Introduction

In India, several administrative bodies appointed by the Central or State government are
presented to ensure the proper and systematic functioning of government agencies and
public enterprises set up either by the State or Central government. Administrative
agencies can be categorized into three: the Legislative, the Executive and the Judiciary.
Under these three main heads, all the administrative activities can be covered. In order to
regulate the activities of the administrative authorities, it becomes necessary to keep an
eye on these administrative agencies. Therefore, the concept of Administrative Law has
been introduced. Administrative law deals with the authorities’ powers, the manner in
which these powers are exercised, and the remedies accessible to the aggrieved
individuals when these authorities abuse these powers. Administrative law is a part of
Constitutional law and all administrative law concerns are also constitutional law
concerns. The primary aim of the study of administrative law is to unravel how it is
possible to keep these administrative authorities within their limits so that discretionary
powers can not be transformed into arbitrary powers.

Laissez-Faire

The political gospel of laissez-faire was preached in the early 20th century. The principles
on which laissez-faire theory works are as follows: 

 Minimum government control. 

 Free enterprise. 
 Law and order not counted as state subjects. 
 Power was said to be concentrated in the individual’s hands.

The Laissez-faire theory found the following pitfalls: 

 Concentration of powers. 
 Which led to human misery. 
 Widening the inadvertent gap between the poor and the rich.

The consequence of giving the powers in the hands of individuals and minimal
governmental control proved catastrophic. Through this, the vital power was concentrated
in the rich people’s hands and the economic balance was terribly shaken that only paved
the way for a debacle that is increasing economic disparity where the rich become richer
and the poor become poorer.
Social-Welfare State

The Dogma of collectivism gave birth to a social welfare state. India is, as articulated in
the Preamble of the Constitution, a socialist republic. The social welfare state thrives on
the principle of providing the justice of all kinds, whether it be social, economic or political
and all government laws and actions are to be taken in consideration of the citizens’
interests. The Constitution envisages an egalitarian society.

In fact, Administrative law is the body of those who regulate and control the
administration. Administrative law is that branch of law that deals with the composition of
powers, duties, rights and responsibilities of the various government bodies involved in
public administration. Under it, we study all those rules, laws and procedures that help
regulate and control the administrative machinery properly.

Nature and Scope

Administrative law deals primarily with the administrative authorities’ powers and
responsibilities and the multiple remedies accessible to the affected persons. Under the
welfare state, because of technological & scientific developments, there is a tremendous
increase in the state activities. As Roland says, “before the days of the automobile, there
was no need for the policeman to direct traffic because there was no traffic!”

The need to exercise powers grew with the increase in state activities: administrative and
executive powers were expanded, delegated legislation was also developed in the form of
rules, regulations by-laws, notifications, etc. Administrative tribunals have begun to
exercise judicial functions to resolve disputes.

The Administrative authorities have discretionary powers. If these are used properly, the
welfare state will be there. There is going to be a totalitarian state if abused. (Lord
Dennings)

Administrative law therefore defines and demarcates these powers and also provides
remedies to those affected persons when abuse occurs. This exercise of considerable
power is the main cause of the growth of administrative law. The trend is to reconcile
people’s freedom and justice with the need for implementing social and economic policies.

In this respect, within the framework of the Constitution of India, personal freedom and
liberty are to be safeguarded.The basic principles of administrative law are the judicial
review of administrative action, prevention of misuse or abuse of power, and provisions for
suitable remedies.
With Bernard Schwartz, it is true to say that “the goal of administrative law is to ensure
that the individual and the state are placed on a plane of equality before the Bar of
Justice“.

General Principles of Administrative Law

In the context of administrative law, the first step is to determine the government’s legal
validity or authority of the action. This involves looking at the basis of the legal authority
to act, that is, the specific law that gives the lawful authority to act and to the
administrator. Basically, constitutional law deals with who is capable of making laws and
administrative law deals with representatives of government who have been empowered to
act by these laws. Therefore, between constitutional and administrative law, there is a
close relationship. Specifically, if the law that empowered the officials of government to act
was found to be unconstitutional and invalid, then any actions taken by the official
government under that law would also be invalid which leads to a legal remedy for an
individual who is adversely affected by this action.

Purpose of Administrative Law

I.P. Massey identifies the basic bricks of the administrative law foundation as: 

 Checking the abuse of administrative power.

 To ensure that citizens are able to determine their disputes impartially by officials,
in order to protect them from unauthorized violation of their rights and
interests.
 To make those who exercise public power accountable to the people.
It is necessary to have an administrative law system rooted in the basic principles of the
rule of law and good administration in order to realize these basic purposes. The following
three broad principles underpin a comprehensive, advanced, and effective system of
administrative law:

 Administrative justice, which is at its core, is a philosophy that should be properly

safeguarded in making administrative decisions about individuals’ rights and
interests.
 Executive accountability, which is intended to ensure that those who exercise the
state’s executive (and coercive) powers can be called upon to explain and justify
the way they have accomplished this task.
 Good management, administrative decision, and action should be consistent with
universally accepted standards such as rationality, fairness, consistency and
transparency.

Reasons for the growth of Administrative Law

There are various factors which are responsible for the growth of Administrative law:

 There’s a radical change in the state’s role philosophy. The negative policy of
preserving law and order as well as social welfare is changing. The state didn’t
confine its scope to the traditional and minimal functions of defense and
administration of justice, but adopted the positive policy and undertook a
variety of functions to perform as a welfare state.
 The judicial system has proven to be inadequate to decide and settle all types of
disputes. It was slow, expensive, inept, complicated and formal. It was already
overburdened and even very important matters could not be expected to be
disposed of quickly. The important issues could not be solved merely by
interpreting the statute provisions, but they required consideration of various
other factors and this could not be done by ordinary courts of law. Thus,
industrial tribunals and labor courts were established that had the techniques
and expertise to deal with these complex problems. 
 The legislative process was inadequate as well. There was no time and technique
to handle all the details. It was impossible for it to lay down detailed rules and
procedures and even when detailed provisions were laid down by the legislature
they were found to be defective and inadequate. Therefore, the delegation of
certain powers to the administrative authorities was necessary.
 There is scope in the administrative system for experiments. It is not necessary to
continue a rule in legislation until the commencement of the next legislature
session. A rule can be made here, tried for some time, and can be altered or
modified within a short time if it is defective. The legislation is therefore rigid in
nature, while the administrative process is flexible.
 Technicalities can be avoided by administrative officials. Administrative law is not a
theoretical and legislative approach but a functional approach. The traditional
judiciary is technical, rigid and conservative. Without formality and technicality,
it is impossible for the courts to decide cases. Administrative tribunals are not
bound by rules of evidence and procedure and can take a practical view of the
matter in order to decide complex issues.
 Administrative authorities are able to take preventive measures. They don’t have
to wait for parties to come before them with disputes unlike regular courts of
law. In many cases, such preventive actions may be more effective and useful
than punishing a person after a breach of law has been committed. As Freeman
says, ‘Meat inspection and grading respond more adequately to the consumer’s
needs than does the right to sue the seller after the consumer is injured.’
 Administrative authorities may take effective steps to enforce the aforementioned
preventive measures, such as suspension, revocation and cancelation of
licenses, destruction of contaminated articles, etc. which are generally not
available through regular courts.
Indian Administrative Law
In India, the Constitution is supreme with discretionary power but on the other hand,
parliament is supreme in England. Law enacted by the parliament is authoritative and fully
admired. Nobody can challenge the validity of such a law, but only the statute of ultra
vires can challenge such law under which it was adopted.

Furthermore, the British parliament’s law is the highest form of law and prevails over any
other form of law. In India, on the other hand, on the Supreme Court, the written
constitutional power of Judicial Review is the same as that of Ultra Vires. 

