4. Author — Prof, Prakash K. Mokal. Administrative Law A Complete Book For All Universities For the Academic Year : 2022 Five Years 7" Semester & Three Years 3 Semester LL. B. Exam. By Prof. Prakash K. Mokal B.A. (Special English); LL.M. University of Mumbai (Former Principal, Government Law College, Mumbai) © Prof. Prakash K. Mokal Published by Vidhi Prakash Publications Pvt. Ltd. “Paradise Tower, Office No. 304, 3" Floor, Gokhale Road, Next to McDonald Hotel, Opp. Thane Rly Stn. (W). Pin — 400 602. Price : Rs. 320/-. Photocopying/Zeroxing is a violation of copyright work which may result in both, a civil claim for damages and criminal prosecution Copyrights Reserved by the Author.2. Author — Prof, Prakash K. Mokal. “Nihil Nisi Bonum’ (“Only The Best Will Do”) Salient Features of the Book, 1) This Book is based on the University recommended Books. 2) Full coverage is given to the syllabus prescribed by the University. 3) All the Questions-Answers-Notes on "Administrative Law" are arranged chapter- wise. 4) All Questions have been properly framed to cover proper Answer. 5) All important topics in the respective Answers are carefully prepared by the author to provide detail Answer to all those Questions appeared in the university examination. 6) Recent leading Case Law and land-mark Judgements of various High Courts and the Supreme Court have been cited and discussed in order to illustrate important points all through this Book, making every concept of law very clear. 7) Important points have been highlighted and clarity of expression is maintained all through this Book by using simple language 8) This Book is complete and exhaustive from the examination point of view, and will certainly enable law students to answer all questions appearing in the University Examination. 9) Sufficient Single Sentence Answers and Situation based Problems with their Answers are given at the end of this Book. 10) Objective Questions/MCQs and Answer in not more than 2 sentences, Situation Based Problems with Solutions and Recent University Examination Question Papers update (April, 2000 to December, 2021, 39 University Question Papers) according to Offline & Online Exam Question Paper Pattern With Solutions are also given at the end of this Book. This obviates the need (no need to refer) to refer to any Paper Solutions.3. Author ~ Prof, Prakash K. Mokal. “ADMINISTRATIVE LAW” Revised Syllabus [1] Evolution, Nature and Scope of Administrative Law: a) i) Froma Laissez-faire to a social welfare State; ii) State as a regulator of private interest; iii) State as provider of services; iv) Other functions of modem State ; relief, welfare. b) Evolution of administration as the fourth branch of government — Necessity for delegation of powers on administration, i) _ Evolution of agencies and procedure for settlement of administration; Regulatory agencies on the United States; Conseil d’ Etat; Tribunalization in England and India. 4) Definition and scope of administrative law. €) Relationship between Constitutional law and Administrative law. f) Separation of powers. g) Rule of law. isputes between individual and [2] Civil Service in India: a) Nature and organization of civil service : from colonial relics to democratic aspiration, b) Powers and functions. ©) Accountability and responsivene: 4) Administrative de roblems and perspectives nce — corruption, nepotism, mal-administration [3] Legislative Powers of Administration: a) Necessity for delegation of legislative power. b) Constitutionality of delegated legislation — powers of exclusion and inclusion, and power to modify statute, ° i) _ Requirements for the validity of delegated legislation; ii) Consultation of affected interests and publie participation in rule-making; iii) Publication of delegated legislation. d) Administrative directions, circulars and policy statements. i) Legislative control of delegated legislation; Laying procedures and their efficac Committees on delegated legislation iv) _ Hearing before legislative committees. f) Judicial control of delegated legislation. £) Sub-delegation of legislative powers, their constitution, functions and effectiveness; [4] Judicial Powers of Administration: a) Need for devolution of adjudicator authority on administration. b) Administrative tribunals and other adjudicating authorities : their administrative ad-hoc character.4 Author — Prof, Prakash K. Mokal. ©) Tribunals —need, nature, constitution, jurisdiction and procedure. 4) Jurisdiction of administrative tribunals and other authorities. ©) Distinction between quasi-judicial and administrative functions. i) The right to hearing — essentials of hearing process; ‘No man shall be judge in his own cause; iii) No man shall be condemned unheard. g) Rule of evidence ~-no evidence, some evidence and substantial evidence rules, h) Reasoned decisions. i). Right to counsel, j) Institutional decisions, k) Administrative appeals. [5] Judicial Control of Administrative Action : a) Exhaustion of administrative remedies b) Standing: standing for Public Interest Litigation (social action litigation) collusion, bias. ©) Laches. d) Res Judicata, ©) Grounds ~ i) Jurisdictional error/ultra ii) Abuse and non-exercise of jurisdiction; )) Error apparent on the face of the record; iv) Violation of principles of natural justice; ¥) Violation of public policy; vi) Unreasonablenes: vii) Legitimate expectation. f) Remedies in judicial review i) Statutory appeals; ii) Mandamus; Certioraris Prohibition; Quo-Warranto; Habeas Corpus; Declaratory judgements and injunctions; Specific performance and civil suits for compensation, [6] Administrative discretio a) Need for administrative discretion b) Administrative discretion and rule of law. ¢) Limitations on exercise of discretion: i) Malafide exercise of discretion; i) Constitutional imperative and use of discretionary authority; iii) relevant considerations: iv) Non-exercise of discretionary power. [7| Liability for Wrongs (Tortuous & Contractual): a) Tortuous liability : sovereign and non-sovereign functions b) Statutory immunity. ©) Act of State. 4) Contractual liability of government. ©) Government privilege in legal proceedings ~ State secrets, public interest.5. Author — Prof. Prakash K. Mokal. ) Transparency and right to information. g) Estoppels and waiver. [8] Corporations and Public Undertakings: a) State monopoly — remedies against arbitrary action or for acting against pul b) Liability of public and private corporations — departmental undertakings. ©) Legislative and governmental control. 4) Legal remedies. €) Accountability — Committee on Public Undertaking, Estimates Committee, etc. [9] Informal Methods of Settlement of Disputes and Grievance Redressal Procedures: a) Conciliation and mediation through social action groups. b) Use of media, lobbying and public participation, ©) Public inquiries and Commissions of inquiry d) Ombudsman : Lok Pal, Lok Ayukta. ¢) Vigilance Commission ) Congressional and Parliamentary Committees, Recommended Reading: 1.C.K. Allen, “Law & Orders” (1985), 2. D.D. Basu, “Comparative Administrative Law” (1998). 3, M.A. Fazal, “Judicial Control of Administrative Action in India, Pakistan and Bangaladesh” (2000) Butterworths — India. 4, Franks, “Report of the Committee on Administrative Tribunals and Inquiries” HMSO, 1959. 5, Peter Cane, “Administration Introduction to Administrative Law” (1996) Oxford. 6. Wade, “Administrative Law” (Seventh Edition, Indian print 1997), Universal Dethi. 7. J.C. Gamer, “Administrative Law” (1989), Butterworths (ed. B.L. Jones). 8. MP. Jain, “Cases and Materials on Indian Administrative Law”, Vol. | and II (1996), Universal Delhi. 9. Jain & Principles of Administrative Law” (1997), Universal, Delhi, 10. S.P. Sathe, “Administrative Law” (1998), Butterworths — India, Delhi 11. D. Smith, “Judicial Review of Administrative Action” (1995), Sweet and Maxwell with Supplement, 12. B. Schwarth, “An Introduction to American Administrative Law” Indian Law Institute, Cases and Materials on Administrative Law in India” Vol. I (1996);-Delhi.6. Author — Prof. Prakash K. Mokal. h controls the Q._1 _: “Administrative Law is that branch of the law wi administrative operations of the Government” — Discuss. OR “The primary purpose of the Administrative Law is to keep the powers of the Government within their bounds, so as to protect the citizens against their abuse” — Elucidate. OR “It is the concern of the Administrative Law to see that the public authorities can be compelled to perform their duties if they make default” — Discuss. OR Write a short note on : Functions of Administrative Law. Answer : Introduction : In French, there are two types of laws, and two sets of Courts. But, both work independently. The ordinary courts administer ordinary civil law en subjects and subjects (i.e. between its citizens and citizens). The administrative courts administer the law between the subjects (i.e. citizens) and the State (ie. Conseil d’ Etat deals with the administrative matters). The founder of Conseil d’ Eatat which deals with Droit Administratif, was French King Napoleon Bonaparte. The administrative authorities are not subject to the jurisdiction of ordinary civil courts. In due course of time, it was evolved in different countries during different times in different ways : Refer countries, such as, France, USA, UK, and India by concept of Dharma, etc. “Evolution, Nature, Scope and Functions of Administrative Law” : a) From a Laiassez — faire to a social welfare state; b) State as a regulator of private interest; ©) State as provider of services; 4) Other functions of the modem state : relief, welfare; ¢) Relationship between Constitutional Law and Administrative Law. [A] From a Laiassez-faire to a social welfare state : The philosophy of the “Welfare state” emerged since the beginning of the Twentieth Century. It is in this period, that the society has become more complex, the needs and wants of the people increased day by day. Thus, owing to this complexity of modem social conditions, the government’s functions have also multiplied. The change in the scope and character of the government from negative to positive, that is from laissez-faire to the public-service state, has resulted in the concentration of considerable power in the hands of the executive branch of the government. The welfare schemes were introduced by the government. Thus, the functions of the state were increased, resulting the transition from the negative or “Laissez-faire” concept of the state to that of the “welfare” or “public-service” concept of the state. The origin of this ‘public-service state action be traced in the Soviet Revolution of 1917 which replaced Tzarist regime (which believed in the ‘Laissez- faire* policies in economics unproductive and harmful to its’ people i.e. negative concept of the state) by Communist rule in Russia. Under the Tzar rule, the management of social and economic life was not regarded as government responsibility. Thus, the ‘Laissez- faire’ doctrine resulted in human misery. The Communist system promised to protect its’ people from poverty, starvation, unemployment etc. Thus, from Laisses- faire to Welfare state process began in the first quarter of the Twentieth century.e r Itis day also at is. er in were of the raced faire’ te) by jas not yy. The Thus, I. Author — Prof. Prakash K. Mokal. The state had to see that minimum needs of its’ citizens were met, disparities of wealth and income were minimised and social and economic justice was obtained. The origin of the welfare state lie in the Workmen’s Compensation Act, 1897; Old Age Pensions Act, 1908; and the National Insurance Act, 1911. Parliament has been compelled to entrust the power of deciding ‘administrative’ or “quasi-judicial” issues to the various Executives Departments of the state or to administration administrative tribunal. C. K. Allen in his “Law and Orders” has accepted this view that ~ “The ‘modem conditions” have created a new kind of society with a new kind of state which requires a new kind of government. Whereas, once the function of the state was limited to the maintenance of administration irreducible minimum of certain essential services- law and order, finance and defence. The whole conception of the state has grown so fast in the direction of many different “social services”, that a new form of government, which inevitably involves a large increase in the powers of the Executives, has become imperative. In those changed conditions, the traditional theory of Partiamentary Sovereignty has become quite inappropriate and unreal, and the delegation of powers, far from disturbing the balance of the Constitution, in administration indispensable instrument which should be encouraged, rather than restricted” Before, Independence, India was a police state. British rule was primarily interested in strengthening its’ own dominion over its’ colonial state, India. The British rule did not concem itself much with the welfare of the people. A conscious effort began to be made to transform country into a welfare state. The philosophy of the welfare state has been expressly ingrained in the Indian Constitution The Constitution aims at establishing a sovereign socialist, secular democratic, republic in India, so as to secure to all its’ citizens, inter alia, social, economic and political justice. [B] State as a regulator of private interest — State_as a provider of services — Welfare The primary function of Administrative Law is to keep governmental powers within the limits of law and to protect private rights and individual interest. The idea of the state as it exists now is that the state is not mere to ‘control’, but the state is the ‘welfare state’. And thus, the state is “protector, provider, entrepreneur, regulator ans arbiter”. It is quite evident that, nowadays, the scope of activities of the democratic govenment have considerably expanded. The governmental functions have multiplied by leaps and bounds. Today, the state is merely a police state, exercising sovereign functions, but as a progressive democratic state, it seeks to ensure social security and social welfare for the common man, regulates industrial relations, exercises control over production, manufacture and distribution of essential commodities, initiates enterprises, tries to achieve equality for all and ensures equal pay for equal work. It works to improve slums, looks after the health and morals of the people, provides education to children and undertakes all strps that social justice demands. In short, the modem state takes care of its citizens from “cradle to the grave” — Wade and Forsyth “Administrative Law (2009) p4 In this modern world, state is the “protector, provider, entrepreneur, regulator and arbiter”. Rule- making power (delegated legislation) and an authority to decide (tribunalisation) are describe as effective ad pwerful weapons in the armoury of administration. The role played by the state in the recent past, has undergone a radical change. The state is not merely a police state, but it has become a progressive democratic state. In other words, the State has become a welfare state, because, the state promotes social security and social welfare of ordinary and common man. The functions of the state include regulating industrial relations and starting many enterprises achieving equality, improving slums and taking care of public health and morals with all such steps which social justice demands.8. Author — Prof. Prakash K. Mokal. The state today pervades every aspect of human life. It provides transport facilities, postal services and also undertakes planning of social and economic life of the community with a view to raise the living standards of the people. This has widened the scope and ambit of Administrative Law The Administrative Law ensures that administrative authorities of the state use their powers and discretion for the purpose for which such powers and discretion are given to them. The Administrative Law aims at preventing abuse or non-use of power by administrative authorities, and provides proper mechanism, guidelines to the government so that the government functions for welfare of the people. It also provides remedies to the citizens against the misuse or non-use of the powers the administrative authorities. As Wade observed ~ “all powers have two inherent characteristics : 1) they are not absolute or unfettered, and 2) they are likely to be abused. Therefore, administrative law attempts to control the Powers of the government, and its instrumentalities and agencies. To achieve that objective, administrative law provides an effective mechanism and adequate protection. It helps to strike a balance between two conflicting forces : i) individual rights, and ii) public interest. O.2: Define Administrative Law. Discuss its scope and objectives with reference to historical perspective and growth. /4pr.2003; Apr.2004; Apr.2006; Nov.2007; Apr. 2009; Nov.2010; May, 2012; Nov.2012; Nov.2013; Apr.2015; Apr.2016]. OR Define Administrative Law and explain the sources of Administrative Law [Apr.2010}. oR “Administrative Law is concerned with operation and control of the powers of the administrative