Administrative Law

Jogesh Chandra Chaudhuri Law College
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5TH Semester ADMINISTRATIVE LAW Notes

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ADMINISTRATIVE LAW
Introduction
Q. Define the term ‘Administrative Law’. Discuss the sources, nature and object of Administrative Law
in Indian context. Discuss the reasons for growth of Administrative Law.
Administrative Law is, in fact, the body of those which rules regulate and control the administration.
Administrative Law is that branch of law that is concerned with the composition of power, duties, rights
and liabilities of the various organs of the Government that are engaged in public administration. Under
it, we study all those rules laws and procedures that are helpful in properly regulating and controlling
the administrative machinery.
There is a great divergence of opinion regarding the definition/conception of administrative law. The
reason being that there has been tremendous increase in administrative process and it is impossible to
attempt any precise definition of administrative law, which can cover the entire range of administrative
process.
Definition by Ivor Jennings: Ivor Jennings in his "The law and the constitution, 1959" provided the
following definition of the term "administrative law". According to him, "administrative law is the law
relating to the administrative authorities". This is the most widely accepted definition, but there are two
difficulties in this definition.
(1) It is very wide definition, for the law which determines the power and functions of administrative
authorities may also deal with the substantive aspects of such powers.
For example :- Legislation relating to public health services, houses, town and country planning etc.. But
these are not included within the scope and ambit of administrative law, and
(2) It does not distinguish administrative law from constitution law.
Definition by K. C. Davis: According to K. C. Davis, "Administrative law as the law concerning the powers
and procedures of administrative agencies, including especially the law governing judicial review of
administrative action".
Definition by Prof. Wade: According to Wade (Administrative Law, 1967) any attempt to define
administrative law will create a number of difficulties. But if the powers and authorities of the state are
classified as legislative, administrative and judicial, then administrative law might be said "the law which
concerns administrative authorities as opposed to the others".
Again, there are some difficulties with this definition also. It falls to distinguish administrative law from
constitutional law Like Jennings definition mentioned above, this is also very wide definition. It includes
the entire legal field except the legislature and the Judiciary. It also includes the law of local
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Compiled by E – Academics Committee
government. It is also said that it is not possible to divide completely and definitely the functions of
legislative, executive and judiciary.
It is very difficult to say precisely where legislation ends and administrative begins. Though enacting a
law is function of the legislature the administrative authorities, legislate under the powers delegated to
them by the legislature and this delegated legislation is certainly a part of administrative law.
Definition by Garner: According to Garner, administrative law may be described as "Those rules which
are recognised by the court as law and which relates to and regulate the administration of government."
Austin has defined administrative Law. As the law, which determines the ends and modes to which the
sovereign power shall be exercised. In his view, the sovereign power shall be exercised either directly by
the monarch or directly by the subordinate political superiors to whom portions of those are delegated
or committed in trust.
Holland regards Administrative Law “one of six” divisions of public law. In his famous book “Introduction
to American Administrative Law 1958”.
Bernard Schawartz has defined Administrative Law as “the law applicable to those administrative
agencies which possess of delegated legislation and adjudicatory authority.”
Jennings has defined Administrative Law as “the law relating to the administration. It determines the
organization, powers and duties of administrative authorities.”
Dicey in 19th century defines it as.
Firstly, portion of a nation’s legal system which determines the legal statues and liabilities of all State
officials.
Secondly, defines the right and liabilities of private individuals in their dealings with public officials.
Thirdly, specifies the procedure by which those rights and liabilities are enforced.
This definition suffers from certain imperfections. It does not cover several aspects of administrative
law, e.g. it excludes the study of several administrative authorities such as public corporations which are
not included within the expression “State officials,” it excludes the study of various powers and
functions of administrative authorities and their control. His definition is mainly concerned with one
aspect of administrative. Law, namely, judicial control of public officials.
A famous jurist Hobbes has written that there was a time when the society was in such a position that
man did not feel secured in it. The main reason for this was that there were no such things as
administrative powers. Each person had to live in society on the basis of his own might accordingly to
Hobbes, “ In such condition, there was no place for industry, arts, letters and society. Worst of all was
the continual fear of danger, violent death and life of man solitary poor, nasty and brutish and short.
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The jurists are also of the view that might or force as a means for the enforcement of any decision by
man could continue only for some time. To put it is other words, the situation of “might is right” was
only temporary. It may be said to be a phase of development. This can be possible only through the
medium of law. Hence, law was made and in order to interpret it and in order to determine the rights
and duties on the basis of such interpretation, this work was entrusted to a special organ that we now
call judiciary. The organ, which was given the function of enforcing the decision of judicial organ, is
called executive. It has comparatively a very little concern with the composition of the executive organ.
Sources of Administrative Law
There are four principal sources of administrative law in India:-
• Constitution of India • Acts and Statutes • Ordinances, Administrative directions, notifications and
Circulars • Judicial decisions
Administrative law is not a codified, written or well-defined law like Contract Act, Penal Code etc. It is
essentially unwritten, unmodified or 'Judge-made' law. It has developed slowly in the wake of factual
situations before courts. In a welfare State, administrative authorities are called upon to perform not
only executive acts, but also quasi-legislative and quasi-judicial functions. They used to decide right of
parties and has became fourth branch of Government, a 'Government in miniature'. Legal scholars have
compared it to the rise of equity. It has in need and necessity in protecting personal rights and in
safeguarding individual interests.
In few legal system there are statutes laying down rules, principles and procedures to be followed by
administrative agencies. But even in absence of specific enactments dealing with a particular situation,
certain fundamental rules, basic principles and minimum requirements of law are well settled and all
authorities are bound to observe them. A person adversely affected by any action of an administrative
authority has a right to challenge such action in an appropriate body or court of law. Even if no remedy
is provided by a statutory enactment or the action taken by the such authority is treated as 'final', an
aggrieved party may invoke Articles 226, 227, 32 or 126 of the Constitution for redressal of his
grievances. Administrative law is thus based on the well known legal maxim 'ubi jus ibi remedium'
(wherever there is right, there is remedy)
Nature and Scope of Administrative Law
The administrative law has growing importance and interest and the administrative law is the most
outstanding phenomena in the welfare state of today. Knowledge of administrative law is as important
for the officials responsible for carrying on administration as for the students of law.
Administrative law is not codified like the Indian Penal code or the law of Contracts. It is based on the
constitution. No doubt the Court of Law oversees and ensure that the law of the land is enforced.
However, the “very factor of a rapid development and complexity which gave rise to regulation made
specific and complete treatment by legislation impossible and, instead, made necessary the choice of
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the body of officers who could keep abreast of the novelties and intricacies which the problems
presented.”
Administrative law is essentially Judge made law. It is a branch of public law as compared to private law-
relations inter-se. Administrative law is an ever-expanding subject in developing society and is bound to
grow in size as well as quality in coming the decades. We need an efficient regulatory system, which
ensures adequate protection of the people’s Rights.
Principle of Administrative Law emerges whenever any person becomes the victim of arbitrary exercise
of public power. Therefore Administrative law deals with relationship of administration with power.
The administrative agencies derive their authority from constitutional law and statutory law. The laws
made by such agencies in exercise of the powers conferred on them also regulate their action. The
principle features are: (a) transfer of power by legislature to administrative authorities, (b) exercise of
power by such agencies, and (c) judicial review of administrative decisions.
Administrative law relates to individual rights as well as public needs and ensures transparent, open and
honest governance, which is more people-friendly.
Inadequacy of the traditional Court to respond to new challenges has led to the growth of
administrative adjudicatory process. The traditional administration of justice is technical, expensive and
dilatory and is not keeping pace with the dynamics of everincreasing subject matter. Because of
limitation of time, the technical nature of legislation, the need for flexibility, experimentations and quick
action resulted in the inevitable growth of administrative legislative process.
Administrative law deals with the organization and powers of administrative and powers quasi-
administrative agencies.
Administrative law primarily concerns with official action and the procedure by which the official action
is reached.
Administrative law includes the control mechanism (judicial review) by which administrative authorities
are kept within bounds and made effective.
Purpose of Administrative Law
There has never been any serious doubt that administrative law is primarily concerned with the control
of power. With the increase in level of state involvement in many aspects of everyday life during the first
80 years of the twentieth century, the need for a coherent and effective body of rules to govern
relations between individuals and the state became essential. The 20th century saw the rise of the
“regulatory state” and a consequent growth in administrative agencies of various kinds engaged in the
delivery of a wide variety of public programs under statutory authority. This means, in effect, the state
nowadays controls and supervises the lives, conduct and business of individuals in so many ways. Hence
controlling the manner of exercise of public power so as to ensure rule of law and respect for the right
and liberty of individuals may be taken as the key purpose of administrative law.
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According to Peer Leyland and Tery Woods (Peter Leyland and Terry Woods, Textbook on Administrative
Law, 4th ed. ) Administrative law embodies general principles applicable to the exercise of the powers
and duties of authorities in order to ensure that the myriad and discretionary powers available to the
executive conform to basic standards of legality and fairness. The ostensible purpose of these principles
is to ensure that there is accountability, transparency and effectiveness in exercising of power in the
public domain, as well as the observance of rule of law.
Peer Leyland and Tery Woods have identified the following as the underlying purposes of administrative
law.
• It has a control function, acting in a negative sense as a brake or check in respect of the unlawful
exercise or abuse of governmental/ administrative power.
• It can have a command function by making public bodies perform their statutory duties,
including the exercise of discretion under a statute.
• It embodies positive principles to facilitate good administrative practice; for example, in

ensuring that the rules of natural justice or fairness are adhered to.
• It operates to provide accountability and transparency, including participation by interested

individuals and parties in the process of government.
• It may provide a remedy for grievances at the hands of public authorities.
Similarly I.P. Massey (I.P. Massey, Administrative Law, 5th ed.) identifies the four basic bricks of the
foundation of administrative law as:
• To check abuse of administrative power.
• To ensure to citizens an impartial determination of their disputes by officials so as to protect

