Introduction: Dorit Administratiff is a very old system.

It was regularly put into practice by Napoleon in the

18th century. Napoleon favoured freedom for the administration and also favoured reforms. He wanted an
institution to give relief to the people against the excesses of the administration. It was, therefore, that in
1799 Conseil d’ Etat was established. The main aim of such an institution was to resolve difficulties which
might arise in the cause of the administration. But with change in time, it started exercising judicial powers
in matters involving administration. The position involving the administration of the Conseil d’ Etat is final as
it receives direct complaints from the citizens.

Meaning: - Dorit Administratiff is a branch of law which determines the organisation, powers and duties of
public administration. According to Dicey: Dorit administratiff is that portion of French law which
determines:
1. The position and liabilities of state officials;
2. The civil rights and liabilities of private individuals in their dealings with officials as representatives of
the state; and
3. The procedure by which these rights and liabilities are enforced.
Features: -
1) The dual system of Courts- Separate administrative Courts - State and administrative litigation fall
within the jurisdiction of administrative courts and cannot be decided by the land of the ordinary
courts. Those deciding matters concerning the State and administrative litigation, rules as
developed by the administrative courts are applied.
2) Conseil d’ Etat - composed of eminent civil servants, and deals with a variety of matters like claims
of damages for wrongful acts of Government servants, income tax, pensions, disputed elections,
personal claims of civil servants against the State for wrongful dismissal or suspension and so on.
3) Tribunal des conflicts - conflict of jurisdiction between ordinary courts and administrative courts, it is
decided by the tribunal des conflicts.
4) Application of Special Rules/ Admin Jurisdiction
5) Suo moto may be exercised under the ambit of the law.

Under the Droit administraiff, there are two types of laws and two sets of Courts independent from each
other. The ordinary courts administer the ordinary civil law between subjects and subjects. The
administrative courts administer the law between the subject and the state.

U2 - Delegated Legislation

A legislature is a kind of assembly with the power to pass, amend and repeal laws. When the functions of
the Legislature are entrusted to organs other than the legislature by the legislature itself, the legislation
made up by such organ is called Delegated Legislation. The legislative power of administrative agencies,
usually known as rule-making power and more formally delegated legislation, is the power of agencies to
enact binding rules through the power delegated to them by the legislator. The complex nature of the
modern state is that such elected representatives are not capable of passing laws to govern every situation.
Therefore delegated to administrative agencies. Such power is delegated to the executives/administrators
to resolve the practical issues which they face on a day-to-day basis. However, the rule-making power of
the executive is very limited in its scope. To become law, They are placed on both the Houses of the
Parliament and are then considered to be approved by the legislature.

As per Salmond - Supreme legislation and subordinate legislation. Types of Subordinate Legislation -
Colonial-Judicial-Municipal-Autonomous-Executive/Delegated.

Administrative law in India attempts to regulate administrative actions by controlling delegated legislation
and subjecting administrative discretionary actions to judicial review. It also provides for the constitution of
tribunals and their composition.

Advantages of Delegated Legislation

1. Saves cost and time when dealing with emergencies.
2. More flexible as compared to non-delegated legislation.
3. Helps in finding the bottlenecks.
4. Sets up a new base for amendment of statutes which is the demand of time.
5. Helps in relieving the burden on Parliament.
6. The affected person’s interest is maintained.

Disadvantages of Delegated Legislation

1. More claims for review of legislation.
2. The influence of superior courts may cause interference.
3. Authorities may follow the dictatorial principle.
4. Increase in corruption and misuse of powers.
5. Lack of legal knowledge among common people may trigger unavoidable situations.
6. Slowly, the executive will start encroaching upon the legislature if delegation is obscure.
7. It is against the doctrine of separation of powers.
8. The executive becomes more powerful.
Reasons for growth: - Pressure on Parliament/ Technicality/ Expediency and Flexibility/ Emergency/ The
complexity of modern administration/ Experiment/ Bigger civilization to legislate for/ Local matters/ To meet
unforeseen contingencies. Hemdard Dawakhana vs UOI 1960- Delegation is apparent and unavoidable
and important. Constitution has not barred it.

The practice of delegated legislation is not bad however the risk of abuse of power is incidental and hence
safeguards are necessary. Parliamentary Supervision-Trustworthy Body-Public Scrutiny-Expert’s
opinion. 3 main measures as adopted by India: -

Parliamentary Control/ legislative - Parliamentary control is considered a normal constitutional function

because the Executive is responsible to the Parliament.
Parliament has the power to control sub-ordinate law-making agencies.
It must be laid before Parliament for the prescribed period of time.
Scrutinizing committee must approve and report to the Parliament.
Affected groups must be consulted.
Publication of rules in the official gazette is a must.

