive and the judiciary'
separation of po*",J'U"i*tt" titu't"g'slature' modern times.o"
***
Toputitdifferently,canthedoctrineofseparationofpowerscurtailthepower courts
momentur]l in constitutional
ofjudicialreview,conferredonthe"o,'"tit..tio,,,Icourtseveninsituations
be. abrogatea oi auriaged.on the The modern view, which is today gathering
where the fundamental .ifrrt" ".u sought to ' the world over, is ""i t"f" t" a"*i"^t" the realm of functioning in a negative
; "i"t, o"** wluld impinse upon the said doctrine?
*r.""0" ii* ;;;;" sense,butalsotodefinetheminimumcontentofth"du*trcatedrealmof the
functioning- t-lU;ectil'edefinition of function and role entails executing
':"*:;'ifi ;Ji'",'?11':.:"'"il1'J*"* same, which however may be subject to
the plea of financial constraint b'.::t
ffi ::H":l#Jlf lili"i#*1'ff only in exceptional L""'" Lt tt'eni of at'y such shortcoming' it is the essential
thc needful to substitute
canstruedbroadlyandliberallyhavingregardtothechangedcircumstances to and recommend
ttle needs of time and polity'sr
duty of the other offi advise
to frame answers to these
'/olnd inaction- To this "*T"t't *" must be prepared

Theimportanceofthisjudgmentliesinimplementing..thedoctrine.of difficult questions's

of
separationof power not tJ differentiate between the different organs traditionauy the
thestatebutrathertojustifytheobligationofoneorgantooverseethe of powers doctrine,
If we notice the evolution of ".pu,r"til associated
toto""sjinr""tiot' was only with governmental excesses
functioningoftheothersinc.s"offailuretoadherewiththeirstatutory checks ond
andconstitutionalfunctionsontheapplicationofchecksandbalancetheory.
Markandey Katju J' relating
The Court in this case negated the opinion of r-r{ 1zooz1 6 scc 586
53. Ibid, Para 77-78'
@c1476' 54. Id, Para 80.
tt' izOroi 3 SCC 571 Para zlil-4s' AIR 2010 SC 1476.
 o*"T
r".-"
'-a: I
C on s t it utiona I F o un dat ion s *.*:..'

and violations. But in today's world of positive rights and justifiable sociol
/Jl Separation of powers between three organs-the legislature' executive
and economic entitlements, hybrid administrativc bodies, private functionaries n"' u"Ojudiciary-is also nothine but eatrsequenee-oirriugi l
a gqwblv
discharging public functions, we have to perfonrr the oversight functiop ik C breach
with more urgency and enlarge the field of checks and, balances to include .""frti".a i" e.ti"l" .-o-f.It-t4!-a= {ccordingly,
. imount to negation of equalitY
governmental inaction. Otherwise lve envisage the countrv getting transformed
into a slafe of repose. Social engineering as rvell as institutional engineering . undei Article 14. Stated thus, a legislation can be such invalidated on
therefore forrns part of this obligation.s5 th" br.i" of breach of the separation of powers since breach is
negationofequalityunderArticle14oftlreConstitution.
In the recent of case of Stqte of Tamit--N*fuJJ.*Sfatu-af Keralaso while (High Courts and Srrpreme Court) is empowered
dealing with the validity of ttre Kerata Irrigation and Water Conservation *-'r+YThe superior.iudiciary
^Constilution
to a law made.by the legislature (Parliament
by th. declare
(Amendment) Act, 2006 the five-Judge bench of the Supreme court held the rrrd Strtu Legislatures) void if it is found to 4gy9--89!ggtessed the
Act as unconstitutional and in violation of the separation of power doctrine constitutional limitations or if iL*iu-friUged the rigf,ts enshiFedln?drt
as the Kerala state Legislature by enacting the Arnendment had tried to III. of the Constitution'
disobey and disregard the decision of the Suprirme Court in the earlier case powers applies to the 'fi$al iudgments
of M-lJopStjggt_Eppltonmental Protection Forum u. (Igi,on of IndiasT !E)''The doctrine of separation of cannot declare any decision of a court
of the courts. The legislature
*trer6io-ure c of rr"ignt'oitn. u,rtt.peri-var
Dam to L42 ft. from 136 ft. After re-visiting the earlier judgments of the
;f-1"* t" b" "oid or of no effect. It can, however, pass an amending
Act to remedy the defects pointed out by a corrrt of law or on coming
Supreme court on the issue of separation of power the court summarized 'to know of ii aliunde. In other words, a court's decision must always
the essential principles of separation of power doctrine u1d.er the Indian
bind unless the conditions on which lf i,s based are so fundamentally
altered that the decision could not have been given in the altered
Constitution and laid down the test to determine if a legislative action
violates the separation of power doctrine- P or.-. tt , .c. -;l-.J t
circumstances.
ugJ auen without express provision of tna--sep;;;;i""Lof poYvers, the (O) ff the lg{Slatqre has the power over the subject-matter and competenc€
doctrine of separation of powers is an entrenched principle in the make a validating law, it can at any time make such a validating law
to
constitution of India. The doctrine of separation of powers informs a,nd make it retrospectfu{fn"-validity of a validating law' therefore'
the Indian constitutional structure and it is an essential constituent deperrd",-,pon *lttf,ii--th" lesislatur-e .Poss-esse-s !!9-*Rttence which
of rule of law. In other words, the doctrine of separation of power it claims orre, th.'guliect-matte. a.td',;utte-t-h.. itt m-aTmg-tnavafidiltion
though not expressly engrafted in the constitution, its s*eep, operation
and visibility are apparent from the scheme of Indian constitution-
law it removes the defect which the courts had found in the existing
law.
constitution has made demarcation, without draN'ing formal lines
between the three organs-legislature, executive and judiciary. In (7) The law enacted by the legislature may apparently seem to be within
that sense, even in the absence of express provision for sepa.ration of its competence but yet in substance if it is shown as an attempt to

powers, the separation of powers between the legislature, executive interfere with the judicial process, such law may be invalidated being

and judiciary is not different from the Constitutions of the countries in breach of doctiine of separation of powers. In such situation' the
which contain express provision for separation of powers. legal effect of the law on a judgment or a judicial proceeding must be
examined closely, having regard to legislative prescription or direction'
Indenendence of courts from the executive and legislature is fundamental
;2) The questions to be asked are:
to the rule of law and one of the basic tenets of Indian constitution.
Separation of judicial power is a significant constitutional principle $)'Does the legislative prescription or legislative direction interfere
- with the ju.liciallgngttiorls?
under the Constitution of India.
(zz)-Is the l"gi"lation-il.g.ted at the decided case or whether impugned
lawrequiresitsapplicationtoacasealreadyfinallydecided?
55. Id, Para 83. (zii)Whatarethetermsoflaw;theissueswithwhichitdealsandthe
,,-s{ Qota\ 12 scc 696 nature of the judgment that has attained finality?
.--.vfizooaj 3 scc 643.
 L-..a5L
Textbooh on Administratiae Lazp

If the answer to Questions (i) and (ii) is in the affirmative and

the consideration of aspects noted in Question (ziz) sufficiently Classification of
establishes that the impugned law interferes with the judicial
fuqctions, the porrrt may d onstitutional.
Administrative Actions
Thus the importance of the doctrine of separatiou of pon'er in modern
day governance is manifold. It encourages functional differentiation betn'een
the organs of the state based on the objective of efficient government on
the one hand and ensures preservation of individual liberty in society on the
other hand. Hence modern constitutional law writers Wade and Phillip.j; has
the practical application of the doctrine ofl"p"t"ti"tt of porver
;rescribed
. .{,i} T}re same set of persons_should not compose more than one department
of the three governmental departments.
-*tI 9:g igp4-"!t should not exercise the functions of the other two .. .-; . ,..1
departments.
t(iff One department should not cq!ro!. nnuch less. interfere rvith the rvork
of the other two d"prrt*.nt.F--
The doctrines of Rule of Law and Separation of Power are constitutional
law principles which had a major impact on the growth of Administrative
Law. The concepts of ultra uires d,octrine and essential functions theory owe
their origin to these constitutional doctrines and the judiciary by application
of these principles under the broad umbrella of principles of administrative
law have hetped in establishing accountability among different organs of the
state.

CONCLUSION 3.1 INTRODUCTION

Since the fundarnental principles of Adrninistrative law are derived from The grorvth of state functions in the last century imposed great functional
respoisibility on the executive authorities who 'w'ere entrusted with
the duties
different constitutional law principles such as rule of larv, separation of power' not be perfonned by the
sovereignty of the Constitution, independence of the judiciary, protection of to undertak e the r.esi.d,uarg functions whichcould
existing constitutional functions
the fundamental rights of the citizens etc., it can rightly be concluded that tgislature and the judiciary because of their
adrninistrative law has its foundations in constitutional law. ,.rd .""porrsibilities. The administrative functions han'e assumed a multi-
dimensional character because of the varied nature of the responsibilities
the
undertaken by them. Adrninistrative law scholars have differentiated
based ou the nature of the functions performed'
administrati.i'e responsibilities
(ii)
Administrative actions are classified into - (i) Delegated Legislation'
functions and
Quasi-Judicial fuuctions, (iii) Administrative Discretionary
(iv) Ministerial functions.
necessary
These classifications of administrative actions have been deemed
because even though it is the executive organ of the state $'hich is required
to undert'ake these functions, but the nature of these functions and the
58. E.C.S. Wade and G.G. Phillips, Constitutional and Adrninistrative Law, (A.W Bradely ed.)
gtr' f)d. 1979. nanner of performance of these functions are vastly dlffS5gnt from each
L: ri i-" ;':l
N AR A"rA nl,Fl "iEi-GrF{t
f;Y llli.,
: * or
 i- -05L
Textbook. on Adrninistrathte Laza

If the answer to Questions (i) and (ii) is in the affirmative and

the consideration of aspects noted in Question (zie) sufficiently Classification of
establishes that the impugned law interferes u'ith thg judicial
fuqctjQns. tLe -Qorrrt may declare fhp lqrv rtnconstj,tutional.
Administrative Actions
Thus the importance of the doctrine of separation of porrcr in urodertr
day governance is manifold. It encourages functional differentiation betrveetr
the organs of the state based on the objective of efficient government on
the one hand and ensures preservation of individual liberty in society on the
other hand. Hence modern constitutional law x'riters W*a.-C!L Pbtllip.s has
the practical application of the doctrine of separation of power
;rescribed
. l*\ The same set of persons-should not compose more tha,n one department
of the three governmenta.l departmcnts
O"S- d"pgf!*"gt should not exercise the functions of the other two
-(O departments
(ili) One department should not c@lrolr3nuch less, interfere u'ith the rvork
of the other two departments.58
The doctrines of Rule of Law and Separation of Power are constitutional
law principles which had a major impact on the growth of Administrative
Law. The concepts of ultra uires doitrine and essential functions theory otve
their origin to these constitutional doctrines and the judiciary by application
of these principles urrder the broad umbrella of principles of administrative
law have helped in establishing accountability among different organs of the
state.

CONCLUSION 3.1 INTRODUCTION

Since the fundamental principles of Administrative law' are derived from The grorn'th of state functions in the last century imposed -great functional
different constitutional law principles such as rule of lanv, separation of power' responsibility on the executive authorities who were entrusted with the duties
sovereignty of the Constitution, independence of the judiciary, protection of to undertak e the resi.d,uary fun,ct'iorzs which could not be performed by the
Ilgislature and the judiciary because of their existing constitutional functions
the fundamental rights of the citizens etc., it can rightly be concluded that
administrative law has its foundations in constitutional larv. and responsibilities. The administrative functions have assumed a rnulti-
dimensional character because of the varied nature of the responsibilities
thc
undertaken by them. Administrative lau, scholars have differentiated
on the nature bf the functions performed'
administrative responsibilities based
(ii)
Administrative actions are classified into - (i) Delegated Legislation,
(iii) Administrative Discretionary functions and
Quasi-Judicial functions,
(iv) Irtinisterial functions.
These classifications of administrative actions have been deemed necessary
because even though it is the executive organ of the state which is
required
58. E.C.S. \A/ade and G.G Phillips, Constitutional and Adrninistrative Las'. (A.\\r. Bradell' ecl. ) to undertake these functions, but the nature of these functions and the
9'h Ed. 1929. mannerofperformanceofthesefunctionsarevastly.difJqr,-etttfrorneach
L:Ti; -','"nEl-GtF{.i
N ARAYAI''T i::l'l"jn'n'"
I
Adminis tratizt e A ctio ns
I SZ Textbook on Administratizte Laza

other. Within the executive different departments and administrative officers tooislation or the number of legislations necessary for the efficient working
are involved in the performance of the different administrative functions. i?i"n"-*.".rnrnent, hence it becomes necessary for the legislature to transfer
as to bring in flexibility,
The nature of the administrative functions differs based on the source from L ou,.t or their responsibilities to the Executive so
Exercise of law-making
which the powers were derived, consequently there is a difference in the l"Lrrt* and e*pediency in the law making
to it by
process.
the legislature. is often described
rules and procedures applicable in the performance of these functions as ut tle exec'tive as delegated
".'*", action of the adrninistratiol or delegated legislation' But
well as the remedies available in case of any breach in the performance of ;;; rule-making be of subordinate, ancillary or
these functions. illr-gru"t of law making polver is deemedistorequired to fill in the necessarY
One of the major challenges in the area of administrative law has incidental in nature wherein the executive
been in defining and distinguishing the nature and scope of the different n,o' i" a law ruade by the Parliament in the u.'P- of course implementation of
Manjunath Kamatha
administrative actions. The complexity in the performance of these functions io|j"*.. ttr Inir Staie Transport Commissionpower to ena'ct subo,d'inate
has made the line of difference between these uanish into an illusi'on. In iL Conrt held that in the absence of ang
pQwer cannot be
the words of Justice C.K. Thakker, "No precise, perfect or scientific test iegl.slatlon by u.tag of rules. the d,elegation of legislatiue
liinrtu inferied. Thus delegated legislation is a prgcess of making subordinate
has so Jar been eoolued uhich di,stingu'i.shes these functions from one ge'erally determined by
,ril"s *it-hir, prescribed lirnits and such limits are
another. A further d,iJficulty arises uhere a single proceeding rnay combine
more than one function. It is, therefore, not easy to classify them though the laws made bY the legislature'
seueral attempts haae been madrc by jurists and, outhors on constitutional /In prag Ice I Oit Mitls u. (Jnion oJ Indias the term 'legislation' vi'as
and administratiue lara".r But from a citizen's perspective as well as legal described as "A legislative measure does not concern itself
with the facts
perspective it is important to understand the different forms of administrative of an individual case. It is meant to lay dou'n a general rule applicable to
actions for the purpose of identifying the necessary procedural requirements all persons or objects or transactions of a particular kind or class." The
in the conduct of the varied functions so as to ensure procedural propriety characteristic features of a legislation determine the nature of a delegate
legislation. A legislation is characterized by - ({Generality, ftf)
Prospectivity,
and the different remedies available in case of breach of these functions.
As stated by Chinnappa Reddy J. in the Cynamide India case (Union of (iileuuuc Interest and. (iyfldentification of rights and obligations' when the
eiecrrti.rre undertakes the responsibility of making rules, it is
often deemed
India E Anr u. Cynarnide India Ltd. E Anr 1987 AIR 1802, 1987 SCR for the
(2) 841) though difficult, it is necessary that the line rnust sometimes be that the executive has stepled into the shoes of the legislature.
the delegated legislations are bound by similar
d,rawn as d,ifferent legal rights and, consequences *oy ensu..2 purpose of law making, hence
i"girt"ti". and constitutional limitations as applicable to the legislations
3.2 DELEGATED LEGISLATION as well as their characteristic features. Sorne of the essential features of
delegated _lggislation are-
Under the constitutional scheme law making is the primary responsibility - Firily, the legislature is required to enact a statute Iaying down the
of the legislature, wherein the members of the legislature are democratically policy, essential rules of conduct and must contain provisions relating to
elected and they act as representatives of the common people. It is the conferring of rule-making powers on the executive'
constitutional responsibility of the legislature to frame the laws of the land ,.secondly the delegated legislation, like the laws made by the legislature,
necessary for the governance of the state, based on the principles of rule
should not be exercised for the singular interest of an individual but should
of law and separation of power doctrine. It is a ri,ght of euery cit'izen to
deal with public in general and their well-being'
insist that he should. be gouerned by laws mad,e in accordance with the in nature and should lay
Constitution 3 B,-,t the practical exigencies of a modern welfare state makes $irdly the delegated rules should be prospective in its law making capacity
it difficult for the legislature to devote necessary time for enacting a detailed down a future course of action. The legislature
has the power to make retrospective legislations but similar power is not
extended to subordinate law making authorities'
1. Justice C.K. Thakker, FYom Duty to Act Judicially to Duty to Act Fairly, (2003) 4 SCC
J-1.
2. Union oJ India E Anr u. Cynamid.e Ind.ia Ltd,. I Anr AIF' 1987 SC 1802. a. (1s73) 3 scc 733.
3. DC Wad.hwa a. State of Bihar (1987) r SCC 378. 5. (f978) 3 SCC 459 Para 37'
,.t.
'f 54 Textbooh on Administratioe Laut
y'ourthly by means of a delegated legislation the executive authority
cannot exparrd or curtail the rights and obligations under a statute. The
main objective of delegated legislation is to implement the provisions of a
statute.
TFittny principles of natural jrrstice han'e no application in the rule-making
process. Parliarnent is required to make laws in accordance rvith the nrles of
parliamentary procedure and is not bound by the norms of natural justice.
Similarly in the making of delegated legislation, the executive is not bound by
the principles of natural justice. The applicability of the procedural norms like
consultation, pre-publication of rules etc. are to be determined by the parent
statute. In Ind,i.an Erpress Newspapers (Bombay) Put. Ltd. u. Urtion oJ
India6 it was held that subord,,inate legislation cannot be questioned, on the
grbund of uiolation of principles oJ natural justice on which admi.n,istratiae
action may be questioned. Reiterating the same principle \n [Jnion of Indi.a
u. Cynamide Ind,i,a Ltd,.7 the Supreme Court categorically observed that-
[L]egislative actioq plenary or subordinate, is not subject tq rules of natural
justice. In the case of Parliamentary legislation, the proposition is self-evident.
In the case of subordinate legislation, it may happen that Parliaireni may itself
provide for a notice and for a hearing there are several instances of the
-
legislature requiring the subordinate legislating authority to give public notice
and a public heaiing before say, for example, levying a municipal rate in
which case the substantial non-observance of the statutorily prescribed -mode
of observing natural justice may have the effect of invalidating the subordinate
legislation. The right.here given to rate payers or others is in the nature of
a concession whibh is' not to detract'ftom the character of the activity as
legislative and not quasi-judicial. But, where the legislature has not chosen to
provide for any notice or hearing. no one can insist upon it and it will not
be permissible to read natural justice into such legislative activity.
In Shri Sitaram Sugar Co. Ltd,. u. (Jnion of Indi.as it was further
observed-
If a particular function is termed Iegislative rathcr than judicial, practical
results may follow as far as the parties are concerned. when the function is
treated as legislative, a party affected by the order has no right to notice and
hearing, unless, of course. the statute so requires. It being of general application
engulfing a wide sweep of powers, applicable to all persons and situations
of a broadly identifiable class, the legislative order may not be vulnerable to
challenge merely by reason of its omission to take into account individual
peculiarities and differences amongst those falling rvithin the class.e
6. (1985) I SGC 641.
7. (1987) 2 SCC 72O para
5.
8. (1990) 3 SCC 223.
9. Ibid Para 32.
I
Classification of Administratioe Actions 55 l'
/Si*tnly the laws made by the Parliament are subject to judicial review on
delegated legislations
the touchstone of constitutional provisions. Similarly the
*itt "t"o be subjected to judicial review on the basis of constitutional
judiciary its examination
-r.,visions and the parent statute. The will restrict
io-,n" question whether the policy and the factors in the rninds of the
were in accordance with the legislati'v-e policy and not coltrary
authorities
to the constitutional provisions'
,deventhly the applicability of writ remedies against the law making
functions of the Parliament are limited, sirnilarly the applicability of writ
of mandamus is minimal in the case of delegated legislation'
3.3 QUASI-JUDICIAL ACTION
The increase in state functions had a consequent impact on the adjudication
process. The traditional judicial system was already over-burdened with
pending cases and disputes. In addition, various factors like inadequate
,rumber of judges, lack of specialization among the judges, long drawn
judicial process, strict adherence to procedural norms made it necessary to
Lreate an alternative adjudication process to deal with the new challenges
emer€ing out of new state laws and poficies. In the course of implementation
of various welfare statutes and other new areas of law the administrative
authorities would require to be granted some elements of judicial powers so
as to bring in flexibility and ensure quick disposal of matters'
The term ,quasi' refers to similar, but not exactly. The term quasi-judicial
function refers to performance of functions similar to judicial in nature'
hn Indio* National Congress (I) u. Institute of Social WelfareLo t1''e
supreme court while dealing with the issue of whether the Election
Commission in exercise of power under Sec. 29-A of the Act is performing
administrative or quasi-judicial functions analyzed the concept of quasi-judicial
function. It observed -
The dictionary meaning of the word quasi is "not exactiy" and it is just in
between a judicial and aclministrative function. It is true, in many cases, the
1
statutory authorities were held to be quasi-judicial authorities and decisions i
rendered by them were regarded as quasi-judicial. where there was contest i
between the two contending parties and the statutory authority was required I
to adjudicate upon the rights of the parties. h cooper a. wilson (1937).2 |
KB 3b9] it is stated that "the definition of a quasi-judicial decision clearlV /
suggests that there must be two or more contending parties and an outside /
auliority to decide those disputes". In view of the aforesaid statement of /
law, where there are two or more parties contesting each other's claim and
r0. (2002) 5 scc 685
 .. I
- Clz'ssif'cation of Administratit'e Aoions 57'l'
I
,156 Textbook on Admhistratfoe Law

determination of the authority

will yet be a quasi-judicial act provided the
adjudicate the rival claims between the ;;;;t-" is required bv the statute to
act judiciallv'
the statutory authority is required to
parties, such a "t;;;'; w"s held to be quasi-judicial and decision of two-parties besides the deciding authority
"""O'i*i-:"aicial
"tir'"tity order' Thus' where there is a lis or In other words, while the presence
tu'o
rendered by it as of any other factor impose upon the
contesting parties making rival claims -and
the statutory authority under the will prima facie and i"'thu tb""()t
such a dispuie' in the absence of authoritytheduty.o".';..ai.iall1'.theabsenceoftwosrrchpartiesisnot
statutory prol,i"lorr 1! t"ititua to decide such a statutory authority the authority out of the category of quasi-iudicial
in taking the act oi
any other attriuutes*of-Jquasi-judicial authority,
decisive
authoritY' actiftheauthorityisnevbrthelessrequiredbytlrestatutetoactjudicially.,'
- , is quasi-judicial before a The legal principles laying down
when an act of a statutory authority
would be
' But there are cases where there is no Jis or two contending parties from the aforestated decisions are these:
authority has been- held to be quasi- a quasi-judici"t t"t, iiniJt' t-"tg"
statutory authority yet such a statutory a statute to do any act
judicialanddecisionrenderedbyitas.q.,'"ij.'ai"ialdecisionwhensucha
^t"q"itta Where (o) a statutory authority- empowered under there is no lis
statutory o,rttorit/i" to act jucliciJlly i" n' '' Dublin Corpn' [(1878) (b) which *oora p,ljiai"JiV "if""t ihe subject (c) althoughauthority and the
i" btt*u"o the
2 Ir R 371] it was held thus: or two contending parties and the :ont:st to act under the
authority is required iudicially
judicial does not necessarily mean acts of a subject and (d) tf'u'"i"**"
"In this connection the termfor the determination of matters of law,
but for statute, the decision of irre saia
authority is quasi-judicial'
Judge or tugut trli'rrrri-"irrirrg act done by competent
purpose of this question, a Sudicitt act seems to be an
liability
authority ,rpon facts and circumstances and imposing act from a quasi-judicial act is, in the
"o'iJia"t"tio" "f by law to enqui're what distinguishes an administrativethe relevant law the statutory authoiitv is
or affecting the rights' And if there be a body on a district' it would seem
empowered
case of quasi_judicial f"";;;;
under
into Jacts, makes-estimates to impose t *trds' where law requires that an authorityof
"L consequence would be required to act judiciaff]'' i" "'tt"t
to me that trr" ,.t" or such a body involving such before arriving at a oJ"i"io" must
make an enquiry' such a requirement
judicial acts". th! authoritv a quasi-judicial au[-horitY'
;;;"k "
Atkin,L.J.ashethenwas,inR'a'ElectricityC'omrnrs'[(1924)1KB
171]statedttt"t*ftttanybodyofp"t"ot'"haslelalauthoritytodetermine At the outset' it must be borne
questionsaffectingthe;ght"oi"t'bj":Ttoah"t'ittgthedutytoactjudicially' We do not find any merit in the submission' administrative function from
body and decision given by them is a in mind that another'"t-est--which distinguishes
'
such body or p.rirr""i"'i o"*i-:"ai"ial quasi-judicially is required to
quasi-judicial at<:iJ"' in the st'id decision'
iht'" ** no contest or lis between quasi-judicial functloir i', tt" ""ttt"'ity
*ho acts
;"f;;; the Commissioner' The Commissioner' after authoritY which acts administratively
the two act according to tite "'1!"'-*t'"'"t".'L
"orrt",'ai"'Jp;*
makinganenquiryandhearingtheobjectionsu,asrequiredtopassorder.In is dictated by the policy and expedrency'-'
a nurshell, *h"t';;';;;-i" irr" aforesaid <lecision was, where a statutorv
authorityi,".po*"..atotakeadecisionwhichaffectstherightsofpersons Moderndaygovernancehadwitnessedagrowthofadministrativetribunals
to make an enquiry provide efficacious remedies to 'thc
and such ur,
^.tt
oria] i" orrdo the rerevant law required
and decision rendered performing quasi-judicial functions to
and hear the parties, such authority is luasi-juaicial litigantsononet.,'a-tt'areducingtheburdenofthejudiciaryontheother
bY it is a quasi-judicial act' hand.Someofthepoo'r'.tribunalsareconsumerforum'administrative
1950 SC 222 p' 260'
In Prouince of Bombay u' Khushald'as S' Ad'uani' [AIR tribunal,competitioncommission'electricitycommission'telecomregulatory
para 173] it was held thus: -it"""
commissionetc.Theseadministrativeauthoritiesaredeemedtoperform
*(i)'that if a statute empowers an authority' not being a court in the ordinary quasi-judiciu.f ft.r"tiot'' authorities are statutory bodies and are
of a statute
sense, to decide disputes arising "]tt
;i i claim *"dt by one party under empowered to ao qt*i-judicial functions under the provisions
another party and to determine the
the statute *iti"t' "iti* is opposed by whichwouldprejudiciallyaffecttheinterestofthesubject,eventhough
parties and the contest is between
respective .igt't"-;f tit" "o"tu"ti"g
parties who are-opposed to-each other there there may be no l,;" o. i*o contending
lrrl ,u""rr"u of in the statute to the
is a lis and p.i*l rl"L,'"f".a i., "nyihi.rg of theauthorityandthezubject'"dilthesecircumstancesthestatutory
the authorit]-io t"t 5"9ir"W .and the decisionhas complying with-the principles of
contrary it is tie- J"iv
tnait if a statutorv authority authority is requireJ^;"-;; judicialy by iunction, the administrative
the authority is a quasi-judicial act; ""a t;O affect the subject, then, although natural justice. rn p"*--log tt" adjudicating
power to ao ,ov-."'i*iliJ*il pr".i"ai.i"i(
there are t*" i*tj"" "p"., r-* ttr" authority and the contest is between
""t 11. Id. Para 2U25,27'29'
theauthorityproposingtoclotheactandthesubjectopposingit,thefinal

Textbooh on Administrathte Laus
authority is required to step into the shoes of the judicial authorities and
in the course of their functions should be bound by ideals of fairness,
independence and neutrality. The distinction between judicial decisions and
quasi-judicial decisions have been described in Shri' Sitaram Sugar Co.
Ltd. u. (Jnion of Indiarz as "Judicial dec'isions are made according to
lau uhile administratiue decisions etno,nate from ad,rn'inistrat'iue policg.
Quasi-judicial decisions are also ad.ministratiue decisions, but they are
subject to some nteasure of judicial procedure, such as rules of natural
justice". The term 'administrative decision making' or quasi-judicial actions
has been defined as 'a potver to perform acts adrninistrative in character,
but requiring incidentally some characteristics of judicial traditions.'
A judicial function is described as interpretation of the law and its
application by rule or discretion to the facts of particular cases. It involves
ascertainment of facts in dispute according to the law of evidence. It is
generally performed by courts of law or courts of justice. Jud,icial function
is eaercised under' legat authority to decide on the disputes,. after hearing
the parties, maybe alter making an enquiry, and, the decision affects the
rights and, obligations of the porties. There is a dutg to act iudiclally. The
Jud,ge may construe the low and apply it to a particular state of facts
presented, for the d,etermination of the controuersyls. Thus traditionally a
judicial function involves a lis (dispute) between two or more parties and
the following features-
(i) Presentation of the case by the parties to the dispute
(ii) If the dispute is a qirestion of fact,"ihe ascertainment bf question of
facts by means of evidence given by the parties and the arguments
by or on behalf of the parties
(iii) If the dispute is a question of law, the ascertainment of questions of
Iaw will be made on the basis of submission of legal arguments.
(iv) A decision which disposes of the whole matter by applying the larv
to the facts, including a ruling upon a disputed question of law.
In contradistinction, when an administrative officer is required to
perform a quasi-judicial function under the provisions of a statute then
the process involves the first two determinants, may or may not involve
the third determinants but never involves the fourth determinant. The
fourth determinant is taken up by administrative action, the character of
which is determined by the administrative officer's free choice involving
expediency, discretion and policy consideration. In quasi-judicial functions
the administrative authority is not required to follow elaborate judicial
12. (1990) 3 SCC 223.
t3. Jomol Ud.d,in Ahnad u. Abu Saleh Najmuddin (2003) 4 SCC 257.
Chssifcation of Ad.ministrathte Actions 'i4'
-rocedures, but for the purpose of ensuring fairness in the administrative
Ir."""r the authorities are required to follow tlle principles of natural
L-*i"". Some examples of quasi-judicial functions are disciplinary proceedings,
'"oon""rtio" of goods, cancellation of licenses, determination of citizenship
etc.
In B. prabhakara Rao u. Desari Panakala Raol1 Krishna Iyer J.
observed-
a growing branch of Indian jurisprudence - has a
Administrative Iaw -
mission. Where the trellisrvork of technical procedures and rules of evidence
usually applicable to ordinary courts undcr the Code contains too many taboos
."gu..Jitrg pleadings and too many proscriptions regarding trials, administrative
U&1e", manned by lay and legal men, charged with duties which are wider
than decision of individual disputes between specific parties and operating
quasi-judicially at the public interest level, have to enjoy more Iiberal powers
and less formal and more flexible processes if they are to fulfil the statutory
behest efficaciously. To over-judicialize is to undermine. In the construction of
statutes establishing administrative agencies and defining their powers, there
is little scope for the deep-rooted shibboleth that into the statute must be
read, by lawyer's instinct, the requirements of the trial of a civil suit or the
hearing of an appeal by the ordinary courts of the land. This may result in
defeating their obvious Purpose-
Thus the essential features of quasi-judicial functions are-
..{irstly the administrative authority will be required to act judicially under
the provisions of a statute in dealing with issues affecting the legal rights
or having an adverse impact on the interests of the citizens.
-Secondly in performance of the adjudicating function, the
administrative
procedural norms' but is bound
authority is not required to follow the formal
of natural justice'
to comply with the principles
jtrhirdly, the quasi-judicial action will be based on application of the policy
of the state within the norms of fairness'
pourthly, the quasi-judicial action will always be subject to judicial review
atid *ill be bound by the writ remedies.
3.4 PURE ADMINISTRATIVE ACTION
pure administrative action is the residuary action which is neither legislative
nor judicial in character. It involves the core function of implementation and
execution of the laws made by the legislalure. The administrative action
can be classified into two categories ' {ois"retionary functions and $D
Ministerial functions.
14. (1976) 3 scc s50.
 l Adrninistratia e Actions
'a:

(i) Discretionary Functions A*nty the achninistrative authority has a duty to act fairly in performance
'of nit discretionarY functions'
Discretionary function involves exercise of a choice or judgment by
an
power is granted under a provision Sixthly the porver of judicial review extends over administrative actions
The
administrative officer. discretionary
,.ia ,t" judiciary has developed various judicial principles to bring in
of a statute and the officer is required to exercise his discretion or choice administlative accountability'
based on his wisd,om, understanding and experience within the
permissible
statute' Discretion g'eventhly t[e discretionary functions are subject to writ rernedies, barring
statutory parameters in the course of implementation of the
In performance the writ of mandamus.
deals with a particular situation and is devoid of generality.
of discretionary functions there is no procedural obligation for collecting Ministerial Functions
evid.ences and weighing arguments, but there is an inherent duty
to act fairly $/
so that there shall be a minimum adherence with the norms of fairness' Ministerial functions are those functions which are routinely performed by an
judgment' It is
The action is based on subjective satisfaction of the administrative officer administrative agency without exercise of any discretion or
are based on executive policy, fairness and expediency' described .as a duty the discharge of which involves no element of discretion
and the decisions it
In U.P. State Road Transport Corpn' a' Mohd" IsmailTs speaking on the or independent judgment.lT In Eduhantl Kistamma u. S. Venleatareddyls
wa-s held that once the rights and entitlements of the parties are determined
manner of exercising statutory discretion it was observed-
by a judicial or quasljudicial authority, then the issuance of an order based
Thediscretionallowedbythestatutetotheholder.ofanoffice,asLord on such determination is characterized as a ministerial act. Ministerial
Halsbury observed in susannah sharp a. wokefi.eld. [1891 AC 173] is
intended
functions are generally undertaken as a matter of duty imposed upon the
to be exercised ..according to the rules of reason and justice, not according
agency. It is defined as an act "which a person performs in a given state
to private opinion; ... actording to law and not humour. It is toexercisedbe, not
of facts, in a prescribed manner, in obedience to the mandate of a legal
arbitrary, vague' and fanciful, but legal and regular' And it must be
within the limit, to which an honest man competent to the discharge of hisa authority, without regard to, or the exercise of, his own judgment upon the
office ought to confine himself", Every discretion conferr-ed by sta'tute
on propriety of'the act done. In ministerial duty nothing is left to discretion;
of accomplishment of it ir simple, definite duty".le
holder of public office must be exercised in furtherance
" be issued to compel the performance of a
purpose of the power-ro A writ of mandamus can'riiinisterial
'making reference to a tribunal, ministerial act.2o' Examples of functions are collection of revenue,
Examples of discretionary functions are preparation of annual report, presentation of an election petition to the High
of
fact-finding action, entering names in the surveillance register, functions Court etc.
a selection committee, decision to extend time during investigation etc'
The characteristic features of administrative discretionary functions are- 3.5 DIFFERENTIATING BETWEEN DELEGATED LEGISLATION,
z8irstly the legislature confers discretionary power on an administrative QUASI-JUDICIAL FUNCTION AND DISCRETIONARY
officer through statutory provisions and guidelines' FUNCTION
.S'econdly the exercise of discretionary is required
to be made in accordance
*{th th. policy and provisions of the statute' The Supreme Court while determining the nature of administrative action
Thirdly there is no generality to the exercise of discretionary functions' of ,price-fixation' in the case of (Jnion oJ Ind.ia u. cynami'd,e Ind'i'a Ltd'.2r
made the pertinent observation that-
the powe'r is exercised in particular cases involving performing of particular
acts. It is true that, with the proliferation of delegated legislation, there is a tendency
directions; or the
,Fourthly it involves making or issuing of specific with legislative
for the line between legislation and administration to vanish into an illusion.
at'plication of a general rule to a particular case in accordance
policy. 17. Sharil Ahmad. u. Regional Transport Authoritg, Meetwt (1978) l SCC 1'
18. (2010) 1 SCC 756.
19. Jamal Udd.in Ahmad' u. Abu Saleh Najnudd'in (2003) 4 SCC.257'
15- (1991) 3 scc 23s. P
20. S.A. de Smith, Judicial Rcview of Administrative Action, 3'd Ed' 59
16. Ibid Pa.ra 15.
21. AIR 1987 SC 1802.
 .l
t-
Textbooh on Administratiae Lazp
162.
Administrative, quasi-judicial decisions tend to merge in legislative activity and,
conversely, legislative activity tends to fade into and present an appearance of ;ar"ra""lWessarv-Jo-fix -tlre price separatelv
in relation
an administrative or quasi-judicial activity. Any attempt to draw a distinct line ;;=@; sugh siruations rnav ariq,'bqn .-thg-gil+:L-of -grolertv
or goJf is conlpelled io sell tris ptgpetty.gr gogd: to-the--9overnment
or
betrveen legislative and administrative functions, it has been said. is 'difficult
in theorv and impossible in practicet. irs nominee u.ro tnl-ilE-to b" paid--is ?iriliFd-'-6!-the legislature to be

d.t"..i,'udaccordingtotheStatutoryguidelineslaiddownbyit.Insuch
The Court while dealing with the issue whether price-fixation of medicines situations thc determination of price may acquire a quasi-judicial character'
was a legislative act or an act of administrative discretion or a quasi-judicial othe,*ise.pricefixationisgenerall5ralegislativeactivitsr.We.alsowishto
function elaborately discussed and defined the scope of the different categories clearamisapprehensionwhichappearstoprevailincerJaincirclesthatprice
fixation affects the tl.enUf"glulgl-ef-pq.ggtfg9! Prinrarily and therefore
fairness
of administrative actions. and that {air opPortunity- to 'the
,.qrli.u" tlnt' hA be ;i.,.;-.t';Pp"rtunity
be reaA -inLolLt- p-roqedUfglg4-price fixation'
The distinction between the two has usually been expressed as "one between ma@
the general and the particular". "A legislative act is the creation and we do not agree witE-TEebEic premise that price fixation primarilyare affects
promulgation of a general rule of conduct rvithout reference to particular rrianufacturers and producers. Those who are most vitally affected the
copadmer public. It is for their protection that price fixation is resorted to
cases; an adrninistrative act is the making and issue of a specific direction or
the application of a general rule to a particular case in accordance with the
.#-aAvi""t"*e in price -affects them as seriously'as any decrease does a
requirements of policy". "Legislation is the process of formulating a general rnanufacturer, if not *or"."
rule of conduct without reference to particular cases and usually operating in
'future; administration is the process of performing particular acts, of issuing In the earlier case of Ind.ian Etpress Newspapirs (Bombag) Put' Ltd' u'

particular orders or of making decisions which apply general rules to particular
cases". It has also been said: "Rule-making is normally directed toward the
formulation of requirements having a general application to all members of a
broadly identifiable class" while, "an adjudication, on the other hand, applies
to specific individuals or situations". But, this is only a broad distinction,
not necessarily always true. Administration and administrative adjudication
may also be of general application and there may be legislation of particular
application only. That is not ruled out. Again, adjudication determines past
and present facts and declares rights and liabilities while legislation indicates
the future course of action- Adjudication is determinative of the past and
the present while legislation is indicative of the future. The object of the
rule, the reach of its application, the rights and obligations arising out of it,
its intended effect on past, present and future events, its form, the manner
of its promulgation are some factors rvhich may help in drawing the line
between legislative and non-legislative acts. A price fixation measure does not
concern itself with the interests of an individual manufacturer or producer. It
is generally in relation to a particular commodity or class of cornmodities or
transactions. It is a direction of a general character, not directed against a
particular situation. It is intended to operate in the future. It is conceived in
the interests of the general consumer public. The right of the citizen to obtain
essential articles at fair prices and the duty of the State to so provide them
are transformed into the power of the State to fix prices and the obligation of
the producer to charge no more than the price fixed. Viewed from whatever
angle, the angle of general application, the prospectiveness of its effect, the
public interest served, and the irthts and obligations Towing t-f,ere:fiom, there
can be no question that price fixation is ordinarily a legislitive activity.
Pgiee fixation may occasionally assurne a.n adrnin-GTifrive -oT-!ilffiudicial
\--/ ,,
(Jnion of India23 the Supreme Court had emphasized the distinction between
delegated legislation and discretionary functions as-
A disiinction must be made between delegation of a legislative function in the
case of rn'hich the question of reasonableness cannot be enquired
into and the
power6. In the latter
investment by statuie to exercise particular discretionary
casethequestionmaybeconsideredonallgrorindsonwhichadministrative
actionmaybequestioned,suchas,non-applicationofrirind,takingirrelevant
ma,tters into consideration, failure to take relevant matters into consideratiolr,
etc. etc. On the facts and circumstances of a case, a subordinate legislation
may be struck down as arbitrary or contrary to statute if it fails to take
into
implication are
acctur,t very vital facts which either expressly or by necessary
required to te taken into consideration by the statute or, say, the constitution.
This can only be done on the ground that it does not conform to the statutory
or constitutional requirements or that it offends Article 14 or Article t9(1)(o)
of the constitution. cannot, no doubt, be done merely on the ground that
it it
is not reasonable or that it has not taken into account relevant circumstances
which the Court considers relevant'
3.6 ADMINISTRATIVE DIRECTIONS
One important form of executive function is to issue orders, decisions,
executive instructions, orders, circulars and guidelines' In the course
of
22. Ibid, Para 7.
' 23. (1985) I scc 641.
I Classification of Ad.ministratioe Adions 65 {
le Textbook on Adtninistratiae Laut

Administrative law these are categorised as administrative instructions or are ever

directions. The core purpose of these directions is to fill in the'necessary
gaps in existing laws so as to prevent arbitrary exercise of power. Directions
can be specific or have general application. It can be applicable to particular
cases or instance. The exercise of porver to issue directions comes rvithin
the general scope of administrative porverp under Articles 73 and 162 of
the Constitution.
Unlike delegated legislations, these instructions do not have the status
of subordinate rules and can operate within the confines of legislation and
rules. In addition, these instructions do not have the power to override a
legislative policy nor cannot be contrary to the provisions of the Statute.24
To distinguish delegated legislations from administrative directions, the latter
is often referred to as 'administrative quasi-la$" or 'administrative quasi-
legislation'.25
In P.H. Paul Manoj Pandian u. P. Veld.urai26 Supreme Court highlighted
the importance and legal effect of administrative directions. It observed-
Departmental circulars &r€ o.cofilflron form of administrative document by
which instructions are disseminated. NIany such circulars are identified by
serial numbers and published, and many of them contain general statement
of policy. They are, therefore, of great importance to the public, giving much
guidance about governmental organisation and the exercise of discretionary
porvers. In themselves they have no legal effect u,hatever, having no statutory
authority. But they may be used as a vehicle in conveying instructions to
which some statute gives legal force. It is now the practice to publish circulars
which are of any importance to the public and for a long time there has been
no judicial criticism of the use rnade of them.
Once a law occupies the field, it will not be open to the State Government in
exercise of its executive power under Article 162 of the Constitution to prescribe
in the same field bv an executive order. How-ever, it is well recognised that
in matters relating to a particular subject in absence of any parliamentary
legislation on the said subject, the State Government has the jurisdiction to
act and to make executive orders. The executive power of the State would,
in the absence of legislation, extend to rnaking rules or orders regulating the
action of the executi','e. But. such orders cannot offend the provisions of the
Constitution and should not be repugnant to any enactment of the appropriate
legislature. Subject to these limitations, such rules or orders may relate to
matters of policy, may make classification and may determine the conditions
of eligibility for receiving any advantage, privilege or aid from the State.
of thl laws. In a welfare State the functions of the executive and economic
*iduoir.g, which cover within their ambit various aspects of social
activities. Therefore, the executive exercises power to fill gaps by
issuing
,rr.io,r" departmental orders. The executive power of the state is coterminous
with the legislative power of the state Legislature. In other rp-ords.
if the state
Legislature has jurisdiction to make law with respect to a subject, the State
can make regulations and issue government orders with respect to
exJcutive
rules
it, .subject, however, to the constitutional limitations. Such administrative
oriers shall be inoperative if the legislature has enacted a law with
""a1". to the subject. Thus, the High court was not justified in brushing
,"rp..t
it contained
aside the Government order dated 16-11-1951 on the ground that
administrative instructions'2
3:7 ENFORCEABILIW OF ADMINISTRATIVE INSTRUCTIONS
principle applicable is that administrative instructions are
The general
"au"Inua
oft"r, * .rot enforceable because they are not considered as law'
But there are instances when the judiciary have recognized the importance
of the administrative instructions and considered them as necessary for
enforcement.
. In Sant Rarn Sharma a. State of Rajasthan2s the Supreme Court had
or
upheld the view that "It is true that the Gouernment cannot amend
uipersed,e statutorg rules bg ad.mini,stratiae instructions, but if the rules
ore qi,I"nt on ang.-p.ar.ticular point Go.uernment can fi'il up the gaps and
supplernent the rules and, ,issue instructions not incons'i,stent uith the
rules
already framed".
In Guman Singh u. State of Rajasthan2e the Supreme Court on appeal
held that the implementation of the Rajasthan Administrative service 1957
would be subject to the circular issued by the government prescribing the
merit formula for the purpose of determining promotions. Based on the merits
criteria the appellant officers were bypassed by junior officers, aggrieved by
the action the appellants challenged the validity of the rules and instructions
issued under the Circular. The Court recognized that the merit-based rules
issued under the circular were not violative of Articles. 14 0r L6 0f the
Constitution. The rules lay down the principle for assessing the merit of an
officer and are made fundamentally to serve public interest. Justifying the
rules, the Court held that - "the rule provides that the promotion based
on merit in contra distinction to that based on seniority-cum-merit shall

ffi.rain chatut-uedi (2009) tz 6cc as. 27. Ibid.

25. I\{egarry, Adrninistrative Quasi-I,egislation, 60 LQR 125 (1944). 28. (1e68) 1 scR 111.
26. (2O1r) 5 SCC 214. 29. (re71) 2 scc 452.
I I
' Clzssifrration of Administratiae Actions 67 |
16 Textbooh on Administratiae Laztt

strictly be on the basis of merit. The Selection Committee ancl the Promotion authorities are expected to follou, the directions and their breach
by them rnay
Committee consist of very responsible and senior officers of the State and leadtodisciplinaryorotherappropriateactionagainstthem.Theremaybe
being persons of experience they can be trusted to evaluate the merits of an administrative remedl' available to an irrdividrtal concerned for hierarchy
enforcing
directions, e.g., hc may go to a higher authority in the administrative
a particular officer. No doubt the term "merit" is not capable of an easv pfu"i fJ, .r.fo..iuj a directio' i' his fa'our issued b1'' the concer'ed
definition, but it can be safell' said that rnerit is a surn total of various ""i to the
a.f.tr-"tr,. But the poirrt still rernairrs valid that the rernedl' available
qualities and attributes of an employee such as his academic qualifications, indi.,ri<lual is intra-departmental or acLniDistrative in natule and not through a
his distinction in the University, his character, integrity, devotion to duty court of latv. A breach of a direction lly an officer is mostly a
matter between
and the manner in which he discharges his official duties. Allied to this him and his superiors and not for the courts to take cognisance of, barring
may be various other matters or factors such as his punctuality in work, some excePtional situations'30
quality and outturn of work done by him and the manner of his dealings
with his superiors and subordinate officers and the general public and his
rank in the service". CONCLUSION
Thus the grow-th of administrative functions has blurred the dividing
Upholding the legality of the Circular issued the Court held that- line
between the various forms of adrninistrative actions. But it is equally
The Circular contains administrative instructions and it does not profess to
irnportant to identify and differentiate between the various forms of
administrative actions and for the purpose it is important to look
lay down anything else. The Government have issued those instructions "for into
the guidance of all selection/promotion committee and appointing authorities person or persons on
mentioned in the.Statutory Service Rules. These administrative instructions several factors such as - nature of the power conferred,
and the Statutory Service Rules should together be taken as a complete code on whom it is conferred, framework of law concerning that power, consequences
the subject". From the above extract it is clear that in the matter of selection ensuingfromtheexerciseofthatpower'mannerinwhichthepoweris
or promotion the Committees concerned are enjoined not only to have regard expected to be exercised and remed,ies available in case. of breach
of power
so that the rights and liabilities arising out of the different functions
to the statutory rules under which they function, but also to the administrative can
instructions given in the Circular. This makes it very clear that it is not
-
be easily determined.
open to the Committee concerned to ignore the instructions contained in the
Circular or to act contrary to the directions contained therein. Therefore, it
will be seen thlt if the Circular or any part of it gives instructions contrary
to or opposed to any of the rules, the Circular or that part of the Circular
to that extent will be invalid.
Highlighting the distinction between delegated legislation and administrative
instruction, and the enforceability of the latter Jain & Jain has lucidly
explained the position of law-
In legal hierarchy, a rule is superior in authority to a direction.
The basic distinguishing feature between a direction and delegated legislation
is this: w-hile delegated legislation is'binding on both, the Administration and
the individual. and is enforceable through a court of law at the instance of
either the individual or the Administration, a direction, generally speaking, is
not so binding and enforceable right on an individual, or impose an obligation
of the Administration or the individual. Even if a direction is misapplied or
ignored by the Administration, the affected individual and the Administration
cannot enforce it against him.
Although directions may not be enforceable legally, it does not follow' from 30. M.P Jain & S.N.Jain, Principles of Administrative Law, LexisNexis' 6"' lld 201O, pg.
this that administrative authorities may disregard them with impunity. The r70.
Delegated Legislation and
Legal lssues

ItO Texrbook on Administratiae Lazp
4.1 INTRODUCTION
The task of delegating the Iaw making power by legislature to the executive is
not a recent pheuomenon, but is a regular feature in a democratic state where
there is a separation betrn'een the Executir-e and the Legislature. Historically
King Henry VIII of England by the Statute of Proclamations 1539 had been
conferred with extensive powers to legislate'by proclamations and executive
laws. Statutes made by Parliament needs to confer authority on the Executive
to make subordinate law making powers so as to give proper effect to the
will of the Parliament. With the rise of welfare obligations, the interventiori
of State in multiple activities has increased the functional responsibility of
the executive. The excessive pressure on the legislature for makirrg laws on
different areas of socio-economic and political nature has made it necessary
for conferring subordinate legislative power on the executive authorities based
on the theory of residuary po*e.".l In Agri,cultural Market Committee u-
Shalirnar Chemical Works Ltd.2 the Supreme Court observed-
Delegated legislation is not a new phenomenon. Ever since the statutes came
to be made by Parliament, delegated legislation also came to be made by an
authority to which the power was delegated by Parliament. It is no use going
back into the pages of history or to look to the Statute of Proclamations,
1539 under which Henry VIII was given extensive powers to legislate by
proclamations. What is intended to be emphasised is that there has always
been, and continues to be, need for delegated legislation. The exigencies of
the modern State. especially the social and economic reforms, have given
rise to the making of delegated legislation on a large scale (by authorising
the Government, alnost in every statute passed by Parliament or the State
Legislature to make rules) so much so that a reasonable fear could have arisen
among the people that they were being ruled by the bureaucracy.3
The reasons for the growth of delegation of law making power have been
generally identified as-
(i) Time constraint - Law making is a major task involving time and
effort. Proper drafting of legislations and deliberation before passing of
the legislation makes it necessary for the legislators to devote adequate
time. But the legislators are often involved in various political activities
during the rvorking sessions of the Parliament which often denies them
the opportunity to devote adequate time in the law making process.
According to recent estimates almost 90 percent of Parliament's
l. Ram Jawayo Kapur a. the Stote of Punjab AIR 1955 SC 549 : (1955) 2 SCF' 225
2. AIR 1997 SC 2502.
3. (1997) 5 SCC 516, Para 22.
,.|
D"l"s"t"d L"gttl"tio; o"d L
of political debates and protests'
leaving very little time for consideration and passing of legislations."
(ii) Technical cornplexity - The subject rnatter of law making may be
technically complex and it is difficult to lay down in details all the
. conplicated aspects of implementation of the lal' rvithin the statute.
Environmental lau's, internet law's, taxing statutes, urban planning
laws are few examples which requires expert knowledge and wisdom
to lay down the intricate working of the laws in detail'
(iii) Experimentation - Many a times the executive requires time to carry
out necessary experimentation for the purpose of bringing into effect
the legislation. The executive faces many challenges in giving effect
to social welfare legislations and often requires time to understand
the working of the law and its impact on the people and implement
. effectively. It may need to bring the larv into force in phases'
(i-,) Fill up the details - The legislature often lays down the broad policy
guidelines and the general rules of conduct and delegate the executive
to fill up the details in the legislation through rules and regulations
based on practical consideration and exigencies faced in the course of
implementation at the ground level. The executive may require certain.
. .flexibility in working out the details of the legislation for the
purposes
. of better imPlementation.
4.2 DEFINING'DELEGATION'
The teim delegation'has'been defined in Black's Larn' Dictionary as '(the
act of entrusting another with authority by emporn'ering another to act as
an agenf, or representative".5 In P. Ramanatha Aiyar's The Law Lexicon it
is described as "the act of making or commissioning a delegate- Delegation
generally means parting of powers by the person who grants the delegation,
but it also means conferring of an authority to do things which otherwise
that person would have to do himselfl'.o
In Gwali,or Rayon silk Manufacturing (*us) co. Ltd. u. The Assistant
comrniss,ioner oJ Sales ?ar7 supreme court has described the concept of
delegation as-
4. Ecolomic Times, Washout of monsoon session of Parliament will lead to Rs 260 crore loss,
July 25 2015, Available at http://timesoFrndia.indiatimes.com/india/rvashout-of-monsoon-
session-of-Parliament/listshow/4821o376.cms ( Accessed on, November 23, 2Ol5)-
5. Blrck's Law Dictionary 8tl' Ed.
6. 3'd Ed. 201.
7. (r974',) 4SCC 98, I{ANU/SC/036I/1973.

I -
172 Textbook on Administrative Lazp
Delegation is not the complete handing over or transference of a power frorn
one person or body of persons to another. Delegatiorr may be defirled as the
entrusting, by a person or body of persons, of the exercise of a power residing
in that person or body of persons, to another person or body of persons,
rvith complete poFer of revocation or amendlnent rernaining in the grantor
or delegator. It is important to grasp the implications of this, for, much
confusion of thought has unfortunately resulted frorn assurning that delegation
involves or may involve, the complete abdication or abrogatiorr of a power.
This is precluded by the definition. Delegation often involves the granting of
discretionary authority to another, but such authority is purely derivative. The
ultimate power always remains in the delegator and is never renounced.8
Implementation of law is a complicated task and the members of the
legislature do not often have the necessary time to work out the details of
implementing the law, hence it is necessary to grant incidental or ancillary
law making powers to a subordinate executive agency. The term delegated
legislation has been defined by Salmond as "that uhich proceeds frorn
any authoTity other than the souereign pouer and is therefore dependent
for its continued eristence and ualidity on some superior or supreme
authoritg,,.s In St. Johns Teachers Training Institute u. Regional Director,
National Council for Teacher Ed,ucati.onto th. court further clarified and
observed-
A Regulation is a rule or order prescribed by a superior for the managemeDt
of some business and implies a rule for general cottrse of action. Rules and
Regulations are all comprised in delegated legislations. The power to make
subordinate legislation is derived from the enabling Act and it is fundamental
that the delegate on whom such a pou'er is conferred has to act within the
Iimits of authority conferred by the Act. Rules cannot be made to supplant
the provisions of the enabling Act but to supplement it. what is permitted
is delegation of ancillary or subordinate legislative functions, or, what is
fictionally called, a power to fill up details. The legislature may, after laying
down the legislative policy confer discretion on an administrative agency as
to the execution of the policy and leave it to the agency to work out the
details within the frame work of policy. The need for delegated legislation is
that they are frarned with care and minuteness when the statutory authority
making fhe Rule, after coming in to force of the Act, is in a better position
to adapt the Act to special circumstances. Delegated legislation permits
utilisation of experience and consultation with interests affected by the practical
operation of statues. Rules and Regulations made by reason of the specific
power conferred by the statutes to make Rules and Regulations establish
the pattern of conduct to be followed. Regulations are in aid of enforcement
8. Id at Pata 37.
9. Salmond, Jurisprudence, 12th Ed- P. 116.
10. AIR 2003 SC 1533.
I
Delesated Lesislation and Lesal Issues 73 | ,
of the provisions of the Statute. The process of legislation by departmental
Regulations saves time and is intended to deal with Iocal variations
and the
Li". to legislate by statutory instrument in the form of Rules and Regulations
is colferred by Parliament. The main justification for delegated legislation is
that the legislature being over-burdened and the needs of the modern day
society being complex it cannot possib\- foresee every administrative difficultl'
that may arise after the statute has begun to operate- Delegated legislation
Iills those needs. The Regulatiorls made under power conferred by the Statute
are supporting legislation and have the force ancl affect, if validly made, as
the Act passed by the competent legislature'
4.3 LAW MAKING POWER OF THE LEGISLATURE
The primary function of the Parliament is to make laws for the people of
India. Speaking on the scope.of the Indian Parliament to make laws, the
S.rpr.*. Co,lrf In Re: Delhi Laws Act caserr observed that-
Indian Parliament is the creature of the Constitution of India and its powers'
rights, privileges and obligations'have to be found in the relevant articles of the.
cinstitution of India. It is not a sovereign body, uncontrolled with unlimited
powers. The constitution of India has conferred on the Indian Parliament
po*"r" to make laws in respect of matters specified in the appropriate
places and schedules, and curtailed its rights and powers under certain other
articles and in particular by the articles found in chapter III dealing with
Fundamental Rights.
ln Agricultural Market committee u. shalimar chernical works Ltdr2
it rvas further clarified that-
The porver of delegation is a constituent element of the legislative porver as a
whole under Article 245 of the Constitution and other relative articles and when
the legislatures enact larn's to meet the challenge of the complex socio-economic
problems, they often find it convenient and necessary to delegate subsidiary or
ancillary powers to delegates of their choice for carrying out the policy laid
down by the Acts as part of the Administrative Law. The legislature has to
lay down the legislative policy and principle to afford guidance for carrying
out the said policy before it delegates its subsidiary powers in that behalf.
4.4 DELEGATION OF LEGISLATIVE POWERS UNDER A WRITTEN
CONSTITUTION
In England the Parliament being supreme law making agency has the
absolute power to make Iaws as well as to delegate its powers to other
11- [195r] 2scR747.
12. (1997) 5 scc 516.
I
174 Textbooh on Adtninistratiae Laztt

instrumentalities of the state. In the absence of a written constitution, the sannepower cannot be conferred to the grantee (President) for determining
in" p"fi"V as he pleases. Speaking on the scope of delegatio' of
legislative
Pdrliament enjoys sovereign law making powers without any restrictions or
limitations. In contradistinction countries having a written constitution the powers the Court observed-
organs of the state are bound by the constitutional norrns and limitations. granted shall be
The Constitution provides that 'All legislative Powers herein
Delegation of legislatir-e po\\:ers to the executive, even though a modern day ,rest"d in a Congress of the United States. q'hich'shall consist of a Senate and
necessity, had to face constitutional challenges on the ground of violation of .House of Representatives'. Articlc 1, section 1. And thc congress is empowered
the separation of power doctrine. {.o mu.k" all Laws which shall be necessary and proper for carrl'-ing into
Execution' its general powers. Article l, section 8, para. 18. The
congress
4.4.1 manifestly is not permitted to abdicate or to transfer to others
the essential
United States
Lgislative functions with which it is thus vested. Undoubtedly legislation
must
The US Supreme Court was required to meet the challenge of upholding the ofi"n be adapted to cornplex conditions involving a host of details with which
constitutional requirement of separation of power between the three principle the national Legislature cannot deal directly. The Constitution has never
been
organs qf the state and balance it with the growing demands fior a proactive regarded as denying to the Congress the necessary resources of flexibility and
welfare state. In the leading case of Panama Refining Co' u' Ryan13 in
q'hich ivill enable it to perforrn its function laying down policies
pr"acticality,
the Court was required to deal with the constitutionality of legislations and establishing standards, while leal'ing to selected instrumentalities the
conferring broad delegation of law rnaking powers to the Executive- The naking of subordinate rules within prescribed limits and the determination of
petitioners in this case were the owners of an oil refining company in Texas facts tt which the policy as declared by the Legislature is to apply- Without
'for capacity to give auihorizations of that sort we should have the anomaly of
a
challenged. an Executive Order issued by the US President prohibiting for its exertion would
t"gi"lrtirr" po*". which in many circumstances calling
'the transportation in interstate and foreign commerce of petroleum and the u.'r,rt a futility. But the constant recognition of the necessity and validity of
products thereof produced or withdrawn from storage in excess of the amount such provisions and the wide range of administrative authority which has been
permitted to be produced or withdrawn from storage by any State law or devetoped by means of them cannot be allowed to obscure the limitations of
valid regulation or order prescribed thereunder, by any board, commission' the authority to delegate, if our constitutional system is to be maintained.
officer, or other duly authorized agency of a State'. The executive order
was issued under the provisions of section 9(c) of title 1 of the National Thus the uS Supreme court recognized the constitutional obligation of
Industrial Recovery Act, 1933. The validity-.of the order was.challenged on the legislature to perform their essential legislatioe functions of framing
the ground of unconstitutionality of section 9(c). It was argued that the the legislative policy which cannot be abdicated or transferred' But for the
provision made an unconstitutional delegation to the President of legislative purl)oses of granting flexibility and practicality it might be necessary to
power and transcended the authority of the Congress under the commerce lrant subordilate rule making powers to some other state agencies in a
clause. The US Supreme Court analyzed the scope of delegation of legislative limited manner.
power under Section 9(c) and held that the provision was unconstitutioual The view of the US Suprerne court was reiterated in the subsequent case
because it failed to lay doun rules for the guidance of state Legislatures of Schechter Poultrg Corp. u. United, States.rn The appellants were arrested
or state officers. It leaues to the states and to their const'ituted authorit'ies for violating the code of Fair competition for the Live Poultry Industry.
the d.etermination of uhat production shall be permitted,.... It does not The Code was enacted under Section 3 of the National Industrial Recovery
require any find,ing by the Presi.dent as a condit,ion of h'is action. The Act which authorized the President to approve codes of fair competition
Congress in section 9(c) thus declares no poli.cy as to the transportat'ion for a trade or industry to prevent monopolies and monopolistic practices.
of the ercess prod,uction. It was further observed that the fact that the The Code dealt with issues relating to hours of w-orking, $/ages, general
delegation was made to the President and that he will act for what he Iabour conditions, administration, trade practices etc. It was argued by the
believes to be public good is not a justification to validate the delegation of appellants that the delegation of legislative power was outside the permissible
legislative powers in the absence of legislative policy. It is a constitutional r"op" * Iaid in the Panamo, case. The court upheld the contention of
imperative for the legislature to lay down the legislative policy and the the appellant on the ground that the Congress had failed to lay down

13. 293 U.S. 388 14. 295 u.s. 495.

 L
,l?6 Textbook on Administrati* Lo

necessary legislative policy and instead had made a sueeping delegation parliament and the state Legislatures had the power to delegate its legislative
of legislatiue pouer. It was held that Section 3 of the Recovery Act was to an executive authority. and, if so, to what extent it can do
unconstitutional as it did not Iay down any standard nor did 7t prescribe any functions
rules of conduct to be applied, to particular states of fact determined bg so?

appropriate ad,rninistratiue proced,ure. ln addition the discretion conferred All the se'en judges gave seven different judgmeuts, horvever on
some
and thus enacting major point" of "ornmonality can be identified in the opinions. the
on the President in approuing or prescribi,ng codes, 'throughout the countrg, of powers is permissible under the
laus for the gouernment of trad,e and, ,industry issue oi whether delegation legislative
is airtually unfettered.. The code making authority was declared to be trraiu,., Constitution the Supreme Court based its rationality on threecore

unconsti.tutional delegation of legislatiue power. arguments.

The first argument was based on the principle of delegatus non
potest
4.4.2 India d,elegare which implies that a delegated authority
cannot be further delegated

Post-independence the Indian Supreme Court was also required to deal with
i.e.oneagentcannotlawfullyappointanotheragenttodothetask.The prior to
Court after analyzing the legislative histoly of India observed that
similar issues in the presidential reference of In Re: Delhi Laus Act ca'se'rs was bound by the Act of
independence eve' tilough the Indian legislature
In this ca,se a reference was made by the President of India under Article the imperial parliameni which created and was incapable of going beyond
143 of the Constitution to the seven-Judge Bench of the Supreme Court
the circumscribed powers but within those limits it was not an agent
or
seeking the opinion on the three following issues-. g.itisn Parliame't' The plenary powers of law making of
Act 1912 was ultra vires the
;;i"g"r. of the
(1) Was Section 7 of the Delhi Laws the indian legislature were same as those of the British Parliament within
Legislature Passed the Act? such limits. Thus the doctrine was never applied against Indian legislature
during the colonial regime, hence post-independence the same shall
not be
Section 7 - Provincial government may, by notification in the official gazette, appliclable.aga.inst the Indian
parliament. on the related argument of whether
e:itend with such restrictions and modification as it thinks fit to the Province
of Delhi any enactment which is in force in any part of British India at the ii" t"girtitrr-re can be deemed to be the delegate of the people ornothe electors.
that
date of such notification. Negating the argument Kania C.J. observed - "There can be d'oubt
*"*a"i, of a legi,slature represent the majority of their electors, but the
(2) Was Section 2 of the Ajmer-Merwara (Extension of Laws) Act 1947 legislature- as' a iody cannot'1e said to be an agency of the electorate as
ultra vires the Legislature which passed the said Act? a whole. The ind,iuid,ual members nlay and often tlo represent d'i'fferent

Section 2 - The Central Government may, by notification in the official part,ies and d'iffet.ent shad,es of opinion, but t|t,e cornposite legislature which
Ieg,islates, d,oes so on ,its oun authoritg or pouer uthich it deriues from
the
gazette, extend to the Province of Ajmer-lr{erwara with such restrictions and
and, its acts cannot be questioned, by the electorate, rLor carl
modificati<-rns as it thinks fit any enactment which is in force in any other constitution,
the latter raithdraru its power to legislate on any particular matter"'
Province at the date of such notification. The
second argument to invalidate delegation of legislative power rn'as based on
(3) Was Section 2 of the Part C States (Laws) Act 1950 ultra vires the was also negated on the
the doctrine of separation of powers' This argument
ground the principle had not been applied in any country in absolute' Even
Parliament?

section 2 - The central Government may, by notification in the official in us rvherein the doctrine has been incorporated in the constitution but
to
Gazette extend to any Part c states (other than coorg and Andaman and the delegation of legislative pow-er to administrative agencies is considered
Nicobar Islands) or to any part of such State. with such restrictions and beapracticalnecessity.Thelastargumentwasbasedontheconstitutional
modifications as it thinks fit, any enactment which is in force in a Part lawargumentof.thepo\tr'erconferredupontheLegislaturetomakelaws
A State at the date of the notification and provision may be made in any cannot be delegatea uy trrat department to any other body or authority
enactment so extended for the repeal or amendment so extended for the repeal because where the sovereign power of the State has located the
authority'
or amendment of any corresponding law (other than a central Act) which is there it must remain'. The supreme court opined that the power to whose
for the time being applicable to.that Part C State' has entrusted the law
judgment, wisdom and patriotism the Constitution
relieve itself of the responsibility of
15. 11951] 2 SCF-747. making power, such authority cannot
 tion and Legallsst31

Textbook on Administrath'e
Laa'
178 I contention of excessive'
Ot!gf?:J""
The Court nega'ted the p'it'"iples- governing the permrssl \iJlXtT
and laid dow]r it rt
delegatingittootlreragencies.ButinmostotlrerjurisdictionsthecourtsI -.wer r"ei"rlil function test' observed-
r,""J i"..ipreted the'ir{;i:;
.,"
':'i{ ***" }r?'::"iT::f"Jff';itif': I i"teeu.tio,t bv "pnorai"*;;
with which it hu' b".'' I It r-as settred bv the majoritv
j"d9f:::-ilr,*:.ff::i
";";";i"r "":w;tt;:triJt::;:l
Hm;"H1,,fff::1:".i:;":l?:".il1-'il*;;;"d'tv larv I
delegate its essential
i" r"ai' the parliaru;;:";;
similarly favour *""*li]ti#l'""X":*#";TS,.'"J:'1H:,-'';;''"'xl:::"lTi:Hi
entrusted. tt". tnt"" arguments put forth in i
rnaking functions' T;;-b' negating th;'i;;;":s"nt-"1i,!"'ll-t upheld the $'il,' '"'1"""*: :l.l"lln*ili H J;:ilf':n 1i'." o'nict'
of *on-delegation of legislative Po*l'". pow:s act' I
Legislature must d( ^;;";;; 'llii to guide the
":ii,cipres
i-:t"i9-1:o-'
proposition ttt"t auf"litio" of iegislative i "."::T:ssible since Indian t
I
to control o"''''i"1""''1""' ""a i::t Itt" to*' The essential legislative
-extent
of delegation, the court Yi.l""d rights' i
'r"
officials or the Uoay"'ii'^po*": ':' "*1t-":;
on the issue of and aII its powers' consists i''"'r'"^ alt'1*1".*t:" ::r',1?T# * :::':lly:l"Ji?;:t:il
parliament *".. a'";;;,ure of the co.r"ti'rrrion articles of the Constitution' function
'}'"y,tl'.',]f:"l pr nci pre is he
iiil, i":J:;' i"*3"a1t-i1-T:
t
privileges and obtigations a'e dttit'ea
ft;;iff*"nt Subject
I
x':til"il"r supply' ilinr"
""a. 1f i'
i

Uo'ay *i'n ""fi*ited powers' I

or t"""'i'i^i
the Parliament is "ti'"" """"*'oU"a the Legislature mairrtenance ot t"t''"^;-'' ;ttil:"'":l:
to the limitations ffi ;""t" i*p"'"a-i'"'ht 'Cott"titution' i *" "niJ'" "':Tgu:*"i:j
n
; tl':t*1. *'$:*:lx"Tl ; "":J;'? " * its power s
i" "rrpr.*" and its powers are plenary' offers sufficient
under section 3'
TEST
4.5 ESSENTIAL LEGISI.ATIVE FUNCTION the test Thus the rule relating to delegattT.^"t legislative
power rillas summarized
legislative functions to
an
Court in Delhi Laws Act cose delegate tt"-essJtttiar
After the opinion of the Supreme "no't'ni"t'ar
was analyzed !v trtt five-Judge that the t"gi"rrtor"l;;;ot
it" f"*ai""-"i int1"r""-
legislature to determine
of constitutionality "r"i.r"*r.a legisiation Bagla u' State of administrati.,r" Uoay.'it;"r;;
;t*t13 of conduct' But the
of the Cot* in the leading
l'i" wife were arrested for the legislatil'" potilv;J 1nt"it"u*e
the "u'"'of j:i'*#*;;';::*';5+'J#:"J':T":':iiof
bench
Mad,hya Prad'esh''o f" ttti"
contravention of the provisions-
case u'o]'"fi"ti-"t'i
of tht gottorr f""tiles (Control
of Movement)
Fssential Supplies
,*'il;;p.'s*ru
became a Point or provisions
l-tna"' ths Jrot""io"-"' of the' legislative d;;'"r",tr*^1t1"d
Order, 1948 which *-* ft"^ta ;;-;; alleged that Sections 3 and courts had to """r"i-ior-iie and even prior legislations'
(Temporarv eo'"u") I* l"*1ntut'-'std'
o" tn"'st"""a oi e*c"ssi'"e delegation of the statute, o"l*il"' itiit911"1i;i-J"u"""s
-c"rr,
4 of the Act were "t""t='n"tt""t "ot"""ture of the statute as well ""
lnBhatnago"el'6o-'-t'td"u'[Jnion"ffiil'theSupremeCourtstated"i/
""": :':':::"j";';il':: r:':;:'#::'#;::':;:;'"i:;
analyzed ,ir""
legislative power. r* Ire carl find a '""'-"*"ul'i
as Sections 3 and 4'
so far as it appears to it to {"-";i;;i,i'^#iii,'*:iT{f
be
Section 3' (1) The Central Government'
i*."osing supplies of any essential
iy suss"sttns that ;!',,:l"l*":i::;,1,i;;"r;J"!"1:;:ilJ!*#
s"."ttio::^.:r,:,:^-:i:"::;;,r," r*o"rrs and Evorls fcf
necessary or exp"d-ierit fo, mairrtaining.oi and availabilitv at fair -'r'" down in the Imports
o' ro""l"t"ie..titi' 'o"iLur; ;;;;;tu*;n \Alhile searching ;'";;;";;ii"v-raia "i;ZtT;"
commoditv, nroduct'on' supply the c ourt'"f"'J' t"
prices, may by *o"t ot""tL for regt-tlatini"i'l"t"tttuti*gtlhe
cornmerce tnereln"""""' "*9*:"j:;
and distribution thereof and trade
and
"*::f#;:'"r".tff:"'lT
(2) Without prejudice to the generality
of the pou'er conferred by sub-section z;:"n;;'ff"::;;1":;;:":;l:;:;:fii;:;;;;:;;;"''Iikei'Lspredecess'r'
s;;;;;; essential tni ttfe
of the communitvrz
uas to maintainP J'--toin his minority opinion irt
provide- Gwal'i'or
(1), an order made thereunder may
or otherwise the production or In this "ont"*i?X' Mathew raised the concerns relating
to
(a) for regulating by licences' -rytTl" Rason st'tk Mfg' (i;;')-Ci,-!:! ,::.cir'nHe observed-
theory'
manufacture of any essential commodlty;'-"""-' the essential legisiativl functions
or otherwise the storage' transport' 1957 gQ a78'
(d) for regulating by. licences' permits or
use of any essential oJ Ind,algbz SCR 701 : AIR
distribution, disposar' acquisition' "ot"t'*ptiot ffin
commoditY;. -. " "" 18. 1d at Para 11'
19. (1974) 4 scc 98
16. AIR 1954 sc 465'
 .J
' | 80 Textbooh on Administratiae Laut

power (rllnaas refrlalrls in the delegator and

is rleuer rerlounced.2o Thus
Delegation of "law-making" power, it has been said, is the dynamo of modern shall tra'nsfer legislative
Government. Delegation by the Legiglature is necessary in order that the the theory of abdication implies that the legislature
exertion of legislative power does not become a futility. Today, while theory po*,"tottreexecutiveauthoritybutsuclrdelegationshallnota,mountto
still affirms legislative supremacy, we see power flowing back increasingly to abandonment , since the erecutiue
in m'aking the regulations is no more
iecall its authority.2l
the Executive. Departure from the traditional rationalization of the status quo than an agent of the legi.slature which "onzl.og,
arouses distrust- The Legislature comprises a broader cross-section of interests
However Khanna J. laying down the majority
opinion rejected the
than any one.administrative organ; it is less likely to be captured by particular essential functions theory'
interests. We must not, therefore, lightly say that there can be a transfer of abdication theory a.rd upheld the longstanding
On the basis of constitutional limitations
it was held that-
legislative power under the guise of delegation which would tantamount to
abdication. At the same time, we must be aware of the practical reality, and
[T]he power conferred
upon the Iegislature to make laws cannot be delegated
that is, that Parliarnent cannot go into the dei,ails of all legislative rnatters. from delegating anSr
The doctrine of abdication expresses a fundamental democratic concept but at to any other authority ioes not pieclude the legislature
the same time we should not insist that law-making as such is the exclusive powernotlegislativewhichitmayitselfrightfullyexercise.Itmayconferan
which may involve discretion'
province of.the Legislature. The aim of GoveJnment is to gain acceptance for authority in relation to the t*u""iio" of a law
but such authority must be exercised under and in pursuance of the law' The
objectives demonstrated as desirable and to realise them as fully as possible.
The making of law is only a means to achieve a purpose. It'is not an end Legislature.,'.'"ta".t...thepolicyofthelawandfixthelegalprincipleswhich
in itself. That end can be attained by the Legislature making the law. But aretocontrolirrgit"""*t";U"tanadministrativeofficerorbodymaybe
many topics or subjects of legislation are such that they require expertise, investedwiththepowertoascertainthefactsandconditionstowhichthe would be infinite
technical knorvledge and a degree of adaptability to chan'ging situations policy and.principles "ppfy' fi this could not be done there
confusion in the r"*",'""a in an effort to detail and to particularise, they
which Parliament might not possess and, therefore, this end is better secured
by extensive delegation of legislative power. The legislative process would would miss srifficiency both in provision and execution'22
frequently bog down if a Legislature were required to appraise beforehand the powers without any
myriad situations to which it wishes a particular policy to be applied and to It was further observed that conferring of blanket
formulate specific rules for each situation. The presence of ffunry VIII clause legislativepolicy'guidelinesorStandardsintheStatutewouldgiveriseto
in many of the statutes is a pointer to the necessity of extensive delegation. startling situation.
The hunt by Court for legislative policy or guidance in the crevices of a I
as the crime situation in the
statute or the nook and cranny of its preamble is not an edifyirig spectacle. Supposing the Parliament tomorrow enacts that
in the country from a
I

It is not clear what difference does it make in principle by saying that since I country has deterioru.ted, criminal law to be enforced
as is framed by an officer mentioned in the
the delegation is to a representative body, that would be a guarantee that !
particular date would be such delegation of
enactment. Can it be said that there has been
no excessive
the delegate will not exercise the power unreasonably, for, if ex hypothesi the omits to lay down in the statute
Legislature must perform the essential legislative function, it is certainly no legislative power even though the Parliament law? The
policy for the making of such criminal
consolation that the body to which the function has been delegated has a any guideline or legislative lost sight
vice of such an enactment cannot, in our opinion, be ignored
.or
representative character. In other words, if, no guidance is provided or policy not approve the law made by
' laid down, the fact that the delegate has a representative character could of on the ground tn"f if the Parliament does
which that officer was
make no difference in principle. the officer concerned, it can,-repeal the enactment by
authorised to make the law'23
In this context he advocated for the application of the 'abdication test' in
place of the essential legislative function test. He ad'"'ocated-Delegation is not lnAu'inderSingha'stateofPunjabzaanattemptwasmadetobalance
case atrd create a
the complete handing ouer or transference oJ a pouer from one person or the differing views as discussed in the Gwalior Rayon
body of persons to another. Delegat'ion n'Lag be defined, o,s the entrusting, theoreticalpropositiontotheconceptofdelegationoflegislativepower.It
by a person or body of persons. of the erercise of a pouer resid'ing i,n observed
that person or body of persons, to another person or body of persons,
20. Ibid.
with complete polDer of reuocation or an'Lend,ment rema'ini,ng i,n the grantor 2r. Id.
or d,elegator.... Delegation often inaolaes the granting of di.scretionarg 22. (1974) 4 SCC 98 Para 23'
' authority to another, but such authority is purely deriuat'iue. The ultimate 23. Id.
24. (L979) 1 scc r37-
 ..l
I
lgZ Textbooh on Administratizte Lau Delegated Legisl'atian and Legal Issues 83l '

The Founding Document of the nation has created the three great of another agency either in whole or in part is beyond the permissible limits of
instrumentalities and entrusted thern with certain basic powers-legislative, d.t"g^tio'. tt i" io. a Co'rt to hold. on a fair, generous and liberal corrstructio.
judicative and executive. Abdication of these powers by the concerned of u.i imp,rgned stat*te rvhether tlie legislature exceeded such linrits. But the
instrumentalities, it is axiomatic, amounts to betrayal of the Constitution said liberal construction should not be carried by the courts to the exterrt
itself and it is intolerable in laq'. This mqans that the legislature cannot self- of always trving to discover a dormant or latent legislative policy to sustain
efface its personality and make ol'er, in terms plenary, the essential legislative an arbitrary polr'er conferred on executive authorities. It is the duty of the
functions. The legislature is responsible and responsive to the people and its Courttostrikedorr'rrwit}routanyhesitationan)rarbitrar.vpo\{'erconferred
representatives, the delegate may not be and that is why excessive delegation on the ex'ecutive by the legislature'
and legislative hara kiri. have been frowned upon by constitutional law. This
is a trite proposition but the complexities of modern administration are so Thus the suprenre court laid down the follow'ing propositions as the legal
bafflingly intricate and bristle with details, urgencies, difficulties and need for basis for upholding the constitutionality of delegated legislation.
flexibility that our massive legislatures may not get off to a start if they must (i) The legislature must perform their essential legislative function'
directly and comprehensively handle legislative business in all their plenitude,
proliferation and particularisation. Delegation of some part of legislative power (ii) The incidental, ancillary or subordinate matters can be delegated.
becomes a compulsive necessity for viability. If the 500-odd parliamentarians are (iii) After delegation the parliamentarJ*'control over.the delegated legislation
to focus on every minuscule of Iegislative detail leaving nothing to subordinate should be a continuing Process'
agencies the annual output may be both unsatisfactory and negligible. The (iv) Judiciary should exercise the power of review to ensure that excessive
Law-making is not a turnkey project, ready-made in all detail and once delegation does not take place and a legislation which fails to lay down
this situation is grasped the dynamics of delegation easily follow. Thus, we
reach the second constitutional rule that the essentials of legislative functions
the policy is struck down on the ground of unconstitutionality.
shall not be delegated but the inessentials" however numerous and significant
they be, may well be made over to appropriate agencies. Of course, every 4.5.lTestforValidDelegationofLegislativePowers
delegate is subject to the authority arid control of the principal and exercise of ln Auind,er Singh u. State of Punjab2s the Supreme Qourt applied the test
delegated power can always be directed, corrected or cancelled by the principal.
Therefore, the third principle that emerges is that even if there be delegation,
for validity of delegated legislation while interpreting the provisions of Punjab
parliamentary control over delegated legislation should be a living continuity as Municipal Corporation Act, 1976.
a constitutional necessity. Within tfese triple principles, Operation Delegation
Suchbeingthebasics.acceptedbyprecedentialprofusion.ofthisCourt,*"'1":".
is at once expedient, exigent and even essential if the legislative process is to examine whether any essential legislative function has been fransplanted into
not to get stuck up or bogged down or come to a grinding halt with a few the hands of Government or corporatior-r by the Act. rvhether the delegation
complicated bills. It is apt to excerpt here an oft-quoted observation from
itself is an entnstment of overbroad porver, so unguided that the delegate
may
. Vasantlal Maganbhai Sanjanwala affirmed it Deui Das Gopal Krishnan and' run amok and do what is arbitrary, unreasonable and violtr,tive of Articles 14
Ors. a. State of Punjab and Ors. [1967] 1 S.C.R. 557: Taxation is exaction and even expropriation and,
and 1g of the Constitution.
therefore, the right to property is in peril q'hen a fiscal' mea^sure is
afoot'
The Constitution confers a power and imposes a dut)' on the legislature of taxation
to make laws. The essential legislative function is the determination of the Article 10 comes into ilay when lar,*, is made for purposes and
that must comply wiih part III. Arbitrariness must be exchrded in the
legislative policy and its formulation as a rule of conduct. Obviously it cannot law
larv, for. if power is arbitrary it is potential inequality and Article 14 is fatally
abdicate its functions in favour of another. But in view of the multifarious
activities of a welfare State, it cannot presumably work out all the details to allergic to inequality before the law'
suit the varying asp€cts of a complex situation. It must necessarily delegate
the working out of details to the executive or any other agency. But there is In this case section 90 of the Punjab l\lunicipal corporation Act' 1976 $'as
a danger inherent in such a process of delegation. An over burdened legislature held to be a tert-book illustrati,on of a aalid. delegation bg the legislature'
or one controlled by a powerful executive may unduly overstep the limits of The court analysed the issue of whether the power to impose tax under
section 90 by the corporation was ultra vires on the ground of absence
delegation. It may not lay down any policy at all; it may declare its policy in of
vague and general terms; it may not set down any standard for the guidance
of the executive; ii; rnay confer an arbitrary power on the executive to change
or modify the policy laid down by it without reserving for itself any control
over subordinate legislation. This self-effacement of legislative power in favour 25. (1979) I scc 137
,J
'X g4 Textbooh on Adrninistratizte Laut

any guiding principle to determine tlne purpose of the Act26. Negating the Thus, the impugned provision contains a severe restriction
that the taxation
contention Krishna Iyer J. observed- i""#f. by the corporation, or by the Government acti'g for the corporation,
geor.d *'liolly to the goals of the Act. The fiscal policy of Section
While what constitutes an essential feature cannot be delineated in detail "l"tf-U"
6o i" -"iir"st. No tax under guise of Section
90(2)(b) can be charged if the
it certainlv cannot include a change of policl'. The legislature is the master or sa'ction it. The expression "purposes
of legislative. policy and if the delegate is free to switch policy it may be f.rrpo""" of the Act do not require
-"f It a ceiling on the total quantum
tfri, Act', is pregnant rvith rneaning. sets
which the fiscal levies may
usurpation of legislative power itself. So we have to investigate whether the ifrrt -'y be collected. It canalises the objects for
or optional, of the
policy of legislation has been indicated sufficiently or even change of policy U" It brings into focus the functions, obligatory
has been left to the .sweet will and pleasure of the delegate in this case. "p.rri.
*rroi"ip"t bodies and the raising of resources necessary for discharging those
functions-nothing more' nothing else'
\Ve are clearly of the view that there is fixation of the policy of the legislation
in the matter of taxation, as a close study of Section 90 reveals; and exceeding
that policy will invalidate the action of the delegate. What is that policy? In Agricultural llI|,rket committe.e u. shalimar che'nt'ical Works Ltd'27
the Sufreme Court referred to its earlier decisions and sumrnarized
the
The levy of the taxes shall be only for the purposes of the Act. Diversion for It
other purposes is illegal- Exactions beyond the requirements for the fulfilment important principles of delegated legislation' observed-
of the purposes of the Act are also invalid. Like in Section 90(1), Section
90(2) also contains the words of limitation 'for the purposes of this Act' and The principle which, therefore, emerges out is that the essential legislative
legislature
that limiting factor governs Sub-sections (3), (a) and (5). Sub-section (3) function consists of the determination of the legislative policy and the
cannot abdicate essential Iegislative function in favour of another. Power to
vests nothing rlew beyond Sub-sections (1) and (2). Sub-section (4) does not
authorise the government to direct the corporation to impose any tax falling make subsidiary legislation may be entrusted by the legislature to another
either
outside Sub-section (1) or Sub-section (2). Sub-section (5) alio is subject to body of its choice but the legislature should, before delegating, enunciate
expiessly or by implication, the policy_ and the principles for the
guidance of
a similar circumscription because the Government cannot issue an order to
impose a tax outside the limitation of Sub-section (1) or Sub-section (2). tfre abteiates. Th."" principles also apply to taxing statutes. The effect of these
principle"s is that the delegate which has been authorised to make subsidiary
iules and regulations has to work within the scope of its authority and cannot
26. Section 90: Taxes to be imposed by Corporation under this Act and arrangement ofcertain *id.r, o. co-nstrict the scope of the Act or the policy laid down thereunder'
taxes collected by Government (1) The Corporation shall, for the purposes of the Act. It cannot, in ihe garb of making rules, legislate on the field covered by the
levy the following taxes:- Act and has to restrict itself to the mode of implementation of the policy
(a) taxes on lands and'buildings;
(b) octroi; and purpose of the Act.
(c) a tax on vehicles and animals;
(d) a tax on advertisements other than advertisements published in nervspapeml Thus the tests for valid delegation of legislative po!\'er can be summarized
(e) a developrnent tax on the increase in urban land values caused by the executiort of into-
any development or improwement work. (f) The legislature cannot efface itself;
(2) Subject to the prior'approval of the Government the Corporation may, for the purposes
of this Act, in addition to the taxes specified in sub-section (1), lery,- (2) it cannot delegate the plenary or the essential legislative function;
(a) a tax on professions, trades, callings and employment; and a (3) even if there be delegation, parliameutary control over delegated^legislation
(b) any other tax which the State Legislature has power to impose under the should be a living continuity as a constitutional necessity.28
Constitution;
Provided that no tax shall be imposed under this sub-section unless an opportunity has
been given in the prescribed manner to the residents of the City to file objections and' 4.6 EXCESSIVE DELEGATION OF LEGTSLATIVE POWER
the objections, if any, thus received have been considered.
post In re Delhi Lauts Act c@se excessive delegation of legislative power
( ) The Government may, by special or general order, direct a Corporation to impose any tax on the executive authorities is deemed to be unconstitutional. some of the
falling under sub-section (1) or sub-.section (2) not already imposed, within such period as examples of excessive delegatiorr are - power to legislate on matters of
may be specified and the Corporation shall thereupon act accordingly.
(5) If the Corporation fails to carry out any order passed under sut>-section (4), the Govern- policy, power to amend or repeal Acts of Parliament, power conferring wide
ment may by a suitable order notified in the Official Gazettr' impose the tax and the order
so pa,ssed shall operate as if the tax had been duly imposed by the Corporation under 27. rd..
sut>.section (1) or suLsection (2), as the case may be. 28. (1997) 5 scc 516.
 | ..
t:18-6; Textbooh on Administratbe Laut

discretion without any limits specified, power to make rules without being criteria, no standards and has
not prescribed any principle on which a
challenged in a court of law etc.2e The grant of excessive law making is irrii""i". disease or condition is to be specified in the Sched'le. It is not
popularly known a,s Henra VIII clause.so lOr"a what facts or circumstances are to be taken into consideration to
ilil. a particular condition or disease. The power of specifying diseases
The term Henr1.. VIII clause has been commonly used to refer to delegated therefore be held to be going
legislative po\l,ers contained in legislations rvhich give "the delegate the pou'er u,""j-"""aiti"ns as given in Section 3(d) must
il"*"a permissible boundarieb of valid delegation. As a consequence the
to amend the delegating Act in order to bring that Act into full operation must be struck
Sc-hedule in the rules
down'
or otherwise by Order to remove any difficulty, and at times giving power the Supreme
to modify the provisions of other Acts also".3l Such provisions have been In West Bengal ElectTicity Board,.u. Desh Band,hu Ghosh3s of the Board's
nicknamed as the 'Henry VIII clause' with regard to the English monarch Court dealt with the constitutionality of Regulation 34
Henry VIII as an impeisonation of executive autocracl'.32 R"g,rlation which was framed under the Electricity (supply) Act, 1948. The
respondent was a permanent employee of the WB Electricity Board and
Excessive delegation is also considered to be violation of Article 14 of the on March 22, 1984
** ai"*i"red from service without any assigned reasons
Constitution giving rise to arbitrary exercise of power. Article 14 has been
used by the Indian judiciary in several cases to strike dorn'n confermenL and Uy order of the'secretary of the Board applicable with immediate effect
on ""
pry-"nt of three month's sala.ry in Iieu of three months' notice. The
exercise of arbitrary powers by the State or any of its instrumentalities. provided
For the purpose of determining whether a legislation suffers from excessive terrnination of service was in accordance with Regulation 34 which
that "in case of a permanent employee' his service may be terminated by
delegation the Court is required to take into consideration the subject matter, of salary for the corresponding
the scheme, the provisions of the Statutes including its preamble and the facts serving three months, notice or on payment
and circumstances in the background of which the Statute is enacted. The perioJin 1ieu thereofl'. The Court compared Regulation 34 with Regulation
judiciary generally
Jll(lrcrary slarts with
genera,rry starts wlLrl the presumption that
l,lte PrusuurPuruu uu4u a usrcSouEu legislation
4 delegated lg *hi"tr dealt with termination of services of a permanent employee by the
is intra vires and if it is open to two constructions, the courts generauy
generally Board without notice. Regulation.33 states-
adheres to that construction or interpretation which would make the law 33(1) unless otherwise specified in the appointment order in any particular
valid so as to avoid declaring it as ultra vires.33 th" services of a permanent employee of the Board may be terminated
In the leading case of Harnd,ard' Dawakhana u- [Jnion of Indiala the ""t.,
without notice-
constitutionality of Drugs and lr{agical Remedies (Objectionable Advertisement) (i) on his attaining the age of retirement or by reason 6f'a declaration by the
Act 1954 was challenged. It was alleged that the legislation was in violation competent medical authority that he is unfit for further service; or
of various fundarnental rights under Articles 19(1)(a), (f) & (g)' L4, 2L and I

31 as the petitioners were facing difficulty in publicizing their products
and were being unnecessarily harassed by the authorities in regard to their
advertisements. It was further alleged that the clause (d) of Section 3 suffered
from excessive delegation as it did not lay down ang certain criteria or
proper stand,ard,s and, suryender unguided, and uncanalised pouer to the
executiue to ad.d, to diseases in the Schedule. Striking dorvn the provision
as unconstitutional the Court observed that Parliament has established no
29. IP lr,Iassey, Administrative Law, 6"" Ed. 2005.
30. Detailed discussion on Henry VIII clause later in this chapter.
31. Central Inland. Water TransporT Corporation Lirnited u. Brojo Nath Ganguly \{ANU/
SC/0439/1986, Para 100.
32. The constitutionality of rernoual of d,fficultg clause hzs been discussed under 'Power of
Removal of Difficulty Clause'.
33. AIR 2003 SC 1533.
34. (1960) 2SCR 67r : AIR 1960 SC 554.
(ii) as a result of disciplinary action;
(iii) if he remains absent from duty, on leave or otherwise, for a continuous
period exceeding 2 Years.
(2) In the case of a temporary employee, his service maybe terminated bv
serving of-
(a) one month's notice on either side or on paytlent of a month's salary in
lieu thereof; or
(b) notice on either side for the period specified in the appointment order or
contract or on payment of salary in lieu thereof, as the case may be;
a temporary employee shall also be deemed to have been
(c) the service of
terminated automatically if the period of extraordinary Ieave without pay
35. (1985) 3 SCC 116.
I
I B8 Textbooh on Administratiae Lazp
and/or of unauthorisecl absence from duties exceeding (s) a maxirnum pcriod
of 90 days.
comparison between the two Regulations the court observed that
on
tJne Regulation 3l was arbitrary ,in nature and suffered from the t,ice of
enabling d.iscri.mination. because unlike Regulation 33 it did not lay dou'n
any criteria or grounds for exercise of discretionary power. Negating the
arguments of the appellant that the power under Regulation 34 was to be
exercised by a high ranking officer and would be expected to be exercised
in a reasonable manner the Court observed-
On the face of it, the regulation is totally arbitrary and confers on the Board
a power which is capable of vicious discrimination. It is a naked 'hire and
fire' rule, the time for banishing which altogether from employer-employee
relationship is fast approaching. Its only parallel is to be found in the Henry
VIII class so familiar to administrative lawyers-36
The Supreme Court upheld that the power to dismiss an employee without
the necessity to assign any-Ieason was not only an example of arbitrary,
uncanalised and drastic power but also violative of principles of natural
justice.
Similar rationale was applied by the Supreme Court in the case Central
Inland, Water Transport Corporation Limited, u. Brojo Nath GangulysT
wherein Rule 9(i) of the central Inland water Transport corporation Ltd-
(Servicer..Discipline and Appeals) Rules 1979 conferred on the Corporation
the power to terminate the service of a permanent employee by giving him
three months' notice in writing or pay him the equivalent of three months'
basic pay and clearness allowance in lieu thereof. The Court equated the
provision to the Henry VIII clause as it conferred 'absolute and arbitrary
power upon the corporation' without any specific guidelines being laid down
,to indicate in what circumstances the power given by Rule 9(i) is to be
exercised by the Corporation'. In addition no opportunity of being heard
is provided to a permanent employee whose service was being terminated
in the exercise of this power. On the issue of the power being exercised
cautiously and not arbitrarily by the Board of Directors the Court negated
the contention by observing houeuer highly placed a person rnag be, he
nxust necessarily possess human frailties based on Lord Acton's well-known
saying ,,Power tends to corrupt, and absolute power corrupts absolutely".38
Rute 9(i) was heid to be an absolute, arbitrary and unguided power upon the
Corporation which could even enable it to act in a discriminatory manner
36. MANU/SC /037411985' Pzra 4.
37. AIR 1986 SC 1571, MANU/SC/O439I1986.
38. Id at Para 101.
l
Delegated Legkhtion and Legal Issues 89tl
between employee and employee. It was further observed "A clause such as
Clause (i) of Rule 9 is against right and reason. It is wholly unconscionable.
It has been entered into between parties between whom there is gross
inequality of bargaining power".3e Other decisions applying similar rationale
are-Dellii TYansport Cirporation rt. D.T.C. Mazd'oor Congressto and Daulat
si,ta Ram Kod,one u. state of Maharashtrallthe supreme court equated
the terms of an unfair contract with Henry VIII clause and held them as
unconstitutional and arbitrarY.
Gwali,or Ragon Si,Ik Mfg. (WoS.) Co. Ltd.. a. CSTa2 is another leading
ca.se wherein the supreme court analyzed whether Section 8(2xb) of the
Central Sales Tax 1956 suffered frorn excessive delegation as the fixation of
rate of tax is a legislative function and cannot be delegated to the executive'
Section 8(2Xb) provided that 'the tax payable by any dealer on his turnover
in so far as the turnover or any part of it relates to sale of'goods in the
of inter-state trade not falling within sub-section (1)... in the.case of goods
other than declared goods shall be calculated at the rate of lOTo or at the
rate applicable to the sale or purchase of such goods inside the'appropriate
State, whichever is higher'. It was argued by the appellants that the fixation
of the rate of tax is a legislative function but the Parliament instead of
fixing.the rate of central sales tax had adopted the rates applicalle_to the
sale or purchase of goods inside the appropriate state in cases where the rate
exceeds 10% which amounted to abdication of its legislative function, hence
Section 8(2xb) amounted to excessive delegation of legislative power.
The Supreme Court upheld the constitutionality of Section 8(2)(b) and
held that the provision does not suffer from any vice of excessive delegation
of Iegislative power. Identifying the legislative policy it observed-
The object of the law apparently is to deter inter-state sales to unregistered
dealers as such inter-Statl sales would facilitate evasion of tax' It is also not
possible to fix the maximum rate under section 8(2)(b) because the rate of
iocal sales tax varies from State to State. The rate of local sales tax can
also be changed by the State legislatures from time to time. It is not within
the competence of the Parliament to fix the maximum rate of local sales tax.
The fixation of the rate of local sales tax is essentially a matter for the State
Legislatures and the Parliament does not have any control in the matter The
pailiament has therefore necessarily, if it wants to prevent evasion of payment
of central sales tax, to tack the rate of such tax with that of local sales tax,
in case the rate of local sales tax exceeds a particular limit'
39. Id at Para 103.
40. (1e91) ILLJ 395 sc, MANU/SC/oo3r/Lssr-
41. 20r3(l0)scALE 450. IUANU/SC/O89'/2Ot3-
42. (1574\ 4 scc 98.
lm Textbooh on Administratiae Lazp
4.7 SUB-DELEGATION OF LAW.MAKING POWER
Subordinate legislations are in the nature of Rules and Regulations for the
purpose of giving effect to the laws made by the Legislature. The task of
rnaking subordinate rules is conferred by the Legislature to a specified bodl'.
Such body cannot make further delegation of its rule-making responsibilities
as it would be contrary to'the principles of delegatus rlon potest delegare
and would be contrary to the confidence reposed by the delegate.
In the case of Harishankar Bagla u. State of Mad,hya PTad,esltas the issue
of sub-delegation was analyzed by the Supreme Court. It was alleged that
Section 4 of the Essential Supplies Act rvas unconstitutional on the ground
of sub-delegation. Section 4 provided-
Section 4. The Central Government may by notified order direct that the
power to make orders under section 3 shall, in relation to such matters anil
subject to such conditions. if any, as may be specified in the direction, be
exercisable also by-
(a) such officer or authority subordinate to the Central Government, or
(b) such State Government or such officer or authority subordinate to a State
Government as may be specified in the direction.
The Court negated the argument that the Central Government has'been
empowered to delegate its own power to any officer or authority subordinate
to it, on the contrary it held that the Parliament in Section 4 has specifically
enurnerated, the classes of persons to whom the pouer could be delegated
or sub-d,elegated,. Thus the Parliament being the supreme law making po!!'er
is empowered has the authority to make delegation of legislative powers to
any persons or bodies it thinks suitable and also to identify such officials
or authorities for the purpose of exercise such powers.
4.8 TYPES OF DELEGATED LEGISLATION
Ordinarily a classification is made between conditional legislation and
delegated legislation. Conditional legislation refers to the power conferred
to the delegate to determine when the rule of conduct declared under a
statute becomes effective. In such kind of delegation the legislation will be
complete in itself and the only conferring of discretion to the administrative
body will be to determine the time and manner of carrying the legislation
in to effect as well as to determine the area to which it is to be extended.
Delegated legislation on the contrary involves delegation of rule-making power
43. AIR 1954 SC 465.
Delegated Legislation and L"gal Lsn"' 9-i1
ive authoritY'
- is required to lay down the broad
in a"t.g.t"a legislation the legislature
.rolicv or principles governing the statute and allow the delegated authority
io f*-" other details of the legislation within the prescribed limits of the
,au.,rrr.. In such kind of delegation the administrative authority is required
to fill in the details of the legislation and ensure that the purpose of the
legislation is fulfilled and the rights and obligations under the statute
are
properlY imPlemented.
The legislature cannot delegate its power to make a law' but it can make a
law. to delegate a power to determine some fact or state of things upon which
the law makes or intends to make its own action depend. There are many
things upon which wise and useful legislation must depend which cannot be
known to the lan, making pon'er, and must therefore be subject of enquiry
and determination outside the haII of legislatures'aa
Thus the legislature is required to put their minds to the future and ensure
that the legislation shall meet the challenges of future contingencies which
might appear in the course of implementation of law, hence the legislature
t as to confer different kinds of rule-making power to the executive authorities
to overcome the various challenges and maintain the relevancy of the law.
Some of the important types of delegated legislations have been classified
below.
4.8.1 Power to Fill up the Details or skeleton Legislation
The core function of delegated legislation is to perform uhat is fictionally
called, as ,,?touter to fill up the d.etails". In Harishankar Bagla a. state of
Mad,hga Piad,eshas the Coirrt justifying the broad delegation of legislative
powers to the executive authorities under the Essential Supplies Act and
stated t]nat ,the ambit and character of the Act is such that the detai,ls of
that pol'i,cy can only be worked, out by delegating them to a subord'inate
authiritg withi.n the frarnework of that policy'. Thus after the Iegislative
policy has been laid down by the legislature then an administrative of
executive agency to whom the legislative powel has been conferred under
the statute s]nall uork out d.etails toithin the framework of the legislatiue
poli,cy laid, d,own in the plenory enactment. The power to make delegated
legislation requires that-
[T]he delegate on whom such power is conferred has
to act within the
limitations of the authority conferred by the Act. It is equally well settled
@z2Pa.491;FieIttu.Ctark|43U.S.649inHamdardDawa-
khana Para 28.
45. AIR 1954 sc 465.
 that, Rules made on matters permitted by the Act in order to supplement theappropriategovernmenttoaddtotheScheduleanyotheremployment
the Act and not to supplant the Act, cannot be held to be in violation of of its intention to
the Act. A delegate cannot override the Act either by exceeding the authority ri"ia under the Act, after giving three months' notice
il''**".'ofwhichitisoftheopinion.thatrnirrirnumratesofwagesshould
with the procedures
or by making provisions inconsistent with the Act.a6 i". in Chief Commissioner of the Ajmer after complying
in textile industrl' as part
Sometime the power to fill up the details is also described as 'skeleton
irrao *n" statute declared that employment
while dealing with the power of
Court
;i .1'" Schedule of the Act. Thethe list of employment recognized it as a
legislation'. The term skeleton legislation is generally used to 'denote the broad to
outlines of a particular scheme found in an Act of which details are to be Ih.-"*""nti.re authority to add in nature'
filled in later by administrative orders of experts'.47 In these legislations the J"L*"*a power rvhich was not unwarra,nted or unconstitutional
legislature lays down the broad policy outlines and leaving the responsibility It observed
of filling out the body of the legislation with flesh and. blood, to other
authorities. Theiegislativepolicyisapparentontlrefaceofthepresentenactrnent.
Whatitaimsatisthestatutoryfixatiorrofminimumwageswithaview
Legislature urrdoubtedlv
to obviate the chance of exploitalion of labour. The to those industries only
intended to apply this Act not to all industries but
4.8.2 Power of Inclusion and Exclusion
of labour or $'ant of proper arrangements for
*i"." Uy ."*or. unorganized
of labourers in a
The legislature often confers power on the executive to bring individuals, effective regulation of -a!es or for other causes the wages
institutions, bodies, services or commodities within the fold of a legislation *"r" iery lo*. It is with an eye to these facts that the
Ol.i["i".-i;a,r",ry
list of trades.has been drawn up in the schedule attached to
the Act but
or remove it. The Act may contain some of the subjects in a schedule
annexed to it, but to bring in flexibility and ensure suitability of the thelistiSnotanexhaustiveoneanditisthepolicyoftheLegislaturenot
legislation for all contingencies in the future the legislation delegates power tolaydownatonceandforalltimetowhichindustriestheActshouldbe
to the executive authorities to include or exclude items from the schedule. applied.Conditionsoflabourvaryunderdifferentcircumstancesandfrom
trade or industry
state to state and the expediency of including a particular
Such delegated powers are described as power of inclusion and power of withinthescheduledependsuponavarietyoffactswhichareliynomeans
exclusion respectively. uniform and which can best be ascertained by the person
*ho is placed in
charge of the administration of a particular state.
It is to carry out effectively
The aim of all legislatures is to project their minds as far as possible into the f,urpose of this enactment that power has been given to the 'lappropriate
the future, and to provide in terms as general as possible for all contingencies Government,,todecide,withreferencetolocalconditions,whetheritis
likely to arise in the application of the law. But it is not possible to provide desirable that minimum wages should be fixed in regard
to a particular trade
specifically for all cases and, therefore, legislation from the very earliest times. or industry which is not aiready included in the list. \[re do not think that
and particularly in modern times, has taken the form of conditional legislation, in any way stripped itself of its
Ieaving it to some specified authority to determine the circumstances in which
in enacting sectiorl 2T 1ne Legislature has
essentialpowersorassignedtotheadministrativeauthorityanytlringbutan
the law shall be applied, or to what its operation shall be extended, or the accessoryorsubordinate-po*e.whichwasdeemednecessarytocarryoutthe
particular class of parsons or goods to which it shall be applied.a8 purpose and the PolicY of the Act'
In Ed,ward, Milts Co. Ltd. u. State of Ajmerae the Supreme Court analyzed In contradistinction in the case of Jalan Trading co. u' Mi'Il Mazdoor
the scope of the power of inclusion in light of the Minimum Wages Act' unlonto the supreme court was required to analyze tlle
power of the
1948. The Preamble to the legislation described the objective of the statute certain establishments from the purvierv of
Central Government to exempt
as fixing the minimum rates of wages in certain employments. The Schedule thePaymentofBonusActlg65underSection36oftheAct.Thelarvwas
attached to the Act specified certain employments in respect of which the enacted to provide for payment of bonus to all employees
drawing a salary
minimum wages of the employees were fixed. Section 27 of t}re Act authorized notexceedingRs.1600.Paymentofbonuswasdeemedtobearightofthe
employeestoshareintheSurplusprofitsandwasmadeenforceablethrough
46. JK Industries Ltd.. a. Union oJ India (2OO7) L3 SCC 673. themachineryofthelndustrialDisputesAct.Butanexceptionwasrnade
36 authorised
47. Prag Ice E Oil Mills a. Union of Ind'ia, (L978) 3 SCC 459. for i'dustries suffering from financiai losses and under Section
48. Ba.rter a. Ah Way (8 C.L.R. 626) quoted in Edward Mills co. Ltd u. state ol Ajrner AIFI
1955 SC 25. sc
50. AIR 1967 691.
49. AIR 1955 SC 25.
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I gl . Textbook on Administrathte Law

This kind of delegation first appeared in England in the

Local Government
the appropriate government, having regard to the financial position and
to amend so as to
other relevant circumstances of any establishment or class of establishments, e"i 1AAS which empowered the rninister with power
used in several
to exempt for such period as may be specified therein such establishment frt",,n" Act "into full operation". Subsequently it had been This form of
or class of establishments from all or any of the provisions of the Act. LgirT"ti".. in England like the National Insura.ce Act 1911.
ministerLl power rvas greatly criticized by Lord Hervart in his book
The Court held that by Section 36 the appropriate government has be€n
"-i*".i.r"
The New Despotism which compelled the appointment of the Donoughrnore
invested with the power to exempt an establishment from the operation of
whole issue of Ministerial
the Act. provided the Government is of the opinion that having regard to Committee in 1929 to examine and report on the
the financial position and other relevant circumstances of the establishment, po*.r. The Committee on Nlinisters' Powers in its report submitted in
ig3Z ,,rr"d that the term was nicknamed with reference
to t'he autocratic
it would not be in the public interest to apply all or any of the provisions of Parliament and
of the Act. The condition for the exercise of such power rvas to keep in of power by Henry vIII through the institutions
view the public interest and to frame an opinion based on consideration of
"*"r"ir"
is used to express erecutiue autocracy. The committee's Report criticized
,h" ,"*ouot if atfic"ltg clause as "as a temptation to slipshod uork in
the finbncial position and other relevant circumstances. Thus the Parliament
ii" pr"ooro1in if bills and, recommended that such prouisions shov'Id
had clearly laid down the principles and had provided adequate guidance to
be us"i only where they utere justified before Parliament on cornpelling
the appropriate government in exercising the powers under Section 36. The -Th"
section did not confer any excessive authority and was merely a conditional grounils,'.53 Co-*ittee recommended that all the delegated legislations
Jrrould have clearly defined limits in thd bill and the Henry
vIII clauses
legislation.
should be abandoned. in aII but the most erceptional co'ses
and' should be
4.8.3 'Power of Removal of Difficulty Clause valid for a maximum period of one year. The Committee reported-
(Henry VIll clause) It cannot but be regarded as inconsistent with the principles of
parliamentary
government that ttie law-making .authority should_ be given by
Ttle remoual of d.ifficulty clause is popularly referred to as the Henry subordinate
has been
VIII clause in the English Administrative law. The nick name was used in ihe sup"rio. law_making authority power to amend a statute which
passed by the superioi authority"" Even with safeguards'"' it is clearly a
scornful cornn't.ernoration of the absolutist uays in wh'i.ch that English King
got the "difficulti,es" in enforcing h'is autocratic uill rernoued, through the po*",*hi.hintheoryatanyratemaybeunscrupulouslyused...-Ifitdoes
pro.r" ,r""."*ry in the public interest to amend an Act of Parliament'"' and
instrinnentality of a seraile Parliament 5l In 1539 the British Parliament ihe matter is of sufficient political urgency, parliamentary time can be
found
gave power to the Crown with the Statute of Proclamation and empowered possible to bring certain important and complicated legislative schemes into
King Henry VIII the power to create, amend or repeal legislation without operation without such a power' relying upon the ordinary of an
-method
amending BiII in Parliament to meet unexpected emergencies-..- It
hauing to look to Parliament. Ttre statute was repealed after his death in is a standing
1547. The term Henry VIII clause popularly refers to "a provision in a Bill temptation to N,linisters and their subordinates either to be slipshod
in the
prejaratory work before the Bill is introduced in Parliament or to attempt
which enables primary legislation to be amended or repealed by subordinate
Iegislation with or without further parliamentary scrutiny".52 to seize for their own Departments the authority which properly belongs to
Parliament.... It can on\r be essential for the limited purpose of bringing
The legislature delegates their law rnaking powers to the executive for anActintooperationanditshouldaccordinglybeinmostpreciselanguage
the purposes of obtaining flexibility, expediency and experimentation. In restrictedtothosepurelymachineryarrangementsvitallyrequisiteforthatyear
the course of delegation - the legislature sometimes enables the executive to purpose; and the clause should alwal-s contain a maximum limit of one
make minor alterations or modifications in the legislation in the course of after which the por*'ers u,ould lapse... The use of the so-called "Henr5'
VIII
permitted by Parliament except upo!.special grounds
implementation of the statute to avoid the dilatory process of amendment clause,,.... should not be
made through the legislative process by inserting the 'removal of difficulty stated in the l\{inisterial N{emorandum attached to the Bill.sa
clause' in the parent statute.
Post 1932 based on the recommendations of the committee the British
Parliament has ceased to use the remo't'al of difficulty clause in
their
51. Tlanscorc u. Union of India MANU/SC/5319/2006.
52. Revieq' of the first year's work of the House of Lord Select Committee on the Scrutiny of 53. Cmd.4060.
Delegated Powers, pma 16 (October 1994). 54. Cmd- 4060, P- 293-294.
 J. .. I
:NW nrrO"te t" aa*tW
legislations.ss But in India this provision has been included in several
IfingivingeffecttotheprovisionsoftheActanydoubtordifficultyarises.
legislations of post-indeperrdence era as a pract'ical necessity. ii i" fo. the Legislature to remove that doubt or difficulty. P.ow91
Act rvould
The power of removal of difficulty clause has been generally used in ;;^;;"" the doubt or difficulty by altering the provisions of the
"".*"ff'
statutes dealing with socio-economic welfare activities wherein the legislature insubstanceamounttoexerciseoflegislativeauthorityandthatcannotbe
(2) of section 37 purports to
is uncertain about the possible difficulties which are likely to crop up during delegated to an executive authorit-'-. Sub-section
tfr" order of the Central Government in such cases final accentuates
the implementation of the laws, hence includes the removal clause to deal Ir'rfi, that provisio' the Governme't
iU" .ri." in sub-section (1), since by enacti'g
with minor difficulties arising during irnplementation of the law. judge wliether difficulty or doribt had arisen in giving effect
i" -u3. the sole
to remove
In the case of Madaae (Jpendra sinai u. (Jnion of Ind.ias' the supreme to tho p.o.ri"ions of th. A"t, whether it is necessary or expedient
court while analyzing the power of the central Governmenr f,o remove if," ao"Ut or difficulty, and whether the provision enacted is not inconsistent
difficulties under the Income Tax Act had highlighted the relevancy of such with the Provisions of the Act'
provisions in modern statutes and stated-
Thus section 37 was invalidated on the ground that the central
To keep pace with the rapidly increasing responsibilities of a r,"'elfare democratic Government was made t}re sole
judge abottt whether any difficulty or
state' the Legislature has to turn out a plethora of hurried legisla.tion, the doubt had arisen in giving effect to the Act, whether it was necessary or
volume of which is often matched with its complexity. under conditions
expedient to remove ttre douut or difficulty, and whether the order made
of extreme pressure, with heavy demands on the time of the Legislature q,as inconsistent or not with the purposes of the Act'
and the endurance and skill of the draftsman, it is well-nigh impossible to
foresee all the circumstances to deal with which a statute L enacted or to In the subsequent case of Gammon India Ltd,. u. (Jnion of Indi'a\8 whlle
contract Labour (Regulation and Abolition)
anticipate all the difficulties that might arise in its working due to peculiar dealing with the validity of the
local conditions or even a local law. This is. particularly true when Parliament act, r-gzo revisited the debate relating to the scope of removal of difficulty
undertakes legislation which gives a new dimension to socio-economic activities clause. Section 34 of the Act provided that 'if any difficulty arises in giving
of the State or extends the existing Indian laws to new territories or areas effect to the provisions of the Act, the Central Government
may, by order,
freshly merged in the union of India. rn order to obviate the necessity of with
published i.r t]h. Official Gazette, make such provisions not inconsistent
approaching the Legislature for removal of every difficulty, howsoever trivial,
ihe pro.risions of the Act as appears to it to be necessary or expedient for
encountered in the enforcement of a statute, by going through the time- of Section 34 the Court
consuming amendatory process, the legislature sometimes thinks it expedient r.mo.,i.,g the difficulty'. While analyzing the scope
Bonus Act as
to invest the Executive with a very limited pon'er to make minor adaptations distinguished the pro.rision from section 37 of the Payment of
and peripheral adjustments in the statute, for making its implementation which was held to be excessive delegation in ttre Jalan Tlading cose because
effective,'without touching its substance. the government was authorized. to determine for itself rvhat the purposes
oftheActwereandtomakeprovisionsfortheremovalofdoubtsand only
difficulties. On the contrary Section34 of the Contract Labour Act
The-supreme court in the of Jalan Tyad,ing co. a. Mi,ll Mazd,oor
decision was
(Jn'ion57 negated the legality
of section 3z(1) of the dayment of Bonus Act, limited to giving effect to the provisions of the Act in case any difficulty
1965 which conferred power on the 'central Government to make provision, arises in the implementation of the rules. The provision is integral
for the
not inconsistent with ttre purpose of the Act, for removal of difficulties or Irr
appl,ication of the internal functioning of the administration mach'inery'
doubts in giving effect to the provisions of the Act'. clause (2) further stated .iditiorr, Section 34 did not confer any finality to the act of the executive
that the order of the central Government issued under sub-section (1) is and was subjected to judicial review in case of any inconsistencies
with the
final. The court struck down section 37 on the ground that it authorized Act.
the central Government to determine for itself what the purposes of the the Gammon
Professor s.P. sathe commenting on the distinction drawn in
Act are and to make provisions for removal of doubts or difficulties as it
was primarily a function to be performed by the legislature, It observed-
India case observed-
These distinguishing features are hardly satisfying but the basic essence
55. MANU/SC/0439/1986,Para 100. of this judgment is that it has over-ruled the majority decision in' Jalan
56. MANU/SC /0436/1,974, para 39.
57. AIR 1967 SC 69r.
58. AIR 1974 sc 960
 tl Textbooh on Administratiae Laut :
l9B
Trading case. such decision is deemed correct because through the ,removal
of difficulty' clause minor changes, which do not alter the p-olrcy should be 4.g.4 Power of By-passing
Mad'hua,':"!::!'1,
allowed to be made.sg
rn Harishankar Basla u' S.tate
on 1! *':""9-:f ln:^:^"::.1it:tt?i'"]ll:
'; ;;r;;;"u ** :h:. :i:.':"-':1i"i::::t"Lt:::
section 6 emPowereo. .'l'^ c"liilt 9:":'iT':i^::t: t1'" -"?::
rn Madaue [Jpendra Sinai r:, (Jnion of Ind,ia6o the court laid do*,n the "ri"rl"nged
..
Iirnits of 'difficultl" and the scope of po!\'er of the central Government ;;;';;J 6 of^ the Esseltilt .suppries 1o llng-.T::it1 t11"'T,^
to supply a deficiency or c&sus omissus to rernove such difficulties. It ;";J;ection have effect notwithstanding anything
observed that the power of removal cannot be uncontrolled or unfettered lrr"r" *"o; under Section 3 shallin any enactrnent other than this Act or any
,""J""rJ."t therewith contained
any enactment other than this Act'.
irrrir"*""a having effect by virtue ofprovision
and stated-
court interpreted the as empowering the executive
It is strictly'circumscribed, and its use is conditioned and restricted. The il" i*..-e inconsistent with the rules of the
existence or arising of a "difficulty" is the sine qua non for the exercise ;;;;, any other laws which might be
of any repeal or amendment of those
the power. If this condition precedent is not satisfied as an objective fact, ;";'J*t Suiplies Act without causing
the power irnder this clause cannot be invoked at alr. Again, the ,.difficurty,, bws. It observed-
contemplatid by the clause must be a difficulty arising ii giuing effect to the
provisions of the Act and not a difficulty arising aliund,e,
or an extraneous
Section6doesnoteitherexpresslyorbyimplicationrepealanyofthe
rilfficulty- Further, the central Go'*rern-eirt can exercise pro,ri"iott"ofpre-existinglaws;neitherdoesitabrogatethem'Thoselaws
i"*u.i., untouched and unaffected so far as the statute book is concerned'
the power under the The
clause only tq the extent it is necessary for applying or gi.ring effect
to the repealofastatutemeansasiftherepealedstatutewasneverontheStatute
Act, etc., and no further. It may slighlly tinker with the Act to round off
took. It is wipgd out from the statute book. The effect of Section is6 simply to
certainly
angularities, and smoothen the joints o. ,.-orr" minor obscurities to make
it is not to ,.pu.i .rry one of those laws or abrogate them. Its object
workable, but it cannot change, disfigure or do violence to the basic structure the Essential
and primary features of the Act. In no case, can it, under the guise Lv_p*" them where they are inconsistent with the provisions of In
a difficulty, change the scheme and essential provisions of tile Act.
of removing ioppfi"" (Temporary Powers) Act, 1946 or the orders made thereunder'
other words, the oriers made under Section 3 would be operative
in regard to
wherever there
By applying the above rationale the supreme court in the case of the essential commodity covered by the Textile control Order
i. ,"pl,g.r".t"y in this brder with the existing laws and to that extent' the
-
rhanscore u. (-Ini'on of Ind,ia6l upheld the legality of the securitisation and will not operate. By-passing a
Reconstruction of Financial Assets and Enforcement of secuiity Interest existirrg laws with regard to those commodities

(Removal of Difficulties) order, 2004 issued by the central certainlaw.doesnotnecessarilyamounttorepealorabrogationofthatlaw.

