ADMINISTRATIVE LAW

In India, administrative law is regulated by certain fundamentals such as rule of law, delegated
legislation, principles of natural justice, administrative action, etc. We will focus on these
fundamentals.

Administrative law regulates the three pillars of the state: the legislature, the executive and the
judiciary. The course will focus on What, Why and How. How administrative law operates in
practice is going to be a central emphasis.

Quasi-judicial actions

Quasi-legislative actions – delegated authority to legislate, subordinate legislations, secondary

legislations

Pure Administrative actions

L. Chandrakumar v. UoI (1997) – Appeal under Article 226 from High Court – seven judges

bench of SC – appeal against the Administrative Tribunal can be approached to the division

bench of HC.

There is no provision of appeal under art. 226 of the High Court but in this case, appeal was
allowed under Article 226 of the HC from a service tribunal. However, the judicial review
cannot be used to turn the high court into an appellate court, cannot look into evidences, etc. It
can only look into the procedural aspects of the system.

Judicial review is only available on limited grounds – HC cannot look into the evidence, merits

of the case under article 226 – it merely looks into the procedure of the case – disproportionality,

irrationality, etc.

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 04.09.2020 – Principles of Admin Law

Equality is one of the fundamental principles of rule of law. Prof Dicey’s theory of 1885 is very

different from Indian perspective. Articles 14, 16 etc- rule of law.

HIRAC- History (factual matrix), Issue, Rule, Application, Conclusion

Delegation of legislative powers- secondary legislative powers can only be delegated. Primary
powers cannot be delegated- that would be the abdication of the constitutional position.

Kautalya’s arthashastra- wonderful piece on public administration- Kautalya- principles of

natural justice, fair process etc.

Admin law- specialized branch of law only in late 19th and early 20th century.

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 1215: Magna Carta. Regulations of some aspects of admin law- accountability etc.

 1610 case of judicial review Edward Coke – Dr. Bonhams – beginning of doctrine of

judicial review, accountability of actions taken by the king

 1748 – Montesquieu principles - principle of separation of powers. What happens to the

rule of law when powers are concentrated in one individual? Hint: The rule of law does

not survive.

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 1799 - Napoleon Bonaparte – French concept of administrative tribunals to ensure the

accountability of the state, comparative analysis of French and Indian law – Driot

Administrative System developed to take care of the state

 1803 – Judicial review – Marbury v. Madison (J. John Marshall) – he tried to codify

the doctrine of judicial review – constitution is supreme - was there a violation of

principles of natural justice? John Marshall was also part of the dispute but be

propounded the theory- he sat in his own case

 1885 – Book written by Edward Dicey – his criticism of droit administrative,

discretionary power and misuse of power (we was though confused between

discretionary and unreasonable powers)

 1947 – Judgment of Wednesbury

 1963 – Ridge v Baldwin (1964 AC 40) - Judgment delivered by House of Lords –

principles of natural justice – application of pnj to administrative justice/actions

 1970 – Judgment of SC – AK v. UOI – rule against biasness

 1978 – Menaka Gandhi v. UOI – reiterates the position of principles of natural justice.

Doctrine to administrative law- post-decisional hearing. Principles of natural justice deal

with prior hearing. Maneka Gandhi- post-decisional hearing. Sometimes when there is

uregnecy and for public interest- requirement of prior notice is to be dispensed with. Post

decisional hearing deals with only the dispensible requirements of notice. That even

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 though notice was not prior given, there is post decision hearing- is this an exception to

or an extension of the principles of natural justice?- find answer to this

There is no exhaustive definition of administrative law.

State actions are required to be controlled- if there are no basic constraints in this regard-
controlling mechanisms to regulate the relations between people and the state.

Public and private law: Private law- relationship between the parties. Public law- state and
private citizens. Labor law- a mix of both private and public law. Contract between employer-
employee can be private law. But the moment actions of state individuals- labour commissioners
etc involved- this becomes a public law issue.