authorities with emphasis on function rather than on. structure” — Elucidate and discuss. /4pr.2001]. OR Write a short note on : Sources of Administrative Law /Nov.2008; Nov.2010; Apr.2011). Answer : What is Administrative Law 2 DEFINITIONS OF ADMINISTRATIVE LAW: 2 (Wherever, word ‘state’ occurs in this Book, it means the ‘Central Government’. The way in which the term “Administrative Law” can be defined is facing many difficulties. It is, therefore, not easy to make a scientific, precise and satisfactory definition of Administrative Law. However, many eminent scholars have attempted to define the term “Administrative Law”. But, the definitions given by these scholars, lack in demarcating the nature, content and scope of the Administrative Law, ‘Apart from such lacking of demarcating the nature, content and scope of the Administrative Law, there is also diversity of opinions about the definitions of Administrative Law. According to some scholars Administrative Law deals with the control of powers of the Government, whereas, according to other scholars, Administrative Law deals with the rules designed to ensure effective performance of the duties assigned to the Administration. In other words, Administrative Law may be described as ~ “those rules which are recognised by the Courts as law and which regulate the Administration of the Government”,Author — Prof. Prakash K. Mokal. | dministrative Law deals with the structure, powers and functions of organs of administration, the method and procedures followed by them in exercising their powers and functions, the method by which they are controlled and the remedies which are available to a person against them when his rights are infringed by their operation”. ‘The definitions of Administrative Law Definition by A. C. Dicey ~ According to Dicey “Administrative Law is — 1) that portion of nation’s legal system which determines the legal status and liabi officials; 2) that which defines the rights and liabilities of private indivi officials; 3) that which specifies the procedure by which these rights and liabilities are enforced”, iven by some eminent jurist wre summarised as under ies of the state luals in their dealings with the public Definition by Ivor Jennings — According to Ivor Jennings, “Administrative Law is the law relating to the administration. It determines the organisation, powers and duties of the administrative authorities” The definition given by Ivor jennings is generally accepted definition, but this definition has the following two difficulties — i) It fails to distinguish Administrative Law from the Constitutional law; fi) It relates to the law which determines the powers and functions of administrative authorities, as well as, the substantive aspects of such powers. Certain legislations in connection with public health, services, town and country planning which are the substantive aspects of the powers and functions of the administrative authorities, are not included within the scope of the Administrative Law. It is also important to note that, the definition given by Ivor Jennings does not have any reference to the remedies available to an aggrieved person in the event when his rights are violated by the administration, Definition by Wade According to Wade “Administrative Law is the law relating to the control of the governmental power” Wade states that, the primary object of the Administrative Law is to keep the governmental powers within their legal limits with a view to protect the citizens against their abuse. Wade had placed considerable emphasis with regard to objects of Administrative Law. However, Wade fuils to mention the powers and the duties of administrative authorities and the procedure required to be followed in respect of execution of the powers and functions. Definition by K. C. Davi ‘According to K. C, Davis, “Administrative Law is the law concerning the powers and procedures of administrative agencies, including especially the law governing judicial review of administrative action”. The definition given by K. C, Davis seems to be appropriate and proper definition for the following reasons :- i) It deals with the procedure which is followed by administrative authorities in exercising their powers and functions; fi) It does not deal with the substantive law prepared by the administrative authorities; fii) It defines administrative authority as a governmental authority independent of Court or Legislature iy) Itdoes not is, aw. the the AW, ome ag to f the those f the ude many non-adjudicative, but yet, administrative functions of the administration. n by Garner10. Author — Prof, Prakash K. Mokal. Gamer has also adopted the American approach as advocated by K. C. Davis, According to Garner, Administrative Law may be described as “those rules which are reccognised by the courts as law and which relate to and regulate the administration of Government”. Defi in and Jain According to Jain and Jain [“Principles of Administrative Law”, (1973), p.11], “Administrative Law eals with the structure, powers and functions of the organs of administration, the limits of their powers, the methods and procedures followed by them in exercising their powers and functions, the methods by Which their powers are controlled including the legal remedies available to a person against them when his rights are infringed by their operation” This definition deals with the following aspects of Administrative Law -- i) Itdeals with the composition and the powers of administrative authorities; It prescribes the procedures to be followed by the administrative authorities; It fixes the limits on the powers and functions of the administrative authorities; iv) It controls the administrative authorities exercising their powers and functions with the help of judiciary and such other control THE NATURE, SCOPE AND OBJECT OF THE INISTRATIVE LAW. NATURE OF THE ADMINISTRATIVE LAW : Administrative Law mainly deals with i) The Powers vested in administrative authorities; ii) ‘The Requirements imposed by law upon the exercise of such powers; The Remedies available against unlawful administrative action, OBJECT : 1) Main object of the study of Administrative Law is to unravel the way in which those administrative authorities could be kept within their limits, so that the discretionary powers may not be tured into arbitral power; 2) The object is to provide good administration and to develop public faith in administration, ete SCOPE: 1) Administrative Law deals with the power of administrative authorities, the manner in which the powers are exercised and remedies which are available to the aggrieved persons, etc. 2) Administrative law deals with different functions and it is concerned with the relation between the state and its citizens. Therefore, it developed the concept of rule of law, welfare state, role of civil service, advantage of tribunal, act of state and its exemptions, tort and contractual liabilities. Thus, administrative authorities are required to use discretionary powers vested in them within certain limits and not arbitrarily. Administrative Law is the set of such rules which regulate the relations of the administrative authorities with the private citizens. These rules determine the status, position and powers. of the administrative officers, and also the rights and liabilities of the private citizens who deal with such administrative officers, who are the representatives of the Government. These rules also lay down the system by which the rights and liabilities of the private citizens can be enforced. It'means, Administrative Law deals with the powers of the administrative authorities, the manner in which the powers are exercised and the remedies which are available to the agerieved persons, when those powers are abused by these authorities. Broadly speaking, Administrative Law is the law governing the orfanization, procedures, powers and duties of the organizations of the Government, other than the judiciary and the legislatureve nto -when powers MW. Author — Prof. Prakash K. Mokal. It is the scope of the Administrative Law to define and limit these powers, to deal with the structure and composition of the various new organizations of the Government, to provide legal control of the organs and their powers, and also to provide remedies available to a person affected by the administration. The main object of the study of the Administrative Law is to find out the way in which these administrative authorities could be kept within their limits, so that the discretionary powers may not be turned into arbitrary powers. The nature and scope of the Administrative Law is primarily to deal with the relationship of individuals with organized power. In other words, Administrative Law deals with the organizational powers and functions of the administrative authorities. Administrative Law sets up the system of justice which does not bring the act done by the administrative officers fulfilling their duties, within the jurisdiction of the ordinary Courts. In other words, their acts, powers and duties are brought within the jurisdiction of the other Courts called “Administrative ‘Trébunals” for example — Central Administrative Tribunal ‘CAT’, Maharashtra Administrative Tribunal ‘MAT’, Maharashtra Land Revenue Tribunal (MLRT) Industrial Tribunal, Wage Board, et. Therefore, it can be said that the Administrative Law is related to powers of the administrative officers, control over them and the Tribunals (Courts) to control the powers of these officers or authorities and to provide remedies available to a person affected by the administrative powers of the Government officers or authorities. ‘Administrative powers include grant of permits, licences, issue different kinds of orders, make the necessary rules relating the same, make the service rules of the officers appointed in this behalf, etc. The scope of the Administrative Law is to decide the dispute and settle the above matters through the Tribunals. ‘The Nature and the Scope of the Administrative La \e the follow 1) Various administrative bodies with Administrative or Judicial or Quasi-Judicial powers and functions. 2) Administrative Tribunals; Various administrative Boards such as ~ Wage Boards, Advisory Boards, Board of Revenue; Inquiry Commission, Tariff Commission, etc.; 3) Law making Administrative Authorities; 4) Public Corporations, and Public Undertakings; 5) Offices of the Lokayukt and Up-Lokayukt; 6) Rule-making power of administrative agencies which is commonly called “Delegated Legislation”; 7), It includes safeguards against the abuse of administrative power; 8) It includes the procedure of administrative bodies and Tribunals along with compliance with the principles of Natural Justice; 9) Tt includes the liability of the Government public undertakings, and the Government; 10) It includes remedies in the form of Writ jurisdiction of the High Courts and the Supreme Court against executive excesses or arbitrary action. SOURCES OF THE ADMINISTRATIVE LAW The main sources of Administrative Law are 1. The Constitutional Law : Constitutional Law and Administrative Law are so inter-related that it is difficult to explain the scope and extent of Administrative Law without the reference to the scope and extent of the Constitutional Law. Constitutional Law deals with the general principles relating to the organization and powers of the organs of the state and their relations towards the citizens, whereas, Administrative Law is that aspect of the Constitutional Law, which deals in detai, with the powers and functions of the administrative authorities, including the civil services, public departments, local authorities and other statutory bodies exercising public functions and they all having quasi-governmental powers. Constitutional Law is concemed with the constitutional status of ministers and civil servants, therakash K. Mokal. Working of the various departments of the government, and thus, the Constitutional Law belong to the sphere of Administrative Law. Administrative Law is a development in the history of Jurisprudence, inasmuch as, Administrative Law springs as administrative off-shoot or species from th genus i.e. Constitutional Law, which first established the accountability of the state to the people. The Administrative Law today, forms a separate branch of law, and therefore, a fit subject for separate study. Rights and obligations of the persons are determined by the provisions of the statutory enactments, Ifo remedy is provided by the statutory enactment or where the action taken by the ‘administrative authority is considered as “final and binding”, an aggrieved person may invoke Articles, 226, 227, 32 and 136 of the Constitution of India for redressal of his grievances (refer Question No. 20 and 21). Administrative Law is thus, based on the well-known legal maxim “ubi jus ibi remedium” (ce wherever there is a right, there is a remedy) Statutes/Acts : In order to have proper rules and regulations to safeguard the interests of the employer and the employees, certain legislative Acts and Enactments, such as Industrial Disputes Act — Industrial Tribunal; Maharashtra Civil Services Rules ~ Maharashtra Administrative Tribunal; Maharashtra Land Revenue Code, 1966 ~ Maharashtra Revenue Tribunal; Election Tribunal; etc. were brought in operation. These Acts and Enactments lay down rules and principles and procedures to be followed by the concerned administrative authorities or agencies . Delegated Legislation : (Question No. 10, given in this book). }. Doctrines, Rules and Regulations : : Civil Services Rules, etc. (also refer Question No, 9 — short notes, Question No. 23 given in this book), Ordinances : (given in this book). Judicial Decisions (given in this book). Administrative law is based on certain principles of justice, equity and good conscience. Thus, it is not a codified law, and not available in the form of legislative enactments like Indian Penal Code, Indian Contract Act, etc. Administrative law is essentially unwritten, uncodified or “judge-made” law. It is mainly developed through various judicial decisions of the superior courts or tribunals. In a welfare state, administrative authorities are called upon to perform not only executive acts, but also quasi- legislative and quasi-judicial acts or functions. They decided the rigts of the parties and eventually became the “fourth branch” of the government, a “government in miniature”. Committee Reports : Central Vigilance Commission, Public Inquiries and Commissions of Inquiry ~ Question No. 26; Scrutiny Committee — Question No, 28; Franks Committee Reports — Question No 29 (given in this book). . Principles of Natural Justice ; Administrative Law is a branch of law which is uncodified, In absence of specific enactments degling With a particular situation, certain fundamental rules, basic principles and minimum requirements of Jaw are well established. These rules or principles are based on the principles of Natural Justice, such as the principles of justice, equity and good conscience. (Refer Question No. 17, 19 given in this book) O.3: Explain critically the concept of Droit Administratif /Apr.2001). OR Write a short note on Droit Administratif /Apr.2004; Apr.2006; Apr.2008; Apr.2009; Nov.2011; Nov.2012]. Answer : Meaning of Droit Administratif :13. Author — Prof. Prakash K. Mokal. Droit Administratif is a branch of law which deals with the powers and duties of various administrative agencies and officials under it 1) "Droit Administratit Droit Administratif The French legal system has dual system of law and dual system of adjudication viz. “Droit Civile” and “Droit Administratif’ “Droit Civile” relates to civil law or municipal law and it is administered by the civil courts. “Droit administratif” relates to administrative law or in other words, it is equivalent to administrative law and it is administered by different set of courts. Droit Administratif provides expeditious and inexpensive relief and better protection to the people against administrative acts and omissions. Since, there was no forum which would redress the grievances of the citizens against the administration, “Droit Administratif * is also instrumental in giving birth to the French administrative tribunals. With a view to keep the administration under control, the system of droit administratif was put into practice by Napoleon Bonaparte in the 18" Century. The system of droit administratiff in France has resulted in non-intereference by the courts in working of administrative authorities. France has developed a system of administrative tribunals distinct from the ordinary courts which have no jurisdiction on the administration. A person seeking any redress against the administration has to go to an administrative administrative tribunals. All tribunals are under the supervision of Couseil d’ Etat which acts as the court of appeal from all administrative tribunals. In French legal system of droit administratiff, there are two types of laws and two sets of courts, independent of each other. The ordinary courts administer the ordinary civil law as between subjects and subjects, whereas, ordinary courts administer ordinary the law between the subjects and the state. An ; administrative authority or official is not subject to the jurisdiction of the ordinary civil courts exercising powers under the civil law in disputes between the private individuals. All claims and disputes in which - these authorities or officials are parties fall outside the scope of the jurisdiction of ordinary courts as they , ‘must be dealt with and decide by the special tribunals: Though the system of droit administrative is very old, it was regularly put into practice by Napoleon in the 18" Century 3 Principle of Droit Administratif : of 1) Acts suo moto and impose duty on the subject (ie. citizen) to obey. 4 2) Decision by suo motu, but within the limit of liabilities, etc. is Salient Features of Droit Adi rati 1) The French administrative tribunals which came into existence under the system of “Droit Administratif” are different from the tribunals which have come into existence in England and in common wealth countries. 