Module 1

02 June 2022
10:54
Laissez faire to Welfare state
 Laissez faire- refers to the ruling gospel of the 19th century when the transactions between
parties were not subjected to any government intervention-- based on the facets of
minimum govt control, individualism, contractual freedom, maximum free enterprise--
purpose of the state was just to maintain law and order internally and protect the state from
external aggression, management of social and economic life was not the concern of the
state-- result, contractual exploitation of weaker sections, slums, dangerous workplaces,
concentration of wealth in a few hands , etc
 Welfare state- the state recognised the need to take active interest in these issues-- started
to act in the interests of social justice, intervened and regulated individual enterprise--
assumed a "positive role"-- "social welfare state" emerged which emphasized on the role of
state as a vehicle of socio-economic regeneration and welfare of the people.--- Growth of
administrative law is to be attributed to the change of philosophy as to the role and
function of state.-- According to Kent, ‘A welfare state is a state which provides for it’s
citizens a wide range of social services’.
Eg. Directive principles, Preamble, Part III and IV of Constitution etc
 Welfare state involves taking actions for the benefit and welfare of the society at large,
these actions can be categories into:
o Essential/Compulsory actions- includes maintaining law and order, protection from
external invasion, foreign policy, delivery of justice, protection of life and person
o Optional actions- which, although optional, is the essential activities of a welfare
state, categorised into economic, social, political, cultural, and physical welfare. Eg.
Pradhan mantri awas yojna, atal pension yojna, midday meal scheme, etc

"the attainment of socio-economic justice being a conscious goal of state policy, there is a vast and
inevitable increase in the frequency with which ordinary citizens come into relationship of direct
encounter with state powerholder. The Administrative law is an important weapon for bringing
about harmony between power and justice."

Doctrine of Parens Patriae

 ‘Parens patriae’ is a Latin term meaning ‘parent of his or her country’.
 Origin- British Law in 13th Century
 parens patriae is the inherent power and authority of a State to provide protection to the
person and property of persons non Sui juris, such as minor, insane, and incompetent
persons. Today, this term is used to designate the State referring to its sovereign power of
guardianship over persons under disability.
 Heller vs DOE- “The State has a legitimate interest under its parens patriae powers in
providing care to its citizens who are unable to care for themselves.”

 State of Kerala v. N.M. Thomas, it has been categorically held that the Court is also ‘State’
within the meaning of Article 12 of the Constitution of India. Thus, Court can also act as
Parens Patriae so as to meet the ends of justice.
 Shafin Jahan v. Asokan K.M. [2018], Parens patriae (Parent of the Nation ) is a doctrine
defining the role of a sovereign or state as the protector of the people, especially those who
are incapable of caring for themselves.
 Right to life and parens patriae-
 o Gain Kaur V. State of Punjab, ‘Right to life does not include right to die’.
o Vikram Deo Tomar V. State of Bihar- ‘the right to live with human dignity is the
fundamental right of every citizen, right to life does not include right to die’.
 Different legislations-
The Medical Termination of Pregnancy Act, 1971-
The Indian Lunacy Act, 1912
The Mental Health Act , 1987
The Legal Services Authorities Act, 1987
Juvenile Justice Act, 2015
o Ashwani Kumar Saxena v. State of Madhya Pradesh- ‘Juvenile Justice Boards and Child
Welfare Committees were reminded of their duty under the Act and their role as parens
patriae on account of their authority of guardianship over minors who from their legal
disability stand in need of protection.’

Administrative Law
Definitions
 Ivor Jennings, ‘administrative law is the law relating to the administrative authorities".
 K. C. Davis , ‘Administrative law as the law concerns the powers and procedures of
administrative agencies, including especially the law governing judicial review of
administrative action’.
 Garner, "Those rules which are recognized by the court as law and which relates to and
regulate the administration of government.“
 Schwartz, ‘ Administrative Law divided into three parts-
i) Powers vested to the administrative authority
ii) exercise of these powers
iii) Remedies available against the unlawful administrative actions

Nature and scope

According to Jain and Jain, "Administrative Law deals with the structure, powers and function of the
organs of administration, the limits of their powers, the methods and procedures followed by them in
exercising their powers and functions, the method by which their powers are controlled including the
legal remedies available to a person against them when his rights are infringed by their operation"---
3 main facets:
o Powers and function:
 Quasi legislative function-Law making powers-- How to differentiate administrative
law making power and legislative law making power-- Generality and futurity test--
 Generality test- refers to the scope of application of the law in question-- if
the law is very general and applies to a large number of persons it is an
outcome of legislative law making power-- if the law is only applicable in
specific individuals or situations, it is the outcome of an administrative law
making power
 Futurity test-
Union of India V. Cynamide India Ltd., ‘A legislative act is the creation and
promulgation of general rule of conduct and while administrative act is the making
and issue of specific directions or application of general rule for particular case.’

 Quasi Judicial function- refers to the adjudicatory power of administrative agencies- eg.
Disciplinary actions against employee, determination of citizenship, forfeiture of pensions or
gratuity, Balu Ram v. UOI- ‘Taking away the electricity or telephone connection on failure to
 pay security deposit.’etc.-- mainly involving an administrativve body empowered by law to
adjudicate or decide on certain matters
Indian National Congress v. Institute of Social Welfare- quasi judicial powers of
administrative bodies include circumstances:
i) where a statutory authority empowered under a statute to do any act
ii) There is no lis or two contending parties and the contest is between the
authority and subjects
iii) the authority to required to act judicially

 Purely Administrative function- very difficult to distinguish from quasi judicial functions-- can
be said to be the residuary actions which are neither quasi-legislative nor quasi-judicial--
concerned with day to day functions, directions, administrative orders-- not general at all --
Can be categorised into ministerial power (functions which do not require or involve any
discretion) and Discretionary power( where there is a freedom to choose alternative actions)
Ram Jawaya Kapoor V. State of Punjab, ‘Executive power connotes the residue of
the governmental functions that remain after judicial and legislative functions are
taken away.’

o Procedure to be followed--
 Natural Justice
 Rule of Law
 Legitimate Expectation
 Proportionality
 Reasonableness
o Controls available-
 Judicial Control
 Parliamentary Control
 Publication/procedural control
o Remedies available-
 Constitutional Remedies- art 32 and 226
 Ordinary remedies- injunctions, damages, etc.

Significance
 Due to the shift from laissez faire to welfare state, government needs to have widespread
pervasive policies which will monitor the activities of the people.-- hence it becomes
increasingly important that in doing so, the government or the State exercises genuine care
in seeing to whether the individual's rights are hampered in the process-- to regulate the
actions of the state, hence, administrative law is vital--Continuous experimentation and
adjustment of detail has become essential requisite of modern administration. If a rule is
found to be unsuitable in practice, a new rule incorporating the requisite changes is put in
place, without much delay. This flexibility is what widens administrative law and makes it
significant in our lives. Administrative laws not only puts law into effect but does much more
than that.

Relationship between Administrative law and Constitutional law

 Both are parts of public law-- constitutional law is anti-majoritarian, admin law is anti-
authoritarian
  In a constitutional democracy, power is limited by express or implied constitutional
limitation and values, in admin law, exercise of constitutional power is limited by norms and
principles of admin law of fairness, reasonableness and justness. Administrative law
makes constitutional governance public-centric and the State incrementally ethical.
 According to Holland-
Constitutional Law describes the various organs of the government at rest, while
Administrative Law describes them in motion. Thus, the various constitutional organs come
under constitutional law, but their functionalities are governed by administrative law.
 According to Jennings-
Constitutional Law deals with fundamentals while Administrative Law deals with details--
admin law deals with the organisation, functions, powers and duties of administrative
authorities while constitutional law deals with the general principles relating to the
organisation and powers of various organs of the State and their mutual relationships and
relationship of these organs with the individual.
 According to Robson-
Constitutional Law speak with rights while Administrative Law lays emphasis on public needs.

 The correct position seems to be that if one draws two circles of administrative law and
constitutional law, at a certain place they may overlap and this area may be termed as the
"watershed" in administrative law.
 Watershed area in India may include the control mechanisms provided in the constitution
(Articles 32, 136, 226, 227, 300 and 311) and also include the study of administrative
agencies provided by the constitution itself like Inter State council, Election Commission,
Public Service Commission, etc. And also include constitutional limitations on delegation of
powers to the administrative authorities and also those provisions of the Constitution which
place restricts administrative action, i.e. fundamental rights.

Development of Admin Law (huuuuggeee)(im leaving this not

worth it)

Droit Administratif
 In France, Droit Administratif can be defined as a body of public law which determines the
organisation and the duties of public administration, and regulates the relations of the
administration with the citizens of the State

 In 18th century France, Napolean Bonaparte recognised the need to give relief against the
ill-actions of the administration --- Introduced the Conseil d'Etat which attempted to resolve
difficulties relating to adminstration-- later started hearing individual cases and started
adjudicating in matters related to administrative disputes--- emergence of a dual court
system- one for administrative laws, another for other laws
 Droit administratif consists of the laws of administration developed by the administrative
courts of France-- it included the following series of rules:
o Rules dealing with administrative authorities and officials: appointment, status,
dismissal, etc
o """""" operation of public services to meet the needs of citizens: assisting or wholly
controlling such activities
o """""" administrative adjudication- adjudicating in matters where wrong is done to
an individual through an administrative action/inaction--- to be done by the
administrative courts
  In case there is a conflict between administrative court and ordinary court, it is to be settled
by the Tribunal des conflict

Rule of Law
Meaning
 The term "rule of law" is derived from the French phrase la principe de legalite (the principle
of legality) which refers to a government based on principles of law and not of men. In this
sense the concept of la principe de legalite was opposed to arbitrary powers.
 Rule of law in a general sense refers to the statement that law is supreme and no one is
above the law--- it is opposed to the idea of dictatorship or autocracy
 Concept of rule of law first seen in 1215 Britain when King John signed the Magna Carta
indicating the consent of the Monarchy of England to be under the law and the law to be
supreme
 Modern day concept developed by dicey. Dicey's rule of law:
o Absence of discretionary powers of the govt official--- presence of discretionary
power means room for arbitrariness
o Persons to be punished only for the breach of law and nothing else-- this also implies
that govt officials dont have special privileges, all persons are equal before the court,
everyyone is to be governed by the law laid down by the legislative
o Rights to be derived from customs and traditions of the people that are recognised
by the courts in the administration of justice

Application in India
 Kesavananda Bharati v. State of Kerala* (Kesavananda Bharati), the rule of law was
considered as an "aspect of the doctrine of basic structure of the Constitution, which even
the plenary power of Parliament cannot reach to amend"
 P. Sambamurthy v. State of A.P." categoricallystated that Article 371-D(5) (proviso) of the
Constitution clearly violates the rule of law which is a basic structure and essential feature of
the Constitution. This provision had authorised the Andhra Pradesh State Government to
nullify any decision of the administrative services tribunal.

 Som Raj v. State of Haryana that the absence of arbitrary power is the first postulate of the
rule of law upon which whole constitutional edifice is based. If the discretion is exercised
without any principle or without any rule, it is a situation amounting to the antithesis of the
rule of law.

 A.D.M. Jabalpur v. Shivkant Shukla- Rule of Law is antithesis of arbitrariness. Rule of Law is
now the accepted norm of all civilized societies.

 Maneka Gandhi v. Union of India- There must be a valid law---The law must provide
procedure---The procedure must be just, fair and reasonable---Satisfy the requirements of
Art. 14 and 19

Jaisinghani v. UOI- Absence of arbitrary power is the first essential of Rule of Law upon which
our whole Constitutional system is based.

A. K. Kraipak v. UOI- entire field of administration and every organ of the state is regulated by
the rule of law.

B.P. Singhal v. UOI- The supreme quality of the Rule of Law is fairness and legal certainty.
 Dr. Subramanian Swamy v. Director , CBI- Criminal justice system mandates that any
investigation into the crime should be fair, in accordance with law and should not be tainted.
Breach of rule of law, amounts to negation of equality under Art. 14

Glanrock Estate Ltd. V. The State of Tamil Nadu- Rule of Law closely inter-related principle of
separation of powers, judicial review, equality, liberty and restriction on the absolute arbitrary
power.

Doctrine of Separation of Power

 system of government in which the powers are divided among multiple branches of the
government, each branch controlling different facet of government.
 It is an animation of the rule of law and its roots also lie in the concept of natural law
because both aim at progressive diminution of the exercise of arbitrary power necessary for
protecting the life, liberty and dignity of the individual.
 Principles based on:
o Exclusivity principle, meaning structural division between three organs of the state
o Functional principle, which prohibits amalgamation and usurpation but not
interaction of all the organs of State
o Checks and balances principle, each organ to keep a check on the other to keep it
within constitutional bounds
o Mutuality principle-- promoting concord, not discord, cooperation not
confrontation, engagement not estrangement among different organs
The Supreme Court in Ram Jawaya Kapur v. State of Punjab held: "Indian Constitution has not
indeed recognised the doctrine of separation of powers in its absolute rigidity but the
functions of the different parts or branches of the government have been sufficiently
differentiated and consequently it can very well be said that our Constitution does not
contemplate assumption, by one organ or part of the State, of functions that essentially
belong to another"

Indira Nehru Gandhi vs Raj Narain- A rigid sense of separation of powers which has been
given under the American and Australian constitution does not apply to India.”
“ The separation of power is a part of the basic structure of the constitution. So, the schemes
of the constitution cannot be changed even after restoring Article 368 of the Indian
Constitution.”
Module 2
03 June 2022
09:52
Delegated Legislation
 Also known as administrative rule-making, quasi-legislative action, outsourcing of law-
making power
 "Delegate" derived from the Latin term "delegare" which means to pass power, to give
responsibility or authority to another person or body.

 delegated legislation refers to all law-making which takes place outside the legislature and is
generally expressed as rules, regulations, bye-laws, orders, schemes, directions or
notifications, etc.
 In other words, when an instrument of a legislative nature is made by an authority in
exercise of power delegated or conferred by the legislature, it is called subordinate
legislation or delegated legislation.'
 Salmond defines delegated legislation as "that which proceeds from any authority other
than the sovereign power and is, therefore, dependent for its continued existence and
validity on some superior or supreme authority"
 So basically can mean two things: 1. the law making power of administrative agencies under
the power conferred to them by the legislature, and 2. the actual exercise of the law making
power in the form of rules, regulations, etc.