Deemed state – article 12 – a specific institution for specific purpose acts as a deemed state –

private institution that performs public function

When it comes to India- Admin law is largely uncodified- no Administrative Law Act. US- you
have so many statutory instruments regulating the procedure of administrative law. Principles of
natural justice- no statute defining the principles of natural justice or the application thereto.

Fundamental principles of Admin law –

- Principles of natural justice

- Rule of law, judicial review

- Separation of power

- Delegated legislation

- Control over discretionary power

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 - Grounds of judicial review – illegality, irrationality (Wednesbury judgment),

proportionality, legitimate expectation (it is hardly recognized since remedy is not

available, CCSU Judgment 1984) and procedural impropriety

Legitimate expectations: students of public university were getting food at concessional rates for
20 years- services discontinued without giving any notice or hearing- the students had the
legitimate expectation to get the benefit. People are required to be heard. How can you compel
the authorities to give them the services? Legitimate expectations an answer to this. India- this
hasn’t properly been incorporated.

Admin law regulates administrative actions of three organs of the state

Administrative actions –

- Quasi Judicial action

- Quasi legislative action – delegated, secondary, sub-ordinate legislation and rulemaking

powers

- Pure admin actions – with or without civil consequences

Judicial action is beyond the scope of admin law. Admin actions performed by the admin

agencies are under its purview as provided above.

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 08.09.2020 – Scope of Admin Law

Administrative actions

Judicial actions are beyond the scope of administrative law- it is the only administrative actions

that are governed by admin law

- Quasi – judicial actions

- Quasi – legislation actions – making law under delegations of legislative power

- Pure administrative actions – residuary

Categorized into two parts – with and without consequences

Definition of Admin Law

Ivor Jennings – admin law is the law relating to administration (public administration). It

determines the organizations, powers and duties of administrative authorities.

Prof. Wade – It is an instrument of governmental power – gave the theory called ‘Red Light

Theory’ – external control over the powers of administration – acc. To him judicial review is the

best external control over power through admin law

AV Dicey – Features of admin law

- Position and liabilities of all state officials – composition and duties of govt. officials

- Civil rights and liberties of individuals in dealing with govt.

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 - Determines the procedure by which the rights and liabilities are enforced – procedure

which is required to protect rights and liberties of state and individuals

Admin law is the branch of public law that determines the powers and jurisdiction of public

authorities AND protects rights and liberties of individuals in dealing with government.

Basic features of Admin law:

- Deals with interface between state and individuals

- Administrative actions performed by the state authorities

- Branch of public law – different from private law

- It is not a codified law – natural justice principles etc.

- Dynamic in nature – it keeps on changing and is not static

- Judge made law – it is a system of common law – judicial review

- Tool of control – facilitator for good and smooth governance

Recognition of Admin Law

1. UK – They govern the nation on the basis of some fundamental doctrines of governance.

Prof. Albert Venn Dicey helped in advancement of Admin Law through Rule of Law

theory – three principles according to him which have been expanded by modern thinkers

Specific legislations enacted in UK under Admin law – the S Is Act, 1946, Tribunals,

Courts and F Act, 2007 and Crown Proceedings Act, 1947 (Regulate Vicarious liability

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 of the State and distinguishes between sovereign and non-sovereign functions of the

state)

[In India vicarious liability is not provided by any law but incorporated in Article 300 of

the Constitution – developed by judicial pronouncement]

Separation of Powers: clear difference and separation of powers in various organs of state

– in UK they brought Constitutional Reform Act 2005 (Supreme Court was created in

2009 – before that it was House of Lords that performed the judicial actions which was

also a legislative body), there is an overlap between executive and legislative actions also

but majorly they have tried to separate the functions, RTI Act, 2000 – instrument of

transparency

2. USA – Article 1 – legislative powers, Article 2 – executive powers and Article 3 –

Judicial powers – clear cut demarcation

Recognition of Principles of Natural justice – Administrative Procedure Act 1946

Freedom of Information – similar to RTI

Federal Torts Claims Act, 1946 – seeks accountability of the state and public servants –

vicarious liability

3. France – Civil law system and has written constitution

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 Droitt Administrative 1799 – protection to administration brought in by Napolean that put

in administrative actions beyond judicial review but now they have reformed and

changed it for the protection to people

4. India – Constitution

Article 14 – equality, reasonableness – if the administration action is unreasonable then it

can be subject to judicial review

Article 12 – admin law is the interface between private individuals and state and article