them from unauthorized encroachment of their rights and interests.
• To make those who exercise public power accountable to the people.
To realize these basic purposes, it is necessary to have a system of administrative law rooted in basic
principles of rule of law and good administration. A comprehensive, advanced and effective system of
administrative law is underpinned by the following three broad principles:
Administrative justice, which at its core, is a philosophy that in administrative decision- making the
rights and interests of individuals should be properly safe guarded.
Executive accountability, which has the aim of ensuring that those who exercise the executive (and
coercive) powers of the state can be called on to explain and justify the way in which they have gone
about that task.
Good administration- Administrative decision and action should conform to universally accepted
standards, such as rationality, fairness, consistency and transparency.
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Reasons For Growth Of Administrative Law
1. Changed relations of Authorities and Citizens: It can be seen from the present set up of the
Administration that relations of the public authorities with the citizens have been deeply changed.
Citizens were not directly involved in the administration in the earlier days. They were somewhat
isolated from the sphere of Administration. There was a wide gap between the Administrative organs
and the then citizens. This is not the case today. Today in most of the states there is a democratic
Administration of either type. It is therefore, the association of the people is found to be integral. The
citizens are closely associated with the state Administration. In view of these changing relations, the
basic structure of the legal set up needs to be rearranged. The Administrative law, has therefore,
developed.
2. Origin of Welfare State Concept: During the period of 19th and 20th Century the concept of state was
developed. According to the doctrine of welfare the basic objective of the State Administration is to
achieve maximum Welfare of the masses. Each and every policy of the state should aim at maximum
welfare of the people. It obviously added to the functions of state. The theory of increasing functions of
the state has been accepted by almost all. Increase in functions of the states created several problems
and complications. It was, therefore, thought necessary to solve the problems to enact separate Branch
of Law and hence the branch known as the Administrative Law has been developed.
3. Inadequacy of the Legislations: At present there are several drawbacks in the present Legislations. It
would have been, therefore, found very difficult to accommodate the new Administrative machinery in
the existing legislations. In order to meet the expanding needs of changed social, economic
characterised problems, the new branch of law, i.e. Administrative Law was necessary.
4. Inadequacy of Courts: As it is quite known to us that the present courts are overburdened with the
huge work, it is almost impossible for the present set of courts to solve the ever crowded problems of
Administration along with its own. It is therefore, proposed that there should be separate Branch of Law
for the problems of Administration and hence this new Branch has been developed.:
5. Technical Experts are with Administrative Organs: At present all the technical experts are with the
Administrative organs. In case it is attempted to shift the legal job of Administration to the present
judiciary and the present legislations, the same will be handicapped due to lack of technical knowledge.
Thus in order to utilise and use the talent of the technical experts which are at present with the
Administrative organs it is really wise creating new and co-ordinating branch of law i.e. Administraive
law.
And Lastly, we can say that they act as an impartial arbitrator, and hence there is a need of separate
Administrative Law.
6. Union of both Administrative & Judicial Function: As per the Principle of separation of powers these
organs of Administration have been proposed and created. The Executive, the Legislative and Judiciary
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are these three organs which are functioning separately. But in order to co-ordinate both Administrative
Law for Administrative Organs.
7. The Judicial System Proved Inadequate: To decide and settle all the disputes. It was slow, costly
inexpert, complex and formalistic. It was already over-burndened, and it was not possible to expect
speedy disposal of even very important matters. e.g. Disputes between employers and employees, lock-
outs, strikes etc. Therefore industrial tribunals and labour courts were established which possessed the
techniques and experts to handle these complex problems.
Final Glance: In simple words, the reason behind the growing importance of Administrative law is the
assumption by the Administrative authorities of very wide powers including legislative and judicial which
was the result of the social welfare state. Since Administrative law is primarily concerned with the
control over the exercise of their powers, i.e. to prevent Administrative authorites from abuse and
misuse of powers, it has become a subject of growing interest
Q. “It is logically impossible to distinguish Administrative Law from Constitutional Law." - Comment
Constitutional law and administrative law both are concerned with functions of government, both are a
part of public law in the modern state and the sources of the both are the same. Yet there is a
distinction between the two. The administrative law is an addition of the constitutional law. To the early
English writers on administrative law there was no difference between administrative law and
constitutional law. Therefore, Keith observed: “It is logically impossible to distinguish administrative
from constitutional law and all attempts to do so are artificial”.
Actually the distinction between the two is one of degree, convenience and custom rather than that of
logic and principle. However, according to Holland, “Constitutional law describes the various organs of
the government at rest, while administrative law describes them in motion”
Therefore, according to this view, the structure of the legislature and executive comes within the
purview of the constitutional law but there functioning comes within the sphere of administrative law.
But Maitland does not agree with this classification because in that case powers and prerogatives of the
crown would be relegated to the arena of administrative law.
According to Jennings - administrative law deals with the organization, functions, powers and duties of
administrative authorities while constitutional law deals with the general principles relating to the
organization and powers of the various organs of the state and their mutual relationship of these organs
with the individuals. In other words, constitutional law deals with fundamentals while administrative law
deals with details.
It may also be pointed out that constitutional law deals with the rights and administrative law lays
emphasis on public need. However, the dividing line between the constitutional law and administrative
law is a matter of convenience because every student of administrative law has to study some
constitutional law.
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In countries which have written constitutions the difference between constitutional law and
administrative law is not so blurred as in England. In such countries the source of constitutional law is
the constitution while the source of administrative law may be statutes, statutory instruments,
precedents and custom.
Whatever may be the argument and counter argument, the fact today that administrative law is
recognized as a separate independent branch of legal discipline though at times the discipline of
constitutional law and administrative law may overlap. The correct position seems to be that if one
draws two circles of administrative law and a constitutional law, a certain place they may overlap and
this area may be termed as ‘watershed’ in administrative law. This formulation does not differentiate
between administrative law and constitutional law. It lays entire emphasis on the organization, power
and duties to the exclusion of the manner of their exercise. A student of administrative law is not
concerned with how a minister is appointed but only with how a minister discharges his functions in
relation to an individual or a group. How the minister of housing and rehabilitation is appointed is not
the concern of administrative law but when this minister approves a scheme of new township which
involves the acquisition of houses and lands of persons living in that area questions of administrative law
arise. Jennings’ formulation also leaves many aspects of administrative law untouched, especially the
control mechanism.
However some of the most important differences between the constitutional and administrative law of
India are:
Constitutional Law:
1. It is the supreme and highest law of the country. No law can be regarded above the law of
constitution of India.
2. The constructional law is always regarded as the genus. It is the main law.
3. This law mainly deals with various organs of a state.
4. It mainly deals with the structure of the state.
5. It touches all the branches of law and gives guidelines with regard to the general principal relating to
organization and powers of organs of the state, and their relations between citizens and towards the
state.
6. It also gives guidelines about the intentional relations.
7. It deals with the general principal of state pertaining to all branches.
8. It demarcates the constitutional status of Ministers and public servants.
9. It imposes certain negative duties on administrators, if they are found violating the fundamental
rights of the citizens and etc. It also imposes certain positive duties on administrators, viz,
implementation of social welfare schemes.
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10. The constitutional laws have complete control on the administrative law and administrators of the
country.
Administrative Law:
1. It is not the supreme law of the country rather it is subordinate to the constitutional law.
2. Administrative law is the species of Constitution law.
3. It deals with the organs of the state as motion.
4. It mainly deals with the various functions of the state.
5. It doesn't deal with all branches of law, rather it details with the powers and functions of
administrative authorities.
6. It does not deal with the international law. It deals exclusively with the powers and functions of
administrative authorities.
7. It deals with the powers and functions of administrative authorities, including services, public
departments, local authorities and other statutory bodies exercising administrative powers, quasi
judicial powers, etc.
8. It is concerned with the organization of the services or the working of the various government
departments.
9. The administrators have to follow constitutional law first and next the administrative law.
10. The administrators should perform their functions with utmost obedience to constitutional law.
Administrative law is just a subordinate to constitutional law.
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Rule of Law
Q. Discuss significance of the doctrine of Rule of Law and its application in India with reference to the
Constitutional provisions.
The concept of Rule of Law is that the state is governed, not by the ruler or the nominated
representatives of the people but by the law. A county that enshrines the rule of law would be one
where in the Grundnorm of the country, or the basic and core law from which all other law derives its
authority is the supreme authority of the state. The monarch or the representatives of the republic are
governed by the laws derived out of the Grundnorm and their powers are limited by the law. The King is
not the law but the law is king.
The origins of the Rule of Law theory can be traced back to the Ancient Romans during the formation of
the first republic; it has since been championed by several medieval thinkers in Europe such as Hobbs,
Locke and Rousseau through the social contract theory. Indian philosophers such as Chanakya have also
espoused the rule of law theory in their own way, by maintain that the King should be governed by the
word of law. The formal origin of the word is attributed to Sir. Edward Coke, and is derived from French
phase ‘la principe de legalite’ which means the principle of legality. The firm basis for the Rule of Law
theory was expounded by A. V. Dicey and his theory on the rule of law remains the most popular.
Dicey’s theory has three pillars based on the concept that “a government should be based on principles
of law and not of men”, these are:
Supremacy of Law: : This has always been the basic understanding of rule of law that propounds that
the law rules over all people including the persons administering the law. The law makers need to give
reasons that can be justified under the law while exercising their powers to make and administer law.
Equality before the Law: While the principle of supremacy of law sets in place checks and balances over
the government on making and administering law, the principle of equality before the law seeks to
ensure that the law is administered and enforced in a just manner. It is not enough to have a fair law but
the law must be applied in a just manner as well. The law cannot discriminate between people in
matters of sex, religion, race etc. This concept of the rule of law has been codified in the Indian
Constitution under Article 14 and the Universal Declaration of Human Rights under the preamble and
Article 7.
Predominance of legal spirit: In including this as a requirement for the rule of law, Dicey’s belief was
that it was insufficient to simply include the above two principles in the constitution of the country or in
its other laws for the state to be one in which the principles of rule of law are being followed. There
must be an enforcing authority and Dicey believed that this authority could be found in the courts. The
courts are the enforcers of the rule of law and they must be both impartial and free from all external
influences. Thus the freedom of the judicial becomes an important pillar to the rule of law.
In modern parlance Rule of Law has come to be understood as a system which has safe guards against
official arbitrariness, prevents anarchy and allows people to plan the legal consequences of their
actions.
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THEORETICAL APPLICATION OF RULE OF LAW IN INDIA: Indian adopted the Common law system of
justice delivery which owes its origins to British jurisprudence, the basis of which is the Rule of Law.
Dicey famously maintained that the Englishman does not need Administrative law or any form of written
law to keep cheeks on the government but that the Rule of Law and natural law would be enough to
ensure absence of executive arbitrariness. While India also accepts and follows the concept of natural
law, there are formal and written laws to ensure compliance.
The Constitution of India intended for India to be a country governed by the rule of law. It provides that
the constitution shall be the supreme power in the land and the legislative and the executive derive
their authority from the constitution. Any law that is made by the legislative has to be in conformity with
the Constitute failing which it will be declared invalid, this is provided for under Article 13 (1). Article 21
provides a further check against arbitrary executive action by stating that no person shall be deprived of
his life or liberty except in accordance with the procedure established by law.
Article 14 ensures that all citizens are equal and that no person shall be discriminated on the basis of
sex, religion, race or place of birth, finally it ensures that there is separation of power between the three
wings of the government and the executive and the legislature have no influence on the judiciary. By
these methods, the constitution fulfils all the requirements of Dicey’s theory to be recognized as a
country following the Rule of Law.
The Supreme Court of Indian has further strengthened this mechanism through its various judgements,
the foremost of them being, A D M Jabalpur v. Shivkanth Shukla, AIR 1976 SC 1207 In this case, the
question before the court was ‘whether there was any rule of law in India apart from Article 21’. This
was in context of suspension of enforcement of Articles 14, 21 and 22 during the proclamation of an
emergency. The answer of the majority of the bench was in negative for the question of law. However
Justice H.R. Khanna dissented from the majority opinion and observed that: “Even in absence of Article
21 in the Constitution, the state has got no power to deprive a person of his life and liberty without the
authority of law. Without such sanctity of life and liberty, the distinction between a lawless society and
one governed by laws would cease to have any meaning…Rule of Law is now the accepted norm of all
civilized societies”
In Chief settlement Commr; Punjab v. Om Prakash , it was observed by the Supreme Court that, “In our
constitutional system, the central and most characteristic feature is the concept of rule of law which
means, in the present context, the authority of law courts to test all administrative action by the
standard of legality. The administrative or executive action that does not meet the standard will be set
aside if the aggrieved person brings the matter into notice.” In the case of Satvant Singh Sawhney v. D
Ramarathanana, AIR 1967 SC 1836 the Supreme Court has held that every executive action if it
operates to the prejudice of any person must be supported by some legislative authority.
In Secretary, State of Karnataka and Ors. v. Umadevi and Ors. AIR 2006 SC 1806 a Constitution Bench
of this Court has laid down the law in the following terms: “Thus, it is clear that adherence to the rule of
equality in public employment is a basic feature of our Constitution and since the rule of law is the core
of our Constitution, a court would certainly be disabled from passing an order upholding a violation of
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Article 14 or in ordering the overlooking of the need to comply with the requirements of Article 14 read
with Article 16 of the Constitution.”
Most famously in the case of Kesavananda Bharati v. State of Kerala, AIR 1973 SC 1461 the Supreme
Court held that the Rule of Law is an essential part of the basic structure of the constitution and as such
cannot be amended by any Act of Parliament, thereby showing how the law is superior to all other
authority of men.
PRACTICAL APPLICATION OF RULE OF LAW IN INDIA: Critiques have often maintained that the Rule of
Law in India is merely a theory with no practical application. While it cannot be denied that the country
is one where corruption runs rampant and according to 2012 World Justice Project data, India fares well
on openness of government and democratic controls, in the category limited government powers, which
evaluates the checks on government, India ranks 37th of the 97 countries surveyed around the world, is
first among five in its region, and comes in second out of 23 lower-middle-income countries. Yet the rule
of law that exists on paper does not always exist in practice. When it comes to procedural effectiveness,
India fares poorly. In the categories of absence of corruption and order and security, India ranks 83rd
and 96th globally.
In addition to the problem faced in India due to corruption in the law making and justice delivery
systems, there also exists the problem of old laws still being in place. India does not adopt a ‘sunset’
clause in its laws and post independence the Indian Independence Act provided that all laws existing
under the colonial rulers would continue to exist under the new system unless explicitly revoked by the
parliament. While this did provide the nation with a firm basic system of laws, thereby preventing a
situation of anarchy in the immediate aftermath of independence, some of these laws were drafted to
suit the environment of those time and they become hard to interpret in the current environment. This
leads to ambiguity and endless litigation in an attempt to interpret the provisions.
While these problems persist it is important to note that the constitutional mechanism has provided
enough safe guards to endure that the Rule of Law in some form will always persist. One of the most
important factors contributing to the maintenance of the Rule of Law is the activity of the courts in the
interpretation of the law. It is rightly reiterated by the Supreme Court in the case Union of
India v. Raghubir Singh that it is not a matter of doubt that a considerable degree that governs the lives
of the people and regulates the State functions flows from the decision of the superior courts. Most
famously in the case of Maneka Gandhi v. Union of India, AIR 1978 SC 597 the court ensured that
exercise of power in an arbitrary manner by the government would not infringe the rights of the people
and in Kesavananda Bharati the court ensured that laws could not be made that essentially go against
the Rule of Law by saying that the basic structure could not be breached.
Apart from judicial decision the constitutional mechanism in itself provides for the protection of the rule
of law through the creation of monitoring agencies. While there have been numerous scams that have
come to light in the last few years, the fact that must also be noted is that these scams have come to
light and the justice delivery mechanism has been set in motion against the perpetrators. The role of the
Central Vigilance Commission and the Comptroller and Auditor General in the exposure of these
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discrepancies is commendable and this shows how the law has provided for its own protection by
putting in place multiple levels of safe guards which ensure that it will be effective at some level. The
Election Commission of India, a constitutional body has also been undertaking the task of ensuring free
and fair elections with some degree of efficiency.
CRITICISM: Dicey's Concept of Rule of Law is optimist in Nature which is very difficult to execute in the
country like India. Our designers of the constitution while fusing the guardian demonstration attempted
to include the idea into the Constitution of India yet the expectation with which our composers fused
the idea have gone in vain. Though it is interesting to note that while on ideological plain majority rule
government should protect the rule of law and the organization of criminal equity, in real practice, the
discretionary procedure which is a necessary piece of vote based system is undermining the principle of
law and due organization of criminal equity. This must be put to an end. The conventional idea in all
cultivated liberal countries is that majority rule government and rule of law are close partners of each
other. It has to be the effort of all well-meaning persons to ensure that their kinship is not weakened
and that each of them continues to lend strength to the other. In all matters such as the protection of
the rights of the people, equal treatment before the law, protection against excessive arbitrariness, the
Constitution of India has provided enough mechanisms to ensure that the Rule of Law is followed.
The key idea of the rule of law is that the law should apply equally to all rulers and ruled alike. There is
not much a difference as far as the usage and importance of doctrine is considered in our country. The
concept of rule of law does not merely mean formal legality which assures regularity and consistency in
the achievement and enforcement of democratic order, but justice based on the recognition and full
acceptance of the supreme value of the human personality and guaranteed by institutions providing a
framework for its fullest expression.
CONCLUSION: The founding fathers of India accomplished what the rest of the world though impossible-
establish a country that would follow the letter of the law and implement the Rule of Law. In all matters
such as the protection of the rights of the people, equal treatment before the law, protection against
excessive arbitrariness, the Constitution of India has provided enough mechanisms to ensure that the
Rule of Law is followed. Through its decisions the Courts have strived to reinforce these mechanisms
and ensure smooth justice delivery to all citizens. Problems such as outdates legislations and
overcrowded courts are but small hindrances and bodies such as the Law Commission of India work
towards ironing out these problems with the aim of achieving a system where there are no barriers to
the smooth operation of the Rule of Law.
Q. Write a note on the theory of Separation of Power. Explain the concept of ‘Droit Administratiff”.
The doctrine of Separation of Powers is of ancient origin. The history of The origin of the doctrine is
traceable to Aristotle. In the 16th and 17th Centuries, French philosopher John Boding and British
Politician Locke respectively had expounded the doctrine of separation of powers. But it was
Montesquieu, French jurist, who for the first time gave it a systematic and scientific formulation in his
book ‘Esprit des Lois’ (The spirit of the laws).
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Montesquieu’s view Montesquieu said that if the Executive and the Legislature are the same person or
body of persons, there would be a danger of the Legislature enacting oppressive laws which the
executive will administer to attain its own ends, for laws to be enforced by the same body that enacts
them result in arbitrary rule and makes the judge a legislator rather than an interpreter of law. If one
person or body of persons could exercise both the executive and judicial powers in the same matter,
there would be arbitrary powers, which would amount to complete tyranny, if the legislative power
would be added to the power of that person. The value of the doctrine lies in the fact that it seeks to
preserve human liberty by avoiding the concentration of powers in one person or body of persons. The
different organs of government should thus be prevented from encroaching on the province of the
other organ.
This theory has had different application in France, USA and England. In France, it resulted in the
rejection of the power of the courts to review acts of the legislature or the executive. The existence of
separate administrative courts to adjudicate disputes between the citizen and the administration owes
its origin to the theory of separating of powers. The principle was categorically adopted in the making of
the Constitution of the United States of America. There, the executive power is vested in the president.
Article the legislative power in congress and the judicial power in the Supreme Court and the courts
subordinates thereto. The President is not a member of the Congress. He appoints his secretaries on the
basis not of their party loyalty but loyalty to himself. His tenure does not depend upon the confidence of
the Congress in him. He cannot be removed except by impeachment, However, the United States
constitution makes departure from the theory of strict separation of powers in this that there is
provision for judicial review and the supremacy of the ordinary courts over the administrative courts or
tribunals.
In the British Constitution the Parliament is the Supreme legislative authority. At the same time, it has
full control over the Executive. The harmony between the Legislator and the (Executive) is secured
through the Cabinet. The Cabinet is collectively responsible to the Parliament. The Prime Minister is the
head of the party in majority and is the Chief Executive authority. He forms the Cabinet. The Legislature
and the Executive are not quite separate and independent in England, so far as the Judiciary is
concerned its independence has been secured by the Act for Settlement of 1701 which provides that the
judges hold their office during good behaviour, and are liable to be removed on a presentation of
addresses by both the Houses of Parliament. They enjoy complete immunity in regard to judicial acts.
In India, the executive is part of the legislature. The President is the head of the executive and acts on
the advice of the Council of Ministers. Article 53 and 74 (1) He can be impeached by Parliament. Article
56 (1) (b) read with Art 61, Constitution. The Council of Ministers is collectively responsible to the Lok
Sabha Article 75 (3) and each minister works during the pleasure of the President. Article 75 (2) If the
Council of Ministers lose the confidence of the House, it has to resign.
Functionally, the President’s or the Governor’s assent is required for all legislations. (Articles 111,200
and Art 368). The President or the Governor has power of making ordinances when both Houses of the
legislature are not in session. (Articles 123 and 212). This is legislative power, and an ordinance has the
same status as that of a law of the legislature. (AK Roy v Union of India AIR 1982 SC 710) The President
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or the Governor has the power to grant pardon (Articles 72 and 161) The legislature performs judicial
function while committing for contempt those who defy its orders or commit breach of privilege
(Articles 105 (3) 194 (3) Thus, the executive is dependent on the Legislature and while it performs some
legislative functions such as subordinate it, also performs some executive functions such as those
required for maintaining order in the house.
There is, however, considerable institutional separation between the judiciary and the other organs of
the government.
The Judges of the Supreme Court are appointed by the President in consultation with the Chief justice of
India and such of the judges of the supreme Court and the High Courts as he may deem necessary for
the purpose. (Article 124 (2)).
The Judges of the High Court are appointed by the President after consultation with the Chief Justice of
India, the Governor of the state, and, in the case of appointment of a judge other than the Chief justice,
the Chief Justice of the High Court( Article 217 (1).)
It has now been held that in making such appointments, the opinion of the Chief justice of India shall
have primacy. (Supreme Court Advocates on Record Association.) The judges of the high Court and the
judges of the Supreme Court cannot be removed except for misconduct or incapacity and unless an
address supported by two thirds of the members and absolute majority of the total membership of the
House is passed in each House of Parliament and presented to the President Article 124 (3) An
impeachment motion was brought against a judge of the Supreme court, Justice Ramaswami, but it
failed to receive the support of the prescribed number of members of Parliament. The salaries payable
to the judges are provided in the Constitution or can be laid down by a law made by Parliament. Article
125(1) and Art 221 (1).
Every judge shall be entitled to such privileges and allowances and to such rights in respect of absence
and pension, as may from time to time be determined by or under any law made by Parliament and until
so determined, to such privileges, allowance and rights as are specified in the Second Schedule. Neither
the privileges nor the allowance nor his rights in respect of leave of absence or pension shall be varied to
his disadvantage after his appointment.
Appointments of persons to be, and the posting and promotion of, district judges in any state shall be
made by the Governor of the State in consultation with the High Court exercising jurisdiction in relation
to such state (Article 233) The control over the subordinate courts is vested in the acts of the Legislature
as well as the executive. The Supreme Court has power to make rules (Article 145) and exercises
administrative control over its staff. The judiciary has power to enforce and interpret laws and if they
are found in violation of any provision of the Constitution, it can declare them unconstitutional and
therefore, void. It can declare the executive action void if it is found against any provisions of the
Constitution. Article 50 provides that the State shall take steps to separate the judiciary from the
executive.
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Thus, the three organs of the Government (i.e. the Executive, the Legislature and the Judiciary) are not
separate. Actually the complete demarcation of the functions of these organs of the Government is not
possible.
The Constitution of India does not recognize the doctrine of separation of power in its absolute rigidity,
but the functions of the three organs of the government have been sufficiently differentiated.( Ram
Jawaya v. State of Punjab, AIR 1955 SC 549) None of the three of organs of the Government can take
over the functions assigned to the other organs.( Keshanand Bharti v. State of Kerala, AIR 1973 SC
1461, Asif Hameed v. State of J&K 1989 AIR, SC 1899)
In State of Bihar v. Bihar Distillery Ltd., (AIR 1997 SC 1511) the Supreme Court has held that the judiciary
must recognize the fundamental nature and importance of the legislature process and must accord due
regard and deference to it. The Legislative and Executive are also expected to show due regard and
deference to the judiciary. The Constitution of India recognizes and gives effect to the concept of
equality between the three organs of the Government. The concept of checks and balance is inherent in
the scheme.
Droit Administratif
French administrative law is known as Droit Administratif which means a body of rules which determine
the organization, powers and duties of public administration and regulate the relation of the
administration with the citizen of the country. Droit Administrative does not represent the rules and
principles enacted by Parliament. It contains the rules developed by administrative courts.
Napoleon Bonaparte was the founder of the Droit administrative. It was he who established the Conseil
d’Etat. He passed an ordinance depriving the law courts of their jurisdiction on administrative matters
and another ordinance that such matters could be determined only by the Conseil d’Etat.
Waline, the French jurist, propounds three basic principles of Droit Administrative:
1. the power of administration to act suo motu and impose directly on the subject the duty to obey its
decision;
2. the power of the administration to take decisions and to execute them suo motu may be exercised
only within the ambit of law which protects individual liberties against administrative arbitrariness;
3. the existence of a specialized administrative jurisdiction.
One good result of this is that an independent body reviews every administrative action The Conseil
d’Etat is composed of eminent civil servants, deals with a variety of matters like claim of damages for
wrongful acts of Government servants, income-tax, pensions, disputed elections, personal claims of civil
servants against the State for wrongful dismissal or suspension and so on. It has interfered with
administrative orders on the ground of error of law, lack of jurisdiction, irregularity of procedure and
detournement depouvior (misapplication of power). It has exercised its jurisdiction liberally.
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Main characteristic features of droit administratif. The following characteristic features are of the Droit
Administratif in France:-
1. Those matters concerning the State and administrative litigation falls within the jurisdiction of
administrative courts and cannot be decided by the land of the ordinary courts.
2. Those deciding matters concerning the State and administrative litigation, rules as developed by the
administrative courts are applied.
3. If there is any conflict of jurisdiction between ordinary courts and administrative court, it is decided
by the tribunal des conflicts.
4. Conseil d’Etat is the highest administrative court.
Prof. Brown and Prof. J.P. Garner have attributed to a combination of following factors as responsible for
its success
i) The composition and functions of the Conseil d’Etat itself;
ii) The flexibility of its case-law;
iii) The simplicity of the remedies available before the administrative courts;
iv) The special procedure evolved by those courts; and
v) The character of the substantive law, which they apply.
Despite the obvious merits of the French administrative law system, Prof. Dicey was of the opinion that
there was no rule of law in France nor was the system so satisfactory as it was in England. He believed
that the review of administrative action is better administered in England than in France.
The system of Droit Administratif according to Dicey, is based on the following two ordinary principles
which are alien to English law—
Firstly, that the government and every servant of the government possess, as representative of the
nation, a whole body of special rights, privileges or prerogatives as against private citizens, and the
extent of rights, privileges or considerations which fix the legal rights and duties of one citizen towards
another. An individual in his dealings with the State does not, according to French law; stand on the
same footing as that on which he stands in dealing with his neighbor.
Secondly, that the government and its officials should be independent of and free from the jurisdiction
of ordinary courts.
It was on the basis of these two principles that Dicey observed that Droit Administratif is opposed to rule
of law and, therefore, administrative law is alien to English system. But this conclusion of Dicey was
misconceived. Droit Administratif, that is, administrative law was as much there in England as it was in
France but with a difference that the French Droit Administratif was based on a system, which was
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unknown to English law. In his later days after examining the things closely, Dicey seems to have
perceptibly modified his stand.
Despite its overall superiority, the French administrative law cannot be characterized with perfection. Its
glories have been marked by the persistent slowness in the judicial reviews at the administrative courts
and by the difficulties of ensuring the execution of its last judgment. Moreover, judicial control is the
only one method of controlling administrative action in French administrative law, whereas, in England,
a vigilant public opinion, a watchful Parliament, a self-disciplined civil service and the jurisdiction of
administrative process serve as the additional modes of control over administrative action. By contrast,
it has to be conceded that the French system still excels its counterpart in the common law countries of
the world.
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Delegated Legislation
Q. What do you understand by the term ‘Delegated Legislation’? What are the merits and demerits of
Delegated Legislation? Discuss the reasons for the growth of Delegated Legislation. What do you
mean by Sub -delegated legislation?
The Constitution of Indian empowers Legislature to make laws for the country. One of the significant
legislative functions is to determine a legislative policy and to frame it as a rule of conduct. Obviously
such powers cannot be conferred on other institutions. But keeping in mind various multifarious
activities of a welfare State, it is not possible for the legislature to perform all the functions. In such
situation, the delegated legislation comes into the picture. Delegated Legislature is one of the essential
elements of administration whereby the executive has to perform certain legislative functions. However,
one must not forget the risk associated with the process of delegation. Very often, an overburdened
Legislature may unduly exceed the limits of delegation. It may not lay down any policy; may declare any
of its policy as vague and may set down any guidelines for the executive thereby conferring wide
discretion to the executive to change or modify any policy framed by it without reserving for itself any
control over subordinate legislation. Therefore, even though Legislature can delegate some of its
functions, it must not lose its control completely over such functions.
Meaning: Delegated legislation (sometimes referred as secondary legislation or subordinate legislation