Development in UK
 First instance was Statute of Proclamation under which Henry VII was given extensive
powers to legislate by proclamations.
 Delegated legislation gained importance after the WW1
 Lord Hewert’s book ‘ New Despotism’ revealed the risks of delegated legislation and
compelled the British Government to create the Donoghmore Committee, which
recommended, inter alia, the creation of a select Committee on Legal Instruments, which
released its report in 1932 that delegation is necessary but with certain control mechanism
because:
1. The legislature (Parliament) has. much pressure of work on its time.
2. The legislators lack the technical knowledge required by modern legislation.
3. Complexities & Contingencies in the law are to be specially dealt with.
4. Amendment of legislation is to be avoided.
 In England, Parliament is supreme and, therefore, unhampered by any constitutional
limitations, Parliament has been able to confer wide legislative powers on the executive.
However, sovereignty of Parliament does not mean that there are no principles to which the
practice of delegation must conform. The Committee on Ministers' Powers in its third
recommendation has suggested that the precise limits of law-making power which
Parliament intends to confer on a Minister should always be expressly defined in clear
language by the statute which confers it-when discretion is conferred, its limits should be
defined with equal clearness. Laying down of limits in the enabling Acts within which
executive action must work is of greater importance to England than to any other country,
because in the absence of any constitutional limitation, it is on the basis of those
parliamentary limits alone that the power of judicial review can be exercised.
Development and status in USA
 USA strictly follows the principles of doctrine of separation of power and its corollary,
deleagtus non potest delegare-- doctrine of separation has constitutional status-- recognised
to be an essential principle underlying the constitution and that power entrusted to one
dept should be exercised by that dept exclusively without encroaching on others' powers.---
but delegation of power is necessary, hence the power that is delegated is not legislative
power
Panama Refining Co. v. Ryan- U/s. 9 of the National Industrial Recovery Act 1933 the President
was authorized by the Congress tom prohibit transportation of oil – delegation was invalid –
Congress had not declared any legislative slandered.
Schechter Poultry Corpn. V. United States- Court struck down Section 3 of the NIRA, 1933 –
Presidents to approve codes of fair competition and violation thereof was made punishable.
Whiteman v. American Trucking Assn.- delegated power to Environmental Protection Agency
to promulgate air quality criteria- such revisions as may be appropriate – challenged – court
held that certain decree of discretion to the Agency could be allowed.

Delegated legislation India

Pre Constitutional period
 R vs Burah- act passed to remove Garo hills from civil and crim. Jurisdiction of Bengal, and
vvesting the powers with an officer appointed by the lieutenant governor of bengal-- LG
further authorised under section 9 to extend the provisions to Khasi and Jaintia hills. Held
section 9 unconstitutional on the ground that the Indian legislature itself is a delegate of
British Parliament, a delegate cannot further delegate-- The Privy Council on appeal reversed
the decision of the Calcutta High Court and upheld the constitutionality of Section 9 on the
ground that it is merely a conditional legislation--- two aspects- indian legislature is not a
delegate of British parliament, hence it had power to delegate OR only conditional
delegation was valid and delegation of legislative power was invalid.

Post Constitutional period (in consonance with "permissible and non-permissible delegation)
 In re Delhi Laws Act 1912- Three laws were to be examined : section 7 Delhi Laws Act (
delegated to the provincial government, the power to extend to Delhi area with such
restriction and modification any law in force in any part of British India.), section 2 Ajmer-
Merwara act( delegated the power to the government to extend to the province of Ajmer-
Merwara any law in force in any other province with such modification and restriction as it
may deem fit.) and Section 2 of Part C state laws act( delegated power to the Central
Government to extend to Part "C" States, with such modification and restriction as it may
deem fit, any enactment which was in force in any Part "A" State and repeal or amend any
law wwhich was applicable to part C states)
 Held :
o Doctrine of separation of powers not a part of Indian constitution
o Indian parliament is not an agent of any body, hence, the principle of delgatus non
potest delegare does not apply to first delegation
o Parliament cannot abdicate or efface itself by creating a parallel legislative body
o Power of delegation is ancillary to power of legislation
o The only limitation on delegation is that the legislature cannot part with its
essential legislative power that has been vested in it by the constitution, Essential
legislative power means laying down the policy of the law and enacting that policy
into a binding rule of conduct.
 Thus, delhi laws act valid, ajmer-merwara act valid , but part C state laws only valid except
the part where it is mentioned that the power to repeal an amend the law can be delegated
  Harishankar Bagla v. State of M.P- section 3 of essential supplies act 1946 authorised
central govt to make rules for the purpose of maintaining increased supplies of essential
commodities-- section 6 provided that orders made thereunder shall have effect
notwithstanding anything contained in the law for the time being in force--- held that
sectio 3 valid because there is sufficient clarity (and boundaries) within which the govt can
operate-- section 6 valid bec. It is not delegation of power to repeal not an attempt only to
bypass security, when provisions of different acts and this act is clashing

 Gwalior Rayon Silk Mfg Co. Ltd. V. CST- the challenged section was upheld by the 5 judges
observing that sufficient guideline was provided in the Act by the Parliament-- the
contention that a delegated legislation shall be valid if the legislature can repeal the act at
any time was declined by majority-- Mathew J accepted this contention and said that only
impermissible delegation was the delegation of arbitrary power by the legislature on a
subordinate body without having control over that body-- he later applied this principle in
the following case

 M.K. Papiah and Sons v. Excise Commr.- Laying of the rules before the legislature was a
sufficient check on the power conferred on the delegate. Justice Mathew observed that,
such control must be regarded as sufficient.
 Kerala Samsthana Chethu Thozhiali Union vs state of kerala- court upheld the majority view
in Gwalior rayon silk --state govt implied compulsory employment of arrack workers in toddy
shops-- for the purpose of their rehabilitation-- held:
o Against the common law and provision of specific relief act, such a rule making step
was not valid
o Administrative rules to be made in conformation with not only the enabling act but
also other plenary legislation made by the legislature
o Rules made by the delegated authority must strictly fall under the purview of the
legislative policy/guidelines of the enabling act
o That rehabilitation of retrenched workers is not within the ambit or scope of the
legislative policy of the enabling act
o A nexus between the rule and the policy and purpose of the act must be brought
out to determine its validity

Excessive Delegation
 Primary legislative functions cannot be delegated and such a delegation would amount to
excessive delegation-- only ancillary or incidental functions can be delegated
 Avinder Singh v. State of Punjab, the founding document of the nation (Constitution) has
created three great instrumentalities and entrusted them with certain basic powers-
legislative, executive and judicial. Abdication of these powers by any organ would amount to
betrayal of the Constitution itself and it is intolerable in law.

 Abdication-means the abandonment of sovereignty-- when legislature does not legislate and
entrusts that primary function to the executive or other agencies outside the legislature,
there is abdication of power-- but delegation of legislative power not always leads to
abdication, until there is some control over it-- abdication is to be determined as a question
of fact
 So the primary question while determining whether a delegation is excessive or not is based
on the fact that whether it involves the surrender of essential legislative function and
whether the legislature has enunciated its policy and principle for the guidance of the
executive
  Vasanlal Maganbhai vs State of bombay-
o Constitution confers a duty on legislature to make laws, it cannot abdicate its
essential function
o But in view of a welfare state, where a multitude of activities are to be taken up, it
cannot be expected to work out all details of a policy
o Thus delegation of some work, especially the working out of details is required
o It is for a court to decide whether the delegation crossed the limits

Permissible delegation
 Commencement- to appoint a day of commencement of the act to come into force.
 Supplying details- to collect information which is generally objective in nature-- a skeletal
legislation (one with very few sections and general principles of details to be supplied are
mentioned) is enacted for this purpose
 Inclusion- to include certain areas or group of people under the purview of a Act
 Exclusion- to exclude...
 Suspension- to suspend the application of some of the provisions of the act
 Application of existing laws- to apply certain laws of other states to given area without
modification
 Modification- modification of law can be allowed but take into account -- the need and
necessity, danger of misuse
 Prescribing punishments- maximum limit must be expressed by legislature, subject to
approval of state or central govt
 Henry VII clause (removal of difficulties)-little modification allowed if done in order to
remove difficulties-- but if too wide power, not allowed

Non-permissible delegation
 Essential legal funcions- in other words, legislature has to set down a legislative policy if
legislative power is delegated, and it is to be made sure that the delegation does not create
a parallel legislature
 Repeal of law- it is an essential legislative function
 Modification of important aspects- delegation of power to modify without limitation is not
permissible
 Exemption- delegation of power of exemption without setting down
norms/guidance/legislative policy is not permissible
 Henry VII clause (removal of difficulties)- only allowed in moderation, if essential legislative
function delegated in the guise of removal of difficulties, not permissible
 Retrospective operation-power to give an Act retrospective effect cannot be delegated
 Future acts- the power to adopt existing laws from different states to the concerned
state/area can be delegated but power to adopt and apply future laws cannot be delegated

 Hamdard Dawakhana v. Union of India- section 3 of the drugs andmagic remedies act
(which sought to check the mischief done by frauds promising cure of certain specific
diseases by magical or bogus methods) empowered the central government to add to the
list of diseases any other disease-- held that the act is to be struck down since it was an
excessive delegation of legislative powers-- the decision of the court is certainly not in line
with its earlier approaches because the clear mention of certain diseases in the list could
have supplied the standard and criteria for the selection of other diseases
Case laws:

 Gammon India Ltd vs Union of India- Held that an act which empowered the central
government to make provisions which are not in contradiction with the provisions of the act
itself in order to remove any difficulties or as appeared to cause expediency is valid because
it simply authorises the remove the difficulties which may arise in the implementation of the
law.
 Kerala SEB vs Indian aluminium co ltd- Court upheld the validity of section 3 of Kerala
Essential articles control act, whereby the government was empowered to declare if an item
was "essential article" with context to the act-- because there was sufficient policy to guide
the discretion of the administrative authority was provided.
 Charan Lal ssahu vs uoi- legislative policy/guidance was found to be present in the purpose
of the act.
 AN Parasuram vs state of TN- legislative policy not found, hence held ultra vires

 However if the power delegated is of quasi judicial nature such policy/guidelines not
requireed, Workmen vs Meenakshi Mills

 M.P. High Court Bar Association v. Union of India- Court held that, legislature can neither
create a parallel legislature nor destroy it’s legislative character. Delegation of ancillary and
subordinate power necessary for carrying out policy and purpose of the Act.

Control (system of checks on administrative functions)

1. Parliamentary control- just like every delegate is subject to the authority of the principal, the
delegated power must be under the control of the principal-- parliament's exercise of
control over delegated legislation is a constitutional requirement.-- delegation of power is
not only the right of the legislature but it also attracts an obligation to monitor the actions of
the executive in exercise of such power (MP jain)-- two types
a. Direct general control- debates on the Act, questions and notices relating to
delegation, moving resolutions and notices, vote of grant, introducing Bills for
modification, repeal etc.
b. Direct special control- "laying" of rules and regulation made in exercise of delegated
power on the table of the House:
i. Laying with no further directions- laying with the purpose of only to inform
the legislature, rules gain force as soon as laid
ii. Laying subject to negative resolution- rules come into force as soon as laid,
but cease to have effect if annulled by a resolution in the House
iii. Laying subject to affirmative resolution- may take two directions-- rules will
have no effect unless approved by a resolution by each House of the
Parliament OR rules shall cease to have effect unless approved by
Parliament
iv. Laying of draft subject to negative resolution- draft placed-- shall come into
force within 40 days of laying, unless disapproved before that period
v. Laying of draft subject to positive resolution- draft placed-- shall have no
effect unless approved
 Narendra Kumar v. Union of India the Supreme Court held that the provisions of Section
3(5) of the Essential Commodities Act, 1955 which provided that the rules framed under
the Act must be laid before both Houses of Parliament, are mandatory

Atlas Cycle Industries Ltd. v. State of Haryana- court held laying provision in present case
not mandatory-- laid down guidelines to determine mandate: 1. absence of any
provision for meeting the contingency of the provision not being complied with; and 2)
serious general inconvenience and prejudice that would result to the general public if
the act of the government is declared invalid for non-performance with the particular
provision.
MK Papiah and Sons vs Excise Commissioner- held that power of legislature to annul or
repeal rules subsequently after their laying down and coming into force was sufficient
control and the rules were valid.
C. Indirect control- through the committees-- Eg. Committee on Subordinate Legislation-- main
functions to check :
i. Whether rules are in accordance with general object of the act
ii. Whether rules contain any matter which could have been better dealt with
iii. Whether it contains imposition of tax.
iv. Whether it directly or indirectly bars the jurisdiction of the court.
v. Whether it is retrospective.
vi. Whether it involves expenditure from the Consolidated Fund.
vii. Whether there has been unjustified delay in its publication or
viii. laying.
ix. Whether, for any reason, it requires further elucidation

The committee has scrutinised about 5300 orders and rules and has submitted 19
reports
Similar committee in rajya sabha reported:
 Power of judicial review should not be taken away
 A financial levy or tax should not be imposed by rules.
 Language of the rules should be simple and clear and not complicated or ambiguous.
 Discriminatory rules should not be framed
 Rules should not be travel beyond the Parent Act
 Defects should be cured as soon as possible
 Sufficient publicity must be given to the statutory rules and orders.