Government
under Section 40(1) of the Securitisation and Reconstruction of Financial
Assets and Enforcement of Security Interest Act, 2O02 (NpA Act) and
stated that the order was issued merely to supply a d,efic,iency, namely,
Ieuy of fees- rt was clarified that tne zboa order did not alter
the nature
arrd scope of the NPA Act but merely filled in the deficiency.
.. Presently the power of removal of difficulty clause is being used i' a
limited capacity. The recently enacted rhe National Judicial Appointments
commission Act, 2014 has categorically stated that no order
shall be issued
under the power of removal of difficuiy clause under s.14 of the
Act after
an expiry of five years from the date of commencement of the Act.
s9. ztb Ed. 2010.
60. N{ANU/SC/0436/1974, para 40.
6r. AIR 2007 SC 712, I\.IANU/SC/ss,,s/20o6
That law remains unrepealed but during the continuance of the order made
under Section 3 it does not operate in that field for the time being'
The
ambit of its operation is thus Iimited without there being any repeal
of any
one of its provisions. Conceding, however, for the sake of argument
that to
theextent.ofarepugnancybetweenanordermadeunderSection3andthe
provisions of an existing iaw, to the extent of the repugnancy' the existing
law stands repealed by Implication, it seems to us that the repeal is not
by
anyActofthedelegate,buttherepealisbythelegislativeActofParliament
itself.ByenactingSection6Parliamentitselfhasdeclaredthatanorder
in
made under Section 3 shall have effect notwithstanding any
inconsistency
thisorderwithanyenactmentotherthanthisAct.Thisisnotadeclarationway
will that
made by the delegate but the legislature itself has declared its
in section 6. The abrogation or the implied repeal is by force of the legislative
ilr Section 6 and is not by force of the order made by
declaration contained
thedelegateunderSection3.Thepowerofthedelegateisonlytomakean
order under section 3. once the delegate has made that order its
power is
exlrausted.Section6thenstepsinwhereinParliamenthasdeclaredthatas
62. AIR 1954 sc 465.
 ted Lesisktion and' L
Textbooh on Administratizte Laza

applicd, as in Burah's case

soon as such an order comes into being that will have effect notwithstanding that a section or sections can be picked out and
ii l.e. 178) where just that .was dorre; also, for the sarne reason that the
any inconsisterrcy therewith contained in any enactrnent other than this it follows that a sectio' can also
Act. Parliarnent being supreme, it certainly could rnake a law abrogating or }n.f. ". a part of an Act can be modified;
the modification of the whole cannot be perrnitted
repealing by implication provisions of any pre-existing law and no exception be modified. But even as
io effect any essential change in the Act or an alteration in its policy, so
could be taken on the ground of excessive delegation to the Act of Parliament to do that either' If that
itself. There is no delegation involved in the provisions of Section 6 at all and also a modification of u. po.l cannot be permitted
that section could not be held to be unconstitutional on that ground. *"* "* so, the law, as iaid dotvn in the -previous decision, could be evaded
bypickingoutpartsonanActonly,withorwithoutmodification,insuch
Thus the power of delegation includes the power to by-pass other u,"1o effect an essential change in the Act as a rvhole. It follows that
""*"y
when a section of an Act is selected for application,
whether it is modified or
legislations. But Parliament, being the supreme law making agency, has the not to effect any change of policy' or any essential
power to repeal or amend laws and make necessary provisions for the same not, it must be done so as
change in the Act regarded as a rvhole. subject to that limitation we hold
within the provisions of the parent statute. that"section3(1)(f)isintravires,thatistosay,weholdthatanysectionor
sections of the Bihar and orissa l\4unicipal Act of
1922 carl be picked out
4.8.5 Power of Modification and applied to
..Patna" provided that does not effect any essential change in
A statute may confer power on the executive to modify the statute or any the Act or alter its PoIicY'
provisions contained in it. Conferring of such powers is deemed necessary
to bring in flexibility and ensure proper application of the laws through 4.gDIFFERENTIAflNGBETWEENRULES,REGULATIONS,
necessary adjustments, but there is an equal need to ensure control over BYE-LAWS AND ORDERS
the exercise of such powers to prevent any abuse of such powers. In In
The difference between the various nomenclatures used for identifying
the
Re: Dethi Laws Act .o".63 the Supreme Court had upheld the delegation
of the power of modification as a permissible form of delegated legislation. different forms of delegated legislations is quite diffic.ult'
It held that an executive authority was authorized to modify either an Thetermstatutolyruleshasbeenusedtodescribeasubordinate
existing or future laws but not any essential feature, including a change r"giri"ti"" wherein the enabling statute has laid down the general policy of
if policy. In the subsequent case of Rajnarain Singh a. The Chairman, ttie legislature and has delegated to another authority. the function of filing
Patna Administration Cornmittee.Ga Supreme Court took the opportunity inthedetailsofthatpolicy.Theregulationframed.bysuchauthorityis
to further clarify the extent of power of modification. In this case grants suchpower to
while described as statutory rules. The legislature generally
applying Section 104 of the Bihar and Orissa I\,Iunicipality Act 1922 relating the executive.
to imposition of taxes to the newly added territories of Patna village area when the legislature enables the creation of a local authority or a statutory
the Court held that in applying the statute with necessary modification the Corporation u,rtd t.y" down its objective and purpose' and empowers
such
executive authority could not change or modify the legislative policy behind for carrying into effect the various purposes for
authority to make provisions
the statute. Hence before imposition of tax the local authority was bound which the body was constituted, such regulations made by- the local authoritv
to comply with the rules relating to right of hearing and consultation as or the statutory corporation are referred to as bye-laws.65 It ge'erally refers
laid in the parent statute. Applying the legal principle laid in In Re: Delh'i to any order, rule or regulation made by ^?'y local authority or statutory
Laus Act case in the context of the present case, the court observed- corporation subordinate to the Parliament'66
Now the only difference bet*'een that case and this is that luhereas in the Distinguishing between a statutory rule and bye-J3rn' it u'as observed in
former case the whole of an enactment, or a part of it could be extended, Mulchand' Gulabchand' u. Mukund' Shiuram Bhid'e-67
here, any section can be picked out. But to pick out a section is to apply a
part of an Act, and to pick out a part is to effect a modification, and as
the previous decision holds that a part of an Act can be extended, it follows
65. AIR 1968 Bom 156.
63. (195r) 2 SCF- 747. 66. Odgers, Common Las'(1927)
64. AIR 1954 SC 569 : (1955) I SCR 2so. 67. AIR 1952 Bom 296.
I I
I f02 Textbook on Administratizte Laza
Now, there is a clear distinction between statutory rules and bye-laws. Bye-
laws are usually framed by corporations under their inherent powers in order
to carry out the purposes of the corporation or they are framed by public
authorities set up by Parliament and as it is left to the corporations or the
public authorities to frame there b1'e-iaws and carry out their purposes, the
Courts have retained certain amount of control over the byeJaws considering
their reasonableness. But statutory rules stand on entirely different footing,
Parliament or Legislature. instead of incorporating the rules into the statute
itself, ordinarily authorises Government to carry out the details of the policy
Iaid down by the Legislature by framing the rules'under the statute, and once
the rules are framed, they are incorporated in the statute itself and become
part of the statute, arrd the rules must be governed by the same principles
€is the statute itself.
The Committee on Ministers Power had differentiated between rules,
regulations and orders.68 Accordingly the term 'rules' should be used
predominantly with reference to provisions relating to procedures, whereas
the terrn 'order' should be used to describe executive acts and legal decisions-
But writing on the futility to define and differentiate between the various
nomenclatures used to describe delegated legislation, Wade and Forsyth
writes tlaat "But the nomenclature in practice honours these distinctions
nearly . o,s much i.n the breach as in the obseraance. Untidy though the
language is, it makes no legal d'ifference".6e
4.1O CONTROL OF DELEGATED LEGISLATION
There are three principle mechanisnrs to control the administrative rule-
making powers. They are a. Parliamentary control, b. Procedural control
and c. Judicial control.
4.11 PARLIAMENTARY FROM OF CONTROL
Parliament is the prirnary controlling authority of the delegated legislation.
Under the scheme of distribution of function the Parliamerr.t is the principal
law making agency and have been entrusted with the task of policy
formulation and laying the rules of conduct. The conditional or subordinate
law making power q'hich is entrusted to the administrative authorities have
to be exercised in compliance with the policy objective and the norms laid
down by the Parliament. The executive authorities act as the agent of the
legislature and the legislature consequently should exercise control of the
delegated legislations. A brief description of the parliamentary form of control
68. Cmd. 4060 (1932),64
69. Wade & Forsyth, Administrative Law, Oxford University Prcss, lOth Ed. (2009)
Delegated LegisLation and Legal-Issues lO3:I
in UK and US will help us to evaluate the rvorking of the legislative control
mechanism in India.
4.11.1 United Kingdom
Due to the concept of parliamentary sovereignty in Englancl the coltrol
exercised by the Parliament over the adninistrative rule making is elaborate
and effecti.r,e. The recommendations of the Donoughmore Committee on
delegated legislations were adopted in 1946 under the prime-ministership of
Clement Attlee the enactment of Statutory Instruments Act 1946 was framed
to deal with 'statutory powers to make orders, rules, regulations and other
subordinate legislations' and the procedure for parliamentary scrutiny' Some
of the important provisions under the statute are-
strurt'ertts
(i) Statutorg i'n
Laws are traditionally passed through the Parliament in the form of bills.
The bills pass through the different stages to become Acts of Parliament'
These Acts often confer powers on l\'{inisters to make more detailed orders,
rules or regulations by means of Statutory Instruments. The term Statutory
Instruments (SI) refer to 'a form of legislation which allow the provisions
of an Act of Parliament to be subsequently brought into force or altered
without Parliament having to pass a new Act'. They are also popularly
referred to as secondary, delegated or subordinate legislation. The SI are used
to provide all the necessary details essential for working of the legislation,
that would be considered too complex and elaborate to be included in the
body of an Act. They are also used to amend, update or enforce an existing
primary legislation. The SI are part of the law of the land and are subject
to judicial revie6,. The judiciary can question the authoritl' of a minister
under a parent statute rvhen issuing a SI'
(ii) Draftins
The sI are drafted by the legal office of the Government Department
concerned after holding consultations with interested bodies and parties'
They are made in the name of the person who is authorized by the parent
statute eg. a lMinister or a Secretary of State. After drafting each SI is
given a number in the SI series t'hich runs from number I each calendar
year eg. SI 2Ol4/I23
(i.ii) Prearn'ble
Each SI is required to contain a prearnble stating the authority or the source
legislation and the person to whom the power of subordinate law-making
is confirmed
 Textbooh on Adrninistratioe Lazp

(i") Erplanatorg rtotes +he drafb is disapproved within a 40 days period.7l In case the instrument
Every SI must carr). an explanatorl' note w-hich will explain the scope and ,']riJ-"ft". making, it will be subject to annulment if on a motion to annul
purpose of the delcgated legislation. These notes do not hal'e any legal i J"r"a within 40 days. In case the Sr become law the date stated
force. iotn"- but will be annulled if either llouse passes a rnotion calling for
rvithin a specified time. The time period is usualll' 40 da1's
iil"i. *r"t-.nt
(") Etplanatorg rnernorartda io"toai"g the day on which it was laid before the parliament-
AII SI which are required to comply rvith the parliarnentary procedures The affirmative resolution procedure is less common parliamentary
are required to be accompanied with an Explanatory 1\,Iemorandum. The or*"a,rr" and is applicable for less than 10 percent of the SI as the
memorandum is a short document which explains in plain English the demands more stringent parliamentary control because the SI
;;;;"r"
purpose and objective of the SI. It clarifies if the SI is linked with other iliil orrtv come into force or continue to remain in force lawreceivingafter the
they
Sls or fulfills the requirements of the parent statute. The memorandum also Darliamentary approval.T2 The instruments wiII not become unless
includes information regarding the cost consideration of the mea,sure and Ir" ,ppro\ruJ by both houses of parliament. If the SIbyisboth laid in draft form,
the Houses. In
the detailed outcome of the public. consultation exercise. The details of the in"" if cannot be made unless the draft is approved
memorandum are also available to the public through the Regulatory Impact . case the instrument is laid after making it rvill not come into force unless
Assessment. The memorandum is freely available to the public through the and until it is approved. If the sI comes into immediate effect then it will
Office of Public Sector Information (OPSI) website. not continue to be in force unless approved within the specified statutory
period of 28 daYs or 40 daYs'
("i) Parliarnentary procedure
An appendix to the Votes and, Procned,i.ngs of the House records the day
The nature of the parliamentary procedure which is required to be followed
on which the SI is laid before the Parliament'
by a SI is prescribed by the parent statute. Some SI are not required to
be laid before the Parliament and are also not subject to any parliamentary {oii) Joint cornrnittee ort' statutorg instrurnents
procedure.To These SI are simple non-contentious in nature, for example To aid the parliamentary examination of SI a joint committee of both houses
Commencement Orders, and they become laws automatically on the date is appointed to deliberate and scrutinize the different SI- The committee
stated on them. There are some other SI which require to be merely laid na" ttre service of Counsel to the Speaker and the Lord Chairman of the
down before the parliament but does not require any further parliamentary Committees availdble for the purpose of deliberation. The committee may
procedures to be followed. take oral or written evidence from the Government Department responsible
The SI which are subject to parliamentary control are required to follorv for the drafting of the instrument for. any information relating to the sI
the procedures laid in the SI Act. The SI is laid before the parliament either they are considering. The committee does not consider the merits of any sI'
in draft form or after the instrument has been made. Ordinarily the SI They are responsible for ensuring that the Minister's powel is being carried
cannot be amended or adapted by either House of Parliarnent. Each House 'out in accordance with the provisions of the enabling Act- The committee
is simply required to express their intention to annul or pass the law, as the is required to report to the Houses on issues relating to-
case may be. There are two types of procedures which may be followed in (a) Whether the authority of the Act has been exceeded,
the Parliament based on the application of the negative resolution procedure (b) Whether there is any unusual or unexpected use of powers,
or the positive resolution procedure. (c) Whether the SI has been drafted defectively, or '
The negative resolution procedure is the more common parliamentarl' (d) \Vhether the SI might require further explanation'
procedure adopted for enacting the SI. By virtue of such resolution the
instruments s'ill beconre law unless there is an objectiorr from any of the
House. In case the SI is laid in draft form. it cannot be made into law if
ffiicharesignedbya\IinisteroranotherauthorizedperSon:
7O. The term 'laid' refers to the procedure of laying of a SI on the table of the House i.e. in other words the instrument is not in draft'
take
placing a copy of thc Instrument with the Votes and Proceedings desk in the Journal 72. The term ,corning into force' implies when the provisions in the Statutory Instrument
Office. effect.
 .t
Delegated Legisl.ation and' Legal Issues lO7 ,l

Reports of the Committee debate are published the next day by the
of the Committee are printedisas
House
The reports of the deliberation noted in Stationery Office. The SI which are subject to parliamentary approval appear
itttlt publication in an Appendix to the daily Votes and Proceedings and a list of them,
of Commons and Hoo'" of Lords ou'o"" "^J
compiled by the Journal office, with number of 'praying days' rernaining,
tne W..nY Information Bulletin'
of statutorg in'strutt'ents is issued each rveek. The information is also available on the Parliament
(aiii') Lord cornrn'ittee on the rnerits Internet site or the House of Commons Information Office. Debates on
Thecommitteewasfirstappointed.in2003anclconsistsofllnrembers. on the SI to be held in the following week are noted with other business in
works in complem"nt ..riih that of the Joint committee the appropriate sections of the Weekly Information Bulletin, depending
The committee implications
Statutory trrrt"'*t"i'' it atttt
*ith is"ues t;i;i"g to the'policy wide rangrng' on whether. the debate is to be taken on the floor of the House or in the
of the N{erits committee are
of the sI. The a"r;;i;"f.rence the House Standby Cornmittee.
Its primary tasrt is tl "o"'ia* *httht;;;; special attention of
should be drawn .; ; Ji;
any of the following grounds- (ai) Publication' an'd' bibliogtaphg
rise to issues of
legally' important or- gives All sI are required to be printed and put on sale by the stationery office.
(a) fhat it is politically or
public pofity fik"Iv io U" oi interest
to the House' The Statutory Publications Office produces a numerical Table to statutory
srnce
of the changed circumstances instruments together with an Index every two years and the general SI for
(b).That it is inappropriate in^view each year are issued in a number of volumes for permanent record purposes.
the Passage of the Parent Act; The Table indicates whether an order is still in force and how it was
EU legislations;
(c) That it inappropriately implements its policy obiectives' amended or revoked. The Stationary Office issues monthly and annual Lists
achieves
(d) That it imperfectly implements the consideration of SI, available on subscription. These include publishing details, the effect
weekly basis to ensure that of each instrument on other legislation, details on its commencement and
The committee meets on a time'
,.r,a"J,tJn- *i,fttlr 40 days 'praying
of the negative ir.a."rr..,. .t" of pending of documents' comprehensive subject indexing. In addition, all the materials are available
and to review t;"i;;;; ;"mber on official website.
(i*) Deba'tes on s-I o: tn"^!"Ji,""":: ;"#T"rll of commons 4.11.2 India
"o,'".
J"u"*. Debat.", norma*v- on
Under the Constitution of India it is the function of the legislature to
lffi;".,ffffiJH:orinJ'il,?'"r,Ji;,i"
annul irr"tr,t*.rrt.r, may take pl"T :"
the floor of the
legislate but if the power has been conferred to the executive authority to
Ir{otions to
approve tilil" Dllesated Legislation make delegated legislations, then it is not only the right of the legislature
House usuallvr't" i" the parliame{; hav';l commons rs 10r
i"r"*" the deiate i" ttt" House of but also their duty as principal law rnaking body to oversee the functions
committees. Th"" "rin the H;;" of Lords it is determined bv the of their agents i.e. the executive and ensure that they act in accordance
an hour and a ;;;;;"s
with the will of the Parliament. It is the responsibility of the legislature
number of sPeakers' as the delegating authority to supervise and control the actual exercise of
cont'rrt'ittees power by the executive authority and to prevent any objectionable, abusive
(*) Delegated legislation
and unwarranted exercise of such powers. Based on this theory, a system
In 1995-96 it w3s renamed
Itrvasinitiallytt"o*"astheStandingCommitteesonStatutorylnstruments as
of legislative control and supervision has been formulated in Inclia.
in 1973-74 to relieve t"-o'""""t"
-Otttgtted-oi-ti*"-
Legislation and in 2006-oZ
the name
Standing Committees oi -ii'"rt The The legislative control or.er the delegated legislation is exercised at trvo
or ottg*"J r'"-eslation Comrnittee' stages. The first stage of control happens at the time of delegation of larv
was changed to its ;;;";
committee .o"'o""""t'Jr*# ;;;;"' b;;-;1;"' io"T:"T :.11J:T"f. Tt making powers to the administrative agencies through the enabling Act.
This stage is known as pre-enactment control. The second stage of control
y:+I"t[:*;i;"x;:'t*1il::1*",;':];""':;"li1ii1;;res'ru'fio'is
sr requiring negative resolution
takes place after the delegated legislations have been framed under the
committee. irr" provisions of the parent statute and are placed before the parliament under
automatically referreJ to the of
a motion 'lo 'ht House SI
is only referred *o ittt-Ol-C if a Minist;; ;;" then the the laying down rules for parliamentary scrutiny. This stage is referred to
20 memberfu;;; to tt" Motion'
Commons, but if *;; th"t as post-enactment control.
Placed before the
Committee.
;;;;;

Textbook on Administratizte Law
4.1 1.2.1 Pre-enoctment control
The pre-enactment control is initiated at the time of drafting of the Bill of
the parent statute. If the bill contains provisions relating to delegation of
legislative po\4/ers then under the provisions of the Parliamentary Rules of
Procedure and Conduct of Business then it is a prerequisite that such a Bill
before the Parliament should be accompanied with the Statement of Objects
and Reasons, the memorandum regarding delegation of legislative powers and
the financial memorand,rm.T3 Th" Memorandum on Delegated Legislation is
required to explain the purpose of such delegation of legislative powers and
draw attention to their scope and specify whether the delegation is of a
normal or exceptional character.Ta The rule is deemed to be fundamental in
the context of parliamentary form of control because it is the first stage of
control process. It enables the Parliament to have a direct control over the
nature and scope of delegation. It provides the members of the parliament
with the opportunity to discuss about the power of delegation in the House
while debating over the Bill. Other opportunities include raising of specific
questions at the time of Question Hour sessions, by moving a specific
resolution in case the matter delegation of power is urgent and important
and through vote on grant.
The pre-enactment control'process of delegated legislation is often deemed
ineffective because of inadequate time and lack of involvement. The political
issues often take the time away from law making activities, depriving the
nation from serious legislative debate. It has been observed by the Committee
on Subordinate Legislation that inspite of the importance of this salutary
rule, in reality it is a weak form of control process because the memorandum
is often scrappily written and are not adequately informative. It has been
suggested by the Committee that since this parliamentary rule is mandatory
in nature it should be drafted in a proper manner which shall include
the purpose and effect of delegation of legislative power to the executive
authorities, the issues to be covered in the rule making power, the details of
the subordinate agency to whom the law making power has to be granted
and the manner of their exercises. At the time of drafting of the Bill, the
concerned Ministry should draft the memorandum in a manner so as to
draw the attention of the members of the parliament to clause on delegated
legislation.
73. Rule 61 - Rules of Procedure and Conduct of Business in the Council of
Sabha) 8rb Ed. 2013.
74. Rule 65 - Rules of Procedure md Conduct of Business in the Council of States
Sabha) 8th Fd. 2013.
w
I
Dekgated Legislation and Legal Issues hCf)''l
I
1.1 1.2.2 Post-enoctment control
The second stage of control takes place through two processes - (i) Direct
control through the laying down procedure ancl (ii) Indirect control by
scrutiny of parliamentary corrrmittees.
4.11.2.2.1 Laying down procedure
Afier the subordinate legislation has been frarned it is important that
Parliament should have the opportunity to scrutinize the rules framed.
The requirement to place the subordinate legislations before the Parliament
is referred to as the 'laying down' procedure. Principally there are three
different forms of laying do'wn procedure involving three different legal
Qonsequences.
. (i) Simple laying dou'n - Under this proceclure the rules and regulations
immediately comes into force after their enactment and they are merely
. required to be placed before the Parliament for their information.
There is no requirement for any further action to be taken by the
Parliament. Ordinarily this forrn of laying down procedure is used in
case of simple legislations like commencement orders.
(ii) Laying down subject to negative resolution - Under this form of laying
' down the rules come into effect immediately after they are framed, but
they cease to continue or get annulled . if within the specified period
the Parliament passes a motion of annulment- This form of laying
down is the most common of legislative practice.
(iii) Laying down subject to affirmative resolution - Under this"form of
laying down procedure the rules shall come into effect only after the
Parliarnent passes a resolution of approval. In case of urgency the mles
may immediately corne into effect but unless approved by Parliament
through the passing of affirmative resolution within a specified time,
the rules shall cease to continue.
Speaking on the objective and purpose of laying down procedure the
Supreme Court in Atlas Cycle Industries Ltd- u. State of Haryana'o
observed-
Norn-, the polic;* and object underlf ing the pror-isions relating to la1.-ing the
delegated legislation made by the subordinate law making authorities or
orders passed by subordinate executive instrunrentalities before both Houses of
Parliament being to keep supervision and control over the aforesaid authorities
and instrumentalities, the "laying clauses" assume different forms depending on
States (Raj1'a
the degree of control which the Legislature may iike to exercise. As evident
from the observations made at pp. 305 to 307 of the 7th Edn. of Craies on
(R.ajya
75. AIR 1979 SC 1149.

Textbook on Administratioe Lattt
Statute Lau with approval it Hukam Chand u. (Jnion of Ind'ia76
and noticed
there are three kinds of laying which are gerrerally used by the Legislature.
These three kinds of laying are described and dealt with in craies on statute
Law as under:
"(i) Laying t'ithout further procedure,
(ii) Layin'g subject to negative resolution'
(iii.) Laying subject to affirmative resolution.
(i,) Simple laging.-{irre most obvious example is in Section 10(2) of the
1946 Act. In earlier days, before the idea of laying in draft had been
introduced, there was a provision for laying rules etc' for a period
during.which time they were not in operation and could be thrown out
rvithout ever having come into operation (compare Merchant shipping
Act, 1894, Section 417; Inebriates Act, 1898, Section 21) but this is
not used now.
(ii) Nego,tiue resolution-Instruments so laid have immediate operative
effect but are subject to annulment within forty days without prejudice
to a new instrument being made. The phraseology generally used is
,,subject to annulment in pursuance of a resolution of either House of
Parliament". This is by far the commonest form of laying. It acts mostly
as a deterrent and sometimes forces a Minister' (iir sir cecil carr's
phrase) to ,,buy off opposition" by promising some modification.
(i.ii) Affirrnatiue resoluti,on--1he phraseology here is normally no order
shatl be made unless a draft has been laid before Pirliament and h.as.
been approved by a resolution of each House of Parliament. Normally,
no time limit is fixed for obtaining approval - none is necessary
because the Government will naturally take the earliest opportunity
of bringing it up for approval - but section 16(3) of the Housing
(Financial and Miscellaneous Provisions) Act, 1946. did impose a limit
of forty days. An old form (not much used nowadays) provided for an
order to be made but not to become operative until a resolution of
both Houses of Parliament had been obtained. This form was used in
section 10(a) of the Road Traffic Act, 1930 [cf. Road Traffic Act, 1960,
Section 19(3)] .... The affirmative resolution procedure necessitates
a debate in every case. This means that one object of delegation
of legislation (viz. saving the time of Parliament) is to some extent
defeated. The procedure therefore is sparingly used and is more or
less reserved to cases where the order almost amounts to an Act, by
effecting changes which approximate to true Iegislation (e.g. where the
order is the meat of the matter, the enabling Act merely outlining the
76. (1972) 2 scc 601.
Delegated Legislation and Le?al Issues i'*t.4$l'
generalpurpose)orwheretheorderreplaceslocalActsorprovisional
ordersa.rd,mo"tirnportantofall,wherethespending'etc'ofpublic
money is affected.
SometimeswherespeedyorSecretactiorrisrequired(e.g.theimposition
of import duties), ln" o.a"t is laid u'ith irnmediate operation but has'
to be confirmed within a certairr period [cf. Import Duties Act, 1958,
after
Section 13(4)]. This process of acting first and getting approval
lrasalsobeenadoptedi.,th"EmergencyPowersAct,lg20underwhich
astateoferrrergerrcycanbeproclaimedandregulationsmade'The
proclamatior, ,rrll"t be immediately communicated to Parliament and
doesnothaveeffectforlongerthanamonth;butitcanbereplaced
byanotherproclamation.Anyregulationsmadeundertheproclamatiorr
aretobelaidbeforeParliamentimmediatelyanddonotcontinuein
force after the expiration of seven days from the time when
they are
providing for
so laid unless a resolution is passed by both llouses
their continuance".
In India there is no standard law relating to the laying down procedure
and the administrative authorities are under legal obligation
to place the
unless specifically provided
subordinate legislations before the Parliament
intheenablingstatute.IntheabsenceofsuchclausesintheParent the
statute the delegated legislations were not required to be
placed before
Parliament.
The committee on subordinate Legislation has made a long standing
demand.forinclusionofastandardlayingdownclauseinallstatutes.It include the
has largely recommended that every Act of Parliament should
provisioir that delegated legislations should be placed before the Houses
:"" ;"; as'possible; for a uniform perform period of 30 days so that the
parliamentariansrnaymodifyoramendthemasnecessary'l\4ostlndian
statutes in the ."rly y"-, of independence did not contain any
provision
relating to the laying down procedure' On the repeated recommendations
of the Committee Jr SuUordinate Legislation the Delegated Legislation
Provisions(Amendment)Actlg83wasenactedtobringamendmentto
almost 50 Indian statutes by inserting the provision relating to laying
before
the Parliament or the state Legislation and providing for annulment or
modification of the rules within a specified time period'
ontherecommendationoftheCornmitteeatpresentastandardclause
forlayingdownisincludedinmoststatutes.Thestandardclausestates-
be' after it
Every rule made under this Act shall be laid, as Soon as may
is made before each House of Parliament, while it is in session, for a total
irr one session or in two or
period of 30 days which may be comprised
a.ra iq before the expiry of the session immediately
more successive sessions,
I
I lfZ Textbooh on Administratiae Lazp
following the session or the successive aforesaid, both Houses agree in making
any modification in the rule should not be made, the rule shall thereafter have
effect only in such modified form or be of no effect, as the case may be; so
however, that any such modification or annulment shall be without prejudice
to the validitl' of anything previouslv done under that rule.
4.LL.2-2.2 Non-Compliance with Laying Down Procedure
Narend,ra Kumar u. (Jnion of Ind,i,a77 is the first case dealing with the
issue of non-compliance with laying down procedure. The Non-ferrous Metal
Control Order, 1958 framed under the Essential Cornrnodities Act 1955
was challenged on the ground that the policy for grant of licenses under
the Control Order were not officially published nor was it placed before
the Parliament as required under Sections 3(5) and (6) respectively of the
enabling statute. The Court held that the failure to publish the principles
specified. in the letter dated 18th Aprit in the Official Gazette as well as lay
them before the Parliament invalidates the principles as void. This view of
the Court holding the laying down procedure as mandatory was subsequently
challenged in several cases.
In Jan Mohd. Noor Mohd,. Bagban u. State of Gujarat 78 th" Coutt dealt
with the issue of whether the rules framed by the Provincial Government in
1941 in exercise of the powers laid down under Section 26(i) of the Bombay
Agricultural Produce Markets Act 1939 had any legal validity as they had
not been laid before each House of the Provincial Legislature. Holding the
laying down procedure as directory, the Supreme Court made the following
observation-
Finally, the validity of the rules framed under Bombay Act 22 of 1939 rvas
canvassed. By Section 26(1) of the Bombay Act the State Government was
authorised to make rules for the purpose of carrying out the provisions of the
Act. It was provided by sub-section (5) that the rules made under Section
26 shall be laid before each of the Houses of the Provincial Legislature
at the session thereof next following and shall be liable to be modified or
rescinded by a resolution in which both Houses concur and such rules shall,
after notification in the Official Gazette, be deemed to have been modified
or rescinded accordingly. It was urged by the petitioner that the rules framed
under Bombay Act 22 of 1939 were not placed before the Legislative Assembly
or the Legislative Council at the first session and therefore they had no legal
validity. The rules under Act 22 of 1939 were framed by the Provincial
Government of Bombay in 1941. At that time there was no Legislature in
session, the Legislature having been suspended during the emergency arising
out of World War II. The session of the Bombay Legislative Assembly
77. AIR 1960 SC 430.
78. AIR 1966 SC 385 : (1966) 1 SCR 5o5.
Detegated Legislztion and. Legal Issues t$\*AW'
was convened for the first time after 1941 0n 20-5-1946 and that session
was proroguecl on 24-5-1946. The second session of the Bornbay Legislative
Assembly w:is convened on 15-7-1946 and that of the Bombay Legislative
Council on 3-9-1946 and the rules were placed on the Assembly Table in the
second session before the Legislative Assembly on 2-9-1946 and before the
Legislarive council on 13-9-1946. Section 26(5) of Bomba-"* Act 22 of 1939
does not prescribe that the rules acquired validity only from the date on
' which they were placed before the Houses of Legislature. The rules are valid
from the date on which they are made under section 26(1). It is true that
the Legislature has prescribed that the rules shall be placed before the Houses
of Leglslature, but failure to place the rules before the Houses of Legislature
does not affect the validity of the rules, merely because they have not been
placed before the Houses of the Legislature. Granting that the provisions of
.sub_section (5) of section 26 by reason of the failure to place the rules before
the Houses of Legislature *ejre violated. {€ are of the view that sub-section
(5) of section 26 having regard to the purposes for which it is made, and in
the context in which it occurs, cannot be regarded as mandatory. The rules
have been in operation since the year 1941 and by virtue of Section 64 of
' Gujarat Act 20 of 1964 they continue to rernain in operation"'
In Atlas cycle Ind,ustries Ltd. u. state of Haryanate the Supreme Court
revisited the issue of whether non-compliance of the laying down procedure
urider sec. 3(6) of the Essential commodities will invalidate a statutory
regulation issued under the statute. It categorically observed-
Though sub-section (6) of section 3 of the Act provides that every order
made by the Central dovernment or by any officer or authority of the Central
'Parliament as's'oon'as may
Government shall be laid before both Houses of
be after it is made, the important point to be considered in the absence of
analogous statutes like the statutory Instruments Act, 1946 and the Laying
of Documents Before Parliament (Interpretation) Act, 1948 prescribing the
conditions, the period and the legal effect of the laying of order before the
Parliament is whether the provision is directory or mandatory'
Now at p. 317 of the aforesaid Edition of Craies on Statute Lata, the questions
whether the direction to lay the rules before Parliament is mandatory or merely
directory and s,hether la1.'ing is a condition precedent to their operation or
ma1' be neglected without prejudice to the effect of the rules are answered
by saying ihat ..each case must depend on its own circumstances or the
wording of the statute under which the rules are made". In the instant case,
it would be noticed that sub- section (6) of section 3 of the Act merely
provides that every order made under Section 3 by the central Government
or by any officer or authority of the central Government shall be laid before
79. AIR 1979 sc 1149.
I
I ffn Textbooh on Administratiae Laut
both Houses of Parliament, as soon as may be, after it is made. It does not
provide that it shall be subject to the negative or the affirmative resolution
by either House of Parliament. It also does not provide that it shall be open
to the Parliament to approve or disapprove the order made under Section 3
of the Act- It does not even say that it shall be subject to arly modification
which either House of Parliament may in its wisdom think it necessary to
provide. It does not even specify the period for which the order is to be
laid before both Houses of Parliament nor does it provide any penalty for
non-observance of or non-compliance with the direction as to the laying of
the order before both Houses of Parliament. It would also be noticed that the
requirement as to the laying of the order before both Houses of Parliament
is not a condition precedent but subsequent to the making of the order. In
other words, there is no prohibition to.the making of the orders without the
approval of both Houses of Parliament. In these circumstances, we are clearly
of the view that the requirement as to laying contained in sub-section (6)
' of Section 3 of the Act falls within the first category i.e. "simple laying"
and is directory not mandatory. We are fortified in this view by a catena
. of decisions, both English and Indian. ln BaileE u. Williamsonso where try
Section 9 of the Parks Regulations Act, 1872 passed on June 27, 1872 "to
protect the royal parks from injury, and to protect the public in the enjoyment
of those royal parks and other royal possessions for the purpose of innocent
recreation and exercise" it was provided that any rules made in pursuanie
'of the first schedule to the Act shall be forthwith laid before both Houses of
Parliament, if Parliament be sitting, or if not, then within three weeks after
the beginning of the then next ensuing session of Parliament; and if any suih
.rules shall be disapproved by either House of Parliament within one month of
the laying, such rule.s, or such parts,thereof as shall be disapproved shall not
be enforced and rules for Hyde Park were made and published on september
30, 1872 r*'hen Parliament was not sitting and in November 18, 1872, the
appellant was convicted under Section 4 of the Act for that he did unlawfully
act in contravention of Regulation 8 contained in the first Schedule annexed
thereto by delivering a public address not in accordance with the rules of the
' said Park but contrary to the Statute, and it was inter alia contended on his
behalf ttrat in the absence of distinct words in the statute stating that the
rules would be operative in the interval from the time they were rnade to
the time when Parliament should meet next or if Parliament was sitting then
during the month during which Parliament had an opportunity of expressing
its opinion upon them, no rule made as supplementing lhe schedule could
be operative so a.s to render a person liable to be convicted for infraction
thereof unless the same had been laid before the Parliament, it was held
overruling the contention that the rules became effective from the time they
were made and it could not be the intention of the Legislature that the laying
of the rules before Parliament should be made a condition precedent to their
acquiring validity and that they should not take effect until they are laid
before and approved by Parliament. If the Legislature had intended the same
80. 1873 LR VIII QB ll8.
I
Delegated Legislztionand Legal Issues 115 l
'
thing as in Section 4, that the rules shouid not take effect until they had
the sa'ction of the Parliament, it would have expressly said so by errlploying
negative language.
The court re-visited the Narend,r& Kutrt,&r judgment and distinguished it
on the ground that iir that case the Non-ferrous \Ietal Control Order' 1958
was helJ to be inva.lid fundamentally on the ground of no.-publicatio'
in the
Government Gazette, it uas only incidentalty that & rnenti,on was rnade bi
the court to the effect that the principles had not been laid' before botlt
Houses of Parli'arnent-
In Bank of Ind,ia u. O.P. Swarnakar'8l the Sup.eme Court upheld the
views expressed in Attas Cgcle case and held that the requirement of
statutory rules to be placed before the legislature is merely directory and
non-compliance of the same lvill not vitiate the legality of the rules framed'
It was further clarified that an administrative scheme such as the Voluntary
Retirement Schemes are contractual in nature and do not fall within the
scope of statutory regulation, hence they are not required to be
placed before
the Parliament by the Central Government'
4.11.2.2.3 Indirect control - committees on subordinate Legislation
The legislative control through the process of laying d'own of the subordinate
legislations have been found to be ineffective because of factors like inadequate
tiire availability of the Parliamentarians, hence like the Joint Committee on
statutory Instruments or the Lords committee, in India each House of the
Parliament has constituted a Committee on Subordinate Legislation' The
primary function of these committees are'to scrutinize and ensure uhether
powers to make rules, regulations, bye-Iatas, schemes or other statutora
instruments conferred, bg the constitution or delegated by Parliament haue
been properly erercised' within such conferm'ent or d'elegation''82
(") Rajya sabha corn'Irt'ittee on subord'inate legislation
The committee shall scrutinize and report to the Rajya sabha whether
the powers to make rules, regulations, bye-laws, schemes or other StatutorY
instruments confbrred by the Constitution or delegated by Parliament have
been properly u,ithin such conferment or delegation, as the case rnay be.83
lt n'as first constituted in 1964. The committee consists of fifteen members
who are nominated by the Chairman of the Rajya Sabha' A Chairman of the
Committee is appoinied by the Chairman from amongst the members of t5e
81. (2oo3) 2 SCC 72r.
g2. Rajya sabha, Practice & Procedure series - committee on subordinate Legislation'
g3. RuIe 204, chapter XVII - Rules of Procedure and concluct of Business in the council of
States (Rajya Sabha) 8rh Ed. 2013.
 Textbooh on Administrathte Lazo, Delegated Legislation and Legal Issues i*:74::!''

Committee. The Committee shall have the power to require the attendance of
persons or the production of papers or records for the discharge of its duties.
Under Rule 209 after a rule, regulation, bye-larv, scheme, order or other
statutory instrurnent have been framed in pursuance of the Constitution or
the legislative functions delegated by Parliament to a subordinate authority
and .which is required to be laid before Parliament, is so laid before the
Council, the Committee shall, in particular consider-
(i) Whether the order is in accord with the provisions of the Constitution
or the Act pursuant to which it is made;
(ii) Whether the order contains matter which is in the opinion of
the Committee should more properly be dealt with in an Act of
Parliament;
(iii) Whether the order contains imposition of taxation;
jurisdiction of the
.(iv) Whether the order directly or indirectly bars the
court;
(v) Whether the order gives retrospective effeit to any of the provisions
in respect of which the constitution or the Act does not expressly
give any such power;
(vi) whether the order involves expenditure from the consolidated Fund
of India or the public revenues;
(vii) Whether the order appears to make some unusual or unexpected use
of the power conferred by the Constitution or the Act pursuant to
which it is made;
(viii) Whether there appears to have been unjustifiable delay in its publication
or laying the order before the Parliament; and
(ix) whether for any reason the form or purport of the order calls for any
elucidation.
The Committee is required to submit their report to the Council if it
is of opinion that any statutory instruments or orders should be annulled
wholly or in part, or should be amended in any respect and the reasons
thereof.8a They may also refer any other important matter relating to the
statutory instruments to the Council. The report of the Committee shall
be presented by the chairman to the council or by any other member in
his absence.8s
84. Rule 210 - Rules of Procedure and Conduct of Business iIr the Council of States (Rajya
Sabha) 8tt'Ed. 2013.
85. Rule 211- Rules of Procedure and Conduct of Business in the Council of States (R"ajya
Sabha) 8'h Ed. 2013.
(b) Lok sabha, contnt''ittee on' subord"in'ate legi'slation
The Lok sabha committee on subordinate Legislation has the primary
responsibility to scrutinize and report to the House whether the powers
to make regulations, rules, sub-rules, bye-laws etc., conferred by the
Constitution or delegated by Parliament are being properly exercis€d n'ithin
such delegation.so The Cornmittee consists of not rnore than fifteen members
nominated by the Speaker. A lUinister is not a rnember of the committee'
The term of office of the members is one year. After an order or statutory
instrument is laid before the House, the committee shall analyze and
exainine the delegated legislations on terms of the same issues which
the Rajya sabha committee on Subordinate Legislation deals with.87 The
Cb*m*ee shall submit its report to the House on whether the subordinate
legislations should be annulled wholly or in part, or be amended and the
reasons for the same.88 They may also express their opinion on any other
related matters which should be brought to the notice of the House. The
to
speaker has been empowered to issue directions on any matter relating
ihe regulation of procedu.es of .the subordinate legislations either in the
Committee or in the House.8e
4.11.2.2.4 Recommendations of the committee on Subordinate Legislation
The Committee in its 21"t Report on "Non-Implementation of Oft-Repeated
Recommendations of committee o:r subordinate Legislation, Lok sa'bha by
V"tiorr" Ministries"go made several recommendations for ensuring that the
Ministries should perform their statutory obligations and avoid being casual
'and. Iackadaisical- Some of the suggestions are-
(i) Framing of Rules
' Rules should be framed under the Act as soon as possible after the
commencement of the dct and in no case this period should exceed
six months.
If no rules are framed within a reasonable period after the
commencement of the Act and the Committee will take up the matter
with the Ministry concerned and report to the House the cases where
it is felt that undue delay has occurred in framing the rules.
conduct of Business in the Lok Sabha
86. Rule 317, chapter xxvl - Rules of Procedure and
lsth Ed. 2014.
87. Rule 320, chapter xxvl - Rules of Procedure and conduct of Business in the Lok Sabha
ts"n Ed. 2014.
88. Rule 321, chapter xxvl - Rules of Procedure and conduct of Business in the Lok sabha
15th Ed. 2014.
gg. Rule 322, chapter xxvl - Rules of Procedure and conduct of Business in the Lok sabha,
15th Ed. 2014.
90. Lok Sabha Secretariat, December 2011'

Textboob on Administratizte Laut
In case, a Ministry/Department finds that for any unavoidable reasons
it is not possible for them to adhere to the prescribed time-limit (of six
months to frame the rules) in an exceptional case they should at the
expiration of six months from the commencement of the relevant Act-
explain the reasons to the Committee and seek a specific extension
. of time from them.el
(ii) Laying of Orders
All the Ministries should ensure that all 'Orders' requirecl to be laid
before the House are so laid within a period of 15 days after their
publication in the Gazette if the House is in session, and if the House
is not in session, the 'Orders' should be laid on the Table of the House
as soon as possible (but'within 15 days) after the commencement of
the following session.
The Committee would like the Ministries concerned to furnish them
with the reasons explaining the delay caused in laying each such
'Order' on the Table of the House.'
Whenever 'Order' are laid on the Table after an inordinate delay, an
explanatory note giving the reasons for such delay should be appended
. to the 'Orders' when so laid.g2
(iii) Delay in publication of the Draft Rules'in final form
In cases where no objection / suggestion on the draft rules were
forthcoming the final rules should be published within a period of 3
months and in cases where a large nurnber.of objections,/suggestions
were received, the gap should not be rhore than 6 months.
These recommendations and guidelines should be observed by the
Ministry scrupulously in all such cases with a view to rninirnize the g1p
between the publication of draft rules and their final notification.e3
(ir') Printing of Rules
The Committee desire that the Extraordinary Gazette which is the
time bound publication and is used to publish urgent material must
be printed ancl made available on the appointed date.ea
(r) Giving Retrospective Effect to Rules
Normally all rules should be published before the date of their
enforcement or thet' should be enforced from the date of their
publication.
91. 5th Report (2"d LS) Para 34.
92. 6th Report (3'd LS) Para 38.
93. 24tr' Report (7th LS) Para 68.
94. 24rh Report (lOtr' LS) Para 2.11.
.l
Delcsated Lepislation and Legal Issues 119 |
The Ministries / Departments should take appropriate steps to ensure
the publication of rules before they corne into force'
However, if in any particular case the rules have to be given
retrospective effect in view of any unavoidable circumstances) a
clarification should be given either by rval' of an explanation in the
rules or in the forrn of foot-note to the relevant rules to the effect
that no one will be adversely affected as a result of retrospective effect
being given to such rules.es
(vi) I\{aking Rules after Previous Publication
When the Acts give a right to the public to send their comments on
certain draft rules, it is only reasonable that sufficient time shouki
be given to them to study the draft rules and send their comments
before they are finalized.
A period of not Iess than 30 clear days, exclusive of the time taken
in publishing the draft rules in the Gazette and the dispatching the
Gazette copies to various parts of the country, should be given to the
. public to send their comments on such draft rules'e6
4.12 PROCEDUML FROM OF CONTROL
Parliamentary form of control of delegated legislation is generally accepted
as not a very effective form of control mechanism because of various factors
like paucity of time, lack of expertise etc. Hence a general demand has been
made that a procedural control mechanism should be developed which would
impose constant vigilance over the delegated legislations and ensure that
effective participation of the people in the la$'making process takes place'
It is often considered that adherence with procedural norms will facilitate
in rnaking more democratic subordinate legislations which would be more
easily acceptable to the people at large. This form of control mechanism
has been largely applied in the United States'
4.12.1 United States
Due to the application of the separation of power doctrine the Parliamentary
form of control and the process of laying d,oun htas no application in the
US. The judiciary has Leen entrusted with the task of controlling the
administrative action and the Congress does not have any direct supervisory
power over the functioning of the administrative authorities' Irrstead the
control by congress over the administrative process tends to be indirect
95. 2nd Report (4th LS) Para 10.
96. 6th Report (1"t LS) Para 31.
f iZO Textbooh on Administratioe Laz;t
by laying down procedures which needs to be complied with during the
performance of their functions.
The Congress had enacted the Administrative Procedure Act, 1946 for
prescribing the minimum procedural standards which adrninistrative agencies
must conform with in the course of their functioning. The Act was enacted
during the period after the Great Depression and the Second World War
when the power of the federal gor,'ernment increased manifold. President
Roosevelt and the Democratic Congress had enacted several statutes rvhich
created a number of new federal agencies.
The federal agencies have been described as unique goaernrnental bodi'es
exercising powers characteristic of all three branches of government - judicial,
legislative and executive. It was realized that existence of such administrative
bodies are likely to .threaten the core principles of separation oJ pouers
doctrine under the US constitution. To provide constitutional safeguards,
the Administrative .Procedure Act creates a framework for regulating the
agencies and their unique functional roles.
The basic purposes of the Act is to-
(a) Require agencies to keep the public informed of their organization,
procedures and rules;
(b) Provide for public participation in the rule making process; '
(c) Establish uniform standards for the conduct of formal rtile-making
and adjudication;
(d) Define the scope of judicial review.
"
Section 553 of the Act has laid down the manner of administrative rule
making.
(i) A general notice of the proposed rule-making has to be published in
the Federal Register, unless the persons subject thereto are named
and either personally served or otherwise have actual notice. thereof
in accordance with law.
(ii) The notice shall include
(a) A statement of the time, place and nature of public rule-rnaking
proceedings
(b) Reference to the legal authority under which the rule is proposed,
and
(c)The terms or substance of the proposed rule or a description of
the subjects and issues involved.
Exceptions- This rule is not applicable-
(i) Interpretation of rules, general statements of policy or rules of agency
organization, procedure etc.
Delepated Lepishtion and Legal Issues Pl I
(ii) when it is deemed that the notice and public procedure are
impracticable, unnecessary or contrary to the public interest'
(iii) once notice has been issued, the agency shall give interested persons
an opportunity to participate in the rule-making through submission
of written data, vier*-s or arguments with or without opportunity for
oral presentation.
After consideration of the relevant matter presented, the agency shall
incorporate in the rules adopted a concise general statement of their
basis and Purpose.
(iv) The required publication or service of a substantive rule shall be rnade
30 days before its effective date'
not less than'shall
(v) Each agency give an interested person the right to petition for
the issuance, amendment, or repeal of a rule'
Thus in the absence of any legislative control - an elaborate procedure
regarding consultations and conferences with persons whose interests are
Iikely to be affected have been laid down'
Along with the process of consultation in the rule-making process, lot
of importance is also given to the procedures of publication. The maxim
Ignorance of lau is no ercuse for violation of rules and regulations as to
siatutes has been adhered to hence a machinery for publication of rules and
regulations is deemed essential. The Federal Register Act 1935 lays down the
p.lced,rre for publication of federal rules and regulations- It provides for the
establishment of the Federal Register as the official publication in which all
iederal rules, reguldtions, orders and other documents of 'general applicability
and legal effect must be published. The Registrar is published every day from
If{onday to Friday. W.hen sufficient number of rules has appeared, they are
to be bound and indexed. In addition there is the need to publish the Code
of Federal Regulations which is to be revised annually. The code is divided
into fifty subject matter titles. By publishing a regulation, the agency gives
constructive notice to all about the application and enforcement of the rules'
on the other hand if the agency fails to publish in the official register then
the regulation will be only binding upon persons with actual kno${edge of
the rules, it shall not have application against the world at large.
The various procedural safeguards under the statute attempts to promote
openness, fairness, participatory democracy and informed rule-making.
These
procedures ensure that the federal agencies are accountable to the common
people.
4.12.2 India
In India in the absence of statutory provisions the administrative authorities
are not bound to comply with any procedural norms, including notice
and
I Delegated Legislation and Legal Issres l 4li:
ll.'22 Textbooh on Administrathte Lazo

prior consultation with the interested parties. If the statute lays down certain resulttothegeneralpubliciftlreactoftheGovernmentoraninstrumentality
provision'
procedures for the purposes of making the subordinate legislations, only in is declared invalicl for non-complia.nce $,'ith the particular
such circumstances can the administrative authorities be held accountable for
compliance of such norms. But for the purpose of invalidating a delegated
ln Raza Bulantl, sugar co- Ltd, u. Ivlunicipal Board., RompurL the
theory'
supreme court laid dorvn the doctrine of 'substantial compliance'
legislation on the ground of non-adherence to procedural norms a judicial of tax
order is necessary. u;d", the U.p. \,Iunicipalities Act 1g16 the procedure for imposition i.
required the proposal lor tax imposition was required to be 'published
a iocal paper published in Hindi and where there is no such local paper,
4.12.3 Mandatory and Directory Procedures
in such manner as the state Government rnay, by general or published
special order,
In Atlas Cgcle Ind.ustri.es Ltd. u. State of HarganaeT the Supreme Court has direct. In this case the \'Iunicipal Board of Rampur had the
laid down the test of mandatory and directory provisions for the purpose of resolution to impose water tax in Hindi language in a local Urdu nervspaper'
of
determining whether the non-compliance of a procedure will invalidate the The appellant, L public limited cornpany, aggrieved with the imposition
with
subordinate legislations. It stated- water taxes challenged order imposed on the ground of non-compliance
the mandatory provisions of publication. The court discussed the scope of
It is well to remember at the outset that the use of the word 'shall' is not mandatory and directory provisions and observed-
conclusive and decisive of the matter and the Court has to ascertain the true
intention of the Legislature, which is the determining factor, and that must be The question whether a particular provision of a statute which on the face of
,'shall"-as in the present
done. by looking carefully to the whole scope, nature and design of the statute. ; ;p;.;* mandatory, inasmuch as it uses the lr'ord
general rule
Reference in this connection may be made to the decision of this Court in case-is merely airecio.y cannot be resolved by Iaying down any
State of u.P. u. Manbod,han Lal Sriuastauo.e8 Ref..ence in this behalf may anddependsuponthefactsofeachcaseandforthatpurposetheobjectof
also be made with advantage to another decision of this Court in State of the staiute in making the provision is the determining factor. The
purpose
Uttar Pradesh u. Babu Ram tlpadhyoee where Subba Rao, J. (as he then was) for which the provisiln has b"en made and its nature,.the intention of the
after quoting with approval the passage occurring at pages 516 in Crawford the general inconvenience or
Iegislature in making the provision, serious
"On the Construction of Statutes" as well as the passage occurring at p. 242 injusticetopersonsresultingfromrvhethertheprovisionisreadonewayor
in Craies on Statute Law, 1t}r Edn., observed as follows: tlie other, the relation of tlie particular provision to other provisions dealing
"The relevant rules of interpretation may be briefly stated thus: \\/hen a with the same subject and other considerations *'hich may arise on the facts
statute uses the lvord "shall", prima facie, it is mandatory. but the Court ofaparticularcaseincludingthelarrguageoftheprovision,.havealltotje.... provision
may ascertain the real intention of the Legislature by carefully attending taken into account in arriving at the conclusion u'hether a particular
to the n'hole scope of the statute. For ascertaining the real intention of the is mandatorY or directorY'
tegislature, the Court may consider, inter alia, the nature and the design
of the statute, and the consequences which would follow from construing it WhiledealingwithtlrescopeofpublicationtheCourtanalyzedthat
the object of publication is to invite objections from the inhabitants of
the
one way or the other, the impact of other provisions whereby the necessity to
of complying with the provisions in question is avoided, the circumstances municipality who will be required' to pay the taxes so as democratize
namely, that the statute provides for a contingency of the non-compliance theprocessandtoprovideareasonableopportunityofbeingheard.Ifthe
with the provisions, the fact that the non-compliance with the provisions is provisions relating to publication are held to be directory then the elaborate
or is not visited by some penalty, the serious or trivial consequences that procedure relating to ante-natal publicity and consultation under the statute
flow therefrom. and, above all, whether the object of the legislation u'ill be would be meaningless and nugatorlr. Thus the requirement of publication
is
defeated or furthered".
mandatory under the statute but the manner of publication v-ill be deemed
Thus two considerations for regarding a provision as directory are: (-1) absence to be directory in nature. so long as publ'ication is made in substant'ial
compliance -itt tt rrlarlner prouid'ed' in section 9l(3) that uould
serue
of any provision for the contingency of a particular provision not being complied
with or followed, and (2) serious general inconvenience and prejudice that would "
thepurposeofthemand'atorypartofthesect'ionwhichprouidesfor
pubtication In this case the publication u'as made in a local Urdu paper,
97. ArR 1979 SC 1149
98. AIR 1957 SC 912.
99. AIR 1961 SC 751. 1. AIR 1965 sc 895.
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Textbook on Administrative Laut
V24
but that resolution was published in Hindi. Thus Section 9 (3) substantially (iii) There shall be published lvith the draft a notice specifying a date on
requires that the publication should be made in Hindi in a local newspaper, afterwhiclrblredraftwillbetakenirrtoconsideration.
which had been fulfilled in the present ca.se. (iv)Thea,uthorityhavingpowertomaketherulesorbye-rules'andwhere
t"',n.
rules or bye-laws are to be made with the sanction, approval or
4.12.4 Forms of Procedural Control concurrence of another authoritl-, that authorit-n* also. shall consider
There are primarily four main techniques of procedural control which
any objection or suggestion which may be received by the authoritv
are
having power to tttu,t " the rules or bye-laws from any person with
deemed essential for the successful implementation of the control mechanisrn.
These are
.""p."t to the draft before the date so specified'
- drafting, ante-natal publicity, consultation ,and post-natal (v)Thepublicationintheofficialgazetteofaruleorbye-lawpurporting
publicity.
tohavebeenmadeinexerciseofapowertonrakerulesorbye-laws
4.12.4.1 Drofting after previous publication shall be conclusive proof that the rule or
. Proper drafting of bye-law has been dulY made'
delegated legislation is considered important in most
some of the shortcomings of this provision are that no time
period has
jurisdictions because in the absence of proper drafting there is likelihood may vary from
been specified for publication of the draft rule. The
period
that the rules will be ambiguous or vague in nature which will be give hence the Committee on
rise to litigation in future. It is generally accepted that the rules should be 3 days to 6 months depending upon the statute, of 30
Subordinate legislation has suggested that a minimum period days
simple, clear and unambiguous in nature, hence in England it is required and suggestions
that the rules should be drafted by legal experts working in the different should be made a standard procedure for filing of objections
a press statement should be made informing
ministries whereas in Australia the rules are sent to the Attornev-General and in case of an urgent matter
publication of draft rules so that the public may send
for his opinion prior to its final notification. the people about the"
expeditiously. Also the committee recommended that
in their comments
4.12.4.2 Ante-natol publicity thereshouldnotbeconsiderabletimegapbetweenthepublicationofthe
Ante-natal publicity or pre-enactment publicity is the other technique which
draft rules and the publication of the final rules'
is often adopted to ensure people's participation in the law making process. 4.12.4.3 Consultation
This process is considered to bei iif-[reat importance in US because members procedural
of business or trade organizations often engage in discussions relating to Ante-natal publicity is generally associated with another important
.orm invol'ing consultation. Consultation enables discussion with the people
the framing of rules and regulations so that the views of the industry are
and interests s,hich are likely to be affected by the rule-making process'
taken into consideration by the administrative agency Under this procedure of rule making
the rules are required to be first published in a draft form so as to give This process is popularly referred to as the democratization
pro"".. because it forces the subordinate rule-making to come out of the
an opportunity'to the people likely to be affected by such laws to have into the views of the
their say in the rules to be made. In India there are no specific laws closed bureaucratic offices and take consideration
affected people. Unlike laws made by the Parliament which are a reflection
dealing with ante-natal publicity, as it is in the US, hence the need to
of the demands of the cornmon peopie as the members of the parliament
are
adopt such measures have to specified in the parent Act for the purpose of delegated legislations framed by the executive
elected by the collrrnon people,
implementation. However if the parent Act has made provisions for ante-natal
publicity, then the procedure as laid down in Section 23 of the General will generally be substiacted off such representations, hence consultation
Clauses Act 1897 has to be applied- is an-attempt to bridge that gap. Consultation also facilitates in bringing
(i) The authority having power to make the rule or bye-laws shall, before morelegitimacytotherulesintheeyesofthecornmonpeopleandmakes
them more easily accept those rules by appreciating the ground realities'Like
making them, publish a draft of the proposed rules or bye-laws for
other procedural requirements,it is the parent Act which has to mandate
the
the information of person likely to be affected thereby-
holding of consultation as part of the rule-rnaking process'
(ii) The publication shall be made in such manner as that authority deems
Consultations can be of various kinds'
to be sufficient, or, if the condition with respect to previous publication
so requires, in such manrrer as prescribed.
 I
,I

(i) A legislation specifically identifies a body to hold consultation with

comrn'ittee,
prior to the making of a,ny rules or schemes. For cxample- under the In Rajnarain singh u. The chairman, Patna Administration to be an
Banking Regulation Act, 1949 the Central Government is required to patni the procedural requirement of consultation was considered
consult with the Reserve Bank of India on banking related matters. irrt"gr.t pr.t of the ena-bling Act and the compliance of it was deemed
of tax t-ithout prior consultation q'ith the
(ii) Legislationimposes the obligation to consult s'ith a statutor)' board marid.toil'. The imposition parent statute'
constituted under a statute on all matters related to a specific subject affected people rvas held to be ultra vires to the Similarly
in Banuirilal Agarualla u. State of Bihar2 it was held that requirement
of
matter as provided under a statute. For example. the Tea Board 59 before framing
constituted under the Tea Act, 1953 is required to perform multifarious prio4 consultation with the I\{ining Board under Section
functions such as - Rendering financial and technical assistance fpr or rules and regulations under the section 57 of the Mines Act 1952
"r,y
was mandatory in riature. The Court elaborately analyzed
the scope and
cultivation, manufacture and marketing of tea; Export Promotion;
Aiding Research and Development activities for augmentation of tea purpose of the various provisions and observed-
production and improvement of tea quality; Extend financial assistance
As has been recognised again and agaiir by the courts' no general rule
can
in a limited way to the plantation u'orkers and their wards through belaiddownfordecidingwhetheranyparticularprovisioninastatute
labour welfare schemes; To encourage and assist both financially 'is mandatory, meaning tf,ereby that non-observance thereof involves the
and technically the unorganised small grou'ers sectorl Collection and consequence of invalidity or only directory, i'e', a direction the non-observance
maintenance of Statistical data and publication and such other activities of which does not entail the consequence of invalidity, has
rvhatever other
to decide the
a.s are assigned from time to time by the Central Government. consequences may occur. But in each case the court
in making the statutory pro*isions
(iii) Consultation with Administrative Bodies - A statute rnay provide legislaiive intent. Did the Iegislature intend
that non-observance of this would entail invalidity or did it not? To decide
for creation of different administrative bodies or committees to make thiswehavetocorrsidernotonlytheactualwordsusedbutalsothescheme
recommendations to the Government for the purpose of making rules .ofthestatute,theintendedbenefittopublicofwhatisenjoinedbythe
and regulations. Under the Mines Act 1952 the Central Government .provisionsandthematerialdangertothepublicbythecontraventionofthe
is required to constitute 'committees? for consideration of proposals for same.Inthepresentcasewehavetodeterminethereforeonaconsiderationas
the purpose of making rules and regulations under the Act.Section 59 of all these matters whether the legislature intended that the provisions
of the Act categorically lays down that no regulation or rule shall be rbsards the reference to the l\{ines Board could be contravened only on pain
'tiiri"tegulation. Looki'g at the language of the section, *'e
made unless the draft has been referred to the Committee for their i"""fiaity of
"f
find,thelegislature'af-tersayinginpartofsub-section(3)'thatbeforeany
consideration.
regulation il published. it
.,iali be" referred to every Nlining Board u'hich
(iv) Drafting of rules by affected parties - Keepingin vierv the safety is, in the opinion of tlre Central Government corrcerned with the strbject, and
issue the Mines Act has also made provisions requiring the affected rrshall nott'be published
goes on to say in the latter part, that the regulation
parties to draft rules necessary to prevent accidents and submit it .until each Board has had a reasonable opportunity of reporting as to the
to the committee for consideration. Under Sectiou 60 of the Act the expediency and suitability of the provisions'
owner, agent or manager of a mine can frame and submit to the Chief
Inspector or Inspector a draft of such bye-laws governing the use of Whileitistruethatlanguageisonlyoneoftlremanyconsiderationswhich
have to be taken into account in deciding vihether a requirement is
directory
any particular machinery or the adoption of a particular method of ortnandatory'itislegitimatetonotethatthelanguageusedirrtlriscaseis
emphatic and appearslo be designed to express an anxiety- of the
working the mine as may be deemed necessary to prevent accidents Iegislature
and also to provide for the safety, convenience and discipline of the thatthepublicationoftlreregulation,whichisconditionprecedenttothe precedent-
persons employed in the mine. making of the regulations, should itself be subject to two conditions
(v) Consultation with interested members of the public - Some legislation first,areferencetotheMiningBoardsconcerned'andsecondly'thatsufficient and
impose the obligation on the administrative authorities to hold opportunity to the Board to make a report as regards the expediency
suitability of the proposed regulations'
consultations with the general public by publishing draft rules and
inviting suggestions and comments from the interested public.
2. AIR 1961 sc 849.

,-f fZt Textbooh on Administrathte Laut
The cause of this anxiety becomes patent, when one examines the matters on
which regulations can be made. Even a cursory examination of the purposes
set out in the 27 clauses of section 57 shou's that most of them impinge
heavily on the actual working of the mines. To mention only a few of these,
viz., clause (c) under w'hich regulations may be made for prescribing the
duties of owners, agents and managers of mines and of persons acting under
them; (g) for determining the circumstances in which and the conditions
subject to which it shall be lawful for more mines than one to be under a
single manager; (j) for prohibiting, restricting or regulating the employment
of adolescents and women in mines; (k) for providing for the safety of the
persons employed in a mine; (m) for providing for the safety of the roads
and working places in mines; (n) for the inspection of workings and sealed
off fire areas in a mine; (o) for providing for the ventilation of mines; (r) for
providing for proper lighting of mines and regulating the use of safety lamps
therein;-are sufficient to show that the very purpose of the Act may well
be defeated unless suitable and practical regulations are framed to help the
achievement of this purpose. Arbitrary and haphazard regulations without full
consideration of their practicability and ultimate effect on the efficient working
of the mines, would, apart from often defeating the purpose of the Act, affect
injuriously the general economy of the country.
That, we are entitled to presume, is the reason behind the legislaturers anxiety
that Mining Boards should have an opportunity of examining regulations,
and expressing their opinion before they are finalised. As has been already
mentioned section 12 which deals with the formation of boards provides for
representation thereupon of two persons nominated by owners of mines or
their representatives and two persons .to represent and interests of persons
employed in mines, in addition to three persons representing the Government.
The constitution is calculated to ensure that all aspects including on the
. one hand the need for securing the safety and welfare of labour and on the
other hand practicability of the provisions proposed from the point of view
of the likely expense and other considerations can bc thoroughly examined.
It is certainly to the public benefit that Boards thus constituted should have
an opportunity of examining regulations proposed in the first place' by an
administrative department of the government and of expressing their opinion.
It is true that the Iaw does not require concurrence of the board with the
regulations proposed. It is reasonable to expect however that rvhen a Board has
expressed an opinion in favour of the rejection or modification of a proposed
regulation, the department would not treat it lightly- But, even where the
opinion expressed by the Board is not accepted the very fact that there has
been such an examination by the Board, and a consequent re-examination by
the department is likely to minimise the risks to public welfare.
But if the legislative requirement of prior consultation was considered to
be directory in nature then the non-compliance of it will not invalidate the
validity of the subordinate rules made under a statute. In H'industan Zinc
I
' n-l-^.r.) I .oi,lotinn zni Leoal Issues 729 ll
Ltd,. u. APSEBs the Supreme court arlalyzed the role and functions of
the State Electricity Consultative Council constituted under the Electricity
(supply) Act 1948. Under Sec. 16 of the Act the council was cornprised of
members of the Electricity Board and representatives from the Electricity
Generating cornpanies. local self-government. electricitl- supply industrl'.
commerce, industry, transport, agriculture, labour employed in the electricity
supply industry and consumers 6f electricity. The primary functions of the
Council were to advise the Board and the Generating Companies on maior
questions of policies and schemes. On the issue of whether prior consultation
of tn" Board with the Council was a mandatory requirement foi revision of
tariffs, the Court opining in the negative held that-
The common premise for the purpose of this casc that revision.of tariffs by
the Board is a question of policy may indicate that it n'ould bc open to the'
Consultative Council to advise the Board also on the question of revisiol of
tariffs, and if such advice is .given, then the Board must consider the same
before taking the final decision. That, hou'ever, does not necessarily mean
that where no such advice was taken from the consultative council or wds .
rendered on account of the absence of any meeting of the Consultative Council
during the relevant period, it would necessarily render invalid the revision of
tariffs made by the Board. The consequence of non-compliance of section 16
is not provided and the nature of.function of the Consultative Council and
the force of its advice being at the best only persuasive, it cannot be said
that revision of tariffs without seeking the advice of the Consultative Council
renders the revision of tariffs invalid.
4.12.4.3.2 Pre-legislative Consultation Policy
In light of growing irnportance of public participation in the law making
process, recent attempts have been rnade to introduce pre-legislative
consultation in the context of subordinate law rnaking- The Committee of
Secretaries (CoS) under the Chairmanship of Cabinet Secretary had decided
on 10th January, 2Ol4 to introduce the Pre-Legislative Consultation Policy
with regards to Principal and subordinate Legislations as frarned under the
different ministries. The legislative process would be mandatorily followed
by every lvlinistry / Department of the central Government before any
legislative proposal or subordinate legislation is submitted to the cabinet
for its consideration and approval. This step was introduced to bring in
transparency and create a better informed Government so as to resolve
contentious and complex policies through the process of consensus.4 The
Manual for Parliamentary Procedures in the Government of India and the
3. (1991) 3 scc.29e.
a. ietter dated ;rh Fcbruary 2014 written by P.K. IHalhotra, Secretary, I\'finistry
of Larv &
Justice Legislative Department to the secretaries of different ministries'
 I
Delegated Legislation and Legal Issues l3l I
I
I fgO Textbooh on Admfoistratfoe La@

6.Thesrrmrnaryoffeedback/commentsreceivedfromthepublicfother
the website of the
instructionsonrn.ritingCabinetNotesarebeingsuitablemodifiedtoinclude stakeholders shourd also be placed on
these procedural rules' Department / Irlinistry concerned-
process rs-
The primary objective of such pre-consultative T.TheDepartment/I\4inistryconcernedmight.inadrtitiontoplacingthe
*ith all stakeholders'
proposal i. pruri. domain, also hol<l consultations
and mode of consultations may
\\:hileforlorvingthisprocess:theGor-ernmentsetsoutclearlythepolic;-
-oaa.."secl
through the provision of supportive
evidence However, the degree of participation
problern that is to u" concerned and may vary
and analysis, the options that it has "o""iat'"aforward a
and the reasons for the be decided t'y ittu Department / \4inistr5' the potential impact on
- choices the Government have made in
Uti"gi"g The
according to the nature of the subject
and
?i"i"ti"l 'legislation'
benefits and the by such legislation'
process u.l"o irl'uot','"s^ir't "t"av of social
t"J costs' those wlio will be affected
key challeng"" trroi-."qlri;;J ;"- be-.settled
before undertaking the legislation'
8. The Bill should be referred to the
I{inistry of Law and Justice for
ti""" facilirate formation of perfect policy objectives
Looking into all ^"p".ts efficacy of any Act in vettingafterthepre.Iegislativeconsultationaswellasinter-ministeria]
which a BiIl intends to achieve and improve the 'its consultation. u,'. o.',",. Th. Ml,,i.try
of Law and Justice shall also, at
or rules, ensure that
irnplementation.l the time of examination of the draft regislation
The pre-consultation procedures laid down
are-6 theconcernedDepartment/Minist,yhu,"compiledwiththeprocessof
shall proactively publish the proposed Pre-legislative consultation'
1. Every Department / I\rlinistry
thiough other means; the g.TheDepartment/I\Iinistryconcernedshouldincludeabriefsummary
legislations both on the internet * "t"o
may be worked out by the ofthefeedback,receivedfromstakeholders(includingGovernment
detailed modalities of such publication
DePartment / MinistrY concerned'
Department'"tathepublic)alongu'ithitsresponseinthenotefor
should publish/piace in public the Cabinet along with the draft legislation'
2. The Department/Ministry concerned the information that may
domain the draft legislaiion or at least l0.Thesummaryofpre-legislativeprocessshoulilalsobeplacedbefore
the proposed legislation
inter alia include brief. justifi.u,iio., for such
legislation, essential the Department / Ministry concerned when to the Standing
isbrought to the Parliament and is referred
elementsofthelegislation,itsbroadfinancialimplications'andan
estimatedassessmerrtofthel.mpactofsuchlegislationonenvironment, Committee'
fundamentalriglrts,livesandlivelihoods."t..tl'"corrcernedfaffected
domain for a
ll.IttheDepartrnent/Nfinistryconcernedisofthevier*'thatitisnot
people, S;'"; details may be kept in the publicshared with the feasibleordesirabletoholdpre_legislatil'econsultationascletailed
the note for the Cabinet'
minimum "t"'period of thirty aay" iot bui"g p'ot"tive\ above' it rnay record the reasons in
Department / l\{inistry
public ir, manner as may be specifieJUy tfre
".tJ 4.12-4-4 Publication
concerned. it necessarY for rules
3.Wheresuchlegislationaffectspecificgroupofpeople'itmaybe The principle of ignorance of law is no excuse' makes
documented and disclosea tt.ongil
print Ir electronic media or in such andregulationstouup"uri.r'.dbyanofficialchannelsothatthelawsare
be consid-er"d "u""'"u''y to give wider
publicity The term 'publication' refets "to th'e
other mann";;-;";", easily accessed by tt'" io*-on people'
public noti'ce' or rendering it
to reach the affected PeoPle' act of publishing onyt'hl'ng; oiering it .to of the public; mo'king knoun
the previous publication accessible to publi'c tr"'uting " on
od'ol'ting
4. As a matter of practice, a provision regarding legislations' need of publication of delegated
of rules L *tdu in all nen' principal of something to tne'; io'--o"ou'oo'su'? \he
when laws are being made through
"tto"faIegislation or rules' placed in public domain through legislation becomes important because-
5. Every draft -o-ro"."" note
pre_legislativ. should b. a".o-pa.ried by an explanatory thelegislativeprocessadequateattentionandpublicityisconferredbythe
explaining key- Iegal provisions in a simple
language' newsmediaabouttheproposedbill.Discussionsanddebatesonthefloor
provide necessary publicity
of t5e parliament in thl course of lau' making
< 2o14 written uv PT Malhotra, Secretary, I\{inistry of Law & totheenactedlawswhichmakepeopl".*u."aboutthem.Butdelegated
lflat., d"t"d stl' February .
dilre* TI':l'::
r:tr^_^-+
iiilt"i"T.i-"t".i;-;;;;;;nt to the secretaries of -i-i€rriae
.#.':1;:Jfl lfr 'r;:";H;;L;;il;;*':r"",.3,?-1":"y.,Tt{l#x; co'surtation ffim
7. Ragubir Prasail Agattnal, AIR 1979 sc 888'
;ia;'"",'-i;;:',:1,
ffif ':ni:-,'#'tiffi ;;;ffi ncipal iT.Il*Legisrative
State oJ MadhYo Prad'e

;""il"" Et il ;";ilil ;'

( i and subordi nate legislat ion )'
 lrl
f fgZ Textbook on Administratiae Laus
legislations are generally made in the interiors of bureaucratic chambers
which makes it difficult for the people to become aware about the rules
and other subordinate legislations. In the absence of compulsory publication
of delegated legislations through an official process it will be impossible for
most of people to know about the existence of such laws which are integral
part of the parent statute and will have equal bearing on their. rights and
liabilities. In the case of B.K. Srini.aasan u. State of Karnata&oo speaking
on the importance of publication of delegated legislations Chinnappa Reddy
J. observed-
There can be no doubt about the proposition that where a law, whether
Parliamentary or subordinate, demands compliance, those that are governed
must be notified directly and reliably of the larv and all changes and additions
made to it by various processes. Whether law is viewed from the standpoint
of the 'conscientious good man' seeking to abide by the law or from the
standpoint of Justice Holmes's 'IJnconscientious bad man' seeking.to avoid the
law, law must be known, that is to say, it must be so made that it can be
known. We know that delegated or subordinate legislation is all pervasive and
that there is hardly any field of activity where governance by delegated or
subordinate legislative powers is not as important if not more important' than
govgrnance by Parliamentary legislation. But unlike Parliamentary Legislation
which is publicly made, delegated or subordinate legislation is often' made,
unobtrusively in the chambers of a l\tlinister, a Secretary to the Government or
other official dignitary. It is, therefore, necessary that subordinate legislation,
in order to take effect, must be published or promulgated in some suitable
manner, whether such publication or promulgation is prescribed by the parent
statute or not.e
The need of publication of delegated legislations has been recognized
in most jurisdictions across the world. In England even though an Act of
Parliament can become law from the day it receives the Royal assent, but
Royal Proclamations (administrative orders) come into effect only when they
published in the official gazette.lo The Statutory Instruments Act makes
it mandatory for subordinate legislations to be published, printed and sold
for the use of common people in UK. Similarly in US the Federal Register
Act makes it necessary for all rules and regulations to be published in the
Federal Register for the common knowledge of all.
Unfortunately in India there is no substantive law relating to publication of
rules and regulations in India. There is no general code laying down the rules
8. (1987) 1 SCR 10s4, MANU/SC/o094/rs87.
9. Para 18.
10. Crown Office Act 187?, Section 3 - Any royal proclamation shall be valid in law if
published - a. As respects England, in the London Gazette; and b. As respects Scotland,
in the Edinburgh Gazette; and c. As respects Ireland, in the Belfast Gazette-
Delesated Lepishtion and' Legal Issues 133 |
of publication. The nature and scope of publication is generally determined
by.the parent statute and in the absence of any particular provision relating
to publication the administrative authorities are required to publish them
in the official gazette as per the Supreme Court decisions' Under Rule 319
of the Rules of Lok Sabha all regulation, rule. sub-rule. byeJan', order etc'
framed in pursuance of the Constitution or the legislative functions delegated
by Parliament to a subordinate authority' and which is required to be Iaid
blfore the House shall be numbered centrally a'nd published in the Gazette
'immediately after it is prornulgated'"
4.12.4.4.L Essential Part of Principles of Natural Justice
In the leading case of Harla u. State of Rajasthanrz t}re Supreme Court
recognized the importance of publication of rules in the governance of the
In this case the appellant was convicted under the Jaipur opium
Act (JOA) and was fined Rs. 50 but it rvas subsequently found that the
"ormtry.
Act was never officially promulgated nor was it published in the official
gazette. The court. held. that Act as not a valid Act as no effort was ever
made to make the law known to the public'
The Supreme Court made the following observations on the'importance
of publication in validating a legislation:
o If a law was not validly made then a mere inclusion of a clause
subsequently stating that it shall come into force at an earlier date
would be useless-
o The whole of an enactment needs to be published, publication of only
one section would not validate the'Act'
o It is against the principles of natural justice to permit the subjects of
a State to be punished or penalized. by laws they had no. knowledge
and of which they could not even with the exercise of reasonable
diligence have acquired any knowledge'
o It is part of pririciples of natural justice that a law should be
promulgated or published before it becomes operative'
In the words of Bose J.-
Natural justice requires that before a law can become operative it must be
p.omulgJted or published. It must be broadcast in some recognisable t!'ay so
ttrt "ti men may know rnhat it is, or, at the very least, through
there must be some
special role or regulation or customary channel by or which such
knowledge can be acquired with the exercise of due and reasonable diligence'
The thought that a decision reached in the secret recesses of a chamber
ffinn,itlrtheLeaderoftheHouseprescriberulesrelatingto
numbering and publication of Orders'
12. AIR 1951 sc 467, NIANU/SC/OOIA/t9s1-

Textbooh on Administrathte Lattt
to which the public trave no access and to which even their accredited
representatives have no access and of which they can normally know nothing'
can nevertheless affect their lives, liberty and propert;' by the mere passing of
a Resolution without anything more is abhorrent to civilised man. It shocks
his conscience. In the absence therefore of an1' las-. rule. regulation or custom.
rve hold that a lanv cannot come into being in this $'av, Promulgation or
publication of some reasonable sort is essential.l3
4.12-4.4.2 Official Gazette is the usual Mode of Publication
Tlre important case on the topic of publication is the State of Maharashtra
u. M.H. George.la A notification was issued by' the RBI on August 25, L948
by virtue of the power conferred in the Foreign Exchange Regulating Act
stating that gold and gold articles could not be brought into India without
permission from RBI. But a general permissiol \\'as granted for bringing
or sending gold for the purposes of transit to a place outside India. On
November 24, 1962 the RBI published a notification dated November 8, 1962
providing that for transmit of gold to a place outside the territory of India it
has to be disclosed as 'trans-shipment cargo, provided such articles are not
removed from ship or conveyance except for the purpose of trans-shipment.
The respondent, a German national, left Zurich by a Swiss Air plane on
November 27, Lg62 which touched Santa Cruz Airport the next day on its
way to Manila. On being searched by the Customs Officers, he was found to
carry 34 kg of gold in the jacket he was rvearing. Till Novembet 24, 1964
there was a general permission for a person to bring or send gold into India
if it rvas for transit to a place outside the territory of India, but from that
day it could not be done except on the condition that it was declared as
a trans-shipment cargo. The respondent argued that s'hen he boarded the
plane on November 27 he could not have had the klowledge about the nelv
condition imposed by the new notification. Under the earlier notification he
did not commit any wrongful act as he was carrf ing the gold in person and
was sitting in the plane. He further argued that the notification could come
into effect only from the day it was brought to the notice of the persons
rvho are likely to be affected b)' it' since it rn'as published on November 24
in lrrdia, it rvas not possible for him t knon' about it on Novernber 27 in
Ss'itzerland. The Supreme Court legated the argument of the Respondent
and held that
o fgnorance of lau i,s no defence implies that ever)'one in expected to
know the law of the land. The maxim implies that persons should
have knorvledge or could have had knowledge if he was not negligent
or if he had made proper enquiries about the provisions of law'
13. I\,IANU/SC /OOr4/1951 Para 10.
1.{. AIR 1951 SC 467 : IvIANU/SC/o194/Lxi4'
t.
Delegated' Legisl'ation and Legal Issues lt*l' :
o There is no requirement for individually serving of notice a general
notification made through the usual process would be adequate
publication. It would suffice if publication takes place in a way
ivhereby people can, if they are interested acquaint themselves with
its content.
o A notification does not need to be published outside India' For an
Indian lan* to operate and be effective in the territory where it operates,
no publication outside the country is necessary
o The mode or form of publication is to be determined on the basis of
statutory requirement. If such a provision is deemed to be mandatorv
thenanyfailuretocomplywiththoserequirementsmakethe
notification invalid.. But in the absence of any statutory requirement
relatingtopublicationitiSneiessarythatitshouldbepublishedin
theusualmodei.e.bypublicationwithinthecountryinsuchmedia
as generally adopted to notify to all the persons concerned in the
making of rules.
o Publication in the official Gazette is the ordinary method of
bringing a rule or subordinate legislation to the notice of the persons
concerned.
o The notification by RBI was published in the official Gazette which
is the usual mods of publication in India- The publication was made
much before the Respondent landed in Bombay'
oThereisnoprovisionintheGeneralClausesActasregardsthe
time when a delegated legislation enacted under a statute comes into
effect. It shall be determined on the basis of individual statutes' In
the absence of any specific rule, there is bound to be arnbiguity arrd
uncertainty .borrf the precise point of time when a law into effect.
The RBI notification was deemed to come into effect on the date on
which it came to the notice of the'relevant public i.e. the next day
after its publication. - November 25, 1962'
Official Gazette
The Gazette of Ind,ia (Bharat kaa Rajpatral is an authorized legal document
published Uy ifre Government of India. It is published by t5e Department
of Publication, Ministry of Urban Development and is authentic and
accurate in content and strictly in accordancp with Government policies
of
and decisions. The publication is in accorday'ce with the Government
India (Allocation of Business Rules) which are issued from time to time
of
by the cabinet Secretariat of the Republic of India. with the emergence
internet and development of e-governance online publica,tion of the official
gazette through eGlzefte (http://www.egazette.nic.in) has become
a popular
 .. t,
l
I f36 Textbooh on Administrathte Lazo

mode for accessing the weekly and extraordinary official gazettes of different
:,-"-",,,:,:^::',:-,:^-".".:.--::;,;;':::;";*'::;7:
date of such publicatil,, ot Where the parent statute
ptoln'-tlgation- prescribes
ministries and departments. The object of publication in the Gazetie is not the mode of publication or promulgation that mode must be followed'
where
but legislation itself prescribes
only to provide information to the public but is also an official confirmation the parent statute is silent, the subordinate
of iUe making of an order or rule. The same order or rule may be published themannerofpublication,suchamodeofpublicationmaJr'besufficient, of
in the newspapers, internet, broadcast on radio or television, but the version . if reasonable. If the subordinate legislation does not prescribe the mode
printed in the Gazette is deemed final- The date of publication in the publicationorifthesrrbordinatelegislationprescribesapllinly.rrnreasonable
modeofpublication,itwilltakeeffectonlywhenitispublishedthroughthe
Gazette is also taken into consideration to determine when a particular customarily recognised official channel, namely, the official
Gazette or some
order or rule was made. be subordinate legislation
other reasonable mode of publication. There r-nay
to local areas' In
In the case of ITc Bhad,rachalam Paperboards u. Mandal Reuenue' which is concerned with a few individuals or is confined small
may be sufficient're
Officer, A.p.rs highlighting the importance of publication in the Official such cases publication or promulgation by other means
Gazette the Supreme Court observed-
- ln (Jnion of Ind,ia u. M/s- Ganesh Das Bhojraj2o it was further reiterated
practice for bringing
The publication of an order or rule is the official irrefutable affirmation that that publication in the official Gazette is the established
a particula, order or rule is made, is made on a particular day (where the a rul'e or subordinate legislation to the notice of the people' Individual
order or rule takes effect from the date of - its publication) and is made by
a the public about a general notification
service of notice to every-member of
particular authority; it is also the official version of the order or rule. It is a
.is not required and all interested persons can acquaint themselves with the
practice in courts to refer to the Gazette whenever there is a doubt
"o**o,, cdntents of the notification published in the gazette'2r
about the language of, or punctuation in' an Act, RuIe or Order' Section 83 of (Jni'on of India22
the Evidence Act says that the court shall presume the genuineness of the In the recent case of Gulf Goans Hotels' co. Ltd,. a.
notifications
Gazette. Court will iake judicial notice of what is published therein, unlike the Supreme Court ** ,"qrrirud to decide whether the various
the publication in a ,r.*"plp"., which has to be.'proved as a fact as provided relatin! to Coastal Regulation Zone could be deemed to be valid law'
in the Evidence Act. If a dispute arises with respect to the precise Ianguage TheCourtbyreferringtotheHarlacasecategoricallyheldthatsincethe
or contents of a rule or o.dei, and if such rule or order is not published in guidelines issued UV ittu Union of India were not published
through the
the official Gazette, it would become necessary to refer to the original itself, customarilyrecognizedofficialchanneltheyfailedtosatisfytheessential
involvingagoodamountofinconvenience,delayandunnecessarycontroversies.
It is for this reason that very often enactments provide that Rules and / or and,aitalparameters/'rcquirementsofl4tr''hencewerenotenforceableto
Regulations and certain type of orders made thereunder shall be published in the prejudice of the APPellants'
the Official Gazette. To call such a requirement as a dispensable one-director;r Not affect the rnerits of the case
requirement-is, in our opinion, unacceptable'l6
AnexceptionwasmadeinthecaseofBangalore-Woolen,Cottonand.Si'lk
In other cases like Shambhu Nath Jha o- Ked,ar Prasad, SinhaLT the Court MiIIs.Co.Ltd'.a.Commissioner,Ba,ngaloreCorporationzJwhereinthe
have also held that publication in the official Gazette is an imperitative octroidutyimposedoncottonandwoolbytheBangalore'Corporationwas
requirement and canntt be dispensed with as it fulfills two fold objective of challengedonthegroundthattheprocedurelaiddowninSection98ofthe
City oi Bangalore Municipal Corporation Act 1949 relating to
publication
giving publicity to the notification and providing authenticity to the contents
of that notification in case of any dispute with regard to its contents'
In the case of B.K. sriniuasan a. state of Karnatakal8 the court
19. rd.
categorically held that- 20. AIR 2000 sc 1102.

[S]ubordinate legislation, in order to take effect, must

be published or 2l.TheSupremeCourtoverruledtheearlierdecisioninCollec'torofCentrnlErcisea.New
promulgated in some suitable manner, whether such publication or promulgation
TobaccoCo,AIR1998Sc66s:Ir'IANU/Sc/0020/lggswhereinitw'asheldthatmere
publicationofthenotificationintheOfficialGazetteisnotsufficienttilltheGaaetteu'as
made available to the PeoPle'
15. (1996) 6 SCC 634 : MANU/SC/1292/rss6' other relevant c"se" ar. i. Narasimhulu u state o/ AP Ir{ANU /SClO374/2Oro.
16. Para 13. 22. 2or4 (11) SCALE 83 : MANU/SC/084.8/2014'
17- 19?3 CriLJ 453 : MANU/SC/oo66/r972' 23. AIR 1962 SC 562 : IvIANU/SC/oo93/196r'
18. (1987) 1 SCR 1054 : Ir'IANU/SC/0094/I987

Textbooh on Administrative Latp
of the resolution to impose octroi duty was not published in the Official
Gazette. The five judge bench of the Supreme Court negated the argument
that the defect of non-publication in the Official Gazette was fatal to the
imposition of the tax. It referred to S. 38(1)(b) of the Act which provided
that any act done or proceeding undertaken rvill not be questioned merel;'
on the ground that a defect or irregularity in the conduct of such act or
proceeding has taken piu.ce, long as it does not affect the merits of the
"o
case and held that "the resolution utas publ'ished in the newspapers and
was also communicated to those affected bg it and. thus it toas utell known.
The fa'ilure to publish it in the Gouernment Gazette d'id not affect the
merits of its impositio,n".24
This decision has been subsequently referred to in other cases like B-K.
'stores u. The State of
Sriniuasan u. State of Karnatakazs and Kalyan'i
Orissa-26
4.12.4.4-3 Special Mode of Publication
There are many statutes which prescribe a special mode of publication of
delegated legislations. In such cases the mode of publication of rules rvill
be determined on the basis of whether such procedures are deemed to be
mandatory or directory. The Supreme Court dealt with the issue in the
leading case of Gouindlal Chaganlal Patel u. The Agricultural . Produce
Market Committee, Godhra.z7 The appellant was arrested by the'Inspector
of the Godhra Agricultural Produce Market Committee on lhe ground
of purchasing ginger without obtaining a license as required under the
Gujarat Agricultural Produce lVlarkets Act 1964. The principal cbntention
of the appellant was that the notification whereby ginger was included
lvas not promulgated or published as required under the Act hence the
proceeding initiated was illegal. It was argued that the notificaiion issued
under Section 6(5) for including additional varieties of agricultural produce
like ginger and onion was required to be published not only in the Official
Gazette but also published in Gujarati in a local newspaper. The relevant
provisions of the Act are-
Section 5-The Director of Agricultural i\{arketing and Rural Finance
may, b1' notification in the Official Gazette, declare his intcntion of
regulating the purchase and sale of an agricultural produce and in
such other manner as may be prescribed. Such notification is also
required to be published in Gujarati language in a newspaper having
circulation in the area and in such other manner as may be prescribed.
24. l<l at Para 6.
25. \[ANU/SC /Oosl lrs87.
26. IUANU/SC /0223 lrs6b.
27. AIR 1976 SC 263 : r\rANLr/SC/Or25/r975.
I
Delegated Legisktion and Legal tssues 139 |
If any objection or suggestion is received by the Director within a
molth from the date of publication of the notification it shall be duly
considered bY the Director-
section 6(1)-After the declaration is made in the manner specified
in s.5 the Director may at any tirne by notification in the official
Gazette, declare the area specified or any portion thereof to be a
market area for the purpose of the Act. A notification under this
section is also required to be published in Gujarati in a nervspaper
having circulation'in the said area and in such other manner as may
be prescribed.
section 6(5)-After the declaring in the manner specified in S.5 his
intention and following the procedure thereon, the Director may at
any time by notification in Official Gazette exclude any area frorn a
market area or include therein and exclude from or add to the kinds
of agricultural produce so specified any kind of agricultrrral produce.
section 8-No person can operate in the market area or any part
thereof except rinder and in accordance with the conditions of a license
granted under the Act.
chandrachud J. while delivering the decision observed that the concluding
sentence of Section 6(1) says that a notification under 'this section'shall also
be published in Gujarati in a newspaper having circulation in the particular
area. The normal rule of construction of statutes requires that a provision
should be given its plain and, natura.l meaning. Hence it is not reasonable
to.a.6.sume that the legislature will be ignorant of the distinction betlveen 'a
section' of the statute and the 'sub-sections' of that section' Therefore' the
requirement laid down by Section 6(1) that a notification under 'this section'
shall .tso be published in Gujarati in a newspaper would govern any and
every notification issued under any part of 5-6, iricluding the sub-sections
of Section 6. If the legislature intended that the publication requirernent
was to govern notifications issued under Section 6(1) only' they would have
specifically said so.
on the issue of whether it was mandatory for the Director to publish
the notification in the local newspaper in addition to the publication in the
Official Gazette the Court anall'zed arfd interpreted the entire scheme of
the Act as well as the relevant sections and held that-
The object of these requirements is quite clear. The fresh notification can be
issued only after considering the objections and suggestions which the Director
receives within the specified time. In fact, the initial notification has to state
expressly that the Director shall consider the objections and suggestions received
by him within the stated period. Publication of the notification in the Official
Gazette was evidently thought by the legislature not an adequate means of
 I .l
I f{o Textbooh on Adninistratioe Law
communicating the Director's intention to those who would be vitally affected
by the proposed declaration and who would therefore be interested in offering
their objections and suggestions. It is a rnatter of common knowledge that
publication in a newspaper attracts greater public attention than publication
in the Official Gazette. That is rvhy the legislature has taken car.e .to direct
that the notification shall also be published in Gujarati in a newspaper' A
violation of this requirement is likely to affect valuable rights of traders and
agriculturists because in the absence of proper and adequate publicity, their
right of trade and business shall have been hampered without affording to
' them an opportunity to offer objections and suggestions, an opportunity
which the statute clearly deems so desirable. By Section 6(2), once an area
is declared to be a market area, no place in the said area can be used for
the purchase or sale of any agricultural produce specified in the notification
except in accordance with the provisions of the Act. By Section 8 no person
can operate in the market area or any part thereof except under and in
accordance with the conditions of a licence granted under the Act. A violation
of these provisions attracts penal consequences under Section 36 of the Act.
It is therefore vital from the point of view of the citizens' right to carry on
trade or business, no less than for the consideration that violation of the Act
. leads to penal consequences, that the notification must receive due publicity.
As the statute itself has devised an ade{uate means of such publicity, there is
no reason ro permit a departuie from that mode. There is something in the
very nature of the duty imposed
-is by Sections 5 and 6, somethin! in the very
object for which that iuty cast' that the duty must be performed.2s
The court concluded by observing that these rules ore uital and go
to the root of the matter: they cannot be broken. The provisions of the
statute must be religiously implemented hence the publication in Gujarati
.language in a local newspaper is a mandatory requirernent and must be
strictly complied with.
Similarly in the case of B.K. Sriniuasan u. State of Karnatalca2e it *as
held that publication of notices in the Official Gazette that the Outline
Development Plan was available for inspection at the office of the Planning
Authority was deemed to be sufficient compliance with the provisions of
Mysore Town and Country Planning Act, 1961 even though the Plan and the
Regulations themselves were never published in the Gazette. This defective
is cured by th€ Omnibus Curative clause of Section 76J. The objective of
such a clause is to put beyond challenge defects of constitution of statutorA
bod,ies and defects of procedure uhi,ch haue not led to anA substanti.al
prejud,'ice. Non-publication of the Plan in the Official Gazette was a defect
curable by Section 76J as the defect or the irregularity did not affect the
merits of the case.
28. Supra note 27 at para 16.
29. MANU/SC /Oo94 / 1987.
In spite of the existence of the Parliamentary form of conirol, judicial fonn
of control of delegated legislation is considered as an integral form of control
mechanisrn. The fundamental justification for
judicial control is based on
the constitutional obligation of the courts to uphold the principles of rule of
law. ln a constitutionally governed. state it is the essential function of the
judiciary to ensure that the laws made by the Parliament are not ultra uires
and the legislations enacted under a statute are
the Constitution delegated
within the ambit of both the parent.statute and the constitution- In addition,
Article rs(a)(a) of the constitution has defined the term 'law' as order,
bye-Iaus, rules, regulations and. notification ttlereby clearly highlighting that
ntt only by means of laws made by the legislatures but also throughtake the
subordinate executive laws, the State authorities should not attempt to
away or abridge the rights conferred by the Part III of the constitution-
Judicial form of control is deemed to be a more effective form of control
because the courts have the power. to strike down a law if it is ultra uires
to the parent statute or to the constitution. The power of the judiciary is
beyond the scope of mere recommendation and ensures the working of the
deiegated legislations in accordance with law at the stage of implementation'
The scope of parliamentary control is generally restricted to pre-enactment
control, i.e. at the stage of granting the power of law making to the executive
authorities and the post-enactment control is limited to laying doun of
the rules before the parliament. The implementation of the procedural form
of control is also enlrusted to the judiciary who determine the legality of
the subordinate law making process through the rules of procedural ultra-
uires.
4.13.1 Judicial Control in UK and US
In England the paramount law making power has been granted to the
Parliament. The Executive authorities do not have any inherent law making
power in the absence of specific statutory grant of such powers' The
administrative authorities can only make rules and regulations based on the
provisions made by an Act of Parliament. The judiciary has adopted the
test of ultra uires doctrine to uphold the validity of a delegated legislation
try ensuring that it does not go beyond the scope of the parent Act. The
Act of Parliament cannot be challenged in a court of law a.s they are
immuned from judicial scrutiny, but no such immunity has been extended
to the delegated legislations. The leading case in this regard is Ani'smini'c
 T
I I
Textbook on Administratitte Laut
i
I f+Z
I
procedural errors' bad
it was held that delegated power of judicial review such as unreasona'bleness'
u. Foreign compensat,ion comrnitteeso vu'herein faith and wrong Purpose etc'
legislations were amenable to judicial review' The Court
observed-
l SimilarlyinUStlrejudiciarylraslargeadoptedtheultravirestesttor
ousting the ordinary I
upholding delegated l.gi"lrtiorr. In addition the
courts have also applied the
.It is a rvell-established priuciple that a provision I think' that'
i
be a rational relationship betrveen
reasonable .exus theoiv i.e. there needs to
I

jurisdiction of the Court must be construed strictly-meaning'

that meaning
ii ,..*""ury
if such a provision capable of having trvo meanings, particular regulations and the governing statute'32
shallbetakenwhich-p."".,,,""theordinaryjurisdictionoftheCourt....
- a tribunal acts without 4.13.2 Judicial Review in India
It has sometimes been said that it is only where in such- cases the word the constitutional
jurisdiction ttru.t it" atcision is a nullity' But
wiie and I have come to the ln Ram Krishna Dalmia u. Justice s.R. Tend.olkars3
"jurisdiction" has been used in a very sense'
benchoffiveJudgesoftheSupremeCourtafteranalyzingaseriesofearlier
conclusion that it is better not to use the term
except in the narrow and the power of judicial review of
decisions laid dorvn the scope and extent of
-.*us
originalsenseofthetribunalbeingentitledtoenterontheenquiryinquestion. legislations in India. The principles are-
But there oro *.f *he.ei although the tribunal-had juris- diction to it relates to a single
enter on the enquiiy. it t ". ao.r" or failid to do
something in the course of (a) that a lanv may be constitutional even though
a that its decision is a nullity. It may individualif,onaccountofsomespecialcircumstancesorreasons
the enquiry which is of such nature
a decision which it that single individual
have given its decision in bad faith' It may have made applicable to him and not applicable to others'
hadnopowerto*"t..r,mayhavefailedinthecourseoftheenquiryto maY be treated as a class bY himself;
comply with the ."o"itttt""o of natural
justice' It may in ferfect good faith constitutionality of
giving it power to act so that it failed to (b) that there is always a presumption in favour of the
have misconstrued ihe provisions anenactmentandtheburdenisuponhimwhoattacksittoshowthat
dealwiththequestionremittedtoitanddecidedsomequestionwhichwas which therehasbeenacleartransgressionoftheconstitutionalprinciples;
. have refused to take into account something
not remitted to ,t. ii *"y"into
or it may have based its decision on
it was required to tt" account.
it up, it had no right to
(c)thatitmustbepresumedthatthelegislatureunderstandsandcorrectly
its laws are directed to
some matter which' under the provisions setting appreciate's the need of its own people' that
take into account.3l problemsmademanifestbyexperienceandthatitsdiscriminations
intent of the Act are based on'adequate grounds;
The judiciary's main task is to ensure that the true degrees of harm and may
madebytheParliamentisnotmodifiedbyasubordina,teadministrative tal ii"t the legislature is free'to-'recognise the need is deemed to be
confine its restrictions to those cases where
body.
the clearest;
InUKimportantconstitutionalstatutesliketheBillofRiglrts1683 (e)thatinordertosustainthepresumptionofconstitutionalitythecourt
canberepealedoramendedbytheParliamentlikeanordinarystatutes knowledge, matters of
may take into consideration matters of common
becausetheprinciplesofParliamentarysovereigntyilinconsistentwith may assume every state
common report, the history of the times and
thenotionsofconstitutionallimitations.Butthejudiciaryincasesof offactswhichcanbeconceivedexistingatthetimeoflegislation;
delegatedlegislationshavemadethemsubjecttojudicialreviewandhave
ensured tha,t the Fundamental Rights are not derogated
or violated by the and
on the
executive authorities ,rtl"", allowed by the Parliament' The judicial (f) that while good faith and knowledge of the existing-conditions on
"*p.u""ly s'ill not sacrifice the part of a legislature are to be p"sumtd' if there is nothing the
justification is based on the notion that Parliament circumstances brought to the noti'c!
fundamentalrightsofthepeoplewhichactaschecksandprecautionson face of the la'i, or the surround.ing
the Executiv" by impliiation. Extraordinary powers can be granted ofthecourtonwhichtheclassificationmayreasonablyberegarded be carried to
"i*pty
toaMinisteronlythroughexpressgrantofsuchposersinthestatute.In as based, the presumption of constitutionality cannot
sorne undisclosed and
addition, the judiciary h; adopted a number of principleq
to exercise their the extent of .l."ry" httaing that there must be

ffico.,J4r us284(re54)-
30. (196s) zLC r47. 33. 1959 scR 279.
31. Id. at p. 3-4.
 Textbook on Administratizte Laut

unknown reasons for subjecting certain individuals or corporations to Unlessitisshownt}ratthereisareasorrablerelationofthcprovisionsofthe

of occupation and business
hostile or discriminating legislation. Act to the purpose in vien" the right of freedom restriction" connotes that
cannot be ctrrtailed f))' it' The
phrase "reasonable
In light of the above principles the judicial review <lf delegated legislation of the right should not be
the limitation imposed on o p"r"on in enjoyr-nentis required in the interests of
has been classified in the following three categories arbitrarv or of an excessive "a,tttt", beyonJ what
(i) The Parent Act is ultra vires the Constitution the public. The rvorcl -r-asorrolrl." i.npil""
intellige.t care and deliberation. that
(ii) The Delegated Legislation is ultra vires the Constitution is,thechoiceofacoursen'hiclrreasorrdictates.Legislationrvhicharbitrarilv
or excessively invade-'s the right cannot be saicl to contain the quality of
(iii) The Delegated Legislation is ultra vires the Parent Act balance betrx'een the freedom
reasonableness and unless it strikes a
proper
the control pennitted by clause (6)
suaranteed in Articlc tqtlt*l and social
4.13.2.1 Parent act is ultra vires the constitution li'""1"r. 1g- it must be'hctd to be wanting in that quality'
If the parent statute or the enabling Act is in non-conforrnity with the Clause (6) in the concluding paragraph
particularizes certain instances of
mind of the constitution-
Constitution then the different rules and regulations framed under such the nature of the restriction's that u'ere in the
statute will also be deemed to be unconstitutional. The enabling statute rnakersandwhichlravethequalityofreasonableness.Theyaffordaguide.
the extent and nature of
will be deemed to be unconstitutional if it is in violation with the express to the interpretation of tht "io""e and illustrate could be imposed on the
or implied limits of the Constitution. the restrictions which according to the statute
The express limits under the Constitution are those provisions which freedomguararrteedinclause(g).rhestatuteinsubstanceandaffectsuspends
the right mentionel in Article r9(r)(g) during the
agricultural
specifically set the limits on the powerq of the state authorities such as altogether
no violation of the fundamental riglrts specified under Part III of the Seasonsandsuchsuspensionnrayleadtosuchdiblocationoftheindustryasto
prove its ultimate ruin' The object of the statute
is to provide measures for the
Constitution, strict adherence with the distribution of the legislative powers supply of the adequate labour for agricultural purposes in bidi manufacturing
as specified under List I, II and III of the Seventh Schedule, no violation. of areasoftlreProvinceanditcould*"ttuuachievedbylegislationrestraining
the commerce clause under Article 301 of the Constitution, no retrospective theemploymentofagriculturallabourinthemdnufactureofbidisduring
restriction may well trave
effect of criminal legislation as provided under Article 2O etc. It is necessary the agriculturtl """.oi' E'*"" i" point of time a
that both the Parent statute as well as the delegated legislation should beenreasonableifitamountedtoaregulationofthehoursofworkinthe
be in compliance with these express limits of the Constitution for the business.Suchlegislationthoughitwouldlimitthefieldforrecruitingpersons
purpose'of legal enforcement. In the leading case of Chinto.man Rao u. forthenranufactureofbidis-andregulatethehoursoftheworkirrgofthe
stoppage of the business of
industry. u,ould not have amounted to a complete
State of Madhya Pradeshsa the constitutionality of the order issued by
rnanufact.re and might well have been within the
ambit of cla'se (6)' The
the Deputy Cornmissioner under the provisions of the Central Provinces has no reasonable relation to the
effect of the provisioris of the Act, however.
excess of that
and Berar Regulation of l\,Ianufacture.of Bidis (Agricultural Purposes) Act is drastic in scope that it goes much in
object in vielr' but so
requirements
1948 relating to forbidding of all persons residing the villages of Sagar statute in excess of the
object. Not only are the provisions of the of bidis frorn
district from engaging in the rnanufacture of bidis was challenged on the of the case but the r."d"g. employed prohibits a manufacturer
wherever that person may bc
ground of the enabling statute being in violation of Article fO(txg) of the employing any person in his business, no matter cannot
residing. In other words, a rnanufacturer of bidis
Constitution. Section 3 of the Act empowered the Deputy Cornmissioner to :":IfTC^T-:T.-1rea
province or frorn
or
notify and fix a period as agricultural season with respect to certain specified import labour t orr. ,eighbouring places in the district it is of an arbitrary
outside the province. S'i<:n o ptohibitiott on the face of
villages. Section 4 provided.that the 'Deputy Commissioner rnay. by general
nature inasmuctr as ii t'a'" to relation rvhatsoever
to the object rvhich the
order u'hich shall extend to such villages as he may specify, prohibit the be said to be a reasonable
Iegislation seeks to achieve and as such cannot
manufacturer of bidis during the agricultural season. No person residing in restrictiorronthe.*e.ci".oftheright.Furtherthestatuteseekstoprohibit
a village specified in such order shall during the agricultural season engage all persons residing in the notifieJ villages during the agricultrrral season
himself in the manufacture of bidis, and no manufacturer shall during the from engaging therf]sei.re" iD the manufacture of bidis. It cannot be denied
said season employ any person for the manufacturer of bidis'. The Court thattherewouldbeanunrberofinfirmanddisabledpersons'anumberof
in these villages who
upheld the contentioris of the petitioners and observed- children, old women and petty shop keepers residing
are incapable of being t-tsed fot agricultural labour' All such persons are
of bidis; and
prohibited by law fto*- t'1g^giog themselves in the manufacture
34. AIR 1951 SC 118.
I I
Textbooh on Administratir.,e Lazo
114.6
are thus being deprived of earning their livelihood. It is a matter of commorr
knowledge that there are certain classes of persons residing in every village Institute apiiication to the Regional Director, National Council for
rn:r.de arr
who do not engage in agricultural operations. They and their rvomenfolk and Council for
children in their leisure hours supplement their income by engaging thernselves i.o"h., Education Bangalore under the provisions of the National
permission to start
in bidi business. There seems no reason for prohibiting them from carrl-ing Ter"he, Education Act 1993 for the purpose of seeking
was rejected
on this occupation. The statute as it stands. not only compels those rvho , "orrr.. o1 Elelreltary Education Training. The application from the state
can be engaged in agricultural work from not taking to other avocations, but because it did not include the No objection certificate
The appellants argued that
it also prohibits persons who have no connection or relation to agricultural Government as required under the Regulations.
operations from engaging in the business of bidi making and thus earning. byvirtueofthisregulationpowertograntrecognitionhasbeenconferred the Act'
their livelihood. These provisions of the statute, in our opinion, cannot be to trre state Government *hi"h i" wholly outside the purview of to offer
said to amount to reasonable restrictions on the right of the applicants and Under section 14 of the Act 'erery institution offering or intending
that being so, the statute is not in conforrnity q'ith the provisions of Part
III of the constitution. The larv even to the extent that it could be said a course or training in teacher education... may for grant of recognition
concerned in
to authorize the imposition of restrictions in regard to. agricultural labour under the Act, make an q.pplication to the Regional committee
by the Regulations''
cannot be held valid because the language employed is u'ide enough to cover such form and in
"rr"h -arrtt r as may be determinedshould be satisfied rn'ith
restrictions both within and without the limits of constitutionally permissible It is further provided that the Regional comrnittee
financial fesources' accommodation,
legislative acting affecting the right. so long as the possibility of its being ,"gu.d to .rarious factors like a.dequate
applied for purposes not sanctioned by the Constitution cannot be ruled out, lib-rary, qualified staff, laboratory and other facilities required
for proper
it must be held to be whblly void. functio'iirg of the institution for a course or training in teacher education
as may te uia down in the Regulations before grant of any recognition'
Speaking on the scope of judicial review is was categorically observed that Under Section 32 the National Council is empowered to frame
regulations
under the constitutional scheme of things the determination of reasonable with the provisions of the Act to carry out the provisions of
not inconsistent
restrictions imposed under a statute is not singularly in the domain of the institution
the Act. Accordingly the Council framed the regulation that 'every
legislature and cannot be considered as final or conclusive, but it is always shall submit
intending to offer a course or training in teacher education--.
subject to the supervision of the judiciary. In the rnatter of fund,amental application for recognition with a no objection certificate from the state
rights, the Supreme Court uatches and guard,s the rights guaranteed Co,o"..r*.ot in which the institution is located''
by the Constitution and in erercis'i,ng 'its functions it has the poruer to
set aside an Act of the l;egislature of it i,s in oi,olation of the freed,oms rhe-court analyzed the scope of section 4(3) and held that the requirement
guaranteed by the Constitution. The Court struck down the orders issued to submit NOC frorn the State Government was for the purpose of facilitating
not
by the Deputy Commissioner a.s void, inoperative and ineffective and held the Regional committee in discharging their responsibilities and should
to grant of recognition' while
Sec. 4 of the Act as ultra vires to the Constitution.
be deemed as delegation of powel relating .

holdi'g the Regulafions as valid and intra vires the Court observed-
The implied limits of the Constitution in the context of delegdted
legislation has been laid down the cases of In Re: Delh'i Latas Act case3s Sub-section(3)ofsection14castsadutyupontheRegionalComrnitteetobe
as order granting
and Harishankar Bagla u. State of Madhga Prad,esh.36 wherein it was satisfied with regard to large number of rnatter before passing
acknowledged that legislature can delegate the power of rule-making to a recognitiontoaninstituti.onwhichhasrnovedanapplicationforthesaid}ras
subordinate body after laying down the legislative policy and the general p.',p"o"u. The factors mentioned in Sub-section (3) are that the institutiorr
laboratory
rules of conduct. In the case of St- Johns Teachers Training Institute u. adequ.te financial resources. accommodation, Iibrary. qualified staff-
required for proper functioning of
and that it fulfils such other conditions
Regional Director, National council for Teacher Ed,ucationsi trrc court t5e institution for a course or training in teacher education as may be laid
down in the Regulations. As mentioned earlier there are only four
applied the inherent policy of the statute to uphold the constitutionality of Regional
the delegated legislation. in the whole country and, therefore, each Regional Committee
Committee
hastodealwithapplicationsforgrantofrecognitionfromseveralStates.It
35. [1951] 2$CP"747. is therefore obvious that it will not only be difficult but almostand impossible
details
36. AIR 1954 SC 465.
for the Regional committee to itself obtain complete particulars and
library, qualified staff, laboratory
37. AIR 2003 SC 1533 of financial ,."or.""", accommodation,
for grant
other conditions of the institution which has moved an application
 t*
Y
I
f Textbook on Administratizte Laut
I
i
of recognition. The institution may be located in the interior of the district
in a far away State. The Regional Committee cannot perform such herculean
task and it has to necessarily depend upon some other agency or body for
obtaining necessary information. It is for this reason that the assistance of the
State Government or Union Territory in rvhich that institutiou is.located is
taken by the Regional Committee and this is achieved by making a provision
in Regulations 5(e) and (f) that the application nrade by institution for grant
of recognition has to be accompanied with a NOC from the concerned State
'
or Union Territory. The impugned Regulations in fact facilitate the job of the
Regional Committce in discharging their responsibilities.
Thus the power to make subordinate legislation is derived from the parerrt
' statute and it is essential that the delegate on whorn such power has been
conferred has to act within the limits of the authority specified under the
Act and this referred to as the implied constitutional limits on the power
of delegation of rule-making authority.
4.13.2.2 Delegoted Legistation is lJltra Yires the Constitution
'In the case of Labh Chand.ra Reisurana a. State ol Bi.har}} the contentious
issue before the Patna High Court was whether the Bihar Swetamber
Jain Religious tusts Rules 1955 framed under the provisions of Bihar
Hindu Religious Trusts Act, 1950 was in accord.ance with constitutional
provisions. It was argued that the constitution of the Bihar State Board
of Swetamber Jain Religious Trust which was constituted under the Rules
for the purpose of maintenance of the Pawapuri temples were in violation
of the constitutionally protected religious freedom of the Su'etamber Jain
Community. Traditionally the concept of Shree Sangh referred to the entire
community of Swetamber Jains living across India and this concept was
modified by the rules when it provided that for the purpose of electing
the five out of eleven members of the Board by Shree Sangh, the eligible
electoral would be only those Swetamber Jains residing in Bihar and those
residing outside the state of Bihar who had made a donation of Rupees
500 either to the Board or to the Swetamber Jain Religious Trust of Bihar
during the last J-0 years. The petitioners argued that the such a direction
was discriminatgry, unconstitutional and without jurisdiction. The Court
held that by virtue of the rule making powers granted under the Parent
Statute the State Government cannot make rules so as to limit the right
of the members of the Shree Sangh to elect five members of the Board.
Such rules will not only be inconsistent with the provisions of the statute
but would also be in violation of the fundamental rights guaranteed under
Articles 14 and 26 of the Constitution. The Court observed
38. AIR 1969 Pat 209.
---.\- Lepishtion and Legal Issues Mg |I
-
Delesated
- -
It is difficult to find out anything in the provisions of the Act to justify such a
discrimination between persons professing swetamber Jain faith residing in the
State of Bihar and outside. There is uo rational basis for it. The classification
cannot be held to be reasonable. It is difficult to appreciate how- merely because
the Trust properties are situated in the State of Bihar and a Bihar State
Board of Swetamber Jain Religious Trust is to be constituted under the Act'
swetamber Jains living in the state of Biirar have got a larger right as members
of the Shree Sangh oi a larger body of such persorrs can exercise their right
of electing five members of the Board as mernbers of the shree Sangh and
Swetamber Jains living outside the State of Bihar must get a Iimited
right and
not only limited, Iimiied to an irrationally unreasonable extent. To illustrate
my point, it is undisputed on the statements made in the various affidavits
filed on behalf of the parties that the temples in question were established
and constructed long time ago, in some cases centuries ago'
A donor from outside Bihar, who eveD r+'ould have contributed suppose a lac
ofrrrpeesinconstructionofsuchatempleandwhohavingnotcontributed
five hundred rupees $,ithin the lbst ten years of the issuance of the instruction
or preparation of the electoral roll will be de-barred from his right as a'
member of the Shree Sangh to exercise his vote in the matter of election of
the five members of the Board under clause (c) of sub-section (2) of section
8 of the Act.3e
Thus the directions issued by the sfecial officer, in exercise of the powers of
the Board, were held to be ultra vires and completely void. The court upheld
the legality of the enabling statute but struck down the delegated legislatiorr
on thJ grornd of infringement of express pro'isions of the constitution'
4.13.2.3 Delegoted Legislation is llltro Yires the Parent Act
Delegated legislations cannot be made to supplant th,e prouisions of th'e
Act but to supplernent it hence it cannot be ultra vires to the
"noiling
parent ,t.t,rtu. The core function of delegated is to fill up the necessarY
details of the enabling statute and in this context the delegated legislation
is deemed to subordinate, ancillary or conditional in nature. However rnany
a times the delegated legislation becomes ultra vires the enabling statute'
Some of the exarnPles are-
4.13-2.3.L Delegated kgislation is in Excess of the Power conferred by the
Enabling Act
In Dutarka Nath u- Municipal Corporationao the Supreme Court deliberated
the issue of whether the rules relating to packing and labeling framed
under the provisions of the Prevention of Food Adulteration Act were
39. Ibid at p. 213.
40. AIR 1971 sc 1844.

Textbooh on Administratioe Lazg
tvithin the scope of the power conferred. By virtue of the rule rnaking
powers conferred to the Central Government under Sec. 23(1) the Central
Government provided that on every label the name and business address of
the manufacturer or importer or vendor or packer and the batch number or
code nurnber either irr English or Hindi was to be specified. hon'ever in case
of food package weighing not more than 60 grams such particulars need not
be specified. The appellants who rvere in the business of mamrfacturing pure
desi ghee were arrested for failing to adhere with the labelling requirements.
The appellants argued that the rules relating to packing and labelling were
outside the scope of law making powers. The Court analyzed the different
provisions relating to the power of the Central Government to frame rules
and concluded that under Sec. 23(1Xd).relating to 'restricting the packing
and labelling of any article of food and the design irf any such package or
label with a view to preventing the public or the purcha.ser being deceived
or misled as to the character, quality or quantity of the article' the power
to frame rules relating to packing and labeling can be. included within. It
is not beyond the scope of rule-making pou'er of the Central Government.
Since the appellant had mentioned in the label their address as 'I\{ohan
Ghee Laboratories, New Delhi - 5', they had substantially complied with
the rules and.regulations. The failure to mention the number of the premise,
the locality or the area where the prernise was situated would amount to
technical breach and rvould not make the appellants liable for violation of
the same.
Sinilarly in T.B. Ibrahim u. Reg'io.roal Tlransport Authority, Tanjore!].-
the primary issue before the Supreme Court was whether the amended
Rule 268 of the l\'Iadras Vehicles Rule 1940 was '"r'ithin the scope of lan'
making power under Section 68 of the enabling statute of \,Iotor Vehicles
Act,
1939.
Rule 268 stated that-
In the case of public service vehicles (other than motor cabs) the transport
authority may after consultation with such other authority as it may consider
desirable, and after notice to the parties affected, fix or alter from time to
time for good and proper reasons. the starting places and termini betrveen
n'hich such vehicles shall be pennitted to be used within its jurisdiction. A
list of such places shall be supplied by such authority to every holder of a
permit for such vehicles at the tirne of grant of or renewal of permits.
When such places have been fixed every such vehicle shall start only from
such places.
41. AIR 1953 SC 79.
I
Delegated Legislation and Legal Issues l5l I
The court after analyzing the scope of rrrle making by the government
under Sr:ction 68 stated that the governrrlent has got plenary power to
make rules for the purpose of 'control of transport vehicles' a'nd fixation or
alteration of bus-stands is an inherent part of it. Secion 68(Z)(r) has clearly
conternplated three definite situations wherein the government ma1' make .
rules - prohibiting the picking up or setting down of passengers - (i) At
specified places, (ii) In specified areas, and (iiD At places other than duly
notified stands or halting places. Thus the govemment has the power to
prohibit a. specified place from being used for picking up or settling down
p""..ngu." .and this will inevitably give rise to closing of a specified place
ior the purpose of picking up or settling down of passengers or exclusion
of such a place.
The expression "duly notified stands" is not defined in the Act, but it is
reasonable to presume that a duly notified stand must be one which is notified
by the Transport Authority and by none other.... Section 68, sub-section 2(r)'
involves both a general prohibition that the stand will cease to exist as well
as a particular prohibition, namely that. passengers shall not be picked up or
set down at a specified point. The order passed by the Transport Authority
properly construed falls within the ambit of sectiou 68, sub-section 2(r). RuIe
268 unde. which the order impeached was passed is a rule framed under the
plenary rule-making power referred to. in section 68, sub-section (1). sub'
section (2)(za) says that a rule may be made with respect to any other matter
which is to be or may be prescribed. This shows the existence of residuary
power vested in the rule-making authority. It follows therefore that rule 268
is within the scope of the powers conferred urrder section 68 of the Act-
The Court further stated that the power of the Transport Authority to
regulate traffic control or impose restrictions as validly provided under the
rule-making authority cannot be challenged as being void or as inconsistent
with some provisions of a general law such as municipality laws. By-law
rnust not be repugnant to the statute or the general law. But by-laus
and, rules mad,e und,er a rule-making power conferred by a statute do
not stand, on the sarne footing, as such rules are part and parcel of the
statute itself.a2
In this ca.se the court gpheld the change of bus-stand by the Transport
Authority and held that such change does not affect any legal right of the
appellani, including Article t9(t)(g). The bus-stand as run by the appellant
can be used for carrying passengers from the stand into the town and
vice-versa, since the prohibition was only towards picking up and setting
down of passengers to outward journeys. By reason of the shifting of the
bus-stand the appellant may have been deprived of the income he used
42. As quoted in the judgment from Craies on Statute Larv
 F1,
D'hE"t'd L'lst-tio"nd L's4t h'"4 1'fi'41'
I
I
to enjoy but that canEor be the sround for claimins of infrinsement oI ihat it rN ben $rd or Pufch** os-",.":Tr,:1":"_:*ti":: ?:ff:"i:
fuDdam€otal rights. movesuchcomrrrodity.o.'tofth.notifie<lmarketarca.Thelegalfictionwas
--"
I ii"" r*it"Ji" the ';ovine" of the omnoditt from within the ''gket ar@
rn Asriculturat Market committee u. shatinrar chem'icats wols tlals i' ;::;il:"J:J;ff,n.'"*".i*1."".
the Supreme Court analysed.whether Rule 74(2) framed bv the State
Gwernment md B1e-ra.w 21(5) fram€d by the l\Iekei Comittee were $'ithin
I

The co!€ ment to q.hom the pos€r to hake ruIes s'as

gia'o rmder
the scop€ of rule-making powers und€r th€ Andhra Pradesh (Agricultural to bve-law!- was 8i\d
I S."tion 33 and the committee to whom power mske_
j6. Section 12 of the Act provided | t*,a" 34 {iden€d the scope of "pre€umPtiot-' bY emviditE,fu::}1
€t committ€e. It ststed- I "*..
;;;if;;;$d prcduce is we,eh:d' mea:rlred d co.utrt*.wt:Pll
purchased in that
the notified
"i;;;;#;f -r.e"ibe d".*ed to have been sold or
area,"sricultural
it shall
12. Leo! o! Jees bv the market .ommittee.-(\
T|: -{.:,::i:,n:Til | ;". i.,i"" js thus be}ond the resisrative poricy.. such
iT*,n"".r5:"ll'l"yl;#5""3,t1%"J'LTt"s"#:"fJ:xffi I1 il;i ffi;ff;;"..;;iil;lv-y 'l'" ""a
i"iJ"'*."r lh" -YT*lry-ff-'-I:.1i:.:i7f':-t*::""fff.T3:
r"gi"r"t"" not bv a deresate
(rwo rup€) s My be sp€cined i! the byerasl b! e@rv hund*d !up@
:1-,"'.'"#*? H"ff ffi;lhT"j"fuX?j []'"T*.ilii.iiii**,*''iiif; | -lJir," nur, c.""t *'"t nir zi14
iI: Y".."*':"-::,::
:: Hffi;'?'";;:t ; ;t,;;;;;;
---' -
*"*, ;;; I ir'. r.ii-a. ttoao*. ort'" "tu
'"l.B'"-ly
r1i *1-*.?n(:J oyd bI
'f -T:-"1T
;#;ff;#;;* 'il"tl;';
J*'a-"i-* "i
I ;ili;;-G br the app€uate and r€visionar axt]rciity.on these Fovi€ions
and they are not justified -in holding' Tt*ty,"i ,::
on .L-For
Erltlanation purPM of thi8
tlE purposes
L-For the this sdtion. notified asrrcu[urd
section, all notrned agricultural | -* wholly
was -- -
---.." misplaced
Erplanat
;;;; h€;otified area colnmittee thst the
produ@, riv6tock o! product" r"est*t t"fi JJ ;; ;;; I bssis or w€ishm€nt
,:y-: :"-,".
pL"e i" that market "*"
-:r-,:'it-'^{
ffi"fti1]1":;f"n:,'"TTJ'"1i":::':i:Tfl.,i::1";::'T;ffi'JftH; |
"r ,.",,""ction or sare took ".
a'ea'44
d eld vithin such ded. i l-tl.r-l.t Dclcgetcd I*girletion is io Cooflict,with thc P.!e statutc
' i rn Stote,.. o! Ka;.,tuka tt' H Ganeah Kamothlr the suFeme court analF€d
I of S€ction 12 extended the scop€ of the purchdE€ ard L. ii."tiil'"T;:'r:e;.4;!*" 't" "o"'l;. i" rrha .^ni*r of whe'iher it was
wherher i'i
The explaration
"",18?iffi'':':# i*r'*tr*ilTJrT##"":i"'ffi# |
""'"r,h:-::*:1.1'3":";;*ry:"*11;: f
p*anit" .a"t a to ii ir ta,ren
hle}:,eurchas:d.o..*l;u.p,jy"flTT1,iL"jl5*-.3,"-:f_:::i,: fll.ru,;**:'"*""*5 tr1t*"'jf;Ji**"siY:'1i"'*ffi
categorically I
was further extended by Rule 74(2) and Bye-law 24(5) which I f",#";;ft":
ot rne
:
i,Li,""T;i".
v:rlr'r:rc
.:::" '"hi.r"l."a,",i
1,"\^'1,^1,,_-"',,,,r" grant of
-",".
driving
y+ic,e and ls.h1
licenses provided
motor r.ehicle. section i(z) aeating with
Provided|,ha|,Nyweiehin8,measuingorcoutrI,iDeofanotifiedagricultura| Ii that - The test of comp€t€nce |,o dri!€ shall be carried
rnat' out - y'"': ":
it out of the notified market
produce, livestock or related products or taking "- Part I or
::S"tr;"i"" #t$.l"f"J"yff ;*1H,".: ff'ffi i
*i.i ilffi"Tfi
^L^^^r ^- ^^rr ..,:+r-;- +L^ -^+ifi-; ! ii.
the tv to which the apprication rerers
"'.
and. ror th€ puryo€es or
nesa'ied theiF*"-:'::g':-i-"geln.r
mrke'i area rhe court
lesislBtioEs as they wer€ ultra ui'es to tbe prcvisions of the parent statut€ I! ml";:;%*ff"'Jtsi1"trJ"J:"*:*tTftY;"#$;T*:
;;il;; v€hide; (b) p".*" -r," p,o* tl" tu"t t ari"i"e
u*n" -".or , , ,, , "
^;"i".
The Court held- I . _"Jr"* --:--,
-. shall be deemed r.hF fcst in
^q<s..r the test
also to have passed
".nicle
Explanation I to Section 12 creates a legal fiction and provides that if any i ari'oittg any light motor vehicle'
rctitied ssdcuttual Foduce is rske! out of s-ootined ra;ket_s@, it si'all.b€ | 1o *.",,'"* of the posr€i of rule-rrnkins l"d:: l*:':1. ?1 * $ *:t;
preguned to haw b€ pwhss€d d 6old witldn.seb s@ TlE_fleuTrtTl g""-"-,i" ftsned the Kaltrataka Motor Vehicle€ Ruler 1963
is & rebuttable p@ptron md cd b€ shosa to be !o[ @n€ct. The poucv in
Lr,"?ir""."1"
_* .**-* -
- s 121 p'"'ia"a ihar no authodzation .t"- h"11
@dctins r.bis pdisiotr is @ly r.o irrc sucb t ac&tioos of ele aDd purcbse
I *i"J-""a* i"l"
'| ;;;;; - !€hicle sball be;ranred unt€ss r,he appricanr, sstiEfi€s ".1:''1
r,he licensios
f6 shicb di@t. Nide@ may @t. be avsil'bl€. Sire a notifi€d asticuhural r*
lT".T:*"fT'"il"ffi ?ii,rhI"#,"#;:,ll*"L:"HlT,tr;'::::'#
a tra.der having a licence issued to him by the committee, it is ob'i'ious that
I ;il.i;
I
I
- . tn.t. r,.
medium vehicle.
.*-^ vears'
had- a.t re,snhree ,,--;, experience
*-.inF in .i.iviff
drivi4 anv

if such commodity is moved out of the notified area, it would mean either
44. ld, at Para 27-28.
43. AIR 1997 SC 2502. 45. AIR 1983 sc 550.
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The respondents in this after completion of their driving training had
applied for a licence for driving heavy motor vehicles, but their applications
were rejected by the licensing authority on the ground that the respondents
did not satisfy the requirements of Rule 5(2) of the prior experience of three
years in driving a nedium vehicle. The Court after analysing the statutory
provisions observed that Section 7(7) of the Act required cornpetence in
driving the vehicle in respect of rvhich the applicant rvas interested in
obtaining the driving licence. It further provided that a person t'ho passed
the test in driving such a vehicle would also be deemed to have passed the
test in driving the medium or light motor vehicle- Thus under the statute for
the purpose of passing the test of competence to drive a heavy motor vehicle
a person is not required to possess any experience in driving a medium
motor vehicle. In this coltext Rule 5(2) was held to be beyond the scope
of the parent Act and was repugnant or contrary to the express provisions
of the parent statute. The power of rule-making conferred under Section 21
d,oes not enable the rule-making author.itg to make a r'ule uhich trauels
beyond, the Scope of the enabling Act or which is incons'istent there with'
or repugnant thereto.
The Managernent of DTU a. BBL Hajelaya6 is another leading case
dealirrg with the issue of application of delegated legislation was contrary
to'the provisions of the pr."trt Act. Ved Prakash (Respondent no. 2)47 was
originally employed as a driver in the Delhi Road TYansport Authority
(DRT.A.). In 1958 the functions of the DRTA were taken over by the Delhi
Ir{unicipal Corporation'and the Delhi lUunicipal Corporation Act 1957 became
the applicable statute and all the employees of DRTA became the employees
of the Corporation. Under Section 92 of the Act the power of appointing
municipal officers and other municipal employees, whether temporary or
permanent, to posts carrying a minimum mont[ly salary (exclusive of
allowances) of less than Rupees 350 shall vest in the General Manager
(Transport). Hence Ved Prakash at the time of joining the corporation was
appointed by the General ll{anager.
Under Section 494 read with Section 504 the General Manager (Transport)
is entitled by order to direct that any power conferred or any duty imposed
on him by or under the Act shall be exercised and perforrried also by any
municipal officer or other municipal employee specified in the other. In 1961
by an order issued the General Manager had delegated his power to the
Asst. General lVlanager to appoint and consequently, to remove from service
an employee in the category of Ved Prakash. Subsequently a disciplinary
46. AIR 1972 SC 2452.
47. Respondent no. 1 Hajelay s,as the Presiding Officer ofthe Labour Court where the proposed
action for removal of Respondent no. 2 from service wa-s submitted for approval.
Delegated Legislation and LeSal Issues 155 |
enquiry was initiated by the Asst. General Manager (Tlansport) and he was
removed fiont service by hirn in 1963. The Respondent no. 2 challenged the
order of removal on the ground that the Asst. General l\{anager was not
the competent authority to remove him from service under the provisions
of the statute.
Section 95 of the Act clcaling with clisciplinary actions against municipal
officers and employees provides that 'every municipal officer or other
municipal employee shall be liable to have his increments or prornotions
withheld or to be censured, reduced in rank, compulsorily retired, removed
or dismissed for any breach of any departmental regulations or of discipline
or for carelessness, unfitness, neglect of duty or other misconduct by such
authority as may be prescribed by regulations. Provided that no such officer
or other employee as aforesaid shall be reduced in rank. compulsorily retired,
rernoved or dismissed by any authority subordinate to that by t'hich he'
\^,as appointed'. The court arralysed the provision and observed that the
Proviso to Section 95(1) gives protection to every officer and employee of
the undertaking that he may not be removed or disrnissed from service
by an authority subordinate to that by which he was appointed' By the
oider in 1961 the functions of the General Manager (Transport) had been
delegated to the Asst. General Nfanager with the consequence that if after
1961 the Ass,istant General Manager makes the appoi.ntment of a driuer
like respondent No. 2, he would, no doubt be entitled to remoue him from
seruice. But so far as respond,ent No. 2 is concerned his india'idual position
will haue to be d,eterntined, ui,th T'eference to the time uhen he was absorbed
in corporati,on seruice. That uL,s in January, 1958.... Respond'ent No- 2,
at the time of his absorpti,on 'in Januarg, 1958 tuould be deemed to haue
been appo,inted. tJnd.er section 92(1)(b) which toould, mean that he uas
oppolrtia bg the General Manager (Transport)' Being so appoi'nted' no
subor.d,inate of hds ,including the Ass,istant General Mo,nager (Transport)
uould. be entitled, to remoue h'im from seruice 'in uieu of section 95(1)
prou,iso. Thus the court negating the order of removal upheld that a
protection u,hich has been given to an ernployee by a statute cannot be
nullified by rules and regulations authorized by the statute itself.
4.13.2.3.3 Delegated Legislation is in conflict with the Procedures Laid Down
in the Parent Act48
If the enabling statute has laid dorn'n certain rules and procedures for
the purpose of enacting the delegated legislation then it is necessary that
those procedural requilments should be adhered. In case of any breach
or non-compliance with the procedures, then the courts shall apply the
48. Discussecl in detail in Part
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I D"bgoted LegisLation and LeSol Issn"' 157 ''l

l I

lfSe T"*tboo
thereisanimplie<ltermtlrattheproprietorshallcontinuetoberesponsible
for irrvalidating warrant
mandatory and directory test as laid in the Atlas cg.cle cale for the education of the child so long as the child's conduct docs not
procedures
the subordinate legislation. Non-compliance with the stadutory his expulsion from the school'
havebeencategorizedasprocedura|ultrauires.Aftetanalysingthenature ,,1242. Position of schoolmasters:- The authority of a school rna"ster is, while it
andscopeoftheenablingstatute.includingtheprocedural-reqrrirementif exits. the salfle as that of a parent. A parent. rvhen he leawes his
child *'ith
procedure
the pro'ision is held to directory,- then the non-co.rplia.cc of the asclroolmaster,delegatestolrirnallhisorvnauthority'sofarasisrrecessary
will not invalidate the rules frarned thereunder as was held in Hi'ndustan'
for the welfare of the child, and so far as necessary to rnaintain discipline
-Zinccase.lncasetheproceduresareheldtobemandatoryt}renrules witlrregardtothechilclcommittedtotheteacher'scare.Thedelegationis
parent must prevail
should be framed after due compliance with the same as
discussed in revocable, and in case of conflict the authority of the
clarified if the master detains the child against his
Banluarilal Aggralaala. |n Raza B.uland, Sugar the Court furtherprovision and he may have a habeas corpui
that substantial compliance with the mandatory requirernents of a wish.Theparentundertakestlratthemastershallbeatlibertytoenforce as
with regard to the child the rules of the school, or at all event such rulesThe
will be sufficient to uphold the legality of a delegated legislation' are known to him and to which he has expressly or impliedly -agreed'
Principle
4.13.2.3.4 Delegated Legislation is Contrary to the Common Law masterisboundtotakesuchcareofhispupilsasacarefulfatherwould
In Sophy KeIIg u- State of lt/aharashtrote th" Bombay High Court referred take of his children"-
tothecommonlawprinciplestonegatetheRegulation42framedunder Applying these principles to the case before us,
^"d*itted it seems clear that when a
the IUaharashtra Sectndaiy Education Boards Act 1965. The
regulation to a secondary school he undeltlfe that the
pu*.r, f"t" fri"
"hild
be at liberty to enforce withregard to the child such rules
wasframedbythelr,IaharashtrdStateBoardofSecondaryEducation il.ad Mkt., shall
and provided that the eligibility of candidates for admission
to the SSC of the school as are reasonably designed to promote the education oi the child
on the candidates having from the and to maintain discipline in the school' The main purpose of education in
Examination will be determined based
and attendance
head of his school a certificate as to. his conduct, character secondaryschoolsistopreparepupilsfortheS.s.C.Examination...-Sincethe the
the secondary school is to prepare pupils for
at the school, but not a certificate regarding his academic progress' Under -ai., pu.pose of educationln child admitted to
of a school to S.S.C. Examination, it schools that a parent who gets his
the rules it was deemed obligatory upon the Head lr{aster The writ secondary school undertakes that the Head l\{aster shall be at liberty to enforce
progress'
forward the application of candidates irrespective of their the with regard to the child such rules of discipline as are reasonably designed to
petition filed by the various heads of the secondary schools challenged of prepare-.}urn.forthatexamination..Undertheimpliedtermsofthecontractthe
regulations framed on the ground that the regulations were in violation
hu.a lrr"tu,is entitled to withhold promotion of a pupil from one standard to
'r'iolated the rights
the internal autonomy or tn. educational institutions and thenext,ifthepupildoesnotshowsatisfactoryacademicprogress.Thesame
progress of the candidates during rightisexercisedbyHeadlr{asterinrespectofpupilsinthefinalstandard
of the teacher to detlrmine the academic
by refusing to grant them leave to appear for the S'S'C' Examination
unless
the final year. The court recognized that the contention of the petitioners
is made by them. Such a rule is obviously designed to
their legal rights to withhold the applications of satisfactory progress
is dependent on identifying promote rrruit" Lr regular and diligent study in the pupils. The Head
Masters
was unsatisfactory'
the candidates on the gtonla that their academic progress claim the right to juJge the academic progress and performance
of their pupils
tlie common law principle relating to contract to educate but that right results from
The Court accepted before presenting theri for the s.s.c. Examination,
to uphold the rights of the school authorities' It observed- the more basic rule errforced in the school that only those students will be
presented for the s.S.c. Examination who have studies regularly
in the course
In Halbury's Laws of England, in the volume dealing with Education' the of the year and made adequate academic progress'
followingportionappearsu-ndertheheading..CommonLawRightandDuties''
and the sub-heading "The Contract to educate" (Halsbury'
Third Edition'
and 1242): In this case the court upheld the rights of the head of schools' which is
Volume 13, page 590, paragraphs 1241 guardians of
contractual in nature and is binding upon the pupils and their
..l24l.Parentsandschoolproprietors:-Inschoolswhicharenotmaintainedby not permitting the students to appear for the SSC Examination if the Head
the proprietor l.iie to make progress, a'nd
local education authorities the relations between the parent and Masters find, that the pupi,Is fai.Ied, ad.equate
that this right is "opoil. oJ being oueffid,d,en by a ualid regulat'ion.
ThLtts
oftheschoolaregovernedbythetermsexpressorimpliedofthecontract
fortheeducationo,rtn.child.Subjecttotheexpresstermsofthecontract' the cornmon law righi could be overridden by a law passed by
the legislature

49. AIR 1968 Bom 156.

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.fSg Textbooh on Adntuistattoe Law
I

i
tffi.Tto":trf; n:H:"'n.,::
is no reason whv pregnancv ,should,::i":' *
to make a regulation to thc
or if the legislature had authorise<i the Board
*'i:'," ;;n: :'"ltr:::: :*T;i'i'Ti"^l' ;;; ;sr'ilt to Indian womanhood
u... constrained to observe
same effect having a force of law' ;;J;;;d institutiori.-w" the to
the most sacrosancr ancl abhorrent
4.13.2.3.5 Delegated Legislation is Mal'afi'de that such a course oi ottlo" Apar! :" "1t1:i1t'-'a"itJtUf"
r'ot'-t r'J"-g"grossll' :t:l'nt::l'
it sruacks
Thelegislativeintentionbehindalarvisrrotquestiolsdirr.acourtoflarv- notions of a civilised societl-' ot tt'. cost of all human r'altres.
tn: Supreme Court of a deep rooted ..,,"J1i.',..r
selfisluress
In G. Nageshwara ioo '' A'P'S'R'T' Corporationto sucrr a provision, ::'"'j:lt#'T:il"T1i:r:i:J':::"X
":l ""ll ancr
hadcategoricatlyous..'.dthatalegislaturecanonlymakelawsw-ithinits make the '#;r"","'i;
i,ri "o.ri.i"t the quality of unfairness
legislative ,nt, ,"if in fact, it has the yoy:" to u' State Article 14 of the Constitution'
"nd ln Srinittasan therefore, clearly "i"f"iit""-"f
laru 'its motioes in maleing the laut o'"
"o*p.t"n"", 'i'"l"t"uont"'
Co"'t applied the same principles and held that
of Keralasr the Kerail H'i-jt' Director'
Regulatiorr4T\^lasalsoheldtobeunconstitutionalbecauseitprovidedtlrat
when an attack or *oto{a" is made against
the exercise of legislative 1t:-":
the services "f ", .;;j;r"ll
*"r .1, .lh" option of the \'Ianaging
upto a period of
thJ Court shall be restricted to examrne utitl^"i"trra *Lai"tttv flt,' ut extended
or rule making o"*J"fr;;"*tt "r on the employee
onlywhetherwhatt,""u.".,doneiswithinitscompetence.Thisviewwas
in Mad'an Gipat Singh u' [Jnion of ,"t y"u..". It was clarified-
reiterated by the n.iii Hiet' Court relating
legislation u1:Tl"'l;tt"":.tT.r^t";n1ili":Tf "n:
with issue of whether the subordinate
Ind,iasz while dealing The words'at th3 option' 1" .*id'-
were malafide in nature it was categorically
to change in service ;;ifu ::r.***:'X"r'T:'":'ii"::'"?lp{i:"-';il-";;urationdoesnotprovide of the
heldthatsincethelegis'latiaepoueroftheCentralGotler'nmenttoamend *ttrcf.r *w-gol"t* the exercise
coutd, u. no question of ang
mala anv quideline", '"*l'"''p'i""iptt" in provision
the sched,ure was not trisputed,, there power' discrelion bv the oil;;6i'I"t"''
stT';;; tfru'" i"'forars1"11
relulns to extend
giod' laith in the eaercise of the said authoriti"" ;';;; reason
fid,es or the absenc-e-of the Regulatio" '"oo'ii^J-tf,e does not -bveven give any right '
the period of t"ti"ittt'i oi
Afr'' The provifion -o'dtt
p*""d the lilanaging
4.lt-2.3.6 Delegated Legislation is Arbitrary or
lJnreasonableness
Ltd"- u' [Ini'on of Ind'ia,3 it of appeal to rtigi'"t Lttt'-iti"" * ".9"T::,IilJ of ihe retirement of
ln Ind,ian Erpress Newspapers (Bombag) Put' u. questioned 01 any ground on
it'
Director' Under the provision' t"a "tu'ttal'"th;;;;";;; -fo*u, th" Mttttging Director' The
was held that a subordinate legislation ""J.' an AH is entirelv;"ht;;';y "*t"tl*iiioi on the lr{anaging Director
questionei' Accordingly a subordinate conferment of ",r"frt'"'., id;;i
.,rr.o.t.oti.J
suffets from the vice of
"t:"t*i"t"acould be
which the plenary legislation or 14' as tht ;;;i;i;n
Iegislation can be on the ground that it is unreasonable is clearlv violative of Article
excessive delegation of Powers'
manifestlY arbitrarY. that
u' Chal'ly'bhan ';;;;" Talel' Supreme Court held
lnAIRInd''i'au'NergeshMeerzasatheCourtstruckdownRegulations46 ln of Maharashtra Rules
-ra, Bombav civit constitution'
in nature' Regulation State service
and 47 as arbitrary,'"rir.*"""ule and discriminatory upon attaining the second oro.rrro''rl'nri""isitrltttliul
of air hostesses 16 and 21 of the
46 which dealt with lermination of service was held to be void ior'll"l"ai"e'e*i"1"" allowance a't the rate of
Re'
35yearsofageo.-ot'*""iageifittakesplacewithin4yearsofservice
The Court struck down the The proviso p'ot'ia}?';;;;;' "r "tu"i"tlce
*tYll ;il was convicted the conviction bv a competent
or on first pregnancy whichever occurs earlier' 1 per monttt t" u' Jo"l'"'""* u.rra *t ose appeal against
conditionofterminationofserviceonfirstpregnancyasunconstitutional, court and sent".rcefto imprisonment
void and violative of Article 14 because- waspending'Tht;;;-itscriUea-theawardofsubsistenceallowanceatthe struck down on
i as tud'i'crozs' The proviso was' q'as
This ls a most unreasonable and arbitrary
p::Yi:i"" u'lictr slr'11!s the conscience rate of Rupee ;'";;t;
1 in nature and contrarv to
marriage after four years and bti;*;;;""o* l* 1[""-v
of the court. The Regulation does not prohibit the ground "f
Article ;ili the Constitution. In the words
ifanAHafterhavingfulfilledttrefirstconditionbecomespregnant,there the law making *il;;;; to say that subs'i'stence allowance
of Chinnappa Reddy J' "h-is y'otX"ii
7 per month"'
is award'eil and' tlo"oward' Re'
50. 1959 (SuPP') 1 S'C'R' 319'
51. A.I.R. 1968, Kerala 158'
52. 1969 sLR 576. sc 803'
55. ArR 1983
53. (1985) 1 SCC 641 : (1985) 2 ScR
287'
54. ArR 1981 sc 1829.
l$q Textbooh on Administratiae Law

SUMMATION Quasi-Judicial Functions

Delegated legislation is a modern day necessity'. It is important that the a;d Principles of Natural
exercise of such powers should be rvithin the bounds of Constitution and
should not be ultra vires to the parent statute. -All efforts should be made to Justice
incorporate the pre-legislative consultation rneasures to ensure democratization
of the rule making process so as to make morc easily acceptable to the .
people at large.