or subsidiary legislation) is a process by which the executive authority is given powers by primary
legislation to make laws in order to implement and administer the requirements of that primary
legislation. Such law is the law made by a person or body other than the legislature but with the
legislature’s authority.
Legislation by any statutory authority or local or other body other than the Legislature but under the
authority of the competent legislature is called Delegated legislation. It is legislation made by a person
or body other than Parliament. Parliament thereby, through primary legislation, enables others to make
law and rules through a process of delegated legislation.
Need For Delegated Legislation: The process of delegated legislation enables the Government to make a
law without having to wait for a new Act of Parliament to be passed. Further, delegated legislation
empowers the authority to modify or alter sanctions under a given statute or make technical changes
relating to law. Delegated legislation plays a very important role in the process of making of law as there
is more delegated legislation each year than there are Acts of Parliament. In addition, delegated
legislation has the same legal standing as the Act of Parliament from which it was created.
Delegated Legislation is important because of several reasons. They are-
1. Delegated Legislation reduces the burden of already overburdened Legislature by enabling the
executive to make or alter the law under the authority of Legislature. Thus, this helps the
Legislature to concentrate on more important matters and frame policies regarding it.
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2. It allows the law to be made by those who have the required knowledge and experience. For
instance, a local authority can be permitted to enact laws with respect to their locality taking
into account the local needs instead of making law across the board which may not suit their
particular area.
3. The process of delegated legislation also plays a significant role in an emergency situation since
there is no need to wait for particular Act to be passed through Parliament to resolve the
particular situation.
4. Finally, delegated legislation often covers those situations which have not been anticipated by
the Parliament during the time of enacting legislation, which makes it flexible and very useful to
law-making. Delegated legislation is, therefore, able to meet the changing needs of society and
also situations which Parliament had not anticipated when they enacted the Act of Parliament.
Delegated Legislation: Position under Constitution of India : The Constitution of India gives powers to
the Legislature to delegate its functions to other authorities, to frame the policies to carry out the laws
made by it. In the case of D. S. Gerewal v. State of Punjab 1959 AIR 512, the Supreme Court held that
Article 312 of the Constitution of India deals with the powers of delegated legislation. Justice K.N.
Wanchoo observed “There is nothing in the words of Article 312 which takes away the usual power of
delegation, which ordinarily resides in the legislature.
The phrase “Parliament may by law provide” in Article 312 should not be interpreted to mean that there
is no scope for delegation in law made under Article312…. The England law enables the Parliament to
delegate any amount of powers without any limitation. On the other hand in America, like India, the
Congress can delegate only some of its functions. Thus, it does not have unlimited or uncontrolled
powers. Thus, India allows for delegated legislation but in a defined and controlled manner with certain
restrictions.
Growth of Delegated Legislation
Many factors are responsible for the rapid growth of delegated legislation in every modern democratic
state. The traditional theory ‘laissez-faire’ has been given up by every state and the old ‘police state’ has
now become a ‘welfare state’. Because this radical change I the philosophy as to the role to be played by
the state, its functions have increased. Consequently, delegated legislation has become essential and
inventible. As American lawyer and statesman Root remarks- “The old doctrine of prohibiting the
delegation of legislative powers has virtually retired from the field and given up the fight”.
According to the committee on ministers’ power the following factors are responsible for the rapid
growth of delegated legislation.
(a) Pressure upon parliamentary time: The horizons of state activities are expanding. The bulk of
legislation is so great. It is not possible for the legislature to devote sufficient time to discuss all the
matters in detail. Therefore, legislature formulates the general policy – the skeleton and empowers the
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executive to fill in the details – thus giving flesh and blood to the skeleton so that it may live- by issuing
necessary rules, regulation, bye-laws etc.
In the words of Sir Cecil Carr, ‘delegated legislation is a growing child called upon to relieve the parent
of the strain of overwork and capable of attending to minor matters, while the parent manages the main
business. The Committee on Ministers’ powers has rightly observed: “The truth is, that if parliament
were not willing to delegate law making power, parliament would be unable to pass the kind and quality
and legislation which modern public opinion requires.”
(b) Technicality: Sometimes, subject matter of legislation is technical in nature. So, assistance of experts
is required. Members of parliament may be the best politicians but they are not expert to deal with
highly technical matters. These matters are required to be handled by experts. Here, the legislative
power may be conferred on experts to deal with the technical problems. i.e. gas, atomic energy, drugs,
electricity etc.
(c) Flexibility: Parliament cannot foresee all the contingencies while passing on enactment. To satisfy
these demands of unforeseen situation some provisions are required to be made. A legislative
amendment is a slow and cumbersome process. But by the device of delegated legislation the executive
can meet the situation expeditiously, e.g. bank rate, police regulations, export and import, foreign
exchange etc. Therefore, in a number of statutes a ‘removal of difficulty’ clause has been added
empowering the administration to overcome such difficulties by exercising delegated power. This Henry
VIII clause confers very wide powers on the Government.
(d) Experiment: The practice of delegated legislation enables the executive to experiment. This method
permits rapid utilization of experience and implementation of necessary changes in application of the
provisions in the light of such experience. As for example, in road traffic matters, an experiment may be
conducted and in the light of its application necessary changes could be made. The advantage of such a
course is that it enables the delegate authority to consult interests likely to be affected by a particular
law, make actual experiments when necessary and utilize the result of his investigation and experiments
in the best possible way. If the rules and regulations are found to be satisfactory, they can be
implemented successfully. On the other hand, if they are found to be defective, the defects can be cured
immediately.
(e) Emergency: In times of emergency, quick action is required to be taken. The legislative process is not
equipped to provide for urgent solution to meet the situation. Delegated legislation is the only
convenient- indeed the only possible remedy. Therefore, in times of war and other national
emergencies, the executive is vested with extremely wide powers to deal with the situation. There was
substantial growth of delegated legislation during the two world wars similarly in cases of epidemics,
floods, inflation, economic depression etc. immediate remedial actions are necessary which may not be
possible by lengthy legislative process and delegated legislation is the only convenient remedy.
(f) Complexity of modern administration: The complexity of modern administration and the expansion
of the functions of the state to the economic and social sphere have rendered it isnecessary to resort to
new forms of legislation and to give wide powers to various authorities on suitable occasions. In a
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country like Bangladesh, where control and regulation over private trade, business or property may be
required to be imposed, it is necessary that the administration should be given ample power to
implement such policy so that immediate action can be taken.
Therefore, there has been rapid growth of delegated legislation in all countries and it becomes
indispensable in modern administrative era.
List of Advantages of Delegated Legislation
1. Saves Time for the Parliament: There are lots of overwhelming activities that the government should
be concerned about. In order to resolve the complexity and volume that the legislature needs to deal
with, the power needs to be delegated to the executive branch. This is because of the lack of time or the
capacity thereof in making laws for regulation. Hence, the creation of delegated legislation should be
essential to avoid bogging down into the burden of details.
2. Enables Flexibility: Rigidity in administration has been created by statutes, but the administrative
legislation can be more adaptable to varying circumstances. Thus, it will be useful in the branches of
administration liable for occasional changes and where the technical developments are happening on a
day-to-day basis.
3. Dealing with Emergencies: Clothing the administrative agencies with needed discretion should be
better in dealing with possible contingencies. Such contingencies might result from the application of
laws as the legislature has been unable to foresee or allocate for everyone.
4. Done in Consultation with Affected Interests: In order to make legislation effective, it is important to
have prior consultation regarding interests that should be affected. This is because drafting of rules
might and oftentimes doesn’t allow a conference between vested interests and the government. This
can be affected and would result in the agreement bound to voluntary compliance.
5. The Average Legislator: Since an average legislator is not so acquainted with the difficulties of the
modern legislation, it is important to note that this legislator passes the bill in basic form and leaves
details to be accomplished by the executive branch.
6. Influence of Science and Technology: The impact of science and technology has resulted to the
multiplication of functions of the modern state. Thus, the power of the legislature has been enhanced
considerably. As it is not capable of coping with powers on the rise, the delegation of power in
lawmaking has been passed to the executive.
7. Sets Up New Standards: The increase in the delegated legislation can likewise be attributed to the
requirement of setting up new standards in social interest. Thus, expert minds are needed to make sure
that the national minimum regarding health education, housing, and sanitation has been due to
everybody.
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8. The Administrative Legislation Provides for Expert Legislation: The rules are being drafted by the
experts familiar with actual conditions in appropriate departments. With this practice, they are able to
work better compared to the lay members comprising the legislature.
List of Disadvantages of Delegated Legislation
1. Undemocratic Procedures: Legislation comes as a result to undemocratic processes and procedures.

In terms of by-laws, it is arguable that those are democratic considering they are created by elected
bodies. Thus, they can only make by-laws in so far as they have been given authority to do so based on
an enabling Act of the local government.
2. Apparent Lack of Debate: The apparent lack of debate and publicity that should be associated with a
form of secondary legislation has also been noticeable. The enabling Act should have been subject for
some public debate as well as consultation delegated by the legislation with its very nature to be a lot
wordy and more complex meaning which will not be that easy to be understood or be accessible by the
people.
3. Problem of Sub-Delegation: The arousal of sub-delegation may come when the responsible body for
the creation of legislation has not been able to deal with it directly. Thus, the creation of sub-delegation
will give the job to other parties. As a result, this will cause problems as the other parties should not be
accountable at the same way as those who created the legislation.
4. The Wording of Delegated Legislation: Another problem when it comes to delegated legislation is the
wording that can be obscure and technical in nature that should make it hard to understand. This was
the trait shared with the Acts of Parliament.
5. Dependence on Individuals Making Claims to Review Legislation: One more limitation about
delegated legislation is that it renders the courts unable to review such legislation. Thus, it will become
dependent to those who made the claim and brought the matter to the courts’ attention. Since the
courts don’t have any general authority to keep such legislation to be reviewed, it poses a problem. This
is because the process should be time-consuming and costly. More so, reviewing the matter can only be
conducted if the individual claims do have the necessary funding. As a result, the effectiveness of the
judicial review to remedy this condition should be severely limited.
6. Influence of the High Courts: In comparison to the primary legislation, the term delegated legislation
can be influenced by the High Court. Hence, they can quash the said legislation as it has been made by
people who aren’t directly elected. Thus, it could limit the control of their power. Nevertheless, it can be
dependent on the people making those claims as they bring matters in consideration of the courts.
Conclusion: The time of the Parliament has been limited and the government will have a legislative
program that should keep the Parliament busy. Thus, the Parliament will have no time to scrutinize the
debate complex and regulations and technical rules. Perhaps the advantages and disadvantages
presented here can provide a clear understanding regarding the significance or insignificance of
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delegated legislation. It may or may not be a significant factor for some, but it should be a concern for
everyone.
Sub Delegated Legislation or 'Delegatus non protest delegare'
When a statute confers some legislative powers on an executive authority and the further delegates
those powers to another subordinate authority of agency, it is called 'sub-delegation.' Thus, a chain of
delegation gets created in which the origin of the power flows through the Parent Act.
Sub-delegation of power of delegated legislation is justified only where the parent statute expressly or
impliedly authorizes the delegate himself to further sub-delegate that power to anyone else. The
maxim, Delegatus non-potestdelegare is a well-known maxim which means that in the absence of any
power a delegate cannot sub-delegate its power to another person’s. Thus when an Act prescribes a
particular body to exercise a power, it must be exercised by that body and none else unless the Act by
express words or necessary implication permits such delegation. When a sub-delegation is made, it does
not divest the authority making sub-delegation of his statutory authority. A sub-delegation is not
permissible unless the said power is conferred expressly or by necessary implication and in the absence
of such an express authorisation, legislative power cannot be sub-delegated. A leading case in this
aspect is Ganapati v. State of Ajmer. Here the parent act empowered the chief commissioner to make
rules for the establishment of a proper system of conservancy and sanitation. The chief commissioner
made a rule which empowered the district magistrate to devise his own system. The Supreme Court
held that the rule made by the district magistrate was invalid since it was a sub-delegation without an
express authority. But if the parent article authorizes to sub delegate, then it can be validated. If the
parent Act permits sub delegation to officers or authorities not bellow a particular rank, then the power
can be delegated only to those officers or authorities. Here it may be mentioned that the authority
cannot go beyond the power delegated. should not be given uncanalised and unguided legislative
power. Like delegation, sub-delegation is also subject to the doctrine of excessive delegation. Where a
statute itself authorizes an administrative authority to sub-delegate its powers, no difficulty arises as to
its validity since such sub-delegation is within the terms of the statute itself.
However, as sub-delegation dilutes both accountability and oversight of the original administrative
authority, safeguards are necessary for their functioning. The sub-delegate should not act beyond the
scope of the power delegated over it. At the same time its important that, the sub-delegation should not
be vague and must be free from any irregularities. One of the vital aspect about the sub-delegated
legislation is, it must get mandatorily published to be operative [6].
Q. Critically elucidate Parliamentary Control of delegated legislation.
In a parliamentary democracy it is the function of the legislature to legislate, but if it seeks to delegate
this power to the executive in some circumstances, it is not only the right of legislature, but also its
obligation as principal to see how its agent (i.e. the Executives) carries out the agency entrusted to
it. Hence the parliamentary control over delegated legislation should be a living continuity as a
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constitutional necessity. The fact is that due to the broad delegation of legislative powers and the
generalized standard of control also being broad, the judicial control has shrunk, raising the desirability
and necessity of parliamentary control.
In India, ‘parliamentary control’ is implicit as a normal constitutional function because the executive is
responsible to the Parliament Legislative Control is a two stage control.
1. Initial stage (At the stage of delegation of power)
2. When legislature exercise control in two parts (direct and indirect control)
Initial stage: In case where there is a bill which provides of delegation of powers such a bill should be
accompanies by a legislation stating how much power has been delegated. The basic emphasis in the
initial stage is that whether the power has been validity delegated or not.
Second stage: (A) Direct Control, and (B) Indirect Control.
(A) Direct Control: In this the important aspect is the laying requirement which means that the rules
have to be placed before the Parliament. Laying comes into play after the rules are made and it
assumes three major forms depending on the degree of control which the legislative may like to
exercise.
(a) Simple laying (i.e. laying with no further direction): In this, the rules inform house come into effect as
soon as they are laid. It is simply to vides that the rules shall be laid before parliament as soon as they
are made or published. It is directory in nature.
(b) Negative laying or subject to annulment or modification: The rules come into force as soon as they
are placed before Parliament but cease to have effect if disapproved by the Parliament in specified time
i.e. within 40 days. It is directory in nature unless and until annulled by the Parliament.
(c) Affirmative Laying: The technique may take two shapes:
(i) That the rules have no effect unless approved by a resolution of both houses of parliament.
(ii) That the rules shall cease to have effect unless approved by affirmative resolution. This technique
necessitates a debate in every case thus one object of delegation (viz. saving the time of Parliament) is
to some extent defeated. This requirement is mandatory in nature because rules made in draft form
shall be placed before both the houses of parliament for approval and then they will come into force
after they have been approved. If this procedure is not followed it affects the legal validity of rule.
Therefore this procedure is sparingly used and reserved to cases where the order almost amounts to an
Act by effecting changes which approximate to true legislation, and cases where the spending of public
money is affected or where the order replaces local Acts or provisional orders. Amongst all three
methods simple laying is hardly used and negative resolution is the commonest form of laying.
Legal consequences of non compliance with the laying provision
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In India, the position is not categorical, the consequence of non compliance with the laying provisions
depend on whether the provisions in the enabling Act are mandatory or directory.
Test for mandatory:
1. Where the laying requirement is a conditions precedent to bring the rules into force then in such a
case the laying requirement is mandatory in nature.
2. Where there is a provision that the rules be in draft form then such form states that laying is
mandatory in nature.
Test for Directory: Where laying requirement is subsequent to bring the rules into operation then the
laying requirement will directory in nature.
This issue of mandatory or directory was debated at length in Atlas Cycle Ind. Ltd. V. State of Haryana
(AIR 1979 SC 1149) the Section 3(6) of Essential Commodities Act, 1955 provided that rules made by the
central government shall be laid before the parliament as soon as they are made. Accordingly the
central government made a rule, making Iron and Steel an essential commodities. On spot checking the
development officer found that the company had purchased instituted against the company. The
company contended that this suffered from procedural ultravires as it has not been laid before the
Parliament. The court held that the Section required simple laying hence it is directory in nature and not
mandatory in nature. In case of simple laying the rules come into force the moment they are laid before
the legislature and they do not require any action on the part of the legislature to come into force.
The Supreme Court observed two considerations for regarding a provision as directory-
1. Absence of any provision for the contingency of a particular provision not being complied with or
followed.
2. Serious general inconvenience and prejudice that would result to the general public if the act of the
Government or an instrumentality is declared invalid for noncompliance with the particular provision.
(B) INDIRECT CONTROL: This control is exercised by Parliament through its committees. Such a
committee known as the committee on subordinate legislation of Lok Sabha set up in 1953 and consist
of 15 members appointed by Lok Sabha Speaker for a period of one year. Another committee on
subordinate legislation known as Rajay Sabha committee constitutive in 1964 consist of 15 member
nominated by chairman of Rajaya Sabha & it holds office till new committee is formed. The committee
is assigned the task to scrutinize and report to the House, whether the power to make regulations, bye
laws, etc conferred by the constitution or delegated by the Parliament are being properly exercised
within such delegation Ministers can become members of this committee. The main function of the
committee shall be to examine:
1. Whether the rules are in accordance with the general object of Act.
2. Whether the rules contain any matter which could more properly be dealt with in the Act.
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3. whether it conations imposition of tax.
4. Whether it directly or indirectly bars the jurisdiction of the court.
5. Whether there has been unjustified delays in its publication or laying.
6. whether it is retrospective in nature.
7. Whether it involves expenditure from the consolidated fund.
8. Whether it is safeguard of principle of natural justice.
The government attaches great weight to the committee’s report and tires is implement its
recommendations. The biggest drawback is that is cannot strike know delegated legislation on the basis
of being excessive in nature, it is just recommendatory in nature not corrective.
Q. Discuss Judicial Control of Delegated legislation
Had the Parliamentary control over delegated legislature been effective, the need for judicial control
would not have arisen or probably reduced to the minimum. This has not been so, hence, judicial control
has become an inevitable necessity to prevent executives acting as super-legislatures or potential
dictators.
Pre-constitutional control to post-constitutional judicial control found a big shift from the scrutiny of
delegated legislation confined to the area of sub-delegation from British Parliament to Indian legislature
and laying down a fundamental principle of delegation in the post-constitutional era (In Re Delhi Law
Act case AIR 1951 SC 332) which can be stated as follows:-
“Legislatures cannot delegate their essential legislative powers. Essential legislative powers relate to the
determination of the policy of the legislature and of rendering that policy into a binding rule of
conduct”.
In other words, delegation of legislative power can be confined to ‘non-essentials’ or subsidiary

matters. Delegation of legislative powers of essential nature would be invalid. This has come as a first
principle laid down in the area of judicial control and subsequently expanded to a number of rules laid
down by the judiciary. These principles can be stated as follows:-
i) If the law is ex-facie unconstitutional it cannot be legalized by a Parent Act which is constitutional. In
other words, an unconstitutional legislation cannot be legalized by a valid Parent Act; (Narendra Kumar
Vs. Union of India, AIR 1969 SC 430).
ii) Rules farmed violating Parent Act are illegal; (Municipal Corporation of Greater Bombay Vs. Nagpal
Printing Mills AIR 1988 SC 1009)
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iii) Rules framed violating any other Statute or inconsistent with any other law are also illegal and void;
(Hindustan Times Vs. State of U.P. AIR 2003 SC 250)
iv) Delegated legislation must be reasonable or do not suffer from unreasonableness.14 This has been
ruled in Chandra Bhan’s case (State Of Maharashtra vs Chandrabhan Tale AIR 1983 SC 803)
v) Delegated legislation shall not be arbitrary or suffer from arbitrariness.16 This is necessary to protect
the “rule of law”; (Indian Express Newspaper Vs. Union of India, AIR 1985 SC 525)
vi) Delegated legislation made with malfides or improper motives are held illegal; (D.C.Wadhwa Vs.
State of Bihar, AIR 1991 SC 526)
vii)Forbidding sub-delegation and the powers being delegated (Ajaile Singh Vs. Gurubachan Singh AIR
1965 SC 1619) or delegatee exceeding the powers (Radhakrishnan Laxminarayan Vs. State AIR 1952
Nag 387) are equally held void;
viii) ‘Finality clauses’ in Statutes or rules made there under, exclusive evidence, clauses or ‘as if enacted
clauses’ were also reviewed on the basis of their compliance with the principles of natural justice and
also in the light of Art 226 and Art 32 of the constitution vesting powers in the High Courts and Supreme
Court respectively. Constitutionally vested jurisdiction cannot be taken away by ordinary legislation;
(Chief Inspector of Mines Vs. Karam Chand thaper AIR 1961 SC 838)
ix) ‘Retrospective effect’ clauses giving effect to the law or rules with retrospective effect. Such clauses
not only reverses the reasonable anticipation of the people and may also deprive people of their
accrued rights; (A.V.Nachane’s case AIR 1982 SC 1126)
x) Delegated legislation exercised being against public standards or public morality. (Shivaji Rao
Nilangekar Patel Vs. Mahesh Madhav Gosavi AIR 1987 SC 294) (In this case marks sheets of the
daughter of CM were altered);
xi) Doctrines like ‘Proportionality’, legitimate expectations, and public accountability, have become
grounds of judicial review of the law and rules framed and
xii)Cases have also been reviewed on the grounds of procedural ‘ultra vires’ i.e., not following the
procedures which are mandatory in framing the rules;
Q. Discuss:
(i) Post- natal publicity of delegated legislation
It is a fundamental principal of law “ignorantia juris non excusat” (ignorance of law is no excuse) but
there is also another equally established principle of law that the public must have the access to the law
and they should be given an opportunity to know the law. All laws ought either to be known or at least
laid open offend against them under pretence of ignorance. It is essential that adequate means are
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adopted to publicize the rules so that people are not caught on the wrong foot, in ignorance of the rules
applicable to them in a given situation.”
Thus, in Harla v. State of Rajasthan (Air 1951 SC 467) the council by resolution enacted the Jaipur opium
Act which made rule that if a person carried opinion beyond a certain limit then it was an offence
committed and penalty had to be imposed on the accused & act was never published. One Harla was
prosecuted for the contravention of this law because he was in possession of opium in more quantity
than permitted. He contended that it was a case of procedural ultravires. Holding that the law was not
enforceable the Supreme Court observed. “promulgation or publication of some sort is essential
otherwise it would be against principles of natural justice to punish the subject under a law of which
they had no knowledge and of which they could not even with the exercise f reasonable diligence be
said to have acquired any knowledge.”
In Narendra Kumar v. U.O.I. (AIR 1960 SC 430) Sec.3 of Essential commodities Act, 1955 required all the
rules to be made under the Act to be notified in official gazette. The principles applied by licensing
authority for issuing permits for the acquisition of non-ferrous metals were not notified. The S.C. held
the rules ineffective because the mode of publication i.e. in Official Gazette was held to be mandatory.
(ii) Doctrine of Ultra Vires
The Doctrine of ultra vires---- The chief instrument in the hands of the judiciary to control delegated
legislation is the "Doctrine of ultra vires."
The doctrine of ultra vires may apply with regard to i) Procedural provision; and ii) Substantive
provisions.
i) Procedural defects The Acts of Parliament delegating legislative powers to other bodies or authorities
often provide certain procedural requirements to be complied with by such authorities while making
rules and regulations, etc. These formalities may consist of consultation with interested bodies,
publication of draft rules and regulations, hearing of objections, considerations of representations etc. If
these formal requirements are mandatory in nature and are disregarded by the said authorities then the
rules etc. so made by these authorities would be invalidated by the Judiciary. In short subordinate
legislation in contravention of mandatory procedural requirements would be invalidated by the court as
being ultra vires the parent statute. Provision in the parent Statute for consulting the interested parties
likely to be affected, may, in such cases, avoid all these inconveniences and the Railway authorities may
not enact such rule after they consult these interests. A simple provision regarding consultation thus
assumes importance. On the other hand, if the procedural requirements were merely of directory
nature, then a disregard thereof would not affect the validity of subordinate legislation.
The fact that procedural requirements have far reaching effects, may be made clear by just one
example. Suppose the Railway authorities want to relieve pressure of work of unloading goods during
daytime at a station amidst a big and brisk business center. The public wants a reduction in the traffic
jams due to heavy traffic because of unloading. The traffic authorities and Railway authorities decide to
tackle the problem effectively by making the rule that the unloading be done during late hours of night.
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The railway authorities make an order to this effect, without consulting interested bodies. Such rule
might cause many hardships e.g. –The conditions of labour are such that unloading of goods during the
night would adversely affect the profit margin as the workers would charge more if they work in night
shifts.
Now infect of these difficulties another alternative which appears to be desirable is better supervision of
unloading and better regulation of traffic by posting more police officers and stricter enforcement of
traffic laws.
Provisions in the parent statute for consulting the interested parties likely to be affected may, in such
cases, avoid all these inconveniences, and the Railway authorities may not act such a rule after they
consult these interests. A simple provision regarding consultation thus assumes importance.
The question of the effectiveness of the application of the doctrine of ultra vires, so far as procedure is
concerned, would largely depend upon the words used in the particular statue. If the words are specific
and clearly indicate the bodies to be consulted, then it would be possible to show noncompliance.
But in case where the minister is vested with the discretion to consult these bodies which he considers
to be representative of the interests likely to be affected or where he is to consult such bodies, if any, it
is very difficult to prove noncompliance with the procedural requirements.
(ii) Substantive Defects In case of delegated legislation, unlike an Act of the Parliament, the court can
inquire into whether it is within the limits laid down by the present statute. If a piece of delegated
legislation were found to be beyond such limits, court would declare it to be ultra vires and hence
invalid. (R.V.Minister of Health, (1943), 2 ALL ER591).The administrative authorities exercising legislative
power under the authority of an Act of the Parliament must do so in accordance with the terms and
objects of such statute. To find out whether administrative authorities have properly exercised the
powers, the court have to construe the parent statute so as to find out the intention of the legislature.
The existence and extent of the powers of administrative authorities is to be affixed in the light of the
provisions of the parent Act.
(iii) Doctrine of Excessive Delegation.
The doctrine of excessive delegation is applied by the courts to adjudge the validity of the provision
delegating the power. Therefore, too broad power ought not to be vested in the Executive in matters of
taxation; the parent Act ought to contain policy in the light of which the Executive is to exercise the
power delegated to it. The courts uphold delegation of power to decide "matters of details" in a truth, is
really a euphemism to cover delegation of significant powers to the Executive in the tax area.e.g.: “The
delegated authority must only implement stated policy, but if there is abdication of legislative power by
transferring policy formulation role to the delegate, then there is excessive delegation, which will be
invalidated by the court.” (Mahe Beach Trading Co. v. Union Territory of Pondicherry. 1996, 3 SCC 741)
There are few instances in which the delegation may be questioned on the ground of being excessive, as
In Orient Weaving Mills v. Union of India (1963 AIR 98, 1962 SCR Supl. (3) 481), when it comes to
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delegated the power to the Government to exempt a commodity from the purview of tax; a provision
conferring power of the Central Government to exempt any excisable goods from the whole or part of
the duty leviable on such goods was held valid against the plea of excessive delegation.
In Banarasi Das v. State of Madhya Pradesh (1958 AIR 909, 1959 SCR 427) , when it comes to confer
the power to the Government to bring additional transactions, commodities or persons within the
purview of a tax;a provision authorizing the Government to bring any goods within the purview of sales
tax law was held valid.
In Bimal Chandra Barterjee v. State of M.P [1971 AIR 517, 1971 SCR (1) 844] the Supreme Court while
considering the provisions of M.P. Excise Act, held that section 25, 26, and 62 of the M.P. Excise Act do
not empower the Government to levy tax on excisable articles. Therefore it was held that, no tax can be
imposed by any bye-law, rule or regulation unless the Statute under which subordinate legislation is
made specially authorizes the imposition.
On the contrary, in Sitaram Bishamber Dayal v. State of Uttar Pradesh [1982 AIR 33, 1982 SCR
(1)1137], the power to impose sales tax at a rate not exceeding 5% was not regarded irregular by the
Supreme Court as the rate prescribed was a reasonable upper limit.
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Principles of Natural Justice