2. Judicial Control- judicial review of administrative rules and the enabling act as well-- thus,
rules or acts can be considered ultra vires on two aspects-- substantive ultra vires or
procedural ultra vires:

a. Substantive Ultra vires- three possibilities:

i. That the Enabling Act is ultra the Constitution- when the essential legislative
powers have been abdicated (implied limit)-- or there is a possible injury to
fundamental rights and other such norms; example, art 246 states that no
legislature has the competence to violate the scheme of distribution of power given
in the constitution(expressed limit)
Chintamanrao V. State of M.P. (on expressed limit)- The Deputy Commissioner
imposed a total ban on the manufacture of bidis. According to the SC this
amounted to unreasonable restriction on the exercise of the fundamental rights
and hence both the commissioner’s order and the Act are ultra vires the
Constitution.
 In Re Delhi Law Act(on implied limit)- The legislature cannot delegate its essential
power – laying down policy and enacting that policy, to any other agency and if it
so delegates the Enabling Act will be ultra vires the Constitution.

ii. The administrative legislation is ultra vires the Constitution-Narendra Kumar vs UOI-even
when the enabling act is intra vires, that does not ensure that any rules made thereunder
will not violate any provision of the constitution, thus the constitutionality of a delegated
legislation must also be taken into consideration-- Himat Lal vs Commr. Of police - section
33(1) of bombay police act empowered commr of police to make rules for regulation of
conduct and behaviour of assemblies-- commr of police made a rule mandating the prior
permission of commr of police for a public meeting-- held this rule was violative of article
19(1)(b) and hence, unconstitutional.

iii. That the administrative legislation is ultra vires the Enabling Act-
1. It is in excess of the power conferred by the enabling act- Dwarka Nath vs
Municipal corporation- article 23(1) of prevention of food alteration act contained
the provision to make rules restricting food packaging and labelling food packaging
items with quantity and quality of the article-- rule 32 framed, which mandated the
mention of address as well-- held excess power
2. It is in conflict with the enabling act- In Ram Prasad v. State, the U.P. Panchayat Raj
Act, 1947 provided in Section 49 that every case triable by the Panchayat Adalat
must be tried by a Bench constituted in a manner laid down in the Act. Rule 87
framed thereunder provided that three members of the Bench would constitute a
forum. This number was less than that provided under the Act. The court held the
rule invalid as being in direct conflict with the enabling Act.
3. It is in conflict with the procedure laid down by enabling act- Banwarilal Agarwalla
v. State of Bihar, the Mines Act, 1952 under Section 12 made it obligatory on the
Central Government to consult the Mining Board constituted under the Act before
making rules. The Supreme Court held that the rules framed without consulting the
Mining Board were invalid being ultra vires the procedure prescribed by the
enabling Act.
4. It is unreasonable arbitrary and discriminatory (tons of cases, some might come as
application questions)- In Air India v.
Nergesh Meerzal, the Supreme Court quashed the service regulation framed
by Air India which had provided for the termination of services of an air
hostess on the first pregnancy. The court held this regulation as most
unreasonable and arbitrary and interfering with the ordinary course of
human nature, and hence violative of Article 14 of the Constitution.
5. Mala fide- SP Mittal vs UOI- Held that introduction of Aurovilee (emergency Provisions) act
1980 was mala fide.
6. It conflicts with the terms of other statute- Kerala Samsthana Chethu Thozhiali Union vs
state of kerala-the impugned legislation was held to be violative of the Industrial Disputes
Act 1947, Contract Act 1872 and Special Relief Act 1963.
7. Vagueness- rules can be challenged on the ground of vagueness- MD University v Jahan
Singh- rule made by administrative authority does not lay down date of effect of the rule,
held can be challenged on the ground of vagueness.

 Effect of ultra vires- impugned legislation becomes null and void-- even the ratification of
the legislation cannot be sustained (Bar council of India vs Surjeet singh)
 Waiver of the rule- Waiver or relaxation of a rule is not permissible because it leads to
discrimination, arbitrariness and favouritism (State of Kerala vs K Prasad)
Sub-delegation
 When a statute confers some legislative powers on an executive authority and the latter
further delegates those powers to another subordinate authority or agency, it is called
“sub-delegation”. Thus, in sub-delegation, a delegate delegates.
 Barium Chemicals Ltd vs Company Law board- Bearing in mind that the maxim delegatus
non potest delegare sets out what is merely a rule of construction, sub-delegation can be
sustained if permitted by an express provision or by necessary impli- cation.
 Central talkies vs Dwarka prassad- relevant statute provided certain requirement of
permission from Dist. Magistrate or any other officer authorised by him-- DM appointed
ADM and delegated the power to him, held valid (expressly mentioned)
 A.K. Roy v. State of Punjab. In this case, the power to initiate prosecution for offences under
Section 20(i) of the Prevention of Food Adulteration Act, 1954 had been given to the State
Government. The Act had not authorised sub-delegation of power. Nevertheless, under Rule
3 of the Prevention of Food Adulteration (Punjab) Rules, 1958, the power of prosecution was
delegated to the Food Inspector. The court held sub delegation as ultra vires the parent Act.
(not expressly mentioned)
 However, when statute is very widely phrased and two or three tiers of sub-delegation is
absolutely necessary, it can be valid.
 All said, sub-delegation is heavily criticised

Problems of sub-delegated legislation-

 Dilutes accountability of administrative authority
 Weakens the safeguard granted by the Act
 Its difficult for sub-delegated authority to know the exact limitation of its power
 Publication of sub-delegated legislation has serious difficulties

Conditional Legislation
 conditional legislation may be defined as a statute that provides control but specifies that
they are to go into effect only when a given administrative authority finds the existence of
conditions defined in the statute itself-- whether or not there is fulfilment of certain
conditions is subject to the satisfaction of the delegated authority--- held as a valid
delegation of power, if rule making power itself is not delegated(which is not delegated
generally)
 " The legislature cannot delegate its powers to make a law; but it can make a law to delegate
a power to determine some fact or state of things upon which the law intends to make its
own action depend."
 In King Emperor v. Benoari Lal Sarma", the Privy Council for the first time upheld the validity
of the Governor General's Ordinance of special courts, which had delegated the power to
extend the duration of the ordinance on provincial governments in case of an emergency, on
the ground of conditional legislation. The Privy Council observed that it was a piece of
conditional legislation as the legislation was complete and what had been delegated was the
power to apply the Act on the fulfilment of certain conditions.
 Sardar Singh v. State of Rajasthan- The duration of ordinance was extended by issuing a
notification which was challenged before the court. The court upheld the provision as being
conditional legislation.
 State of T.N. v. K. Sabanayagam - Delegated legislation confers some legislative power on an
outside authority – there is chance to attract excessive delegation- but conditional
delegation- does not attract the excessive delegation.
 Bhatnagars Co. V. Union of India- Under section 3 of the Essential Commodities Act 1955
The Sugar Control Order was made by the Central Government. Under the order certain
functions and powers are conferred on the Textile Commissioner. Clause 10 empowered the
Textile Commissioner to authorised any officer to exercise on his behalf all or any of his
functions and powers under the Order. Here the subordinate authority has been conferred
with the delegated power but subject to certain conditions and the prior approval of the
commissioner.
Module 3
06 June 2022
11:57
Administrative Adjudication
Prof. White- Administrative adjudication means the investigation and settling of a dispute involving a
private party on the basis of law and fact by the administrative authority.
Prof. Dimock- Administrative adjudication as a process by which administrative agencies settle issues
arising in the course of their work.

Meaning/quasi judicial bodies

 According to Committee on Ministers' Powers, a pure judicial function presupposes an
existing dispute between 2 or more parties and has the following requisites:
o Presentation of case by the parties
o Ascertainment of facts by means of evidence and arguments thereof
o Submission of legal arguments (if dispute is a question of law)
o A decision which disposes of the whole matter by finding upon the facts in dispute
and “an application of the law of the land to the facts so found, including, where
required, a ruling upon any disputed question of law
 Quasi judicial refers to acts which has some of these attributes but not all of them--
generally they include points 1 and 2, and in some cases, 3 but never 4.
 In Administrative adjudication, the administrative authority is one of the parties

Reasons for growth/ need

 After independence India started growing exponentially and enacting numerous laws,
policies in various fields like education, health-- thus, administrative adjudication provided a
suitable method to reach new social ends espoused by a welfare state.
 Positive and prompt action, which is essential in the modern times, taken in administrative
adjudication, unlike ordinary courts
 Certain problems might be too technical for ordinary courts and require special knowledge
on part of the adjudicatory body, which is present in the case of administrative adjudication-
- ordinary courts are costlier, dilatory and cumbersome.
 Some cases related to public health and safety require prompt action

Problems
 Law is based on equality and uniformity-- such is absent in case of administrative laws-- as a
result it is difficult to come up with uniform principles and uniform applications in
administrative adjudication
 Large variety of procedures to be followed in presenting the dispute-- difficult for lawyer to
determine correct procedure (it can be mentioned in the act, or left to the discretion of the
administrative authority, or even in some statutory clause,e tc)
 Non-uniform system of appeal-- sometimes appeal to a higher admin authority or a tax
tribunal
 Not all admin agencies publish their decisions, hence it can escape public criticism
 No predictability
 Violation of rule of law because possibility of arbitrary decisions
 May Undermine the principles of natural justice
Tribunals
 Literal meaning- "seat of the judge"
 In admin law, refers to the adjudicatory bodies outside the sphere of ordinary courts of the
land
 The word tribunal is a term used for various types of administrative bodies, the only
common element running through these bodies is that they are quasi-judicial and are
required to observe principles of natural justice while determining issues before them.
 ‘Tribunal’ is an administrative body established for the purpose of discharging
quasi-judicial duties. An Administrative Tribunal is neither a Court nor an executive
body. It stands somewhere midway between a Court and an administrative body
 Frank's committee report:
o Tribunals are not ordinary courts but neither are they appendage to the
government depts
o They are rather a machinery laid down by the parliament for adjudication than a
part of machinery of administration.
o Primary function is to adjudicate
 In Indian context, thus, tribunals can have 3 meanings:
o All quasi judicial bodies, whether or not they are administrative
o Narrower approach- only such bodies are tribunals as are outside the control of the
department involved in the dispute, either because they are under the control of
some other department or because of the nature of their composition or because
they adjudicate on disputes between private parties
o Meaning under article 136- includes all adjudicatory bodies provided they are
constituted by the State and are invested with judicial, as distinguished from purely
administrative or executive functions. (Durga Shankar Mehta V/s Raghuraj Singh,)
 M.P. Industries v. UOI-
(1) They are necessary concomitants of welfare state.
(2) But arbitrariness in their functioning destroys the concept of Welfare state.
(3)The condition to give reasons introduces clarity and excludes or minimizes arbitrariness &
gives satisfaction to the party against whom order is made.
(4) A reasoned order is a desirable condition of Judicial disposal.

 Examples-
o National Green Tribunal - National Green Tribunal Act, 2010 dealing specifically with
matters related to environment protection.
o Water Disputes Tribunal - Inter-State River Water Dispute Act, 1956 for matters of
dispute in inter-state river water.

 Difference between courts and tribunals

 o

 Types of tribunals-
o Statutory tribunals- Tribunals set up under a statute-- eg Water disputes tribunal,
armed forces tribunal, national green tribunal
o Domestic tribunals- an agency created to regulate the internal discipline among the
members by exercising the adjudicatory powers.

Advantages of Tribunals:
a) Procedural rigidity in regular courts and speedy justice
b) Exigency of modern government (Courts cannot apply the law purely and simply, it
has to take into consideration policies as well, like socio-economic policies, financial
position of govt., foreign exchange position, etc.)
c) Specialisation and expertise
d) Easy accessibility and less expensive

Administrative Tribunals (need more material)

 Administrative tribunals act-
In pursuance of the provisions in Article 323A, Parliament passed the Administrative Tribunal
Act, 1985
 According to this Act, there must be a Central Administrative Tribunal (CAT) at the centre, a
State Administrative Tribunal (SAT) at the state level for every state and Joint Administrative
Tribunals (JAT) for two or more states combined.
 Main purpose is to relieve congestion in courts and lower the burden, and provide for a
speedier disposal of disputes relating to the service matters
 The act specifies the jurisdiction, procedure and functions of the tribunals
 Certain service matters such as appointment, tenure, remuneration, leave, disciplinary
matters are also mentioned
 o State of Maharashtra v. Chhaya- The Chairman has been empowered to constitute
the bench constituting of more than two members. There must be at least one
judicial member and one administrative member
 Important sections:
o Section-4 – Establishment of Tribunals- Central, State and Joint
o Section 8- Term of Office
o Section 10- Salaries and allowances
o Section 14- CAT
o Section 15- SAT
o Section 16- JAT
o Section 17- Power to punish
Section 22- Procedures and Powers-
Ajit Kumar v. State of Orissa- The same powers as are vested in a Civil Court under the Code of
Civil Procedure while trying a suit.
Duryodhan Sahu v. Jitendra Kumar Mishra- the tribunal established under the Administrative
Tribunal Act, 1985 can not entertained Public Interest Litigation.

Advantages:
Openness, Fairness, Impartiality, Absence of Technicalities of Evidence and
Procedure, Cheapness

Article 323A and 323B

 In 1976, Article 323A and 323B were inserted in the Constitution of India through the 42nd
Amendment.
 323A- “Parliament may, by law, provide for the adjudication or trial by administrative
tribunals of disputes and complaints with respect to recruitment and conditions of service of
persons appointed to public services and posts in connection with the affairs of the Union or
of any State or of any local or other authority within the territory of India or under the
control of the Government of India or of any corporation owned or controlled by the
Government”.