2) The French administrative tribunals which have come into existence under Droit Administratif are not subject to supervisory control or Writ jurisdiction of the courts, as there is no dichotomy of public law litigation and private law litigation in France. 3) The administrative tribunals which have come into existence under Droit Administratif, are not concerned with the private disputes.Author — Prof. Prakash K. Mokal. 14, 4) The administrative tribunals in France are independent, and are not considered as part of the government, they have independent existence. Conseil-d’-Etat : The French Constitution of 1799 established the Conseil d'Etat. The Conseil d’Etat (the highest administrative court in France), technically speaking, was the part of the administration, in practice it was very much like a court. Dicey’s criticism was that, the existence of such special tribunals to deal with the liability of the public officials was repugnant to the Rule of Law. According to Dicey, the Rule of Law means, “no man is punishable or can be lawfully made to suffer in body or goods except for a breach of law established in the ordinary legal manner before the ordinary courts of the land”. It is true that during the early years, the Conseil d’Etat was in a large measure, a servile instrument of the Emperor, and hence, there was some basis for Dicey’s criticism. But, after 1872, when the Conseil became administration independent court, his criticism was no longer valid, The actual working of the Conseil d’Etat shows that, it gave no less protection to the citizens against the arbitrary actions of the administration than the ordinary courts in England did. The French legal system was able to provide expeditious and inexpensive relief and better protection to citizens against administrative acts or omissions than the common-law system. Dicey unfortunately misunderstoof the French legal system and formed an opinion that administrative courts in France extended government officials special rights, privileges’and prerogatives against private citizens and it had resulted in miscarriage of justice. The real position, however, is already different. In France, administration was under the control of “real Judges", who were impartial and objective in true sense. Actual study of droit administrative has proved that no single institution has done so much for the protection of private citizens against the excesses of administration as has been done by Cnoseil d’ Etat Which was considered to be a model for other countries — Wade and Forsyth, “Administrative Law”: (2009); Brown anf Bell, “French Administrative Law” (1967). ‘The administrative tribunals in France, are under the control and supervision of Conseil-d'-Etat. The Conseil-d’-Etat is known as conseil on tribunal. The members of Conseil-d'-Etat are not only the judges, but the members of Conseil-d'-Kiat are fully trained in the expertise of administration. The Conseii-d’-Etat is given a general respect which is comparable with the respect shown to the High Court or Bench in England. Q. 4 : Define Administrative Law ? Explain the reasons for the growth of the Administrative Law. [Apr.2013; Nov.2015]. Answer : ‘The way in which the term “Administrative Law” can be defined is facing many difficulties. It is, therefore, not easy to make a precise and satisfactory definition of Administrative Law. However, many eminent scholars have attempted to define the term “Administrative Law”. But, the definitions given by these scholars, lack in demarcating the nature, content and scope of the Administrative Law. Apart from such lacking of demareating the nature, content and scope of the Administrative Law, there is also diversity of opinions about the definitions of Administrative Law. According to some scholars Administrative Law deals with the control of powers of the Government, whereas, according to other scholars, Administrative Law deals with the rules designed to ensure effective performance of the duties assigned to the Administration. In other words, Administrative Law may be described as ~ “those rules which are recognised by the courts as law and which regulate the Administration of the Government” Defi ‘According to Dicey “Administrative Law is —15. Author — Prof, Prakash K. Mokal. 1) that portion of nation’s legal system which determines the legal status and liabilities of the state officials; that which defines the rights and liabilities of private individuals in their dealings with the public officials; that which specifies the procedure by which these rights and liabilities are enforced”, Definition by Ivor Jennings ~ According to Ivor Jennings, “Administrative Law is the law relating to the administration. It determines the organisation, pow. luties of the administrative authorities” The definition given by Ivor jennings is generally accepted definition, but this definition has the following two difficulties — i) It fails to distinguish Administrative Law from the Constitutional law; ii) It relates to the law which determines the powers and functions of administrative authorities, as well as, the substantive aspects of such powers. Certain legislations in connection with . public health, services, town and country planning which are the substantive aspects of the powers and functions of the administrative authorities, are not included within the scope of the Administrative Law. It is also important to note that, the definition given by Ivor Jennings does not have any reference to the remedies available to an aggrieved person in the event when his rights are violated by the administration. Definition by Wade According to Wade “Administrative Law is the law relating to the control of the governmental power”. Wade states that, the primary object of the Administrative Law is to keep the governmental powers within their legal limits with a view to protect the citizens against their abuse. Wade had placed considerable emphasis with regard to objects of Administrative Law. However, Wade fails to mention the powers and the duties of administrative authorities and the procedure required to be followed in respect of execution of the powers and functions. Definition by K. C. Davis — According to K. C. Davis, “: istrative Law is the law concerning the powers and procedures of administrative agencies, including especially the law governing judicial review of administrative action” The definition given by K. C. Davis seems to be appropriate and proper definition for the following reasons == i) It deals with the procedure which is followed by administrative authorities in exercising their powers and function: ii) It does not deal with the substantive law prepared by the administrative authorities; iii) It defines administrative authority as a governmental authority independent of Court or Legislature; iv) It does not include many non-adjudicative, but yet, administrative functions of the administration Definition by Garner — Gamer has also adopted the American approach as advocated by K. C. Davis. According to Gamer, Administrative Law may be described as “those rules which are reccognised by the courts as law and which relate to and regulate the administration of Government”. Definition by Jain and Jain = According to Jain and Jain [“Principles of Administrative Law”, (1973), p.11], “Administrative Law deals with the structure, powers and functions of the organs of administration, the limits of their powers, the methods and procedures followed by them in exercising their powers and functions, the methods by16. Author — Prof. Prakash K. Mokal. which their powers are controlled including the legal remedies available to a person against them when his rights are infringed by their operation’. This definition deals with the following aspects of Administrative La It deals with the composition and the powers of administrative authorities; ii) _Itprescribes the procedures to be followed by the administrative authorities; iii) It fixes the limits on the powers and functions of the administrative authorities; iv) Itcontrols the administrative authorities exercising their powers and functions with the help of judiciary and such other control. Reasons for the rapid growth and development of Administrative Law : 1) Change in the role of the state — The role played by the state in the recent past, has undergone a radical change. The state is not merely a police state, but it has become a progressive democratic state. In other words, the state has become a welfare state, because, the state promotes social security and social welfare of ordinary and common man, The negative policy of maintaining “law and order” and doctrine of “laissez faire” is changing. The state has, now adopted the positive policy and as a welfare state has undertaken to perform varie functions. The functions of the state include regulating industrial relations and starting many enterprises achieving equality, improving slums and taking care of public health and morals with all such steps which social justice demands. This has widened the scope and ambit of Administrative Law. Thus, the role of the Government has changed in almost every country in recent period. Today the expectations from the Government is not only to protect its people from extemal aggression and internal disturbances, but also to take care of its citizens all through their life, and see their well-being, 2) Flexibility — 2 The next important reason for the rapid growth of Administrative Law, is the flexibility. Administrative Process is flexible than the Legislation, because, a rule which made by the administrative process can be tried for some time, and if such rule is found defective, then it can be easily altered or modified within a short period, whereas, in the case of Legislation, it is not possible, because, the rule made under the Legislation is continued until commencement of next session of Legislature. Thus, Legislation is rigid in character, while the administrative process is flexible. 3) Scope for experiment — ‘One of the important reasons for the rapid growth of Administrative Law is the scope for experiment, There is a scope for experiment in administrative process and administrative authorities can take preventive measures. Such preventive measures can be adopted by the administrative authorities by avoiding representation of the aggrieved parties. Administrative authorities can take preventive measures, eg. licensing, rate-fixing, ete. Unlike regular courts of law, they do not have to wait for parties t coe before them with disputes. In many cases, these preventive actions may prove to be more effective and useful than punishing a person after he has committed a breach of law. As Freeman says, “Inspection and grading of meat answers the consumer’s nee more adequately than does a right to sue the seller after the consumer is injured”. Thus, administrative authorities ca ntake effective steps for the enforcement of the aforesaid preventive measures, e.g. suspension, revocation and cancellation of licences, destruction of. contaminated articles, etc., which are not generally available through regular courts of law. 4) Modern legislatures are overburdened with work — Modern legislatures are heavily overburdened with work. Therefore, they are not able to provide for detailed rules, which are necessary to regulate the complex socio-economic relations of the modern society. This has necessitated to delegate legislative powers to the administrative authorities to make suitable or appropriate rules in certain matters. 5) Legit ive process is inadequate ~1 Author — Prof. Prakash K. Mokal. Legislative process has proved to be inadequate, because, legislative process lacks in technique and time to deal with all the details. All the technical experts are not with legislation, but all the technical experts are with the administrative organs. Legislator can be a best politician, but cannot be an expert technical brain. It is therefore, necessary and mandatory to create a new and co-ordinating branch of law with a view to use the talent and skill of the technical person. Therefore, it was necessary to delegate some powers to the administrative authorities. This has also become as one of the important reasons for the growth and development of Administrative Law. 6) Inadequacy of Judicial system — The judicial system functioning in the ordinary courts is inadequate to adjudicate certain kinds of disputes. Courts are also overburdened with so many litigations pending before them. Therefore, the judicial system of ordinary courts, very often results in delay and expense. It also lacks the expert knowledge which is necessary to adjudicate some of the modem disputes. Due to growing litigation in the courts, it was not possible to expect speedy disposal of even very important matters, such as the disputes between the employers and employees, lockouts, strikes, etc. Therefore, Industrial Tribunals and Labour Courts were established. The problems and complaints of the government employees cannot be solved and remedies sought by them cannot be adequately or timely given provided by the ordinary courts which may lack in their expertiesment related to the problems faced by these employees. Hence, State Administrative Tribunals came to be set in every State to deal with such cases. These burning problems could not be solved by literally interpreting the provisions of some statute, but required consideration of various other factors. Such Tribunals were possessed with the techniques and expertise to handle these complex problems. In view of these facts, it has become necessary to evolve new machinery to adjudicate the disputes of the people, and for such new machinery, new law, that is the Administrative Law became essential, 7) East and functional approach — Another important reason for the growth and development of Administrative Law is that, administrative authorities are not required to decide the cases with formality and technicality. In other words, the administrative authorities can avoid the technicalities and formalities, but it is not the case with judiciary, because, the judiciary is rigid, technical and conservative, and therefore, the judiciary is required to deal with each case with formality and technicality. As a result, the court is bound by the rule of evidence and procedure in deciding each case, however, it is not obligatory upon Administrative Tribunal to go by the tule of evidence and procedure in deciding the problem, and therefore, a practical view can be taken by Administrative Tribunal to decide even a complex problem, Thus, the speedy disposal of the cases is possible by the Administrative Tribunals. Q._5_: State the Difference between English Administrative Law and Indian Administrative Law /Noy.2006; Apr.2007; Apr.2009; Nov.2011]. Answer There is difference between English and Indian Administrative Law. English Administrative Law : English Parliament is supreme and sovereign. All court activities should be consistent with Parliamentary Acts. Parliament can do everything, “but make a woman a man and a man a woman”. The law enacted by the British Parliament is the highest form of law and prevails over every other form of law ~ Cheney v Conn (Inspector of Texas), 1968. Any administrative action can be challenged in England, only if it is ultra vires the statute under which it was taken. Indian Administrative Law :Author — Prof, Prakash K. Mokal. In India, on the other hand, as there is a written Constitution and the power of judicial review is conferred by the Constitution on the Supreme Court and the High Courts, the same can be challenged as ultra vires the Constitution also. In India administrative action will have to be tested on four anvils — 1. the action ‘must have been taken in accordance with rules and regulations; 2. the rules and regulations should be in accordance with the relevant statute, ic. the parent Act; 3. The action, rules an regulations and the parent ‘Act must be in consonance with the provisions of the Constitution; and 4. if it is a constitutional amendment, such amendment of the Constitution should also be in conformity with the basic structure of the Constitution. As