It also defines the validity of such challenges as:

1. The action must be carried out in accordance with rules and regulations.

2. Rules, regulation and parent acts must also be consistent with the Constitution. 

3. Rules must comply with the relevant statutes. 

4. If the challenge has been converted and accepted in the amendment, such an
amendment should comply with the basic structure.

Constitutional Law and Administrative Law

Notwithstanding substantive and procedural law, constitutional law has a separate status
that specifically defines the structure and organization of only laws. On the other hand,
administrative law obeys constitutional laws and deal with the organization and functioning
of laws ‘in force’. Such laws should be applied and implemented in accordance with the
Constitution. Any law which abbreviated or endangers or violates or abrogates an
individual’s right provided as Fundamental Rights, will attract judicial review action or any
misconduct detected in functions will also need to be reviewed by judges as judiciary with
the power to decide administrative matters. Source of Administrative Law and
Constitutional law is the same and i.e. rule of law.

Administrative Law vs. Constitutional Law

Administrative Law Constitutional Law

The constitution is the state’s superlative Administrative law, rules, and regulations
law which is subject to all other land laws. are subject to the Constitution. If
administrative law is inconsistent with the
Constitution, it is easy to declare the
 former unconstitutional.

Mainly concerned with the exercise of Establish the state, executive, judiciary
powers by actions of administrative bodies and parliament’s supreme powers and set
or executive agencies. general principles for operations.

Set the mechanisms and procedures for

Establishes general rights, including basic administering the rights both at the
human rights and duties. supreme level and by the delegated
authorities.

The authoritative principles derive from

constitutional law such as the separation of
Lay the foundation for the principles of
powers, the independence of the judiciary,
natural justice in administrative law.
natural justice and the reasonableness of
administrative actions.

In general, both regulate the powers of the legislature, the executive and the judiciary; the
functioning of the state’s supreme powers depends on the constitution and the exercise of
powers is balanced by administrative law. The laws complement one another, so without
administrative law, there is no easy application of constitutional law and vice versa.

Rule of Law

Sir Edward Coke CJ introduced this concept in King James’ first reign. He successfully
maintained the battle against the king, that “King should be under God and Law and he
established the supremacy of the Law against the executive”. 

“The Constitution is the mandate. The rule of law is the Constitution. No rule of law can
exist other than the constitutional rule of law. There can be no pre-constitutional or post-
constitutional rule of law that can run counter to the constitutional rule of law, nor can
there be any invocation of any rule of law to nullify the constitutional provisions during the
time of emergency. Article 21 excludes the rule of law regarding life and liberty”.

Natural Justice

According to Roman law, certain basic legal principles were required by nature, or were so
obvious that they should be applied universally without the need for a legislator to enact
them into law. This was the seedbed or the growth of natural justice. In both common law
and Roman law jurisdictions, the rules or principles of natural justice are now regularly
applied by the courts. It was held in the case of Menka Gandhi v. UOI, 1978 AIR 597, that
Parliament does not have the power to legislate any law that violates fairness and
justness. This means that the law enacted should carry justness. Natural justice principle
or fundamental actions are not fixed or prescribed in any code of law. The term is also
referred to as substantial justice, universal justice, fundamental justice, divine justice and
rational justice. The role of natural justice can be described as basic values that a man has
cherished over the centuries.

In the historical case, A.K Karipak v. UOI, (1969) 2 SCC 262, the Supreme Court held that
“the purpose of the rule of natural justice is to secure justice or put it in a negative way to
prevent the miscarriage of justice. This rule can only work in areas that are not covered by
any validity made by law. In other words, they are not supplanting land law but
supplementing it”.

Indian law has always admired a policy that says, “Let thousands of wrongdoers go free,
but not one innocent individual should be convicted or sentenced.” This travels to the roots
of justness and fairness and gives the convict certain privileges, such as fair hearing, to be
represented in the courts of law without bias and consideration and enforcement of the law
while pronouncing the verdict. The essence of natural justice could only be described as
procedural fairness in order to ensure fair and reasonable decision-making.

Natural Justice principles are part of legal and judicial procedures and consist of two
concepts: 

(a) Audi alteram partem or the right to a fair hearing. 

(b) Nemo judex in sua causa or no man can be a judge in his own cause.

“Natural law is the sum total of all those norms which are valid independently of and
superior to, any positive law and which owe their dignity not to arbitrary enactment but,
on the contrary, provide the very legitimate force of positive law to be binding.”

Judicial Review

Judicial review is the most important power in the judiciary’s hand that can maintain the
rule of law in the country. The power of the judiciary to keep an eye on the legislatures
and administrative activities, how they perform their duties, whether the functioning of
each sphere is consistent in nature or not, and if the rights granted to an individual are
abrogated, the upper authority, i.e., judiciary, shall review them. Judicial power to review
and determine the validity of the law or order can be defined as the power of judicial
review.
There are two standards to follow: 

1. Legitimizing the Action of Government.

2. Protecting actions of the constitution.

It’s a doctrine where executives and legislatures are subject to reconsideration or review.
The judiciary has the ultimate power to play the role of a watchdog of the legislature and
the executive. when a wrongful act is done because of discretionary power by any
governmental body, the judiciary can review it and ensure that the fundamental rights of
an area are not violated.

There are, broadly speaking, judicial review functions, viz. 1. Judicial review of legislative
actions, 2. Judicial review of judicial action, 3. Judicial review of administrative action,
preventing legislatures and administrative functions from taking unconstitutional decisions.

An order appointing a commissioner or a report submitted by the commissioner may be

challenged inter alia on the grounds of mala fide intention, colourable exercise of power,
ultra vires, etc. If the courts can set aside wrong and illegal acts by applying the
parameters of the judicial review, the administrative authorities can review the same act
by reviewing such orders if they find that they are ultra vires.

“Therefore, judicial review is the touchstone and essence of the rule of law”. It is a
custodian of Rule of Law.

Administrative Functions
In Ram Jawaya v. State of Punjab, the Supreme Court noted, “It may not be possible to
frame an exhaustive definition of what executive function means and implies. Executive
power ordinarily connotes the residue of governmental functions that remain after
legislative and judicial functions are taken away.”

Administrative functions in character are neither judicial or legislative.

1. Orders to be based on the policies of the government. 

2. There is no obligation to adopt a decision-making judicial approach. 

3. Unless compulsion is made by statutes, it is not bound by evidence or

procedure. 

4. Can take decisions in the exercise of statutory authority unless it does not
contravene the law. 
 5. Function as delegated or sub-delegated powers, except when there is any bar or
prohibition by the statute. 

6. Not only evidence to be taken into consideration, but also the discretion to be
admired. 

7. Not bound by the natural justice principle, unless bound by the statute.

8. Legislatures or the judiciary may invalidate the reasons provided on the basis of
unreasonability. 

9. There is no authority to act as a quasi-judicial authority in every matter.

10. Writs such as Certiorari and Prohibition are not available in each matter.
Administrative law is recognized as a separate and independent branch of the
legal entity. 
India’s Constitution also has substantial effects on legislation, including administrative law.

Administrative Authorities in India

 IAS- Indian Administrative Service.

 IPS- Indian Police Service.
 IAF- Indian Air Force.
 Indian Navy
 Ministry of MSME- Ministry of Micro, Small and Medium Enterprises.
 Indian Military- e.g. BSF Border Security Force so on…
 Department of Finance.
 Home Ministry, etc.

Conclusion
The role of administrative law is to limit government agencies’ powers and to keep
administrative authorities in check. It is not always possible to rely on certain general
statutes for the determination of disputes between individuals and public authorities and
for that appropriate legislation should be in place to govern such disputes. Administrative
law should act as the proper law governing administrative actions.