Q. Discuss the concept of Natural Justice Principles. Analyse its applicability in India with reference to
relevant Constitutional provisions. Point out the circumstances where principle of natural justice
cannot be applicable.
The words ‘natural justice’ are derived from the Roman word ‘Jus Naturale’, which means principles of
natural law, justice, equity, and good conscience. These principles did not originate from any divine
power, but are the outcome of the necessity of judicial thinking, as well as the necessity to evolve the
norms of fair play.
These are the principles which every disciplinary authority should follow while taking any decision,
which may adversely affect the rights of individuals. It is to be seen that rules of natural justice are not
codified anywhere; they are procedural in nature and their aim is to ensure delivery of justice to the
parties.
Adherence to rules of natural justice, as recognised by all civilised States, is of supreme importance,
when a quasi-judicial body embarks on determining disputes between the parties or any administrative
or disciplinary action is in question. Rules of natural justice serve as hedge against any blatant
discrimination against rights of individuals. These rules are intended to prevent such authority from
doing injustice. They seem to be recognised by Article 21 of the Constitution of India in a way which
says, “No person shall be deprived of his life or personal liberty except according to the procedure
established by law". This is that procedure which is held by the courts to be the rules of natural justice.
With the evolution of society, as well as legal jurisprudence, the concept of natural justice has also
undergone change. Rules of natural justice are not rules embodied in any statute. These rules were part
of the law and procedure during the British Raj also, and are being observed in India since time
immemorial. These rules have become a part and parcel of the law, as well as procedure. These may be
implied from the nature of the duty to be performed under a statute. What particular rule of natural
justice should be applied depends on the facts and circumstances of each case. With the passage of
time, the old distinction between a judicial act and an administrative act has withered away. Orders of
the disciplinary authority, which involve civil consequence, must be consistent with the rules of natural
justice, otherwise the orders are likely to be set aside by the courts.
Over the years, two rules have evolved as representing the rules of natural justice in judicial, quasi-
judicial and administrative processes. The first rule is ‘nemo debet esse judex in propria causa’, which
means that no man shall be judge in his own cause. The second principle is ‘audi alteram partem’, which
means that no one should be condemned unheard.
It is of importance to note that proceedings before the civil court are governed by the Code of Civil
Procedure; criminal proceedings are governed by the Criminal Procedure Code, but in respect of
departmental enquiries, no detailed guidelines have been codified. So, in the absence of any codified
law, proceedings under departmental enquiries are mainly governed by the principles of natural justice.
However, principles of natural justice are subservient to statutory provisions. They are not the rule of
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law that can override the codified laws of the land. In the case of A.K. Kraipak Vs. Union of India (AIR
1970 SC 150), the Supreme Court said that the aim of natural justice is to secure justice or to put it
negatively to prevent miscarriage of justice. These rules can operate only in areas not covered by any
law validly made, in other words, they do not supplant law, but supplement it.
The nature of the rules of natural justice is flexible. They tend to change with the exigencies of time, and
circumstances of each case. Due to their flexible nature, they may seem to be vague or uncertain, but
they have been very well adopted by the Indian legal system. Their aim is to prevent arbitrariness, as
well as miscarriage of justice.
Of course, they are not enforceable as fundamental rights, but nevertheless, they ensure a strong
safeguard against any arbitrary action that may adversely affect the rights of individuals. These have
been laid down by the courts as being the minimum protection to rights of individuals against the
arbitrary procedure that may be adopted by a judicial or quasi-judicial authority, while making an order
affecting those rights. These rules are intended to prevent such authority from doing injustice. In the
past, there were only two rules forming the rules of natural justice; with the course of time, many more
subsidiary rules came up to be added to them. These principles are now well settled and can be
summarised as under:
(i) That every person whose civil rights are affected, must have a reasonable notice of the case he has
to meet
(ii) That he must have reasonable opportunity of being heard in his defence
(iii) That the hearing must be by an impartial tribunal
(iv) That the authority must act in good faith and not arbitrarily
(v) The order should be a speaking order
Dr. Bonham’s Case (1610) COKE J. held that an Act of the Parliament is void if it makes a person judge in
his own cause or was otherwise against common right or reason. Coke then made the following general
statement: “And it appears in our books, that in many cases, the common law will control acts of
parliament, and sometimes adjudge them to be utterly void: for when an act of parliament is against
common right and reason, or repugnant, or impossible to be performed, the common law will control it,
and adjudge such act to be void; and, therefore, in Thomas Tregor’s case [Judge] Herle said, some
statutes are made against law and right, which those who made them perceiving, would not put them in
execution…”
Position in India. Article 14, 19, 21 of the Indian Constitution lay down the cornerstone of natural justice
in India, landmark case of :
Maneka Gandhi v. Union of India, the apex court held that law which allows any administrative
authority to take a decision affecting the rights of the people, without assigning the reason for such
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action, cannot be accepted as a procedure, which is just, fair and reasonable, hence violative of Articles
14 and 21.
Exception to the Rule of Natural Justice
The word exception in the context of natural justice is really a misnomer, because in these exclusionary
cases the rule of audi alteram partem is held inapplicable not by way of an exception to ‘fair play in
action’, but because nothing unfair can be inferred by not affording an opportunity to present or meet a
case.
Application of the principles of natural justice can be excluded either expressly or by necessary
implication, subject to the provisions of Art. 14 and 21 of the Constitution. Therefore, if the statute,
expressly or by necessary implication, precludes the rules of natural justice it will not suffer invalidation
on the ground of arbitrariness. Other exclusionary situations may include:
(1) Exclusion in emergency: In such exceptional cases of emergency where prompt action, preventive or
remedial, is needed, the requirement of notice and hearing may be obviated. Therefore, if the right to
be heard will paralyse the process, law will exclude it. In a situation of emergency where precious rights
of people are involved, post-decisional hearing has relevance to administrative and judicial
gentlemanliness. In Swadeshi Cotton Mills V. Union of India, the court held that even in emergent
situations the competing claims of ‘hurry and hearing’ are to be reconciled, no matter the application of
the audi alteram paratem rule at the pre-decisional stage may be ‘a short measure of fair hearing
adjusted, attuned and tailored to the exigency of the situation.’
(2) Exclusion in cases of confidentiality: In Malak Singh V. State of Punjab, 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 cases of interim preventive action: If the action of the administrative authority is a
suspension order in the nature of a preventive action and not a final order, the application of the
principles of natural justice may be excluded.
(4) Exclusion in cases of legislative action: Legislative action, plenary or subordinate, is not subject to
the rules of natural justice because these rules lay down a policy without reference to a particular
individual. On the same logic principles of natural justice can also be excluded by a provision of the
Constitution also.
(5) Where no right of the person is infringed: Where no right has been conferred on a person by any
statute nor any such right arises from common law the principles of natural justice are not applicable.
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(6) Exclusion in cases of Statutory Exception or Necessity: Disqualification on the ground of bias against
a person will not be applicable if he is the only person competent or authorized to decide that matter or
take that action.
Charan Lal Sahu V. Union of India (Bhopal Gas Disaster Case) is a classical example of the application of
this exception. In this case the constitutional validity of the Bhopal Gas Disaster Act which had
authorized 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 percent share in the
Union Carbide Company and as such it was a joint tort feasor and thus there was a conflict between the
interests of the government and the victims. Negativating 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.
(7) Exclusion in case of contractual arrangement: In State of Gujarat V. M.P. Shah Charitable Trust, the
Supreme Court held the principles of natural justice are not attracted in case of termination of an
arrangement in any contractual field. Termination of an arrangement/agreement is neither a quasi-
judicial nor an administrative act so that the duty to act judicially is not attracted.
(8) Exclusion in case of government policy decision: In taking of a policy decision in economic matters
at length, the principles of natural justice have no role to play. If in exercise of executive powers the
government takes any policy decision, principles of natural justice can be excluded because it will be
impossible and impracticable to give formal hearing to all those who may be affected whenever a policy
decision is taken and at times it will be against public interest to do so.
(9) ‘Useless formality’ theory: Where on the admitted or undisputed facts only one conclusion is
possible and under the law only one penalty is permissible, the Court may not insist on the observance
of the principles of natural justice because it would be futile to order its observance. Therefore, where
the result would not be different, and it is demonstrable beyond doubt, order of compliance with the
principles of natural justice will not be justified.
(10) Exclusion in case of purely administrative matters
(11) Exclusion based on impracticability.
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Q. Explain the term ‘reasoned decision’. Explain the maxim ‘Audi Alteram Partem’ with reference
relevant judicial decisions.
Reasoned Decision
“Reason is the soul of the law, and when the reason of any particular law ceases, so does the law itself.”
[“Ces-sante Ratione Legis Cessat Ipsa Lex”]. Every judicial order should contain sound reasons. If valid
reasons are not found in the order, such an order becomes erroneous. The person aggrieved gets an
opportunity to demonstrate that the reasons are erroneous. Recording of reasons in support of a
decision on a disputed claim ensures that the decision is not a result of caprice, whim or fancy but was
arrived at after considering the relevant law and that the decision was just. The expression `speaking
order‘ was first coined by Lord Chancellor Earl Cairns. ‘Reasons’ are the links between the materials on
which certain conclusions are based. Natural justice requires reasons to be written for the conclusions
made; and that as was held by the Ho’ble Apex Court ‘RUBBER STAMP REASONS’ are not enough. (Ref:-
AIR 1974 SC 87). The present trend of the law has been towards an increasing recognition of the duty of
Court to give reasons (See North Range Shipping Limited vs. Seatrans Shipping Corporation, (2002) 1
WLR 2397).
Administrative orders and Quasi- Judicial orders :- It is very important to give reasons while passing a
judgment/order by any judicial or quasi judicial body. (Ref: M/S Kranti Asso. Pvt. Ltd. & Anr. vs Masood
Ahmed Khan & Ors). In A.K. Kraipak and others vs. Union of India and others reported in AIR 1970 SC
150. The Hon’ble Supreme Court approved the opinion of Lord Denning in Rigina vs. Gaming Board Ex
parte Benaim [(1970) 2 WLR 1009] in Kesava Mills Co. Ltd. and another vs. Union of India and others
reported in AIR 1973 SC 389 and quoted him as saying “that heresy was scotched in Ridge and Boldwin,
1964 AC 40”. The Hon’ble Supreme Court in catena of rulings opined that the face of an order passed by
a quasi-judicial authority or even an administrative authority affecting the rights of parties, must speak.
It must not be like the `inscrutable face of a Sphinx‘. Also see. Siemens Engineering and Manufacturing
Co. of India Ltd. vs. The Union of India and another, AIR 1976 SC 1785; Lav Nigam v. Chairman and MD,
ITI Ltd. & Another [(2006) 9 SCC 440]; Sudhir Kumar vs Union Of India (2012).
Order without giving reasons becomes mala fide:- A reasoned order is a desirable condition of judicial
,disposal. (Madhya Pradesh Industries Ltd vs Union Of India And Others, 1966 AIR 671). In Harinagar
Sugar Mills Ltd. vs. Shyam Sunder Jhunjhunwala and others, AIR 1961 SC 1669, The Hon’ble Court
insisted on the requirement of recording reason and further held that in exercising appellate powers,
the Central Government acted as a tribunal in exercising judicial powers of the State and such exercise is
subject to Article 136 jurisdiction of the Hon’ble Supreme Court. Such powers, this Court held, cannot be
effectively exercised if reasons are not given by the Central Government in support of the order (Para
23, page 1678-79).
Bound to pass Speaking Order:- In 2015, the Hon’ble Delhi High Court, in Manpower Co-Operative
Group vs Office Of The Registrar Of CO-OPERATIVE SOCIETIES, GNCT OF DELHI, followed the ratio laid
down in Bhagat Raja vs. Union of India and others, AIR 1967 SC 1606, the Constitution Bench of the
Hon’ble Apex Court where in it was examined the question whether the Central Government was bound
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to pass a speaking order while dismissing a revision and confirming the order of the State Government
in the context of Mines and Minerals (Regulation and Development) Act, 1957, and having regard to the
provision of Rule 55 of Mineral and Concessions Rules. The Hon’ble Apex Court insisted on reasons being
given for the order. See M/s. Mahabir Prasad Santosh Kumar vs. State of U.P and others, AIR 1970 SC
1302.
While exercising judicial power reasons in support of the order must be disclosed: In M/s. Travancore
Rayons Ltd. vs. The Union of India and others, AIR 1971 SC 862, it was held that the Central Government
was actually exercising judicial power of the State and in exercising judicial power reasons in support of
the order must be disclosed on two grounds. The first is that the person aggrieved gets an opportunity
to demonstrate that the reasons are erroneous and secondly, the obligation to record reasons operates
as a deterrent against possible arbitrary action by the executive authority invested with the judicial
power (See para 11 page 865-866). This ratio decidendi is followed in M/S Sa Infrastructure Cons Anr vs
State (Urban Development)Ors (2013).
The very requirement of giving reason is to prevent unfairness or arbitrariness in reaching