it has been rightly observed by Pathak C.J. ~ “The power of judicial review by th Supreme Court is much wider. The power extends to examine the validity of even an amendment to the, for now it has been repeatedly held that no constitutional amendment can be sustained which vio;ates the basic structure of the Constitution”. ConstitutionIndian Constitution is supreme, and all Rules, Regulations, By-Laws, Notifications and Procedure of the Government must be consistent with the Constitutional provisions. Historical growth of Administrative Law in India Even before the Christ, there was well organised and centralised administration in India, The Chandra Gupt Mourya’s dynasty had centralised system of administration, and prior to the period of Chandra Gup Mourya, the rule of ‘Dharma’ was observed by the Kings and administrators which proves thi Administrative Law was in existence in India in such ancient times. ‘Dharma’ embodied the basi principles of Natural Justice and fair play and it was followed by the Kings and its officers, becaus administration was based only on those principles approved and accepted and recognised by ‘Dharma’. However, the concept of ‘Dharma’ was much more wider than the concept of ‘Rule of Law’, yet there was no Administrative Law in existence in the sense as we understand today. (For understanding 1 concept of ‘Dharma’, read introductory Chapter from Family Law ~ Paper II" by the author). During the British Rule, the British Government passed many Acts, Legislations and Enactments for the purpose of regulating public health, safety, morality, labour, transport, etc. Due to passing such various enactments, the power of the British Government had increased. Under the State Carriage Act 1861, the practice of granting administrative licence came into existence. Under Bombay Port Trust A 1879, the first Corporation was established. Under Northern India Canal and Drainage Act, 1873 delegated legislation was accepted. Some legislations have also provided for holding of permits licences and also for the preventions and settlements of industrial disputes by the administrativ authorities and Tribunals. The executive or administrative powers were considerably increased during the period of Second World War. Ample powers were conferred under the Defence of India Act, 1939. After the independence, the powers and activities of the Government increased the concept Welfare State by securing social, economic and political justice. In order to implement the objec mentioned in the Constitution of India, the State was given considerable power to ensure implementatior ‘The Supreme Court also started recognising administrative power of the administrative authorities. In sense, the Supreme Court under the provisions of Banking Companies Act, 1949, observed that, t Reserve Bank was the sole judge to decide the affairs of the banking companies where such affairs w ig conducted in the interest of the depositor. Case Law: State of A. P. vis. CV. Rao In this case, it was observed by the Supreme Court that, if the Administrative Tribunal had passe an order on the ground of some evidence on record, the said order cannot be challenged on the ground the the evidence on which the Administrative Tribunal passed the order, was not sufficient or was nd adequate. Because, the adequacy or sufficiency of evidence is within the exclusive power and jurisdictio of the Administrative Tribunal19. Author — Prof, Prakash K. Mokal. In India, the activities and powers of the Government and administrative authorities have considerably increased which created a need for the enforcement of the rule of law and judicial review over these powers to ensure the enjoyment of liberty guaranteed to the citizen by the Constitution, and therefore, the extra-ordinary remedies are provided under Articles 32, 226 of the Constitution against the violation of fundamental rights. The orders passed by the administrative authorities can be reversed, rescinded or set aside if such orders are not bona-fide or if such orders are ultra-vires the provisions of the Constitution. Q.6 : Define Administrative Law and state the relationship between Constitutional Law and Administrative Law. OR Define Administrative Law. Discuss its nature and scope. How the Administrative Law is different from Constitutional Law ? /Dec.2014]. Answer : The det of Administrative Law given by the Indian Institute of Law “Administrative Law deals with the structure, powers and functions of organs of administration, the method and procedures followed by them in exercising their powers and functions, the method by which they are controlled and the remedies which are available to a person against them when his rights are infringed by their operation”. iti jistrative Law given by some eminent jurists are summarised as under :— Definition by A. C. Dicey ~ ‘According to Dicey “Administrative Law is— 1) that portion of nation’s legal system which determines the legal status and liabilities of the state officials; that which defines the rights and liabilities of private individuals in their dealings with the public officials; that which specifies the procedure by which these rights and liabilities are enforced”, Definition by Iv ae, ‘According to Ivor Jennings, “Administrative Law is the law relating to the administration, It determines the organisation, powers and duties of the administrative authorities”. According to Ivar Jennings, the subject matter of administrative law is public administration and it determines the organisation, functions, powers and duties of ‘administrative’ authorities, Definition by Wade ~ According to Wade “Administrative Law is the law relating to the control of the governmental power” Wade states that, the primary object of the Administrative Law is to keep the governmental powers within their legal limits with a view to protect the citizens against their abuse. Wade had placed considerable emphasis with regard to objects of Administrative Law. However, Wade fails to mention the powers and the duties of administrative authorities and the procedure required to be followed in respect of execution of the powers and functions. Definit K.C. Davis- ‘According to K. C. 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Author — Prof. Prakash K. Mokal. The definition given by K. C. Davis seems to be appropriate and proper definition for the following reasons := 1) Tt deals with the procedure which is followed by Powers and functions; it) Tt does not deal with the substantive law prepared by the administrative authorities; Hi) It defines administrative authority as a governmental authority independent of Court or Legislature; 'v) It does not include many non-adjudicative, administration, Definition by Garner — Gamer has also adopted the American approach as advocated by K. C. Davis, According to Gamer, Administrative Law may be described as “those rules which are reccognised by the courts as law and which relate to and regulate the administration of Government”, administrative authorities in exercising their but yet, administrative functions of the Definition by Jain and Jain — Recording to Jain and Jain (“Principles of Administrative Law”, (1973), p.11], “Administrative Law deals with the structure, powers and functions of the organs of administration, the limits of then powers, the methods and procedures followed by them in exercising their powers and functions, the metrons by jibieh their powers are controlled including the legal remedies available to a person against them when his rights are infringed by their operation”. This definition deals with the following aspects of Administrative Law : )\___ Itdeals with the composition and the powers of administrative authorities; i) Ttpreseribes the procedures o be followed by the administrative authorities; It fixes the limits on the powers and functions of the administrative authorities; It controls the administrative authorities exercising their powers and functions with the help of, judiciary and such other control. According to Maitland, while constitutional law deals with structure and the broadeer rules which. regulate the functions, are left to administrative law. According to Hood Phillips, constitutional law is concemed with the organsation and funetions of government af rest, whilstadminis trative law is concerned with that organization and those functions in motion”. accepted Keith observed that, ~ attempts to do so are artificial” English text-book writers unanimously upheld that, administrative law is one of degree and convenience, administrative law are so inter-related that it is difficult2 Author — Prof. Prakash K. Mokal. Jaw without the reference to the scope and extent of the constitutional law. Constitutional law deals with the general principles relating to the organisation and powers of the organs of the state and their relations towards the citizens, whereas, administrative law is that aspect of the constitutional law, which deals in detail with the powers and functions of the administrative authorities, including the civil services, public departments, local authorities and other statutory bodies exercising public functions and they all having ‘quasi-governmental powers. Constitutional law is concemed with the constitutional status of ministers and civil servants, the working of the various departments of the government, and thus, the constitutional Jaw belong to the sphere of administrative law. Administrative law is a development in the history of Jurisprudence, inasmuch as, administrative Jaw springs as administrative off-shoot or species from th gemus i.e. constitutional law, which first established the accountability of the state to the people. The administrative law today, forms a separate branch of law, and therefore, a fit subject for separate study India has a written Constitution. While constitutional law deals with the general principles relating to the,organization and power of the legislature, executive and judiciary and their functions inter se and towards the citizens, administrative law is that part of constitutional law which deals in detail with the ppoers ans fuctions of the administrative authoritie including civil services, public departments, local authorities and other statutory bodies. Thus, while constitutional law is concerned with constitutional Status of Ministers and civil servants, administrative law is concerned with the organization of the services and the proper working of various departments of the government. Rights and obligations of the persons are determined by the provisions of the statutory enactments. If no remedy is provided by the statutory enactment or where the action taken by the administrative authority is considered as “final and binding”, an aggrieved person may invoke Articles, 226, 227, 32 and 136 of the Constitution of India for redressal of his grievances (refer Question No. 20 and 21). ‘Administrative law is thus, based on the well-known legal maxim “ubi jus ibi remedium” (i.¢. wherever there is a right, there is a remedy). The important point to be noted in this context is that, in the Anglo ~ American world, administrative law is a later development in the history of Jurisprudence, inasmuch as, administrative Law springs as administration offshoot or species from the genus i.e. constitutional law, which first established the accountability of the state to the people. The administrative law to-day, forms a separate branch of Jaw, and therefore, a fit subject for separate study. 0. 7: “The main aim and object of Separation of Powers is to guard against the tyrannical and arbitrary power of the state” — Critically examine the statement under the Indian administrative system. OR Examine critically — “The Indian Constitution has not indeed recognised the doctrine of Separation of Powers in its absolute rigidity”. OR Examine the extent to which the doctrine of Separation of Powers is incorporated in the Constitution of India. OR Elaborate the Theory of separation of power as propounded by Montesquieu. [Apr. 2001; Apr.2003; Nov.2015].22. Author ~ Prof. Prakash K. Mokal. Write short notes on : a) Doctrine of Separation of Powers [Apr.2001; Apr.2002; Oct.2002; Apr.2004; Apr.2005; Nov.2009; Apr.2010; Nov.2010; Nov.2011; May,2012; Apr.2013; Apr.2014; Apr.2016]. b) Meaning and importance of separation of powers /Nov.2006). Meaning of the doctrine of Separation of Powers There are three main categories of the functions carried out by the Government, These functions are classified as — i) the Legislative; the Executive; and i) the Judicial. Accordingly, there are three main organs of the Government, such as — i) the Legislature; il) the Executive; and iii) the Judiciary. The theory or doctrine of Separation of Powers means that, these three functions of the Government, in a free democracy, always be kept separate from each other. The functions and powers of these three organs of the Government should be kept separate from each other and should be exercised by the each separate organ of the Government. The simple meaning of the doctrine of Separation of Powers means that, the three organs of the Government i.e. Legislature, Executive and Judiciary must function within their ambit, scope and limit, and any of these organs of the Government should not encroach on the powers or interfere with the powers of others. That means, the Legislature cannot exercise executive powers or judicial powers; and the Executive cannot exercise legislative powers or judicial powers; and Judiciary cannot exercise legislative powers or executive powers. In other words, the doctrine of Separation of Powers means — each organ of the Government should be independent of the others; each organ of the Government should perform only the functions and powers assigned to it under the Constitution, The doctrine of Separation of Powers had a tremendous impact on the development of Administrative Law. The doctrine of Separation of Powers came into existence to protect the personal liberty and to fight against the tyranny and authoritarianism, because, if the legislative, executive, and judicial functiois are given to one person, or in the same hands whether of one or a few, it would lead to the establishment of authoritarian and totalitarian regimes. ‘Three fold structural classification of the Government The doctrine of Separation of Powers deals with the three fold structural classification of powers. Itis as follows ~ 1) that the same person should not be the part of more than one of these three organs of the Government. In other words, the same person should be confined to the powers and functions assigned to him and such person should not exercise the powers and functions of other organs of the Government. Thus, according to this classification, the Ministers should not sit in the Legislature: 2) that one organ of the Government should not interfere and control any other organs of the s Government, Thus, according to this classification, the Judiciary should be independent of the Executive and Legislature, and the Executive should not exercise the rule making power of theAuthor — Prof. Prakash K. Mokal. Legislature, and similarly, the Legislature should not exereise the powers of the Judiciary and the Executive; that one organ of the Government should exercise the functions and powers assigned to such organ of the Government. In other words, any one organ of the Government should not exercise the functions and powers of the other organs of the Government. According to this classification, the Minister should not discharge the Legislative powers or the Executive should not discharge the functions of the Judiciary. Separation of Powers guards against tyrannical and arbitrary powers The system of Separation of Powers works as most important system against tyranny and authoritarianism, The doctrine of Separation of Powers prevents an abuse of enormous powers of the ‘executive with the help of checks and balances. ‘The object of the doctrine of Separation of Powers is to ensure a Government of law, rather than a Goverment of official will and whim. The doctrine of Separation of Powers also implies that, consequent ‘upon the division of powers of the Government among autonomous organs, one organ will act as a check ‘upon the other organ of the Government. In the process of such check by one organ on the other, the ty of the individual will be protected and ensured. According to Blackstone, if the legislative, executive and judicial powers and functions were ven to one person, there will be an end of individual, personal liberty. Therefore, accumulation of all ‘powers in one person would lead to tyranny. In the words of Lord Atkin, “every power tends to corrupt, and absolute power tends to corrupt absolutely”. In other words, when the legislative and executive powers are united in the same individual, ip of individuals, whether elected or self appointed, there can be no liberty, because, there will be ‘apprehension that the same person or the same group having all the powers such as legislative and ‘executive, will enact tyrannical laws and will execute them in a tyrannical manner. Therefore, the ‘separation of powers