LEARNING OBJECTIVES
After reading'this chapter, yoq will be fa'ririliar with: i

-'Reu."o.rs for the growth of;Administra'tive Adjudication ,' . ' . .

. Relationship between principli:s of natural justice and duty to act fairly

. Principles of Natural Justice
. Relationship between Principles of natpral justice'and elticfe fa
I Rulg ag:i1t ri."
. o T!'pes. of Bias ;.. i. . . '.' ' . .- . '
. Pecuniary Bias; ' Non-trrecuniary intereqt '
' Bias
. P.."orru.l Bias; " ' Inconsequential
.1,Depag.tmen.-ba}:Bial1..'......ipstitutio'n9ljPi"f*"*"
''
j Test'of Biasness " "
. Non-compliance with ""the Rule agai.ns-t Bias
o Doctrine
4..
of W'aiver
- i ';r
o Doctrine of NecessitY :

. Right of Fair Hearing

. Components of Fair Hearing titr
. Prejudice Test
- Right to access and examine dbcuments
' Right of Notice; . :Right of. Oral Healing: , .: ' I '
. Richt of Hearing;
' I nieht of Cross Examination; ' R€ht of kgir'l R9nrese1t4i.o1
t' tt.'-t " 'l
. E*"=ptiorr to tJre Right of llearing ': ' I
.
. Stttrrto.y excrPtion;
. . Emergency; :. .: . .. .. r ,Confidentiality . :.
'.LegisIativeaction;.'].Administtativeneces81ty
' No yiolation o-f legal.right '
..ReasonedDecisi<rh.''.':'.':'..:..4
. Non-compliance with principles of natural justice
i summation
r:
' :-1 .'' '' -'
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5.1 INTRODUCTION
The third category of aclministrative functiorrs is known as the quasi-judicial
functions.
Traditionally the judicial functions involved adjudicating disputes
between tq,o individuals or between the state and an individual' The
Indial constitution ulakes provision for a well ordered and well-regulated,
hierarchical judicial systern but the judiciary suffers from inherent lirnitations
'to neet the growing challenges of modern administration'
With bhe increase in state activities after the adoption of the t'elfare
measures in the 20tl' cerrtury, the responsibilities of the different organs
of
the state have also increased rnanifold. The judici'ary, like the legislature
suffered from functional limitations because of the limited number of
judicial
officers in the' country and their lack specialization to deal with complicated
policy formulation and implementation. In addition, the existing judicial
responsibilities relating to pending cases and ever increasing new litigation
has overburdened the alrealy the constrained judiciary. Hence it had become
essential to transfer some of the dispute resolution fdnctions to some
of the
administrative authorities. These bodies are required to deal with a variety
of applications, claims and controversieS'
5.2 REASONS FOR THE GROWTH OF ADMINISTMTIVE
ADJUDICATION
(i) Expansion of state activities - With the adoption of various welfare
programrTles and public utility functions like health, education'
planning, social security, transport agriculture, industrialization etc'
itwasimpossibletocarryouttheseprogramsanddeterminingthe
legal questions involved therein with the assistance of the law courts
because of their highly individualistic and ritualistic approach. Hence
it was felt that the administrative decision making was the need of
the day.
(ii) Litigation before a court of law is both time consuming and expensive,
hence there n'as a need felt for an alternative system of adjudication
which was informal, chea'p and quick'
(iii) creating new public welfare and utility standards outside the adversarial
modelofadludication.E.g.Environmentalcasesneedstoadopta
harmonious stand between protecting the environment and promoting
economic development. similarly industrial disputes have to balance
the interests of the workers without compromising with economic well-
being of the industries.
I
Quasi-Judicizl Functions and Princir'les of Natural Justke 163 |
(iv) Neect to adopt preventive me&sures - Courts generally provides
renredies after the wrongful act has happenecl but many a times it is
necessary to undertake preventive measures to prevent larger injury
e.g. Traffic laws, food adulteration laws etc. Administrative agencies
ha'ing adjudicating po\l,ers have the abilitl' to prevent the comn-rission
of these acts.
(v) Administrative functioning depends on implementing executive policies
in a fair. transparent an<l non-arbitrary manner. Grant of contracts'
licensing etc. needs to be implemented based on administrative policies
and not being dependent on adversarial adjudicatory process.
' Large pendency in courts
(vi) - The judiciary is already overburdened with
pending litigations and any overburdening with additional litigations
arising from intensive form of goverrrrnent rvill only add on to the
pressure.
The administrative authorities while performing the dispute resolution
judicial
functions are required to comply q'ith the minimum threshold of
propriety and judicial norms. The administrative authorities are required to
iollo* the procedures laid down in the statute and adhere to a minimum
standard ofludicial principles, inclucling judicial independence while performing
the quasi-judicial functions.
In the words of ForsYth and Wade-r
A quasi-judicial function is an administrative function which the law requires
to Le exercised in some respects as if it were judicial. A typical example is
aministerdecidingwhetherornottoconfirmacompulsorypurchaseorder
or to allow a planning appeal after a public inquiry. The decision itself is
aclministrative, dictated by policy and expediency. But the procedure is subject
to the principles of natural justice, which require the minister to act fairly
towards the objectors and not (for example) to take fresh evidence without
disclosing it to them. A quasi-judicial decision is therefore an administrative
decision which is subject to some measure of judicial procedure.
In Ranjit Thakur u. (Jn,ion of Ind.ia2 while dealing with the need to
comply with the procedural safeguards provided in a statute the Court held
that-
The procedural safeguards contemplated in the Act must be considered in the
context of and corresponding to the plenitude of the summary
jurisdiction of
the court-martial and the severity of the consequences that visit the person
subject to that jurisdiction. The procedural safeguards should be commensurate
witl the sweep of the powers. T6e rvider the porver, the greater the need for
ffiForsytlr,AdmirristrativeLarv,oxford2009p.34-55
2. (rs87) 4 scc 611
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liberal the constructio'

Inquasi-judicialfunctionstheadministrativebodyhastofollowcertain
the restraint in its exercise ancl correspondingly. nrore principlesoflawwhilemakingthedecisions.Itisrrotessentialtocomply
envisage<l by the statute' The oft-quoted u'ords it is necessary
of the procea,,rru,f ,u,f"g,-rards
"VttareUl
u' are again n'orth recalling: with iarvs like CPC and CrPC or other procedural laws but
of Frankfurter, J. in Seatort'3
toadheretotheprinciplesofnaturaljusticeprinciples.Non-compliancewith
.....ifdismissalfromemploymentisbasedonadefinedprocedure,eventhotrglr principles rrill iri'alidate the decisio. made. \\'hereas
i' the case of
these
generous beyond the requitements that bind such agency' that procedure must
This judicially evolvecl rule of administrative lau'
discretionaryactionsitisthediscretionoftheauthoritywhichistlrebasis
be scrupulously obsewei-... oftheactionandsuchdiscretionisprimarilybasedon.statepolicyand
is norv firmly established and, if I may add, rightry so. He that takes the
- procedural sword shall perish with that sword'" expedience.
and India had
..Thehistoryofliberty',saidthesamelearned'Judge..haslargelybeerrthe In the early years the view of the law courts in England
"of beenthatadministrativeofficersperformingmerelyadminlstrativefunctions
history of observanc. pto""d"ral safeguards"a quasi-judicial were not bound
Section 130 is an which were not in the nature of ;,rdi"i.t or
We are afraid, the non-compliance of the mandate of without more' vitiates to comply with the frinciples of 'atural justice.o These principles were only
infirmity which goes ib tt't toot of the jurisdiction and quasi-judicial authorities. But with passage of
by this Court in Prithi' PaI Si'ngh applicable to the lrrii.iat and
the proceedings. lndeed it has been so held
of
u. [Jnion oJ Ind'ta; *here Desai, J' referrin! to the purpose Section 130 timetheprinciplesofnatural.justicebecameapplicabletoadministrative
.,whenever an objection is taken lt tr"" to be recorded. In order proceedings.
observed: of natural justice were
toensuretnatanyoneoblectedtodoesnotparticipatein.disposingofthe one of the earliest English cases wherein principles
objection. ...This is , **'id"to'y requirement t""t"""
the officer objected to was a doctor of Cambridge
applied was ,r- Bonhai's case' Dt' Bonham
cannotparticipatei"tu"decisiondisposingoftheobjectio.n.....Theprovision UniversityandhestartedpracticingintheCityofLondonwithoutlicense
was made against him and
conferringarighto.r,htaccusedtoobjecttoamemberofthecourt-martial of the College of enyritit", London' A complaint
sitting*"*"*u".andparticipatingintlretrialensuresthatachargeof .the coltege of physicians i*po"ed fine and ordered for
imprisonment- The
members cornposing the
bias can be made and investigated against individual
Thi; is pre-erriirrently a rational provision which goes a long statuteunderwhichtheCollegeactedprovidedthathalfofthefinesimposed
court_martial.
would go the king and rest Io the college. chief Justice coke invalidating
way to ensure a fair trial'" parliament under which the action
the order passed t "ia tt.t the Act of
mandate
u,as taken was void because it made a man judge in his own cause' or
The Court concluded that non-compliance with the procedural
the
iriJ:io*r, under the' statute will rend.er the proceedings of summary
wasotherwiseagainstcommonrightandleasonbecausetheCollegehad
court-martial as infirm in law' afinancialinterestinpassingitsownjudgement.Thisca^seisalandmark
decisionbecauseitisoneofther,eryfewcasesrvhereanActofParliament
5.3 VANISHING LINE OF DIFFERENCE BEIWEEN QUASI- wassubjecttojudicialreviewongroundsofviolationofpnnciplesofnatural
JUDICIAL FUNCTIONS AND PURE ADMINISTMTIVE justiceasthedoctrineofsouereigntgoftheparliamentdoesnotallowthe
ACTIONS: -lOUnNev FROM PRINCIPLES OF NATURAL judiciary to reviet' laws made by the Parliament'
of works, t].e
JUSTICE TO DUTY TO ACT FAIRLY In the landmark case of cooper a. wand,sworth Board'
petitionerhadbuiltahouseinWandsworthwithoutgivingduenoticeto
Whileperformitlgquasi-judicialfunctiontheadministrativeauthorityis in the case thelocalboardofworksandwhentheconstructionhadreachedthesecorrd
required to take de"isiorr" after hearing both the sides, whereas storel'.theboardofn'orkssentmerronelateer,enirrgandgottlrebuilding
obligation to consider and
of a pure administrative action there ar6 no legal
demolished.UnderthelUetropolisLocall\,lanagementActof1855itrvas
The grounds London rvithout giving
provided that no person shall put- a building in
weigh submissions and arguments or to collect any evidences'
upon which the action is laken and the procedure for taking
the action are and that if anyone did so, the
decision 7 days, notice to tire local board of works,
left entirely to the discretion of the authority. The administrative Boardmightlravetlrebuildingdemolished.Theboarddidexactlywhatthe
is primarily taken on the ground' of expediency and policy'
of Town antt Country ptonnins (rg!T) ? ALL ER
289;
ffi"te, Calcutta' AIR 1961 SC 705'
3. 359 US 535. Kishan Chond' Arora u' Commissioner of PolTce'
4. McNobb u. US, 318 US 332' ?. (1863) 14 CB (NS) 180:143 E'R' 414

5. (1e82) 3 scc 140.

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statuesaidtheBoardmight<toinexactlytlresarnecircumstances-Thc wordsinastatuterequiringthatthepartyslrallbeheard'yetthejusticeof
a'd not the comnxtn law will supply the ornission of the legislature'
.ature of the action takei was pure administrati'e in characteror comply
quasi-judicial in nature, hence was not required to give notice
Thus the court justified that an administrative action which detrimentally
an a'ction
with principles of natural justice. Nevertheless the builder brought ground that affectstlrerightsofthepeopleshouldbeprecededbyadherencetottre
on the
claiming darnages for the injurl' caused to the builcling principles of natural justice' But subsequently the Court clarified
that the
him a notice an opportunity in
the board had no power to act without givir-rg
actlon taken by Wanisworth Board of Works was judicial nature, hence
-of being heard. The Court upheld the following proposition- boundbytheprinciplesofnaturaljustice.Byclassifyingtlreactionas judicial
I think the board ought to have given notice to the plaintiff, ani to ho,," judicial in nature, the Court continued with the distinction between
to t}re board of the
allovt,ed him to be heard. The default in sending'rrotice be a
andadmirristrativeactions.Aninrportantconsequenceofthisdecisionwas
judicial action. Over
intention to build, is a default u'hich may be explained' There may the stretched extension of the administrative action as
application of principles of
great many u*.,r"."'"fo. the apparent default' The party may a period of time for the purpose demanding the
har-e intended
toconformtothelavr'.Hemayhaveactuallycgnformedtoalltheregulations natural justice eaera ad,n'Linistratiae act uas thus treated as 'jud'i'cial' i'f it
notice may have
which they would wish to impose, though by accident his the it odr"rs"iy affected. ana person,,s rights or entailed, a penaltg. But recognizi.g
miscarried; and, under those circumstances, ii he explained how stood, impact on the rights of
every administrative ""i * 'judicial', which has some
proceedingtodemolish,merelybecausetheyhadill_willagairrsttheparty,is for pure administrative action' As a method
the people, virtually left no space
po*., i'hat the legislature never intended to confer' I cannot conceive any
administrative action requiring judicial approach
"harm that rr#p.., lo the district board from hearirig the'party before of differentiating between
the epithet or title
"o,rra
they subjected him io a loss so serious as the demolition of his house; but I and those fundapentally administrative in chardcter use of
in the way of public ,quasi-judicial, became iopnl* for describing the administrative actions which
can conceive g.".t-*orry advantages which might arise principles of
"
order, in the way a"i"g substantial justice' and in the way of fulfilling the are required to be exerclsed judicially and in accordance with
"i facilitated in the grot'th
purposesofthestatut"'b-ythtrestrictionwhichweputuponthem'thatthey
a heavy loss' natural justice. The use of the term 'quasi-judicial'
should hear the pariv Li"* they inflict upon him such of fair administrative procedure'
Irrlg2gBritishgovernmentappointedacommittee.TheCommitteeon to
Iapprelrendthatatribunalwhichisbylalr,invested.withpowertoaffect fr.li"i"t.t" Powerse inder the Chairmanship of Earl of Donoughmore
consider the law making and adjudicating powers of
Iuinisters and their
the property of one of Her N{ajesty's subjects' is bound to that rule is of
give such subject
judicial decisions it was
;; ;;;.dity or uei.'g heard before it proceeds: and that. appointees. Differentiati.rg but*u"tt and quasi-judicial
principles of justice' by a finding
universal application, Jnd founded upon the plainest obsened that a judicial decision 'disposes of the rT'hole matter
Now'istheboardinthepresentcasesuchatribunal?Iapprehenditclearly is vested uponthefactsindisputeandanapplicationofthelarvofthelandtotlre
is, whether we consider ii with reference to the discretion which facts so found,' whereas quasijudicial functions are performed
by finding
init,orwhetherwelookattheanalogywhichexistsbetweenitandother
tribunais are bound facts and applying administrative policy-
recognised tribunals (and no one ever doubted that such
bytheruleswhichacourtofjusticeisboundby),oru'hetheryoulookatit Asaconsequenceavastmajorityoftheadnrinistrativeactionsu'hich
as appears to be recognized
affected the rights or the legal position of the people came
with reference the estimation in which it is held by the legislature,
from the language used in the statute' asquasi-judicialinnatureandsubjecttotheprinciplesofnaturaljustice.
Ultimatelytheterminologicaldistirrctionbetweenquasi-judicialactionand
.....theboardarewrongwhethertheyactedjudiciallyorministerially..I
administrativeactionril.asputtorestbyLordLoreburninBoardof
the offence, and Ed,ucation rt. Ricero when he categorically observed-
conceive they acted:"ai"i"[v, because they had to determine
the as well as the remedy. That being so'
they ha.d to apportiin funishment
and ending Comparativelyrecentstatuteshaveextended,iftheyhavenotoriginated.
a long course of decisions, beginning with Dr' Bentley's case'8
establish thar, although there are no positive thepracticeofimposingupondepartmentsorofficersofStatethedutyof
i,riil^i";;;;.;-."".nr deciding or determiningfquestions of various kinds. In the
cases, present instance'
.
9. Cmd 4060 (1932).
ffi,8c.,ofCambridge'1Stra.557,2Ld.R-aym.1334,8I\Iod 10. [1s11] AC 17e.
148. Fortescue, 202.
I Quasi-Judici.al Funaions and Principles of Natural Justice
I fOg Textboole on Administratiae Lazt;
asinmanyothers,whatcome-sfordeterminationissornctimesamatterto
besettledbydiscretion.involvingnolaw.Itwill,Istrppose.usuallybeof of lau' as rvell
an administ..ti.r. t1na,'but somelimes it will involve matter In such cases
as matter of fact. or even depend upon matter of law alone'
theBoardofEdtrcationwilllrar,ctoascertaintlrelarvarrdalsotoascertaiD
t'e facts. I need 'ot add that in doing either they must act in good faith
and fairly listen to both sides, for that is a duty lying upo' every one who
- decidesanything.Butldonotthinktheyarebourrdtotreatsuchaquestion
' an oath' and
as though it were a trial' They have no power to aclminister in any way they
They can obiain information
need not examine witnesses.
are parties in the
think best, always giving a fair opportunity to those statement prejudicial
who
controversy for correcting or contradicting any relevant
to their view. provided tf,is is done, therels no appeal from,the_determination
The Board have' of
of the Board under section ?, sub-section 3' of tlis Act'
course'nojurisdictiontodecidea,bstractquestionsoflaw,butonlytodetermine
arise' between the
actual concrete differences that may arise' and as they
managers and the local education authority' The
Board is in. the nature of the
arbitral tribunal, and a courtof law hts no jurisdiction to hear appeals from
thedeterminationeitheruponlaworuponfact.ButiftheCourtissatisfied
either that the Board have not acted judicially in the
way I_ have described'
by the Act to
they are required
or have ,rot a"t.r*in"d the question which
determine, then there is a remedy'by mb'ndamus and certiorari'
InthiscasetheBoardofEducationhadtodetermineadisputebetween
abodyofschool**'"s.'.andthelocaleducationauthorityofSwansea,
whichhadrefusedtop-ayteachersinchurchschoolsatthesamerateas
of
teachers in the ,rti*iivt own schools. The court quashed the decision
the Board as they fallei to act judicially and complied with the principles
two
of natural justice. Lord Loreb,,.,' i., his observation had emphasized
pertinentpointsrelatingtoobservationofprinciplesofnaturaljusticeby
whose action may
everyone who has the d'uty to decide anything and
adverselyaffectthelegalrightsorlibertiesofother.Inperformanceofthese
functionstheadministrativeauthoritiesaresubjecttojudicialreview.
Theexpandingscopeofapplicationofprinciplesofnaturaljusticesuffered
domina'nce
set back from 1g14 to 1g63 because of the growing executive
duringtheperiodofthetrr,oWorld\A/arsandtheperiodofeconomicand
natural justice
social turmoil thereafter. The importance of principles of
was revived in 1964 in the land.mark decisiorr of Rid,ge
u' Bald'win'rr yr
this case the appellant was the chief constable and was in conspiring
police force fo1
with
almost 33 years. He was arrested on october 25, Ig57
for
seniormembersofhisforcetoobstructthecourseofjustice.Atameeting
oftheWatchCommitteeitwasresolvedthathewouldbedismissedfrorn
11. [1964] AC 40.
l$ll
service. under Section 191(4) of the N{unicipal corporation Act 1882 'the
watch committee or any trvo justices having jurisdiction in the borough, may
at any time suspend or dismiss, an)' bourough constable rvhom they think
negligent in the discharge of his duty, or otherwise unfit for the same.' The
appellant challenged the order of dismissal on the ground of non-compliance
.5.ith the principles of natural justice as no opportunity of being heard *'as
provided to him before depriving him of his right to public office and denying
him the statutory pension right which are proprietary .in nature. Lord Reid
upholding the application of principles of natural justice analyzes the nature,
scope and importance of the principles and observcd-
The principle audi alteram partem goes back rnany centuries in our law
and appears in a multitude of judg4Srents of judges of the highest authority.
In modern times opinions have sometirues been expressed to the effect that
natural justice is so vague as to be practically meaningless. But I would
regard these as tainted by the perennial fallacy that because something cannot
be cut and dried or nicely weighed or measured therefore it does not exist.
The idea of negligence is equally insusceptible of .exdct definition, but what
a reasonable man would regard as fair procedure in particular circumstances
and v'hat he would regard as negligence in particular circumstances are
equally capable of serving as tests in law, and natural justice as it ha-s been
interpreted in the courts is much more definite than. that. It appears to
me that one reason why the authorities on natural.justice have been found
difficult to reconcile is that insufficient attention has been paid to the great
difference between various kinds of cases in which it has been sought to
apply the principle. What a minister ought to do in cbnsidering objections
to a scheme may be very different frorn what a watch bommittee oughd't'o'
do in considering whether to dismiss a chief constable. So I shall deal first
with cases of dismissal. These appear to fall into three classes: dismissal of
a servant by his master, dismissal from an office held during pleasure, and
dismissal from an office where there must be something against a man to
warrant his dismissal. The lart regarding rnaster and servant is not in doubt.
There cannot be specific performance of a contract of service, and the master
can terminate the contract with his servant at any time and for any reason
or for none. But if he does so in a rnanner not warranted by the contract he
must pay darnages for breach of contract. So the question in a pure case of
master and servant does not at all depend on whether the master has heard
the servant in his ow.n defence: it depends on $'hether the facts emerging at
the trial prove breach of contract. But this kind of case can resemble dismissal
from an office where the body employing the man is under some statutory
or other restriction as to the kind of contract which it can make with its
servants, or the grounds on which it can dismiss thern. The present case does
not fall q,ithin this class because a chief constable is not the servant of the
watch committee or indeed of anyone else. ......--
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I Quasi-Judicizl Funaions and Pinciples of Natural Justice \71 |
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Therc I fi'd It nray be convenient at this point to deal with arr argulnent that, even
so I come to t'e third class, which includes the present casc' if as a general rule a rvatch cornrnittee nrust hcar tr constablc in his own
anunbrokenlineofauthoritytotheeffecttlratarofficercanrrotlawfirllybe hearing his defence before dismissing him, this case was so clear that notlling that the
-e" him rvhat is alleged against
dismissed without first telling lltTtrrough
case,r' i-10 it is rnore appellaut could have said could have made any difference. It is at least very
defence o. .*pl"rr"tiJri example is Bagg's doubtful whether that could be accepted as an excuse. But, eyen if it could.
"l".ri,
pr-operll' depritation oi tf't ptit'lf"ge of being
o-bt"gtt" of Pl5-rnouth' Rcx r-' the respondents would, in my view-, fail on the facts. It ural- u.ell be that no
ptii"h clerk' and Lord' Ken)'oil C'J'
Gaskin'o arose out of the dismissal of a reasonable body of men could have reinstated the appellant- Bnt as between
referred to audi alteram partem as one oi
th. fi."t prirrciples of justice' rReg' the other two courses open to the watch committee the case is not so clear.
tL" of dismissal of a parish clerk' and Lord
Denman
- u. Smithra *-. Certainly on the facts, as we know them, the watch comtnittee could reasonably
"toift"'
C.J.heldthatevenpersonalknowledgeoftheoffencewasnosubstitutefor have dccided to forfeit the appellant's pensiou rights, brrt I could not hold
disprove criminal motive or intent
hearing tne otflcert r'iJ-"*fi"t'"ti"" *igr't that they rvould have acted wrongly or $'holly unreasonabll- if they had in
and in any event delaying to
and bri.g forward ol,hu. i""t" in mitigation,
to first impressions' Ex parte
the exercise of their discretion decided to take a rnole lenierrt course.
hear him would prevent yielding too hastily from office of a county court
Rarnshay'5 i" i"'po'1""i' riae"tt i"itn tn"
turno"al Thus in cases where a body is not merely required to declare what are
judge.andtlreformofthelegislationwhichauthorisedtheLordChancellor the rights of the person but also decide horv he should be treated it rvill be
toactishardlydistinguishablefromlheformofsectionlgl,wlrichconfers if he deemed to be performing a quasi-judicial function and it would be required
powers on the ;;;;;-ittee. The Lord chancellor was empowered
oiinability or misbehaviour' but Lord to obserye the essentials of the principles of natural justice. This rationale
should think fit t""'";'t;t; ;; the ground was followed in subsequent cases like In re : H.K. (An Infant)l8 wherein
Campbell C.J. ",ii;-;;t' *i" "ooty ott the' implied-condition prescribed
by the principles *"t""f 'fti"
,""'i"t'" k' dsoood' u" NeisonrT objection was taken the validity of the action taken by an Immigration officer came up for
"i l"ht Citv of London had removed the consideration. In the coulse of his judgment Lord Parker, C.J. observed
to the way in *;t; t'ht ai'pot"tio" of L'C' said: "I apprehend' my
clerk to the Sheriff's Court, and Lord Hatherley Baron who has delivered' in thus:
Lords,. tha.t, as t'"t-Uttt' siated by the
learnei
thenameofthejudges,theirunanimousopinion'theCourtofQueen'sBench But at the same time, I myself think that even if arr immigration officer
to that court' in this case it is not in a judicial or quasi-judicial capacity, he must at any rate give the
has always .orr"iattJi ift"t it has been open 'asor body of men
appears to have considered' to correct
tn| coutt' or tribunal' immigrant an opportunity of satisfying him of the matters in the sub-section,
who may'have a power of this descriptiJ"'
t po*t' of -removing from office' and for that purpose let the immigrant knou' vvhat his immediate impression is
if it should be found that brich persons hu.rru dirr.g^rded an-y of the essentials so that the immigrant can disabuse him. That is not. as I see it, a question
of justice ln ttte coutse of their ittqoity' before taking that removal' or if of acting or being required to act judicially, but of being required to act
those persons have fairly. Goocl administration and an honest or bona fide decision must, as it
it should be fbund that in the place oi reasonable cause
acted obviously upon mere individual caprice'" seems to me, require not merely impartiality, nor merely bringing one's mind
been considered by the watch to bear on the problem, but acting fairly; and to the limited extent that the
........The question which was or ought to have question whether or not the circumstalces of any particular case allow, and within the Iegislative framework
commitiee on March 7, 1g5g, was not a simpr" possible courses open to the under which the administrator is working, only to that limited extent do the
three
appellant should t'" di"-i"tta' There were so-called rules of natural justice apply, which in a case such as this is merely
the appellant as chief constabll' di"Tt::t"'g
watch committee - reinstating
between the latter two ls a duty to act fairly. I appreciate that in saying that it may be said that one
him, or ."qrli.inlg nit" to '""igtt' The difference
u,hereas- requiring him to is going further than is permitted on the decided cases because heretofore at
that dismiss"f irr?of'"J i-f"f*i. of pension rights,
ihe appellant's real interest in any rate the decisions of the courts do seem to have drawn a strict line in
resign did .,ot' i"l""J, it is norv clear that
these matters according to whether there is or is not a duty to act judicially
thiJappeal is to try to save his pension rights' or quasi-judicially.
Post these decisions the applicable principle was that the powers of a
12. (1615) 11 Co-ReP' 93b'
purely administrative character were required to be exercised in a fair
13. (1799) 8 Term ReP' 209' manner, implying that the action taken should be in accordance with the
14. (1844) 5 Q.B. 614. principles of natural justice. The gap between quasi-judicial functions and
15. (1852) 18 Q.B- 173.
16. 18 Q.B. 173, 190. 18. [rs67] 2 Q.B. 617
L7. (1872) L.R. 5. H-L. 636'
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I Quasi-Jud.icial Functions and Principler t@

ILZZ Textbook on Administrathte Lazlt

ii th",.:qltion cxpressed appellants were that it was in the nature of quasi-judicial power because the
administrative discretionary was ultimately merged. language of Rule 4 in Regulation 5 prescribed that 'the selection should be
byLordDiplockinR.o.CommissionforRacialEqualzty|9rvhenhelaid made after ad,judgi.ng the suitability of the officers belonging to the state
down the princiPle that- service' which necessarily implies 'to judge or decide'. On the contrary
WherearrActofParliarrrerrtconfersuponar]a<lnrinistrativebodl.firrrctiorrs the respondents argued that the function of the selection comrnittee t'as
whichinvolveitsmakingdecisions.n'.hichaffecttotheirdetrimerrttherig}rtsof statutory in nature and their duty rvas 'merely to select officers who in its
please' there is a presumption opinion were suitable for being absorbed in the IFS' that is 'found worthy
other persons or curtail their liberty do as th€;u
- that parliam"rrt irrierra.d that th" admi.risir.ti.'" body should act fairly of selection'. The Court analyzing the nature and scope of the functions
towards those persons who will be affected by
their decisions'
observed that ,,The diuiding li,ne between an administratiae pouer and a
quasi-jud.icial pouer is quite thin and i,s bei,ng gradually obliterated. For
Thusirrespectiveofthenatureofadministrativeaction.ithasbecorne d,etermining whether a po?t)er is an administratiue pou)er or a quasi-judici'al
obligatoryfortheauthoritiestoactinafairmanner.Theauthorityononc power one has to look to the nature of the power conferred, the person
handisboundto"o*prvwiththeprinciplesofnaturaljusticeinallcases or persons on uhom i,t is conferred, the framework of the lau conferring
to act judiciatty' and also they rvill have a dut!
1o
wherein theyha'"'e ;il;; that pouer, the consequences ensuing front, the etercise of that po'u.)er
actfairlywhene.,e,the"actionsaffecttherightsandinterestsofthepeople.
with the principles of and, the rnanner in which, that pouer is erpected to be exercised."22 On
The duty to act fairly irnplies to act in alcordance the issue of a.dministrative accountability it was recognized that under the
natural justice' constitutionally governed rule of law it is'essential that every instrumentalities
State of Orisso u' Dr' Binapani
r-- ca'se Dei20
In India in the early ^r Qlntz
^^^^ of
of the State should act in a just and fair lnanner without being arbitrary
to comply with norms
the supreme court hai emphasized the necessity authorities and capricious. The procedural norms adhered by the judicial institutions for
of fair procedure and duty 1o act judicially by administrative
as an integral part of rule the purpose of ensuring probity, propriety and impartiality in actions should
while dealing with issues of .i.rit "o.rr"qrr.rrlus also'be adopted by other administrative institutions when their actions will
of law. have an immediate or subsequent impact on the rights of the citizens.
is intended to be passed is
The rule that a party to whose prejudice an order our constitution the rule of law pervades over the entire field of
entitled to o t..',i"g] tpptiu" alike io
judicial tribunals and bodies of persons . under
administration. Every--organ of the State under our Constitution is regulated
matters involving civil consequences-
invested with auttrorfty tt adjudicate upon and controlled by the rule of larv. In a welfare State like ours it is inevitable
Itisorreofthefundamentalrulesofourconstitutionalset-upthateverycitizen
the State or its officers' that t5e jurisdiction of the administrative bodies is increasing at a rapid rate.
is protected exercise of arbitrary authority by The concept of rule of law would lose its vitdlity if the instrumentalities of the
"g"i;;;
Dutytoactjudiciallywouldthereforearisefromtheverynatureoftlrefurrction
to be super-added' If there state are not charged with the duty of discharging their functions in a fair
intended to be performed; it need not be shown of a person' duty to act and just manner. The requirement of acting judicially in essence is nothing
is power to decide and determine to the prejudice
the essentials of justice but a requirement to act justly and fairly and not arbitrarily or capriciously.
judicially i" i-pfi"it i" the exercise of """h power' If The procedures which are considered inherent in the exercise of a judicial
is made, the order is
be ignored .rd o, ordcr to the prejudice oi t ltw ond importance thereof
po.tott
of posrer are rnerely those which facilitate if not ensure a just and fair decision.
a nullity. That is a b."i. "o.r".p[ of the rr-,le
In recent years the concept of quasi-judicial power has been undergoing a
the sfunificance of a decision in any particular
case'
transcends radical change. what wa^s considered as an administrative power some years
the crucial question back is nort being considered as a quasi-judicial porver'23
In the case of A.K' Kraipak u' [Inion' of Ind'ia?r 9ne-of
beforethecourtwasdeterminingthe..u,to,"ofthefunctionperformedby
Services Act for t'e Emphasizing the need for administrative accountability to prevent
the Selection Co**ittee createJ under t'e All India administrative despotism it is important that administrative actions are
purposeofselectionofofficerstothelndianForestService(IFS)wasquasi- governed by the principles of natural justice. It categorically observed-
judicialorpurelyadministrativeinnature.Thecontentiononbelralfofthe
rs. t19821 AC 779. 22. Ibid Para 13.
20. AIR igoz sc 1269 : (1967) 2 scR 625' 23. Ibid Para 13.
21. AIR 1970 SC 150 : (1969) 2SCC 262'
 "r
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Qiasi-Jud.icizl Functions and PrinciPles of
Natutal lustice 175"1
I Ld@
lJ3a Textbook. on Ahhisnattoe
the quintessence of the process of justice inslrired and guided by '(fair-play
withtheincreaseofthepoweroftlreadnrinistrativebo<liesithasbecome prevent in action". If we look at the speeches of thc various Law Lords in Wiseman
necessary to p.o,ria" g,rlJelines for
the jusL exercise of their power' To ,os"28 it u,ill be seen that each one of thern asked the questio. "whether
in
a new despotism'
the abuse of that see that it does not becolTre theparticularcircumstancesofthecase,theTribunalactedunfairlysothatit
courts are "#;;-;;J;;
groa,ttllf"ln'"it'ttlttt principles to be observed s'hile exercising coulrl be said that their procedure did not match with $'hat
justice demanded"'
such powers- rt .,.iti'"-iit<J tnese' pturil-g""a is not advanced b5' aneither rigid
or.li.astheprocedureadoptedbl.theTribunal'.irlallthecircumstances
f- new solutions' It is
unfair?,' Tlre test adoptecl by every Larv Lord rr'as w}rether the
procedrrre
adherence to p,""ua""ts' Nen' problems :;i
possible .o. a."itaji^;; fJ ln" tit''lt" of
a qttosi;,.dicial power'24 followed u'as fair in all the circumstances and "fair-play in action" required
- court while dealing that an opportunity should be given to the taxpayer "to see and reply to
rn Maneka Gand,hi u. (Jnion of Indinz' the supreme the
reaching conclusion
the counter-statement of the cornrnissioners" before
rviththeissueofwhetherprinciplesofnaturaljusticecanbeapplicableinthe that "there is a prima facie case against him"' The inquiry must' therefore'
*tre., the statute, has specifically fairness in action demancl that an opportunity to be heard
exercise of an administrative discretionary always be: does
excluded the application of fair hearing''L
*t" categorically held that theis should be given to the person affected?
as philosophicallg'
principle of ,"o"onoii"ness' which legallg as well Nos., if this be the test of applicabilit]'of thc doctrinc of natural
justice' there
anessentialelementofequalityornon-arbitrarinessperuadesArticlell can be no distinction bet.veen a quasi-judicial function and an administrative
as well as
Iikeabrood,ingomnipresenceand,the-procedurecontemplatedbyArticle function for this purpose. The aim of both administrative inquiry
reasonabl"n"" in ord'e'r to be in arbitrary'
conforrnitg jlrst if a rule of natural
2l must anEurer the test of ,,right quasi-judicial inquiry is to arrive at a decision and
and iust and, fa'i'r" and' not to justice. or .to put it negatively, to prevent
with Article 14. Ii must bL at all and ;ustice ls calculated secure
it be to
'would' be no proced'ure Lisca..iage of justice, it is difficult to see why should applicable
fanciful or oppressiue; otherwise' -it not be sati'sfied' Hence even when a quasi-judicial inquiry and not to administrative inquiry' It must logically
the require*"nt oi A-'ticle 21 would' "to
both. On what principle can distinction be made between one and
prirr"ipr"s of nltural.justice the affected apply
statute is silent on the application or '"i tfru Ltn..Z Can it be said that the requirement of "fair-play
in action' is any
parties will be n"J i"i tn" justice
in" conlrrlon law will supplg the in an administrative inquirSr than in a quasi-judicial one? Sometimes
the less
jnquiry may have-far more serious
omission of the legislature' justice an unjust decision in an administrative
as an integral part of natural in a quasi-judicial inquiry and hence the rules of
Speaking on tnJduty to act fairly consequences than a decision
inquirv which entails
it was observed- natural justice must apply equally in an administrative
civil corisequences- Thu." o'*, hot'ever, a time in the edrly stages of the
in action" ""1-^':f is why it has justice the prevailed that the
soul of natural justice is "f1ir-play of the doctrine of natural rvhen
fihe world' In the developmeni 'iew
tf"ot'lit*tt rules of natural justice have applicatioD onll' to a quasi-judicial Froceeding
as
received the widest recognition -the 'democratic as essential
hearing is regarded proceeding and the distinguishing feature
united States, the right to an admini"tlti',r" that distinguished from an adrninistrative
requirement r;;fi;;; ;;i';;t"' A"J itr England-too'itor adverse held
has been
action is of a quasi-judicial proceeding is that the authority concerned is
required by the
of a duty
66fair-pray i,,"f that befole rw ireiral.ial heard' The larv under which it is functii'ing to act judicially. This requirement
".ti"ii'!"*l"as tre character
taken against a person' he must P:^tt"* "tt
oppottottity-to to act judicially in order to invest the function rvith a quasi-judicial
*"" out fiom the following observation of Atkin. L.J. in Ret u' Electricity
rulewasstatedbyLordDenning,Ir{RinthesetermsinSchm'id'ta.Secretarg
public officer l": f"*" to deprive l(192a) 1 KB 171 : (1923) All
"pJlt ER Rep 150]' "wherever anv
of state o, Hoirl""iii"nz;;-:--i*t*.-, Cornrnissi'oners
to determine questions affecting the
apersonofhislibertyorhlsptopttty'-ti"gttt"'u'tprincipleisthatithas and body of persons'iraving legal authority
;; o?pott"ttitv of being heard
not to be done without his being gi";';behalfli' prevails rights of subjects, .nd lto"i,'g the dut)' to act judicially' act in excess of their
The same rrle also
I{al authority. the1, .r" "rrLl*t to the controlling jurisdiction of the King
of making representations on his orvn ca.rado, Australia and Nev"' Zealand' C'J', in Rex u' Legislati'ue Committee oJ
in other commoni,ealth countries like N;;;t (vide American Journal of Bench Division ..-". Lord Hewart,
this observation to mean that the duty to act
It has even gained access to the p'
UniteJ
aZS)'
justice
frlagatry' J'' lt::ttl:" natural rt is
the church Assernblgze reacl
judicially should be l.n additional requirement existing independently of the
Internati,onal Law, VoI' 67'
..as a distillate of duc process of law,, (vid"e iontoi ne u. chastartonzT)' ,,authority to determine questions affecting the rights of subjects"- something
super-added to it. This gloss placed by Lord Hewart' C'J''
on the dictum
24. Id. Para 14. a

25. AIR 1978 sc 597. 28. 1971 AC 297 : (1969) 3 All ER 275'
26. (1969) 2 Ch 149 : (1969) 1 AII ER 904 29. (1928) I KB 411.
27. (f968) 112 Solicitor General 69o'
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!;" 177'l
i
I Qnori-Jndi.iol Funrrior
I 176 T"rtbooh o, Ad*inittrilfo" Lt*

and stultified pou,er conferred, the lnanner of exercising it and its impact on the rights of
of Lord Atkin, LJ., bedevilled the law for a considerable tirne in lh. p"r"o1 affectecl antl where it is found to exist, thc rules of natural justice
the growth of tt. doct.ine of natutal justice' Thc Court was constrained
rvould be attracted.
everycasethatcamebeforeit,tomakeasearchforthedutytoactjudicially
sometimesfromtenuousmaterialandsonretirnesirrtheservicesofthestatute Thus in India no distinction is made bet$'een an administrative and a
andthisledtooversubtletyandorer-refinenrerrtresultinginconfusionand quasi-judicial proceeding for the purpose of application of the doctrirre o[
uncertainty in the law. But ihis was plainl5r contrarv to the-earlier T:|:il:$ natural justice. In case of non-compliance with the essential principles the
andintheepoch-makingdecisionoftheHouseofLordsinEidgea.Bald'wzn".
- which marks a tu.ning |oint in the history of the development
of the doctrine aggrieved person can approach the court for issuance of writs of certiorari
of natural justice, Lori'R.id pointed out iro* the gloss of Lold Hewart, c..I', aird prohibition against the quasi-judicial functiorrs. At present the principles
wasbasedo.'"-i*rrde.stantli"goftheobservationsofAtkin'L'J''andit of natural justice are applicable to a wide range of administrative actions. The
the court' Lord application of the principles of natural justice depends on the circurnstances
went counter to the law laid down in the earlier decisions of
Lord Hewart meant that it is that a body
Reid observed: ,,If never enough
of each case, the nature of the inquiry, the subject-matter being dealt with
hasadutytodeterminewhattherightsofanindividualshouldbe,butthat etc. for the purpose of adhering to the standard of fairness'""
theremustalwaysbesombthingmoretoimposeonitadutytoactjudicially, authorities"'
then that appears to me impossible to reconcile $'ith ttre ,earlier arise from The extent and application of the doctrile of natural justice cannot be
The learned Law Lord held that the duty to act judicially
.may inrprisoned within the strait-jacket of a rigid formula. The application of
need not be
the very nature t;. function intended to be performed and -itapplication the doctrine depends upon the nature of the jurisdiction conferred on the
"f
shown to be super-added. This decision broadened the area of of
administrative authoritl" upon the character of the rights of the persons
therulesofnaturaljusticeandtoboirowthewordsofProf.Clarkinhis i affected, the scheme and policy of the statute and other relevant circumstances
articleon,,NaturalJustice,Substanceand'Shad'ow''inPublicLawJournal,
-to disclosed in the particular case-36
1g75, restorea ug;t area ,,benighted by the narrow conceptualism of l
"o
'thepreviousdecade,,.Thisdevelopmentinthelawhadits.parallelinlndiain
trre Associat"a C"*"ni io*ponit' Ltd"'u'
'P'N' Sharma3l where this Court 5.4 PRINCIPLES OF NATUML JUSTICE
lo the decision h Rid'ge v' Bald'w-in3z and' later it State
approvingly ,"f".r"J
"n\nie*1. .,If there is power to decide The success of administrative adjudication is dependent on adopting a fair
of ori.ssa ,. o, i"l,"t observed that:
and determine to1t" pttj''ai"" of a person' duty to act
judicially is implicit aud transparent procedure. Adhering to the principles of natural justice
in the exerci"" or ",r"ir'po*.r,,. This couit also pointed out .in -A.K. Kraipak holds the key to ensure an equitable adjudicatory process as it helps in
historic decision in this branch of the law, that achieving justi,ce that is simple and elementarA, as d,istinct from
justice
u. [Jnion o1 nansa orroth.,
of the
inrecentyearstheconceptofquasi-judicialpowerhasbeenundergoingradical tlmt is contpler, sophisticated, and, technical.37 The importance
change and said: natural justice principles are generally traced to the biblical story of Adam
,,The dividing line between an administrative power and a quasi-judicial pou'er and Eve in the old Testament. After consuming the apple from the tree
whethera of knowledge in the Garden of Eden God had given both Adam and Eve
is quite thin and i" u"irg gradually obliterated. For determining has to look justification for violating the instruction of
power is an administrative power or a quasi-judicial power one an opportunity to explain their
the person or persons on whom it is God. After both of them God imposed proportionate punishments
to the nature of ifr" po*"t conferred'
the
hearing
conferred, the framework of the law conferring that power, consequences
which that power
of suffering to Adam and Eve.
ensuing from the exercise of that power and the manner in
is expected to be exercised-" "The objection for rvant of notice can never be got over' The laws of God
act judicially and man both give the part)' an opportunity to make his defence' if he has
The net effect of these and other decisions was that the duty to of the any. I remember to have heard it observed by a very learned man, upon such
not be super-added, but it may be spelt out from the nature
need an occasion, that even God himself did not pa^ss sentence upon Adam before
he was called upon to make his defence. 'Adam' (says God), 'where art thou?
30. 1964 AC 40 : (1963) 2 AII ER 66'
31. AIR 1965 sc 1595 : (1965) 2 scR 366' 35. Russel u. Duke of Norfolk (f949) 1 All ER 108
32. Supra note 30. 36. Union of Ind'ia a. P.K. Rov AIR 1968 SC 85O'
33. AIR 1967 SC 1269 : (1967) 2 SCR 625' 37. John u. Reese [1969] 2 ALLER274'
34. (1969) 2 SCC 262: (1970) 1 SCR 457'
 l" I797'
I Quasi-Judicial Functions and Principles of NaturalJustice
I ffg Textbooh on Adrninistratiae Law

thou should elaborate conceptioD, the growth of many centuries of civilization; and even
Hast thou not eaten of the tree whereof I comrnandedalso'"36'that
thee
question was put to Eve now the conception differs widely in countries usually describecl a^s civilized.
est not eat?' And the same
In Rattan LaI Sharma u. Managing cornrnittee, Dr. Hari Rant
ProfessorWadeinhisbookonAdnrinistrativeLawhasequatedthe (Co-ed.ucation) Higher Secondary SchoolsL speaking on the importance of
importanceofprinciplesofnaturaljusticeaSpartofnaturallars.Thehorizon principles of natural justice Supreme Court observed "In Administratiue
of natural justice is constantlg erpand'ing'3s Law, rules of natural justice are foundat'ional and fun'darnental concepts
justice' has described in different names by different
'
- The term .natural "Fo. example it has been referred to as 'universal and, lata is now uell settled that the pri,nciples of natural justice are part
judicial authorities.i6 of the legal and' judi'ci,al procedu'res-
justice',ar 'requirements of substantial justice',42 'substantial requiremtl",?r{
justice""" In Maneka Gand,hi u. (Jnioin of Indias2 the Supreme Court discussed the
justice',a3 'natural sense of what is right and wrong"4{ 'fundamental whip"{E
.a
,fair play in action,,46 duty to act f"it;',t; 'u." i.i. crack of the importance of natural in the field of administrative law-
,common fairness,ne etc. speaking on the iifferent terminologies used for Natural justice is. a great humanising principle intended to invest law with
J'' in Maclean u'
referring to the cor,cept oi "atu'al justice l\{augham' fairness and to secure justice bnd over the years it has gro$'n into a widely
Workers (Jnionso observed- pervasive rule affecting large areas of administrative action. Lord lworris of
.the principles of natural. borth-y-Gest spoke of this rule in eloquent terms in his address before the
Eminent Judges have at times used the phrasepopular sense and must not Bentham CIub:
justice'. The phrase i", of used only in a
"ot"t", justice natural among men. Among most "\,Ve can, I think, take .pride in what has been done in recent periods and
be taken to mean that there is any justice particularly in the field of administrative law by invoking and by applying
savages there is .ro ts in the modern sense' In ancient
",-,ch-'ttit'g
days, a person wronged executed his own justice' Amongst our own ancestors' ih."" p.i.rtiples which we broadly classify under the designation of natural
such as thaf a manslaver justice. Many testing problems as to their application yet re-remain to be
;;;;;;",
down to the thiiteent; -o - manifest:f"lo"v'
irri"r with the stolen goods, 'of be punished
might solved. But I affirm that the area of administrative action is but one area in
taken with his weapon, " which the principles are to be deployed. Nor are they to be invoked only when
Again every student has
by summary execution without any form of trial' necessary to observe procedural failures are shown.. Does natural justice qualify to be described
heard of compurgation ""a of ordeal; and it is hardly
of ordeal by water in which sinking was the sign as a 'majestic' conception? I believe it does. Is it just a rhetorical but vague
that (for example) " ";";;; which lasted in this phrase *hi.h be employed, when Aeeded, to give.a.gloss oJ assurance?.I
of innocence rrra no.1t'irrg-tftt "ig" of'guilt' awith system
of justice' It ".n
believe that it is very much more. If it can be summarised as being fair-play
country for hundreds ;;;il; fr"l ti..t io do modern ideas
in action-u,ho could $,ish that it would ever be out of action? It denotes
isunnecessa.ytogi.'.f"rtherillustrations'Thetruthisthatjusticeisavery that the law is not only to be guided by reason and by logic but that its
purpose will not be fulfilled; it lacks more exalted inspiration. [current Legal
Problerns, 1973, VoI. 26' P- 16]"
ffingu.TheC|nncelIor,Ec.,ofCambrid'ge.(Dr.Bentley,s And then again, in his speech in the House of Lords in wiseman u. Bornemano"
cosel 1Stra. 557,2Ld' R'avm' 1334' 8 \'lod' the learned Law Lord said in n'ords of inspired felicity:
148'

39. AIR 1970 SC 150 : (1969) 2SCC 262'

3 SCC 398' "... that the conception of natural justice should at all stages guide those who
4O. See generallY (1985)
discharge judicial functions is not merely an acceptable but id an essential part
41. Drew u. Drew and Leburtt [1355) 2 lUacq 1' 8' of the philosophy of the laq'. \Ve often speak of the rules of natural justice'
42.JamesDunbarSmi'thtl.Queen(|877-78)3AppCas614,623(PC). But there is nothing rigid or mechanical about them. lvhat they comprehend
43.Ar'thurJohnspcktnana.Plumstead'DistrictBooradl{'orks[LR(1885)r0AppCas229. has been analysed and described in many authorities. But any analysis must
44. Vionet u. Banett [(1885) 55 LJ QB 39' 4r' bring into relilf rather their spirit and their inspiration than any precision of
45. Hoplci.ns u- Smethwick L'ocot Boatd' of Health ILR (1890) 24 QBD 712'
definition or precision as to application. we do not search for prescriptions
46. Riitse u. Bold'uin [LR (1963) I QB 539'
47.ln re H.K. (An InJant) (1967) 1AU ER 226'
4g. Faimtount Inaestments itd. 'i. s."retora
of state for the Enuirontnent (1976) 2 AII ER 865
51. (1993) 4 SCC 10.
(HL). 52. AIR 1978 sc 597.
49. Regino u. Secretary of State for Home AJf:'::
Et parte Hosenball (1977) 3 All ER 452'
s3. 1971 AC 297 : (1969) 3 All ER 275'
50. LR (1929) I Ch 602 : 1929 WN 59 : 141 LT
83'
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I Lazt) Quasi-Judicial Functions and PinciPles of Natatal Justice l8l I
.f fgO Textbook on Adrninistratioe

various dlv-e:Celt situations' be has to decide whether the observance of that rule was necessary for a just
which will lay down exactly what must' in applied which' in--any particular decision on the facts of that case.sT
done- The principles and procedures are to be
just and fair' justice'
situation or set of are riglrt and .Natural
"i."rm"r."""s, Not do we wait for directions
5.5 RELATIONSHIP BETWEEN PRINCIPLES OF NATURAL
. it has been said. is onlv 'fair play in action''
frornParliament.fhecommonlarvhasaburrdarrtriches-.:thererrral.rr.efirrd JUSTICE AND ARTICLE 14
lao"'-ir
what Byles, 'l-, .off.J 'the justice of the commou
In (Jnion of Ind1,a u. Tuls1ram Patelss Supreme court discussed the
- The aim of the rules of nat.ral justice is to secure justice or to put rt
only relationship between the principles of natural justice and Article 14 of the
justice' These rules can operate
negatively to prevent miscarriage of t'ords they do not Constitution and observed-
in areas not covered uv ,rrv taJv valiJly made. In other
supplantthelawofthelandbutsupplementit.Theconceptofnaturaliustice The principles of natural justice are not the creation of Article 14. Article 14
years' In the past it was is not.their begetter but their constittrtional guardian. Principles of natural
has undergone a gr.x d"tl of change in recent
(1) no one shall be a judge justice trace their ancestry to ancient civilizations ind centuries long past.
thought that it incluJed just two ruies namely Until about trvo centuries ago the term "natural justice" rvas often used
inhisowncase(Nemod'ebetessejud,erpropriacausa)arid(2)rrodecision
him a reasonable hearing interchangeably with "natural law" and at times it is still so used. The
shall be given against a party without tif-aittg expression "natural law" has been variously denned. In Jouti.tt's DictionarE
(aud,i alteram porte,nl' Vt'y "oorr thereafter
a third'rule was envisaged and of English trau, (Second Edition, p. l22l) it is defined as "rules derived
held in good faith' without bias
that is that quasi-judicial enquiries must be of years many more
from God, reason or nature, as distinct from man-made law". Black's Law
and not arbitrarily or ,,"'"u'"o"ably' But in the course Dictionary (Fifth Edn., p. 925) states:
subsidiary,.'.l"."'*.tobeaddedtoth"rulesofnaturaljustice.Tillvery "This expression, 'natural law', or jus naturale, was largely used in the
recentlyitwastheopinionofthecou|tg.thatunlesstheauthorityconcerned philosophical speculations of the Roman jurists of the Antonine age, and was
to .act judicially there
was required by thJ law under which it functioned intended tO denote a system of rules and principles for the guidance of human
wasnoroomfortheapplicationoftherulesofnaturaljustice.Thevalidity conduct which, independently of enacted law or of. the systerns peculiar to any
of the rules of natural
of that limitation is now questioned. rf the purpose one people, might be discovered by the rational intelligence of man, and would
justiceistopreventmisca.rriageofjusticeonefailstoseewhythoserules be found to gpow out of and conform to his nature, meaning by that word
enquiries. often times it is not his whole mental, moral, and .physical constitution. The point of departure for
should be made i""ppli;i; toia*ini"tratiYe this conception was the stoic doctrine of a life ordered "according to nature",
easytodrawtlrelinethatdemarcatesadministrative.enquiriesfromquasi- 1r'hic[ in its turn rested upon the purely supposititious existence, in primitive
judicialenquiries.Enquirieswhichrr,ere.consideredadministrativeatorretilnea just times, of a 'state of nature'; that is, a condition of society in which men
are now U.ir,g as quasi-judicial in character' Arriving at universally were governed solely by a rational and consistent obedience to the
"orr.id;ted needs, impulses, and promptings of their true nature, such nature being as
decisionistheaimofbothquasi-judicialenquiriesaswellasadministratir'e
enquiry rnaY han'e more far
enquiries. An unjust decision in an administrative yet undefaced by dishonesty, falsehood, or indulgence of the baser passions. In
enquiry._As observed by ethics, it consists in practical universal judgments which man hirnself elicits.
reaching effect than a decision in a quasi-judicial
of Kerala and ors'55 These express necessary and obligatory rules of human conduct. which have
this court \n suresh Koshy George u. in"" uniuersitgThese rules cannot be been established by the author of human nature as essential to the divine
the rules of natural justice are not embodied rules'what particular rule of purposes in the universe and have been promulgated by God solely through
confined within a strait-jacket of a rigid formula.so
depend to a great extent human reason."
natural justice should apply to a given case must
There are certain basic values which man has cherished throughout the ages.
orrthefactsandcircumstancesofthatcase,theframet'ork-ofthelanvunder But man lookecl aborrt him and found the rvays of men to be cruel and unjust
whichtheenquiryisheldandtheCo"ttitotio"oftheTribunalorbodyof a and so also their laws and customs He saw men flogged, tortured, mutilated,
persons appointed f* purpose' Whenever a complaint is made before
the court made slaves, and sentenced to row the galleys or to toil in the darkness of the
'fttt ol
court that some principlt justice had been contravened
mines or to fight in an arena with wild and hungry beasts of the jungle or
"*tttttl
54 Id. Para 9.
57. Id. Para 19.
DO I\{ANU/SC/0368/1e68. 58. (1985) 3 SCC 398.
bt) IJnion oJ Ind'ia rt. P'K' Rov AIR 1968 SC 85O'
 l* .l
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, I fgZ Textbooh on Administratioe Law
<levelopedt}renrintogenerallegalprirrciples,whichcametoformTusgentiunl
that any
lingering death' He found iudges
to or the larv of natio.I. In doiirg so they acte4 upon the pri.ciple
to die in othei ways a cruel' horrible and tL rJ*t they administered to be ruleoflalr,whichwascommontothenations(gentes)theyknewofrrrustbe
be venal and servile to those i" po""'-Jt'J fundamentally just' They
capr icious, i,'g ffi ;! :*:
i* j;j':":.' ;"'jrlj-J.
:: "ii"li;tIl"l ; basically i' consonance with reason and, therefore,
applied jus gentium to those to whom ius ciuile (civil law) did not apply' that
"r,..,g .
and a foreigner'
;: i'J"i"i;';;''ii, igl "n"t1 admiringrv of is, iu cases between foreigners or betrveen a Roman citizen
$ili'lii:'3'j"+:lJ.::".'T
n"r'"emenid clyn;; 1'nL rit"t Empire) in On this basic formulation that what was common to all knorvn nations must
jurists and Magistrates
the legal system "J"it'l- laws of the Persians with reason and justice, the Roman
t"""tg the 'Persian be in consonance
which ,,a royal comma'drnent" ,"* "*'iiii"" a"d towns sacked and proceededtotlretheorythatanyrulewhichinstinctivelyconrnandeditself
and the lr'fedes, that it be not altered"'
il;;; ciiie" jus gentium' T1'e
and condemncd to slavery - to the sense or 1rr"ii"""o.rd ,eu,so' would be part ofwethe
pillaged, ttt i. pofttioce dragged into captivity girls to concubinage, and the voung jus gentium of the Romans was diffcrent fron what call international law
the men to r"u".irl ti; ;;;;; and rhe
andshorrldnotbeconfusedwithit,forthescopeoftllejusgen'tiumwas
boystobecastratedintoeunuchs-rnzj.-""rycrimeb-eingthatrulerhad
and to io"" ott" of his cities
or towns muchwiderthanourirrternationallaw.BecauseofthetheoryofitsidentitY
the misfortur" ," iJ i.r."a"a in battle -tton" laws or " with justice and reason, the term "jus gen'tium" came
at times to be used
h"P - -T^11-made which was the
to the enemy' Thus, there was neither were one-sided
-""1 and oppressive' intended to for oequitas. that is. equity as understood by the Romans'
q'here
man-established customs for they to subjugate the downtrodden basis of praetorian il ;, thu po\"". of the praetors to grant remedies
benefit armed might and monied oo*..-^""J help to Le found or anv hope none existed under the ius ctilte. In the Dark
Ages the expression "natural
poor arrd th" h";1t';"1""ta"'?it'"''".;;;;v law,, acquirea a tneotogical base and the Fathers of
the church, particularly
basld on justice and reason u'hich
to be discov"t"i:;;";;;l"rv r" aoflarv rnan' a law made b;' someone
greater st. Ambrose, st. augu"stine and st. Gregory, held the belief that it u'as the
transcended tftu i*" at'd customs approximation of
men who.*"a"-'arr""" laws and
established these function of the ch;h to bring about the best possible
the Dark Ages
and mightie, tt"""it".. being and such a law could human Iaws to christian principies. As Europe emerged from
customs. Such a person could only
b";Ht;
ff;:;';;; ra* or ;;; meaoin! therebv "certain rules inabouttheninth."",".v,Christianitybecanresubstitutedforreasonastlre of a theory
only be "natural are binding upon all mankind"' supreme force in the uniierse; and this led to the Sevelopment force and
of conduct supposed to be so :n"t trr"i-ineyof "the law of 'the iungle" where of law in which Christianity had the supreme spiritual and.legal
i" tfr. """"1
It was not *the-I-alJ oi rrJrrr",,- the the authentic expositor
aigo T".d. upon the anteloPe because
the was superior to all other laws, with the Church as
the lion devours the lamb aDd ofthelawofnature.Gratian(FranciscoGraziano)inthe.twelfthcentury the
Iionishungry"'Jir."i'*"rfamisheJbutahigherlawofnatureor..the
Iie iown ' 199:tho and the tiger in bis "Decretunt' or "Concordia d'iscord'antium canonum" considered
natural lanv" where the lion and the:la;; lawofnatureaspartofthelarvofGod.AccordingtoSt.TlromasAquirras
frisks with the anteloPe (tlZA-211, natural law was derived from the law of God which
was suPreme
nature of man"
\Iost, if not all, jurists are -agreed that "reas3n" '""d^::l: andsucllofitaswasintelligibletomenwa^srevealedthrorrghClrurchlaw
about the nature and
constitutethefountain.hea<lofnattrrallawbutthereisaconsiderabledivergerrce astheincorporatiorrofdivine"wisdom.Thus,accordingtothistheory.natural
them as u't"o ''*oJs"ip"rtil"*ott*s lawwastlratpartofdivirrelawwhichrevealeditselfinnaturalreason,arrd
of opinion
"*o'["t t"*, ..O-t"'t* the ancient man as a reasonable being applied this part of divine
I": .t" human affairs'
meaning rhj;";;'""ri"-tr. *f^.tio.r'i" positive"Logic" and "Ethics"' and
This theory, though it u;held the suprerne authority of the Holy Rornan
"f trl" ir".ti;;-;" the Church' made
Greeks the Sophisrs, Aristotle ir. that is,
theStoicsdevelope<Idifferenttheories.ThetheorypropoundedbyAristotle some concession ti the authority of the Emperor,
poioi view of the sophists' the supremacv of the
in his .,tro9i""";:;*".;J ".J"tu,rrti"lly"to-trr" "r with reason' Later' Emperor. Dante in his "De Monarchia" championed
i"
tn, "i"o endowed
namely. that man is a natural creature legal or HolyRomanEmpireasagainsttheChurchonthegroundthattheEmperor
in his "Ethics", Aristotle came to ,rr",. distinguish betwgen. natural and was the legitimate of the Roman people and was chosen by God
tri*ral laq' had authority everywhele ",,""""Jo'
to- rule the world. ihe authority of the Ia$'
of nature or natural law was
conventional justice and postulat"a given
and was discoverable by the *"" of ,.ujo. ih. .o"iuttt Romans were not repeatedly sought support from during- the centuries which saw the struggle
i" Article Thev preferred popes and the General councils of the church and
to philosophical speculations or
()tt";"';;;i;ttity practical for supremacy betwe# the
to borrow ttte"" r'o* the Greeks- T;; R;;;"" *t" " hard-headed' jurists' therefore' betweenthePopesandtheEmperorsandlaterinthestrugglebetweenthe
t"gi"t"'ors' Roman
race of conquerors' administrator" ""Jjr, -i',n noturot" or ius naturale as the CatholicsandtlreProtestants.Bothsidesintheseconflictsfoundinnatural
used the concept of natural r"*, tnJt
or 'J' in it) to Iawtheinterpretationofscripturaltextswhichsupportedtheirrespectiveviews
no letter
Romans wrote it because Roman "foi"U"i of !1d "J' of foreigners' andwere,therefore,accotdi"gtothem'thetrueinterpretation'Bracton'irt
and customs
introduce into the body of la* tho"e'pa.ts came in commercial contract or
las"s the thirteenth ho*e"Jt, considered natural law as that which nature'
with whom they ""ntt,'y,
thatis'God,teachestoallanirnals,andthoughhetriedtoreconcilenatural
that is,
"""-R;;;;;ople
whomtheysubjugated.Theruleswhichttre"RomansborrorVedfromtheselaws
and customs were those which were
;";;tb of general application and they
 t':a
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ffSa Textbooh on

parties shall put forth their legal arguments before a neutral third party
lawwitlrhumanlaw.heacknowledger|the<lifficultyofdoing.sobecausehe
notaiv be so reconciled-se judge who after hearing the legal and the factual arguments of both the sides
- found rules
"f
o";;;"'j;;"*'t'itn "']"ra and after perusing through the evidentiary materials will give his decision
after appl-l'ing his rationality and principles of law to the facts and issue of
the case. Thus the adr-ersarial model is essentialll' dependent on the two
as being
The principles of natural justice have thus come to be recogrrized
-contained of the neq' and
a part of the g""to"t"u irr i*i"f" i4 because which pillars of independeut and rreutral judge on one hand and providing hearing
dynamic irrt".pt"t"1io"";j";; ;y tni"
C"ttt'io t}t" "o"""pt -of 'equality thus: to both the sides on the other hand. The importance of these principles can
- is the subje"t_*.ri"l"o? that a.ticle. sr.".trv nut, !h_e syllogism runsis the be traced from ancient to modernity through the medieval period- In Union
violation of a rule of natural
justice t;""ft in arbitrariness which action'
is the result of state of India u. Tulsirarn Patel62 it was observed-
same as discriminationl where discrlmin-Jon of a principle of natural
it is a violation of Article 14: therefore,-"-"i"r"ai"" Hou'thenhavetheprirrciplesofnaturaljusticebeeninterpretedintlre.courts
a process
justicebyaState";;;isaviolationofA..i"l"14.Article14,however' and within what Iimits are they to be confined? Over the years by
is .,ot the sore ,;":;;; :t lT !i:Tt*Jj ffi:llJ",T:? J,i1.";,i::; ofjudicialinterpretatiorrtworuleshavebeenevolvedasrepresentingthe quasi-judicial
-+i:T:fi"$;: to legislation principles of natural justice il] judicial process, including therein
however, appry not onrv a fair
5J"" ;,"t"i,,,,,,,,,,,,,,,,,x;i1":,':::
or body of men' not and administrative iro"."".". Tley constitute the basic elements of justice
and State !11 ti* *ttutt- any ttibunal' authority I'ith dutv hearing, having their roots in the innate sense of man for fair play and
".tio"
coming within tnJltfi"iti"" of Sta;e
it-;;i;" 12' is charged justicetherequrre which is not the preserve of any particular iace or country trut
is shared in
of deciding " *;;-i; such a case, the principles of natural
commonbyallmen.The.firstruleis,,n'ern'ojuderincausasud'at.,rlemo
that it must decJe such matter fairly
and impartially'6o d,ebet esse ju4et in propria ca,Llsa,, as stated in t1',.e Earl of Deiby's
case63

that is. "no man "ttott U" a judge in his own cause"' Coke used thejuder form
principles of natural justiceol- in propria quia non potest esse
Traditionally there are two core "aliquis non d,ebet esse jud,ex calLsa,
judge in his own
(a) Aud'i alteram partem or Right of
Hearing- et iars" (Co. Litt. 141-;), that is, "no man ought to be a time be a party"'
cause, because he car,nof'act as a judge and at the same
o No one should be condemned unheard' Theform,,nemopotestessesirnulactoretjudex',,thatis,..noonecanbe
sides must be heard
o Hear the other side or both the atoncesuitorandjudge],isalsoattimesused.Thesecondrule-andthatis
o There must be fairness on the
part of the deciding authority the rule with which *i ... concerned in these appeals and writ
petitions-is
of both the sides a reasonable ,.audi alteram partem", that is, "hear the other side". At times and particularly
It implies that the judge myst^ givettt"parties
j"ast and only thereafter the judge in continental countries the form "aud.ietur et altera pars" is used, meaning
opportunity to p"i-tn"it lase before iindi"ate the rights of the otller verymuchthesatnething.Acorollaryhasbeendeducedfromtheabove
would impose a penalty on one p..ty-and two rules and particula.ly th. audi alteram partem rule, narnely, "qui'aliquid'
*[i' statuerit, parte t'naud'ita alte'ra aequurn licet dixerit' hand oequum fecerit"'
callsaor Rule against Bias-
Nerno d,ebet esse judet in propri'a tlratis,..hewhoshall<lecideanythirrgwithouttheothersidehavingbeen
o No one shall be a judge in his own heard,althoughhemay-havesaidwhatisriglrt'willnothavedonewhatis
cause'
the one and the same time as part right,, (see BisweII .oi.un1 or, iu other words, as it is now expressed, 'lustice
o No man can act as both 1t should not only be done Lut should manifestly be seen to be done".
or a suitor and also as a judge'
The above two lrles and their corollary are neither new nor were they
the
o Deciding authority must be fairness
on the part of the deciding
discorery of English judges' They were recognized in many civilizations and
judge to be
authoritY'
judge shou-Id fe an independent and over many centuries. Rtt"an lat' recognized the need for- a
It implies tnai ln a dispute the process' a personal
impartial and not to have ..Dialog,rrs" interest in the case before him (Digest
fairness in the adjudication
neutral third party in order to en"url basis of an adversarial legal system' his referred to this principle. under Roman
v.i. rz; and Tacitus in
a's on
These principles firm the foundational la* a .judge who heard a cause in which he had an interest wa^s liable
The adversarial legal model i" u"".J
* the core ideals that the litigating * q,rrri-duli"t to the party prejudiced thereby (Justinian's Institutes IV 5 pr';

59. SuPra note 58'

62. (1985) 3 scc 398.

60. Id. Para.95.

ffi.(1613) 12 Co ReP 114'
61. AIR 2011 SC 3711 : 2011 (6)
SCALE 97 64. (1606) 6 Co RcP 48-b, 52-a
 .l
I Quasi-JudkialFurtctionsandPinciolesofNaturalJustice|87,I
'-tgC
rl Textbooh on Admfoisrdtbe La@
thefamouscaseofDr.Bonham(1610)ChiefJusticeCokehadobserved
the Kiganda tribesmen of Buganda judge
4s also Justinian's Cod'ex III'
5' 1)' Even not decide that an Act ol Parliament rvould be deemed void if it 'made a man
have an ota pro',t'r' Jiit'ii1*triv
ita"sltJ meais "a monkev does E'S' Haydon' in his orvn cause or \,\'as against cornrnon right and reason''
in by
an affair of the forest" (See Law and' ly'ttl''"
Bugand'a
sia"s before arriving at a decision In modern day the theory of natural justice has found its application in
p. 333). Tl.. r.q.,i'.lil.rri-oi t"o.irrg uoth;";;; iot*"d the subject-rnatter of
a.newrvaS'.Theprirrcipleofnaturaljusticedoesnotimpll'destroyinganl.
was part or tn" .i"ai"iol oath in Athens'
enacted law but as a means of fulfilling its true objective. It also
plavrvrights' as helps
quotecl b1' Greek
to or -in"
a proverb *hi"h ;;; ;ften referred
Un-"pt and in his
for instance, by Aritophanes in his c*J' for instance'
-E^uripides inmakingbetterinterpretationoflaws.Courtsgenefallypresumethat
Parliament when it grant" powers intends them to be exercised in a
and by Greek orators' right
tragedies w"'o't"l'io"""^iii"i"i'"*"a'"'
Among the Romans, seneca in
his provision to
Demosthenes in his speech De corona. and proper way. Since Parliament is very unlikely to make
to a decision without a full a of
tragedv Medea'"to'ui to the injustit" "i;;;-i; a line in the ct'trary it allows considerable scope for the courts to devise set
in- BJ"""lir,ot" is taken-from to of the time'
hearing. In fact, ti" ""Jr"tv drawn to S'' John Nicodemus ca,nons of fair administrative procedure, suitable the needs
Seneca's Med'ea' I; il"-c;pel
according fair
p'i""tJ-""a it't Phariseei' "Doth our' Iaw
'(vii''51)'
judge any Inan' The courts have used the natural justice principles to develop a code of
asked the the proverbs and songs administrative procedure. The fundamental task of coirrts is to control the
"ti"f h3 J"*nf" Even
before it hear him, and know what Ba_rotseland refer to of'the rules relating to
or tn iori tribe in substance of what public authorities do by means
of African triuu"-uri, io.*ii"i.rr"", of natural
this rure ts'" rn)Ta;:;";;;';;;; i''""g tn' Barotse of Northern Rhod'es'ia reasonableness, improper purpose etc' By applying the principles
by Max dluckman, P- 102)' justice they can contiol the procedure by rvhich the public authorities act'
the
are neither new. nor were they In modern day state the principles of natural justice haVe an important role
The above two rules and their corollaryrecognized in civilizations and
were toplayinthenumerousdiscretionaryadministrativepower.Themorethe
discovery of English jud'ges' They 1an;r
the need for^ a judge to be
over many centuJs' R-oman r"* tt<:os"i;J (Digest po*.r-of the state it is all the more essential that such powers are exercised
impartial ""a "* ti'f'""" " pt'"ot'"f
i"i"tt"t in the case before him Roman in a p.o.ed.,rrally fair manner. This is because it is deemed that continuous
*i"""a to this principle- Under procedure used in
V.I. 17) f""it"""i" f i" "p'olog""' as on increase of state power can be tolerated by people if the
which he had an interest was liable pr';
Iaw a judge *h"";;;-;-cause ii
"na power is fair. The judiciary has developed new facets
(Justinian's'Institutes IV' 5 the exercise of such
a quasi-delict to ;;;;v prejudiced-t;;*by
i 1)' E; t-li. Kigt"dtmonkey tribesmen of Buganda of principles of natural justice to comply with the norms of fairness and
as also J,r"ti.ia'ibJJ"Jrir'
' tiirie an old proverb which literally tt"""i"tJ-L;;;" "" does not decide have applied them to judicial, quasi-judicial and administrative
actions'66
in by E'S' Haydon' the
an affair of the forest" (See t'o. ona-t"tice
Bugand'a
at a decision- The case of A.R. Antulag a. R.s. NagakoT is landmark case wherein justice
ft"*1"g uottt sides before arriving the importance of principles of natural
p. 333). lr'u the subject-matter ot supreme court recognizing
was part
'"q"i"#""1*"! in Athe.rs.
th";l;";l:orth It also formed
invalidated an earlie-r orde, puss.d by themselves as the order
was made
to ot quoted bv Greek plavwrights' as
a proverb"f*hith':;;^-;f;-1"i"""a 'The Wa-sp-s and Euripides in his contrary to the norms of fair procedu.e. In an earlier proceeding
the Supreme
for instance, by Aritophanes in his made against
";"O"ind by Greek orators, for instance' court had passed an order stating that the corruption charges
tragedies n"ro"tuiio"'arrd And,rom,ache, a-""! the Romans, seneca in his theappellantundertheprovisionsoftlrePreventionofCorruptionAct
Demosthenes in his speech De coron".
tragedvMedeat;i;';;totheinjusti""-"i""*rtigtoadecisionwithoutafull will be heard by a Judge tf tn" High Court on a day to day basis' These
in'-go is taken from a line in directions were issued without any pleadings or arguments and
without giving
hearing. In fact, the corollary aru.*., "-"ti
to "ot"
St' 51)' Nicodemus An appeal was
Seneca's Medea" In The Gospel ""-'aiog
John any opportunity to the appellant to make his submissions.
"Doth our '(vii'
law' judge any man' on the ground that under Section
asked the chief priests and the Pharisees'
-a".ih?" *oae .g.ir.st such orders tl' tfr" appella't
n Even the-proverbs and songs pre'ention of Corruption Act the State Government is required to
before it hear him, and know *rr"t tribe in Barotseland refer to 6 of the
of African tribesmen' for instance' oitf'"-f'o'i appointSpecialJudgestodealwithtllespecifiedoffencesundertheAct,
tht Bo'ot"" of Northern Rhodesia
this rule f"." lii" i'aitlol P'o""" 'a'**g hence the supreme court by its power to transfer cases
could have only
t5e Act and not to
bY IUax dluckman, P' 102)'65 transferred it to anothe, Spetl.l Judge appointed .nder
InmedievalEnglandthesanctityoftheprinciplesofrraturaljusticewere
ft"* violating the same' In
so high that even Parliament *"" ;;;i;it"a ffi,bleJut1gesInquiryCotnlnittee,AIR2o11SC3711:2ol1
(6) scALE e7.
67. AIR 1988 sc 1531.

65. Ibid Para 84 - 86'

I
1IlN.8 Textbooh on Administratiae Lazo
v
t
I
the High Court. In addition, the order of the Supreme Court traDsferring
the case to the High court was not authorized by law and the Supreme
Court did not have the power to confer jurisdiction - the power to create
or enlarge jurisdiction is legislatir-e in character and it is Parliarnent alone
which has the po\ €r to confer a right of appeal or to take a\\'a)- a right of
in
appeal. The appellant had clairned that the passing of such orders were
of natural justice
violation of Articles 14, 19 and 21 and also the principles
as the orders were passed without giving any opportunity of being heard'
The various rights infringed by the order are-
(i) Right to be tried by Special Judge in accordance with the procedure
established by law;
(ii) Right of revision to the High Court under Section 9 of CrPC;
(iii) Right of First appeal to the High Court; and
(iv) Right to. move Supreme Court under Article 136 as a second
appeal.
Upholding the contentions of the appellant the Supreme.court observed
that-
We are clearly of the opinion that the right of the appellant under Article
14
protection of law in this case has
the law and equal
regarding equality before
been violated. The appellant has rtso . rlghf not to be singled o't for
special
in
t..rt*.rrt by a Speci*t Court created for him alone. This right is implicit
the right to equality. See Anwar AIi Sarkar's case (supra)'
Here the appellant has a further right under Article 21 of the constitution
a "'t".I
right to trial by h Special Judge under Section 7(1) of the 1952 Act which is
the procedure established by law made by the Parliament' and a further riglrt
to move the High Court by way of revision or first appeal under Section 9
of the said Act. He has also a right not to suffer any order passed justice' behind
his back by a court in violation of the basic principles of natural
Directions having been given in this case as we have seen without hearing the
passed
appellant though it appJars from the circumstances that the order was
in the presence of the counsel for the appellant, these were bad'68
The directions were in deprival of constitutional rights and contrarl' to the
express provisions of the Act of 1952. The directions \l'ere given in violation
of the principles of natural justice. The directions were without precedent in
the background of the Act of 1952. The directions definitely deprived the
appellant of certain rights of appeal and revision and his rights under the
Constitution.6e
68. Ibid Para 57-58
69. Id. Para 77.
1
Quasi-Judicizl Fanctions and PrinciPles of Natural
.t.
[ustice 189'7': '
, The court concluded by holding that the pTinciple of Ji,nality on tuhich
t the Article proceed,s applies to both jud,grnents and orders made by the
t Supreme Court. But d,irecti,ons giuen pe|incuriarn and in uiolati'on of
certain constitutional limitations and in derogation of the principles of
natural justice can alwaAs be remedied bg the court et debi'te justitiae'
5.6 RULE AGAINST BIAS
The term bias .refers to 'a predisposition to decide for or against one party'
without proper . regard to the true merits of the dispute'.7o Speaking on
the importance of rule against bias Lord Denning had made the famous
observation ,justice n-rust be rooted, in confidence; and confidence is
destroyed, uhen ri'ght-mi,nd'ed people go alnag thinki'ng: 'The judge uas
b'iased.'
The traditional English law of rule against bias is based on three
maxims-
(i) No one shall be a judge in his own cause;
I (ii) Justice should not only be done, but manifestly and undoubtedly be
I seen to be done; and
I
(iii) Judges, like Caesar's wife should be above suspicion'
These principles form the basis of a fair and impartial judicial system.
:
I
Article 14.1 of the International Covenant on Civil and Political Rights has
I
insisted that ,everyone shall be entitled to a fair and public hearing by a
I
I
competent independent and impartioJ tribunal established by law-' The term
I
,impartiality' has been explained by the UN Human Rights Committee as
I
imjtying lhat jud,ges nTust not harbour preconcept'ions about the matter put
b"jore ihem, aitd, ... they must not act in u)aAs that prornote the i.nterests
of one of the parties ... A trial flaued, by.the part'ici,Ttation of a judge who,
und,er d,ont,estic statutes, should. haue been disqualifi'ed cannot norrnallg be
consid,ered. to be fai,r or i,mpartiat within th'e meaning of Article 1l' The
appearance of justice is an essential ingredient of actuali,ty oJ justi'ce because
the foundation of a judicial system is based on appearo'nce of impartiality
both to the public and to the cornmunity'
ln Justice P.D. Dinakaran u. Hon'ble Judges Inqu'irg committee''
explained these propositions in the following rvords-
The first requirement of natural justice is that the Judge should be impartial
and neutral and must be free from bias. He is supposed to be indifferent to
the parties to the controversy. He cannot act as Judge of a cause in which
70. Secretaryto Gouer-nment, Transporl Depar"tment tt Munustaarny Mud,aliar, 1988 (Supp')
SCC 651.
71. AIR 2011 SC 3711 : 2011 (6) SCALE 97'
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i.f f9O Textbooh on Ad'rninistrative Lazo (

or otherwise as it affords the

I that the presence of Naqishbund had not influenced their decision making.
he hiurself has sorne interest either pccuniary
?
judicially I Supreme Court negated the atgument and observed-
strongest proof ag*i""t neutrality' He
must be i" a position to act ?

e*Jrlag" must stuff' His

and to decide the matter objectivel5''
firm
-and 'be lf-'"t"tt"t
undetected. He should not i In a group deliberation each membcr of the group is bound to influence the
mental equipoise *r"i- "r*""" ..*oin The ob'iect is ( I
others. more so. if the member concerned is a person \\'ith special knowledge.
ihe
allow his personal prejudice to go into it is also that thel' rl]av not appear
decision-making' t His bias is likely to operate ir-r a subtle rnanrler. It is no rvonder that the
tt at the-"cales be helcl even: other mernbers of the selection board are ulla$tare of the extent to which his
not merely
bit" in favour of or against either
- to be inclined' If the Judge is subject ;t t;; bias can be .a'ssumed' he is
opinion influenced their conclusions. We are unable to accept the contention
party to the aispuie or is- in a positio; " be vitiated' This rule that in adjudging the suitability of the candidates the members of the board
disqualified to t 'l"agt' and the o'""""ai"g" willrequirecl to act judicially
{ did not have any mutual discussion. It is not as if the records spoke of
"<:t*""
applies to the judicilf l"J "?*i"irtmtlt'.
oWio.it"ies I
themselves. \ve are urrable to belier.e 'that the members of selection board
or quasi-judiciallY" " fuuctioned Iike conrputers.To
f
Therealquestionisnotwhetherapersonisbiased-ornot.Itisdifficult
There must be reasonable ground
I
to prove the state of mind of t p"t"oi"' { 5.8 TYPES OF BIAS
for believing that a person was likely
io have been biased' \4ere suspicion I Bias can be of different nature. The different forms of bias have adopted
ofbiasisnotsufficient.Theremustbereasonablelikelihoodofbias.The
consideration of human probabilities
different standards for disqualifying a person to act as a judge-
test of bias shouti'i.- i*.a into taken
I
I

and ordinary cqurse of human conduct' I

5.8.1 Pecuniary Bias
issue of bias was A'K' Kraipak
a'
One of the earliest ca'ses on the was also appointed Pecuniary bias or interest, however small, disqualifies a person from acting
(Inion of India-73 Naquishbund one of the applicants as a judge.tt Arry form of financial or proprietary interest in the outcome
as a membe. or th" sir."aion board.
snpr.*.- court negating the selection
process held trrat
iii i' ogotn't aII canons of justice to make a nlan judge of a case. rvill be interpreted as sitting as a judge in his own cause and
observed- will be sufficient for his automatic disqualification'
i'n h'i,s ou)n cartse'' The Court categorically In The Queen u. RandTE the core issue was whether two of the judges who
Itistruethathedidnotparticipateinthedeliberationsofthecommittee was a member were trustees of a hospital and a charitable society respectively, each of q'hich
when his ,t"*" *L..tl"J;tia' B;t the;--the very fact that -he decision of the
iinpact on had lent money to Bradford Corporation on bonds charging the corporate
of the selection board must have ir.a'"it"-o*"
h;";;#ed in'
the deliberations of
the fund, were disqualified to act as judges in the case involving issuance of
selection board' Further admittedly tri" rivals particularlv that of Basu
the selection board when the claims certificates in favour of the corporation for withdrawing water without
"i of the list of selected
was considered He was also pr.ty toln"-p."p*"rt-o"- in the authorization from the mill owners. Negating the contention Blackburn J
candidates in order of preference.
At-;;y'stage _this.participatio'
of
his interest laid down the test of pecuniary bias-
deliberations of the selection board
th"r" ;* ; conflict between he could
and duty. under those circumstance"'ir-
i. Jifficult to believe that ... There is no doubt that any direct pecuniary interest, however small, in
havebeenimpartial.Therealquestionisnotwhetherhewasbiased.Itis to the subject of inquiry, does disqualify a person from acting as a judge in the
a person' Therefore what we have to
difficult to p'olt" tl" "t"tt of *it'a oi that he rvas likely matter; and if by any possibility these gentlemen. though mere trustees, could
see is whether there is reasonable
g.;;;';r believing have been liable to costs, or to other pecuniary loss or gain, in consequence
have been biased'74 of their being so, w.e should think the question different from what it is:
for that might be held an interest. But the onlv rvay in which the facts
could affect their impartiality' would be that the5' might have a tendency to
5.7 SUBTLE FORM OF BIAS
favour those for whom they were trustees; and that is an objection not in
question was whether there the nature of interest, but of a challenge to the favour. wherever there is a
A.K. Kraipak u'(Jn'ion of Ind'i'd| an important
Irr
canbesubtlebias.Themembersoftheselectioncommitteehadasserted
76. Id Para 16.
72. ld. Para 25. 77. AIR 2O1r SC 3711 : 2011 (6) SCALE 97.
262'
?3. AIR 1970 SC 150 : (1969) 2SCC 78. (1866) LR r (QBD) 230.
74. Id. Para 15.
262'
75. AIR 1970 SC 150 : (1969) 2SCC
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cause' have each year and there was very rarely any change in the composition of the
kindred
real likelihood that the judge would' from "t
very"""-^:1h::
wrong in him to act; members of the Committees. Sorne of the rnernbers of the Assessment Sub-
a bias in favour of "* "f tile parties'
it would be
is a real bias of Committees u'ere themselves authors of books and some of the books rvritten
and we are not to be u'derstood to ""y;';;;
whete"there
but in the present case there is no by them rvere selected and purchased. The selection of books in the yea,rs
this sort this Court i-o"fJ rrot interfere; and the only 1980, 1981 and 1982 were Inade in that particr.rlar fashion. In 1982 due
ground for doubting that the justices,itt";*ft"tl:'bono !ldt1;
questionis'whetheiinstrictlaw'undertttthti'"tt*"tances'thecertificateof to unprecedented floods and cyclones many schools and colleges, including
- such justices i" "oii.'"".-ii would'te
if ttev rrJ. p""rrrriu.ry interest; and
we
their libraries vt'ere darnaged. The Central Government thereupon grantecl
- think that Reg' u'"b;;t'"t;;;;elt"te' (r\"is anaoauthoritv' that circumstances'
an amount of Rs 45 lakhs for purchase of books for libraries. Since it was
,rot prodn". the same effect
.from which a suspicion of favour *u." "ii"!, a time bound grant the State Government decided to purchase those books
as a PecuniarY interest"' which were selected for the previous three years. This decision of the Statc
on the core idea that any form Governrnent rvas subsequently challenged through a rvrit petition before the
The concept of pecuniary bias is based it would vitiate High Court by the appellants who were book publishers. The Appellants
.of financial .interest, including even a *ir,l""ot" amount then
tt"t'a""1' rot' of Enslan{e it has been clairned for quashing of the list of books selected for the years 1980. 1981
the administrative ;;;;;iltn* and 1982 on the ground of bias on the part of some of the members of the
observed-. Assessment Sub-committee whose books were submitted for selection. The
direct
There is a presumption that any person u'rit petition before the High Court was dismissed and an appeal rn'as made
Disqualificatio.n for financial interest', a
financial iRterest, l;; ;*"11, in the matter in dispute disqualifies to the Supreme Court. The Court upheld the claims of the appellants on
fromadjudic"ti"g'trl"*Uershipof""o*o'tu'tssocialionorotherorganization as may the ground of pecuniary bias. Applying the rationale in the A.K. Krai.pak
oper^te- as a bar to ddjudicating'
which is financially interested may itself will involve no pecunrary case t}:re Court observed that-
a bare liabilitv # ;;;;ot tt" iecision
loss. [A] person who has written a book which is submitted for selection, either by
of himself or by his publisher, is interested in the matter of selection. Authors get
The leading case on pecuniary bias
is J' Mohapatro E Co' u' Statethe their books published by publishers or may thernselves publish them. In either
prescribing
Orissa.so In Orissa there was no
statuto'y-"'i" o' regulation and case, they stand to benefit financially. In the first case, by getting royalty from
method for selecti'on of books fot
gt""'J '"tJi"g to be kept in schoolwould publishers and in the second case, by making profits on the sale of books if
practice ;;. ;il tie State Government the amolnt realized exceeds the cost of publication, or if the sales are not to
college libraries. The general in the form of Government that extent, by reducing the cost incurred in the publication of the book....
periodically i"""" taitinistraiive instructions
Resolutions constituting committees
t"a tty down procedures for selecting The amount of royalty depends on the agreement between the author and the
publisher as also upon the sale price of the book. The fact, however, rernains
books- As per three committees were to be constituted that by the books being selected and purchased for distribution to school and
"'"tt--"i""t-t"tions college libraries the sales of those books had gone up and correspondingly the
that the
committee. The procedurepurchase which *u."-*.rr"ru.Ily followed was
-Assessment.Sub-Committee,DistributionSub.CommitteeandPurchase
royalty received b1' the author-members also went up and such author-members
Coirmittee through advertisements thus receiverl financial benefit. It is no answer to say that an author-mernber
Member_secretary of the
innerr,spapu.".il"duponpublishersandauthorstosubmitbooksfor is only one of the members of the Assessment Sub-committee and that the
ultimate decision rests with the state Government which may reject any book
consideration.TheAssessmentSub-Committeethenconsideredtlrebooks out of the list of approved books. A sirnilar argument was rejected by this
submittedandrecommendedalistorbookswhichweredeemedsuitable
Thereafter the Puichase Court in Kraipak's case. Tlne State Government $'ould normal!- be guided by
for general ,""di;;";;-""t'oor ""a "ori"g" "i"J"tt"'
committee o*nii."Jtri"'lt;"i-l;J
u"""a on the recommendations of the to
the list approved by the Assessment sub-comrnittee. Further. to say that such
author-member is only one of the mernbers of the Assessment Sub-Comrnittee
Assessment S"b-;;;;ittee' The
State Government had the discretion is to overlook the fact that the author-member can subtly influence the minds
assigning any reason and the decision
reject a book from the Iist without of the other members against selecting books by other authors in preference to
of the state Government was final. Thii procedure was generally followed his own. It can also be that books by some of the other members ma;,' also
have been submitted for selection and there can be between them a quid pro
quo or, in other words, you see that my book is selected and in return I'will
volume 1, Para 68'
ffi*t^^Ttrt"t,
80. AIR 1984 sc 1572 , N'IANU/SC/0008/1984'

I
| 194 Textbooh on Administratiae Laztt
do the same for you. In either case, when a book of an author-member comes
up for consideration. the other members would feel tiremselves embarrassed
in frankly discussing its merits. Such author-member may also be a person
holding a high official positiorr rvhom the other members may not want to
displease. It can be that the other members ma]' not be influenced b1' the
fact that the book which they are considering for approval q'as w'ritten by
one of their members. Whether they were so influenced or not is' ho$'ever, a
matter impossible to determine. It is not, therefore, the actual bia^s irr favour
of the author-member that is material but the possibility of such bias- All
these considerations require that an author-member should not lre a member
of any such conrmittee or sub-comrnittee.
Mere non-participation in the discussion by the member concerned or even his
rvithdrawing from the deliberations of the committee while his or her book or
books are being cohsidered is not sufficient because the evil of quid pro quo
cannot be eliminated by this. Nfembers deliberating *'ould bear in mind that
the turn for selecti.ng their books would also come and the concerned member
who had not participated or had withdrawn would not then be favourably
inclined to select their books"sl
5.8.2 Non-pecuniary Interest
ln R. u. Bou Street Metropolitan stipend.'iary Magistrote ex parte Pinochet
(Jgarte the House of Lords applied the 'alter ego' theory as a ground for
personal bias. In.this. review petitign..the ground for seeking quashing of
the decision of the House of Lords on the ground of bias was whether the
presence of Lord Hoffman as one of the Lau' Lords and who constituted
the majority of the House of Lords, and who was also'a director and
chairperson of Amnesty International Charity Limited, was disqualified from
being party in the proceedings of an appeal in which Amnesty International
was granted leave to intervene. While dealing t'ith the revieu' petition Lord
Browne-Wilkinson held that there was no allegation that Lord Hoffman
was in fact biased, but the argument was that there was a real danger or
reasonable apprehension or susTticion that Lord Hoffman might haue been
biased. He clarified the rule against bias by observing-
The fundamental principle is that a man may not be a judge in his own
cause. This principle, as developed by the courts, has two very similar but not
identical implications- First it may be applied literally: if a judge is in fact a
party to the litigation or has a financial or proprietary interest in its outcome
then he is indeed sitting as a judge in his own cause. In that case, the mere
fact that he is a party to the action or has a financial or proprietary interest
81. Supra note 80
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Quasi-Judicial Functions and Pincioles of Natural Justice 195
|
in its outcome is sufficient to cause his automatic disqualification- The second
application of the principler is rvhere a judge is not a party to the suit ancl
does not have a financial interest in its outcome, but in some other rval' his
conduct or behaviour may give rise to a suspicion that he is not impartial, for
example because of his friendship rvith a partl-- This second t1'pe of case is
not strictly speaking an application of the principle that a man rnust not be
judge in his orvn cause, since the judge will not normally be himself benefiting,
but providing a benefit for another by failing to be impartial.
In my judgrnent, this case falls *'ithin the first category of case, viz. where
the judge is disqualified because he is a judge in his own cause. In such
a case, once it is shown that the judge is himself a party to the cause, or
has a relevant interest in its subject matter, he is disqualified without any
investigation into whether there was a likelihood or suspicion of bias- The
mere fact of his interest is sufficient to disqualify hirn unless he has made
sufficient disclosure: See Shetreet Judges on Trial (1976) p 303 and De Smith,
Woolf and Jowell Judicial Review of Administrative Action (sth edn, 1995) p
525. I will call this 'automatic disqualification'.
xxx xxx xxx xxx
The importance of this point in the present case is this. Neither AI, nor
AICL, have any financial interest in the outcome of this litigation. We are here
confronted, as was Lord Hoffmann,. with a novel situation where the outcome
of the litigation did not lead to financial benefit to anyone. The interest of
AI in the litigation was not financial; it was its interest in achieving the trial
and possible conviction of Senator Pinochet for crimes against humanity.
By seeking to intervene in this appeal and being allorved so to intervene, in
practice AI became a party to the appeal. Therefore if, in the circurnstances,
it is right to treat Lord Hoffmann as being the alter ego of AI and therefore
a judge in his own cause. then he must have been automatically disqualified
on the grounds that he was a party to the appeal. Alternatively, even if it be
not right to say that Lord Hoffmann was a party to the appeal as such, the
question then arises whether, in non-financial litigation, anything other than
a financial or proprietary interest in the outcome is sufficient automatically
to disquaiify a man from sitting as judge in the cause.
Are the facts such as to require Lord Hoffmann to be treated as being himself
a party to this appeal? The facts are striking and unusual- One of the parties
to the appeal is an unincorporated association. AI. One of the constituent
parts of that unincorporated association is AICL. AICL rvas established. for
tax purposes, to carry out part of the functions of Al-those parts n'hich were
charitable-which had previously been carried on either by AI itself or by AIL.
Lord Hoffmann is a director and chairman of AICL, which is wholly controlled
by AI, since its members (who ultimately control it) are all the members of
the international executive committee of AI. A large part of the work of AI
is, as a matter of strict law, carried on by AICL which instructs AIL to do

I Quasi-Judicial Functions and Pinciples of Natural Justice 197
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Textbooh on Administrative Lau't
the work on its behalf. In reality. Ai. AICL and AIL are a close-knit group
carrying on the work of AI.
However, close as these links are, I do not think it would be right to identify
Lord Hoffmann personalll' as being a party to the appeal' He is closell''
linke<l to AI but he is not in fact -A.I. Although this is an area in rvhich
legal technicality is particularly to be avoided, it cannot be ignored that
Lord Hoffmaru took iro part in running AI. Lord Hoffinann. AICL'and tl.re
executive committee of AI are in law separate people'
Then is this a case in which it can be said that Lord Hoffmann had an
'interest' which must lead to his automatic disqualification? Hitherto ouly
pecuniary and proprietary interests have led to automatic disqualification. But'
as I have indicated. this litigation is most unusual. It is not civil litigation
but criminal litigation. I\{ost unusually, by allowing AI to intervene, there is
a party to a criminal cause or matter who is neither prosecutor nor accused.
That party, AI, shares with the government of Spain and the CPS, not a
financial interest but an interest to establish that there is no immunity for
ex-heads of state in relation to crimes against humanity. The interest of these
parties is to procure senator Pinochet's extradition and trial-a non-pecuniary
interest. So far as AICL is concerned, cl (c) of its memorandum provides that
one of its objects is 'to procure the abolition of torture, extra-judicial execution
and .disappearance,. AI has, amongst other objects, the same objects. Although
AICL, as a charity, cannot campaign to change the law, it is concerned by
other means to procure the abolition of these crimes against humanity- In
my opinion, therefore, AICL plainly had a non-pecuniary interest, to.. establish
that Senator Pinochet was not immune.
That being the case, the question is u'hether in the very unusual circumstances
of this case a non-pecuniary interest to achieve a particular result is sufficient
to give rise to automatic disqualification and, if so, '*'hether the fact that
AICL had such an interest necessarily leads to the conclusion that Lord
Hoffmann, as a director of AICL, was automatically disqualified from sitting
on the appeal? l\.Iy Lords, in my juclgment, although the cases have all dealt
with automatic disqualification on f,he grounds of pecuniary interest' there
is no good reason in principle for so limiting automatic disqualification. The
rationale of the whole rule is that a man cannot be a judge in his own
cause. In civil litigation the matters in issue will normally have an economic
impact; therefore a judge is automatically disqualified if he stands to make a
financial gain as a consequence of his orvn decision of the case. But if, as in
the present case, the matter at issue does not relate to mone]' or economic
advantage but is concerned with the promotion of the cause, the rationale
disqualifying a judge applies just as much if the judge's decision will lead to
the promotion of a cause in which the judge is involved togethe.r with one of
the parties. Thus in my opinion if Lord Hoffmann had been a member of AI
he would have been automatically disqualified because of his non-pecuniary
interest in establishing that Senator Pinochet wos not entitled to Immunity'
Indeed, so much l understood to have been conceded by IvIr Duffy'
I
|
Can make any difference that, insteacl of being a direct member of AI,
it
Hoffmann is a director of AICL, that is of a cornpany which is wholly
. Lord
controlled by AI and is carrying orr much of its work? Surely not. 'Ihe
substance of the matter is that AI, AIL and AICL are all various parts of
an entity or movemellt u'orking in clifferent fields torx'ards the same goals.
If the absolute inrpartialit;' of the judiciarf is to be maintained, there must
be a rule which automatically" disqualifies a judge who is involved. whether
personally or as a director of a company, in promoting the same causes in
the same organisation as .is a party to the suit. There is no room for fine
distinctions if Lord Herx'art CJ's farnous dictum is to be observed: it is 'of
fundamdntal importance that justice should not onlS' be done, but should
manifestly and undoubtedly be seen to be done.
Similar view was taken by the Indian Supreme Court in' Bhajan Lal,
Chief i.[intster u. Jind,al Strips Ltd,.82 wherein it q'as recognized that the
decis'ion-maker slt,ould'haue no 'interest by way of gain or detrirnent 'in
the outcome of a proceeding. Interest rnay take n'LanV forrns. It may be
direct, it mag be.indirect, it may arise fron'L a personal relationship or
from a relationship'with the subject-rnatter, Jrom a, close relationsh'ip or
from a tenuous one. In the case of non-pecuniarg b'ias, as alleged in the
instant case, regard, is to be had, to the ertent and nature of interest.
Then alone, the judge. uill be disquali'fied.
5.8.3 Personal Bias
The first essential principle of personal bias is that if the judge is a party to
a litigation or is having some interest in' the.dispute then it will be deemed
to be sitting as a judge in his own cause. In such a case the mere fact that
of his presence will be sufficient to cause his autornatic disqual!fication.
In the landmark case of Ren u. Susser Justices, Er Parte McCarthyss
the core principle that justice should not only be done, but manifestly and
undoubtedly be seen to be done as an integral part of rule against bias was
laid down. In this case a collision had taken place between the applicant
riding a motor cycle and another motorcycle driven by one Whitworth,
wherein Whitworth and his wife suffered from serious injuries. In an accident
claim for damages filed by Messrs Langham, Son & Douglas on behalf of
\\rhitworth. the applicant's larvyer raised an objection to the imposition of
fine on the ground that the deputy clerk of the justices hearing the case
had retired with the judges after the hearing of the case. It wzrs argued
that the deputy clerk was a brother of N'Ir. F.G. Langham and was also a
partner in the firm Langham, Son & Douglas and so was interested as a
82. (1994) 6 SCC r9
83. (1924) 1 KB 256
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Textbooh Quasi-Judicial'Functions and Principles of Natural Jsstice 199 |

solicitor for Whitworth in the conviction of the applicant. It was further the evidence led against hirn. This is the barest requirement of an enquiry of
challenged on the ground that it was irregular for a deptlty clerk to
retire this character and this requirement rnust be substantially fulfilled before the
with the judges when they are deliberating over the decision. Quashing the result of the enquiry can be accepted. A dcparture from this requirement in
Lord Hewart c.J. raised the question of effect throws the burden upon the persorr charged to repel the charge without
conviction on the ground of bias first makirrg it out against him- In the present case neither was ans rvitness
"The qtresti'on therefore is tt'ot uthether in this case the deputy clerk made examined nor was any statement made by any witness tendered in evidence.
any obseruation or offered. any criticism uhiclr, he might not properly haue The enquiry, such as it rvas, was made by I\Ir. I\'{arshall or NIr. Nichols who
tnad.e or offered.; thi question
-to is whether he uas so related to the case \f,€re not only in the positiou of judges but also of prosecutors and q'ituesses.
in its ciail asTtect as be unfit to act as cle.rk to the justices in the There was no opportunity to the persons charged to cross-examine them and
criminal nt.atter." He further observed: indeed they drew upon their own knowledge of the incident and instead cross-
examined the persons charged. This wa^s such a travesty of the principles of
done but
...The answer to that question depends not upon what actually-wa^s natural justice that the Tribunal was justified in rejecting the findings and
uponwhatmightappeartobedone.Nothingistobedonewhichcreateseverr asking the Company to prove the allegation against each workman de novo
asuspicionthattherehasbeenanimproperinterferencewith.thecourseof beforc it.
justici. Speaking for myself, I accept the statements contained in the justices'
with
affidavit, but they ,hoJ .\r.ry clearty that the deputy clerk was connected Rattan LaI Sharma u. Managing Committee, Dr. Hari Ro'rn (Co-education)
it right that he should scrupulously abstain
the case in a capacity which made justices; Hi.gher Second,arg Schoolss is a land mark case on the issue of personal
from referring to the matter in arry way, although he retired with the bias. The appellant was the Principal of the Higher Secondary School
in other *o.i", liis one position was such that he could not' if he had. been
duties which his other position involved' His rvas suspended and charge-sheet was issued to him. One of the charge
required to do so, discharge the
In those circumstances I am rn'as that he had received Rupees L29.37 from ]\4r. Maru Ram on account
twofold position was a mlnifest contradiction.
satisfied that this conviction must be quashed, unless'it can be shown that of arnalgamated fund but the same !\'as not accounted for. The inquiry
the applicant or his solicitor wa"s aware of the point that might be taken' committee constituted by the school authorities constituted of three members
refrained from taking it, and took his chance of an acquittal on the including N'Ir. M. The appellant's objection to the inclusion of Mr Manu
facts,
and then, on a conviction being recorded, decided to take the point"" Ram n'as rejected. The inquiry committee found the appellant guilty of some
of the charges including misappropriation of Rupees 129.37 wherein l\4anu
.....In Meenglas Tea Estate u. Its Workmens4 Supreme Court reaffirmed the Ram had himself appeared before the committee as a witness in support
decision of the west Bengal Industrial Tribunal to re-instate the
workmen
in an assault of the charge. Based on their report the l\{anaging Committee dismissed
who were dismissed by the appellant. on January 18, 1956
the appellant frorn service n'hich rvas confirmed by' Deputy Cornrnissioner
were injured
with the workmen the il{anager and the two Assistant N{anagers
in accordance with Section3(2) of the Punjab Aided (Schools Security of
confrontation between the workmen and the managers of the tea estate'
they Service) Act, 1969. The appellant filed a writ petition before the High Court
The company had initiated proceedings against solne of the workers - challenging the dismissal on the ground of bias. The division bench rejected
were first issued a notice of suspension and were then served with charge-
the petition on the ground of waiver of rights, even though earlier the single
sheet charging them q,ith participation in the riot. After the enquiry
the
judge of the High Court had allowed the petition on the ground that one
workmen were dismissed from service. On appeal to the Industrial Tribunal
..vho appeared as a witness was also a urember of the inquiry committee-
it was held that the enquiry was vitiated for failure to comply with the The Supreme Court upheld the clecision of the single judge and held that
principles of natural justice. sup."m.-court upheld the order of the tribunal the act of dismissal t'as vitiated on the ground of bias. Applf ing the test
a,nd observed- of real likelihood of bias the Court observed-
It is an elementary principle that a person who is required to answer a
In the facts of the case, there was not only a reasonable apprehension in the
charge must know n.l only the accusation but also the testimony by which
mind of the appellant about the bias of one of the members of the inquiry
the accusation is supported- He must be given a fair chance to hear the cornmittee, nanrely, the said Shri I\faru Ram but such apprehension became
evidence in support oi th" and to put such relevant questions by way real when the said Shri N'Iaru Ram appeared as a vt'itness against the
as he "h".g.
desires' Then he must be given a chance to rebut
of cross-examination

84. AIR 1963 sc 1719 8s. (1993) 4 SCC 10.

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I Qoori-Jndi.iol Functiorc and P,i"iPle' of Notu'ol
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I
appellarrttoprovethesaiclchargeandthereafterproceededwiththeinqrriry
proceeding as a member of the inquiry committee to uphold the
correctness
of his deposition as a judge.
In ak a. Goa Lrniuersitys' the Suprerne court \\'as required to
G.N.A-ay
in
scrutinize the selection of the appellant as Professor of Nlarine science
the university of Goa. The appointment of the appellant was challenged
on several grounds, including [,i*. It was alleged that the selection
of the
appellant was vitiated on thl ground of bias. The Head of the Department
post of
of N{arine science had prior to the interview for selection to thequalities
Professor had written a note to the vice-chancellor extolling the
of the appellant.and requesting him to conduct the selection interview
on a
prioritybasis.Respond..,tno.5rr'asalsoan.applicanttothepostofProfessor
challenged the selection process on the ground that the presence
of the HOD
committee would vitiate the selection process
as a member of the selection
ashehadearlierpraisedtheperformanceoftheappellant.TheCourtin
this case distinguished between preference and bias and observed-
Biasmaybegenerallydefinedaspartialityorpreference.Itistruethatany
personorauthorityrequiredtoactinajudicialorquasi-judicia,Imattermust
act impartially. "If hJ*ever' 'bias' and 'partiality' be defined' to mean
the
totalabsenceofpreconceptionsinthemindofthejudge,therrnoonehasever
hadafairtrialand..ooo"everwill.Thehumanmind,evenatinfancy,is
noblankpieceofpaper.Wearebornwithpredispositionsandtheprocesses in
of education, fo.mal and informal, create attitudes which precede
reasoning
particularinstancesandwhich,therefore,bydefinition,areprejudices"'
Itisnoteverykindofbiaswhichirrlaq'istakentovitiatearract.Itmust
beaprejudicewlrichisnotfoundedonreason'andactuatedbyselfinterest
-whetherpecuniaryorpersonal.Becauseofthiselementofpersonalinter.est,
justice that no
bias is also seen o" ,.r- extension of the principle of nature
mansllouldbeajudgeinhisowncause.BeingaStateofinind,abiasis evolved the
sometimes impossiLle to determine. Therefore, the courts have
principlethatitissufficientforalitiganttosuccessfullyimpugnanaction from
by establishing a reasonable possibility of bias or proving circumstances
which the operation of influences affecting a fair assessment of the
nrerits of
the case can be inferred.
It held that even though the HOD had praised the performance of
the appellant but it will not anount to bias. If a preference is rational
pecunLara or
and, unacco|Tlpanied' by consid,et-ation of personal 'interest,
otheruise, it tuould, nzt uitiot" a d,ec,i.sion. It is a natural for the HOD
of the staffs who are working under
to form an opinion about the abilities
86. AIR 2002 sc 790
him. In this context it rvas categorically observed thrat if a senior officer
erpresses appreciat,ion of the work of a jun'ior in the confidenti'al Report,
it would, not amount to bias nor utould it preclud,e that senior officer from
be,ing part of the Departrnental Promotion comm,ittee to cons'ider such
jurtior officer along utith others for promotion'
sirnilarly in Hi.nd,ustan vanaspath.i Ltd. r,. AP State Electrici,tE Boardi;
the Court held that existence of lis necessary for an allegation of bias. In
this when the officers of the Electricity Board inspected the factory prernises
of the appellant and noticed pilferage of electricity, immediately electricity
supply was disconnected and a provisional assessment of the loss was made
at Rupees 61 lakhs. Under the provisions of the Electricity Act the Board
initiated pioceedings calling upon the appellant to file its objection to the
provisional assessment. After the enquiry, the final assessment lvas fixed at
Rupees 55 lakhs. The appellant filed a suit fol. declaration that the company
wa"s not liable to pay any amount as penal damages, for refund of the amount
of Rupees 22.50 lakhs which were collected by the Board during the pendency
of the aSsessment proceeding and for pe4petual ilriunction restraining the
defendants from disconnecting power supply. One of the prilciple points of
argument was that Clause 39 was violative of the principles of natural justice
as the rule enabled the officers of the Board to disconnect the service on.a
mere suspicion of malpractice and the consumer was required to pay 50%
of the provisional assessment amount before electricity could be restored. It
was further alleged that the officials of the Board suffered from bias as they
were judge in their orvrl cause. The Court negated the argurnents of the
appellants on the ground that the exercise of powers by the Board has been
specifically laid down in the statute with the primary objective of preventing
theft of electricity, hence the provisions are not arbitrary or trnreasonable.
on the issue of bias it rn'as held tlnat, "the princ'iple 'Nemo Juder in cause
sua, tui,ll not applg in thi.s case as the officers haue no personal li,s wi,th
the consumers..... theg are s'irnilar to Income To,:r or Sales Tar Offici'als-
There is nothing wrong in the'ir adjudicating the matter especiallg uhert'
the consumers Tnaa be represented by an aduoctt'te and th'e forrnula for
mak'ing prouis'ional o,ssessment i's fired in the clause i'tself'"
The case of And,hra Pradesh state Road Transport corporat'ion tt-
Satganaragana Transportsss is a landmark decision wherein the Suprerne
Court applied the ground of personal bias in invalidating an administrative
action. In this case several appeals were filed challenging the nationalization
of road transport order in the district of Guntur passed by the APSRT
on several grounds. However the petition filed by one of the respondent
87. AIR 1998 sc 1715.
88. AIR 196s sc 1303.
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committee arrd when he was told that Rarnakotaiah was unable to help
raised the issue of coloura,ble exercise of power under
the statute bv the him, he threatened hirn witl] dire consequences. that clearly wotrld introduce
It was alleged t}rat the lvlinister a serious infinnity in the impugned order $4rich the Nlinister- passed under
\4inister in charge of Transport department.
hadapersonalbiasagainstRamakotaiahbecausethelatterhadfailedto Section 68-D(2)
complyrn.itlrthervishe-softheMinisterandfailedtopursrresorneofhis ......rr-e cannor oyerlook the fact that if Rarnakotaiah's allegations are held
friendsintheArrdhraPradeshCongressCornmitteememberstor'otefor prov-ed, that rvould inevitably create a serious infirmit5' in the impugned order.
to convince his
the Minister in an election. Ramakotaiah tried but failed t""".,"" then the impugned order would naturally becolne invalid inasrnuch
friendstovotefortheNfinister,thisfactangeredtheMinisterextremely as it was passed by a person $'ho by his bias had been disqualified from
hi-s-failure tuould be trying the cause. It is hardly necessary to emphasise that the elementary rule
who then told Ramakotaiah that the consequin""" of of natural justice that a person trying a cause, though in a quasi-judicial
of mind the Minister heard the
unpallatable to him. In this angry ftt*e proieeding, should not suffer from a personal bias, is of such great significance
scheme and decided the
objections relating to the propo."J nationalization that its application cannot be controlled by considerations which are confined to
analyzing the plea of
matter against Ramakotaiah,s company. The court Ramakotaiah and would ?rave no relevance in regard to the complaints^^raised
bias observed that- ;;;;-;;*""dents in challenging I'he validitv J th" i-pogned order'8e
against the Nlinister
The position in law in rega'rd to the ql""-:l bias raised the objections to the On the issue of evidences to prove the allegation of bias the Court held
is not in doubt. It l" .t"-.-r- in"t *he' ihe l*inister heard
with the matter in that-
proposed schemes tna", Section 68-D(2)' he was dealing
to to the principles of
a quasi-judicial manner and his inquiry had conform
It is not unlikely that a person who has lost his cairse before a quasi-judicial
naturaljustice.Itisan.lut"t't"'y-ruleofnaturaljusticethatapersonwho tribunal, may feel frustrated and angry and may make allegations about bias
before him objectively,
tries a cause should be able to dlat with the matter Di'ctionary of in a casual or irresponsible way. It is not unknown that when suitors lose
fairly, and impartially. As has been observed in the Jewi'tt's
their causes either in courts or before quasi-judicial tribunals they are unable
regarded as tending to cause
English Lanu, "anything which tends or may be must be held to be or unwilling to see the correctness of the verdict and are apt to attribute the
such a person to decide- a case otherwise than on
"rrid.tr"" said verdict to a bias in the mind of the Judge or the tibunal. The transport
biased,,.Ifapersonhasapecuniaryinterestinthecasebroughtbeforehim' to try the cause' If a business involves considerations of large financial profit and if an operator
that is an obvious case of bias which disqualifies himupon to try, that again finds that the introduction of the scheme of naiionalisation hits his trade or
person is hostile to u,*p',ty *ho'. ..,,.u tre is called
business very badly, he may in his frustration adopt t.lre desperate course of
him from trying
would introduce the Jnr*itv of bias and would disqualify that "no making a serious allegation of bias against the Minisier rvho sanctions'tfre
the cause. In dealing with cises of bias' it is necessary to remember
scherne of nationalisation. That is one aspect of the matter which cannot be
onecanactinajudicialcapacityifhispreviousconductgivesgrourrdfor overlooked in dealing with cases of this kind"""
believingthathecannotactwithanopenmind''.Thebroadprinciplewlrich even in. quasi-judicial
is universally accepted is that a person trying a c-auseto act above suspicion On the other hand, when very large discretionary powers are vested in the
proceedings, -rr"t ,rot o,'ly act fairly, but musi be
able Nlinister to deal with the problem of introducing nationalisation of transport,
of unfairness. As was J"...r.a in Frankli.n u. Minister
of Toun and countrg it is not impossible that he rnay be subconsciously influenced by considerations
Planning (1948) AC;;j-"th" use of the word'bias'should be confined to of bias if such a bias is held proved against him. In a struggle for political
a from the standard power which was obviously going on betrveen the two wings of the council of
it sphere. lts proper "i-g'iifi"tt'"" is to denote from those who occupy judicial
departure
Mini"t"r, in Andhra Pradesh at the relevant time, it is again not unlikely that
of even-handed justice i,uni"n thu law requires
a quasi-judicial office' ei.er),one of the important members of the two groups would try his utmost
office or those who are commonly regarded as holding
suchasanarbitrator.Thereasonforthisclearlyisthathavingtoadjudicate to collect as much support as he could in the cause of his group. It is rvell
as between two or more parties, he must come to
his adjudication with an known that rvhen a person enters the arena of political elections, he cannot
or bias towards one side or the afford to stand on hii own dignity or status and must stoop to conquer' and
independent mind withoui any inclination
other in disputed"- That bein! the true position in law about personal bias' that means anyone rr,,ho can bring votes a^ssumes importance at the time of
Minister would be disqualified election contests- The evidence ou the record clearly shows that the rivalry
there would U. ,ro aiiii.olty in holding that the
from hearing objections raised by the respective bus operators- against the betr{een the two opposing groups had reached such a stage that it would not
factshleged bi Ramakotaiah are.held proved' It be unreasonable to assurne that canvassing for votes $'as proceeding apace on
ten schemes if tte male.ial
cannotbedisputedthatiftheMinisternaaasteaRamakotaialrtohelphim.
inhiselectiontotheElectionCommitteeoftlreAndhr?PradeshCongress 89. Ibid Para 9-10
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a very large scale. That is the background il the light of which the relevant
allegations rnade by the parties have to be judged.eo
Thus the Supreme Court after reviewing all the evidences and unsatisfactory
b1' the llinister upheld the order of the High Court on the ground that
ortce the bias tnas held proued,, in lau, i,t followed that the order passed
by the Minister wes incompetent, because the presence of the bi,as i'n hi's
ntind disqualified him frorn hearing the objections against the proposed
notified schernes.
5.8.4 Inconsequential Bias
In the case of Ramanand. Prasad, Singh u. [Jnion of Indiasr while dealing
with the appeal made against the order of the Central Administrative
Tribunal rvhich had set aside the selections made by the Selection Cornmittee
of the officers of the Bihar Administrative Service for promotion to the
Indian Administrative Service the Supreme Court applied the doctrine of
inconsequential bias. One of the factors for setting aside the order by CAT
was the participation of one of the member of .the Selection Comrnittee
whose brother rvas within the zone of consideration. It was held that since
the brother was not selected by the Selection Committee the selection of
all other'candidates cannot be held to be uitiated in ang rnarlner by this
factor.
5.8.5 Departmental Bia.s..
Departmental bias is one of the grounds for invalidating an administrative
action. It generally refers to situations rvhere the deciding authority being part
of the same department which has initiated the matter, hence there might
be a predisposition to act in a particular manner to fulfill the functional
priorities of the department. But generally such decisions are not deemed
to be vitiated on the ground of bias because the very purpose for grant of
such powers is to enable the adjudicating authority to decide in accordance
with the policy of the department. The judiciary has adopted a stringent
stand that so long the adjudicating authority is acting in accordance with
the por*'ers conferred in the statute, are in compliance with the procedural
norms laid down in the statute aud principles of fair hearing, the action
taken will not be deemed to be bias unless a personal l'is can be established
between the parties.s2
90. Id. Para 12 - 14.
9r. (re96) 4 SCC 64.
92. AIR 1998 SC 1715
Quasi-Judicial Functions and Principles of Naturai Justice 2O5
|
The jurisprudential basis of the official bias was laid down in the case
of in Ren u. Susser Justices Er Parte McCarthyer by Lord Hewart. C.J.
when he stated it is not merely of some i,mportance but i,s of fund,amental
importance that just'ice should not only be done, but should manifestly and
undoubtedly be seen to be d,itne. The question therefore is not whether in
th'is case the deputy clerk made ang obseruat'ion or offered any criticism
uhich he mi'ght not properlg haue rnade or offered; the question is whether
he zoas so related to the case 'in its ciuil aspects as to be unfit to act as
clerk to the justices in the criminal matter. The answer to that quest,ion
depends not upon u;hat actuallg utas done, but upon what might appear
to be done.
One of the leading cases on the issue is GuIIapaIIi Nageswara Rao u.
Andhra Pradesh state Road rransport corporation ea The appellants
were carrying on motor transport business for several years in Krishna
district in Andhra Pradesh. Shri Guru Pershad, the General l\{anager of the
State Transport Undertaking of the Andhra Pradesh Road rransport, had
published a scheme for nationalization of motor transport in the Krishna
district and invited objections to be filed against the proposed scheme. on
December 26, L957, the Secretary in charge of the Transport Department
gave a personal hearing to.the objectors and heard the representations made
on behalf of the State Transport Undertaking. The entire material gathered
by him was thereafter placed before the Chief l\.{inister of the State in charge
of transport who made the order approving the scheme. The approved scheme
was then implemented by the Andhra Pradesh Road Transport Corporation.
A writ petition under Article 32 of the Constitution was filed for quashing
the scheme. one of the major points of argument *'as made on the ground
of departmental or official bias as the hearing was given by the secretary
in charge of the Transport Department. Dealing with the issue the court
observed-
[T]he fundamental principle of natural justice that in thc case of quasi-judicial
proceedings, the authority empowered to decide the dispute between opposing
parties must be one without bias towards one side or other in the dispute. rt
is also a matter fundamental irnportance that a person interested in one party
or the other should not, even formallS'. take part in the proceedings though
in fact he does not influe.ce the mind of the persor, *-ho finally decides
the case. This is on the principle that justice should not only be done, but
should manifestly and undoubtedly be seen to be done. The hearing given
by the Secretarl', Transport Department, certainly offends the said principle
93. [1s24] 1 K.B. 256..
94. (1959) SCR (Suppl.) 319.
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This decision is considered as landmark in the field of official bias wherein

ofnaturaljrrsticearrdtheproceedingarrdthelrearinggiven.inviolationof it was categ<rrically held that unless tlt,e legislature cleo,rly and etpressly
that principle. are bad- ord,ained, to the contrary, the principles of natural justice cannot be
After the decision of the supreme court fresh notices \r'ere issued
by the ui.olated,. In India a law made by the Parliament must also stand the scrutiny
Government to all the objectors informing them that a
personal hearing of tle fundamental rights test as provided in Part III of the Constitution.
would be given by the chief ll'Iinister on December 9, 1958, and they were By applying the same rationale the Supreme Court held that
further inforrrred that they were at libert/ to file further objections before
the representatives of the In the instant case the relevant provisions of the Act do not sanction any
November 30, 1958. The chief Minister heard dereliction of the principles of natural justice. under the Act a statutory
dated Deceimber 19, 1958,
objectors and the corporation and passed orders authoritl,. called the Transport Undertaking, is created and specified statutory
published'
rejecting the objectiors fn"a and approving the scheme as originally functions are conferred on it. The said Undertaking prepares a scheme providing
The orderupprorring the scheme was duly published by tl" Government in for roa<l transport service in relation to an area to be run or operated by
theOfficialGazetteonDecember22,lg58andthereaftertheAuthority the said Undertaking. Any person affected by the scheme is required to file
passed orders rendering the transport permit given to Nageswara
Rao as objections before the state Government and the State Government, after
of such order receiving the objections and representations, gives a personal hearing to the
ineffective from December 24, 1g5g. Aggrieved with the passing ' objectors as well as to the undertaking and approves or modifies the scheme
awritpetitionwasfiledbeforetheHighCourtforquashing.ofthesame.In as the case may be. The provisions of the Act, therefore, do not authorise
Gullapalli Nageswara Rao u. State of An4hra Prad'esh(Il)e5 an appeal
was
of road . the Government to initiate the scheme and thereafter constitute itself a Judge
made to the supreme court challenging the order of nationalization
in its ornn cause. The entire scheme oT the Act visualises, in case of conflict
given by Chief
transport issued by the State on the ground that the hearing between the undertaking and the operators of private buses' that the state
of the transport department he Government should sit in judgment and resolve the conflict. The Act, therefore.
I\{inister was improp", .Ila being in "hu,tg.
rvas disqualified to hear the objections and decide based on the proposition does not authorise the State Government to act in derogation of the principles
'of natural justice.
laid in tt:e Gullapalli (I) decision'
TheCourtappliedthedoctrineofofficialbiastodeterminethecontentious
and imposes In reference to the issue of whether the hearing given by the Chief Minister
issue of ,whether, when a, sta,tute confers a power on an authority can be held to be vitiated on the ground of bias on the same rationale as
a duty on it to be a Judge of its own cause or to decide a dispute in which
the.hearing given'by.the Secretary was held to be bad in the earlier case'
it has an official uias, ttie doctrine of bias is qualified to the extent of the the Court anst'ered in the negative and observed*
statutory authorization.' The court referred to the principle laid downthe
in
of King a. Bath Compertsat'ion Authoritgso rvherein The argument that as this Court held in'the previous stage of ttris litigation
tlre English
"*u
HouseofLordshetdthatnoonecanbothbeapartgandaJudgeinthe that the hearing given by the secretary in charge of the Transport Department
. offenrled the principles of natural justice, we should hold, as a logical corollary
to the sarne, that the same infirmity u'ould attach to the Chief Minister. This
No doubt the statute cor-rtemplates the possibility of the licensingargument; Justices argument has to be rejected on two grounds: firstly. for the reason that on the
appearing before the.otlrp",'"'lio" authority and taking part in the Iast occasion the appellants did not question the right of the chief I\{inister
authority to decide on the objections to the scheme, - and indeed they assumed his
for it is provided by Section 19 sub-section 2' that the compensation
shall give p.."on appearing to them to be interested in the question of undoubted right to do so but canvassed the validity of his order on the
"rry the licensing Justices." an opportunit5' of -
basis that the secretarl.'. q.ho sgas part of the Transport -Department. gave
the reneq,al of ti"uo"u', "incluling
"
being heard. But the statute nowhere says that Justices who elect to appear the hearing and not the Chief l\Iinister and. therefore, a party to the dispute
as oipponents of the renewal and take active steps (such as instructing
a
was made a Judge of his own cause. If, as it is now contended, on the same
solicitor) to take their opposition affective, may nevertheless act as Judges reasoning the chief l\{inister also would be disqualified from deciding the
inthedispute;andinthe.absenceofaclearpror,isiontothateffectlthink dispute, that point should have been raised at that stage: instead, a distinction
thattlreordinaryrule'thatnoonecanbebothpartyandJudgeirrthesame was made between the secretary of a Department and the chief I\'{inister, and
cause, holds good- the validity of the order of the chief Minister,,was questioned on the basis
of this distinction. This Court accepted that arlument. Having obtained the
95. AIR 1959 SC 1376 : (1960) r SCR 58o'
96. 1926 AC 586.
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judgnrent of t}ris Court on that basis, could not be open to the appellants,
it
at this stage, to reopen the closed controversy and take a contrary 1>osition'
That apart. there are no merits in this contention'
The couit'also dre\)i, a distinction betrreen the functional role of a \Iinister
as part of the cabinet and that of a Secretary of a Department &'ho is
deemed to be part of the Department in contradistinction to a l\Iinister
in
charge of a Department who is responsible for the disposal of the business
of the Department. The Court observed-
There is a clear distinction between the position of a Secretary of the
Department and the chief luinister of the state. under the constitution, the
Governor is directed to act on the advice of the Ministers headed by
the-
chief trlinister. ln exercise of the powers conferred by clauses 2 and 3 of
Article 166 of the Constitution the Governor of lrladras made rules btl&d as
,.The Madras Government Business Rules and Secretariat Instructions", and
RulegthereofprescribesthatwithoutprejudicetotheprovisionsofRule
7, the l\,Iinister in charge of a department shall be primarily responsible for
the disposal of the busiiress pertaining to that department. The Governor of
Andhra, in exercise of the power" rrod". the constitution, directed that until
other provisions are made in this regard the business of the Government of
Andhrd shall be transacted in accordance with the said Rules. It is, therqflore,
manifestthatundertheConstitutionandtheRulesframedthereundera
Ir.{inister in charge of a department is primarily responsible for the disposal
of the business pertaining io that department, but the ultimate responsibility
for the advice is on the Jrtire ministry. But the position of the Secretary of a
department is different. under the said Rules, the secretary of a department
is its head i.e., he is part of the department. There is an essential distinction
between the functions of a Secretary and a l\{inist'er; the former is a
part of
for the disposal of
the department and the latter is only primarily respoDsible
the business pertaining to that department. on this distinction the previous
judgment of this corrr"t *." based, for in that case, after pointing out the
po"itioo of the secretary in that Department, it was held that "though
the formal orders were made by the chief l\{inister, in effect and substance,
the enquiry was conducted and personal hearing was given by one of the
parties to the dispute itself". we cannot, therefore, accept the argument of the
learned counsel that the Chief lUinister is part of the department constituted
as a statutory Undertaking under the Act'
Similarly in Krishna, Bus Seruice (P) Ltd. a. State of HarganaeT the
court applied the rationale of official bias to invalidate the appointment of
the General Manager of Haryana Roadways as Deputy Superintendent of
police under the trioto, Vehicles Act, 1939. The appellants who are in the
business of motor transport had challenged the.appointment made on the
97. (198s) 3 SCC 7ll
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Quasi-JudicizlFunaionsandPrinciPlesofNaturalJustice2o9'1..
ground of bias. It was the contention of the petitioners that the 'appointment
Jf tl" General \,[anager, Haryana Roadways, who is himself responsible for
the proper management of the activities of the Haryana Roadways and its
pro"p"rity and profitability and who is carrying on business in competition
with other prit,ate operators as an officer rvho can exercise the porvers of
the Deputy Superintenclent of Police under the Act is violative under Article
1g(1x9i oi tt. Constitution and it is otherwise contrary to the object and
,pirit'1f the Act. It is further urged that the General ![4nager, Haryana
Roadways would not be able to discharge his functions satisfactorily in the
interests of the general public since he being himself under a duty to comply
with the provisions of the Act and the rules made thereunder i1 respect of
the motor vehicles of the Haryana Roadways cannot be expected. to discharge
the functibns of checking. inspection, search and seizure regarding the motor
vehicles belonging to the Haryana Roadways and to take appropriate steps
to
of his ow' department who are not complying with the
prosecute the Lfficers
provisions of the Act. In a given case it is likely that the General Manager
himself may have to be prosecuted for not complying with la.rv.'
The court upholding the contention of the petitioners observed-
Thepowersofstoppingthemotorvehiclesandthepowersofinspection,
seizure and-detention exercised under the Act are serious restrictions
on the fundamental right of the operators of motor vehicles guaranteed
"u"."h,
under Article f9(1)(9) oi the Constitution' These powers can be considered as
reasonable restrictions only.when they are exercised properly in the interests
of the general public. They should be reasonab.Ig both from the substantive as
well as the procedural standpoint. Such powers ihould, therefore, be entrusted
to a persori who is expected to exercise them fairly and without bias. The
General l\lanager of Hlryana Roadways rvho is a rival in business to the
in the State and is intimately connected
private operators of motoi vehicles
with the running of motor vehicles cannot be expected to discharge his duties
in a fair and reasonable' manner. An unobstructed operation of the motor
vehicles by private owners operating along the same route or routes would
naturally affect the earnings of the Haryana Roadways. There is, therefore,
every likelihood of his being over-zealous in discharging his duties of stopping
,r"hi"l. and in searching, seizing and detaining motor vehicles belonging to
"others and at the sarne time excessivel-v lenient in the case of vehicles belonging
to his own department. If in discharging his duties in the case of vehicles
belonging to others he fails to give due regard to the interests of the owners
in
thereof he would be violating their fundamental right to carry on business
a reasonable way. If he is too lenient in inspecting the vehicles belonging to
his own department, the interests of the travelling public at large would
be
inperil.Irrboththecasesthereisaconflictbetweenhisdutyontheone
hand and his interest on the other. Moreover administration must
be rooted
i' confidence and that confidence is destroyed when people begin to think