Procedural Control
Procedural control means the procedures defined in the Parent Act (Act delegating the legislating power)
have to be followed by the administrative authority while making the rules. It involves the pre-publication of
the rules so that the people who would be affected by the proposed rules know it beforehand and can make
representations if they are not satisfied.

After pre-publication is done and once all the concerned bodies, persons and authorities have been
consulted the rules are to be published in the official gazette so that the public is aware of the existence of
the rules.
Union of India v M/s. Ganesh Das Bhojraj[4] , it was said by the court that publication in the Official Gazette
is the established practice for bringing a rule or subordinate legislation to the notice of the people.
Judicial Control
The judiciary looks into the following aspects to determine the legal validity of the rules so made using the
power so delegated-

1. ultra-vires the Constitution. 4. Malafide 7. Vague

2. ultra-vires the Parent Act. 5. If the administrative legislation encroaches upon the rights of private citizens
derived from the common
3. arbitrary, unreasonable and discriminatory. 6. law, in the absence of express authority in the Parent
Act conflict with another statute.
 The doctrine of Ultra Vires: If sub-ordinate authority goes beyond the powers conferred by enabling act,
our constitution such exercise of power is void.

Procedural Ultra Vires: 1. The publication is essential and mandatory. 2. Applies to a particular
procedure. 3. The power is vested in one authorized by the parent act. 4. Consulting opinions and
suggestions are followed mandatorily.

Substantive Ultra Vires: Sub-ordinate authority should not go beyond policy/principles/purposes in the
parent act and the Constitution.

Narendra Kumar vs Union, 1960- Sub-Ordinate Legislation should not be the ultra vires of the
Constitution.
Chintamani Rao vs the State of MP - The Deputy Commissioner’s prohibition on producing bidis during
the agricultural season is a violation of Article 19.1.g of the Indian Constitution. Parent Act should be
Constitutional.
R Chandran vs M V Marappan: The power of by-laws must be within the limits of the legislature. If not, the
same must be struck down.
Re Delhi Laws Act -Parliament cannot give up on creating another legislative body.
Delegation power is adjunct to the legislative power.
Repealing power cannot be delegated.
Necessary functions of the legislature cannot be delegated, whereas unnecessary ones can be.

Conditional Legislation - When the law is complete and certain conditions are laid down as to how and
when the law would be applied by the delegate, it is conditional legislation. It includes no law-making
powers but only the power of determining when it should come into force or when it should be applied.
Supreme Court in Hamdard Dawakhana v. Union of India [1] stated that in conditional legislation, the
delegate’s power is that of determining when a legislative declared rule of conduct shall become effective.
Conditional Legislation can be found in the occurrences where:- [2]
I. The legislature empowers the executive to expand the activity of current law to a specific area or
region.
II. To determine and decide the time of application of an Act to a given area.
III. To broaden the span of a Temporary Act, subject to a maximum period fixed by the legislative
assembly.
IV. To determine and decide the degree and limits within which the statute or Act should be employable
and operative.
V. Lastly, to introduce a special law if the contemplated situation has arisen in the opinion of the
government.
3 Classifications
1. Legislature has completed the act and future appropriateness is dependent on delegate
2. The delegate will act negatively and withdraw certain parts of the already implemented act
3. Based on relevant data and objective facts delegate will further his power and make laws

In Jatindra Nath v. Province of Bihar, it was held that there could be no delegated legislation in India beyond
conditional legislation.

SUB-DELEGATION - When a statute confers some legislative powers on executive authority and the latter
further delegates those powers to another subordinate authority or agency, it is called ‘sub delegation’.
Thus, what happens in sub-delegation is that a delegate further delegates. This process of delegation may
go through many stages. If we may call the enabling Act the ‘Parent’ and the delegated and the
sub-delegated legislation the ‘children’.

Object:
1. Power of delegation necessarily carries with it the power of further delegation: and
2. Sub-delegation is ancillary to delegated legislation, and any objection to the said process is likely to
subvert the authority that the legislature delegates to the executive.

Sub-delegation of legislative power can be permitted either when such power is expressly conferred by the
statute or may be inferred by necessary implication.

Express power: Where a statute itself authorises an administrative authority to sub-delegate its powers.
Thus in Central talkies Ltd. Vs. Dwarka Prasad, the UP Control of Rent and Eviction Act 1947 provided
that no suit shall be filed for the eviction of a tenant without permission either of a District Magistrate or any
officer authorised by him to perform any of his functions under the Act. An order granting permission by the
Additional District Magistrate to whom the powers were delegated was held valid.