 323B- Tribunals for other matters-

(1) The appropriate Legislature may, by law, provide for the adjudication or trial by tribunals of
any disputes, complaints, or offences with respect to all or any of the matters specified in
clause ( 2 ) with respect to which such Legislature has power to make laws
(2) The matters referred to in clause ( 1 ) are the following, namely:
(a) levy, assessment, collection and enforcement of any tax;
(b) foreign exchange, import and export across customs frontiers;
(c) industrial and labour disputes;
(d) land reforms by way of acquisition by the State of any estate as defined in Article 31A or of
any rights therein or the extinguishment or modification of any such rights or by way of ceiling
on agricultural land or in any other way;
(e) ceiling on urban property;
(f) elections to either House of Parliament or the House or either House of the Legislature of a
State, but excluding the matters referred to in Article 329 and Article 329A;
(g) production, procurement, supply and distribution of foodstuffs (including edible oilseeds
and oils) and such other goods as the President may, by public notification, declare to be
essential goods for the purpose of this article and control of prices of such goods;
(h) offences against laws with respect to any of the matters specified in sub clause (a) to (g)
and fees in respect of any of those matters;
(i) any matter incidental to any of the matters specified in sub clause (a) to (h)
  Sampath Kumar vs UOI- Such tribunals will be considered substitutes of the High Courts ---
majority held section 28 of the Tribunals act (which excluded the power of judicial review
exercised by the High Courts in service matters under Articles 226 and 227) valid-- Minority-
It is constitutionally valid for Parliament to create an alternate institution to High Courts with
jurisdiction over certain matters provided that the alternate body has same efficacy as that
of the High Court. --question arises that whether actually tribunals have the same efficacy as
that of the High Court-- the tribunals actually were incompetent, lacked objectivity and
judicial approach-- post Sampath decision Arrears Committee- conducted in depth study
(1989-90)-- stated that tribunalisation of justice in our country is not satisfactory and
encouraging, hence serious consideration and research is to be done before ousting the
jurisdiction of the HC
 L Chandra Kumar vs Union of India- a division bench expressed the view that the decision in
sampath kumar needed to be "comprehensively reconsidered"-- matter referred to larger
bench of seven judges-- held that the power of judicial review is a basic and essential feature
of the constitution, article 226, 227 and 32 is part of the basic structure of the constitution--
parliament could not violate the basic structure of the constitution-- held section 28 of
Administrative Tribunals Act 1985 ultra vires and clause 2(d) of Art. 323A and clause 3(d) of
art 323B as unconstitutional---stated that although there is no bar to the formation and
execution of administrative tribunals, but they have to act in a supplemental manner,
instead of substitutional manner-- cannot act as substitutes of HC-- their decisions are
subjected to the scrutiny of relevant HC-- also held that appeals against tribunal decision will
no longer be entertained directly in the SC under article 136, there must be an appeal to the
HC (this view is criticised in the sense that the power granted to SC under Art136 must not be
circumscribed in any way- Bharat Bank vs Employees)

ARTICLE 323 CASES:

1. S. P. Sampath Kumar Etc. versus Union of India and Ors., 1986
 It is constitutionally valid for Parliament to create an alternate institution to High Courts with
jurisdiction over certain matters provided that the alternate body has same efficacy as that
of the High Court. Such tribunals will be considered substitutes of the High Courts.
 Appointments should be made either: (i) by the central government after consultation with
the Chief Justice of India, or (ii) by a high-powered selection committee headed by Chief
Justice of India or a current Supreme Court Judge or current Judge from the concerned High
Court.

2. L. Chandra Kumar versus Union of India and Ors, 1997

 A tribunal which substitutes High Courts as an alternative institutional mechanism for
judicial review (to lessen the burden on High Courts) must have the status of High Courts.
 Such tribunals will act as courts of first instance in respect of areas of law for which they
have been constituted. However, decisions of these tribunals will be subject to scrutiny by a
division bench of the High Court within whose jurisdiction the concerned tribunal falls.
 For a tribunal substituting a High Court, any weightage in favour of non-judicial members
would render the tribunal less effective and potent than the High Court.
 Only persons with judicial experience should be appointed to tribunals.
 To ensure uniformity in administration, a separate independent mechanism should be set up
to manage the appointment and administration of tribunals. Until such an independent
agency is set up, all tribunals should be under the administration of a single nodal Ministry
(such as the Ministry of Law)
3. R. Gandhi versus Union of India & Anr.
 Parliament may create alternate mechanism to High Courts on subject matters in the Union
List.
 There is no need of a technical member if jurisdiction of courts is transferred to the tribunals
solely to achieve expeditious disposal of matters. In any bench, technical members must not
outnumber judicial members.
 Only Secretary level officers with specialised knowledge and skills should be appointed as
technical members.
4. Madras Bar Association versus Union of India & Anr, 2014
 Group A or equivalent rank officers with experience in the Indian Company Law Service
(Legal Branch) and the Indian Legal Service (Grade I) cannot be considered for appointment
as judicial members. Such officers may be for considered for appointment as technical
members.
 Administrative support for all tribunals should come the Ministry of Law and Justice.
 Neither the tribunals nor their members must seek or be provided with facilities from the
respective parent Ministry or concerned Department.
5. Rojer Mathew versus South Indian Bank Limited & ors, 2019
 Judicial functions cannot be performed by technical members.
 Provisions to allow removal of judges by the Executive is unconstitutional.
 There should be a uniform age of retirement for all members of all the tribunals.
 Short tenures lead to control of executives over tribunals causing adverse effects on the
independence of judiciary.
 The impact of amalgamation of tribunals should be analysed with judicial impact
assessment.
6. Madras Bar Association versus Union of India, 2020
 National Tribunals Commission should be set up to supervise appointments, as well as
functioning and administration of tribunals.
 Members will have a term of five years instead of four years. Members will be allowed to
hold office till they reach 67 years of age (instead of 65).
7. Madras Bar Association versus Union of India, 2021
 The Court struck down provisions related to the four-year tenure and minimum age
requirement of 50 years for members.

Tribunal system reform/272nd law comm report

 Attempts at reforming the tribunal system has been done by:
o 74th Parliamentary Standing Committee Report on the “The Tribunals, Appellate
Tribunals and Other Authorities (Conditions of Service) Bill, 2014”
o Finance Act, 2017.
o 272nd Law Commission of India Report on “Assessment of Statutory Frameworks of
Tribunals in India”.
 74th parliamentary..- the committee presented a report on the Tribunals, Appellate
Tribunals and Other Authorities Bill 2014, and made following recommendations:
o Regulatory bodies not to be included in the definition of tribunals
o Retirement of Chairperson and members to be 70 years
o Tenure of members should be for a period of 70 years
o a regular appointment model should be adopted.
o Uniform grounds of removal
o A National Tribunal Commission should be set up.
  Finance Act 2017-
o merged 8 tribunals according to functional similarity, some are:
 The Employees Provident Fund Appellate Tribunal with The Industrial
Tribunal
 The Railways Rates Tribunal with The Railways Claims Tribunal
 The National Highways Tribunal with The Airport Appellate Tribunal
o Amended the provisions of parent statutes of 19 tribunals, to bring uniformity in
service conditions of chairpersons, members,etc
o Empowered central government to make rules on appointment, qualification, term
of office, tenure, etc.
o Apart from this, further recommended:
 Qualification of appointment of members
 Method of appointment--
 Term of office
 Maximum age of holding office
 Reappointment
 Removal of member from office
 272nd Law Commission -- “Assessment of Statutory Frameworks of Tribunals in India”--
o Suggestions made:
 Members of tribunals should have similar qualifications to that of judges of
the High Court
 Conditions on appointment, tenure and service conditions of members of
the tribunals needs to be standardised
 The Selection Board/Committee responsible for appointing members should
be headed by the Chief Justice of India or a sitting judge of the Supreme
Court or his nominee
 Vacancy arising in the tribunals should be filled within six months prior to
the occurrence of vacancy.
 Every order emanating from the tribunal or its appellate forum should attain
finality. Such orders can be challenged before the Division Bench of the High
Court having territorial jurisdiction over the tribunal or its appellate forum.
 The Central Government should bestow the function of monitoring the
working of the tribunals to a single nodal agency to ensure uniformity in all
affairs of the tribunals. The nodal agency should preferably be the Ministry
of Law and Justice

Problem with jurisdiction (high court vs tribunal)

 L Chandra Kumar vs UOI- appeal against tribunal decision to be made in HC first because;
o Direct appeal to SC was too costly for litigants, and hence inaccessible
o If appeal to SC was allowed, it would congest the proceedings of the SC
 Gujarat Urja Vikas Nigam Ltd. v Essar Power Limited- direct appeals to it from tribunals
resulted in denial of access to the High Courts thereby becoming a substitute for them
 Despite the existing precedent and Law Commission of India recommendations, there exist
tribunals which allow for a direct appeal to the Supreme Court in their parent statutes.
Module 4
08 June 2022
09:36
Administrative Directions
 Administrative Directions are instructions or regulations issued by the higher authorities to
the lower authorities in the absence of a rule or enactment pertaining to a specific issue or
to compensate or fill the lacunas in the existing laws and thereby constructing better
standards or platforms to tackle issues.
 The concept of Administrative directions has its roots in Article 73 and Article 162 of the
constitution, they serves as the substratum. (73- powers of Union executive, 162- powers of
State executive
 A direction issued under statutory power prevails over a direction issued under general
administrative power.
 A direction does not confer any enforceable rights on an individual, or impose an obligation
on the Administration or individual. But, this doesn’t mean that, administrative authorities
may disregard them with impunity. The authorities are expected to follow the directions and
their breach by them may lead to disciplinary or other appropriate actions against them.
 Jagjit Singh vs State of Punjab- it was decided that the general practice was that if SC/ST
candidate is terminated an eligible candidate belonging to the same community must be
appointed on ad hoc basis. Instructions contrary to such a practice were held to be invalid.
The court’s opinion made it clear that instructions cannot contravene or supersede statutory
rules but rather augment the rule or regulation.

 Mahadeo Bhau Khilare v. State of Maharashtra- a scheme framed by an administrative

instruction in violation of statutory rules cannot be sustained.

 Need for admin. Directions-

o Means to inform people regarding the dynamic policy decisions of government
o issued in order to fill the lacunas in administrative arena and to meet the
exigencies.
o Union of India v Rakesh Sharma observed that, if the rules are silent on any point the
Government can fill up the gaps and supplement the rules by issuing instructions not
inconsistent with the rules.
o Also used to lay down procedure for various purposes
o directions may serve the purpose of providing some criteria which may be followed
by these officials in discharging their functions so that there will be a uniformity of
approach in disposing similar cases

 Unenforceability of directions-
o J R Raghupathy v State of Andhra Pradesh, here the state government had the
statutory power to decide locations of mandal headquarters. Subsequently, the
government asked the Collectors to send proposals for this purpose for
consideration of the Government. The Government issued certain guidelines to the
Collectors to keep in view while making proposals. Subsequently, there arose a
question as to the nature and enforceability of the guidelines issued by Government.
Supreme Court held that, guidelines were not enforceable as these are merely
departmental instructions meant for the Collectors to regulate the manner in which
they should formulate their proposal and had no statutory force
o Prabhakar Reddy v State of Karnataka- it was laid down that, a direction is
unenforceable in the Court against either a person or the Administration. A direction
 neither confers any enforceable right on a person, nor imposes an obligation or duty
on the Administration. Misconstruction or Misapplication of a direction by the
Administration does not amount to an error of law.

 Enforceability-
o Based on facts and circumstances
o G. J. Fernandez v. State of Mysore- if there has been any breach of such executive
instructions that does not confer any right on any member of the public to ask for a
right against Government by a petition under Art. 226. It is a matter between the
State Government and its servant. (???)
o Khet Singh v Union of India the Narcotic Control Bureau issued certain instructions
for carrying out search and seizure under the Act, Supreme Court held those
instruction to be binding or enforceable.
o state of Uttar Pradesh v Chandra Mohan, a rule in the All India Services Rules,
authorised the government to compulsorily retire a members of the service in public
interest on reaching the age of 50. This rule contained no guidelines as to premature
retirement, and whereby government issued certain directions for this purpose.
Supreme Court ruled that these directions are binding and retirement orders which
are not in congruity with the said directions were held void.
o Baleshwar Dass v State of Uttar Pradesh, an office memorandum was held binding as
the Government had been following the same for nearly two decades. In some
situations, a direction may be held binding on the Administration on the principle of
Promissory Estoppel.
o Union of India vs. Charanjeet S. Gill in which court has stated that
 Administrative instructions issued in the absence of any statutory authority
has no force of law, and it cannot supplement any provision of law, rules
acts and regulations.
 These directions provides government with the power to fill up gaps which
are there in the present rules and laws
 Administrative directions cannot take away rights vested in the persons
governed by the act if they do not have any statutory backing.

 When Admin. Directions were considered invalid altogether-

o State of Sikkim v Dorjee Tshering Bhutia- that any order, instruction, direction, or
notification issued in exercise of the executive power of the state which is contrary
to any statutory provisions, is without jurisdiction and is a nullity.
o S.L Sachdev v. Union of India, an administrative direction regarding the promotion of
the upper division clerks to higher grades was quashed as it was unreasonable,
arbitrary, illogical and violative of Article 14.