12 defines what ‘state’ is – it does not include deemed state – this article is important in

admin law

Article 16 – equal opportunities for employment – people should be treated at par and not

discriminated

Article 19 – (1)(a) – freedom of speech and expression recognized freedom of

information (Sengupta judgment of SC)

Freedom of association – state employees and others can form associations

Article 21 – Principles of natural justice – due process of law

Article 226 – judicial review of administrative actions – control over admin law – deals

with procedure requirement – HC cannot delve into the merits of specific case but deals

with only procedural requirements – only five grounds available – illegality, irrationality

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(Wednesbury judgment), proportionality, legitimate expectation and procedural

impropriety

Article 32 – Judicial review by SC

Article 136 – Special leave application – SC has the discretion to accept the SLP – quasi-

judicial actions subject to SLP

Article 323A and 323B – Creation of administrative tribunals for service appointments –

AT created for disputes of service appointments

323B- Tribunals other than service tribunals such as trade dispute, Lok adalat, Lok

aayukt, Lok Pal

Article 299 – Formation of contract by GoI through president or governor with private

parties

Article 300 – Lilawati Bera v. State of Odisha, Nagendra Rao and sons (specific actions

of power taken into account) , Kasturi Lal (1965) – sovereign (exception here where state

was held accountable is where it entails the violation of fundamental rights – and non-

sovereign functions (state will be held accountable for non-sovereign function)

N Nagendra Rao v state of AP  In this case, the Supreme Court held that when due to

the negligent act of the officers of the state a citizen suffers any damage the state will be

liable to pay compensation and the principle of sovereign immunity of state will not

absolve him from this liability. The court held that in the modern concept of sovereignty

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 the doctrine of sovereign immunity stands diluted and the distinction between sovereign

and non-sovereign functions no longer exists

Administrative Tribunals Act 1985, RTI Act, Tribunals, MACT, Consumer fora etc

Similarity between Constitution law and Administrative Law – Both are public laws

Differences between constitutional law and administrative law

1. Codification – In context of India, constitutional law is codified while admin law is

uncodified. The case is completely opposite in UK.

2. Administrative law is subordinate. Constitutional law is supreme.

3. Article 323A, 323B – power is available under constitution, while exercising power

under schedule 7 can create central administrative tribunals, etc.

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 10.09.2020 – Sources of Admin Law in India

Sources of Admin Law in India –

1. Constitution of India

a. Schedule 7- create specialised law delegated legislation

b. Article 12 – defines state and admin actions limit

c. Article 14 – unreasonableness principle

d. Part II, Articles 12, 12-32, 226, 227, 136, 299, 300, 309-311, 323A and 323B,

Schedule VII etc.

2. Judicial review

3. Supreme Court

a. original jurisdiction

4. primary law – secondary law

a. primary law is a major source of administrative law

5. ordinances, rules, regulations

a. empowering executive to legislate – article 213, 123

b. rules enacted by states, regulations are done by delegated legisations

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 c. for example – UGC Guidelines – guidelines are discretion to follow – regulations

are binding, backed by sanctions.

d. In cases of delegated legislations, there are no principles of PNJ.

6. Public interest litigation,

a. PIL (Asiad games case- locus standi relaxed, in SP Gupta case- RTI was

recognized) (24 April 1973- Kesavananda Bharati case- basic structure doctrine

has many facets of administrative law) (IR Coelho v State of TN- reiterated the

facets of administrative law)

7. right to information, separation of power, principles of natural justice, judicial review

Judiciary is the custodian of the constitution – but what is the mechanism for checking the abuse

of power or violation of constitution by judiciary?