Implied power: Even if there is no provision in the parent Act, the same may be inferred by necessary
implication.
In States Vs. Bareno, the parent Act conferred on the President the power to make regulations concerning
exports and provided that unless otherwise directed the functions of the President should be performed by
the Board of Economic welfare. The Board sub-delegated the power to its Executive Director, who further
sub-delegated it to his assistant, who in turn delegated it to some officials. The court held all the
Sub-delegations valid.

A writ is a written official order issued by the court. The formal order may be in form of a warrant, direction,
command, order etc. Writs can only be issued by the High Court Under Article 226 of the Indian
Constitution,1950 and by The Supreme Court under Article 32 of the Indian Constitution,1950. Indian
constitution has adopted the concept of prerogative writs from English common law. Writs were first used to
describe a written command of the King. Whereas, these writs are now available to a person aggrieved by
the decision of the inferior courts or administrative body in England.

Writs can be issued to provide extraordinary remedy i.e in cases where the aggrieved person is seeking an
extraordinary remedy usually against administrative action.

https://www.defactolaw.in/post/writs-condition-case-laws-and-legal-perspective

Judicial Review of Administrative Discretion.

Administrative discretion has assumed importance in the functioning of the modern government. An
administrator administers the law enacted by the legislature. He also sometimes enacts rules and on fewer
occasions, he may interpret the law itself, so practically all the powers are concentrated in the administrator.
According to Prof. Freund, Administrative Discretion means that a decision may be reached in part at least
not entirely on the basis of proof. The Administrative Authority may take a decision based on governmental
policies rather than on individual merits.
Abuse of discretion or grounds of judicial review: -
a. Acting without jurisdiction i. Collateral purpose: improper object;
b. Exceeding jurisdiction j. Colourable exercise of power
c. Arbitrary action. k. fraud on Constitution
d. Irrelevant considerations. l. Non-observance of natural justice
e. Leaving out relevant considerations m. Unreasonableness m.
f. Mixed considerations n. Excess or Abuse of Discretion
g. Mala fide (malice in law or fact) o. Non Application of Mind
h. Sub-delegation
Art 298- The executive power of the Union and of each State shall extend to the carrying on of any trade or
business and to the acquisition, holding and disposal of property and the making of contracts for any
purpose.
Art 299- (1) All contracts made in the exercise of the executive power of the Union or of a State shall be
expressed to be made by the President, or by the Governor of the State, as the case may be, and all such
contracts and all assurances of property made in the exercise of that power shall be executed on behalf of
the President or the Governor by such persons and in such manner as he may direct or authorise.
Art 300- Suits and proceeding - Govt of India under the name Union of India and resp states by their name.

The purview of Judicial Review of Gov Contracts: - a. Irrationality b. Procedural c. Impropriety d. Illegality

Principles underlying Contractual liability of the State: -

Reasonableness and fairness: - Not arbitrary-Art 14
Public Interest
Contractual Liability: - no personal liability of President, Governor or person executing the contract on
behalf of the Gov. But not does immunise government. Only personal liability

Requirements
1. If conditions in Article 299(1) are not met, the contract becomes nullified and void. Such a contract
cannot be enforced at the instance of any of the contracting parties. K.P. Chowdhary v. State of
Madhya Pradesh held that 299 is mandatory and contracts not following are not enforceable. Govt
cant sue and cannot be sued.
2. Written contract - Seth Bhikraj Jaipuria v. Union of India, the Supreme Court had observed that
from the words ‘expressed to be made and ‘executed’ in Article 299 it is clear that the Government
contract should be made by a formal written contract.
3. Execution by authorized person:- Contract can be entered into on behalf of the Government by a
person authorized for that purpose by the President or the Governor. If it is signed by an officer who
is not authorized by the President or Governor, the said contract is not binding on the Government
and cannot be enforced against it. In Union of India v. N.K. (P) Ltd.[vi], the Director was authorized
to enter into a contract but Secretary, Railway Board entered on behalf of the President. The SC
held not a valid and binding contract.
4. Expression in the name of President (Governor):- The last requirement is that such a contract
must be expressed in the name of the President or the Governor, as the case may be. In Bhikraj
Jaipuria, the contracts entered into by the Divisional Superintendent were not expressed to be made
on behalf of the Governor-General. Hence, the Court held that they were not enforceable even
though they were entered into by an authorized person.
Non-Compliance Ratification- 299 is followed
Restitution- under sec 70 of Contracts act 1872, mother party to make good if he has enjoyed the
benefit of a non-gratuitous act - quantum merit or quantum valebat

Tortious Liability of the State-

State liability refers to the Vicarious liability of the state arising from the acts of omission/ commission
committed by its servants - unliquidated damages - King can do no wrong to respondeat superior(let the
superior answer)- Doctrine of sovereign immunity to the Government. According to Article 294(4) of the
Constitution, the liability of the Government of the Union or a Government of the State can arise ‘from some
contract or other.’ Article 12 of the Indian Constitution defines the term ‘state’. Under Article 300 (1), the
degree of such liability is settled.