conclusions: In 2013, the Hon’ble Delhi High Court, in the case of State Bank Of India & Anr vs Kishan Lal
Mittal, as to requirement of giving reasons is concerned, observed as follows:- ‘In M/s. Woolcombers of
India Ltd. vs. Woolcombers Workers Union and another, AIR 1973 SC 2758, Supreme Court, while
considering an award under Section 11 of the Industrial Disputes Act, insisting upon the need of giving
reasons in support of the conclusions in the award observed that the very requirement of giving reason
is to prevent unfairness or arbitrariness in reaching conclusions. It was further observed that that a just
but unreasoned conclusion does not appear to be just to those who read the same. Reasoned and just
conclusion on the other hand will also have the appearance of justice. The Apex Court emphasized that
since the awards are subject to Article 136 jurisdiction of the Apex Court, it would be difficult for the
Court, in the absence of reasons, to ascertain whether the decision was right or wrong.’
In M/s. Woolcombers of India Ltd (Supra) ((See para 5 page 2761)), it was further observed that the
second principle is based on the jurisprudential doctrine that justice should not only be done, it should
also appear to be done as well. The Hon’ble Judges said that a just but unreasoned conclusion does not
appear to be just to those who read the same. Reasoned and just conclusion on the other hand will also
have the appearance of justice. The third ground is that such awards are subject to Article
136 jurisdiction of this Court and in the absence of reasons, it is difficult for this Court to ascertain
whether the decision is right or wrong.
The expression “reasons for the proposed supersession”:- In 2014, as to the point that administrative
action must be supported by reasons, the Hon’ble Orissa High Court in Epari Vasudeva Rao,
Bhubaneswar vs State Of Odisha And Another, followed the ruling in Union of India vs. Mohan Lal
Kapoor and others, AIR 1974 SC 87, wherein the Hon’ble Apex Court while dealing with the question of
selection under Indian Administrative Service/Indian Police Service (Appointment by Promotion
Regulation) held that the expression “reasons for the proposed supersession” should not be mere
rubber stamp reasons. Such reasons must disclose how mind was applied to the subject matter for a
decision regardless of the fact whether such a decision is purely administrative or quasi-judicial. This
Court held that the reasons in such context would mean the link between materials which are
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considered and the conclusions which are reached. Reasons must reveal a rational nexus between the
two (See para 28 page 98). Also see. Smt. Maneka Gandhi vs. Union of India and Anr., AIR 1978 SC
597 and M/s. Bombay Oil Industries Pvt. Ltd. vs. Union of India and Others, AIR 1984 SC 160.
Natural justice requires reasons to be written for the conclusions made:- In 2015, the Hon’ble Delhi
High Court in Manpower Co-Operative Group (supra), followed the ruling in Rama Varma Bharathan
Thampuran vs. State of Kerala and Ors., AIR 1979 SC 1918, wherein his Lordship Justice V.R. Krishna Iyer
speaking for a three-Judge Bench held that the functioning of the Board was quasi-judicial in character.
One of the attributes of quasi- judicial functioning is the recording of reasons in support of decisions
taken and the other requirement is following the principles of natural justice. His Lordship held that
natural justice requires reasons to be written for the conclusions made (See para 14 page 1922).
Rubber Stamp reason is not enough:- In 1999, the Hon’ble Allahabad High Court in Lohiya Machine
(L.M.L.) vs State Of U.P.( 1999 (3) AWC 2134) followed the ruling in Gurdial Singh Fijji vs. State of Punjab
and Ors., (1979) 2 SCC 368, wherein the Hon’ble Apex Court, dealing with a service matter, relying on
the ratio in Capoor (supra), held that “rubber-stamp reason” is not enough and virtually quoted the
observation in Capoor (supra) to the extent that reasons “are the links between the materials on which
certain conclusions are based and the actual conclusions.” (See para 18 page 377).
Reason is the soul of the law:- The duty to give reason is an incident of the judicial process and
emphasized that in discharging quasi-judicial functions the appellate authority must act in accordance
with natural justice and give reasons for its decision (Para 4, page 1176)(Ref:Ram Chender Vs. Union of
India and Others (AIR 1986 SC 1173)). In M/s. Bombay Oil Industries Pvt. Ltd. Vs. Union of India and
others, AIR 1984 SC 160, the Hon’ble Apex Court held that while disposing of applications under
Monopolies and Restrictive Trade Practices Act the duty of the Government is to give reasons for its
order. In a Constitution Bench decision of the Hon’ble Apex Court in Shri Swamiji of Shri Admar Mutt etc.
etc. vs. The Commissioner, Hindu Religious and Charitable Endowments Dept. and Ors., AIR 1980 SC 1,
while giving the majority judgment the Hon’ble Chief Justice Y.V. Chandrachud referred to Broom’s Legal
Maxims (1939 Edition, page 97) where the principle in Latin observed:
“Ces-sante Ratione Legis Cessat Ipsa Lex” The English version of the said principle given by the Chief
Justice is that: (H.H. Shri Swamiji case (1979) 4 SCC 642) “Reason is the soul of the law, and when the
reason of any particular law ceases, so does the law itself.”
Recording of reason are necessary:- In 2011, the Hon’ble Punjab and Haryana High Court in Subhash
Chand vs State Of Haryana And Others referred to the ruling in M/s. Star Enterprises and others vs. City
and Industrial Development Corporation of Maharashtra Ltd. and others, (1990) 3 SCC 280, wherein a
three-Judge Bench of the Hon’ble Apex Court held that in the present day set up judicial review of
administrative action has become expansive and is becoming wider day by day and the State has to
justify its action in various field of public law. All these necessitate recording of reason for executive
actions including the rejection of the highest offer. the Hon’ble Apex Court held that disclosure of
reasons in matters of such rejection provides an opportunity for an objective review both by superior
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administrative heads and for judicial process and opined that such reasons should be communicated
unless there are specific justification for not doing so (see Para 10, page 284-285).
Non-recording of reason may not be violative of the principles of natural justice:- Strict rules of the
Evidence Act do not apply to departmental proceedings as has been held by the Supreme Court in the
cases of State Bank of India and Others Vs. Narendra Kumar Pandey (2013) 2 SCC 740. See. Shri Narayan
Singh vs Indian Oil Corporation And Ors.(2013). In Maharashtra State Board of Secondary and Higher
Secondary Education vs. K.S. Gandhi and others, (1991) 2 SCC 716, the Hon’ble Apex Court held that
even in domestic enquiry if the facts are not in dispute non-recording of reason may not be violative of
the principles of natural justice but where facts are disputed necessarily the authority or the enquiry
officer, on consideration of the materials on record, should record reasons in support of the conclusion
reached (see para 22, pages 738-739)
Reasons must be recorded in the award:- “It is, thus, settled law that reasons are required to be
recorded when it affects the public interest. See. Tapas Panda vs The State Of West Bengal & Ors (2015)
and M.L. Jaggi’s case referred to infra. In M.L. Jaggi vs. Mahanagar Telephones Nigam Limited and
others, (1996) 3 SCC 119, the Hon’ble Apex Court dealt with an award under Section 7 of the Telegraph
Act and held that since the said award affects public interest, reasons must be recorded in the award. It
was also held that such reasons are to be recorded so that it enables the High Court to exercise its
power of judicial review on the validity of the award. (see para 8, page 123).
Recording reasons is “too obvious to be reiterated and needs no emphasizing:- In determining the
compensation that is required to be awarded to the Complainant we will be guided by the following
observations made by the Honorable Supreme Court in Charan Singh vs Healing Touch Hospital & Ors.
(AIR 2000 SC 3138). Also see. Smt J.S. Paul vs Dr. (Mrs) A. Barkataki (2004). In Charan Singh vs. Healing
Touch Hospital and others, AIR 2000 SC 3138, a three-Judge Bench of the Hon’ble Apex Court, dealing
with a grievance under CP Act, held that the authorities under the Act exercise quasi-judicial powers for
redressal of consumer disputes and it is, therefore, imperative that such a body should arrive at
conclusions based on reasons. the Hon’ble Apex Court held that the said Act, being one of the
benevolent pieces of legislation, is intended to protect a large body of consumers from exploitation as
the said Act provides for an alternative mode for consumer justice by the process of a summary trial.
The powers which are exercised are definitely quasi-judicial in nature and in such a situation the
conclusions must be based on reasons and held that requirement of recording reasons is “too obvious to
be reiterated and needs no emphasizing”. (See Para 11, page 3141 of the report)
Proceedings of Court Martial need not to be supported by reasons:- Only in cases of Court Martial,
Hon’ble Apex Court struck a different note in two of its Constitution Bench decisions, the first of which
was rendered in the case of Som Datt Datta vs. Union of India and others, AIR 1969 SC 414, Mr. Justice
Ramaswami delivering the judgment for the unanimous Constitution Bench held that provisions of
Sections 164 and 165 of the Army Act do not require an order confirming proceedings of Court Martial
to be supported by reasons. The Hon’ble Court held that an order confirming such proceedings does not
become illegal if it does not record reasons. (Para 10, page 421- 422 of the report). In another case,
about two decades thereafter, a similar question cropped up before this Court in the case of S.N.
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Mukherjee vs. Union of India, AIR 1990 SC 1984. A unanimous Constitution Bench speaking through His
Lordship Justice S.C. Agrawal confirmed its earlier decision in Som Datt (supra) in para 47 at page 2000
of the report and held reasons are not required to be recorded for an order confirming the finding and
sentence recorded by the Court Martial.
The Court Martial as a proceeding is sui generis in nature:- Our Constitution also deals with Court
Martial proceedings differently as is clear from Articles 33, 136(2) and 227(4) of the Constitution.
The Hon’ble Supreme Court held that the Court Martial as a proceeding is sui generis in nature and the
Court of Court Martial is different, being called a Court of Honour and the proceeding therein are slightly
different from other proceedings. About the nature of Court Martial and its proceedings the
observations of Winthrop in Military Law and Precedents are very pertinent and are extracted herein
below:
“Not belonging to the judicial branch of the Government, it follows that courts-martial must pertain to
the executive department; and they are in fact simply instrumentalities of the executive power,
provided by Congress for the President as Commander-in-Chief, to aid him in properly commanding the
Army and Navy and enforcing discipline therein, and utilized under his orders or those of his authorized
military representatives.”
Reasons encourage transparency :- In English vs. Emery Reimbold and Strick Limited, (2002) 1 WLR
2409, it has been held that justice will not be done if it is not apparent to the parties why one has won
and the other has lost. The House of Lords in Cullen vs. Chief Constable of the Royal Ulster Constabulary,
(2003) 1 WLR 1763, Lord Bingham of Cornhill and Lord Steyn, on the requirement of reason held, “First,
they impose a discipline … which may contribute to such decisions being considered with care. Secondly,
reasons encourage transparency Thirdly, they assist the Courts in performing their supervisory function
if judicial review proceedings are launched.”
Audi Alteram Partem
The maxim audi alteram partem accentuates the rule of fair hearing. It lays down that No one should be
condemned unheard. It is the first principle of the civilised jurisprudence that a person facing the
charges must be given an opportunity to be heard, before any decision is taken against him. Hearing
means ‘fair hearing’. In Cooper v. Wandsworth Board of Works, (1861-73) ALL ER 1554 , BYLES J.
observed that the laws of God and man both give the party an opportunity to defend himself. Even God
did not pass a sentence upon Adam before he was called upon to make his defence.
The norms of reasonableness of opportunity of hearing vary from body to body and even case to case
relating to the same body. The courts, in order to look into the reasonableness of the opportunity, must
keep in mind the nature of the functions imposed by the statute in context of the right affected. The civil
courts, in India, are governed in the matter of proceedings, through the Civil Procedure Code and the
criminal courts, by the Criminal Procedure Code as well as the Evidence Act. But the adjudicatory bodies
functioning outside the purview of the regular court hierarchy are not subject to a uniform statute
governing their proceedings.
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In Mineral Development v. State of Bihar AIR 1960 SC 468, the apex court observed that the concept of
fair hearing is elastic and not susceptible of a precise and easy definition. The hearing procedures vary
from the tribunal, authority to authority and situation to situation. It is not necessary that the
procedures of hearing must be like that of the proceedings followed by the regular courts.
In the 1970 case of A. K. Karaipak v. Union of India (1969) 2 SCC 262, the Supreme Court made a
statement that the fine distinction between the quasi-judicial and administrative function needs to be
discarded for giving a hearing to the affected party. Before the Karaipak’s case, the court applied the
natural justice to the quasi-judicial functions only. But after the case, the natural justice could be applied
to the administrative functions as well.
Features of Audi Alteram Partem
1. Right to notice: The term ‘Notice’ originated from the Latin word ‘Notitia’ which means ‘being
known’. Thus it connotes the sense of information, intelligence or knowledge. Notice embodies the rule
of fairness and must precede an adverse order. It should be clear enough to give the party enough
information of the case he has to meet. There should be adequate time for the party, so that he can
prepare for his defence. It is the sine qua non of the right of hearing. If the notice is a statutory
requirement, then it must be given in a manner provided by law. Thus notice is the starting point in the
hearing. Unless a person knows about the subjects and issues involved in the case, he cannot be in the
position to defend himself. This unwritten right of hearing is fundamental to a just decision by any
authority which decides a controversial issue affecting the rights of the rival contestants. This right has
its roots in the notion of fair procedure. It draws the attention for the party concerned to the imperative
necessity of not overlooking the other side of the case before coming to its decision, for nothing is more
likely to conduce to just and right decision than the practice of giving hearing to the affected parties.
Darshanlal Nagpal vs. Govt. (NCT of Delhi) (2012) 2 SCC 327. As per GKN Driveshafts (India) Ltd
v.ITO(2003 )259 ITR 19 (SC) and the rules of natural justice, the AO is bound to furnish reasons within a
reasonable time so that the assessee could file objections against the same.
Adequacy of the notice:
• Time, place and nature of hearing.