Need of constitution for Admin law –

- Schedule VII – empowering the legislature to legislate – primary power amidst numerous

administrative tribunals, regulatory bodies (SEBI, RBI, ED) – by the virtue of seventh

schedule central govt. can make these bodies and institutions. – by exercising the power

central govt. has constituted various admin bodies which the state govt. cannot constitute

Article 323 – creation of service tribunals

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 Article 309 – 311: certain protections given to public servants in cases of proceedings or

cases instituted against him except in the situations given under article 311

- Rule of law facet – Law is supreme and no one is above the law Article 14, 21

- Judicial review

- Separation of power – demarcation of the jurisdiction of three organs of the state

Difference between Constitution and Admin Law:

- Codification - In India – consti is written law while admin law in unwritten, in UK even

though they have unwritten constitution but they have codified some of the facets of it

while the Admin law remains uncodified

- Admin law is subordinate to Consti law – Consti provides for substantive laws which

the admin law executes – admin law carries out the laws of the constitution which

remains supreme. Admin law cannot supersede constitution law. For e.g. – Seventh

Schedule

Primary law and secondary law – the former is enacted by the Parliament (legislature has

the duty to legislate these laws) while the latter deals with incidental matters which is

enacted by delegated authorities (Quasi-legislation).

Article 123 – empowers the President to promulgate ordinances (rules, regulations,

notifications) under certain circumstances

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 Difference between Rules and Regulations – Rules are formed by State and Central govt.

to externally regulate SEBI (SEBI Act 1992) etc. Rules formed without any power are

void and any action taken under those rules are also null and void.

While regulations refer to internally regulate an institution and are formed by that

specific institution. They have binding force having legal sanctions.

(UGC) Guidelines – they are just for guidance and are not required to be followed. They

are not binding

- Admin law is a common law phenomenon– it is judge made law – PIL (locus standi),

Cases

S.P. Gupta case (RTI),

Keshavanda Bharti Case Separation of Power (24th April 1973 –delivered that created

landmark doctrines such as Basic Structure Doctrine, recognition of various facets of admin

law), Judicial review cannot be abrogated

IR Coelho v. State of Kerala para 58 – rule of law, judicial review and SOP – IX schedule

case – IX schedule is also subject to judicial review)

AK Kraipak v. UoI –1970 – 5 Judge Bench – in case of admin law cases with civil

consequences

Maneka Gandhi v. UoI (1978) – post decision hearing

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Oriental Commerce (1861)– SC of Calcutta,

Vidyavati v. State of Rajasthan,

Kasturi Lal,

M. K. Gupta v. Lucknow Development Authority (personal liability of the public servant

for wrongful actions of him, public money shall not be wasted),

State of Odisha v. Binapani Dei (disciplinary proceedings) [The respondent, Binapani

Dei, a member of the Orissa Medical Service, was compulsorily retired when the state

revised her date of birth due to dispute about it, with the respondent claiming one and

opponents claiming another earlier date. The High Court of Orissa held the impugned

order to be invalid. The apex court too opined that the state was in the wrong as the

revision in Binapani Deis date of birth was done without any proper notice. Additionally,

she was given no opportunity to present her version to the adjudicating authority before

the order regarding her date of birth on which the impugned order was based was passed]

1950 judgment of In Re Delhi Law Act – landmark judgment in delegated legislations –

nature and scope of delegate legislations

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 11.09.2020 – Advancement and Mandate of Admin Law

Major sources of law

- Constitution law

- Statutory laws – statutory instruments

- Ordinances – delegated legislations

- Judicial precedents, interpretations etc.

Factors that have contributed to the advancement of admin law –

1. The role of the state – earlier it was only confined to protection of the people from external

attacks and their welfare and the king was believed to do no wrong. After industrial

revolution state was involved in multifarious aspects such as trade, business and regulatory

functions. For e.g. – RBI regulates the banking and finance, UGC – regulates higher

education etc. – Now the state is accountable, the king is accountable (Crown Proceedings

Act) – various laws have been created to control the actions of the state and hold the state

accountable for its actions. Administrative law has been recognized as distinct field of law.