Sources of Administrative Law

• Administrative Law is not a codified, written or welldefined law like Contract Act, Penal
Code, Transfer of Property Act, Evidence Act, Constitution of India, etc. • It is unwritten,
uncodified and is generally called as „judge made‟ law because it has developed by courts
according to requirements. • Following are the main sources: • 1) Constitutional Law • 2)
Precedents • 3) Statutes and Delegated Legislation • 4) Ordinances by the President and
Governors • 5) Reports of the Committees and Commissions.

DEFINITION:

• Dicey in his “Law of the Constitution has defined Administrative Law as:
• “Administrative Law relates to that portion of a nation‟s legal system which determines
the legal status and liabilities of all State Officials; defines the rights and liabilities of
private individuals in their dealings with officials and specifies the procedure by which
those rights and liabilities are enforced.

• According to Ivor Jennings: • “Administrative law is the law relating relating to the
administration. It determines the organisation, powers and duties of administrative
authorities.

“Salus populi est suprema lex” means that the happiness of the people is the supreme
law.

OMBUDSMAN

• For nation to prosper and develop holistically-need an organized system of

administration.

• System-seeks to redress the problems of the people-free from corruption.

•Maladministration leads to obstacles in the progress of nation.

• Maladministration-a termite which slowly erodes the very foundation of the nation and
prevents the very structure of the administration from accomplishing its task.

• Corruption is the root cause of the problem of maladministration.

• For an administrative system to be good it must not abstain from being answerable to
the people.

• With the administrative agencies pervading every aspect of our lives, the chances of
administrative law interfering with the rights of a person have increased manifold.

• It eventually leads to the need for an appropriate mechanism which can secure the
rights of a person from being infringed by administrative wrongs.
• For this reason, the institution of “ombudsman” came to the rescue and proved to be of
immense importance and has been and is still being adopted by various nations to protect
the rights of the individual against the administrative practices of the State and also to
avoid inefficiency in the administrative set up of the State.

Meaning, object and main characteristics:

• Is a Scandinavian word.
• Means-officer or commissioner.
• Special sense-mean a commissioner who has the duty of investigation and reporting to
Parliament on citizens’ complaints against the Govt.
• He requires no legal powers except powers of inquiry.
• In particular, he is in no sense a Court of Appeal and he cannot alter or reverse any
Govt. decision.
• His effectiveness derives entirely from his power to focus public and parliamentary
attention upon citizens’ grievances.

• Simple words-It is an officer of Parliament whose main function is to investigate the

complaints or allegations against the administration.

• Main object-To safeguard the citizens against misuse of the powers of the
administration.

• On account of the system of Ombudsman, the errors committed by the administrative or

executive officials are exposed.

• The complaints or allegations of the citizens are investigated by the experienced persons
who are members of the department concerned.

• Purpose-To control the administration and thus give protection to the citizens against
injustice brought about by family administration.

• Function-To locate maladministration or faults in the administration.

Ombudsman In India.

• The establishment of the institution of Ombudsman is the demand of time.

• Much useful in redressing the grievances of the citizens against the administration.
• Attempts have been made to establish the institution like Ombudsman (called Lokpal),
but unfortunately it has not been established so far.

• However, the institution of Lokayukta is functioning in some Indian States.

Necessity, Utility or Importance.

• There has been tremendous increase in the powers and functions of the adm. auth.

• They discharge not only the admn. functions but also quasi-legislative and quasi-judicial
functions.

• The admn. auth. enjoy wide discretionary powers.

• The increase in powers and functions of the admn. auth. has also increased the
opportunities of misuse of the power by them.

• This has necessitated the effective control of the administrative authorities.

• The Judiciary, Parliament and the executive have not been successful in controlling
them.

• The Courts have, no doubt, expanded their supervision over the administration but still it
is not sufficient.

• There are several limitations on the power of the judiciary to control the powers of the
administration.

• The burden of establishing the case lies on the person who alleges the abuse of power.

• To prove malafides, improper purpose, etc. is not an easy task specially in cases where
the Govt. claims privileges to withhold the documents.

• The judicial control is also weakened by inserting exclusion or finality clause in the
statute.

• Several discretionary powers in the hands of the executive escape judicial review and
many errors are committed in disregard of the interest of the individual in the guise of the
public interest.

• The judicial review of the discretionary power is also quite limited.

WRITE A NOTE ON DROIT-ADMINISTRATIFF

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
administration. It was therefore, that in 1799 Conseil d’ Etat (Council Of State) was
established. The main aim of such 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 administration 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.

Under the French legal system, known as 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 as between subjects and subjects. The administrative courts administer
the law as between subject and the state. An administrative authority or official is not
subject to the jurisdiction of ordinary civil courts exercising powers under the civil law in
disputes arising between the private individuals. All claims and disputes in which
administrative authorities between the private individuals. All claims and disputes in which
administrative authorities between the private individuals. All claims and disputes in which
administrative authorities or officials are parties do not come within the scope of the
jurisdiction of ordinary courts and they are to be dealt with and decided by administrative
tribunals headed by Conseil d’ etat.

EXPLAIN PERSONAL BIAS AND PECUNIARY BIAS WITH REFERENCE TO DECIDED

CASES.

Introduction: Natural justice has meant many things to many to many writers, lawyers,
jurists and systems of law. It has many colours, shades, shapes and forms. Rules of
natural justice are not embodied rules and they cannot be imprisoned within the strait
jacket of a rigid formula. It is well established that rules of natural justice are not rigid
rules; they are flexible and their application depends upon the setting and the background
of statutory provision, nature of the right which may be affected and the consequences
which may entail, its application depends upon the facts and circumstances of each case.

The concept pf natural justice entails two principles:

(i) Nemo judex in causa sua: No man shall be judge in his own cause or the deciding
authority must be impartial and without bias-Rule against Bias.

(ii) Audi alteram partem: Hear the other side, or both the sides must be heard, or no man
should be condemned unheard or that there must be fairness on the part of deciding
authority- Rule of hearing or fair hearing.

Types of bias: bias appears in various forms which may affect the decision in variety of
ways. The various types of bias are:

(i) pecuniary bias

(ii) Personal bias (iii) Subject matter bias (iv) Departmental bias; and (v) Policy bias.
The first principle of natural justice is rule against bias. It means that the deciding
authority must be impartial and neutral. It is well settled principle of law that justice
should not only be done but be seen to be done. Justice can never be seen to be done if a
man acts as a judge in his own cause or is himself interested in its outcome. This principle
is applicable not only to judicial proceedings but also to quasi judicial as well as
administrative proceedings. A decision which is a result of bias is a nullity and the trial is
coram non-judice.

(i) Pecuniary bias: pecuniary means money or monetary interest. The least pecuniary
interest in the subject matter of litigation will disqualify any person from acting as a judge.
According to Griffith and Street “ a pecuniary interest, however slight, will disqualify, even
though it is not proved that the decision is in any affected.

In Dr.Bontham Case: Dr.Bontham, a doctor of Cambridge University was fined by the

College of physicians for practising in the city of London without the licence of the college.
The statute under which the college acted provided that the fines should go half to the
Kind and half to the college. The claim was disallowed by the Judge as the College had
financial interest in its own judgement and was a judge in its own cause.

In Vishakapatanam Co-op Motor transport Ltd. Vs. Bangaruraju a co-operative

society wanted a permit. The Collector was the President of that society and at the same
time he was also Chairman of the Regional Transport Authority granting permit in favour
of the society. The decision was quashed by the Court as it was in violation of the
principles of natural justice.

(ii) Personal Bias: The second type of bias is a personal one. A number of circumstances
may give rise to personal bias. Here a judge may be a relative, friend or business
associate of a party. He may have some personal grudge, enmity or grievance or
professional rivalry against such party. In view of these factors, there is every likelihood
that the judge may be biased towards one party or prejudiced towards the other.