• Legal authority under which hearing is to be held.
• Statements of specific charges which the person has to meet.
2. Right to know the evidence against him: Every person before an administrative authority, exercising
adjudicatory powers has right to know the evidence to be used against him. The court in case of
Dhakeshwari Cotton Mills Ltd. v. CIT(supra), held that the assessee was not given a fair hearing as the
Appellate Income Tax tribunal did not disclose the information supplied to it by the department. A
person may be allowed to inspect the file and take notes. The principle of natural justice is so
fundamental that it is not to be construed as a mere formality. Where the material relied upon are not
enclosed in a show cause notice, there is no sufficient opportunity. Appropriate Authority vs. Vijay
Kumar Sharma (2001) 249 ITR 554 (SC)
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3. Right to present case and evidence: The adjudicatory authority must provide the party a reasonable
opportunity to present his case. This can be done either orally or in written. The requirement of natural
justice is not met if the party is not given the opportunity to represent in view of the proposed action.
4. Right to cross-examination: The right to rebut adverse evidence presupposes that the person has
been informed about the evidence against him. Rebuttal can be done either orally or in written,
provided that the statute does not provide otherwise. Cross examination is a very important weapon to
bring out the truth. Section 33 of the Indian Evidence Act, 1972, provides for the rights of the parties to
cross-examine. The cross-examination of the witnesses is not regarded as an obligatory part of natural
justice. Whether the opportunity of cross examination is to be given or not depends upon the
circumstances of the case and statute under which hearing is held.
5. Right to counsel: For some time the thinking had been that the Counsel should be kept away from the
administrative adjudication, as it saves time and expense. But the right to be heard would be of little
avail if the counsel were not allowed to appear, as everyone is not articulate enough to present his case.
6. Reasoned decisions or speaking orders: Basic rule of law and natural justice requires recording of
reasons in support of the order. The basic rule of law and natural justice require recording of reasons in
support of the order. The order has to be self explanatory and should not keep the higher court guessing
for reasons. Reasons provide live link between conclusion and evidence. That vital link is the safeguard
against the arbitrariness, passion and prejudice. The reason is a manifestation of mind of the
adjudicator. It is a toll for judging the validity of the order under challenge. It gives opportunity to the
court to see whether or not the adjudicator has proceeded on the relevant material and evidence. In
KEC International Ltd. v. B.R. Balakrishnan(2001) 251 ITR 158, the importance of reasoned orders being
passed on the stay applications was emphasized.
Q. "No man may be a judge in his own cause"- Explain the different kinds of ‘Bias' which is
fundamental principle of natural justice.
One of the essential elements of judicial process is that administrative authority acting in a quasi-
judicial manner should be impartial, fair and free from bias. Rules of judicial conduct, since early times,
have laid down that the deciding Officer should be free from any prejudices. Where a person, who
discharges a quasi-judicial function, has, by his conduct, shown that he is interested, or appears to be
interested, that will disentitle him from acting in that capacity.
In this connection the Supreme Court pointed out that one of the fundamental principles of natural
justice is that in case of quasi-judicial proceedings, the authority, empowered to decide the dispute
between opposing parties must be one without bias, by which is meant an operative prejudice, whether
conscious or unconscious towards one side or the other in the dispute.
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No tribunal can be Judge in his own cause and any person, who sits in judgment over the rights of
others, should be free from any kind of bias and must be able to bear an impartial and objective mind to
the question in controversy.
Bias is usually of three types:
(1) Pecuniary Bias: A series of consistent decisions in English Courts have laid down the rule that the
pecuniary interest, howsoever small, will invalidate the proceedings. So great enthusiasm was there in
the minds of the English Judges against the pecuniary interest that very small amount and negligible
quantity of interest were considered to be a valid ground, for reversing the judgment of Lord Chancellor
Cottenham by the Appellate Court in Dimes case.(1852, 3 hlr 759) In this case the appellant was engaged
in prolonged litigations against the respondent company. Against a decree passed by the V. C. Dimes he
appealed before the Lord Chancellor, who gave the decision against him. It later came to the knowledge
of the appellant that Lord Chancellor had a share in the respondent company. In appeal, their Lordships
of House of Lords held that through Lord Chancellor forgot to mention about the interest in the
company by mere inadvertence, yet the interest was sufficient to invalidate the decision given by the
Lord Chancellor.
Indian Courts also invariably followed the decision in Dimes’ case. The Privy Council made a reference to
this famous case in the case of Vassilliadas.(AIR 1945 SC 38) .Thus a pecuniary interest, howsoever
insufficient, will disqualify a person from acting as a Judge.
(2) Personal Bias: Personal bias has always been matter of judicial interpretation. It can be claimed that
no other type of bias came for judicial scrutiny as much as this type At least for a full century. With the
growing interdependability of human relations, cases of personal bias favouring one or the other party,
have grown tremendously. Personal bias can be of two types viz.
(a) Where the presiding officer has formed the opinion without finally completing the proceeding.
(b) Where he is interested in one of the parties either directly as a party or indirectly as being related to
one of the parties. In fact, there are number of situations which may create a personal bias in the
Judge’s mind against one party in dispute before him. He may be friend of the party, or hostility against
one of the parties to a case. All these situations create bias either in favour of or against the party and
will operate as a disqualification for a person to act as a Judge.
The leading case on the point is Mineral Development Ltd. V. State of Bihar,(AIR 1960 SC 468) in this
case, the petitioner company was owned by Raja Kamkshya Narain Singh, who was a lessee for 99 years
of 3026 villagers, situated in Bihar, for purposes of exploiting mica from them. The Minister of Revenue
acting under Bihar Mica Act cancelled his license. The owner of the company raja Kamalkshya Narain
singh, had opposed the Minister in general election of 1952 and the Minister had filed a criminal case
under section 500, Indian Penal Code, against him and the case was transferred to a Magistrate in Delhi.
The act of cancellation by the Minister was held to be a quasi- judicial act. Since the personal rivalry
between the owner of the petitioner’s company and the minister concerned was established, the
cancellation order became vitiated in law.
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The other case on the point is Manek Lal v. Prem Chand (AIR 1957 S.C. 425) Here the respondent had
filed a complaint of professional misconduct against Manek Lal who was an advocate of Rajasthan High
Court. The chief Justice of the High Court appointed bar council tribunal to enquire into the alleged
misconduct of the petitioner. The tribunal consisted of the Chairman who had earlier represented the
respondent in a case. He was a senior advocate and was once the advocate-General of the State. The
Supreme Court held the view that even though Chairman had no personal contact with his client and did
not remember that he had appeared on his behalf in certain proceedings, and there was no real
likelihood of bias, yet he was disqualified to conduct the inquiry. He was disqualified on the ground that
justice not only be done but must appear to be done to the litigating public. Actual proof of prejudice
was not necessary; reasonable ground for assuming the possibility of bias is sufficient. A Judge should be
able to act judicially, objectively and without any bias. In such cases what the court should see is not
whether bias has in fact affected the judgment, but whether a litigant could reasonably apprehend that
a bias attributable to a member of the tribunal might have operated against him in the final decision of
the tribunal.
(3) Bias as to the Subject-matter: A judge may have a bias in the subject matter, which means that he is
himself a party, or has some direct connection with the litigation, so as to, constitute a legal interest. “A
legal interest means that the Judge is in such a position that bias must be assumed.” The smallest legal
interest will disqualify the Judge.
Thus for example, members of a legal or other body, who had taken part in promulgating an order or
regulation cannot afterwards sit for adjudication of a matter arising out of such order because they
become disqualified on the ground of bias. Subject to statutory exceptions persons who once decided a
question should not take part in reviewing their own decision on appeal.
To disqualify on the ground of bias there must be intimate and direct connection between adjudicator
and the issues in dispute To vitiate the decision on the ground of bias as for the subject matter there
must be real likelihood of bias such bias has been classified by Jain and Jain into four categories:-
(a) Partiality of connection with the issues;
(b) Departmental or official bias;
(c) Prior utterances and pre-judgement of Issues.
(d) Acting under dictation.
Q. Discuss Locus Standi
The word locus (plural loci) is Latin for "place". “Locus standi” is Latin for ‘place to stand’- In law, the
right to bring an action.
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It is the ability of a party to demonstrate to the court sufficient connection to and harm from the law or
action challenged to support that party's participation in the case. In United States law, the Supreme
Court of the United States has stated -In essence the question of locus standi is whether the litigant is
entitled to have the court decide the merits of the dispute or of particular issues.
There are three constitutional standing requirements:
Injury: The plaintiff must have suffered or imminently will suffer injury - an invasion of a legally
protected interest which is concrete and particularized. The injury must be actual or imminent, distinct
and palpable, not abstract. This injury could be economic as well as non-economic.
Causation: There must be a causal connection between the injury and the conduct complained of, so
that the injury is fairly traceable to the challenged action of the defendant and not the result of the
independent action of some third party who is not before the court.
Redress ability: It must be likely, as opposed to merely speculative, that a favorable court decision will
redress the injury.
Concept and development of the rule of Locus Standi is clearly stated by a DB of the Hon. High Court of
Kerala in Dr. George Mampilly v. State of Kerala - 1984 KLT SN 17 (C.No.29)
“Law, it is said, is dynamic. Naturally, our perception of locus standi also has been undergoing
transformation. The traditional conception in regard to locus standi is that judicial redress is available to
a person who has suffered a legal injury by reason of violation of his legal right or. legally protected
interest by the impugned action of the State or a public authority or who is likely to suffer a legal injury
by such reason. Courts have, during recent years, evolved a number of exceptions to this rule. Courts
have now acknowledged that where there has been violation of constitutional or legal rights of persons
who, by reason of their socially or economically disadvantaged position, are unable to approach the
court for judicial redress, a member of the public could move the court for enforcement of such rights of
such persons. Members of the public are enabled, in appropriate cases to come forward to protect the
rights of person or persons belonging to a determinate class who, by reason of poverty, helplessness or
disability or socially or economically disadvantaged position, are unable to approach the court for relief.
This principle has been extended to cases where no specific regal injury is caused to a person or to a
determinate class or group of persons by the act or omission of State or public authority and injury is
caused only to public interest. Where there is a public wrong of public injury by an act or omission by
the State or a public authority which is contrary to the Constitution or to any law, any member of the
public having sufficient interest can maintain an action to or redress such public wrong or public, injury.
Courts have begun to recognize that they exist not merely to vindicate individual rights but also to
vindicate public rights and therefore permit members of the public to agitate such rights. Any member
of the public having sufficient interest can maintain an action for judicial redress of public injury arising
from breach of public duty or violation of some provision of the Constitution or the law and seek
enforcement of such public duty and observance of such constitutional or legal provision. Of course, it
must be ensured that the person who comes forward is acting bona fide and not for personal gain or
private profit or out of political motivation or other oblique consideration.
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Administrative Tribunal
Q. Enumerate the characteristics of Administrative Tribunal. Mention the reasons for growth of
Administrative Tribunal. Distinguish between tribunals and civil courts.
There are a large number of laws which charge the Executive with adjudicatory functions, and the
authorities so charged are, in the strict scene, administrative tribunals. Administrative tribunals are
agencies created by specific enactments. Administrative adjudication is term synonymously used with
administrative decision making. The decision-making or adjudicatory function is exercised in a variety of
ways. However, the most popular mode of adjudication is through tribunals.
The main characteristics of Administrative Tribunals are as follows:
• Administrative Tribunals is the creation of a statute.
• An Administrative Tribunals is vested in the judicial power of the State and thereby performance
quasi-judicial functions as distinguished from pure administrative functions.
• Administrative Tribunals is bound to act judicially and follow the principles of natural justice.
• It has some of the trapping of a court and are required to act openly, fairly and impartially.
• An administrative Tribunal is not bound by the strict rules of procedure and evidence prescribed by
the civil procedure court.
The Growth Of Administrative Tribunals
In India, administrative adjudication increased after independence and several welfare laws were
promulgated which vested the power on deciding various issues in the hands of the administration. The
modern Indian Republic was born a Welfare State and thus the burden on the government to provide a
host of welfare services to the people was immense. These quasi-judicial powers acquired by the
administration led to a huge number of cases with respect to the manner in which these administrative
bodies arrived at their decisions. The Courts held that these bodies must maintain procedural safeguards
while arriving at their decisions and observe principles of natural justice-their opinions were
substantiated by the 14th Law Commission Report. In order to avoid clogging the judicial machinery with
cases which would have arisen by the operation of these new socio-economic legislations, a number of
tribunals were established by the government. The tribunals were established with the object of
providing a speedy, cheap and decentralised determination of disputes arising out of the various welfare
legislations.6 Another important reason for the new development is that law courts, on account of their
elaborate procedures, legalistic fronts and attitudes can hardly render justice to the parties concerned,
in technical cases. Ordinary judges, brought up in the traditions of law and jurisprudence, are not
capable enough to understand technical problems, which crop up in the wake of modem complex
economic and social processes. Only administrators having expert knowledge can tackle such problems
judiciously. To meet this requirement, a number of administrative tribunals have come into existence.
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In India such tribunals were set up immediately after independence. In fact, the most important
adjudicatory function is carried out by statutory tribunals created by the legislature to adjudicate upon
certain disputes arising from administrative decisions or to determine issues judicially.
The Railway Rates Tribunal, the Income Tax Appellate Tribunal, Labour Tribunals, the Companies
Tribunal, various Compensation Tribunals, Revenue Courts of various States, etc., can be cited as
examples of such tribunals.7
Regarding the problem of backlog and delayed disposal of case the Government set up the
Administrative Reforms Commission in 1967. It was to examine the problem, suggests solutions and
also to recommend the suitable areas in which tribunals could be set up, according to this commission
The reasons for the growth of administrative tribunals are as follows: 1) Inadequacy of the traditional
judiciary to effectively decide administration-related matters especially when it came to technicalities.
2) The traditional judiciary was seen to be slow, costly and excessively procedural.
The Commission also recommended the establishment of independent tribunals in the following areas:
a) Service matters and dispute of employees under the state
b) Orders of assessment on adjudication under Customs, Central Excise, Sales Tax and orders under the
Motor vehicles Act.
Period of emergency played a crucial role in the evolution of tribunals in India. There were clear signals
that the executive did not want the judiciary to interfere with their developmental plans and other such
decisions. Such as removing disputes regarding elections to the office of President, Prime Minister and
Speaker of the Lok Sabha beyond judicial scrutiny.8 Hence in 1976 the issue was discussed at the
Conference of Chief Secretaries and from amongst all these discussions and the reports of the various
bodies stated above, Parliament enacted the 42ndConstitution (Amendment) Act, 1976 inserting
Articles 323A and 323B
which provided for the establishment of administrative and other tribunals to deal with the matters
specifically provided for.
The main distinction that can be made out between article 323A and 323B is that while 323A allows for
the Parliament to by law provide for administrative tribunals to adjudicate disputes, 323B allows for the
any “appropriate legislature”, to by law create an administrative tribunal for the adjudication of
disputes.
Administrative Tribunals Act, 1985: In pursuance of Art 323-A Parliament has passed the Administrative
Tribunals Act, 1985 covering all matters falling within the clause (1) of Article 323- A. This Act authorises
central government to establish administrative tribunals for central services and on the application of
States even for States services as well as for local bodies and other authorities including public
corporation. From the date of establishment of tribunals all courts except the Supreme Court under Art
136 lose their jurisdiction with respect to the matter falling within the jurisdiction of the tribunals.
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A tribunal shall consist of Chairman and such number of Vice-Chairmen and other members as
appropriate Government may deem fit. They are appointed by the President in the case of Central
tribunals and by the President in consultation with the Governors or Governors in case of State or joint
Tribunals. The qualifications regarding that are laid down in the Act.
Key Differences Between Tribunal and Court
The points presented below explain the differences between tribunal and court:
1. Tribunals mean the body of members who are elected to settle the controversies arising under
certain special matters. On the other extreme court is understood as the judicial institution
which is established by the constitution to administer justice, by legislation.
2. The decision given by the tribunals on a particular matter is known as the award. As against this,
the court’s decision is known as judgement, decree, conviction or acquittal.
3. While tribunals are formed to deal with specific matters, courts deal with all types of cases.
4. The tribunal can be a party to the dispute, whereas a court cannot be a party to the dispute. A
court is impartial in the sense that it acts as an arbitrator between the defendant and
prosecutor.
5. The court is presided over by the judge, panel of judges, i.e. jury, or magistrate. Unlike, tribunals
are headed by a chairman and other judicial members, elected by the appropriate authority.
6. There is no code of procedure in a tribunal, but a court has a proper code of procedure, which
must be followed strictly.
Q. Discuss (i) Central Adminstrative Tribunal, (ii) Disciplinary Action, (iii) Administrative Discretion
Central Administrative Tribunal (CAT)
The Hon'ble Chief Justice of India, Hon'ble Judges of the Supreme Court as well as the Hon'ble Prime
Minister of India and Hon'ble Minister of Law had expressed their anguish on many occasions about the
delay in deciding cases pending in Courts. But the experience and trend in the Central Administrative
Tribunal is otherwise. On the occasion of the opening of the new building of the Principal Bench of the
Tribunal, some features of the dispensation of justice in the Tribunal are highlighted. With a view to
easing the congestion of pending cases in various High Courts and other Courts in the country,
Parliament had enacted the Adminisitrative Tribunals Act, 1985 which came into force in July, 1985 and
the Administrative Tribunals were established in November, 1985 at Delhi, Mumbai, Calcutta and
Allahabad. Today, there are 17 Benches of the Tribunal located throughout the country wherever the
seat of a High Court is located, with 33 Division Benches. In addition, circuit sittings are held at Nagpur,
Goa, Aurangabad, Jammu, Shimla, Indore, Gwalior, Bilaspur, Ranchi, Pondicherry, Gangtok, Port Blair,
Shillong, Agartala, Kohima, Imphal, Itanagar, Aizwal and Nainital.
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The Central Administrative Tribunal has been established for adjudication of disputes 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 other local authorities within the territory of India or under the control
of Government of India and for matters connected therewith or incidental thereto. This was done in
pursuance of the amendment of Constitution of India by Articles 323A. In the statement of objects and
reasons on the introduction of the Administrative Tribunals Act, 1985, it was mentioned that the setting
up of such Administrative Tribunals exclusively would go a long way in reducing the burden on the
various courts and reduce pendency and would also provide to the persons covered by the
Administrative Tribunals a speedy and relatively cheap and effective remedy. In addition to Central
Government employees, the Government of India has notified 45 other organizations to bring them
within the jurisdiction of the Central Administrative Tribunal. The provisions of the Administrative
Tribunals Act, 1985 do not, however, apply to members of paramilitary forces, armed forces of the
Union, officers or employees of the Supreme Court, or to persons appointed to the Secretariat Staff of
either House of Parliament or the Secretariat staff of State/Union Territory Legislatures.
A Chairman who has been a sitting or retired Judge of a High Court heads the Central Administrative
Tribunal. Besides the Chairman, the authorized strength consists of 16 Vice-Chairmen and 49 Members.
The conditions of service of Chairman, Vice-Chairmen and Members are governed by the provisions of
the Central Administrative Tribunal (Salaries and Allowances and Conditions of Service of Chairman,
Vice-Chairmen and Members), Rule, 1985, as amended from time to time. As per Rule 15-A,
notwithstanding anything contained in Rule 4 to 15 of the said Rules, the conditions of service and other
perquisites available to the Chairman and Vice-Chairmen of the Central Administrative Tribunal shall be
same as admissible to a serving Judge of a High Court as contained in the High Court Judges (Conditions
of Service) Act, 1954 and High Court Judges (Traveling Allowances) Rules, 1956, as amended from time
to time
After the constitution of the Tribunal in 1985, in the beginning, under Section 29 of the Administrative
Tribunals Act, 1985, the Tribunal received on transfer from the High Courts and Subordinate Courts
13,350 cases, which were pending there. Thereafter, till November 2001, 3,71,448 cases were instituted
in the Tribunal. Out of these, 3,33,598 cases have already been disposed of. The total number of cases
received on transfer as well as those instituted directly at various Benches of the Tribunal till 30.06.2006
is 4,76,336, of which the Tribunal has disposed of 4,51,751 cases leaving a balance of 24585 cases which
constitutes disposal of 94%. The institution of cases in the Tribunal has increased tremendously but the
rate of disposal of the cases has also quantatively increased and in the Principal Bench of the Tribunal at
New Delhi, the disposal is 94%. During the year 2000, over 91% of cases of the Principal Bench of the
Tribunal have been upheld in Writ Petition by the Delhi High Court and so quantitively also the Tribunal
has performed well.
The Tribunal follows the principles of natural justice in deciding cases and the procedure, prescribed by
Evidence Act or CPC does not apply. The Tribunal is also a specialized organization, which deals with only
service matters in respect of the Central Government employees and other employees who have been
notified. Principal Bench here is dealing presently with the cases instituted in the year 2005 and 2006
and the total number of cases pending at the end of June, 2006 is 2708. The Central Administrative
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Tribunal is doing its best to expedite the disposal of cases. For the year 2001 and right up to June, 2006
the overall disposal of cases has exceeded the number of freshly instituted cases, as a result of which
the total pendency has reduced. Where the pendency of cases is on higher side in any Bench, Members
are being deputed from other Benches to that Bench for wiping out the pendency. The original
Applications in the Principal Bench are generally disposed of in four to six months, thus justifying the
aim of the Legislature in setting up the Administrative Tribunals to provide a speedy, relatively
inexpensive and efficacious remedy to the employees who feel aggrieved.
The Central Administrative Tribunal is empowered to prescribed its own rules of practice for discharging
its functions subject to the Administrative Tribunals Act, 1985 and Rules made there under. For this
purpose, the Central Administrative Tribunal Rules of Practice, 1993 have been notified. Similarly, for
the purpose of laying down a common procedure for all Benches of the Tribunal, the Central
Administrative Tribunal (Procedure) Rules, 1987 have been notified. Under Section 17 of the
Administrative Tribunal Act, 1985, the Tribunal has been conferred the power to exercise the same
jurisdiction and authority in respect of contempt of itself as a High Court.
The employees of the Central Administrative Tribunal are required to discharge their duties under the
general superintendence of the Chairman. Salaries and allowances and conditions of service of the
officers and other employees of the Tribunal are specified by the Central Government. Pursuant to these
provisions the Central Government have notified the Central Administrative Tribunal Staff (Conditions of
Service) Rules, 1985. There are 1288 posts classified in 38 categories for assisting the Tribunal in
discharging its functions. The Central Administrative Tribunal is a Growing institution with increasing
responsibilities and load of work.
Disciplinary Action
Discipline is a quality that employee of an organization shows in terms of behavior. Discipline is needed
for effective human resource management. Organization is formed by designing a structure of
employees from the top level to bottom level. Each level needs people with discipline for effective
operation of an organization. Discipline regulates employee's behavior. Acceptable behavior in a certain
order line is needed by the organization from each employee. Discipline is a condition prevailing among
the employee with respect to rules and regulation of an organization.
According to the Decenzo and Robbins." Discipline is a condition in an organization when employees
conduct themselves in accordance with the organization's rules and standards of acceptable behavior."
According to Garry Dessler," Discipline is a procedure that corrects or punishes subordinates because a
rule or procedure has been violated".
Importance of discipline
• Discipline is crucial for the smooth running of an organization.
• A disciplined workforce can meet the difficulties and make contribution in achieving the
organizational goals in a better way.
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• It helps to build strong and good relationship among the employees in the organization
• Discipline infers the obscene of anomaly, disarray, issue and confusion in human conduct and
exercises.
Types of Disciplinary problems
Due to the difference in religion, language, culture, living style etc of the employees, it creates the
disciplinary problems for the management. By covering overall areas of an organization where
employees expose their behavior by regarding discipline is divided into four types. First, organization
needs self-discipline from employees but always it does not happen and then several disciplinary
problems take place. Those problems are discussed below:
Attendance related problems: Not attending regularly is a disciplinary problem. It is a great problem for
the organization. This is called due to disputes between peers or management. Disciplinary problem
causes when management cannot understand employees and their individual problems then it may
cause employees to remain absent.Unattractive pay attendance related problems. These problems are
tardiness ( being lazy, not doing work), unexcused absence, failure to report, driving late for work,
accidental injury, abuse of sick leave and leaving without permission.
On the job behavior related problem: Unwilling and unaccepted behavior shown by employees on the
job is another disciplinary problem. Dissatisfied, who do not like change and close to rude person show
unaccepted behavior on the job or it can also be the negative behaviors that are shown by the
employees within their organization at working place is disciplinary problem. Job-related problems are
gross insubordination, carrying a concealed weapon, attacking others, intoxicated on the job, failure to
obey safety rules, defective work, sleeping on the job, failure to report accident, loafing(sitting idle),
gambling, fighting, arrival at work drunk, horse play(making too much noise in work time) and malicious
destruction of organizational property.
Dishonesty related problems: Lying and stealing is dishonesty. Stealing, selling off the company
property, destruction of the company property, presenting false information of employee's record,
concealing defective work and destructive or subversive activity etc. are result of dishonesty. Dishonest
employees harm the whole environment of the organization and make the organization unsuccessful.
Outside activities: Organization leads to increase its reputation through the good discipline of
employees inside as well as outside the organization. Employees discipline outside the organization is
very critical. Outside disciplinary problems are unauthorized strike activities, outside criminal activities,
wages garnishment, working for competing company and criticizing management in public.
General guidelines for administrating discipline
Discipline is must for an organizational success. Human resource management needs to encourage
employees to behave in the way that makes sense of work. Human resource manager should manage
discipline for effective operation of an organization. Discipline is likewise crucial for keeping up a chain
of importance and managing representatives who don't take after organization arrangements and
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techniques, routinely arrive late or not in any manner, or treat their collaborators unfairly. So, general
guidelines for administrating discipline are explained below:
Make disciplinary action, corrective rather than punitive (punishment): Action for improving discipline
should be corrective. It is to be done positively and should be able to improve their habit for leading
organization in right path. Convincing and giving suggestion in making small mistake is first step for
improving discipline. Self-discipline is the best discipline of the employees.
Discipline should be progressive: Maintain discipline in the organization is must essential by long-term
perspective. It should be progressive by aiming at achieving goal of human resource management.
Disciplinary action should be in such a way that it should be able to lead the organization in a head way
through the positive effort of all people of the organization. Disciplinary action is oral warning, written
warning, suspension, demotion, dismissal. Dismissal action should be taken for the most serious
violation of discipline. It shouldn't be taken for the first offense. It should be situational. This type of
disciplinary action should depend on the severity as well as the frequency of the disciplinary action.
Follow the hot stove rule: Follow the hot stove rule is immediate action taking rule. Hot stove rule
comprises disciplinary action should be fair. and should be impersonal. The warning should be given in
advance.
Allow employee to give explanation: Discipline can be violated due to various reasons. Such reasons
should be correctly identified. So, employee should listen before initiating disciplinary action. They
should be allowed to explain the reason of discipline violation. The employee should be given an
opportunity to explain his/her position before the disciplinary action is initiated. He/she should be
patiently heard.
Causes of employee disciplinary problem
Behavioral issues in the work environment call for administrators to make a move to guarantee that the
issue is contained and cured. The significance of discipline in the organization can't be underestimated,
since productivity, employee morale and even organization benefit can be adversely influenced. A
positive methodology may resolve an issue before it compounds; however, discipline ought to be
utilized deliberately by taking after organization strategy while respecting the worker's rights.Various
causes of employee disciplinary problem are:
Mismanagement: Poorly managed activities in an organization is mismanagement. A mismanaged

operation fails to achieve its goals, is extremely wasteful and is generally indicative of administrative
procedures that are not well thought out and directed.
Distraction: Distraction is dividing attention of an individual or group from the chosen object of
attention into like sources of distraction. It is caused by lack of ability to pay attention, lack of interest in
the object of attention.
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Outside forces: Pressure that arises from outside is unsystematic. External forces refer to market prices
for raw material supplies, consumer demand for the company's finished products, government
regulation.
Process of disciplinary action
Employee discipline is the situation in which everyone follows the rules, regulation, and procedures of
the organization. A disciplined workforce can meet the difficulties of the organizations and contribute to
the organizational targets better. Discipline is a minimum standard of acceptable behavior. A process of
disciplinary action in logical step is shown as follows;
Oral warning: Orally giving suggestion not to violate discipline is oral warning. It provides chance to the
employee to explain. Manager and employee agree about solution to prevent it from recurring. Warning
given to an employee is recorded in employee's life. An oral warning is the warning where managers
warn the employee's behavior personally (face to face). It is the first step of disciplinary action. The
employee who violates discipline, rules and regulations of the organization is reprimanded orally in
private and informal environment
Written warning: Written warning is the first formal disciplinary action. Warning is given to those
employees formally in written form who violates discipline. A file is prepared for keeping the record of
employee's action. It reminds employee time and again. It is a formal disciplinary process where a letter
sent to the employee and another copy is filled in employee's personal life. Written warning must
include committee mistakes, its cause, and effect, its adverse consequences to the organization etc.
Suspension: The employee is prohibited from performing the task assigned to him/her. It is a process of
making the employee free from a job as punishment. It can be one day or several weeks or a year with
out pay. It makes employee rude if management can not be able to manage indiscipline for standards of
acceptable behavior. It depends on the degree of violation. Suspension provided a rude awakening to
problem employees.
Pay-cut: Pay cut is disciplinary action in which employees pay is cut rather than additional pay. It has a
demoralizing effect on the employee. It's an appropriate way to warn employee to correct his behavior.
Demotion: Reducing promotional opportunity and grade is a demotion. It's a drop from the current title
or position to lower grading job. Transferring to remote and rural area cutting additional benefits by
lowering responsibilities are examples of demotion.
Dismissal: Ultimate disciplinary action taken by management is called dismissal. It is the last step of
disciplinary action. It covers up the theft, misconduct, drug abuse, falsification of information,
unemployment application, lack of required qualification and job elimination. It is involuntary
termination of employment. It is costly and can have adverse effect on other employees.
Administrative Discretion
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Discretion in layman’s language means choosing from amongst the various available alternatives
without reference to any predetermined criterion, no matter how fanciful that choice may be. But the
term ‘Discretion’ when qualified by the word ‘administrative’ has somewhat different overtones.
‘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. Such exercise is not to
be arbitrary, vague and fanciful, but legal and regular.
The problem of administrative discretion is complex. It is true that in any intensive form of government,
the government cannot function without the exercise of some discretion by the officials. But it is equally
true that absolute discretion is a ruthless master. Discretionary power by itself is not pure evil but gives
much room for misuse. Therefore, remedy lies in tightening the procedure and not in abolishing the
power itself. There is no set pattern of conferring discretion on an administrative officer. Modern
drafting technique uses the words ‘adequate’, ‘advisable’,
‘appropriate’, ‘beneficial’, ‘reputable’, ‘safe’, ‘sufficient’, ‘wholesome’, ‘deem fit’, ‘prejudicial to safety
and security’, ‘satisfaction’, belief’, ‘efficient’, ‘public purpose’, etc. or their opposites. It is true that with
the exercise of discretion on a case-to-case basis, these vague generalizations are reduced into more
specific moulds, yet the margin of oscillation is never eliminated. Therefore, the need for judicial
correction of unreasonable exercise of administrative discretion cannot be overemphasized.
Judicial Behavior and Administrative Discretion in India
Though courts in India have developed a few effective parameters for the proper exercise of discretion,
the conspectus of judicial behavior still remains halting, variegated and residual, and lacks the activism
of the American courts. Judicial control mechanism of administrative discretion is exercised at two
stages:
I) at the stage of delegation of discretion;
II) at the stage of the exercise of discretion.
(1) Control at stage of delegation of discretion: The court exercise control over delegation of
discretionary powers to the administration by adjudicating upon the constitutionality of the law under
which such powers are delegated with reference to the fundamental rights enunciated in Part III of the
Indian Constitution. Therefore, if the law confers vague and wide discretionary power on any
administrative authority, it may be declared ultra vires Article 14, Article 19 and other provisions of the
Constitution.
In certain situations, the statute though it does not give discretionary power to the administrative
authority to take action, may give discretionary power to frame rules and regulations affecting the rights
of citizens. The court can control the bestowal of such discretion on the ground of excessive delegation.
(2) Control at the stage of the exercise of discretion: In India, unlike the USA, there is no Administrative
Procedure Act providing for judicial review on the exercise of administrative discretion. Therefore, the
power of judicial review arises from the constitutional configuration of courts. Courts in India have
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always held the view that judge-proof discretion is a negation of the rule of law. Therefore, they have
developed various formulations to control the exercise of administrative discretion. These formulations
may be conveniently grouped into two broad generalizations:
i) That the authority is deemed not to have exercised its discretion at all.
ii) That the authority has not exercised its discretion properly.
i) That the authority is deemed not to have exercised its discretion at all :- Under this categorization,
courts exercise judicial control over administrative discretion if the authority has either abdicated its
power or has put fetters on its exercise or the jurisdictional facts are either non-existent or have been
wrongly determined.
Purtabpore Company Ltd. V. Cane Commissioner of Bihar,(AIR 1970 SC 1896) is a notable case in point.
In this case 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 favor of the appellant-company. The court quashed the exercise of discretion by the Cane
Commissioner on the ground that the 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 or 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.
ii) That the authority has not exercised its discretion properly This is an all-embracing formulation
developed by courts in India to control the exercise of discretion by the administrative authority.
Improper exercise of discretion includes everything that English courts include in ‘unreasonable’
exercise of discretion and American courts include in ‘arbitrary and capricious’ exercise of discretion.
Improper exercise of discretion includes such things as ‘taking irrelevant considerations into account’,
‘acting for improper purpose’, ‘asking wrong questions’, ‘acting in bad faith’, ‘neglecting to take into
consideration relevant factors’ or ‘acting unreasonable’.
S.R. Venkataraman v. Union of India,(1979 2SCC 491) the appellant, a Central Government officer, was
prematurely retired from service in ‘public interest’ under Rule 56(j)(i) on attaining the age of 50 years.
Her contention was that the government did not apply its mind to her service record and that in the
facts and circumstances of the case the discretion vested under Rule 56(j)(I) was not exercised for
furtherance of public interest and that the order was based on extraneous circumstances. The
government conceded that there was nothing on record to justify the order. The Supreme Court,
quashing the order of the government, held that if a discretionary power has been exercised for an
unauthorized purpose, it is generally immaterial whether its repository was acting in good faith or bad
faith. An administrative order based on a reason or facts that do not exist must be held to be infected
with an abuse of power.
R.D. Shetty v. International Airport Authority (1979 3SCC 459): It is heartening to see the law catching
up with the vagaries of the State’s dealings in the exercise of its discretion. In this case the issue was the
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awarding of a contract for running a second-class hotelier's and it was clearly stipulated that the
acceptance of the tender would rest with the Airport Director who would not bind himself to accept any
tender and reserved to himself the right to reject all or any of the tenders received without assigning
any reason. The highest of all. A writ petition was filed by a person who was himself neither a tenderer
nor an hotelier was filed by a person who was himself neither a tenderer nor a hotelier. His grievance
was that he was in the same position as the successful tenderer because if an essential condition could
be ignored in the tenderer’s case why not in the petitioner’s? The Supreme Court accepted the plea of
locus stand in challenging the administrative action. Justice P.N. Bhagwati, who delivered the judgment
of the Court, held:
1) Exercise of discretion is an inseparable part of sound administration and, therefore, the State which is
itself a creature of the Constitution, cannot shed its limitation at any time in any sphere of State activity.
2) It is a well-settled rule of administrative law that an executive authority must be rigorously held to the
standards by which it professes its actions to be judged and it must scrupulously observe those
standards on pain of invalidation of an act in violation of them.
3) It is indeed unthinkable that in a democracy governed by the rule of law the executive government or
any of its officers should possess arbitrary powers over the interests of an individual. Every action of the
executive government must be informed with reason and should be free from arbitrariness. That is the
very essence of the rule of law and its bare minimal requirement.
4) The government cannot be permitted to say that it will give jobs or enter into contracts or issue
quotas or licenses only in favor of those having gray hair or belonging to a particular political party or
professing a particular religious faith. The government is still the government when it acts in the matter
of granting largesse and it cannot act arbitrarily. It does not stand in the same position as private
individual.
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Judicial Control Of Administrative Actions