2. Failure of the organs of the state:

Functions Failure Advancement of Admin Law

Judiciary Declare existing rights and Access to justice, it Judiciary has recognized and

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 liabilities in case of dispute. has failed to provided protected the principles of Admin

judicial interpretation can speedy and cost- law.

give to new dimensions of efficient justice.

Because of failure of judiciary,
legislation that can be People do not trust
quasi-judicial bodies such as ADR
termed as judicial judiciary and
have been formulated and created.
legislation (however it approach it only
Tribunals have been created to take
cannot legislate) under compulsion.
care of specialized cases These

Though in practice the quasi-judicial tribunals have proven

judiciary has legislated but to be efficient since they deal with

it cannot dictate legislature specialized matters by specialized

to legislate. individuals instead of retired

judges. The fees is also minimum,

the composition and the resolution

of disputes based on natural

principles of justice these

administrative authorities in the

form of tribunals have been created.

Legislature to create new rights and Due to various These failures have caused the

liabilities constraints such as development of Delegated

legislature not being legislation by specialized

expert without any

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 qualification required individuals and bodies.

– because of their
Delegated authority to executives
inability to form laws
also to ensure efficient
on technical issues
administrative actions.
such as cyber law.

When any law is in

favor and benefits the

members of

legislature it is passed

without any delay

and discussion.

However, in case of

public interest

legislation such as

LokPal Bill, it takes

years to legislate on

these issues.

Executive execute rights and liabilities Arbitrariness and Delegated legislation and

inactions on the part discretionary power and by the

of administrative incorporation of various schemes,

authorities. The

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 power to given to the admin law has evolved.

these authorities have

This arbitrariness and abuse of
caused rampant
power the doctrine of judicial
corruption.
review has been developed, to

check the functioning of

administrative authorities.

Disciplinary actions such as taking

down the name of any student from

an university – principles of natural

justice have to be followed. Thus,

the advancement of admin law.

Instruments for control of abuse of

power – judicial review, principles

of natural justice, mechanism to

control discretionary power

- Pro-active approach of judiciary – such as PIL

- Judicial process was time consuming and resourceful without any trust and faith in it – the

failure of the judicial process led to advancement

3. Demand for good governance by People’s movements

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E-governance (transparency), PIL, Vicarious liability, Personal Accountability, RTI, Lokpal – all

these demands have been supported by the judiciary (SC – S.P Gupta – access to public

information is a fundamental right as incorporated by RTI Act 2005, however in case of public

information with respect to judiciary there are certain rules that need to be followed)

Mandate of Admin Law

Necessity of Admin law – why do we require admin law?

1. Control – over administrative actions – They are required to ensure that powers are exercised

according to law. Control is required to prevent abuse of power and inhibit the unfollowing

of law and discourage the carrying out of admin actions as per whims and fancies of the govt.

or administrative authorities. Along with control there also has to be some discretionary

power to the administrative authorities however that have to be exercised within the bounds

of the law

Prof. Wade – Red Light Theory – admin law is the tool of control to keep the powers of

government within their bounds so as to protect the citizens against abuse.

Preventive control Curative control

At the time of taking the action After an action is taken by the public authority

Rule of law, principles of natural justice, Judicial review, personal accountability,

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 controlled delegation vicarious liability

Bhim Singh v. State of J&K – members of legislative assembly detained by police – it was

arbitrary detention – given a compensation of 50,000

Ranjit Thakur v. UoI – control over admin actions – 1987 – judgment about abuse of power –

employed in Army and have certain grievances against the commanding officer – he wrote to the

senior officer about it – the commanding officer charged him with breaking the procedure of

Service Laws and was given imprisonment of 28 days – during the imprisonment Ranjit Thakur

refuse to take meals – a Court Martial was constituted of which the CO was a part – it dismissed