Textbooh on Administratiae LazP
that the officer conccrned is biased- This is not a case which is governed by
the rule of necessity. As it is, there are many other officers who are entrusted
with the powers of the police officers under the Act. There was, therefore,
no necessity to appoint the General l{anager of Haryana Roadways also to
exercise the said po\{,ers. \ve are, therefore, of the opinion that the appointment
of the General I\4anager, Haryana Roadways w'ho is directly responsible for
running its motor vehicles as one of the officers who can exercise the powers
of a Deputy Srrperintendent of Police under the Act imposes an trnreasonable
restriction on the fundamental right of the private motor vehicles operators
and is therefore violative of Article fS(t)(g) of the Constitution. We however
make it clear that the appointment of other'officers of the State Government
is not bad even though lhe Go,rern*ent is the owner of the vehicles as their
connection with the running of the vehicles is too remote. The appointment
of the General lvlanager as an officer who can exercise the powers of the
.Deputy Superintendent of Police under the Act is also not in the interests
of the general public since the large number of motor vehicles owned by the
Haryana Roadways would not be subject to inspection and checking by an
.independent agency. can we expect a fair investigation by a police officer
into a criminal case in which his own kith and kin are involved as the'
accused? The position is not different in this case. The Legislature could not
have intended while enacting section 133-4 of the Act that a person who
. was himself directly responsible for the proper running of the motor vehicles
.' according to law could be appointed as the inspecting and investigating officer
by the State Government for the purpose of enforcing the Act''
However in K. Ashok Reddy u. Goat. of Ind,ia2 the Supreme Court denied
ihe cbntention of biiis'white dealing with the issue of transfer of judges and
whether such transfers can be vitiated on grounds of bias. The Supreme
Court upheld the norms of judicial integrity and negated the contention
on the ground that when decisions are made by the collectiue etercise
of seueral Judges at the aper leuel on obiectiue criterion on wh'ich the
retontmendation of the chi.ef Justice of Indi,a is based it acts as an inbuilt
check against arbitrariness and. b'ias. lHence the scope of judicial revieu' of
transfer of Judges is very limited-
5;8.6 lnstitutional Bias
In the case of Lalit Mod,i a. BCCIs Suprerne Court discussed the issue of
institutional bias. The respondent had appointed a three-member Disciplinary
committee to look into va,rious charges of misconduct when he
functioning as the chairrnan of Indian Premier League (IPL). The petitioner
1. Ibid Para 1O.
2. (1994) 2 SCC 303 : AIR 1994 SC r2o7.
3. (2011) 10 SCC 106.
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I
Quasi-Judiclzl Funaions and PrinciPles of Natural Justire 2ll I
conteuded that the cornmittee was not validly constituted as its members
suffered frorn i,nstitutional bias as they were part of the Governing Council
of BCCI. It rvas allegcd that the petitioner cou,ld not ex:pect fair play from
the rnembers who haae alread,y been party to the deci,si,on to i'ni,tiate the
d.isci,plinary action against tlte petitioner. The Court negated the contention
and laid dov"'n the rules relating to institutional bias. It observed-
As far as the disciplinary actions by societies aud associations are conceltred,
many of the societies under the Tamil Nadu Societies Registration Act and
sirniiar State Acts, are smaller societies. It is another matter that the first
respondent society is a Iarge body having large resources' If the members or
the N,Ianaging Committee of a Society receive a complaint of any misconduct
on the p.it of any of its office bearers, surely the subject is expected to be
taken up in the General Body N{eeting of the society' These societies are
expected to sort out the future course of action *'ith respect to such allegations'
on their olvn on the basis of their internal disciplinary mechanism. Merely
because all the members of a societl' have participated in the discussion
concerning such allegation, the society. can't be expected to appoint an outsider
to hold the disciplinary proceeding. It may not be financially possible as well
for such small societies. That apart, onl5r a prirna facie opinion is formed in
such meetings. I\lerely because a member has participated in such a meeting
he cannot be accused of bias to disentitle him from being appointed on the
Disciplinary Committee.......As held in IvI.P. Special Police Establishment, a
rnere apprehension of bias cannot be a ground for interference. There must
exist a real danger of bias. And, following T.P. Daaer u- Lod,ge victoria,a
though such domestic inquiries have undoubtedly to be fair, a rnember of a
society cannot stretch the principle of fairness to the extent of demanding
a tribunal consisting of outsiders, on the basis that the society members are
biased against hirn.
......The Petitioner was alleging institutional bias against the members of the
Committee, which was only on the basis of their participation in the meetings
of the first Respondent society- In this rvay, institutional bias can be alleged
against every member of the Governing council of IPL and the General Bod.y
ol= the first Respondent which cannot be accepted. The Petitioner
may have
an apprehension, but it is not possible to say from the material on record
that he rvas facing a real danger of bias'
5.9 TEST OF BIASNESS
was The test of bias diffbrs based on the ground of bias. In case of any direct
pecuniary or proprietary interest in the subjcct matter of proceedings will
give rise to automatic disqualification on the ground of bias.5 On the issue
4. AIR 1963 sc 1144
s. (1955) I QB 41.
 ?
t
i
I Quasi-Jadi'cial Funaions and Princioles of NaturalJustice
of personal bias the English Courts have applied different tcsts ranging
from real likelihood test to reasonabie suspicion test and lastly to the real
danger test.
In Regina Er parte Pearce6 the Divisional Bench
t-,. Camborne Justices
of Queen's Bench Division after analyzing seyeral decisions [eld that "real
likelihood, was the proper test, and that a real li.keli,hood of bias had to
be m,ad,e to appear not only from the materials i,n fact a,scertained by the
party complaining. but from such further facts as he mi.ght read'ily haue
ascerto,ined. and. easily uerified, in the course of his inquiries." The test
for disqualification is based on assessment of the facts by the court giving
rise to a real likelihood of bias.
In Metropolitan Properties Ltd,. u. Lannon7 the Court applied the
suspicion te'st and reasserted 'justice must be seen to be done' as the
operative principle. It implies that 'no person should adjudicate in any way
if it might reasonably be thought that he ought not to act because of some
personal inteiest.'8
In R. a. Goughe the House of Lords had applied the 'real likelihood' test
by using the expression 'real danger'. Explaining the principle Lord Goff
observed-
I think it unnecessary,in formulating the appropriate test, to require that the
court should look at the matter through the eyes of a reasonable man, because
the court in cases such as these personifies the reasonable man; and in any
event the court has first to ascertain the relevant circumstaices from the
available evidence, knowledge of rvhich would not necessarily be available to an
observer in court at the relevant time- Finally. for the avoidance of doubt' I
prefer to state the test in terms of real danger rather than real likelihood, to
ensure that the court is thinking in terms of possibility rather than probability
of bias. Accordingly, having ascertained the relevant circumstances, the court
should ask itself whether, having regard to those circumstances, there was
a real danger of bias on the part of the relevant mernber of the tribunal
in question, in the sense that he might unfairly regard (or have unfairlv
regarded) with favour. or dis favour, the case of a party to the issue under
consideration by him....
It rr'as further asserted-
In my opinion, if the circumstances of the case (as ascertained by the court),
it appears that there was a real likelihood, in the sense of a real possibility'
6. Id. (1s55) I QB 4r.
7. (1969) 1 QB 577.
8- AIR 2011 SC 3711.
9. (1993) AC 646.
I
213'l '
of bias on the part of a justice or other member of an inferior tribunal, justice
requires that the decision should not be allowed to stand. I am by no means
peisuaded that, in its original form, the real likelihood test required that anv
more rigorous criterion should be applied. Furthermore the test as so stated
gives sufficient effect. in cases of apparent bias. to the principle that justice
tust ma'ifestly be seen to be done, and it is unuecessary' in my opinio'' to
have recourse to a test based on mere suspicion. or evell reasonable suspicion.
for that purpose
In conclusion, I wish to express my understancling of the law a-s follows' I
think it possible, and desirable, that the same test should be applicable in all
cases of apparent bias, whether concerned with justices or- members of other
inferior tribunals, or with jurors, or with arbitrators. Likewise I consider that,
in cases.concerned with jurors, the same test should be applied by a judge to
whose attention the possibility of bias on the part of a juror ha^s been drawn
in the course of a trial, and by the Court of Appeal when it considers such
a question on aPPeal.
In re Med.icaments and, Related Classes of goods the Court of Appeal
laid down the ingredients of real danger of bias test. It explained
...The court has first to ascertain all the circumstanies which had a bearing
on the suggestion that the judge was biased and then ask whether those
circumstances would lead a fair-minded and informed observer to conclude that'
there rvas a real possibility, or a real danger, the two being the same, that
the judge was biased; that the material circumstances included any explanation
girren by the impugned judge as to his knowledge br appreciation of those
and lvhere any such explanation was disputed the reviewing
"ir".r*rt"rr""s
court did not have to rule whether the explanation should be accepted or
rejected but rather had to decide whether the fair-minded observer would
consider that there was a real danger of bias notrvithstanding the explanation
advanced that instead of determining. whether R's statement was truthful
the court should have considered what impressiorr her conduct, including her
explanation for it, would have had on a fair-minded observer; that such an
observer would not have been convinced that all prospects of R working for
the firm at some tirne in the future had been destroyed or that she might
not still hope to work for them in due course; that, in those circumstances.
the fair-rninded observer would apprehend that there was a real danger that
R would be unable to make an objective and impartial appraisal of the
expert eviclence placed before the court by the firm: and that. accordingl5r.
R ought to have recused herself and the other members of the court should
stand down.
Thus frorn the above analysis it can be concluded that the English courts
are presently applying the real danger test for determining the scope of bias.
But in several judgments the courts have clarified that the terrninologies like
real likelihood or real danger are being used in an inter-changeable manner

Textbooh on Administratioe l-azo
rvith the essential ingredients of application being the same. However in
other jurisdictions courts have insisted on the application of real suspicion
or apprehension test for the purpose of upholding the dignity of the judicial
office.
Tlre Constitutional Court of Sotrth Africa in the case of Presidertt of
the Republic of South Africa u. Sou.th Afri.can. Rugby Football Unionro had,
observed-
...The question is whether a reasonable, objective and informed' person rvould
on the correct facts reasonably apprehend that the judge ha^s not or will not
bring an impartial mind to bear on the adjuclicatiou of the case, that is a
mind open to persuasion by the evidence and the submissions of counsel. The
reasonableness of the apprehension rnust be assessed in the light of the oath
of office taken by the judges to administer justice r'"'ithout fear or favour; and
their ability to carry out that oath by reason of their traiuing ancl experience.
It must be assumed that they can disabuse their minds of any irrelevant
personal beliefs or predispositions. They must take into account the fact that
they.have a duty to sit in any case in which they are not obliged to recuse
themselyes. At the same time, it must never be forgotten that an impartial
judge is a fundamental prerequisite for a fair trial and a judicial officer should
not hesitate to recuse herself or himself if there are reasonable grounds on
the part of a litigant for apprehending that the juclicial officer, for whatevef
reasons, was not or will not be impartial.
Similarly the High Court of Australia in the seven Judge Bench in Johnson
u. Johnsonll upheld the application of real suspicion or apprehension test in
place of real likelihood test by arguing that-
That test has been adopted, in preference to a differently expressed test that
has been applied in England, for the reason that it gives due recognition to
the fundamental principle that justice must both be done, and be seen to be
done. It is based upon the need for public confidence in the adrninistration
of justice. "If fair-minded people reasonably apprehend or suspect that the
tribunal has prejudged the case, they cannot have confidence in the decision."
The hypothetical reasonable observer of the iudge's conduct is postulated in
order to emphasise that the test is objective, is founded in the need for public
confidence in the judiciary, and is not based purely upon the assessment
by some judges of the capacity or performance of their colleagues. At the
same time, two things need to be remembered: the observer is takeu to be
rea^sonable; and the person being observed is "a professional judge whose
training, tradition and oath or affirmation require [the ;udge] to discard the
irrelevant, the immaterial and the prejudicial.
10. 1999 (4) SA 147.
rr. (2000) 174 Aust LR 655.
I
Qiasi-Iudicizl Fanctions and PrinciPles of Natural Justice 215 |
In India the courts have generally applied the reasonable apprehension
test to determine the likelihood of bias. In the landmark case of Mart'ak
LaI u. Dr Prem. Chand. Singhail2 it rvas observed that-
If it is true that in judicial or <1uasi-judicial proceedings justice must not onl.\'
be done but must appear to be done to tlre litigating public. it is equally true
that *'hen a lawyer is charged for professioual rniscouduct and is given the
privilege of being tried by a liibunal of the Bar Council, the enquiry before
the Tribunal must leave no room for a reasonable apprehension iIr the rnind
of the lawyer that the Tribunal may have been even indirectly influenced by
any lrias in the mind of any of the members of the Tribunal. In the present
case, we have no hesitation in assuming that *'hen Shri Chhangani agreed
to work as the Chairman of the Tribunal, he did not remernber that he had
appeared against the appellant's clients iir the criminal proceedings under
Section 145. \\/e are told that Shri Chhangani is a senior member of the Bar
and was once Advocate-General of the High Court of Rajasthan. Besides he
had not appeared in the case at all stages but had appeared only once as a
senior counsel to argue the matter. It is, therefore, not at all unlikely that
Shri Chhangani had no personal contact with the client Dr Prem Chand and
may not have been aware of the fact that, in the case from which the present
proceedings arose, he had appeared at any stage for Dr Prem Chand. We
are, however, inclined to hold that this fact does not in any way affect the
legal argument urged before us by Shri Daphtary- It is not Shri Daphtary's
case that Shri Chhangani actually had a bias against the appellant and that
the said bias was responsible for the final report made against the appellant.
Indeed it is unnecessary for Shri Daphtary to advance such an argurnent. If
Shri Chhangani was disqualified from working as a member of the Tribunal by
reason of the fact that he had appeared for Dr Prem Chand in the criminal
proceedings under Section 145 in question, then it would not be necessary for
Shri Daphtary to prove that any prejudice in fact had been caused or that
Shri Chhangarri improperly influenced the final decision of the Tribunal. Actual
proof of prejudice in such cases may make the appellant's case stronger but
such proof is not necessary in order that the appellant should effectively raise
the argument that the Tribunal was not properly constituted.
In some of the subsequent cases the judiciary applied t}re real likelihood
test for determining whether a judicial or quasi-judicial decision was vitiated
on the ground of bias. In A.K. Kraipak the issue was before the Court was
not urhether he was biased,. It is d,ifficult to proue the state of mind of
a person. ThereJore uhat ue haae to see 'is tahether there is reasonable
ground for bel'ieaing that he uas li'kely to haue been biased'...'
Sirnilarly in S. Parthasarthi, u. State of AP-rs Mathew J applied the
'real likelihood test' and observed 'We think that the reviewing authority
12. 1957 SCR 575 : AIR 1957 SC 425
13. (1974) 3scc 459.

f ZfO Textbooh on Administratiae Lau;
nrust make a determination on the basis of the v"'hole evidence before it.
whether a reasonable man ivould in the circumstances infer that there is real
likelihood of bias. The Court must look at the impression t'hich other people
have. This follorvs frorn the principle that justice must not only be done
but seen to be done. If right minded persons n'ould ttrink that there is real
likebhood of bias on the part of an inquiring officer. he must not corlduct
the enquiry: nevertheless, there must be a real liketihood of bias. Surrnise
or conjecture v'ould not be enough. There must exist circumstances from
lvhich rea^sonable men would think. it probable or likell' that the inquiring
officer will be prejudiced against the delinquent. The Court will not inquire
whether he was really prejudiced. If a reasonable lTlan would think on the
basis of the existing circumstances that he is likely to be prejudiced, that
is.sufficient to quash the decision...."
In Ranjit Thakur u. (Jnion of Ind,ia rlthe cdurt observed "a judgment
rvhich is the result of bias or want of impartiality is a nullity and the trial
cora'IrL non-jud,'ice'. It clarified that 'the proper. approach for the Judge is
not to look at his own mind and ask himself, however honestly' '(Am I
biased?"; but to look at the mind of the party before him.'
In the recent case of Justice P.D. Dinakaron a. Hon'ble Judges Inquiry
Cornmitteers the court revisited the entire jurisprudence of rule against bias.
In this case fifty members of the Rajya Sabha'had submitted a motion for
removal of the petitioner from the post of chief Justice of Karnataka High
Court under Article 2L7 rcad with Article 124(4) of. the Constitution. As per
the Judges (Inquiry) Act, 1968 the chairman of the Rajya sabha app.ointed
a committee comprising Justice \r.S. Sirpurkar, Justice A.R. Dave and
Senior advocate P.P.Rao, horvever objection \\'as raised against the inclusion
of Shri P.P. Rao on the ground of personal bias. It was alleged that being
the Vice-President of the Bar Association of India he had actively spoken
against the elevation of the petitioner as a Judge and had also drafted a
resolution in this regard. The Court after analyzing a plethora of cases on
the issue of bias upheld the application of'real likelihood test based on the
threshold of real danger of bias. It observed-
[N]o rnan can be a Judge in hisow-n cause and justice should not only be
done. but manifestly be seen to be done. Scales should not only be held even
but it must not be seen to be inclined. A person having interest in the subject
matter of cause is precluded from acting as a Judge. To disqualify a person
from adudicating on the ground of interest in the subject matter of lis, the
test of real likelihood of the bias is to be applied. In ot[er words, one ]ras to
enquire as to whether there is real danger of bias on the part of the person
14. (1987) 4 SCC 6rr.
15. AIR 2011 SC 3711 : 2011 (6) SCALE 97.
I
Quasi-Judicial Functions and PrinciPles of Natural Justice 217 |
against whom such apprehension is expressed in the sense that he might favour
or disfavour a part)'. In each case. the Court has to considcr rvhether a fair
mindecl and infonned person, having considered all the facts rvould reasonably
apprehend that the Judge would not act impartially. To put it differently, the
test s'ould be rvhether a reasonably intelligent man fulll' apprised of all the
facts w'ould have a serious apprehension of bias. In cases of non-pecttniarl'.
the 'real likelihood' test has been preferred over the 'reasonable suspicion' test
and the Courts have consistently held that in dccicling thc question of bias
one has to take into consideration human probabilities and ordinary course of
.human conduct. \\re may add that real iikeliho<,rd of bias shoulcl appear not
onll' frorn the rnaterials ascertained tr.r' the conrplairring partv, but also frorn
such other facts u'hich it could have readily ascertained and easily 'r'erified
by makirrg rearsotrable inquiries.
..
After analyzing the facts of the case the Court concluded that the facts
could give rise to a reasonable apprehension in the rnind of an intelligent
person that Shri P.P. Rao was likely to be biased. It observed-
A reasonable, objective and informed person may say that Respomdent No.
.3 would not have opposed elevation of the Petitioner if he was not satisfied
that there wa,s sorne substance in the allegations levelled against him. It is
true that the Judges and la$'yers are trained to be objective and have the
capacity to decipher grain from the chaff, truth from the falsehood and we
have no doubt that Respondent No. 3 possesses these qualities. We also agree
with the Committee that objection by both sides perhaps "alone apart from
anything else is sufficient to confirm his impartiality". However, the issue of
bias of Respondent No. 3 has not to be seen from the vieu' point of this
' Court or for that matter the Committee. It has to be seen from the angle
of a reasonable, objective and informed person. What opinion he w'ould form!
It is his apprehension which is of paramount importance. From the facts
narrated in the earlier part of the judgment it can be said that Petitioner's
apprehension of likelihood of bias against Respondent No. 3 is reasonable and
not fanciful, though, in fact, he may not be biased.
5.10 FACTORS FOR DETERMINATION OF APPARENT BIAS
In Reg'ina u. Camborne Just'ices Er parte Pearcero a t'arning was issued
by the court aboud the need to exercise judicial restraint so that frequent
allegations of bias should not become an hindrance in judicial or quasi-judicial
functioning. It was observed-
The frequency with which allegations of bias have come before the courts in
recent times seens to indicate that Lord Hewart's reminder in the Sussex
16. (1955) I QB 4l
 1
-ludicial Functions and Pr
1

I
lZfg Textboob on Adntuisftattoe Le
Astothctestsofthelikelihoodofbiasrvhatisrelevantisthereasonablenessof
the apprehension in tft*-t"g"ta in the
n'jng of the party' The proper approach
undoubtedly be se:n to tre done
Justicescasethatit..isoffundarnerrtal..irnportance.-thatjusticeshorrldnot
for the Judge is t"' t"l"J?t hi" o*t' mind and ask himself' however' honestly'
only be done, but "ft""fa "rnanifestly -and con'ictions or invalidating orders ,Am I biased?"; but to look at the mincl of the party before him'
,.is being urged as l^"*l.r..a for quashing
upon quite ,r,t,rru"ttt'tioigt"""a" utta'
it'a"!a' in some cases- upon the flimsiest
integritl' of the
pretexts of bias' il;i;; iJo'"i"g ""'t fJi;';aintaining the tne continued that' having regard to the
t']: ;;;;-H;Y"'t' t;i; Court feels that Thus tested the conclusion becomes inescapable 4 in the court-martial
principle to-the erroneous antecedent events' ;il;;';;"'i""
'"*""t"a
citation of it in io rvhichit is not applicable may.lead "r,Respondent
- ".*" ttr"i-;,r"ti." should appear to be done rendered the proceedirtgs corarll non-Judlce'
impression that it ;' ;."- important
than that it should in fact be done'" Thusadecisionwhich'ismadeinviolationofthedoctrineofbiaswill
proceeding will be_ considered to
be deemed to be a 'ullity and the entire
Irrthiscontextitbecomesessentialtoadheretotlreprincipleslaiddot'n on the judge' or v'ithout a proper jurisdiction' The
Englandlt ttgttai"g th" t""t of disqu'alification be a Iegal proceeding *ittto"t a
irt Halsbury's Laws o/ jurors or non-jud'ice is not in the presence of a
of inferior tribunals'
ground of apparent Uia" UV justices'-memlers circunrstances n'hich have a meaning of the Latin phras e coram'.
with arbitrator. i" tJ-ioot inao all the relevant Uia-1a and analvze if
judge.
bearing on the ror*I"tiott that the 'itag"-"t:"stice-is
there is a real po""ibility of bias' i"
tn"1"""t that he might unfairly regard 5.12 DOCTRINE OF WAIVER
party to the issue under consideration
with favour, or disfavour' the case of a Theterrnwaiverrefersbo.arrintention.alrelinquishmentofaknownright'.
by him. It is based on the *u.*irr cuilibet licet renuitiare juri pro ce 'introducto
waive- anf to^.18ree to waive the
BIAS which implies 'everyone has a right to
5.11 NON.COMPLIANCE WITH THE RULE AGAINST advantageofalawo.,,,t"madesolelyfortheberrefitandprotectionof
the appellant was. subjected to -oublic wlibn rnay be dispensed with without
rn Ranjit Thakur u. (Inion of Ind.iar' the individual in his orr"*. capacity, 'policy''le The doctrine has been has
punishmentfornot"o*-""a"tgwelltothecommandingofficer(Respondent4) infringing any public 'igttt ot
further punished with rigorous
of the regiment ""a- "t'U"tq"!ntly he - was complaints to higher officers
usedaspointofdefence"todenytheapplicationoftheruleagainstbias.
th'e leading case. gq. the applicatiou
imprisonment by Respondent 4-fT
*tk',* !h3 was filed by Manak Lal u. Dr. Prent. chand.2o is
4. A *rit petitio' this case the afpellant was a
of the doctrine of u,aiver in charges. Inprofessional
of ill-treatment at the hands of Respona.it misco'duct on account
theappel}antchallengingthep,oceedi,.g-"-o|thecorrrt-martialandoneof practicing advocate .rrJ *." chargeJrvith in a case where
tn" Ru'po"dtnt 4 had participated of making a forged document for obtaining a stay order
the grounds for chali-ettf" ** bias as was appointed
p.o"".ding.. The court while dealing the respondent rn'as the other party' Au
in"qulry cornmittee
and dominated i., trre Jonduct of the of Rlsponclent 4 observed-
with the issue of alleged bia's on the part bytheHiglrCourttoloot<intothec}rargesofprofessionalmisconductand
The comrnittee found Ivlanak
the committee was headed shri changai.ri. for removal of his
Lal guilty of professional misconduct and recommencled
likely a'd is
Thetestofreallikelihoodofbiasiswhetlrerareasorrableperson;inpossession
would have . thought that bias was matter only
of relevant information,
^;^'t""" namefronrtherollofadvocates.BasedontherecommendationtheHigh
Iikely to U" ai3p"""a to decide the from the roll of advocates' On
whether Re"pondeni Court removed the tt'o" of I\{anak Lal
in a Particular waY' appealoneofthepointsofargurnerrtonbehalfofappellantlvasonthe
Itistheessenceofajudgmentthat.itismadeafterdueobserr'anceofthe ground of personal'bio" b""o"'" Ch""g"t'ni
in an earlier matter had filed
passing it-obsen'es' at least the
judicial process; ttt"t ;;-co"tt o' tributtti composed of impartial persons avakalatnamaonbehalfofDr'Pt"t,'Cht"d'hencetherex'asareasonable
minimal"qrritt"'t"t" of natural justice; is though accepted the argument of bias'
*litto"t bias and it' gooJ faith' A judgment which is the apprehensio, of uir". ihe court even of the doctrine
acting fairly
""a
result of bias or *""f "r irnpartiality_is
a nullity and-the_trial "corarn non-
pc 38 22L IC 6031 ) it was held to be not applicable because ir tn" application
jud'ice". 1s"u vo"'i"ttod'l-s-i'"vossi'uia"' lnin rgas i of waiver- The Court observed-
AIR 1964 SC 1300.
56O page 379'
ffir.Chand.ra.
@2,para 20. 1957 SCR 575: AIR 1957 SC 425'
18. (1987) 4 scc 611'
i

Textbook on Administratiae Laut
The alleged bias in a rnember of the Tribunal does not render thc 1>roceedings
invalid if it is shown that thc objection against the presence of the mernber
in question had not been taken by the party even though the party krrew
about the circumstances giving rise to the allegations about the alleged bias
and was aware of his right to challenge the presence of the member in the
Tribunal. It is true that rvaiver cannot alu-a5's ancl in e\:ery case bc irrferred
merely from the failure of the party to take the objection. \\'aiver can t>e
inferred only if and after it is shown that the party knew about the relevant
. facts and was aware of his right to take the objection in question. As Sir John
Ronrilly, I\'I.R., has observed in Vyuyan..u. Vguyan2l "waiver or acquiescerrce,
like election, presupposes that the person to be bound is fully cognizant of
his rights, and, that being so, he neglects to enforce them, or chooses one
benefit instead of another, either, but not both, of which he might claim". If,
in the present ca^se, it appears that the appellant knew all the facts about
the alleged disability of Shri Chharrgani and rvas also aware that he could
effectively request the learned Chief Justice to nominate some other rnember
instead of Shri Chhangani and yet clid not adopt that course, it may well
be that he deliberately took a chance to obtain a report in his favour frpm
the Tribunal and when he carne to.know that the report had gone against
him he thought better of his rights and raised this point before the High
Court for the first time. In other words, though the point of law raised by
Shri Daphtary against the competence of the Tribunal be sound, it is still
. necessary for us to consider whether the appellant was precluded from raising
this point before the High Court by waiver or acquiescence-
From the record it is clear that the appellant never raised this point before
. the Tribunal and the manner in which this point was raised by him even
.before the High..Coprt is somewhat significant. The first ground of objection
filed by the appellant against the Tribunal's report was that Shri Chhangani
had pecuniary and personal interest in the complainant Dr Prem Chand. The
Iearned Judges of the High Court have found that the allegatiorrs about the
pecuniary interest of Shri Chhangani in the present proceedings are-wholly
unfounded and this finding has not been challenged before us by Shri Daphtary.
' The learned Judges of the High Court have also found that the objection was
raised by the appellarrt before them only to obtain an order for a fresh enquiry
and thus gain time- It may be conceded in favour of Shri Daphtary that the
judgment of the High Court does not in terms find against the appellant on
the ground of waiver though that no doubt appears to be the substance of their
conclusion. We have, hovvever, heard Shri Daphtary's case.on the question of
rvaiver and we have no hesitation in reaching the conclusion that the appellant
waived his objection deliberately and cannot now be allowed to raise it. Shri
Daphtary does not contend that at the material time the appellant did not
remember the fact that Shri Chhangani had appeared for Dr Prem Chand in
the criminal proceedings. Indeed such a plea cannot be raised by the appellant
in view of the affidavit which the appellant sought to place before us in the
21. (1861) 30 Beav 65,74:54 ER 813, 817
I
Quasi-Judicial Functions and Princi\les of Natural Justice 221 |
present appeal. Under this affidavit, the appellant's case app€ars to be that'
until he met his advocate Shri \Iurli I\lanohar for filing objections to t]re
report of the Tribunal. the appellant did not kno'"r' that shri chhangani rvas
lelally disqualified from acting as a rnember of the Tribunal. It is obvious that
this ground neceqsarill. irnplies that the appellant knerr about the facts giving
rise io the alleged disqualification of Shri Chhangani to act as a member
of the Tribunal. In substauce. the contention is that though thc appellant
knew that Shri Chhangani had appeared for Dr Prem Chand in the crimina'l
proceedings in question, he was not aware that, in consequence' Shri Chhangani
was disqlalified to act as a urember of the Tribunal. lt is this limited aspect
of the matter u'hich is prcssed before us by Shri Daphtary. Shri Daphtary
contends and no doubt rightll' that if we are satisfied that the appellant did
not know about the true legal position irr this matter and his rights arising
therefrom, his failure to challenge the appointment of Shri Chhangani on the
Tribunal rvould not raise an effective plea of rvaiYer. Horvever, irl our opinion.
it is very difficult to accept shri Daphtary's argument that his client did not
know the true legal position or his rights until he met shri N{urli l\'Ianohar.
No doubt the appellant is a junior at the Bar but even so he can claim'ten
years' standing at the Bar. Besides, he had the assistance of a lawl'er in
defending him in the present proceedings and it appears extremely difficult to
assume that neither the appellant nor his lawYer knew that the presence of
Shri Chhangani in the Tribunal could be effectively challenged by them. We
are disposed to think that even a layman, not familiar u'ith legal technicalities .'
and equitable principles on which this doctrine of disability has been based
would have immediately apprehended that the lawyer !r'ho had appeared fqr
Dr Prem Chand was authorised to sit in judgment over the conduct of the
appellant and that might cause embarrassment to the appellant and might
lead to prejudice against him. From a purely common sense point of vierv
of a layman, the position was patently awkn'ard. and so. the argument that
the appellant was not conscious of his legal rights in this matter apPears
to us to be an after-thought. since the appellant was driven to adopt this
untenable position before the High Court in seeking to raise this point for the
first time at that stage, we are not surprised that the High Court took the
view that the plea had been taken late in order to gain time and to secure
a fresh enquiry in the matter. Since we have Do doubt that the appellant
knew the material facts and must be deemcd to have been conscious of his
legal rights in that matter, his failure to take the present plea at the earlier
stage o? the proceedings creates an effectivc bar of waiver against him' It
seems clear that the appellant rranted to take a chance to secure a favourable
report from the Tribunal r.r'hich was constitutecl and when he found that he
was confronted with an unfavourable report, he adopted the device of raising
the present technical point.
In the case of Justice P.D. D,inakaran a. Hon'ble Ju'dges Inquir'y
Committee22 the court applied the doctrine of u'aiver against the petitioner
22. AIR 2011 SC 37rt :2OrI (6) SCALE 97
 l
1222 Teitbooh on Administratizte Laut
as he had waited for almost ten months after the nomination of Shri pp
Rao as a nember of the Committee and wa,s knowingly.using this defence as
a dilatory tactic- As a member of the higher judiciary it could be presumed
that the petitioner was always aware of his right to raise an objection. It u.-as
categoricalll- held that no Court can render assistance to the Petitioner in a
petition filed wi,th th.e sole object of delayin,g Jinalizati.on of the inqttirg.
However in Rattan Lal sharma u. Managing cornmittee. Dr. Hari Rant
(co-ed,ucation) Higher secondary schoolzs the court refused to apply trre
defense of waiver and laid down the important rule-
a point not raised for the first time in the writ proceeding, more
Generally,
so when the interference in the writ jurisdiction which is equitable and
discretionary is not of cours€ a must as indicated by this Court in A.M.AItison
u. B.L. sez particularly when.the plea sought to be raised for the first time
in a writ proceeding requires investigation of facts. But if the plea though not
specifically raised before the subordinate tribunals or the administrative and
quasi-judicial bodies, is raised before the High Court in the writ proceeding
for the first time and the plea goes to the root of the question and is based.
on admitted and uncontroverted facts and does not require any further
investigation into a question of fact, the High court is not only justified in
entertaining the plea but in the anxiety to do justice which is the paramount
consideration of the court, it is only desirable that a litigant shoulcl not be
shut out from raising such plea which goes to the root of dne lis involved.
5.13 DOCTRINE OF NECESSITY
The principles of natural justice are based on th.e notions of fairness hence
they cannot be cast in a rigid, mould n,or can they be put in a legal strait-
jacket. The rules can be adapted and modified by statutory provisions for the
purpose of fulfilling the dual objective of administrative efficiency along with
fairness. rn union of India u. col. J-N. sinha'{ th. court held that-
[T]he aim of rules of natural justice is to secure justice or to put it negatively
to prevent miscarriage of justice- These rules can operate only in areas not
covered by any law validly made. In other rrgords they do not supplant the
law but supplement it." It is true that if a statutory provision can be read
consistently with the principles of natural justice, the courts should do so
because it
must be presumed tha.t the Legislatures and the statutory authorities
intend to act in accordance with the principles of natural justice. But if on the
other hand a statutory provision either specifically or by necessary implication
excludes the application of any or all the principles of natural justice then the
23- (re93) 4 SCC 10.
24. (r97o) 2 SCC 458 : (1971) I SCR z9l
Quasi-J ud icial F un a io ns an d. Prin cip le, d t'lglytllJZ:ly" 44
court cannot ignore the mandate of the Legislature or the statutor5' authority
a1d read irrto the concerned provision the principles of natural justice. Whether
the exercise of a pon'er conferred should be made in accordance with any of
the principles of natural justice or not depends upon the express words of the
provision conferring the porver, the nature of the polrer conferred. the purpose
for s-hich it is conferred and the effect of the exercise of that po\l'er-
similarly in swarlesh,i cotton trfi.Its u. (Jrtion of India2s it was clarified
that-
lVhere authority functions under a statute and the statute provides for the
observance of the principles of natural justice in a particular manner, natural
justice lvill have to be observed in that m&nner and in no other. No t'ider
right than that provided by statute can be claimed nor can the right be
narrowed. Where the statute is silent about the observance of the principles
of natural justice, such statutory silence is taken to imply compliance with
the principles of natural justice. The implication of natural justice being
presurnptiue it nay be ezcluded by erpress words of statute or by necessary
intend,ment. lUhere the conflict is betueen the public interest and the priuate
interest, the presumption mqst necessarily be ueak and tnay, therefore, be
'readilg displa.ced."
Thus it can be summarized that the principles of natural justice can
not only be modified but in erceptional circun'Lstances they can eaen be
ercluded.
There is an exception to the general rule that no person shall be a judge
in his'bias, which is popularly known as the doctrine of necessitl'- Where
doctrine of necessity is rnade applicable then the principles of natural justice
u'ould be excluded. Under this doctrine "An adjudicator, uho is subject
to di.squalification on the ground of bias orinterest in the rnatter wh'ich
has to d,ecid,e, nlay be requ'ired' to ad'jud,icate if there is no other person
u,ho is cornpetent or authorized to adjud'icate or i'J a quorum cannot be
formed, uti,thout h,irn or if no other competent tribunal can be constituted,."26
It implies that in certain exceptional circumstances the administrative or
quasi-judicial authorities can pass a legally valid decision, even when the
circumstances of the case may give rise to an element of bias. The exception
has been developed on the ground that the hdministration of justice rvill
collapse irr the absence of competent adjudicating authority. The d.octrine
of necessi,ty is a comrrlon law doctrine, and is appli'ed to tide ouer the
situat'ions where there are d,ifficulties. Law does not conten'Lplate a uaculrrrlT
and a solut'ion has to be found out rather than allowing the problem to
25. [(1981) 1 SCC 664 : (r98r) 2 SCR 533.
26. MANU/SC /OOO8/I984. para 13.

Textbooh on Administratizte Law
boil ouer.2z This doctrine is applicable not only to judicial matters but
to quasi-judicial and administrative matters.
In the words of Prof. Wade-28
But there are marx' cases rvhere no substitution is
possible. since no one
elsc is empowered to act. Natural justice then has to give '*'a5' to necessitv;
for otheru'ise there is no means of deciding and the rnachinerl' of justice or
administration will break do'wn..... In administrative cases the same exigenc-r'
rnay arise. Where the statute €mpowers a particular rninister or official to
act. he will usually be the one and only person who can do so. There is
then no way of escaping the responsibility, even if he is personally interested.
Transfer of responsibility is, indeed, a recognised typc of ultra vires. In one
case it was unsuccessfully argued that the only minister competent to confirm
a compulsory purchase order for land for an airport had disqualified himself
b5' showing bias and that the local authority could only apply for a local
Act of Parliament.
In the case of -/. Mohapatro the Supreme Court did not apply the
doctrine of necessity on the ground that the members of the Assessment
Sub-Committee who were holding official positions like Secretary, Education
Department or Director, Higher Education could be substituted by the State
Government through Government Resolution and the other non-official
author members should have resigned from the Committee on the ground
of their interest in the matter.2e
One of the leading cases underlying the principles of doctrine of necessity
is Ashok Kumar Yad.au a. State of Haryana.3o I.t this case the selections
made by the Haryana Public Sen ice Commission (HPSC) to the Haryana
Civil Sen'ice (Executive) were challenged on the ground of bias. It rvas
alleged that the Chairman and sorne other rnembers of the HPSC were
related to some of the selected candidates hence some of the meritorious
candidates who had secured high marks at the written examination '*/ere
not selected during the viva voce test. The respondents argued that since
the Commission was a constitutional authority it was not necessary for
the concerned members to withdraw altogether from the interview but to
abstain from participating when their relatives came to be interviewed. The
Court'highlighted the necessity to comply rn'ith the principles of fairness by
every authority who is entrusted with the task of acting independently while
arriving at a fair and just d,ecision betuteen the riual claims of parties. It
applied the doctrine of necessity and made the following observation-
27. (20tr) r0 scc 106.
28. As quoted in State of U.P. u. Sheo Shanker LaI Sriuastaua, (2006) 3 SCC 276.
29. MANU/SC/oO08/1984, pua 13.
30. AIR 1987 SC 454.
1
I
' Quasi-Judicizl Fnnaions and Principles of Natural Justice 225
|
also We must straightaway point out that A.I{. Kraipak'a case is a landmark
in the developmelt of administrative larv and it has contributed in a Iarge
measure to the strengthening of the rule of larv in this country. \Ve u'ould
not like to whittle do*'n in the slightest measure the vital principle laid dou'n
in this decision which has nourished the roots of the rule of larr' and injected
justice and fair plal- into legalitl.. There can be no doubt that if a selection
committee is constituted for the purpose of selecting candidates ou. merits and
one of the rnembers of 'the Selection Committee is closely related to a candidate
appearing for the selection, it would not be cnough for such mernber rnerely
to withdraw from participation in the intervieu' of the candidate related to
him but he must q'ithdrarv altogether from the entire selection process and
ask the authorities to norninate anothcr persorr in his place on the selection
committee. because other-r,r.ise all the selectiorrs rnade rvould be vitiated orr
account of reasonable likelihood of bias affecting the process of selection. But
the situation here is a little different because the selectiorr of candidates to
the Haryana Civil Service (Executive) and allied services is being made not
by any Selection Committee constituted for that purpose but it is being done
by the Haryana Pirblic Service f Comrnission which is a Commission set up
under Article 316 of the Constitution. It is a Commission *'hich consists of
a Chairman and a specified mernber of members and is a Constitutional
Authority. \A/e do not think that the principle rvhich requires that a member
of a Selection Committee whose close relative is appearing for selection should
decline to become a member of the selection committee or withdraw from
it leaving it to the appointing authority to nominate another persori iri his
place, need be applied in case of a Constitutional Authority like the Public
Service Commission, whether Central or State. If a mernber of a Public Service
Comrnission were to withdrarv altogether from the selection process on .the
ground that a close relative of his is appearing for selection, no othei person
save a member can be substituted in his place. And it may sometimes happen
that no other member is available to take the place of such mernber and the
functioning of the Public Service Commission may be affected. When trvo
or more rnembers of a Public Service Commission are holding a viva voce
examination, they are functioning not as individuals but as the Public Service
Commission. Of course, we must make it clear that s'hen a close relative of
a member of a Public Servicc Commission is appearing lbr interview, such
member must withdrew from participation in the interview of that candidate
and must not take part in any discussion in regard to the merits of that
candidate and even the marks or credits given to that candidate should not
be disclosed to him.
By applying the above principle the Court held that the function of the
Public Service Commission was not iu violation of procedural fairness. It
observed-
Here in the present case it was common ground between the parties that
shri Raghubar Dayal Gaur did not participate at all in inten'iewing Trilok
 dicial F un ctio ns
Textbook on Administratit'te Laza
u
"ry4ll

Nath sharma a.d likewise shri R.c. Ir,Iarya did not participate at all when Thus the Court concluded that-
. shakuntala Rani and Balbir singh came to be interviewed and in fact, both shoulcl
is that the Chief Election Cornnrissionerissue of
fTlhe proper course to follow
^pf""tio" to on the
of them retired from the roorn w.hen the interviews of their respective relatives cail a meetittg of ttt*t
Commission adjuclicate
rvere held. Ivloreover, neither of them took any part in any discussion
in regard
of irasl on the grounds alleged by Dr Swamy-
'f]-j"v"f"fitfta act
tothemeritsofhisrelativesnoristlrereanythingtoshowthatthemarksor
disqualification as tiie Chairrnan btrt theu he tna'r'
After calling ttt" *tJti"g lre should not o*:i"'o"1:^i:j|";. f":::::"-"
credits obtained b1. their respective relatives at the intervier*'s r*'ere disclosed recuse hinrself by' "';;it;;
;'h"' ;" would
to them. \\re are therefore oi the ,rieu, that there r /^.s no infirmity attaching reach a unanimous oprnlon'
of opiniorl. If the tr"o Ei""ilot Commissioners
rvill have the opinion communicated to the
totheselectionsmadebytheHaryanaPublicServiceCommissiononthe the Chief Election Ool*i""io""r decision
groundthat,thoughtheir.closerelativewereappearingfortheinterview'Shri commissioner" clo ,.ot reach a unanimotts
from Governor. If thc tu,o ei""aio., referred to the Election
iLaghubar Dayal Caur ancl Shri R.C. \,Iarya did not withdraw completely in the matte. of "*p.Jng their
opinion on the issue
theentiieselectionprocess.Thisgroundurgedonbehalfofthepetitioners it *o"rJ"i'"'""""'"oi for the Chief Election Commissio.er to
must therefore be rejccted-
Commission,
of necessity' We think that in the special
express his opinion "; ;;<: doctrine
circumstancesoftniscas",hi""o.',"uofactiorrrr,ouldbethernostappropriate
two Election Commissioners do not agree'
we
In the leading case of Election Commission of India u. Dr'Subran'Laniam one to folloq' lrccauJ if th" the chief Electiorr
SuamyT the Sripreme Court had the opportunity to analyse the doctrine to have no doubt that ii"-ao"t.lrr"
of necessity vyould compel
opinion could be
the functioning of the constitutional body such as the Election commission Commissionet t*oiu'l.- nJ "it*t :9 lni the majority in accordance
'o to take a decision
of India. In this case the disqualification of \'{s. Jayalalitha to become a i" """U,fe him
communicatea to tt""dii"r.". of the Constitution'
* ,"qti'"d bv Article 192(1)
memberoftheLegislativeAssemblyhadtobedeterminedbytheElection ;;;t;h
commission. she raised an objection against chief Election' commissioner
on the ground of reasonable apprehension of bias on the ground of close RIGHT OF FAIR HEARING
and intirnate relationship between the respondent and the CEC, apart 5.14 justice
from the fact that the wife of CEC was the lawyer of the respondent in is the second cardinal principles of natural
Aud,i. alterarn partenL
different suit. The court while dealing with the issue analysed the doctrine whichaimstoprotecta,,i,'di,,ido'tfromadministrativeactionsrvheneverhis
adversely affected' It implies that 'no
decision
of necessity- legal rights u..u ;"opa'Jlzed or
It is rvell settled that the'law permits certain things to be done as a matter shallbegivenagain,t'pu,,tywithoutaffiordinghimareasonablehearing'.
given a reasonable opportu'ity to defend
"iountenance on th'e touchstone The person concerned shtuld be
of this procedural tool is to enable
of necessity which it wotild otherwise ricjt an
ofjudicialpropriety.Stateddifferently,thedoctrineofnecessitymakesit his legal right' The "uleciive and, it i's calculated to
imjerative for the authority to decide and consideratioDs of judicial-propriety administrative authorit y to arr,i,ue at a 1.ust iec'i's'ion
"':t*"t'; hence its reaclt
or mi,suse of power and,
must yield. It is often invoked in cases of bias where there is no other authoritv a,ct as a ltealthy checL on abuse circumscribed'32
or Judge to decide the issue. If the doctrine of necessity is not allowed full and' 'its appti'cab'ili'tg
justice should, not be no"o*'na
play in certairr unavoidable situations, it rvould impede the course of Court observed-
itself and the defaulting party would benefit therefrom. Take the case of a
lt Canara Bank '' n"t'o'l' Dos33 the Suprerne
certain taxing statute which taxes certain perquisites allowed to Judges' If Natural justice is another name
for commonsense justice' Rules of natural
But thev are-p'j":iPL: insllined into the
the validity of such a provision is challenged who but the mernbers of the justice are not '";;;;-;""ons'
- of justice in a
judiciary must decide ii. rr att the Judges are disqualified on the plea that conscience *";' N;tural justice is ihe administration
natural ideals and
down of such a legislation would benefit them, a stalemate situation "f
commonsens. tiu.roi ..,"1..-.r.,r"ti.. is-based
-.amirri"tration substantialll' ou
and
"trikirrg
may de'elop. I' such th" doctrine of necessity cornes into pla-v. If the human values. rn
of lustice is to be freed from the narrou'
lan'
".""i a biased person to act or to stifle the action
choice is between allowing are usually' associated with-a-formulated
restrictecl .o.r"ia.r.iilrr"'.,.Ari.fr It is the substance
altogether, the choice .rro"i f"U in favour of the former as it is the only way involving linguistic iechnicalities
and grammatical niceties.
to fromote decision-making- In the present case also if the two Election wliich ha^s to determine its form'
commissio.ers are able to reach a unanimous decision, there is no need for "i .i""ti.l
the chief Electiou cornmissioner to participate, if not the doctrine of necessity
may have to be invoked.
32. (1978) 1 scc 248.
rr. ;IR 2oo3 sc 2oa1: (2003) 4 scc 557
31. (1996) 4 scc 104
 t-
T"xtbook o, Adrniristrotio" Lozo '
W Quasi-Judicial Functions and PinciPles of Natsral
The expressio's "natural justice" and "legal justice" do not present a water-
tight classification. It is the substance of justice rvhich is to be sectrred by
both, and whenever legal justice fails to achieve this solemn purpose. natural
justice is called in aid of legal justice. Natural justice relieves legal justice
from unnecessary technicalit-v. grammatical pedantrl' or logical prer.arication.
It supplies the omissions of a forrnulated lanr'. As Lord Buckmaster said. no
form or procedure should er.'er be permitted to exchrde the presentation of a
litigants' defence.
The adherence to principles of natural justice as recognized by all civilized
states is of supreme importance rvhen a quasi-judicial body embarks on
determining disputes between the parties, or any adrninistrative action involving
civil consequences is in issue. These principles are *'ell settled. The first and
foremost principle is what is commonly known as audi alterarn partem rule-
It says that no one should be condernned unheard. Notice is the first limb
of this principle- It must be precise and unambiguous. [t should appraise the
party determinatively the case he has to meet. Time given for the purpose
should be adequate so as to enable him to make his representation. In the
absence of a notice of the kind and such reasonable opportunity, the order
passed becomes wholly vitiated. Thus, it is but essential that party should
be put on notice of the case before any adverse order is passed against him.
This is one of the rnost important principles of natural justice. It is after all
an approved rule of fair play. The concept.has gained significance and shades
with time. when the historic document was made at (siQ in 1215, the first
statutory recognition of this principle found its way into the "I\{agna carta".
The classic exposition of Sir Edward Coke of natural justice requiies to "vocate
interrogate and adjudicate'. In the celebrated case of cooper u. wandsworth
Board of Works,3a the principle was thus stated:
"Eren God did not pass a sentence upon Adam, before he u,as.called upon
to make his defence. "Adam" says God, "where art thou has thou (sic) not
eaten of the tree whereof r commanded thee that though should not eat".
since then the principle has been chiselled, honed and refined, enriching its
content. Judicial treatment has added light and luminosity to the concept,
like polishing of a diamond.
Principles of natural justice are those rules which trave been laid down by the
Courts as being the minimum protection of the rights of the individual against
the arbitrary procedure that may be adopted by a judicial, quasi-judicial and
administrati'"'e authority while making an order affecting those rights. These
rules are intended to prevent such authority from doing injustice.
In the case of state of orissa u. Dr. Binapani Dei35 tjne supreme court
had for the first time emphasized the importance of fair procedures a.s an
essential part of justice. While dealing with the issue of superannuation
34. 1963 (r€) ER 414.
35. AIR 1967 SC 1269 (1967) 2 SCR 625.
'lI
lustice 229
held that
based on re-fixation of date of birth of the respondent the court
him about the
when a person disputes the claim then it is necessary to inform
case, the available evidences and should provide him with a fair opportunity
of meeting that case before a d.ecision aduerse to him is taken. Describing
the importance and purpose of fair hearing it observed that-
An order by the state to the prejudice of a person in derogatiorr justice of his
vested rights mdy be made only in accordance with the basic rules of
and fair play. The deciding autllority, it is true, is not in the position of a
Judge called upon to decide an action between contesting paities, and strict
with the forms of judicial procedure may not be'insisted upon'
He is however under a duty to give the person against rn'hom an enquiry is
"orrr-pli"n"u
held an opportunity to set up his version or defence and an opportunity to
cbrrect or to controvert an1' evidence in the possession of the authority which
is sought to be relied upon to his prejudice. Iror that purpose the person
against whom an enquiry is held must be informed of the case he is called
upon to meet. and the evidence in support thereof'
In Bharat Swak Samaj u. Lt. Gouernors6 the land of the appellant
was to be acquired by the Government of Delhi for the public purpose of
creating Mehrauli Heritage Zone under the Land Acquisition Act. The order
*as challerrged on. t\e ground of improper invocation of urgency provision-
euashing the land ac[uisition order the Supreme Court held
that the
invocation of the urgency provision under Section 17(1) of the Act rvas ee
facie illegal as well-as r.bit."ry and unjustified. After referring to several
judgments the Court .highlighted the.irnportance of audi alterarn partern
by recognizing that-
except in the cases
[T]he acquisition of one's land is a serious matter and,
of-real urgency, no person can be deprived of his property without being
afforded an opportunity to file objections under Section 5-A(1) and without
the sanction of law'and without complying with the basics of natural justice'
Section 5-A represents the statutory embodiment of the rule of audi alteram
partem and unless there are compelling reasons, the state cannot invoke the
,r.g"o"y provisio! contained in section 17(1) and dispense with the application
of Section 5-A.o'
It held that no material rvas produced by the respondents to show th6
need of execution on an emergency basis and concluded that the development
of Mehrauli Heritage Zone was not so urgent that it could, not ua'it for
the feut month,s time likely to be consurneil in giuing opportunity to the
appillant to file objections und,er Section 5-A and holding of inquiry
36- (2012) 12 scc 675
37. Ibid Para 11.
 I I
l23O Textbooh on Administratiue Lazi,
under section 5-A(2). It further observed that the Lieutanant Governor
of Delhi had not applied his mind regardi'g the issue of urgency and had
mechanically invoked s.17(1) without giving due consideratioir to the grave
consequences imposed on the person r*'hose land is to be acquired.
.5.15 COMPONENTS OF FAIR HEARING
Tlre three important aspects of the doctrine of .aud,i, alteram partem are
(a) The person against whorn the proposed action is to be tiken should
be informed of the charges arrd through a notice should be intimaterl
about the reasons and the nature a'd consequences of the proposed
action.
(b) The person should be given an adequate opportunity to put forward
his defence against the proposed action..
(c) The administrative authority should take the decision or action after
duly considering the charges made. and. the explanation and defences
made by the affected person. The decision must be based on valid
rea-sons.
The court described the components of fair hearing in Tulsi,ram patel
us -
"os"38
[T]he audi alteram partem rule, in its fullest amplitude means that a person
against whom an order to his prejudice may be passed should be informed of
the allegations and charges against him, be given an opportunity of submitting
his explanation thereto, have the right to know the evidence-, bcith'oral oi
documentary, by which the matter is proposed to be decided against him,
and to inspect the documents which are relied for the purpose of being
used against him, to have the witnesses who 'pon are to give errii".r." against
him examined in his presence and have the right to croJs-examine them, and
to lead his own evidence, both oral and documentary, in his defence. The
process of a fair hearing need not, howel'er, conform to the judicial process
in a court of law, because judicial adjudication of causes involves a number
of technical rules of procedure and evidence which are unnecessary and not
required for the purpose of a fair hearing within the meaning of audi alteram
partem rule in a quasi-judicial or administrative inquiry.3e
Right of Fair Hearing comprises of several sub-set of rights which ensures
that the administrative action does not prejudicially affect the rights of an
individiral. Some of the important rights are-
(i) Right of Notice
(ii) Right to access and examine documents
38. (1985) 3 SCC 398.
39. Id. Para 96.
Quasi-Judicial Funaions and Principles of Natural Justice 231
|
(iii) Right to access enquiry reports
(iv) Right of Oral Hearing
(v) Right of Cross Examination {
(r'i) Right of Legal Representation
These rights are subject to statutory limitatior-rs and exceptions. The
I
1
extent of application of these rights rvill be dependent upon the facts of each
.!
.t
case, on the procedural norms laid dorvn in the rules and regulations and I
i!
to the extent of prejudice caused to the claimant in case of non-compliance.
speaking on the issue the suprerne court in ll[anagi.ng Director, ECIL j
Hyd,erbad, u. B. Karunaka/o observed - What part'icular rule of natural
justi,ce should apply to a g'iaen case must depend to a great ertent on the l
,i
facts and, circumstances of that case, the frameutork of the latu under whi,ch
the inquirg i.s held and the constittttion of the tribunal or the body of '.
persons appointed for that purpose. wheneuer a compla'int is made before
a court that sorne principle oJ natural just'ice has been contrauened, the
Cottrt has to decide whether'the obseruance of that rule was necessarA
for a just d,ecision on the facts of that case. The rule that inquiry must
be hetd in good fai,th and without bias and not arbitrarilg or unreasonably
is now included a'n'Long the principles of natural just'ice.
5.16 PREJUDICE TEST
Principles of natural justice have been developed with the objective of
ensuring fairness in administrative action. But it is equally important to
note that these principles should not become unnecessary road blocks in
the way of adrninistrative efficiency and functioning. In this context the
Suprerne Court has developed the prejudice test to determine the scope
and extent of the application of the various components of fair hearing and
whether non-compliance of any rules of fair hearing will invalidate the entire
administrative action taken.
In Chai,rman, Board' of Mi'ni'ng Etant'ination u. Rarnjeear, the Supreme
Court had observed that-
Natural justice is not an unruly horse, no lurking land-mine. nor a judicial
cure-all. If fairness is shor,r'n by the decision-maker to the man proceeded
against, the form features and the fuudarnentals of such essential processual
propriety being conditioned by the facts and circumstances of each situation,
no breach of natural justice can be cornplained of. Unnatural expansion of
natural justice, without reference to the administrative realities and other
40. ArR 1994 SC 1074 (1993) 4 scc 727-
41. IUANU/SC /006l/1977 a^s quoted in Karwnakar ase (AIR 199'1 SC 1074)
t-
123,2 Textbooh on Administratiae Laza
factors of a given case, can be exasperating. The Courts cannot look at law in
the abstract or natural justice as A rncre artifact. Nor can thcy fit into a rigid
mould the concept of reasonable opportunity. If the totality of circumstances
satisfies the Court that the party visited with adverse order has not sufferecl
from denial of reasonable opportunit]'. the Court rvill decline to be pructilious
or fanatical as if the rules of natural justice q'ere sacred scriptures.
In Canara Bank u. Debasis Dasaz t]ne Court concretized the theory of
prejudice test and observed-
Concept of natural justice has undergone a great deal of change in recent
years. Rules of natural justice are not rules embodied always expressly in a
statute or in rules framed thereunder. They rnay be implied from the nature
of the duty to be perfoimed under a statute. What particular rule of natural
justice should be implied and *.hat its context sllould be in a given case must
depend to a great extent on the fact and circumstances of that case, the
frame-work of the statute under which the enquiry is held. The old dibtinction
between a judicial act and an administrative at has withered away'. Even
an administrative order which involves civil consequences must be consistent
with the rules of natural justice. Expression 'civil consequences' encompasses
infraction of not merely property or personal rights but of civil liberties,
material deprivations, and non-pecuniary damages. In its wide umbrella comes
everything that affects a citizen in his civil life.
It was further observed that if the appellant fails to show that any
prejudice suffered, failure of justice has taken place or it is not in public
interest to dismiss a petition, the Court may refuse to exercise jurisdictiorr
- Legal formulations cannot be diuorced frorn the fact situation of the
case.
5.17 DISTINGUISHING BETWEEN SUBSTANTIVE AND
MANDATORY PROVISION WITH DIRECTORY PROVISIONS.
In State Bank of Pat'iala u. S.K. Sharmaas the Supreme Court distinguished
between mandatory and directory provisions and upheld the relevancy of
the prejudice test based on the nature of the procedural non-compliance. In
thls case the respondent wa-s n'orking as a \Ianager in one of the branches
of the appellant Bank. He nras charged with temporary misappropriation of
fund of one Jarnail Singh. The respondent had received the amount from
Jarnail Singh but did not credit the amount into the concerned bank account
even though he had issued a letter stating that the bank loan had been
adjusted. The principle point of defence was that half an hour before the
42. AIR 2003 SC 2041 : (200,z) 4 SCC 557.
43. AIR 1996 SC 1669 : (1996) 3 SCC 364.
I
Quasi-Judicizl Functions and Principles of NaturalJustice 233 |
commencement of the enquiry proceedings a list of documents and witness
statements were provided to the respondent but the actual copies of the
documents and the statements recorded during the preliminarlr et Orr't" *.t"
not supplied to him. He was a"sked to peruse, examine and take notes of
the docurnents and statements. The respondent contended that non-furnishing
of t|e docurnents and staternerrts of the rvitnesses adversely affected his
ability to properly defend himself and were in violation of Regulatiol of 68
(b) (iii) of the
Relevant portions of Regulation 68 are-
(a) The inquiring authority shall n'here the officer does not admit all or
any of the articles.of charge furnish to such officer a list of documents
by which and a list of witnesses by whom, the articles of charge are
proposed to be proved.
(b) The inquiring authority shall also record an order that the officer may
for the purpose of preparing his defence:
(e) inspect and take notes of the d'ocuments listed, within five da1's
of the order or.within such further time not exceeding five days
as the inquiring authority may allow;
(zi) submit a list of documents and witnesses that he wants for
enquiryt
(iii) be supplied with copies of statements of utitnesses, if any, recorded
earlier and the inquiring authority shall furnish such copies not later
than three d,ays before the commencernent of the erarnination of
'
the witnesses bg the inquiring authori'ty-
(iu) give a notice within ten days of the order or within such further
time not exceediirg ten days as the inquiring authority may allorv
for the discovery of production of the documents referred to at
(ii) above.
In violation of the requirement to provide documents prior to three days
of the enquiry, the respondent was given the opportunity to examine the
documents o1 the same day of the enquiry. The core issue before the Supreme
court rvas ,whether the failure to literally comply with sub-clause (i,ii) of
clause (b) of Regulation 68 r'itiates the enquiry altogether or rvhether it can
be held in the circumstances that there has been a substantial compliance
with the said sub-clause and that on that account, the enquiry and the
punishment awarded cannot be said to have been vitiated.' In this case the
court laid down the theory of mandatory and directory procedrues and held
that-
sub-clause (iii) aforesaid is indisputably part of a regulation made in exercise
of statutory authority. The sub-clause incorporates a facet of the principle
of natural justice. It is designed to provide an adequate opportunity to the
 -l ud.icial Functions anil
Textbooh on Administratiae Lazo
principle underlying
the enquiry and the punishment 1oi1t or whethcrinthe
effectively and thereby defend crPC is applicable the case of disciplir.rary
delinquent officer to cross-examine the *'itnesses section 99 cPC and section 465
should be one of
that neither the enquiry in
himself properly. ft i, t"i"t""t to note in test
this behalf thc such cases
proceedings as rvell- In our opinion'
or trial court' appellate court or HiEh in this judgment' But this statement is
officers' report nor th";;dg*";; 'n" relevant time that he
prejudice, as u'ould be later explaine<l
Court say that the respondent had protested at the ;il;;; a rider. The regulations ma\. contain certain substantive provisions.
to cross--examine the $'itnesses effectivelS' authority to impose a particular punishment on a
q,as denied an adequate opportunit]- e.g., u'ho is the competenl
of the statements of such provisio[s must be strictly complied
with- But
or to defend himself o;cl;-elt o'.' ""to"tt of non-supply recorded that.rvh3n he was oirii""i*."*ployee/officer.
has
witnesses. The appellate to"it, o" the contrary'
the theremaybeanynumberofproceduralpror'isionsl'u'hichstandonadifferent
take notes from the documents including among procedural provisions, there
advised to peruse, footing. we must hasten to add that even
"*u.r,,i"" "t'ast"ch and Balwant singh), the only objection may be some provisions-which are of a fundamental
of which
nature in the case
statements of wit'esses i?"...
marked Exhs' P-6' P-10 and may not be applicable' For examfle' take
raised by the respondent ias thot 'ithe documents the theory of substantial compliance
officer/employee
and should not be considered that the delinquent
p_11 were only photostat .G"s
-p-0,""a not
originals
documents other than the
a case where a .rrl" "*p'"""iy provides in support of
or marked exhibits. tB"it' P-10 and F-11 shall be given an "pp"t'""iiv to produce evidence/material
statements of *itness.s,-i'"'r"f Kaur Singh
and "'"
Balwant Singh') I\'loreover' as his case after the close of eviience of the other
side. If no such oirportunity
long after the expiry of it will be difficult to say that
pointed out above. the examination of witnesses began
ivas advised to and he did
is given at all in "pi;; ;; o tuqtto"t therefor'
provisions' it
the enquiry is not vitiated' But in respect of
many procedural
three days from the day on which the respondent
peruse the documents Jnd statements of witnesses' In the circumstances' it is u,ould be possible t" "ppt" the thcory of.substantial compliance or the test
be stated in the follon'ing
possibletosaythatttrerehasbeenasubstantialcompliancewiththeaforesaid of prejudice, as the cas!'may be' The position can have to be complied
nature
sub-clause(iii)inthefactsandcircumstancesofthiscase'thoughnotafull violation words: (1) Regulations which are of a substantive
compliance would
compliance. This, in ,;;;; the question whether each and every with and in case of sucl frovisions, the theory of substantial
provisio.s, there be some
ofrulesorregulationsgoverningtheenquiry.automaticallyvitiatestheenquiry not be available. (2) ;;;" among procedural to be complied-may with and in
and the punishment J;;t;J;" whether the test of substantial compliance provisions of a fundam"ot"l "tt"-'" which have
may not be available' (3)
canbeinvokedi,,"us"sofsuchviolation.andwhethertheissuehastobe whose case, the theory of substantial compliance
So far as the position obtaining other than of a fundamental nature' the
examined from the o"i"i crf view of prejudice' In respect of proceauJaf-pt""iS"t"
the code of cirrit pro".aure-and the code of criminal procedure is theoryofsubstantiar"o*pri",,""wouldbeavailable.Insuclrcases,complaint/
under
concerned, there are provisions--thereunder providing -for such situation' objection on this I,i"" to be judged on the touchstone of prejtdice, as
"o"Jn"
boa" or Civil Procedute Chapter 35 of the
attd ".* ott5t rvords' the test is: all things taken
There is Section 99 explained later in tttis ;uJgmtnt' f1t-
":i;; had' or did not hate a Iair
Code'of .Criminal Procedure' Section 99 CPC says: together whether tn"- i"tliqu"nt officer/employee
pro"'ision falls in which of the aforesaid
hearing- \A/e rnay ctatiiy thot which
to the nature
"Nodecreeshallbereversedorsubstantiallyvaried'norshall-anycasebe
of any misjoinder or non-joinder of parties categories i, ,Irrar". io be decided in each case ha'ing regard
in appeal o"
remanded, """"*tt " provlslon'
and character of the relevant
orcausesofactiono,-on'yerror,d'efectorirregulari'tyino:U'.p''.oceedings
or the jurisd'icti'on of the
in the suit, not off""tlfi" tit *"'iti of the casi
Court."
Afteranalysisofthefactsofthecaseandthebehaviouroftheresponderrt
which occurs in Chapter 35 theCourtconcludedthattherespondenthadwaivedofhisrighttoclaim
Section 465(1) of the Criminal Procedure Code'
I

theproceduralsafeguardsandsincetherewassubstantialcomplianceofthe
I

The respondent d'i'd not

I

similarly Provides that: I

rules no prejudice e'a,s suffered by the respondent'
..Subjecttotheprovisionshereinbeforecontained,nofinding,sentenceororder the n,o,n-ly.nishing.of the copie's
jurisdiction shall be reversed or altered by a raise any objection d;';;'g the eiquirg th'at
i
hirn' as the case nlay
passed by a Court
"i'""*pti"t' of any error' omission or of the statements ls dlsibtlng him or has disabledor to defend himself""
Court of appeal, confirmation or revision on acc6unt be, from effectiuely cross-er;rnini'ng
the uitnesses
irregularity in the complaint, summonst *"1'1':, ot*t"-:l]:-i:::-9::ljudgment rispondent on account of not furni,shing
or oth'er to the
or other pro"""d,ing"' before or d,uri'ng trial or i'n ang inqui'ry no prejud,ice has res;ulted,
proceed'ings und'er thi's Cod'e, ot any error' or irregularity in any sanction hi,m tie copies of the statements of uitnesses'
fortheprosecution,unlessintheopinionofthatCourt'afailureofjustice
has in fact been occasioned thereby'" 5.18 RIGHT OF NOTICE
ItisnotbroughttoournoticethattheStateBankofPatiala(officers,)Service Therightofnoticeisthefirstessential.o*po.,".,,ofaud,i.alteronpartem.
implying 'being
Regulationcontainso."i"l""correspondingtoSectionggcPCorSection465
CrpC. Does it mean that any ard every violation
of the regulations renders The term ,notice, origi*.tea frorn the Latin worcl 'not'ia'

Textbooh on Administratioe Lau
knorvn'. The sending of notice rnarks the first step towards initiating an
adjudication process and fulfils the objective of informing the other party and
enabling him to prepare for the defence. Non-compliance with this essential
rule is often considered as negating the application of principles of natural
justice. Notice is considered as sine quo non of fair hearing.
A valid notice should contain information relating to time, place and
nature of hearing; the legal authority before whorn the hearing is to take
place; description of the specific charges etc. The adequacy o,f a notice is to
determined on the basis of whether sufficient information had been provided
to the affected person so as to enable him to prepare for his defence
effectively. In State of Jammu and Kashmir u. Haji Wa.li Mohamrned44
a r\otice of 24 hours were given by the Municipality for the purpose of
demolition of a house in a dilapidated condition. The Supreme Court
invalidating the actibn taken held that even though no time was fixed in
the statute for determining the period of notice, it u'as necessary to grant
a reasonable period . of time.
Speaking on the importance of notice the Supreme Court made the
follot'ing observation in Olga TeIIis u. Bombay Municipal Aorporationas -
The proposition that.notice need not be given ofa proposed action because,
there can possibly be no answer to it, is contrary to the well-recognised
understanding of the real import of the rule of hearing. That proposition
overlooks that justice must not only be done but must manifmtly be seen
to be done and confuses one for the other. The appearance of injustice is
the denial of justice. It is the dialogrie'ii'ith the person likely to be affected
by the proposed action which rneets the requirement that justice must also
be seen to be done- Procedural safeguards have their historical origins in
the notion that conditions of personal freedom can be preserved only when
there is some institutional check on arbitrary action on the part of public
authorities I Kadish,.'I\fethodology and Criteria in Due Process Adjudication
A Survey and Criticism/61 . The right to be heard has trvo facets, intrinsic
-and instrumental. The intrinsic value of that right consists in the opportunity
which it gives to individuals or groups, against whom decisions taken by public
authorities operate, to participate in the processes by which those decisions
are made, an opportunity that expresses their dignity as persons. [Goldberg
a. KelIyaT (right of the poor to participate in public processes)-l
Whatever its outcome, such a hearing represents a valued human interaction in
which the affected person experiences at least the satisfaction of participating
in the decision that vitally concerns her, and perhaps the separate satisfaction
44. (1972) 2 SCC 4O2.
45. ArR 1986 SC 180.
46. 66 Yale LJ 319,340 (1957)
47. 397 US 254, 264-65 (r97O).
I
Quasi-Judi.cizl Functians and Pinciples of NaturalJustice 237
l'
of receiving an explanation of why the decision is being macle in a certain
way. Both the right to be heard from, arrd the right to lrc toid why, are
analytically distinct from the right to secure a different outcorne; these rights
to interchange express the elementary idea that to be a person, rather than
a thing. is at least to be consulted about s'hat is done n-ith one. Justice
Frankfurter captured part of this sense of procedural justice u'hen he rvrote
that the "validity and rnoral authority of a conclusion Iargely depend on the
mode by which it was reached ..-.No better instrument has been devised for
arriving at truth than to give a person in jeopardy of serious loss notice of
the case against him and opportunity to meet it. Nor has a better *'ay been
found for generating the feeling, so important to a popular government, that
justice has been done" lJoint Anti-facist Refugee Committee v. AfcGrathlgl.
At stake here is not just the much-acclaimed appearance of justice but, from
a perspective that treats process as intrinsically significant, the very essen,ce
of justice [See Anerican Constitutional Larv by Laurence H. Tribe, Professor
of Law, Harvard Universityae]
The instrumental facet of the right of hearing consists in the means which it
affords of assuring that the public rules of conduct, which result in benefits
and prejudices alike, are in fact accurately and consistently followed.
It ensures that a challenged action accurately reflects the substantive rules
applicable to such action; its point is less to a"ssrre participation than to use
participation to assure ac.urocy.so
In the leading case of ,S.r. Kapoor u. Jagmohansr invalidated an
administrative action on the ground of non-issuance of a show cause notice.
The Court categorica,lly held that "In. our uiew the principles of natural
justice know of no erclusionarV rule dependent on ?ohether it would
haue made any difference if natural justice had been obserued. The non-
obseruance of natural justice is itself prejudice to any nlan and proof of
prejudice independentlg of proof of denial of natural justice 'is unnecessarg.
It ill comes from a person who has d,en'ied justice that the person who
has been denied justice is not prejud'iced."
The importance of right to notice was discussed b1' the Supreme Court
in the leading case of Olga Tellis u. Bombay Munic'ipal Corporation.s2 In
this case the Court recognized the necessity to issue notice even t'hen the
statute specifically provided for taking an action lr'ithout a notice. Under
Section 31a (a) of the Bombay l{unicipal Corporation Act the Commissioner
rlaay, u'ithout not'ice, take steps for the removal of encroachments in or upon
48. 341 US 123, r7r-72 (r95r)
49. (1978 Edn.. p. 503).
50. Id.
51. (1e80) 4 scc 37e.
52. ArR 1986 SC r80.
 I
I
| 238 Textbooh on Administratiae Lazl

any street, channel, drains, etc. One of the core issue before the Court was Howeveriftheaggrievedpartyhadpriorinformationabouttheproposed
to make
whether such a procedure can be considercd to be legal, fair and reasonable. action to be taken and lre had been atlequate opportunity of notice
The Court upheld the legality of the provision by emphasizing that such representation against such action, then the formal requirement
powers could be exercised by the Commissioner without notice onlf in -Co.be dispensed with on
can the ground of useless formality. In Keshau MiILs
extraneous and urgent circumstances. The Court observed- Ltd ,. [Jnion of Indiasa the Gor.ernment of India after compl]-ing $'ith
(De'elopment a:rd Regulat'ion)
f-""d,rr", laid down under the Industries iMills for a
Section 314 is in the nature of an enabling provision and not of a compulsive ict, 1951 decided to take over the managenrent of the Kesha' that the
character. It enables the Commissioner. in appropriate cases, to dispense with plri.a of five years because after due enquiry it u'as of the opinion
previous notice to persons who are likely to be affected by the proposed action.
factory was being managed in a manner which \{as detrimental
to public
It does not require and, cannot be read to mean that, in total disregard of over the keys of the factory the appellants
the relevant circumstances pertaining to a given situation, the Commissioner interest. At the time of handing
ground of no prior
must cause the removal of an encroachment rvithout issuing previous notice. objected to the action taken by the Governrnent on the
noiice being sent. The Court after analyzing the various
facts of the case
The primary rule of construction is that the language 'of the law must
' receive its plain and natural meaning. What Section 314 provicles is that the negated the requirement of a fresh notice and held that -
Commissioner rnay, without notice, cause an encroachment to be remo\€d.
It does not command that the Commissioner shall, without notice, cause an [S]incetheappellantshavereceivedafairtreatmentandalsoallreasonable
encroachment to be removed. Putting it differently, Section 314 confers on the opportunitiestomakeouttheirowncasebeforeGovernmentt}reycannotbe
given a fornal
Commissioner the discretion to cause an encroachment to be removed with or allowed to make any grievance of the fact that they were not
calling ,rpor. ir,!* to shorv cause why their undertaking should not be
without notiie. That discretion has to be exercised in a reasonable manner so notice
as to comply with the constitutional mandate that the proceduie accompanying takenoverorthattheyhadnotbeenfurnishedwithacopyofthereport.
the performance of a public act must be fair and reasonable. We must lean in ii"v n"a made all thl representations that they could possibly have made
favour of this interpretation because it helps sustain the validity of the law. againsttheproposedtake.over.Bynostretchofimagination'canitbesaid
tf,at the order for take-over took tliem by surprise. In fact Government
gave
Reading Sectioir 3i4 as containing a command not to issue notice before the
removal of an encroachment will make the law invalid. themampleopportunitytoreopenandrunthemillontheirownifthey just did
wanted to the ta'keover. The blunt fact is that the appellants
It must further be presumed that, while vesting in the Commissioner the ".roii
nothavethenecessaryresourcestodoso.Insistenceonaformalhearingin
power to act withciut notice, the legislalure intended that the power should
such circumstances is nothing but insistence on an empty formality'
be exercised sparingly and in ."""r'oT'it.g"ncy which broirk no delay. In all
other cases, no departure from the audi alteram partem rule ("Hear the other
side") could be presumed to have been intended. Section 314 is so designed as
to exclude the principles of natural justice by r*'ay of exception and not as a
5.19 RIGHT TO ACCESS AND EXAMINE DOCUMENTS
made needs
general rule. There are situations which demand the exclusion of the rules of Access to documents on the basis of which charges have been
natural justice by.reason of diverse factors like time, place, the apprehended that he may be able to prepare for
to be provided to the affected person so
danger and so on. The ordinary rule which regulates all procedure is that
his defence properly and be able to refute t5e charges made.5s In Kash'inath
persons who are likely to be affected by the proposed action must be afforded enquiry was instituted against
Di.kshita a. [Jnion of Ind.ia56 a departmental
an opportunity of being heard as to why that action should not be taken. which were specified in the statement
the appellant on some serious charges
The hearing may be given individually or collectively, depending upon the
facts of each situation. A departure from this fundamental rule of natural of allegations accompanying the chargesheet. He challenged the dismissal
justice as he had not
justice may be presumed to have been intended by the legislature only in o.de. o-n the ground of violation of principles of natural
preliminary
circumstances which warrant it. Such circumstances must be shown to exist, been given copies of all the statements nade by witnesses at the
when so required, the burden being upon those who affirm their existence.s3 inquir:y nor were the copies of the document based on which the charges
authority allowed
were levelled were prorridud to him. The disciplinary
In this case the Court rec<.rgnized that the unauthorized pavement dwellers
are also entitled to enjoy the benefits of fair hearing.
54. (1973) 1 scc 380.
55. State oJ Uttot Prad'esh u. Saroj Kumar Sinha (2010) 2 SCC 772''
53. (1985) 3 SCC 545, para 44-45. 56. (1986) 3 scc 229-

.| ..."-
l}40 Textbook on Administratiae Lazo
him to inspect the copies of the statement and documents in question ancl
make personal notes from it, but denied his request of taking the help of a
stenographer. In totality there q'ere about 38 witnesses who were examined
and about 112 documents which were produced. upholding the claim of denial
of reasonable opportunity to defend himself the court observed
. when a government serva't is facing a disciplinary proceeding, he is entitled
to be afforded a reasonable opportunity to meet the charges against him
in an effective manner. And no one facing a departmental pnquiry can
effectively meet the charges unless the copies of the relevant staternents
and documents to be used against him are made available to him. In the
absence of such copies, how can the concerned employee prepare his defence,
cross-examine the witnesses, and point out the inconsistencies with a view
to sho"' that the allegations are incredible? It is difficult to comprehend why
the disciplinary authority assumed an intransigent posture and refused to
furnish the copies notwithstanding the specific request made by the appellant
in this behalf. Perhaps the disciplinary authority made it a prestige issue. If
only the disciplinary authority had asked itself the question: "what is the
harm in making available the material?" and weighed the pros and cons, the
disciplinary authority could not reasonably have adopted such a rlgid and
adamant attitude. on the one hand there was the risk of the time and effort
invested in the departmental enquiry being.wasted if the courts came to the
conclusion that failure to sopply these materials would be tantamount to denial
of reasonable opporturiity to the appellant to defend himself. on the other
hand by making available the copies of the documents and statements the
disciplinary authority was not running any risk. There was nothing confidential
or privileged in it. It is not even the case. of.-t[e respondent that. there was
involved any consideration of security of state or privilege. No doubt the
disciplinary authority gave an opportunity to the appellant to inspect the
documents and take notes as mentioned earlier. But even in this corinection
the reasonable request of the appellant to have the relevant portions of the
documents extracted with the help of his stenographer was refused. He was
told to himself make such notes as he could.
Be that as itmay, even without going into minute details it is evide't that
the appellant was entitled to have an access to the documents and statements
throughout the course of the inquiry. He would have needed these documents
and statements in order to cross-examine the 3g n itnesses n'ho q,ere produced
at the inquiry to establish the charges against him. so also at the time of
arguments, he would have needed the copies of the documents. so also he
would have needed the copies of the documents to enable him to effectively
cross-examine the witnesses with reference to the contents of the documents.
It is obvious that he could not have done so if copies had not been made
available to him. Taking an overall view of the matter we have no doubt
in our mind that the appellant has been denied a reasonable opportunity of
1
I t
Quasi-Judicial Functions and Pinciples of NaturalJustice
241
|
exonerating himself. We do not consider it necessary to quote extensively from
the authorities cited on behalf of the parties, bcyond rnaking passing reference
to some of the citations, for, whether or not there has been a denial to afford
a reasonable opportunity in the backdrop of this case must substantially depend
upon the facts pertaining to this matter'"'
In this case the Department hacl failed to establish that the appellant did
not suffer from any prejudice due to non-suppliance of the documents. This
view was reiterated by the Supreme court in state of u.P. u. shatrughan
.Lal58 wherein the respondent argued that the dismissal order
issued were
illegal as the copies of the documents on the basis of which charge-sheet
were prepared were not supplied to him nor were the copies of the staternents
re"orJed during the preliminary enquiry. In addition the records were
not made available to hirn for inspection. Applying the test laid dou'n in
Kashinath Diksh'ita case t}re Court held that-
Preliminary enquiry which is conducted invariably on the back of the delinquent
employee-"yoft",'constitutethewholebasisofthecharge-sheet.Beforea
p"*. is, thlrefore, called upon to submit his reply to the charge-sheet' he
must,onarequestmadebyhiminthatbehalf,besuppliedthecopiesofthe
statements of witnesses recorded during the preliminary enquiry particularly
if
those witnesses are proposed to be examined at the departmental trial' This
principle was reiterate d, in Kashinath Di,kshita v. (Jnion o! Ind.iase wherein it
was also laid down that this lapse would vitiate the departmental proceedings
unless it was shown and established as a fact that non-supply of copies
of those
in his
documents had not caused any prejudice to the delinquent defence.
It u,as held that copies of the documents which were indicated in the
charge-sheet to be relied upon as proof in support of the articles of
charges
were-not supplied to the respondent nor lvas any offer made to him to inspect
those documents, hence there was a failure to comply with the principles of
natural justice. In addition the appellant had failed to establish that non-
supply of the documents had not caused any prejudice to the respondent
in
defending himself.
HighlightingtheimportanceofaccesstodocumentstheSagirAhmadJ.
I
l. observed-
[o]neoftheprinciplesofnaturaljusticeisthatapersonagainstwhoman
."iio' i, p.ofosed to be taken has to be given an opportunity of hearing.
This opportunity has to be an effective opportunity and not a mere pretence'
In depu..t-ental proceedings where charge-sheet is issued and the documents
w-hich are proposed to be utilised against that person are indicated
in the
57. Id Para 10 - 12.
58. (1e98) 6 scc 651.
59. (1e86) 3 scc 22e.
 T
t
I
1242 T"*tbook on Ad*tuhtrotto" Lo-
Everything
of fair-play requires real flexibility'
the application of the concept and circ"umsto*"" of a case As T\rcker' L'J"
charge-sheetbutcopiesthereofarenotsuppliedtohirrrinspiteofhisrequest,
it cannot be will depend on the o""'-oJ-fot'" requircrnetrLs of nat'ural
justice
and he is, at the same tirne, called'upon to submit his reply' observed in i'f'" i it'folk63t"'The thc nature of the enqulry'
Rt,ssell
'
opportunity to dlfend was provided to him'60 the of the case'
said that .n must depend on "i;;;*;t"; is acting' the subject-matter that
is being
the rlles under rvhich ii" itii""tf
"tfu"tin
dealt with and so forth'"
5.2O RIGHT OF HEARING in the present case' the Court held
that -
conponent of fair hearing' t:":l"F Applying the above rationale
-Right of heaiing is the most important of India came to hold the opinion
that
provides an opportunity to the aggrieved person to make a.'representation In the instant case, the Government in respect of the
any adverse there rvas o substantia-l i"if
i" the volume of production
against the proposeO action to be taken and to rebut and refute for *iti"h Got'urnment -apparently
charges made against him. Company's ptod""tio"'oi;;t.to" "*tiles p'"'t'tili"g economic conditions' The
justification nJt!-t"gttd.to tlo' of
Right of hearing includes-
found no its opioi"t' under' the' terms
Governincnt ** o";;;;T;;1"- for tt" -io oi,,r"kitrg full and complete
(i) Presentation of the arguments by written statements or oral fody ''ighl"
pn.por"
section 15, an investi;;;g of the'case' This is what the
Government
into the with this
submissions investigation "it""L"otit* indeed thev cannot' find fault
(ii) Producing of witnesses and relevant evidences did and the appellan;^ d;";;;;; admitted case that for three years prior to
action of the Go.,errrrri""i.
rr^oiu" as-a result of
(iii) cross-examination of other witnesses giving evidences against him 1969 the Company n"J-u.".'
running i..to "o,'ti.,.,"I difficulties 57'76 lakhs'
to Rupees
i"""o *t i"i "-orlnted up It rrras onlv on l{ay
(iv) Submission of the claims which the, company "ojrulJ of 1968'
Uy tt'"
In Keshau Mills Co- Ltd, u' (Jnion of Ind'ia6L the Court discussed In fact the mill h"d;;';; "to"ta Iodit
"tJ
appointed the Investigating Committee to
the importance of right of hearing' The appellants had argued that
the 31, 1969, that Governie"iof appellants do not ma}.<e
bo*p".ry'" *iii. rn"
finally deciding to take inro the #;;'Jih"
Government *u^. bo,rrid to give them a hearing before investigate
jl**,f,:,nuff ':::*,:t'.fifiiq"S'trffi ::
over the factory under Secion 18A of the Act' Recognizin!. the
far-rea'ching ;U;;::;;,,*:*":lji;
carrled o
of the company' its shareholders' which theY of being heard and 3T".:l."oorrtunitv
consequences of such actions on the rights eave ro the company;,"r, ";;rdity uJ complaint thab up to this
its employees and all persons who have contractual dealings and tra'nsactions lf .dducing "t'iat"""' ii"i"'it"' tttti"fo"' ""of natural justice'
rvith that company the Court held that it is necessary to provide at t
some the rules
making stage ttrere was anv fil;;;;tlr'e submitted
stage a ,"oroiobi" opportuni,ty to the und'ertaking concerne'd for I of the Investigating Committt:knew
the In January 1970, the report appeltonts' they -T: that there
suitable representatl)ns ogol,ist the proposed' take-ouer. Determining I
to Governme'-'t u'"a' ott"'tit
o*i "nJ*ing'
under Section 18-A
nature and extent of fair hearing the Court observed- appoinling a"C""ttJif"t
I q'as a likelihooa of C"o"""*# b" no question that the
1 to take over the
'nolii;#;;J;o"t^ Tt,";
and
""'
amplitude of the investigation
Theconceptofnaturaljusticecannotbeputintoastraight-jacket.ItiSfutile' oi tt'"
justice from various t appellants *"t" tuttf''oil"iu "top"
therefore, to look for dlfinitions or standards of natural I initiated bY Government'
irv t" them to the facts of any given case' The onlv I it clear even to
decisions and then the Committee would make
"ppfy
essential point that Las to le k pt in mind in all cases is that the person ...... The terms of reference of*oditio" of in" C"*pany that the Government
a opportunity of presenting his case and I one not aware of tftJ *"""'"f" the enquiry
concerned should have reasonable
its fi"ancial o""iti""' Even though
that the administrative authority concerned should act fairly, impartially and I was genuinely """""-';;';;;; tst"l' the comrnittee a'd
reasonably.Whereadministrativeofficersareconcerned'thedutyisnotsoof itselr *'as ordered ffi";;;*ii"" 315J"tJ
##
:
much to act judiciaily as to act fairly.-see, for instance, the obsen'ations theGovernmentnal-tuthoritytot'"ttti"''"lortas'ifitwasalsomade
L'"" Once an i""""tie"'i"" has
been validlv made
Lord parker in tn ,i i.X. (an in'ani).62 It only means that such measure
of i
under Section 15(b);ii"
naturaljusticeshouldbeappliedaSwasdescribedbyLordReidinRi'ilgev. over the *t";;;;; of an industrial undertaking
underSection15it;;heldsufficienttoempoweitheCentralGovernmentto
Bald,win cose a ..insusceptibie of exact definition but what a reasonable
man authorise a persorr tolu'tt on which the' investigation
th" ;;;;;-o'- "o"ttllt "f th;";;;;i"n
I
the appellants
wouldregardasafairprocedureinparticrrlarcircumstances,'.However,even irrespective
"f decisio' ia i.'';;; possible for
was initiated. r,' "rl.,I'"r thi"
60. (1998) 6 SCC 65r. t
61. (1973) 1 scc 380. or. trsag) I All ER 109
62- (1967) 2 QB 617. I
1
-.1
,.
to contend that they were not aware that as a res.lt of the report of
the Investigating committee the Governmcnt could pass a' order
''der
section 18-A(1)(b) and assume management or control of the comDa'r',s
undertaking......
All these circumstances lean,e us in no manner of doubt that the co.rpany had
full opportunities to make all possible representations before the Governmcpt
against the proposed take-over of its mill under Section 18-A. In this connection
it is significant thateven after the writ petition had been filed before the
Delhi High court the Government of India had given the appelfants at their
own request one rrionth's time to obtain the necessary funds to commence the
working of the mill. Even then, they failed to do so.
on the issue of application of principles of natural justice it was
held
that adequate compliance had taken place becau se the appellants were giuen
a full hearing at the time of the inuest,igati.on held by the Inuestigating
comrnittee and were also giuen opportunities to ad,d,uce eu,id,ence...e,uen
after the Inuesti,gating committee had subrnitted, its report, the appellants
utere in constant comrnunion uith the Gouernment and uere in
fact
negoti'at;ing uith Goaernment for such help as might enable them to reopen
the miII and to auoid a talee-ouer of their und.ertaking by the Gouernment.
Any additional opportunity of hearing ryould only have acted as an emptg
formalitg.
5.21 RIGHT OF ORAL HEARING
In departmental enquiries hearing generally takes place through written
submissions. oral hearing takes place in certain occasions depending upon
the nature of the enquiry conducted, i'volvement of complicated facts,
complicated legal and technical questions are involved etc. In the case of S.L.
Kapoor u. Jagmohanoa the court held that oral hearing is not a necessity and
the nature of the hearing has to be determined based on the nature of the
proceeding as long as reasonable opportunity of representation is provided.
An aggrieved person cannot demand oral hearing as a matter of right, unless
the statute categorically provides for the same or the adjudicating authority
determines that in the absence of oral hearing the concerned parties will
not be in a position to adequately present their cae.65
rn M.P. Industries Ltd. a. [Jnion of Ind,ia66 the court categorically
held that the aggrieved. person is not entitled as of right to a
hearing.
personal
64. (re80) 4 scc 379.
65. Stote Bank of Patiala u. Mahend,ra Kumar Singhol 1994 Supp (2) SCC
66. (1966) r SCR 466 : ArR 1966 SC
46J
671.
.. 1
Quasi.JudicialFundionsandPrinciPlesofNaturalJustice245|''.
Itisnodoutltaprincipleofrraturaljusticethataquasi-judicialtribunal
cannotmakeanydecisionad'r,erset.oaparty'a'itlrotrtgivinghimaneffective
opportunity of meeting any relevani allegations against him"" no order shall
be- passed against any applicant unless he has been given an opportunity
to
against the comments. if any. received from the state
make his representations
Governrnent or other authoritl-. The said opportunitl' need not necessarily
bebyper-sonalhearing,Itcanbebywritterrrepresentation.Whetherthe
tppoitunity should be by written representation or by personal hearing
"aid
a.p.r'i, upon the facts of each case and ordinarily it is in t5e discretion of the
tribunal. The facts of the present case disclose that a rvritten representation
,*,ould effectively meet the requirements of the principles of rratural justice'
In the case of state of uttar Prad,esh u. Maharaja Dharrnander Prasad
Singh,T controversy had arisen relating.to lease of land by the Lucknow
De\relopme,rt Authority to the respondent and the subsequent permission
to
.for
Upholdiug the need a. personal/oral
develoi the land by tire respondent.
hearing the supreme court held that "on a matter of such importance
rvhere the stakes are heavy for the lessees who claim to have made large
investments on the project and where a number of grounds require the
determination of factual matters of some complexity, the statutory authority
should, in the facts of this case, have afforded a personal hearing to the
I lessees."
i
5.22 RIGHT OF CROSS EXAMINATION
'to rebut adverse
Right of cross-examination is an integral part of the right
It enables the aggrieved person to challenge the'veracity of thb"-"
various charges made against hirn and discredit all adverse evidences. It
".,id"rr""".
is an essential component of adversarial system of adjudication. But in
administrative adjudication right of cross-examination cannot be demanded
t asamatterofright,itbecomesgenerallyapplicableinthosecircumstances
of
J wherein fairness in adjudication would be adversely affected in the absence
t
I suchproceduralnorms.Incaseswheretheproceedingshavebeenbasedorr
written submissions in the form of affidavits cross-examination is generally
not permitted. In the case of state of Jammu and, Kashrnir u. Bakshi'
Gulim Mohammad68 a Commission of Inquiry rvas constituted to enquire
into the various corruption charges made against the respondent. $'hen he
t was the Prime Nlinister of the state of Jammu and Kashmir- Large number
of affidavits \ €re tiled before the Commission, numbering to almost 400
I witnesses and Bakshi Mohammad had made a request to cross-examine
t
I
all the persons who ha.d filed affidavits in support of the allegations made'
I
6?. AIR 1989 SC 997 : (1989) 2 SCC 505'
68. 1966 Supp SCR 401 : AIR 1967 SC'
 I I

The comrnission had ref'sed to grant perr'ission. The resporrdent filed a involvecl not merely internal discipline but the safety
it of the girl
rnatter. as
petition challenging the order of refusal on the ground of i-iol.tion of the gnder the guardianship of the college authorities'
students livirrg in the Hostel
principles of natural justice for denying hirn the right to cross-examire. Theseauthoritiesrvereinlocoparentistoalltlrestudents.maleandfemale the young girl
The supreme court upheld the order of the comrnLsion in denying hirn who were livi'g in t5e Hostels and the rcsponsibility towards
the pennissio' to cross-exar'ine. Ir $'as held that the right of hearing studerrts\vasgreaterbecausetheirguar<lianshaderrtrustedthemtotheir
care bv puttin! theur in the Hostels attached to
tlte college. The authorities
did not per se include the right to cross-examine. The right mrst depend, rnatter as of snrali. consequence because if thel'
,roi por"ibly dismiss the
upon the c'ircumstances of each case and mu,st also aepeia on the statute "o.,r4
under whi,ch the allegati.ons are being inqui,red into...... a person uhose did.theyworrldhaveencouragedthenralestrrdentrowdiestoincreasetheir a,bad name to the
questionable activities which wluld, not only' have brought
conduct comes up for inquiry bg the Comm,iss,ion d,irectly, has a right to of the girl students to withdraw
c-ollege but would have compelled the parenls Thc
cross-erarn'ine only those persons who g'iue u'iua uoce eui,d,ence before th,e thern frorn the Hostel and, perhaps, dven stop their further-education'
Commission against hin. rvas. therefore, t"tdct an obligation to make a suitable enquiry and
Princ\>al
The judiciary has consistently balanced the right to cross-examine with punish the miscreants'
general fairness in the conduct of the proceedings. The-v have recognized
the right mostly in cases of oral hearing, but exceptio.r. hrr= been made Butlrorrtogoabotrtitrvasadelicatematter,TlrePolicecouldnotbecalled
on grounds of confidentiality, physical security of the witnesses, practical inbecauseifaninvestigationwasstartedtlrefenlalbstudentsorrtofsheer
difficulties etc- One of the leading cases where the riglrt of cross-examination frightandharmtotheirreputationwouldnotlravecooperatedrviththe
police. Nor was an enquiry, as before a' regulat tribulal'
feasible because the
was denied was the case of Hira Nath Mishra u. The principar, Rajend,ra
Medical college, Ranchi..s In this case few male students from the
I
I girlswouldnothave*'""tt""atomaketheirstatementsinthepresenceofcertainly exposed
respondent college had entered into the girls' hostel middle of the night i the miscreants because if tlrey did, they would have most
and themselvestoretaliationandharassmentthereafter.Thecollegeauthorities
misbehaved with the female students staying therein. on complaint made
areinnopositiontoprotectthegirlstudentsoutsidethecollegeprecincts.
the female students, the principal had set ,rf . to look into the Therefore, the authoriti.es had to devise a
just and reasonable. plan of enquiry
incidents. The three-member Enquiry committee "o*rrrittee
had called individualry t'hich.ontheonehand,wouldnotexposetheindividualgirlstoharassment
each of the complainant students and recorded their statements. Thereafter bythemalestudentsand'ontheother,securereasonableopportunitytothe
they called the four male students explained them the charges and asked accused to state their case'
them to write down whatever they had to say. All the male students denied Accordingly,anEnquiryCommitteeofthreeindependent.membersofthe.staff
the charges made against thern. The committee after the e.quiry came to members of the
i" "o "tgg""tion $'hatsoever that the
t rvas appointed. There
an unanimous decisio' that the appellant students were guilty of the gross Comrnitteewerearrytlringbutrespectableandindeperrdent.TheCommittee
the students
misconduct and deserved deterrent punishment. Based on the recommendation a
called the girls privaiely a--nd recorded their statements. Thereafter
the Principal expelled all the students for a period of two calendar years. namedbythemwerecalled.Thecomplaintagainstthemwasexplainedto
rvere asked to state
The order of the Principal was challenged in a writ petition on the ground them. The vl'ritten charge was handed over and they
I The committee was not satisfied with
of non-compliance with the principles of natural justice, particularly the right whatever they had to stalte in writing.
the explanation given and thereafter made the report'
to cross-examine the witnesses. The court upheld that enquiry procedure i
requirements of natural
adopted by the college and held that in light of the sensitive nature { We think that under the circumstances of the case the
of the counsel for the respondents made available
case denial of right of cross-examination and refusal to disclose
I
justice were fulfilleJ. The learned
the names just to shos' horv meticulous the members
of the complainants u'ere not in l-iolation of the principles of natural justice. t I
to us the report of the Committee
oftheCommitteew.eretoseethatnoinjusticerr,asdone.\\jareinformed Judges of the
The Supreme Court observed that - that this report had also been made a.railable to tle learned
HighCourtwhoheardthecaseanditfurtherappearsthatthecounselfor have a look into the
[D]octrine of natural justice cannot be imprisoned within the strait-jacket of a the appellants before the High court was also invited to
rigid formula and its application depends upon several factors. In the present question about the incident'
case the complaint rnade to the principal related to an extremely serious report, but he refused to do so- There was no
Theonlyquestiorrwasofidentity.Thenameshadbeenspecificallymentioned
in the complaint and, not to leave anything to chance'. the Committee
obtained photographs of the four delinqrients lnd mixed thern up with 20
69. AIR 1973 SC 1260 : (1973) 1 SCC 805
 r*"
N

.t .
-l21XB
| -,, ^ .t, ''
.

Textbooh on Administratiae Lau., I q'o';-J'd;'ulfun";on'ondP

come forward to give evidence in
other photographs of students. The girls b-"* and large identified these four The reason is obvious' No witness will the procedure may appear
students from the photographs- on the other hand, if as the appellants say, itr" or.""n." of the goonda' However-un^savoury
life are to be faced' The girls
to a. judicial mind, t'h"'" ttt facts of
they were in their own Hostel at the time it q,ould not have been difficult for which
them to produce necessary evidence apart from saying that they were innocent who were molested thai-night would
not have come forward to give evidence
enquiry like the one conducted in a
and thel' had not gone to the girrs Hostel at ail iate at nilht. There u.as in any regular enquiry "tti if a strict the girls *'ould harr had
no evidence in that behalf. The Comrnittee on a careful consicleration of the court of lanv were to t.-i-po".a in such_matiers.
r.naterial before them came to the conclusion that the three appelants and the constant fcar of molestation by the male students who were
to go under
Upe-ndra had taken part in the night raid on the girls Hostel. The report was capable of such indecencies' Underthe circumstances the course followed by
whose integrity could not be
confidentially sent to the Principal. The very reasons for which the girls were the principar was a wise one. The committeegiven by the girls' Thereafter
not examined in the presence of the appellants, prevailed on the authorities impeached, collected and sifted the evidence
not to give a copy of the report to them- It would have been unwise to do so. . the students definittfy by the girls were informed about the complaint
Taking all the circumstances into account it is not possible to say that rules
"amed
against them and ttt" tt'ttgo' ihty
*u" .given an opportunity to state their
of natural justice had not been followed. In Board of Education v. Rice7o Lord case. \Are do not trri"r. ii"T the
facts and circumstances of this case require
' Loreburn laid down that in disposing of a question, which was the subject anything more to be done'
. of an appeal to it, the Board of Education was under a duty to act in good
faith, and to listen fairly to both sides, inasmuch as that was a duty which
Right to o,ccess enquirg rePort
. lay on everyone who decided anything. He did not think that the Board was prepared by the investigating
bound to treat such a question as though it were a triar. The Board need Enquiry report is an important document competent officer makes the
not examine witnesses. It could, he thought, obLain information in any way it authority. Based on the e"q"i'y report
the
course of action' A copy of
thought best, always giving a fair opportunity to those who were parties in recommendation suggesting for h'n appropriate
the delinquent officer so as to
the controversy to correct or contradict any relevant statement prejudicial to
their view-More recently in Russell v. Duke of NorfolkTr T\rcker, L.J. ob""rrr"d,
the report is required to"be submitted to
enablehimtop.uo'."forhisdefencebeforethedisciplinaryauthorityand
:There are, in my view, no words which are of universar application to every action or order' including on the
kind of inquiry and every kind of domestic tribunal. The requirements of make representation "S"i"* the proposed
natural justice must depend on the circumstances of the issue of quantum of Punishment'
ih. nature of
the inquiry the rules under which the tribunal is acting, "*u, InthelandmarkcaseofManagingDirector,ECLLHyderbad,u.B.
the subject-matter Court laid down the
that is being dealt with, and so forth. Accordingly, I lo not derivq .pqch Karunaka{t tnu n* J"agu U"""f' of the Supreme held that supply of enquiry
assistance from the definitions of natural justice which have t"." rr"-
ii-u law relating to access to lnquiry report and
to time used, but, whatever standard 'is adopted, one essential is that the can be proposed to be taken bv
person concerned should have a reasonable opportunity of presenting report is a precondition before any action
his case.,' theadministrativeauthorities.TheCourtlookedintotheissueof.w}rether
I\4ore recently in Byrne o. Kinematograph Renters society who/which is appointed by
observed "what, then, are the requirements of natural
Ltd.z2 i{arman, J.
the report of the i"otitr ' Officer/authority into the charges against the
;usiice in a case of this
kind? First, I think that the person accused should.know the nature of the -i" io hold a-n
the disciplinary author=ity ilouiv
iequired to be fuinirn"a to the employee
to enable
accusation made; secondly that he should be given an opportunity to delinquent u*ptoyu., before such
state disciplinary authority
his case; and thirdly, of course, that the tribunal should u,"t i., gooa faith. I him to make prope. .upruJ"rorion to the guilt or otherwise
regard to the
do not think that there really is anything more"- authority arrives "' i* own finding with
if any' to be awarded to him'' The
Rules of natural justice cannot remain the same applying to all conditions.
we of the employee .ta tt'u punishme-nt'
report is an essential part of
know of statutes in rndia like the Goonda Acts whLh permit evidence
being Court recognize{ that the supply of enquiry
collected behind the back of the goonda and the goo.ral being merely
asked ttte pri.rcipies of natural justice' It observed-
to represent against the main charges arising out of the evidence collected. material before the
care is taken to see that the witnesses who gave statements would not be by the Inquiry Officer,form an important
[Flindings recorded *itlt-ihu is taken into consideration
identified. In such cases there is no question of the witnesses being called disciplinary autttotlii ;;J ;b"c evidence
to what extent
and the goonda being given an opportunity to cross-examine the witnesses. it to come to itt'"o"clt'"io"' Ii is diffi"ult to
say i. advance'
by in the report
the said findings including the punishment' if any' recommended

70. 1911 AC 179.

7r. L949 r AU ER 109 ar p. tlS.
zs. AIR 1994 sc 107a: (1993) Ascc 727'
72. 1958 2 Alt ER 579.
 251
t_
25O
'f Textbook on Adrninistratiae Lau:

it statutory ruT:':l
the. statutorv
follows that the
rurcD ' -'lt'
Trt;Ill:lt i::tJ"J::T#tii;
justice and' therefore'
f,Ire Pr r'lrvrvl' - ' inrrt
fouows
would influence the disciplinary aulhority while drawing its conclusions' Ihe ilil;; il"
employee are
are agarnsl
a'sa'inst
:":ii::j:''i"il.l;=;;'*'.,',t t o to
cefore be entitled
to a
a. copv
copy
findi4gs further might have bceu recorded without considering the relevant il'#. .T:1n"".:lll;l"l'"^""i
o:l'^1oT:11.'TIj;J;r- ing
rur'ishing
i".*i, the rur'isrr
eviderce on record, or by misconstruing it or unsupported by it' If such a invarid. det"inquent
-o'- tl ..
"n". even
;;;';;;or permt
finding is to be one of the documents to be considered by the disciplinary
of the report
'.."l; , .r,^ ug"J
L'L -,,I-,iocr
on.tn"
H:
the report or are silent uu
u''" sllerrl "::'":: iiry before
authority. the principles of natural justice require that the emplo;'ee should have l'r
of
a fair opportunity to meet, explain and controvert it before he is condernned' th.,";-".:-:1:^
therefore,-the *:::"
seri'tce t*'oo ""'^"--u
6lnjll'[','*,n"
ry Officer,is not thc
It is the negation of the tenets of justice and a denial of fair opportunity
(ii) w hene'e.,
Whene'er,
i1 #::"
aJvarl3l',i*^l:",""*jtou." tri'i'illt?:," ,"
nght.tc
to the employee to consider the findings recorded by a third party like the
a punishment
punishme* l: :]:'l;:'Jl;o;;;';;;;
authority
di."ipti,l.'v :*1"1]'lrl[:,1'T##'
ai."iptitt.ty
wilr
yju have
,- -^^^r+ -^t*iti"standi'g the nature
rne
Tl"-:'1."..:"n,
of t'e
t'c
Inquiry Officcr without giving the employee an opportunity to reply to it' t-t ^^. ""T*i*o"u*g
receive the InquirY
Although it is.true that the disciplinary authority is supposed to arrive at t""il
its own findings on the basis of the evidence recorded in the inquiry, it is Punishment'
ffi t::
also equally true that the disciplinary authority takes into consideration the (i ii) since'l 1'.'1" JJI'I'" Jt,,ll.TTt:::" -::"-T1""
F1fi::'
effectivell construe
findiDgs recorded by the Inquiry officer along with the evidence on record' himself i' *tll not b-e' ftoq": ''" Whether'
In the circulnstances, the findings of the Inquiry Officer do constitute an report is in hisf"li#*";';ctlt'st ttim'tn" ;;;t of his right'
important material before ihe disciplinary authority which is likely to influence his failure to u'"* iot
tftt ieport' t" or not' the report has
to
JJ;;;"*t"'r"'' tnt 'i'p"ti
its conclusions. If the Inquiry-officer were only to record the evidence and therefore, tht
forward the same to the disciplinary authority, that would not constitute any
additional material before the disciplinary authority of which the delinquent
employee has no knowledge. However, when the Inquiry officer goes further (*)T,;,"T:"i*1,*"n'il'JiJ:J':" jiil'i5T1&!'i::il',":l'li:
and records his findings, as stated above, which may or may not be based on the findings recc
'#]i:Jl,l;fl
tt***i,*;j:t"i'fi*i;
the evidence on record or are contrary to the same or in ignorance of it, such
findings are an additional material unknown to the employee but are taken :i'""i.'L--iilily::::"ff
u" itia'"i3t-
q
the Punishment tn
into consideration by the disciplinary authoriiy while arriving at its conclusions' an inquirv o'f the Inquiry
'" the benefit of tt'" report
't"n1"111e,
should have on the
Both the dictates of thu .u."onable opportunity as well as the principles of delinquent emplo;; iis findings
natural justice, therefore, require that before the disciplinary authority comes officer before ;i"*do;t;' ""to*i;;';;;'
to its own conclusion, the Jelinquent employee should have an opportunity to
to reply to the Inquiry officer's'findings., The disciplinary authority is then with the rures rerating
required to considei the evidence,'the report of the Iirquiry Officer and the .,**;:i:":i".t"""-#H ila,tttlriance
,"fo.t the court held that-
representation of the employee against it' submission of ..rquiry
inquiry
It will thus be seen that v"-here the Inquiry Officer is other than the disciplinarj' or from service and the
Theanswertothisq*"tio"hastoOt"**ttothePunishmentawarded'
authoritS the disciplinary proceedings break into two stages. The first stage When the employe"
i"= ii'*itsed '"*;;; to him' in some cases the
;'"T;;;; f';;;;;
ends when the aisciptinary authority arrives at its conclusion on the basis of '=' 'ot
because
ifJ:t*n"tn:**,li ff:ff:
is set aside
the evidence, Inquiry Officer's r'eport and the delinquent employee's reply to Ln-rurnishi.'e or tt'e '"-p;ry:'T1,^"
it. The second stage begins u'hen the disciplinary authority decides to impose n may havl.made no difference^.ton:';*;"r;; *ith bu"k-*ages in all
penalty on the basis oi its conclusions. If the disciplinary authority decides "".". i'#" t" o","n:
ffi;;: bheorv or
::i::'1Ti:tli"l'; 1,""t u,,i.'t rituar the
to drop the disciplinary proceedings, the second stage is not even reached. cases is to reduce
tl
The employee's right to ieceive the report is thus, a part of the reasonable
opporturrity of defending himself in the first stage of the inquiry'- If this right
oopo""'iii iiu 15" p'i"'inr*
reasonabre .";";*:',:l#H H:'HJ ;iJti:i
is denied to him, he is in effect denied the right to defend himself and to
prove his innocence in the disciplinary proceedings' r"tri*1ili:j:fi jt;i1ilTJ:J:"'tJ"'ffi
on all and sundrY c ts',,'"*'"15""T,i::r::
Relating to the supply of enquiry reports the court laid down the following it'"-"*oro'":"ri?ljt#;:i*"1.;'.":i'"-itl":::
facts and:']^":::':"i:L'tt"Cr""i
ji.;::;':"lqf
would have
propositions- ;;";;''d*'d on the different consequer
"""sequence to
even after th" r""'ir'i"*s"oi 't'" ':p:tt',:o
resume
(i) Since the denial of the report of the Inquiry officer is a denial of oiS"stice"to permit the emplovce
reasonable opportunity and a breach of the principles of natural
justice, followed, would ;';;?;"t"
it
 t.
," i-Iudicial Functions and Pri

the Court referred to the

duty and to get all the consequential benefits. It amounts to rewarding the In S.K. Singh a' Central Bank of Ind'ia7aand by applying the prejudice
dishonest and the guilty and thus to stretching the concept of justice to judgernent of the oorri i' Korunoror iecision
illogical and exasperating limits. It amounts to an ,,unnatural expansion of testandquestionedthepetitionerastowhatprejud'icethepe'titionerhad
report but since the petitioner was
natural justice" which in itself is antithetical to justice. suffered for non-supply-of the enquiry to
Hence, in all cases where the Inquirf officer's report is not fumished unable to explain tfi""Gtate suffered the Supreme Court declined
to the delinquent employee in the disciplinary proceedings, the courts interfere in the ota"t -td" by the High
Court and other los'er courts and
place'
and rribunals should cause the copy of the report to be furnished to the held that no illegalitg had taken
aggrieved employee if he has not already secured it before coming to the
court/Tribunal, and give the employee an opportunity to show how his or 5.23 RIGHT OF LEGAL REPRESENTATION
her case was prejudiced because of the non-supply of the report. If after ingredient of fair trial' In
hearing the parties, The Court/Tribunal comes to the conclusion that the Right of legal representation is an important
Supreme court had highlighted
non-supply of the report would have made no difference to the ultimate M.H. Hoskot ,. stu;;";;*ion"r"r,n ro7t th"
findings and the punishment given, the court / Tribunal should not interfere theimportanceofl"gu,l","p,",entation.injudicialproceedingsbecauseofthe
complicated r"gu.r which m'ate it difficult even for an intelligent
pr;".Jries
with the order of punishment the courts/Tribunal should not mechanically
set aside the order of punishment on the ground that the report was andeducat"ap".,o"tounderstandtheintricacies'oflawandmakeit
not furnished as is regrettably being done at present. The courts should difficultforhimtomakeeffectivepresentationofhisbeforethecourt.Itwas
observed thut "Tn" otitr ingredient
of fair .p'q""duT".!o,^o^...o'ntoner' who
avoid resorting to short-cuts. since it is the court/Tribunals which will the court procesb is lauyer's seru't'ces'
apply their judicial mind to the question and give their reasons for setting has to seek his liberation tirough
aside, or not setting aside the order of punishment, (and not any internal Judicialjustice,uithproceduralintricacies,Iegalsubmissionsandcritical
appellate of revisional authority), there.wourd be neither a breach of the eraminationofeui,d,ence,reansuponprofessionalerpertise;andafailure
the card,s where such support'iue skill
principles of natural justice nor a denial of the reasonable opportunity. It of equal justice uri", the law is on
mourd,ed, bg Angto-American models
is only if the court / Tfibunal finds that the furnishing of the report would is absent for one sid,e. our jud,icature,
by kindred' lbgal technology' compel
have made a difference to the result in the case that it should set aside and, our jud'icial o'o"t"', Jngineered
the collaboro,.on oi to.U"r,{o.", for
iteering the uheels of equal justice
the order of punishment. where after following the above procedure, the
court/Tribunal sets aside the order of punishment, the proper relief that under the lo,ut'"
the right tb be advised'bV"a
should be granted is to direct reinstatement of the employee with liberty In spite of the judicial recognition that but in administrative proceedings
to the authority/management to proceed with the i.q,riry, by placing the legal counset is part of fair piocedure'
been considered as less essential' The
employee under suspension and continuing the inquiry from the stage of right of legal.p'estttJiot' na' often
lawy-ers have been generally in the
nature
furnishing him with the report. The question whether the employee would be arguments against th" pt"""""e of causing delay
the proceedings'
entitled to the back-wages and other benefits from the date tr his dismissal of - tenden"y ao fo'-u'lize and complicate have permitted the presence
to the date of his reinstatement if ultimately ordered, should invariably be ^*n"tecases the tribunals
etc. Howev", ir, "L.trin or where
left to be decided by the authority concerned according to law, after the of lawyers irt "t""" the aggrieved person may be illiterate'
matters, or complicated legal
culmination of the proceedings and depending on the final outcome. If the the case in'olves complicated and technical
employee succeeds in the fresh inquiry and is directed to be reinstated, issues,orifthe"'".i,'.,ot.',.sexpertevidencesetc.Thejudiciaryhasalways
the authority should be at liberty to decide according to larv horv it rvill lookedintothequestionoffairnessindealingwiththeissueofinvolvement
treat the period from the date of dismissal till the reinstatement and to oflawyers,henceinexceptionalcircumstanc*estlreCourtshaveupheldthe
party even when there has
what benefits, if any and the extent of the benefits, he will be entitled. right of legal representation of the aggrieved
The reinstatement made as a result of the setting aside of the inquiry for been express statutory prohibition'
failure to furnish the report, should be treated as a reinstatement for the
purpose of holding the fresh inquiry from the stage of furnishing the
report
and no more, where such fresh inquiry is held. That will also be the correct 74. (1996) 6 scc 415-
position in law. 75. AIR 1978 sc 1548'
 t*"
bE4 Textbooh on Administratioe Laut
Under Article 22(3) of the Constitution provides that in case of rletention
under the preventive detention laws the detenue may not be allou'ed to be
defended by a legal practitioner of his choice before the advisory board..
In A-K. Roy u. Llnion of Ind,ia76 the Supreme Court while dealing with
the constitutionalit.v of National Securitl' ordinance 1980 dealt n'ith the
constitutionality of A. 22(3) relating to right to consult and to be defended
by a legal practitioner'of one's choice. It held that-
[A]ccording to the express intendment of the Constitution itself,, no person
who is detainecl under an1' law, which provides for prer€nti.r'e deteution. can
claim the right to consult a legal practitioner of his choice or to be defended
by him. In view of this, it seems to us difficult to hold, by the application
of abstract, general. principles or on a priori considerations that the detenue
has the right of being represented by a legal practitioner in the proceeclings
before the Advisory Board, Since the Constitution, as originally enacted,
itself contemplates that such a right should not be made available to a
detenue, it cannot be said that the denial of the said right is unfair, unjust
or unreasonable.
Supreme Court clarified that the Constitution did not contemplate that
the detaining authority or Government should have facility of appearing
before board with aid of .legal practitioner but detenue should be denied such
facility. It would be deemed to be in violation of Article 14 if the detaining
authority or government to appear with aid of legal practitioner, if the similar
facility denied to detenue. Normally the detenue does not have the right to
appear through legal practitioner in proceedings before Advisory Board. but
if the detaining authority appears with the help of legal practitioner, the
same must be allowed to the detenue.
Similarly in the case of NandIaI Bajaj u. State of punjabTT Supreme
Court while dealing with the issue of whether denial of legal assistance to
a person detained under Section 3 of the Prevention of Blackmarketing and
Maintenance of Supplies of Essential commodities Act, 1980 was violative
of Articles 14 and 21 of the Constitution when on the other hand the State
was being represented by the District Attorney, Additional District Attorney,
District Legal Advisor and one legal assistance before the Advisory Board
held that-
under Article 22(3)(b) of the constitution, the right to consult and be
defended by a legal practitioner of his choice is denied to any person who
is arrested or detained under any law providing for preventive detention.
sub-section (4) of Section 11 of the Act is undoubtedly in conformity rvith
76. AiR 1982 sc 7to : (1982) | sCC 2r1
77. AIR 1981 SC 2041.
I
Quasi-Iudicial Funaions and PrinciPles of Natural Justice 25i5 |
Article 22(3)(b) of the constitution. Normally, lawyers hane no place in the
procee4ings before the Advisory Boarcl. The functions of the Advisory Board
... prr..l1' consultative. It is an independent body constituted under Section
g of the Act consisting of a sitting Judge as the Chairrnan and not less than
trr.o other rnembers rvho ma1' be sitting or retired judges of the High Court.
It is expecte{ that the Advisorl' Board w'ould act in a fair an<l irnpartial
manner in rlaking a report whethcr or not there is, in its opinion' sufficieut
cause for the detention of a person. In coming to that conclusion, the Board
has to rnake an objective determination on the question as to whether there
was sufficient material on which the subjective satisfaction of the detaiuing
authority could be. based. Under Sub-section (l) of Section 11 of the Act. the
Board is not only entitled to look into the record and see whether there was
any material on which the order of detention could be passed under Section
f of tfre Act, but rnay also call for such further information as it may deem
necessary frorn the appropriate Govemment or from the person conceruecl
and if, in any particular case, it considers essential to do so or if the person
concerned desires to be heard, shall hear him in person. The Board is entitled
to devise its orvn Procedure.
It is the arbitiariness of the procedure adopted by the Advisory Board that
vitiates the impugned order of detention. There is no denying the fact that
rvhile the Advisory Board disallowed the detenue's request for legal assistance,
it allowed the detaining authority to be represented bv counsel. It appears
that the Advisory Board blindly applied the provisions of Sub-section (4) of
Section 11 of the Act to the case of the detenue failing to appreciate that it
could 1ot allow legal assistance to the detaining authority and deny the same
to the detenue. The Advisory Board is expected to act in a manner which is
just and fair to both the parties. The report of the Board placed before us
shows that the detenue exercised his right to recall some of the witnesses for
t1e plrpose of cross-examination. \t'e are informed that the hearing before
the Advisory Board !r,-ent on for 4 to 5 days and there $'ere as many as 1I
witnesses cross-examined by the detenue. It cannot be, as is suggested by the
counsel for the State, that the lawyers representing the State Government did
not participate in the proceedings. On the contrary, the report itself shows
that the Public Prosecutor was called upon to explain sorne aspects of the
case.If the rnatter was so intricate, the Advisory Board should have ensured
that both the parties had equal opportunity to place their respective cases.
It appears that the dice was loaded against the detenu itr that r.r'herea-s he
had to go rvithout legal assistance, Jhe State Government had the benefit of
an arraJi of lawyers.
In the case of Deaii vallabhbhai Tand,el u. Administro,tor of Goa,
Daman and Diu78 it was clarified by the Court that denial of help of legal
practitioners in matters of detention under the provisions of Conservation of
Foreign Exchange and Presentation of Smuggling Act 1974 did not extend to
76. AIR 1982 SC 1029 : (1982) 2 SCC 222.
I
| 256 Textbooh on Administratioe Lattt
denying of the help of a 'friend'. The Court referred to the judicial opinion in
A.K. Roy case on the issue of 'friend' ttrat the embargo on the appearance
of legat practit,ioners should, not be extended so as to preaent the d'etenue
is
from being aid.ed, or assisted. by a friend u;ho, in truth and substance'
affected
not a legal practitioner. Eaerg person whose interests are ad,uersely
as a result of the proceed,'ings which haue a serious import, ,is entitled to
be heard in those proceed,i'igs anil be assisted by a fri'end""7e
The court upheld the above view and further clarified that-
[A]
,frierrd' who, in truth and substance, is a friend of the detenue may appear
for the detenue but if such a'friend' also happens to be a legal practitioner'
he cannot, as of right, appear before the Advisory Board on behali of the
detenue.
The same reasoning will apply to appearance by an 'agent'' In other words'
ifan'agent'isin'truthandsubstance'anagent,thedetenuemayappear
throughhim.Butifthe.agent'isalegalpractitioner,appearancebyhimas
of right will be barred. But a 'friend' or an 'agent' of the detenue who is
essentially a comrade in the profession of the detenue for which he is detained,
such a ,friend' or .agent' wili aho be barred from appearance on behalf of
the detenue.
. as ii prevented her from exercising her constitutional right to go dbroad and
5.24 EXCEPTION TO THE RIGHT OF HEARING POST
DECISIONAL HEARING
In recent.times the principle of aud,i alteram parterrl has assumed definite
meaning and connotation in law and are deemed to applicable when the
rights and liberties of the citize.ns have been encroached or adversely affected
by an administrative action. But the scope and extent of the application
of the doctrine differs from case to case depending on statutory provisions
and the nature of the administrative action taken. In certain exceptional
circumstances the application of these principles can be exchrded such as
right to prior notice a.rd *o opportunity to be heard can be excluded when
a prompt action needs to be taken or in circumstances wherein the entire
administration may be paralyzed or made infructuous'
Maneka Gand,hi u. (Jnion of Ind.iaso is the land mark decision laying
down the jurisprudential premise for exception to the right of fair hearing'
In this case the petitioner was the holder of a valid passport. on July 4'
1977 she received a letter dated July 2, 1977 from the Regional Passport
officer, Delhi intimating to her that in the public interest it ha-s been decided
by the Government of Irrdia to impound her passport under Section 10(3)
79. Id Para 94.
80. (1978) l scc 248.
Quasi-Judicial Funaions and Principles of Naturallustice E7 |
(c) of the Passport Act and required her to surrender the passport within
seven days from the date of receipt of the letter. Thereafter the petitioner
immediately addressed a letter to the Regional Passport Officer-
requesting
him to furnish a copy of the statement of reasons for making the order
as required under section 10(5). Subsequently the \Iinistry- of External
Affairs wrote back a letter stating that the Government has decided "in the
interest of the general prrblic" not to furnish her a copy of the statement
of reasons for the making of the order. Section 10(5) enabled the passport
authority impounding or revoking a passport or travel document or varying
or. an endorsement made upon it to "record in writing a brief
"u,n""Ui.rg
statement of the reasons for making such order and furnish to the holder
of the passport or travel document on demand a copy of the sane unless'
in any case, the passport authority is of the opinion that it will not be in
the interests of the sovereignty and integrity of India, the security' of India,
friendly relations of India with any foreign country or in the interests of the
g.rru.u.l public to furnish such a copy." The principle point of argument of
Ihe petitioner was that the procedure prescribed in the Passports Act would
be deemed to an unfair and unjust procedure as it provided for impounding
of a passport without affording reasonable opportunity to the holder of the
pasqport to be heard in defence- Impounding the passport is a serious matter
such a d,rast'ic consequence cannot in fa'irness be aisited, without obseruing
the principle of aud,i alteram partem. on the other hand the Government
or tndia argued that in light of the peculiarity of the circumstances and
the very ,ru.t,rr" of the administrative action involved in impounding the
passport ,,the aud,i alteram partem rule must be held to be excluded, because
if noti"" were to be given to the holder of the passport and reasonable
opportunity afforded to him to show cause why his passport should not be
impounded, he might immediately, on the strength of the pa.ssport, make
good his exit from the country and the object of impounding the passport
would be frustrated. The argument was that \f ttre audi alterarn partem
rule were applied, its effect would be to stultify the power of impounding
the passport and it would defeat and paralyse the administration of the
Iaw and hence the aud,i alteram partem rule cannot in fairness be applied
while exercising the power to impound a passport'"
Recognizing the principle of exclusion of principles of natural justice in
certain circumstances to uphold the notions of fair-play in administrative
action, the court by referring to the legal principles Iaid down by Prof. de
Smith held that in certain circumstances fairness demands non-application
of any rigid principles of natural justice. Bhagwati J' observed-
I
lZSg Textbooh on Ahhbnattoe b@
ER109]that..whateverstandardofnattrraljusticeisadopted,oneessentialis of presenting
should have a reasorrable opporLunity
learrre<l author says at p' 174 that
[S]tatementofthelau'inS.,4,deSmith'sJudicialReuiewofAd'ministratiue "in that the person concerrred be-regatcled as reasonable would necessarill'
Action, 2nd Edn', w** to his case". What opport;;;;;
'nt prior noticl and opportunity be
of the situation' It may be a sophisticated
administrative law a prirna facie right to where an obligation to depend on the p""""u'it""essitiest ht"tl"g rvhich is verv brief and minimal :
heard may be held tJ U" "*<:t"atd1y implication"""
fuil-fledged hearing "'
it';;;";;-
the decision or it ma5' even be a
obstruct the taking of prompt post-decisional
give notice t't'a opp-irrnit1: to be hearcl rvould nature"' Now' it is true it may be a hearing..p'i;;audi
'; rule is sufficientl'v flexible to
partern
action, especially aJo" oi a preventive or remedial
of hearing arises only by remedial hearing' tne
alteram
oI myriad kinds of
that since the right to prior notice and opportunity permit modifications o"ii*tio'io"s
to suit the exigencies
to act fairly' or to the words of Lord l\"Iorris
- irnplication fro* tit" dtlty
ifii*pf"y it
use-
may equally be excluded where' 5i""i"""-;n:1ry^l"k;iti"li::-":ll'li'#t?*:lt\z#*::ii;x
of Borth-y-G""t, tol in act-ion"'
he said that he u'oul<l be "sorrv to
and purpose see
to be taken' its object t"1li;;t;i -n""
having regard to the nature'oithe action fairness in action does not ';;';TrT[ff into a series of hard and ftrst
ielevant statutory provision' principle
and the scheme of the this fundamental generJ L.c., arso-ob".r.,"J
-degenerate in pearrberg u- vorty [(1971)
demanditsimplicatio"""d"""owarrantsitsexclusion'Therearecertainwell rules,, and t_ord rraitst am]
recognised e*ceptio"s to tne aud'i alteram ia'tem
rule established by judicial
1 Weekly f,o* n"po't" iZAl
tiut the courts "have taken inIt increasingly not'
decisions and they -"1"***rsed by
s..{. a" smith in Juiticial Reuiew of sophisticated vieu' ot t'f'"i
l" required in individual cases"'rule n'ould
is excluded
179' If w'e analyse these exceptions audi alteram partem
Ad,mini,stratiae Action,2nd Edn'' p' 168 to thai the
do not in anv therefore, be right t" """ti"a" if prior
a little closely, tt ;iii J" "pp"t"ot that thev 'wav
militate
rnerely because ttre power
to impound a passport might be frustrated, impounding
action- The word person tot'""ttt'td before
in administrative U" glt'u" to the
against the principte wiiJ t"ioit"" fair-play cases' thLe oudi notice and hearing *"" 'o to impound the passport
"exception" is r"atty ;;;;;"t
b:ca:* in these exclusionarv
his passport The Passport Authority may
-proceed
by way of an exceptio:r to "fair- to"ttte person concerned to be heard'
alterarn partem,"i" lt- ft"fa inapplicable -not without giving any is made' an opportunity
unfair cin be inferred by not affording o'lL iilpotttai"g the passport
play in action", b";;";;; "oit'i"e aud'i alterarn pariem rule is but as soon as ttt" "t#;;;nitv l" given to him so that he may present
an opportunity to present or m€et a case' Tine remedial ;;j;'
of hearing, why his
it cannot be applied to defeat the the Passport Authority and point out
"noota
intended to inject justice into the l"y-.3Td
.,Iifeless, absurd, stultifying, self-defeating his case and controve" 'n"i of it recalled' This
and.ihe order impounding
ends of justice, ., i;;;drL law passport should not be i'"p"""a"a appropriate, because the reasons for
quite
should not only be po."iuru but
also
orplainlycontrarytothecommon"",'""__ofthesituation''.,sincethelifeof
legal proposition.must, in the u" by the Passport Authority
the law is not logic but experience and every p."e*"tic realism, thie auili impounding ti," p""'pJlt "q"it"aio
""otd"t-and the p"t*" affecled ""'ould' therefore' be
"t-tpptitd
ultimate analysis, ;;*i;it" tor-,"fr"tonu of after the making ot ih" for
be excluded' if importing setting forth his case and plead
-'..-.glteram parten'r';;;;l4 by the experiential test' administrative process or in a. position to *ttt" u' representation passpo-rt' A fair opportunity of being
the
setting aside the t"tio" l-po"nding -his
of paralysing
the right to U" t""tl ft* tn" Lffect
the passport would
the situation so demands' But at order' impounding
the need for promptitude or the urgency- oi heard followi"g'-*;;;;';il"po"irt" t ptot'i'ion requiring giving of such
the same time it fi;;;;";embeied thtt thi" is a rule of vital importance satisfy the mandate "i""#"f lustice
u'ttd
jettisoned save in very can and should be read by implication
in the field of .a*itti"t'"tive law and it must not be so demands' It is a opportunity to the person co"ie'ned provision were held to be incorporated
exceptional compulsive necessity in the Passp.'t' A"t:'i;;z' ii1""rt a
it must be'
"i."";";;;;;-*h"'u
wholesome .tf" au""ig""J to secure the
rule of law and the court should not in the Passports Act, 1967 by "thenecessary rmplication' as '*'e hold
would be
be too ready to t;;f;; it in its application
to a given case''Irue it is that in
"app'oach the procedur" pt"'"tir'"i" by Act for impounding a passport
or
should be avoided' suffer from the vice of arbitrariness
questions of this titta u- f""tticat or doclrinaire methodology of right, fair and just "iJ it-*o"fa not that the procedure "established"
but that does not mean that merely b...rs. stultifying the exercise of the
the ira.ditional Wl'it""t' iit'ufotu' hold
unreasonable."""' o p*"pott is in conformity with
a formalised t."ri"g";;ly-rr""" trr" effect of by the Passports e"i,'rS6i for impounditg f"fi f""f of that article'8r
statutorypower,theaud'iolterarnTtartem'shouldbewhollyexcluded'Thecourt the requirement of ;;ticle 21 and dot" "ot
mustmake".'",y'tffot'tosalvagethiscardinalruletothemaximumextent
permissible in a given case' It must not be
forgotten that-"natural justice is Based on the above legal rationale
the Court held that impounding of
any
pragmatically flJibb'Jl-'i" r-"nable to under the compulsive and not providing the petitioner
".p"rrlrtiot
parterr rule is not cast in a passport without assigning any reasons .,riotrtion the principles of natural
The of
opportunity of being;"a; amounted to
pressure of aud'i alteram
"i,"t*'t"nces"'
rigidmouldandjudicial.decisions'establishthatitmaysuffersituational the suggestion made by the government
remain' namely' that the person justice, but the Court accepted
modifications' The core of it must' nowever'
affected must nave a reasonable opfrrtunity
of being heard and the hearing
u-ity public relations'exercise' That
must be a genuine hearing and not "t' 81. Id. Para
buke of Norfotk (1949) 1 All
14
is why T\rcker, L'J', emphasised in Russel'i'

Textbook on Administratioe Lazo
to give an opportunity of being heard to the petitioner expeditiously and
in accordance with law. It was held that in the given circumstances such
procedural adherence will remove all vices from the administrative order
and will be deemed to be in compliance with the norms of aud'i' alteram'
partem. Some of the other leading cases rvherein the Supreme Court upheld
the application of post-decisional hearing are Mohinder Singh GilI u. Chief
Election Commissioners2 and. (Jnion of Ind).a u. Tuls'iram Patel.83
But the practice of post decisional hearing is acceptable only in rare
occasions wherein the very purpose of the administrative action will be
lost by complying with pre-decisional hearing. This was reiterated by the
Supreme Court in the case of K.I. Shephard, u. (Jnion of Indiasa wherein
the Court refused to accept the government's plea of post-decisional hearing
to be provided to those bank employees whose services $€re terminaied
after the amalgamation of the three private banks of Hindustan Cornmercial
Bank, Bank of Cochin and Lakshmi Commercial Bank with Punjab National
Bank, Canara Bank and State Bank of India respectively. The argument
of the excluded employees were that at the time of submission of the draft
schemes there were no mention of the names of any employee whose service
would be terminated nor were they provided any opportunity of being heard
before their natnes were excluded - the action of the State u'as vitiated on
the ground failure to act fairly. Upholding the arguments of the appellants
the Court observed-
Natural justice has various facets and acting fairly is one of them. RBI which
monitored the three amalgamations was required to act fairly in the facts of
the case. The situation necessitated a participatory enquiry in regard to the
excluded employees. Since the decision to exclude them fronr service under the
transferee banks is grounded upon a set of facts the correctness whereof they
deny, if an opportunity to know the allegations and to have their say had been
afforded, they could have no grievance on this score. The action deprives them
of their Iivelihood and brings adverse civil consequences and could obviously
not tre taken on the ipse dixit of RBI officers without verification effects. It
is quite possible that a manoeuvring officer of the banking company adversely
disposed of towards a particular employee of such bank could make a report
against such employee and have him excluded from further service under the
transferee bank. The possibility of exclusion on the basis of some mistake such
as to identity cannot also be ruled out. There is aJl the more apprehension
of this type as the process has to be completed quickly and very often the
records of a large number of employees have to be scrutinised. We are of
the view that rules of natural justice apply to administrative action and in
82. Supra note 80.
83. (1e85) 3 SCC 398.
84. ArR 1988 SC 686.
... I
Quasi-Judicial Functions and PrinciPles of Natural lustice 261'l
the instant cases the decision to exclucle a section of the employees without
comply.ing rvith requirement of natural justice rvas bad'
For the reasons we have indicated. there is no justification to think of a
post-decisional hearing. on the other hand the normal rule should apply. It
*-as aiso contended on behalf of the respondents that the excluded employees
could now represent and their cases could be examined. we do not think
that would meet the ends of justice. They have already been thrown out
of employment and having been deprived of livelihood they must be faciqg
se.ious difficulties. There is no justification to throu' them out of employment
and then give them an opportunity of representation when the requirement
is that they should have. the opportunity referred to above as a condition
precedent to .action. It is common experience that once a decision has bi:en
laken, there is a tendency'to uphold it and a representation may not really
yield any fruitful Purpose.
This view was reiterated by the supreme court in H.L. Tlehan u. union
of Ind.ia9' wherein it was obseived that "the post-decisional opportun'i'ty of
hearing does not subserue the rules of natural justice. The authori'ty .who
entbarks upon a post-decisional hearing uill naturally proceeil uith a closed
mind. and, there is hard,ly any chance of getting a proper consi'deration of
the representation at such a post-dec'isional opportunity.....once a decision
has been taken, there is a'tendency to uphold it and a representat'ion
nlay not yield any fruitful purpose. Thus, euen if any hearing was giuen
to the employees of conrr, after the ,issuance'r'itlis
of the impugned' circular,
that uould, not be ang cornpl'iance uith the of natural justice or
auoid, the mischi.ef of arbitrariness as conternplated bg Article 1l of the
Constitution."S6
Other exceptions are-
5.24.1 Statutory ExcePtion
Principles of natural justice are always subject to the express provisions of
the statute. They act as supplements to the prescribed procedures identified
by the legislature. Hence if the statute in unequivocal terms, deny the
application of principles of natural justice, then the same will not be
.ppfi""Ut . In Charan LaI Sahu u. (Jnion of IndiasT it was held that no
principles of natural justice will be applicable in the face of clear provisions
of the statute.
85. (1s8e) r scc 7il.
86. Ibid Para 12 - 13.
87. r\{ANU/SC I 0285 I rseo
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Quasi-Judicial Functions and PrintiPles of Natural Jastice
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5.24.2 nreuention and. d.etection of crime." section 23 of the Police

Act prescribes it
Useless Formality Theory intelligence affiecting
i" ,fr" a"r, of police officers "to collect and communicateand
The very objective behind conferring of the principles of natural justicc is iL public peace; to prevent the comnrissio^ of offences public mrisances".
to ensure fairness in the administrative process and to prevent arbitrary or irr1irr.r."ti"" with these duties it rvill bc necessary to keep discreet surveillance
o.ro ."p"t"a bad characters. habitual offenders ancl other potentialof suspects'
offenders.
abusive exercises of polrer. But these procedural norms cattnot be allou'ed
cannot be successfully fouglrt rvithout close rvatch
to become road blocks in the performance of administrative actions. Hence Organised crime
Br-,i, sr-,.,r"illar1ce may 5e i't.rsive ancl it may so seriously
encroach on the
the Court may deny the performance of a particular procedural norm if it right to personal libetty
ori.rr"y of a citizen as to infringe his fundamental
is found to be of no effective purpose or utility in terms of creating more 21 of the Constitution and the freedorn of movement
efficiency. Where grant of opportunity in terms of principles of natural justice I,rrr..rr".a by Article
by A.ticl" lg(l)({t). That cannot be permitted. This is recognised
do not improve the situation 'useless formalit5' theory' has been used as !"rr""t""a the mode
Bv tn" eunla-u Police Rules themseh'cs. Rule 23.7, rvhich prescribes
a point of defence.88 In Keshau MiIIs case the Supreme Court denied the oi surveillance, perrnits the close rvatch over the movements of the person
need to send additional notice to. the appellants on the ground of 'useless ,rrrd", but without any illegal interference. Permissible surl'eillance
formality theory'. "o.u.illance
isonlytotheextentofacloservatchoverthemovementsoftheperson
under surveillance and no more. So long as srrrveillance is for the
purpose of
5.24.3 Emergency preventing crirne and is confined to the limits prescribed by Rule 23.7 we do
rrot think a person whose name is included in the surveillance register can
Emergency circumstance often necessitates the conduct of administrative have a genuine cause for complaint' \Are may notice here that interference
action on an expeditious note. In such circurnstances strict cornpliance with in accoriance rvith larv and for the pre'r'ention of disorder and crime is atr
all the procedural rules might cause delay and defeat the very objective of exception recognised even by European Convention of Human Rights to
the administrative action taken, hence in such circumstances the authorities rhc .ight to respect for a person's private and family life. Article 8 of the
might be justified in taking all necessary actions without complying with Convention reads as follows:
the prior norms of principles of natural justice. For example in the face of ,.(.f) Eveiyone's right to respect for his private and family life, his home and
natural calamities or accidents the administrative officers might be forced his correspondence shall be recognised'
to take actions such as breaking open of house or demolition of dilapidated (2) There shall be no interference by a public authority rvith the exercise of
house without providing prior notice or hearing. ihis rlght, except such as is in accordance with law and is necessary in a
democ.atic societ). in the interests of national security, public safetS for the
prevention of disorder and crime or for the protection of health or morals'"
5.24.4 Confidentiality
Nfaintenance of confidentiality becornes necessary in certain extraneous 5.24.5 Legislative Action
situations and in those circumstances the authorities might 'be justified
in non-complying with the norms of fair hearing. ln Hiranath Mishra Under the classification of administrative action, the adrninistrative authorities
case the Court upheld confidentiality as a valid ground for maintaining performing rule making functions or legislative actions are not bound by
the physical security and safety of the girl students and denying the itre pri.r"iptes of natural justice. ln cynam'id,e Industries case it was held
delinquent male students from accessing the enquiry report or conducting that in the absence of specific statutory provisions relating to consultation
cross examination. or prior notice, the administrative authorities are not requird to provide
In Malok Singh u. State of Punjab and Haryanu,se the Supreme Court an interested party with the opportunitl' of being heard' The administrative
authorities steps into t[e shoes of the legislatures *'hile performing the rule
recognizedthat surveillance for the purpose of prevention of crime can be
making functions, and the manner and performance of the functions are
a ground for denying principles of natural justice. The Court observed-
similarly determined.
Prevention of crime is one of the prime purposes of the constitution of a police
force. The preamble to the Police Act, 1861 says: "Whereas it is expedient 5.24.6 Administrative NecessitY
to reorganise the police and to make it a more efficient instrument for the
Grant of powers to the administrative authorities is with the core purpose
88. Canara Bank u. Debasis Dos AIR 2003 SC 2O4l: (2OO3) 4 SCC 557 of ensuring efficiency in the functioning of various activities without
89. (1981) r SCC 420.