guards against the tyrannical and arbitrary powers. The doctrine of separation of powers came to be recognised in the old cra of Aristotle and Plato. The British scholar politician Locke and the French philosopher Bodin further developed it in the 16" and 7 Century. Thereafter, in the 18" Century, it was the French scholar of law Montesquieu who re- mulated this doctrine in a systematic and scientific form to its full potential. He authored an elaborate \k— “Espirit des Lois” (“The Spirit of Laws”) written in the year 1748 in which he observed — then the legislative and executive powers are united in the same person ot in the same body of wwistrates, there can be no liberty, because, apprehensions may arise, lest the same monarch should ct tyrannical laws — to execute them in a tyrannical manner. Again there is no liberty if the judicial nver be not separated from the legislative and the executive. When it is joined with the legislative, the and the liberty of the subject would be exposed to arbitrary control — for the judge would then be the islator, When it is joined with the executive power, the judge might behave with violence and ression. Miserable indeed would be the case, were the same man or the same body, whether of nobles or of people, to exercise those three powers, that of enacting laws, that of executing them and that of ging the crimes of individuals”, sm the historical perspective, it may be noted that the French law scholar was lived at the time when the |- fledged absolute and autocratic monarchy prevailed in France during the time of Louis XIV. On the er side, according to English Constitution which recognised the rule of separation of powers in the 18" tury, as a result every Englishman in England enjoyed the liberty and freedom to the fullest possible tent. These are the reasons why Montesquieu proposed the theory of separation of powers with full ce and vigour.24. Author — Prof, Prakash K. Mokal. The Constituent Assembly of France unanimously accepted the doctrine of separation of powers and declared that ~ there would be nothing like a constitution in a country ifthe doctrine of separation of powers was not incorporated therein, Effect of the doctrine of Separation of Powers The doctrine of Separation of Powers has the following effects — i) It guards against tyrannical and arbitrary powers; fi) It protects and ensures individual liberty; {i) It does not allow the accumulation of ail the powers inthe satne person or group of persons; ') It ereates tremendous impact upon the development of the Administrative Law and the functioning of the Government; ¥) __Ithelps to ensure check by one organ of the Government on the other organs of the Goverment ¥)__Itdoes not allow the encroachment of powers and functions of each organ of the Government Defects of the doctrine of Separation of Powers := The doctrine of Separation of Powers suffers from the following defects — ') Even if the doctrine proceeds with the assumption that the three organs of the Goverment are distinguishable from one other, in reality it is difficult to draw a demarcating line between one organ and the other with mathematical perfection, because, the Government is not a machine, but it is made of living beings. Due to the emergence and existence of the concept and idea of “Welfare State, it is difficult ta confine the doctrine of Separation of Powers, because, enforcement of rigid concept of Separation of Powers in the modem Government is made impossible, It has been rightly observed by: Friedmann that, “stict separation of powers isa theoretical absurdity and practical impossibil ity” {tis not possible to attain liberty and freedom of individual by such mechanical divisioe of powers and functions of the doctrine of Separation of Powers; The doctrine of Separation of Powers fail different organs of the Gov the other organ; The doctrine of Separation of Powers is relative and not makes difficult to take certain actions, such as, the legislat and funetions, the courts cannot frame rules of proct expeditious disposal of cases. Separation of power in India under the Constitution of India ‘The doctrine of Separation of Powers finds place in the Constitution of India, not in the rigid form, but in the broad sense. In other words, the doctrine of Separation of Powers finds its expression in som form or other in the Constitution of India, independent in exereising its powers and functions, and the other organs, such as, Legislature an [xecutive cannot interfere with the functions of the Judiciary. However, the Supreme Court and High ‘Courts are empowered with judicial review and they are also empowered to declare any law passed by the Legislature or Parliament as wltra-vires ot unconstitutional, Case Law25. Author = Prof. Prakash K. Mokal. Indira Gandhi v/s. Raj Narayan, AIR. 1975, $.C. 2299 — It was observed by the Supreme Court in this case that, the doctrine of Separation of Powers has been accepted in the Constitution of India and the doctrine of Separation of Powers is a part of the basic structure of the Constitution. Golaknath v/s. State of Punjab, AIR. 1967, S.C. 1643. It was observed by the Supreme Court in this case that, the Constitution of India brings into existence three different instruments of power, such as, the Legislature, the Executive and the Judiciary. The jurisdiction, functions and powers of these three instruments viz. the Legislature, the Executive and the Judiciary are demarcated distinctly, and they are expected to exercise their respective powers without encroaching upon and without overstepping the limit allotted to them. The Constitution of India has no clear provision regarding the division of functions of the Government, Articles 53 (1) and 154 (1) deal with the executive powers of the Union and of the State vested in the President and the Governor, respectively. Article 50 states a Directive Principle that, there shall be separation of judiciary from the executive. The President being the head of the Executive, has also wide legislative powers, such as, issuing Ordinances, making laws or making necessary modifications. The legislative powers of this nature are beyond the judicial review. The President also performs judicial function, such as, deciding disputes regarding the age of the judge of the Supreme Court and High Court for the purpose of retirement, and also deciding the cases of disqualification of the members of the Parliament, granting pardon or commuting death sentence to life imprisonment in mercy petition made to the President of India, ete. The Parliament apart from exercising legislative functions and powers in accordance with the provisions of the Constitution, is also empowered to exercise judicial function, such as deciding the question of breach of its privileges, and if the breach of its privileges is proved, the Parliament is also empowered to punish the person concerned. During the process of impeachment of the President, one House of the Parliament performs the duty of a prosecutor and the other House of the Parliament investigates the charges and decides whether the charges levelled are proved ornot. The Judiciary apart from exercising the judicial powers, is also empowered to exercise some executive powers and functions. The High Court has the power of superintendence over all subordinate courts and Tribunals, and also enjoys the power of transfer of cases (e.g. the Supreme Court has recently, in May, 2004 rightly transferred the Best Bakery Case from Gujarat High Court to Mumbai High Court). The High Court and the Supreme Court also have legislative powers and such legislative power is exercised in framing rules, regulating their own procedure to be followed in the expeditious disposal of the cases. From the above, it is clear that the doctrine of Separation of Powers is not fully accepted in the Constitution of India. Ram Jawaya v/s. State of Punjab, AIR. 1955 $.C 549 = Tt was observed by the Supreme Court in this case that the doctrine of Separation of Powers is not fully accepted in the Constitution of India. The Indian Constitution has not recognised the doctrine of Separation of Powers in its absolute rigidity.Q. 8 : Critically discuss the Dicey’s Doctrine of Rule of Law. Elaborate its application in Indian Constitution /Apr.2002; Oct.2002; Apr.2004; Apr.2006; Noy.2006; Apr.2008; Nov.2008; May,2012; Nov.2012; Apr.2014]. or Explain the ‘Rule of Law’. How the Rule of Law is respected under the Indian Constitution. State the relevant case laws /Dec.2014; Nov.2015]. OR Discuss critically Dicey’s concept of the Rule of Law. Is the Rule of Law contradictory to the Administrative Law ? /Apr.2001]. OR “The Administrative Law is the area where the principle of the Rule of Law is to be seen especially in active operation” — Discuss. OR Write a short note on : Rule of Law /Apr.2003; Apr.2005; Apr.2007; Nov.2007; Apr.2011; Apr.2013; Nov.2013; Apr.2015]. Answer: ‘The doctrine of the “Rule of Law” is the basis of the Administrative Law. This doctrine of the Rule of Law has been accepted in the Constitution of U.S.A. and India. Sir Edward Coke, the Chief Justice in King James I’s reign was the originator of this concept. In a battle against the King, he maintained that the King should be under the God and the Law, and he established the supremacy of the law against the executive. Thereafter, A. C. Dicey developed this theory of the Rule of Law in his classic book “The Law of the Constitution” published in the year 1885 According to A. C. Dicey, the fundamental basic principle of the English Constitution or English legal system is the “Rule of Law”. In the opinion of Dicey, the Rule of Law has the following three aspects — i) Supremacy of the law; )) Equality before the law; iii) Predominance of the legal spirit. Each of these three aspects can be explained as under — 1) Supremacy of the law : It means, there must be absolute supremacy of the law or absolute predominance of regular law as ‘opposed to the influence of discretionary power or arbitrary power. It does not include the exist arbitrariness or discretionary power on the part of the Government. In other words, discretion creates a place for arbitrariness and the discretionary power on the part of the Government, amounts to insecurity for legal freedom of the individual. According to Dicey, English men are ruled by the law, and by the law along a man may be punished for a breach of law, but he cannot be punished for anything else.27. Author — Prof. Prakash K. Mokal. The doctrine of the Rule of Law also implies that, no man can be arrested punished or no man can be lawfully made to suffer in body or property except by due process of aw for a breach of law, and such person should be tried in the ordinary court in the ordinary legal manner. 2) Equality before law According to Dicey “equality before law” is the second principle of the “Rule of Law”. “Equality before Jaw” means, there must be equal treatment or equal subjection of all classes to the ordinary law of the land administered in the ordinary legal manner. In other words, all persons must be subject to one and the same Jaw, there should not be extra-ordinary Tribunal or special courts for executives of the Govemment and other authorities. Ifa civil servant is exempted from the jurisdiction of the ordinary court and provided ‘with special Tribunal, then such exemption given to civil servant is contrary or against the equality. Dicey has critisied the French legal system of droit administratiff in which there were separate administrative tribunals for deciding cases between the officials of the state and the citizens. 3) Predominance of legal spirit : According to Dicey “Predominance of legal spirit” is the third principle of the rule of law. According to hhim, the rights of the individual guaranteed by the Constitution would be secured more adequately, if they ‘are enforced in the court of law. In other words, mere inclusion or mere incorporation of the rights of individual in written Constitution required to be protected and enforced, and predominance or supremacy of legal spirit is absolutely necessary for the effective remedies of protection and enforcement. Dicey has emphasized the role of courts of law as guarantors of liberty. Main objection of Dicey against Administrative Law : Dicey was against the discretionary power on the part of the administrative authority, and he was also against the existence of Administrative Tribunal to deal with the liability of the public servant or to deal with the liability of the person who is the holder of the public office. There are following two sides of Dicey’s formulation of rule of law In other words, the main objection of Dicey against Administrative Law are summarised as under — 1) Objection against Discretionary power : The discretionary power or arbitrary power on the part of the administrative authority creates and breeds arbitrariness or discretionary power. Dicey was against arbitrariness or discretionary power, because he was of the firm opinion that arbitrariness ofien prevails in the selfish discretion. According to him, discretion creates a room for arbitrariness, and discretionary power or authority on the part of the Government, leads to insecurity for the legal freedom of the individuals. Criticism, This main objection with regard to conferring discretionary power on the part of the Government, is criticised on the ground that, Dicey failed to notice the distinction between discretionary power and arbitrary power. It is true that arbitrary power is disagreeable, or compatible or repugnant to the rule of Jaw, but discretionary power is not disagreeable compatible or repugnant to the rule of law. ‘The importance of discretionary power is much more in the functioning of the modern state. In fact, it will be difficult for the modem state to function if discretionary powers are not conferred on the executive ‘or administrative authority. In other words, if discretionary power is considered to be against or contrary to the rule of law, then the rule of law would be treated as redundant or inapplicable to any modem Constitution, Therefore, Dicey’s objection against the discretionary power, does not sustain, and the ‘objection with regard to conferring discretionary power on the part of the Government, is not valid today. jection ay \dministrative Tribunal : Dicey was against the existence of Administrative Tribunal to deal with the liability of public servant or liability of a person who is holder of public office. According to Dicey, all persons must be tried by the ordinary courts and under the ordinary law of the land.28, Author — Prof. Prakash K. Mokal. He was against the existence of separation of Administrative Tribunals for deciding cases between the officials of the State and citizens. He also felt that, ifthe civil servant is exempted from the jurisdiction of the ordinary courts of law and providing them with special tribunal, such provision amounts to negation of equality. Dicey, therefore, maintained that the Rule of Law means, no man is punishable or no man can be lawfully made to suffer in body or in goods except for a breach of law established in the ordinary legal manner before the oxdinary court of law. Dicey was of the firm opinion that, every person, whether such person is an ordinary citizen or a public servant, was subject to the ordinary law of the land and to the ordinary court, According to Dicey, the existence of separate system of Administrative Tribunal as prevailed in France, amounted to denial of equality before law. ‘Griticism on Dicev’s objection : The another important objection with regard to Administrative Tribunal, is criticised on the ground that, dicey totally misunderstood the concept of “droit administratif”. In other words, Dicey misunderstood the French system of Administrative Law. The Administrative Tribunals are able to offer expected relief to the citizen against executive or administration action. Administrative Tribunal is the necessity of the time, because, the courts are overburdened with cases of various descriptions. The diversion of administrative ‘matters to the Administrative Tribunals reduces: the burden of the courts and also deals with expeditious disposal of eases. Dicey’s objection against the existence of Administrative Tribunal does not sustain. Therefore, Dicey’s objection with regard to existence of Administrative Tribunal is not valid today Rule of Law and its operation under the Constitution of India: The Indian constitution has adopted the doctrine of Rule of Law. The three organs of the Government viz., legislature, executive and judiciary are subordinate to the Constitution and these three organs of the Government are required to act in accordance with the provisions of the Constitution. The legislative and executive powers of States and the Union are to be exercised according to the provisions of the Constitution of India: In the event of infringement of fundamental rights, constitutional remedies are provided for the enforcement of these fundamental rights guaranteed under the Constitution. ‘The Government and the public officials are not above the law and if there is abuse of power