In Mineral Development Ltd. Vs. State of Bihar the petitioner were granted mining
licence for 99 years in 1947. But the Minister who had political rivalry with the petitioners
cancelled the licence. This action of the government was challenged on the ground of
personal bias. The challenge was accepted by the court and it was held that there was
personal bias against the petitioners and the Minister was disqualified from taking any
action against the petitioners.

In A.K.Kraipak Vs. Union of India one Naquishband was candidate for selection to the
Indian Foreign Service and was also a member of the Selection Board. Naquishbund did
not sit on the Selection Board when his name was considered. Naquishbund was
recommended by the Board and he was selected by the Public Service Commission. The
candidates who were not selected challenged the selection of Naquishbund on the ground
that the principles of natural justice were violated. The Supreme Court quashed the
selection. The real question is not whether he was biased. It is difficult to prove the state
of mind of a person. Therefore what we have to seek is whether there is a reasonable
ground for believing that he was likely to have been biased.

Conclusion: to known whether the bias has occurred or not it becomes very difficult
hence the test of real likelihood of bias was given a broader content. Reasonable
apprehension in the mind of a reasonable man is necessary. Such reasonable
apprehensions must be based on cogent materials. Moreover, there must be reasonable
evidence to satisfy that there was a real likelihood of bias.

“AUDI ALTERM PARTEM IS SINE QUA NON OF FAIR HEARING”. DISCUSS WITH
THE HELP OF DECIDED CASES.

Introduction: Natural justice is an important concept in administrative law. Natural justice

is envisaged in administrative law for ensuring fair exercise of power by administrative
agencies. Fair exercise of the power of administration is possible when the power is used
according to fair procedure. The universal rule of fair procedure is audi alteram partem-
Hear the other party. Thus, hearing means natural justice or fairness . the principles of
natural justice or fundamental rules of procedure for administrative action are neither fixed
nor prescribed in any code. They are better known than described and easier proclaimed
than defined.

Meaning of Natural Justice: It is not possible to define precisely and scientifically the
expression natural justice. Yet the principles of natural justice are accepted and enforced.
In Ridge Vs. Baldwin case Lord Reid in his historic decision observed: “in modern times
opinions have sometimes 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 measure therefore it
does not exist”.

Audi alteram partem: Rule of hearing doctrine explained: The audi alteram partem
rule means that no should be condemned unheard. This the second fundamental principle
of natural justice and hence a basic requirement of rule of law. According to de Smith” A
party is not to suffer in person or in purse without an opportunity of being heard”. It is the
first principle of civilised jurisprudence and is accepted by the laws of Men and God. In
short the principle is that before an order is passed against any person reasonable
opportunity of being heard must be afforded to him. Generally, the maxim includes two
ingredients (i) notice and (ii) hearing.

(i) Notice: A basic principle of natural justice is that before any action is taken, the
affected person must be given notice to show cause against the proposed action and seek
his explanation. It is a sine qua non of fair hearing. Any order passed without giving notice
is against the principles of natural justice and is void ab intio. It is not enough that notice
in a given case be given. It must be adequate also. The question of adequacy of notice
depends upon the facts and circumstances of each case. However, a notice in order to be
adequate must contain the following;
1. Time, place and nature of hearing.
2. Legal authority and jurisdiction under which hearing is to be held.
3. Matter o fact and Law as regards changes.

b. Reasonable opportunity: More over. The notice must give a reasonable opportunity to
comply with the requirements mentioned in it. In state of Madhya Pradesh and others
Vs. Makers Development Service Pvt Ltd. The High Court declared the entire Act
invalid without issuing notice or calling upon the State Government to file its counter. The
Supreme Court held that the order of the high court is liable to be set aside.

ii) Hearing: the second requirement of the audi alteram partem maxim is that the party
concerned must be given an opportunity of being heard before any adverse action is taken
against him.
In the leading case of Copper Vs. Wandsworth Board of Works. The Board had
power to demolish any building without giving an opportunity of hearing if it was erected
without prior permission. The Board issued an order under which the house of the plaintiff
was demolished. The action was brought against the Board because it had used that power
without giving the owner an opportunity of being heard. Although the action of the Board
was not in violation of the statutory provision, the court held that Board’s power was
subject to the qualification that no man can be deprived of his property without having an
opportunity of being heard.

In Maneka Gandhi Vs. Union of India the passport of the petitioner was impounded by
the Government of India in public interest. No opportunity was afforded to the petitioner
before taking the impugned action. The Supreme Court held that the order was violative of
the principles of natural justice.

In Olga Tellis Vs. Bombay municipal Corporation under the statue the Commissioner
was empowered for removal of construction without notice. However, the Court held that it
was merely an enabling provision and not a command not to issue notice before demolition
of structure. The discretion was, therefore, required to be exercised according to the
principles of natural justice. In the same way when admissions were given to certain
students, but the candidates who were so admitted were not impelled aspirants. The court
ruled that their admissions were not to be cancelled behind their back.

Conclusion: therefore, if a show cause notice is issued and the explanation is considered
before taking action under the statutory provisions, the rules of natural justice cannot be
said to have been violated on the ground that more opportunity should have been afforded

as a huge amount was at stake.

EXPLAIN THE CONCEPT OF OMBUDSMAN. TRACE THE DEVELOPMENT IN INDIA.

Meaning: 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.

Importance: The administrator is not a super-administrator to whom the individual can

appeal when he is dissatisfied with the discretionary decisions of a public official in the
hope that he may obtain a more favourable decision. Hence ombudsman is a suitable
person to appeal for his dissatisfaction.

Historical growth: The institution of Ombudsman originated in Sweden in 1809 it has

been accepted in other countries including Denmark, Finland, New Zealand, England,
Australia and India. In India, the institution of ombudsman is called as Lokpal or
Lokayukta.

Powers and duties:

• The Ombudsman inquires and investigates into complaints made by citizens against
abuse of discretionary power, maladministration or administrative inefficiency and takes
appropriate actions.
• They have very wide powers they have access to departmental files.
• The complainant is not required to lead any evidence before the ombudsman to prove
his case. It is the duty of the ombudsman to satisfy himself whether or not the
complainant was justified.
• The ombudsman can act suo motu.
• The ombudsman can grant relief to the aggrieved person as unlike the powers of a civil
court, his powers are limited.

Merits and demerits: • Ombudsman institution is successful in those countries which

have a comparatively small population.

• But this institution is not useful in populous countries, like U.S.A or India.

• It is easy for a single man to dispose of complainants in small countries.

• It is not easy for a single man to dispose of complainants in populous countries.

• It is more suitable for small countries as the prestige and personal contact would be
more easier.

• The prestige and personal contact would be lost if there are a number of officers who
has always to depend upon a large staff and subordinate officers.

• This institution is suitable for non-democratic countries.

• This institution is not suitable for democratic countries as this institution is accusatorial
and inquisitorial institution and it does not fit into the Indian Constitution because we have
an independent judiciary.

Conclusion: Indian parliament so far has not enacted any Act though a proposal to
constitute an institution of Ombudsman (lokpal) was made by the Administrative Reforms
Commission as early as 1967. But some States, however, have enacted statutes and
appointed Lokayukta.
DISTINGUISH BETWEEN COURT AND TRIBUNAL.

In today’s trend the executive performs ministerial functions and along with this it also
performs many quasi-legislative and quasi-judicial functions also. As the governmental
functions have increased the function of adjudication of disputes is the exclusive
jurisdiction of the ordinary courts of law, in reality. Now, many judicial functions have
come to be performed by the executive. It also seeks to ensure social security and social
welfare for the common masses. Therefore administrative tribunals are, therefore,
established to decide various quasi-judicial issues in place of ordinary courts of law.

According to supreme court the expression Tribunal as used in Article 136 does not mean
the same thing as court but includes, with its ambit, all adjudicating bodies, provided they
are constituted by the state and are invested with judicial as distinguished from
administrative or executive functions.