Ranjit and declared him to be unfit for any other civil services as well - the matter was brought

before SC – there was violation of principles of natural justice because he was not given fair

trial, dismissed on the grounds of refusing to take meals cannot amount to disobeyance, rule

against bias

N. Behera,

Rudul Shah v. State of Bihar – illegal detained in the jail for 14 years – compensation given of

35,000

2. Protect – the private stakeholders against state and govt. – protections available only to legal

benefits and non-applicable to illegal benefits, illegal appointments – only in legitimate

compliance of law and cannot take benefit of his own

Public notification has to be issued, then

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No prejudice can be caused to an individual who is appointed illegally, without following any

procedure

3. Transparency and accountability - To facilitate accountability and governance in

administrative actions – Tools of admin law that facilitates admin authorities such as quasi-

legislation (delegated legislation is limited and controlled) – e-governance is the best tool of

facilitation of admin law – providing speedy and economical access to admin law

2013 – Ganpat singh gangaram singh v. Gulbarga University - However, to say that expert

body’s opinion deserves acceptance in all circumstances and is not subject to judicial review

does not appeal to us. In our constitutional scheme the decision of the Board of appointment

cannot be said to be final and absolute.

2018 – UoI v. Raghupal singh – 3 judge bench - the same is a simpliciter termination and is no

reflection on the conduct of the respondent. It merely explicates that his appointment was illegal

having been made by the then Director Incharge H.S. Rathore, Agriculture Officer and without

prior approval of the competent authority.

The Tribunal then adverted to the legal position that any appointment made de hors the statutory

rules has no validity and that those who come by the back door have to return by the same back

door and cannot claim protection of principles of natural justice.

Thus, it is indisputable that no prior approval of the competent authority was given for the

appointment of the respondent. The act of commission and omission of the then Director

Incharge would, therefore, suffer from the vice of lack of authority and nullity in law. If it is a

case of nullity, affording opportunity to the incumbent would be a mere formality and non grant

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of opportunity may not vitiate the final decision of termination of his services. [MC Mehta v.

UoI – Useless Formality Theory 10 (1991) Supp. (1) SCC 331 11 (1999) 6 SCC 237]

Rajendra Singh Vs. State of M.P.14 that even in relation to statutory provisions requiring notice,

a distinction is to be made between cases where the provision is intended for individual benefit

12 (1990) IRLR 344 13 (1996) 3 SCC 364 14 (1996) 5 SCC 460 and where a provision is

intended to protect public interest. In the former case, it can be waived while in the case of the

latter, it cannot be waived.”

2019 – Delhi HC – Ratipal Saroj v. UoI – malpractices in appointment by UPSC – misuse of

power

Para 24 - The misconduct proved against the petitioner is an extremely serious one. He got into

service by adoption of a serious manipulation of the answer scripts. Evidently, he took advantage

of the fact that he himself was serving as Under Secretary in the UPSC, who is entrusted with the

conduct of the Civil Services Examination. By resorting to such conduct, he got into a position

which he did not deserve. He has also deprived another deserving candidate of the post to which

he was allocated. The only reason he continued in service was because criminal proceedings

were pending and took a long time to conclude. To grant his retiral benefits would amount to

putting premium on dishonesty.

Principles of Natural Justice

- Audi Alteram Partem – prior and reasonable notice with all the causes, then fair hearing

where he is given opportunity to be heard

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 - Rule against bias – subject matter bias (the judge forms the subject matter), pecuniary

bias (the administrative authority has some form of financial or pecuniary interest in the

decision), personal bias (the judge is related to the parties of the case) – no person can be

judge in his own cause

North Delhi Municipal Corporation v. Kavinder and Ors -

https://main.sci.gov.in/supremecourt/2017/606/606_2017_34_104_23058_Order_21-Jul-

2020.pdf

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 15.09.2020- Theories of Control and Governance

External Control v. Self-Governance

RED LIGHT THEORY – Control over admin actions and law – propounded by Prof. William

Wade (controlling mechanism theory – admin law is the tool for controlling admin actions) and

Forsyth

This theory emerged from the fear of state absolutism, it talks about power corrupts and absolute

power corrupts absolutely, control is needed to protect the interests

It is the theory that states about external control and not internal control – control to keep checks

and balances over abuse of discretionary power.