 Admin. Directions and delegated legislation-

o Similar to Administrative directions, delegated legislations or rules are also
formulated for the same purpose or under such circumstances, but unlike directions,
they are not made under the executive power conferred on government, rather
these rules are formulated in accordance with the legislative powers conferred on
the administrative bodies via constitutional or statutory provisions.
o Delegated legislation is superior in terms of legal hierarchy
o Delegated L. can be enforced
Module 5
09 June 2022
09:24
Administrative Discretion
Meaning
 Discretion means choosing from amongst the various available alternatives without
reference to any predetermined criterion, no matter how fanciful that choice might be.
 Adm. Discretion in this sense means choosing from amongst the various available
alternatives but with reference to the rules of reason and justice and not according to
personal whims. --- not arbitrary, vague and fanciful, but legal and regular.
 Edward Coke: discretion is a science or understanding to discern between falsity and truth,
between right and wrong, and not to do according to will and private affection.
 Susannah Sharp v. Wakefield, Lord Halsbury opined that when something is left to
administrative discretion, it means that it has to be done in accordance with the principles of
justice and reason and not on the basis of the private opinion of the authority concerned.
Why Discretion is required/significance:
 Humanly impossible for legislature to lay down a rule for every conceivable eventuality in
the complex modern govt.
 In a welfare state countless activities have to be taken at grassroots level, not practical to
have laws and regulations for all activities
 For Proper and quick functioning provided the officer is performing discretionary power is
doing his duty with utmost care and diligence

Administrative Discretion and Indian Constitution

 Article 352, 356 and 360- Emergencies- President can declare emergency at his discretion
given the satisfaction of certain conditions-- once emergency is declared, president can issue
promulgations, etc at his discretion
 Article 123- President can promulgate ordinances if he is satisfied that it is an urgent
requirement-- such ordinances to have the same enforcement as an act of the parliament
 Article 72, 161- President and governor can grant pardon or commute sentences at his own
discretion

Judicial Control of Administrative Discretion

 Control at the stage of delegation of discretion- exercise control by adjudicating upon the
constitutionality of the law under which powers are delegated, wrt FRs-- may be declared
ultra vires of article 14 and 19
Article 14
o State of W.B. v. Anwar Ali Sarkar- Section 5(1) of the West Bengal Special Courts Act, 1950
conferred discretion on the state govt. to refer any offence for trial by the special court. The
respondents asserted its unconstitutionality on the ground that it violates the equality
clause in Art. 14 -- held unconstitutional, vague expressions used like "speedier trial" which
granted wide discretionary powers on the admin
o State of Punjab v. Khan Chand- Khan Chand challenged the constitutionality of the East
Punjab Requisition of Movable Act, 1947-Held that The Act confers wide discretionary
power- not laying down guidelines- arbitrary under Art. 14.
o Manohar Lal v. State of Maharashtra- Section 187- A of the Sea Customs Act-empowered a
high ranking officer to either refer a case to a magistrate or look into the matter themselves-
- upheld the constitutionality- criticised because this kind of judicial approach by the courts
might lead to the destruction of itself.
 Article 19
o Himat Lal Shah v. Commr. of Police- Rule 7 under section 44 of the Bombay Police Act, 1951
gave unguided discretionary power to the police Commissioner to grant or refuse the
permission for any public meeting to be held on a public street. -- held unconstitutional,
unreasonable obstruction to exercise of fundamental right.
o State of Madras v. V.G. Row- Section 15(2)(b) Criminal Law Amendment Act, 1908 as
amended by the Madras Act, 1950 gave wide discretionary power to the State Govt. to
declare any association as unlawful. Court struck down the section 15(2) (b).
because it allows the administrative authority to exercise this discretion on subjective
satisfaction without permitting the grounds to be judicially tested.
o Harakchand Bhatia v. UOI- The Gold Control Act, 1968 invested administrative authority with
blanket discriminatory power to grant or refuse license to any dealer in gold ornaments.--
held that although motive of act was bona fide, it may still lead to misuse of wide
discretionary power

 Control at the stage of exercise of discretion-

o Power of judicial review of exercise of discretion arises from the constitutional
configuration of courts--- two broad formulations to control:
 Authority is deemed not to have exercised its discretion at all or there is
failure on its part to exercise discretion- eg. Abdication of power
 Purtabpore Co Ltd vs Cane Commr of Bihar- the Cane
Commissioner, who had the power to reserve sugarcane areas for
the respective sugar factories, at the dictation of the Chief Minister,
excluded 99 villages from the area reserved by him in favour of the
appellant-company. The court quashed the exercise of discretion by
the Cane Commissioner on the ground that he abdicated his power
by exercising it at the dictation of some other authority; therefore, it
was deemed that the authority had not exercised its discretion at
all. Thus, the exercise of discretion in compliance with instructions
of some other person amounts to failure to exercise the discretion
altogether. It is immaterial that the authority invested with the
discretion itself sought the instructions.

 Authority has not properly exercised its discretion- "unreasonable", "arbitrary", "taking
irrelevant considerations into account"
 Indian Rly Construcn co ltd vs ajay kumar- held that in general, a discretion must be
exercised only by the authority to which it is committed-- In the purported exercise
of discretion, it must not do what it has been forbidden to do, nor must it do what it
has not been authorised to do-- act in good faith--must have regard to all relevant
considerations and must not be influenced by irrelevant considerations, must not
act arbitrarily and capriciously.
 Barium Chemicals Lt vs Company Law board- held that the grounds on which the
Company law board ordered an inspection into the appellant company were not in
consonance with those mentioned in section 237 of the Companies act, which
provided this discretionary power -- quashed the order
 SR Venkataraman vs UOI-"An administrative order based on a reason or facts that do
not exist must be held to be infected with abuse of power"
 Imposing fetters on discretion- Discretion must be exercised based on facts and
circumstances of individual cases and after applying the mind-- a general rule for
exercising discretion cannot be laid down by the authority and discretion exercised
following the rules blindly is not a valid exercise
Module 6
10 June 2022
11:31
Principles of Natural Justice
Meaning
 Megarry J: "justice that is simple and elementary, as distinct from justice that is complex,
sophisticated and technical"
 AKA fundamental rules of procedure-- in admin law, relating to the rules of procedure for
administrative action--- not fixed or prescribed in any code.
 De Smith: the term natural justice expresses the close relationship between the common
law and moral principles and it has an impressive ancestry.
 AKA “substantial justice”, “fundamental justice”, “universal justice” or “fair play in action”.
 Wiseman vs Borneman: [T]he conception of natural justice should at all stages guide hose
who discharge judicial functions is not merely an acceptable but is an essential part
of the philosophy of the law
 Judge made rules that have developed with the growth of civilization and the content
thereof is often considered as a proper measure of the level of civilisation and rule of law
prevailing in the community.
 Laws that have divine origin, something beyond man's creation- jus gentium
 Implies fairness, reasonableness, equity, and equality
 Based on natural sense of man of what is right and what is wrong-- ingrained in the
conscience of man
 Its essence is good conscience in a given situation; nothing more-but nothing less.
 Canara Bank v. Debasis- The expressions "natural justice" and "legal justice do not present a
watertight classification. It is the substance of justice which is to be secured by both, and
whenever legal justice fails to achieve this purpose, natural justice is called in aid of legal
justice.

Evolution
 During the period of Reformation, focus shifted to individualism and a need was felt for a
universal and uniform system
 A systemic pattern of ideas and values had to be evolved out of the doctrine of natural law
for universal application and acceptance
 In time the systematic pattern led to the development of general principles for universal
application
 Earliest expression of "natural justice" -- Roman jurists, jus naturale, -- signified rules of
conduct -- basis was the rule of law
 Came in consonance with "Common law" of england-- "due process" of US, "dharma" of
India and "proportionality" of civil law system.
 Changing concept-- but at a given time, fixed rules are present

Position in India
 Satyavir Singh v. UOI- Principle of natural justice is not immutable and can be adapted,
modified and excluded by statue, rules or constitution except where such exclusion is not
charged with the vice of unreasonableness and consequential voidness.
 Constitution of India
o Not expressly mentioned, though underlying principle pervades the general scheme
of the constitution
o Social and economic justice-- Preamble-- related to the concept of fairness
 o Art 311- contains all the principles of natural justice without using the expression as
such
o Art 14 and 21-- equality and fair procedure
o LIC v. Consumer Education and Research Centre- Duty to act fairly is part of fair
procedure envisaged under Art. 14 and 21 of the Constitution of India.
o Olga Tellis v. Bombay Municipal Corpn.- Sec. 314 of the Bombay Municipal
Corporation Act, which empowered the Commissioner to get illegal constructions
and structures removed or demolished without notice does not contain a command, it
only gives the discretion to the Commissioner which must be reasonably exercised.
o State of U.P. v. Vijay Kumar- The principle of natural justice must be read into the provisions
of a law.

o Dev Dutta vs UOI- Natural justice which is a facet of Article 14 of the Constitution
overrides all contrary rules,

o SBI v. K.P. Narayanan Kutty, In this case, the enquiry officer had found certain charges
against an officer of the Bank as partly proved. The disciplinary authority holding that
charges were proved, in fact fully proved, passed the order of dismissal which was
challenged. It was contended that Rule 50(3i) of the State Bank of India (Supervisory Staff)
Service Rules does not provide for any notice and hearing, hence the action cannot be
challenged on the ground of violation of the principles of natural justice. The Supreme Court
held that the principles of natural justice must be read into the service rules and the officer
must be given an opportunity to persuade the disciplinary authority to accept the favourable
conclusion of the enquiry officer.
 When are principles of natural justice attracted?
o When a person suffers a civil consequence (infraction of personal or property rights ,
violation of civil liberties,
civil liberties, material deprivations and non-pecuniary damages.) or a prejudice is
caused to him by any administrative action
o Where a person has suffered a prejudice but cannot justify his claims on the basis of any law,
principles of natural justice is applied
o In Tejshree Ghag v. Prakash P. Patil, the Supreme Court exemplified that where an
employee is transferred to a non-equivalent post resulting in loss of pay, he suffers a civil
consequence as his status and salary are adversely atfected, hence the principles of natural
justice are attracted.

Three facets of principles of natural justice:

1. Rule Against Bias (Nemo in propria causa judex, esse debet)
o A bias means an operative prejudice, whether conscious or unconscious, in relation
to a party or issue-- partiality or preference which is not supported by reason but by
self-interest
o Rule against bias strikes against those factors which may improperly influence a
judge in arriving at a decision in a particular case
o Nemo in propria causa judex, esse debet- no one should be made a judge in his own
cause or rule against bias
o Justice should not only be done, but manifestly and undoubtedly be seen to be done
o Crawford Bayley Co. v. UIO- the rule against bias comes into play if it is shown that
the officer concerned has a personal connection or personal interest in the matter
concerned and already taken a decision one way or the other which he may be
interested in supporting.
 o Hyderabad Vanaspathi Ltd. v. A.P. SEB- the principle Nemo in propria causa judex,
esse debet does not apply where the authority has no personal lis with the person
concerned. Therefore, where cases of malpractice and pilferage by consumers of
electricity were decided by the Electricity Board itself, the Supreme Court held that
it is not a violation of the rule against bias. Such cases are similar to income tax and
sales tax cases.
o Types of bias:
 Personal- certain relationship between the deciding authority and the
parties-- Mineral Development Corp ltd vs State of Bihar- court quashed
order revoking licence of coal mining on bias arising out of the fact that the
owner of the mining company had opposed the concerned Minister in the
1952 elections, and thereby the minister had also filed a criminal case under
s500 of the Penal Code 1860 against the owner-petitioner, which was
transferred to Delhi from Bihar HC on account of the political rivalry b/w the
parties.
 Real likelihood of bias OR reasonable suspicion of bias has to be
proved-- "real likelihood..." test focusses on the court's own
evaluation of possibilities, whereas "reasonable.." test looks mainly
to outward appearance.
 In deciding the question of bias, judges have to take into
consideration the human possibilities and the ordinary course of
human conduct.
 Jiwan K Lohia vs Durga Dutt Lohia- SC upheld the decision of HC
removing an arbitrator on the ground of bias-- held test to be
applied is not whether in fact bias has affected the judgment but
whether a litigant could reasonably apprehend that a bias
attributable might have operated against him in the final decision.
The test of bias is whether a reasonable man, in possession of
relevant information, would have thought that the bias was likely
and whether the person concerned "was likely to be disposed to
decide the matter only in a particular way".
 the test is not what actually happened but the substantial possibility
of that which appeared to have happened.

 Pecuniary- any financial interest, however small will result in bias

 Jeejeebhoy vs Collector- The Chief Justice reconstituted the Bench when it was
found that one of the members of the Bench was a member of the cooperative
society for which the land had been acquired.
 Vishakapatnam Coop. Motor Transport Ltd. V. G. Bangaru Raju- quashed the
decision of the Collector who in his capacity as the Chairman of the Regional
Transport Authority had granted a permit in favour of a cooperative society of which
he was also the Chairman.

 Subject matter- When the deciding officer is directly or indirectly involved in the subject
matter or the case, but mere involvement will not vitiate administrative action, there needs
to be a real likelihood of bias
 In R. v. Deal Justices, ex p Curling , the Magistrate was not declared disqualified to
try a case of cruelty to an animal on the ground that he was a member of the Royal
 Society for the Prevention of Cruelty to Animals, as this did not prove a real
likelihood of bias
 Departmental bias/institutional bias- Bias based on involvement with a department or
institution which is directly or indirectly related to the case (mere involvement does not
amount to bias though) --still a looming problem in India-- departmental bias is something
which is inherent in the administrative process
 G Nageswara Rao vs AP SRTC- the petitioner challenged the order of the
government nationalising road transport. One of the grounds for challenge was that
the Secretary of the Transport Department who gave the hearing was biased, being
the person who initiated the scheme and also being the head of the department,
whose responsibility was to execute it. The court quashed the order on the ground
that, under the circumstances, the Secretary was biased and, hence, no fair hearing
could be expected.---- however, when the act was amended and the Minister was
hereby empowered to hear objections, same was challenged on the basis of bias--
this time however SC rejected the challenge on the ground that Minister cannot be
held to be related to the dept. in the same manner as a secretary--- this decision was
criticised as being non-convincing.
 South Indian Cashew Factories Workers' Union v. Kerala State Cashew Development
Corpn. Ltd. held that where findings of the enquiry officer were based on evidence
and were not perverse, the mere fact that the enquiry was conducted by an officer
of the management would not vitiate the enquiry. -- in the absence of any special
individual bias attributable to a particular officer, presumption of institutional bias
cannot be sustained merely on the ground that the enquiry officer is a part of the
management.