Distinction between Tribunal and court

An administrative tribunal is similar to a court in certain aspects. Both of them are

constituted by the state, invested with judicial powers and have a permanent existence.
But at the same time, it must not be forgotten that an administrative tribunal is not a
court. The line of distinction between a court and tribunal in some cases is indeed fine
through real.
• A court of law is a part of the traditional judicial system.
• On the other hand, an administrative tribunal is an agency created by a statute and
invested with judicial powers.
• The court derives its powers from judiciary.
• Whereas an administrative tribunal derives its powers from executive as well as
judiciary. • Ordinary civil courts have judicial powers to try all suits of a civil nature.
• Whereas an administrative tribunal have powers to try cases in special matters
statutorily conferred.
• Judges of ordinary courts of law are independent of the executive in respect of their
tenure, terms and conditions of service, etc.
• Whereas an administrative tribunal are entirely in the hands of the Government in
respect of those matters.
• In a court of law it is generally presided over by an officer trained in law.
• But members of administrative tribunals may not be trained as well in law.
• The court of law is bound by all the rules of evidence and procedure .
• But the administrative tribunal is not bound by those rules unless the relevant statue
imposes such an obligation.
• The court must decide all the questions objectively on the basis of the evidence and
materials produced before it.
• But an administrative tribunal may decide questions taking into account the
departmental policy or expediency, hence the decisions may be subjective.
• The court of law is bound by precedents, principles of re judicata and estoppels.
• Administrative tribunal is not strictly bound by them.

Mandamus and judicial review of administrative action:

A writ of mandamus is a royal command issued in the name of the Crown from the court
of King’s Bench to the subordinate court or inferior tribunal, a corporation, a board or any
other person requiring it or him to perform a public duty imposed by the Constitution, a
statue or by common law.

Object:

• The primary object of mandamus is to supply defect of justice.

• It seeks to protect right of a citizen by requiring enforcement and fulfilment of imperative

duty created by law.
• It promotes justice.
• The courts can correct all errors which tend to the oppression of the subject and grant
him appropriate relief.

Conditions:

• The petitioner must have legal right. A person is said to be aggrieved only if he is denied
a legal right.
• The second requirement for a writ of mandamus is that the opposite party must have
legal duty. A legal duty must have been imposed on the authority and the performance of
that duty should be imperative, not discretionary or optional.
• The petition for a writ of mandamus must be preceded by a demand of justice and its
refusal.
• An application for mandamus must have been made in good faith and not for any ulterior
motive or oblique purpose.
• Mandamus may be refused if alternative remedy is available to the applicant.

EXPLAIN THE VARIOUS GROUNDS FOR EXERCISING JUDICIAL CONTROL OVER

“ADMINISTRATIVE DISCRETION” IN INDIA WITH HELP OF DECIDED CASES.

ADMINISTRATIVE DISCRETION:
Meaning:
The word administrative discretion denotes two words administrative and discretion. It
means discretion which is used by administration in their functions. Discretion means
decision power. In other words the power to do something according their mind and
wisdom. Every person has discretion regarding their property he can donate, transfer and
sale. It is his discretion if wants that his property should go for his heredities he can write
a will. If he do not want to give his property to his heredities he can sale it. No one can
interfere in his discretion. Individual discretion is different with administrative discretion.
In individual discretion there is no any restriction. But administrative discretion means
they have discretion within the given options.
Discretion implies power to make a choice between an alternative course of action or
inaction. The term itself implies vigilance, care, caution and circumspection.

Coke proclaimed Discretion as a science or understanding to discern between falsity and

truth, between right and wrong, between shadows sand substance, between equity and
colourable glosses and pretences, and not to do according to their wills and private
affections.

In short, here the decision is taken by the authority not only on the basis of the evidence
but in accordance with policy or expediency and in exercise of discretionary powers
conferred on that authority.

In Secy. Of State for Education and Science Vs. Metropolitian Borough Council Tameside.
Lord Diplock said “ the very concept of administrative discretion involves a right to choose
between more than one possible cause of action on which there is room for reasonable
people to hold differing opinions as to which is to be preferred.

There are different types of discretionary powers conferred on the administration. They
range from simple ministerial functions like maintenance of birth and death register
regulation of business activity, acquiring property for the public purpose, investigations,
seizure, confiscation and destruction of property, experiment or detention of a person or
subjective satisfaction of the administrative authority and the like.

The need for administrative discretion arises to meet variability of situations in the
interests of public. But an administration unrestrained in its power to pursue its socialistic
objectives by any and all means considered expedient by the officials of government is
anti-thesis of law and is nothing but administrative lawlessness. Administrators who do as
they like and who are not bound by considerations capable of rational formulation cannot
be said to act within the framework of law.

When discretionary power is conferred on an administrative authority, it must be

exercised according to law. When the mode of exercising a valid power is improper or
unreasonable, there is an abuse of the power.
There are several forms of abuse of discretion. The excess or abuse of discretion may be
inferred from the following circumstances:

a. Acting without jurisdiction b. Exceeding jurisdiction c. Arbitrary action. d. Irrelevant

considerations. e. Leaving out irrelevant consideration f. Mixed considerations g. Mala fide
h. Collateral purpose: improper object; i. Colourable exercise of power; j. Colourable
legislation; fraud on Constitution k. Non-observance of natural justice; l.
Unreasonableness.

WRITE A NOTE ON SUB-DELEGATION.

Meaning: When a statute confers some legislative powers on an 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
the 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’, the parent in his own
life time may beget descendants upto four or five degrees.

Object: The necessity of sub-delegation is sought to be supported, inter alia, on the

following grounds:
1. Power of delegation necessarily carries with it power of further delegation: and
2. 2. Sub-delegation is ancillary to delegated legislation; and any objection to the said
process is likely to subvert the authority which 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 inferred by necessary implication.

Express power: where a statute itself authorises an administrative authority to sub-

delegate its powers, no difficulty arises as to its validity since such subdelegation is within
the terms of the statute itself.

Thus in Central talkies Ltd. Vs. Dwarka Prasad, the UP Control of Rent and Eviction
Act 1947 provided that no suit shall be file 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 about sudelegation of
power by the delegate, 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 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.

Conclusions: Sub-delegation at several stages removed from the source dilutes

accountability of the administrative authority and weakens the safeguards granted by the
Act. It becomes difficult for the people to know whether the officer is acting within his
prescribed sphere of authority. It is therefore, necessary to limit in some way the degrees
to which the sub-delegation may proceed.

ULTRA VIRES

Ultra vires means beyond power or authority or lack of power. An act may be said to be
ultra vires when it has been done by a person or a body of persons which is beyond his, its
or their power, authority or jurisdiction. When an act of Legislature enacts in an excess of
power, conferred on the Legislature by the Constitution, the legislation is said to be ultra
vires the Constitution. On the same principle, when a sub ordinate legislation goes beyond
what the delegate is authorised to enact he acts ultra vires. This is known as substantive
ultra vires.

Substantive ultra vires means that the delegated legislation goes beyond the scope of
the authority conferred on it by parent statute or by the constitution. It is a fundamental
principle of law that a public authority cannot act outside the powers i.e, ultra vires.

Procedural ultra vires: when a subordinate legislation fails to comply with procedural
requirements prescribed by the parent Act or by a general law, it is known as procedural
ultra vires. For eg: publication and consultation.

Power delegated by statue is limited by its terms and subordinate to the objects. The
delegate must act in good faith, reasonably, intra vires the power granted and on relevant
considerations. All his decisions, whether characterised as legislative, administrative or
quasi judicial, must be in harmony with Constitution, parent Act and other laws of the
land. They must be reasonably related to the purposes of the enabling legislation. Judicial
control over delegated legislation is exercised by applying the doctrine of ultra vires in a
number of circumstances.