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1264 Textbooh on Administrative La'o
compromising with fairness. But, if the very objective of administrative
action gets defeated due to strict adherence with principles of natural justice,
then efficiency demands that principles of natural justice may be suitably
modified to fulfil the needs of administrative necessity. In Director of
School Ed,ucation u. O. Karuppa Theuaneo the Supreme Court held that an
employee is not required to be given a hearing before his transfer transfer
when the authorities make the transfer for the exigencies of admini'stration.
Similarly in Maneka Gandhi case the Court developed the notions of post-
decisional hearing as a necessary balance betu'een administrative necessity
and fairness.
5.24.7 No Violation of Legal Rights
The core purpose of principles of natural justice is to ensure. that the
administrative authorities act in a fair manner when the action proposed
to be taken is likely to affect the rights and liberties of a person. The rule
against bias and right of fair hearing have been developed to uphold the
common law principles of fair adjudication. In the absence of any violation
of legal right or non-determination of legal rights or liabilities, the principles
of natura.l justice does not have any application.
5.25 REASONED DECISION
Speaking order or reasoned decision is considered as the third timb of
the principles of natural justice. Giving of reasoned orders are considered
as essential so as to understand the rationale behind the making of the
administrative orders. On one hand citing of reasons gives satisfaction to
the aggrieved party to know about the purpose and objective of the order
passed whereas on the other hand it enables the review authority or the
appellate authority to understand the thinking process behind making of
the decision. The authorities would be left guessing about the approach of
the inquiry officer, his conclusion and his finding. Absence of reasons in
the order issued will be presumed to be an attempt to decline a peep 'into
the uorking of their minds. Such orders will be considered to be passed
in szb silence.9r
Irr Maneka Gand,hi u. (Jnion of Indiae2 the Court discussed the importance
of providing reasons while interpreting Section 10(5) of the Passport Act
which enabled the passport authority to impound or revoke a passport or
90. 1994 Supp (2) SCC 666.
9L. A.L. Kahv a. Project and. Equipment Corporation of India Limited. AOR 1984 SC
e2. (rs78) I scc 248.
1
I
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Quasi-Judicizl Funaions and PrinciPles o.f NaturalJustice 265
|
travel document by recording in writing a brief statement of the reasons for
making such order. It emphasised that-
The necessity of giving reasons has obviously been introduced in sub-
section (S) so that it may act as a healthy check against abuse or misuse
of porver. If the reasons given are not relevant and there is no nexus
between the reasons and the ground on which the passport has been
irnpounded, it would be open to the holder of the passport to challenge
the order impounding it in a court of law and if the court is satisfied that
the reasons. are extraneous or irrelevant. the court would strike down the
order. This liability to be exposed to judicial scrutiny would by itself act
as a safeguard against improper or mala fide exercise of power- The court
would, therefore, be very slow to accept, without close scrutiny, the claim of
the passport authority that it would not be in the interests of the general
public to disclose the reasons. The passport authority would have to satisfy
lhe court by placing proper material that the giving of reasons would be
clearly and indubitably against the interests of the general public and if
the court is not so satisfied, the court may require the passport authority
to disclose the reasons, subject to any valid and lawful claim for privilege
which may be set up on behalf of the Government'
In a plethora of cases. the judiciary has remitted back an order or declined
to uphold an order on 1le'ground of absence of qPeaking orders or reasoned
decisions. In Omar [Jsman Chamadia u. Abdule3 speaking on the issue the
Supreme Court observed-
In the recent past, we had'several occasioirs't'o' notice that the lrigh courts
by recording the concessions shown by the counsel in the criminal proceedings
,efroin from assigning any reason even in orders by which it reverses the
orders of the lower courts. In our opinion, this is not proper if such orders are
appealable, be it on the ground of concession shown by the learned counsel
appea.iog for the parties pr on the gtound that assigning of elaborate reasons
mght prejudice the future trial before the lower courts. The High court should
not-, uriless for very good reaso's, desist from indicating the grounds on which
their orders are based because when the matters are brought up in appeal, the
court of appeal has every reason to know the basis on which the impugned
order has been made. It may be that while concurring with the lower courts'
order, it may not be necessary for the said appellate court to assign reasons
but that is not so w-hile reversing such orders of the lower courts. It may be
convenient for the said court to pass orders without indicating the grounds or
basis but it certainly is not convenient for the court of appeal while considering
the correctness of such impugned orders. The reasons need not be very detailed
or elaborate, Iest it may cause prejudice to the cause of the parties, but must
be sufficiently indicativl of the-pro""ss of reasoning leading to the passing of
1361.
93. (2004) 13 scc 234
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1266
judgment runs to several
the impugned order. The need for delivering a reasoned order is a requirement statutory power to issue the notification' Though the
of law which has to be complied with in all appealable orders. This Court in a oru"", .frl. noticing the rival sublnissions, the High Court in a very cryptic
disposed oi thc writ petition coming to the aforesaid vie*"- It is not
--."r,n..,
somewhat similar situation has deprecated the practice of non-speaking orders
in the case of State of Punjab u. Jagd.eu Singh Talwandi.e4 That was a case lh" ,r,r-b". of pages in a judgment which is relevant. It is on the other hand,
u'here the High Court in a detention order rvhile allou'ing the challeuge to the sufficiency. of reasons inclicated to justif.n- the conclusions. \\re rnay only
the detention order directed the release of the detenue before it could give a add here that paras 28 and 29 of the judgment u'hich are supposed
to contain
reasoned order. Even such a practice rvas deprecated by a Constitution Bench the conclusiolls are not only confusing, but also make little sense- They. to
of this Court. lVhereas in the instant case it is a final order reversing the .r," immortal words of Lord Sumner in .|?. u. Nat BeII Liquors Ltd.|.
o,,o,"
' order of the Iearned Sessions Judge wherein the High Court thought it is not itpu.t only with the inscrutable face of a sphinx". It is "unspeaking order" as
necessary to give the reasons on the ground that the counsel appearing for classically described by Lord cairns, IC in Ouerseers of the Poor of walsaLl
the parties did not press for a reasoned order. Corrsequently, when the rnatter Ouerseers u. Lond'on' I NWR Co''
was taken up for hearing, we had no benefit of the reasons which persuaded
the High Court to pass the impugned order. Hence, we have proceeded to
decide the appeal on merit based on the material available on record and the 5.26 NON.COMPLIANCE WITH PRINCIPLES OF NATUML
arguments addressed before us, from which we have come to the conclusion JUSTICE
that the impugned order ought to be set aside. Though a prayer was made
on behalf of the first respondent that the matter be remanded to the High Different statutes and rules made thereunder contain provisions relating to
Court to facilitate it to pass a reasoned order, on facts of this case, w'e disciplinary enquiries. \'Iost of these procedures are nothing but elaboiation
think it proper to decide the issue before us ourselves without prolonging the of the principles of natural justice and their several facets' It 'is a case of
proceeding any further by remanding it to the High Court. But we do record
our disapproval of the practice followed by the High Court reflected in the
codificition of the seueral facets of rule of audi, alteran'L parten'L or the
impugned order and hope the same will not be repeated.
rule against iias.3 A relevant question arises that if a decision arrived at
is in violation of some principles of natural justice or any of such rules
In the case of Nati.onal Insurance Company Ltd. u. Bharat Bhushanes then whether such decision should be considered as void or in some caseb
the Supreme Court concluded that "the High Court had disposed of the it will be treated as not void. The judicial opinion in this regard has been
.appeal without applying its mind and without passing a speaking and quite at variance.
reasoned order."That being the position, only on this ground the matter In Rid.ge u. Bald,wina on failure to provide a right of hearing to the
is remitted back to the High Court for fresh disposal in accordance with chief constable and dismissing him without a notice or proper enquiry was
larv. It is expected that this time, the .High Court shall decide the sarne by held to be in violation of principle of natural justice. Lord Reid holdiug the
passing a speaking and a reasoned order." In Kolkata Mun'icipal Corpn. u. violation to be funda[rental in nature held that a d,ecision gi,uen without
Chhater Singh Baidsg the Supreme Court set aside the order passed by the regard, to the pr'inc'iples of natural justice is uoid""' The bodg with the
Division bench of the High Court on the ground of modifying or varying pi.., to d,ecid.e cannot lawfully proceed to rnake a decision until it has
the order of the Single Judge without giving any reasons and restored back afford,ed, to the person affected a proper opportunity to state h'is case-
the order of the Single Judge. Similarly in Uni.on of Ind'ia u. Essel M'ining d,rt ir. other English cases such as Malloch u. Aberd,een Corpn,s and .R. t'-
Secg. of State fir Transport, er p Gwent Countg Councif the
judges have
8 Industries Ltd.e7 u'hile reviewing the decision of the High Court, the
Supreme Court observed- .ppii"d th. prejudice test to determine the issue of non-compliance with the
principles of natural justice-
\&'e find that though the High Court referred to various statutes relating to
the mining activities e.g. the l\{ining Act, etc. it did not indicate any reason
as to why it was of the view that the authority issuing the notification lacked
7. (1922) 2 AC L28 : r27 I-it 437 (PC)
2. (1878) I AC 30 : 39 LT 453 (HL)'
94. (1984) I SCC 596 : AIR 1984 SC 444. 3. (1ee6) 3 scc 364.
95. (2008) 11 SCC 112. 4. 1964 AC 40 : (1963) 2 All ER 66'
96. (2005) 12 SCC 196. 5. (1971) 2 All ER 1278.
97. (2005) 6 SCC 675. 6. (1987) I All ER 161, cA.

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Similarly in India there has been divergence of opinion on the issue. In
State of tJ.P. u. Mohd. Nooh7 S.R. Das C.J. speaking for the Constitution
Bench observed that-
If an inferior court or tribunal of first instance acts u'holly rrithout jurisdiction
or patentlf in excess of jurisdiction or manifestly conducts the proceedings
before it in a manner which is contrary to the rules of natural justice and all
accepted rules of procedure and uthich offend.s the superior court's sense of
fair play the superior court may, we think, quite properly exercise its power
to issue the prerogative writ of certiorari to correct the error of the court or
tribunal of first instance, even if an appeal to another inferior court or tribunal
was available and recourse was not had to it or if recourse was had to it, it
confirmed what ex facie was a nullity for reasons aforementioned."
In Jankinath Sarangi u. State of Orissa.s Hidayatullah, C.J. on non-
compliance with the principles of natural justice applied the test of gross
violation and held that-
From this material it is argued that the principles of natural justice were
violated because the right of the appellant to have his own evidence recorded
was denied to him and furtber that the material which was gathered behind
his back was used in determining his guilt...... There is no doubt that if the
principles of natural justice are violated and there is a gross case this Court
would interfere by striking down the order of dismissal; but there are cases
and cases. We haue to look to what actuaL prejudice has been caused to a
person by the supposed deniol to him of a particulor right.... Anyway the
questions which were put to the witnesses were recorded and sent to the
Chief Engineer and his replies w'ere received. No doubt the replies were not
put in the hands of the appellant but he sas' them at the time when he was
making the representations and curiously enough he used those replies in his
defence. In other words; they were not collected behind his back and could
be used to his advantage and he had an opportunity of so using them in his
defence. We do not think that any prejudice was caused to the appellant in
his case by not examining the two retired Superintending Engineers rvhom he
had cited or any one of them."
In Hira Nath Mishra u. Principal, Rajendra Medical Collegee the denial
of opportunity to cross-examine the girl students who made the complaint
was held to be not a violation of natural justice. Similarly in Lfaneka Gandhi
a. Union o.f India denial of pre-decisional hearing was not considered as
violation of fair hearing. But in Chintapalli Agencg Taluk Arcack Sales
7. 1958 SCR 595 : AIR 1958 SC 86.
8. (1969) 3 SCC 3e2.
9. (1e73) I SCC 805.
I
Quasi-Iudicial Funaions and PrinciPles of Natural Justice 269 |
the court
coop. societg Ltd,. u. sect). (Food, and, Agri.cultu.re) Gout. of A.P.ro
held the action void on the ground of total denial of.principles of natural
justice. ln S.L. Kapoor a. Jagmohantl ot1 the issue of an administrative
action without providing a notice the court also observed that-
In our view the priDciples of natural justice knos' of no exclusionary rule
dependent on whether it would. have made any difference if natural justice
h.d b.en observed. The non-observance of natural jrrstice is itself prejudice
to any man and proof of prejudice independently of proof of denial of natural
justice is unnecessary. It ill comes from a person who has denied justice that
ih" p"r"oo who has been denied justice is not prejudiced. As '*'e iaid earlier
*here on the aclmitted or indisputable facts only one conclusion is possible
and under the law only one penaltf is permissible, the court may not issue
its writ to compel the observance of natural justice, not bec4use it is not
necessary to observe natural.justice but because courts do not issue futile'
writs. We do not agree with the contrary view taken by the Delhi High Court
in the judgment under appeal."
In K.L. Tfipathi u. state Bank of Ind,ia7z supreme court analysed the
issue of whether violation of each and every facet of principles of natural
justice has the effect of vitiating the enquiry and observed-
The basic concept is fair play in ac'iion administrative, judicial or quasi-judicial.
The concept of fair play in action must depend upon the particular lis, if there
be any, beto'"en the parties. If the credibility of a person who has testified
or gi.ren some information is in doubt, or if the version or the statement of
the person rvho has testified, is. in dispute, right of cross-examination must
inevitably form part of fair play in action but where there is no lis regarding
the facts but certain explanation of the circunrstances there is no requirement
of cross-examination to be futfilled to justify fair play in action. When on
the question of facts there was no dispute, no real prejudice has been caused
to a party aggrieved by an oider, by absence of any formal opportunity of
cross-examination per se does not invalidate or vitiate the decision arrived
at fairly. This is more so when the party against whom an order has been
passed does not dispute the facts and does not demand to test the veracity
of the version of the credibility of the statement'
The party who does not ['ant to controvert the veracity of the evidence from
record or testimony gathered behind his back cannot expect to succeed in
any subsequent demand that there was no opportunity of cross-examination
specially when it was not asked for and there was no dispute about the
veracity of the statements. Where there is no dispute as to the facts, or the
weight to be attached on disputed facts but only an explanation to the acts,
10. (1977) 4 SCC 337 : AIR 1977 SC 2313-
11. (1980) 4 SCb 379 : (1981) I scR 746.
12. (1984) 1 scc 43.
l udi.cial Functions and
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absence of opportunity to cross-exarninatiou does not create any prejudice in v.MinisterfortheCiailseruice20wheretheprinciplesofnaturaljusticeand

as synonymous' Whichever the case' it is from
such cases. a fair hearing *:t: .treated applying the test of prejudice' as it may
The principles of natural justice will. therefore, depend upon the facts and the standpoint ot ralr hearing of violation of the rule of audi
be called - that any
and tit'y
circumstances of each particular case. We have set out hereinbefore the actual "o-pltint
e*arn"i"td' indeed' there may be situations where
alteram partem should be
facts and circurnstances of the case. The appellant s-as a-ssociated n'ith the
observance of the requirement
of prior notice/hearing rnay defeat the *er]'
preliminary irrvestigation that rvas conducted against him. He does not deny which -"y tt"tttt i" g'a"" prejuclice to public interest'
It is for
proceer:ling
or dispute that. Information and materials undoubtedly were gathered not in -that the ,,.t. of post-de;isional trearing as a sufficient compliarrce
his presence but whatever inforrnation was there and gathered namely, the ffi;;;;
versions of the persons, the particular entries which required examination were
.withnaturaljustice"was..',oI.'"dinsomeofthecases,e'g.,LibertEoilMills
shown to him. He was conveyecl the information given and his explanation u.lJni,onoflnd,ia'"Theremayalsobecaseswherethepublicinterestor
similar considerations mav
was asked for. He participated in that investigation. He gave his explanation ;;"i;;.;"t;" of the securitv oi Sto't" or other
makeitinadvisabletoobse,.,etheruleofaudialterampartemaltogether[as proviso
but he did not dispute any of the facts nor did he ask for anv opporturrity contemplated by clauses (b) and (c) of- the
in the case of situations'di""lo""
to call any evidence to rebut these facts. ihe material on which a particular action is
to Article 311(2)] or io
being taken. There may- indeed be
any number of varying situations which it
The Court after applying the above principle held that the enquiry respectful opinion, the principles
is not possible fo, .nyirre to foresee. In our in the following terrns in
conducted and the punishment imposed without conferring the right of .*".grrig ir"m the iecided cases can be stated
cross-examination rvill not be deemed to be vitiated. relationtothediscipli,'".yo,d.,"andenquiries:adistinctionoughttobemade
justice' audi alteram partem' as
In Managing Director, ECIL u. B. Karunakarr3 the Constitution Bench ;;;"" violation of the principle of .natural words., distinction
held that even though non-furnishing of enquiry report amounted to denial of violation of a facet or trt. i"ia principle. In other
"""nl"a ..no notice"/"no hearing" ahd "no odequate hearing" or to put
natural justice but setting aside of the punishment imposed on that ground is between lno opportrriity" a,d "no ad'equate opportunity"' To
will not be the appropriate actiorr. In every such ca^se a copy of the report it in different words, without
illustrate take a case where the person is dismissed from.beservice
should be provided to the delinquent officer and the court should interfere -
hearing him altogether (as in Ri'ilge a' Balilwin)'22
It would a case falling
only when it is satisfied that there has been a failure of fair process. and the order of dismissal would be inualid' or
under the fi.st category
"ttse But where- the
Ultimately the Supreme Court summarized the legal position in the case void, if one chooses to that expressi on (Caluin !o'1),'3
. ', him a copy of the
of State Bank of Patiala u. S.K. Sharmara wherein it held that- person is dismissed from se.rrice, say, u'ithout supplying
' enquiry officei'S"iepott (Managing Director' nin-
u' B' Karunakar2a) or
him a due oiportunity of cross-examining a witness (K.-L.
[P]rinciples of natural justice cannot be reduced to any hard and fast formulae. ';;;e"t;#iaffording b" a ca"t-ftlling in the latter categorv violation of a
without
As said in Russell u. Duke of Norfolkrs u'ay back in 19.19. these principles 1t *Ltld -
case, the validity of the
cannot be put in a strait-jacket. Their applicability depends upon the context facet of the said rule of natural justice'- in which all in
prejudice' i'e''
and the facts and circumstances of each case. (See Mohind.er Sinoh Gill u. order has to be tested on the iouchstone of -whether'
Chief Election Commr.16) The objective is to a fair heariirg, a fair all,thepersonconcerneddidordidnothaveafairhearing.Itworrldnotbe
in the light of the above decisions to say that for any and
every
deal, to the person whose rights are going to ".rr,.r"
be affected. (See A.K. Roy correct
u. Ilnion of lrtdiarT and Swadeshi Cotton MiIIs u. {Inion oJ India.l8) As -
violationofafacetofnaturaljusticeorofaruleincorporatingsuchfacet,
aside without further
pointed out by this Court irt A.K. Kraipak u. Ilni,on of India,ls the dividing the order passed is altogether "Lid a"d ought to be set
line betrveen quasi-judicial function and administrative function (affecting the enquiry. In our oplnioi the approach and test adopted in B' Karunakar
the complaint is not that there was no hearing
rights of a party) has become quite thin and almost indistinguishable a should govern all cases where
- of not affordin.g a proper
fact also emphasised by House of Lords in Council of Ciuil Seruice Unions (no notice, no opportunit5' and no hearing) but one rule
or of a procedural
heari'ng (i.e., adequat" ot t full hearing) of violation
13. (1993) 4 SCC 727.
14. (1996) 3 SCC 364, para 28 - 33. 20. (1984) 3 All ER 935-
15. (1949) I All ER 109. 21. (1984) 3 scc 465.
16. (1978) I SCC 405. 22. 1964 AC 40.
17. (1982) | SCC 271. 23. 1980 AC 574.
18. (198r) r SCC 664. 24. (1e93) 4scc 727.
r9. (1969) 2 SCC 262. 25. (1e84) 1 scc 43.
 l._. I
, Lf e*Z Textbook on Administratiae Lazrs

or requirenent governing the enquiry; the complaint shourd be examinecl on

the touchstone of prejudice as aforesaid.
para'
The matter can be looked at from the angle of justice or of natural justice Now, coming back to the illustration given by us in the preceding
also. punishment and the entire enquiry on the ground of
The object of the principles of natural justice would settin! aside the
which are now understood as violation of su|-clause (iii) be in the interests of justice or would
synonymous q'ith the obligation to pro'ide a fair - hearirrgru i. to ensure that aforesaid
it b€ its negation? In our respectful opinion. it u'ould be the latter. Justice
justice is done, that there is no failure of justice and
that -e'ery, person whosc means jrrstice betu,een both the parties. The interests of
justice equally demand
rights are going to be affected by the proposed actiorr gets a fair hearing. and irregularities
The said objective can be tested with reference to sub-clluse (iz:i) concerne-cl that the guilty should be punished and that technicalities
which do not occasion failure of justice are not allorved to defeat the ends of
here. It says that copies of statements of witnesses should be furnished
to justice.Principlesofnaturaljusticearebutthemeanstoachievetheends
' the delinquent officer
"not later than three days before the commencement
of the examination of the v"'itnesses by the i'quiring authority,'. Now take a tf justice. They cannot be perverted to achieve the very opposite end. That
case not the one before us where the copies of statements are supplied would be a counter-productive exercise'
only -two days before the commencement
- of examination of witnesses instead
of three days. The derinquent officer does not object; he does not say that TheCourtlaiddownthefollowinglegalpropositionontheissue-
two days are not sufficient for him to prepare himself for cross-examining the upon a
witnesses. The enquiry is concluded and he is punished. Is the (1) An order passed imposing a punish'ment on an employee cons€quent
entire enquiry iisciplinary/departmental
-go.rrerning enquiry in violation of the rules/regulations/statutory
and the punishment an'arded to be set aside on the only ground that
instead pro.risions such enquiries should not be set aside automatically. The
of three days before, the statements rl:ere supplied o.rty: tioo days before the is of
' commencement of the examination of witnesses? It is suggested Court or the Tribunal should enquire n'hether (a) the provision violated
by the appellate a substantive nature or (6) whether it is procedural in character.
.court that sub-clause (iii) is mandatory since it ,r"u. th" exp-ression .shall'.
I\'Ierely because the word 'shall' is used, it is not possible to agree
that it (2)Asubstantiveprovision]trrasnormallgtobecompliedwithasexplained
is mandatory. We shall, however, a.ssume it to be so for the prrrpo"".of this he.einbefo.e and the theory of substantial compliance or the test
of prejudice
discussion. But then even a mandatory requirement can be waived would not be applicable in such a case' .'
by the
(3) In the case of violation of a procedural provision, the position is this:
person concerned if such mandatory provision is conceived
in his interest and
procedural provisions are generally meant for affording a reasonable and
not in public interest, vide Dhirendra Nath Gorai u. sud,hir chandra
Ghosh2i
Subba Rao, J., speaking for the Court, held: are' generally
adequate opportunity to the delinquent officer/employee' They
. "where the court acts q'ithout inherent jurisdiction, a party affected cannot conceived in his interest' Violation of any and every procedural
by waiver confer jurisdiction on it, which it has not. wrr"." si.rch jurisdiction p,o.\,i.io",' cannot be said to automatically vitiate the enquiry held or
"p*ii.tg, order
is
not wanting' a directory pro'ision can obviously be waived. But a
mandatory p.ssed.Exceptcasesfallingunder-..nonotice'',..noopportunity''and..no
provision should
provision can only be waived if it is not conceived in the public
interests, but hearing,, categories, the colplaint of violation of procedural
in the interests of the party that waives it. In the p.u""ri case the executi'g beexaminedfromthepointofviewofprejudice,viz.,whethersuchviolation
properly
court had inherent jurisdiction to sell the property. we have assumed that has prejudiced the delinquent officer/employee in defending himself
appropriate orders
section 35 of the Act is a mandatory provision. If so, the question
is rvhether and effectively. If it is fo,.nd that he has been so prejudiced,
the prejudice including setting aside the
the said provision is conceived in the interests of the public
or in the interests have to be made to repair and remedy
of the person affected by the non-observance of the provision. It is true enquiryand/ortheorderofpunishment.Ifnoprejudiceisestablishedtohave
that
many provisions of the Act were conceived in the interests of
the public, but ,u"rrttud therefrom, it is obvious, no interference is called for. In this connection,
the same cannot be said of section 35 of the Act, which is rea[y itmayberememberedthattheremaybecertainproceduralprovisionswhich
intencled
are of a fundamental character, whose violation is by itself proof of
to protect the interests of a judgment-debtor and to see that a larger prejudice'
of his property than is necessary to discharge the debt is not sold. exrenr I\Iany The court may not insist on proof of prejudice in such cases. As explained
situations may be visuarized when the judgment-debtor does
not seek to take in the body of the judgment, take a case where there is a provision expressly
advantage of the be'efit conferred on him under section
35 of the Act.,, providing ih.t ,fter tlhe e.,ridence of the employer/government is over, the
.*ptoy""shallbegivenanopportunitytoleaddefenceinhisevidence,and
26. see the disc'ssion of this aspect at p. 5r5 of wade: Administrati'c inagivencase,theenquiryoffice.do"snotgivethatopportunit.yinspiteof No
particular, he refers to the speech of Lord Scarrnan in CCSU
Law (zth Edn.). I' the delinquent officer/emplJyee asking for it. The prejudice is self-evident'
Service where he used both these concepts as signifying the
u. Ministet. for the Ciuil proof of prejudice need be called for in such a case' To repeat' the
same th;;g.
test is one of ""'"rr"h
pre5udice, i-e., whether the person has received a fair hearing
27. (1964) 6 SCR r00t : AIR 196.1 SC 1300.
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Quasi-Jrdicial Functions and Principles of
NatwralJustice 275 |

considering all things. Now, this very aspect can also be looked at from the a fair hearing and to ensure that there is no failure of justice. It is this
point of view of directory and mandatory provisions, if one is so inclined. The oblective which should guide them in applying the rule to varying situations
principle stated under (4) herein below is only another way of looking at the that arise before them'
same aspect as is dealt with herein and not a different or distinct principle. (7) There may be situations where the interests of state or
public interest may
(a)(a) In the case of a procedural provision rvhich is not of a mandator-v* ro. a curtailing of the rule of a.udi alteram partem. In such situations.
character, the complaint of violation has to be examined from the standpoint "it
the court may have to balance public / state interest with the requirement of
of substantial compliance. Be that as it may, the order passed in violation of natural justice and arrive at an appropriate decision'
such a provision can be set aside only where such violation has occasioned
prejudice to the delinquent employee.
SUMMATION
(b) In the of violation of a procedural provision, which is of a rnandatory
case
character, it has to be ascertained whether the provision is conceived in the It has been a long drawn endeavour of the judiciary to include the
values
interest of the person proceeded against or in public interest. If it is found principles of natural
to be the former, then it must be seen whether. the delinquent officer has of fairness in administrative actions. Application of the
waiv'ed the said. requirement, either expressly or by his conduct. If he is justiceorthedutytoactfairlyshouldbemadeanintegralpartofall
and liberties
found to have waived it, then the order of punishment cannot be set aside administrative and quasi-judicial actions so that the rights
of the people are ne;er restricted or infringed without due process of law.
on the ground .of the said violation. If, on the other hand, it is found that
the delinquent officer/employee has not waived it or that the provision could The foilowing words of Ranganath Misra J. should act as the guiding
not be waived by'him, then the Court or Tribunal should make appropriate principle-
directions (include the setting aside of the order of punishment), keeping in justice to
mind the approach adopted by the Constitution Bench in B. Karunakar Fair play is a part of the public policy and is a guarantee for with
conferred
The ultimate test is always the same, viz., test of prejudice or the test of citizens. ln our system of Rule of Law every social agency
fair hearing, as it may be called. powerisrequiredtoactfairlySothatsocialactionwouldbe.justandthere justice
of natural
- would be furtherance of the well-being of citizens. The rules
(5) Where the enquiry is not governed by any rules/regulation's/statutory
havedevelopedwiththegrowthofcivilisationandthecontentthereofisoftenLaw
provisions and the only obligation is to observe the principles of natural justice considered asa proper J.*,rr" of the level of civilisation 1nd RuIe of
or, for that matter, wherever such principles are held to be implied by prevailinginthecommunity.Manwithinthesocialframehasstruggledfor
-the very nature and impact of the order/action the Court or the Tribunal .centuriestobrihgintothecommunitytheconceptoffairnessandithastaken
- of natural justice (rule of
should make a distinction between a total violation
audi alteram partem) and violation of a facet of the said rule, as explained
scoresofy"".,f*therulesofnaturaljusticetoconceptuallyenterintothe
field of social activities-28
in the body of the judgment. In other words, a distinction must be made
between "no opportunity" and no ad,equate opportunity, i.e., between "no
notice"/"no hearing" and "no fair hearing". (a) In the case of former, the
order passed would undoubtedly be invalid (one may call it 'void' or d nullity
if one chooses to). In such cases, normally, liberty will be reserved for the
Authority to take proceedings afresh according to law, i.e., in accordance with
the said ruJe (audi alterarn partern). (6) But in the latter case, the effect of
-examined
violation (of a facet of the rule of audi alteram partem) has to be
from the standpoint of prejudice; in other *'ords. what the Court or Tribunal
has to see is whether in the totality of the circumstances, the delinquent
officer/employee did or did not have a fair hearing and the orders to be made
shall depend upon the answer to the said query. [It is made clear that this
principle (No. 5) does not apply in the case of rule against bias, the test in
which behalf are laid down elsewhere.]
(6) While applying the rule of aud,i alteram partem (the primary principle
'of natural justice) the Court/Tribunal/Authority must always bear in mind
the ultimate and overriding objective underlying the said rule, viz., to ensure ffi rndia, Arp- 1988 sc 686-
 Administrative Discretion
and Principles of Judicial

6.1 INTRODUCTION
The core administrative function is described as implementation of the
judicial tunctions
l; ;;;J f; tn" bgislature. Unlike the legislative and the scope of
performed by the l"lislature and judiciary respectively'

lZZt ,"trnook on Administratizte Laz.o
administrative function is u'ide and undefined. The executive is required
to undertake all tasks necessary for the proper implementation of the laws
and bringing them into effect. The suprerne court in the Ram Jawaya
Kapoor case had described the executive function as 'residuary functions'
referring to all the remaining functions rvhich the adrninistrative authorities
are required to perform after subtracting the larv making functions and the
judicial functions.
Pure administrative function involves the implementation of the laws
made by the Parlidment, including the various rules and regulations made
thereunder. The pure administrative functions involve discretionary functions
as well as ministerial actions. N{inisterial functions are generally described as
those functions which an authority has a duty to do and is required to do
in a particular manner.I On the contrary in pure administrative discretionary
functions it is the discretion of the authority which is the basis of the
action and such discretion is primarily based on state policy, expedience
and individual wisdom. In case of discretionary functions the administratir-e
authority has the power to act or choose not to act, act in one particular
manner or in another manner. The term discretion is generally described as
the power to decide or make a choice based on one's own judgment.
Discretionary power is generally accompanied by the word ,may' and
often phrases such as if he is of the opinion, if he i,s satisfied or if he has
reasonable grounds to belieue confers discretionary powerc to an officer. The
purpose of conferring such powers is to enable the administrative officer to
...-..exercise his individual judgment while implementing a particular provision
of law. The legislature has imposed the responsibility on such officers to
act based on their knowledge, skills, experiences and lvisdom. Grant of
discretionary power is a modern day necessity. rn state of punjab u. Khan
chandz the supreme court while discussing the importance of grant of
discretionary power to the administrative authorities observed "Cons,id,ering
the complex nature of problems uhich haue to be faced, bg a mod,ern
state, 'it i,s but i,neui,table that the matter of d,etails should, be teft to the
authoriti'es acti,ng under an enactment. Discret,ion has, therefore, to be
giuen to the authorit'ies concerned, for the erercise of the pouers ttested
in them under an enactrnent".
6.2 NEED TO CONTROL EXERCISE OF DISCRETIONARY POWER
There is a thin gap bet'a'een exercise of discretionary power and arbitrary
exerciseof power. Dicey in his rule of law proposition had aclvocated for
l. Discussed elaborately in Chapter III
2. (1974) 1 SCC 549.
I -'
Administratioe Disoetion and PinciPles of Judicial Reoieu 279:l
absence of discretionary power in the hands of administrative officers based
orr the ratiorrality that personal discretion of individual officers would give
rise to arbitrary exercise of power and rvould discrimination and inequalitS'
in the actual application of the land. Modern scholars like Prof' Goodhart
has advocated that instead of negating discretionarl' exercise of pon'er more
emphasis should be placed on imposing inherent limits on the exercise of
powers so as to avoid discriminatory and arbitrary exercise of power. In
ihis context the judiciary has played an instrumental role in imposing legal
restraints on the exercise of discretionary powers by requiring that the
legislature should lay down the necessary policy guidelines and essential rules
oiconduct at the time of conferring of discretionary powers' In the exercise
of actual powers the judiciary has always exercised their power of review
to ensure that the process and purpose of exercise of power is always in
accordance u-ith law, constitutional principles and legislative intent.
In Maneka Gand,h,i u. (Jnion of Ind,i.a3 emphasized the application of
constitutional provisions of Articles 14 and 21 in exercise of discretionary
power and stated that-
Article 14 strikes at arbitrariness in state action and ensures fairness and
equality of treatment. The principle of reasonableness, which legally as well as
philosophically, is an essential element of equality or non-arbitrariness pervades
Article 14 like a brooding omnipresence and the procedure contemplated by
Article 21 must answer the test of reasonableness in order to be in conformity
rvith Article 14. It must be "right and just and fair" and not arbitrary, fanciful
or oppressive; otherwise, it. would be.no procedure at all and the requirement
of Article 21 would not be satisfied."
In State of Punjab u. Khan chands the Supreme court highlighted the
need to control the exercise of discretionary power' It empha'sized-
[T]he vesting of discretion in authorities in the exercise
of power under an
enactment does not by itself entail contravention of Article 14- What is
objectionable is the conferment of arbitrary and uncontrolled discretion without
-th"-exercise of that discretion.
any guidetines whats oever with ,"gaid to
considering the complex nature of problems which have to be faced by a
modern State. it is but inevitable that the matter of details should be left
to the authorities acting under an enactment. Discretion has' therefore, to
be given to the authorities concerned for the exercise of the pou'ers vested
in them under an enactment. The enactment must, hcwever, prescribe the
guidelines for the furtherance of the objects of the enactment and it is within
Ih" f.r-"*o.k of those guidelines that the authorities can use ttreir discretion
3. (1e78) I scc 248.
4. (1978) 1 scc 248, Ibid at Para 7
5. (1974) I scc 549.
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in the exercise of the powers conferred upon them. Discretion which is absolute, But the majority opinion negated the argument and categorically held
uncontrolled tad_ yftheUtjny,-Cuidelr_r_res in the.exercise of the powers carr ,,The .oid' *for a publi,c purpose" do not find a mention i,n section
that
in
easily degenerate into arbitrariness. S/hen individuals act according to their
SwmTo6Eanelementof..pickandchoose'.according 2 and, it is, t'n our. opinion, impermissi'ble to construe that Sect,ion
to the notion of the individuals. If a Legislature treston-s such untramnelled ,u.|,owaaasifthoseuordswereapartofthatsection.Toreadthose
words in the section. eaen though those words are not
there. would for aII
discretion on the authorities acting under an enactment, it abdicates its ti legislation".8 Thus it is necessarl'
essential function for such discretion is bound to result in discrimination which intents and, purposes arnount iudtclal
that the statute must lay down the policy and the conditions for
exercise of
is the negation and antithesis of the ideal of equality before Ia*' as enshrined
in Article 14 of the Constitution. It is the absence of any principle or policy po*", u.fote conferring of discretionary power to adrninistrative officers'
for the guidance of the authority concerned in the exercise pf discretion u'hich
vitiates an enactment and makes it vulnerable to the attack on thc ground 6.4 DUTY OF THE COURT TO CONTROL THE EXERCISE
of violation of Article 14. It is no answer to the above that the executive OF DISCRETIONARY POWER
officers are presumed to be reasonable men who do not stand to gain in the
abuse of their power and can be trusted to use "discretion" with discretion- speaking on the duty of the court to control arbitrary exercise of discretionary
As mentioned on p. 3.of Parliamentary Superaision of Delegated Legislation poo.r, Khanna J- in Khan Chand observed-
by John E. Kersell, 1960 Edn.
"The point is, however, that no one ought to be trusted with power without
It would be wrong to assurne that there is an element of judicial arrogancehas in
the act of the courts in striking down an enactment- The constitution
restraint. Power can be of an encroaching nature, and its encroachinerrts'are the laws made
assigned to the courts the function of determining as to whettrer
usually for the sake of what are sincerely believed to be good, and indeed with the provisions of the Constitution'
Uy lfre Legislature are in.conformity
necessary, objectives. Throughout history the most terrible form of tyranny has
in adSudicating the constitutional validity of statutes, the courts discharge an
been, the forcing on human beings of vrhat someone believes to be good for The Courts
obliga:tion which has been imposed upon them by the Constitution.
them. The imposition of controls on the use of delegated legislative authority, shirking tSeir responsibility if they hesitate to declare the provisions
therefore, does not imply a deep suspicion of malevolent intentions. Human
*oia b.
nature, being what it is, has to be protected against itself, and where power
of a statute to be unconslitutional, even though those provisions are found
is concerned the very existence of the possibility of restraint, as we shall see,
to be violative of the Articles of the constitution. Articles 32 and 226 arc of
an integral part of the constitution and provide remedies for enforcement
is a safeguard against abuses in which ends rnay be used to justify means rights conferred by the constitution. Hesitation
and the good in intent becomes the evil in effect." 'o.'r"fr".t rights and other
.tundamlntaf
on the part 6f the Courts to declare the provisions of an enactment
to be unconstitutional, even though they are found to infringe the constitution
6.3 IMPLICIT PRESUMPTION OF 'PT]BLIC PTIRPOSE' becauseofanynotionofjudicialhumilitywouldinalargenumberofcases
provided
have the effect of taking away or in any case eroding the remedy
to the aggrieved parties by the constitution. Abnegatioi in matters affecting
In State of Punjab u. Khan Chand.6 l\{attheu' J. had made the argument.that be commendable but abnegation in a matter
one,s own interest may sometimes
even if a legislative provision did not include phrases such as 'public purpose', wherepowerisconferredtoprotecttheinterestofothersagainstmeasures
'public interest' or 'public good', there should always be a presumption made which are violative of the Constitution is fraught with serious consequences'
that "Courts and part'ies all assume that the Legislature aluaAs wants ItisasmuchthedutyoftheCourtstodeclareaprovisionofanenactment
protection of the publ,ic interest, to serue public cause and do things Jor to be unconstitutional if it contravenes any Article of the constitution as
public good, or to erercise po,urers for public purpose and al?rays intends it is theirs to uphold its validity in case it is found to suffer from no such
that administrators act justly and, reasonably uhether the Legislature says infirmity.
so in the statute or not [see Kenneth Culp Dau'is, "Adm'inistrati.ue Law
T\'eatise", (1958) VoI. I, p. 87J. Euery legislatiue bod,y must be presumed The judicial control should be more stringent if the administrative action
to fauour the true, the good and aboue aII the public interest and public will detrimentally impact a fundamental right. Distinguishing the scope of
exercise of discretionu,.y po*", with reference to a fundamental right
and a
good, and whetherit saEs so or not is of absolutely no consequence".T

6. (1974) 1 SCC 549. 8. (1974) 1 scc 549, Id at para ll

7. (L574) 1 SCC 549. Ibid at para 23
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112s,2 Textbooh on Administratiae Laut A d m inis tr a t itt e D iscr e t ion an d

courts can issue writ of quo-warranto in case of discretionary

statutory right, the Supreme court in pannalal Bi.njraj u. (Jn'ion of Indias functions
held that- butthewritofmandamusjsnotgenerallyissued.Itcanbeissuedonly of a rule or
There is a broad distinction between discretion which has to be exercised with
;f ,n" authority has undertaken an obligation in pursuance
regard to a fundamental right guaranteed by.- the constitution and some other regulation.
t$'o stages' The
right which is given by the statute. If the statute deals with a right which is Judicial control over discretionary pou'er is divided into
of grant of discretionary powers by the
not fundamental in character the statute can take it away but a fundamental first stage commences at the time stage takes place
right the statute cannot take away. where, for example, a discretion is give' f"gi.Ur"i" to the administrative authorities and the second
in the matter of issuing licences for carrying on trade, profession or business of discretionary powers'
.i tft" stage of actual exercise
or where restrictions are imposed on freedom of speech, etc. by the imposition
of censorship, the discretion must be controlled by clear rules so as to come
within the category of reasonable restrictions. Discretion of that nature must be
6.5.1 Grant of Discretion to the Administrative Authorities
of discretionary
differentiated from discretion in respect of matters not involving Fundamental one of the first cases to deal with the issue of constitutionality
AIi Sarkar.r2 Th" State of wesr
Rights such as transfer of cases. An inconvenience resulting i.o,' a change ;;;"; i sror" of west Bengal a. Anutar Act 1950' Anwar Ali
of place or venue occurs when any case is transferred from one place to burrgu.l had enacied the \\rest Berigal Special Courts
another but it is not open to a party to say that a fundamental right has Sarkarand4gco-accused,swerearrestedforcommittingseveralactsof
brutalities in the course of their raid in a factory in West
been infringed by such transfer. In other words, the discretion vested has to Bengal' They
be looked at from two points of view viz. (1) does it admit of the possibility
*er" tri.d before the Special Judge under the Special Cou^rts Act' They
of any real and substantial discrimination, and (2) does it impinge on a on the ground of violation of Article 14 as
fundamental right guaranteed by the constitution? Article 14 can be invoked chalienged the trial conducted
discrimination between persons similarly situated and
only when both these conditions are satisfied. the legislation made
forconferringwidediscretiontotheStateGovernmentunderSection5of
the Act. The Preamble to the statute stated - "whereas it provided
This view was reiterated by the' supreme court while dealing with is expedient
the constitutionality of section 2 of the East punjab Movable property to provide for the speedier trial of certain offenbes". section 5 -
(Requisitioning) Act, lg47 in State of punjab u. Khan Chand,.ro iA'special Court shall try such offences or classes of offences or ca'ses or
general or special order
classes of cases as the State Government may, by
6.5 SCOPE OF JUDICIAL REVIEW OF ADMINISTRATIVE in writing direct"-
ACTION Holding Section 5(1) as unconstitutional Mukherjee J' observed-
The courts have the inherent power of judicial review. In the case of (Jnion [T]helanguageofSection5(1)isperfectlyclearandfreefrornanyambiguity.
of India u. cynarnid,e India Ltdrr t]ne court had observed that the court had it vests an ug3siricted_disgletion in the state Government
to direct any cases
of to be t.ied by the special court in accordance with the
the power to enquire whether the administrative authorities had taken into or classes cases
consideration relevant factors and had excluded all irrelevant factors out of procedurelaiddownintheAct.Itisnotstatedthat.itisonlywhenspeedier
trial is necessary that the discretion should be exercised- In the second
place,
consideration while fixing the prices of essential drugs. The authority should
assumingthatthepreamblethrowsanylightupontheinterpretationofthe
take into consideration the legislative policy and the prescribed factors while
section, I am definitely of opinion that the necessity of
a speedier trial is
performing the administrative task. The judiciary shall not delve into the a basis for the
tog v-qggg, uncertain and elusive a criterion to form rational
object which
question further. Thus the task of the judiciary is more of ,supervisory' than discriminatiorr"*a". The nec*edsity for speedier trial may be the
corrective in nature wherein the Court particularly looks into the process thelegislaturehadinviervoritmaybetheoccasionformakingtheenactment.
In a sense quick disposal is a thin! which is desirable in all legaland as there
proceedings.
of decision making rather than merit of the decision itself.
The word used here is "speedier" which is a comparative term
-u,yu"degreeso|speediness,thewordundoubtedlyintroducesanuncertain of speedier
and variable element. But the question is: hou' is this necessity or the
trial to be determined? Not by reference to the nature of the offences
9. (1957) 1 SCR 233.
10. (1974) r SCC 549.
11. AIR 1987 SC 18o2 : IT4ANU/Sc/ooz6/r982. 12. AIR 1952 sc 75
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Administratfue Discretion dnd Principles of Jt4dicidl ReaielD 285 |
circumstances undcr which or the area in which they are committed, nor even
by reference to any peculiarities or antecedents of thc offenclers themselves, but maymakesuchfurtherordersasrnayberrecessaryorexpedientin
the selection is left to the absolute and unfettered discretion of the executive connection with the requisitioning:
government with nothing in the law to guide or control its action. This is not Provided that no property used for the purpose of religious worship and
no aircraft or anything forming part of an aircraft or connected with
a reasonable classification at all but an arbitrarv selection. -4 line is dra*,n the
artificially betrreen tq'o classes of cases. on one side of the line are grouped operation'.epairormaintenanceofaircraft,shallberequisitioned.
those cases which the state Government chooses to assign to the special (1)'
(2) \vhere the state Government makes any order under sub-section
court; on'the other side stand the rest which the state Government does not with the property in such manner as may appear
think fit and proper to touch. It has been observed in man;l cases by the it may use or deal
Supreme Court of America that the fact that some sort of'classification has to it to be exPedient'
14 the court
been attempted at will not relieve a statute from the reach of the equality Holding section 2 as unconstitutional and violative of Article
clause. "It. must appear not onl-v that a classification has been made but also held that-
that it is based upon some reasonable ground some.difference which bears and from
a just and proper relation to the attempted -classification [ 16b US 1b0]". The relevlnt provisions of the Act have been reproduced above power on the
The question in each case rvould be s'hether the chardcteristics of the class u pu..,,^l thereof we find that the Act confers uncontrolled
are such as to provide a rational justification for the differences introduced? State Government or the officers authorised by it to requisition any movable
Judged by this test, the answer in the present case should be in the negative; p.ope.ty. The only property excluded from the purview of the
Act is one
for the difference in the treatment rests here solely on arbitrary selection by used for the purpose of religious worship or an aircraft or anything forming
the State Government. It is true that the presumption should always be that part of tr, o. with the operation, repair or maintenance of
the legislature understands and correctly appreciates the needs of its own "ii.rit "on,,""ttd
aircraft. No guidelines have been laid down in the Act regarding the object
by
people and that its discriminations are based on adequate grounds or the purpose for which the state Government or the officers authorised
u. Taxes Power €t Light Co.13l; but as was said by Mr Justice Brewer in
[\4iddleton
it may consider it necessary or expedient to requisition a movable property'
Gulf Colorad,o etc. Company u. Ellista ,,to carry the presumption to the It is not even the requirement of the Act that the authority requisitioning
which it has
extent of holding that there must be some undisclosed and unknown reason movable property sitould specify in the oider the purpose for
for subjecting certain individuals or corporations to hostile and discriminatory become necessary or expedient to requisition that property' There is no
Iegislation is to make the protection clauses of the Fourteenth Amendment a provisionintheActthatthepowerofrequisitioningmovablepropertycanbe
mere rope of sand". exercisedundertheActonlyforapublicpurposenoristhereanyprovision
that powers under the Act can be exercised only in an emergency or in some
rn state of Punjab u. Khan chandrs the constitutionality of section 2 of specialcontingency.ItisopenundertheprovisionsoftheActforanofficer
the East Punjab ]r'Iovable Property (Requisitioning) Act, 1947 was chalenged authorisedundertheActtorequisitionmovablepropertyforanypurpose
provisions of the
on the ground of conferring arbitrary powers and for being violative of whatsoever..For example, it would be permissible under the
Act for the District Magistrate, who. is an officer authorised under the Act,
Article 14 of the Constitution. In this case the Tata Mercedes Benz Truck furnitrire of anyone within the district for use in the office
of the respondent was requisitioned by the District Magistrate of Rohtak to requisition the
oftheDistrictMagistrate.Likewise,itwouldbepermissiblefortheDistrict
for the purposes of carrying road materials for famine work under the Magistrate to requisition any private car which may have caught
his fancv
provisions of the Act. The respondent filed a writ petition under Article for his own use. lt is not necessary to go into the question as to whether
226 challenging the validity of the order and declaration of section 2 of the theDistrictMagistratewouldeverrrsehispowersundertheActforsuch
Act as unconstitutional. purposes.SufficeittosaythatthereisnothingintheprovisionsoftheAct
which makes it impermissible, for a District \{agistrate to requisition
movable
Sec 2 of the Act provided that- for which he considers it necessary or
property for any purpose whatsoever
(1) The state Government, if it considers necessary or expedient so to expedient to do so.
do, may by order in writing requisition any movable property and
The pou,er conferred under the Act can be exercised not only by the state
bV tfe
Government but also by the officers to whom it may be delegated
state Government. Ther"e is nothing in the Act that the officer to whom the
13. 249 US r52. must not be below a particular rank'
powers under the Act can be delegated
The result is that the powers of requisitioning a movable property'a petty
14. 165 US 150. which
15. (1974) 1 SCC 549. nature, can be conferred even upon
are of a most comprehensive
 rt,
t
l T.x.booh on Adni"i'l,.ti* u- I| A.hiai't,a.tu.Didetinn."apltrbA!4yllcE- ryj
of the
officer. No suitable machinery is also provided in the Act for determining the on the public street within the jurisdiction of the commissionerate
compensation payable to the oWner of the movable property nor does the Act poti"", Ahrnedabad city unless the necessary permission in writing has been
contain any guiding principles for determining the amount of compensation. the offrcer authorised by the cornrnissioner of Police"' on
out"irr"d from
According to bection 4 of the Act. the compensatiorr to be paid shall be such an application made by the appellant that Section 33
of the Parent statute
''as the State Government ma]' deteruriue". ri"r. 7 suffered from the vice of arbitrariness and rvere in violation of'
,rra
The drastic and uuusual features of the Act u'hich have been pointed out above Article 19 (ixb) and (d) of the Constitution'
highlight the fact that the Act confers arbitrary powers for requisitioning of The court upheld the constitutionality of Sec. 33 on the rationality
movable property upon the authorities under the Act and that no guidelines
that-
whatsoever have been prescribed for the exercise of the powers of requisitioning.
Thc total absence of guidelines for the-exercise of power of requisitioning of under section 33(o) no rule could be prescribed prohibiting all
rneetings or
rnovable property, in our opinion, r.itiates section 2 of the Act. Arbitrariness proceeds on the basis that the public has a right to
fro""rriorrr. The section
it is
and the power to discriminate are writ large on the face of the said provision , iold assemblies and processions on and along streets though necessary
of.the.Act and, in our opinion, that-provision falls within the mischief which toregulatetheconductandbehaviouroractionofpersonsconstitutingsuch
Article 14 of the Constitution is designed to prevent. assembliesorprocessionsinordertosafeguardtheriglrtsofcitizensandin
In Himat LaI K. Shah u. Commiss,ioner ol Policelo the Supreme Court .ordertopreservepublicorder.Thewor<l..regulate',,accordingtoShorter
oxfordDictionary,^."".'",,.tocontrol,govern'ordirectby.ruleorregulation;
to subject to grriii.o". or restrictions". The impugned Rules do notbe taken
looked into the constitutionality of the Rule 7 of the Rules for Processions prohibit
and Public lvfeetings framed by the Commissioner' of Police, Ahmedabad the h;ding of meetings but only prescribe that permission should
under the Bombay Police Act 1951. The Bombay Police Act empowered the .althougbitisnotstatedonwhatground-ipermissioncouldberefused.We
Commissioner and the District Magistrate with the power to make rules in ;;ii alrt *ltrt this aspect a little later"'l7
,
order to.prevent the obstruction, ingonvenience, annoyance, risk, danger due
However on the issue of whether Rule 7 is within the scope 'of
to any processions or assemblies. not giue
! constitutional limits, it was categorically held that "RuIe 7 does
guid,ance to by the commissioner of Police as
sec. 33 of the Act provided (1)- The commissioner and the District i the offi,cer authori,sed
Magistrate, in areas under their respective charges or any part thereof may .; "",
to the circumstances in which he can refuse permission to hold a public
t*. or rescind rules or orders not inconsistent with this Act for;....- t meeting. Prima facie, to giue an arbitro'ra discretion to an oJficer is an
unreasonable ,ertriction". The court struck down Rule 7 on the
', ground
::t";
of arbitrariness.
(n) licensing, controlling or, in order to prevent the obstruction, irrconvenience,
annoyance, risk, danger or damage of the residents or passengers in the vicinity,
The Indian judiciary has consciously reviewed the legislative provisions
prohibiting the playing of music, the beating of drums, tom-toms or other so as to ensure that the grant of discretionary is always circumscribed
instruments and blowing or sounding of horns or other noisy instruments in with necessary policy guidelines and avoid all possible arbitrary exercise of
or near streets or public Places; powers.

(o) regulating the conduct of and behaviour or action of persons constituting 6.5.2 Judicial control over Exercise of Discretionary Powers
assemblies and processions on or along the streets and prescribing in the
case of processions, the routes by which, the order in which and the times The second stage of control.commences at the stage of exercise of discretionary
at which the same may pass; power by the administrative officer. The judiciary has fundamentally relied on
(y) prescribing the procedure in accordance with which any licence or permissron Article 14 to strike down an arbitrary exercise of power. Under the traditional
scheme of separation of functions theory the power and responsibility to
.

sought to Act should be applied for and

be obtained or required under this
implement laws is within the exclusive domain of the administration and it
:.

fixingthefeestobechargedforanysuchlicenceorpermission
has been accepted that the legislature at the time of enacting the laws had
In exercise of such power, the commissioner of Police, Ahmedabad framed i reposed their fa,ith on the executive to use their practical understandings
and
Rule 7 - "No public meeting with or without loudspeaker, shall be held I
Ibid at Para 15.
16. AIR 1973 SC 87 : (1973) I SCC 227

. I ZgS Textbooh on Administratiae Lazo
experiences for the purpose of implementation and execution of laws. In
absence of specific legislations dealing with judicial review of administrative
actions, the judiciary has relied on constitutional provisions and principles
to develop various administrative law principles.to regulate the exercise of
discretionary exercise of powers.
One of the leading trnglish cases dealing with the judicial control over
exercise of discretionary powers is .Associated Proai,ncial Picture Houses
Ltd. u. Wed,nesbury Corporation ls In this case the plaintiffs who were
proprietors of a cinematograph theatre in Wednesbury challenged the order
issued by the Wednesbury Corporation under the provisions of the Sunday
Entertainments Act, 1932. Before the enactment opening of cinematograph
theatres on Sundays were deemed illegal but Section 1(1) of the statute
provided that - "The authority having power, in any area to rvhich this
section extends, to grant licenses under the Cinematograph Act, 1909, rnay,
notwithstanding anything in any enactment relating to Sunday observance,
allow places in that area licensed under the said Act to be opened and
used on Sundays for the purpose of cinematograph entertainments, subject
to such conditions as the authority think fit to impose". Based on the
power conferred the Wednesbury Corporation imposed the restriction on
the issuance of license that 'No children under the age of 15 years shall be
admitted to any entertainment, whether accompanied by an adult or not-'
Speaking on the scope of judicial review Lord Greene made the
observation-
The courts can only interfere with an act of an executive authority if it be
sholvn that the authority have contravened thc law. It is for those who assert
that the local authority have contravened the law to establish that proposition.
On the. face of it, a condition of this kind is perfectly lawful. It is not to be
assumed prima facie that responsible bodies like local authorities will exceed
their powers, and the court, whenever it is alleged that the local authority
have contravened the law, must not substitute itself for the local authority. It
is only concerned with seeing whether or not the proposition is made good.
When an executive discretion is entrusted by Parliament to a local authority'
what purports to be an exercise of that discretion can only be challenged in
the courts in a very limited class of case. It must always be remembered that
the court is not a court of appeal. The law recognises certain principles on
which the discretion must be exercised, but within the four corners of those
principles the discretion is an absolute one and cannot be questioned in any
court of law.
On the exercise of discretionary power by administrative authorities it
was observed that-
18. [1948] | KB 223
I
- t s*;-;"r-.t;",. n;,-or;nn onrl Pineioles of ludicial Reaieut 289.'l:i.:' j
the The exercise of such a discretion must be a real exercise of the discretion.
If, in the statute conferring the discretion, there is to be found, expressly or
by implication, matters to which the authority exercising the d_iscretion ought
to trr"e regard, then, in exercising the discretion, they must have regard to
those matters. Conversely. if the nature of the subject-matter and the
general
interpretation of the Act make it clear that certain matters s-ould not be
to the matter in question, they must disregard those
g".*urr" [relevant]
matters.
Expressions have been used in cases where the powers of local authorities
came to be considered relating to the sort of thing .that may give rise to
interference by the court. Bad faith, dishonesty-those, of course, stand by
themselves-unreasonableness, attention given to extraneous circutnstanceS,
disregard of public policy, and things like that have all been referred to as
being matters which are relevant for consideration' '
In this case unreo,sonabilitg was reco8nized as a, separate giound for
review of administrative actions. Traditionally the word 'unreasonable' has
been used to describe proper exercise of discretionary power by consideration
of relevant matters and excluding irrelevant matters, improper exercise of
discretion etc. In the case the court created the doctrine of unreasonability
based on the proposition that no sensible person could euer drearn that it
Iay wi.thin the poweri of the authority. summarizing the scope. of judicial
review it was held that-
[T]he court is entitled to investigate the action
of the local authority with
a view to seeing whether it has taken into account matters which it bught
not to take into account, or' conversely, has refused to take into account or
neglected to take into account matters rvhich it ought to take into account.
Once that question is answered in favour of the local authority, it may still
be possible to say that the local authority, nevertheless, have come to a
conclusion so unreasonable that no reasonable authority could ever have come
to it. In such a case, again, I think the court can interfere. The power of
the court to interfere in each case is not that of an appellate authority to
override a decision of the local authority, but is that of a judicial authority
which is concerned, and concerned only, to see whether the local authority
have contravened the lau' by acting in excess of the powers which Parliament
has confided in it.
Upholding the restrictions imposed by the local authority the court
clarified that nobod'g, at this t'ime of d'ay, can sag that the well-being and
the phgsical and, moral heatth of ch,ild,ren are not rnatters uhi,ch a local
authority, in erercising its pouers, can properly haue in rnind, uthen those
questions o,re gerrnane to uhat it has to consi'der'

"l
| 2!)0 Textbooh on Administratiae Lazo
It further observed-
It is perfectly clear that the local authority are entrusted by
Parliament
with the decision on a matter in which the knowledge and experience of the
authority can best be trusted to be of value. The subject-matter with which
the condition deals is oue relevant for its consideration. It has considered it
and come to a decision on it. Tlteoretically it is true to say-and in practice
it may operate in some cases-that. if a decision on a competent matter is
so unreasonable that no reasonable authority could ever have come to it,
then the courts can interfere. That, I think, is right, but that would require
ovbrwhelming proof, and in this case the facts do not come anywhere near
such a thing. Counsel in the end agreed that his proposition that the decision
of the local authority can be upset if it is proved to be unreasonable, really
meant that it must be proved to be unreasonable in the senSe, not that it is
''*'hat the
court considers unreasonable, but that it is what the court considers
is a decision that no reasonable body could have come to, which is a different
thing altogether. The court may very well have different views from those of
a local authority on matters of high public policy of this kind. Some courts
might think that'no children ought to be admitted on Sundays at all, some
courts might think the reverse. All over the country, I have no doubt, on a
thing of that sort honest and sincere people hold different vibws. The effect
of the legislation is not to set up the court as an arbiter of the correctness of
one view over another. It is the local authority who are put in that position
and, provided ttrey'act, as they have acted here, within the four corners of
their jurisdiction, the court, in my opinion, cannot interfere.
Lord Diplock in Council of Ciail Seraices Union a. Minister for the Ciuil
Seraice further advariced the princripldS'.of judicial control of administrative
actions. He summarized the scope of judicial review in the following
u'ords-
Judicial review provides the means by which judicial control of administrative
action is exercised. The subject matter of every judicial review is a decision
made by some person (or body of persons) whom I will call the
'decision-
maker' or else a refusal by him to make a decision.
To qualify as a subject for judicial review the decision must have consequences
which affect some person (or body of persons) other than the decision-maker,
although it may affect him too. It must affect such other person either (a) by
altering rights or obligations of that person which are enforceable by or against
him in private law or (b) by depriving him of some benefit or advantage
which either (i) he has in the past been permitted by the decision-maker
to enjoy and which he can legitimately expect to be permitted to continue
to do until there has been communicated to him some rational ground for
withdrawing it on which he has been given an opportunity to comment or
(ii) he has received assurance from the decision-maker will not be withdrawn
without giving him first an opportunity of advancing reasons for contending
that thev should not be withdrawn....
.. t.
For a decision to be susceptible to judicial review the decision-maker must
beernpoweredbypubliclaw(andnotmerely,asirrarbitration,b.yagreement
made, u'ill lead
between private parties) to make decisions that, if validly
to administrative action or abstention from action by an authority endowed
bylaw.rvithexecutivepowers.whichhaveoneorotheroftheconsequences
mentioned in the preceding paragraph. The ultimate source of
the decision-
makingpowerisnearlyalwaysnowadaysaStatuteorsubordinatelegislation
m.d. ,_,rrd", the statule; but in the absence of anJr statute regulating
the
power may
subject matter of the decision the source of the decision-making
itself, i.e that part of the common law that is given
still be the common law,the
Ly to.*y"." the label of prerogative'. where this is the source of decision-
m^ki,,gpower'thepowerisconfinedtoexecutiveofficersofcentralasdistinct
by
from local government and in constitutional practice is generally exercised
those holding ministerial rank'
Lord Diplock classified under three heads the grounds on which
administrative action is subject to controi by judicial review -
illegality'
He also recognized the possibility
irrationality and procedural impropriety. judicial
of principlls of proportionality being considered as new ground of
review in the future.
Illegality as a ground of judicial review implies that the "decision-maker
must understand correctly the law that regulates his decision-making
power
ancl must give effect to it. Whether he has or not is par excellence a
in the of dispute, by those persons.
justiciable question to be decided, event
ihu ;rrdg"r, by whom the judicial power of the state is exercisable"'
Irrationality refers to the concept of wednesbury unreasonableness. "It
applies to a decision which is so outrageous in its defiance of logic or
of
a"ceptedmoralstandardsthatnosensiblepersonwhohadappliedhis
mind to the question to be decided could have arrived at it. whether a
decision falls within this category is a question that judges by their
training
and experience should be well equipped to answer, or else there would be
something badly wrong with our judicial system"'
Procedural impropriety refers to not only the failure to observe basic rules
of natural justice but also "failure to act with procedural fairness towards
the person who will be affected by the decison. This is because susceptibility
to ludicial review under this hea.d covers also failure by an administrative
tribunal to observe procedural rules that are expressly laid down in the
such
legislative instrument by which its jurisdiction is conferred, even where
failure does not involve any denial of natural justice"'
Thus the judicial review of administrative action through the various
principles of administrative law has become an essential part of administrative
accountability.
|
1292
-.
Textbooh on Administrative Laut
r Administratfue Discretion and Pinciples of ludicial Re../'eut
6.8 EXERCISE OF DISCRETIONARY POWER-SOME
ILLUSTRATIONS
6.8.1 Failure to Exercise Discretion or Abdication of Power
In the Ieading case of Purtabpore Co. Ltd. a. Cane Commissioner of Biharls
Supreme Court analyzes the failure of the Cane Commissioner to perforrn
his statutory duty independently and acting under the dictates of the Chief
I\.'Iinister. The appellants were in the business of sugar manufacturing frorn
1903. Though their mills were located in UP but they used to procure raw
sugarcane from some 208 villages in neighbouring Bihar for more than 30
years. In 1962 with the establishment of the New Siwan l\{ills in Bihar the
$upply of sugarcane from these villages were stopped for a period of time.
In 1964 a meeting was held between the Cane Commissioners of Bihar and
UP and deal was'made whereby it was agreed that the 208 villages in Bihar
would be reserved for the appellants and sugarcane from some villages in
UP would be supplied to the New Siwan Mills. But this settlement was not
agreeable to them and they pressurized the Bihar Chief Minister to change
the order. The Cane Commissioner of Bihar was firm iri his decision that
there was no justification for disturbing the reservation made in favour of
the appellants, but the Chief Minister who was personally interested in the
matter compelled the Cane Commissioner to pass an order on November
L4, L967 under the provisions of Sugar Cane (Control) Order, 1966 whereby
99 villages were reserved exclusively for the New Siwan Mills and the rest
for the appellants. The appellants. challenged the orders issued by the Cane
Commissioner of Bihar on the ground that he had practically abdicated his
statutory functions and had mechanically irnplemented the directions of the
Chief I\{inister. The Court held-
[W]e are of the opinion that the impugned orders though purported to have
been made by the Cane Commissioner were in fact made by the Chief I\{inister
and hence they are invalid- We have earlier seen that the Cane Commissioner
was definitely of the view that the reservation made in favour of the appellant
should not be disturbed but the Chief N'linister did not agree with that view.
It is clear from the documents before us that the Chief Nlinister directed
the Cane Commissioner to divide the reserved area into two portions and '
allot one portion to the Sth respondent- In pursuance of that direction, the
Cane Commissioner prepared two lists "Ka" and "Kha". Under the orders of
the Chief Minister, the villages contained in list "Ka" were allotted to the
appellant and in list "Kha" to the 5tn respondent. The Cane Commissioner
merely carried out the orders of the Chief \tlinister. It is true that the impugned
orders were issued in the name of the Cane Commissioner. He merely obeyed
19. AIR 1970 SC 1896 : (1969) 1 SCC 308.
29I I
,l
the directions issued to him by the Chief I\{inister. We are unable to agree
with the contention of Shri Chagla that though the Cane Commissioner was
initially of the view that the reservation made in favour of the appellant
should not be disturbed, he changed his opinion after discussion with the
Chief l\'linister. From the nraterial before us. the onlJ' conclusion possible is
that the chief \{inister imposed his opinion on the cane commissioner- The
power exercisable by the cane commissioner under clause 6(1) is a statutory
po*... H" alone could have exercised that power. while exercising that power
he ca.rlrot abdicate his responsibility in favour of anyone - not even
in favour
of the State Government or the Chief l\{inister. It $'as not proper for the Chief
In
I\.Iinister to have interfered with the functions of the cane cornmissioner'
this case what has happened is that the power of the Cane Commissioner has
been exercised by the chief I\,Iinister, an authority not recognised by clause
(6)readwithclause(11)buttheresponsibilityformakingthoseorderswas
asked to be taken b;.' the Cane Commissioner'
The executive officers entrusted with statutory discretions may in some cases
beobligedtotakeintoaccountconsiderationsofpublicpolicyandinsome
context the policy of a l\tlinister or the Government as a whole when it is a
relevant factor in weighing the policy but this will not absolve them from their
duty to exercise their personal judgment in individual cases unless explicit
staiutory provision has been made for them to be given binding instructions
by a superior.
6.8.2 No Exercise of Discretion
In the landmark case of commissioner of Police, Bombay u- Gordhand,as
Bhanji2o the Supreme Court was faced with the issue of whether the
Government of Bombay had the authority to grant, refuse, suspend or
cancel licenses issued by the Commissioner of Police for erection of building
for public amusements. In this case the respondent, Gordhandas Bhanji,
wanted to build a cinema house on a plot of land at Andheri and made due
application to the Commissioner of Police. Subsequently the Commissioner
g.arrt.d permission by a letter dated 14/16th of July 1947. In the contents
of the letter there was ??o suggestion that his wiII was ouerborne or that
there uas d,ishonesty or fraud in what he did.. In the absence of that, he
l|,as entitled, to take into consid.eration the ad,uice thus tendered to him by
a public bod,g set up for this erpress purpose, and he was entitled in the
bona fid.e exerc,ise of his discretion to accept that adu'ice and act upon
it
euen'though he uould, haue acted, d,i.fferenttg if this i,mportant factor had
not been present to his mind when he reached a decision'
20. AIR 1952 SC 16.
 l
I Administrathte Discretion o"d P'i""pl"t of ]"di'fu
Textbook on Administratiae Laztt
f294
5(4) further authorises the
Later on the Cornmissioner wrote to the respondent on the 19/20t1' Act may appeal to the Governrnent. Sectiolr
to issue directions to licensees generally or to anY licensee i'
September, 1947. and directed him'not to proceed with the constnrction of Co.r"rrr*"rri empolvers the State
the cinema pending Government orders'. Thereafter on the 27FOth September, J,rti.rrt* for the purpose specified by it. Sec. 8 further or revoke a licence
1947. the Commissioner sent a communication to the respondent stating 'I L.".r"*"", or the licensing authority to suspend, cancel
arn directed by Governrnqnt to inforDr you that the permission to erect a granted under Section 5'
on April 24, 1957, the state Governrnerlt had issued instructions
under
cinema at the above site granted to you under this office letter... dated the
required that all requests
16th July, 1947, is hereby cancelled'. Aggrieved with the cancellation order. S""lio., S1a; *ith regard to grant of liccnces and
f* ,tr" grant of permission for opening all nen' permanent
cinemas should
the respondent challenged the legality of the order issued on the ground of
non-exercise of discretion by the Commissioner and acting under the dictates J" ,.futt:"a to the State Government for orclers. It was further specified that
with particulars such as population
of the government. Iil loorr"",ions should be accompanied
The Supreme Court while dealing n'ith the issue of whether the cancellation
in existence in the town,
"rtt'.townwherethepermanentcinemaisproposedtobeconstructed:
whether there are any permanent cinema already
by the Commi$sioner was on his own volition or he merely acted as ci post has,/ have been taking
and if so, how many: whether the applicant / applicants
office in foruard,ing ord.eis issued by som.e other authorily categorically of the State; and rvhether
held that "We haue no hesitation on reaching the conclusion that this is .rr1' pu.rt'in any activity undermining the security
not an order of cancellation by the Comrnissioner but rnerely intimation tne firranclal position of the applicant/applicants is sound'
The respondent had made an application under the statute for
grant
bg him of an ord,er passed, and nad,e bg another authority, namelg the
of Iicense for construction of a cinema hall. Based on the order
issued by
Goaernment of Bombag".
the Government the application of the respondent was forwarded it was
to the
On the issue of subsequent submission of affidavit by the Commissibner that
stating that the order of cancellation was actually made by him and not state Government. The application was rejected on the ground
reported by the police that the respondent had been arrested in connection
by the Government, the court rejected the argument and held that- on tendering apology and
*ith "S".r" Hindi Agitation" and was dischargecl
\Ve are clear that public orders, publicly made, in exercise of a statutory thathealsodidnotpayanyincometax.Licensewasgrantedtoanother
authority cannot be construed in the Iight of explanations subsequently given applicantSultanSinghandthatprobablywasthereasonfortheapplication
by the officer making the order Of what he meant, or of what w-as in his oi-tf," respondent to be rejected. Aggrieved with the decision of the State
mind, or what he intended to. do. Public orders made'by public authorities are primarily on the
meant to have public effect and are intended to affect the actings and conduct
Government, the respondent challenged the order issued
ground that the under the provisions of the statute the state Government
of those to whom they are addressed and must be construed objectively wittt for issuance of licenses'
reference to the language used in the order itself. *as not authorized to deal with the applications
Afteranalysingthepror,isionsoftlrestatutetheSupremeCourtupheld
6.8.3 Usurption of Power by a Superior Authority the order of the High court and made the following observations-
In the case of State of Punjab u. Hari Krishan Sharmazr the Supreme Thequestiorrwlriclrrvehavetodecideintlrepresentappeallieswitlrina
Court analyzed the concepts of failure to exercise discretionary power by verynarrowcompass.WhatAppellantlhasdoneistorequirethelicensing
aut-hority to forward to it all applications received for grant of licences'
and
an administratiye officer and abdication of power. The Punjab Cinemas
(Regulation) Act, 1952 u'as enacted to regulate exhibitions by means of it has assumed power and authoritv to deal with the justifiedsaid applications on
, lir" **irs for itself in the first instance. Is Appellant 1 in assuming
cinematographs in Punjab. Under Sectiol 3 of the statute no person could jurisdiction which has been conferred ol} the licensing authority by section
give an exhibition, by means of a cinematograph other than in a place i1r; (2) of the Act? It is plain that Section 5(1) and (2) have conferred
licensed under the Act and in accordance with the conditions and restrictions "na
jurisdiction on tle licensing authority to deal with applications for licences,
imposed by such licence. Sec. 4 empowers the District i\ilagistrate as the andeithergrantthemor".e.le"tthem.Inotherwords,theschemeofthe
statute is that when an application for licence is made, it has to be
considered
licensing authority. Section 5(3) provides that any person aggrieved by the (2) of the
dealt with under section 5(1) and
decision of the licensing authority refusing to grant a licence under the by the licensing authority'and
Act. Section 5(3) provides for an appeal to Appellant 1 where.tn",
lt":":119.
shows that
authority ha^s refused to grant a licence; and this provision clearly
21. AIR 1966 SC 1081 : (1966) 2SCR 982'

Textbooh on Administratioe Law
Appellant 1 is constituted into an Appellate Authority in cases where an
application for licence is rejected by the Iicensing authority. The course adopted
by Appellant 1 in requiring all applications for licences to be forwarded to
it for disposal, has really converted the Appellate Authority into the original
aurhority itself. because Section 5(3) clearll' allo$rs an appeal to be preferred
by a person rvho is aggrieved by- the rejection of his application for a licence
by the licensing authoritY.
..... It is true that section 5(2) provides that the licensing authority may
grant licences subject to the provisions of Section 5(1) and .subject to the
control of the Government; ancl it may be conceded that the control of the
Government subject to which the licensing authority has to function while
exercising its power under Section 5(1) and (2) is very wide; but however
wide this control may be, it cannot justify Appellant 1 to completely oust the
licensing authority and itself usurp his functions. The legislature contemplates
a licensing authority as distinct from the Government. It no doubt recognises '
that the licensing authority has to act under the control of the Governrncnt;
but it is the licensing authority rvhich has to act and not the Governrnent
itself. The result of the initructions issued by Appellant 1 is to chan$e .the'
statutory provision of section 5(2) and obliterate the licensing authority from
the Staiute-book altogether- That, in our opinion, is not justified by the
provision as to the control of Government prescribed by Section 5(2)-
The control of Government contemplated by Section 5(2) may justify thb
issue of general instructions or directions which may be legitimate for the
purpose of tn" Act, and these instructions and directions may necessarily
guiie the licensing authority in deali'g with applications for licences. The said
control may, therefore, take the form of the issuance of general directions arid
instructions which are legitimate and reasonable for the purpose of the Act.
The said control may also involve the exercise of revisional power after an
order has been passed by the licensing authority. It is true that Section 5(2)'
in terms, does not refer to the revisional power of the Government; but having
regard to the scheme of the section, it ma;* not be unreasonable to hold that
if the Government is satisfied that in a given case, licence has been granted
unreasonably, or contrary to the provisions of Section 5(1), or contrary to the
general instructions legitimately issued by it, it may suo moto exercise its power
to correct the said order by exercising its power of control. In other *'ords,
in the context in which the control of the Government has been provided for
by section 5(2), it would be permissible to hold that the said control can be
exercised generally before applications for licences are granted, or particularl5'
by correcting individual orders if they are found to be erroneous, but in any
case, Government has to function either as an Appellate Authority or as a
revisional authority, for that is the result of section 5(2) and (3). Government
cannot assume for itself the porvers of the licensing authority which have been
specifically providecl for by section 5(1) and (2) of the Act. To hold that the
c^ontrol'oi t-tru Government contemplated by section 5(2) would justify their
away the entire jurisdiction and authority from the licensing authority,
taking-permit
is to the Government by means of its executive power to change the
.l
Ad.ministrath:e Disctetion and Pincioles of Jadicial Reoieu 297'l
statutory provision in a substantial manner; and that position clearly is not
sustainable.
The scheme of the Act clearly indicates that there are two authorities which
are expected to function under the Act - the licensing authority, as well as
the Government. Section 8 is an illustration in point. It empowers the State
Government or the licensing authority to suspend, cancel or revoke a licence
on the grounds specified by it; and that shows that if a licence is granted by
the licensing authority, it has the power to suspend, cancel or revoke such a
Iicence just as Government has a similar power to take action in respect
of
the licence already granted. We are, therefore, satisfied that the High Court
was right in coming to the conclusion that Appellant t had no authority or
po*", to require all applications for licences made under the provisions of the
ict to be forwarded to it, ahd to deal with them itself in the first instance.
section 5 clearly requires that such applications must be dealt with by the
Iicensing authorities in their respective areas in the first instance, and if they
be revised by Government under section 5(2); and if
.." g."rrt"d, they may
they are rejected, parties aggrieved by the said orders of rejection may prefer
apjer.ls under section 5(3). of the Act. The basic fact in the siheme of the
Act is that it is the licensing authority which is solely given the power to deal
with such applications in the lirst instance, and this basic position cannot be
changed by Government by issuing any executive orders, or by making rules
under Section I of'the Act.
6.8.4 Acting MechanicallY
In Nand,la,t Khodidas Barot a. Bar Council of Gujarat22 t]ne Supreme
Court highlighted the importance of individual application of mind when
an administrative authority has been conferred with discretionary power
under the statute. Under section 35(1) of the Advocates Act, 1961 "where
on receipt of a complaint or otherwise a state Bar council has reason to
believe that any advocate on its roll has been guilty of professional or other
misconduct, it shall refer the case for disposal to its Disciplinary Committee"'
In this case the Gujarat State Bar Council had received several complaints
of misconduct against advocates enrolled with the Bar and had referred the
complaints to the Disciplinary committee of the Bar council by passing a
resolution stating - "Resolved that the folloli'ing-complaints be and are hereby
referred to the disciplinary committee of the Bar Council'- The names of the
advocates and the complaints in which they were concernd were listed.
In the earlier case of Bar council ol Maharashtra a. M.V. Dabholkar
(l)23 tire Court had laid down the objective and purpose of Section 35(1)
as-
22. rgSO Supp (1) SCC 318 : AIR 1981 SC 477'
23. (1975) 2 SCC 7O2.
I
Lau
1298 Textbooh on Administratioe
It is apparent that a State Bar Council not only receives a complaint but is
required to apply its mind to find out whether there'is any reason to believe
that any advocate has been guilty of professional or other misconduct- The
Bar Council of a State acts on that reasoned belief"'
... The Bar Council acts as the sentinel of professional code of conduct and
is vitally interested in the.rights and privileges of the advocates as &'ell as
the purity and dignity of the profession.
... the function of the Bar council in entertaining complaints. against advocates
is when the Bar council has reasonable belief that there is a prirna facie case of
misconduct that a discipiinary committee is entrusted with such inquiry.""
Applying the same rationale the Court in this case held that Nothing
appears from the record, of the case to suggest that ;efore referring the
complaint aga,inst the appellant to the Disciplinarg cornmittee, the state
Bar councit applied its mind, to the allegations mad,e in the complaint
and, found that there u)as a prima facie case to go before the Disci,plinary
Committee.
Interpreting the scope of requirement of 'reason to believe' the Court
applied the babholkai test2a of "The requ,irement of 'reason to belieue'
cannot be conaerted into a formalised, procedural road-block, it b.eing
essenti.ally a barridr against friuolous enquiries' It is implicit 'in the
resolution of the Bar council, uhen it says that it has consid,ered the
complaint and, d,eci.d.ed to refer the matter to the Di.sciplinary cornmittee'
that it had, reason to belieui, a$ prescribed bg the statute". In the present
case the Court concluded that the Resolution of the State Bar Council
had failed to specify that the cornplaints were considered and there were
prima facie cases for referring them to the Disciplinary colnmittee, hence
the p.o"e"dings before the disciplinary committee were considered to be
invalid.
6.8.5 Outside the Scope of the Statutory Provisions
ln Jasuant singh u. state of Punjab2s the appellant lvas prosecuted for
receiving illegal gratification under Section 5(f)(a) of the Prevention of
corruption Act 1947 and the charge against hirn rvas in the follorving
terms:
"That, you, Jaswant Singh, while ernployed as a Patwari, Fatehpur
Rajputan habitually accepted or obtained for yourself illegal gratification
th"t you received in the sum of Rs 50 on 19-3-1953 at Subzi Ivlandi
"rrJ
Amritsar from Pal Singh PW as a reward for forwarding the application Es'
21. (1976) 2 SCC 29r.
25. AIR 1958 SC 124.
Administratiae Disoetion and principles of Judicizl Reai.evt 299
1
p.A. with your recommendation for helping Santa singh father of Pal Singh
in the allotment of Ahata No. 10 situate at village Fatehpur Rajputan and
tf,"r"Uy committed an offence of Criminal misconduct in the discharge
of
your i"ty mentioned in Section S(t)(a) of the Prevention of Corruption Act,
iSaZ, pnnirnable under sub-section (2) of Section 5 of the aforesaid
Act and
within mY cognizance"'
The appellant challenged the prosecution on the ground that he was being
charged i- t -r.ch graver offence of habitually accepting
bribes under Section
against the appellant was a single charge
ittlf"l whereas the specific charge It was argued
oi r""upti.tg illegal gratification of Rs 50 from Pal Singh'
,,Section 5(1)(o) relates to a case of a public servant if he habitually
that-
u"""pt, illegal gratification and section 5(1)(d) if he obtains for himself any
valuable thing or pecuniary advantage. The contention comes
to this that
as the sanction was only for receiving Rs 50 as illegal gratification from
pal Singh and therefore an offence under section s(lxd) the prosecution,
the change and conviction should have been under that provision and had
that been so there would'have been no defect in the jurisdiction of the
court trying the case nor any.defect in the conviction but as the appellant
was tried under the charge of being a habitual receiver of bribes and the
sanction was only for one single act of receiving illegal gratific-ation the trial
was wholly void as it was a trial by a court without jurisdiction".
The Supreme Court emphasised that "The sanction under the Act is
not intend,ed, to be nor is an automatic formalitg and, it is essential that
the pro.uisions in regard. to sanction should be obserued with complete
striitness.' The object of the proaision Jor sanctions is that the authority
giuing the s|,nction should. be able to consid,er for i.tself the eaidence before
it comes to a conclusion thb,t the prosecution in the circumstances be
sanctioned, or forbidd,en". Hence in the present case it was concluded that
based on the facts the sanction was obtained relating to the receiving of
illegal gratification from Pal singh and therefore the appellant could only
be validly tried for that offence under Section 5(1)(d)'
6.8.6 lrrelevant Considerations
In tlre case of Indian Nut Prod,ucts u. (Jnion Of India26 the Suprene Court
analyzes the ground of improper exercise of discretionary powers by taking
into consideration irrelevant factors and leaving aside relevant factors' In
this case the owners and occupiers of cashew-factories filed the petition
challenging the validity of the order issued by the Government of Kerala in
exercise of the powers conferred on them under Section 3(1)(c) of the Kerala
Cashew Factories (Acquisition) Act, 1974' The Government had given notice
26. (1994) 4 SCC 269
 I
I Administratioe Disctetion and PrinciPles of Jadicia.l Reoieut 3Ol I
| 300 Textbooh on Administrati," Lo-
when the order was rnade. A person aggrieved by such action can question
bo the petitioners stating their intention to take action under Section
3(1)
the satisfaction by showing that it was wholly based orr irrelevant grounds
and directed the petitioiers to file objeciions, if any- The specific ground
and hence amounted to no satisfaction at all. In other words, the existence
officer of the circurnstances in question is open to judicial review.
provided in the notice was - "It has been reported by the authorised
that your factory is lying closed and that there is no possibility of it to
or in the immediate future' It cannot be disputed that serious consequences follos' on the basis of the
start functioning within i period of ten days
order passed by the Government on grounds mentioned in Clauses ("), (b)
Government are, therefore, of opinion that the said situation
will lead to
and (c). Hence it is all the more necessary that the Governmeut furnishes the
a large scale unemployment, othlr than by way of lay off or- retrenchment' full particulars on the basis of rvhich the Government claims to be satisfied
of the workers of the Cashew factory"' After complyipg with the stating norms that there is a case for taking over the factory. As already pointed out
of hearing an order dated 6.7.1988 was issued by the Government above there is not even an assertion in the notice that there has been any
that the factories of the petitioners are being transferred and wested
in the unemployment much less large scale unemployment. The ground simply says
the acquisition that the Government was of the opinion that the closure of the factory "will
Government. The petitioners filed a writ petition challenging
lead to a large sc6le unemployment". we are of the view, that in the facts
;;;;;;;;; that the action taken was conrrary to rhe provisions of and circumstances of the present case, the notice issued to the petitioners
and were colourable elercise of statutorg powers with
the parent statute with the so-called grounds s'as not in accordance rvith the requirement of the
oblique motiues' provisions of sub-section (1) of section 3 of the Act. The notices issued to
The Court analyzed -^l +L'o
the objective of the legislation and the scope of
^hianfirre nf different petitioners are, therefore, declared to be null and void. consequent
Section 3(1). Section 3(1) dealing with the Order of acquisition provides thereto, the order. dated 6.7.1988 is also quashed.
that- (1) Tile Government may, if they are satisfied- (a) that the occupier
of a cashew factory does not conform to the provisions of law relating of Power
of of fixation and payment of wages to the 6.8.7 Malafide Exercise
to safety, conditions service
to. a cashew pratap Singh a. State of Punjab27 is the leading case of mala fide exercise
workers of the factory; or (b) that raw cashew nuts allotted.
factorybytheCushe*Corporation.oflndiaarenotbeing.processedin of discretionary power. The appellant was a Civil Surgeon in the employment
the factory to which allotment has been made or that such -nuts
are being of Punjab Government and had been given leave preparatory to retirement.
transferred to any other cashew factory; or (c) that there has q*" l"tF" Subsequently, in June 1961 the State Government issued orders revoking the
.leave granted to the appellant and recalling him to duty. Simultaneously a
Scaleunemployment,otherthanbywayoflayoff-orretrenchmentofthethat
workers of a cashew factory, by ord.. published in the Gazette,
declare departmental inquiry was instituted against him and pending the inquiry
that cashew factory shall stand transferred to, and vest in, the Government: he rvas placed under suspension. The orders issued within the scope of the
Provided that before making a declaration under this sub-section
in respect power of the State Government under Article 310(1) because "members of
'pleasure
shall give the occupier of the factory a civil Service of a state hold office during the of the Governor".
of a cashew factory, the Government
primarily on the
andtheownerofthefactory'whereheisnottheoccupier,anoticeoftheir The appellant challenged the legality of the orders issued
therefor and ground of mala fide exercise of power. The appellant asserted that at the
intention to take action under this sub-section and the grounds
instance of the Chief \zlinister of Punjab the hostile orders were issued and
considertheobjectiorrsthatmaybepreferredinpursuanceofsuchnotice.
alleged that the chief Minister u'as personally hostile to him and these
TheCourtidentifiedtheprimaryobjectiveofthelegislationwas.to taken to wreck personal vengeance against him. Based on
prevent large scale actions were
acquire cashew factories in thspublic interest, in order to
provide employment the principle laid do$'n by Lord Denning said in Lazarus Estates, Ltd. u.
uoemployrrr"nt of norkers in the cashe$' industry and to
Beasley2s that *No judgment of a court, no order of a l\{inister, can be
to such workers who have been rendered unemployed.' Analyzing the
action
allowed to stand if it has been obtained by fraud" Supreme Court analyzed
of the State Government it observed-
whether the order issued by the Chief ]\4inister was vitiated on the ground
power, when of mala fide interest. It was further emphasized that-
It is well-settled that if a statute requires an authority to exercise
that conditions exist for exercise of that power, the
such authority is satisfied
. satisfaction has to be based on the existence of grounds mentioned in the
be made out on the basis of the relevant material' 27. AIR 1964 SC 72.
statute- The grounds must
If the existence of the conditions required for the exercise of the power is 28. [1956] 1 All E.R. 341
challenged, the courts are entitled to examine whether those conditions existed
t'

I A dminis tr at itt e Dis cre tio n an d

| 302 T"rtbooh o, Adminitt iltoe La-

Doubtless, he who seeks to invalidate or nullify any ?:t or order "t:::

tt-tf]t:: theevidencewehavekeptinviewthehighpositionwhichtheChiefMinister
a by Government ot rts powers' conscious of the fact that charges of a personal
i.ia" i" the State an4 are dignitary
the charge of bad faith, an abuse or mi"use
is not a are not to be lightly accepted- we have
\lrhile the indirect ,rrotirr" or purpose, or bad faith or personal ill-will irtrr" _u.a. against such
an<l very ofte.
to be held established except on clear proof thereof, it is obviously difficult ;i* ;r"" i., ,iirrd that charges of personal hostility are easily
or quasi penal proceedings against
toestablishthestateofaman'smind.forthatitrvhattheappellanthasto |ra" U" persons s'ho are subjected to.penal made full allou'ance for these
this may sometimes be done (see Eilgington u' iu.". *r.L initiate them, and have therefore
establish in this case, though
-.O] and weighed the evidence with anxious care-
Fitzmaurice ilrassl do
when one ha^s
aSs.)). The difficulty is not lessened ir"*.r, and we have examined of our brethren feel differently on
- fir" *""fa only add that the fact that two
toestablishthatapersoninthepositionofaministerapparentlyactingon and in the care to be bestowed
;;";;i;;" Lt"i"" of power has, in fact, been acting mala fide in the sense iti" *"tt", has height.ned our responsibility
enshrines and guarantees the
aim' We must, however' demur to the suggestion in lppr."irting the evidence. The constitution
of pursuing an illegitimaie that each and every authority
that mala fide in the sense of improper motive should be established onlv by ."f" "f law anJ Article 226 is designed to ensure
bona fide and within the limits
from the order impugned in-rh" Srrr", including the Government, acts
direct evidence that is that it must be discernible that there is an
ormustbeshownfromthenotingsinthefilewhichprecededtheorder.If oi ia" po*". and we Jonsider that when a court is satisfied
it is
be deduced i.u,rr. o. misuse of power and its jurisdiction is invoked, incumbent on
bad faith would vitiate the order, the same can, in our opinion, justice to the individual. It is with these considerations
as a reasopable and inescapable inference from proved facts' ii" co,rrt to afford
in mind that we approach the facts of this case'
of discretionary
Speaking on the limited role of judicial review on exercise
powerS the'supreme Court clarified that- Afteranalyzingthedifferentfactsallegedbytheappellantbasedonvarious
evidences,' the Court concluded that the charges had been satisfactorily
..the dominant motive which induced the Government
[T]heCourtiSnotanappellateforumwherethecorrectnessofanorderof p,o.,,ua and held that
r..""d and, indeed, it has no jurisdiction to substitute proceedings
Government could be
".n to take action against the appellant was not to take disciplinary
its own view as to the necessity or desirability of initiating disciplinary
in that against him for misconduct which it bona fide believed
he had committed,
thl po*er, jurisdiction and discretion for the discredit
proceediirgs, for the entirety of
The onlv question which could but to wreak vengeance on him for incurring his wrath and
;;;;;;-it;;sted by law in the Government'
thathehadbroughtontheChiefMinisterbytheallegationsthathehad
beconsideredbytheCourtiswhethertheauthorityvestedwiththepower made in the article which appeared in the Blitz in
its issue dated January
haspaidattenti.ontoortakenintoaccountcircumstances,eventsormatters or whether
wholly eixtraneous to the purpose. for which the poqer was vested' private or 15,196lfollowedbythecommunicationtothesamenewspapersbythe
mala fide for satisfying a appellant,s wife, in which these allegations were affirmed
and in large part
the proceedings have been lnitiated
we have found to be true,,. The impugned orders were held to be vitiated by
personalgrudgeoftheauthorityagainsttheofficer.Iftheactisinexcessof
is capable
the power granted or is an abuse or misuse of power'' the matter the fact malafidesandweresetasidebecausetheyweremoti'uatedbg-animproper
of interference and rectification by the Court' In such an event
purposewhichwasoutsid'ethatforwhichthepoulerordiscretionu)as
thattheauthorityconcerneddeniesthechargeofmalafides,orassertsthe conferred on Gouernrrlent.
,U.""".- motives or of its having taken into consideration improper
"i "Uliqu"e preclude the bourt from enquiring into the truth
or irrelevant matter Jo",
"ot reliefs 6.8.8 Colourable Exercise of Power
of the allegatiorr. -J" again"t the authority and affording appropriate event of was detained
to the party aggrieved b! such illegality ot obuse of pou'er in the
ln LaI Kamal Das u. state of west Bengal2e the petitioner
the allegations being made out' under the N{aintenance of Internal security Act 1971 so as to prevent him
-present
from acting in any manner prejudicial to the maintenance of supplies and
In light of the seriousncss of the various allegations made in the judicial services essential to the community. The petitioner was previously arrestd
case against the chief Minister and his family the court exercised andwasinjailforcommittinganactoftheftunderthelndianPenal
restraint and objectively tried to analyze the various facts and
evidences
Code. No witnesses *ere ptoduced, hence he was about
to be released'
placed before them. Ayyangar J' emphasized-
The detention order was made while the petitioner was already in jail' The
contention of the petitioner was that the power of detention was exercised
Beforeenteringonadiscussionofthequestionwhethertheappellanthas
established that the action of Government was vitiated by
mala fides, we
consideritpertinenttomakeafewpreliminaryobservation.Inconsidering 29. AIR 1975 sc 753.
I Administratizte Disctetion and Pt
| 304 Textbooh on Administratiae Laza

ln Mahesh Chand.ra u. U-P. Financial Corpn.so it was further clarified

out of fear and not of necessity. The Court, after analysing the facts of the ;hat-
case and the evidences placed by' the state authorities, made the following
Every wide power, the exercise of which has far-reaclring the purpose of
repercussion' Iras
observation-
lnherent limitation on it. It should be exercised to effectuate
good the
The strikilg feature of this case is that the petitiouer has been preventively ifr" A"t. In legislations enacted for general be'efit and common The exercise
detained for committing an offence of simple theft for rvhich he corrlcl be dealt ,"rp"ttiUifity iJ far graver' It demands^purposeful approach' is more strict' The
with undbr the ordinary penal law. He was arrested by the police in connection oiii""r"tio.r should ie objective. Test of reasonableness
with that theft and forwarded to a Judicial l,Iagistrate. The impugned order should be duty conscious rather than power charged' Its
i"uri"-r""*i"naries
and decisions which touch the common man have to be
was passed when the petitioner l)!'as in jail custody. while it is true that tested on
lctions
-torr.frrt"ne
.
and just is
in theory, an order of preventive detention can be validly passed against a liu of fairness and justice. That which is not fair
person in jail custody on the same facts on which he is being prosecuted, ,rrr.utron.Ul". And what is unreasonable is arbitrary' An
arbitrary action is
such an order is often vulnerable to the charge that it has beerr passed as a ultra vires. It does not become bona fide and in good faith merely because
colourable exercise of jurisdiction. The reason is that the scheme of Section
should be
io^p.rr"Uf gain or benefit to the person exercising
to
discretion
for which
3 of the Act postulates that the person bgainst whom the detention order is estatlished. An action is mala fide if it is contrary the purpose
made has freedom to act in a prejudicial manner. In such gases, therefore' in it was authorised to be exercised. Dishonesty in discharge of duty vitiates
proof of
response to rule nisi the respondent State must disclose full facts showing horv the action without anything more. An action is bad even without
in spite of the detenu being in jail, it !!'as reasonably possible to apprehend motive of dishonesty, if the authority is found to have acted contrary to
that he-was likely to act in the same prejudicial manner. in future. All the reason. Power under Section 29 of the Act to iake possession of a defaulting
circumstances showing inter alia that the jail custody of the detenue was unit and transfer it by sale requires the authority to act cautiously, honestly,
not going to be long and why he was or was about to be discharged by the fairly and rea.sonably-
court must be set out.
Theexerciseofdiscretionarypowerisrequiredtobeinaccordancewith
a just, fair and
the provisions of the parent stat'ute and must be exercised in
It may be remembered that the power under Section 3 of the Act can be reasonable manner. The scope of judicial review is limited and is restricted
exercised only if the detaining authority, on the basis.of the past prejudicial of the discretionaly power or the
conduct of the detenue is satisfied, about the probability of the latter acting
to review the manner of performance
process by.the administrative action is undertaken. Based on the various
similarly in future. This means the past activity of the detenueon the basis of ""'
principles- derived from the plethora of case laws it is essential that
the
which such a prognosis is made, must be reasonably suggestive of a repetitive
tendency or inclination on the part of the detenue to act likewise in future. A administrative authority must apply its own mind, taken into consideration
simple, solitary incident of theft, such is the one in the present c-ase, without all relevant fa'ctors, should not act mechanically and act in good faith.
more, is hardly suggestive of such a tendency. Here, it is not alleged
".rytttiog
that the commission of theft was accompanied by violence or show of force.
Nor is it alleged that it was committed openly or in a ilaring fashion by
6.9 PRINCIPLES OF JUDICIAL REVIEW
overawing or overcoming resistance from any quarter, r'"'hatever. The theft The judiciary with the objective of creating accountability in the exercise
was committed stealthily before 6 a.m. presumably under cover of night. Nor of discretionary power or in performance of administlative actions has
is it clear from the grounds that a large number of persons were concerned developed certain judicial principles to bring in predictability and
certainty
in this theft. All that is alleged is that the petitioner and his associates in government actions and for arbitrariness. some of the important
committed this theft. The number of the "associates" has not been indicated. -avoiding
judicial principles have been discussed in brief'
Since the petitioner or any of his "associates" was not arrested on the scene
of occurrence, the chief witness against him would be only the police officer
who arrested him and recovered the stolen property, if any, from him' We 6.9.1 Doctrine of ProPortionality
therefore, find it impossible to accept the fanciful plea set up in the counter The doctrine of proportionality as a ground of judicial review was derived
for not following up the prosecution of the petitioner in court. in
from the European Court of Justice and applied by.the English Courts
The Court asserted that the power of detention was exercised. in a casual,
"care-free" and, colourable manner. 30. (1993) 2 scc 279.
 I Administratizte Disc-retion and Pr
Textbook on Adnhistratfoe Ld@
., |.306
l]n" Supreme Court
-- Rights Act 1998' The doctrine in its application
ln state of u.p. a. sheo shanker LaI Sriaastoro3nprinciples of law that
implementing the Huma'n asserted that "ft is.now well .settled'that
proposes to review the
is similar to the Wed,nesburg unreasonableness' It of n'hether th'e
"iJ
"-OttJi".tf,
iun court o, the Tlibunal in erercise of its poL.Der. of judicial reuiew
nature of the administrative Lction taken on the touchstone u,ith the quantum of puni.shment. Doctrine
whether the action was within ,o*ia"r* normally interfere s'ituotions' It i's now
action taken *,as ."u.tty ."o,rired and arso taken under the l7 eiroeortlonality can be int'oked' onlg und'er certain
the possible courses oi acti'on which could be reasonably
wellsettledthattheHighCourtshallbe'abrgslo'wini.nterferingwith
is found' to be shocking to one's
provisionsoflaw.Doctrineofproportionalityjustifiesth:courtstoexercise the'quantum oJ punishient, unless i't
theirpowerofjudicialreviewsoasto",'",,..thattheadministrativeactiorr In some of the recent judgments llke Moni Shankar u' Uniort
conscience".
further that in quasi-judicial
;';;;;";;rh"-sror"*" court has
isnotunreasonableortotallydisproportionatetotheobjectivesoughtto re-emphasised
must not use a steam hammer to crack a
nut if a nut enquiries even after compliance wit'h all the
be achieved - Aou i'ro"."airrg. in departmental
it that the test of the doctrine
procedural requirenrents if on evidence
cracker would d'o.31 is found
applied through the judicial authorities will
In England the doctrine of proportionality has been largely ii proportiorr"tity n* not been satisfied' ttren
SecretarE asserted that doctrine oJ
a three-pronged test as laid down \n d'e Fre'itas u' Permanent
"(1) the legislative be within their power to interfere. It is further
of Ministry q egrl."ti"'"32 requiring into rvhethe: unreasonableness is giuing uag-to the
d'octrine of proportionali'tg'
important to jylify limiting a fundamental right' (2)
objective is sufficieitly IntheleadingcaseofCoimbatoreDistrict.CentralCoop.Banku.
rationally connected to it, the Suprerne Court had laid the nature' scope and
the measures designet 1o'*""t ttre oU;eciive are piuiZ"t";;;;tt
and(3)themeansusedtoimpairtherightorfreedomarenomorethan of the doctrine of proportionality' It was stated-
is necessary to accomplish the objective"' "Onit"Ja"
need and necessity
Inlndiathedoctrineofproportionalityhasbeenlargelyusedbythecourts With the rapid growth of administrative law andbythe various ad-ministrative
to find out if to control possible abuse of discretionary powers
to review tt. o.a# J*"J.d ;" the administrative authorities .Lfroriti"",'certain principles have been evolved by courts' If an action
theyared,isproportionate,.ercessiueorunreasonable.Thetestadoptedby irrational or otherwise
taken by any authority is contrary to law' improper'
thejudiciaryisto"pprvtt'"reasonablemantheoryandtoanalysewhether law can interfere with such action by exercising power
unreasonable, a court of
review. One of such modes of exercising power' known to lau' is
theactionwassooutrageousthatnoreasonablemancouldhavetakensuch
decision or it is b;;"ri all moral standards
and logical reasoning or it is "il"J.i"r
the "doctrine of proportionality"'
the test applicable
too excessiv" i" u;;;;i tn" ""tiorr taken. Fundamentally rn v. Ramana .proportionality,' is a principle where the court is conierned with the'piocess,
in India is that ov--w"d,n"rburg stand.ard. of judicial review. rnethodormannerinwlrichthedecision-rrrakerhasorderedhispriorities,
u.A.P.SRTCsstheSupremeCourtafterreferringtoalargenumberof reached a conclusion or arrived at a decision' The
very essence of decision-
casesontheapplicabilityofthedoctrineofproportionality'heldthat- *"r.i"econsistsintheattributionofrelatir'eimportancetothefactorsand
in the case. The doctrine of proportionality thus- steps in focus
considerations
Thecommonthreadrunningthroughinallthesedecisionsisthatthecourt truenatureofexercise-theelalrorationofaruleofpermissiblepriorities.
shouldnotinterferewiththeadministrator'sdecisionunlessitwasillogical
to the conscience of test" and "necessity
or suffers from procedural impropriety or was shocking or moral standards' De Smith states that "proportionality" involves "balancing
the court, i., th! se"st that it was in of
defiance logic
court would not test".Whereastheformer(balancingtest)permitsscrutinyofexcessiveonerotls of
In view of what has been stated in weilnesbury cose the penalties or infringement of rights or interests and a manifest
imbalance
infringement of
gointothecorrectnessofthechoicemadebytheadministratoropentohim relevant considerations, the latter (necessity test) requires
andthecourtshouldnotsubstituteitsdecisi.onforthatoftheadministrator. ho*a., rights to the least restrictire alternative'37
Thescopeofjudicialreviewislimitedtothedeficiencyindecision-making
Process and not the decision'
34. (2006) 3 scc 276.
35. (2008) 3 scc 484.
36. (2007) 4 scc 669.
T. toi Otptock in R u. Goldsmith (1983) I WLR 151
37. Judici.al Reti'eut of Administratiue Action (1995)'
pp' 601-05' para 13'085; see ako WaAe
32. [199e1 1 Ac 6e. & Forsvth: Administratiae lau (2O05)' p' 366'
33. (2005) 7 scc 338-
 .l
'lfOg Textbook on Adrniniitratiz.,e Lazp Ad.ministratitleDisc.retionandPinciplesofJadirizlReaiewto9|

In Halsbury's Lauts of England3s it is stated: th"

In Jasusant Singh u' Pepsu Roaduays Transport Corporationa2 . rr- - ^-l^-.

#;;;";;;; the ioctrine

,,The court will quash exercise of discretionary powers in which there'is
"ooii.a "i n',:l"ll'":?11"^::^,T*t:1":":
autnoritv"t" tnt: ;1:::
no reasonable relationship between the objective which is sought to be ;#ilt; administrative "":: ::t"^:::.::11t ff:: i:,'J,f
tj::"'"J:,'l:
achieved and the means used to that end, or tvhere punishmerrts imposed by
administrative bodies or inferior courts are $'holl-v- out of proportion to the
ffi;il ;;;; respondent
.was
round
.:: .h?":_::-T:T*
iniliateg
relevant miscondlct. The principle of proportionality is u'ell established in
;ti,;; i-Ji."ipri""r1: ilr" proceedins YS "q"i'*:.lli'i :"tl: :Ii:
L*bo.r. court Iooking into the case held that
;i"Jr""-ui';ro*--"i.,ri"u.
European law, and wiII be applied by English courts where European law is
inthe.circumstancesofthecasethepunishmentofdismissalfromservice
he directed reinstatement of
.*^-+
enforceable in the {omestic courts. The principle of proportionality is still at +1.^
^f the
a stage of development in English law; lack of proportionality is not usually is rather on the heaviier side and therefore, the Supreme
treated as a separate ground for review in English law, but is regarded as
in service denying back wages'' On appeal before
"pp"ffr.rt
Court it was observed that-
one indication of manifest unreasonableness".
mechanically propelled
The doctrine has its genesis in the field of administrative law. The Government ... a driver of a passenger bus or for that matter any liquor while on duty
and its departments, in administering the affaiis of the country, are expected vehicle cannot anct shJuld not consume intoxicating
to honour their statements of policy or intention and treat the citizens with because that endangers the safety not only
of those in the -r'ehicle but of
looking to the conduct of the appellant
full personal consideration without abuse of discretion. There can be no "pick those irsing the roais also. However,
appears to his first offence and the Labour Court in exercise of its
and choose," selective applicability of the government norms or unfairness, it be
of the opinion
arbitrariless or unrea.sonableness. It is not permissible to use a "sledgehammer ;"rJai*i"" under section 11A of the Industrial Disputes Act was
to crack a nut". As has been said many a time; "where paring knife suffices, thatinthefactsofthecasepunishmentofdismissalwasratherheavyand
But reduction
punlshment'
battle axe is orecluded". was not called for and therefore, reduced the -the
refusal of back wages' which wguld \ inadequate
w'as to a level namely mere
punishment in the tl,cts of this case... In our opinion
to keep the appellant
Prior to the recognition of the doctrine of proportionality in t}:re Counc'il of a further punishment is also
Ciuil Seraice (Jnion a- Minister for Ciuil Seruicese India had given effective within the bounds of well-disciplined conduct
approach may not
fo. and should be imposed so that our humanistic
recognition to the inherent principles of the doctrine. In the case of Hind ",il"d Accordingly, we direct
induce him to repeat his intemperate performance.
Construction €! Engg Co. Ltd. a. Workmenao fe* workers who were absent not be given three increments in the time scale in
llrr"r'irr"."ppellant should
from duty on a particular day thinking it to be a holiday were dismissed which he.would be reinstate.d, fot the next three
years' For all other benefits
from service. supreme court held that "It is impossible to think that ang he will be treated as continuing in service'
other reasonable employer urould haue imposed the extren'Le punishment
an army
of dismi.ssal on its entire perrrlanent staff in this manner. It was further In the leading case of Ranjit Thakur u. (Jnion of Ind'iaa3 rvhen not
of his superior officer by eating
observed that the punishment imposed on the $'orkmen not onlg seuere officer did obey the lawfui command
and, out oJ proportion to the fault, but one which, in our judgment, no
'ot
food, offered to hirn the punishments of one year rigorous imprisonment'
be deemed unfit
reasonable emploAer u)ould haue imposed. The Court asserted that in the dismissal from service aDd a declaration that he would
circumstance the workers should have been warned and fined and the absence for all future employment were held to disproportionate in nature by the
..Judicial review generally speaking, is
treated as leave without pay. Similarly while holding the termination of Supreme Court. lt was observer.I that
making
service of an employee as disproportionate in Federation of Ind'ian Charnbers not directed against a decision, but is directed against the "decision
is within
process". The question of the choice and quantum of
punishment
of Comrnerce and Ind,ustry a. Workrnenal the Court made the observation
that "[T]he Federation had rnade a ,nounta,i,n out of a mole hill and' made ihe jurisdiction and discretio. of the court martial. But the setrtence has

to suit the offence and the offender. It should not be vindictive or unduly
a trioial matter into one i'nuolu'ing loss of its prestige and reputation"'
as to shock the
harsh. It should not be so disproportionate to the offence
of bias' The doctrine
conscience and amount in itseli to conclusive evidence
of judicial review' would ensure
38. (4th Edn.), Reissue, Vol. 1(1)' pp. L44-45, para 78
of proportionality, as part of the concept
39. [1985] A.C. 374.
40. AIR 1965 SC 917 : (1965) 2 SCR 85. 412.AIR 1984 SC 355 : (1984) 1 SCC 35'
4r. (1972) 1 SCC 40 : AIR 1972 SC 763. 43. (1987) 4 SCC 611 : 1988 SCC (L&S) l'
I Admin*trative Disctetion and Princioles of Judicial Reoiatt lifs/W;'
| 3fO Textbook on Administratiae Lazo

inflict appropriate penalty whenmembers are found to be guilty of misconduct.

that even on an aspect which is, otheru'ise, u'ithin the exclusive province
of the court martial, if the decision of the court even a,s to sentence is an
outrageous defiance of logic, then the sentence would not be immune from
correction. Irrationalitl- and perversity are recognised grounds of judicial
review".
One of the other important cases where the doctrine of proportionality wa^s
used by the judiciary \s Shambhu Ram Yad,au u. Ho,nurnan Das Khatry.ar
In this case the respondent while appearing as a counsel 'in a suit pending
before a civil court wrote a letter to his client stating that he has been
informed by another of his client that the judge concerned in the case
accepts bribe and he has obtained several favourable orders from him- It
was further stated that unless the client had alternative means of influencing
the judge, the client should send Rupees 10,000/ so that necessary pa5rment
could be made to the judge. A complaint was made before the Bar Council
Qonsidering the nature of the misconduct, the penalty of pcrmanent debarment
hadbeenimposedontheresporrdentwhichwithoutanyvalidgroundhasbeen
modifiedinexerciseofpou,erofreview.ItisthedutyoftheBarCouncils
toensurethatlawyersadheretotherequiredstandardsandonfailure,to
takeappropriateactionagainstthem.ThecredibilityofaCouncilincluding
ir, ai""iori""ry bodyr in respect of any profession whether it is law, cases of
medicine,
accountancy or any other vocation depends upon how they deal with
delinquency involving ierious misconduct which has a tendency
to erode the
credibility'and ..putation of the said profession. The punishment, of course,
has to be commetrsurate '*'ith the gravity of the misconduct'
as a
In the ca,se of LIC u. R. Sureshab the respondent was appointed
Development officer in the LIC. Subsequently a departmental'proceeding
was initiated against him on five specific charges. After the enquiry,
the
enquiry officer found him guilty of the first four charges relating issuing

of Rajasthan and a disciplinary proceeding was initiated against him. After a potilv in the name of a- dead person by relying on the statementshim of
the agent and for not personally verifying the same, but exonerated
the enquiry the State Bar Council held the action to be a case of. misconduct
which adversely affected the interest of the litigating public and the legal ofthefifthonerelatingtoforgery.Therespondentwasdismissedfrom The
profession and suspended him from practice for 2 years, on appeal to the service by the disciplinary authority by an order dated 19-4-1989'
respond.ent cfralengei the dismissal order on the ground th6t he did not
Bar Council of India the punishment was enhanced and the name of the only guilty of negligence.
respondent was directed to be struck off from the roll of advocates and intentionally commit any wrongful act and was
The respondent had relied' on the opinion expressed in union of India
u.
debarred him permanently. On a review petition filed before the BCI the
punishment of debarment was substituted with one reprimanding him in light
j. ,ln*"a* that negligence by itself may not be held to be a misconduct
wherein the court had stated- "It is, however, difficult to believe
that
of his old age and his previously unblemished character. But Supreme Court in discharge of duty
struck down the changed order issued by the review committee as all the lack of efficiency or attaininent of highest.. s.tandards
There
reasons and facts on the basis of which the order were revie'wed had all been attached to public office would ipso facto constitute miscoriduct'
may be negligence in performance of duty and a lapse in performance of
considered by the earlier Disciplinary Cornmittee of the BCI. The Court held may
that the power of review does not empower the Disciplinary Committee to duty o, ..ioi of judgment in evaluating the developing situation be

modify the earlier order made by another Disciplinary Committee by taking ,.r"giig..r"" in discharge of duty but would not constitute misconduct unless
a different view on the same set of facts. It was further held that in light thJ insequences dire-ctly.attributable to negligence would be such as to be
irreparable or the resultant damage would be so heavy that the degree
of
of the serious nature of misconduct, public interest and high standards of be indicative of negligence
morality the order of permanent debarment was necessary. culpability would be very high. An elror can
The Court observed- th" i"gr"u of culpability may indicate the grossness of the negligence'
"rri
Carelessness can oftenbe productive of more harm than deliberate wickedness
The respondent was indeed guilty of a serious misconduct by *'riting to his jurisdiction
client the letter as aforesaid. l\Iembers of the legal profession are officers of or malevolence". The Supreme court held that while exercising
regard must be made by keeprng all relevant factors in mind including,
the
the court. Besides courts, they also owe a duty to the society $'hich has manner in
a vital public interest in the due administration of justice. The said public nature of the misconducts ailLged, the conduct of the parties' the
which the enquiry proceeding had been conducted etc. It was further stated
interest is required to be protected by those on whom the power has been
entrusted to take disciplinary action. The disciplinary bodies are guardians that if a misconduct was committed with an intention then it deserves the
of the due administration of justice. They have requisite power and rather a
duty while supervising the conduct of the members of the legal profession, to
45. (2008) ll scc 3rs.
46. (197e) 2 scc 286.
44. AIR 2001 SC 2509 : (2001) 6 SCC 1-
 ;l
Textbook on Adrninistrative LatP Administratioe Piscretion and Principles of ludicizl Revizw ll3 |

maximum punishment. Hence each case must be decided on its own facts, predictability and certainty
in government actions and to avoid arbitrary
dnd if necessary the doctrine of proportionality may also be invoked. In policies. In the words of supreme court - Principle of
changes in governmeut
this case the Court applying the doctrine of proportionality recognized that justr'ce opply in cases uthere there is som'e right which is likely
natural
'il"i"-"it"*"d by "" an-ict of ad'ministration. Good admini'stration' houeuer'
there was no quantum of loss and the respondent was out of job for more
than 20 years and in that process he had already suffered a lot' ilemanils obseruance oJ
d,ictrine of reasonableness in other situations also
regitimatery erpect to be treated. fairly. Doctrine
In the case of M.P. Gangad,haran u. State of KeralaaT the Supreme Court uhere the citizens mig
deueloped i,n the contett oJ principles
recognized the doctrine of proportionality as a ground of judicial review and ]i"7"i*1.*"re erpectation ias been the doctrine has been deemed
used the doctrine to determine the suitability of the shifting of a Family nf n.atural iustrce.'- In Indian jurispruclence
as to ensure that the cftizens are
Court. The Court held that- ;; ;";; ,;regral part of Article 14 so
il,ii t" a nori-arbitru''Y *a"""''4e
The constitutional requirement for judging the question of reasonableness and expectation has
fairness on the part of the statutoly authority must be considered having In Halsbury's Laws of England the doctrine of legitimate
regardtothefactualmatrixobtainingineachcase.Itcannotbeputin been exPlained as-
a straitjacket formula. It must be considered keeping in view the doctrine A person may have a legitimate expectation of being treated in a certain
of flexiLility. Before ai action is struck down, the court must be satisfied ** Lt an administrative authority even though he has no legal right in
that a case has been made out for exercise of power of judicial review- \A/e The expectation may arise either frorn
are not unmindful of .the development of the Ia*' that from the doctrine of ;;;"d law to receive such treatment'
arepresentationorpromisemadebytheauthority,includinganimplied
wednesbury unreasonableness, the court is leaning towards the doctrine of i"p.lrarrt"ti"", or ffom consistent past practice. The existence
of a Iegitimate
proportionality. But in a case of this nature, the doctrine of proportionality
must also be applied having regard to the purport and object for which the "*p."t"ri""mayhaveanumberofdifferentconsequences;itmaygivelocus
standitoseekleavetoapplyforjudicialreview;itmaymeanthattheauthority
Act was enacted. ought'nottoactSoastodefeattheexpectationwithoutsomeoverridingreason
"public policy to justifu its doing so; or it rnay mean that' if the authority
of
Thus the court by applying the substantive aspect of the doctrine of pffir." io aefeat L p"i"or," legitimate expectation, it must afford him an
proportionality held that uhile constituting a Family court the state must ipporto^itv to make representations on the matter. The courts
also distinguish,
prouide for alt requ,i,site ,i,nfrastructure so as to meet the objects for which applications to
ro, u**pi" in licensing cases, betrveen original applications,
the Family Courts dre required, to be'.estoblished,. A court should' not rene*'and revocations;-a party who has been granted a licence may have a
be established only because it is prouid'ed for under the Act' The State ;s;i*;;;""pectation that it rvill be renewed unless thereproceduralgood
is some reason
protection
be entitled to greater
must be aliue to the situation that it has a dutg to see that the dispute o.lt to do so, and may therefore
resolution fora are prouid,ed with adequate infrastructure' than. a mere applicant for a grant'o"

6.9.2 Doctrine of Legitimate Expectation Prof.CliveLewisinhisbookJud'icialRerned,iesinPublicLawhas

definedthescopeofthedoctrineoflegitimateexpectationas_
The doctrine of legitimate expectation is a significant effort on the part of
Decisi,ons aJfecting legi,timate erpectati'on's- In the public Iaw
field'
the judiciary to make the state accountable or answerable for its various rights but they may have
policies and actions. when the state authorities make a sudden change in individuals -"y ,ro"t hive strictly enforceable
legitimateexpectatiorrs.Suchexpectationsrnaystemeitherfromapromise
the policy of the state or deviates from its past practices or goes back or a representation made b5' t p,tblic body, or from a previous- practice of a
-hearing
on its announced policies, n'hich adversely affects the interests of common public Lody. The promise of . before a decision is taken mal' give
people then the judiciary may hold the state authorities liable for violating rise to a legitimate expectation that a hearing will be given. A past
practice_
to an of
the legitimate expectation of the people. The doctrine has been developed of consulting before a decision is taken may give rise expectation
consultation before any future decision is taken. A promise to confer,
or past
to provide a relief to the people when their interests but they are unable to
demand for a relief on the basis of violation of their legal rights- The doctrine
has been included within the domain of public law so as to bring about ffin Lil. u. union of Ind.ia, (2oo7) 2 scc 640'
49. State of W.B. u. Niranjan Si'ngha, (2001) 2 SCC 326'
47. (2006) 6 scc 162 50. Halsbury's Larvs of England, 4th Ed. Vol. 1(1) r5l'
 Textbooh on Administratiae Lato

practiceof conferring a substantive benefit, may give rise to an expectation

theCourtemphasizedtheneedtonotactinanarbitrarymannerorin
'taken anunfairmanner.Inthiscaseitwasheldthatheldthatthepurposeof
that the individr,ral will be given a hearing before a decision is createDota
to confer the benefit. The actual enjoyment of a benefit may thelVlinister,sactionwasdisclosedinthestaternentsubmittedbeforethe
legitimate expectation that the benefit rvill not be removed without
the House of Commons'
by Lord Fraser in A-G
individualbeinggivenahearing.onoccasions.individualsseektoenforce The doctrine was further conc,eptually developed applicant rvas an illegal
the
of Hong Kong u. Ng Yuen Shiu.sf, In
thepromiseorexpectationitself,byclaimingthattlresubstantivebenefit this case
be conferred. Decisions affecting such le$itimate expectations are subject
to Hong Kong in 1967' After a
t-*igt"* frJm China and had entered into
judicial review.5r
changeinimmigrationpolicy,theDirectoroflnrmigrationwasgiventhe
to pass removal orders against such people and repatriate
them'
This doctrine was introduced in the branch of administrative law'by power
Lord Denning in the leading case of Schmi'd't u' Secretary of State for onpetitioningtheGovernoraseniorirnmigrationofficerhadmadethe
i"^"- ijf"rfr.ti It *." observed that an administrative bodyinterest is bound announcementthateachillegalentrantwouldbeinterviewedandhiscase the
,,treated on its merits". Afte;eing questioned by an immigration officer,
to give a person an opportunity of 'being heard if his right' or
legitimate expectation were adversely irnpacted by an administrative action' applicantwasdetainedandtheDirectoroflmmigrationpassedaremoval of making a
come to 'order against him without giving him a reasonable opportunity
ln trris case a petition was filed by some foreign students who hadthe Home representation *tty hi shJuld no! be removed' The core issue in the
study Scientology at the Hubbard College of Scientology against "" 'o the Lpplicant can clairn for a right of fair hearing before
studies' It . appeal was whether
secretary for not extending their stay permits to complete their are made by a public official based
done for an a decision adversely affecting his interests
was alleged that the refusal to grant extension was invalid, the concept of 'f.fiti*.t"" expectation' of being accorded
such a heaiing'
fair procdure' on
unauthorized purpose and failed to comply with the norms of based upo-n :ome statement
to The Court held that "the expectations may be
The policy of the Home Affairs was to allow aliens to enter the country which has the duty
or undertaking by, or on behalf of' the public authorityits officers' acted in
and on the
p,rr.rr" frrit time study at a recognized educational establishment through
;; ;;ki"; thJ dlcision, if the authoritv has'
basis of which permirssion was given to the plaintiffs to enter the
country'
the of Health awaythatwouldmakeitunfairorinconsistentwithgoodadministratiorr
Subsequently there was a cha"g" of policy and Minister
declaring as an for him to be denied such an inquiry"'
issued a statement to the House of Commons Scientolog-y
of legitimate expectation in favour of an alien it
objectionable practice and all necessary steps should be taken to curb its .Applytng the.pripciples
growth, including denial of extensions to foreign students who had already was held that-
cometoUKtostudyScientology.Basedonthenewpolicytheapplications The justification for it is primarily that' when a public authority has promised
of the plaintiffs were rejectea Uy ttre Department of Home Affairs' Dealing to follow .".tu'i,, ptt""d"", it is in the interest of good administration that
with the issue of whetler the action of the Minister was an authorized "
itshouldactfairtyandshouldimplementitspromise,solongasimplemeritation
right to . principle is also justified by
action, the court held that under common law no alien has any does not interfere *itt, lt. statutory duty. The
enter this countrg ercept by leaue of the croun: and the croun can refuse thefurtherconsiderationthat,whentheprornisewasmlde'.theauthority
leaae without gi,uing tny i"o,on' Interpreting the provisions of the Alien musthaveconsideredthatitwouldbe"""i,t.dindischargingitsdutyfairly
general rule that is
Order, 1953 the Court lbse..,ed that the "secretary of State has ample by any representations from interested parties and as a
or to grant him leaue to correct.IntheopinionoftheirLordshipstheprinciplethltapublicauthority
Irower either to refuse ad,mission to an alien isbounduyitsu,'dertakingsastothcprocedureitwillfollow,providedthey
enter for a limited period, or to refuse to eatend' his stay"' the Minister given by the
to be for the do not conflict o,iat, i " arity, l" applicable to the undertdlking
can enercise his power for any purpose which he considers
Governmentofffo"gX""gt"theapplicant'alongwithotherillegalimmigrants
House on October
public good, or to be in the i'nierests of the people of this country' There from Macau, in the"annoincement outside the Covernment
28, that each case would be considered on its merits'
isnottheslightestgroundforthi'nki,ngthattheMinistererercised,his
power here for any unauthirised. purpose or utith any ulterior motiue"'
On the issue of whether the Home Secretary was under a duty to
act fairly,

Metchants, u. state oJ".r{., (1994) b scc 5o9.