Sovereign Functions- Carried on only by Government and not private individuals- Gov Dept runs on
service motive- No profit motive- Gov not liable for a tortious act committed its servants here.- Defence

Non-Sovereign Act- Private Individuals with profit motive hence compensation is a giver- Transport etc-
Gov liable here.
P.O. Steam Navigation Co. vs Secretary of State of India- Classification of SF and NSF was made. Gov
is liable for Negligence to his servants in the same way as an ordinary employer.
Vidyawathi vs state of raj- 1962 Govt jeep driver knocked a pedestrian while driving the car back from
service. Held that Driver was doing NSF, thus liable to pay damages.
In the case of Secretary of State v. Cockcroft, the plaintiff was injured due to the negligent act of the
servant. The servant left a heap of gravel on a military road on which no one was walking. The Court held
that the government will not be liable for such acts as maintenance of the Military road is a sovereign
function.
Kasturi Lal Rallia Ram vs the State of UP- Appellant arrested under suspicion of theft- jewels were taken
from him and kept in police custody-he was bonafide- Jewels could not be returned as constable stole and
ran tp Pakistan- SC held it is a Sovereign Function and the State was not liable to pay compensation.
Bhim Singh v. the State of J.K., the Supreme Court awarded the exemplary cost of Rs. 50,000 on
account of the authoritarian manner in which the police played with the liberty of the appellant.

Public Law Remedies Writ Jurisdiction of Supreme Court and High Court
1. Writs - Under articles 32 and 226, the Supreme Court and high courts have the power to issue
directions, orders or writs for Vio of FR in Part III and 226 ‘for any other purposes. Traditionally, the
phrase 'for any other purpose' has been interpreted to mean, enforcement of any statutory or
Common Law rights
2. Supervisory Jurisdiction of High Courts - Article 227(1) gives to high courts the power of
superintendence over all courts and tribunals throughout the territories in relation to which it
exercises jurisdiction.
3. Special Leave Petition - Under Article 136, the Supreme Court, in its discretion, can grant special
leave to appeal to it from any judgment, decree, determination sentence or order in any cause or
matter passed or made by any court or tribunal in the territory of India- only in the extraordinary and
exceptional situation.

Private Law Remedies:

1. court orders (quashing orders, mandatory orders, prohibiting orders)
2. Injunction - An injunction is a prohibitive order issued by a court, at the suit of a party complainant,
directed to a party defendant in the action, or to a party made a defendant for that purpose,
forbidding the latter to do some act or to permit his servants or agents to do some act- Temporary
and Perpetual/Permanent Injunction.
3. The injunction will not be granted:
a) To restrain a person from instituting or prosecuting any judicial proceedings. b) To restrain a
person from petitioning any legislative body c) To prevent a breach of a contract which cannot be
specifically enforced.
4. Declaration: - a judicial remedy which conclusively determines the rights and obligations of public
and private persons and authorities without the addition of any coercive or directory decree. It is a
discretionary remedy- infructuous if an adequate alternative exists or other equitable considerations.
Conditions:
a) The person must be entitled to a legal character or to a right to any property.
b) There must be some danger or detriment to such right or character.
c) Plaintiff must seek further relief if he is entitled to it.
5. Suit for damages - Whenever any person has been wronged by the action of an administrator,
he can file a suit for damages against such authority. Such a suit is filed in the civil court in the first
instance and its procedure is regulated by the CPC, 1908 -quantum of damages

Ombudsman - First introduced in Sweden by King Charles XII in the 18th century. It is also practised by
Finland in 1919, Denmark in 1953, Norway in 1963, New Zealand in 1962, US in 1960 and UK in 1967.
Ombudsman means ‘a delegate, agent, officer or commissioner.
Garner: describes him as an officer of parliament, having his primary function, the duty of acting as an
agent for parliament, for the purpose of safeguarding citizens against abuse or misuse of administrative
power by the executive.