CONDITIONAL LEGISLATION:
Meaning: ‘Conditional Legislation’ may be described as a statute that provides controls but
specifies that they are to go into effect only when a given administrative authority fulfills
the existence or conditions defined in the statute.

Nature and Scope: In conditional legislation, legislature makes the law. It is full and
complete. No legislative function is delegated to the executive. But the said Act is not
brought into force and it is left to the executive to bring the Act into operation on
fulfillment of certain conditions or contingencies and for that reason the legislation is called
conditional legislation or contingent legislation. A statute may be conditional and its taking
effect may be made to depend upon some subsequent event.

Classification: Conditional legislation may be classified into three categories:

i. Where the legislation is full and complete but leaves its future applicability to the
executive authority.
ii. Where the legislation is enforced but leaves the power ti withdraw from operation of the
Act in a given area or in given situation to the executive authority; and
iii. Where the legislation leaves it to the executive authority to grant benefit of the Act to
one class depriving the rival class of such benefits.

A) WHAT IS DELEGATED LEGISLATION? WHAT ARE THE CONSTITUTIONAL LIMITATIONS

ON THE DELEGATION OF LEGISLATIVE POWER IN INDIA?

Introduction: there is rapid growth of administrative legislation. The function of the

executive is to administer the law enacted by the legislature, and in the ideal state, the
legislative power must be exercised exclusively by the legislators who are directly
responsible to the electorate. As a matter of fact, apart from pure administrative functions,
the executive performs many legislative and judicial functions also. Therefore, it is said
that delegated legislation is multitudinous that a statute book would not only be
incomplete but misleading unless it be read along with delegated legislation which
amplifies and supplements the law of the land.

Definition: the term delegated legislation is difficult to define. it is equally difficult to state
with certainty the scope of such delegated legislation

Mukhejee rightly says: “Delegated legislation is an expression which covers a multitude of

confusion. It is an excuse for the legislators, a shield for the administrators and a
provocation to the constitutional jurists...”

A simple meaning of the expression delegated legislation is a sunder

“When the function of legislation is entrusted to organs other than the legislature by the
legislature itself, the legislation made by such organs is called delegated legislation”.

Constitutional limitations on the delegation of legislative power:

Even though there is no specific bar in the Constitution of India against the delegation of
legislative power by the legislature to the executive, it is now well settled that essential
legislative functions cannot be delegated by the legislature to the executive.
Some of the functions which cannot be delegated are also called as impermissible
delegation. Some of them are as follows:

1. Essential legislative functions: Legislative policy must be laid down by the legislature
itself and by entrusting this power to the executive; the legislature cannot create a parallel
legislature.

2. Repeal of law: Power to repeal a law is essentially a legislative function, and therefore,
delegation of power to the executive to repeal a law is excessive delegation and is ultra
vires.

3. Modification: power to modify the act in its important aspects is an essential legislative
function and, therefore, delegation of power to modify an Act without any limitation is not
permissible. However, if the changes are not essential in character, the delegation is
permissible.

4. Exemption: The aforesaid principle applies in case of exemption also, and the legislation
cannot delegate the power of exemption to the executive without laying down the norms
and policy for the guidance of the latter.

5. Removal of difficulties: Under the guise of enabling the executive to remove difficulties,
the legislature cannot enact a Henry VIII Clause and thereby delegate essential legislative
functions to the executive, which could not otherwise have been delegated.

6. Retrospective operation: The legislature has plenary power of law making and in India,
parliament can pass any law prospectively or retrospectively subject to the provisions of
the Constitution. But this principle cannot be applied in the case of delegated legislation.
Giving an Act retrospective effect is essentially a legislative function and it cannot be
delegated.
7. Future Acts: The legislature can empower the executive to adopt and apply the laws
existing in other States, but it cannot delegate the power by which the executive can adopt
the laws which may be passed in future, as this is essentially a legislative function.

8. Imposition of tax: the legislature cannot empower the executive by which the
jurisdiction of courts may be ousted. This is a pure legislative function.

9. Offences and penalty: the making of a particular act into an offence and prescribing
punishment for it is an essential legislative function and cannot be delegated by the
legislature to the executive. However, if the legislature lays down the standards or
principles to be followed by the executive is defining an offence and provides the limits of
penalties, such delegation is permissible.

10. Essential legislative functions: Legislative policy must be laid down by the legislature
itself and by entrusting this power to the executive; the legislature cannot create a parallel
legislature.

11. Repeal of law: Power to repeal a law is essentially a legislative function, and therefore,
delegation of power to the executive to repeal a law is excessive delegation and is ultra
vires.

12. Modification: power to modify the act in its important aspects is an essential legislative
function and, therefore, delegation of power to modify an Act without any limitation is not
permissible. However, if the changes are not essential in character, the delegation is
permissible.

13. Exemption: The aforesaid principle applies in case of exemption also, and the
legislation cannot delegate the power of exemption to the executive without laying down
the norms and policy for the guidance of the latter.

14. Removal of difficulties: Under the guise of enabling the executive to remove
difficulties, the legislature cannot enact a Henry VIII Clause and thereby delegate essential
legislative functions to the executive, which could not otherwise have been delegated.

15. Retrospective operation: The legislature has plenary power of law making and in India,
parliament can pass any law prospectively or retrospectively subject to the provisions of
the Constitution. But this principle cannot be applied in the case of delegated legislation.
Giving an Act retrospective effect is essentially a legislative function and it cannot be
delegated.
16. Future Acts: The legislature can empower the executive to adopt and apply the laws
existing in other States, but it cannot delegate the power by which the executive can adopt
the laws which may be passed in future, as this is essentially a legislative function.

17. Imposition of tax: the legislature cannot empower the executive by which the
jurisdiction of courts may be ousted. This is a pure legislative function.

18. Offences and penalty: the making of a particular act into an offence and prescribing
punishment for it is an essential legislative function and cannot be delegated by the
legislature to the executive. However, if the legislature lays down the standards or
principles to be followed by the executive is defining an offence and provides the limits of
penalties, such delegation is permissible.

Locus standi: 1. Meaning: Locus Standi means "place for standing". Hence it means the
legal capacity to challenge or question an act ordecision, by a party before the court.ie, it
answers the question who may apply or file a suit or a petition. The court strictly speaking
entertains only .if he is an aggrieved or interested person. But this is very much liberalized
& widened

Writs
Introduction A very significant aspect of the Indian Constitution is the jurisdiction it confers
on the High Courts to issue writs. The writs have been among the great safeguards
provided by the British Judicial System for upholding the rights and liberties of the people.
It was an Act of great wisdom, faith and foresight on the part of the Constitution-makers
to introduce the writ system in India, and, thus, constitute the High Courts into guardians
of the people's legal rights. In the modern era of welfare state, when there is government
action on a vast scale, a procedure to obtain speedy and effective redress against an illegal
exercise of power by the Executive is extremely desirable. Through writs, the High Courts
are able to control, to some extent, the administrative authorities in the modern
administrative age. The writ system provides an expeditious and less expensive remedy
than any other remedy available through the normal court-process. In the pre-Constitution
era, only the High Courts of Calcutta, Madras and Bombay enjoyed the jurisdiction to issue
writs. The jurisdiction was, however, limited territorially as each High Court could issue a
writ not throughout the whole of its territorial jurisdiction but only within the area of the
Presidency Town within which it enjoyed an original jurisdiction.1 No other High Court had
such a jurisdiction. Art. 226 thus affects all the High Courts in a fundamental manner and
adds greatly to their power. Each High Court now has a writ jurisdiction, and even the
Calcutta, Madras and Bombay High Courts have benefited for they can now issue writs
even outside the limits of their original jurisdiction
Arts. 32 and 226 compared