 Policy Notion bias- A preconceived policy adopted by the impugned authority can lead to
bias--- recent trend is that this type of bias is not considered a valid ground
 T Govindaraja Mudaliar v State of TN- SC rejected the challenge that the Home
Secretary's hearings on objections against the nationalisation of road transport was
biased on the ground that he himself was a member of the committee that framed
the scheme.
 Preconceived notion bias- related to the personality and nature of the persons exercising
adjudicatory power-- The problem of unconscious bias is such which is inherent in any
adjudication and cannot be eliminated unless detected by some overt action of the
authority, and if so detected can vitiate an administrative hearing if it has a direct relation
with the decision (like if deciding officer directly states his prejudice regarding the matter)--

Lord Devlin once said, "The judge who is confident that he has no prejudices (or
bias) at all is almost certain to be a bad judge. Prejudice cannot be exorcised, but
like a weakness of the flesh it can be subdued."

 Bias on account of obstinacy- thoroughly unreasonable and unwavering persistence, not

taking "no" for an answer-- although direct violation of the rule that no one can sit and deny
appeal against his own judgment, indirect violation can be there- in a Calcutta HC case, in a
fresh writ petition the judge validated his own order in an earlier writ petition which had
been overruled by a Division Bench-- this could also happen in the administrative
adjudicatory process.
o Doctrine of Necessity- The law permits certain things, which it would not otherwise permit,
to be done as a matter of necessity-- thus bias would not disqualify an officer from taking an
action if no other person is competent to act in his stead.
2. Rule of Fair Hearing (Audi Alteram Partem)
 Everyone must be heard--- an opportunity to defend oneself
 Justified because any wrong order may adversely affect a person and it is essentially for this
reason that a reasonable opportunity may have to be granted before passing an
administrative order- BALCO Employees Union vs UOI
 In cases of express exclusion of hearing is present in the statute, except in cases of
recognised exceptions, the law would be violative of the principles of fair hearing in
consonance with art 14 and 21
 R. v. University of Cambridge ( Dr Bentley Case)- held that the University of Cambridge could
not cancel the degree of a great but rebellious scholar without giving him an opportunity of
defending himself, firmly establishes that although there may not be a statutory
requirement that both parties shall be heard, yet the justice of the common law will supply
the omission of the legislature.
 State Bank of Patiala vs SK Sharma - When the statute in concern does contain the provision
for enquiry and the only obligation of the admin auth is to observe the principles of natural
justice, the court/tribunal must make a distinction between a total violation of the rule of
fair hearing and violation of just a facet of the rule--- in other words, to make a distinction
bw "no opportunity" and "adequate opportunity"--
o In first case (no opportunity), the order shall be invalid, fresh hearing to be
conducted
o In second case, if there happens to be a prejudice due to this violation, only then will
the order be invalid
 Duty to act fairly or judicially
o Quasi judicial bodies- duty to act judicially
o Administrative bodies- duty to act fairly
o AK Kraipak vs UOI- When a person does not claim a right but has legitimate
expectations(next module) of receiving a benefit or a privilege, the administrative
agency does not have to act judicially but has to act fairly.
o Keshav Mills Co Ltd vs UOI- In this case, the government, on the basis of a report
of an enquiry committee, had taken over the management of the Mill Company, which
had been closed down without supplying the copy of the report to the management and
affording an opportunity of hearing. The takeover was challenged on the ground of
violation of the principles of natural justice. The Supreme Court though did not interfere
with the order on the ground that no prejudice was caused to the Mill Company, yet
observed:
The only essential point that has to be kept in mind in all cases... That the
administrative authority concerned should act fairly, impartially and reasonably
o M.S. Nally Bharat Engg. Co. v. State of Bihar- fairness is the basic principle of good
administration. The govt. transferred the case form one court to another court without any
notice and hearing to the employer. The court set aside the order on the ground of lack of
fairness.

 Multiple facets of audi alteram partem

o Right to notice- notice embodies the rule of fairness and must precede an adverse
order-- clear and precise and adequate information about the case-- adequate time
so that he can properly prepare his defence-- adequacy to be determined in a case-
to-case basis, but generally include: (Gorkha Security services vs Govt)
 Time, place and nature of hearing
 Legal Authority under which hearing is to be held
  Statement of specific charges which the person has to meet
 Particular penalty or action which is proposed to be awarded
Joseph Vilangandan vs Executive Engineer- appellant served notice stating: " You are,
theretore, requested to show cause within seven days from the receipt of this notice
why the work may not be arranged otherwise at your risk and loss through other
agencies after debarring you as defaulter."-- thereafter contract was cancelled and the
appellant was barred from any further contacts with the PWD-- held that the words
"debarring you as the defaulter" did not give adequate notice of the fact that the
appellant would be debarred from further contracts as well

Shiv Sagar Tiwari v. UOI- If notice is to be given to a large class of person who are
educated it may be given by publishing it in a newspaper. In such a case individual
notice is not the requirement of natural justice.

UOI vs Narendra Singh- even if a mistake in the decision making process is to be

corrected which shall have adverse effect on a person, he must be given notice

o Right to know evidence against him- Dhakeshwari Cotton Mills Lrd vs CIT-the appellate
income tax tribunal did not disclose information supplied to it by the dept. SC held that
assessee did not have fair trial-- even summary of the adverse material is sufficient unless
law provides such-- allowed to inspect the file and take notes-- the fundamental should be
that nothing should be used against the person which has not been brought to his notice
o Right to present case and evidence/ oral hearing-- The party should be given a reasonable
opportunity to present his case-- can be done through writing or orally-- though oral hearing
is not an integral part of fair hearing, it is so only in cases involving complex legal and
technical questions and high stakes
 Union of India v. J.P. Mitter, the court refused to quash the order of the President of
India in a dispute relating to the age of a High Court judge on the ground that the
President did not grant an oral hearing even on request. The court was of the view that
when the person has been given an opportunity to submit his case in writing,
there is no violation of the principles of natural justice if an oral hearing is not given

o Right to rebut adverse evidence- It is not enough that the party should know the adverse
material on file but it is further necessary that he must have an opportunity to rebut the
evidence. Rebuttal can be done either orally or in writing at the discretion of the
administrative authority provided the statute does not provide otherwise-- two factors
involved in rebuttal: cross-examination and legal representation --- cross examination is not
essential and its importance in a fair trial depends on the facts and circumstances, only in
cases where the court is satisfied that without cross examination, the person cannot put up
an effective defence--- legal representation is normally not considered an indispensable part
of a fair trial, since oral hearing itself is not a necessary part of fair trial-- except in cases
where the person is illiterate, or matter is technical, or expert evidence is on record... In
such cases professional assistance must be given to the party to make his right to defend
himself meaningful-- M.H. Hoskot v. State of Maharashtra- while importing the concept of
fair procedure in Art. 21 of the constitution held that the right to personal liberty implies
provisions by the State free legal service to indigent person

o No evidence should be taken at the back of other party- Errington vs Ministry of Health- ex
parte evidence taken in absence of other party violates the principles of fair hearing-- Jarrow
Corporation passed a clearance order for the demolition of certain buildings found unfit for
human habitation -- An enquiry was held and the
owners of the building were given a hearing. Thereafter some officials of the Ministry
again visited the place and collected evidence, but the owners were not informed about
the visit--- order was quashed by court and one ground was ex parte evidence gathering
without the presence of the other party
Not always necessary though-- Hira Nath Mishra vs Rajendra Medical College- girl
students complained against boy students for misbehaviour at the girls hostel-- enquiry
committee appointed by principal to record statement of girls--- committee recorded
statement of girls in the absence of appellants-- SC rejected the contention that
evidence were taken at their backs and held that the girls would not have ventured to
make the statements in the presence of the appellants except at a great risk of
retaliation and harassment.

o Report of enquiry to be shown to the opposite party- In cases where the task of enquiry is
delegated to another authority, a report of such enquiry must be supplied to the
 Keshav Mills co. Ltd vs UOI- The court held that it was not possible to lay down any
general principle on the question as to whether the report of an investigating body
or an inspector appointed by an administrative authority should be made available
to the person concerned before the authority reaches a decision upon that report.
The answer to this question must always depend on the facts and circumstances of
each case. It is not at all unlikely that there may be certain cases where, unless the
report is given to the party, the party concerned cannot make any effective
representation about the action taken on the basis of that report-- if non disclosure
causes any prejudice, it must be disclosed, otherwise no violation on non-disclosure

o "One who decides shall hear"/ "he who hears shall decide"-
  Nageswara Rao vs AP SRTC- relevant legislation imposed duty on State Govt to give
personal hearing,--- hearing was done by secretary but order was passed by
Minister-- court set aside the order on the ground of unfair trial

o Rule against dictation- Violation of fair hearing if decided by the competent authority on
directions of any outside agency.
 Mahadayal v. CTO, the Supreme Court quashed the decision of the Commercial Tax
Officer imposing tax on the petitioner on directions from his superior officer even
when he himself was of the opinion that the petitioner was not liable to tax
 Ossein and Gelatine Manufacturers’ Assn. v. Modi Alkalies and Chemicals Ltd.,
hearing was afforded by one officer but the order was passed by another officer.
Observing that the officer who had passed the order had taken full note of all
objections put forward by the petitioners and considered all the pros and cons of
the matter, the order was upheld.

o Third party to a dispute must also be heard- SC Pereira vs Ricardina Naronha- held even if
law doesnt provide for it, a third person who is likely to suffer substantial injury by the
decision must also be heard.

3. Rule of Reasoned decisions

 "Reason" is an essential requirement of the rule of law. It provides a link between tact and
decision, guard against non-application of mind, arbitrariness, and maintain public
confidence in judicial and administrative authorities. Reasons also serve a wider principle
that justice must not only be done, it must also appear to be done.

 In India, no general or statutory requirement for administrative agencies to give reasons for
their decisions-- but if enabling statute states so, it is mandatory-- these reasons should not
be mere "rubber-stamp" reasons but a brief clear statement, providing a link the facts and
circumstances and the actual conclusion

 Importance of giving reasons-- helps the affected party to have an opportunity to have the
decision tested in the appropriate forum-- court can determine the relevance of reasons and
in case they are wrong , can vitiate the administrative action

 Mandates in the Constitution

o Maneka Gandhi vs UOI-A law which allows any administrative authority to take a
decision affecting the rights of the people without assigning any reason cannot be
accepted as laying down a procedure which is fair, just and reasonable and hence
would be violative of art 14 and 21
o implied requirement of "reasons" is the foundation on which the whole scheme of
judicial review under the Indian Constitution is based--- art 32, 136, 226, 227
provides for framework of judicial review--- if decisions by admin agencies
unaccompanied by reasons, the whole concept of judicial review will be meaningless
 Mandates by statute
o A statute can provide the mandate of mentioning reasons for decisions, eg s31 of
Arbitration and Concilliation Act 1996, mandates reasons by the arbitrator for the
award
 Mandates by nature of function performed by the authority
 o Quasi Judicial bodies--Mahabir Prasad v. State of U.P.- if a quasi judicial order is subject to
appeal the law necessarily implies the requirement of reasons otherwise the right to appeal
shall become and empty formality.
o Appellate or revisional Administrative bodies- Divl. Forest Officer v. Madhusudhan Rao-
that no doubt an appellate or revisional authority is not required to give detailed reasons for
agreeing or confirming the order of the lower forum, but in the interest of justice, some
brief reasons should be indicated even in an order affirming the decision of the lower forum.
It will guard against non-application of mind.

Exclusions/Exceptions to Natural Justice

1. Exclusion in emergency- exceptional cases where prompt action, preventive or remedial, is
needed, the requirement of notice and hearing may be obviated
o Example- dangerous building is to be demolished, company has to be wound up to
save depositors, imminent danger to peace
o Courts may however review the reasoning of the administrative authority in stating
a situation as an emergency
o Swadeshi Cotton Mills vs UOI- relevant section empowering the central govt to
decide on matters which require "immediate action" --- held that such a phrasing
cannot be in the way of natural justice-- even in such cases the govt must take steps
to perhaps have a shorter hearing, which is adjusted, attuned and tailored to the
needs of the circumstances

2. Exclusion in cases of confidentiality-

o Malak Singh v. State of P&H, the Supreme Court held that the maintenance of
surveillance register by the police is a confidential document. Neither the person
whose name is entered in the register nor any other member of the public can
have access to it. Furthermore, the court observed that the observance of the
principles of natural justice in such a situation may defeat the very purpose of
surveillance, and there is every possibility of the ends of justice being defeated
instead of being served
3. Exclusion in case of purely admin. Matters
o Jawaharlal Nehru University v. B.S. Narwal --A student of the university was
removed from the rolls for unsatisfactory academic performance without being
given any pre-decisional hearing--held that the very nature of academic adjudication
appears to negate any right of an opportunity to be heard. Therefore, if the
competent academic authorities examine and assess the work of a student over a
period of time and declare it to be unsatisfactory, the rules of natural justice may be
excluded.
4. Exclusion based on impracticability
o R. Radhakrishen v. Osmania University, where the entire MBA entrance examination
was cancelled by the university because of mass copying, the court held that notice
and hearing to all candidates is not possible in such a situation, which had assumed
national proportions. Thus, the court sanctified the exclusion of the rules of natural
justice on the ground of administrative impracticability.
5. Exclusion- interim preventive action-
o Abhay Kumar v. Srinivasan- an institution passed an order debarring a student
from entering the premises of the institution and attending classes till the
pendency of a criminal case against him for stabbing a co-student-- held such an
order could be compared with an order of suspension pending enquiry,. Which is
 preventive in nature, in order to maintain campus peace and, hence, the principles
of natural justice shall not apply.
6. Exclusion in cases of legislative action
o Legislative action is not subject to the rules of natural justice except if the
exclusion as such is arbitrary, unreasonable or unfair, in which case, shall be
quashed under art 14 and 21
o JR Vohra vs Indian Export House-Sections 21 and 37 of the Delhi Rent Control Act,
1958 dealing with the termination of limited tenancies do not violate the
principles of natural justice. The court observed that if a limited tenancy has been
validly created then at the expiry of the period, a warrant of possession can be
issued without any notice or hearing to the tenant.
o Exclusion of natural justice cannot be inferred unless language of the law leaves no
other option-- exclusion depends upon- language of statute, scheme of statutory
provisions, nature of the power conferred, purpose of the law, effect of exclusion
7. Exclusion where no right o person is infringed
o JR Vohra vs Indian Export House- after the expiry of the period of any limited
tenancy, a person has no right to stay in possession and, hence, no right of his is
prejudicially affected which may warrant the application of the principles of natural
justice.
8. Exclusion in case of statutory exception or necessity
o Example in cases where there is only one person competent enough to adjudicate
on the matter but he is biased
o Charan Lal Sahu vs UOI- the constitutional validity of the Bhopal Gas Leak Disaster
(Processing of Claims) Act, 1985, which had authorised the Central Government to
represent all the victims in matters of compensation award, had been challenged
on the ground that because the Central Government owned 22 per cent share in
the Union Carbide Company and as such it was a joint tortfeasor and, thus, there
was a conflict between the interests of the government and the victims.
Negativing the contention, the court observed that even if the argument was
correct, the doctrine of necessity would be applicable to the situation because if
the government did not represent the whole class of gas victims, no other
sovereign body could so represent and, thus, the principles of natural justice were
not attracted.
9. Exclusion in case of contractual arrangement-
o State of Gujarat vs MP Shah Charitable trust- natural justice not applicable in case of
termination of an arrangement in contractual field-- no duty to act judicially
10. "Useless formality" theory
o In cases where only one conclusion is possible, and under law only one penalty is
permissible, principles of natural justice may not be followed (SL Kapoor vs
Jagmohan)-- can be applied only when facts are undisputed and demonstrated
beyond doubt