Q. Discuss the Writ Jurisdiction of High Courts and compare it with the writ jurisdiction of Supreme
Court of India. Is laches a ground for a court to refuse to hear a writ petition?
Article 226 empowers the High Courts to issue writs in the nature of habeas corpus, mandamus,
prohibition, certiorari and quo warranto or any of them for the enforcement of any of the fundamental
rights or for any other purpose. It has been held that the words ‘for any other purpose’ mean for the
enforcement of any statutory or common law rights. The jurisdiction of the High Courts under Art 226 is
wider than that of the Supreme Court under Art 32. The jurisdictions under Art 32 and 226 are
concurrent and independent of each other so far as the fundamental rights are concerned. A person has
a choice of remedies. He may move either the Supreme Court under Art 32 or an appropriate High
Court under Art 226. If his grievance is that a right other than a fundamental right is violated, he will
have to move the High Court having jurisdiction. He may appeal to the Supreme Court against the
decision of the High Court. After being unsuccessful in the High Court, he cannot approach the Supreme
Court under Art 32 for the same cause of action because as said earlier, such a petition would be barred
by res judicata. Similarly, having failed in the Supreme Court in a petition filed under Art 32, he cannot
take another chance by filing a petition under Art 226 in the High Court having jurisdiction over his
matter because such a petition would also be barred by res judicata.
The High Court’s jurisdiction in respect of ‘ other purposes’ is however, discretionary. The courts have
laid down rules in accordance with which such discretion is to be exercised.
The jurisdiction of the High Court under Art 226 cannot be invoked if:
The petition is barred by res judicata;
If there is an alternative and equally efficacious remedy available and which has not been exhausted;
If the petition raised questions of facts which are disputed; and
If the petition has been made after an inordinate delay.
These rules of judicial restraint have been adopted by our courts from the similar rules developed by the
English courts in the exercise of their jurisdiction to issue the prerogative writs.
Where a civil court had dealt with a matter and the High Court had disposed of an appeal against the
decision of the civil court, a writ petition on the same matter could not be entertained. This was not on
the ground of res judicata as much as on the ground of judicial discipline, which required that in matters
relating to exercise of discretion, a party could not be allowed to take chance in different forums.
Withdrawal or abandonment of a petition under Art 226/227 without the permission of the court to file
a fresh petition there under would bar such a fresh petition in the High Court involving the same subject
matter, though other remedies such as suit or writ petition under Art 32 would be open. The principle
underlying Rule 1 of Order 23 of the CPC was held to be applicable on the ground of public policy.
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It is a general rule of the exercise of judicial discretion under Art 226 that the High Court will not
entertain a petition if there is an alternative remedy available. The alternative remedy however, must be
equally efficacious. Where an alternative and efficacious remedy is provided, the Court should not
entertain a writ petition under Art 226. Where a revision petition was pending in the High Court
challenging the eviction degree passed against a tenant by the court of the Small Causes, it was held that
the High Court should not have entertained a writ petition filed by the cousins of the tenants. The
petitioners should have exhausted the remedies provided under the Code of Civil procedure before
filing the writ petition. Petitions were dismissed on the ground of the existence of an alternative remedy
in respect of elections to municipal bodies or the Bar Council.
When a law prescribes a period of limitation for an action, such an action has to be brought within the
prescribed period. A court or a tribunal has no jurisdiction to entertain an action or proceeding after the
expiration of the limitation period. It is necessary to assure finality to administrative as well as judicial
decisions. Therefore, those who sleep over their rights have no right to agitate for them after the lapse
of a reasonable time. Even writ petitions under Art 226 are not immune from disqualification on the
ground of delay. Although the law of limitation does not directly apply to writ petitions, the courts have
held that a petition would be barred if it comes to the court after the lapse of a reasonable time. This is
however, not a rule of law but is a rule of practice. Where the petitioner shows that illegality is manifest
in the impugned action, and explains the causes of delay, the delay may be condoned.
Comparison of the Writ Jurisdiction of the Supreme Court with that of High Courts (Under the Indian
Constitution)
Under Article 32 of the Constitution, a person can move to the Supreme Court for the enforcement of
his Fundamental Rights, while under Article 226, any person can move to the High Court for the
enforcement of his Fundamental Rights and for any other purposes also.
In this way, the scope of the provisions of Article 226 is wider than Article 32. Under Article 32, the
Supreme Court may Issue writs, orders and directions for the enforcement of fundamental rights only.
Under Article 226, the High Court may do so not only for the enforcement of fundamental rights but also
for any other purposes, Le., for the enforcement of any other legal right.
To take up for example, under Article 265, as explained earlier, no tax can be levied without authority of
law. When a tax Imposed without authority of law, infringes a fundamental right, relief can be had
under Article 32, as also under Article 226. But when in such a case, there is no breach of a fundamental
right, Article 32 cannot be invoked and relief can be had only under Article 226.
For enforcement of the fundamental rights, a parallel writ jurisdiction has been conferred on the High
Court under Article 226 and on the Supreme Court under Article 32. As regards the inter-relation
between the two Articles, it appears that Supreme Court’s jurisdiction is independent of and is in no way
curtailed or qualified by the jurisdiction of High Court.
A person complaining of an infraction of his fundamental right may come straight to the Supreme Court
for relief and he is not bound to invoke the jurisdiction of the High Court first. The reason is that Article
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32 is itself a fundamental right and provides a guaranteed remedy for the enforcement of the
fundamental rights, and, therefore, the Supreme Court is bound to entertain petitions seeking
protection against infraction of fundamental rights.
In Fertilizer Corporation Kamgar Union vs. Union of India, AIR 1981 S.C. 345, it has been held that the
jurisdiction conferred on the Supreme Court by Article 32, is an important part of the “basic structure”
of the Constitution because it is meaningless to confer fundamental rights without providing an effective
remedy for their enforcement.
When they are violated, Parliament may empower the Supreme Court with such a power under Article
139. But the power of the High Court to issue writs cannot be in derogation of the Supreme Court under
Article 226. In other words, an order under Article 32 will supersede the orders of the High Court
previously passed.
A person complaining of an infringement of a fundamental right, may first approach the High Court for
relief, and then, on his petition being dismissed there, may approach the Supreme Court under Article
32. Normally, such a person should go in appeal to the Supreme Court against the High Court’s
judgment.
But this being a dilatory procedure, some may like to take recourse to quick procedure provided by
Article 32. The Supreme Court, being the protector and guardian of the fundamental rights of the
people, cannot possibly refuse to entertain petition tinder Article 32 even though a similar petition has
been refused by a High Court under Article 226 of the Constitution.
We therefore find that the scope of right of a High Court to issue writs to the people is wider under
Article 226, than the right of the Supreme Court to issue writs under Article 32. The Supreme Court’s
right to issue writs under Article 32 is limited to the cases of fundamental rights only.
LACHES AS A GROUND OF REFUSING WRITS
“The doctrine of laches” is based upon maxim that equity aids the vigilant and not those who slumber
on their rights. It is defined as neglect to assert a right or claim which, taken together with the lapse of
time and other circumstances causing prejudice to adverse party, operates as bar in Court of equity.
The elements of laches are –
(i) unreasonable lapse of time,
(ii) neglect to assert a right or claim,
(iii) to the detriment of another.
If these three elements are met, then the doctrine of laches will act as a bar in Court. Laches is,
therefore, considered as an unreasonable delay in pursuing a right or claim. In a way it prejudices the
opposing party. When asserted in litigation, it is an equitable defence, or doctrine. The person invoking
laches is asserting that an opposing party has slept of on his “right” and that as a result of this delay,
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circumstances have changed such that it is no longer just to grant the petitioner’s claim. To put in other
way, failure to assert one’s right in a timely manner results in a claim being barred by laches.
Laches is a defence to a proceeding in which a petitioner seeks equitable relief. Cases in equity are
distinguished from cases at law by the type of remedy, or judicial relief, sought by the petitioner.
Generally, law cases involve a problem that can be solved by the payment of monetary damages. Equity
cases involve remedies directed by the Court against a party. The law encourages a speedy
resolution for every dispute. Cases in law are governed by statutes of limitation, which are lodged that
determine how long a person has to file a law suit before the right to sue expires. Different types of
injuries have different time periods in which to file a law suit. Laches is the equitable equivalent of
statutes of limitation. However, unlike statutes of limitation, laches leaves it up to the Court to
determine, based on the unique facts of the case, whether a petitioner has waited too long to
seek the relief. In the case of Shankara Cooperative Housing Society Limited Vs. M. Prabhakar & ors.,
reported in (2011) 5 SCC 607, the Apex Court in para 46 and 47 has held as follows:-
Delay and laches is one of the factors that requires to be borne in mind by the High Courts
when they exercise their discretionary power under Article 226 of the Constitution of India. In
an appropriate case, the High Court may refuse to invoke its extraordinary powers if there is such
negligence or omission on the part of the applicant to assert his rights taken in conjunction with the
lapse of time and other circumstances. 47. The Privy Council in Lindsay Petroleum Co. V. Hurd, (1874) LR
5 PC 221, which was approved by this Court in Moon Mills Ltd. V. Industrial Court,
AIR 1967 SC 1450 and Maharashtra SRTC V. Balwant Regular Motor Service, AIR 1969 SC 329,
has stated: (Lindsay Petroleum Co. Case, LR pp 239-40). “Now the doctrine of laches in courts of equity
is not an arbitrary or a technical doctrine. Where it would be practically unjust to give a remedy, either
because the party has, by his conduct, done that which might fairly be regarded as equivalent to a
waiver of it, or where by his conduct and neglect he has, though perhaps not waiving that remedy,
yet put the other party in a situation in which it would not be reasonable to place him if the
remedy were afterwards to be asserted, in either of these cases, lapse of time and delay
are most material. But in every case, if a argument against relief, which otherwise would be just, is
founded upon mere delay, that delay of course not amounting to a bar by any statute of limitations, the
validity of that defence must be tried upon principles substantially equitable.
Two circumstances, always important in such cases, are, the length of the delay and the nature of the
acts done during the interval, which might affect either party and cause a balance of justice or
injustice in taking the one course or the other, so far as it relates to the remedy.”
Q. Discuss all the writs issued by the High Courts and Supreme Court in detail. Distinguish between
‘Certiorari ‘ and ‘Prohibition’.
Habeas Corpus
The meaning of the Latin phrase Habeas Corpus is 'have the body'. According to article 21, "no person
shall be deprived of his life or personal liberty except according to the procedure established by law".
The writ of Habeas corpus is in the nature of an order directing a person who has detained another, to
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produce the latter before the court in order to examine the legality of the detention and to set him free
if there is no legal justification for the detention. It is a process by which an individual who has been
deprived of his personal liberty can test the validity of the act before a higher court.
The objective of the writ of habeas corpus is to provide for a speedy judicial review of alleged unlawful
restraint on liberty. It aims not at the punishment of the wrongdoer but to resume the release of the
retinue. The writ of habeas corpus enables the immediate determination of the right of the appellant's
freedom.
Article 22 of the constitution requires an arrested person to be produced within 24 hours of his arrest
and failure to do so would entitle the person arrested to be released. The grounds of his arrest should
also be informed to him. Even when the arrest is valid, failure to inform the grounds within a reasonable
time would make the detention unconstitutional. In such cases, the writ of Habeas corpus acts as
a constitutional privilege. If the court finds that there was no legal ground for the imprisonment of a
person, it will pass an order to release him forthwith. The question before the court is whether the
detention is lawful. In the writs of habeas corpus, the merits of the case or the moral justification for the
imprisonment or detention are irrelevant. Any person whether he is guilty or not, is entitled to be set at
liberty if his imprisonment is not as per law.
Who can apply?
A writ of habeas corpus is issued to the authority or person who has detained the person. The
application for habeas corpus can be made by the prisoner himself or by any interested person other
than a total stranger .Even a letter to the court pointing out the illegalities of imprisonment or unlawful
detention will be admitted. If the court gets any information from anyone, it can act suo motu in the
interest of justice.
Procedure: An application for a writ of habeas corpus has to be made along with an affidavit describing
the nature and circumstances of the restraint. If the court finds that a prima facie case for granting the
request is evident, then it will issue a rule 'nisi' calling upon the authority concerned to show cause , on
a specified date, why the writ should not be issued. If the cause shown is found to be insufficient, the
court will issue the writ for the immediate release of the detained person.
Habeas corpus and the emergency powers of the executive: Various legislations have curtailed the
power of this writ to a great extent. For example, the declaration of emergency and other national
security laws etc. The executive has the power to detain a person on its discretion preventively. As per
the existing national security laws, the grounds of arrest need not be revealed to the person arrested. In
such instances, the judiciary has only very little scope for review.
Similarly, Article 359 of the constitution empowers the president of India to suspend the right to move
any court for the enforcement of any of the fundamental right, specified in his order.
2.Certiorari
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The writ of Certiorari is generally issued against authorities exercising quasi-judicial functions. The Latin
word Certiorari means 'to certify'. Certiorari can be defined as a judicial order of the supreme court or
by the high courts to an inferior court or to any other authority that exercise judicial, quasi-judicial or
administrative functions, to transmit to the court the records of proceedings pending with them for
scrutiny and to decide the legality and validity of the order passed by them.
Through this writ, the court quashes or declares invalid a decision taken by the concerned authority.
Though it was meant as a supervisory jurisdiction over inferior courts originally, these remedy is
extended to all authorities who issue similar functions. The concept of natural justice and the
requirement of fairness in actions, the scope of certiorari have been extended even to administrative
decisions. Whether the decision is judicial or quasi judicial is irrelevant nowadays.
Certiorari is corrective in nature. This writ can be issued to any constitutional, statutory or non statutory
body or any person who exercise powers affecting the rights of citizens.
Grounds for Certiorari: The following are the grounds for Certiorari:
1.Lack of jurisdiction: When the authority has no jurisdiction to take action, it is lack of jurisdiction.
When an authority is improperly constituted or is incompetent to take action and if it acts under an
invalid law, it will amount to lack of jurisdiction. Similarly when the authority acts without jurisdiction,
fails to exercise the vested jurisdiction or acts in excess of the limits, there involves a defect of
jurisdiction or power. The court can issue certiorari to quash such orders.
2.Abuse of jurisdiction: If an authority abuses its jurisdiction, a certiorari can be issued. When the
authority exercises its power for improper purposes it is abuse of jurisdiction. Similarly if the authority
acts in bad faith or ignores relevant points and facts or acts on some other considerations abuse of
jurisdiction occurs and the writ of certiorari becomes applicable.
3.Jurisdictional facts: A jurisdictional fact is that fact or facts upon which an authority's power to act
depends. In the absence of jurisdiction for collateral facts an authority cannot exercise jurisdiction over
a dispute and decide it. If the authority takes a decision on the wrong assumption of existence of
jurisdictional facts, the order is liable to be quashed by the writ of certiorari.
4.Error of law apparent on the face of record: A writ of certiorari can be issued to quash an order if
there is an error of law apparent on the record. An error is apparent on the face of record if it is self
evident. i.e. if the error can be ascertained by a mere perusal of the record without a detailed argument
or further evidence. An error of law apparent on the face of the record is treated as an insult to the legal
system. Ignorance or neglect of law, wrong proposition of law, inconsistency between the facts, law and
the decision etc amount to errors of law.
5.Violation of the principle of natural justice: When there is a violation of the principle of natural
justice, a writ of certiorari can be issued. An authority is bound to observe the principles of natural
justice. Anyone who decides a case must adhere to the minimum standards of natural justice. Hence
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when there occurs an infraction of fundamental right, the writ of certiorari comes for restoration of that
right.
3.Prohibition
The grounds for issuing the writs of certiorari and prohibition are generally the same. They have many
common features too. The writ of prohibition is a judicial order issued to a constitutional, statutory or
non statutory body or person if it exceeds its jurisdiction or it tries to exercise a jurisdiction not vested
upon them. It is a general remedy for the control of judicial, quasi judicial and administrative decisions
affecting the rights of persons.
Grounds: The writs of prohibition and certiorari are issued more or less on similar grounds.
1.Absence or excess of jurisdiction: The writ if Prohibition prohibits an authority from exercising a
jurisdiction not vested on it. When there is absence of jurisdiction or total lack of jurisdiction an
authority cannot act.
2. Violation of fundamental rights: When an authority acts in violation or infringement of the