Art. 226 is wider in scope than Art. 32. Under Art. 32, the Supreme Court's writ jurisdiction
can be invoked only for enforcement of Fundamental Rights.44 On the other hand, under
Art. 226, a High Court may enforce not only a Fundamental Right but also any other legal
right as Art. 226 empowers the High Court to issue a writ for "enforcement of Fundamental
Rights" as well as "for any other purpose."
For example, under Art. 265, no tax can be levied without the authority of law.When,
therefore, a tax imposed without the authority of law infringes a Fundamental Right, relief
can be had either under Art. 32, or Art. 226. But when a Fundamental Right is not
infringed, only Art. 226, and not Art. 32, can be invoked.
Therefore, for enforcement of a Fundamental Right, there exists a parallel writ jurisdiction
in both the Supreme Court as well as the High Courts. But for "any other purpose", one
has to go to the High Courts and not the Supreme Court. The High Courts' jurisdiction is
not in derogation of the Supreme Court's jurisdiction.
Also, a High Court case issue a writ to a wider range of 'persons' and "authorities" than
can the Supreme Court. The term 'authority' in Art. 226 has been interpreted more broadly
than the term "other authorities" in Art. 12.48 Also, it may be noted that while Art. 226
uses the term "person", Art. 12 does not use the word "person". This makes the scope of
Art. 226 much wider than Art. 32 from the point of view of those whom the High Courts
can issue writs.Art. 226 operates "notwithstanding anything in Article 32". Thus, Arts. 32
and 226 stand independently of each other.
Although under the Constitution, Arts. 32 and 226 exist independently of each other, the
Supreme Court has by the process of interpretation introduced the doctrine of res judicata
to discourage multiple and overlapping writ petitions both in the High Court as well as the
Supreme Court on the same subject-matter to get the same relief on the same facts.
For example, under Art. 265, no tax can be lavied without the authority of law.45 When,
therefore, a tax imposed without the authority of law infringes a Fundamental Right, relief
can be had either under Art. 32, or Art. 226. But when a Fundamental Right is not
infringed, only Art. 226, and not Art. 32, can be invoked. Therefore, for enforcement of a
Fundamental Right, there exists a parallel writ jurisdiction in both the Supreme Court as
well as the High Courts. But for "any other purpose", one has to go to the High Courts and
not the Supreme Court. The High Courts' jurisdiction is not in derogation of the Supreme
Court's jurisdiction.
Also, a High Court case issue a writ to a wider range of 'persons' and "authorities" than
can the Supreme Court. The term 'authority' in Art. 226 has been interpreted more broadly
than the term "other authorities" in Art. 12. Also, it may be noted that while Art. 226 uses
the term "person", Art. 12 does not use the word "person". This makes the scope of Art.
226 much wider than Art. 32 from the point of view of those whom the High Courts can
issue writs. Art. 226 operates "notwithstanding anything in Article 32". Thus, Arts. 32 and
226 stand independently of each other.
Although under the Constitution, Arts. 32 and 226 exist independently of each other, the
Supreme Court has by the process of interpretation introduced the doctrine of res judicata
to discourage multiple and overlapping writ petitions both in the High Court as well as the
Supreme Court on the same subject-matter to get the same relief on the same facts.

Injunction
An injunction is primarily a private law remedy, but is used in the area of public law as well
to prevent the Administration from breaking the law. Through an injunction a public
authority may be commanded to do a thing which the law requires it to do, or to refrain
from doing some thing which is illegal. An injunction can be issued to an administrative or

a quasi-judicial body.

Statutory Appeal: The statutes made by Parliament and State Assemblies itself provide
that in a particular type of administrative action, the aggrieved party will have a right of
appeal to the courts Judicial Administration or to a higher administrative tribunal.
Sometimes, legislative enactment itself may provide for judicial intervention in certain
matters.

e) Quo-Warranto: Literally, Quo-Warranto means 'on what authority'. When any person
acts in a ‘public office’ in which he/she is not entitled to act, the court by the issue of this
writ, will enquire into the legality of the claim of the person to that office. If the said claim
is not well founded, he/she will be ousted from that office. It is, thus, a powerful
instrument against the usurpation of ‘public offices’.

 Certiorari: While Prohibition is preventive, Certiorari is both preventive and curative. It is

a writ issued by a superior court for transferring the records of proceedings of a case from
an inferior court or quasi-judicial authority to the superior court for determining the
legality of the proceedings.

c) Prohibition: It is a judicial writ issued by a superior court to an inferior court,

preventing it from usurping jurisdiction, which is not vested with it. While Mandamus
commands activity, Prohibition commands inactivity. This writ can be issued only against
judicial or quasi-judicial authorities to prevent exercise of excess of jurisdiction by a
subordinate court. As such its significance as a method of judicial control over
administration is limited.

JUDICIAL CONTROL OVER ADMINISTRATION, ACCOUNTABILITY AND

SEPARATION OF POWER

Introduction:
The doctrine of separation of powers implies that each pillar of democracy - the executive,
legislature and the judiciary - perform separate functions and act as separate entities. The
executive is vested with the power to make policy decisions and implement laws. The
legislature is empowered to issue enactments. The judiciary is responsible for adjudicating
disputes. The doctrine is a part of the basic structure of the Indian Constitution[1] even
though it is not specifically mentioned in its text. Thus, no law may be passed and no
amendment may be made to the Constitution deviating from the doctrine.

Judicial control over administration

The control exercised by the Courts over the administration is called judicial control, that
is, to the power of the court to keep the administrative acts within the limits of law. It also
implies the right of an aggrieved citizen to challenge the wrongful act of administration in
the court of law. The primary purpose of judicial control over administration is the
protection of the rights and liberty of citizens by ensuring the legality of administrative
acts. L D white has aptly pointed out that, “the purpose of legislative supervision is
principally to control the policy and expenditure of the executive branch, the end sought by
judicial control of administrative acts is to ensure their legality and thus, protect citizen
against unlawful trespass on their constitutional and other rights. Lord Bryce has said that
there is no better test of the excellence of a government than the efficiency and
independence of its judicial system.

In India, the judiciary occupies an important place. The constitution visualizes an

independent judiciary to safeguard the rights of citizens. In a democratic polity, the
independent judiciary is a sine qua non to the effective functioning of the system.
Administration has to function according to the law and the Constitution. The judiciary has
an important role to play in protecting the citizen against the arbitrary exercise of power
by administration.

Basis of Judicial Control: Rule of Law

The term ‘rule of law’ is originated from England and India has taken this concept. The
concept of rule of law further requires that no person should be subjected to harsh or
arbitrary treatment. The word ‘law’ in rule of law means that whether he is a man or a
society, he must not be governed by a man or ruler but by law. In other words, as per
Article 13 of the Indian Constitution rule of law means law of land. In 1885, Professor A.V
Dicey developed this concept and propounded three principles or postulates of the rule of
law in his classic book, Introduction to the Study of the Law of the Constitution.

1.   Absence of Arbitrary Power: No man is punishable or can be lawfully made to suffer

in body or in goods except for a distinct breach of law established in the ordinary legal
manner before the ordinary courts of the land. Dicey went on and stated that no one
should have too wide and arbitrary or discretionary powers.
2.   Equality before law: According to the second principle of Dicey, equality before law
and equal subjection of all classes to the ordinary law of land to be administered by the
ordinary law courts and this principle emphasizes everyone which included government as
well irrespective of their position or rank. But such element is going through the phase of
criticisms and is misguided. As stated by Dicey, there must be equality before law or equal
subjection of all classes to the ordinary law of land. He also criticized French legal system
of Droit Administration as there were separate tribunals for deciding the cases of state
officials and citizens.

3.   Predominance of Legal Spirit: According to the third principle of Dicey, It is

generally presumed that the written constitution is the source of legal liberties of citizens.
However, it is not true as Britain has an “unwritten Constitution.” Legal spirit is the real
source of law in England. The legal spirit is seen in its customs, conventions and judicial
decisions. Dicey opines that the individual rights and liberties are more safely protected in
Britain than France. Rule of law as established by Dicey requires that every action of the
administration must have legal backing and done in accordance with law.