Effect of Breach of principles of natural justice

 Maneka Gandhi vs UOI- an order passed in violation of the rules of nj is not void ab initio
and hence be validated post-decisional hearing
 Swadeshi Cotton mills vs UOI- held that a quasi-judicial or administrative decision rendered
in violation of the audi alteram partem rule, whenever it can be read as an implied
 requirement of the law, is null and void, yet it refrained from striking down the impugned
order on the assurance of the Solicitor General that a post-decisional hearing would be
given.
 The impugned order shall be null and void but can be ratified through post-decisional
hearing
Module 7
14 June 2022
10:16
Judicial Review
Meaning
 Smith & Zurcher- “The examination or review by the Courts, in cases actually before them, of
legislative statutes and executive or administrative acts to determine whether or not they
are prohibited by a written Constitution or are in excess of powers granted by it, and if so, to
declare them void and of no effect”.
 Edward S. Corwin- Judicial Review is the power and duty of the courts to disallow all
legislative or executive acts of either the central or the State governments, which in the
Court’s opinion transgresses the Constitution.
 Thus Judicial Review of four types:
o Legislative review- checking the constitutionality of a law passed by the legislature
or rules framed by administrative agencies
o Judicial Review- reviewing the decisions of lower courts and own decisions
o Constitutional review- constitutionality of a constitutional amendment
o Administrative action review-review of constitutionality of administrative action,
determining its fairness, reasonableness and justness
 Administrative law mainly concerned with 4th point

Jurisdiction of Supreme Court (art 32 and 136)

Power under art32
 Power to issue writs in the nature of habeas corpus, mandamus, prohibition, quo warranto
and certiorari for the protection and enforcement of fundamental rights under part III
 Jurisdiction under art 32 extends to cases of violation of fundamental rights only
 The right to move the SC for the enforcement of any fundamental right is itself a
fundamental right--the court has no power to refuse in its discretion the grant of an
appropriate remedy if the violation of any fundamental right is proved--- Hence, it is not only
a right and power, but also the duty of the SC to protect and safeguard the FRs of the people
 Though the jurisdiction of the Supreme Court under Article 32 is confined to the
enforcement of fundamental rights, yet if there is a clear abuse of process of the court, a
petition is maintainable even if no violation of any fundamental right is involved. Thus, when
a person manipulated facts in order to get a decree by a court to defeat the ends of justice,
in such a situation a petition under Article 32 is maintainable. While exercising jurisdiction
the court will not go into questions of policy of the State, which is required to be dealt with
by the legislature.
 DK Basu vs State of WB-The SC is empowered to provide compensation for established
breach of FRs and abuse of power under art 32--- can also award exemplary damages in
grave cases of oppression, and arbitrariness
 In absence of personal approach by victim, the SC can exercise suo motu jurisdiction in the
form of a PIL
 Policy matters of legislature are generally beyond the provision of the article, but
administrative policy can be scrutinised
 Court may interfere if an administrative policy is unconstitutional, or beyond the provision of
an Act or regulation, or is ultra vires the authority of an administrative instrumentality, or is
contrary to statutory policy or larger public policy.

Power under art 136

  Article 136- in the nature of residuary power of judicial review --- SC may grant special leave
to appeal from any judgment, decree, determination, order, or sentence in any cause or
matter passed or made by any court or tribunal--- means that SC has the discretionary
power to interfere in suitable cases to advance the cause of justice-- very wide power, to be
used sparingly, in extraordinary cases of gross failure of justice-- "exceptional
circumstances"- cannot be defined by a set formula-- generally includes cases where there
has been an illegality or irregularity of procedure or violation of the principles of natural
justice resulting is gross miscarriage of justice
 Ujagar Singh vs State (Delhi Admn)- exceptional circumstances include A question of law of
general public importance, or a decision which shocks the conscience of the court
 Dhakeshwari Cotton Mills vs CIT- Finality clause in a statute excluding judicial review cannot
bar SC's power under art 136

Jurisdiction of HC under art 226,227

Power under art 226
 Article 226 empowers the High Courts to issue directions, orders or writs for the
enforcement of fundamental rights and for any other purpose also.
 Power of HC is wider than SC
 "For any other purpose"-- enforcement of ordinary legal rights which are not FRs--- however,
it is discretionary in nature
Power can be exercised to strike down an impugned rule and direct authorities to reframe it,
but not to frame it--judicial review is not directed at the decision but the decision-making
process (doesn't apply to original jurisdiction tho)
 A High Court would generally not reappreciate evidences, or enter into determination of
questions which demand an elaborate examination of evidence, or interfere in the
punishment imposed unless the administrative determination is mala fide, or made in
contravention of the principles of natural justice, or prompted by extraneous consideration,
or is in violation of any constitutional provision, or is such that shocks the conscience of the
court.
Power under art 227
 Art 227 invests HC with the power of superintendence over administrative agencies
exercising adjudicatory powers--- both administrative and judicial in nature
 This power does not confer a corresponding right upon a person to invoke the jurisdiction
under this article as a matter of right--- it is rather a duty of the HC to keep the inferior
courts and tribunals within the limits of their authority and to ensure the performance of
duty in accordance with the law.
 This Jurisdiction is revisional and not appellate, hence it is limited and restrictive in nature--
may be exercised for want of jurisdiction, errors of law, perverse findings, gross violation of
the principles of natural justice, and where finding of fact is based on no evidence resulting
in manifest injustice---This power is not unlimited

Against whom writ jurisdiction is available

In Supreme Court
1. Government and Parliament of India, governments and legislatures of States and local
governments.
2. Government departmental undertakings.
3. Agencies incorporated by statutes.
4. Agencies registered under statutes; for example, Companies Act, 1956 and Societies
Registration Act, 1860.
 5. Courts.
6. Private individuals and bodies.

 First three categories falls under the definition of "State" under art 12
 Authorities in the 4th category can also be termed as "State" , if they are agencies of the
government
 Even though Courts are not mentioned in art 12, they can pose a threat to the FRs
o Prem chand Garg vs Excise commr- SC struck down certain rules framed by it as
violative of FRs
 Art 15(2), 17, 23(1) and 24 can be claimed against private individuals--- but as the judicial
opinion stands today, it is not possible for private individuals cannot enforce FRs, and hence
they are not amenable to the jurisdiction of SC, o matter they violate the FRs

In High Court
 Law very inconsistent in regarding the "person or authority" against whom writs can be
issued by the HC since HC's power is wider than SC in this sense
 Habeas corpus and quo warranto can be issued against private individuals and public officers
respectively-- main confusion relating to certiorari prohibition and mandamus
 UP State Coop Land Development Bank vs Chandra Bhan Dubey- The Supreme Court clarified
that the term "authority" used in Article 226 of the Constitution has a wider and liberal
meaning unlike the use of the term in Article 12. Article I2 is relevant only for the
enforcement of fundamental rights under Article 32. Article 226 confers powers on the High
Courts to issue writs for the enforcement of fundamental rights and also for "any other
purpose"--- can be issued against:
a. against public acts of the President of India, Governors, Union and State
Governments, Ministers, government officers and departments, and other bodies
given in the Constitution,
b. issued in appropriate cases, where there is a violation of the Constitution or any law,
to Parliament and State legislatures (State of Punjab v Satyapal)
c. writ of certiorari can be issued against a court to correct the record if the court has
usurped jurisdiction. (State of MP vs Babu Lal)
d. Statutory bodies, irrespective of their functions and "profit" orientations
e. Companies registered under Companies Act, societies registered under Societies
Registration Act (this area is still developing and is indecisive)
f. against a private college affiliated to a university on the ground that the university
rules which are applied to the college, especially in disciplinary matters of the staff,
have the force of law.
 Test- RD Shetty vs Airport Authority
o Bodies which have extensive and unusual financial assistance plus an unusual degree
of control over the management and policies by the govt to be termed under
"State"
o Whether the authority enjoys monopoly status, which is State conferred or State
protected
o If the actions of the authority are of public importance and closely related to
governmental functions--- however, authorities with actions of public importance
that are devoid of any governmental character are generally not to be considered---
like any dept of govt transferred to an administrative authority, it would be included
under this factor
 The test is to be taken as an aggregate or cumulative and not individually--- hence, in order
to decide whether an administrative authority is subject to the writ issuing jurisdiction of the
 court, the test is not the establishment of the authority by a statute, or its incorporation
under the Companies Act, 1956 or Societies Registration Act, 1860, but its relationship with
the government.
 Liberal interpretation- Unni Krishnan vs State of AP- the term "authority" as used in Article
226 must not be confined only to statutory authorities and instrumentalities of the State. It
may cover any other person or body performing public duty.
 BCCI even though not "state" still subject to writ jurisdiction-- because it performs public
function(selects team to represent India in cricket)- BCCI vs Cricket Assn of Bihar

Who can apply for writ jurisdiction

 Development in this area is a patchwork of case-law
 Writ of habeas corpus, quo warranto-- anyone can file
 Mandamus and certiorari- only persons whose rights have been infringed-- not necessary
that it is is/her personal right, it can be a common right
 Mere interest does not entitle a person to a writ, unless he can show that his interest is
more than that of an ordinary member
 VS Deshpande J: Two qualifications for locus standi:
o He must convince the court that the direction of law has such a real public
significance that it involves a public right and an injury to the public interest;

OR

o Establish that he has a sufficient interest of his own over and above the general interest of
other members of public in bringing the action

Doctrines developed by judiciary

Doctrine of Legitimate expectation
 A person may have a legitimate expectation of being treated in a certain way by an
administrative authority even though he has no legal right in private law to receive such
treatment.

 Such expectation may arise either from express promise or from existence of regular
practice which the applicant can reasonably expect to continue. In such cases, the court may
protect his expectation by invoking principles analogous to natural justice and fair play in
action. The court may not insist an administrative authority to act judicially but may still
insist him to act fairly.
 Legitimate expectation-- It is something between a "right" and "no right" and is different
from anticipation, desire and hope.
 Development in England
o Schmidt vs Scy. Of State for Home affairs - the government had cut short the period
already allowed to an alien to enter and stay in England; the court held that the
person had legitimate expectation to stay in England which cannot be violated
without following a procedure which is fair and reasonable. In this manner, Lord
Denning used the term "legitimate expectation" as an alternative expression to the
word "right".
o Council of Civil Services Union vs Minister of Civil Services- legitimate expectations
may arise from an expression or promise made by the authority, or from an
established past practice which cannot be violated without good reasons.
  Development in India
o State of Kerala vs KG Madhavan Pillai- first instance of legitimate exp.- govt issued
sanction to respondents to open a new unaided school and upgrade existing ones--
15 days later direction was passed to keep sanction in abeyance-- held that sanction
order created a legitimate exp which was violated by the direction without following
the principles of NJ--- vitiated the 2nd order
o UOI vs Hindustan Development corpn-The legitimacy of an expectation can be
inferred only if it is founded on the sanction of law or custom or an established
procedure followed in regular and natural sequence. --- it is different from a wish,
hope, desire or even a genuine expectation
o Administrative body has every right to change its policy but to prove a legitimate
expectation such change has to be proven to be arbitrary, unreasonable, not in the
public interest, inconsistent with the principles of NJ or in cases when denial of
legitimate exp will result in violation of a right (PTR Exports vs UOI)
o Legitimate expectation must always yield to larger public interest- P Suseela vs UGC-
even if the appellants had legitimate expectations to be exempted from qualifying the
National Eligibility Test (NET) on the basis of MPhil/PhD degrees for appointment as
lecturers/assistant professors in institutions governed by the UGC Act under its past
policy, their expectations must yield to larger public interest, which in the instant case
was to have highly qualified persons in institutions of higher learning and for which the
past policy of granting NET exemption was withdrawn and NET was made compulsory
for all future appointments.
o Monnet Ispat and Energy Ltd vs UOI- Principles of doctrine of LE
 Founded on the principle of reasonableness, fairness, and public interest
 Cannot be use to fetter changes in admin policy in public interest
 Different from anticipation
 Should be justifiable, legitimate, and protectable
 Can be invoked as a substantive and enforceable right
 Cannot be invoked if it has the effect of jeopardising public interest for private
benefit
 Shares space with promissory estoppel and principles of NJ