@e Assn.
53. (1983) 2 All ER 346.
52. (1969) r Ar ER 904-
 A d.min is tra tio e D is cte tion an d
I
| 316 Textbook on Adrninistratiae Lato
treated synonymously but
expectation and legitirnate expectation are being
Their Lordships quashed the order of removal made by the Director against is preferable to use the adjective of 'legitimate''
the applicant and passed the order of conducting a fair inquiry wherein the Incaseofbreachoflegitimateexpectationthegroundofjudicialreview
applicant should be given an opportunity to make such representations as islimitedtodetermining-*hetherproceduralnormswereadheredtobvthe
he may see fit as to 1!hU he should not be rernoued,. a.dministrative authoritie! at the tirr.re of taking
the administrative decisions'
In the leading case of council of ciuit seruice union u. Ittinister for Theapplicableproceduralnormsaretobedeternrinedbasedonthenatureof
Ciuil Seruicesa the House of Lords had categorically recognized legitimate trhe subject Trlatter of the decision,
the erecutiue funct,ions of the deci'sion-
and' the particular circumstances in which the decision
expectation ns valid ground for judicial review of administrative action and came to
maker-
had observed thdt euen where a person claim'ing some benefit or priuilege bemad'e...theprimafacieruleof'proced'uralpropriety'inpubliclaw'
has no legal right to ,it, as a mcltter of pri.uate latu, he may haue a legitimate applicabletoacaseoflegitimateelpectationsthatabenefitoughtnot
erpectation of receiui.ng the benefit or priuilege, and, if so, the courts withdrawal has been
to be withd.rautn unt,il thi reason fo,its proposed enjoyed that benefit and
will protect his erpectation bg judici.al reuiew as a rnatter of public laut-... communicated to the person uho has theretofore
on the 'eoso'''"
Legitimate, or reasonable, eapectation may ari,se iither frorn an etpress that person has been giuen an opportunitg to comment expectation
promise g,iuen on behalf of a public authori.ty or frorn the eristence of a -of ,rightin cases of legitimate
in r" tt. procedural o;ligation applicable may
regular pract,tce which the claimant can reasonably erpect to continue- is associated with the Joncept to be heard' and involve
It generally relates to a benefit or priuilege to uhich the clairnant has no proceduralexpectationslikeexpectationofpriorconsultatio:,expectationof
doctrine does not
right in.priuate law, and, it mag euen be to one uhich conflicts with his ieing allowed to time to make representations etc. Thehelps in testing the
priuate lau rights. but it fundamentally
F".r"" to any enforceable rightauthority
Lord Diplock described the application of the doctiine in the following action taken by the government whether arbitrary or relevant'5o
words- In recent years the doctrine has been expanded to include claim for
East Deaon Heolth
substantive rights. Lord Woolf in R' u' North
and
To qualify a,s a subject for judicial review the decision must have consequences
which affect some person (or body of persons) other than the decision-maker, Authoritg,",pCoughlans7hadstatedthat..wherethecourtconsiders
although it may affect him too. It must affect such other person either (a) by thatalawfulp.o*ise-o.practicehasinducedalegitimateexpectationofa
altering rights o.r obligations of that person rvhich are enforceable by or against benefittuhichissubstantir"le,,,otsimplyprocedural,authoritynowestablishes
him in private "law or (b) by'dbiiiiving him of som€ benefit or advantage thatheretoothecourtwillinapropercasedecidewhethertofrustrate
different course will
which either (i) he has in the past been permitted by the decision-maker the expectation is so unfair that tt take a new and
to enjoy and which he can legitimately expect to be permitted to continue amounttoanabuseofpor,l'er.Here,oncethelegitimacyoftlreexpectation
to do until there has been communicated to him some rational ground for isestablished,thecourtwillhavethetaskofweighingtherequirementsof
withdiawing it on which he has been given an opportunity to comment or for the change of policy"'
fairness against any overrid.ing interest relied upon
(ii) he has received assurance from the decision-maker will not be withdrawn
without giving trim first an opportunity of advancing reasons for contending Subsequently fi. u- Secy' i7 Stot" for the Home Deptt' er p Hindley th,e
in
procedural part of legitimate
that they should not be withdrawn. English courts have clubbed the substantive and
expectationandemphasizedthatinallcasesoflegitimateexpectationtlre
questions i.e- what has
Lord Diplock categorically justified the usage of the term 'legitimate court should fundanlentally look into three practical
committed itself;
expectation' in preference of reasonable expectation so as to indicate that the public authority, whether by practice oi by pto*ise' to act unlan'full1'
the second is whetlier the authority has acted or
proposes
it has conEequences to uhich effect utill be giuen in public lato, utheieas
an erpectation or hope that sonxe benefit or adaantage would cont'i,nue inrelationtoitscommitment;thethirdisw.hatthecourtshoulddoand
reneging by an authori'ty
to be enjoyed, although it might uell be entertained, by a 'reasonable' thereafter fundamentally determine uhether the pouer''
rnan, uould not necessari,ly haue such consequences. Lord Roskill in the on its pron-Lise .a, 'so unfair as to amount to an abuse of
same judgment had also stated that in recent times the terms reasonable
55. Ibid Lord DiPIock in CCSU'
56. State of W-B- a. Ni'ranjan Si'ngha, (2OOl) 2 SCC
326

57. (2000) 3 AII ER 850 (cA)'

54. (re8s) A.C. 374.
 .. |..
Lato
'"-gtg
'..J Textbook on Adrninistratioe
purported of a power can amount to an abuse or excess of
power'
-""Jifrl" exercise to develop into an important general doctrine"-
seems likely
" an D eu eropment c or p n'58 book reads thus:
i"t;i.t,"** "t:":"::il- ., ln di :",. Ht"i.nexplain the meaning and scope Another passage at page 522 \n the above
d.u st

K. Jayachand" ;:o;'"1'"t""u'tn" "n"ti questions

addressed .crucial ,,It u,as in Jact for the purpose of restricti,ng the right to be heard' that
'ro, intrid,uced,
of the doctrine of Iegitimat" .*p".t.tl;"";;J-
.*o..iu.lr, *rr* is the nature of the .Iegitimate expectati:,o,n' into the law' It made its Jirst
of 'scientology' *'ere refused
in the nature of_ who is the ""1 appearance ,n o 'o'" where al\en' students
:il: act of policy by the Home Secretary, who
expectation? When does such "rr- "*nu"t1i?1b:":T" extension of their .,,t.v"po,,'lts an
the same? What are 'iltTi:'#"[
aS
tr would be granted to this sect'
and what i" tn" fo""J"tion for had announced that iro discretionary. benefils
no legitimate expectation of extension
administrativeauthoritieswhilet'kingadecision'incasesattractingthe The court of appeal held that they had
no right 1o a hearing, though revocation
doctrine of
It was observed-
r"giti;;i" "*pt"tttio"' ;;J;" ;;itt"J-ii.r,", ^rd so
been contrary to legitimate
it' the past as a of their permits *i'ftlt' tn"t time would have may cancel legitimate
present as we experience expectation. ofncl^i statements of policy, therefore,
Time is a three-fold present: the *qd purposes, the In a different context''
expectation' just. as they may create- it'
* " nr"".lii,'"**a't-i.oi- l:.. as seen above'
presenr memory and iuture offended against airport- byelaws' with
-J
expectation",,',,o.bethesameas"".'"'oJ.i"".-Iti"diff","''tfromawish.aground of' where car-hi.u a.it'"'" irad habitually
nor can it amount to tUirn or demand on the be and many convictions and unpaid fines' it was
held that they had no legitimate
desire or a hope
a right. Ho*u""-' ""'"""' and -sincere
; il;^; ;;;-" *' " 'n"*uy themselves
mav
expectation of bein; he;;; before being banned by the airport authority'
look to ;"rn ; u" i"imr"a' 'lh"y
however confidently one may and a mere disappointment
does
cannot
t*ot;;;;;" Thereissomeambiguityinthe'd'ictaaboutlegi'timateexpectotion'which
of a fair hearing or etpectati'on of the licence
"*o""t"i'1"i"L""'Lur"
notattractlegalconsequences.Apio.,".r'op.."enleadingtoamoralobligation
rnay rnean
"ltn", "'i""i"tion
J;h i; sought. But the result is the same in either '

cannot"o""'^.l-liignf *:*.:Ti"ti:*r;ii*":trul;:":'":ffii1":l
or other benefit being
public authoritg Jrom
case; absence of legiiimate expictatiin uill absolue the
:T"nJiliil'f"'Ttli:.'Li"t'l'""f li"';-"r"'"""1^"11":1ff
Such expec i'ft **if
;: afJording a hearing"'
is distinguish"o";;;;;-"-Eenuinl' exoectation' does
expectation
justifiablv *r"i*#"""J;;1"::"b1"'^'#;;' ";.ch !-itimate it is generally agreed
on examination of some of these important decisions
notbyitselffructifyintoaright".d;;"'"f"..itdoesnotamounttoarlgnt
in the conventional sense' thatlegitimateexpectati.ongivestheapplicantsufficientlocusstandiforjudicial
reviewandthatthedoctrineoflegitimateexpectatioh.ls.tohconfinedmostly
results in negativing a promise
It is stated that
Ithastobenoticedthattheconceptoflegitimateexpectationinadministrative to right of a fair t "o.i"g U"ft." a iecision which does not give scope to
gainect sufdcient importance- is taken' The.doctrine
law has now' undoubtedly' or withdrarving an undertaking
"regitimate";o'-";;;;;"";*':'^"::":iiil[n;*1":"f ffi ":"5;qp!F claim relief straightaway i.o*
"tnu
administrative authorities as no crystallised
justice' unreasonabreness' right as such is involved' The protection of such legitimate expectation does
.9; lf;;::n$ffi ,":H[,"L"r"n1illi.'"i"*r the principle of where an overriding public interest
iri;;il'f"*t"i9"1"""' not require the fulfilment of the;xpectation
of'lo"tl authorities where a person's legitimate expectation is
the fiduciarv d"tv requires otherwise. ln other words
proportionali'"l"egass.a8e\^Ad*;;';;;o'i'"i'"'''sixtnbditionbvH'rfr/'R' notfulfilledbytaking"-o.,,i""r"'decisiontherrdecision.makershouldjustify
overriding public interest'
Wa-de Page 424 reads thus: the denial of such u*p."trtio' by showing some is contemplated
,,h",:ourts now erpect if proiection of s,rch expectation
,,These are reuearing d,ecisions. They shou -t!o: Therefore even
".ru"i"rrti.,r"
thatdoesnotgrantanabsoluterighttoaparticularperson.Itsimplyensures
j"rrt""t ionsideration' IJnfairness in the'
Gouerntnentilepartmentstonono,i"ineirpubllshed'.statementsorelseto may be denied or restricted' A
the circumstances in *-hich that expectation
treat the .l,tl".n with the fultest tu un1ai'rness in the formcan
o1
case of legitimate .*p""i*iot' would arise
when a body by representation or
here be within its powers to
form oJ "'"i'"'"ottness ;;;";";iri"" of legitimate etpectation
justice, _""d't;"*;;-;i";" by past practice t.orr.uJ expectation which it would judicial review can be
uioration oy notorot limited to that extent and a
fulfil. The protection is person who bases his claim
operateo*itii"'te:rts'It'i'''oi'iou''furthermore'thotthisprinciple within those limits- But as discussed above a
oisuustantiJJ,-'a"-tppo"ua-':.o;^""*;:l;1i,*tn:"f ?."Ti:'iffi ::ff .ii on the doctrine of legilimate expectation, in the first instance, must satisfy
in the
that there is a foundation and ilr,-.s has locus standi
to make such a claim'
:i:#:":$*i Tn 3:::ffit;J":'"1;; ;;ffi*T'5'that
unrairness
which give rise to such legitimate
In considering the same several factors
58. (1993) 3 scc 499'
I Administratioe Disc'retinn and Principles of Jud.icizl Revicztt !/11
I SZO Textbooh on Adtninistrdtioe Ldw

expectation must be present' The decision taken by

the authority must be
Iegal riglrt to renewal or non-revocation, but to summarily disappoint that
and not taken in public interest' If it is expectation may be seen as unfair *'ithout the expectant pcrson beirrg heard.
found to be arbitrary,'.ttttu*ottOle
a question of poticv," L.,ert by wav of change -of old
policv'
:|r"^,::l"o
cannot
But there again the court has to see whether it \^'as done as a policy or in
facts the public interest either by way of G.o., rule or by way of a legislation. If
there are such and
interfere with a decision' In a given case whether
be a
circumstances gil'ing rise to a legitimate expectation'
it s'ould. primarily that be so, a decision denying a legitimate expectation based on such grounds
that
question of fact. ff ii""" tests aie satisfiecl and if the court is satisfied does not qualify for interference unless in a given case' the decision or action
a case of legitimate expectation is made -ortt then the
next question would be taken amounts to an abuse of power. Therefore the limitation is extremely
- whetherfailuretogiveanopportunityofhearingbeforethedecisionaffecting confined and if the according of natural justice does not condition the exercise
such legitimat" is taken' has resuiled in failure of justicervhat
and
of the power, the concept of legitimate expectation can have no role to play
' "*pu"tttion
whether on that grorr;Jttt" decision should be
quashed' If that'be'so then and the court must not usurp the discretion of the public authority which
should be the ."fi"ii" a matter which depends on several factors' is ernpowered to take the decisions under law and the court is expected to
"g"in
that the apply an objective standard which leaves to the deciding authority the full
We find in Attorneg General for New South Woles cose5e ,r"gl "f cholce rvhich the legislature is presumed to have intended. Even in
entirecase-Iawonthedoctrineoflegitimateexp€ctation.h""l*:considered. . *" where the decision is left entirely to the discretion of the deciding
Wealsofindthatonanelaborateanderuditediscussionitisheldthatthe authority without any such legal bounds arid if the decision is taken fairly
and much less in granting
courts' jurisdibtion to interfere is very much limited and objectively, the court will not interfere on the ground of procedural
anyreliefinaclaimU*"ap"'"tyonthegroundof'legitimateexpectation'' fairness to a person whose interest based on legitimate expectation might be
we find an article bv
ln Public t'o. oni- iotitlcs^ eaitla by Car-ol Harlow'
examintng the views expressed
affected. For instance if an authority who has full discretion to grant a licence
Gabriele Ganz in -ll.n rt" Iearned author after . prefers an existing licence holder to a new applicant, the decision cannot be
referred to above'
in the cases decidJ by eminent judges to whom we have interfered with on the ground of legitimate expectation entertained by the new
concluded thus: applicant applying the principles of natural justice. It can therefore be seen
..Theconfusionandurrcertaintyattheheartoftheconceptstemsfromits that legitimate expectation can at the most be one of the grounds which may
justice or fairness and give rii to judicial review but the granting of relief is very much limited. It
origin. It \as grown from two separate roots' natural an extent that it is would thus appear that there are stronger reasons as to why the legitimate
estoppel, but the st.*" h"l'" become entwined
to such
expectation should not be substantively protected than the reasons as to why
impossibletodisentanglethem.Thismakesitverydifficulttopredicthowthe
as giving the concept a it should be protected. In other words such a legal obligation exists whenever
hybrid will. develop in irrt'-t'u' This could be regarded the case supporting the sarne in terms of legal principles of different sorts, is
healthy flexibility, fo. th" iotut'tion tiehind it is benigrq if has been fashioned
administrative action which is against his stronger than the case against it. As observed it Attorney General for Neu
to protect the individual against
of the concept'has led to Souti Wales cose [(1990) 64 Aust LJR 327]: "To strike dorvn the exercise
interest. On the other hand, the uncertainty of administrative power solely on the ground of avoiding the disappointment
conflictingdecisionsandconflictinginterpretationsinthe.samedecisiorr''. of the legitimate expectations of an individual would be to set the courts
However,itisgenerallyacceptedanda.Isoclearthatlegitimateexpectation adrift on a featureless sea of pragmatism. I\{oreover, the notion of a legitimate
being less thin right r" the field of public and 1ot Private law and expectation (falling short of a legal right) is too nebulous to form a basis for
""p"t"*J
that to some extent such legitimate expectation ought to be protected ttrough invalidating ihe exercise of a porver when its exercise othervrise accords with
not guaranteed. law,'. If a denial of legitimate expectation in a given case amounts to denial
of right guaranteed or is arbitrary, discriminatory, unfair or biased, gross
and owe their existence to abuse of power or violation of principles of natural justice, the same can be
Legitimate expectations may come in various forms
it is not possible to give an exhaustive list questioned on the rvell-known grounds attracting Article 14 but a claim based
different kind of circumstances and activities' They
in the context of vast ."a f*t expansion of the govern*:1t-"1 on mere legitimate expectation $'ithout anything more cannot ipso facto gil'e a
shiftandchange"or*.thatthestartofo.,.l-i"twouldbeobsoleJebefore right to invoke these principles. It can be one of the grounds to consider but
cases of promotions which
we reached the middle' By and large they arise in the court must lift the veil and see whether the decision is violative of these
b1 wry of a statutory principles warranting interference. It depends very much on the facts and the
are in normal course expJcted, though not guaranteed
iitttiu'itio" oil"'g""' by the Government and .""og.ri".d general principles of administrative lav, applicable to such facts and
right, in cases of .oni,I"t", grant of licences'
in somewhat similar situations. For instance discretionary the concept of legitimate expectation which is the latest recruit to a long list of
concepts iasnio.,ed by the courts for the review of administrative action,
must
permitsorthelike,carrywithitareasonableexpectation'thoughnota i '
be restricted to the jeneral legal limitations applicable and binding the manner

59. (1990) 64 Aust L'IF-327'

of the future exercise of administrative power in a particular case. It follows
 T"
I
I
- 324'
L.
I
Administratiae Disctetion and. Principles of Jadicizl Rettieu:
I gZZ Textbook on Ahtuistdtoe La@ I

challenge on the ground of arbitrariness. Rule of law does not completely

thattheconceptoflegitimateexpectationis..notthekeywhichunlocksthe eliminate discretion in thc exercise of power, as it is unrealistic,. but provides
to unlock the gates which shuts the
treasury of nat."atltt"?i"" toa it ought:o.t when the element,of speculation
for control of its exercise by judicial review'.
court out of review;;;;; ,noir"", farticularly As cautioned in AttorneA
and uncertainty is inherent in that "ety
concept'
and The mere reasonable or legitimate expectation of a citizen, in such a
s;:;;'i;"';;;""* tt" """r," rtrould restrain themselves situation, may not by itself be a distinct enforceable right, but failure to
General for Neu
restrictsuchclaimsdulytothelegallimitations.Itisawell-meantcaution. consider and give due weight to it may render the decision arbitrary, alld
this is how the requirement of due cdnsideration of a legitimate expectation
- Otherwise".""oot""f"Ilitiganthavingt'""t"ainterestsincontracts'licences
etc. can ,o"""""funjit';uffit' getting
*ttf"t" activities mandated by directive forms part of the principle of non-arbitrariness, a necessary concomitant of
principles thwartei to furlher his own
i"tut""t"' The caution; particularly in the ruie of law. Every legitimate expectation is a relevant factor requiring
the changing t"""i'ttJ, ;;;;tt" all the
more important'61 due consideration in a fair decision-making process. Whether the expectation
of the claimant is reasonable or legitimate in the context is a question of
.,FoodCorporationoflndiau.Kamd'henuCattleFeedlnd,ustries62isone In factineachcase.Wheneverthequestionarises,itistobedeterminednot
doctrine of legitimate expectation' according to the claimant's perception but in larger public interest wherein
of the first Indian'"G"-r" apply the of damaged
for sale of stocks other more important considerations may outu'eigh what would otlierwise
this case the appellant f'u'a i"t'it"a t"t'dttt the appellant was not satisfied have been the legitimate expectation of the claimant. A bona fide decision of
tende.s,
foodgrain. After the submission of the the applications and the public authority reached in this manner rvould satisfy the requirement of
with the adequacy of bid amount, rr"r""-."j""tea-att The non-arbitrariness and withstand judicial scrutiny. The doctrine of legitimate
' invited all the applicants to participatu f* ittai"idual negotiations' expectation gets assimilated in the rule of law and operates in our legal system
respondentwasthehighestbidderaSperthetenderprocessandtheyrefused in this manner and to this extent.
After the negotiations the offer
to participat" i., tiu-"iru""qo"nt negotiations. into
prices were *t"h';;;;;-i"a ihtt b*it the contract was enteredground of In the case of Mad.ras Ci.ty Wi.ne Merchants' Assn. u. State of 7.N63
-on the action on the the members of the appellant association had been granted licenses to carry
by the appellant' if;t tt'oo"dent challengedcould not grant a contract by
arbitrariness and stated that the
appellant on business of Indian made foreign spirits (IMFS). Subsequently they were
Uo"nd to git'e the contract to
the
rejecting the tender f'o""'" t-1a *t*- and given license to set up bar adjoining to the liquor shops for which higher
the act-ion of the appellant
ii"u.r"" fee were collected. The license holders had made major investments
highest tender. The Supreme court ""*iJ
'
observed- in acquiring adjacent properties and for setting up the bar. The setting
state actions, the state and all
its up of the bar had caused major public outcry and had given rise to law
. In contractual sphere as in aII other. of the Constitution of which a.rd order problem. The Government repealed the Bar Rules framed under
instrumentaliti"" "iJti cottto'* tu A;;it 14
'l- r"."t.-it"." is no unfettered discretion
in the Tamil Nadu Prohibition Act. 1937 and thereby the bar licenses of the
is a significant
non_arbitrariness powers only use them for public appellants were not renewed- One of the major legal arguments made on
public law: A public authority possesses -to
,*;;; il;; t; t"i'tv- and t9 adopt a procedure which belalf of the appellants was based on the doctrine of legitimate expectation'
good. This "'t
'h"-
is.fairplayi,.".tio..,.Dueobserva.'""oithisobligationaSapartofgood The Court revisited the various judicial opinions relating to the doctrine
in every citizen and reiterated the principles of legitimate expectation as held in union of
administration raises a reasonable - f9qiti1"9 "."11:t;rtt-":t
tobetreatedfairlyinhisinteractionwiththestateanditsinstrumentalities, Ind,ia a. Hindustan Deuelopment Corporationo4 and' asserted the doctrine
to*n9tt""1-:t^r':t^.O**ion-making shall become applicable - '(o) if there is an express promise given by
with this element forming a, """uttt"- this requirement of non-arbitrariness
in
process in all Siate ;"";;;: To satisfy
due u'eight to a public authority; or (b) because of the existence of a regular practice
a State action, it is' thereforu' """tt""tf1o aft"o""ia"t ""qliiely
plt"""s -giYt to be affected which the claimant can reasonably expect to continue; and (c) Such an
the reasonable or legitimate u*p""trtio.r'" "i expectation must be reasonable. However, if there is a change in policy
bythedecisionor-'eitttttt'unfairnessintheexerciseofthepowermay
po"JJ. rp.* tr"* affecting the bona
fides or in public interest the position is altered b-y a rule or legislation, no
amount to an abuse or excess or question of legitimate expectation would arise".65 But in cases of delegated
ofthedecisioninagivencase.r:r'.J""i"L,'somadewouldbeexposedto
63. (1ee4) 5 SCC 509..
60- (1990) 64 Aust I,JR- 327' 64. (1993) 3 SCC 49e.
61. i1e93) 3 SCc 499, PP' 540-54e' 65. (1994) 5 SCC 509, Para 48.
62. (1993) I scc 71'
 I
- Administrative Disc.retion and Principles of Jadicial Reoievt 325'l ,

.l
-t..lgZa Textbooh on Administrati
ln Southern Petrochemical Industries Co. Ltd- u' Electricity Inspector
the legitimate
legislationthedoctrinehasnoapplicationandcanonlyariseinthefieldof €i ETIo\e expanded the scope of the doctrine and recognized
the plea of legitimate ordinarily the principle w'ill not be
administrative decisions. It was emphasized that "i'f expectation of substantive benefit.
etpectationrelatestoproced'uralfairnessthere,isnopossibili,tyuhateuer ,firi"rur" in the face of legislative provisions but if the legislature has itself
rvith to
u1foo,"a the parties to take benefit of their existi'g
rights reference
ofinuoki,ngthed'octrineasagainstthelegi,slation,,.Irtthe-absenceofanl'
-.iglr, theri
the repeal and saving clauses contained in the
r"rrev|lal the government is within their
prerogative statute the same shail
specific promise o, not apply
does
to change their polici and the principle of non-arbitrariness uft" "pPfV It was observed-
to a change in legislative PoIicY' Legitimate expectation is now considerecl to be a
part of the principles of
(Jnion of Ind,i'a66 the
In the case of Naujyoti co-Group Housing societg u. ,rriorol justice. If by reason of the existing state of affairs, a- party is given
expectation rvhile dealing
Supreme C"r., .ppiiJJ ifr" ao.t.irr. of legiiimate of registered tounderstandthattheotherpirtyshallnottakeawaythebenefitwithout
with the sudden it.og" of policy in dJtermining seniority Authoritv complyingwiththeprinciplesofnaturaljustice,thesaiddoctrinewouldbe
Cooperative Gr",r;-H;;ing Siocieiies by the Delhi
Development rppfi""UfJ. The legisl'ature, indisputably' has the power to legislate but where
(DDA). The DDA nJ followed the practice of making land allotment thelawitselfrecognisesexistingrightanddidnottakeawaythesame
based on the
,first ""'tL'
come first serve' basis wherein the seniority
was determined expresslyorbynecessar-vimplication,theprinciplesoflegitimateexpectation
on the basis of serial number a,nd date of registration of societies with the of a substantive benefit may be held to be applicable
policy and
Registrar of cooperative societies but subsequently it
changed the
the Society In Mahabir Auto stores u.. Ind,ian oil corporationT\ the issue was
held that tt. will be on the basis o1 when the papers of
"".,iority whethercontinuouspastpracticecangiverisetolegitimateexpectationandall
werefoundtobeino,d".aoaapprovedbytheofficeoftheRegistrar.This can create a legal ob[gion. The appellant company
had been receiving
ground of unreasonableness
change of policy was challenged not o"ly o" the kinds of lubricants f.ori ttr" respondent for the past 18 years acted as a Lube
expectation of the'
and arbitrariness but also on violation of the legitimate Distributor of the respondent corporation in Northern India
but there was
people. The Court held that "the d'octrin" i1 'legitimate
erpectation' respondent'.'
and the
to act fairlu by taking 'into no formal distributorship contract between the appellant
imposes in a duty on public authoritg corporation and
"rr"n"" to such 'legitimate expectat'i'on'' subsequently there was a change of policy in the respondent
consid.eration all releuont factors relat'ing supplyoflubricantswerestoppedtothosecompanieswhichweremerely
within the conspectus of fair d,ealing ii cose of 'Iegitimate
erpectati'ort",
likely to re-sellers. traders and those who did not have any
written contracts with
representation by the parties
th,e reasonaut" oppor:tunlilis to rnake
be affected, bg any change of consisteni past
policg' come in' We haue not thecompany.Basedonthisnewpolicysupplyoflubricantstotheappellant
action of
i'nti con,si'd,eration by the Central company were stopped. The appellant company challenged -the
been shoun any compelling reasons taken the resionderrts aod one of the arguments were based on the doctrine of
Goaernment to make.a d,eparture from the e,ist'ing pol'icy of allotment wi'-th
p.omisso,yestoppel.TheSupremeCourtwhiledealingwiththevarious
referencetoseniori'tyinRegistrat,i'onbgintrod'ucingarlewguideline,,.Tbie contentions recognized that IOC was an instrumentality
of the State under
court furth., ttat before introducing or making any change in Article 12 of the oonstitution and in exercise of their powers are bound by
"*orrulired an opportunity to
the guidelin". o,'o.*"a"res to be followed for allotment the norms of rationality and non-arbitrariness - Every action of the State
makerepresentationsagainsttheproposed'changesshouldbegiventotlre executive authority must be subject to rule of law and must be informed
affected people by way of a public notice' However
\n Bajaj Hindustan Ltd'
the Court has categorically clarified byreason.So,whateverbetheactivityofthepublicauthority'insuch
a. Sir Shadi La'I'nrit"rpr:1r., Ltd.67 the power of policy monopolyorsemi-monopolydealings,itshouldmeetthetestofArticle14of
that the doctrine has limited application in restricting of entering
the Constitution. If a Go,'t"'-ental action even in the matters
formulationbythestate.WhentheGooernmentissatisfied'thatchange fails to satisfy the test of reasonableness, the
or not entering into contracts,
i,nthepoli,cyu)asrlecessaryinthepublic,i,nterestitwouldbeentitledto same would be unreasonable... rule of reason and rule against arbitrariness
reuise the poti'cy and' Iay d'ot.un a neu poli'cg'68 and discrimination, rules of fair play and natural justice are
part of the rule

66. AIR 1993 sc 155. 6e. (2007) 5 scc 447.

6?. (2011) 1 scc 640. 70. AIR 1990 sc 1031.
68. (2011) I SCC 640, Id at Para 4l
 ,l
I Administritiae Discretion and PinciPles of ludicial Reoiew
jilzn
.:*-'- T"trbook on Ad*hitftotto" L
?-127
|'
in dealing of distributorship under the new policy after taking the appellant firm into
of law applicable in situation or action by State instrumentalitythe rights of
p.u"",,t one. Everr though
with citizens in a situation like the confidence.
thecitizensareinthenatureofcontractualrights,themanner,themethod It State oJ Haryana u. JagdishTr the Supreme Court reiterated the
and motive of a decision of entering or not entering
into a contract, are principle that consistent past practice by the State could furnish the
ground
of legitimate expectation. In this case the respondent had alreadrl' served
subjecttojudicial,..,i"*onthetouchstoneofrelevanceandreasonableness, under
fairplay,naturat;rrsti'ce,equalityandnon-discriminationinthetvpeofthe 15 years of imprisonment and was eligible for being considered the
transactions and nature of the dealing as in the
present case' rem-ission policy of the state. The Court emphasised that - "The State

Afterconsideringtheparticularfactsandcircumstancesofthecasea.s authority is under an obligation to at least exercise its discretion in relation to

wellasthe'Iongperiodofassociationbetweenthepartie'stheCourtheld an honest expectation perceived by the convict, at the time of his conviction
that- that his case for premature release would be considered after serving the
sentence. prescribed in the short-sentencing policy existing on that
date' The
[D]ecisionofthestate/publicauthorityunderArticle2g8oftheConstitution, ground t!"! tlu State has to exercise its power of remission also keeping in view any such
is an administrative decision and can be impeached on Constitution -the of India benefit to be construed liberally in favour of a convict rvhich may depend
decision i" u.Uiio.V o.-.,riof"ri.,u of Article ia
of th" in our opinion, it should relate
in public law field' It appears to us that in upon case to case and for that purpose,
on any of the grounds available to a policy which, in the instant ca.se, was in favour of the respondent- In
the parties concerned'
respect of Corplration like IOC when without informing on the date of consideration of the case of a
on allegeJ chan-ge of poljcy and case ; hberal policy prevails
as in .the case of the appellant firm herein
.lifer" for premature release, he should be given benefit thereof".
the course of transaction over
on that \asis action to seek to bring to an end
18yearsinvolvinglargeamounts-ofmoneyisnotfairaction'especiallyin In Chand.rakala Triaed.i u. State of Rajasthanl2 t1.'e appellant was
view of th" *";;;i'f;" ttt"'u of the power of the respondent in this field' provisionally selected for appointment to the post of teacher but subsequently
Therefore,itisnecessarytoreiterateth,.t",,",'inthefiellofpubliclaw,the. she receivei a letter from the Rajasthan Public Service Commission informing
relevantpu.roo"to""""ttdo'tobeaffected'shouldbetakenintoconfidence' her that provisional selection has been cancelled as the appellant did not
Whetherandinwhatcircumstancesthat,confidenceshouldbetakeninto pa^ss the Higher Secondary / Senior Secondary Examination after passing
corrsiderationcannotbelaiddownonanystraightjacketbasis.Itdependson Exarnination. The appellant argued that at the time when
po*u. sought to be exercised ihe S.co.rdary
the nature of the right involved "oa ,r"trr." of tli"
in a p-articul".- Ja,_,ltio". It is true that there is discrimination between power she passed the Secondary Examination, it rvas permissible for a candidate
andrightbutwhethertheStateortheinstrumentalityofaStatehasthe p*riog the Secondary Examination to get admission in the higher classes
which' -in our with a preparatory coulse. Based on it she had completed her graduation
right to function in public field or.private field is 1T"tt:t
opinion,dependsuponthefactsandcircumsta.,cesofthesituation,butsuch from Indira Gandhi open University and then got her BEd degree as well
exerciseofpowercan,'otbedealtwithbythestateortheinstrumentality
the party whose as MA degree on a regular ba,sis from N{aharishi Dayanand Saraswati
of the state without informing and taking into confidence,
into In such University, Ajmer, Rajasthan. Hence it was argued that the appellant had
rights and p"*;;" affected or to G affected' confidence'
satisfied the criteria of the required qualification for appointment to the
sought
situationsmostoftenpeoplefeelaggrievedbyexclusionofknowledgeifnot post in question. Applying the doctrine of legitimate expectation relating
being taken into confidence'
to substantive benefits the supreme court held that after a person is
Suchtransactionshouldcontinueasanadministrativedecisionwiththeorgan proui,sionally selected, a certai,n d.egree of reasonable expectation of the
of the state. I;;;y be conbractual or statutory but
in a situation of transaction
selection being continued. also cofnes into eristence. Ttre Court ordered
between the parties for nearly t'*'odJes' ""th p'ottd"re should be followed that the appellant should be considered for provisional appointment and the
will be reasonable, fair and just, that is, the proc€ss which normally
which same should not be cancelled based on the special facts and circumstances
beacceptedtobefollowedbyanorganoftheState.andthatprocessmust
into confidence' of the case.
be conscious and all those aibcted slould be taken
should consid€r
The Court directed that the respondent companythe nature of the
the afresh the submissions of the apiellant regarding-
contractual relation as well as the *nlino they
would fall within the scope 71. (2010) 4 SCC 216.
72. (2012) 3 SCC l2e.
 I
,.f SZg Textbooh on Adrninistrath;e Laztt
r
I
l
I
Administratfue Discretion and Pinciples of Jadicial Reaiezp 329
.l
'l -

6.9.3 Doctrine of Promissory Estoppel

ln Ashoka smokeless coal Ind,ia (P) Ltd. u. uni'on of ofInd'ia73
the judiciary
legitimate The doctrine of promissory estoppel has been incorporated by the
Supreme court had to look into the issue $'hether the doctrine within the domain of public lanv to hold the administration accounta,ble to
i'e' the
expectation will be oppri".ur. in case of unlawful representatiou cases the people for the promises made by it in the course of running of the
representation is ultra rlires the por'er of the Iocal authority.
In such
illegal, it has state affairs. The doctrine has referred b1' r'hrious names such as 'pronrissory
though ex€rcise of such po*"." has been held to be
even estoppel', 'equitable estoppel', 'quasi estoppel' and 'nerv estoppel''
This
beengenerallyacceptedbytheEnglishCourtsthatitwouldbeunjustto doctri.re has been fundamentally ingrained rvithin the norms of equity and
However the
allow the administration to take advantage of their own wrong. fairness so as to ensure that someone who acts or alters his position based
European Court of Human Rights awarded damages as i! found on facts is not
on the promises made by the state authorities in their official capacity
that the action was not against public interest nor did it _affe.ct the statutory
rescinding of the promise i.e. uhere a promise
"in this case while dealing with the issue of sale
made to suffer by subsequent
duties of the u,rrtt ority.t;
"auction
(e-auction) the supreme court advocated for
is mad,e by a person know,ing that it u,tould be acted, on bg the person to
of coal by electronic ,is so acted, on and it is inequitable to
the princifles of legitimate whom it is mad,e and ,in fact it
trre .doctri,ne of balancing so as to ensure that allou the party making the promise to go back upon it'76 The principle
action uas
expectation would be et:iend,ed' to all cases uhere the unlawful has been evolved under the principles of equity to ar-oid injustice. Describing
not aduerse to Public interest' the potential importance of this doctrine Bhagwati J' had described it
as
IndiaTs the
In the case of Monnet Ispat €3 Energy Ltd" a' [Jnion of.
.of doctrine
the of a doctrine which is potentially so fruitful and' pregnant with such uast
S;;; Clr;,-*"irrnarized the essentLi principles possibilities for growth that trad,itional lawyers are ala,rmed lest it might
and
Iegitimate expectation as- upset eristi,ng d,octrines uhich are looked upon almost reaerentio'Ily
(1)Thedoctrineoflegitimateexpectationcanbeinvokedasasubstantive which haue held, the fi'eld' for a long nurnber of gears'77
and enforceable right' The doctrine originally developed within the realm of equity to mit'igate
ao"tri.r. of legitimate expectation is founded on the
principle
(2) ;; the rigours of strict lata. In the early case of Hughes u. Metropolitan
of reasonableness and fairness. The doctrine arises out of
principles
Railwiy Co78 Lord Cairn had described the applicable principle as-
ofnaturaljusticeand.thereareparallelsbetweenthedoctrineof
legitimate expectation and promisr:ory estoppel' ItisthefirstprincipleuponrvhichallCourtsofEquityproceed,thatif
public interest as per parties who have enteied into definite and distinct terms involving certain
legal
(3) Where the decision of an authority is founded in ,""rrlt"...afterwardsbytheirownactorrviththenownconsententerupon
executivepolicyorlaw,thecourtwouldbereluctanttointerferewith
expectation' The a course of negotiation vvhich has the effect of leading one of the parties to
such decision iy invoking the doctrine of legitimate suppose that the strict rights arising under the contract will not be enforced,
oi- will be kept in suspense, or held in abeyance, the persor who
otherrvise
Iegitimate"*p."t"tio,,doctrinecannotbeinvokedtofetterchangesin
administrative. policy if it is in the public interest to might have .nfo.ced those rights will not be allowed to enforce them where
do so'
and an itwoutdbeinequitablehavingregardtothedealingswhichhavethustaken
(a) The legitimate expectation is different frorn anticipation
Such place between the Parties.
anticipation cannot amount to an assertable expectation'
expeclation should be justifiable, legitimate and protectable' The doctrine was developed in modern times by Lord Denning in the
the fulfilment
(5) The protection of legitimate expectation does not require
otherwise' ' celebrated case of Central Lond,on Property Trust Ltd' u' High' Tlees
House Ltd.7s ln this case the plaintiffs had leased a number of flats to
requires
of the expectation J".. an overriding public interest
and
**t to public interest
In other words, personal benefit git'" way
which the respondents for a period of 99 years at a rent of f 2500' Early in 1940
invoked
the doctrine of legitimate expectation would not be because of the war the defendants were unable to find tenants, hence
at
could block public interest for private benefit'
76. (1979) 2 scc 4oe.
77. td,.
73. (2007) 2 scc 640. 78. (1877) 2 A.C. 43s.
74. Stretch u. U.K. (2004) 38 EHRR 12' ?9. (1956) 1 All. E.R. 256 : 1947 KS 130

75. (2Or2) 1r SCC 1' Para 188'


I Administrdtiae Discretion and PrinciPles of Jadbial Reoieu)
Textbook on Administratizte Laz;t
l33O
their request the plaintiffs reduced the rent to f,1250 from the beginning
of the term. By 1945 with the improvement in the economic conditions the
plaintiffs claimed the full rent fron the middle of that year. The claim of
the plaintiff rvas upheld because the court held that the periocl for which the
rent tvas claimed r-as outside the scope of representation, but Denning in
his opinion held that the plaintiffs could not be allorved to act inconsistent
with the promises based on rvhich t}e defendants had acted. In the words
of Lord Denning cases in which .a pTonfise usas ma,de which was intended,
to create legal rq.lations and, which, to the knowledge of the person moking
the promise, was going to be acted, on by the person to whom 'it was made,
and, which was in Jact so acted, on. In such cases the courts haae sai'd,
that the promise must be honoured. The doctrine as formulated by him
was "that a Tiromise intemd,ed, to be bi.nding, intended to be acted on and
in fact acted., on, is bind.ing so far as its terms properlA apply"'
Union of India u. Anglo-Afghan Agenci""80 is one of the earliest cases
wherein the Supreme Cqurt applied the doctrine of promissory estoppel.
The Textile Commissioner pr.bli"h"d on October 10, 1962, a scheme called
the Export Promotion Scheme providing incentives to exporters of woollen
goods to Afghanistan. The scheme stated that - "It has been decided that
the manufacturers-exporters and merchants-exporters of the above woollen
textiles and woollen goods wiil 6e entitled to import raw materials, namelS
raw wool, wool tops, shoddy, man-ma.de fibres and tops, permissible types
of dyes and chemicals and machinery and machinery parts and spare
parts for woollen industry for a'.total amount.9g}.al to 100% of the f'o'b'
value of the exports". Based on the incentives frovided in the-export
scheme the respondents, a firm dealing in woollen goods at Amritsar
exported to Afghanistan woollen goods of the f.o.b. value of R5. 5,03'471.
Contrary to the provisions of the scheme the Deputy Director in the office
of the Textile Commissioner, Bombay issued to the respondents an Import
Entitlement certificate for Rs. 1,99,459 onlyf-. AII representations made by
the respondents to the Textile Cornmissioner for grant of Import Entitlement
certificate for the full f.o.b. value of the goods exported failed to produce
any response. A writ petition was filed by the respondents for issuance
of an order directing the Government to issue a license of the value of
the remaining amount. Their principle point of argument n'as that the
schemes were statutory in nature and creatd an obligation on the Textile
Commissioner to uphold the promise made unless after due investigation it
was found that there was over-invoicing of the goods exported whereas the
argument of the Union of India was that the Export Promotion Scheme was
administrative in cha,racter and was in the nature of mere administrative
80. (1968) 2 SCR 366 : AIR 1968 SC 718.
,I
tStil
and
instruction issued by the Union Government to the Textile Commissioner
it cr"u.t"a no rights in the public generally or in the exporters who exported
their goods in pursuance of the Scheme. These schemes did not
impose any
obligations on the Government to issue the import certificates.
The Court refused to accept the defence of executive necessity on behalf
of the Government and categorically held the state liable for the
prornises
made. The Court observed that-
We are unable to accede to the contention that tlte executive necessity
releases
its solemn promises relying on which citizens
the Government from honouring
have acted to their detriment. under our constitutional set-up no person may
bedeprivedofhisrightorlibertyexceptinduecourseofandbyauthority or
of law: if a member of the executive seeks to deprive a citizen of his right
the liberty otherwise than in exercise of power derived from the law-common
or statute-the Courts will be competent to anci indeed rrould be to bound to'
protect the rights of the aggrieved citizen'
Urr*, o,r. jurisprudence the Government is not exempt frorn liability to carry
out the refresentation made by it as to its future conduct and it cannot on
so-e undelirred and undisclosed ground of necessity or expediency fail to carry
out the promise solemnly made by it, nor claim to be the judge of its own
obligation to the citizen on an ex parte appraisement of the circumstances
in
which the obligation has arisen'
on the specific issue of whether the state can be made liable to uphold a
contractual obligation in the absence of a forrnal contract as requird under
Article 299. It was asserted by the court that the claims of the respondents
were not arising out a breach of a formal contract but the grievance was
arising out of the failure of the Textile commissioner to carry out the terms
of the scheme. The claims of the respondents were based on the principles
of equity as the respondents acted on the representations made by the
go\rernmlnt and altered their position. Before independence this legal principle
ivas largely applied by the judiciary in several cases, including the ca,se of
Municipal Corporation of the Ci'ty of Bombay u' The Secretarg of State
had held thal
for- Iniia in Council7Slsr wherein the Bombay High Court
eaen though there is no formal contract as required' by the statute. the
Goaern n.nt may be bound' by a representati'on made by it' In this case
the Bombay High court had also differentiated the principle of estoppel as
applied in public law from other branches of law. It distinguished it from the
evid.entiary rules specified under section 115 of the Evidence Act and stated
81. I.L.R. 29 Bom. 580.
I I
| 332 Textbook on Administratioe Lattt
that the doctrine was formulated as a rule of equity and In this case the
supreme court differentiated the principle of estoppel as applied in public
Iaw from other branches of lau'. It distinguished it from the evidentiarl'
rules specified under section 115 of the Evidence Act and stated that the
doctrine rvas formulated as a rule of equitl' and takes its origin from the
jurisdiction assumed by.courts of Equity to intervene in the case of' or to
prevent fraud. In this tase the Supreme Court differentiated the principle of
estoppel as applied in public law fiom other branches of law. It distinguished
it from the evidentiary rules specified under section 115 of the Evidence
Act and sta.ted that tie doctrine was formulated as a rule of equ'ity and'
takes its origin frorn the jurisdiction assumed' by Courts of Equity to
interaene in the casg of, or to preuent fraud' The Supreme Court after
referring to various jgdgments and principles of laft concluded that it is
.
legitimate demand oi'o porty who has acted on a representation made bE
the Gouernment to .claim that the Gouernment shall be bound to carry
out the promise mad'e bg it, euen though the prom'i'se is not record'ed in
the form of a formal contract as required. bg the constitution-
The decision in the Anglo-AJghan case was instrumental in giving rise
to the doctrine of promissory estoppel in the Indian legal landscape' The
Supreme Court followed..the same rationale and formally laid down the
jurisprudential propositions of the doctrine in the land mark case of' Moti'lal
Pad,arnpat Sugar Miils Co. Ltd'- u. State of [Jttar Prade'sh'82 In this case
the appellants who were engaged in the business of manufacture and sale of
iead a news item on October 10, 1968 in the National Herald stating
",rg"i
that the ,State of Uttar Pradesh had decided to give exemption from sbles
tax for a period of three years under Section 4A of the U.P. sales Tax
Act to all new industrial units in the state with a view to enabling them
to come on firm footing in developing stage'' The news was based on a
statement made by the ihen Secretary in the Industries Department of the
Government. After reading the news item the appellants sent a letter to
the Director of Industries inquiring whether the sales tax holidays will be
applicable if a hydro-genation plant for manufacture of Vanaspati were set
up. A reply was ,".rf by the Director confirming that "there will be no
sales tax for three years on the finished product of your proposed vanaspati
factory from the date it gets power connection for commencing production"'
In addition the appellants met with the chief secretary to the Government
who was also the Advisor to the Governor and re-confirmed the issue of
tax exemption. An exemption letter was issued by the chief secretary based
on whictr- the appellants entered into agreements with financial institutions
and .went on to set up the vanaspati plant. However after the setting up
82. AIR 1979 SC 621 : (1979) 2 SCC 409'
Administratiae Discretion and Pinciples of ludicizl Reaieu: 333 |
of the vanaspati factory by the appellarrt, the Government had second
thoughts about the grant of exemption and by a letter dated 20tb January
1970 granted partial concession in Sales Tax to the appellant and ultimately
by a ne*s item dated 12th August 1970 the Government decided to rescind
totatty from its earlier decision and withdrew all concessions in the rates of
Sales Tax granted to new Vanaspati plants. The appellants filed a petition
challenging the rescinding order of the government and asking for a rvrit
directing the government to uphold their earlier decision of providing sales
tax exemption for a period of three years. The principle point of argument of
the appellant was based on the doctrine of promissory estoppel as the chief
Secretary had given unequivocal assurance about the sales tax exemptiol
based on which the appellant had altered their position and had set up the
Vanaspati factorY.
Before analyzing the legal issues of the case the court laid down the
nature, scope and extent of the doctrine of promissory estoppel. Laying down
the true principle of .promissory estoppel the Court olcserved-
Where one party has by his words or conduct made to the other a clear and
unequivocal promise which is intended to create legal relations or affect a
legai relationship to arise in the future, knowing or intending that it would
bJ acted upon by the other party to whom the promise is made and it is in
fact so acted upon by the other party, the promise would be binding on the
party making it and he would not be entitled to go back upon it, if it would
te inequitable to allow him to do so having regard to the dealings which have
...faken place between the parties, and this $'ould be so irrespective u'hether
there is any pre-existing relationship between the parties or not'
The law may, therefore, now be taken to be settled as a result of this decision,
that where the Government makes a promise knowing or intending that it
would be acted on by the promisee and, in fact, the promisee, acting in
reliance on it, alters his position, the Government would be held bound by
the promise and the promise would be enforceable against the Government at
the instance of the promisee, notwithstanding that there is no consideration for
the promise and the promise is not recorded in the form of a formal contract
as rlquired by Article 299 of the constitution. It is elementar5' that in a
republic gove.ned by the rule of law, no one, howsoever high or lo*', is abo'e
the law. Everyone is subject to the law as fully and completely as any other
and the Government is no exception. It is indeed the pride of constitutional
democracy and rule of law that the Government stands on the same footing as
a private individual so far as the obligation of the law is concerned: the former
is equally bound as the latter. It is indeed difficult to see on what principle
can a Government, committed to the rule of law, claim immunity from the
doctrine of promissory estoppel. Can the Government say that it is under
no
I A dm in istratio e Dis cre tion and'
| 334 Textbooh on Administratiae Lau
claims to
obligationto act in a manner that is fair and just or that it is not bound the facts and circrrmstances on account of which the Government whether
be from the liability and it would be for the court to decide
by considerations of "honesty and good faith"? Why should the Government "*empt it inequitable to enforce
not be held to a high "standard of rectangular rectitude while dealing rvith those facts and circumstances are such as to render
liability against the Government. lvlere claim of change of policy would not
its citizens"? There was a time when the doctrine of executive necessity was the
be sufficient to exonerate the Government from the liability:
the Government
regarded as sufficient justification for the Government to repudiate even its
contractual obligations: but, let it be said to the eternal glory of this Court, wouldhavetoshorvwhatpreciselyisthechangedpolicyandalsoitsreason
judge for itself which way. the public
and justification so that the court can
this doctrine was emphatically negatived in tlrc Indo-Afghan Agencies case and
irit.r""t lies and what the equity of the case demands. It is only if the court
the supremacy of the rule of law s'as established. It was laid dolm by this material placed by the Government'
. is satisfied, on Proper and adequate
Court that the Government cannot claim to be immune frorp the applicability public interest requires that the Government should not be
of the rule of promissory estoppel and repudiate a promise made by it on iiu.t o.,erriding
the ground that such promise may fetter its future executive action. If the heldboundbythepromisebutshouldbefreetoactunfetteredbyit,thatThe
tiu Corrrt would refuse to enforce the promise against the Government'
Government does not want its freedom of executive action to be hampered act on the mere ipse dixit of the Government, for it is the
Court would not
or restricted, the Government need not make a promise knowing or intending
that it would be acted on by the promisee and the promisee would alter his Courtwhichhastodecideandnotthe.GovernmentwhethertheGovernment
should be held exempt from liability. This is the essence
of the rule of law'
position relying upon it. But if the Government rnakes such a promise and the
promisee acts in reliance upon it and alters his position, there is no reason TheburdenwouldbeupontheGovernmenttoshowthatthepublicinterest
in the Government acting otherwise than in accordance with the
promise is
why the Government should not 'be compelled to rnake good such promise bound
so overwhelming that it iould be inequitable to hold the Government
like any other private individual. The. law cannot acquire legitimacy and gain the court would insist on a highly rigorous standard
social acceptance unless it accords with the moral values of the society and Lv ,uu promi"e and
oi proofin the discharge of this burden. But even where there is
no.such
the constant endeavour of the Courts and the legislature, must, therefore,
be to close the gap between law and morality and bring about as near an ol'erridingpublicintere"t,it-"ystilllrecompetenttotheGovernmentto
approximation between the two as possible. The doctrine of promissory estoppel
resilefromthepromise..ongivingreasonablenotice,whichneednotbea
is a significant judicial contribution iri that direction. But it is necessary .formalnotice,givingthepromiseeareasonableopportunityofresuminghis
the promisee to restore status
to point out that since the doctrine of promissory estoppel is an equitable fsition,, proviJed o1 "orr.r. it is possible for the promise
quo a.tte. If, however, the promisee cannot resume his position'
doctrine, it must yield when the equity so requires. If it can be shown by
the Government that having regard to the facts as they have transpired, it wouldbecomefinalandirrevocable.VideEmmanuelAuod'ejiAjageu.Briscoe
would be inequitable to hold the Government to the promise made by it, the ftisial-i Air P* 556 : (1e64) 1 wLR 13261'83
Court would not raise an equity in favour of the promisee and enforce the
The court held the state Government liable because the chief
secretary
promise against the Government. The doctrine of promissory estoppel would would
had clearly stated that the Vanaspati.factory of the appellant
be
be displaced in such a case because, on the facts, equity would not require from the date
that the Government should be held bound by the promise made by it. When entitled to sales tax exemption for a period of three years
the Government is able to show that in view of the facts as have transpired ofcommencementofproduction.TherepresentationmadebytheChief
since the making of the promise, public interest would be prejudiced if the .Secretary was on beha* of the Government and it shall be binding on them'
Government were required to carry out the promise, the Court would have to ontheSpecificcontentionofthestatethatsincetheappellantdidnotsuffer
balance the public interest in the Government carrying out a promise made to froln arry loss the doctrine of promissory estoppel will have no application'
the court negated the contention and held that it is not necessary
a citizen which has induced the citizen to act upon it and alter his position and in
the public interest likely to suffer if the promise were required to be carried ord,er- to attract the appl'icability of the d'octrine of
promissoru estoppel'
out by the Government and determine n'hich s'ay the equity lies. It q.ould not aciing in reliance on the pronlisei should. suJfer any
be enough for the Gor-ernment just to say that public interest requires that that the prornisee,
altered
the Government should not be compelled to carry out the promise or that d.etrirnent. What ,is nece;sarg is only thot the prornisee should' haue
his position in reliance on the pron'Lise.... The alteration of position need
the public interest would suffer if the Government u'ere required to honour
it. The Government cannot, as Shah, J., pointed out in ttre Ind.o-Afghan notinuolaeanadetrin.Lenttothepron,i'see.Ifdetrimentwereo'necessary
estoppel
Agencies case, claim to be exempt from the liability to carry out the promise element, there uould be no need, for the d,octrine of promissory
the d,etrirnent 1t)ould form the
"on some indefinite and undisclosed ground of necessity or expediency", nor because, in that euent, in quite a Jew cases,
can the Government claim to be the sole Judge of its liability and repudiate
it "on an ex parte appraisement of the circumstances". If the Government 83. Supra note 82 at Pata 24.
it v'ill have to disclose to.'the Court what are
wants to resist the liabilitv,
 I ,_t.
' | 336 Textbooh on Administratiae Law
consid,eration and the promise would, be bindi,ng as a contract. The Court
further clarified that if by detriment ue' mean 'injustice to the promisee
'which would result if the promisor rDere to recede from his promise,
then d,etrirnent would certainly come in as a necessarg ingredient. The
detrirnent in such a case is not some prejudice suffered by the promisee
by acting on the promise, but the prejud'ice which uould be caused to the
prontisee, if the p'rorn'isor were allouted, to go back on the prom'ise. Thus
the Court concluded that in order to 'inuoke the doctrine of promissory
estoppel it is enough to show that the prorn'isee has, 'acting i,n reliance
on the prontise, altered his position and it is not necessarA for him to
further shout that he has acted, to his detriment.
The essential norms of the doctrine of promissory estoppel were reiterated
by the Court in the case of Union of Indici a. God,freg Philips India
,Lld8a wherein the Court overruled the decision of the Jit Ram.u. State of
Haryanass which had held that the doctrine of promissory estoppel is not
available against the exercise of executive functions of the State and the
State cannot be prevented from exercising its functions under the law and
upheld the law laid down in the MotiIaI Sugar Mills case. The Court in
this case had to deal with the issue of whether the Central Board of Excise
and Customs were bound by the rule of promissory estoppel as regards the
exemption order issued by them for the period between May 2.4,'1976 and
November 2, L982 relating to the payment of excise duty on the cost of
corrugated fibre board containers used for packing the cigarettes. The Court
upholding the contention of the respondents relating to the applicability of
the doctrine of promissory estoppel held that-
[T]he doctrine of promissory estoppel is well established in the administrative
law of India. It represents a principle evolved by equity to avoid injustice
and, though commonly named promissory estoppel, it is neither in the realm
of contract nor in the realm of estoppel. The basis of this doctrine is the
interposition of equity which has always, true to its form, stepped in to
mitigate the rigour of strict law.... The true principle of promissory estoppel
is that where one party has by his word or conduct made to the other a
clear and unequivocal promise or representation which is intended to create
Iegal relations or effect a legal relationship to arise in the future, knowing
or intending that it would be acted upon by the other party to *'hom the
promise or representation is made and it is in fact so acted upon by the other
party the prornise or representation would be binding on the party making it
and he would not be entitled to go back upon it, if it would be inequitable
to allow him to do so, having regard to the dealings which have taken place
between the parties. It has often been said in England that the doctrine of
84. (1s85) 4 SCC 369.
85. (1981) 1 SCC ll : AIR 198o SC 1285.
Administratiee Discretian dnd Principles of Judicidl Reaie@ tt4';:;; :
promissory estoppel cannot itself be the basis of an action: it can only be a
shield and not a sword: but the law in India has gone far ahead of the narrow
position adopted in England and as a result of the decision of this Court in
'Motilat
Padampat sugar Mills o. state of tJ.P. (1979) 2 SCC 409 : 1979
: 2 scR it is now well settled that the doctrine
scc (Tax) 1 (1979) 6411
of promissory estoppel is not limited in its application only to defence but it
can also found a cause of action. The decision of this Court in Motilal Su'gar
Mi.IIs case (1979) 2 scc 409 : 1979 scc (Tax) 144 : (1979) 2 scR 6411
contains an exhaustive discussion of the doctrine of promissory estoppel and
we find ourselves wholly in agreement with the various parameters of this
doctrine outlined in .that decision'
.....:
There can therefore be no doubt that the doctrine of promissory estoppel is
applicable against the Government in the exercise of its governmental,
public
doctrine of executive necessity or freedom of
oi executive functions and the
future executive action cannot be invoked to defeat the applicability of the
doctrine of PromissorY estoPPel.
Insome recent cases the doctrine of promissory estoppel has been used
in conjunction with the doctrine of legitimate expectation - because there
are paiallels between these two doctrines a.s they^ are both founded on the
concept of fairness and arise out of natural justice.86 In the ca'se of Southern
petrochemical Industries Co. Ltd. a. Electricity Inspector I ETIO$7 an
argument was made by some of the petitioners that the various exemptions
..Si;" to certain classes of consumers under the Tamil Nadu Electricity Duty
Lct, 1939 and the Tamil Nadu Electricity (Taxation on Consumption) Act'
1962 should be continued after the repeal of these legislations and enactment
of the new Tamil Nadu Tax on consumption or sale of Electricity Act
2003. one of the principle points of argument was based on the application
of the doctrine of promissory estoppel. Upholding the argument the Court
held that-
The doctrine of promissory estoppel would undoubtedly be applicable where an
entrepreneur alters his position pursuant to or in furtherance of the
promise
exemption from payment of taxes or charges
grant inter alia
-ade by a state to
on the basis of the current tariff. sueh a policy decision on the part of the
State shall not only be expressed by reason of notifications issue.d under the
statutory provisions but also under the executive instructions. The appellants
had undoubtedly been enjoying the benefit of (sic exemption from) payment
of tax in respect of."1"/"tnso-ption of electrical energy in relation to the
cogenerating Power Plants.
ffi. union of India, (2012) 1r scc 1, para 183.
87. (2007) 5 scc 447.
..r-
-:I 3:18 Textbooh on Administratizte Laut
In view of the application of doctrine of promissory estoppel in the case of
the appellants, their right is Irot destroyed and in that view of the matter
although the scheme under the impugned Act is different from the 1939 Act
and the 1962 Act and furthermore in vieu' of the phraseology used in Section
20(1) of the 2003 Act, right of the appellants cannot be said to have been
destroyed. The legislature in fact has acknowledged that right to be existing
in the appellants.
In the case of Monnet Ispat and, Energy u. (Jnion of Indiass the mining
proposals made in favour of the appellants were subsequently rvithdrawn by
the Union Government at the request of the State Government and against
such withdrawal a writ petition was filed by the appellants. The appellants
argued on the principles of promissory estoppel and legitimate expectation.
The Supreme Court after analyzing held that the State Government could
not be held bound by its commitments, assurances and representations
because the recommendation for the withdrawal was made in the la.rger
public interest. In this case, after analyzing the major judicial decisions on
the doctrine of promissory estoppel, the Court laid the essential principles
which shall act as a. guide to determine the applicability of promissory
estoppel. The principles are-
(1) Where one party has by his words or conduct made to the other
' a clear a^nd unequivocal promise which is intended to create legal
relations or affect a legal relationship to arise in the future, knowing
or intending that it would be acted upon by the other party to whom
the promise is made and it is, in fact, so acted upon by the other
party, the promise would be binding on the party making it and he
would not be entitled to go back upon it, if it would be inequitable
to allow him to do so having regard to the dealings s'hich have taken
place between the parties, and this would be so irrespective of whether
there is any pre-existing relationship between the parties or not.
(2) The doctrine of promissory estoppel may be applied against the
Government where the interest of justice, morality and common
fairness dictate such a course. The doctrine is applicable against the
State even in its gor.'ernmental, public or sovereign capacity where
it is necessary to prevent fraud or manifest injustice. Holvever, the
Government or even a private party under the doctrine of promissory
estoppel cannot be asked to do an act prohibited in law. The nature
and function which the Government discharges is not very relevant.
The Governmerrt is subject to the rule of promissory estoppel and if
88. JT 2012 (7) SC s0.
the essential ingredients of this doctrine are sa.tisfied, the Government
can be compelled to carry out the promise made by it'
(3) The doctrine of promissory estoppel is not limited in its application
only to defence but it can also furnish a cause of action. In other
*-o.d". the doctrine of promissory estoppel can by itself be the basis
of action.
(a)Forinvocationofthedoctrineofpromissoryestoppel,itisnecessary
forthepromiseetoshowthatbyactingonpromisemadebythe
other party, he altered his position. The alteration of position by
the promisee is a sine qua non for the applicability of the doctrine.
However, it is not necessary for him to prove any damage'
detriment
of alteration of such promise'
or prejud.ice because
(5) In no case, the doctrine of promissory estoppel can be pressed
into
to carry
aid to compel the Government or a public authority out
a representa,tion or promise which is contrary to law or which was
outsidetheauthoritrorpoweroftheofficeroftheGovernmentorof
the public authority to make' No promise can be enforced which is
statutorily prohibited or is against public policy'
(6) It is necessary for invocation of the doctrine of promissory estoppel
that a clear, sound and positive foundation is laid in the petition' Bald
assertions,avermentsorallegationswithoutanysupportingmaterialare
not sufficient to press into aid the doctrine of promissory estoppel'
(7) The doctrine of promissory estoppel cannot be invoked in abstract'
When it is soughl to be invoked, the court must consider. all aspects
good at
including the rlsult sought to be achieved and the public
present to
large. Tle fundamental principle of equity must forever be
the mind of the court. Absence of it rnust not hold the Governrnent
or the public authority to its promise, assurance or representation'
Thus the core essence of the doctrine can be expressed a's "that the
Gouernment ought to set a high stand,ard. i,n its dealings and, relationships
with c,itizens and, the word, of a d,ulg authorised Gouernrnent agent, act'ing
within the scope of his authority, ought to be as good as a Gouernment
bond,,,-89 In Injia the doctrine has been used to create
a cause of action to
the person to s,hom the promise lvas made and the same cannot be limited
by imposing the requirement of consideration or the defence of executive
,r""urrity, or overriding public interest without justiciable reasons' In addition
the doctrine is not aliticatte against the legislature in the exercise of its
it be used to enforce a statutory prohibition' The
legislative functions .ro.
"an authority
doctrine cannot also be used to compel the government or a public
89. Supra note 88 at Para 18
.,J..... ' n't'l
.
Od*rrrrrrorrr" Orrn"rro, ord Orrrrrrl", of ,'d'*l
^"""-
Government on the lives of many people' Many individuals and many
more
to do something contrary to the provisions of law or which is outside the
These contracts
scope and power of the authority.nu I.r Godfrey Phi.lips case the court had businesses enjoy largess in the fonn of Government contracts.
re-asserted that "the doctrine of promissory estoppel bei,ng an equitable often resemble subsidies. It is virtually irnpossible to lose money on them
doctrine, it must yield uhen the equity so requires; i.f it can be shown and many enterprises are set up primarily to do business with Government'
Governrnent owns and controls hundreds of acres of public land
valuable for
by the Gouern.ment or public authoritg that haui.ng regard'to the Jacts as mining and other purposes. These resources are available for utilisation b1'
they haue transpired, it uould be i.nequ,itable to hold th.e Gouernment or p.i.ru,tl corporations and individuals by way of lease or licence- All these
public authoritg to the promise or representation made by it, the Court i,'"rn g.o-lh in the Governmen€ largess and with the increasing magnitude
would not ra'ise an equity in fauour of the person to whom the prorn'ise or and .arrg. of governmental functions as we mo'v-e closer to a welfare state,
representation 'is made and enforce the promise or representat'i,on aga'inst *o." ,o-d more of our wealth consists of these new forms. some of these
forms of wealth may be in the nature of legal rights but the large majority
the Goaernment or public authori.ty. The doctr'ine of promissory estoppel that account' can it be said
of them are in the nature of privileges. But on
would be displaced in such a case, because on the facts, equitg would not
require that the Goaernntent or public authority should. be held, bound by thattheydonotenjoyarrylegalprotection?Cantheyberegardedasgratuity
furnishei by the state so that the state may withhold, grant or revoke
it
the promise or representation made by it". at its pleasure? Is the position of the Government in this respe'ct the same
been slow
as that of a private giver? We do not think so' The law has not'
6.9.4 Grant of Largess torecognisetheimportanceofthisnewkindofvr'ealthandtheneedto
Tra.ditionally the term largess referred to conferring of some gifts or prizes by protect individual inlerest in it and with tlat end in view, it has developed
the king or the nobility. In a modern day democracy the term has assumed ner" fo.m" of protection. some interests in Government largess, formerly
regarded as pri*rileges, have been recognised as rights while others
have been
significance from the perspective of conferring of some exclusive contracts, giien legal protection not only by forging procedural safeguards- but also by
quota, allotment, benefits etc. by the State to a private individual. These Iorrfioin!/structurirrg and checking Government discretion in the matter of
contracts, allotments or benefits provides monopoly power to the private grant oisuch largess-. The discretion of the Government has been held to tre
individual to derive economic gains by using the state resources or natural iot unlimited in that the Government cannot give or withhold largess in its
arbitrary discretion or at its sweet will. It is insisted, as pointed out by Prof'
resources to the exclusion of others. In the landmark case of R.D. Shetty
Reich in an especially stimulating article on "The New Property" in 73 YaIe
u. International Airport Authority of Ind,'iaer the Supreme Court discussed
the concept of grant of largess from the public law perspective and the Law Journal 233, "tlat Government action be based on standards that are
need to adhere to the norms of fairness, transparency and accountability. notarbitraryorunauthorised"..TheGovernmentcannotbepermittedtosay
that it will give jobs or enter into contracts or issue quotas or licences only in
It was observed- favour of those having grey hair or belonging to a particular political
party or
professing a particulai religious faith. The Government is still the Government
To-day the Government, is a welfare State, is the regulator and dispenser
when it acts in the matter of granting Iargess and it catrnot act arbitrarily'
of special services and provider of a large number of benefits, including
jobs contracts, licences, quotas, mineral rights etc. The Government pours It does not stand in the same position as a private individual'
forth wealth, money, benefits, services, contracts, quotas and licences. The Go.i'ernment cannot act freely as an
valuables dispensed by Government take many forms, but they all share
In the grant of such largess the
one characteristic. They are steadily taking the place of traditional forms individual and select the recipients at its own free will. whateuer i'ts
of wealth. These valuables which derive from relationships to Government actiu,ity, the Gouernrflent is stilt the Gouernment and u:ill be subject to
are of man;' kinds. They comprise social security benefits, cash grants for restraints. inherent in its position in a democratic society- A democratic
political sufferers and the whole scheme of State and local welfare. Then again. cooernrnent cannot lay ilown arbitrary and, capri'cious stand,ards for the
thousands of people are employed in the State and the Central Governments choice of persons with whom alone it wiII d.eal.ez These principles are
and local authorities. Licences are required before one can engage in many equally appticable for the various instrumentalities of the state as identified
kinds of business or work. The power of giving licences means power to ,rnd".-Article 12 of the constitution as well as the administrative agencies'
withhold them and this gives control to the Government or to the agents of
Speaking on the same the Court observed-

9O- State of Bihar a. Projec.t Uchcha Vid.ya, Sikshak Sangh (2O06) 2 SCC 545.
91. AIR 1979 SC 1628 : (1979) 3 SCC 489. 92. V. Punnan' Thomas a- State of Kerala AIR 1969 Ker 81'
.. ..t .,..
'r::l34z
. Textbooh on Administratioe Latp
[I]t is obvious that the Government which represents the executive authority of
the State, rnay act through the instrumentality or agency of natural persons or
it may employ the instrumentality or agency of juridical persons to carry out
its functions. In the early days, when the Government had Iimited functions,
it could operate effectively through natural persons constituting its civil service
and they were found adequate to discharge governmental functions, which
were of traditional vintage. But as the tasks of the Government multiplied
with the advent of the welfare State, it began to be increasingly felt that the
framework of civil service was not sufficient to handle the new tasks which
were often of specialised and highly technical character- The inadequacy of
the civil service to deal with these new problerns came to be realised and it
became necessary to force a new instrumentality or administrative device for
handling these new problems. It was in these circumstances and with a view
to supplying this administrative need that the public corporation came into
being as the third arm of the Government. As early as 1819 the Supreme
Court of the United States in Mac Cullough, u. Margland 4 Wheat 315 held
that the Congress has power to charter corporations as incidental to or in aid
of governmental functions and,.as pointed out by l\,Iathew, J., in Sukhd'eu u.
Bhagat rBarn (supra) such federal corporations would ex-hypothesi be agencies
of the Government. In Great Britain too, the policy of public administration
through separate corporations was gradually evolved and the conduct of basic
industries through giant corporations has now become a p€rmanent feature
of public life. So far as India is concerned, the genesis of the emeirgence, of
corporations as instrumentalities or agencies of Government is to be found
in the Government of India Res<ilution on Industrial Policy dated 6th April,
1948 where it was stated inter alia that "management of State enterprises will
as a rule be through the medium of public corporation under the statutory
control of the Central Government who will assume such powers as may be
necessary to ensure this". It was in pursuance of the policy envisaged in
this and subsequent resolutions on Industrial Policy that corporations were
created by Government for setting up and management of public enterprises
and carrying out other public functions. Ordinarily these functions could have
been carried out by Government departmentally through its service personnel,
but the instrumentality or agency of the corporations was resorted to in these
cases having regard to the nature of the task to be performed. The corporations
acting as instrumentality or agency of Government would obviously be subject
to the same limitations in the field of constitutional and administrative law as
Government itse$, though in the eye of the law, they would be distinct and
independent legal entities. If Government acting through its officers is subject
to certain constitutional and public law limitations, it must follovt' a fortiori
that Government acting through the instrumentality or agency of corporations
should equally be subject to the same limitations.
Now, obviously where a corporation is an instrumentality or agency of
Government, it would, in the exercise of its power or discretion, be subject
.t
Administratiae Discretion and Pinciples of ludicial Reoiew 343,1' ''
to the same constitutional or public law limitations as Government. The rule
inhitriting arbitrary action by Government which we have discussed above must
apply equally where such corporation is dealing q'ith the public, whether by
way of giving jobs or entering into contracts or otherwise, and it cannot act
it likes at its sweet
,.bit..ri5' and enter into relationship r*'ith anv personprinciple
will, but its action must be in conformity with some which meets
the test of reason and relevance'
In India the core principles of grant of largess has been developed by the
judiciary from the principles and values of equality embodied in Article 14
of thc Constitution
Article 14 strikes at arbitrariness in state action and ensures fairness and
equalityoftreatment.ItrequiresthatStateactionmustnotbearbitrary
uut *ust be based on some rational .and relevant principle which is non-
discriminatory: it must not be guided by any extraneous or irrelevant
considerations, because that would be denial of equality' The
principle of
reasonableness and rationality which is legally as well as philosophically an
essential element of equality or non-arbitrbriness is protected by
Article 14 and
it mustcharacterise eve.y state action, whether it be under authority of law
or in of executive power without making of law' The State cannot'
exercise
therefore act arbitrarily in entering into relationship, contractual or
otherwise
withathirdparty,butitsactionmustcohformtosomestandardornorm
whichisrationalandnon-discriminatory....TheStatehastherighttotrade.
The state has there the duty to observe equality. An ordinary individual
can choose not to deal with any person' The Government cannot choose to
exclude persons by discrimination. The order of blackJisting has the effect
of
deprivingapersonofequalityofopportunityinthematterofpubliccontract.
-persoo
A who is on the approved list is unable to enter into advantageous
.elations with the Government because of the order of blacklisting---- A citizen
hasarighttoclaimequaltreatmenttoenterintoacontractwhichmaybe
proper, necessary and essential to his lawful calling.... It is true that neither the
petitiorr.. nor the respondent has any right to enter into a contract but they
areentitledtoequal.treatmentwithotherswhooffertenderorquotationsfor
the purchase of the goods". It must, therefore follow as a necessary corollary
frorn the principle oi equality enshrined in Article 14 that though the State
is entitled to refuse to enter into relationship with any one, yet if it does
so,itcannotarbitrarilychooseanypersonitlikesforenteringinto..such
reiationship and discriminate between persons similarly circumstanced, but
it must act in conformity with some standard or principle which meetssuch the
test of reasonableness and non-discrimination and any departure from
justified
standard or principle would be invalid unless it can be supported or
on some rational and non-discriminatory ground'
In the R.D. Shettypd.se supreme court held that the International Airport
Authority of India (iu"porra"ttt no. 1) being a 'state' is bound to comply
 I
; l3!M - Adtninistratioe Discretion ond prinopt", of lodi.iol R.ti !4i::
Textbooh on Administratioe Laut

with the norms of equality and fairness. Negating the grant of contract to public interest is the paramount consideration. one of the methods of securing
the public interest, when it is considered necesQary to dispose of a
property'
Respondent rro. 2, the Court laid down the proposition that- public auction or by inviting tenders. Though that
is to sell the property by
[B]oth having regard to the constitutional mandate of Article 14 as also the is the ordittary rule, it is not an invariable rule' There may be situations
the rule
judicially evolved rule of administrative larv. the lst'respondent was not entitled where there are compelling reasons necessitating departure from
but then the reasons for the departure must be rational and should not be
to act arbitrarily in accepting the tender of the 4th respondents, but was Appearance of public justice is as important as
bound to conform to the standard or norm laid down in paragraph 1 of the suggestive of discrimination.
aoiig ;"rti"". Nothing should be done which gives an appearance of bias,
notice inviting tenders which required that only a person running a registered
IInd Class hotel or restaurant and having at least 5 years'gxperience as such jobberY or nePotism"'
should be eligible to tender. It was not the contention of the appellant that
this standard or norm prescribed by the lst respondent was discriminatory In Akhil Bharatiga Upbhokta Congress u. State of M.P.ea while examining
the legality of the allocation of 20 acres of land by the Government
of
having no just or reasonable relation to the object of inviting tenders namely,
in the name of Kushabhau Thakre, supreme
to award the contract to a sufficiently experienced person who would be able to Madhya Pradesh to an institute
run efficiently a IInd class restaurant at the airport. Admittedly the standard Court observed-
or norm was reasonable and non-discriminatory and once such a standard or
norm for running a IInd Class restaurant should be awarded was laid down, What needs to be emphasised is that the State and / or' its
the lst respondent was not entitled to depart from it and to award the agencies/instrumentalities cannot give largesse to any person according to
contract to the 4th respondents who did not satisfy the condition of eligibility tile sweet will and whims of the political entities and / or officers of the State.
prescribed by the standard or norm. If there was no acceptable tender frorn Every action/decision of the state and/or its agencies/instrurnentalities to
a person who satisfied the condition of eligibility, the lst respondent could give largesse or confer benefit must be founded on a sound' transparent'
public by
have rejected the tenders and invited fresh tenders on the basis of a less ii"c"r.rible and well-defined policy, which shall be made known to the
stringent standard or norm, but it could not depgrt from the standard or norm p"uri..ti"" in the official Gazette and other recognised modes of-publicity and
prescribed by it and arbitrarily accept the tender of the 4th respondents. When such policy must be imflemented/executed by adopting a non-discriminatory
the lst respondent entertained the tender of the 4th respondents even though and non-arbitrary method irrespective of the class or category of .p€rsons
they did not have 5 years' experience of running a IInd Class restaurant or proposedtobebenefitedbythepolicy.Thedistributionoflargesselike
attoiment of land, grant of quota, permit licence, etc. by the state and
its
hotel, denied equality of opportunity to others similarly situate in the matter
of tendering for the contract. There might have been many other persons, in agencies / instrumenialities should always be done in a fair and equitable
fact the appellant himself claimed to be one such person, who did not have 5 manner and the element of favouritism or nepotism shall not- influence the
or
years' experience of running a IInd Class restaurant, but who n'ere otherwise exercise of discretion, if any, conferred upon the particular functionary
competent to run such a restaurant and they might also have competed with officer of the State-
the 4th respondents for obtaining the contract, but they were precluded from
doing so by the condition of eligibility requiring five years' experience. The some of the recent judgments relating to allocation of natural resources
In
action of the lst respondent in accepting the tender of the 4th respondents, the doctrine of largess has been read with the public trust doctrine to'ensure
even though they did not satisfy the prescribed condition of eligibility, was the applicability o1 norms of fairness and propriety in resource allocation'
clearly discriminatory, since it excluded other person similarly situate from In the case of Centre for Public Interest Liiigation u. (Jnion of Ind,iaes
tendering for the contract and it was plainly arbitrary and without reason discussed the concept of natural resources and the necessary obligations
The acceptance of the tender of the 4th respondents was. in the circumstances
. arising from exploitation of such resources' It observed-
invalid as being violative of the equality clause of the Constitution as also of
the rule of administrative law inhibiting arbitrary action. definition of natural resources'
[E]ven though there is no universally accepted
in"y u,." geierally understood as elements having intrinsic utility to mankind'
This was reiterated in the case of Sachid,anand, Pand,ey o. State of West They may be renewable or non-renewable. They are thought of as the individual
Bengals3 wherein it was observed that- elements of the natural environment that provide economic and social
services
to human society and are considered valuable in their relatively unmodified,
State-owned or public-owned property is not to be dealt with at the absolute
discretion of the executive. Certain precepts and principles have to be observed.
94. (2011) 5 SCC 2e.
95. AIR 2013 SC 3725:(2or2) 3 SCC 1'
s3. (1e87) 2 SCC 295.
 gA5 A dzn in istrat ht e D iscre tio n an d
,f Textbooh on Adrrinistratioe Lazg

natural, form. A natural resource's value rests in the amount of the material Thedoctrineofpublictrustinitiallyoriginatedinthecaseoflllinois
people of tie State of lllinoi.sr which was
available and the demand for it. The latter is determined by its usefulness to Centrat Railroad, Compang a.
jurisprudence in the leading case of M.C. Mehta u.
production. Natural resources belong to the people but the State legally owns
"Kr;"ipart of the
i.,"de Indian
of Jamshed, Honnusji Wadia u. Board
them on behalf of its people and from that point of view natural resources are Nath.2 In the subsequ€nt case
considered as national assets, more so because the State benefits immensely of n:urt"", port of Mumbai3 the Court held that "the State's actions and
from their value. The State is empowered to distribute natural resources. o"tlon, of its agencies f instrumentali,ties tnust be for the public good,
However, as they constitute public property/national asset, while distributing
iL"
-o"hl"ol.ng
natural resources, the State is bound to act in consonance with the principles
thi objects, for uthich theg exist ond should not be arbitrara or
of equality and public trust and ensure that no action is taken which may be f,oprl,a,olur.In the fleld- of contracts, the State and its instrurnentalities
sh'ould d,esign their actiaities in a n'Larlner which
would ensure competition
detrimental to public interest. Like any other State action, constitutionalism
can their resources but the object
must be reflected at every stage of the distribution of natural resources. In onil not discrimination. They augTnent
good bg resorting to
to do public
Article 39(b) of the constitution it has been provided that the ownership and should be to serue the publ,ic cause and,
control of the.material resources of the community should be so distributed joi, ona reasonable *"thod'"' The Indian judiciary has largely referred to
so as to best sub-serve the common good, but no comprehensive legislation ih" article of Professor Joseph L' Sax The Public Trust Doctrine
has been enacted to generally define natural resources and a framework for "l""ri" Resources Law: Effectiue Jud.ic'i.al Interuention to formulate o
in Natural
their protection. of course, environment laws enacted by Parliament and State
practrcat and, philosophical premise and' Iegal tool for
protecting public
legislatures deal with specific natural resources, i.e., Forest' Air, Water, Costal
Zones, etc. ,ight, for proteciing and managing resources,.ecological values or
"rra
of,;."t. held in tiust. In the case of Formento Resorts and, Hotels
Li'rnited
The ownership regime relating to natural resources can also be ascertained u. Minguel Martinsa the Court made the observation-
from international conventions and customary international law, common law
and national constitutions. In international law, it rests upon the concept ThepublictrustdoctrineenjoinsupontheGovernmenttoprotecttheresources
of sovereignty and seeks to respect the principle of permanent sovereignty for the enjoyment of the glneral public rather than to
permit their use for
(of peoples and nations) over (their) natural resources as asserted in the private ownlrship or comlercial purposes. This doctrine puts an implicit
17th Session of the United Nations General Assemble and then affirmed as u*b",goontherightofthestatetotransferpublicpropertiestoprivate State action
a customary international norm by the International Court. of Justice in the party if such transflr affects public interest, mandates affirmative
case opposing. the Democratic Republic of Congo to Uganda. Common Law for effective management of natural resources and empowers the citizens to
recognizes States as having the authority to protect natural resources insofar question ineffective managernent thereof'
as the resources are within the interests of the general public. The State is it
limits and obligations
deemed to have a proprietary interest in natural resources and must act as The heart of the public trust doctrine is that imposes
guardian and trustee in relation to the same- Constitutions across the world upongovernmentagenciesandtheiradministratorsonbehalfofallthepeople
and elpecially futuie generations. For example, renewable and
non-renewable
focus on establishing natural resources o*ttud by, and for the benefit of, the
resources' associated u"ses, ecological values or objects in
"s which the public has
country. In most instances where constitutions specifically address ownership of
natural resources, the Sovereign State, or, as it is more commonly expressed, aspecialinterest(i.e.publiclands,waters,etc.)areheldsubjecttothedutyof
the State not to impair such resources' uses or values' even
if private interests
'the people', is designated as the owner of the natural resource.
areinvolved.Thesameobligationsapplytomanagersofforests,monuments,
parks,thepublicdomaina.,dotherpublicassets.ProfessorJosephL.Sax
in his classic article, "The Public Trust Doctrine in Natural Resources
Law:
In India, the Courts have given an expansive interpretation to the concept Effective Judicial Intervention" (1970), indicates that the public trust doctrine,
of natural resources and have from time to time issued directions, by relying ofallconceptsknowntolaw,constitutesthebestpracticalandphilosophical
upon the provisions contained in Articles 38, 39, 48, 48A and 51A(g), for premiseandlegaltoolforprotectingpublicrightsandforprotectingand
protection and proper allocation/distribution of natural resources and have managing resources' ecological values or objects held in trust'
repeatedly insisted on compliance of the constitutional principles in the process
of distribution, transfer and alienation to private persons.
1. 146 U.S. 387 (1892).
2. (1ee7) 1 scc 388.
3. (2002) 3 scc 214.
4. (2009) 3 scc 571.
- I
l:ei$ Textbook on Administratioe Law

into administration, a balance between accountability and autonomy

of
The public trust doctrine is a tool for exerting long-established public rights
over short-term public rights and private gain. Today every person exercisirrg actionofmanagenrentinpublicenterprisesshouldbecarefullymaintained.
his or her right to use the air, water, or land and associated natural ecosystems o.r".-"*ph*is on either would impinge upon public efficiency. But undermining
the accountability would give immunity or carte blanche porver to
deal with
has the obligation to secure for the rest of us the right to live or otherwise
public property or oflhe debtor at whim or vagary- \\rhether the public
use that same resource or property for the long-term and enjoyment by future the
generations. To say it another way, a landowner or lessee and a water right authority bon" fide and in the best interest as prudent orn'ner in the given
""t.d
holder has an obligation to use such resources in a manner as not to impair factswoulddo,begaugedfromimpugnedactionandattendingcircumstances.
of justness,
or diminish the people's rights and the people's long-term interest in that The authority should justify the action 'rssailed on the totrchstone
property or resource, including down slope lands, waters and resources. fairness, reasonableness and as a reassnable prudent owner'

Similarly in the 2G Spectrurn cases Supreme Court speaking on the allocation

of natural resources such as spectrum waves observed- 6.9.5 Doctrine of Public Accountability
by- the judiciary
The doctrine of public accountability has been developed
As natural resources are public goods, the doctrine of equality, which emerges is based on the proposition
from the concepts of justice and fairness, must guide the State in determining based on the concept of public trust. Tlne theory
officers is for the ultimate
the actual mechanism for distribution of natural resources. In this regard, the that the exercise of pou,er by the administrative
act as the trustee of the
doctrine of equality has two aspects: first, it regulates the rights and obligations benefit of the public at large and the officer's
p*pr" for all the acts do,'" by them in their official capacity. Traditionally
of the State vis-a-vis its people and demands that the people be granted of the
equitable aacess to natural resources andfor its.products.and that they are ihe doctrine of public trust has been used to assert'the ownership
natural resources by a Sovereign State' Presently the
adequately cornpensated for the transfer of the resource to the private domain; doctrine has been
and second, it regulates the rights and obligations of the State vis-a-vis private largelyusedbythejudiciaryintheireffortstotacklecorruptioninpublic
parties seeking to acquire/use the resource and demands that the procedure life. The doctrine was initially developed in the landmark case
of Attorney
adopted for distribution is just, non-arbitrary and transparent and that it does used the concept
General of Hong Kong a. Reid.7 wherein Lord Templeman
not discriminate between similarly placed private parties. the officer who accepts a bribe
of,constructive trustee' to hold that dishonest
shall hold the bribe as a constructive trustee for the beneficiary' In this case
joined the legal service of the Hong Kong Government as the
State is the.legal owner of the naturdl resources as a trustee of the people and
Mr. Reid had
He lvas corrupt and often accepted bribes, subsequently he
although it is empowered to distribute the same, the process of distribution King,s courrsei.
to
was convicted under the Prevention of Bribery ordinance and
sentenced
must be guided by the constitutional principles including the doctrine of
eight years' imprisonment along with fine of Laying down the
proposition
equality and laiger public good.
of ,constructive trustee' Lord Templeman had observed that "any benefit
However in Mahesh Chandra a. U.P. Financial Corpn.6 it was emphasized obtained by a fiduciary through a breach of duty belongs in equity to the
that in government actions a balance between accountability and autonomy beneficiary. It is held tlat a gift accepted by a person in a fiduciary position
although in
should be struck so that efficiency in government functions are not affected. as an incentive for his breach of duty constituted a bribe and,
The Court laid down the test of reasonableness as an vardstick to strike lawitbelongedtothefiduciary,inequityhenotonlybecameadebtorfor
but
the balance. It observed- the amount of the bribe to the person to whom the duty was owed
constructive
he also held the bribe and any property acquired thereu'ith on
trust for that person. It is held further that if the value of the
Bureaucracy feels that accountability is an impediment to efficient discharge property
of the duty. Accountability is no more and no less than, the concept representing the bribe depreciated the fiduciary had to pay to the injured
of accountability of a private concern to their shareholders. There is a of the
distinction between prying into details of day-to-day administration and of person the differenc. bei*e.n that value and the initial amount
bribe, and if the property increased in value the fiduciary was not entitled
the legitimate actions or resultant consequences thereof. To enthuse efficiency profit
to retain the excess since equity would not allow him to make any
5. Centre for Public Interest Liti.gation a. Union of Indio AIR 2013 SC 3725 : (2012) 3
SCC 1.
6. (1s93) 2 SCC 27s. 7. (1993) 3 WLR 1143.

,. t. J*-, .
-f Sfi0 Textbook on Admin*tratiae Lau;
from his breach of duty".8 Recognizing that taking of bribe by a public
official is a violation of the public trust reposed on him, the Privy Council
categorically observed-
A bribe is a gift accepted by a fiduciary as an inducement to him.to betral' his
trust. A secret benefit, which may or may not constitute a bribe is a benefit
which the fiduciary derives from trust property or obtains from knowledge
which he acquires in the course of acting as a fiduciary.... Bribery is an evil
practice which threatens the foundations of any civilised. society.... Where
bribes are accepted by a trustee, servant, agent or other fiduciary, loss and
damage are caused to the beneficiaries, master of principal whose interests
have been betrayed.... When a bribe is offered and accepted in money or
in kind, the money or property constituting the bribe belongs in law to the
recipient. Money paid to the false fiduciary belongs to him. The legal estate
in freehold property conveyed to the false fiduciary by way or bribe vests in
him. Equity however which acts in personam insists that it is unconscionable
for a fiduciary to obtain and retain a benefit in breach of duty. The provider
of a bribe cannot recover it because he committed a criminal offence when he
paid the bribe. The false.fiduciary who received the bribe in breach of duty
must pay and account for the bribe to the person to whom that duty was
owed. In the present case, as soon as Mr. Reid received a bribe in breach of
the duties he owed to the Governme[t of Hong Kong, he became a debtor
in equity to the Crown for the amount of that bribe.... As soon as the bribe
was received, whether in cash or in kind, the false fiduciary held the bribe
on a constructive trust for the person injured.... If the property representing
the bribe exceeds the original bribe in value, the fiduciary cannot retain the
benefit of the increase in value which he obtained solely as a result of his
breach of duty.... When a bribe is accepted by a fiduciary in breach of his
duty then he holds that bribe in trust for the person to whom the duty was
owed. If the property representing the bribe decreases in value the fiduciary
must pay the difference between that value and the initial amount of the
bribe because he should not have accepted the bribe or incurred the risk of
Ioss. If the property increases in value, the fiduciary is not entitled to any
surplus in excess of the initial value of the bribe because he is not allowed
by any means to make a profit out of a breach of duty.
The Supreme Court had applied the same doctrine against private bodies
in the case of Delhi Deaelopment Authority u. Skipper Construction
Com.panys and made strong arguments for enacting a law prouid,ing for
forfeiture of properties acquired, bg hold,ers of 'public offi.ce" (including the
offices/posts in the public sector corporations) by i,ndulging in corrupt
and illegal o,cts and. deals, is a crying necessity in the present state
of our society.... Such a law has become an absolute necessity, iJ the
8. As quoted in AIR 1996 SC 2005.
9. AIR 1996 SC 2005.
L
- 351'l :
Administratioe Disctetion and Principles of Jud'icizl Reztieu;
canker of corruption is not to proue the d,eath knell of this
nation. Fot
the purpose of doing justice the Court applied the principles of
public trust
doctiine under Article 142 of the Constitution and held that- The fi'duciarg
relationship may not exist in the present case nor is it a case of a holder
properties
ol public office, yet if it is found that someone has acquired
iy^ defrauatng the people and if it is found that the persons
defrauded
in they would' haue been but for
sLou7, be reitored to the positiotr uthich
the fraud,, the court ca,n ntake aII necessary orders. This is uhat
said,
equity mians and. in Ind,ia the courts are not only courts of laut but also
of equity. In this case the court held that along with thb directors
"iuri,
of Skipper Constructions some of the top officials of the DDA were
equally
liable for defrauding the Public'
In the case of (Jnion of Ind.ia u. Sushil Kumar Modiro (Bihar judicial
Fodder
scam case) the Supreme court emphasizing the role and purpose of
intervention in matters of corruption by public functionaries otrserved-
It has to be borne in mind that the purpose of these proceedings is essentially'
to ensure performance of the statutory duty by the CBI and the other
government agencies in accordance *-ith law for the proper implementation
of the .ule of law. To achieve this object a fair, honest and expeditious
investigation into every reasonable accusation against each and every
person
in the alleged offences has to be made
reasonably suspected of invol.,rement
strictly in accordance with law. The duty of the court in such proceedings is,
duty
therefore, to ensure that the cBI and other government agencies do their
anddosostrictlyinconformitywithlaw.Intheseproceedings,theCourtis
notrequiredtogointothemeritsoftheaccusationoreventoexpressany
opinion thereon, which is a matter for consideration by the competent
court
in which the charge-sheet is filed and the accused have to face trial. It is,
therefore,necessarythatnotevenanobservationrelatingtothemeritsof
the accusation is made by the court in these proceedings lest in 9r9u$ic1
theaccusedatthetrial-Thenatureoftheseproceedingsmaybed€Scribed
as that of ,'continuing mandamus" to require performance of its duty by the
CBlandtheothergovernmerrtagenciesconcerned.Theagenciesconcerned
must bear in mind and, if needed, be reminded of the caution administered
by Lord Denning in this behalf in R. u. Metropolitan Police commr.' [1968]
l AII ER 763/(1968) 2 QB 118- Indicating the dutv of the Commissioner of
Police, Lord Denning stated thus: (All ER p' 769)
*I in holding that, like every constable in the
have no hesitation, however
land, he should be, and is, independent of the executive' He is not subject
to the orders of the Secretary of St.t.,." I hold it to be the duly of the
Commissioner of Police, as it is of every chief constable, to enforce the law of
10. MANU/SC /1167 /1997.
I Administratht eD isctetion and
Textbooh on Administrative Lazo
1i352
the land. He must take steps so to post his men that crimes may be detected; In the 2G Spectrum .ose12 the supreme court while dealing with
and that honest citizens may go about their affairs in peace. He rnust decide the issue of.allocation of 2G spectrum licenses highliglrted the need to
whether or not suspected persons are to be prosecutedi and if need be, bring fight for clean governance and promote accountability of the constitutional
the prosecution or see that it is brought; but in all these things he is not Gtitrrtio*. In re Natural Resources Allocationl3 the Constitution Bench
the servant of anyole, save of the laq' itself. No l\Iinister of the Crorvn can held that "Cornrnorl. good" is the sole guid.i.ng factor untler Article 39(b)
teII him that he must, or must not, keep observation on this place or that; distribution of natural resollrces. It 'is the touchstone of testing uhether
or that he. must, or must not prosecute this man or that one. Nor can any for
'ang good" and if it does, 'irrespectiae of the
police authority tell hirn so. The responsibility for law enforcement lies on policy subsefaes the "common
him. He is answerable to the law and to the law alone". *"on, ad.opteil, it is clearly in accordance with the principleofenshrined
in Article 39(b)- The same principle was- reiterated in the case Manhor
The case of Vineet Narain u. (lnion of Indiarr has been a watershed LaI Sharma a. The Principal Secretary'ra
in the development of the public accountability doctrine in India. Following
the decision in the Sushil Kumar Modi case the Sufreme Court exercising SUAAMATION
its po$,er. of judicial review under Arti'cle 32 highlighted the functional
importance of the Central Bureau of Investigation (CBI) and emphasized Exercise of discretionary power in accordance with the constitutional
the need.of probity in public life. In this case the court looked into the norms and provisions of the statute holds the key to efficient working of
issue of insulating the CBI and other investigating agencies from other the administration. The various principles relating to judicial review of
extraneous influences and to develop a procedure within the discipline of administrativ.e actions have been developed with the sole objective of creating
law for the conduct of fair and unbiased inquiry. Failure of the cBI to an administration governed by the goals of acCountability, good governance
investigate the details of the two diaries of the Jain brothers in the Haaala and citizen-centric administration.
scam compelled the judiciary to devise legal measures based on the rule of
law principles to ensure fair and impartial conduct of investigation by these
agencies. The Court in this case took up the responsibility to monitor the
investigations so that the independence of the investigating agencies were
maintained without compromising with the rights of the accused to a full
and fair trail. It was deemed necessary to direct the CBI not'to submit their'
progress reports to the superior political executive but to submit them to a
monitoring court-the task of the rnonitoring court would end the mornent
a charge-sheet 1nds fited in respect of a particular inuestigat'ion and that
the ord,inary processes of the lau would then take ouer. The innovative
judicial procedure has been described as 'continuing mand;mus'. Such order
was issued because the Supreme Court realized that merely issuance of a
mand,amus d.irecting the agenci,es to perforrn their task would be futile
and,, therefore, it was decided to issue d.irections frorn time to ti'me and
keep the matter pending requiring the agenc,ies to report the progress oJ
inuestigation so that monitoring by the court could erl'sure continuance
of the inuestigation. In this case the Court also recommended for bringing
structural changes in the functioning of the CBI so as to make them foremost
independent investigating agency of the country.
ffierestLitigationu.UniorrofIndiaAIR2013SC3725;(2oL2)3
scc r.
13. (2012) 10 SCrc 1-
11. AIR 1998 SC 889 : (1998) | scc 226- 14.2Ot4 (9) scArE 693.
 11*

Tribu naltzation in India

7.1 INTRODUCTION
The term tribunal broadly refers to a judgment seat; a court of
justice;
board or committee appointed to adjudicate on claims of a particular.kind'
It is generally ""trro*tlagud that all tribunals are not courts' though aII
courti are Tb,i.bunals. Tribunal refers to an adjudicating body, which may
include a court or body which has been vested with judicial functions and
powers, and allows it to adjudicate on matters that affects the rights of the
citizens- Ilowever in the ordinary context tribunals are distinguished from
courts and primarily refer to the adjudicating bodies other than the ordinary
li
ti
]T
iti @urts of law. In performance of their judicial functions the tribunals are
not required to strictly comply with procedural rules but are bound by the
principles of natural justice-

7.2 .DIFFERENCE BETWEEN COURTS AND TRIBUNALS

Courts are adjudicating bodies which have been established by the state
for
administration of justice. The term 'administration of justice' implies 'exercise
I I
' Tiibunalization in India 357'l
1356 Textbook on Administratiae Lau'

of juridical power of the state to rnaintain and uphold rights and to punish In Harinagar Sugar Miils Ltd' a' Shyam Sundar JhunjhunwaLa'3
the courts
wrongs'. When a legal right of an individual is violated or infringed, then Hidayatullah, J. hrd elaborately explained the difference between
the aggrieved party can approach the courts for redressal of their grievance. arrd the tribunals as-
It is the responsibility of the courts to restore the uinculum juris in case of
any infringement or violation of any right or causing bf inlury-.I The courts All tribunals are Dot courts. thougll all courts are tribunals. The word 'courts'
are recognised as instrumentalities of the States and are conferred with the is used to designate those tribulrals which are set up in an organised State
judicial powers of the state. The powers of the judiciary are derived from for the administration of jttstice. By ad[rinistration of justice is meant the
exercise of judicial power of the State to n-raintain and uphold
rights and to
the Constitution or from any other Act of Legislature constituting those punistr ,*rJngs,. wherrerre. there is an infringement of a right or an injury,
authorities. Some of the essential characteristic feature of courts are - they ihe courts are there to restore t1,e ainculum jzris, which is distrrrbed'
are permanent bodies whose numbers are fixed and can try any suit or
other causes within their jurisdiction. go and
When rights are infringed or invaded, the aggrieved party can
On the other hand tribunals are administrative bodies and are a consequence of a querela before the ordinary civil courts' These courts which are
the multifarious activities of the state. In Associated Cement Cornpanies Ltd. "o*1t".r"u
instrumentalities of Gover.nment, are invested u''ith the
judibial power of the
u. P.N. Sharma2 the functional role of the tribunals were explained as- state, and their authority is derived from the constitution or some Act of -

legislature constituting tttem' Their number is ordinarily fixed

and they are
In every State there.are administrative bodies or authorities which are required try any suit or cause within their jurisdiction'
ordinarily permanent, and can
to deal with matters within their jurisdiction in an administrative manner Their numbers may be increased or decreased, but they are almost always'
and their decisions are described as administrative decisions. In reaching their name of 'courts of civil judicatuie'.
permanent and go under the compendious
administrative decisions, administrative bodies can and often do take into Th.,"",,,thusbenodoubtthattheCentralGovernmentdoesnotcome
consideration questions of policy. It is not unlikely that even in this process of within this class-
reaching administrative decisions, the administrative ttodies or authorities are number
required to act fairly and objectively and would in many cases have to follow with the growth of civilisation and the problems of modern life, a large
tribunals have come into existence. These tribunals have the
the principles of natural justice; but the authority to reach decisions conferred of administrative
judicial manner
on such administrative bodies is clearly distinct and separate from the judicial authority of law to pronounce upon valuable rights; they act in a
power conferred on courts, and the decisions pronounced by administrative andevenonevidenceonoath,buttheyarenotpartoftheordinarycourts
of Civil Judicature. They share the exercise of the judicial power of
the State,
bodies are similarly distinct and separate in character from judicial decisions
pronounced by courts. buttheyarebroughtintoexistencetoimplementsomeadministrativepolicy
or to determine controversies arising out of some administrative law- They are
The Indian Constitution has recognized both courts and tribunals as very similar to courts, but are not courts- When the Constitution speaks of
,courts' in Articles 136, 227 0r 228 0r in Articles 233 to 237 0r in the Lists, it
In Articles 136 and 227 it refers to courts and tribunals
separate entities.
contemplates courts of civil judicature but not tribunals other than
such courts'
separately. The Constitution refers to the Courts of Civil Judicature as the in Articles 136 a'rd' 227'
This is the reason for using both expressions
Courts and Tlibunals refer to the 'bodies of men who are appointed to
By .courts, is meant courts of civil judicature and by 'tribunals', those bodies
decide controversies arising under certain special laws'. Thus Tribunals deal
with certain special matters whereas all other matterc generally go before the ofmenwhoareappointedtodecidecontroversiesarisingundercertainspecial
laws. Among the powers of the State is included the power to decide such
ordinary courts. The corollary of this proposition is that the courts perform
controversies. This is undoubtedly one of the attributes of the
state, and is
att tfr,e jud.ici.al functi.ons oJ the State ercept those that a.re exclud,ed by aptlycalledthejudicialpowerofthestate.Intheexerciseofthispower'a
all frorn their jurisdiction. di.,ri"ioo is thus noticeable. Broad,ly speaking, certain special
matters
Some of the irnporta,nt cases wherein the difference between court and "i"..
gobeforetribunals,and'theresid.uegoesbeforetheordinargcourtsoJciuil
judicature. proced,ures Inau d,iffer, but the functions are not essentially
tribunal were discussed are- -d,ifferent. Their
what distinguishes them has never been successfully established...
In my opinion, a court in the strict sense is a tribunal which by is a part of
of civil judicature maintained the state
the ordinary hierarchy of courts
l. Harinagar Sugar Mills Ltd.. a. Shyam Sundar Jhunjhunwala (1962) 2 SCR 339.
2. AIR 1965 SC 1595 : (1965) 2 SCR 366. 3. AIR 196r SC 1669: (1962) 2 SCR 339'
 Textbook on Administratioe Laut
under its constitution to exercise the judicial power of the State. These
courts perform all the judicial functions of the State ercept those that are
exclud,ed. by law from their jurisdiction. The word 'judicial', be it noted, is
itself capable of two meanings. They were admirably stated by Lopes, L.J. in
Rogal Aquarium and Sumrner and. W'inter Garden Society Ltd. u. Parkinson
[(1892) 1 QB 431 (CA)], in these words: (QB p. a52)
'... The word "judicial" has two meanings. It may refer to the discharge of
duties exercisable by a Judge or by Justices in court, or to administrative
duties which need not be performed in court, but in respect of which it is
necessary to bring to bear a judicial mind-that is, a mind to determine what
is fair and just in respect of the matters under consideration'.
That an offiier is required to decide matters before him 'judicially' in the
second sense does not make him a court or even a tribunal, because that
only egial*ishes that he is following a standard of conduct, and is free from
bias dr interest.
Courts and tribunals act 'judicially' in both senses, and in the term 'court'
are included the ordinary and permanent tribunals and in the term 'tribunal'
are included all'others, which are not so included.
In (Jnion of Ind,ia u. R. Gand,hia the Supreme Court highlighted the
difference between Courts and Tlibunals a,s-
The term 'Courts' refers to places where justice is administered or refers
to Judges who exercise judicial functions. Courts are established by the
state for administration of justice that is for exercise of the judicial power
of the state to maintain and uphold the rights, to punish wrongs and to
adjudicate upon disputes. Tribunals on the other hand are special alternative
institutional me-chanisms, usually brought into existence by or under a
statute to decide disputes arising with reference to that particular statute,
or to determine controversies arising out of any administrative law. Courts
refer to Civil Courts, Criminal Courts and High Courts. Tribunals can be
either private Tribunals (Arbitral Tribunals), or Tribunals constituted under
the Constitution (Speaker or the Chairman acting under Para 6(1) of the
Tenth SchedulQ or Tribunals authorized by the Constitution (Administrative
Tribunals under Article 323A and Tribunals for other matters under Article
323E| or Statutory Tribunals wtrich are created under a statute (l\{otor
Accident Claims Ttibunal, Debt Recovery Tribunals and consumer fora). Some
Tribunals are manned exclusively by Judicial Officers (Rent Tribunals, I\{otor
Accidents Claims Tribunal, Labour Courts and Industrial TYibunals). Other
statutory Tribunals have Judicial and Technical Members (Administrative
Tribunals, TDSAT, Competition Appellate Tribunal, Consumer fora, Cyber
Appellate Tribunal, etc).
The Court further laid down the essential points of difference as-
4. (2010) 11 SCC 1
' Tiibunalization *ll4--]$1't'
the state's
judicial power for adnrinistration of justice in general. Tribunals are
inherent
established under a statute to adjudicate upon disputes arising under the said
statute, or disputes of a specified nature. Therefore, all courts are tribunals'
. But all tribunals are not courts'
(ii) courts are exclusively manned by' Judges. Tribunals can have a Judge
as'the sole member, or can have a combination of a judicial member and
a technical member who is an "expert" in the field to which the tribunal
relates. Some highly specialised fact-finding tribunals may have only technical
members, but they are rare and are exceptions'
(iii) while courts are governed by detailed statutory procedural rules, in particular
ih. Cod" of Civil Procedure and the Evidence Act, requiring an procedure elaborate
procedure in decision making, tribunals generally regulate their own
applying the provisions of the code of civil Procedure only.where it is required,
ani-without being restricted by the strict rules of the Evidence Act.
7.3 JUSTIFICATION FOR CONSTITUTION OF TRIBUNALS
Tribunalization in India had structurally emerged about twenty years ago'
The 42"d Amendment to the constitution introduced Part XIV-A which
included Articles 323-A and 323-8 providing for constitution of tribunals
dealing with administrative service issues and other matters' Some of the
justifications for constitution of tribunals as separate body of adjudication
other than ordinary courts have been described as-
(i) Elaborate procedural rules and highly technical evidence laws brings
rigidity and formalism in the judicial process'
(ii) The extended rules relating to appeals, revisions and revie$'s as well
as other rules of fair procedures causes major delay in the disposal
of cases.
(iii) Litigation is prolonged process involving rnany years for the final
disposal of the case-
(iv) Huge pendency forces the judges to expeditiously deal with complicated
issues to the dissatisfaction of the parties'
(v) Tribunals on the other hand are free from the shackles of procedural
justice
Iaws and evidence law' and can provide quick, easy and spedy
in a t'cost affordable" and "user friendly" manner'
(vi) Tribunals generally consist of a judicial member and a technical member.
The jud,icial rnember uill act as a buluark against apprehensions of
bias and, uill ensure conpliance with the basic principles of natural
justice such as fair heari'ng and' reasoned' orders' The judicial
member uould also ensure irnpartialitg, fairness and reasona'bleness
in consid'eration- The presence of a technical member erls'"res
I
| 360 Textbook on Administrathte Laz;t Tribunalization in India !6i4:+::

the auailabili.ty of erpertise and erperience related' to the fi'eld (2) A law rnade under clause (1) (2) The rnatters referred to in clause
adjudication for which the speci.al Tribunal is created, _thereby ' maY- (1) are the following' namely-
--.o/
)improuing the qualitg of adjudication and decision making.r (") provide for the establishment (") levy, assessment, collection
In .De Smith's Judicial Reuiew the advantages of tribunals in comparison of an administrative tribunal and enforcement of any
to an ordinary courts have been stated as- for the Union and a seParate tax;
administrative tribunal for
In the design of an administrative justice system, a tribunal may be preferred each State or for two or more
to an ordinary court because its nrembers have specialised knowledge of the States;
subject-matter, because it will be more informal in its trappings and procedure, (b) specify the jurisdiction, powers (6) foreign exchange, import
because it may be better at finding facts, applying flexible standards and (iricluding the Power to Punish and export across. customs
exercising discretionary powers, and because it may be cheaper, more accessible
for contemPt) and authoritY frontiers;
and more expeditious than the High Court. I\{any of the decisions given to
tribunals concern the merits of cases with relatively little legal content, and in which may be exercised bY
such cases a tribunal, usually consisting of a legally qualified. tribunal Judge €ach of the said tribunals:
and two lay members, may be preferred to a court- Indeed dissatisfaction with (") provide for the Procedure (") industrial and labour
the overtechnical and allegedly unsympathetic approach of the courts towards (including Pr6visions as disputes;
social welfare legislation led to a transfer of functions to special tribunals; the to limitation and rules of
'Workmen's
Compensation Acts were administered by the ordinary courts, but evidence) to be followed bY
the National Insurance (Industrial Injuries) scheme was applied by tribunals. the said tribunals;
It is, however, unrealistic to imagine that technicalities and difficult legal (d) erclude the jurisdiction of all (d) land reforms bi way of
issues can somehow be avoided by entrusting administration of complex courts, erceqt the juri:sd'icti'on acquisition by the State of
'legislation to tribunals rather than the courts.o^the any estate as defined in
of the SuPreme Court under
Article 136, with resqect to Article 31"-A or of anY rights
7.4 42ND CONSTITUTIONAL AMENDMENT ARTICLES 323A the disputes or cornqlaints therein or the extinguish-
AND 3238 referred to in claq,se (1); ment or modification of any
...... such rights or. by way of
Part XIV-A ceiling on agricultural land
Tribunals or in any other waY;
323-A. Adm'i.nistratiue tribun- 323-8. Tlribunals for other matters.- (") provide for the transfer to each (") ceiling on urban ProPertY;
als.-(l) Parliament may, by law, (1) The appropriate Legislature may, such administrative tribunal
provide for the adjudication or trial by by law, provide for the adjudication of any cases Pending before
administrative tribunals of disputes or trial by tribunals of any disputes, any court or other authoritY
and complaints with respect to complaints, or offences with respect immediately before the
recruitment and conditions of service to all or any of the matters specified establishment of such tribunal
of persons appointed to public services in clause (2) with respect to l'hich as would have been within the
and posts in connection with the such Legislature has power to make jurisdiction of such tribunal if
affairs of the Union or of any State or laws. the causes of action on which
of any local or other authority within such suits or Proceedings are
the territory of India or under the based had arisen after such
control of the Government of India or establishment;
of any corporation owned or controlled
bv the Government
5. Union of India u. R. Gandhi (2010) 11 SCC 1, para 59.
6. De Smith's Judicial Review, Sweet & N'Iaxwell, 6tl' Ed. 2OO7.

-l
. '1862
Textbooh on Administratioe Lazo
6 repeal or amend any order
made by the President under
clause (3) of Article 371-D;
(9) contain such supplemental,
incidental and consequential
provisions (including
provisions as to fees) as
Parliament may deem
necessary for the effective
functioning of, and for the
speedy disposal of cases bY,
and the enforcement of the
orders of, such'tribunals.
(3) The provisions of this article (3) A
shall have effect notwithstanding may-
anything in any other provision of
this Constitution or in anY other
law for the time being in force.
(fl elections to either House
of Parliament or the
House or either House of
the Legislature of a State.
but excluding the matters
referred to in Article 329
and Article 329-A;
(g) production' Procurement,
supply b.nd distribution of
foodstuffs (including edible
oilseeds and oils) and such
other goods as the President
may, by public notification,
declare to be essential goods
for the purpose of this article
and control of Prices of such
goods;
(h) offences against laws with
respect to anY of the matters
specified. in sub-clauses (o)
to (g) and fees in resPect of
any of those matters;
(4 any matter incidental to anY
of the matters sPecified in
sub-clauses (o) to (h).
law made under clause (1)
(") provide for the establish-ment
of a hierarchy of tribunals;
(b) specify the jurisdiction.
powers (including the Pou'er
to punish for contemPt) and
authority which may be
exercised by each of the said
tribunals;
(") provide for the Procedure
(including provisions as
to limitation and rules of
evidence) to be followed bY
the said tribunals;
-.1
Tibunalization in Indiz 363 | '
k) erclude the jurisdiction
of atl courts excePt the
jurisdiction of the SuPrerne
Court under Art'icle 136
with resPect to all or a'ntl
of the matters falling within
the jurisdiction of the said
tribunals;
(d) provide for the transfer
to each such tribunal of
any cases Pending before
any court or any other
authoritY immediatelY before.
the establishment of such
tribunal as would have been
within the jurisdiction of
such tribunal if the causes
of action on which such
suits or Proceedings are
based had arisen after such
establishment;
(fl contain such suPPlemental,
incidental and consequential
provisions (including
provisions as to fees) as
the apProPriate Legislature
may deem necessary for
the effective functioning
of, and for the sPeedY
disposal of cases bY, and the
enforcement of the orders of,
such tribunals.
( ) The provisions of this article
shall have effect notwithstanding
anything in anY other Provision
of this Constitution or in anY
other law for the time being in
force.
 I.
,I - Tribunalizatinn in Indiz 365'l
-l 364 Textbooh on Administratiae Lau.t

Erplanation.-In this article. to matters other than disciplinary action- In Nlay 1976' a
litigations related
Coif"r"r."" of Chief Secretaries of the States discussed this problem. Then
appropriate Legislature", in relation bringing in Aitic.Ie
came the Forty-second Amendment of the constitution
to any matter, means Parliament or.
iZS-e *fti"n authorised Parlianent to provide by law- "for the adjudication or
complaints with respect to
as the case may be, a State Legislature trial by Administrative Tribunals of disputes andappointed to public services
competent to make larvs tvith respect recruitment and conditions of service of persons
to such matter in accordance with and posts in connection with the affairs of the Union
or of any State or of
the provisions of Part XI.
of the Government of India or of any Corporation owned or
'.vro".rorotherauthoritywithintheterritoryoflndiaorunderthecontrol controlled by
stated this article envisaged exclusion of the
Articles 323-A and 323-8 were introduced in the Constitution as Part ,h" Gov..n*"nt". As alreadj'
of all courts. exclpt the jurisdiction of the supreme court under
XIV A by the Constitution (42nd Amendment) Act, 1976. Tribunals as .!*i"di"aion
"Article to in clause
136, with respect to the disputes or complaints referred
adjudicating bodies had been recognized in the Constitution under Articles consiitution now contained the enabling powef, no immediate
136'and 227. The introduction of Articles 323-A and 323-8 was done with
iij. irr""gr, the
StepsweretakentosetupanyTribunalascontemplatedbyArticle323-4.
(Jnion oJ Ind'ia [(1980)
the primary objective of excluding the jurisdiction of the High Courts under A Constitution tsench of t^hi, Court in K.K. Dutta u.
Articles 226 arrd 227, except the jurisdiction of the Supreme Court under 4SCC38:1980scc(l-s.s)485:AIR1980Sc2056:(1980)3SCR81i]
Article 136 and for creating an effective alternative institutional mechanism ob"".l"d' [SCC p.39' para 1 : SCC (L & S) p' 486]'
or authority for judicial review.' The purpose for establishing tribunals to
th6 exclusion of the jurisdiction of .the High Courts was done to reduce 7.5 CONSTITUTIONALITY OF TRIBUNALS
the pendency and lower the burden of case load. Speaking on the objective
behind enacting Articles 323-4 and 323-8, the Supreme Court in the case TheSupremeCourthasinseriesofjudicialdecisionshasupheldthe
Iegislative competence of the Parliament and the
state Legislatures to vest
of S. P. Sampath Kumar o. Un'ion of Indiad observed- of ari ordinary court'
3rrliciat powers in a tribunal
in exclusion
In these thirty-six years following the enforcement of the Constitution, not S. P. Sampath Kurnar u' (Jnion of Indi'as was the filst c3e wherein the
only has India's population been more than doubled but also the number of constitutionality validity of Article 323A as introduced by the constitution
litigations before the courts including the High Courts has greatly increased. on the ground of whether
As the pendency in the High Courts increased and soon became the pressing i;F ;;";dm.nQ Aci, tgz6 was challenged
problem of backlog, the nation's attention came to be bestowed on this aspect. theexclusionofthejurisdictionoftheHighCourtunderArticles226and
227 of the constitution in service matters specified
in section 28 of the
Ways and means to relieve the High Courts of the load began to engage the jurisdiction in
Ad,ministrative Tribunals Act, 1985 and the vesting of
exclusive
attention of the government at the Centre as also in the various States. As
early as 1969, a Committee was set up by the Central Government under such service matters in the Administrative Tribunal, subject to an exception
the chairmanship of I\4r Justice Shah of this Court to make recommendations in favour of the jurisdiction of the supreme court under Articles 32 and
suggesting ways and means for effective, expeditious and satisfactory disposal 136,isunconstitutionalandr'oid.UpholdingthepoweroftheParliament judicial
of matters relating to service disputes of government servants as it was
found that a sizeable portion of pending litigations related to this category.
to alternative authorities without compromising with the power of
The Committee recommended the setting up of an independent Tribunal to reviewoftheSupremeCourt,JusticeBhagwatiobserved-
handle the pending cases before this Court and the High Courts. While this
[J]udicial review is a basic
and essential feature of tl-re constitution and it
report u'as still engaling the attention of government, the Administrative be abrogated *'ithout affecting the basic structure of the constitution
Reforms Commission also took note of the situation and recommended the "-""*
."ai.i""q,'u.ttvclearfrornthesamedecisionthatthoughjudicialrevierv
setting up of Civil Services Tribunals to deal with appeals of Government be aitogethe. abrogated by
parliarnent by amending the constitution
servants against disciplinary action. In certain States, Tribunals of this type ".o.rot
in exercise of its constituent power, Parliament can certainly, without in
came into existence and started functioning. But the Central Government ;;y-;;; violating the basic structure doctrine, set up effective alternative
looked into the matter further as it transpired that the major chunk of service institutionalmechanismsorarrangementsforjudicialrel'iew.Thebasicand
"","*i"rfeatureofjudicial.e.,iewcannotbedispensedwithbutitwould
7. ,See generally (2014) 10 SCC l, para 44
8. (1987) I SCC 124 : AIR 1987 SC 386. 9. (1987) 1 SCC 124 : AIR 1987 SC 386'
 .l
I Tribal'ulization in I ndia 367:l'i:'
| 366 Textbook on Administratiae Laztt

scheme of administration of justice. To provicle the Tribunal a-s an additional

be q'ithin the competence of Parliament to amend the constitution so as certainly have
to substitute in place of the High Court, another alternative institutional forum from where parties corrld go to the High Court would
a retrograde step corrsidering the situation and circurnstances to meet
mechanism or arrangement ior judicial review, provided it is no less efficacious
been
which the innovation Iias been brouglrt about. Thus barring
of the jurisdiction
than the High Court. Then, instead of the High Court, it would be another High Court can indeed not be a valid ground of attack'
institutional mechanism or authority which rvould be exercising the power of the
of judicial revierv with a view to enforcing the constitutional limitations and
rnaintaining the rule of law. Therefore, if any constitutional amendment made
7.6 OBJECTIVE BEHIND ENACTMENT OF THE ADMINISTRATIVE
by Parliament takes away from the High Court the power of judicial review
in any particular area and vests it in any other institutional mecharrism or TRIBUNALS ACT, 1985
authority, it would not be violative of the basic structure dtrctrine, so long as relating to tribunals, it
the essential condition is fulfilled, namely, that the alternative institutional After the inclusion of the constitutional provisions
Administrative Tribunals
mechanism or authority set up by the parliamentary amendment is no less took another ten years for the enactment of the
the Supreme Court
effective than the High Court. Act, 1985. Highlighting the need,of a service tribunal
in K.K. Dutti u. (Jn'ion of Ind'iart had observed that-
...... If this constitutional amendment $,ere to permit a law made under
clause (1) of Article 323-A to exclude the jurisdiction of the High court under Therearefewotherlitigativeareasthandisputesbetweenmembersofvarious
Articles 226 and, 227 without setting up an effective alternative institutional services inter se, *h"'"" tht principle thai
public nolicV re:uir.es that aII
mechanism or arrangement for judicial review, it would be violative of the litigationmusthaveanendcanapplywithgreaterforce.Publicservants
time and energy in
basic structure doctrine and hence.outside the constituent power of Parliament. o,rJrrt ,rot to be driven or requireJ to dissipate their
It must, therefore, be read as implicit in this constitutional amendnient that courtroombattles.Therebytheirattentionisdivertedfrompublictoprivate
without which
affairs and their inter se iisputes affect their sense of
the law excluding the jurisdiction of the High court under Articles 226 and oneness
227 permissible under it must not leave a void but it must set up another noinstitutioncantbnctioneffectively.TheconstitutionofServiceTribunals
which' in the
effectiae institutional mechanism or iruthority and vest the power of judicial by State GovernYnents with an a,p"* T'ib"ttal at the Centre'
review in it. consequently, the impugned Act excluding the jurisdiction of generalityofcases,shouldbethefinalarbiterofcontroversiesrelatingto
seaiority, may save the
the High Court under Articles 226 and 227 in respect of service matters and conditions of service, including the vexed question of
vestinj such jurisdiction in the Administrative Tribunal can pass the test of courts from the avaianche oiwrit petitions and appeals in service matters-
constiiutionality as being within the ambit and coverage of clause (Z)(d) of Tribunab tan have the merit of informality and if
The proceedings of such
Article 323-A,"only if it can be shown that the Administrative Tribunal set theywillnotbetieddowntostrictrulesofevidence'tbeymightbeableto
up under the impugned Act is equally efficacious as the High court, so far produce solutions which will satisfy many" ""
as the prower of judicial review over gervice matters is concerned'
UltimatelyinJanuarylg85theParliamentenactedthelawrelatingto
Speaking on the same Justice Ranganatha Mishra observed- service tribunals which came into effect on November
1' 1985' The statement
of Objects and Reasons of the Act specifying the purpose behind
the
judicial
[E]xclusion of the jurisdiction of the High court does not totally bar
review. This Court in Minerua Mills casero did point out that "effective enactmentwasthatalargenumberofcasesrelatingtoservicematterswere
setting up of
alternative institutional ntechanisms or arrangements for judicial review" can pending before various courts and it was expected that "the
be made by Parliament. Thus it is possible to set up an alternative institution such Administrative Ttibunals to deal exclusively with service matters would
courts and
in place of the High court for providing judicial review. The debates and go a long !r'ay in not only reducing the burden of the various
expeditiously but
deliberations spread over almost trvo decades for exploring ways and means for thereby giving them mors time to deal v'ith other cases
Tribunals
relieving the High Courts of the load of backlog of cases and for assuring quick would also provide to the persons coverd by the Administrative
settlement of service disputes in the interest of the public servants as also the speedy relief in respect of their grievances"'
country cannot be lost sight of while considering this aspect. It has not been of various
disputed before us and perhaps could not have been that the Tribunal Immediately after coming into effect the constitutionality
- the Act would take over a part of-the existing backlog provisions relating to ttre coliposition of tribunals and mode of appointment
under the scheme of
and a share of the normal load of the High courts. The Tribunal has been
contemplated as a substitute and not as supplemental to the High court in the
11. AIR 1980 sc 2056.
ro. (1e80) 4 scc 38.
t -. ..,. 1

Textbook on Adtninistratioe Lazp

136B
of the Chairperson and other members were challenged before the Supreme
Court in the Sampath Kumar Minerua IuIiIIs case-
"ose."
(i) Effective as the High Court (ii) Need of Legal Knowledge and Expertise and Presence
One of the important issues deliberated by' the Court was r,r'hether the of Judicial Members
Ttibunals could effectively substitute the role and functioning of the High
Court. The functioning of the Administrative Tribunal should be such as to lt Sampath Kumar Supreme Court had categorically recognized that if the
under Articles 226 and 227 of the Constitution
inspire confidence in the publi.c mind, that it is a highly competent and lurisdiciion of the High Court then for
erpert mechanism with judicial approach and objecti,uifg. Speaking on the Lad to be removed and entrusted to the Administrative Tribunal
involving interpretation and applicability of
same issue Justice Ranganatha Mishra stated- ,h" prrrpor. of adjudicating issues
,artictes14,!S,16and3llitisnecessarytodeterminethemthroughjudicial
What, however, has to be kept in view is that the Tribunal should be a approach based on expert knowledge in constitutional and
administrative law'
real substitute for the High Court not only in form and de jure but in Hence it is necessary that the members of the tribunal should have same
content and de facto. As was pointed - out in Minert,a Millsr3 the alternati'"'e of legal training and judicial experience. Therefore the court had
modicum
emphasised the need to have one judicial member and one
arrangement has to be effective and efficient as also capable of upholding the administrative
constitutional limitations. Article 16 of the Constitution guarantees equality of and there should be
member at every Bench of the Administrative Tbibunal
opportunity in matters of public employment. Article 15 bars disirimination on any Bench' It was also
on grounds of religion, race, caste, sex or place of birth. The .touchstone of no prepond,erarlce of ad'm'inistratiue members
,the chairman of the Administrative Tribunal should be or
equality enshrined in Article 14'is the greatest of guarantees for the citizen. emphasised that
should have been a Jud.ge of a High Court' because subst'i'tuting the Chief
Centring around these articles in the Constitution a service jurisprudence uho
Adrninistratiue TYibunal
has already grown in this country. Under Sections 14 and 15 of the Act all Justice of a High court by a chairman of the
the powers of the courts except those of this Court in regard to matters ha" hetd, the post of a secretarg to the goaernnt.ent and who has
specified therein vest in the Tribunal either Central or State. Thus the ^erily
no legal ir jud'i'ci'al itperience would' not only fail to inspire confidence
tibunal is the substitute of the High -Court and is entitled to exercise the in the public mind, but would, also render the Administratiue IYibunal a
powers thereof.
nuch less effectiue and. efficacious mechan'i'sm than the High Court' We
ffre ffign'Courts have been'functioning over a century and a quarter and cannot afford to forget that it is the High court which is being supplanted
until the Federal Court was established under the Government of India Act, by the Adrruinistrati;ue Tribunal and it must be so man'ned as to inspire
confid,ence in the public mind, that it is a highly-com'petent and
1935, used to be the highest courts within their respective jurisdictions subject erpert
to an appeal to the Privy Council in a limited category of .cases. In this mechanism tuith judicial approach and objectiuitg'l{
long period of about six scores of years, the High Courts have played their
role effectively, efficiently as also satisfactorily'. The litigant in this country
has seasoned himself to look up to the High Court as the unfailing protector
(iii) Need of ExPert Members
of his person, property and honour. The institution has served its purpose In light of the peculiarity in the functioning of government services and to
very well and the common man has thus come to repose great confidence brinj in efficiency to deal with policy related issues the court had recognized
therein. Disciplined, independent and trained Judges well versed in law and the presence of an administrative member in the tribunal'
working with all openness in an unattached and objgctive manner havc ensured
dispensation of justice over the years. Aggrieved people approach the court
the social mechanism to act as the arbiter not under legal obligation
(iv) Manner of Appointment of the Members
-but under the belief and faith that justice shall - be done to them and the Emphasizing the need to have an independent selection procedure for the
State's authorities would implement the decision of the court. It is, therefore, of upptirrtrrr"rri of Chairman and other members of the Tribunal Supreme
paramount importance that the substitute institution the Tribunal must Court held that-
- That is exactly
be a worthy successor of the High Court in all respects. - what

12. (1987) 1 SCC 124 : AIR 1987 SC 386 14. (1987) 1 SCC 124, Para 6
13. (1980) 3 SCC 625.