Grounds of Judicial Intervention

In order to develop Indian democracy, rule of law has played a great role. At the time of
framing of Constitution, the framers had two options i.e. USA and England. Some of the
provisions were adopted from USA and some of them were adopted from England. Our
constitutional fathers have adopted rule of law from England and many provisions were
incorporated in the Indian Constitution. Indian Constitution is considered to be supreme
and no one is above Indian Constitution. Rule of law is also given impliedly in the preamble
and such concept is enshrined in Part III of the Indian Constitution. Generally judicial
intervention in administrative activities is confined to the following cases:

a) Lack of Jurisdiction: If any public official or administrative agency acts without or

beyond his/her or its authority or jurisdiction the courts can declare such acts as ultra
vires. For instance, according to administrative rules and procedures, in all organizations,
the competent authority is identified for taking decisions and actions. If any authority or
person other than the competent authority takes action, the court's intervention can be
sought under the provisions of lack of jurisdiction.

b) Error of Law: This category of cases arises when the official misconstrues the law and
imposes upon the citizen obligations, which are absent in law. This is called misfeasance in
legal terminology. The courts are empowered to set right such cases.
c) Error of Fact: this category of cases is a result of error in discovering cases and
actions taken on basis of wrong assumptions. Any citizen adversely affected by error of
judgment of public official can approach courts for redressal.

d) Error of Procedure: "due procedure" is the basis of governmental action in a

democracy. Responsible government means a government by procedure. Procedure in
administration ensures accountability, openness and justice. Public officials must act in
accordance with the procedure laid down by law in the performance of the administrative
activities. If the prescribed procedure is not followed the intervention of the courts can be
sought and legality of administrative actions can be questioned.

e) Abuse of authority: if a public official exercises his/her authority vindictively to harm

a person or use authority for personal gain, court's intervention can be sought. In legal
terms, it is called malfeasance. The courts can intervene to correct the malfeasance of
administrative acts.

Means of Judicial Control Over Administration

The forms and methods of judicial control over administration vary from country to
country, depending upon the type of the constitution and the system of law. Broadly
speaking, there are two systems of legal remedies against administrative encroachments
on the rights of citizens. One is called the Rule of Law system and the other is called the
Administrative Law system. The Rule of Law means that everybody, irrespective of social
and cultural differences, whether an official or a private citizen is subject to the same law
and the ordinary law of the land. The official cannot take shelter behind state sovereignty
in committing mistakes in his official capacity. A.V. Dicey, the main exponent d Law
system stated that the Rule of Law assumes equality of Rule of all before law and
application of the same law to all. The rule of law system prevails in England and other
Commonwealth countries including India. It is also prevalent in the USA and many other
democratic counties. The administrative law system is based on the assumption of
separate law and courts for dealing with administrative actions. This system prevails
mainly in France. In the following paragraphs, we shall discuss some of the forms of
judicial control over administration in India, under the Rule of Law system.

Limitations Of Judicial Control Over Administration

The effectiveness of judicial control over administration is limited by many factors. One of
the most important factor is that the courts cannot interfere in the administrative activities
on their own accord even if such activities are arbitrary. They act only when their
intervention is sought. Judicial intervention is restrictive in nature and limited in its scope.
Some of these limitations are:

a) Unmanageable volume of work: the judiciary is not able to cope up with the volume
of work. In a year the courts are able to deal with only a fraction of cases brought before
it. Thousands of cases have been pending in Supreme Court, High Courts and Lower
Courts for years together for want of time. There is an increase in the cases of litigation
without a commensurate expansion of judicial mechanism. The old adage of 'justice
delayed is justice denied', still holds good. This excessive delay in the delivery of justice
discourages many to approach the court. The feeling of helplessness results in denial of
justice to many.

b) Postmortem nature of judicial control: In most of the cases the judicial intervention
comes only after enough damage is done by the administrative actions. Even if the courts
set right the wrong done, there is no mechanism to redress the trouble the citizen has
undergone in the process.

c) Prohibitive Costs: the judicial process is costly and only rich can afford it. There is
some truth in the criticism of pro-rich bias of judicial system in India. As a result, only rich
are able to seek the protection of courts from the administrative abuses. The poor are, in
most cases, the helpless victims of the administrative arbitrariness and judicial inaction. As
V.R. Krishna Iyer pointed 'the portals of justice are not accessible to the poor'.

d) Cumbersome procedure: Many legal procedures are beyond the comprehension of

common man. The procedural tyranny frightens many from approaching the courts. Even
though the procedures have a positive dimension of ensuring fair play, too much of it
negatives the whole process.

e) Statutory limitations: the courts may be statutorily prevented from exercising

jurisdiction in certain spheres. There are several administrative acts, which cannot be
reviewed by courts. For instance, ninth schedule of Indian constitution.

f) Specialised nature of administrative actions: The highly technical nature of some

administrative actions act as a further limitation on judicial control. The judges, who are
only legal experts, may not be able to sufficiently appreciate the technical implications of
administrative actions. As a result, their judgments may not be authentic.

g) Lack of awareness: In developing societies, most of the people who are poor and
illiterate are not aware of judicial remedies and the role of the courts. As a result they may
not even approach the court to redress their grievances. The courts, which can intervene
only when it is sought, may be helpless in this situation. The general deprivation of people
also results in deprivation of justice to them.
h) Erosion of autonomy of judiciary: There is executive interference in the working of
judiciary. The quality of judiciary mostly depends on the quality of the judges. The Law
Commission made many recommendations to ensure the judicial standards of the bench.
The suggestion to create Judicial Commission with responsibility for judicial appointments
deserves serious consideration. In recent years, there are many allegations of corruption
against judges. This undermines the prestige and the effectiveness of the judiciary.

Principle of Separation of Powers and Concentration of Authority

The doctrine of Separation of Powers deals with the mutual relations among the three
organs of the Government namely legislature, executive and judiciary. The origin of this
principle goes back to the period of Plato and Aristotle. It was Aristotle who for the first
time classified the functions of the Government into three categories viz., deliberative,
magisterial and judicial Locks categorized the powers of the Government into three parts
namely: continuous executive power, discontinuous legislative power and federative
power. “Continuous executive power” implies the executive and the judicial power,
“discontinuous legislative power” implies the rule making power, “federative power”
signifies the power regulating the foreign affairs.[6] The French Jurist Montesquieu in his
book L. Esprit Des Lois (Spirit of Laws) published in 1748, for the first time enunciated the
principle of separation of powers. That’s why he is known as modern exponent of this
theory. Montesquieu’s doctrine, in essence, signifies the fact that one person or body of
persons should not exercise all the three powers of the Government viz. legislative,
executive and judiciary. In other words each organ should restrict itself to its own sphere
and restrain from transgressing the province of the other.

In the view of Montesquieu:

“When the legislative and executive powers are united in the same person, or in the same
body or Magistrate, there can be no liberty. Again, there is no liberty if the judicial power
is not separated from the Legislative and Executive power. Where it joined with the
legislative power, the life and liberty of the subject would be exposed to arbitrary control,
for the judge would then be the legislator. Where it joined with the executive power, the
judge might behave with violence and oppression. There would be an end of everything
were the same man or the same body to exercise these three powers...”[7]

Montesquieu’s “Separation” took the form, not of impassable barriers and unalterable
frontiers, but of mutual restraints, or of what afterwards came to be known as “checks and
balances”. The three organs much act in concert, not that their respective functions should
not ever touch one another. If this limitation is respected and preserved, “it is impossible
for that situation to arise which Locke and Montesquieu regarded as the eclipse of liberty
the monopoly, or disproportionate accumulation of power in one sphere