by the executive or by the Government or if the action of the executive authority or Government is not bona- ‘fide, the said action can be set aside by the ordinary courts of law. The Government and the executive authorities are also subject to the jurisdiction of the ordinary court of law and they can be tried and punished for wrongs committed by them. According to Article 13 of the Constitution, all rules, regulations ordinances, notifications, customs, usages, bye-laws are “Laws” and if such rules, regulations, notifications, ordinances, customs, usages or bye-laws are not in accordance with the provisions of the Constitution, they are declared as ultra vires by the High Courts and by the Supreme Court According to Article 21 of the Constitution, no person shall be deprived of his life and property except according to due process of law or according to the procedure established by law. Tortuous act and breach of contract committed by the executive authorities or public authorities can be tried in the ordinary courts of law and damages can be recovered from the Government or the Union Government, as the case may be. Thus, there is equality of law and equal protection of law under the Constitution Case i Keshawanand Bharati v/s. State of Kerala, AIR. 1973 S.C. 1461 - It was observed by the Supreme Court that, the doctrine of Rule of Law has been embodied in the Constitution of India, and the doctrine of rule of law has been considered and treated as the part of the basic structure of the Constitution of India,and y the f the 29. Author ~ Prof. Prakash K. Mokal. Indira Nehru Gandhi v/s. Raj Narayan, AIR. 1975 S.C. 2299 — it was observed by the Supreme Court that, Article 329-A (4) was unconstitutional, because under this ‘Article the election of the Prime Minister or Speaker could not be challenged as violative of Rule of Law which was the basic structure of the Constitution. Dethi Transport Corporation v/s. D.T.C. Mazdoor Congress AIR. 1991 S.C. 101 — in this case, the Supreme Court formulated the meaning of the Rule of Law. It was observed that, the absence of arbitrary power is the first essential of the Rule of Law which is the basic structure of the Constitution, In a system in which the Rule of Law which is the basic structure of the Constitution, has a predominant position, or in a system which is governed by the Rule of Law, the discretion conferred upon executive authorities, must be confined to defined limits 0.9: Discuss the judicial review of administrative action with relevant case law. OR Discuss the nature and scope of judicial control of administrative actions. OR Discuss ordinary remedies, apart from constitutional remedies to control administrative actions in India. OR Explain classification of administrative action with illustrations. OR Discuss the different classes of administrative action and judicial control exercised over them. OR Discuss different classes of administrative process or actions (discretions) and the judicial control exercised over them. OR What is administrative discretion ? Explain the Judicial Review over the exercise of discretionary powers OR Explain the judicial review of administrative action by writ jurisdiction OR Examine critically the statement “Administrative discretion (actions) are beyond the pale of judicial control”. OR Explain the doctrine of Proportionality with reference to illustrative case law [Apr.2000; Apr.2001; Apr.2003; Apr.2004; Nov.2005; Apr.2008; Nov.2008; Apr.2010; “Apr.2011; Nov.2012; Nov.2013; Apr.2016]. OR Write short notes on : a) Administrative discretion /4pr.2000). b) Administrative action /Apr.2002).S.A tthor— Prof, Prakash K. Moka ©) Judicial Review /Nov. 2006]. 4) Lack of Power. €) Doctrine of Proportionality f) Doctrine of Ultra Vires /Apr.2001; Nov.2007; Apr.2015]. Answer There are three organs of the Govemment ~ Legislature; Executive and Judiciary. These three ‘organs essentially perform three classes of govemmental functions — i) legislative; ii) executive; and iti) judicial. The function of the Legislature is to enact the law; the Executive is to administer the law, and the Judiciary is to interpret the law and to declare what the law is. But, as observed by the Supreme Court in Jayantilal Amratlal w/s, F. N. Rana (AIR.1964, S.C. pp. 648, 655), it cannot be assumed that the legislative functions are exclusively performed by the Legislature, executive functions by the Executive, and judicial functions by the Judiciary. In modem times, the Executive performs various functions such as to investigate, to prosecute, to prepare and adopt schemes, to issue and cancél licences ete. (administrative functions); to make rules, regulations and bye-laws, to fix prices, etc. (legislative functions); to adjudicate on disputes, to impose fine and penalty, etc. (judicial functions). Therefore, the functions performed by the executive authorities are administrative, legislative, judicial or quasi-judicial in character. The modem administration may also enjoy wide discretionary powers. The public authority may be empowered to perform different administrative actions, such as to make an investigation or enquiry and apply its discretion with a view to implementing a certain social or public policy, etc. Case Lay Ram Jawaya v/s. State of Punjab, AIR. 1955 S.C. 54: The Chief Justice Mukharjee of the Supreme Court, observed: “It may not be possible to frame an exhaustive definition of what executive function means and implies. Ordinarily, the executive power connotes the residue of the governmental functions that remain after legislative and judicial functions are taken away”. ‘Thus, administrative functions are those functions which are neither legislative, nor judicial in character. It was further observed by the Supreme Court in this case that, the doctrine of Separation of Powers is not fully accepted in the Constitution of India. The Indian Constitution has not recognised the doctrine of Separation of Powers in its absolute rigidity. Classes of Administrative Actions — The following are the classes of administrative actions — i) Administrative discretion; ii) Legislative action; iii) Executive action; iv) _ Iudicial action; ¥) — Quasi-judicial function N the following characteristics are found in administrative functions i) An administrative order is based on governmental policy; ii) An administrative authority is not bound by the rules of evidence and strict procedure unless the relevant Statute specifically imposes such an obligation;31. Author — Prof. Prakash K. Mokal. iii) Administrative functions may be delegated and sub-delegated unless there is a specific bar or prohibition in the Statute; iv) Administrative authority may use its discretion while making a decision; ¥) An Administrative order may be held to be invalid on the ground of unreasonableness; vi) The prerogative writs of certiorari and prohibition are not always available against administrative actions. ‘Administrative Diseretion’/ Administrative Action’ Administrative discretion is the discretion enjoyed by administrative authorities. The term ‘discretion’ implies the power to make a choice between two or more causes of action or inaction. The discretion is not to be exercised arbitrarily or according to the individuals personal whims or opinions. It must be exercised within the limits of rules of reason and justice. In view of the various functions performed by the administrative authorities, it is quite necessary to give Them discretionary powers in order to enable them to realise various objectives of the modern state. Though, they should be given such discretionary power or authority, it is also expected of them that they should exercise the same, judicially or reasonably having due regard to the principles of Natural Justice, ete. If they do not exercise these powers reasonably, it is quite possible that, the very purpose of the modern Welfare State would be defeated. Therefore, these authorities should be subject to the judicial control. In other words, they (ie administrative authorities or their officers) cannot exercise these powers arbitrarily, and in order to ensure the same, the judicial control becomes essential, Therefore, discretionary administrative powers are not beyond the pale of judicial control. In this connection, it may be pointed out that, generally, any authority or officer tends to abuse the power, if not controlled by some agency. It is natural that, human being as such, they have to be properly controlled in the exercise of such power or authority granted to them. It is wisely said that, power corrupts a person, and absolute power corrupts him absolutely. If this is to be avoided, it is essential that there should be some effective control over the exercise of such power and such effective control can be exercised only by the judiciary, Therefore, such powers cannot be and should not be beyond the pale of the control of judiciary. It is hoped that, the due control by the judiciary.would ensure that the concerned administrati authority exercises the powers given to him in good faith. It is also implied that, such administrative authority to whom the powers have been granted, should exercise these powers by himself without surrendering his judgement in the exercise of such powers to some other authority or agency — ‘Case Law: Commissioner of Police v/s. Govardhandas (AIR., 1952 S.C. 16) ~ The facts of this case are that, a person had applied for a construction of cinema at a site in greater Bombay. However, his application was refused Subsequently, the same was granted by the Commissioner of Police. But, again the permission ‘was suspended and finally cancelled within two months, by the letter of the Police Commissioner of Bombay. The Commissioner of Police in his letter to the applicant stated that, the permission alread ‘granted was cancelled in view of the direction of the Government. It.was held that, the Commissioner of Police has surrendered his judgement to the Government while passing the order of cancellation, and as such, it was wrong of him. The authority which was given to him was to be exercised by him of his own, without allowing his will to be overborne by anybody. In2. Author — Prof, Prakash K. Mokal. other words, the exercise of the powers by the Commissioner was wrong or mala-fide and therefore, it came within the pale of the judicial control as stated above. Discretionary Powers and Judicial Control/Judicial Review over them Discretionary powers have been conferred on the administrative authorities in relation to dismissal, removal or reduction in the rank of the members of the civil service. Such discretionary powers need to be given to these authorities to ensure that the said administration functions effectively and efficiently. Yet, it may be remembered that, they should not be allowed to abuse the powers granted to them. tis with this purpose in mind that necessary provision has been made under the Article 311 of the Constitution of India that the powers conferred on the Government authorities or agencies, should be exercised in good faith and with justice. The provisions of the Article 311 of the Constitution, in effect, put limitation to the exercise of stich powers by the concerned administrative authorities or agencies. It may also be noted that, the administrative authorities are not amenable to Writ of “Certiorari™, unless they act judicially or when they perform judicial or quasi-judicial functions. This implies that, the Writ of “Certiorari” may not be issued when the administrative authorities act in purely administrative capacity. Judicial Review by the Court : The power of the Court to review administrative action or éxecutive action, is the procedure by which the court can declare the validity or non-validity of an action taken by the executive. Such an action of the executive, though taken by administrative discretion, it may be struck down or declared as mull and void by the court. The main purpose of judicial review is to ensure that there no abuse of such discretionary power vested in the executive authority. Generally, the courts have no power or courts cannot interfere with the action of the administrative authorities if they have exercised their power in a proper manner. Judicial review is a great weapon in the hands of the judiciary. It comprises the power of a cort to declare any action of the public authority which is inconsistent with the basic law of the land as ‘unconstitutional. Judicial review in India deals with the three aspects ~ I) Judicial review of legilsative action; 2) Judicial review of judicial decision; and 3) Judicial review of administrative action. The object of the judicial review is to ensure that the authority does not abuse its powers and the individual receives just and fair treatment, In India, the doctrine of judicial review is the basic feature of our Constitution. Judicial review is the ‘most potent weapon in the hands of the judiciary for the maintenance of rule of law. Judicial review is the touchstone of the Constitution. The Supreme Court and the High Courts are the ultimate innterpreters of the Constitution. It is, therefore, their duty to find out the extent and limits of the power of co-ordinating branches, i.e. the Executive and the Legislature, and to see that they do not transgress their limits. This is indeed a delicate task assigned to the judiciary by the Constitution. Judicial review is thus, the touchstone and the essence of the rule of law — R. K. Jain v/s. Union of India, (1993) 4 SCC 119. In Minerva Mills Ltd. v/s. Union of India, the Supreme Court has observed that, the Constitution has created an independent judiciary which is vested with the power of judicial review to determine the legality of administrative action and the validity of legislation. It is the solemn duty of the Judiciary under our Constitution to keep the organs of the state within the limits of the power of judicial review. Thus, judicial review by the courts aims to protect citizens from abuse or misuse of power by any branch of the state.33. Author — Prof, Prakash K. Mokal. The courts shall not look into the correctness of the decision or action taken by the administrative orities, not courts shall go by the merits of the case. The courts are concemed only with the manner in ‘which the action is taken. The question before the court is whether the administrative authority has acted ‘within its powers and whether it has followed proper procedure. Thus, if the administrative authority has exercised its discretionary power in a proper, reasonable and fful manner and followed a proper procedure, then in such case, the court shall not interfere with the tion taken by the administrative authority. in question was granted. ii) Where the administrative authority fails to observe the mandatory procedure prescribed in the * Statute which conferred such power to that authority. Where the basie facts on which the exercise of power is conditional, did not exist. ‘Broadly speaking, the judicial control of administrative action can be called the doctrine of ‘ultra-vires’. According to Prof. H.W.R. Wade, “...there is some fault in the administrative act which renders it lra-vires. Such fault may arise either on account of lack of power or improper exercise of power. Such mproper exercise of power may also be due to either wrong manner in which it is exercised or on account the state of mind with which it is exercised. gro Lack of power; Malafide exercise of the power; Improper purpose; Irrelevant consideration; Leaving out relevant considerations; Colourable exercise of power; Unreasonable exercise of power; Acting in the wrong manner or way; Non-application of mind. Doctrine of Proportionality. Lack of Power — ‘the administrative authority has exercised the power which is not given to him, or exercised the power ‘excess of power given to him, in such a case, the court by its judicial control can render the act of the ministrative authority as null and void. The aggrieved party is also entitled to necessary remedy against h administration act of the administrative authority. | Mala-fide Exercise of the Power — The expression “mala-fide” generally means, dishonest intention, corrupt motive or bad faith. fever, the Supreme Court had given a broader meaning to this expression in the case known as shand v/s, State of West Bengal, AIR. 1967, S.C. 483 as follows — “Tt only means that, the statutory power is exercised for purpose foreign to those for which it is in intended. However, largely in practice, the term ‘mala-fide’ would include those cases where the ive force beyond an administrative action is personal animosity, spite, vengeance and personal benefit foneselt” Improper Purpose —3 Author — Prof. Prakash K, Mokal. In case of ‘improper purpose’, dishonest intention, corrupt motive or practice, personal spite or malice may not be present; yet, it is improper purpose, if the power under the Statute is used for the purpose other than the one for which it is intended in the Statute, 4) Irrelevant Consideration — In this case, there may not be mala-fide exercise of power or the improper purpose, but still th administrative order can be challenged if the power is exercised on the basis of irrelevant consideration or matters. 