Doctrine of Proportionality
 Latest entrant in admin law
 it is a principle where courts would examine priorities and processes of the administration
for reaching or recalling a decision.
 "Through the use of this doctrine, court would not allow administration to use a
sledgehammer to crack a nut where a paring knife would suffice."
 Proportionality is “concerned with the way in which the decision-maker has ordered his
priorities, the very essence of decision-making consists in the attribution of relative
importance to the factors in the case"
 The principle of proportionality ordains that the administrative measure must not be more
drastic than is necessary for attaining the desired result.
 The test of proportionality lays down that it is not proportional wherein the discretionary
exercise of powers, there is no reasonable relation between the objective sought after and
the means employed to achieve that objective.
 In the human rights context, proportionality involves a “balancing test” and the “necessity
test”. The former scrutinises excessive and onerous penalties or infringement of rights or
interest whereas the latter takes into account other less restrictive alternatives.
  Wednesbury test- Test for measuring reasonableness-- laid down in Associated Provincial
Picture Houses ltd vs Wednesbury Corpn-- According to this test, the court would consider
whether irrelevant matters had been taken into consideration, or whether relevant matters
had not been taken into consideration, or whether the action is bona fide-- court would not
go over the correctness of decision of the authority based on its merits---if a choice is so
unreasonable to the point that no sensible expert could ever take those actions or employ
the methods adopted, then such activities are subject to be liable and quashed through
Judicial Review--- normally applied to judge the validity of an administrative order or
statutory discretion
 CCSU Test- Laid down in Council of Civil Service Unions v. Minister for the Civil Services- Lord
Diplock summarised the principles of judicial review of admin action as illegality, procedural
impropriety and irrationality--- illegality- means acting beyond the powers, procedural
impropriety means procedural ultra vires and irrationality means outrageous defiance of
logic
 In India Courts will play a secondary role (it cannot substitute the impugned judgment with
its own judgment) when no FRs are involved--- both wednesbury and CCSU principles can be
taken into account --- Jurisdiction of the court to interfere with the quantum of
punishment is limited to very exceptional circumstances
 In India, the rule of proportionality is fully applicable in constitutional adjudication where the
court has to decide on the reasonableness of a restriction on the exercise of fundamental
rights. However, its application in the field of administrative law is still in an evolving stage.
For the present, the doctrine is not available in administrative law in the sense that the court
cannot go into the question of choice made and priority fixed by the administrator, the court
can only see if, given the material before the administrative officer, he has acted as a
reasonable man.--- Application of Proportionality test done in the nature of a primary review
(court has more intensive powers of review than that in secondary review)
 Proportionality test applied when FRs are violated, Wednesbury test applied when ordinary
rights are violated

Use of Proportionality test

 Union of India Vs. G. Ganayutham- first instance of usage of proportionality test in India--
tribunal declared an administrative action which did not involve breach of FRs as excessive
and disproportionate ad also gave the order of a suitable action to be carried out by the
authority--SC set aside the tribunal's decision stating that in such cases, the review court
cannot substitute is own views of the punishment-- held that the 'wednesbury'
unreasonableness will be the guiding principle in India, so long as fundamental rights are not
involved.
 Om Kumar vs UOI- after extensive review of earlier decisions and judicial trends, the SC
came to the conclusion that administrative action in India affecting fundamental freedoms
(Article 19 and Article 21) have always been tested on the anvil of proportionality, even
though it has not been expressly stated that the principle that is applied is the
proportionality principle. Thus the Court categorically held that the doctrine of
proportionality is applicable to Judicial Review of administrative action that is violative of
Article 19 & Article 21 of the Constitution of India. With respect to Article 14 of the
Constitution of India, Supreme Court concluded that when an administrative action is
challenged as discriminatory the Courts would carry out a Primary Review using the doctrine
of proportionality-- However when an administrative action is questioned as arbitrary the
principle of Secondary Review based on Wednesbury principle applies.

Doctrine of Public Accountability

  Based on the premise that the power in the hands of administrative authorities is a public
trust which must be exercised in the best interest of the people.
 Public offices, big or small, are sacred trusts. Every holder of public office is a trustee whose
highest duty is to the people of the country. Every act of the holder of public office, should
be for public good. All powers possessed by a public authority are for public good.
 Another aspect of accountability is an informed citizenry and transparency of information---
RTI act recognises the right of citizens to secure access to information under control of
public authority in order to promote transparency and accountability in the working of every
public authority
 Nilabati Behera vs State of Orissa-the court held that a claim in public law for compensation
for violation of human rights and abuse of power is an acknowledged remedy for the
enforcement and protection of such rights. Thus, every individual has an enforceable right to
compensation when he is a victim of violation of his fundamental rights and abuse of power.
In such a situation, the court observed that leaving the victim to the remedies available in
civil law limits the role of constitutional courts as protectors and guarantors of fundamental
rights of the citizens. Thus courts are under an obligation to make the State or its servants
accountable to the people by compensating them for the violation of their fundamental
rights--- the court laid down that the concept of sovereign immunity is not applicable to the
case of violation of the right to life and personal liberty guaranteed by Article 21 of the
Constitution.

 MC Mehta vs UOI- held that if the harm is caused due to handling of hazardous material, the
liability of the State or its instrumentality will be absolutely strict under the rule of Rylands v.
Fletcher, and such a liability will not admit even the recognised exception of the rule such as
an act of God.
 Mechanism of accountability- legislative scrutiny, Courts, auditors,etc

Doctrine of Promissory Estoppel

 Estoppel is a bar which prevents a party from asserting a fact or putting up claim
inconsistent with the position he previously took either by words or by conduct. It is thus a
rule which precludes a person from saying one thing at one stage and another thing, totally
inconsistent with the earlier one, at another stage
 When one person has by act, omission, declaration or conduct caused or allowed another
person to believe a thing or state of affairs to be true and to act upon that belief, neither he
nor his representative should be allowed in any suit or other proceeding to deny the truth of
that thing or state of affairs.
 Doesn't matter if The facts asserted earlier were true or not; the falsity of facts asserted do
not challenge the applicability of principle of estoppel
 Conditions to fulfil for estoppel:
o A representation or conduct must have been made
o The party to whom such representation has been made has acted upon such
representation
o The party must have acted to his detriment or suffered as a result of such
representation
 Traditional view- estoppel cannot be the basis of an action --- it cannot find a cause of action
 Modern view-- doctrine of promissory estoppel is not really based on the principle of
estoppel (its just the concept)-- it is based on grounds of equity and justice
 UOI vs Indo-Afghan agencies- "Export Promotion Scheme" published-- under that exporters
entitled to import raw materials up to 100% of the value of exports-- petitioner exported
goods worth rs 5lakh-- Authority did not grant the import certificate for full amount of
 goods-- held that govt bound to carry out obligations undertaken in the scheme even though
the scheme was executive in nature
 It should not, however, be forgotten that there cannot be any estoppel against a statute.
The doctrine cannot be allowed to operate so as to validate an ultra vires act or to override
the clear words of a statute nor does it apply to criminal proceedings

Difference Between legitimate expectation and promissory estoppel

State of jharkhand vs Brahmaputra Metallics ltd- 2020 case- difference between legitimate exp and
promiss. estopp---
 "The scope of the doctrine of legitimate expectation is wider than promissory estoppel
because it not only takes into consideration a promise made by a public body but also official
practice, as well."
 "Further, under the doctrine of PE, there may be a requirement to show detriment suffered
by a party due to the reliance placed on its promise... no such requirement is present under
the doctrine of LE"

Exclusion clause
 Finality clauses are provided by the statute to declare that the decision by any agency “shall
be final”.
 Initially courts were of the opinion that the legislature was justified in curtailing this freedom
of the people
 judgments in the later cases including the Maneka Gandhi v. Union of India case, The
Shankari Prasad case and The Sajjan Singh case, The Golaknath and the Keshavananda
Bharti case exemplified the changes in the nature of the Indian Judiciary. Which established
that the power of Judicial Review cannot be completely excluded--- it is a part of the basic
structure of the constitution
 Lot of instances of legislature's intention to bar the power of judicial review-- also
jurisdiction of civil courts (under section 9 CPC)-- but supervisory jurisdiction of HC and SC
under art226 and art32 cannot be curtailed by any means
 Dhulabhai vs State of MP- the jurisdiction of the civil court can only be ousted if the statute
provides for substantial remedies that a civil court would do. Thus upon establishment of
appropriate forum the jurisdiction of the civil court can be assumed to be ousted. However
to keep in check the discretion enjoyed by the administration is not arbitrary the courts can
be said to have distinguish the arbitrary discretion of the administration into two categories,
first being the “abuse of discretion” exceeding their authority and the second is “non-
application of mind” where the administration omits to do what it was supposed to do.
 Kihoto Hollohan vs Zachillhu-Held that the clause 7 of Anti-defection which had taken away
the power of judicial review of the courts could not completely bar the powers of the HC and
SC under 136,226 and 227 ; the courts retained the power to examine the order made by the
Speaker/chairman on the grounds of jurisdictional errors, such as infirmities based on
constitutional mandate violations, mala fides, non-compliance with natural justice rules, and
perversity or whether the action was ultra vires the powers conferred on it-- An action can
be ultra vires if it is carried out in violation of a mandatory provision of the law granting the
authority the ability to do so.

Other Remedies (overview only)

Statutory remedies
  Section 9 of CPC-- entitled to start a civil suit against impugned order in a civil court
 Number of statutes have provisions for filing appeals or revisions at ordinary courts against
orders of admin authorities, eg Workmen's compensation act 1923 --a person aggrieved by
an order passed by the Commissioner may file an appeal in the High Court on a “substantial
question of law”
 Appellate tribunals are created under statutes to provide for filing of appeals against admin
authority decisions-- eg CLAT and NCLAT under companies act

Equitable Remedies
 Declaration: a judgment which merely declares the legal positions of the party and guides
the admin body in discharging its functions
 Injunction: order of the court to a party requiring to refrain from doing or to do a particular
act--- two types : prohibitory and mandatory---an injunction is a negative remedy and in
administrative law, it is granted when an administrative authority does or purports to do
anything ultra vires-- but in some cases it can be positive and mandatory in nature

Ombudsman
 Swedish origin in 1809-- institution which acted as the "watchdog of the administration" or
"the protector of the little man"
 In India the rise of concept of Ombudsman seen in 1968, Lokpal and Lokayutas Bill-- Bill kept
getting rejected or lapse due to various reasons, still hasn't been approved-- main reasons
were if there weren't enough evidence there would be an unreasonable restriction although
the petitioner might have genuine complaints, and other reasons--
 Lokayuktas currently working in 13 states--- anti-corruption authority at the State level--
investigates allegations of corruptions and mal-administration against public servants
Module 8
15 June 2022
19:03
Contractual liability
 Article 298,299
 Article 298- executive power of the Union and of each state shall extend to carrying on of
any trade or business and the acquisition, holding and disposal of property and making of
contracts for any purpose
 Article 299(1)-- sets down mode and manner of execution of such contracts-- all contracts to
be expressed to be made by the president or governor, as the case may be, and executed on
behalf of them by such persons and in such manner as they may direct or otherwise
 Requirements laid down in 299
o Expressed to be made by the president or governor
o Executed by a person authorised by them
o Expressed in the name of the president or governor
 Oral contract not binding on govt- but does not mean there must be a formal agreement bw
parties-- the words "expressed" and "executed" not to be construed in a technical manner---
Chatturbhuj Vithaldas v Moreshwar Parashram- it would be disastrous if hundreds of govt
officers to regularly enter into contracts most of which are of petty nature had to effect
these contracts by a ponderous legal document for it to be valid
 Contract not binding if signed by a person who is not authorised by the president or
governor-- UOI vs NK Pvt ltd- Director was authorised to enter into contract on behalf of
president, secretary of railway board entered into contract-- held contract not binding
 even though such a contract is made by an officer authorised by the government on its
behalf, it is still not enforceable against the government if it is not expressed to be made on
behalf of the President or the Governor--- Bhikraj Jaipuria vs UOI
 The govt cannot ratify the impugned contract since in accordance with constitutional
provisions, there was no contract at all and the question of ratification did not arise--
Mulamchand vs state of mp
 However, govt still liable to dues if voluntary enjoyed services/goods under quasi-
contractual liability (section 70 contract act)--- State of WB vs BK Mondal

Tortious Liability
 Vicarious liability-- liability of State for the tortious acts of its servants
 Article 294(b)-liability of Union and State govt may arise "out of any contract or otherwise"---
"otherwise" suggests there is tortious liability as well
 State of Rajasthan vs Vidhyawati-held govt liable for rash and negligent driving of govt driver
 Basava Patil vs State of Mysore- Stolen ornaments retrieved by police and retained under
the order of the court--- ornaments stolen once again from police custody--- held State liable
to pay cash equivalent of the poperty
 Defence of sovereign function not allowed-- Shyam Sunder vs State of Rajasthan- govt
employee travelling in a govt vehicle lost life due to negligent driving of the driver--- held
State liable while negativing the contention that the act was sovereign and hence, no action
was maintainable-- held that famine relief work is not a sovereign function since there were
private individuals who were also indulged in this work
 N Nagendra Rao vs State of AP- distinction between sovereign and non- sovereign power no
more exists. It all depends on the nature of the power and manner of its exercise. No
civilised system can permit an executive to play with the people of its country and claim that
it is entitled to act in any manner as it is sovereign. Any watertight compartmentalisation of
 the functions of the State as “sovereign and non-sovereign” or “governmental and non-
governmental" is not sound ---Since the doctrine has become outdated and sovereignty now
vests in the people, the State cannot claim any immunity and if a suit is maintainable against
the officer personally, there is no reason to hold that it would not be maintainable against
the State

State bound by the statute-- Supt and Remembrancer of Legal Affairs vs Corpn of Calcutta - the State
was carrying on the trade of a daily market without obtaining a licence as required by the relevant
statute -- held that state was bound by the Statute unless expressly mentioned