I Tibunalization in
l37O Textbook on Administrathte Lan:
[S]o far as the appointment of Chairman, Vice-Chairmen and administrative
members is concerned, the sole and exclusive Power to make such appointment
is conferred on the government under the impugned Act. There is no obligation
cast on the government to consult the chief Justice of India or to follow any
particular selection pro.cedure in this behalf- The result is that it is left to
the absolute unfettered discretion of the government to appoint such person or
persons as it likes as Chairman, Vice-Chairman and administrative members
of the Administrative Ttibunal. Now it may be noted that almost all cases
in regard to service matters which come before the Administrative Tribunal
would be against the Government or any of its officers add it would not at
.
all be conducive to judicial independence to leave unfettered and unrestricted
discretion in the executive to appoint the Chairman, Vice-Chairmen and
a.dministrative members, if a judicial member or an administrative me.mber is
Iooking forward to promotion as Vice-Chairman or Chairman, he would have to
depend on the goodwill and favourable stance of the executive and that would
be likely to afflct the independence and impartiality of the members of the
Tribunal. The same would be the position vis-d-vis promotion to the office of
Chairman of the Administrative Ttibunal. The administrative members would
also be likely to carry a sense of obligation to the executive for having been
appointed members of the Ad.ministrative Tribunal and that would have a
tendency to impair the independence and objectivity of the members of the
Tlibunal. There can be no doubt that. the power of appointment and promotion
vested in the executive can have prejudicial effect on the independence of the
Chairman, Vice-Chairmen and members of the Administrative Tribunal, if such
power is absolute and unfettered. If the members have to look to the executive
for advancement, it may tend, directly or indirectly, to influence their decision-
making process particularly sipce the governrIlgnt. would be a litigant in most
of the cases coming befoie the Administrative Tli6unal and it is the'action of
the Government which would be challenged in such cases. That is the reason
why in case of appointment of High Court Judges' the power of appointment
vested in the executive is not an absolute unfettered power but it is hedged
in by a wholesome check and safeguard and the President cannot make an
appointment of a High Court Judge without consultation with the Chief Justice
of the High court and the chief Justice of India and a healthy convention
has gro*r, up that no appointment would be made by the government which
is not approved by the Chief Justice of India. This check or safeguard is
totally absent in the case of appointment of the Chairman, Vice-Chairmen
and administratire members of the Administrative Tribunal and the possibility
indeed the litigating public would certainly carry a
cannot be ruled out
- with the central Administrative Tribunal, state
feeling that the decision-making process of the Chairman, Vice-Chairmen
- were constituted in eight States and also
and members of the Administrative Tribunal might be likely to be affected by
reason of dependence on the executive for appointment and promotion. It can
no longer be disputed that total insulation of the judiciary from all forms of
interference from the coordinate branches of government is a basic essential
feature of the Constitution. The Constitution-makers have made anxious
provision to secure total independence of the judiciary from executive pressure
or influence. Obviously, therefore, if the Administrative Tribunal is created in
t
Indiz 37'l^l
substitution of the High court and the jurisdiction of the High court under
Articles 226 and 227 is taken away and vested in the Admiuistrative Tribunal,
the sarue independence from possibility of executive pressure or influence
must also be ensured to the Chairman, Vice-Chairmen and members of the
Administrative Tribunal. Or else the Administrative Tribunal would cease to
be atr equally effectir-e and efficacious substitute for'the High Court and the
provisions of the impugned Act w-ould be rendered invalid. I am. therefore.
of
and administrative
ihe ,rie* that the appointment of Chairman, Vice-Chairmen
membersshouldbemadebytheconcernedgovernmentonlyafterconsultation
with the chief Justice of India and such consultation must be meaningful
and
of the chief Justice of India must
effective and ordinarily the recommendation
be accepted unless there are cogent reasons' in which event
the reasons must
of India and his response must be invited
be disclosed to the chief Justice
such reasons. There is also another alternative which may be adopted by
to
theGovernmentformakingappointmentsofChairman'Vice-Chairmenand
membersandthatmaybebysettingupaHighPoweredSelectionCommittee
justice of India or a sitting Judge of the supreme court
headed by the chief
orconcernedHighCourtnominatedbytheChiefJusticeoflndia.Boththese
modes of appointment will ensure selection of proper
and competent persons
to man the AdministratiVe Tribunal and give it prestige and reputation which
would inspire confidence ' in the public mind in regard to the competence'
objectivityand.impartialityofthosemanningtheAdrninistrativeTribunal.
If either of.these two moies of appointment is adopted, it wo'Id save the
impugnedActfiominvalidation.otherwise,itwillbeoutsidethescopeof
the plo*er conferred on Parliament under Article 323-A' I would'
however'
hastentoaddthatthisjudgmentwillop€rateonlyprospectivelyandwillnotBut
Tribunal.
invalidate appointments-alrlady made to the Administrative
ifanyappointmentsofVice-Chairmenoradministrativemembersaretobe
made hereafter' the same shall be made by the Government
in accordance
with either of the aforesaid two modes of appointment'
Theprimaryobjectiveindealingwiththeabovelegalissueswasthatthe
Ttibunals should become an i.nsti.tution i,n uhich the part'ies could
repose
Jaith and' trust-
L- Chand.ro' I<urnar case- Review of the Satnpath l{untar decision
scale creation
The introduction of Articles 323-A and 323-8 gave rise to large
of tribunals to deals $,ith matters involving different branches of law' Along
Administrative Tribunals
under Article 323-8 other tribunals
control (Appellate) Tribunal, Tamil
such as the customs] Excise and Gold
West Bengal Taxation Ttibunal, Rajasthan
Na,du Taxation Special Ttibunal,
Tribunal
Taxation Tribunal, Tamil Nadu Land Reforms Special Appellate
etc- had been created.
 I
"lgZZ ..1
t
- Textbook on Administratiae Laut Tribunalization in India 37i'l

After 10 years of the passing of Sampath Kumor judgment it became
crucial for the Supreme Court to review the working of the tribunals (Articles
323-4 and 323-8) in India generally and the Sampath Kumar decision in
particular because of several legal issues and challenges raised in various
cases pending before the different High Courts invoh'ing rvorking of the
tribunals.
In R.K. Jain u. (Jnion of Indiars Ahmadi, J. had calegorically observed-
(2) whether the Tribunals, constituted either under Article 323-A or under
i.tl"t. 323-8 of the Constitution, possess the compctcnce to test the
constitutional validity of a statutory provision/rule?
(3)WhethertheseTribunals,astheyarefunctioningatpresent'canbesaid
io be effectir-e substitutes for t5e High Courts in discharging the porver of
judicial review? If not, what are the changes required to make them conform
to their founding objectives?

[T]he time is ripe for taking stock of the workirig of the various tribunals TheSupremeCourtwhiledealingwiththeaboveissueswereaware
necessary for the
set up in the country after the insertion of Articles 323-A and 323-8 in the aboirt the prd,ctical challenges and difficulties $'hich was
Constitution. A sound justice delivery system is a sine qua non for the efficient introduction of the provisions relating to tribunals in the Constitution'
governance of a country wedded to the rule of law. An independent and
impartial justice delivery system in which the Iitigating public has faith and are conscious of the fact that when a constitution Bench of
this court
confidence alone can deliver the goods. After the incorporation of these two
' \Are
i"- i"*i"ri Ku*o, cose adopted the theory of alternative institutiorral
practical situation
articles, Acts have been enacted whereunder tribunals have been constituted mechanisms, it .was attemptirrg to remedy an alarming
for dispensation of justice. Sufficient time has passed and experience gained in and the approach selected by it appeared to be most appropriate to meet
these last few years for taking stock of the situation with a view to finding out the exigencies of the time' Nearly a decade later, we are now in a position to
if they have served the purpose and objectives for which they were constituted. .errie* ihe theoretical and practical results that have arisen as a consequence
Complaints have been heard in regard to the functioning of other tribunals of the adoPtion of such an aPProach
as well and it is time that a body like the Law Commission of India has a
comprehensive look-in with a view to suggesting measures for their improved After elaborate analysis of the functioning of the tribunals and the
functioning. That body can also suggest changes in the .different statutes jurisprudential fpu4dations of the power of judicial review of the higher
and evolve a model on the basis whereof tribunals may be constituted or j,rdiciaty the Supreme Court made the following points-
reconstituted with a view to ensuring greater independence. An intensive and
extensive study needs to be undertaken by the Law Commission in regard to
(1)ThepowelofjudicialreviewoverlegislativeactionvestedintheHigh
the constitution of tribunals under, various statutes with a view to ensuring courts under.Article 226 and in supreme court under Article 32 of
their independence so that the public confidence in such tribunals may increase the constitution is an integral.and essential featurq of the constitution'
and the quality of their performance may improve. We strongly recommend to constituting part of its basic structure'
the Law Commission of India to undertake such an exercise on priority basis. (2) Ordinarily the power of High Courts and the Supreme Court to
A copy of this judgment may be forwarded by the Registrar of this Court to test the constitutional validity of legislations can never be ousted or
the Member-Secretary of the Commission for immediate action".l6 excluded.
A seven-judge bench of the Supreme Court was constituted to review (3) Power vestecl in the High courts to exerclse judicial supelintendence
tlae Sampath Kumar decisi,on in the case of L. Chandra Kumar u. Union over the decisions of all courts and tribunals within their respective
of India.l7 The Court clubbed the various issues raised under three broad . jurisdictions is also part of the basic structure of the constitution'
heads- (4) Though the subordinate judiciary or Tribunals created under ordinarv
Iegislations cannot exercise the power of judicial review of
legislative
(1) \\rhether the pos'er conferred upon Parliament or the State Legislatures action to tlre exclusion of the High Courts and the Supreme Court,
under Article 323-4 and Article 323-8, to totally exclude the jurisdiction of there is no constitutional prohibition against their performing a
'all courts', except that of the Supreme Court under Article 136 runs counter supplemental-asopposedtoasubstitutional-roleinthisrespect.
to the power of iudicial review conferred on the High Courts under Articles 32 of the
226 /227 and on the Supreme Court under Article 32 of the Constitution? Such a situation ls contemplated under clause (3) of Article
Constitution-
15. (1993) 4 SCC 1r9. (5) If the power under Article 32 of the Constitution, which has been
can be
16. (1993) 4 SCC r19, Id, Para 8. described as the "heart" and "soul" of the Constitution'
17. (1997) 3 SCC 261 : AIR 1997 SC 1125

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1374
additionally conferred upon "any other court", there is no reason why
the same situation cannot subsist in respect of the jurisdiction conferred
upon the High courts under Article 226 of the constitution. so Iong
as the jurisdiction of the High courts under Articles 226 /227 and
that of this court under Article 32 is retained, there is no reason why
the power to test the validity of legislations against the provisions of
the Constitution cannot be conferred upon Administrative Tribunals
created under the Act or upon Tribunals created under Article 323-8
of the Constitution.
(6) Both Parliament and the State Legislatures possess legislative
.. competence to effect changes in the original jurisdiction oftothe Supreme
Court and the High Courts. This power is available Parliament
under Entries77,78,79 and 95 of List I and to the state Legislatures
under Entry 65 of List II; Entry 46 of List III can also be availed
of both by Parliament and the State Legislatures for this purpose'
. (7) All decisions of Tribunals, whether created pursuant to Article 323-A
. or Article 323-8 of the constitution, will be subject to the High
court's writ jurisdiction under Articles 226 /227 of the constitution,
before a Division Bench of the High Court within whose territorial
jurisdiction the particular TYibunal falls.
(8) No appeal from the decision of a Tribunal will directly lie before the
Supreme Court under Article 136 of .the Constitution; but instead'
the aggrieved party will be entitled to move the High Court under
' Articlli ZZe liZZ of the Constitution and from the decision of the
Division Bench of the High Court the aggrieved party could move
' this Court under Article 136 of the Constitution'
(9) Where a question involving the interpretation of a statutory provision
or rule in relation to the Constitution arises for the consideration of
a single lvlernber Bench of the Administrative Tribunal, the proviso
to Section 5(6) will automatically apply and the Chairman or the
Member concerned shall refer the matter to a Bench consisting of at
least two Members, one of whom must be a Judicial lllember. This
will ensure th4t questions involving the vires of a statutory provision
or rule will never arise for adjudication before a single N{ember Bench
or a Bench which does not consist of a Judicial Member'
(10) Setting up of these Tribunals is founded on the prernise that specialist
bodies comprising both trained administrators and those with judicial
experience would, by virtue of their specialised knowledge, be better
equipped to dispense speedy and efficient justice. It was expected
that a judicious mix of Judicial Members and those with grassroot
experience would best serve this purpose. To hold that the Tribunal
.t .-
Tibunalizationinlndia 3751 :'
should consist only of Judicial Members would attack the primary
basis of the theory pursuant to which they have l>ccn constituted.
(11) The Selection comrnittee shall be headed by a Judge of the Supreme
Court. nominated by the Chief Justice of India, the Commiitee would
take care to ensure that Administrative l\Iembers are chosen frorn
amongst those v'ho have some background to deal with such cases.
(12)Untilawhollyindependentagencyfortheadministrationofallsrrch
Tribunals can be set up, it is desirable that all such Tribrrnals should
be,asfaraspossible'underasinglenodalministrywhichwillbein
a position to oversee the working of these Tribunals' For a number
of reasons that Ministry should appropriately be the Ministry of
Law. It would be open for the Ministry, in its turn' to appoint an
independentsupervisorybodytooverseetheworkingoftheTribunals.
This witl that if the President or chairperson of the Tribunal
"rr"r-,."
is for some reason unable to take sufficient interest in the working
of the Tribunal, the entire system $'ill not languish and the ultimate
consumer of justice will not suffer'
In the words of supreme court the jurisdictional powers of the Tribunal
can be summarized as-
The Tribunals are competent to hear matters where the vires of statutory
provisions are questioned. However, in discharging this duty' they cannot
act
as substitutes for the High courts and the supreme court which have, under
our constitutional set-upl been specifically entrusted with such an obligation.
Theirfunctioninthis.respectisonlysupplementaryandallsuchdecisionsthe
of the Tribunals will be subject to scrutiny before a Division Bench of
respectir,eHighCotrrts.TheTribunalswillconsequentlyalso}ravethepower
to test the vires of subordinate legislations and rules. However, thiS power
oftheTribunalswillbesubjecttooneimportantexception.TheTribunals
shallnotentertainanyquestionregardingtheviresoftheirparentStatutes
follo*,ing the settled p.itt"ipt. that a Tribunal which is a cre-ature
of an Act
cannot declare that vlry Act to be unconstitutional. In such cases alone, the
HighCourtconcernedmaybeapproacheddirectly.Allotherdecisionsofthese
Tyibunals, rendered in casls that they are specifically empowered to
adjudicate
to scrutiny before a
upon by virtue of their parent statutes. will also be subject
DivisionBenchoftheirrespectiveHighCourts.\\'emayaddthattheTribunals
will, however, continue to act as the only courts of first instance in respect
of the areas of law for which they have been constituted. By this, wecourts
mean
that it q,ill not be open for Iitigants to directly approach the High
(except,
even in cases wltere they question the vires of statutory legislations
the particular Tribunal is
as mentioned, where the legislation which creates
jurisdiction of the Ttibunal concerned'
challenged) by overlooking ihe
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I Tibunalization in India t77'1
| 376 Textbooh on Administrathse Laan

arising from NCLT, u'ith a further appeal to the Supretne Court

only on
Clause 2(d) of Article 323-4 and clause 3(d) of Article 323-8, to the extent
they exclude the jurisdiction of the High Courts and the Supreme Court under points of law, thereby reducing the delay in appeals; and
Articles 226 / 227 and 32 of the Constitution, are unconstitutional' Section 28
of the Act and the "exclusion of jurisdiction" clauses in all other legislations (io) with the pending cases before the company Law Board and all winding-up
)ases pending before the High Courts being transferred to NCLT,
the b.rden on
enacted under the aegis of Articles 323-A and 323-8 $'ould. to the same BIFR and AeIrR could be abolished'
extent, be unconstitutional. The jurisdiction conferred upon the High Courts the High Courts will be reduced and
under Articles 226/227 and upon the Supreme Court under Article 32 of the
Constitution is a part of the inviolable basic structure of our Constitution- speaking on the necessity to ensur'e the independence of the tribunals
so as to uphold public confidence in the adjudicating process
the court
While this jurisdiction canDot be ousted, other courts and Tribunals may
perform a supplemental role in discharging the powers conferred by Articles observed-
226 /227 and 32 of the constitution. The Tribunals created under Article of citizens, and
323-4 and Article 323-8 of the Constitution are possessed of the competence Independent judicial tribunals for determination of the rights
for a<ludication of the disputes and complaints of the citizens, is a necessary
to test the constitutional validity of statutory provisions and rules. All decisions law has facets' one of which
conco;itant of the rule of law. The ru^le of several
of these Tribunals will, however, be subject to scrutiny before a Division Bench and
of the High Court within whose jurisdiction the Tribunal concerned falls. The is that disputes of citizens r.ill be decided by Judges who are independerit
impartial; and that disputes as to legality of acts of the Government will be
Tribunals will, nevertheless, continue to act like courts of first instance in of the executive. Another facet of the
by who are independent
respect of the areas of law for which they have been constituted. It will not, decided Judges
therefore, be open for litigants to directly approach the High Corrrts even in ruleoflawisequalitybeforelaw.Theessenceoftheequalityisthatitmust
cases where they question the vires of statutory legislations (except where the becapableofbeing",'fo.cedandadjudicatedbyanindependentjudicialforum.
Judicial independence and separation of judicial power from the executive
are
legislation which creates the particular Tribunal is challenged) by overlooking like
part of the common law traditions implicit in a constitution ours which
the jurisdiction of the Ttibunal concerned. section 5(6) of the Act is valid and
constitutional and is to be interpreted in the manner we have indicated. is based on the Westminster model'
Thefundamentalrighttoequalitybeforelawandequalprotectionoflaws
guaranteedbyArticle14oftheConstitution,clearlyincludesarighttohave
7.7 JUDICIAL OPINIONS POST L. CHANDRA KUTAAR
t"heperso.''srights,adjudicatedbyaforumwhichexercisesjudicialpowerin
CASE.FROM R. GANDHI TO TTADPL/.S BAR ASSOCIATION an iirpartial and independent manner, consistent with the recognised
principles
access to courts to enforce such rights is
of adjudication. Therefore wherever
R. Gandhi cose *oghttobeabridged,altered,modifiedorsubstitutedbydirectinghimto
.In (Jnion of Ind,i.a u. R. Gand,hirs the constitutionality of the National appioach an alternJtive forum, such legislative Act is open to challenge
if it
.,riol.t"" the right to adjudication by an independent forurn. Therefore' though
Company Law Tribunal (NCLT) and National Company Law Appellate
Tribunal (NCLAT) was challenged before the l\{adras High Court and the challenge by MBA is on the ground of violation of principles forming
part of the basic structure, they are relatable to one or more of the express
which went on appeal to the Supreme Court. The principle objectives behind provisions of the constitution which gave rise to such principles. Though the
establishment of NCLT and NCLAT are to- validity of the provisions of a legislative Act cannot be challenged on the
g.o.rrd it violates the basic structure of the Constitution, it can be challenged
(i)reduce the pendency of cases and reduce the period of winding-up process as violative of constitutional provisions which enshrine the principles of the
from 20 to 25 years to about two years; rule of law, separatio' of po*Lrs a'd independence of the judiciary'2o
(ii) avoid multiplicity of litigation before various fora (the High Courts and the
quasi-judicial authorities like cLB, BIFR and Ae*n)le as all can be heard After analysing the various judicial opinions on creation of tribunals and
and decided by NCLT; their effective, the Court in R. Gandhi surnmed up the essential principles
of tribunalization as-
(iii) the appeals will be streamlined with an appeal provided against the order (a) A legislature can enact a law transferring the jurisdiction exercised
by
of NCLT to an Appellate Tribunal (Ncr-er) exclusively dedicated to matters are vested
courts in regard to any specified subject (other than those which
18. (2010) 1l scc r-
incourtsuye*pr"ssprovisionsoftheConstitution)toanytribunal.
19. CLB - Company Law Board, BIFR Board for Industrial and Financial Rtronstruction 20. (2010) 1r SCC 1. Para 10r-102
and AAIFR - Appellate Authority for Industrial and Financial Reconstruction'
 I Tribanalization in I nd'ia !?$4, ":"':i
','
as president / chairperson / Members are of a standard which is reasonably
(b) All courts are tribunals. Any tribunal to which any existing jurisdiction . approximate to the standards of mainstream judicial functioning.- on the other
of courts is transferred should also be a judicial tribunal. This means n"rra, if a tribunal is packed with members who are drawn from the civil
that such tribunal should have as members, persons of a rank, capacity services and who continue to be employees of different Ministries or
government
. and status as nearly as possible equal to the rank, status and capacity departmentsbymaintaininglienovertheirrespectiveposts,itworridamount
of the court which was till then dealing with such matters and the io-tr.rr"f".rl.rg judicial f.,ncliotts to the executive which s'ould go against the
members of the tribunal should have the independence. and security doctrineofseparationofpowersandindependenceofthejudiciary.
of tenure associated with judicial tribunals. of law and
The legislature is pr'esumed not to Iegislate contrary to the rulejudicial
(c) whenever there is need for "tribunals", there is no presumption therefore know that where disputes are to be adjudicated by a body
that there should be technical members in the tribunals. When any other than courts' its standards should approximately be the same as to
jurisdiction is shifted from courts to tribunals, on the ground of whatisexpectedofmainstreamjudiciary.Theruleoflawcanbemeaningful
pendency and delay in courts, and the jurisdiction so transferred does onlyifthereisanindependentandimpartialjudiciarytorenderjustice.An ability and
indlpendent judiciary can exist only when persons with competence;
not involve any technical aspects requiring the assistance of experts, with character man the judicial institutions' When
the tribunals should normally have only judicial members. only where
il1i"irra""". impeccable
thelegislatur"propo".r.tosubstituteatribunalinplaceoftheHighCourtto
the exercise of jurisdiction involves inquiry and decisions into technical e*e.ciJe the jurisdiction which the High Court is exercising,
it goes without
or special aspects, where presence of technical members will be useful sayingthatthestandardsexpectedfromthejudicialmembers-oftheTribunal
and necessary, tribunals should have technical members. Indiscriminate
appointment of technical members in all tribunals will dilute and Judges, which are apart from a basic
"od""t"nd.rdsapplied'forappointingsuchmembers'shouldbeasnearlyas
;;ibl; ", "ppti""ut. to the Highincourt
adversely affect the independence of the judiciary' i"gr"" in Law, rich e*pe'ience the practice of law' independent outlook'
character and goo<1 reputation' It is also implied that only men of
.(d) The legislature can reorganise the jurlsdictions of judicial tribunals.
integrity,
who have special in the field to which the Tribunal relates,
For example, it can provide that a specified category of cases tried "t.rr-airrg
witt be-eligible for "*p".ii""
aifoiirt*".rt t" technical members. Therefore, only persons
by a higher court can be tried by a lower court or vice versa with a 5uJicial b""kgrorr,d' that is, those who have been or are Judges of
(a standard example is the variation of pecuniary limits of the courts). theHighCourtand.lawyerswiththeprescribedexperience,whoareeligible
similarly while constituting tribunals, the legislature can prescribe forappointmentasHigh.CourtJudges,canbeconsideredforappointmentas
the qualifications/eligibility criteria. The same is however subject to judicial members."
judicial review. If the court in exercise of judicial review is of the vierv
that such tribunalisation would adversely affect the independence of (ii) On 'technical members':
the judiciary or the standards of the judiciary, the court may interfere Alifetimeofexperienceinadministrationmaymakeamemberofthecivil
ro preserve the independence and standards of the judiciary. Such an servicesagoodandableadministrator,butnotanecessarilygood'able
exercise will be part of the checks and balances measures to maintain andimpartialadjudicatorwithajudicialtemperamentcapableofrendering
reasons for the
the separation of powers and to prevent any encroachment, intentional decisions which have to: (i) inform the parties about the
of the decision and absence
or unintentional, by either the legislature or by the executive. decision; (ii) demonstrate fairness and correctness
One of the important issue which was analysed by the court in detail was ofarbitrariness;and(iii)ensurethatjusticeisnotonlydone'butalsoseem
the selection and manner of appointment of expert or technical members- The to be done.
Court particularly dealt with the issue of 'whether judicial functions can be As far as technical members are concerned, the officer should be of
at least
and integrity. Reducing the
transferred to tribunals manned by persons who are not suitable or qualified secretary level officer with known competence
standards, or qualifications for appointment will result in loss
of confidence
or competent to discharge such judicial powers or whose independence is that is not to say that the
suspect' and made the following observations- in the tribunals. we hasten to add our intention
persons of Joint Secretary level are not competent' Even persons of Under-
(i) On 'judicial members': Secretarylevelmaybecompetenttodischargethefunctions.-Theremaybe
brilliant and comietent people even workin! as Section Officers
or Upper
we have already held that the legislature.has the competence to transfer
any particular jurisdiction from courts to tribunals provided it is understood
that the tribunals exercise judicial power and the persons who are appointed 2r. (2010) 1r SCC 1, Ibid at Para 107-108

I
.I SAO Textbooh on Administratiue Law
Division Clerks but that does not mean that they can be appointed as members.
Competence is different from experience, maturity and status required for the
post- As, for example, for the post of a Judge of the High Court, 10 years'
practice as an advocate is prescribed. There may be advocates who even with
4 or 5 years' experience. may be more.brilliant than advocates s'ith 10 years'
standing. Still, it is not competence alone but various other factors n'hich make
a person suitable. Therefore, when the legislature substitutes the Judges of
the High Court with the l\'Iembers of the Tribunal, the standards applicable
should be as nearly as equal in the case of High Court Judges. That means
only Secretary level officers (that is those rvho were Secretaries or Additional
Secretaries) with specialised knowledge and skills can be appointed as technical
members of the tribunal.22
Showing grave concerns with the falling standards of the tribunals in
performing their judicial functions the court laid the following important
guidelines to improve the overall functions of the tribunals-
(i) Only Judges and advocates can be considered for appointment as
judicial members of the Tribunal. Only High Court Judges, or Judges
who have served in the rank of a District Judge for at least five
years or a person who has practised as a lawyer for ten years can
be considered for appointment as a judicial member. Persons who
have held a Group A or equivalent'post under the Central or State
Government with experience in' the Indian Company Law Service
(Legal Branch) and the Indian Legal Service (Grade I) cannot be
considered for appointment as judicial members as provided in sub-
sections (2)(c) and (d) of Section 10-FD. The expeitise!'in Company
Law Service or the Indian Legal Service will at best enable them to
be considered for appointment as technical members.
(ii) As NCLT takes over the functions of the High Court, the members
should as nearly as possible have the same position and status as High
Court Judges. This can be achieved, not by giving the salary and
perks of a High Court Judge to the members' but by ensuring that
persons who are as nearly equal in rank, experience or competence to
High Court Judges are appointed as members. Therefore, only officers
who are holding the ranks of Secretaries or Additional Secretaries
alone can be considered for appointment as technical members of the
National Company Law Tlibunal. Clauses (c) and (d) of sub-section
(2) and clauses (a) and (b) of sub-section (3) of Section 10-FD which
provide for persons with 15 years experience in Group A post or
persons holding the post of Joint Secretary or equivalent post in the
Central or the State Government, being qualified for appointment as
\4[embers of TYibunal, are invalid.
22. ld, at Para 109-110.
I
Tribunalization in Indiz 381'l
(iii) A ,,technical member" in the field to which
presupposes an experience
the Tribunal relates. Amember of the Indian compan;r Law service
who has worked with Accounts Branch or officers in other departments
who might have incidentally dealt with some aspect of company
law canuot be considered as "experts'' qualified to be appointed as
technical members. Therefore clauses (a) and (b) of sub-section (3) are
not valid.
(iv)Thefirstpartofclause(f)ofsub-section(3)providingthatanyperson
having special knowled'ge or professional experience of 20 years in
science, technology, economics, bankirrg, industry could be considered
to be persons with expertise in company law, for being appointed as
technical members in the company Law Tribunal, is invalid.
(v) Persons having ability, integrity, standing and special knowledge and
professional experience of not less than fifteen years in industrial
firrarr.", industrial management, industrial reconstruction, investment
andaccountancy,mayhower,erbeconsideredaspersonshaving
expertise in rehabilitation/revival of companies and therefore, eligible
forbeingconsideredforappointmentastechnicalmembers.
(vi) In regard to category of persons referred in clause (g) of sub-section
(3) at Ieast five yea,rs' experience should be specified"
(vii) clauses ("), (d), (.)' (g), (h), and the latter part of clause (f) in
' Only sub-section (3) of section 10-FD and officers of civil services of the
rank of the secretary or Additional secretary in the Indian company
Law service and the Indian Legal service can be considered for
purposes of appointment as technical members of the Tribunal.
(viii) Instead of a five-member selection committee with the chief Justice
of India (or his nominee) as chairperson and two Secretaries from
the Ministry of Finance and company Affairs and the secretary in
theMinistryofLabourandthesecretaryintheMinistryofLaw
and Justice as members mentioned in Section 10-FX, the Selection
Committee should broadly be on the following lines:
(a) chief Justice of India or his nominee-chairperson (with a casting
vote)
(b)ASeniorJudgeoftheSupremeCourtorChiefJusticeofHigh
Court-N{ember;
(c) Secretary in the Ministry of Finance and Company Affairs--
Member; and
(d) Secretary in the Ministry of Law and Justice-Member'
(ix) The term of office of three years shall be changed to a term of seven
or five years subject to eligibility for appointment for one more term'
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Trib unaliz ation

This is because considerable time is required to achieve expertise in the vested with the power of adjudicating appeals arising from the orders of
field concerned. A term of three years is very short and by the tirne the Appellate Tribunals constituted under the Income Tax Act, Customs
the members achieve the required knowledge, expertise and efficiency, Lct, iSOZ and the central Excise Act, 1944. Prior to the enactment of
this legislation the appellate jurisdiction was conferred on the q'as High courts'
one term will be over. Further the said term of three years with the
The principle point of argurnent on behalf of the petitioners that the
retirement age of 65 1'ears is perceived as having been tailor-made by an extra-
po*"r" and functions of the High court cannot be substituted
for persons who have retired or shortly to retire and encourages these
Ttibunals to be treated as post-retirement havens. If these Tlibunals judicial body, such as NTT. In addition it was argued that the essential
Lharacteristics of a judicial body i.e. independence and fairness
was absent
are to function effectively and efficiently they should be able to attract
younger members who will have a rea,sonable period of service. in the functioning of NTT'
(x) The second proviso to Section 10-FE enabling the President and While dealing with the above issues, the Supreme Court reiterated the
in the
members to retain lien with their parent cadre/ministry/department importance and necessity of tribunals in spite of certain shortcornings
at the aarious Tf'ibunals haue not performed up
while holding office as President or lVlembers will not be conducive **ti.rg of the tribunals-?h
for the independence of members. Any person appointed as member to erpectations is a self-euid,ent and, widely acknowledged truth. Howeuer,
to their
Should be prepared to totally disassociate himself from the executive. to d.iaw an inference tiat their unsatisfactory perJormance points
The lien cannot therefore exceed a period of one year. beingfoun'd,ed,onafund'amentallyunsoundprinciplewould'notbecorrect.
(xi) .To maintain independence and security in service, sub-section (3) of The reasons for uhiuh the Tribunals were constituted, still persist; indeed,
t'irnes. The need
Section 10-FJ and Section 10-FV should provide that suspension of those reasons haue become eaen n'Lore pronounced in our
to improve the standard_ of functioning
the President / Chairman or member of i Tribunal can be only with of the day is to adopt strict measures
stand up to constitutional scrutiny'
the concurrence of the Chief Justice of India. of the tribunals so that they can
(xii) The administrative support for all TYibunals should be from the TheSupremeCourtidentifiedthefollowingcoreissuesandansweredthem
' Ministry of Law and Justice. Neither the Tribunals nor their members accordingly-
shall seek or be provided with facilities from the respective sponsoring on the legislative power to transfer judicial functions performed by courts
or.parent Ministries or Department concerned. to tribunals the Court observed-
(xiii) Tbo-member Benches.of the Tfibunal'should always have a judicial
member. Whenever any larger or special Benches are constituted, the TheConstitutionregulatesthemannerofgovernanceinsubstantiallyminuteThe
detail. It is the forlntainhead distributing power for such governance'
number of technical members shall not e5ceed the judicial members.
ConstitutionveststheporT'eroflegislationattheCentre'withtheLok
The Supreme Court upheld the constitutionality of NCLT and NCLAT SabhaandtheRajyaSabha,andintheStateswiththeStateLegislative
in exercising the powers and jurisdiction of the High Court subject to the as well). The
Assemblies (and in lome states, the state Legislative councils,
necessaiy changes to be made in the Companies Act 1952 as amended in instantlegislatir,epowerisregulatedby..PartXl''oftheConstitution.... of the
2002, through suitable amendments. It is important to note that the above This court has reieatedly held that an amendment to the provisions
principles as laid down in R. Gandhi with reference to the functioning of Constitution wouli not ie sustainable if it violated the "basic structure"

the NCLT and NCLAT a,re equally applicable for the effective functioning
of other tribunals as has been recognized in the case of Shamnad Basheer
a. (Jnion oJ India.2s
*ladras bar association
In Mad,ras Bar Assoc'i.ation a- (Jnion of India2a the constitutional validity of
National Tax Tribunal Act, 2005 was considered. The National Tax Tribunal
(NTT) was constituted as a quasi-judicial appellate tribunal and had been
23. 2OI5 SCC Online Mad 299.
24. (2or4\ 10 SCC | :2Or4 (11) SCALE 166
oftheConstitution,eventhoughtheamendmenthadbeencarriedoutby
following the procedure contemplated under "Part XI" of the
constitution'
th" structure" is inviolable' In our
This leads to the determination th"t "basic
view,thesamewouldapplytoallotherlegislations(other.than.amendmentsenacted
to the constitution) ".'i"u, even though the legislation had-been of the
by following the prescribed procedure, and was within the domain
enactinglegislature,anyinfringementtothe..basicstructure''wouldbe
unaccePtable.
11I
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f
.... in every new Constitution, which makes separate provisions for the
legislature, the executive and the judiciary, it is taken as acknorvledged/conceded
that the basic principle of "separation of powers" would apply. And that the
three wings of governance would operate in their assigned domain/province.
The power of discharging judicial functions rthich rvas exercised b1' members
of the higher judiciary at the time rvhen the Constitution came into force
should ordinarily remain with the. court, which exercised the said jurisdiction
at the time of promulgation of the new Constitution. But the judicial power
could be allowed to be exercised by an analogous/similar corrt/tribunal with
a different name. However, by virtue of thc constitutional conventipn while
constituting the analogous court/tribunal it will have to be ensured that the
appointment and security of tenure of Judges of that court would be the same
as of the court sought to be substituted.
On the need to appoint judicial members and restrictions on appointmeni
of technical membrs it was observed-
....that the members of NTT would most definitely be confronted with the legal.
issues emerging out of Family law, Hindu law, I\Iohammedan law, Company
law, law of Partnership, law related to Territoriality, law related to Tlusts
and societies, contract law, law relating to Transfer of PropertS law relating
to Intellectual PropertS Interpretatign of statutes, and other miscellaneous
provisions of law, from time to time. NTT besides the aforesaid statutes, will
not only have to interpret the provisions of the three statutes, out of which
the appeals will be heard by it, but will also have to examine a challenge to
the vires of statutory amendments made in the said provisions from time to
time. They will also have to determine in some cases whether the provisions
relied upon had a prospective or.retrospective applicability.
On the constitutional validity of Sections 5, 6, 7, 8 and 13 of the NTT
Act it was observed that-
Section 5-
Even though we have expressed the vlew, that it is open to Parliament to
substitute the appellate jurisdiction vested in the jurisdictional High Courts and
constitute courts/tribunals to exercise the said jurisdiction, we are of the view.
that while vesting jurisdiction in an alternative court/tribunal, it is imperative
for the legislature to ensure that redress should be available n'ith the same
convenience and expediency as it $'as prior to the introduction of the newl]'
created court/tribunal. Thus viewed, the mandate incorporated in section 5(2)
of the NTT Act to thc effect that the sittings of NTT would ordinarily be
conducted in the National capital Territory of Delhi, would render the remedy
inefficacious, and thus unacceptable in law. The instant aspect of the matter
was considered by this Court with reference to the Administrative Tribunals
Act, 1985 in'S.P. Sarnpath Kurnar case lS.P- Sampath Kurnar u. Union of
India, (1987) 1 SCC 124 : (1987) 2 ATC 82] and L. Chanilro Kumor case
Tribunalization in Indiz 38511
lL. Chand.ra Kumar u. [Jnion of India, (1997) 3 SCC 261 : 1997 SCC
(L&S)
bzzl , wherein it was held that perrnanent Benches needed to be established
at ihe seat of every jurisdictional High court. And if that was not possible.
at least a circuit Bench required to be established at every place where an
aggrieved party could avail of his remedy. The position on the above issue is
ni-different in the present controversy. For the above reason, Section-5(2) of
the NTT Act is in clear breach of the law declared by this Court"'25
Section 6-
court has declared the position in this behalf in L. chandra Kumor case
and in tJni,on oJ Ind.ia u. Mad,ras Bar Assn. case, that Technical Members
could be appoinied tp the tribunals., where technical expertise is essential for
disposal of matters, and not otherwise. It has also been held that where the
to a tribunal does not involve any specialised
a.djudicatory process transferred
or expertise, a provision for appointment of non-Judicial
skill, knowledge
Members (ln addition to, or in substitution of Judicial l\{embers), would
constitute a clear case of delusion and encroachment upon the "independence of
judiciary", and the "rule of law". .It is difficult to appreciate how Accountant
iuembe.s and Technical Members would handle complicated questions bf law
relating to tax matters, and also questions of Iaw on a variety of subjects
(unconnected to tax), in exercise of the jurisdiction vested with NTT. .That
in our view would be a tall order. An arduous and intimidating asking. since
the chairperson / Members of NTT will be required to determine "substantial
questions of law", arising out of decisions of the Appellate Tribunals, it
i; difficult to appreciate how an individual, well-versed only in accounts,
would be able to discharge such functions. Likewise, it is also difricult for
us to undeiit'dnd how Technical'lvlembers, who may not even possess the
qualification of law, or may have no experience at all in the practice of law,
would be able to deal with "substantial questions of law", for which alone,
NTT has been constituted.
we have already noticed hereinabove from data placed on record by the
Iearned counsel for the petitioners that NTT would be confronted with disputes
arising out of Family law, Hindu law, I{ohammedan law, Company law, law of
Partnership, law relating to Territoriality, Iaw relating to Trusts and Societies,
contract law, law relating to Transfer of PropertS larv relating to Intellectual
Property, Interpretation of Statutes/Rules, and other miscellaneous provisions
of law. Besides the a,bove, the l{embers of NTT will regularly have to interpret
the provisions of the Income Tax Act, the customs Act and the Excise Act-
We are of the considered opinion that only a person possessing professional
qualification in law with substantial experience in the practice of law will be
in a position to handle the onerous responsibilities which a Chairperson and
Members of NTT will have to shoulder.
25. Sunra note 24 at Para 123.
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There seems to be no doubt, whatsoever, that the Members of a court/tribunal In this behalf, it would also be pertinent to mention that the interests of the
to which adjudicatory functions are transferred must be manned by Central Government would be represented on one side in every lil,igation lefore
Judges/members whose stature and qualifications are commensurate to the NTT. It is not possible to accept a party to a litigation can participate in the
court from which the adjudicatory process has been transferred. This position selection pro."". whereby the chairperson and N{embers of the adjudicatory
is recognised the world over..... Constitutions on the Westminster model. The bod1. selected. This rvould also be violative of the^recognised constiiutional
*."
Indian Constitution is one such constitution. The position has been clearly convention recorded by Lord Diplock in Hinds cosezt, namely, that
it r*'ould
recorded while interpreting Constitutions framed on the above model, namely, *"k"'mockeryoftheConstitutiorr,ifthe.Iegislaturegouldtransferthe
that even though the legislature can transfer judicial power from a traditional ;,rrirai"tio' p.e.riously exercisable by holde-rs of judicial offices to 6olders of
"r (to wtrictr some different name was attached) and to
court to an analogous court/tribunal with a different name, the court/tribunal rr"*
to which such power is transferred should be possessed of the same salient that persons toiding the new judicial offices should not be appointed
provide "onrfTtribrrnal
chdracteristics, standards and parameters, as the court the power whereof was in the manner and on the terms prescribed for appointment of members of
being transferred. It is not possible for us to accept that Accountant l\'Iembers thejudicature.Forallthereasonsrecordedhereinabove,rr'eherebydeclare
.dnd Technical Members have the stature and qualification possessed by the Section 7 of the NTT Act, as unconstitutional'2e
Judges of High Courts.26
Section 8-
Section 7- it clearly
Insofar as the validity of Section 8 of the. NTT Act is concerned,
It should not have been forgotten that under the provisions of the Administrative emergesfromap"r.r*lthereofthataChiirperson/Memberisappointedto
'Tribunals Act, 1985, which came.up for consideration in L. Chandra Kumar NTT,inthefirstinstance,foradurationof5years.SuchChairperson/Member
first is eligible for reappointment for a further period of 5 years""
a provision for
case. the Tribunals constituted under the said Act, are to act like courts of independence of
..r-pflirrt-.ot would itself have the effect of undermining the
instance. All decisions of the Tribunal are amenable to challenge under Articles appointed to
226 /227 of the Constitution before a Division Bench of the jurisdictional tue bnairpe.son/Members of NTT. Every chairperson/Member
High Court. In such circumstances it is apparent, that tribunals under the NTTwouldbeconstrainedtodecidemattersinamannerthatwouldensure
decisions may
Administrative Tlibunals Act, 1985, were subservient to the jurisdictional High his reappointment in terms of Section 8 of the NTT Act' His
Courts. The manner of selection, as suggested in L. Chand,ra Kumar case o,*.ynotbebasedonhisindependentunderstanding.Wearesatisfiedtha,t
cannot therefore be a.dopted for a tribunal of the nature as NTT. Herein the theaboveprovisionwouldunderminetheindependenceandfairnessofthe
. acknowledged position is that NTT' has been constituted as a replacement ChairpersonandMembersofNTT.sinceNTThasbeenvestedwithjurisdiction
of High Courts. NTT is, therefore, in the real sense a tribunal substituting whichearlierlaywiththeHighCourts,inallmattersofappointment,and The reasons
the High Courts. The manner of appointment of Chairperson/l{embers to extension of tenure, must be shielded from executive involvement.
are exactly the same as have been expressed by us
NTT witl have to be by the same procedure (or by a similar procedure) for ourinstant conclusions
to that which is prevalent for appointment of the Judges of High courts. whiledealingwithSection5oftheNTTAct.WethereforeholdthatSection
Insofar as the instant aspect of the matter is concerned, the above proposition 8 of the NTT Act is unconstitutional'
was declared by this Court in tlnion of Ind'ia u. Madras Bar Assn'z7 , were illegal
wherein it was held that the stature of the Members who would constitute Thus the court concluded that the sections 5,6,7,8 and 13
conventions as
the tribunal, would depend on the jurisdiction which was being transferred and unconstitutional based on the recognized constitutional
and the parameters
to the tribunal. AccordinglS if the jurisdiction of the High courts is being developed in different nations on the westminister model
transferred to NTT. the stature of the Members of the tribunal had to be laid down bY the SuPreme Court'
akin to that of the Judges of High Courts. So also the conditions of service of
its Chairperson/Members, and the manner of their appointment and removal,
NarimanJ.dissentingintherationalebutconcurringonthedecisionmade
a distinction between the present case and the decision in R-
Gand'hi case'
including transfers. Including, the tenure of their appointments. that one specialised tribunal replaced
In the latter case the core issue was
Section 7 cannot even otherwise be considered to be constitutionally valid, another specialised tribunal (The company Law Board) at tle original stage'
since it includes in the process of selection and appointment of the Chairperson He asserted that in that case when the jurisdiction of the
High courts
and Members of NTT, Secretaries of Departments of the Central Government. and transferred to tribunals, the power of the High Court
were taken away

26. Ibid at Para 126-128. 28. Hinds a. R.,1977 AC 195'

27. (2OrO) 11 scc 1. 29. Supra note 24 Para 130-131
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li}iBiB
Independent RegulatorY
at the original and first appellate stage so
$,ere merely being supplanted
far as the company 'jurisdiction' is concerned and questions of fact had to Authorities - Ernerging
be determined afresh at the first appellate stage also. In the present case ll

the legal position is errtirely different as the pou'er of the High court was uhallenges
^.l

being suppl anted, bg a tribunal which wortld be decidi'ng only substantial

quest'ions of law.
The Court summarized the legal position of tribunalization in India as-
(i) Parliament has the power to enact legislation and to vest adjudicatory
functions earlier vested in the High Court $'ith an alternative
court / tribunal. Exercise of such power by Parliament would not per
se violate the "basic structure" of the Constitution'
(ii) Recognised constitritional conventions pertaining to the \A/estminster
model do not debar the legislating authority frorn enacting legislation
to vest adjudicatory functions earlier vested in a superior court with
an alternative court / tribunal. Exercise of such power by Parliament
would per se not violate any constitutional convention'
(iii) The ,,basic structure" of the Constitution will stand violated if while
enacting legislation pertaining to transfer of judicial power' Parliament
does not ensure that the newly created court / tribunal conforms with
the salient characteristics and standbrds of the court sought to be
substituted.
(iv) Constitutional conventions pertaining to the Constitutions styled on
the westminster rnodel will also stand breached, if.. while enacting
legislation, pertaining to transfer of judicial power, conventions and
salient characteristics of the court souglrt to be replaced are not
incorporated in the court/tribunal sought to be created'
company Secretaries are held ineligible for representing a party to an 8.1 INTRODUCTION
appeal before NTT.
Examined on the touchstone of conclusions (rizi) and (io) Sections 5, 6,
In a modern State governed by a democratic constitution the functions of the
on
Government are manifold. The Indian constitution imposes responsibility
7, 8 and 13 of the NTT Act, are held to be unconstitutional. since the and economic activities to ensure
the Government to perform various social
aforesaid provisions constitute the edifice of the NTT Act, and without
the well-being of the citizens. This increase in governmental functions
is
these provisions the remaining provisions are rendered ineffective and of the
accompanied $,ith more power and discretion in the hands
executive
inconsequential, the entire enactment is declared unconstitutional. The
branch of the Government, its various instrumentalities and agencies'
administration in India has assumed many responsibilities and porvers to
fulfil the socio-economic and welfare goals of the state. This role of the
state has been further reshaped in the post-liberal era. Emergence
of the
regulatory authorities to deal with specific areas of economic development
process'
aod go.r*rr.nce is a feature of post liberalization administrative
t,l|1
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were merely being supplanted at the original and first appellate stage so
Independent RegulatorY
far as the company 'jurisdiction' is concerned and questions of fact had to Authorities - Emerging
be determined afresh at the first appellate stage also. In the present case
the legal position is entirely different as the power of the High Court rvas Challen
being szpplanted by a tri.bunal which would be decid,ing only substantial
questions of law.
The Court summarized the legal position of tribunalization in India as-
(i) Parliament has the power to enact legislation and to. vest adjudicatory
functions earlier vested in the High Court *'ith an alternative
court/tribunal. Exercise of such power by Parliament would not per
se violate the "basic structure" of the Constitutioq.
' (ii) Recognised constitutional conventions pertaining to the \A/estminster
model do not debar the legislating authority from enacting legislation
to vest adjudicatory functions earlier vested in a superior court with
an alternative court/tribunal. Exercise of such power by Parliament
rvould per se not violate any constitutional convention.
(iii) The "basic structure" of the Constitution will stand violated if while
enacting legislation pertaining to transfer of judicial power, Parliament
does not ensure that the newly created court/tribunal conforms with
the salient characteristics and standards of the court sought to be
substituted.
(iv) Constitutional conventions pertaining to the Constitutions styled on
the Westminster model will..also stand breached, if while enacting
legislation, pertaining to transfei of judicial power, conventions and
salient characteristics of the court sought to be replaced are not
incorporated in the court/tribunal sought to be created.
Company Secretaries are held ineligible for representing a party to an 8.I INTRODUCTION
appeal before NTT.
Examined on the touchstone of Conclusions (iii.) and (io) Sections 5, 6, In a modern state governed b1' a democratic constitution the functions of the
on
7, 8 and 13 of the NTT Act, are held to be unconstitutional. Since the Government are manifold. The Indian Constitution imposes responsibility
the Government to perform various social and economic activities to ensure
aforesaid provisions constitute the edifice of the NTT Act, and without
these provisions the remaining provisions are rendered ineffective and the well-being of the citizens. This increase in governmental functions is
inconsequential, the entire enactment is declared unconstitutional. accompanied with more power and discretion in the hands of the executive
b.r.rch of the Government, its various instrumentalities and agencies' The
to
administration in India has assumed many responsibilities and powers
fulfil the socio-economic and welfare goals of the State. This role of the
State has been further reshaped in the post-liberal era. Emergence
of the
regulatory authorities to deal with specific areas of economic development
gorr".n.nce is a feature of post liberalization administrative process'
"rrd
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Textbook on Administratiae Laztt
l3!N
since 1990s there has been a paradigm shift in the functioning of the
state with regards to economic and financial matters of the country. The
pro-active role of the state has given way to the more market-friendlg
process in the econon'Ly. The role of the state has been translated to act as
a mechanism to rectify or modify the several imperfections existing in the
efficient functioning of the market-based economy. Direct state intervention
was replaced with a regulatory role with the specific task of putting in
place a proper market regulatory systern. Market Iibqralization has given
rise to new types of organizations referred to as the 'independent regulatory
authorities.' The primary function of these regulatory authorities is to ensure
simplification, transparency and expediency in the conduct of business. The
regulation of public utility services like telecommunications, electricity which
were previously within the exclusive domain of the government have been
Iiberalized and made subject to private competition, and these sectors are
being regulated by the independent authorities. At present a large number of
market regulatory agencies such as the Competition Commission and sectoral
regulators like the Telecom Regulatory Authority of India (TRAI), Electricity
Commission etc. have been set up to promote a predictable regulatory
enuironnlent and, parti.cipatory d,ecisi,on making. These regulators have
been entrusted with the functions of - balancing the conflicting interests,
promoting fair competition, facilitating investments, democratizing decision-
making process and ensuring the overall development of the sector etc'
8.2 BRIEF DESCRIPTION OF FEW INDEPENDENT REGULATORS
AUTHORITIES
8.2.1 Telecom Regularity Authority of India (TRAI)
Telecommunication service was a public utility service and was considered
to be of great strategic importance in promoting socio-economic progress
in the country. There were large varieties of telecommunication services
having immense potential for ensuring the economic growth of the country'
It was conscious realization of the State that the future of national growth
was largely dependent on the way in which the telecom infrastructure is
developed in'the country so as to promote the processing and transmission
of information without barriers. With this realization the Finance \'linister
in February 1993 in the budget speech announced the intention of the
Government to encourage private sector involvement and participation in
telecom to supplement efforts of Department of Telecommunications (DOT)
especially in creation of internationally competitive industry- On 13-5-1994
Natiooat Telecom policy was announced which was placed in Parliament with
the aim to supplement the effort of the DOT in providing telecommunications
services.
ndeP endent Regu latory Aut b oitic s - Emerging C b allenge s igli?l:'
Highlighting the objective of National Telecom Policy the Supreme court
in nimt Science Forum u. flnion of Indzar observed-
The special aspect about telecornmunications is interconnectivity n'hich is
knonn as ..an]- to an1. requirement". Because of the economic growth and
comrnercial changes in different parts of the rvorld, need for inter-connectivity
q'ith each other
means that comrnunication systerns have to be compatible
and have to be actually interconnected. Because of this, there is a demand
even in developing countries to have communication systen of international
of the system,
standards. Even after several decades of invention telephone
inalmostallcountriestelecommunicationswasthesubjectofmonopoly
zuppliedwitlrthepublicnet*,orkoperatorrrormallybeingtheState.owned
Co.^po."tiottorGo.rer.'.,,entDepartment'Thenitwasnotthoughtdueto
different considerations that such right could be granted to the
private sector
denudingtherightofmonopolyoftheGovernmenttomaintainandrrinthe
system of t"l""o**rrnications. The developed countries first took
decision in
.Lp".t of of amounted to giving up the claim
privatisation Telecom .which
of exclusive privilege over such sysiem and this led to the transition from
monopolytoaduopolypolicyinmany.countries.India.althoughadeveloping
country Lbo faced . in this sector. By and large it was realised that
"h.tlurrg"
this sector needed acceleration because of the adoption of liberalised economic
policyfortheeconomicgrowthofthecountry.Itappearsthatthepolicy_
makers were faced with the implications for public welfare vis-d-vis
the sector
being capital intensive. How the network is well maintained so as it reaches
the iargest number of people at a price to be paid by such users which
can
be held as reasonable? This issue was also interrelated with the defence and
national security of the nation. Different committees and bodies constituted
from time to time examined the Telecom policy which could be adopted by
the nation fronr different aspects and angles'
Under the policy it was deemed necessary to create an independent
regulatory authority to deal with different aspect of telecommunication
sei.,rices in India. It was advocated that the setting of an independent
Telecom Regulatory Authority of India would be in line with similar
initiatives made by other leading countries of the world as part of their
effort to privatize the telecommunication services. In the United Kingdom
under the Telecommunications Act, 1984 a Regulatory Authority had been
constituted to ensure that the telecommunications services rtere made
available throughout the country and to supervise all matters connected
therewith. The functional role of such authority was to promote the interests
of the consumers, purchasers and other users of telecommunication services
by regulating the price charged, quality of the services provided etc' and
alo to p.o-Lt. effective competition between the different players engaged
r. (1996) 2 scc 405
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t- IndePendent Regulatory Autborities - Emerging Cballenges 393''l'
1ry2 Textbook on Adrninistratioe Laza

in providing telecomrnunication services in UK. In United States the Federal
Communication Commission was created as a primary federal regulator of
the comrnunication industry by the communication Act, 1934. There are
six bureaus working under the Federal Comrnunication Commission dealing
with different aspects of telecommunication services. including decisions
and policies of the FCC. In Canada the Telecommunication Act 1993
-provides for creation of regulatory authorities to deal with different aspects
of implementation and supervision of the telecommunication services' Similar
sectoral regulatory authority had been set up in other countries including
Australia, France and Japan.
In India the Telecom Regulatory Authority of India Act 1996 was enacted
with the objective of establishing the Telecom Regulatory Authority of
India (TRAI) to regulate the telecornmunication services and for dealing
with aII matters connected therewith or incidental thereto. TRAI consists
of a chairperson and N{embers. Notwithstanding anything contained in
the Indian Telegraph Act, 1885, the primary functions of TRAI are to
ensurei technical compatibility and effective interrelationship between different
service providers, to ensure compliance of licence conditions by all service
:i,l
providers, to facilitate competition and promote efficiency in the operation
of telecommunication service's, to protect the interest of the consumers of
the telecommunication selvices, to levy fees at such rates and in respect of
such services as may be determined by regulations. Thus the core function
of independent TRAI is to supervise the functioning of different telecom
service providers and their activities.
Emphasizing the functional role of TRAI, the Supreme Court in Delhi
Science Forum u. [Jnion of Ind'ia2 observed-
The new Telecom policy is not only a commercial venture of the ceutral
Government, but the object of the policy is also to improve the service so
that the said service should reach the common man and should be within his
reach. The different licensees should not be left to implement the said Telecom
policy according to their perception. It has rightly been urged that while
implementing the Telecom policy the security aspect cannot be overlooked.
The existence of a Telecom Regulatory Authority with the appropriate powers
is essential for introduction of plurality in the Telecom sector. The National
Telecom Policy is a historic departure from the practice follorved during the
past century. since the private sector will have to contribute more to the
development of the telecom network than DoT/\4TNL in the next few years,
the role of an independent Telecom Regulatory Authority with appropriate
powers need not be impressed, which can harness the individual appetite
lor private gains, for social ends. The central Government and the Telecom
2. (1996) 2 scc 405.
Regulatory Authority have not to behave like sleeping trustees, but have to
function as active trustees ficr the public good.3
8.2.2 Electricity Regulatory Commission
The Indian Electricity Act, 1910 u'as enacted for ttre purpose of generation.
transmission and supply of electricity. The 1948 Act was framed with the
objective of rationalizing the provisions relating to supply of electricity and to
take measures conducive to electrical development. The Electricity Act, 2003
was i'troduced. for the purpose of "generation' transmission, distribution,
trading and use of electricity and generally for taking measures conducive to
development of electricity industry, promoting competition therein' protecting
interesl of consumels and supply of .electricity to all areas, rationalization of
electricity tariff, ensuring transparent policies regarding subsidies, promotion
of efficient and envilonmentally benign policies, Constitution of Central
Electricity Authority Regulatory Commissions and establishment of Appellate
Tlibunal and for matters connected therewith or incidental thereto'" The
Electricity Commission under the statute has been constituted as a high
pourer erpert comrnittee with autonolnous authority and is eapected to
function ind,epend.entty.4 Tlne primary function of the Commission
is to
promote competition, efficiency and economy in the activities of the electricity
industries in the country. The lf4ission statements of the Commission are-
,,The commission intends to promote competition; efficiency and economy
in bulk power markets, improve the quality of supply, 'promote investments
and advise government on the removal of institutional birrriers to bridgb'the'
demand .rrplty gap and thus foster the interests of co'sumers. In pursuit of
these objectives the Commission aims to-
(i) the operations and managelnent of the regional transmission
" Improvethrough
Indian Electricity Grid Code (ItrGC), Availability Based
"yr1.*"
Tariff (ABT), etc.
(ii) Formulate an efficienttariff setting mechanism, which ensures speedy and
time bound disposal of tariff petitions, promotes competition, economy
and efficiency in the pricing of bulk power and transmission services
and ensures least cost in'estments'
(iii) Facilitate open access in inter-state transmission
(i") Facilitate inter-state trading
(v) Promote development of power market
(.rD Improve access to information for all stakeholders'
3. Id at Para 31.
4. W.B. Electricity Regulatory Comrnission u CESC Ltd., (2002) 8 scc 7r5.
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Textbook on Administratiae Lazo
(vii) Facilitate technological and institutional changes required for thc
developnrent of competitive markets in bulk power and transtnission
services.t'5
(r'iii) Advise on the removal of barriers to entry and exit for capital and
managernent, q'ithin the limits of environmental' safety and security
concerns and the existing legislative requirements' as the first
step to
the creation of competitive markets'
8.2.3 Insurance Regutatory and Development' Authority
of India
The Insurance Regulatory Development Authority Aat, 1999 was enacted for
the purpose of establishing an independent regulatory authority for regulating
the insurance sector in India. Traditionally with the passing of the General
Insurance Business (Nationalization) Act L972 the insurance business was
nationalized.in India. Life Insurance corporation was the singular insurance
provider in the country dealing with the life insurance sector. Based on the
recommendations madl by the R.N. Malhotra Committee the IRDA
was
constituted as an autonomous body to regulate and develop the insurance
industry. The 1999 enactment private players were allowed entry into the
ios,rr.ri"u sector. The Insurance Regulatory and Development Authority
of India (IRDAI) was constituted in 2000 and its primary objectiveandis
,to prote,,t the interests of the poli,cy hold,ers, to regulate, promote
orderlg' growth of tie.insurance ind.ustry and for matters connected
theretaith or inc'id'entit tniibib.'6 Th" IRDA has the power to make
"rriru
regulations relating to insurers, insurance intermediaries, surveyors and
third
party administrators for the purpose of smooth functioning of the insurance
sector. It is also required to protect the interest of the policy holders.
The
I\4ission Statement of the Authority is as follows-
(1) To protect the interest of and secure fair treatment to policyholders;
(2) To bring about speedy and orderly growth of the insurance industry
(including annuity and superannuation payments), for the benefit of
tlre commo., *u',., and to provide long term funds for accelerating
grorvth of the economy;
(3) To set, promote, monitor and enforce high standards of integrity, financial
soundness, fair dealing and competence of those it regulates;
(a)Toensurespeedysettlementofgenuineclaims,topreventinsurance
fraudsandothermalpracticesandputinplaceeffectivegrievance
redressal machinerY;
5. lrttp: //u'ww.cercind. gov'in/Mission'htInl'
6. https://rvwrv.irda.gov.in/Defaulthome'aspx?page:H1
I
IndePendent Reguhtory Autborities - Emerging Challenges 39!i'l' '
(5) To promote fairness, transparency and orderly conduct in financial
markets dealing with insurance and build a reliable management
information system to enforce high standards of financial soundness
amongst market PlaYers;
(6) To take action rvhere such standards are inadequate or ineffectivell'
enforced;
(7) To bring about optimum amount of self-regulation in day-to-day
working of the industry consistent with the requirements of prudential
regulation.
In United, Ind,ia Insurance co. Ltd. u. Manubhai Dharmasinhbhai
GajeraT the Court made the following observation-
The functions of the insurance companies are governed by statute. A contract
of insurance, therefore, must subserve the statutory provisions. It must
indisputably be construed having regard to the larger public policy and public
interest guiding nationalisation of the insurance companies'
. Insurance sector is regulated. The provisions of the Insurance Act are applicable
to aII insurance companies irrespective of the fact as to whether they are in
public sect6r or private sector. When a business is regulated, all concerned
would be governed therebY.
It is one thing to say that the terms and conditions of a contract are statutory
in nature but it is another thing to say that the statute governs or controls the
business itself. It is the Iatter which is applicable to the fact of the case.
TWo things are apparent. One, the Central Government has come out with a
new economic policy. The monopoly status has been taken away from General
Insurance Corporation of India and its subsidiaries. The insurance companies are
required to compete $'ith others in the field, but the same may not necessarily
mean that despite the statutory interdicts the public sector insurance companies
must have a level playing field with the private insurance companies.
we have, despite the new economic policy of the centre, no option but to
proceed on the assumption that the public sector insurance companies being
Stu,tu h.rr" a different role to play. It is not to say that as a matter of policy,
statutory or otherwise, the insurance companies are bound to regulate all
crntracts of insurance having the statement of directive principles in mind but
there cannot be any doubt u'hatsoever that fairness or reasonableness on the
part of the insurance companies must appear in all of its dealings'
The Authority wants the insurance companies to offer a fair deal and all
the terms and conditions of their offer must be transparent. There should
not be any hidden agenda. Even they should not take recourse to "ticketing
contract"- when, ho*ever, the terms of the new product or revised product
7. (2008) 10 SCC 404.
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would mcan that excessive proliferationof tribunals etc. Thus the regulatory environment in
require the approval of the Authority, prima facie' the same
they are fair and reasonable' The action on the part of the AuthoritY is not India is faced with several challenges due to lack of financial, organizational
in question. Regulatiorls, guidelines and circulars arc binding,lt*,'nt insurance and decisional autonomy and the same shogld be resolved by maintaining a
cornpanies. lsee State of Kerala u' Kuriatt Abrahatn (r) Ltd' I judicious balance between atttonomv, accountability and transparency. Some
of the major challenges are-

-8.3 PRESENT CHALLENGES (i) Jurisdictional conflict between the Line Ministry and the
with the Regulatory Authorities
In the present context the different regulatory authorities are.faced
challenge of performing their functions of forrnulation and implementation
"resorution There have been iircidents of conflict on policy issues betu'een the DOT
of policies, including of any disputes by complying with the and TRAI on matters relating to tariff fixation or between the lMinistry of
According to power and the ERCs regarding the scope of their functions. It is necessary
norms of fairness, ef?ciency' accountability and transparency'
several studies the regulatory authorities in India function in an unregulated
to charter out a tiroper demarcation of power, functions and responsibilities
environment *-ith thl absence of adequate bccountability and supervisory
betu,een t[e line rninistry and the regulatory authorities as well as establish
mechanisms,lackoffunctionalclaritybetweenthedifferentsectoral the relationship status betrveen the two.
inadequate
procedures'
regulators, absence of proper selection and appointing
organizational structure etc' (ii) tnconsistencies in the Functioning Approaches and Poticy
corporation
The report of the world Bank and the International Finance Goals of Different Sectors
,,Doing Doing business in a very Transparent world"
titled Business 2012:
The The different regulators dealing with various sectors have been conferred with
has ranked India at a low of 132 amongst a sample of
1g3 countries.
different policy goals and functional domain which may conflict with the
reporttookadiScouragingviewoftheexistingregulatory.frameworkand progress of functioning of other regulators. The scope of functioning of ERCs is wide and
highlighted the shortcotings which are hindering the economic deals with issues relating to investment and growth, advise the government
of India appointed
the country. As a response to this report the Government for on policy matters as well as adjudicate on sectoral competition issues like
Environment
the Damodu,.rn Co.ri*ittee for Reforming the Regulatory
abuse of market dominance etc. which conflict with the functioning of the
Doing Business in India (2013) to study the Indian regulatorY'environment "".CCI. It is necesSary to bring clarity into the functional scope of different
andmakesuitablerecommendations.-Th"Co*-itteeinitsreporthad adequate thought regulators and achieve unanimity in terms of powers and authorities enjoyed
observed ,,Before setting up a new regulatorg organization. by the different regulators.
jo' an organization and the ability to man
should, go into the neJd' 'uch
'i,t appropriately and,,t"i it wi'th functional autonomy'"
It had identified
of the regulatory (iii) Ambiguity in the Meaning of 'Policy Directives'
a number of factors which are affecting the functioning
authorities such as - plethora of Central and State
government laws and under the parliamentary scheme of things the executive along with the
regulations go',r"rrrirrg tie functioning of the regulatory authorities and dealing legislature has the task of framing policies. But the regulatory authorities
with the conduct of Lusiness in India; absence of adequate functional
mandate need to be granted necessary autonomy for the purpose of performing
of the different sectoral regulators; absence of transparency and autonomy in their functions. The ministries should not try to unnecessary intervene in
appointment procedures: llck of procedural uniformity in the policy making the functions of the regulators by Lssuing policy directive- The relationship
process;absenceofaregulatoryreviewcommittee,lackofself-evaluation between the different executive authorities needs to be established to maintain
procedures and norms of accountability etc. In addition the
Indian regulators administrative efficiencY.
like lack of jurisdictional clarity between the line
are faced with issues
rninistry and the regulatory authorities, inconsistencies in
the functioning (iv) Appointment of Experts and Competent Professionals
regulators, absence
procedures and core f,ohcy goals of the different sectoral There have been many criticisms against the appointment procedures of
offinancialautonomy,inadequacyintheparliamentarycontrolmechanism' the members of these regulatory authorities. Appointment of forrner judges

8. (2008) 3 scc 582

 .l
Textbook on Administratizte Latt;

commission (Procedure'
affected the constitutionality of the central Electricity Regulatory
and retired bureaucrats in place of professionals has adversely
functioning of these bodies and affected their credibility.e
TermsandConditions.forGrarrtofTradirrgLicenseandOtherRelated
Matters)Regulations,zso+werechallengedbytheappellantsontheground function'
delegation. The court applied the 'essential legislative
(v) Financial AutonomY of
"*""".i.rr"
i"rt to hold sincl Regulation 6-4 createdi1substanti.e right. obligations and
their
The regulators should be granted financial autonomy to reduce The IRDA disabilities *'hich werJ not conternplated the parent statute i'e' Electricit-v*
dependence on the ministries and ensure functional autonomy- .Act 2003, they were held to ultra vires to the constitution as well as the
and SEBI have been a.Ilowed to raise revenue by sharing a
part of the license general rule-making power
pu,r".rt statute. It was further clarified that the
fee, similar provisions should be made for other regulators as
well' Iio, out the purpose of the Act" cannot be the basis of creating
"rrryirrgrights. ouiigriiorr, .and disabilities. The court equated such
.substantive
(vi) AccountabilitY of rule-making by the Commission as Henry VIII clause'
of the "or"i..
There is no established mechanism to ensure the accountability
regulatory authorities. Efforts should be made to set up proper mechanisms (ii) Exercise of Discretionary Powers
are bound by the
of regulatory accountabilitY. In exercise of discretionary power the regulatory b-odies
orinciples of fairness and reasonableness. In Delhi science Forum u' union
(vii) Parliamentary Control ;;";;;:;;; ,t .,"a" held that the central Go'u'ernment while exercising its
maintenance and
some of the authorities are required to submit their annual
report to the siatutory power of granting licences for establishment,
as well. The regulatory
working of t"l""o**rLrications has a fiduciary duty
rI.
depth analysis'
t- Parliament. Parliament does not have much time to conduct in
Theparliamentarycontroliserpostanalysis'Alternativemechanismsneed authoritiesareboundtoadheretothenolmslaiddownbycourtsforexercise
of a statutory discretion' It cannot be erercised in a
I. m'anrler which can
to be established to eValuate the functioning of these bodies' in administratiae law as
be held, to be unlawful and, which is noul known
Ltd.
Wed,nesburg pr,i'nciple, s.tated, in Associateil Prouincial Pi'cture Houses
8.4APPL|CAT|oNoFTHEPRING|PLESoFADM|N|STRAT|VE
a. wed,nesbury corpn.r2 The aforesaid principle is attract_ed where it is
LAW FOR THE PURPOSE OF REGULATING IRAS the d,iscretion has taken a d.ecision
shown that an autiority eaercising
tmrcn 'is d'eaoid, of any plausible justification' and any authmitg
is the haaing
Maintaining a judicious balance between autonomy and accountability grant if the
key to ensure the effective working of the IRAs. It is necessary to reasonable persons ,ot haue taken the said dec'i.sion- Even
"oirti
statutesdonotexpresslylaydorvnthespecificconditionsfortheexerciseof
autonomytotheregulatoryauthoritiestoimplementthepolicyofthestate the observation made
within the identifiei parameters and at the same time the regulators
should
discretionary power, the auihorities will be bound by
London Councill3
be made accountable for their actions The application of the principles by Lord Diplock in the case of Bromleg LBC u' Gieater
a crucial general level and structure
of Administrative law and the process of judicial review holds if *ts said ty - "Powers to direct or approve'the
key in regulating and maintaining functional autonomy of the regulatory offarestobechargedbytheLTtrfortlrecarriageofpassengersonits
on the transport system, titttorrgi unqualified by any express words
in the Act'
authorities on one hand and abiding by the norms of accountability
other hand. maynonethelessbe"ubl-e.ttoimplied.limitationswhenexpressedtobe
exercisable by a local authority such as the GLC"""
(i) Excessive Delegation of Rule-making Power to fulfil the
The IRAs are required to exercise their powers in a manner
objective of public welfare and interest of the nation'
The rule-making powers granted to the regulatory authorities are
bound
by the principles of constitlionality of delegj.ted legislations- In the case of
Cornmissionll the
GIobaI Energy L,im.ited a. Central Electriciig Regulatury
l1- (1996) 2 scc 405.
12. (Ls47) 2 All ER 680 : (1948) | KB 223'
ffiAutonomyandAccountability'IssuesforParliamentarians' 13. i1982) 1 All ER 129 : (1982) 2 wLR 62 : (1983) 1 AC 768'
January 2005.
r0. (2009) 15 scc 57o

I IndePendent Reguktory Asthoritics
Textbook on Administrative Law
llI{XJ
(iii) Grant of Licence
If a statute confers power on a IRA to grant licences then the authority
is bound to comply with the norms of fairness, reasonableness and non-
arbitrariness. In GlobaI Energg Ltd.. u. Central Electrici.ty Regulatory
Commissionu it rvas held that "\\ihen a disqualification is provided, it is
to operate at the threshold in respect of the players in the field of trading
in electricity. When, however, a regulatory statute is sought to be enforced,
the power of the authority to impose restrictions and conditions must be
construed having regard to the purpose and object it seeks to achieve.
Dealing in any manner with generation, distribution and supply and trading
in electrical energy is vital for the economy of the country. The private
players who are permitted or u'ho are granted licence in this behalf may
have to satisfy the conditions imposed. No doubt, such conditions must
be reasonable. Concededly, the doctrine of proportionality may have to be
invoked."
(iv) Compliance with Principles of Natural Justice
The regulatory authorities, like other forms of administrative bodies, are
bound by the principles of natural. justice in performance of quasi-judicial
functions. In (Jnion of Ind.ia u. Tata Teleseru'ices (Maharashtra) Ltd.r5 it
was held that the TDSAT was bound to frame their procedural rules based
on the principles of natural justice.
(v) Allocation of Natural Resources
In the leading case of Centre for Public Interest Liti,gation u. Union oJ
Ind,iaro the Supreme Court was extremely critical of the criteria adopted
for the allocation of 2G spectrum and the pricing methodology. It was
highlighted that TRAI had failed to perform their functions in accordance
with the objectives of the National Telecom Policy 1999.
To say the least, the entire approach adopted by TRAI was lopsided
and contrary to the decision taken by the Council of l\Iinisters and its
recommendations became a handle for the then Nfinister of Comrnunications
and Information Technology and the officers of DoT u'ho virtualll' gifted au'ay
the important national asset at throw-away prices by wilfully ignoring the
concerns raised from various quarters including the Prime Ivlinister, I\{inistry
ri of Finance and also some of its own officers. This becomes clear from the fact
that soon after obtaining the licences, some of the beneficiaries offloaded their
14. (2009) 15 SCC 570, para 38.
15. (2007) 7 scc 517.
16. (2012) 3 SCC 1.
I
- Emerging Cballenges 4Ot4 t
stakes to others in the name of transfer of equity or infusion of fresh capital
by foreign companies, and thereby made huge profits. We have no doubt that
if the method of auction had been ddopted for grant of licence which could
be the only rational transparent method for distribution of national wealth,
the nation would have been enriched by many thousand ctote"'tt
that-
It u,as emphatically ernphasised
while it cannot be denied that TRAI is an erpert body assigned with
important functions under the 1997 Act, it cannot make recommendations
overlooking the basic constitutional postulates. and established principles and
thereby ae-ny tire people from participating in the distribution of national
wealth
even though the scope of judicial
and benefit.a handful of persons. Therefore,
review in such matters is extremely limited, as pointed out in Delhi science
Forurn u. [Jnion of India [(1996) 2 scc 405] and a large number of other
judgmentS relied upon by the learned counsel for the respondents, keeping in
.'i"i ttt" facts which have been brought to the notice of the' Court that the
mechanism evolved by TRAI for allocation of spectrurn and the methodology
adopted by the then I\'Iinister of communications and_Information Technology
and the oifi""r" of DoT for grant of UAS licences may have caused huge loss
to
the nation, we have no hesitation to record a finding that the recommendations
made by TRAI were flawed in many respects and implernentation thereof
by
DoT resulted. in gross violation of the objective of the NTP' 1999 and the
decision taken by the Council of N4inisters on 3l-10-2003'':
(vi) Relationship between lRA and the Ministry
speaking on the relationship between TRAI, as the legulatory body for""'
the telecommunications sector in India and the Government of India, the
Supreme Court \n Auishek Goenka a. [Inion of Ind,iaLe held that the
guidelines and frame regulations and
-irri"try had responsibility to issue with TRAI, to ensure coordination,
conditions of licence, in consultation
standardisation and compliance with the regulations' as well as protecting
the security interests of the country'
In terms of section 11 of the Telecom Regulatory Authority of India Act, 1997
it is a statutory obligation upon TRAI to recommend a regulatory regime promote
which u,ill serve the purpose of der.elopment, facilitate competition and
efiiciency, nhile taking due precautions in regard to safetl'of the people at
larg" and various other aspects of subscriber verification. Similarly, DoT is
reslonsible for discharging its functions and duties as, ultimately, it is
the
responsibility of the Go-verirment to provide for the safety of its citizens'
TR'AI
17. Id. Para 91.
18. Supra note 16 Para 92
19. (2012) 5 scc 275.

Textboob on Administratioe Laza
has to regulate the interests of tclecom service providers and subscribers) so
as to perrnit and ensure orderly growth of telecom sector. The Governrnent
of India and TRAI, both, have to attain this delicate balance of interests bv
providing relevant instructions or guidelines in a timely manner and ensuring
their implementation in accordance .rvith larr.z0
IRAs are expert bodies and their primary function is to make
recommendation to the Government on various crucial issues relating to
the development and proper functioning of the sectors. In Auishek Goenka
u. (Jnion oJ India2t it was observed that
If one examines the powers and functions of TRAI, as postulated under
Section 11 of the Act, it is clear that TRAI would not only recommend, to
DoT, the terms and conditions upon which a licence is granted to a service
provider but has to also ensure compliance rvith the same and may recommend
revocation of licence in the event of non-compliance with the regulations' It
has to perform very objectively one of its main functions i.e. to facilitate
competition and promote efficiency in the operation of the telecommunication
so as to facilitate growth in such services. It is expected of this
""r,oi".",
regulatory authority to monitor the quality of service and even conduct
. periodical survey to ensure proper implementation.
ln Cellular Operators Assn. of Indta u. (Jnion of Ind,ia22 it was clarified
that TRAI'5 recommendations have to be given weightage because TRAI was
a specialised body and if the Central Government rejected the recommendation
of TRAI, it has to be based on logical and concrete reasoning'
(vii) Resolving Conflict between IRA and the Ministry
The judiciary has recognized that under the statutory sc[emes there are
multiple authorities dealing with the efficient working and growth of a sectoral
area. In case of conflict between these authorities on poli.y issues and other
administrative instructions it is important that the various authorities should
resolve the crisis through mutual discussions and deliberations. In Auishek
Goenha u. [Jnion of India2s the Court held that-
[T]here are certain points on which there is a difference of opinion
betu'een
DoT and TRAI. This limited divergence is required to be resolved b3- further
clarification and issuance of more specific instructions.....Proper deliberation
between the stakeholders possessed of technical know-how can resolve such
issues usefully and effectivelY.
20. Id.
2r. (2oL2) 5 scc 275.
22. (2003) 3 scc 186.
23. Supra note 21.
I
IndependentReSu|^atoryAuthorities_EmergingCballenSes4oSI
The abovementioned points of divergence between TRAI and DoT are matters
which will have serious ramifications not only vis-d-vis the regulatory atrttrorities
and the licensees but also on the subscribers and the entire country' These
aspects demand serious deliberation at the hands of the technical experts. It
will not be appropriate for this Court to examine these technical aspects, as
such matters are better left in the dornain of the statutorv or expert bodies
created for that PurPose-
8.5 LIMITED SCOPE OF JUDICIAL REVIEW
ln Auishek Goenka u. (Jnion of Indi:a2a it was clarified by the Court
in unequivocal terms that in dealing with policy matters of extremely
technical nature the IRAs should be considered as expert authorities and
the judiciarl' should restrain thernselve's from acting as an appellate authority
in determining the merits of the policies'
The concept of ..regulatory regime" has to be understood and applied by the
courts, o,iihin the framework of law, but not by substituting their orvn views,
for the views of the expert bodies like an appellaie court. The regulatory
regime is expected to fully regulate and control activities in all spheres to
which the particular law relates'
we have clearly stated that it is not for this court to examine the merit or
otherwise of such policy and regulatory matters which have been determined
by
expert bodies having possessing requisite technical know-how and are statutory
in nature. However, the Court would step in and dirdct the technical bodies
to the matter in accordance with law, u'hile ensuring that public.-.
consider
interestissafeguardedandarbitrarydecisionsdonotprevail''o
Some divergence on certain specific issues of the regulatory regime has
been
projected in the instructions and comments filed by TRAI and DoI' They
need to be resolved but, in absence of an1' technical know-how or expertise
being available with this court, it I'ill not be appropriate to decide. by a
judicial dictum, as to which of the vie$,s expressed by these high-powered
todies rvo*ld be more beneficial to the regulatory regime and will prove more
effectir-e in advancing the public interest. Essentially this should be left
to be
clarified and the disputes be resolved by the expert bodies themselves.
It is a settled canon of larr that in a regulatorl' regirne. the terrns andis
conditioDs imposed thereunder should be unambiguous and certain- It
expected that the authorities concerned would enforce the regulatory regime
wiih exactitude. Therefore, it is not only desirable but also imperative that
24. Ibid.
25. ld.. Para 2l-22.
 Textbook on Adtninistratiae Lato

TRAI and DoT seriously cogitate on the issues where divergence has becn
Civil Servants: Doctrine of
expressed between t[em an<l bring unanimity in the tertns and conditions of
licences rvhich would form an integral part of the instructions dated l4-3-
Pleasure and Constitutional
2011.26
guards
The Court recoltlrlended for thc constitution of a Joint Expert Comrnittee
consisting of two experts from TRAI alld tlvo experts from DoT to be chaired
by the Secretary, \,Iinistr1. of Commulicatiols and Infonnation Technology,
Government of India to discuss and resolve the various qonflicting issues.

8.6 APPEAL TO THE HIGHER JUDICIARY

The appellate power of the higher judiciary as provided under the specific
statutes is unlirnited. But the judiciarl' exercises self-restraint in exercising
their power in light of the functional expertise of the different IRAs. In
W.B. Electricity Regulatory Commiss,ion u. CESC Ltd27 while dealing i :.:t.
q,'ith the power of appeal to the High Court the Suprerne Court held that
the appellate pou)er of the High court statutorily 'is not hedged in by any
restriction, but in our opinion, the High cou,rt rnerely because it has
unrestricted appellate pou)er, should not interfere ui,th the cons'idered order
of the comm,ission unless it is satisfied that the order of the commission
is peruerse, not based, on euidence or on misreading of euidence, keeping
in mind the Jact that the cornmission is an erpe-rt body. similarly in
CeIIuIar Operators Assn. of Ind.ia u. (Jnion of Ind,ia2g it was held that an
appeal under section 18 of the TRAI Act before the supreme court has
to be confined to only substantial questions of lar,l' which arise out of the
order of the Tribunal.
Civil Servants in India
SUMMATION
The constitution of India has not defined the term 'civil servants" except
Independent Regulatory Authorities are a phenomenon of the 21"t century and for the reference made in Entry 70 of List I and Entry 41 of List II of the
a coruequence of the regulatory functions of the state. In order to ensure the Seventh Schedule of the constitution. c)ne of the important challenges for
purposc
efficiency of these bodies in performing their function it is necessary to confer the judiciary has been to identify who are the civil servants for the
them with necessary autonomy but at the same it is important to ensure of application of the constitutional safeguards. The supreme court ir uni.on
has described Civil servants as persons who are
that these bodies are bound by the norms of administrative accountability of Ind,ia u. Tuls'irarn Patell
so that they effectively fulfill their statutory obligations. members of a ci,t,il seruice of the (Jnion of Ind'ia or arl all-India seru'ice
or a ciu,il ser-uice of a state or who h.old a ciuil post und'er the union or
a State, occupy i'n law a special posit'ion''
of
The employment of civil sen'ants is not governed by the ordinarY laws
which
master and servant relationship. The traditional 'contract of service'
26. Id.
27. (2oo2) 8 SCC 715. 1. (1985) 3 SCC 398 : AIR 1985 SC 1416

28. (2003) 3 SCC 186. 2. Id.

il
I
Textbooh on Administratiae Laut
generally governs terms of employment does not have any applicatiotr for
the civil servants. The nature and character of service of the civil servants
in India have been modelled on the British system aud is fundamentally
governed by the ,doctrine of pleasure'. In England the appointment of the
civil servants are rnade at the pleasure of the Crorvn rthich is referred to
as d,urante hem placito ("during good pleasure" or "during the pleasure of
the appointor") and not under the concept of dum bene se gesserit (during
good conduct).
The Supreme Court in several of its decisions have described and analyzed
the concept of the doctrine of pleasure.
In the leading case of Uni.on of Ind.ia u. Tuls'iram Patels the Court referred
to the doctrine of pleasure and observed
When a person holds office during the pleasure of the Crown, his appointment
can be terminated at any time without assigning cause. The exercise of
pleasure by the Crown can, however, be restricted by legislation enacted by
Parliament because in the united Kingdom Parliament is sovereign and has
the right to make or'unmake any Iaw whatever and all that a court of law
can do with an Act passed by Parliament is to interpret its meaning but not
to set it aside or declare it void. Blackstone in his Commentaries has thus
described the unlimited legislative authority of Parliament (1 Bl.' Comm' pp'
160, 161):
.,It has sovereign and uncontrollable authority in the making, confirming,
enlarging, restraining, abrogating, repealing, reviving, and expounding of laws,
concerning matters of all possible denominations, ecclesiastical or temporal.
civil, military, maritime, or criminal: this being the place where that absolute
despotic por-er, which must in all governments reside somewhere, is entrusted
by the constitution of these kingdoms. All mischiefs and grievances, operations
and remedies, thb.t transcend the ordinary course of the larvs, are within
the reach of this extraordinary tribunal. It can regulate or neu-model the
succession to the crown; as was done in the reign of Henry VIII. and william
III. It can alter the established religion of the land; as was done in a variety
of instances, in the reigns of king Henry VIII and his three children. It
can change and create afresh even the constitution of the kingdom and of
parliaments themselves; as was done by the act of union, and the several
statufes for triennial and septennial elections. It can, in short, do everything
that is not naturally impossible; and therefore some have not scrupled to call
its power, by a figure rather too bold, the omnipotence of Parliament. True
it is, that what the Parliarnent do, no authority upon earth can undo."
In the leading case of Moti' Ram Deka u. G.M., North East Front'ier
Rlg,4 Subba Rao J. obserued, "Under the Engli'sh law, all seraants of the
3. Supra note 1 Id.
4. (1964) 5 SCR 683 : AIR 1964 SC 600'
I
- Ciztil Sentants: Doctrine of Pleasure and Constitutional Safeguards 4O7 |
croun hold, office d,uring the pleasure of the croun. The right to dismiss
at pLeo,sure ,isan impl,ied term 'in euery contract of ernployment under the
crown. This tloctrine is not based upon any prerogatiue of the crown but
on public policy. If the terms of appointment definitelg prescribe a tenure
lor good behat:,iour or erpressly prouide for a pou'er to determine for'a
'cause,
such an impli,cation of a pouer to dismiss at pleasure is etcluiled.
and, an Act of Parl'iament can abrogate or amend the said d,octrine of
public policy in the sam.e way as it can do in respect of any other part of
-co1rlmon
law.5 In recent times years the terms of service for civil Servants
in England have improved with enactment of statutes which' has enabled
the civil servants to bring legal actions in case of unfair dismissal or sue
for breach of conditions of service. But the civil servant cannot insist on
continuing his service becaus6 his employment his based on'the pleasure. of
the Crovi'n and he can merely demand for damages.
In B.P. Singhal u. (Jnion of Ind'ia6 the Supreme Court had elaborately
discussed the application and object of the doctrine of pleasure and
observed-
There is a distinction between the doctrine of pleasure as it existed in a feudal
set-up and the doctrine of pleasure in a democracy governed by the rule of
law. In a nineteenth century feudal set-up unfettered power and discretion of
the Crown was not an alien concept. However, in a democracy governed by
the rule of law, where arbitrariness in any form is eschewed, no Government
or authority has the right to do what it pleases. The doctrine of pleasure
does not mean a licence to act arbitrarily, capriciously or whimsically. It is
presumed that discretionary powers conferred in absolute and unfettered terms
on any public authoritl'*.ill nec'essarily and obviously be exercised reasonably
and for the public good.
***
The doctrine of pleasure as originally envisaged in England $'as a prerogative
power which was unfettered. It meant that the holder of an office under
pleasure could be removed at any tirne, without notice, rvithout assigning
cause, and without there being a need for any cause. But where the rule
of law prevails, there is nothing like unfettered discretion or unaccountable
action. The degree of need for reason may var]'. The degree of scrutiny during
judicial revierv may l'ar)-. But the need for reason exists. As a result rvhen
the Constitution of India provides that some offices will be held during the
pleasure of the President, without any express limitations or restrictions, it
should however necessarily be read as being subject to the 'fundamentals of
constitutionalism'- Therefore in a constitutional set-up, when an office is held
during the pleasure of any authority, and if no limitations or restrictions are
5. Id at para 64 (1964) 5 SCR 683. Para 64.
6. (2010) 6 SCC 331.
 t1-

I
I ch)il servants. Doctrine of Pledsure und constitutional safeSuards 4O9 t
l4og Textbooh on Adminis*atfue L4@

office. d.uring His Majesty's pleasure, and mav be employed in any manner
placedorrt}re.atpleasure,doctrirre.itmeansthattheholderoftheoffice required by a proper authority within the scope of his duty but no person
canberemovedbytheauthorityatwhosepleasurelreholdsoffice,atany in that service may be dismissed by any authority subordinate to that by
time, without notice and without assigning any cause' which he was appointed. and the Secretary of State in Council may (except
Thedoctrineofpleasure.horvever.isnotalicencetoactwithunfettered so far as he ma1'provide b1'rules to the.contrarl') reinstate any person in
-- discretiontoactarbitrarily,rvlrinrsically,orcapriciously.Itdoesnotdispense that service who has been dismissed.
withtlreneedforacauseforwithdrawalofthepleasure.Inotherwords'
.atpleasure,doctrineenablestheremovalofapersonholdingofficeatthe If any such person appointed by the Secretary of State in Council thinks
without any obligation to give any notice trimseu wronged by an order of an official superior in a governor's province'
J;;"." of an authority, summarily, and without any obligation to assign any and on due application made to that superior does not receive thc redress
or hearing to the person removed,
orrvithdrawal .of-pleasure' The to which he may consider himself entitled, he may, without prejudice to any
reasons or disclose any cause for the removal, other right of redress, complain to the governor of the province in order to
withdrawalofpleasurecannotbeatthesweetwill,whimandfancyofthe obtain justice, and the gol'ernor is hereby directed to examine such complaint
authority, but can only be for valid reasons-"7 and require such action to be taken thereon as may appear to him to be
In the recbnt decision of (Jnion of Ind'i'a u' S'P' Sharmas
Supreme Court just and equitable.
further d,octrine" is a const'i'tuti'onal
-ir--in. recognized the "Ttleasure in d.ismissing those seruants whose
necess'ity'
,"oiol,, that tie d,ifficulty Thus for the first time the service conditions of the civil servants
categorically stated tirat euerg person i,n the ciail seruice of the Crown
'in
tttould, in case necessity
continuanee in .office is detrimental to the state ,,duTing His Majesty',s pleasure". But there were three
nan neta ofilce
arisestoproaesomeoffencetothesatisJactionofthecourt,besuchas
it also clarified major safeguards provided within the provision -
to seriously imped,e th-i working of pubti.c seruice.e But
thatillegalitg,irrationalityand,proceduralnon-compliancearegrounds
-tn (1) a civil servant could not be dismissed by any authority subordinate to
,m"ln iuilclol reuiew ds permissible'lo that by which he was aPPointed;
(2) lhe Secretary of State in Council had the power' unless he- provided to
g.2APPo|NTMENT,TERMSANDcoND|T|oNsoFSERV|CE|N ih" in the rules, to reinstate any person in service who had been
)tir
i': I BRITISH INDIA "oot."ry
dismissed; and
a civil servant appointed by the Secretary of State in Council thought
The modern day dmergence of ciVil'servants in India if
fundamentally owes (3)
himself wronged by an order of an official superior in a Governor's Province
i r- to the East india Company and the British rule' Thealso crown as
and on due application made to that superior did not receive the redress
well".ist"
as the company had the power to appoint a persgn
and could
subsequently by the end of to which he considered himself entitled, he could, without prejudice to any
remove or dismiss them at their own pleasure. in India
.other right of redress, complain to the Governor of the Province in order to
nineteenth century a well-structured civil service
had developed
obtain justice and the Governor had to examine such complaint and require
*rr""*.r" ."r.rrrd" to as 'civil service of the crown in India' and they were such action to be taken thereon as might appear to hirn to be
just and
go.,".'.abysuchconditionsofservicerelatingtomethodsofrecruitment, equitable.
payandallowances,disciplinaryrulesetc.asdeterminedbytheexecutive.
The Government of India Act, 1919 for the first time
dealt with the issue Similar provisions were made in section 24O of the Government of India
of section 96-8 which provided Act 1935 which Provided -
of tenure of service by the introduction
that- Section 240. Tenure of office of persons employed in civil capacities in
India'-
(1) Except as expressly prorrided by this Act, e'r'ery person who is a member
Section96-8(1)-SubjecttotheprouisionsofthisActandofrulesmad'e of a civil service of the Grown in India, or holds any civil post under the
thereund,er, p"':"ot' in the civil service of the Crown in India holds
"1,.,y Crown in India, holds office during His Majesty's pleasure'
(2) No such person as aforesaid shall be dismissed from the service of His
7. Ibid Paras 22 & 33-34' Majesty by any authority subordinate to that by which he was appointed'
8. (2014) 6 scc 351-
9. Id. at Para 66'
10. Id at Para 67'
 I
I civil seruunts: Doctine of Pleasure 4nd constitution^I S'feSuLrds 4ll I
.f 4f0 Textbook on Adtninistratizte Law

rank until he and 311. The three constitutional provisions lays down the procedural norms
(3) No suchperson as aforesaid shall be dismissecl or reduced in
opportunity of showing cause against the action and safeguards for dismissal, removal or reduction in rank of a government
has been given a reasonable
proposed to be taken in regard to hirn: servant or for imposition of any other penalty but the specific grounds for
removal, dismissal or reduction in ranks are dealt rvith the various services
Providecl that this sub-section shall not appl)'- laws and rules made under Article 309'
(a) t'here a person is dismissed or reduced in rank on the ground
of conduct
In Gout. of A.P. u. N. Ramartniahrl the Supreme Court observed that
-- *iti"h h* Iecl to his conviction on a criminal charge; or ,,the elaborate prouisions in Part XIV relating to seruices und'er the
(b) where an authority empowered to dismiss a person or reduce hinl in
in
authority [Jni.on and, the states ind,icate the importance uh'ich the frarners of our
rank is satisfied that for some reason, to be recorded by 'that
opportunity const,itution attached, to the ciu'il seru'ice. The trinitg of Articles 309, 310
writing, it is not reasonably practicable to give to that person an and, 311 d,eal with the seruices regulat'ing recruitrnent, and conditions of
of showing cause.
Crown in
seruice of persons appoirlted, to public seruices and posts 'in connection
(4) Notwithstanding that a person holding a civil post under the which wi,th the affairs of the Uni'on or anA of the State'"
His pltas"te' any contract under
India holds office iuring Ir{ajesty's
-civil
a person, not being " i.-bu. oi a service of the crown in India, is Article 309*
appointed under this Act to a may' if the Governor-General'
Recruihnent and cond,itions of seruice of persons seruing the Union or a
hold such irost
or, as the case may be, the Governor, deems it necessary in order payment
to secure
qu.alifications, provide for the ,5tole.-subject to the provisions of this constitution, Acts of the appropriate
the services of a person having special Legislature may regulate the recruitment, and conditions of service of persons
tohimofcompensation,ifbeforetheexpirationofanagreedperiodthatpost on his apf,ointed, to public services and posts in connection with the affairs of the
1. is abolished or he is, for reasons not connected with any misconduct Union or of any State:
i!. part, required to vacate that post'"
Provided that it shall be competent for the President or such person as he
l:-
li.'
may direct in the case of services and posts in connection with the affairs of
f:

jJl' ThusincomparisontothelglgAct,theprovisionunderthe1935Act
provided for greater safeguards to the civil servants in the application
of the Union, and for the Governor of a state or such person as he may direct
in the case of services and posts in connection with the affairs of the state, to
the d.octrine of pleasure. These safeguards are - make rules regulating the recruitment, aird the conditions of service of persons
(i) A person could not be dismissed'from service by any authqritJ.subordinate appointed, to such se.vices and posts until provision in that behalf is made
io that by which he was appointed, and by or under an Act of the appropriate Legislature under this article, and any
.r-rlu" ,o made shall have effect subject to the provisions of any such Act.
(ii) A person could not be dismissed or reduced in rank until he had been
givenareasonableopportunityofsho,*'ingcauseagainsttheactionproposed Article 309 provides that subject to the provisions of the Constitution,
to be taken in regard to him' the legislatures can make rules for the recruitment, conditions of service and
Exceptiontotherightofhearingare-(o)whereacivilservantwasdismissed other related issues for persons appointed to the various public services under
orreducedinranl."oogroundofconductwhichhadledtohisconvictionon him or the Union or the State. But the rules made under Article30g have to be
a criminal charge, a.ta la; where an authority empowered to dismiss by that read with the provisions of Article 310. In Moti Rarn Deka u. G.M., North
reduce him ir, .rni was satisfied that for some re€6on, to be recorded
East Frontier Rlyr2 the Supreme Court categorically observed that -
authorityinwriting,itwasnotreasonablypracticabletogivetothatperson
[T]he proviso.to Article 309 makes it clear that it
an opportunit-v of shorving cause' would be competent for
the President or such person as he may direct in the case of services and
posts in connection wiih the affairs of the Union, and for the Governor of
9.3 CONSTITUTIONAL PROVISIONS RELATING TO . st"t" or such person as he may direct in the case of services and posts
APPOINTMENT AND TENURE OF SERVICE in connection with the affairs of the State, to rnake rules regulating the
recruitment, and prescribing the conditions of service of persons respectively
Post-independence similar provisions relating to the manner of recruitment
and removal from service were incorporated in the constitution of India'
The three relevant provisions in the constitution are - Articles 309,
310 11. (2009) 7 SCC 165, Para 13.
12. (1964) 5 SCR 683 : AIR 1964 SC 600'
qt-

.l
I ci?)il seruunts. Doctrine of Pleasure and constitutiondl silfeSudrds 413 |
IAJ.Z Textbooh on Administtatio" Lo@

The pleasure qualification \)r,hose service rnay be sought by the state then the President
appointed to services and posts under the Union or the State' or Governor may appoint hirn under a special contract, and such a contract
ofthePresidentortheGovernormentionedinArticle3l0(l)canthusbe
may respectively may further specify for payment of compensation if before the expiration
exercised by such person as the President or the Governor
directinthatbehalf'andthepleasurethusexercisedhastobeexercisedin or tt. agreed period the post is abolished or for any other reasons, not
accordancerr,iththe'rulesmadeirrthatbehalf.Theserules,andindeed.the anrounting to misconduct. he may be required to vacate the post'
subj-ec.t to Article
exercise of the po'"vers conferred on the delegate must be Article 311-
3l0,andso.Article30gcannotimpairoraffectthepleasureofthePresident Dismissal, remoual or retluction in rank of persons employed in ciui'l
or the Governor therein specified'" capacities under the [Jnion or a State'-(l) No person who -is
a member
of a civil service of the Union or an all-Inclia service or a civil service of a
Article 310- state or holds a civil post under the Union or a state shall be dismissed or
Tenure of office of the [Jnion or a State'-(l) Except as
persons seruing removed by an authority subordinate to that by which he was appointed'
expressly provided by this Constitution, every person who
is a. member of a
of the union or of an all-India service (2)Nosuchpersonasaforesaidshallbedismissedorremovedorreducedin
. defence service o. oi " civil service
the Union i*rrk u*."pt .ft", ".r inquiry in which he has been informed of the charges
or holds any post connected re'ith defence or any civil post under who is a
against him and given a- reasonable opportunity of being heard in respect
person
of
holds office during the pleasure of the President' and every
member of a civil of a State or holds any civil post under a State those charges:
"u.*ril".
holds office during the pleasure of the Governor of the State' provided that where it is proposed after such inquiry, to impose upon him
(2) Notwithstanding that a person holding'a civil post under the Union
or a any such penalty, such penalty may be imposed on the basis of the evidence
adiuced during such inquiry and it shall not be necessary to give such
person
'I
State holds office during the pleasure of the President or, as
the case may be,
bny opportunity of making representation on the penalty proposed:
oftheGovernoroftheState,anycontractunderwhichaperson'notbeinga
Provided further that this clause shall not apply-
1: !t.
memberofadefenceserviceorofanall-Indiaserviceorofacivilserviceof
hold such a post'
.i ihe'U.rion or a State, is appointed under this Constitution to (o) where a person is dismissed or rernoved or reduced in rank on the
ground
rn"V, if ,ft" President or the Governor' as t-he case may be' it necessary or
{99ms
qualifications, provide of conduct which has led to his conviction on a criminal charge;
. in order to secure the services of
a person having special
forthepaymenttohimofcompensation,ifbeforetheexpirationofanagre€d (b)wheretheauthorityempoweredtodismissorremoveapersonortoreduce
.periodthatpbstis'abolishedorheis,for.reasonsnotconnectedwithany him in rank is satisfied that for some reason, to be recorded by that authority
'misconduct
on his part, required to vacate that post' in writing, it is not reasonably practicable to hold such inquiry; or
(c)rvherethePresidentortheGor,ernor.a^sthecasemal'be'iSsatisfiedthat
Article 310(1) has incorporated the doctrine of pleasure in the appointment in the interest of the security of the state it is not expedient to hold such
that all
and tenure of service for civil servants in India by specifyingPresident inquiry.
merqbers of the civil service holds office during the pleasure of the
(3)If,inrespectofanysuclrpersonaSaforesaid,aquestionariseswhetherit
or the Governor as the case may be. But it has categorically excluded
those
is-reasonably practicable to hold such inquiry as is referred to in dause
(2).
provided for in
appointments from its scope which have been specifically the decision thereon of the authority empo,*,ered to dismiss or rernol'e such
the text of the constitution such as the Judges of the supreme court and
person or to reduce him in rank shall be final'
il;;-il;,il-A,raiaor- General of India,ra chairman and Mernbers of the
public Service Commission,ts Chi.f Election Commissioner and other Election Article 311 confers certain safeguards to persons employed in services
under the Union of India or a State. These safeguards are - (1) A
person
Commissionersl6 etc.
cannot be dismissed or removed by an authority subordinate to that b1'
Article 310(2) deals with cases of persons who have been appointed removed or
under a contract and it also provides that in case of person having
special which he was appointed, and (2) A person cannot be dismissed,
after an inquiry in u,hich he has been informed of
reduced in rank except
the charges against him and given a reasonable opportunity of being heard
13. Article 124,2I7 and 218 in respecl of those charges. Ho*e.re. these safeguards are not available to a
14. Article 148. p"r"ori when he is dismissed, removed or reduced in rank in any of'the three
15. Article 317.
16. Article 324.
 r
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Textbook on Adrninistratfue Laut
l4l4
situations - (a) on the ground of conduct which has led to his conviction
on a criminal charge; (b) when the authority empowered to impose any of
these penalties is satisfied that for some reason, to be recorded by that
authority in writing. it is not reasonably practicable to hold such inquiry:
and (c) where the President or the Golernor of a State. as the case rnal-
be, is satisfied that in the interest of the security of the State it is not
expedient to hold such inquiry. Therefore the application of the doctrine of
pleasure has received constitutional recognition in India and is subject to
the express provisions of the constitution. The supreme court in Moti Ram
Deka u. G.M., Nortl, East Frontier RlgrT had categorically observed that
the rule-making authoritg und,er Article 309 cannot be ualidly exercised
so as to curtail or aJfect the rights guaranteed to public seraants under
Article 311(2). while dealing n'ith the issue of whether the benefit of pension
is subject to the protection of Article 311(2) the Court emphasized that -
Article 311(2) is intended to afford a sense of security to public servants who
are substantively appointed to a permanent post and one of the principal
benefits which they are entitled to expect is the benefit of pension after
fendering public sJrvice for the period prescribed by the Rules. It would,
we think, not be legitimate to contend that the right to earn a pension
to which a servant substantively appointed to a permanent post is entitled
can be curtailed by Rules framed under Article 309 so as to make the said
right either ineffeciive or illusory. Once the scope of Article 311(1) and (2) is
duly determined, it must be held that no rule framed under Article 309 can
trespass on the rights guaranteed 'mindby Article 311. This position is of basic
importance and mirst be bo..re in in dealing with the controversy in
the present appeals.
ln Gout. of A.P. u. N. Ramanaiahrs the Court speaking on the importance
of Article 311(2) holds that-
Every person who is a member of civil service of a state or holds any civil
post under a state holds office during the pleasure of the Governor. Article
3rr(z) quanries the pleasure of the President or the Governor, and the pleasure
cannot be exercised if a government servant's service is to be terminated as
a punishment for misconduct- In such a case, Article 311(2) mandates that a
reasonable opportunity of being heard in respect of the charges must be
given
to the government servant. Any order infucting the punishment of dismissal,
removal without giving the opportunities as is required by Article 311(2) would
be null and void as violative of an express constitutional requirement.
;i
17. (1964) 5 SCR 683 : AIR 1964 SC 600
18. (2009) 7 SCC 165, Para 13.
I
Civil Seraants: Doctrine of Pleasure and Constitutional Safeguards 415 |
9.4 INTERFACE BETWEEN ARTICLES 309, 310 AND 311
In Union of Ind,i.a u. S.P. Sharmare the Supreme Court analysed the scope
and inter-relationship of the three constitutional provisions and observed-
Article 309 ernpon'ers the appropriate legislature to regulate the recruitment
and conditions of services of persons appointed in public services and posts
'in connection with the affairs of the union or the state. But Article 309 is
subject to the provisions of the constitution. Hence,.the rules and regulations
made relating to the conditions of service are subject to Articles 310 and
311 of the constitution. The proviso to Article 309 confers powers upon the
President in case of services and posts in connection with the affairs of the
union and upon the Governor of a state in connection with the services and
. the conditions of services of the persons appointed. The service conditions
. shall be regulated according to such rules. Posts connected u'ith the affairs
of the State to make rules regulating the recruittnent-
Article 310 provides that every person, who is a member of the defence service
or of a cit,il service of the Union or all-India service, or any civil or defence
force shall hold such posts during the pleasure'of the President. similarly,
every person who is a member of the civil services of a State or holds any
civil post under a State, holds office during the pleasure of the Governor of
the state. It is worth to mention here that the opening words of Article 310
"fxcept as expressly provided by this Constitution" make it clear that a
government servant holds the office during the pleasure of the President or
the Governor except as expressly provided by the Constitution'
From a bare perusal of the provisions contained in Article 311 of the
constitution, it is manifestly clear that clauses (1) and (2) of Artiele. 311
impose restrictions upon the exercise of pon'er by the President or the Governor
of the State of his pleasure under Article 310(1) of the Constitution. Article
311 makes it clear that any person lvho is a member of civil services of the
union or the state or holds civil posts under the union or a state shall not
be removed or dismissed from service by an authority subordinate to that b5r
nhich he was appointed. Further, clause (2) of Article 311 mandates that such
removal or dismissal or reduction in rank of the members of the civil services
of the union or the state shall be only after giving reasonable opportunity
of hearing in respect of the charges levelled against him. However, proviso
to Article 311(2) makes it clear that this clause shall not apply inter alia
nhere the President or the Gofernor, as the case ma)' be. is satisfied that
in the interest of the security of the state it is not expedient to hold such
enquiry.
The expression ,,except as otheruti,se proui,ded in th,e Constitution" as
containedin Article 310(1) means this article is subject only to the express
19. (2014) 6 SCC 351
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Textbooh on Administrative LatP
T I
Cbil Seruants: Dodrine of Pleasare and Constitutional Safeguards 417
I
|

provisionmadeilrtheCorlstitution.Noprovisionintlrcstatutecancurtall I is does not come within the scope of the term 'removal' under Article
the provisions of Article 310 of the Constitution'2o 311(2).
In Moti Ram Deka a. G.M., North East Frontier Rly22 ilne Supreme
(i)DistinctionbetweenTemporaryandPermanentEmployee I Court while dealing with the issue of determining the nature of the right
Article 311 makes no distinction between perlnanent and ternporary
posts' which a p€rmanellt servant observed-
and the constitutional protection.is applicable to all governrnent servants
,1{ person who substantively holds a permanent post has a right to continue
irrespective of the nature of the employment' . in service, subject, of course, to the rule of superannuation and the rule as to
compulsory retirement. If for any other reason that right is invaded and he is
(ii) Nature of Penalties asked to leave his service, the termination of his service must inevitably mean
- minor
service jurisprudence the defeat of his right to continue in seivice and as such, it is in the nature of
Primarily there are two classes of penalties in a penalty and arnounts to removal. In other words, termination of the services
penaltiesandmajorpenalties.Examplesofminorpenaltiesarecensurei of a permanent servant otherwise than on the ground of superannuation or
withholding of promotion and withholding of increments of pay whereas
sorne
compulsory retirement, must per se amount to his removal, and so, if by RuIe
of the major penalties are disrhissal or removal from service, compulsory
148(3) or Rule 149(3) such a termination is brought about,-the Rule clearly
retirement and reduction in rank. The fundamental difference between
these Article 311(2) and must be held to be invalid'"'"
contravenes
tll,o categories of penalties arei that in case of minor penalties the temrre
of service of a government servant is not adversely affected whereas the It was further held that "Even . if a person is holding a post which does
major penalties brings an end to the tenure of service of a government not carry any pension, he has a right. to continue in service until he reaches
employee. the age of superannuation and the said right is a very valuable right That
."\ t

TheprotectionaffordedbyArticle3ll(2)iswithspecificreferencetothe is why the invasion of this right must inevitably mean that the termination
.) imposition of three major penalties contemplated by Service Rules such
as of his service is, in substance, and in law, removal from service."?4 Thus if
d.isrnissal, removal or ieduction in rank. Hence in case of termination of the civil servant has got a "right to continue in the post, then, unless the
services on notice of a specified period, or on payment of salary for the contract of employment or the Rules provide to the contrary, his services
. cannot be terminated otherwise than for misconduct, negligence, inefficiency
said period, and if in exercise of the power thus conferred on the employer, .or other good 'and sufficient cause: A termination of the service of such a
the services of a temporary or probationary servant are terminated, it
may
not necessarily amount to removai. In all such cases if it is shown that the servant on such grounds must be a punishment and, therefore, a dismissal
termination of services is no more than discharge s'implicitor effected by or removal within Article 311, for it operates as a forfeiture of his right and
virtue of the contract or the relevant rules the provisions of Article 311(2) he is visited with the evil consequences of loss of pay and allowances".
will not be applicable. But if the termination of a temporary servant's service (iv)
is on account of a penalty imposed on him or punitive action taken against
Subordinate AuthoritY
him, then such termination would amount to remo'al and the procedural The Supreme Court in Gout. of A.P. ,. N. Ramana6ahzl clarified that
safeguards provided under Article 311(2) would be attracted. similarly
in
Article 311(1) does not command that the dismissal must be bg the uerg
cases of reduction in rank of an officiating servant the provisions of Article same author,itg who mad.e the appointment or by its direct superior.
311(2) would be aPPlicable'zl The d.ismissal can be either by the appointing authority or by any other
authoritg to uhi.ch the appointing authori,ty is subord.inate. The dismissal
(iii) compulsory Retirement vis-a-vis Termination of service of a ciuil seruant n-Lust con'Lplg wi,th the proced,ure laid dotnn in Article
311. It was further observed that-
In cases of compulsory retirement the constitutional protections undcr
Article3ll (2) are not be applicable because the act of compulsory retirement
22. (1964) 5 SCR 683 : AIR 1964 SC 600
23. Id Para 26.
24. Id Para 29.
20. Ibid (2014) 6 SCC 351, Paras 61-64' 25. (2009) 7 SCC 165, para 15.
21. See generally (1964) 5 SCR 683 : AIR 1964 SC 600'

r$boohon Adn,istrdtioe La@
l rA
Thc Constitution being the transcendental law, the rule-making authority by
making Rule 14(2) took care to see that constitutional guarantee enshrined
in Article 311(1) of the Constitution rvhich rvas ayailable to the government
servant was protected. That the construction placed by us on the expression
"subordinate'' is in consonance rrith the meaning and import of the word
"subordinate', occurring in Article 311(1) of the Constitution is apparent
from many a decisions of this Court. We shall refer to some of them. In
our considered opinion there is nothing in the Constitution *'hich debars the
Government from exercising the powers of appointing authority to dismiss a
governmenr servanf, frorn service. These Rules cannot be read as implying
that dismissal must be by the very authority who made the appointment or
by his immediate superior.26"
9.5 ANALYSIS OF THE TULSIRATA PATEL CASE
In (Jnion of Ind,ia u. patet'l writ petitions were filed by several
Th-tlsirant
government servants who were either. dismissed or removed from service
without holding any inquiry. They were not assigned any reasons' not
informed of the charges made against them nor were they given any
opportunity of being heard before their removal or dismissal from service
as the actions were taken under o4e or the other three clauses of the
second proviso to Article 311(2). The Court while analyzing the different
constitutional provisions made an in depth study of the application of the
doctrine of pleasure.
On the application of doctrine of pleasure it was observed -
I\Iinisters frame policies and Legislatures enact laws and lay down the mode
ii in which such policies are to be carried out and the object of the legislation
ilEi achieved. In many cases, in a \lrelfare State such as ours, such policies and
lr
statutes are intended to bring about socio-economic reforms and the uplift of
f!
li1
the poor and disadvantaged classes. From the nature of things the task of
ll,1
efficiently and effectively implementing these policies and enactments, however,
;l; rests with the civil services. The public is, therefore, vitally interested in the
-11 efficiency and integrity of such services. Government servants are after all
paid from the public exchequer to which everyone contributes either by way
;i. of direct or indirect taxes. Those who are paid by the public and are charged
$
a with public administration for public good must, therefore, in their turn bring
i.ll
tll to the discharge of their duties a sense of responsibility- The efliciency of
.; public administration does not depend only upon the top echelons of these
services. It depends as much upon all the other members of such services,
even on those in the rnost subordinate posts. For instance, railways do not
'
run because of the members of the Railway Board or the General Managers
26. (2009) 7 SCC 165, para 23.
27- (1e85) 3 SCC 3e8.
T
I
o.*t pt"-"* *a c",ux,"t"*ts"f.s-d, 4/197
I d,;t s"*.,o, " "f
of different railways or the heads of differerrt departments of the railway
administration. They run also because of engine-drivers, firemen, signalrnen,
booking clerks and those holding hundred other similar posts. Similarly' it is
not the administrative heads who alone can see to the proper functioning of
the post and telegraph service. For a service to run efficientll'. there must.
therefore, be a collective sense of responsibility. But for a governnent servant
to discharge his duties faithfully and conscientiously, he must have a feeling
of security of tenure. under our constitution. this is provided for by the Acts
and rules made under Article 309 as also by the safeguards in respect of the
punishments of dismissal, removal or reduction in rank provided in clauses
(1) and (2) of Article 311. It is, however, as rnuch in public interest and for
public good that government servants who are inefficient, dishonest or corrupt
or have become a security risk should not continue in service and that the
protection afforded to them by the Acts and rules made under Article 309
and by Article 311 be not abused by them to the detriment of public interest
and public good. when a situation as envisaged in one of the three clauses of
the second proviso to clause (2) of Article 311 arises and the relevant clause
is properly applied and the disciplinary inquir-v dispensed with, the concerned
governmenr servanr crr,noi be heard to complain that he is deprived of his
_
livelihood. The Iivelihood of an individual is a matter of great concern to him
and his family but his livelihood is a rnatter of his private interest and where
such livelihood is provided by the public exchequer and the taking away of such
livelihood is in the public interest and for public good, the fortner must yield
to the latter. These consequences follow not because the pleasure doctrine is
a special prerogative of the British crown which has been inherited by India
and transposed into our Constitution bdapted to suit the constitutional set-up
of our Republic but because public policy requires, public interest needs and
public good demands that there should be such a doctrine'
It is thus clear that the pleasure doctrine ernbodied in Article 310(1)' the
protection afforded to civil servants by clauses (1) and (2) of Article 311 and
ihe withdrawal of the protection under clause (z) of Article 311 by the second
proviso thereto are all provided in the constitution on the ground of public
policy and in the public interest and are for public good'28
On the relationship between the three Articles 309, 310 and 311 the Court
observed that the three articles are interl'inked and for'ffr an integrated
whole. There is an orgo,nic and thematic unity running through them -
These articles occur in chapter I of Part XIV of the constitution. Part XIV
is entitled "services under the Union and. the States" and Chapter I thereof
is entitled "Services". While Article 309 deals with the recruitment and
conditions of service of persons appointed to the public services and posts in
connection with the affairs of the Union or a state, Article 310 deals with the
tenure of office of members of the defence services and of civil services of the
28. Ibid Para 44-45
 I,r--
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cat s.-",u, o",o;." rt".,"* .,a c" ,t ",u*t s.t"g"*a, 421
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311 provides certain safeguards to persons on the issue of whether the tenn 'pleasure of the President or thc
Union and the States and Article
Governor' has to be literally implemented the Court held that-
first thing which is required to be noticed about
"."pr.v.aincivilcapacitiesundertheUnionoraStatebutnottornembers
oi-ii" a"f"""e services. The makes
it itself no provision for recruitment or conditions The position, therefore, is that the pleasure of the President or the Governor
frii"i"lO' is that servants but confers power upon the appropriate is not required to be exercised b1- either of thern personally, and that is
of governrnent
of service "make indeed obvious from the language of Article 311. Under clause (1) of that
laws and trpon the President and the Governor of a State
;;i;;" to
article a government Servant .cannot be dismissecl or removed b1' an authoritr'
to make rules in respect of these matters. The passing of thcse Acts and the
are, however, rnade "subject to the provisions of this subordinate to that by which he rvas appointed. The question of an authority
;;;;; of ,tr""" rules equal or superior in rank to the appointiug authority cannot arise if the power
This phrase which precedes and qualifies the power conferred
C"""iir-",i""". to dismiss or remove is to be exercised by the President or the Govemor
ur'n.i"i" io9 is significantly different from the qualifying phrase in Article
as irpresslv prouided bv this Constitution"'2e personally. Clause (b) of the second proviso to Article 311 equally makes this
tioiii"*^n'tJlrs "Ei"pt clear *.hen the power to dispense w.ith an inquiry is conferred by it uport
the authority empowered to dismiss, remove or reduce in rank a government
impose restrictions upon the exercise by the servant in a case where such authority is satisfied that for.som€ reason) to
;r;"r", (i) and (2) of Articlea 311
State of his pleasure under Article 310(1)' These be recorded by that authoritf in rvriting, it is not reasonably practicable to
;;id"J ;t the dovernor of
respect to termination of service by dismissal or hold such inquiry, because if it was the personal satisfaction of the President
or"-"*p.""" provisions with or the Governor, the question of the satisfaciion of any authority empowered
;;;;;i; also with respect to reduction in rank of a civil servant and thus to dismiss or remove or reduce in rank a government servant would not arise.
the a;mbit of the expression "Except as expressly provided by Thus, though under Article'310(i) the tenure of a government servant is .at
"".""-*rrrrt" 310(1). Article 311 is thus an exception to
Iti, C."r,ia"tion" qualifying Article Lol Dhingrou. [Jnion of Indiaso the pleasure of the President or the Governor, the exercise of such pleasure
'!. in Parshotam
,q,rirJilil "nd was describedArticle 310(i) though
i''
to set out in a separate article. tu either by the President or the Governor acting with the aid and on
lp"r",i"g as a proviso ".n
the advice of the council of 1\,Iinisters or by the authority specified in Acts
't'1, ",
Article30gis,however,notSuchanexception.Itdoesnotlaydownanyexpress made under Article 309 0r in rules made under such Acts or made under the
which would derogate from the amplitude of the exercise of
'-n. j pleasure
..!
1.'1
ri ;;;i.; merely confers upon the appropriate Legislature or proviso to Article 309; and in the case of clause (c) of the second proviso
i.,i' I"1", arti"f. 310(1),.It
and but this power is made lo Article 311(2), the inquiry is to be dispensed with not on the personal
al tat.:
J"*"r'"" the power to make.laws frame rules
or the Governor but on his satisfaction arrived
satisfaction of the President
t:l
to the provisions of the Constitution. Thus, Article 309 is subject to
ffi; provision 'restricting the exercise of the pleasure of at rvith the aid and on the advice of the Council of \{inisters'32
;-;;t"k arOlr; ""a any
-pl"ia""f
or Governor in an Act or rule made or framed under Article
,n"
provision of the Constitution, cannot fall within the on the application of principles of natural justice and right of fair hearing
309 not being an express
occurring in under Article 311-
.*pr"a"lo., ,,Except as expressly provided by this Constitution"
;;-,il 310(r) ahd would be in conflict with Article 310(1) and must be held
of Article 311 gives a constitutional Inandate to the principles
(1) and (2) of Article 311 expressly restrict Clause (2)
Clauses
;; ;; """.;ritutional. government servant can be dismissed, removed or of natural justice and the audi alteram partem rule by providing that a
;L-;;;"". in which a p"oor, in a civil capacity under the Union or a State shall not be
;;;J in rank and unless an Act made or rule framed under Article 309 "-pioyed
dismissed or removed from service or reduced in rank until after an inquiry
to these restrictions, it would be void. The restriction piaced by in which he has been informed of the charges against him and has been given
""fr.
;;.; (1) and (2) of Article 311 are two: (.r) with respect to the authoritv
"."f..*r a reasonable opportunity of being heard in respect of those charges. To this
;;;il"4 to diimiss or remove a government servant provided for in clause extent. the pleasure doctrine enacted in Article 310(1) is abridged because
iiftof erri"f" 311; and (2) with respect to the procedure for dismissal' removal
Article 311(2) is an express provision of the Constitution. This safeguarcl
)J."arr.tio" in rank of a government servant provided for in clause (2)' The provided for a government servant by clause (2) of Article 311 is, hon'ever,
,""o"J pr""iro 16 Article 311(2)' which is the central point of controversy
in
writ petitions, lifts the restriction imposed. by Article 311(2) i.k .r a*.y .,r'hen the second proviso to that clause becomes applicable' The
ifr"r" and safeguard provided by clause (1) of Article 311, however, remains intact and
"Op""fr in the three clauses of that proviso'3l
;;;""il;-specified continues to be available to the government servant- The second proviso to
Article 311(2) becomes applicable in the thrce cases rnentioned in clauses (a)
to (c) of that proviso. These cases are:
.9 Sup.u note 27 P*a 47
30. AIR 1959 sc 36' 32. Id. Para 59.
31. SuPra note 27 Para 54'
 qry,
Textboob on Administratioe Laztt
"(a) nhere a person is dismissed or rernoved or reduced in rank on the
ground
of conduct which has led to his conviction on a criminal charge; or
(b) where the authority empowered to dismiss or remove a person or to reduce
him in rank is satisfied that for some.reason. to be recorded by that authority
in rvriting, it is not reasonably practicable to hold such inqttirl-: or
(c) where the Presid'ent or the Gouernor, as the cose m'ay be, is satisfied
that in the interest oJ the securitu of the state it is not etpedie'nt to hoLd
such inquiry."33
on the issue of exclusion of the right to be heard under Article 311(2)
the Court observed-
The language of the second proviso is plain and unarnbiguous. The keyu'ords
in the second proviso are "this clause shall not apply". By "this clause"
is meant clauss (2). As clause (2) requires an inquiry to be held against a
government servant, the only meaning attributable to these words is that this
l! inquiry shall not be held. There is no scope for any ambiguity in these words
f.: and there is no reason to give them any meaning different from the plain and
lft ordinary meaning which they bear. The resultant effect of these words is that
s: when a situation envisaged in any of the three clauses of the proviso arises
and that clause becomes applicable, the safeguard provided to a government
E.:
ffl:
servant by clause (2) is taken away. As pointed out earlier, this provision is
fi' as much in public interest and for public good and a matter of public policy
l+
li as the pleasure doctrine and the safeguards with respect to security of tenure
t.' contained irr clauses (1) and (2) of Article 311'
e.l
t.,
I
]1
Before, however, any clause of the second proviso can come into play the
;i
*,1 condition laid down in it must be satisfied. The condition for the application
4li of each of these clauses is different. In the case of clause (a) a government
iri
rrf,l servant must be guilty of conduct deserving the penalty of dismissal' removal
ii l."
lil ri or reduction in rank which conduct has led to him being convicted on a
. i.,l
.'-;:: criminal charge. In the case of clause (6) the disciplinary authority must be
, ii+ satisfied that it is not reasonably practicable to hold an inquiry' In the case
:':ij
of clause (c) the President or the Governor of a State, as the case may be'
must be, satisfied that in the interest of the security of the state, it is not
expedient to hold an inquiry. when these conditions can be said to be fulfilled
vgill be discussed Iater q,hile dealing separately sgith each of the three clauses'
The paramount thing, however, to bear in mind is that the second proviso r,'ill
apply only where the conduct of a government servant is such as he deserves
th" p""ii*ent of dismissal, removal or reduction in rank. If the conduct is
such as to deserve a punishment different from those mentioned above, the
second proviso cannot come into play at all, because Article 311(2) is itself
confined only to these three penalties. Therefore, before denying a government
33. Ibid Para 6O.
I I
Ciztil Seruants: Doctrine of Pleasure and Constitutianal Safeguards 423
I |
i
servant his constitutional right to an inquiry. the first consideration would be
j
whether the conduct of the concerned governrnent servant is such as justifies
!
I the penalty of dismissal, removal or reduction in rank. Once that conclusion
is reached and the condition specified in the relevant clause of the second
proviso is satisfied. that proviso becomes applicable and the government
servant is not entitled to an inquirl'. The extent to w'hich a governmerlt
servant can be denied his right to an inquiry formecl the subject-matter of
consideiable debate at the Bar and 'tve, therefore, now turn to the question
whether under the second proviso to Article 311(2) even though the inquiry
is dispensed with, some opportunity at least should not be afforded to the
government servant so that he is not left wholly without protection. As most
of the arguments on this part of the case were common to all the three
clauses of the second proviso, it will be convenient. at this stage to deal at
one place with all the arguments on this part of the case, leaving aside to
be separatell' dealt r*'ith the other arguments pertairiing only to a particular
clause of the second proviso.34
The position which emerges from ,;-;;""" discussion is that the keywords
of the second proviso govern each and every clause of that proviso and leave
no scope for an1' kind of opportunit5r to be given to a government servant-
The phrase "this clause shall not apply" is mandatory and not directory.
It is in the nature of a constitutional prohibitory injunction restraining the
disciplinary authority from holding an inquiry under Article 311(2) or from
giving any kind of opportunity to the concerned government servant. There is
thus no scope for introducing into the second proviso some kind of inquiry or
opportunity by a process of inference or implication. The maxim "expressum
facit cessare tacitum" ("when there is express mention of certain things, then" "'
anything not mentioned is excluded") applies to the case. {9 Winted out by
this Court in B- Shankara Rao Badarni v. State of lllysoreoo this well-known
maxim is a principle of logic and conmon sense and not merely a technical
rule of construction. The second proviso expressly mentions that clause (2)
shall not apply wherc one of the clauses of that proviso becomes applicable.
This express mention excludes everything that clause (2) contains and there
can be no scope for once again introducing the opportunities provided by
clause (2) or any one of them into the second proviso. In Atkinson u. United
States of America Gotternment36 Lord Reid said:
"It is noq'well recognised that the court has pot'er to expand procedure laid
dorvn by statute if that is necessarv to prevent infringement of natural justice
and is not plainly contrary to the intention of Parliament."
Ilere, however, the atternpt is not merely to do something contrary to the
intention of 'Parliament', that is, in our case, the Constituent Assembly, but to
34. Supra note 27.
35- (1e69) r SCC 1.
36. LR 1971 AC r97.
 -l