5) Leaving out Relevant Considerations — Administrative action may also be rendered invalid on the ground that, the concerned action of th Administrative Authority did not consider relevant matters. In other words, relevant considerations wer not taken into account while taking such action. In such case, the administrative action can be said to improperly exercised for want of relevant considerations. 6) Colourable Exercise of Power This ground is more or less similar to the ground of “improper purpose” discussed above. The essence this ground is that, though the power is exercised under a Statute, ostensibly for the purpose visualis. under the Act, in fact, it has been used for altogether different purpose, not connected with the Statut Such exercise of power is known as “colourable exercise of power” and consequently, such exercise power is considered to be beyond the Statute. In such a case, the administrative act is held to be null void having no effect in law. 7) Unreasonable Exercise of Power ~ This ground of attack on administrative action is considered rather a delicate one. When Administrative Authority is vested with discretionary power, it is for such authority to decide the scope the discretion. It is not proper that the courts should substitute their discretion for the discretion of administrative authority. It is the administrative authority concemed, who knows the facts of the giv case better, and as such, it is for that authority to form its opinion to take an action in the given case. other words, such exercise of the power involves subjective satisfaction of the Administrative Author and in such cases, the courts cannot interfere with such kind of subjective satisfaction. But, if the decision of the administrative authority is so unreasonable that no reasonable authorit could ever have come to it, then the courts can interfere. The Supreme Court of India, in Sheo Nath Appellate Assistant Commissioner (AIR. 1971 S.C.2451) observed that, the words ‘reason to believ used in the Income Tax Act for initiating re-assessment proceedings suggest that, the belief must be of a honest and reasonable man based upon reasonable grounds, and that the Income Tax Officer may on direct or circumstantial evidence, but not on a mere suspicion. 8) Acting in the wrong manner or way ~ = Besides on the grounds specified above, administrative action may also be attacked on the ground while taking such action certain procedure is not followed. In such cases, the grounds of attack are as follows: a) There arc mandatory pre-conditions prescribed in the Statute for exercising the administrative por and such pre-conditions are not fulfilled; b) Delegating power to another authority which is not permitted under the Statute, there-is the abdicati of power by the concemed authority. Therefore, the exercise of such power (i.e. power to delegate) the authority is null and void; ©) The Statute requires that, reasonable opportunity should be given to the concerned party. When si opportunity is not given to the concerned party, it amounts to failure to follow the principles of nat justice. In such a case, the action of the administrative authority becomes null and void.f the were to be 35. Author — Prof, Prakash K. Mokal. 9) Doctrine of Proportionality — The Principle of Proportionality means, that an action should be modemnistc that it ought to be for obtaining the desired result, At times, Statute may require the authority to act reasonably, The courts have also stated that the authority should consider the question fairly and reasonably before taking an action. The term junreasonable’ means, more than one thing. It may embody a host of grounds mentioned already, as that the authority has acted on irrelevant or extraneous consideration or for an improper purpose, or malafide, etc. Unreasonableness may furnish a ground for intervention by the courts when the Constitution of Indi or the Statute so requires. Thus, Article 14 of the Constitution of India guarantees equality before law but the courts have permitted reasonable classification to be made. The Principle of Proportionality requires the court to apply the tree stage test : 1) Whether the objective sought to be achieved, is relevant and sufficiently important to justify limiting the fundamental ghts; 2) Whether the means chosen to limit that right are rational, fair and not arbitrary: and 3) Whether the means used, impair the right as minimally as reasonably possible [R. v/s. Shayler, (2202) 2 All ER 477 pp. 498, 506 (HL). In Om Kumar /s. Union of India, AIR 2000 SC 3689 : (2001) 2 SCC 386, the Supreme Court has held that the proportionality principle which involves a stricter test of reasonableness, was being applied in India by courts asa primary reviewing authority in judicial review of legislative and administrative action affecting fundamental rights ever since 1950 without specifically naming it In Terioat Estates (P. Ltd.) v/s. Union Territory of Chandigarh, [(2004) 2 SCC 136], it was held that — by Proportionality, it is meant that the question whether while regulating exercise of fundamental ‘ehts, the appropriate or least restrictive choice of measures have been made by the Legislature or the administrator so as to achieve the object of the legislation, or the purpose of administrative order, as the ‘case may be. The court will act as a primary reviewing authority in relation to statutes or statutory rules or any ‘order which has the force of a statute, In cases where the challenge of unreasonable classification under AMticle 14, the principle of Proportionality is applied to other fundamental rights will apply, was held in Om Kumar v/s. Union of India, AIR 2000 SC 3689 : (2001) 2 SCC 386. It was also held in Ajay Hasia ws. Khalid Mujib Sehravardi, (1981) SCC 722 that the Tundamental right of equality in Article 14 has also been so construed as to make the concept of seasonableness and non-arbitrariness pervade the entire constitutional scheme as a golden thread running through the whole of the fabric of the Constitution. Where the challenge is not of a unreasonable classification, but only of arbitrariness under Article 44, the Proportionality principle will not apply, and the test of Wednesburry Reasonableness will apply, this was held in Om Kumar v/s. Union of India, AIR 2000 SC 3689 : (2001) 2 SCC 386. In this case, the uestion of applicability of Proportionality principle in matters affecting fundamental rights was left open Proportionality principle is not applicable in judging the appropriateness of punishment imposed disciplinary proceedings and the test of Wednesburry Reasonableness applies. But this spirit of the rine may be applied in appropriate cases. As observed by Justice Dharmadhikari, the concept of ‘asonableness defies definition and the functional conceptual implication of reasonableness is that it is Szother word used for public policy and the test of reasonableness is nothing substantially different from ial engineering balancing of interests or any of the other formulas which modern sociological theories est as an answer to the problem of judicial function. \clusion:Author = Prof. Prakash K. Mokal. While concluding, it may be stated that, the exercise of administrative discretion can be supervised by the courts on the basis of merits ofthe decision. Formulation ofthe policy and execution thereof is the Oy heive function of the administration. However, the discretion can be challenged on the ground that the same is exercised improperly or illegally. In other words, such exercise of the authority is wlira-vires and can be rendered invalid. ‘Thus, the judicial authorities can still exercise the control over the administrative authorities or agencies in relation to the discretionary powers conferred upon them By the Statute. This supports the ee tention that, the discretionary powers conferred on the administrative authorities are subject to scrutiny of the court of law Q. 10: Define Delegated Legislation and explain the factors leading to the growth of Delegated Legislation. oR What is delegated legislation ? Explain-delegated legislation with reference to leading case laws /Apr.2001; Apr.2008; Nov.2008; Nov.2009; Apr.2016]- oR Write a short note 0 Delegated Legislation /Nov.2015). Answer: sci term “delegated legislation” is difficult to explain with precise and exact definition In the common parlance, “delegated legislation” means, the law made by @ department ce administrative suthority which has been delegated legislative power by the Legislature undes Some Statute. In other, verde, the executive authority making the legislation is subordinate to the legislature, Such authority is ‘mpowered by the Legislature under some Statute to legislate or to make laws. When such authority makes laws under some Statutes, the law made by such authority within the framework of the Statute is called “delegated legislation”. Definitions of “delegated legi Salmon vCccording to Salmond, “delegated legislation” means, a legislation which proceeds fom an} authority other than the supreme power, and such authority is dependent for its continued existence ani validity upon the supreme power or supreme authority. Mukharjee J.— ie 2 sukharjee critically comments on the delegated legislation. According, ‘9 Justic Mukharjee, “delegated legislation is such an expression which includes abundance of confusion and i iene excuse for the legislators, protection for the administrators and an act for provoking thé constitutional jurists” Ina simple language, when the executive authority which is subordinate to supreme or Sore power, makes the law in the form of rules, regulations, bye-laws, then such legislation is called “delegat legislation”.32. Author — Prof, Prakash K. Mokal. Delegated legislation, thus, is a legislation made by a body or a person other than the sovereign in Parliament by virtue of powers conferred by such sovereign under the statute, Similarly “delegated legislation” may also be defined as “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 legisltaiton”, ‘Any organ or authority subordinate to legislature or other than legislature, has been assigned the function to make legislation by the legislature itself, and when such organ or authority makes the Tegislation, such legislation is called delegated legislation. ‘According to Jain and Jain (“Principles of Administrative Law Vol. I (2007), the term “delegated spislation” is used in two senses : 1) exercise by a subordinate agency of the legislative power delegated to it by the legislature, or 2) the subsidiary rules themselves which are made by the subordinate authority “in pursuance of the power conferred on it by the legislature. Im its first application, it means that the authority making the legislation is subordinate to the Negislature. The legislative powers are exercised by an authority other than the legislature in exercise of e powers delegated or conferred on them by the legislature itself. This is also known as “subordinate Tegislation”, because the powers of the authority which makes it are limited by the statute which conferred e power and consequently, itis valid insofar as it keeps within those limits. In its second connototation, “delegated legislation” means and includes all rules, regulations, bye~ rws, orders, etc. For example, the Indian Income Tax Act, 1961 empowers the Board to make rules “for ying out the purposes of the Act and for the ascertainment and determination of any class of income”. The statute enacted by the legislature conferring the legislative power upon the executive is known the “parent Act” or “primary law”, and the rules, regulations, bye-laws, orders, etc, made by the ecutive in pursuance of the legislative powers conferred by the legislature are known as subordinate sws oF subsidiary laws or the “child legislation”. importance of delegated legislation) reasons or factors which are responsible for the growth of delegated legislation can be summarised as der — Flexibility Flexibility of the delegated legislation is an important factor or reason for the growth of delegated slation. Delegated legislation is more flexible than the Statute legislation, because, the laws made by executive authority in the form of rules, regulations, bye-laws can be easily changed by them if a ion demands, but the laws made by the legislature cannot be changed easily, as the change in law uires compliance of the prescribed procedure. In other words, the legislative amendment is very slow and a time consuming process. On the er hand, the delegated legislation can be amended easily without compliance of any strict or prescribed cedure, In fact, in emergency situation, delegated legislation becomes useful and flexible. ‘Technicality : fechnicality is another important factor or reason for the growth of delegated legislation. When the ibject matter of legislation is technical in nature, the person dealing with such subject matter must be ith sound and adequate technical qualification, experience and knowledge. The legislators who are the ns of common prudence, cannot be expected to have such technical qualification, experience and ywledge, and therefore, they are required to avail the assistance of technical experts. The legislators yy be best politicians, but they cannot be best experts to deal with technical subject matter which must handled by experts. The executive authority relating to a specific field has adequate technical38. A ke knowledge to deal with the technical nature of subject matter upon which legislation is required to be done. 3) Experimental Experience : This factor or reason for the growth of delegated legislation enables the executive authority to make experiment. This experimental experience allows the implementation of necessary change for applying the provisions, The executive authority may conduct some experiment relating to its field, and such experiment will enable the executive authority to bring changes in the application of the provisions. 4) Emergeney Situation : The delegated legislation is the most useful legislation during the period of emergency, because, during the time of emergency, a quick action is necessary. In other words, delegated legislation provides urgent and quick solution to meet the situation, On the other hand, the legislative process is not quite prompt as required during the emergency to meet any unforeseen and unexpected situation, because, the legislative process is required to follow the standard procedure, whether it is emergency situation or not. Therefore, delegated legislation is considered to be most convenient and possible remedy. This is why, the executive authorities are vested and empowered with special and wide powers to deal with the situation during the period of emergency. Similarly, in a situation such as floods, economic depression, epidemics, etc. it is necessary to tackle such situation with immediate, fast and prompt remedial action and such action can be easily taken by the delegated legislation. 5) Insufficient Time : This is also one of the important factors or reasons for the growth of delegated legislation. Due to insufficient time, the legislature is not able to discuss all the matters in details. As a result, the legislature has to formulate a general policy in the form of skeleton, and it is left to the executive authority to fill in the details. The executive authority is well equipped with the knowledge and experience and also aware about the local needs of the society. It is therefore, easy for the delegated legislation to take into accounts the local needs of the society to render the law made by them more usefull and beneficiary. Q. 11 : Explain the delegated legislation. Discuss different forms/types of delegated legislation. State its importance in welfare state (Dec.2014]. OR Write short notes on : a) Sub-delegation /Apr.2002; Oct.2002]. b) Henry VIII Clause /4pr.2002; Oct.2002; Apr.2007; Nov.2007]. x c) Conditional legislation /Apr.2007; Nov.2009). d) Forms of delegation /Nov.2010]. Answer : It may be noted that, the nature and scope of delegated legislation changes from Statute to Statute. However, delegated legislation may be broadly classified into certain categories. ‘The various types or various kinds of delegated legislation legislation are summarised as under — a) Delegation in favour of local authorities. b) Delegation in taxing legislation. ©) Conditional delegated legislation. 