Ombudsman refers only is an independent and non-partisan officer of the legislature who supervise the
administration.
He deals with specific complaints from the public against administrative injustice and maladministration.
He has the power to investigate, criticize and report back to the legislature, but not to reserve administrative
action.
Credible and Confidential

In India, law minister Ashok Kumar Sen first proposed the notion of a constitutional ombudsman in the early
1960s and the terms Lokpal and Lokayukta were brainstormed by Dr L. M. Singhvi. In 1968, the Lokpal bill
was passed in Lok Sabha but terminated with the dissolution of Lok Sabha and it was voided eight times
afterwards till 2011. In 2002, Chairman of the review commission M.N. Venkatachaliah asked for the
assignation of the Lokpal and Lokayuktas; the proposed PM should not be included within the purview of its
authority. Anna Hazare: the “India Against Corruption movement”; 2013 - the bill passed in both houses.
Assent on 1 January 2014 from Hon’ble President Pranab Mukherjee and came into effect on 16 January.
Need
1. Ombudsman is a watchdog
2. Democracy- all theoretical elite but in practice no use- since the Lokpal bill only dragged from the
1960s to 2014.
3. No checks and balances
4. In our country corruption is the main reason for maladministration. The anti-corruption agencies are
mostly not independent. The CBI - a “caged parrot”, which speaks in its master’s voice only. Thus
organisations become slow and ineffective
5. Agency's suggestion not followed as no binging nature
6. There was no superior authority to check the functionality of these institutions.
7. The employees are also not accountable for their faults.
8. The Court system was the only means- dragged for long/ only after the incident court intervened
9. No obligation imposing body
10. Inexpensive redressal mechanism

WHAT ARE LOKPAL AND LOKAYUKTA?

Structure of Lokpal -
In India, the ombudsman is known as Lokpal or Lokayukta. - How it became an act- The Lokpal and
Lokayukta Act, 2013 provided for the establishment of Lokpal (Union) and Lokayukta (States). Such entities
are legislative bodies with no constitutional status. They serve as “ombudsmen” and investigate allegations
of corruption against certain public officials and related issues. Lokayukta to be formed for States to
investigate allegations of corruption against certain public officials and related matters.

1. Lokpal is a multi-member assembly,.consisting of one chairperson. and a maximum of eight

members.
2. The person to be appointed as Chairperson of the Lokpal should be either the former Chief Justice
of India or the former Supreme Court Judge or an eminent person with impeccable integrity and
exceptional ability. having special knowledge and expertise of a minimum of 25 years in the matters
relating to anti-corruption policy, public administration, vigilance, finance including insurance and
banking, law and management.
3. Of the eight members limit, half will be members of the judiciary. Max fifty per cent of
SC/ST/OBC/Minorities and Women will be members.
4. The Lokpal’s judicial member should be either a former Supreme Court judge, or a former High
Court chief justice.
 5. The non-judicial member should be a distinguished person of impeccable integrity and exceptional
ability, having a minimum of 25 years of specialized knowledge and expertise in matters of
anti-corruption policy, public administration, vigilance, finance including insurance and banking, law
and management.
6. The members are elected by the Chair on a selection committee’s recommendation. The selection
committee consists of the Chairperson of the Prime Minister; the Speaker of Lok Sabha; the Leader
of the Opposition in Lok Sabha; the Chief Justice of India or a Judge nominated by him/her; and one
eminent Jurist.

Jurisdiction of Lokpal-
1. The Lokpal’s jurisdiction will include the Prime Minister, except for allegations of corruption related
to international relations, defence, public order, atomic energy and space, unless an inquiry is
authorised by a Full Bench of the Lokpal and at least two-thirds of members.
2. It will be held in camera proceedings and inquiry records may or may not be public
3. The Lokpal will also have jurisdiction over Ministers and MPs but not in the matter of anything said
in Parliament or a vote given there.
4. Public servants. PM, Ministers, MPs, Groups A, B, C and D officers, and officials of Central
Government.

Powers of Lokpal
1. It has the powers to superintendence over, and give direction to CBI.
2. If Lokpal has referred a case to CBI, the investigating officer in such a case cannot be transferred
without the approval of Lokpal.
3. The Inquiry Wing of the Lokpal has been vested with the powers of a civil court.
4. Lokpal has powers of confiscation of assets, proceeds, receipts and benefits arising or procured by
means of corruption in special circumstances.
5. Lokpal can recommend the transfer or suspension of public servants connected with allegations of
corruption.
6. Lokpal has the power to give directions to prevent the destruction of records during the preliminary
inquiry.
7. Suo moto cases

For Lokayukta
https://prepp.in/news/e-492-lokayukta-indian-polity-notes