Where there is control, power cannot be exercised arbitrarily and the authorities are within the

bounds. It is warning to admin law by providing various modes of control in the form of JR.

Judicial review must be made available to maintain the external control of the admin law.

Red light theory recognized in India in the form of - part III gives fundamental rights and Part

IV gives fundamental duties, in case of infringement of rights you have right to remedy under

Article 226 and Article 32 thereby recognizing judicial review.

---

GREEN LIGHT THEORY – propounded by Clark

Admin law facilitates efficient operation of public administration.

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It requires only internal control and governance. It is averse to external control. It empowers

admin authorities to regulate admin activities – they are experts in their fields and hence efficient

to regulate and self-govern themselves.

In case of no external control, what are the merits and demerits of this theory?

Merits: - own checks and balances – easy regulation without outside governance and

interference, autonomy and liberty to admin authorities (such as delegated legislative and

discretionary power – however these are controlled and limited.)

Demerits: - lack of accountability, concentration of power is likely to result, it doesn’t even talk

about internal accountability as well – this theory says that no controlling mechanism is required.

Internal accountability mechanism – ombudsman, in-house institutions, internal appeals, dispute

redressal committees (a person is required to exhaust internal remedies before approaching

external remedies generally – however in case of Labor sector – if a person is removed from the

service he can directly approach Labor Courts)

---

AMBER LIGHT THEORY

This theory has recognized limitations of red and green light theory for the former requires

external control while the latter states only about governance

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This theory combines the merits of both the theories and states that mandate of admin law is to

empower admin authorities for self-governance and to ensure accountability of these authorities

we require external control.

External control and internal governance is required to protect the interests of the masses and

provided better and efficient services.

Recognition of Amber Light theory in India – Article 226 and Article 32 for JR and Seventh

Schedule providing for Delegated Legislation (self-governance)

SEBI Act 1992, RTI 2005, LokPal – primary legislations enacted by parliament – while enacted

it certain discretionary powers are delegated on admin authorities and then certain limitations

and control over these powers.

FACETS OF ADMIN LAW

1. RULE OF LAW

 Superiority of law – the law is supreme and everyone is bound to follow the law

 Equality – everyone should be treated equally without discrimination

Admin authorities are bound to take action within the bounds of the rule of law – they have to

exercise their powers and discretion in line with rule of law and in case of violation of it, it is

subject to JR (Judiciary is the guardian of rule of law)

2. Separation of Powers – admin law deals with three organs of the state

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3. Administrative discretion – always controlled and limited – uncontrolled and unlimited

discretionary powers are not available and subject to JR

4. Delegation of Powers – primary powers of legislation are not delegated

5. Principles of Natural Justice –

6. Transparency and accountability in Governance – public information in public domain

7. Judicial review – what is JR, Why JR is important and what are the grounds of JR – JR

of admin actions

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 18.09.2020 – Rule of Law

Law of the constitution – Prof. Dicey

- Admin law deals with rule of law in the specific sense of supremacy of law that is no one

is above the law

- Modern concept of rule of law – government based on principles of law

- Specific and general rule of law are distinguishable and need to be understood differently

Rule of law in general parlance – governance of three pillars of state in accordance with law –

law must be the sole indicator of understanding the facets of admin actions – it should inhibit the

arbitrary exercise and abuse of power - Actions in accordance with specific law

Basic objective of admin law is to ensure that all actions of admin authorities are in exercise as

per the rules laid down by law.

RoL in specific sense means actions must be in accordance with admin law – no discrimination,

no arbitrary exercise of power, equality etc.

In general - All the actions must be in accordance with the law

Law is supreme – mandate of Rule of law

Historical perspective – Principle of natural justice, fair trial etc. propounded and discussed by

Aristotle, Plato, Socrates, Kautilaya and Magna Carta

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Jurist Edward Coke in the case of Bonham v. College of Physicians (1610) is the originator of

rule of law – prior to this RoL was only talked about but not formulated – he coined the term

‘RoL’ and recognized certain facets of RoL

Rule of law means that there is law and as when there is violation there is remedy.