4) Sub-delegationted. tute. 39. Author ~ Prof, Prakash K. Mokal. A) Delegation in favour of local authorities : The local authorities include Municipalities, Panchayats and Local Boards, These local authorities are the democratic institutions which are managed and controlled by elected representatives of the people. These local authorities are subordinate in nature. Local authorities can be regarded as sub-divisions or agencies assigned with the work of exercising the part of Government affairs or part of functions of the State. These local authorities are required to carry out various statutory functions requiring money for performance of such statutory functions. In such situation, the local authorities have been empowered to impose taxes, collect taxes. Such delegation to collect and impose taxes must only be used for the purposes mentioned in the Statute under which such local authorities have been delegated the power to make rules, regulations and buy laws. There is also a very liberal attitude adopted by the judiciary with regard to delegation of legislative power in favour of local authorities. B) Delegation in Taxing Legislation : It is one of the important kind or type of delegated legislation under Article 265 of the Constitution f India. The power to impose tax is a legislative function, and therefore, tax can be levied or collected ly by authority of law and the term “Law” used in the “authority of law” means, law enacted by the zislature and not that law in the form of rules, regulations, bye-laws, made by the executive authority, However, if the legislative policy is made, accordingly the power to fix a rate of tax may be legated to the executive authority. The taxing legislation must be strictly construed, Whenever the rovisions of taxing Statute are ambiguous or not clear, the interpretation of such taxing Statute must be favour of the assessee. ') Conditional delegated legislation : Conditional delegated legislation means, when a Statute which provides control, but the same Statute can be put into effect only if a given administrative authority fulfils the condition specified in that Statute. In this kind or type of legislation, the law is enacted by the Legislature. Such law enacted by the sgislature which is complete and full and clear in all respects, but the law is not put into force and it is to the executive authority to put such law into force or put into operation subject to fulfilment of some ition. In such situation, it is known as conditional delegated legislation. In other words, the legislation enacted by the Legislature depends upon the fulfilment of some ditions for putting the same into force or operation at the initiation of the executive authority. Such islation is called “conditional delegated legislation”. ~ )) Sub-delegation : The term “sub-legislation” means, when a Statute confers some legislative power on an executive jority, and such executive authority further delegates the powers conferred on such executive authority a Statute to another subordinate authority, such delegation is called sub-delegation. In other words, sub-delegation, a delegate further delegates the powers conferred. um plc Essential Commodities Act, 1955 is an important example of sub-delegation. The Central yvernment is empowered under Section 3 of this Act to make rules. This is the first stage delegation of jelegation. The Central Government is empowered to delegate its power to its office, the State ernment and their officers. This is the second stage delegation of sub-delegation, and if the power is er delegated by the State to its officers, this would be the third stage delegation ie. (sub-delegation). ity : necessity is to be supported on the following grounds — Power of delegation has the power of sub-delegation. Sub-delegation is inclusive of delegated legislation.Author — Prof. Prakash K. Mokal. Case Law : Dwarka Prasad v/s. Central Talkies, AIR. 1961 S.C. 606— In this case, the U.P. (temporary) Control of Rent and Eviction Act provided that, the permission of District Magistrate or any other person authorized by him, is necessary to file a suit under this Act. This case refers to sub-delegation, because, the Statute itself authorises the administrative authority to sub-delegate its power. Allingham v/s. Minister of Agriculture, (1948) All E.R. 780 — In this case, the Committee was empowered by the Minister of Agriculture to issue direction However, the powers to issue direction was sub-delegated by the Committee to its’ subordinate officer who issued the direction. The direction issued by such subordinate officer was challenged. It was observed by the court that, it was permissible to sub-delegate power to issue direction, because, there was: not any provision to this effect in the Act. Therefore, the sub-delegation in this case was ulfra vires. Delegation in Taxing Legislation : It is one of the important kind or type of delegated legislation under Article 265 of the Constitutio of India. The power to impose tax is a legislative function, and therefore, tax can be levied or collected: only by authority of law and the term “Law” used in the “authority of law” means, law enacted by the Legislature and not that law in the form of rules, regulations, bye-laws, made by the executive authority. However, if the legislative policy is made, accordingly, the power to fix a rate of tax may be delegated to the executive authority. The taxing legislation must be strictly construed. Whenever the: provisions of taxing Statute are ambiguous or not clear, the interpretation of such taxing Statute must be in favour of the assessee. In this kind of delegated legislation, there is a delegation of power from one executive authority another subordinate authority. In other words, when a Statute provides some legislative powers to executive authority and such executive authority further delegates those powers conferred upon it by Statute to another subordinate authority or agency, such delegation is known as “Sub- delegation”. E) Henry VUI Clause : Henry VIII Clause in relation to delegated legislation means that, the executive is empowered t vary the provisions of the Act itself. Henry VIII Clause is also called as “exceptional delegation”, The expression “Henry VIII Clause’ refers to ‘Executive Authority’. Generally, any Legislat while delegating its law making power to the Executive, does not confer power to amend or vary th parent Act. But if the clause is inserted to confer such power to change the existing law, such delegate legislation is known as Henry VIII Clause type of delegated legislation. Under this clause, very wide powers are given to the administrative agencies. - A few examples of Henry VIII clause types of delegated legislations are found in Sections 120 an 128 of the State Reorganisations Act, 1956, which authorises the appropriate Government to mak changes in the existing law to facilitate its application to any new formed State ..... Henry VIII was Monarch of England from 1509 to 1547, but he was regarded as impersonation of executive autocracy. During his regime, he faced numerous difficulties in enforcing his will. To remove difficulties, hi assumed all powers of legislature with him. iff King Henry the VIIIth sueceeed in removing all the difficulties in the enforcement of his will by resorti to this type of delegation, e.g. National Insurance Act, 1911 in England. The Henry VIII Clause type delegated legislation should be conferred on the executive only in the exceptional caces to remo difficulties.Trading Company v/s, Mill Mazdoor Union, AIR 1967 SC 497, 0.12: Explain the classification of delegated legislation, Answer Clissification of d legislatic ‘The delegated legislation has been classified into the following categories — a) Title based classification; b) Purpose based classification; ©) Authority based classification: 4) Discretion based classification, 1) Title based classificati ted legislation : Delegated legislation is classified as the “ttle baeod classification” when the delegated legislation is in ihe form of rules, regulations, notifications, bye laws orders, ordinances, directions, schemes, etc Title based classification of delegated legislation oes according to the name of the rules, regulations, bye-laws, schemes, notifications, orders, ordinances, directions, etc 2) Purpose based classification of delegated leg lation : When the classification of delegated legislation is based on the nature, and extent of Power which is conferred upon the administrative authority, and the purpose for which such Power conferred upon the administrative authority is to be exercised, such classification of delegated legislation is known as ification”. éxtending the provisions of the Act to other areas, excl the purpose of suspending or modifying the provisions of te Act. In other words, the activities carried ont by the administrative authorities are confined to some Purpose, it is known as purpose based classification of delegated legislation, con authorised under some Statute, such legislation is neon as 'gent legislation, and therefore, it is called “discretion baced classification of delegated legislation”.Author — Prof, Prakash K. Mokal. Q. 13 : Define delegated legislation and Explain Legislative and Parliamentary control over delegated legislation /Apr. 2013]. OR Write short notes on : a) Legislative control of delegated legislation /4pr.2005; Nov.2005; Apr.2011]. b) Parliamentary control over delegated legislation /Apr.2000; Apr.2009; Nov.2012). Answer : The term “delegated legislation” is difficult to define with precise and exact definition, In the common parlance, “delegated legislation” means, the law made by a department or administrative authority which has been delegated legislative power by the legislature under some Statute. In other words, the executive authority making the legislation is subordinate to the legislature. Such authority is empowered by the legislature under some Statute to legislate or to make laws, When such authority makes laws under some Statute, the law made by such authority within the framework of the Statute is called “delegated legislation” Definitions of “delegated legislation’ Salmond — According to Salmond, “delegated legislation” means, a legislation which proceeds from any authority other than the supreme power, and such authority is dependent for its continued existence and validity upon the supreme power. Mukharjee J. Justice Mukharjee critically comments on the delegated legislation. According to Justice Mukharjee, “delegated legislation” is such an expression which includes abundance of confusion and it works as an excuse for the legislators, protection for the administrators and an act for provoking the constitutional jurists. Ina simple language, when the executive authority which is subordinate to supreme or sovereign power, makes the law in the forms of rules, regulations, bye-laws, then such legislation is called “delegated legislation”. Similarly, “delegated legislation” may also be defined as ~ “Any organ or authority subordinate to legislature or other than legislature, has been assigned the function of legislation by the legislature itself, and when such organ or authority makes the legislation, such’ legislation is called “delegated legislation”. 7 Legislative Control or Parliamentary Control over delegated legislation : It is the duty of the Legislature to ascertain and ensure that the powers are properly exercised by the administrative authority or executive authority to which the powers have been delegated by the legislature. The object of legislative control or parliamentary control is to supervise and control the actual exercise of delegated powers and to keep watch over such executive or administrative authority and to avoid abusive and unwarranted use by the executive or administrative authority. Modes or Types of Legislative or Parliamentary Control : a) Laying on the Table; b) Scrutiny Committee; ©) Debates.Author — Prof. Prakash K. Mokal. Tt is one of the important modes of exercising legislative or Parliamentary control over delegated “Laying on the Table” means, the rules, regulations and bye-laws made by the executive or strative authority under some Statute must be placed on the table of the House. This “Laying on the Table” may mean various things, such as, communication or information of es to the Parliament. It may also mean that the delegated legislation ceases to have effect, if a passed by the House disapproving it, or it also means the non-compliance of laying before the =, renders the delegated legislation as invalid. “Laying on the Table” works as “safety valve” through which legislative exercises supervision, er and adequate control and checks over rule making power of executive authority. It also establishes ‘and constant contact between delegated legislative power and administration. following two purposes ‘provides information to the legislature regarding the legislation made by the executive authorities in ise of delegated legislative power. ‘gives an opportunity to the legislators to challenge the legislation already made by the executive ities or also to question and challenge the legislation which is proposed to be made by the executive Tt is another important mode of exercising legislative or parliamentary control over delegated sion. It is necessary that, the legislations made by the executive authority are required to be studied, ised properly to ascertain and ensure the validity and propriety i.e. faimess, properness of such in. Such validity and propriety of legislation made by executive authorities under some Statute is ‘and scrutinised by the Scrutiny Committee, and therefore, in order to strengthen the legislative or tary control over the delegated legislation Scrutiny Committees are established. following two scrutiny Committees are established in India — Lok Sabha Committee on Subordinate Legislation. Rajya Sabha Committee on Subordinate Legislation, The above Committees viz. Lok Sabha Committee and Rajya Sabha Committee exercise tive or Parliamentary control over the delegated legislation. iny Committee” serves the following purposes It scrutinises and reports to the respective House regarding proper compliance and exercise of powers by the executive authorities conferred by some Statute or by the Constitution or delegated by Legislature or Parliament. It exercises and ensures legislative and parliamentary control over the delegated legislation by acting as watch-dogs. It avoids infringement or violation of the Statute or Constitution by making timely and appropriately intervention by scrutinising the legislation made or legislation proposed to be made. >) Debates also an important mode of exercising legislative or parliamentary control over delegated tion. In fact, debate is the common method which is used not only for delegated legislation but any er matter. The legislative o parliament control over delegated legislation by means of debates is exercised as The statutory provisions in connection with the delegated legislation are fully discussed and debated. The debates include placing and raising question relating to delegated legislation by any member of the Legislature or the Parliament.Author — Prof. Prakash K. Moke iii) The debates include resolution or motion moved for immediate attention of the House by the member of Legislature or Parliament in connection with delegated legislation. iv) The debates include an attempt with the help of the Bill for seeking modification in the Statute under which the executive authorities are empowered to make rules, regulations and bye-laws. Q. 14 : What is delegated legislation ? Explain the Judicial control over the delegated legislation. /Apr.2005; Nov.2006; Apr.2009; Nov.2010; May,2012; Apr.2014; Apr.2015; Apr.2016}. OR Define delegated legislation and explain its constitutionality /Nov.2005; Apr.2006]. OR Discuss the advantages and disadvantages of delegated legislation /Apr.2002; Apr.2004]. oR “Delegated Legislation is a necessary evil” — Explain /Oct.2002; Apr.2003; Nov.2007; Nov.2011). Answer : It is a common feature to be observed that legislative powers are delegated to the executiv authority by the Legislature, and the possibility of eminent and inherent danger of abuse or mala-fi application of such powers by the executive authorities cannot be ruled out. In other words, inher danger of abuse of such powers exists. Therefore, the need of controlling the delegation of powe ‘acquires importance in the form of control over such delegated legislation. Control of delegated legislation means, restrictions placed upon the delegated legislation in the fo of legislative control or judicial control or other control over the delegated legislation. When the courts exercise control over the delegated legislation it is commonly called as judici control over the delegated legislation. In other words, the courts decide and examine the validity propriety. (ie. proper, just, and fair) of delegated legislation, because, the delegated legislation is with the ambit of judicial review. 7 While controlling delegated legislation, the judiciary has come out with certain principles, Tite m important principle is that, Legislature should not delegate its essential functions to any executi authority or agency of the Goverment. Such delegation would be unconstitutional. Sometimes, powers delegated may be constitutional, but the executive authority or agency to which the powers ha been delegated under some Statute may make an excessive use of such power which may lead infringement or violation of fundamental rights. The ry exercises control over delegated legislation on the basis of the following No essential legislation power can be delegated; No excessive delegation; ii) ‘Ultra-vires — a) substantive ultra-vires; b) procedural ultra-vires.