Textbook on Administratizte Law

(3) of Article 311 did not
that clause (c) of the second proviso and clause
dosomethingcontrar-vtoanexpressprohibitioncontainedirrtheConstitution- featureinSection24ooftheGoverrrnrentoflndiaAct,1935'butwerenew
secotrd proviso
ThL conclusion *,hich flows from the express language of the
-t'o but' as provisionsconsciouslyi,.t.od,'cedbytheConstituentAssemblyinArticle3ll.
is inevitable and ttrere is t""tp" from it' It may appear Constitution ThosewhoformedtheConstituentAssenrblywerenottheadvocatesofa
in the ^tt"tt'll as
despotic or dictatorial form of government'
ThLy werc the persons who enacted
mentioned earlier,th" "";;"Jproviso has been inserteclfor public good just as Rights. The majority of
a matter of public p<llit;- ;"i in public interest and into our constitution the cha=pter on Fundamental

the pleasure doctrine il; ffi ""rJg"".ar

f- u, gor,".nment :::v1llt provided
and themhadfoughtro,f*"ao*andhadsufferedimprisonmentinthecauseof
in clauses (1) and (2)";iA;;;"i" 3ir ht"" b"u"]It is in public interest Iibertyandthey,therefore,n'erenotlikelytointroduceintoourConstitution Acts which had been
of
any provision from the earlier Governmerrt of India
wfo has been convicted a grave
for public good that " ;;;;;;.**:".* uniit to continue in office should
and serious offence or'orr" reirdering him to intendedpurelyfortt,"b"''"fitofaforeignimperialisticpower.Afterall'it
remedy when the second
be summarily dismisstJouemot'ed-fto"t
insteacl of being allowed is not as if o go.'","-ent servant is u'itiout any
"""'it" It is equally in public remedies open to him' namelS
expense and- to public detriment' proviso has been applied to him'.There are two
continue in it at public not
his offence is such that he should iepartmental appeal and judicial review'"'
interest and for public good that where that he should be reduced in
the same rank' Co-urt adopted the
be permitted to contim-ie to hold rrilsai or in concert with others has On the application of aud'i alteram partem theu' (Jnion of India3s
rank. Eqrially, where ""orrliJ"tt"-t' !v not-reasonably practicable to hold an
interpretativ" p.in"ipi" laid dorn'n in Kh)m
Chand'
brought about a "itt'"iiJtt i! rvhich it is
justify his dismissal' removal or reduction it was stated-
inquiry and his .""a""ii' ;il ; to good at"t"t'a that such penaltv
should
wherein
p"blic
in ra'k, both public i;;;;-;;J him; and similarly' *nr;r",ll,,lli It is true that the prowision does not' in terms' refer to
different stages at
forthwith and summariry be imposed.oqoo
it is not expedient to hold-art inqurry' whichopportunityistobegiventotheofficerconcerned.Allthatitsaysis
interest of the securirv:'oiir,u st.t" good that where one of the' three that the governmenr servant Lust be given a reasonable
opportunity of showing
it is in the public i";'"t; ""a f- oip"ufic in rank is called for' it should cause against the action proposed to be- taken in regard to him' He must
punishments of ai"*i'Ju'i' t"*o""f '"a""tio" *""t ser vant' It was ar gued must
not only be given a,., oppo'"'t"ity but such opportunity the proposed action
be a reasonable
be summar i lv' .'oo""I-iooi;; ;";;t;;J got'ut
" ought to one. In order that tire iiportuniiy to show cause against
that in a case f"uit;";J;
(l) ot !1)' a government lerv'ant to the quite obviously necessary that the
"r"""t iriprotes or the danger may be regarded "t " ,ttsootbl" one, it is
be placed ,rrra.. "o"p"i"'iii'""tif-rtt" "itrr"iii.r*"y'Ut' i' possible have the opportunity, to sav, if that be his case'
security of the State it"- p"t""a'
as the.
"*'" lttg T-":Ttt involves
;;;.;".;"; servant shouldg;;l; oi t"v misconduct tt merit any punishment at all
overlooks the fact that suspension that he has not b"""
to hold an inquiry. d;;r;,;nt allowance'and such allowance is paid at and also that the p.'iitt'l"t punishment
proposed to be given is much more
the payment ,t ru"ti'oi "'f,"i"'""tt public d""t'l'"t' Both pleas have a djrect bearing
pubtic intetest would be benefited
nor drastic and severe th;;; these
public expense, and tt''t "titfttt suspension because it on the question of punishment and may
u'ell Lre put forward in showing cause
servant under
good served Uy pt""i"g such got'ernmtnt io improve or the danger 'to be
against the proposed punishmcnt' If this is the correct meaning of the clause'
i
may take ?;;;; situation If it is open to the government
" "o""iau'.ui";;; and oppressive to a-government
servant' as we think it is, wllat consequellces follorv? he is not
over. I\{uch as this may seem harsh if be the fact' that
tl

underlying the second proviso is servant under this pto'*'i'io" to contend' that
I this Court must not flrget that the ,object how can he take that plea unless he is told
public good tt'a in" Court must' therefore' guilty of any misconduct then
*:
tili public policy, pttUfi" itti"i"st and and
what misconduct is "tt.g.d against him? If the opportunity
to show cause
away- Lv f""fittg" of' commiseration
repel the temptation to be carried bin disrnissed' removed or is to be a reasonable oi" it i" clear that he should be informed about the
,3
sympathy for those goverrlmer]l '"t"1it'-ho"h"v"Sympathy and commiseration by which it is sought
charge or charges f",,.ffJ'g'iost himand-the
tlr I evidence
secgnd groviso'
reduced in rank by applying the of pr.blic-policy, concern for
public
to be established, for lil" i"rv then that he will be able to put forward his
t.*i'"t"rr.l?t considerations is to give the governrnent servant an
cannot be allorved ofut-1t:,tt^:.constitutional tlefence. If the purpose of this provision
interest- regard for ;;;lt" g;"d and
the if opportunity is to
I
.o":-;;"'l' second proviso has beett
mind that the opportunity to "xonetate himseif from the charge and this
r: prohibition. Th. c"t";;';ri-.,- u"r. in enacted' It $'as not blindlv or be a reasorrabt" or," tt" should be allowed to show that the evidence against
't
in the Constitution J;;l; was originallv that he can only do if
a, ;f -thl Governmeut of India Act' 1935'
him is not worthy of credence or consideration and called against him and
slavishly copied from"i^l'i"rr 240(3) Constitution of India and the draft he is given a chance to cross-examine the witnesses
draft his defence. AII this
Article 311 was eratuf"'igi-; of tire <lebate took place on it in the to examine himself or any other witness in support of
Article 2g2_B was ir**"J ""a " "orrrid.."bi"
ni"rt of the constituent Assem'bls
consrituent A.""*;;"i;;;-the ofri.ci,ari5;;';part of this debate centred
Debates,Vol. IX, tli rui""
ri!'d1 37. Supra note 27.
which is now the
upon rhe proviso #"t;; iil .f af," <lrafi-Article 282-F',
also bear in mind
38. AIR 1958 SC 300: 1958 SCR 1080'
second proviso to ;;; 3i1' Further' trt" C""tt should
 I
Cfuil Seroants: Doctrine of Pleasure and Constitutional Safeguards 427 |
' lministrathte Laut

but this does original clause (2) of Article 311, the same applies to the present clause (2) of
appears to us to be implicit in the langrrage used in the clause' Article 311 except for tire fact that now a governmertt servant has no right to
notexhausthisrights.Inadditiontoshowingthathehasnotbeenguiltyof make any representation against the penaltyr proposed to be imposed upon him
anymisconductSoastomeritanypurrislrment,itisreasonablethatheslrould but, as pointed out earlier, in the ca-se of Suresh Koshy George v. Uniaersity
alsohar,eanopportunitytocontendt}ratthechargesprovedagainsthimdo
to be meted out oJ Kerala3s such an opportunitf is not the requirenrent of the principles of
not necessarill- require ihe particular punishment proposed natural justice and as held in Associated Cement Companies Ltd. v. T.C.
tohim.Hemaysay'fori"stot'ce,thatalthoughhehasbeenguiltl'ofsome Shriuastauaao neither thc ordinary law- of the Iand nor industrial lan' requires
misconductitisnotofsuchacharacterastornerittheextremepunislrmerrt
that any of the such an opportunity to be given. The opportunity of showing cause against
of dismissal or even of removal or reduction in rank and the proposed penalty wtls only the result of the interpretation placed by the
Iesser punishments ought to be sufficient in his case'
Judicial Committee of the Privy Council \n Lall case'r upon.section 240(3)
the provision under
To summarise: the reasolable opportunitl' envisaged by of the Government of India Act, 1935, s'hich was accepted by this Court in
consideration includes: Khem Chand case. If, therefore. an inquiry held against a government servant
his innocence' which he under clause (2) of Article 311 is unfair or biased or has been conducted in
(a) an opportunity to deny his guilt and establish such a manner as not to give him a fair or reasonable opportunity to defend
levelled against him are and the
i^1r, o.rrv'io if he is told what the charges
charges are based; irimself, undoubtedl]'. the principles of na.tural justice would be violated. but
allegations on which such in such a case the order of dismissal, removal or reduction in rank would
produced
(b) an opportunity to defend himself by cross-examining the witnesses be held to be bad as contravening the express provisions of clause (2) of
himself or any other in support of
f,"jo|o";ffi-""i"ut examining '"r'itnesses Article 311 and there q,ill be no scope for having recourse to Article 14 for
his defence; and finallY the purpose'of invalidating it.
the proposed
(c) an opportunity to make his representation as to whyonlv do if the
should not be inflicted on him, t'hich he can Upholding the exceptions to the rule of audi alterarn pArfum in Article
;;;h-;; and after applying his mind to 311(2) the Court held-
competent authority' after the inquiry is over
ai"-'gr""i v or otherwise of the charges proved against the government servant
tentativelyproposestoinflictoneofthethreepunishmentsandcommunicates
If legislation and th" necessities of a situation can exclude the principles of
the same to the government servant'
natural justice including the audi alteram partem rule, a fortiori so can a
55 referred provision of the. Constitution, for a constitutional provision has a far greater
In short the substance of the protection provided by rules, Iike Rule and all-pervading sanctity than a statutory provision. In the present case,
toabove,ruasbodityliftedoutoftherulesandtogetherwithanadditional
of India Act, 1935 clause (2) of Article 311 is expressly"excluded b1'the opening words of the
;;;;;y embodied in section 240(3) of the Government second proviso and particularly its keywords "this clause shall not apply".
so as to give a statutorl- protection to the government servants and has now As pointed out above, clause (2) of Article 311 embodies in express rvords
U.un it.-porated in Article 311(2) so as to convert
the protection into a
the audi alteram partern rule. This principle of natttral justic'e having been
constitutional safeguard' expressly excluded by a constitutional provision, narnely, the second proviso to
clause (2) of Article 311, there is no scope for reintroducing it by a side-door
It was further held- to provide once again the same inquiry which the constitutional provision has
is stated above' expressly prohibited. Where a clause of the second proviso is applied on an
....If we look at clause (2) of Article 311 in the light of what extraneous ground or a ground having no relation to the situation envisaged
itwillbeapparentthatthatclauseismerelyanexpressstatementoftheaudi in that clause. the action in so appl-ving it rn'ould be mala fide, and. therefore,
alterampartemrulewhichisimplicitlymadepartoftheguaranteecontained that article by void. In such a case the invalidating factor may be referable to Article 14.
in Article 14 as a result of the interpretation placed upon that before This is. hos'ever, the onll' scope rvhich Article 14 can have in relation to the
.""u* a""i.i"ns of this court. clause (2) of Article 311 requires
or reduced in rank, an inquiry second proviso, but to hold that once the second proviso is properly applied
a government servant is dismissed, removed
the against him and given a and clause (2) of Article 311 excluded. Article 14 will step in to take the place
,",iJ u" held in which he is informed of charges
The nature of clause (2) would be to nullify the effect of the opening words of the second
reasonable opportunity of being heard in respect of those charges.
under clause (2) of Article proviso arrd thus frustrate the intention of the makers of the Constitution.
oi tfr" fr*.1"g to be given to a government servant
iii ;* been elaborJely set o,rt by this Court in Khem Chand cose in the
from the judgment extracied. above. Though that case related to
the 39. AIR 1969 SC 198.
i*."g". 40. 1984 Supp SCC 87.
41. AIR 1948 PC 121.
 The second proviso is based on public policy and is
in public^interest and proviso (b) Article 311(2) and for non-compliance with the principles of
forpublicgoodandthcConstituti.on-makerswhoinserteditinArticle3ll(2) natural justice. It was argued by the State that 'the Full Court, after
were the best persons to decide whether such an
exclusionar;' provision should considering the confidential report and the report of the Inspecting Judge,
should apply'
be there ancl the situations in which this provision resolved that the appellant can be recommended for removal from the
sen-ice. rrithout an1' enquiry as it rvas felt that it l'as not practicable in
9.6 SOME RECENT JUDGMENTS the interest of the institution to hold an inquiry since it ntay lead to the
question of validity of several judgments rendered by him. Consequently,
In (Jnion of Ind'ia a. S'P' the Supreme Court- Iooked into the
Sharmaa2
pouer of pleasure erercised the Full Court recommended for invocation of proviso (b) to Article 311(2)
scope of judicial review and held that that the of the Constitution of India to dispense with the inquiry as against the
respondents does not
by the Presid,ent in terminati'ng the ser'uices of the appellant to remove hirn from service. following which the Governor while
nor is based.on any other
suffer from any fUegotitg, bias or mala fid'es' exercising his power issued the impugned order of removal of the appellant
ettraneousground,,and,-thesarnecaflnotbechallengedonthegroundthat from the service which was under challenge in the writ petition before the
it is a camouflage. It further observed- High Court.'
order of ie.nination passed against the Army
There is no dispute that the.,pleasure The Supreme Court deliberated the constitutional scheme of Article 309,
personnel in exercise is subject to judicial review,
.doctrine," 310 and 311 and observed
"iirr"
butwhileexercisingj.'ai"i"treview,ihisCourtcannotsubstitrrteitsown
conclusion on the i""1" or materials on record.
The court exercising the \{rithin the scheme of the Constitution of .India, provisions relating to public
powerofjudicialreviewhascertainlimitations,particularlyincasesofthis service may be found in Articles 309,310 and 311. It is important to note
nature.Thesafetyandsecurityofthenationisaboveall/everything.When that these provisions (namely, Articles 310 and 311) afford protection to public
power terminates the services of servants from being dismissed, removed or reduced in rank without holding a
the president in exercise of his constitutional
the Army officers, whose tenure of seivices are at the pleasure of the President proper inquiry or giving a hearing.
and such termination is based on materials on record' then this Court in .Article 311 provides for the protection to public servants against punitive
exerciseofpowersofjudicialreviewshouldbeslowininterferingwitlrsuch
power. In a_ constitutional action being taken against them by an authority subordinate to one who
pleasure of the prJdent exercising constitutional appointed them. Exceptions to Article 311 have been provided in clauses (o).
set-up, when office i" Uaa during- the pleasure of the President' it means
whose p]:Tot" he holds
(0) (c) (sic of the.s.econd proviso) to clause (2) of Article 311 itseli which
that the officer can be removed by the authority on "."a that the said article shall not apply to such employees who have been
'provide
is not obliged to assign
office without t "ig.,i,tg "'y t""o"' The authority punished for conviction in a criminal case, where inquiry is not practicable to
any reason or disclose any cause for the removal'-"
be held for reasons to be recorded in writing.or rvhere the President or the
Governor as the case may be is satisfied that such an inquiry is not to be
Inthiscasewhiledealingwiththeterminationofserviceoftwoarmy held in the interest of the security of the State.
officers on ground oi."pio"u!" the Court applied
the doctrine of pleasure to
holds the tffice during the pleasure of the In order to appreciate the power to be exercised under Article 311 of the
hold that a governmeni '""'-""t Constitution of India, it would be appropriate to look at Article 310 of the
PresidentortheGo.,,."o',exceptasotherwiseprovidedintheConstitution' Constitution of India. Under the doctrine of pleasure, which has been recognised
of the security of the
and a right of hearing can be denied in the interest under our constitutional framervork, all civil posts under the Government are
state. held at the pleasure of the Government under which the-l' are held and are
State of Jharkhand{{ the Appellant was
l\'orking as a terminable at its s'ill. The aforesaid polger is n'hat the doctrinc of pleasure
In Ajit Kumar u- removing hirn
the Governor defines. s'hich vvas recognised in the United Kingdom and also received the
subordinate judge and an order was issued by of the High constitutional sanction under our Constitution in the light of Article 310 of
from service on the basis of a resolution oi tt. Full
court
the Constitution of India. However, it is to be noticed that in India the same
CourtofJharkhandrecommendinghisremovalfromservice.Theremoval is subject to other provisions of the Constitution which include the restrictions
order was on ground of non-application of mind
in passing the order under
imposed by Article 310(2) and Articles 311(1) and (2). Therefore, under the
Indian constitutional framework, dismissal of civil servants must comply with
42. (2Or4) 6 scc 351. the proccdure laid down in Article 311 and Article 310(1) cannot be invoked
43. Id. independently with the object of justifying a contravention of Article 311(2)-
44. (2011) 11 scc 458
F
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i I
I {:htil Seruants. Doarine of Pleasure and Constitutional Safeguards 431 'l
| 4$0 Textbook on Adtninistrat'ue L4@

311(2) with are achieved so as to ensure that the corrupt and inefficient gets weeded
There is an exception provided by way of incorporation of Article
sub-clauses (a), (b) ,.ta 1.;' No such enquiry is requirecl to be conducted for out and the interest of the best officers are protected against political whims
the purposes of dismissai, removal ot reduciion in rank of persons when the and fancies. In the worcis of Supreme Corrit in Moti Ram Deka casead -
where it is not
same related to dismissal on the ground of conviction or
practicabletoholdanenquirl-forthereasonstoberecordedi.rrrvritingbr' At this stage. we ought to add that in a modern democratic State the efficiency
that authority empowered to dismiss or remove a person or reduce.him These
in rank and incorruptibility of public administration is of such irnportance that it is
or it is not practicable to hold an enquiry for the security of the State' essential to afford to civil servants adequate protection against capricious
- three exceptions are well recognised ior dispensing with an enquiry,
which is action from their superior authorily. If a permanent civil servant is guilty
required to be conducted undei Article 311 of the Constit*tio' of India when of misconduct, he should no doubt be proceeded against promptly trnder the
the authority takes a decision for dismissal or removal or' reduction in rank relevant disciplinary rules, subject, of course, to the safeguard prescribed by
in writing. In other words, although there is a plcasure doctrine'.however' the Article 311(2); but in regard to honest, straightforward and efficient permanent
same cannot be said to be absoluie and the same is subject to the conditions civil servants, it is of utmost importance even frorn the point of view of the
that when a government servant is to be dismissed or removedbe conducted
from service state that they should enjoy a sense of security which alone can make them
or he is reduced in rank, a departmental enquiry is required to independent and truly efficient. In our opinion, the sword of Damocles hanging
to enquire into his misconducl and onll' after holding such anperson enquiry and over the heads of permanent rqilway servants in the form of Rule 148(3) or
in the course of such enquiry if he is found guilty then only a can be Rule 149(3) would inevitably create a sense of insecurity in the minds of such
removed or dismissed from service or reduced in rank' servantsandwouldinvestappropriateauthoritieswithverywidepowerswhich,
may conceivablY be abused-
Asstatedhereinsuchconstitutionalprovisionforholdinganenquiryasset
out under Article 311 0f the constitution of India could also be dispensed
with under the exceptions provided to Article 311(2) of the Constitution
where clause (o) relates to a case where upon a conviction
of a person by a
certain charges he could be removed from service without
criminal court on
holding an enquiry. Similarly, rinder clause (c) an enquiry to be hcld against
b. dispensed with if it is not possible to hold
the goiernmeni employee
"oJa
suchanenquiryintheinterestofthesecurityofthestate.Sub-clarrse(b)on
theotherhandprovidesthatsuchanenqrrirycouldbedispensedwithbythe
authority concerned' tfter recording reasons' for which it is not
practicable to
hold an enquiry. The aforesaid power is an absolute pou'er of the disciplinary
ihe procedure laid do$'n therein could resort
authority who after following
laid
to such extraordinary power-proviJeg it follows the preconditions dorvn
therein meaningfully and effectively'ac
IrrthiscasetheCourtconcludedthatinlightofthefactsofthecase with an
there was no necessity to hold an enquiry or to provide him
Constitution
opportunity of hearing. The invocation of ArticleSl-1(2)(b) gf.the
was properly exercised within the parameters of the provisions'

CONCLUSION
Civil Servants are bulwark of our nation and the progress of the nation is
dependent on the efficient lvorking of these administrative officers' At present
the civil service is faced with various internal of challenges of inefficiency'
corruption, maladministration etc. hence it is important that a judicious
balance between the doctrine of pleasure and the constitutional
safeguards

46. (1964) 5 SCR 683' Para 28'

45. Supra note 44
 Judicial Remedies

10.1 INTRODUCTION
forms of control mechanism
Judicial remedies are one of the'most effective
over administrative actions' The Supreme
Court and the High Courts have
been conferred with aO" *** of ju-dicial review under Articles 32' 136 and
226 of the Indian Constitution to ensure
that the rights of the common
people are not ua.'o""ty without due process of law The doctrine of
"f""ted
separationofpowershadadvocatedthatthedistributionofpowersbetween
the three organs of the state should be done
in a manner so that none of
over the two orga^ns'
in" afrt* orglo" could exercise a position of dominance
Articles32and226|avebeenincludedintheConstitutionwitht}reprimary
with reference to the
purpose of fulfilling tt" go"l" of checks and balances
functionsoftheothertwoorganssoa.stoensureth^attheydonotabuse
the powers conferred to them
their powers and they act witilin the scope of
under the Constitution'
 F-
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Judicizl Remedies 435 |
Textboob on Admiiistratiae Law

farnous political philosopher Alexander Hamilton' Ltd,. u. (Jnion of Indiaa the power of juclicial review was recognized as a basic
In the *,ords of and essential feature of the Constitution and no law passed by Parliarnent
Whoever atteutively considers the different departments of po'n'er
must perceive, in exercise of its constituent power could abrogate or limit its -scope.
that, in a government in which they are separated from each other' the In ^9.P. Sampath, Kumor u. (lnion of Ind,ias the Court discussed the
judiciary, f.on ttte nature of its functions. rvill ahvays be the least dangerous concept of judicial revierv in the context of regulating administrative actions
io tfre potitical rights of the Constitution; because it q'ill be least in a capacity and the power of the executive. It rn'as held that-
;; ;"";y or injure them- The Executive not only dispenses the honors' but
holds the sword of the community. The Iegislature not only commands
the
It is a fundamental principle of our constitutional scheme that every organ of
rules by which the duties and.rights of every citizen
frr..., brrt prescribes the the State, every authority under the Constitution, derives its power from the
aretoberegulated-Thejudiciary,onthecontrary,hasnorntluenceover constitution and has to act within the Iimits of such power. It is a limited
either the sword or the purse; no direction either of the strength or of the government which we have under the constitution and both the executive
wealth of the society; and can take no active resolution whatever- It may
truly
judgment; and must and the legislature have to act within the limits of the power conferred upon
be said to have neither FORCE nor WILL, but merely them under the Constitution:'Now a question may arise as to what are the
ultimately depend upon ihe aid of the executive arm even for the efficacy
of
powers of the executive and whether the executive has acted within the scope
its judgments. of its power. Such a question obviously cannot be left to the executive to
This simple view of the matter suggests several important consequences- It decide and for two very good reasons. First the decision of the question would
incontestably, th;t the judiciary is beyond comparison the
weakest of depend upon the interpretation of the Constitution and the laws and this would
;;; pre-eminently be a matter fit to be decided by the judiciary. because it is
f ih" thr"" departments of power, that it can never attack with success-either
*6* i*o; aod that all possible care is requisite to enable it to defend the judiciary which alone would be possessed of expertise in this field and
llf "i1n"
itself against their attacks. It equally proves, that though individual oppression secondly the constitutional and legal protection afforded to the citizen would
*"V and then proceed from the courts of justice, the general liberty of become illusory, if it were left to the executive to determine the.legality of
F "J*
the people can never be endangered from that quarter, I mean so long as the its own action. so also if the legislature makes a law and a dispute arises
s._
*:! judicia.i remains truly distinct from both the legislature and the Executive. whether in making the law, the legislature has acted outside the area of its
ii:J f".i-"gr"", that "thel is no liberty, if the power of judging be notlast separati:d Iegislative competence or the law is violative of the fundamental rights or of
from th1 legislative and executive powers. And it proves, in the place, any other provisions of the Constitution, its resolution cannot, for the same
I1
lLi\
t. ,t"i* libeity can have nothing to fear from the judiciary alone, but would reasons, be left to the determination of the legislature. The constitution
t';
z.t
:
have everything to fear from its union with either of the other departments; has, 'thetefore created an independent machinery for resolving these disputes
that as .il th" effects of such a union must ensue from a dependence of the and this independent machinery is the judiciar5r which is vested vvith the
l-

T former on the latter, notrrl.ithstanding a nominal and apparent separation;

that power of judicial review to determine the legality of executive action and the
:,1
tH,. rro- the natural feebleness of the judiciary, it is in continual jeopardy validity of legislation passed by the legislature. The judiciary is constituted
il,i "",- overpowered, awed, or influenced by its co-ordinate branches; and the ultimate interpreter of the Constitution and to it is assigned the delicate
ISr i
"i'U"i"g
that as nothing can contribute so much to its firmness and independence as task of determining what is the extent and scope of the power conferred on
:{
:r;
-
p..-"""""V iri office, this quality may therefore be justly regarded a's an each branch of government, what are the limits on the exercise of such power
'.)
llr
r.
iJi"p"""oUr" ingredient in its constitution, and, in^a great rneasure' a^s the under the Constitution and whether any action of any branch transgresses such
r,t i citadel of the public justice and the public security'2 limits. It is also a basic principle of the rule of law which permeates every
.il l
provision of the constitution and which forms its very core and essence that
l:i
lili1
.

In Kesauanand.o Bharati u. State of Keralas emphasizing the irnportance the exercise of power by the executive or any other authority must not onl5r
l.irl of frrr", of judicial review J.NI- Shelat and A'N' Grorrer' JJ had observed be conditioned b}' the constitution but also be in atcordance w-ith larv and
IE thit "Judlclal reuieu is undertaken by the courts "not out of any desire it is the judiciary u'hich has to ensure that the la*' is observed and there
is compliance with the requirements of law on the part of the executive and
to tilt at legislati.ae authoritY in a crusader's spirit, but in discharge of a
l.1,,
:1
i.l ,

In Mineraa IVi'IIs other authorities. This function is discharged by the judiciary by exercise of
ii d,uti;y plainly laid, d.oun upon thern by the Constituti,on". the power of judicial review which is a most potent weapon in the hands of
the iudiciarv for rnaintenance of the rule of law. The power of judicial review
1. Federalist PaPer No' 78'
3, was quoted by Rohinton Fali Narirnan J. it Madras Bar Associatim x. Union
2. The phssage 4. (1e80) 3 SCC 625.
3li
it. oJ India (2014) 10 SCC 1' 5. (1e87) l scc 124.
'l 3. (1973) 4 scc 225.
*.
 Tt.'
I
I
Textbooh. on Administrathte Lattt
1 ludicial Remedies $71 '

is an integral part of our constitutional system and without it' there will be
.to gorru.n-.nf of laws and^ the rule of law would become 'a teasing illusion
and a promise of uurealitY."
1O.2 PUBLTC LAW REMEDY/WRIT JURISDICTION
Public law remedies are exercised by the supreme court and the High court
under the provisions of Articles 32 and 226. These provisions confer the
power writ jurisdiction to the supreme court and High ,court respectively.
In addition, Articles 136 and 227 enable the higher judiciary to exercise
control over the functioning of all the lower courts, tribunals and other
quasi-judicial bodies.
Article 32 - Remedies for enforcement of rights conferred by this Part
(a) The right to move the Supreme Court by appropriate proceedings for
the enforcement of the rights conferred by this Part is guaranteed
::'
Court discussed the nature, scope and applicability of Article 32 of the
1
which corresponds to Article 32, was being discussed in the Constituent
Assembly, Dr Ambedkar nr.ade a meaningful observation by saying:
"If I was asked to name any particular article in this Constitution as the most
important an article rp'ithout w'hich this Constitution would be a nullity
I could -not refer to any other article except this one. It is the very soul
-of the Constitution and the
_very heart of it and I am glad that the House
has realised its irnportance."'
But though the right guaranteed by Article 32 is one of the highly cherished
rights conferred by the Constitution, the purpose for which that right can be
enforced is stated in the very Article which confers that right. The violation of
a fundamental right is the sine qua.non of the exercise of the right conferred
by Article 32.o
In the case of Charanjit LaI Choutd,hurg a. (Jnion of Ind,iae the Supreme

I
7 (b) The supreme court shall have power to issue directions or ordels Constitution. It observed-
a
or writs, including writs in the nature of habeas corpus' mandamus'
prohibition, quo warranto and certiorari, whichever may be appropriate' Article 32(1) of the Constitution guarantees to everybody the right to
# move this Court, by appropriate proceeding, for enforcement of the fundamental
for the enforcement of any of the rights conferred by this Part rights which are enumerated in Part III of the Constitution. Clause (2)
tr, (c) Without prejudice to the powers conferred on the Supreme Court by of the article lays down that the Supreme Court shall have the power to
clause (1f and (2), Parliament may by law empower any other :o".tt issue directions or orders or writs including writs in the nature of habeas
to exercise within the local limits of its jurisdiction all or any of the corpus, mandamus, prohibition, quo warranto and certiorari whichever may be
powers exercisable by the Supreme Court under clause (2) appropriate for the enforcement of any of the rights conferred by this part.
F
(d) The right guaranteed by this article shall not be suspended except as Thus anybody.who complains of infraction of any of the fundamental rights
rh otherwise provided for by this Constitution guaranteed by the Constitution is at liberty to move the Supreme Court for
the enforcement of such rights and this court has been given the power to
The primary objective of Article 32 is protection of fundarnental rights. it
B:
II
make orders and issue directions or writs similar in nature to the prerogative
provides a quick and guaranteed remedy in case of violation of fundamental writs of English law as might be considered appropriate in particular cases.
til rights. A person can directly go the supreme court under Article 32 for The fundamental rights guaranteed by the Constitution are available not
vindication of his fundamental right without requiring to approach any of merely to individual citizens but to corporate bodies as well except where
ffi
the lower courts. Article 32 is a fundamental right itself and hence cannot the language of the provision or the nature of the right compels the inference
lfi' be curtailed or restricted through legislative effort. The provision can only be that they are applicable only to natural persons. An incorporated company,
invoked when the administrative action is in violation of a fundamental right' therefore, can come up to this court for enforcement of its fundamental rights
# Highlighting the relevance of Article 32 in Constitution Y'V' Chandrachud and so may the individual shareholders to enforce their own; but it would not
be open to an individual shareholder to complain of an Act s'hich affects the
C.J. observed- fundamental rights of the company except to the extent that it constitutes
F an infi'action of his own rights as well. This follows logically from the rule of
fi! The jurisdiction conferred on the Supreme court by Article 32 is an important
and integral part of the basic structure of the constitution because it is law that a corporation has a distinct Iegal personality of its own with rights
1..'
:l'' meaningless to confer fundamental rights without providing an effective remedy and capacities, duties and obligations separate from those of its individual
$ for their enforcement, if and when they are violated. A right without a remedy
*:. is a legal conundrum of a most grotesque kind. while the draft Article 25' 7. Constituent Assembly Debates, December 9, 1948, Vol. VII, p. 953.
jtt 8. (1981) 1 SCC s68.
6. Ibid at para 8. 9. 1950 SCR 869 : AIR 1951 SC 41.

llL il
[!i
,:"1
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f ,i38 Textbook on Administtatioe Laza
members. As the rights are different and inhere in different legal entities,
it is not competent to one person to seek to enforce the rights of another
except where the law permits him to do so. A well-known illustration of such
is furnished by the procedure that is sanctioned in an application
"*""ption
for a rvrit of habeas corpus. Not only the man rvho is imprisoned or detained
in confinement but any person, provided he is not an absolute stranger, can
institute proceedings to obtain a writ of habeas corpus for the purpose of
liberating another from an illegal imprisonment.
.... Article 32, as its provisions show, is not directly concerned with the
determination of constitutional validity of particular legislative enactrnents-
what it aims at is the enforcing of fundamental rights guaranteed by the
Constitution, no matter whether the necessity for such enforcement arises out
of an action of the executive or of the legislature. To make out a case under
this article, it is incumbent upon the petitioner to establish not merely that
the law complained of is beyond the competence of the particular Iegislature
as not being covered by any of the items in the legislative lists, but that it
affects or invades his fundamental rights guaranteed by the constitution, of
which he .could seek enforcement by an appropriate writ or order. The rights
that could be enforced under Article 32 must brdinarily be the rights of the
petitioner himself who complains of infraction of such rights and approaches
lhe court for relief.lo
In tljjam Bai u. State of Uttar Pradeshlr it was held that the jurisdiction
for the enforcement of fundamental rights in
of Article 32 can be exercised
is taken under a statute which is
three category of cases - (1) where action
(2) where the statute is intra vires but the action
ultra vires the Constitution;
taken is without jurisdiction; and (3) where the action taken is procedurally
ultra vires as where a quasi-judicial authority under an obligation to act
judicially pass€is an order in violation of the principles of natural justice'
The power of judicial review of the Srtpreme Court is further extended
by Article 136 of the Constitution. Article 136 confers residuary or reserved
powet of judicial review in the area of public law which enables the Supreme
court in its discretion to grant 'special Ieave to appeal from any judgment'
decree, determination, sentence or order in any cause oI matter passed oI
made by any court or tribunal.' Thus Articlel36 does not confer a right of
appeal on any person but it confers a discretionary pow-er on the supreme
Court to interfere in suitable cases for the purpose of advancing the cause
of justice. In addition Article 142 empowers the supreme court to pass any
orier necessary for doing complete justice in any matter or cause pending
before it.
10. Ibid at para 44-45
11. (1963) I scR 778.
Judicial Remedies
' '1,-.
439:l:'
Article 226 - Power of High Courts to issue certain writs
(1) Notwithstanding anything in Article 32 every High court shall have
powers, throughout the territories in relation to which it exercise
jurisdiction, to issue to any person or authority, including in appropriate
cases. any Government, *'ithin those territories directions, orders or
writs, including writs in the nature of habeas corpus, ntandamus,
prohibitions, quo warranto and certiorari, or any of thern, for the
enforcement of any of the rights conferred by Part III and for any
other purpose
(2) The power conferred by clause (1) to issue directions, orders or writs
to any Government, authority or person may also be exercised by any
High Court exercising jurisdiction in relation to the territories within
which the cause of action, wholly or in part, arises for the exercise
of such power, notwithstanding that the seat of such Governrnent
or authority or the residence of such person is not within those
territories
(3) Where any party against whom an interim order, whether by way
of injunction or stay or in any other manner, is made on, or in an1'
proceedings relating to, a petition under clause (1), without
(a) furnishing to such party copies of such petition and all documents
in support of the plea for such interim orderl and
(b) giving such party an opportunity of being heard, makes an
application to the High court for the vacation of such order and
furnishes a copy of such application to the party in whose favour
such order has been made or the counsel of such party, the High
court shall dispose of the application n'ithin a period of two weeks
frorn the date on which it is received or from the date on which
the copy of such application is so furnished, whichever is later, or
where the High Court is closed on the last day of that period'
before the expiry of the next day afterwards on which the High
Court is open; and if the application is not so disposed of, the
interim order shall, on the expiry of that period, or, as the case
may be, the expiry of the aid next day, stand vacated
( ) The po$€r conferred on a High Court by this article shall not be in
derogation of the power conferred on the Supreme court by clause (2)
of Article 32
The powers of the High courts under Article 226 are wider than those
of the Supreme Court.l2 The jurisdiction can be exercised to invoke not only
violation of fundamental rights but also other legal rights. Hence in matters
ffiateofMaltara.s/ztro(1966)3ScR744:AIR1967SC1.

: jfl 440
. Textbook on Administrative Laztt
relating to violation of fundamental rights an action can be taken under
Article 32 as well as'Article 226 whereas in violation of other rights, the
jurisdiction under Article 226 alone can be exercise. Ordinarily if there are
efficacious and alternative remedies available, then the Courts may refuse to
exercise of their writ jurisdiction unless other remedial measures have been
. exhausted. However in cases of violation of fundamental rights, or breach of
principles of natural justice, or where the exercise of administrative power
was outside the scope or contrary to the provisions of the parent statute the
doctrine of exhaustion of remedies will not be applicable. ln State of Ori'ssa
u. Mad,an Gopal Rungtal3 speaking on the nature and scope of Article 226
the Court observed -
The language of the Article Shows that the issuing of writs or directions by the
Court is not founded only on its decision that a right of the aggrieved party
under part III of the Constitution (Fundamental Rights) has been infringed.
It can also issue writs or give similar directions for any other purpose. The
. concluding words of article 226 have to be read in the context of what precedes
the same. Therefore the existence of the right is the foundation of the exercise
of jurisdiction of the Court under this Article'
. In addition Article 227 invests the High court with the power of
?:' superintendence over all courts and tribuiralb within its jurisdiction. The
l1 power exercised by the Court is both administrative and judicial in nature.
F.
i'l
The power of superintendence includes the power to exercise judicial review
a, over the orders passed and actions taken all lower courts and tribunals'
'ih cases of
i
The scope of judicial review includes the power to interfere
acting beyond its jurisdiction, erroneous assumption of jurisdiction, refusal to
exercise jurisdiction, arbitrary or capricious exercise of power, error apparent
s
4 on the face of the record, patent error of procedure or arriving at a decision
based on material evidences resulting in manifest injustices etc.
1-
1"
1O.3 AUTHORITIES AGAINST WHOM WRITS CAN BE ISSUED
nt
'il
FJ writs can be issued against the state. Judiciary has made all attempts to
I rviden the application of writs against all authorities exercising authoritative
t:.
power of the state. In the $'ords of N.Iathe$' J. "The gouerning power
Fj
.i
whereaer located, must be subject to the fundarnental const'ituti'onal
limitations."ra
Under Article 12 of the Constitution the term 'State' includes-
(i) Government and Parliament of India,
13. 1952 SCR 28 : AIR 1952 SC 12-
14. Sukhd,eu Si.ngh a. Bhagatram, AIR 1975 SC 1331.
I
441'l
Judicial Remedies
(ii) Government and legislature of each of the State,
(iii) Local authorities and
(iv) Other authorities within the territory of India or under the control of
the Government of India.
The term Government includes both executive and administrative bodies
of the state such as Union Government, State Governrnent, President,
Governors, Government Departments Regulatory Authorities etc.
The term ,local authority' includes 'municipal corporations, improvement
trusts, district boards, mining settlement authorities and other local authorities
for the purpose of local self government or village administration.'rs
The judiciary has given a wide interpretation to the terrn 'other authorities'.
It has applied the test of whether a body is an instrumentality or agency
of the government for the purpose of being categorised as 'state' under
Article i2.16 Ac"o.dingly bodies which been created and incorporated under
the provisions of a statute and government incorporated bodies or statutory
bodies are labelled as 'state'. Other categories include government companies,
cooperative bodies, registered societies, universities etc'
1O.4 WHO CAN APPLY FOR WRITS
Any aggrieved person can apply for issuance of writs when his fundamental
rights have been violated. A petition for a writ of habeas corpus can be fiIed
by atty person whereas traditionally for a writ of certiorari, prohibition and
mandamus a petition by an aggrieved person or a person whose rights are
in jeopardy have been encouraged by the courts. The narrow concept of
locus stand,,i was liberatized by the Supreme Court in the case of Ferti,l'i'zer
Corporation Kamgar (Jnion a. (Jnion of India.rT Krishna Iyer J. made the
observation -
If a citizen is no more than a u'ayfarer or officious intervener without any
interest or concern beyond what belongs to any one of the 660 million people
of this country, the door of the court will not be ajar for him. But, if he
belongs to an organisation which has special interest in the subject-matter' if
he has some concern deeper than that of a busybody, he cannot be told off
at the gates, altLough u,hether the issue raised by him is justiciable may still
remainlo be considered. I, therefore, take the view that the present petition
would clearly have been permissible under Article 226. IBlack:The Right to
Be Heard, Nerv Zealand LJ, No a, N77, p 661
15. As included in Schedule VII' List II, Entry 5'
16. Ajas Hasia a. Khalid' Mujid, (1981) 1 SCC 722'
17. AIR 1981 sc 344.

I Judicizl Remedies 443:l
Textbook on Administratioe Lau;
11L42
In K,ishore Samrite u. State of U.Pr8 it was further clarified that-
[a] person who brings a petition even for invocation of a fundamental
right
must be a person having some direct or indirect interest in the outcome of
the petition on his behali or on behalf of some person under a disability and/
or unable to hal-e access to the justice systeni for patent reasolls. Still. such
a person must act bona fide and without abusing the process of law" Where
a person is a stranger/unknown to the parties and has no interest in the
outcome of the litigation, he can hardly claim locus standi to file such petition'
There could be cases where a public-spirited person bona fide brings petition
in relation to violation of fundamental rights, particularly in habeas corpus
petitions, but even in such cases, the person should have some delnonstrable
interest or relationship to the involved persons' personally or for the benefit
of the public at large, in a PIL. But in all such cases, it is essential that
the petitioner must kttiuit bona fides. by truthful and cautious exercise of
such right. The courts would be expected to examine such requirement at the
threshold of the litigation in order to prevent abuse of process of court.
10.5 PUBLIC INTEREST LITIGATION
Public Interest Litigation (PIL) is a judicial strategy to provide justice to
those individ.uals whose fundamental rights have been violated or infringed
but due to their socio-economic backwardness they are unable to appear
before the judicial authorities for vindication of their rights. The objective
of PIL is widen the concept of locus stand,i and allow a pro bono publico
petition to be filed on matters of public interest or behalf of those aggrieved
individuals who are not able to reach the doorsteps of the courts. The
genesis of PIL arises from the oath which the judicial officers take at the
time of holding the office that they shall always strive to uphold and defend
the constitution. The objective of PIL is to provide justice to the deprived
sections of the society. ln Veena Sethi. a. State of Biharrs Supreme Court
recognized that il is the solenn d,uty of this court to protect and uphold
the basi,c human rights of the ueaker sections of the soc'iety and by means
of the public interest litigation the judiciary is trying to discharge their
noble obligation.
In ,S.P. Gupta u. (Jnion of Ind,ia2o Bhagwati, J. speaking on the issue of
Iocus stand,i observed:
Any member of the public having sufficient interest can maintain an action
for judicial redress for public injury arising from breach of public duty or from
violation of some provision of the Constitution or the law and seek enforcement
of such public duty arrd observance of such constitutional or legal provision.
18. (2013) 2 SCC 398.
19. (1982) 2 scc 583.
20. [{ANU/SC,/0080/r98t.
[,,
. .l
The rule of law constitutes the core of our Constitution and it is the essence
of the rule of larv that the exercise of thg power by the State whether it be
the Legislature or the Executive or any other authority should be *-ithin the
constitutional lirrritations and if any practice is adopted by the Executive which
is inflagrant and systematic violation of its constitutional limitations. petitioner
No. 1 as a member of the public q-ould ha'r-e sufficient interebt to challenge
such practice by. filing a writ petition and it would be the constitutional dutl'
of this Court to entcrtain the writ petition and adjudicate uPon the validity
of such practice. We must therefore reject the preliminary contention raised on
behalf of the respondents challenging the locus of the petitioners to maintain
these rvrit petitions.
In Vishwanath Chaturued,i u. [Jnion of India2r it was clarified that
"the test which one has to apply to decide the maintainability of the PIL
concerns sufficiency of the petitioner's interest. In our vie$', it is wrong in
law for the Court to judge the petitioner's interest without looking into the
subject matter'of his complaint and if the petitioner shows failure of public
duty. the Court would be in error in disrnissing the PIL."
10.6 ABUSE OF PROCESS OF COURT
In the case of Kishore Samrite u. State of U.P.22 the Supreme Court
discussed the unwanted practice of abuse of processes of cburt and laid
certain important principles to deal with the sanne. Access jurisprudence
requires courts to deal with the legitirnate litigati'on uhateaer be its form
but decli.ne to exercise jurisdiction, if suclt' litigation'is an ab.use'of process
of court. The principles are
1. Courts have, over- the centuries, frorvned upon litigants who, with
intent to deceive and mislead the courts, initiated proceedings without
full disclosure of facts and came to the courts with "unclean hands".
Courts have held that such litigants are neither entitled to be heard
on the merits of the case nor are entitled to any relief-
2. The people, who approach the court for relief on an ex parte statement'
are under a contract with the court that they would state the whole
case fully and fairly to the court and where the litigant has broken
such faith, the discretion of the court cannot be exercised in favour
of such a litigant.
3. The obligation to approach the court rn'ith clean hands is an absolute
obligation and has repeatedly been reiterated by this Court.
2r. (2OO7) 4 SCC 380.
22. (2Or3) 2 SCC 398.
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'.i involved in
4. Quests for personal gains have become so intense that thosemisrepresent
In the leading Kanu Sanyal u. Distt. Magistrateza the petitioner
ca"se
and filedawritpetitionunderArticle32challengingthelegalityofhisdetention
litigation do not hes]t t. to take shelter of falsehood
rightfromthetinreofitsinceptionandprayingthathemaybesetfreeby
earli'est d'ate with
andsuppressfactsinthecourtproceedings.i\{aterialism,opportunism isJue of a writ of habeas .orprr". The Court held that the
andmaliciousintenthar'eovershadot,edtheoldethosoflitigative is the date of
- reference to which the legatity of detention may be examined
values for small gains'
fl.iing of the applicati'on
jor habeas corpus and the Court is not concerned'
5.Alitigantwhoattemptstopollutethestreamofjusticeorwhotouches prior to the initiation of the proceedings for a writ of habeas
is not entitled to any wi.th a d.ate
the pure fountain of justice with tainted hands corpus.Ontheissueofwhetherinawritpetitionofhabeascorpusitwas
judgment on the
relief, interim or final'
abused and in order
,r""u""try to produce the person, the Court negated the
6. The court must ensure that its process is not gro,r.rd ilrut ln. court was competent to d.i,spense with the producti,on of
to prevent abuse of process of court' it would of be justified bven in
serious abuse' the
thebodgofthepersond,etained'while'issuingrulenisi'and-therulenisi
insisting on furnishin! of security and in cases could. be heard, wi,thout requiring the bod'y of the
person d'etained' .'to be
court would be duty-bound to impose heavy costs' brought before' the Court.
must examine the
7. Wherever a public interest is invoked' the court
petition to ensure that there is genuine public polluted
interest (ii) Writ of Certiorari
""."frrily
involved. The stieam of justice should not be
allowed to be which means
The term 'certiorari' is derived. from the Latin word certiorar'i
bY unscruPulous litigants' to inform. The writ is generally used to quash judicial or quasi-judicial
maintain the strictest
8. The court, especially the Supreme Court' has to actionswhichareimproper'contrarytotheprovisionsoflaworhaserrors
ordinarily meddlesome
vigilance or'", tiu af*t of i'oce"s of court and on the face of the record. It has been used to invalidate actions
when the
bystanders not be granted "visa'"' Many societal pollutants authority lacks necessary jurisdiction, has acted in excess of jurisdiction,
"fro,tta and court should The writ has also
create ,r"* p.oblu-" of unted'essed grievances -the has cornmitted fraud or has ilo'sea the power conferred.
has acted contrary or in violation
enduretotakecaseswherethejusticeoftheliswelljustifiesit. been used if the administrative authority
of the principles of natural justice'
1O.7 TYPES OF WRITS of the writ of
In T.C. Basappa u. T. Nagap.po2s describing ttre.objective and quasi-iudicial
issuance of writs' certiorari as to supervise the functioning of lower lidicial
The public law remedies are generally exercised by the
Tlrerearefivekindsofwrits-habeascorpus'certiorari,prohibition'quo- authorities the Supreme Court has observed-

warranto and mandamus' Thecontrolwhichisexercisedthroughitoverjudicialorquasi-judicial In granting

tribunals or bodies is not in an appellate but supervisory capacity' of an
(i) Writ of Habeas CorPus a writ of certiorari, the superibi court does not exercise the powers
evidence- upon which
.you must have the body'. It is used Appellate Tribunal. It does not review or reweigh the
The Latin term .habeas corpus, implies thedeterminationoftheinferiortribunalpurportstobebased.Itdemolishes
primarilytosecurethereleaseofpersonwhohasbeendetainedillegally.It Under Article theorderq,hichitconsiderstobewithoutjurisdictionorpalpablyerroneous
is fundamental protector of our rilnt to liberty and freedom.Ir{agistrate within but does not substitute its own views for those of the inferior
tribunal' The
the
22 a person arrested is required to be presentuJ bufor" any person' supervisionofthesuperiorCourtexercisedthroughwritsofcertiorarigoestoand
issued against qualifications
24 hours of a.rrest. The writ of habeas corpus can two points, one is the area of inferior jurisdiction and the
since the objective is of law in the course of
including both public official and private individuals conditions of its exercise; the other is the observance
years the scope of court has acted
to prevent unlawful detention of any person' In recent mty lie and is generally granted when
its exercise. Certiorari 1
may arise
want of jurisdiction
application of the writ has been widened to include
relief against custodial without or in excess of its jurisdicti,on. T6e the absence of
from the nature of the subjeci-matter of the proceeding or from
to.to." and inhuman trea'tment'23
24. (1974) 4 scc 14r.
25. (1955) 1 scR 250.
sunit Batra rt. Delhi Administration' AIP. 1978 SC
1675'

-23.
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some preliminary proceeding or the court itself rnay not be legally constituted or discretionary functions. It is necessary that the person seeking the writ
or suffer from certain disability by reason of extraneous circumstances. When should prove that he has a legally protected and judicially enforceable
the jurisdiction of the court depends upon the existence of some collateral right.28 The writ of mandamus can be issued on all grounds on 'ivhich the
fact. it is well settled that the court cannot by way of a wrong decision of writs of certiorari and prohibition can be issued. In exercise of the power
the fact give its jurisdiction rshich it rvould not other$'ise possess"-' to issue the u'rit, the court does not sit as a court of appeal and does not
look into the correctness or merits of the action taken by the authority'
Some of the illustrative cases are - However the court would be reluctant to issue a rneaningless utrit which
ln Venkates,utaran u. Wad,huani26 the rvrit of certiorari was issued for would be of no effect to the person seeking the relief'2e
denial of principles of natural justice. In this case the Deputy commissioner The essential ingredients of mandamus are -
had confiscated an essential commodity without complying with the principles (a) There must'be a statutory or public duty and obligation
of natural justice. (b) There mrrst be a specific demand and refusal
(iii) Writ of Prohibition (c) There mrist be a clear right to enforce the duty
(d) The right must be subsisting on the date of the petition'
writ of prohibition is a judicial order issued by the higher judiclary suchand as
In (Jnion of Ind1a a- S.B. Vohraso the nature, scope and importance of
the Supreme Court o. tn" High Court to any constitutional, statutory
other administrative bodies so as to prohibit or prevent such bodies from the writ of mandamus was discussed-
jurisdiction
continuing to proceed in a matter wherein the authority lacks Mandamus liierally means a command. The essence of mandarnus in England
or acts in excess of jurisdiction. It is also issued to prohibit the authority
was that it wa.s a royal command issued by the King's Bench (now Queen's
from acting contrary to the principles of natural justice or in contra'vention Bench) directing performa,nce of a public legal duty' A writ of mandamus is
to a provision of law. issued in favoui of a person who establishes a legal right in himself- A writ
There is much commonality between certiorari and prohibitibn'in matters of mandamus is issued against a person who has a legal duty to perform but
has failed and/or neglected to do so. Such a lega! duty emanates from either
of scope and application but the distinction lies at the stage in which the in discharge oi a public duty or by operation of law. The writ of mandamus
writs can be issued. The writ of prohibition is issued to prohibit or forbid is of a most extensive rernedial nature. The object of mandamus is to prevent
the authority from continuing with the proceedings whereas ceitiorari is -t .-.
disorder from a failure of justice and is required to be granted in all cases
issued after the proceedings have been terminated so as to quash'the
final
i where law has established no specific remedy and whether justice despite
decision taken. The two writs can also be sometimes issued simultaneously demanded has not been granted.
so as to quash the decision on one hand and to prohibit the authority from
continuing with the matter in future' In Comptroller and, Aud,itor General of Ind,ia v. K.S. Jagannatha"r3l the
Court clarified the scope of application of the writ in discretionary matters-
(iv) Writ of Mandamus It was held that-
,Mandamus, is a Latin word which implies 'we command'. The writ is issued There is thus no doubt that the High courts irr India exercising ttreir
for enforcement of statutory duties or to compel a person holding a public jurisdiction under Article 226 have the power to issue a writ of mandamus
office to do or forbear from doing something which is incumbent upon
him or a writ in the nature of mandamus or to pass orderS and give necessary
to do or forbear from doi.g under the provisions of any la'w.27 It is issued directions s'here the Government or a public authority has failed to exercise or
by a superior court to compel the performance of such duties or forbearance has wrongly exercised the discretion conferred upon it by a statute or a rule
or a policy decision of the Government or has exercised such discretion mala
by a lower court or authoriiy, including a government official. The functional fide or on irrelevant considerations or by ignoring the relevant considerations
objective of the writ is to keep the public authorities within the limits
of
their jurisdiction while exercising the functions. Mandamus can only be
ffi €i Ind.ustriat Deuelopment corpn-, (1995) 4 scc 30r.
issued in the performance of mandatory functions and not that of optional 29. K.N. Guttrswomry a- Stote of Mysore, (1955) 1 SCR 305'
30. (2004) 2 scc r5o.
26. AIR 1961 SC 1506.
3r. (1986) 2 scc 679.
27. State of Bi.hor u- Chandradip r?oi' AIR 1981 SC 2O7l'
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and materials or in such a manner as to frustrate the object of conferring

(v) Writ of Quo-Warranto
The term 'quo warranto' implies 'by what wa'rrant or authority'' A writ of
has been
such discretion or the policy for implementing which such discretion
in ang proper case a High
conferred. In aII such cases and' other
jurisd,iction
fit and'
under Article 226, issue a qoo *".rrrrto can be issued when the holder of a public office has been
Court can, in the e:tercise of its appointed in violation of constitutional or statutory provisions.34 The
writ
writ oJ rnandantus or a urit in the nature of mandamus or pass orders and
u" issued by the higher judiciary to question the holder of public office
giue directions to conq)el the perlormance in a proper and l-autful rnanner
as to under what right he claims to hold the title to the office and
".r, on
of the d'iscretion .onferred, upon the Gouetnment or a public authority'
failure to do so, such unauthorized person can be ousted or removed from
andino,propercase,inordertopreuentinjusticeresultingtotheparties uhich the
concerned,, the court mag itself [)a'ss an order or giue d'irections such office.
or the puUil, ouihority should' haue passed or giuen had it for issuance of quo-warranto are -
Gouernment The esseritial ingredients
properly and' Iaufullg erercised i'ts discretion'" (a) Office must be a Public office
Analysing the meaning and scope of statutory^ duty' the Court in (b) Public office must be permanent in nature
Mansukhlal Vithald,a's Chiuhan u- State of Gujarat32 held thtt- (c) Person must be in actual possession of the office
Mandamus which is a discretionary remedy under Article 226 of of
the (d) Office must be held in contravention of statutory provisions
constitution is requested to be issued, inter alia, to compel performance In N. Kannadasan u. Ajoy Khosess Supreme Court analysed the applicability
public duties which may be administrative, ministerial or statutory in nature' of.thewritofquowarranto.Thewritshallbecomeapplicable_
Statutory duty may be either directory or mdndatory. Statutory duties,
if they
areintendedtobemandatoryincharacter,areindicatedbytheuseofthe (A)intheeventtheholderofapublicofficewasnoteligible.for
.shall' and .must, have,
words .shall, or .must,. But this is not conclrsive as appointment;
sometimes, been interpreted as 'may'.. what is determinative of
the nature of
of the (B)processualmachineryrelatingtoconsultationwasnotfullycomplied.
duty, whether it is obligatory, *t"dtto'y or directory' is the- scheme
judicial rernedy by which any
statuteinwhichthe.duty'hasbeensetout.Evenifthe.duty'isnotset . TLe writ of quo warranto proceedings affords a
outclearlyandspecificattyi.'thestatute,itmaybeimpliedascorrelative personwhoholdsanindependentsubstantivepublicofficeiscalleduponto
to a 'right'. "ho*bywhatrightheholdsthesamesothathistitletoitmaybeduly
determined and in the event it is found that the holder has no title
he v'ould be
Intheperformanceofthisduty,iftheauthorityinwhomthediscretionis . directed to be rem'oved. from the said offiee by a judicial order- The .proceedings
vestedundertheStatute,doesnotactindependentlyandpassesanorderunder not only give a weapon to control the executive from making a'ppointments
the instructions and orders of another authority, the Court would intervene to public tffice agaiirst law but also tend to protect the public fromabeing
deprived of public- office to which it has ir, right. It is indisputably
inthematter,quashtheorderandissueamandamustothatauthorityto high
exercise its own discretion." prerogativewritwhichwasreservedfortheuseoftheCrown.Thewidthand
qmbit- of the writ, however, in the course of practice, have widened and
it is
In National Tertile corpn. Ltd,. u. Haribor swalrarns3 it was held that permissible to pray for issuance of a writ in the nature of quo warranto'
there
the writ of mandamus has no application in a business contract where ln Corpus Juris Secundum 174 C'J'S' Quo Warranto $ 14]' nature"Quo Warranto"
are no statutory right or duty' The Court held that- is defined as under: "Quo warranto' or a proceeding in the thereof is
It is well settled that in order that a mandamus be issuedatostatute compel the aproperandappropriateremedytotesttherightortitletoanoffice,and
authorities to do something, it must be shown that there is which to remove or oust an incumbent
imposes a legal duty and the aggrieved party has a legal right under the
It is prosecuted by the state against a person who unlawfully usurps, intrudes,
statute to enforce it! performarr"". Th. pr*ent is a case of pure and simple
o. hold" a public office. The relator must establish that the officeisisentitled
being
business contract. The writ petitioners have no statutory right
nor is any unlawfully held and exercised by the respondent, and that relator
statutory duty cast upon the appellants whose performance may be legally to the office."
enforced. No writ of mandamus can, therefore, be issued as prayed by the
InLawLericonbyJ.J.S.Wharton,Esq.,1987,..Quo\Alarranto''hasbeen
writ petitioners. defined as under:
32. (1se7) 7 scc 622. M. N. Kannad'asan u. Ajoy Khose, (2009) 7 SCC 1

33. (2oO4) s scc 786. 35. Id.

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IdLEO
,.Quo w.lRReNTO, a writ issuable out of the Queerr's Bench, in the nature of
a writ of right, for the Crown, against him who claims or usurps any office,
franchise, or liberty, to enquire by what authority he supports his claim. in
order to determine the right. It lies also in case of non-user, or long neglect of
a franchise, or misuser or.abuse of it: being a Nrit commanding the defendant
to show by what warrant he exercises such a franchise having never had any
grant of it, or having forfeited it by neglect or abuse."
Thus the writ of quo warranto is issued when the appointment is contrary
to the statutory rules.36 ln Duryodhan Saltu (Dr.) u. Jitendra Kumar
MishrasT it was clarified that it is not for the court to embark upon
an investigation of its own to ascertain the qualifications of the person
concerned.
1O.8 STATUTORY REMEDIES OR PRIVATE LAW REMEDIES
Other than the availability of writ remedies, there are judicial remedies
available before the ordinary courts of the land through the ordinary process
of law to regulate administrative exercise of power. These ordinary remedies
are also referred to as private law remedies. Private law remedies are
cheaper and more easily accessible. The applicability of the scope of private
law rernedies are much broader keeping in view they allow for production
of evidences and witnesses.
The private law remedies are primarily exercised through three ways -
Injunction, Declaratory action and Suit for Damages.
1O.9 INJUNCTION
By grant of injunction a public authority can be compelled to do a thing
rvhich the law requires them to do or to refrain from doing something
which is considered to be illegal. Injunction can be issued against both
administrative and quasi-judicial bodies. The grant of injunction is governed
by Sections 36 to 42 of the Specific Relief Act, 1963
Injunction is classified into three categories - temporary, perpetual and
mandatory.
Section 36 of the Act provides for grant of injunction at the discretion
of the court. The temporary and perpetual injunctions are considered as
preventive in nature.
tI{ishanMazd'oorPanchayat,(20o3)4SCC712:2o03
SCC (L&S) 565 and R.K- Jain u. Un'ion of Ind'ia, (1993) 4 SCC r19'
37. (1998) 7 SCC 273.
Iudic;zl aemedus 45if7: '
Section 37(1) provides that temporary injunctions are to continue until a
specific time, or until further order of the court, and it rnay be granted at
any stage of the suit. The application of temporary iqjunctions is made under
the provisions of Code of Civil Procedure, 1908. Such injunctions are granted
at the insistence of the applicant on the ground that irreparable darnages
or losses will be caused to him during the pendency of the proceeding. The
primary objective of temporary injunction is to rnaintain status quo. It aims
to lessen the risk of irreparable injury and prevent injustice which cannot
be compensated by money or other -ea.ts.38
A perpetual injunction can be granted under Section 37(2) of the Act
which provides that the injunction can be granted by a decree made after
hearing both the sides and determination of the merits of the suit. Such "
an injunction can be gianted to the plaintiff to prevent the breach of an
obligation existing in his favor, whether expressly or by implication.3e In
case the defendant invades or threatens to invade the plaintiff's right to
property or enjoyment of such property, the court is empowered to grant a
perpetual injunction.ao In the following cases the court may grant perpetual'
injunction, namely-
(a) where the defendant is trustee of the property for the plaintiff;
(b) where there exists no standard for ascertaining the actual damage
caused, or likely to be caused,.by the invasion;
(c) where the invasion is such that compensation in money would not
afford adequate relief;
(d) where the injunction is necessary to prevent a rnultiplicity of judicial-
proceedings.
Under Section 39 of the Act mandatory injunction can be granted in
order to prevent the breach of an obligation by compelling the performance
of certain acts which the court is capable of enforcing- It is within the
discretion of the court to grant injunition to prevent the breach of the
complaint made and to compel the performance of the requisite et.4t
In a suit for perpetual injunction or grant of mandatory injunction the
plaintiff may make a specific claim for award of damages either in addition
to or in substitutiou of such injunction. Horvever no such relief of damages
ma1' be granted if the plaint does not make a specific claim for the anvard
of the same, but the court has the discretion to allow the plaintiff to
amend the plaint to include terms of such claim at any later stage of the
38. Hind.ustan Petrokurn Corporation Ltd. u. Sriman Nttrayan, (2002) 5 SCC 760-
39. Section 38 (1) of the Specific Relief Act.
40. Section 38 (3).
41. Section 39.

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IASZ Textbooh on Administratiae Lazl
proceedings.t2 of dismissal of a suit for preventing the breach of an
Ir,
obligation existing in fa.rou, of the plaintiff, will also act as
"u."e a bar to his
breach under Section 40(3)'
right to sue for damages for such
Therearecertaingro.,"d"onu'hichgrantofinjunctionmayberefused'
grounds -
Under Sec. 41 iIr;uncii'on may be refused on the following
judicial proceeding pending
(a) to restrain any pers'on from prosecuting a
- at the institution of the suit in which the injunction is sought, unless
suchrestraintisnecessarytopreventamultiplicityofproceedings;
(b)torestrainanypersonfrominstitutingorprosecutiriganyproceedingin
is sought;
a courr not suio.dinate to that from which the injunction
(c) to restrain any person from applying to any legislative
body;
(d)torestrainu,,.yp","o,,frominstitutingorprose.cutinganyproceeding
in a criminal matter;
(e)topreventthebreachofacontracttheperformanceofwhichwould
not be sPecificallY 'enforced;
ground of nuisance' an act of which it is not
'' to prevent, on the it will be a nuisance;
(f)
reasonably clear that
(s)topreventacontinuingbreachinwhichtheplaintiffhasacquiesced;
(h)whenequallyefficaciousreliefcancertainlybeobtainedbyanyother
usualmodeofproceedingexceptincaseofbreachoftrust;.
(i) when the conduct of the plaintiff or his agents has been such
as to
of the court;
disentitle him to the assistance
(j) when the plaintiff has no personal interest in the matter'
In State oJ Hargana u' State of Punjabas the Supreme Court differentiated
between the different forms of injunction and observed-
[T]hegenerallawrelatingtoinjunctionsiscontainedinSection36toSection
42 of the Spe.in" ["r-iJAct, igog. Although these provisions they
the powers of this Corr.t ,rna"t Article 131, nevertheless,
guidelines as to the nature of this form of equitable relief' An
Act' 1963'
permanent tp.rp.alr"D-"t temporary [Specific Relief
in t5e context of which
permanent i.r;rr.r"tJrr',i" n,'.t orrd "o.r"lrt"i.,re of the facts
theinjunctionisgranted.Atemporarl.injunctionbycontrastisgrantedona
prima facie \ri.* iiit" facts anJ, as the word "temporary" itself
aninterimo.a.,p..'aiogafinaladjudicationoftherightsoftheparties.This
distinction i" ,rot-io bJconfused with the distinction between
orpreventivein;urrctionontheonehandandamandatoryinjunctiononthe
other.Inthefirstcaseapartyispreventedfromdoingaparticularthingor
continuingrvithaparticularantion|Ibid,Section38.].Amandatoryinjunction
42. Section 4O.
43- (2004) 12 scc 673
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on the other hand corrrmands an act to be done and is provided for under
Section 39 of the Specific Relief Act, 1963 which reads:
39. Mand.atory injunctions--When, to prevent the breach of an obligation,
it is necessary to compel the performance of certain acts which the court
is capable of enforcing, the court may in its discretion grant an injunction
to prevent the breach complained of, and also to compel performance of the
requisite acts."
This command may direct the restoration of status quo ante or rnay direct
the performance of a positive act altering the existing state of things [I(err
on Injunctions, 6th Edn., p- 40]. A mandatory injunction like a preventive
injunction may be temporary or final.
1O.1O DECLARATORY ACTION
Declaratory action is a form of private law remedy wherein the court
declares the legal rights of the parties. It is described as a form of judicial
remedy which determines the rights and obligations of the public authorities
and private person without any additional coercive or obligatory directions.
Sections 34 and 35 of the Specific Relief Act contains the legal provisions
relating to declaration of status and rights.
Section 34 provides that any person entitled to any legal character or
any right to a property may institute a suit against such person denying
or interested to deny his title to such character or right and the court
may in its discretion make therein a declaration that he is so entitled to
such"a. right, and the .plaintiff need not in such suit ask for any further
relief. If the plaintiff is entitled to any consequential relief it is necessary
that the plaintiff must make a specific claim for it. A declaration so made
is binding only on the parties to the suit or any persons claiming through
them respectively.
may not limit The conditions for granting declaratory relief are -
provide valuable
may be
(i) The person must be entitled to a legal character or to a right to
injunction
Section 36']' A any property. Examples include right to official position, sex, marital
status, legitimacy, nationality, profession etc.
(ii) There must be some danger of deqial of such right or character.
indicates. is (iii) Plaintiff must specifically seek for further relief, if he is entitled for
it.
a prohibitory
In addition to the above, a suit for damages is also a remedy available
under the law. In case a person has been wronged by an action of an
administrative authority and he suffers an injury, then a suit for damages
can be filed in the ordinary civil courts of first instance. The procedural
rules laid down in the Civil Procedure Code will be applicable.
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Major Initiatives in
SUMMATION
for regulating
Promoting Good
Judicial control of administrative action forms the pillar the judiciary
administrative action. ordinary citizens are largely dependent
on Governance
for vindication of their legal right in case of infringement by
administrative
action. The public law rernedies form the primary Ineans for ensuring the
of legal rights of the citizens. The writ remedies are considered
-protection
to be more potent ind e*peditious from the citizen's perspective, hence

they are more popular' On the contrary the private law

remedies have
immensepotentialtoprovideeffectivelegalremediesagainstadministrative
abuseofpoweratamuchlowercost,butduetovariousfactorssuchas
complicated procedural rules, time consuming nature of
the proceedings etc'
has been hindered.
the popularization of the administrative action

11.1 PART | - INVESTIGATION AND INQUIRY

11.1.1 Introduction
In this last chapter an effort has been made to highlight the working of
some principal institutions as well as some major initiatives undertaken in
recent tirnes to fulfil the goals of good governance in India. The chapter has
been divided into three parts Part I deals with institutions involved in
investigating and inquiring on matters relating to corruption and governance'
Part II deals with institutions promoting accountability in public life and
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t- Maior Initiatiztes in Promoting Good Gouernance 457'1
| 456 Textbooh on Adrninistratioe Lazp

part III deals rn,ith some major government initiatives undertaken in recent and corruption, such as relating to violation of central fiscal laws, major
economic Lff"n".", financial frauds involving departments, public
joint stock
years to promote good governance and citizen-centric'administra,tion'
In the first part of the topic relating to irnplementation of Good companies,passportfrauds,crimesonthehighseas,crirnesontheAirlines
Govemance Initiatives a brief discussion about the two important
institutions and serious crimes committed by organised gangs and professional criminals.
for conducting investigation and inquiry - central Bureau of Investigation As a consequence the following divisions of cBI were set up6-
and comrnissions of I-nquiry have been undertaken. These institutions
have (1) Anti-Corruption Division - It is responsible for collection of intelligence
-been prirnary pillars for upholders transparency and accountability in public with regard to corruption, maintaining liaison with various Departments
Iife. through their vigilance officers, enquiries into complaints about bribery
andcorruption,investigationandprosecutionofoffencespertainingto
11.1.2 Central Bureau of lnvestigation (CBl) briberyandcorruptionandtasksrelatingtopreventiveaspectsof
corruption. The Anticorruption Division investigates cases against
The central Bureau of Investigation is the premier investigating agency
body public servants under the control of the central Government, public
of the country. It was set up as a special Police Establishment
corruption in servants in Public sector Undertakings under the control of central
to neet the challenges of gtowing incidents of bribery a,nd Delhi special Governrnent and cases against the public servants working under state
government officials. It was set up under the provisions of
Govt. entrusted to the CBI by the State Governments and serious
Police Establishment (DSPE) Act 1946' CBI is merely a change of
name
departmental irregularities cornmitted by the above mentioned public
from the Delhi Speci.i Polic. Establishment.l The superintendence of DSPE servants.
of
was originally exercised by the Home Department but after the enactment investigates financial crimes, bank
the central Vigilance commission Act, 2O03 the superintendence of DSPE (2) Economic offences Division - It
relating to offences under the Prevention of corruption Act, 1988 frauds,moneylaundering,illegalmoneymarketoperations'graftin
vests
with the CVC. Under Section 2 the jurisdiction of DSPE was to investigate . Public Sector Undertakings and Banks'
offences in the IJnion Territories only. But under section 5
of the Act, (3)SpecialCrimesDivision-Ithandlesallcasesofeconomicoffencesand
the Central Government has been empowered to extend the powers and all cases of conventional nature such as offences relating to internal
jurisdiction of Delhi Police Establishment to investigate an offence beyond . security,espionage,sabotage'narcoticsandpsychotropicsubstances'
the territorial limits of Dethi and by virtue of Section 6 the powers and antiquities, murd"rs, dacoities/robberies, cheating' criminal breach of
jurisdiction can be extended to any other state with the consent of the trust, forgeries, dowry deaths, suspicious deaths and other IPC offences
Government of that state. The constitutionality of cBI had been
upheld by as well as of'fences under other laws notified under the DSPE Act'
the Supreme Court in Ad.aance Insurance Co' i' Gurud'astna'' *":! It is also responsible for' investigation of interstate and international
!.!"t: ! rackets, Iarge-scale frauds affecting the property or revenue of the
Bengala.Commi,tteeforProtect'ionoJDemocraticRights'WestIJengaI"
and M.C Mehta (Taj Corrid'or Scam') a' (Jnion of Indi'a'a Tn Nauendra' Government and crimes of national importance'
Kumar u. [Jnion )y nan" the constitutionality of CBI was challenged before (4) Directorate of Prosecution - It was established in pursuance of the
the Gauhati High bourt and the Court upheld the contention on the
grou'd orders of Supreme court in vineet Narain case. The Directorate
in
that the cBI rn as not constituted under the provisions of the DSPE Act tenders legal advice in cBI cases, besides conducting prosecution
to
and established through an executir,-e order. At present the supreme court cBI cases. The Directorate also attends to matters relating legal
has imposed a stay o.t tn operation of the Gauhati High Court order' matters raised in the IGPs / DGPs conference, matters relating to
With passage of time a growing need to establish a Central Police Agency interpretation of laws, appointment of special counsels, statutory rules
and regulations and amendments thereof, preparation of notes on
Legal
was considered essential to deal with cases other than that of bribery
matters for publication in CBI Gazette etc'
to
1. (2014) 1 Gau LR 529- (5) Administration Division - It looks after all matters relating
2- (1e70) 1 scc 633. personnel, establishment and accounts of all the Divisions of the cBI
3. (2010) 3 Sec 571. and is headed by an officer of the rank of Joint Director /IG'
4. (2OO7) 1 scc 11o.
5. (2014) 1 Gau LR 529 O. CSf Information Availablc at : http://cbi-nic'in/aboutus/div'php'
 1
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I ASS Textbooh on Ad'ministratizte Lattt
(6) policy & coordination Division It deals with all matters relating
to policy, procedure, organisation, vigilance & security in the CBI'
correspondence and liaison with luinistries and implementation of
Special Programmes for vigilance and anti-corruption' etc'
(7) Technical Advisory Units - It provide expert guidarrce and assistance
in banking, taxation, engineering and foreign trading / foreign exchange
rnatters during enquiries and investigations taken up by the cBI. The
technical advisorY units are:
(1) Banking Cornpany Law/Insurance Advisory Unit'
(2) Engineering Advisory Unit (Civil/Electrical rnatters)'
(3) Taxation Advisory Unit (Direct/Indirect Tax matters)'
(4) Foreign trading/Foreign Exchange Advisory Unit'
(8) Central Forensic Science Laboratory
At present the CBI has euolued, from an ant'i-corruption agency tuith
capability, cred,ibili.ty and legal mandate to inaestigate and, prosecute
ofj"nces anywhere'li nam. It has been entrusted to deal. with offences
,rrrd", 69 existing central and 18 state Acts, 23L offences under the Indian
penal code have been notified to be tried under section 3 0f the DSPE
Act by the Central Government. The following broad categories of offences
are handled by the CBI-
(1) cases of corruption and fraud committed by public servants of aII
Central Govt. bepartments, Central Public Sector Undertakings and
Central Finarrcial Institutions'
(2) Economic crimes, including bank frauds, financial frauds, Import Export
&ForeignExchangeviolations,large-scalesmugglingofnarcotics,
antiques, cultural property and smuggling of other contraband items
etc.
(3) special crimes, such as cases of terrorism, bomb blasts, sensational
homicides, kidnapping for ransom and crimes committed by the rnafiaf
the underworld..
ln Vineet Narain u. (Jnion oJ Ind,ia7 recognizing the important role which
the cBI plays'in conducting crucial investigation the need for the insulation
of these agencies from any extraneous influence was emphaslsed bytake the
Supreme Court. It was instructed t]nat the Central Gouernment shall
aII measures necessary to ensure that the cBI funct'i,ons effectiuely and
effici.ently and is uieued as a non-partisan agency'
In Centre for Public Interest Litigation u' Union of Ind,ias it rvas
emphasised by the Supreme Court the need to protect and preserae
the
7. AIR 1998 SC 889 : (1998) r SCC 226'
8. (2015) 2 scc 362.
i, Pt"*oring
sanctity and, the fa'ir name of the institttti.on i.ncluding the reputation of the
Offi,ce of the D'irector of CBI. The Court directed that 'the CBI Director
Shri Ranjit Sinha should not interfere in investigation and prosecution of
the case relating to the 2G Spectrum allocation being carried out by CBI,
and to recuse hirnself frorn the case'-
In Manohar LaI sh,arrna u. Princi.pal Secy.e dealing n'ith the question
of the nature of procedural norrns applicable to the CBI, the Court held
that-
Once jurisdiction is conferred on CBI to investiga.te the offence bv virtue of
notification under Section 3 of the DSPE Act or CBI takes up investigation
in relation to the crime which is otherwise within the jurisdiction of the
State police on the direction of the constitutional court, the exercise of the
porver of investigation b5' cBI is regulated by the code and the guidelines
are provided in the cBI (Crime) NIanuaI... A proper investigation into crime
is one of the essentials of the criminal justice system and an integral facet
of rule of lar'. The investigation by the police under the code has to be fair,
impartial and uninfluenced by external influences. Where investigation into
crirne is handled by CBI under the DSPE Act, the same principles apply
and cBI as an investigating agency is supposed to discharge its responsibility
with competence, promptness, fairness and uninfluenced and unhindered by
' external influences.
.3 Commissions of Inquiry
11 .1
In Ildia the Commissions of Inquiry are constituted under the Commissions
of Inquiry Act, L952.
The commissions of inquiry are a hybrid of the judicial and administrative
limb of the State. Their primary function is to act as fact-finding bodies
which reports its findings to the government appointing it for the purpose
of their knowledge, inforrnation and guidance. They are deemed to be a tool
in the hands of the government for collection of informatiol on matters of
public importance. The Law commission of India in its 24th Report (1962)
on the Commissions of Inquiry Act, 1952 highlighted the genesis of the
legislation as-
The Commission of Inquiry Act, 1952 u-as enacted after due consultation s'ith
State Governments to facilitate the setting up of commissions with requisite
powers to inquire into and report on any matter of public importance.
Co.rernment realized, on the basis of its previous experience, that the expedient
of promoting special legislation for setting up a commission of inquiry each
tirne the need for it arose invol.t'ed a tardy process which more often than
9. (2Or4) 2 SCC 532.
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I Maior Initutrues in Promoting Good Goaernance ' 461 tl
.l 460 Textbooh on Adrninistratiae Lazp
not ended in the withdrawal of the proposals for inquiry' On the other hand
Government felt convinced of the utility of such inquiries a^s a means
of
arriving at a proper appraisal of matters of public importance and of infusing
the confidence of the intti" i., its administration and conduct- As the necessity
for such inquiries rvas bound to be recurring one, it *-as felt advantageous
tohaveanenactmentgeneralizingthepowerswhichcommissionsofinquiry
may exercise and leavit-rs it to the Government to constitute a commission
as and when necessary.lo
Ii Jagannath u. State of OrissaLT the object of the statirte was highlighted
as-
The purpose of the enquiry is stated in the preamble to the notification which
'states that .,the matters aforesaid regarding the aforesaid persons should be
enquiredintothroughaCommissionoflnquirysothatfactsrnaybefound
which alone will facilitate rectification and prevention of recurrence of such
Iapses and securing the ends of justice and establishing a moral public order
in future,,.. In oth"er words, the object of the enquiry to be made by the
Co-J""io.r appointed under Section 3 of the Act wai to take appropriate
Iegislative o. rd*irri"trative measures to maintain the purity and integrity
of
political administration in the State'
The important features of the legislation are-
(1) Appropriate Government on its own motion or on a resolution passed
bytheLegislaturecanappointacornmissionformakinganinquiry
into a definiti:. matter of pub1.ic. importance'
(2) Commission is conferred with thL powers of Civil Court for summoning
and enforcing attendance of any person, requisitioning documents'
receivinganypublicdocument,issuingcommissionfortheexamination
of any witness or documents etc'
(3)Natureof.functioningoftheCommissionisinvestigatoryand
inquisitorial.
(a) No statements made by a person before a commission can be used
against him in any civil or criminal proceeding'
(5) Deemed to be quasi-judicial body and bound by principles of natural
justice
(6) Commission acts as advisor to the government and makes
recommendationstothegovernmentforfutureofaction.
(7) Even if the recommendations are not be acceptable to the government'
but the publicity of . the recommendation ha,ve grea,t social and
administrative relevance'
10. 24th Las' Commission Report' p' L 14. Id (1988) 3 SCC 609, Para' 237.
11. (1968) 3 SCR 789, Para 11.
Highlighting the importance of the recommendations the Suprerne court
in Rarn Krishna Dalmio, 'u. Just'ice S.R. Tend'olkarr2
The whole purpose of setting up of a commission of Inquiry consisting
of experts u'ill be frustrated and the elaborate process of inquirl' u'ill be
deprived of its utility if the opinioir and the adrice of the expert bodl- as
to the measurcs and the situation disclosed calls for cannot be placed before
the government for consicleration notlvithstanding that doing so cannot be to
the prejudice of anybody because it has no force of its own. In our vierv the
recommendations of a commission of Inquiry are of great importance to the
government in order to enable it to make up its mind as to what legislative
or administrative measures should be adopted to eradicate the evil found or
to implement the beneficial objects it has in vie!r'. From this point of view,
there can be no objection even to the commission of Inquiry recommending
the imposition of some form of punishment which rvill, in its opinion, be
sufficiently deterrent to delinquents in future. But seeing that the Comrnission
of Inquiry has no judicial powers and its report will purely be recomrnendatory
and not effective proprio vigore...
In Kehar Singh u. Staterl it was further clarified that the statement
made by a,nA person before the Commissi.on of Inquiry under Sect'ion 6
of the Act is utholly inad,tnissible in euidence in any future proceedings
ciuil or criminal.
Speaking on the nature of proceeding followed by the Inquiry Comrnissions
the Court wa,s observed that-
The comrnission under our Act is given the pou'er to regulate its own
procedure and also to decide whether to sit in camera or in public. A
bommission appointed under the Act does not decide any dispute. There are
no parties before the commission. There is no lis- The commission is not
a court except for a limited purpose. The procedure of the Commission is
inquisitorial rather than accusatorial. The commission more often may have
to give assurance to persons giving evidence before it that their statements
wilf not be used in any subsequent proceedings except for perjurl'- Without
such an assurance, the persons may not come forward to give statements- If
persons have got lurking fear that their statements given before the Comrnission
are likely to be used against them or utilised for productive use on them in
an1' other proceeding. they may be reluctant to er?ose themseh'es before the
Commission. Then the Commission rvould not be able to perform its task.
The commission w-ould not be able to reach the nuggets of truth from the
obscure horizon. The purpose for which the Cornmission is constituted malr
be defeated.la
12. AIR 1958 sc 538.
13. (1988) 3 scc 609.

t
Textbooh on Administratiae Lata
. ., f/L62
ln Sanjiu Kum,ar u. State of Harganals an important issue was deliberated
by the court about whether the commission of Inquiry can be entrusted to
task
conduct inquiries in criminal ma,tters assisted by a special investigating
force. Negating the same the court highlighted some of the short comings
of the commissions of inquirl'
The flaw with Cornmissions of Inquiry, as revealed by experience, is that
they
do not h"*,. ..rongtr teeth and for their functioning they have to depend on
for
the State,s *"i"i".r-... Commissions of Inquiry remain pending unreasonable.
in spite
lengths of ti*.. ifrb repo.ts submitted do not bind the State and
of transparency and pullic he.rings which the commissions often hold. at
times with f..tf".., the reports traiaty serve any purpose' By the time
the
reportsaresubmittedthepublicmemoryhasalreadyfaintedandpeopleare
not any mo.e bothered about the results. It is in the discretion of the state
totakeornottotakeanyactiononthereportsubmittedbytheCommission
oflnquiryandthe.*p",i",,".isthatthefollow-upactiondependsmoreon
political considerations rather than for public good'
Wefeel,Commissionsoflnquiryaremoresuitedforinquiringintosuctr-so
matters or prruri" importa.rce *here the purpose is to find out the truth
as to learn lessons for the future and devise policies or frame legislation
to
avoid recurr".r."-"i lapses. Such Commissions do not suitably serve the object
of punishing the guiltY.
11.1.4 Present Significance
InthepresentcontexttheimportanceofCommissionsoflnquirycanbe
justifiedinthecontextoffulfillingthegoalsofpeople'srighttoknow-and
be informed about major events oi public importance under Article 19(1)(a)
of the Constitutiorr. B; conducting public inquiry into major socio-economic
and political matters it helps to promote transparency and good governance
in pubtic life. Alt efforts should be made to ensure that the independence
of the institution is protected and it does not become a tool of political
I'endetta in the hands of political establishments'
11.2 PART II - INSTITUTIONS PROMOTING GOOD
GOVERNANCE AND ACCOUNTABILITY
In the second part of the topic relating to implementation of Good Governan(:e
Initiatives a brief discussion about the three important institutions of
-ComptrollerandAuditorGeneraloflndia(CAG),CentralVigilance
commission (cvc) and Lokpal and Lokayukta have been done-
These
15. (2OO5) 5 SCC 517, Para 13
1"
i
Maior Initiatiaes in Promorirg GoS4 Gpylf4y" 4163l
institutions in recent years have been acting as crusaders towards promoting
accountability, transparency and rule of law in society.
Comptroller and Auditor-General of India (CAG)
11.2.1 Introduction
cAG is the supreme aud,it institution of India.16 It is created under the
Constitution of India as the 'auditor of India' and is neither part of the
legislature nor executive. Globally the rgle of government auditors in recent
' yerrs has undergone significant changes.lT It is recognized that the primary
functions of these institutions are beyond the traditional accounting tasks
and include program evaluations, policy analyses, and offering legal opiniorrs
and decisions on a wide range of government programs and activities.l8 The
functional objectives of these institutions are to promote a'ccountabilitA'
transparency and good goaerrrartce through high quality audit'ing and
accounting and prqaide independent assurance to our stakeholders, the
Legislature, the Erecutiae and, the Public, that public funds are being used
efficiently and, for the intended, purpose.re Ftom merely questioning whether
the government funds were being spent appropriately, these institutions
whether the various government schemes and programmes are in compliance
with constitutional goals and needs of the society. These institutions have
become flag bearers of transparency and accountability in government
activities. Recognizing the importance of CAG it has held that "functioning
of the Government is controlled by the government, laws of the land,
legislature and the CAG".2o It has the power to examine tlire propriety,
tegalitg and ualid,ity of all the government expenditures-
The uN General Assembly had passed a resolution in 2oI2 for the purpose
'promoting the efficiency, accountability effectiveness and transparenc^y of
fublic administration by strengthening supreme audit institutions'.2\ It
emphasised the importance of the SAIs in promoting national,_development
objlctives as well as internationally agreed development goals'22
16. The Comptroller and Auditor General is knos'n as the Supreme Audit Institution in in-
ternational parlance.
17. In US the name of General Accounting Office has been changed to Goxemment Acc-ount-
ability Office.
:b!!DJJ
18. David lvI. Walker, GAO Answers the Question: What's in a Narne?, Available at
www.saiindia.gov.in/english/home/about_us/mandate/Excerpts/excerpts-
mandate.pdf.
19. Comptroller and Auditor General of India, available at, http:f fwww.saiindia-gov.in/
english/index.html.
of Tami'l Nadu (2013) I SCC
2O. S. Subramniam Bolaji' u. State 659
21. UN General Assembly Rcsolution - A/F.e*./66/2O9-
22. td.
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I Maior Initiatiues in Promoting Good Goaernance 465;l
Textbooh on Administratbe Lavt
1464
11 -2.2-l CAG' historicol background
The office of the cAG rvas established for the first time in the year 1858
when the British Crown proclaimed their authority to govern the British India
from the East India Cornpanv.23 The office t'as designated as Accountant
General to Governrnent oi India and was responsible for maintaining the
accounts'of the Indian Empire as well as performing audit. In 1884 thc
designation was changed to comptroller a,nd Auditor General of Accounts.
By the Government or tnaia Act, 1935 several changes were introduced in
the functioning of the cAG to ensure' his functional independence- Firstly
the CAG was to be appointed by the King of England, secondly he could
be removed from office 'in like manner and on the like grounds as a judge
of the Federal court" and thirdly on vacating office he could not hold any
other office under the Crown in India'
1 1.2.2.2 Constitutionol authority
Articel 148 of the constitution provides for the appointment of the comptroller
and Auditor,General of India for the purpose of auditing all receipts and
expenditure of the Government of India and the state governments, including
those bodies and authorities which have been substantially financed by the
governrnent.2a In Asrociation of Unified TeIe Seraices Prouiders a- Union
iy tnd,lo," the Supreme Court categorically observed that "Duties and powers
conferred by the Constitution on the CAG under Article 149 cannot be
taken away by the Parliament, being the basic structure of our constitution,
Iike Parliamentary democracy, independence of judiciary, rule of law,'judieial
review, unity and integrity of the country, secular and federal character of
the Constitution, and so on".
cAG is also the external auditor of Government-owned corporations and
conducts supplementary audit of government companies, i'e' any non-banking/
non-insuranc" wherein the state and the Union governments have
"o-prrri.s
an equity share of at least 51 percent or they are subsidiary companies of
existing government comPanies.
CAG is the head of the Indian Audit and Accounts Department, which
comprises of officers of the Indian Audit and Accounts Service.
The Constitution has not prescribed any qualifications for the appointment
to the post of CAG, but traditionally it has been held by a civil servant. Ou
the issue of whether the CAG should be selected from amongst Chartered
ffi,Availableat:lrttp://wwu'.saiindia.gov.in/englis}r/home/
about-us/history/199O-2O07 /Yol / chap- 1'pdf'
-I
24. S. Subramnianr Balaji u- Stote of Tarnil Nad'u, (2013) I SCC 659
25. Judgment delivered on April 17,2Ol4'
I
Accountants, a rnember of the drafting committee of the constitution shri
T.T. Krishnamachari had observed, "[A]ctually the rnan utho is an Aud'itor
General ,is not an Accountant per se. He ha,s tt nurnber of other duti,es to
perform and, in so functioning, he has got to haue a knouledge of the entire
-administration
and. I think the present method of appointrnent oJ Aud:itors
General i,n Ind,ia is perhaps the best."26 In the case of N. Gopalastuami
u. (Jn,ion of Ind.ia27 it was reiterated that the appointment procedure laid
down under Article 148(1) only stipulates that the CAG will be appointed
by the President by warrant under his hand and seal on the aid and advice
oi th" .Council of l\{inisters headed by the Prime l\tlinister' "There is no
prescribed criteria as to what qualifications a person must possess before
he is considered for the post of the CAG.... Of course, the person being
considered for the position of the CAG must have a comprehensive knowledge
of the entire administration".28 It was further clarified that the since the
constitutional post of a cAG is an integrity institution the incumbent
must haue the qualities of cornpetence and integritg'"
| 1 .2.2.3 Status and Power
CAG is ranked gtl' in the Indian order of precedence and enjoys the status
of a judge of the supreme court. He is appointed by the President of India
on the recommendation of the Prime Minister. on appointment he dakes the
oath of upholding the constitution and other laws of India and safeguard
the interests of the public exchequer3o His function is often described as
,the guard,ian of the purse and, that he should see that not farthing of it
is ipent uithout the authority of th'e Parlia'ment''
The salary and other service conditions are determined by the Parliament
through the Comptroller and Auditor-General's (Duties, Power and Conditions
of service) Act, 1971. The statute.entitles the cAG to enjoy salary equivalent
to the of a judge of the Supreme Court. His salary is charged on the
"riu,ry
Consolidated Fund of India.3l The statute also provides for security of tenure
and independence in office by ensuring the salary, his legal rights, retirement
benefits etc. cannot be varied to his detriment after his appointment'32 In
addition. the cAG can be only removed from office in a manner and on
ffieneralofIndia_ATherrraticHistory199G'2007Vol-l'p.
10.
27. WP(C) 4653/2013 Judgment delivered on 13'O8'2O14'
28. N. Gopatasuami u. Union of Ind.ia, ld at Para 46'
29. N. Gopalaswanni a. {Jnion of Indio, ld' at Para 46'
3O. Constitution of India, Third Schedule, Part IV'
31. Article 148 (6).
32. Article 148 (3).
 I
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I Major Initiz.tiaes in Promoting Good Goz:etnance 467 |
14,6 Textbook on Adntuistrdtbe La@

perspective of ensuring efficiency and effectiveness of government functions

groundssimilar.toajudgeoftheSuprerneCourt.Afterheceasestobein of and resources utilization.
office he becomes in"iigibl. to hold office either under the Government
Sorne of the duties of CAGao are
India or under any of the state government'33
and the (i) To audit all expenditure from the Consolidated Fund of India and of
Speaking on the importance of CAG in modern da,v governance
of the office Dr. Arnbedkar each State and Union Territory and to ascertain rvhether the rnonel-s
need to uphold the dignity and the independence
that shown in the accounts as having been disbursed were legally available
had observed, "Persolnally speaking for myself, I am of the opinion forandapplicabletotlreserviceorpurposetowhichtheyhavebeen
-thisdignitaryorofficerisprobably'themostimportantofficerintlre
than appliedorchargedandwhethertheexpenditureconformstothe
constitution of India... and his duties, I submit, are far mole important authoritY which governs it;
the duties even of the judiciar)' - he should be certainly as independent aS

the Judiciary".3a (ii) To audit all transactions of the Union and the States relating to
Contingency Funds and Public Accounts;
11 .2.2.4 Functions. (iii) To audit all trading, manufacturing, profit and loss accounts and
powers as balance.sheetsandothersubsidiaryaccountskeptinanydepartmentof
The cAG is required to perfo^rm such duties and exercise such
prescribed by the Parliament.3s Post-independence there existed four
field the Union or of a, State, and in each case to report on the expenditure,
offices within the Audit Department namely civil, P&T, Raihvay and transactions or accounts so audited by him;
Defence services audit offices. The department was faced with severe
-h:"9"" (i.r) To audit receipts and expenditure of bodies or authorities substantiallv
resource as well as financial crisis in face of the growing responsibilities.' financed from Union or State Revenues;
The functions and the activities of cAG increased manifold with Plans
twin (v)ToaudittheaccountsofGovernmentcompaniesandcorporationsl
system under the Five Year and
development of centralized planning
of (vi) To audit the aicounts of any other bodies and authorities as requested
the growth of the public sector enter.prises. In recent years the creation
by the President or the Governor of a Statd'
alrd the process of economic liberalization
the Panchayati Raj' Institutions other function includes auditing of accounts of stores and stocks kept in
had further increased their responsibilities' any government office or departmental; auditing of all receipts which are
The comptroller and Auditor-General's (Duties, Power and conditions p"V"Uf. into the Consolidated Fund of India and of each State and also to
of Service) Act, 1971 lays down thb duties and''powers ofand CAG' The
audit all Lrr"rr" that all rules and procedures designed to secure an effective check
primary function is to conduct audit of government accounts
on the assessment, collection and proper allocation of revenue are duly
u*pu.rditrrr"s of the union and the state government, whether
incurred in
the accounts complied witha2 etc-
Irrdia o. outside. The duties and function includes compiling The cAG has been entrusted u'ith the povver to inspect any office of
ofanyparticularserviceordepartmentstheljnionandofeachStateor accounts, require the submission of any accounts, books, papers or
any other
the accounts of any particular class or character.36 The accounts of the
by documents for the Purpose
government tr" ,"qrri."d to be maintained in the form as prescribed
and framed for the .2.2.5 CAG RePorts
iir. CAG.3t It has io .n"rrr. that the rules procedures 1l
purpose of effective check on the asse,ssment, collection and proper "lt?:1t-.r1l; The reports of the cAG are relating to the accounts of the union are
of re'enue are being strictly adhered.S8 In Aruind Gupta a- Uniort
of Indza""
,eq,ri.pi to be submitted to the President, who shall cause them torvill
be
it was reiterated that the function of CAG should be aDalysed from the laid before both Houses of Parliament and those relating to the States
be submitted to the Governor for the purpose of being placed before the
33. Article 148 (4). ;;;;;t*t".n'-ln Arun Kumo, 't'so'*it u' [Jnion of Ind'iaaa the court
34. The comptroller & Auditor General of India - A Thematic History 199O-2007 Vol-r
p. 11. 4O. See generally Sections 13, 14, 15, 19 and 2O'
35. Article 149. 41. Section 15.
36. CAG Act S. 10.
42. Section 16.
37. Article 15O.
43- Article 151.
38. , rzn Kumar Agontsal u' IInion of India' (2Oi3) 7 SCC 1'
44. (2or3) 7 scc 1

39. (2013) I scc 393.


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emphasized that by placing the reports in the Parliament, the cAG facilitates
the accountability of the Executive to the Parliament on financial issues and
thereby upholds the principles of parliamentary democracy'
In recent years the various reports of the cAG dealing with commonwealth
games, allocation of 2G Spectrum, coal mines have assumed great significance
as they have been instrumental in exposing corruption and consequently loss
to the government exchequer.
11.2.2.6 Power to audit private corPorations
In the case of Association of Unified Tele Seruices Prou'iders u' Union
of Ind,iaas the Supreme Court had to deal with the crucial question
regarding whether CAG can exercise the authority to conduct audit of
pri.rate corporations such as the tele-service providers r.vhen tfrey deal with
natural resources belonging to the nation. It categorically held that it is
the responsibility of the cAG to ensure that all the rules and procedures
are p.operly adhered by the Government as well as the private servicc
p.o.rid.o when they deal with important natural resources of the nation'
lt observed-
like spectrum, which
[W]hen the executive deals with the natural resources, know how the
L"ll.rgs to the people of this country, Parliament should
nation,s wealth tras teen dealt with by the executive and even by the UAS
quantum of the Revenue generated out of the use
Licence holders and the
of the spectrum and whether the same has been properly assessed, collected
and accounted for by the Union and the UAS Licence holders. When nation's
wealth, like spectrum, is being dealt with either by the union, state or its
instrumentalities or even the private parties, Iike service providers, they are
accountable to the people and to the Parliament. Parliamentary democracy
also envisages, inter alia, the accountability of the council of l\'finisters to
the Legislature.
while examining the scope of Article 149, read with Section 16 of 1971
Act, let us not forget that we are dealing with a natural resource which
belongs to the peoples of this country, and hence we have to give a purposive
interpretation to Article 149 read with section 16 of 1971 Act and RuIe 5(i)
(ii) of 2002 Rules.
Parliament has an obligation to ascerta,in whether the entire receipts by way
of Iicence fee, spectrum charges, have been realizcd by the union of India and
credited to the consolidated Fund of India (cFI). Article 266 says, all the
public moneys received by or on behalf of the .Government of India shall be
45. CA NO.4591 OF 2014 Judgment delivered on April 17,2074'
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Maior Initizthtes in Promoting Good Goaernance 469
| ''''
credited to CFI. CAG can carry out examination into the economy' efficacy
-and eff'ectiveness with which the union of India has used its resources, and
whether it has realized the entire licencee fee, spectrum charges and also
whether the Union of India has correctly carried out the audit under Clauses
22-5 and 22.6 of uAS Licence Agreement. cAG's examination of the accounts
of the Service Providers in a Revenue Sharing Contract is extremely important
Provider and
to ascertain whether there is an unlawful gain to the service generated out
an unlawful loss to the Union of India, because the revenue
of that has to be credited to the consolidated Fund of India. The subject
..Spectrum'', a
matter, with which we are concerned, as already indicated, is
natural resource, which belongs to the people, therefore, people of t!i1 country,
through Parliament should know how its natural resources have been dealt with
bv th"e t-Inion, state or its instrumentalities or even by UAS licence holders'
Instauces are not rare, where even the Executive, at times, acts hand in
glove
with licence holders, who deal with the natural resources' hence, necessity of
proper parliarnentary control over the resources' We have to understand the
ol Article l4g of the constitution, section 16 of 1971 Act and RuIe 5
""opu
of TRAI Rules 2002,.in that perspective'
Post liberalization the role and function of the state has undergone
changes. Privatization and private-public partnership models' have become
the norm for economic activities as well as executing major infrastructure
projects. Under the present scheme of things almost 65 percent of government
judiciary has
spending does not corne unde, the scrutiny of the CAG' The
,u"ogrrir.d the growing importance of CAG as an important social audit
and accountability institqtion and has categorically held that the role and
responsibility of CAG should accommoda'tg the changing 'demands of the
day and should function in a way so as to ascertain that the citizens and
the Union of India receives their due share from exploitat'ion of national
wealth and resources and that the unscrupulous and corrupt practices of
some individuals do not give rise to windfall gains to few. It is important
thatalleffortsshouldbemadetoenabletheCAGtoactasanintegrity
institution by enabling it to work in an independent and professional manner'
Thus it has become necessary to arnend the Audit Act 1971 to bring all
private-public partnerships (PPPs), Panchayati Raj Institutions and societies
getting government funds within the jurisdiction of CAG'
11.2.2 Central Vigilance Commission
of
on the basis of recomrnendations made by the cornmittee on Prevention
Corruption, popularly known as the Sanih.rrt* Comrnitteeao, th" Central
Vigilance Commission (CVC) was set up by the Government of India
in
in the field of
1964 to aid and advise the central Government agencies
46. Comrnittee chaired bv Shri K' Santhanam'
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E
I -
,i'
vigilance. As a consequence of the judgment of the Supreme Court in Vineet
Narain u. (Jnion of Ind.i.aa7, through the Central Vigilance Cornmissiorr Act,
2003 the institution was conferred with statutory status. It is t}lLe aper
uigilance institution in charge of monitoring all vigilance activity of the
Central Government organizations in 'planning, executing, reviewing and
reforming their vigilance work'.48 It acts as a vigilance authority over the
administration of d.ifferent \{inistries and other organizations of the Central
Government. The Commission functions through adrninistrative set uP,
guidelines and manuals.
Under the CVC Act the commission is a multi-member body consisting
of a Central Vigilance Commissioner and not more than two Vigilance
Commissioners (members). The total sanctioned strength of the Commission
is 296 officials. All government departments and organizations under the
Commission's jurisdiction has vigilance units headed by Chief Vigilance
Officers (CVO). The CVOs are considered as an extended arm of the
Commission.
The primary function of cvc is to advise the central Government on
all matters pertaining to the maintenance of integrity in administration.
It has its own secretariat, chief Technical Examiners' wing (cTE) and a
wing of Commissioners for Departmental Inquiries (CDI).
The CTE is concerned with the technical wing of the CVC and is headed
by two Engineers of the rank of chief Engineers (designated as chief
Technical Examiners) and is supported by a group of engineering staff. The
primary functions of CTE are-
o Technical audit of construction works of Governmental organisations
from a vigilance angle;
o Investigation.of specific cases of complaints relating to construction
works;
o Extension of assistance to CBI in their investigations involving technicai
matters and for evaluation of properties in Delhi; and
o Tendering of advice / assistance to the Commission and Chief Vigilance
Officers in vigilance cases involving technical matters-
The CDI comprises of fourteen Commissioners for Departrnent Inquiries
whose primary function is to act as Inquiry Officers and conduct oral
inquiries in departmental proceedings initiated against public servants. Under
Sectionl4 of the CVC Act an annual report is required to be submitted to
the President of India highlighting the work done by the Commission during
the year.
47- (1998) I SCC 226.
48. Abailable at : http:f f cvc.gov.in/cvc-back.htm (last visited 20/LL/15)'
.;
i{
ir
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t
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Maior Initiatfues in Promoting Good Goaernance 47t*l
(i) Vigilance Activities
Under the CVC Act 2003 the is ernpowered to call for reports,
Comrnissiorr
returns, statements from all Ministries / Departments / Corporation / Central
Lrndertakings so as to enable it exercise general check and supervision over
their vigilance and anti-corruption n-ork. The CVOs of different organizations
are required to submit quarterly progress reports to the Cornrnission.
(ii) Dealing with Anti-Corruption Matters
CVC exercises superintendence over the working of the .Delhi Special Police
Establishment (cBI), which is the principal investigating agency of the
Central Government in anti-corruption matters, in all matters relating to
investigation of offences under the Prevention of Corruption Act, 1988.
By a government resolution on 'Public Interest Disilosure and Protection
of Informer' the CVC has been authorized as the Designated Agerrcy to
receive all written complaints dealing with corruption or rnisuse of office
and make necessary recommendation for appropriate action.ae In 2014 the
Commission tendered advices in 5867 cases involving major and minor
penalty proceedings.so It recommended grant for sanction of prosecution in
93 ...., and against 133 public servants in the year 20L4'5r
The CVC had a,Iso provided special assistance to the Supreme Court in
the 2G Spectrum cases and the coal block allocation matters' Ur,rder the
Lokpal and Lokayuktas Act, 2013 the cvc has been empowered to conduct
preliminary inquiry into complaints referred by the Lokpal. The Act also
provides for constitution of a Directorate of Inquiry to be constituted within
the CVC.
(iii) Integrity Pack
one of the pioneering initiatives of the commission was to promote
transparency, equity and competitiveness in public procurerrrents through
the Integrity Pact (IP). In 2007 the comrnission irnplemented the concept
of IP in respect of all major government procurements wherein 'an
agreement is made between the prospective vendors/bidders and the buyer
committing the persons / officials of both the partie-s not to exercise any
corrupt influence on any aspect of the contract.'S2 Under the Standard
Operating Procedure for implementation of IP a panel of Independent
External Monitors is required to be appointed for reviewing independently
49- GOI Resolution dated April 2004
50. CVC Annual RePort 2014.
51. Id.
52. CVC Office Order No. 4l/12/OT dated 04.12.2OO7

I Maior Initiatiaes in Prornoting Good Gozternance 473 |
1472 Textbook on Adrninistrative Lata
ancl objectively the compliance of IP. Application of the IP is ma'ndatorv
for all l\,Iinistries/Departrnents/ Organizations and as part of it nearly
100 Ministries / Depaitments f Organizations have appointed Independent
External N{onitors. It has been advocating for the use of e-procurement
technologies for procurements/contracts so as to ensure transparency in
government procurements and better project management'
-(ir)
Guidelines for Intensive Examination of Public Procurement and
Other Contracts 2014
The commission has recently come out with a detailed guideline on various
public procurement contracts such as work contracts, purchase of..goods,
Lirirrg of services etc. These guidelines are required to be treated as
,standard operating Procedure' in public procurelnent matters-
11.2.3 LokPal and Lokayukta
The first Administrative Reforms Commission had recommended the setting
up of the institution of Lok Pal. The ARC headed by Shri Moraji Desai had
submitted a report on 'Problems of Redressal of citizen's Grievances' in
1966'
The report recommended for the creation of the two institutions of Lokpal
and Lokayukta to deal with iiti'en's iedress. The Lok Pal as an institution
was supposed to act as a toatchd,og ouer the integrity oJ Ministers and
the Mirnbers of Parl,iament. subsequently the Lok Pal BilI was introduced
several times in Parliament but it failed to be enacted into law.
Based on the recommeridation of the fi."i"'la-inistrative Reforms
commission Lokayukla *,as constituted in many States to investigate
allegations or grievances arising out of the conduct of public servants
inclJding political executives, legislators, officers of the State Government'
locat bodies, public enterprises . and other instrumentalities of Government'
in
It investigates into allegations of corruption and mal-administration was the
public offi"u, and tries to redress public grievances. Maharashtra
first state to introduce Lokayukta through the l\{aharashtra Lokayukta
and Upa-Loka;ruktas Act 1971. There are about 19 states which have
introduced Loka;rukta. There are no Lokayukta in Arunachal Pradesh,
Jammu and Kashmir, I\tlanipur, 1\'Ieghalaya, Mizoram, Nagaland' Sikkim'
Tamil Nadu, Tripura and west Bengal. A Lokayukta is generally a former
High court chief Justice or a supreme court judge. A citizen can make
a
any public servant or elected
coirplaint directly to the Lokayukta against
representatives. The LokaS'ukta can also initiate suo-motu inquiry into
the
The institution of Lokayukta in Karnataka
conduct of public servants.
is considered as one of the most effective bodies. Santosh Hegde, former. of
Lokavukta of Karnataka had uncovered one of the biggest mining scams
I
bhe country and which lead to the imprisonment of the then Chief Minister
Yeddyurappa.
In 2013 after major public outcry and large scale demonstrations by
eminent anti-corruption activist Shri Anna Hazare, the Parliament enacted
.The Lokpal and Lokayukta Act, 2013. The larv was enactd \\'itll the
objective 'to provide for the establishment of the institution of Lokpal to
inquire into allegations of corruption against certain public functionaries and
for matters connecting them.' Some of the major features of the Act are-
(i) Act is applicable to States if they give consent to its application
(ii) Act excludes public servants who are covered under the Army Act,
1950; the Air Force Act, 1950; the Navy Act, 1957 and the Coast
Guard, 1978.
(iii) Lokpal shall consist of a chairperson and such number of Members
not exceeding eight.
(vi) Appointment of a Director of Inquiry and a Director of Prosecution.
(v) Director of Inquiry shall be for the in charge of the Inquiry Wing
constitut6d for the purpose of conducting preliminary inquiry into any
offence alleged to have been committed by a public servant punishable
under the Prevention of Corruption Act, 1988.
(vi) Director of Prosecution shall be for the in charge of the Prosecution
wing constituted for the purpose of prosecution of public servant in
relation to any complaint by the Lokpal under the Act'
(vii) Inquiry can be conducted in an allegation of corruption made against
a Prime Minister, I\4inisters, Members of Parliament, Groups A, B,
C and D officers and officials of Central Government, and officers.
directors and mana,gers of corporations and bodies established by
an Act of Parliament or wholly or partly financed by the central
Government or controlled bY it.
Every public servant shall make a declaration of his assets and
liabilities as well as those of his spouse and dependent children.
(i*) An inquiry against the PM can be initiated if it has been approved
by a 2f3'd majority of the full bench of the Lokpal
(x) Investigations are to be completed rvithin a period of 6 months. An
extension of 6 months at a time may be granted for reasons to be
recorded in writing.
(xi) Lokpal shall send a copy of the investigation report to the competent
Authority (Lok Sabha - PI\'{, Speaker or Chairman as the case may
be.) The competent Authority shall table the report in the House.
(xii) Lokpal has the power to make recommendations for transfer or
suspension of public servants connected with allega,tion of corruption
 I
I Maior Initiatioes in Promoting Good Goaernance 475 |
Textbooh on Administratiae Lazt;
1474
Right to Information Act 2005 was ena,cted to promote transparency and
(xiii) special courts to be constituted by the central Government to hear
Act. accountability in administration.sa The statute ernpowers the citizens tq seek
and decide the cases arising out of the Prevention of Corruption information from a Public Authority. Public disclosure of information is likely
1988 or under this Act'
to the to giv-e people an idea about the n'orking of the Government and thereby
(xiv) If the Special court makes an assessment of losses caused nrake its functionaries more accountable and responsible.
publicexchequerbyaconvictedpublicservant,thenitmayorderfor
recovery of such losses from the public servant so convicted' The basic object of the Right to Iuformation Act is to empower the citizens,
(xv) Simitar provisions have made for appointment of Lokayukta at
the promotetransparencyandaccountabilityinthervorkingoftheGovernrnent'
contain corruption, and make our democracy work for the people in
real sense'
State.
yet to .be Itgoeswithoutsayingthataninformedcitizenisbetterequippedtokeep
Inspite of the enactment of the Lokpal Act the Lokpal is ,r""-"""r.yvigilontheinstrumentsofgovernanceandmakethegovernment
fighting corruptlon
constituted. The legislation is a positive step towards moreaccountabletothegoverned.TheActisabigsteptowardsmakingthe
and all efforts should be made tt bring the institution into force at the citizens informed about the activities of the Government'"''
earliest.
In Namit Sharma u. [Jnion of Indias\ the Court observed that-
11.3 PART III - CITIZEN.CENTRIC INITIATIVES
ours is a constitutional democracy and it is axiomatic that citizens have the

In the third part of the topic a brief discussion about three recent
major right to know about the affairs of the Government which, having been elected
initiatives for.promoting citizen-centric model of governance have
been done bi th"_, seeks to formulate some policies of governance aimed at their welfare.
Charter and Timely Delivery of Service' However, Iike any other freedom, this freedom also has lirnitations.
- Right to Informatiori, Citl""'s these initiatives has been to place citizens It is a settled proposition that the right to freedom of speech and expression
and e-Governance. The focus of the
policies. enshrined under Article 19(r)(a) of the Constitution of India encompasses
and their needs at the centre-stage of governance and national righttoimpartandreceiveinformation.Therighttoinformationhasbeen
stited to be one of the important facets of proper governance- With the
passage
Right to Information
of time, this concept has not only developed in the field of_ lay, but also
has
True democracy cannot exist unless all citizens have a right
to participate in Court while highlighting the
to participate in the affairs attained new dimensions in its application. This
the affairs or tne poiiiy of the country. The right on all sides need for the society and its entitlement to know has obsen'ed that public
citizens are well-informed
interest is better ser.,red by effective application of the right to inforrnation.
of the count.y i" -u"ingless unless the
their views.
of the issues, in respect If *nl.n they are called upon to express
all This freedom has been accepted in one form or the other in various
parts
one_sided informu.tiin, disinformation, misinformation and non-i'formation
citizenry which makes democracy a farce when of the world.
equally create an uninformed
central authority
medium of intormrJio.r is monopolised either by a partisan RTI Act has been a major step towards creating an accountable,
orbyprivateindividualsoroligarchicorganisations.Thisis.particularlyso
is illiterate and transparent, corruption-free and citizen-centric administration. This objective
in a country rite ours *h.r" aLout 65% of the population which is not *.. t igt lighted in the Narnit sharrna cose wherein it wa-s observed-
hardly l%To of the fopulation has an access to the print media
subject to Pre-censorshiP''" The right to information was harnessed as a tool for promoting development;
to the strengthening the democratic governance and effective delivery of socio-
Right to information is equated with right to know and is considered as part economic services. Acquisition of information and knowledge and
its application
be an integral part of free speech. It is internationally recognized have intense and pervasive impact on the process of taking informed
decision,
ofhumanrightandi,,co.po,ated'inthebasichumanrightsdocumentssuch resulting in overail productivity gains. It is also said that information and
as the universal Declaration of Human Rights, the International
covena'nt knowledge are criticai for realising all human aspirations such as improvement in
on civil and Political Rights and the International covenant
on Economic' the quality of life. Sharing of information, for instance, about the new
techniques

Social and Cultural Rights'

ffittoinformation.gov.in/rticorner/studybypw.cfExealliveYo2o
SummarY.Pdf.
ffiad,casti'ng,Gout.oJInd,iaa.CricketAssn.ofBengal,(1995) 55. Abailable at : http://www'righttoinformation'gov'in/Id'
2 SCC 161, Para 82' 56. Id.

I Maior Initia'tives in Promoting Good Goaernance
Textbooh on Administratioe Latp
|,476
of farming, health care facilities, hazards of environmental degradation,
opportuniti,es for learning and earning, Iegal remedies for combating gender
bias, etc. have over tirne made significant contributions to the lr'ell-bcing
ofpoorpeople.Itisalsofeltthatthisrightandthelawsrelatingthereto
' .-poltu, everl' citizen to take charge of his life and make proper choices on
the basls of freely available information for effective participation in economic
and political activities.5T
Salient features of the statute are-
1. To secure access to information which are under the control of public
authorities
2. To constitute a central Information commission and state Information
Commissions
3. obligation of Public Authorities to make suo m'otu disclosure of certain
vital information
4. Citizencan make an application to the Informdtion officer for acquiring
information.
5. On failure to receive information within a specified period then appeal
may be made to the first Appellate Authority
6. Central Information Commission and State Information Commissions
to act as quasi-judicial bodies
The basic tenets of the statute have been implemented, but it is faced
with major challenges in the form of administrative apathy, compulsive
behaviour among ot'ii".r, to deny or delay disclosure of inforrnation and lack
of physical security to RTI seekers u'hich needs to be overcome to fulfil
the tiue goals of RTI. Efforts should be made to improve RTI awareness
among the common citizens so that people realize the advantages of the
legal right to information.
11.3.1 Citizen Charters and Timely Detivery of Goods and
Services
Indian Constitution guarantees to its citizens justice - social, econom'ic
and, politicol througtr- a welfare economic model. The state has undertaken
to provide a number of important services like issuance of passports'
driving licenses, voters ID card, Aadhar card's etc' But even after 67
yu"."
-of independence public delivery of essential services han'e been in
pitiable conditions with factors like inordinate delays, corruption, bureaucratic
insensitivity, red tapism, bribery which forced citizens to undergo difficult-
and unpleasant experiences while accessing these services. The process of
57. (2013) 1 SCC 745, Pzra 23
. ..1
477'll :
governance suffered from lack of transparency) accountability, responsiveness,
ineffective grievance redressal mechanisrn and absence of a centralized
monitoring system. These factors resulted in apathy among the citizens, break
down of public service systems, loss of revenue for the state exchequer and
a general unrest i' society.ss One of the rvays by t'hich efforts rvere made
by the State to provide quality and timely delivery of public services \^'as
by promoting the concept of citizen's charter'
charter is based on the premise that the citizen is "King" and
' citizens,
government organizations exist not to rule but to serve the citizens. citizens'
bha.ters are merely reflections of this principle. In ord6r to ensure that both
the service provider as well as citizens realize that public agencies are meant
toprovideservice,eachorganizationshouldspellotittheservicesithasto
p..ior* and then specify the standards/norms for these services. Once thisareis
done then the organisati,on can be held to account if the service standards
not met. Government of India commenced the exercise to formulate citizens'
Charters in 1996.5e
Citizen;s charters are described as 'an instrument which seeks to make
an organization transparent, accountable and citizein friendly.."is basically
a, set of commitments made by an organization regarding the
standards of
service which it delivers.'60
The Second Administrative Reforms committee in its Fourth Report on
,Ethics in Governance' had highlighted that 'in order to make charters an
effective tool for holding public servants accountable, the charters should
spell out.tfre remeay/penalty/ compensation in case there is a default
"i"u,.ty
i., -.etittg the standards spelt out in the Charter''
The ARC Seven Step Nlodel for Citizen Centricityol is-
(a) Define all services which you provide and identify your clients'
(b) Set standards and norms for each service
(c) Develop capability to meet the set standards
(d) Performs to achieve the standards
(e) I\rlonitor performance against the set standards
(f) trvaluate the impact through an independent mechanism
(g) continuous improvement ba.sed on rnonitoring and evaluation of results
ffivice Delivery N{odel, Government of Karnataka'
12il' Report on 'Citizen Centric Administra-
5g. Second Administrative Reforms Commission -
tion - The Heart of Governance''
60. Id.
61. Second Administrativ.e Reforms Commission - 12tl'Report on'Citizen Centric Administra-
tion - The Heart of Governance''

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As a principle initiative of the Ministry of Administrative Reforms and Public
Grievances all Central Government N{inistries/Departmi:nt f Otgan\zations
have brought out their own citizen's charter and to ensure the effective
implementation of the same Nodal officers have also been appointed in
*,"rion" Ivlinistries/Departmentf Otgan\zalions- By adhering to the concept
of citizen,s charter a commitment is made by the organization towards
stand,ard., quali,ty and' titne fratne of seruice deliuery, grieuance redress
rnecha,nisrn, transparency and accountabili'ty'62
In order to achieve the objective of citizen centric administrat'ion a Bill
was placed before the Lok sabha on 'The Right of citizens for Time Bound
Delivery of Goods and Services and Redressal of the Grievance Bill' 2011''
The important features of the Bill are -
o Creation of a mechanism' to ensure timely delivery of goods .,,td
services to citizens.
o Every public authority is required to publish a citizen's charter stating
in detail the goods and services to be provided and their timelines
for delivery within six months of the commencement of the Act.
oAcomplaintmaybemaderegardinganygrievancerelatedto:(a)
citizens charter; (b) functioning of a public authority; or (c) violation
of a law, policY or scheme-
o Need to establish a grievance redressal mechanism which shall redress
all grievances within 30 working days'
o Need to appoint a central and state Public Grievance Redressal
Commissions.
o A penalty of up to Rs. 50,000 may be levied upon the responsible officer
or the Grievance Redressal officer for failure to render services-
The Bill failed to become a law and was allowed to be lapsed, but in
light of the importance of such legislations efforts are being made to bring
forth before the Parliament a fresh Right of citizens Bill. But based on the
recommendation of the Administrative Reforms Commission different state
governments have included the concept of citizen's charters in the course of
performance of their administrative functions'
11 .3.1.1 Karnataka sakala services
One of the first states to incorporate the concept of citizen's charter and
create a statutory obligation for timely delivery of essential services was
Karnataka. Former Chief Minister of Karnataka Shri Sadananda Gowda
during trlis Janatha Darshan realized that a significant part of citizens
ffiChaters,Abailableat:http://goiclrarters.nic.infcharter.
main.htm (last visited 6/tl/I5)'
I
Maior Initiatioes in Prornoting Good Goaernance 4?2J
grievances were relating to failure to receive essential services on a time
bound manner from the Governrnent. Absence of an adequate grievance
redressal mechanism further aggravated the situation. It was then proposed
for the creation of "a citizen friendly governance with time bound service
guarantee". This facilitated the enactment of the Karnataka Guarantee
of Ser.rices to citizens Act, 2011 which was subsequently renamed by
the citizens to Karnataka Sakala Services Act, 2011. The term sakala it
Kannada implies 'in time or good time'. The primary motto of this legislation
is No More Delags...we Deliuer in Time... else the hammer of justice
strikes on the d,efaulters.os The. core objective of this Act is to provide
guarantee of essential services to the citizens within a stipulated time limit
and to create a grievance redressal mechanism for effective implementation
of the service deliverY goals.
The tegislation was irnplemented in April 2oI2. In a span of two years
the Sakala services has been expanded to 4? Government Departments and
Institutions and includes 478 government services of which 150 services have
been made online. Some of the important departments included are the
home. revenue, Iocal authority, rural development and panchayat raj, food
and civil supplies, women and child welfare, education, health and family
welfare, labour and transport department. According to official sources
more than 44 million citizens requests have been delivered on time and
the disposal rate is 96.55% till 2013 which indicates significant rate of
success. The primary objective of this legislation is to create citizens charters
and establish an internal administrative grievance redressal mechanism to
deal with liirra" relating publib services and avoid unnecessary government
litigation. In facilitation of this objective the statute has imposed a bar on
the jurisdiction of the civil courts'in respect of matters which the competent
officer or appellate authority under the statute is empowered to deal.
The enactment of such statutes have brought in considerable amount of
transparency, accountability, reduced corruption and undue delay. It has also
empowered the citizens to hold the defaulting officers liable for their acts.
11.3.2 E-governance
The grow-th of Information and Communication Technology had multifarious
impact on the Iives of common people, including in the process of
governance. Digital technology has provided for cheaper and quicker Ineans
of communication; better storage, exchange and processing of information;
and enabled superior data analysis for better decision-making.6a From citizen
ffivice Delivery I\[odel, Government of Karnataka.
64. Government of India, Information Technology Action Plan: IT for all Indians by 20o8-
 I
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Maior Initiatiaes in Promoting Good Goaernance 481:l -
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perspectivedigitaltechnologyhasfacilitatedinprovidingtimelydeliveryof o Lokvani (Uttar Pradesh) - To provide information and services to

services in a transp^r"nt ..rJ hassle free rrlanner. In pro'roting
the goals of citizens of the district, especially those related to land records and
has one of the most vital grievance redressal.
a citizen-centric administration digital technology
roles to plaf in India. e-Gov Services available to citizens online-
and
The term e-governance is described as 'usage of irrformation to that of the (a) e-Tourist visa - It provides information about e-Tourist visa service
communication technology at the different levels pertaining
government, for the prrrf,o""" of carrying out government such as of Government of India'
-functions
that of the delivery of information as well as services of the government, (b) IRcTc services - It explains the services offered by IRCTC
interchangeamongbusinessundertakingsaswellastheinterchangeof (c) Pragati platform - Information relating to e-transparency and
information alnong the various agencies or tnot of the
government.'65 e-accountabilitY-
(d) e-Ttansportation - Links to access the E-Transportation services'
National e-Governance Mission
to lay (e) Know your Employee Provident Fund balance through online - Provide
The National e-Governance Plan of Indian Government had sought details regarding various online services related to Ernployees Provident
growth of e-Governance
the foundation and provide the impetus for long-term Fund.
within the country. The objective of the mission was to "IMake all
Government
his locality' through (f) e-postal & Telecom Services - Describes various online services of
services accessible to the comnlon man in :o-*toot- postal and telecom dePartments'
service delivery outlets and ensure efficiency, transparency
& reliability of
of the common (g) AU about Aadhar - covers all information related to Aadhaar or
such services at affordable costs to realise the basic needs Unique Identification Number for individuals in India'
.,61i
man."-"
(h) e-Citizen Services - Tips and links to access online services for applying
Aspartoftheinitialeffortstopromotee-governanceattemptswere Aadha"ar card, PAN card etc'
of government services to citizens by initiating
-u.d. to improve the quality of land (i) e-India Information - Provides the political and geographical details
Government to citize. (c-zc) programs such as computerization
records. online registration of applications' redressal of public grievances, of India.
settingupofcomputerkiosksin'ruralareas'paymentoftaxe$through (j) e-Educational services - Information about access to important
online etc. educational materials/books, exam results, student loans for higher
education and educational institutions of India'
e-Governance Projects
11.3.2.1 Digitol India
o FRIENDS (Kerala) - To provide one-stop' front-end' IT enabled
payment .ounter facility for citizens for rnaking payments
for bills Recently in 2015 the Government of India has launched their flagship
originating from government entities' programme titled Digital India initiative to ensure that most government
services are rnade available to the citizens electronically and all efforts
are
oGyandoot(MadhyaPradesh)-Toprovideusefulirrformatiorrand and internet connectivity. The vision
made to improve online infrastructure
servicestopeoplcinruralareasandactasaninterfacebetrveenthe
district administration and rural people' of the programme is to transform India into a digitally empouered societg
o bhoorni (Karnataka) - computerisation of land records; allou'ing access and knowled,ge economg-67 Th" tlrree key vlsion areas are -
to land records, updation of land records etc' (i) Digital Infrastructure as a Core Utility to Every Citizen
o eseva (Andhra Pradesh) - To provide G2C and B2c services to citizens (a) Availability of high speed internet as a core utility for delivery of
including online payments, issue of certificates' permits etc' services to citizens
(b)Cradletogravedigitalidentitythatisunique,lifelong,onlineand
ffiumarBharti,DGovernanceinIrrdia-ProblemsandAc-
--- authenticable to everY citizen
and Applied Information Technology (2005).
cepiauility, Journal of Thlretical
66. National e-Governance, Abailable at : http://india.gov.in/e-governance/national-e- 67. Abailable at : http: / / digitalindia.gov.in/content/vision-and-vision-areas.
governance-PIan'
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(c) I\IobiIe phone & bank account enabling citizen participatiorr in

digital & financial sPace
(d) Easy access to a Conrnron Service Centre
(e) Shareable private space on a pulllic cloud
(f) Safe and secure c1'ber-sPace
(ii) Governance and Services on Demand
jurisdictions
(a) seamlessly integrated.services across clepartments or
(b) Availability of services in real time frorn' online & mobile
platforms
(c)All citizen entitlements to be portable and available on the cloud
(d) Digitally tran-sformed services for improving ease of doing
business
(e) Making financial tiansactions electronic & cashless
(f) Leveraging Geospatial Information Systems (GIS) for decision o Written in simple, lucid & easy language
o A ready referencer for last minute revision
support sYstems & develoPrnent . A quick referencer cum revision book mapped to unlversity syllabus
(iii) Digital Empowerment of Citizens' . Facilitates quick undetstanding of difficult terms and concepts
(a) Universal digital literacY . Topic wise important quertion's for assessing the student's learning and exam preparation
o lncludes:
(b) Universally accessible digital resources / Notes for students / Case material '/ Points to remember
(c) Availability of digital resources / services in Indian languages / Related questions
(d) Collaborative digital platforms for participative governance
(e) Citizens not reqrrired to physically submit Govt' documents / Available NOW!
certificates o lndian LegalTheory . Political Science | & ll
o Law of Contract | & lt . sociologyl & ll
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More and more involvement of the citizens in matters of governance 1nd .Jurisprudencel&ll
. Specific Relief Act o Criminology
policymakingisnecessary.tofulfiltlregoalsofgoodgovernance.The . Constitutional Law I & ll & more...
crawling steps taken towards promoting citizen-centric governance should
be
pushed with much more vigour so tb.at India can boast of empowered and
enlightened citizenry.

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