Prof. A.V. Dicey – ‘The law of the Constitution 1885’ – gave some indicators and facets of

RoL:

- Supremacy of Law

Nobody is above the law and everybody is bound to follow the RoL – All the organs of the state

are bound to follow the RoL that cannot be dispensed away with.

Take care of arbitrary or unreasonable exercise of power – Dicey was dead against discretionary

power since it would be in conflict with supremacy of law – acc to him admin authorities should

not be given discretionary power for that would dilute the supremacy of law in the form of

violation of civil liberties and rights of the common people

A person can only be punished if there is a violation – hence first there has to be law in place,

then there has to violation by a person and only on violation of law a person can be punished

He was dead against retrospective application of law – no ex post facto law since that would

defeat the purpose of law – in the favor of only prospective application of law

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Article 20 of Indian Constitution – no ex post facto law and no retrospective application of

penal/criminal law – however in case of civil issues (admin law) – SC judgment that laid down

principles for retrospective application of admin law -

- Equality

There must be strict equality before law – no preferential treatment should be given to anyone –

everyone should be treated equally and subject to same law irrespective of the position, rank,

hierarchy or status of the person

He criticized the tribunals and special courts because that would defeat the facet of equality

before the law. He stated that everyone should be subject to equal application of law by courts.

No special privileges and immunities should be provided as per him – in Indian constitution

however there has been creation of special tribunals and courts to deal with specific subject

matter cases

Article 14 – equality among equals – we have reservations, immunities to public servants, no

equality among unequals, section 149 of CrPC, section 79-80 of CPC, Section 19 of Prevention

of Corruption Act – all these laws provide protection (prior sanction for investigation and

prosecution from the govt.) to public servants to carry out admin actions – hence in Indian

context it has been interpreted very liberally as opposed to the Dicey’s conception of rigid

application of equality.

- Courts are originator and protector of rule of law and rights of

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He referred to common law system – and was of the view that rights can only be created by

judiciary and a result of court judgments

Laws and rights in the constitution will be of no use in case there is no effective protection and

application of rights and laws by the judiciary.

In UK – they do not have written constitution – what about the role of the legislation and

judiciary – acc. To Dicey judiciary can create rights and liabilities and in case of violation people

can approach courts for protection of rights – he recognizes that rule of law was propounded by

the judiciary and through it judgements evolved and upheld RoL (he gives reference to the UK)

However in the 21st century judiciary cannot be over-entrusted with the role of making rights and

liberties – the faith of the people and the actual role of legislation lies with the legislator and not

the judiciary.

CRITICISM OF PROF. DICEY THEORY

We cannot ignore the contribution in the form of recognition of various facets of rule of law such

as equality, role of judiciary as creator and protector of rights and liberties across the globe.

1. He was confused between discretionary power and arbitrary power – in contemporary

states no state can function without discretionary power and hence DP has become

integral part of admin authority. Further, this DP is controlled and limited.

2. System of tribunals – he misunderstood the real nature of ‘droit administratiff’ that was

successful in France – while rejecting the system of tribunals Dicey lost the site of that in

UK itself tribunals were present and functioning, and in today’s scenario they have

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 become integral part of justice system that have really supported the judiciary (fast track

courts) otherwise judiciary would have collapsed.

3. No privileges – however admin authorities cannot function without privileges and

immunities provided to them – we require privileges and immunities for smooth and

effective functioning but this has to be extended only to honest public servants and not to

the dishonest ones

MODERN CONCEPT OF ROL

1. Supremacy of law

2. Equality before law

3. Limited and controlled discretionary powers

4. Limited and controlled delegation of powers

5. Principles of natural justice – fair justice, fair trial etc.

6. Separation of powers

7. Judicial review

(The ones in the red are additions to the historical understanding of RoL by the Modern thinkers)

24 April 1973 Judgment

2006 Judgement

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