fundamental ights of a person, a writ of prohibition can be invoked.
3. Violation of the principles of natural justice: All authorities are to observe the principles of natural
justice while exercising their powers. If an authority fails in this regard the decision of that authority is
liable to be quashed through the writ of prohibition.
4.Statutes or laws against the constitution: When an authority tries to act under a statute or a law
which is unconstitutional, the writ of prohibition can be applied.
Common features of prohibition and certiorari:
•Issued against any authority having judicial, quasi judicial or administrative jurisdiction.
•Certiorari is issued to quash a decision already taken whereas prohibition is issued when the matter is
still pending before the authority. But even if the authority has taken a decision, the writ of prohibition
can be issued to stop the authority from enforcing the decision.
•Certiorari can be applied for both prevention and cure whereas prohibition is mainly for prevention.
4.Mandamus
The writ of mandamus is a judicial remedy in the form of an order from the supreme court or high
courts to any inferior court, government or any other public authority to carry out a 'public duty'
entrusted upon them either by statute or by common law or to refrain from doing a specific act which
that authority is bound to refrain from doing under the law. For the grant of the writ of mandamus there
must be a public duty. The superior courts command an authority to perform a public duty or to non
perform an act which is against the law. The word meaning in Latin is 'we command'.
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The writ of mandamus is issued to any authority which enjoys judicial, quasi judicial or administrative
power. The main objective of this writ is to keep the public authorities within the purview of their
jurisdiction while performing public duties.
Conditions required for mandamus
•The petitioner must have the right to compel the performance of the duty. This writ cannot be invoked
if the person complaining has no legal right.
•There must be public duty. That duty must be mandatory and not discretionary. But at the same time
when a discretionary power is abused or improperly exercised, that would be treated as non exercise of
discretion and the court can command the authority to exercise the discretion in accordance with law
•The petitioner must have made a specific demand for the performance of the duty and the authority
must have made a refusal to perform. Then only a writ of Mandamus can be sought.
•A civil liability arising under a contract cannot be enforced through mandamus. The grant of mandamus
is discretionary. If there is unreasonable delay in filing the petition or if there is an adequate alternate
remedy mandamus may be refused by the court.
Grounds: The grounds for the writ of mandamus are similar to those of certiorari and prohibition.
1.Lack of jurisdiction.
2.Error of jurisdiction.
3.Excess jurisdiction.
4.Abuse of jurisdiction.
5.Violation of the principles of natural justice.
6.Error of law apparent on the face of the record etc.
In the modern age, administrative agencies enjoy vast discretionary powers. Judicial review of the
administrative actions often becomes necessary. The judicial review of administrative functions also
comes under the scope of mandamus. When an administrative authority who has the power of
discretion fails to act bonafide or if it abuses or exceeds the jurisdiction and if it does not apply 'mind' in
solving issues the writ of mandamus acts as an extraordinary remedy.
Who can apply?
Generally the affected person has the right to seek this remedy. Exceptions are:
1.The writ of mandamus cannot be issued against the president or the governors of states. They cannot
be insisted to exercise powers and to perform duties.
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2.The writ of mandamus cannot be issued against the state legislature to prevent it from the execution
of a law alleged to be violative of the provisions of the constitution.
3.The writ of mandamus cannot be issued to an officer who acts on the orders of his superior.
Grounds for refusal of mandamus: Mandamus is a public law remedy and hence it cannot be used to
enforce a civil liberty arising under contracts. If there is unreasonable delay in filing the petition and if
there is another adequate alternate remedy, the writ of mandamus cannot be issued.
In fact the writ of mandamus is more purposeful than certiorari or prohibition It combnes the aspecs of
both the writs to make an effective and better solution.
5.Quo Warranto
The word meaning of 'Quo warranto' is 'by what authority'. It is a judicial order against a person who
occupies a substantive public office without any legal authority. The person is asked to show by what
authority he occupies the position or office. This writ is meant to oust persons, who are not legally
qualified, fro substantive public posts.
The writ of Quo warranto is to confirm the right of citizens to hold public offices. In this writ the court or
the judiciary reviews the action of the executive with regard to appointments made against statutory
provisions, to public offices .It also aims to protect those persons who are deprived of their right to hold
a public office.
Conditions: The following conditions are to be present if the writ of quo warranto is to be issued.
•The office must be a 'public office'. All offices established by statutes or as per the provisions of the
constitution and which carry out public duties are public offices.
•It must be substantive in nature. A substantive office is independent and permanent. It must be held by
an independent officer.
•The holder must be in actual possession of the office.
•The person must have actual possession of the office. A person who has been elected or appointed to a
particular post cannot be sued upon unless he has not accepted the post.
•The holding of the post must be in contravention of law.
The appointment of a person to a public office must be a clear violation of law. Irregularities in
procedures etc cannot be taken as violation.
Who can apply?
Any member of the public can seek the remedy of quo warranto even if he is not personally aggrieved or
interested in the matter.
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Differences between Writ Of Prohibition and Writ of Certiorari
Both writs of prohibition and certiorari have for their subject the restraining of inferior court from
exceeding their jurisdiction and they can be issued not merely of quasi-judicial function.
But there is one fundamental distinction between the two writs, that is, they are issued at different
stages of the proceedings.
When an inferior court takes up for hearing a matter over which it has no jurisdiction, the person against
whom the proceedings are taken can remove the superior court for a writ of prohibition and on that, an
order will issue forbidding the inferior court from continuing the proceedings.
On the other hand if the Court hears that cause or matter and gives a decision, the party aggrieved, will
move the superior court for a writ of certiorari and, on that, an order will be made quashing the decision
on the ground of want of jurisdiction.
It may happen that in a proceeding before the inferior court, a decision may have been passed which
does not completely dispose of the matter, in which case it may be necessary to apply both for certiorari
and prohibition- certiorari for quashing what has been decided, and prohibition for arresting the further
continuance of the proceeding.
Authorities have gone to this extent that in such cases when an application is made for a writ of
prohibition and there is no prayer for certiorari, it is open to the Court to stop further proceedings which
are consequential on the decision. But if the proceedings have terminated, then it is too late to issue
prohibition, and certiorari for quashing is the proper remedy to resort to.
Broadly speaking, a writ of prohibition will lie when the proceedings are to any extent pending and a
writ of certiorari for quashing after they have terminated in a final decision.
So, a writ of prohibition can be issued only if there are the proceedings pending in a Court. If follows
that it is incapable of being granted when the court has ceased to exist because there can be then no
proceeding on which it can operate.
But it is otherwise with a writ of certiorari to quash, because it is directed against a decision which has
been rendered by a court or tribunal, and the continued existence on that court or tribunal, not a
condition of its decision being annulled. In this context, the following passage from Juris Corpus
Secundum, Volume 41, page 127 may be usefully quoted:
“Although similar to prohibition in that it will lie for want of excess of jurisdiction, certiorari is to be
distinguished from prohibition by the fact that it is directed to the cause or proceeding in lower court
and not to the court itself, while prohibition is a preventive remedy issuing to restrain future action and
is direct to the court itself.”
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Q. Discuss the nature and scope of Public Interest Litigation with reference to relevant Judicial
decisions in India. Justify 'Public Interest Litigation' as saviour for poor weaker section of the society.
Differentiate between Public Interest Litigation and Private Litigation.
In Indian law, public interest litigation means litigation for the protection of the public interest. It is
litigation introduced in a court of law, not by the aggrieved party but by the court itself or by any other
private party. It is not necessary, for the exercise of the court’s jurisdiction, that the person who is the
victim of the violation of his or her right should personally approach the court. Public interest litigation is
the power given to the public by courts through judicial activism. However, the person filing the petition
must prove to the satisfaction of the court that the petition is being filed for a public interest and not
just as a frivolous litigation by a busy body.
Such cases may occur when the victim does not have the necessary resources to commence litigation or
his freedom to move court has been suppressed or encroached upon. The court can itself take
cognizance of the matter and proceed suo motu or cases can commence on the petition of any public-
spirited individual.
Origin & Development: The seeds of the concept of public interest litigation were initially sown in India
by Krishna Iyer J., in 1976 in Mumbai Kamagar Sabha vs. Abdul Thai (AIR 1976 SC 1455; 1976 (3) SCC
832) and was initiated in Akhil Bharatiya Soshit Karamchari Sangh (Railway) Vs. Union Of India And
Ors. 1981 AIR SC 298, wherein an unregistered association of workers was permitted to institute a writ
petition under Art.32 of the Constitution for the redressal of common grievances. Krishna lyer J.,
enunciated the reasons for liberalization of the rule of Locus Standi in Fertilizer Corporation Kamgar vs.
Union of India (AIR 1981 SC 149; 1981 (2) SCR 52) and the ideal of ‘Public Interest Litigation’ was
blossomed in S.F. Gupta and others vs. Union of India, (AIR 1982 SC 149).
Public Interest Litigation and Judicial Activism: Public interest litigation or social interest litigation today
has great significance and drew the attention of all concerned. The traditional rule of “Locus Standi” that
a person, whose right is infringed alone can file a petition, has been considerably relaxed by the
Supreme Court in its recent decisions. Now, the court permits public interest litigation at the instance of
public spirited citizens for the enforcement of constitutional o- legal rights. Now, any public spirited
citizen can move/approach the court for the public cause (in the interests of the public or public
welfare) by filing a petition:
1. in Supreme Court under Art.32 of the Constitution;
2. in High Court under Art.226 of the Constitution; and
3. in the Court of Magistrate under Sec.133, Cr. P.C.
Justice Krishna layer fertilizer Corporation Kamgar Union vs. Union of India, (1981) enumerated the
following reasons for liberalization of the rule of Locus Standi:-
1. Exercise of State power to eradicate corruption may result in unrelated interference with individuals’
rights.
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2. Social justice wan ants liberal judicial review administrative action.
3. Restrictive rules of standing are antithesis to a healthy system of administrative action.
4. “Activism is essential for participative public justice”.
Therefore, a public minded citizen must be given an opportunity to move the court in the interests of
the public.
In order to ensure that FRs did not remain empty declarations, the founding fathers made various
provisions in the Constitution to establish an independent judiciary. Provisions related to FRs, DPs and
independent judiciary together provided a firm constitutional foundation to the evolution of PIL in India.
The founding fathers envisaged ‘‘the judiciary as a bastion of rights and justice’’. An independent
judiciary armed with the power of judicial review was the constitutional device chosen to achieve this
objective. The power to enforce the FRs was conferred on both the Supreme Court and the High
Courts—the courts that have entertained all the PIL cases.
Merits:
1. In Public Interest Litigation (PIL) vigilant citizens of the country can find an inexpensive legal remedy
because there is only a nominal fixed court fee involved in this.
2. Further, through the so-called PIL, the litigants can focus attention on and achieve results pertaining
to larger public issues, especially in the fields of human rights, consumer welfare and environment.
Demerits:
1. The genuine causes and cases of public interest have in fact receded to the background and
irresponsible PIL activists all over the country have started to play a major but not a constructive role in
the arena of litigation. Of late, many of the PIL activists in the country have found the PIL as a handy tool
of harassment since frivolous cases could be filed without investment of heavy court fees as required in
private civil litigation and deals could then be negotiated with the victims of stay orders obtained in the
so-called PILs.
2.The framers of Indian constitution did not incorporate a strict doctrine of separation of powers but
envisaged a system of checks and balances. Policy making and implementation of policy are
conventionally regarding as the exclusive domain of the executive and the legislature. Vishaka v State of
Rajasthan which was a PIL concerning sexual harassment of women at work place. The court declared
that till the legislature enacted a law consistent with the convention on the Elimination of All Forms of
Discrimination Against Women which India was a signatory, the guidelines set out by the court would be
enforceable.
3.The flexibility of procedure that is a character of PIL has given rise to another set of problems. It gives
an opportunity to opposite parties to ascertain the precise allegation and respond specific issues.
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4.The credibility of PIL process is now adversely affected by the criticism that the judiciary is
overstepping the boundaries of its jurisdiction and that it is unable to supervise the effective
implementation of its orders. It has also been increasingly felt that PIL is being misused by the people
agitating for private grievance in the grab of public interest and seeking publicity rather than espousing
public cause.
STEPS NECESSARY: With the view to regulate the abuse of PIL the apex court itself has framed certain
guidelines (to govern the management and disposal of PILs.) The court must be careful to see that the
petitioner who approaches it is acting bona fide and not for personal gain, private profit or political or
other oblique considerations. The court should not allow its process to be abused by politicians and
others to delay legitimate administrative action or to gain political objectives. There may be cases where
the PIL may affect the right of persons not before the court, and therefore in shaping the relief the court
must invariably take into account its impact on those interests and the court must exercise greatest
caution and adopt procedure ensuring sufficient notice to all interests likely to be affected.
At present, the court can treat a letter as a writ petition and take action upon it. But, it is not every
letter which may be treated as a writ petition by the court. The court would be justified in treating the
letter as a writ petition only in the following cases-
(i) It is only where the letter is addressed by an aggrieved person or
(ii) a public spirited individual or
(iii) a social action group for enforcement of the constitutional or the legal rights of a person in custody
or of a class or group of persons who by reason of poverty, disability or socially or economically
disadvantaged position find it difficult to approach the court for redress.
Even though it is very much essential to curb the misuse and abuse of PIL, any move by the government
to regulate the PIL results in widespread protests from those who are not aware of its abuse and equate
any form of regulation with erosion of their fundamental rights. Under these circumstances the
Supreme Court Of India is required to step in by incorporating safe guards provided by the civil
procedure code in matters of stay orders /injunctions in the arena of PIL.
Conclusion: Public Interest Litigants, all over the country, have not taken very kindly to such court
decisions. They do fear that this will sound the death-knell of the people friendly concept of PIL.
However, bona fide litigants of India have nothing to fear. Only those PIL activists who prefer to file
frivolous complaints will have to pay compensation to then opposite parties. It is actually a welcome
move because no one in the country can deny that even PIL activists should be responsible and
accountable. In any way, PIL now does require a complete rethink and restructuring. Anyway, overuse
and abuse of PIL can only make it stale and ineffective. Since it is an extraordinary remedy available at a
cheaper cost to all citizens of the country, it ought not to be used by all litigants as a substitute for
ordinary ones or as a means to file frivolous complaints.
Difference between Public Interest Litigation and Private Interest Litigation
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NO PUBLIC INTEREST LITIGATION PRIVATE INTEREST LITIGATION
The word ‘public interest’ as something in

which the public, or the community at large
1) has some pecuniary interest or some Private Interest litigation is limited to private aspect
interest by which their legal rights or
liabilities are affected .
In Private Interest Litigation rule of locus standi is

In Public Interest Litigation rule of locus
2) strictly followed and adversarial procedure is strictly
standi is followed.
complied with.
In Public Interest Litigation, though a person The person whose fundamental or legal right has been
3) is not aggrieved but socially and spiritually violated may file suit or petition for enforcement
motivated can file petition thereof.
Petition can be filed in the High Court or The Plaintiff has to file the suit in a court having
4)
under Article 32 to the Supreme Court. jurisdiction of the lowest grade.
In Private Interest Litigation, Plaintiff has to pay Court

The Court Stamp fee Act is not applicable to
5) stamp fee as per the valuation of the suit property
PIL
under the Court Stamp fee Act.
In Public Interest Litigation, the Decision

In Private Interest Litigation, Decisions given by the
6) given by the Court is having general
Court binding on parties only
application.
In Public Interest Litigation, the person

approaching the court for redressal or In Private Interest Litigation, The aggrieved person has
public wrong or public injury has sufficient to prove that he has suffered some loss or injury. In
7)
interest in the proceeding and is acting in case of alleged violation of right, he must in addition
bonafide and not for personal gain or prove that he has right.
private profit or political motivation.
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Ombudsman and Scope of Lokpal Remedy

Q. What do you mean by ‘Ombudsman’? State the power and functions of the Institution of
Ombudsman. Write a note on ‘LOKPAL’. Critically analyse the working of the ”Lokayukta" in West
Bengal.
Ombudsman offices are form of watchdog on government, investigating and resolving citizen’s
complaints. Ombudsman means “a public official who acts as an impartial intermediary between the
public and government or bureaucracy, or an employee of an organization who mediates disputes
between employees and management”. An indigenous Danish, Norwegian and Swedish term,
Ombudsman is etymologically rooted in the Old Norse word umboðsmaðr, essentially meaning
“representative”. In its most frequent modern usage, an ombudsman is an official, usually appointed by
the government or by parliament but with a significant degree of independence, who is charged with
representing the interests of the public by investigating and addressing complaints reported by
individuals.
The institution of ombudsman originated in Scandinavian countries. The institution of ‘Ombudsman’ first
came into being in Sweden in 1713 when a ‘Chancellor of Justice ‘was appointed by the King to act as
invigilator to look into the functioning of war-time government. Thereafter, a new beginning was made
in 1809, when it was laid down that the Ombudsman would be made thereafter by the legislature.
Other Scandinavian countries followed the model of Sweden almost after a century. Amongst other
countries, New Zealand was the first country outside Scandinavian to institute an Ombudsman in 1962.
It has been adopted in a number of countries, such as Finland,1919; Denmark, 1954; Norway, 1960;
Mauritius, 1966;Guyana, 1966; United Kingdom, 1967; Australia, 1976. Today there are Ombudsman
offices in over 80 countries at the national provincial and local level.
Office of Ombudsman was established under the provisions of constitutional law in Austria, Burkina
Faso, Denmark, Finland, the Netherlands, Poland, Portugal, Spain and Sweden. While in other countries
belonging to Anglo-Saxon legal traditions, the office is generally regulated under ordinary statute law.
Characteristics and Objectives of Ombudsman Institution
With the spread of ombudsman concept and its utility, several surrogate institutions have emerged in
the private sector, which claim the title of ombudsman. Some scholars drew distinction between,
“classical” ombudsman and other kinds of “quasi” or “executive ombudsman”. However, Gellhorn made
clear distinction between classical and other agencies performing the ombudsman function. Professor
Larry B Hill has enumerated the following characteristics of the pure ombudsman:
i. Established as separate entity that is functionally autonomous.
ii. Operationally independent of both the legislature and the executive.
iii. Ombudsman is a legally established governmental official.
iv. A monitoring specialist.
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v. Administrative expert and professional.
vi. Nonpartisan.
vii. Normatively universalistic.
viii. Client centred, but not ant administration.
ix. Popularly accessible and visible.
x. High status institutions
xi. Have extensive resources to perform his mission.
Ombudsman Functions
The increase in both the number and types of ombudsman offices across the globe has also led to
significant additions and modifications to its functions. Some of the important changes in ombudsman
functions are discussed as follows: –
1. In Sweden, where officials are responsible neither to the Crown nor to Parliament, but are
subject to the rule of law, the main functions of the ombudsman, acting on his own initiative
and empowered to take legal proceedings against civil servants and judges for breaches of the
law was designed to act as prosecutor. With the passage of time the focus of the office became
receiving and investigating complaints related to maladministration. Ulf Lundvik, former
Swedish ombudsman, pointed out, “the redress of grievances is not main concern of the
Ombudsman”. Their main task, he says, remains that of maintaining ‘a good standard within the
public service’.
2. In Denmark, the role of ombudsman, inter alia, was to safeguard law and order for the individual
as an appellate institution for citizens who came into conflict with the administrative agencies.
The ombudsman was meant to be “the protector of the man in the street against injustice,
against arbitrariness, and against the abuse of power on the part of the executives”
3. With the introduction of ombudsman office in New Zealand and other Commonwealth
countries, the role of ombudsman began to undergo an important change in focus. The principle
duty of ombudsman was considered to investigate complaints and where appropriate
recommend some form of remedial action. Therefore, the ombudsman’s function became
primarily to redress grievances. This is equally true about India. In UK, the statutory mandate of
Parliamentary Commissioner for Administration authorizes him to do no more than investigate
and report. Its primary functions have been to secure redress where complaints are justified.
4. The shift of emphasis from a primary concern for the quality of public administration to the
provision of redress in individual cases of injustice, by no means brought the evolution of the
ombudsman’s function to an end. In the word of Professor Kenneth Wiltshire, “the lot of the
modern ombudsman is not simply to open the door, the switchboard and the mail each day and
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respond to complaints which waft in, many of which have common causes elements and generic
causes”. He writes, the emphasis of the office is to be “proactive, systemic, and preventative in
its orientation”.
5. The ombudsman offices not only consider individual grievances but also identify ‘systemic’
faults, thereby helping to secure improvements of a general nature as regards working methods
and administrative practices and procedures. Martin Oosting, has observed that a series of
separate investigations occasioned by similar complaints may raise questions about underlying
causes. It is one of the ombudsman’s functions to identify these causes, and where possible
make recommendations for their prevention.
6. Some ombudsmen have gone even further as regards the promotion of good practice and
published codes of offering general guidance to government bodies as well as the officials. In
Ireland, with the annual report for 1996, the ombudsman issued a document bearing the title,
“Ombudsman’s Guide to Standards of Best Practice for Public Servants”. In 1990, the
Ombudsman of British Columbia produces an “Administrative Fairness Checklist”, which was to
be used in consultation with agencies to review their policies and practices regarding service to
the public. Some other examples include, New South Wales’ “The Right Stuff – Tips for making
complaints and solving problems – a Toolkit for consumers of community services in NSW”
(2004), the Commission for Local Administration in England’s booklet, “Good Administration
Practices: Guidance on Good Practice 2” (1995), Parliamentary Commissioner’s document, “The
Ombudsman in Your Files” (1995) and European Union’s “Draft Code of Good Administrative
Behaviour for European Community Institutions and Bodies”.
7. Many ombudsman offices are empowered to start investigation on their own initiatives,
although this power of ‘system fixing’ has been used sparingly. Jacob Soderman, the European
Union Ombudsman, suggests that such ‘own motion’ powers of investigation may also be used
where a number of complaints focuses on a specific administrative authority, or a particular
type of administrative activity, providing grounds for thinking that a more general inquiry should
be conducted.
8. The ombudsman offices have also provided advice to the agencies on dealing with complaints
properly. For example, the New South Wales Ombudsman office issued a 293-page
compendium entitled “The Complaint Handler’s Toolkit” (2000), Australian Commonwealth
Ombudsman document, “Good Practice Guide for Effective Complaint Handling” and
Commission for Local Government Administration in England’s publication, “Devising a
Complaints System: Guidance on Good Practice 2”.
9. Another extension to the range of ombudsman’s functions include its new role in the promotion
of ‘open government’. Most of the ombudsman offices have been authorized to deal with
complaints about the way in which public bodies have handled requests for information under
the code of practice or relevant legislation operative in the country.
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10. A number of ombudsmen have also added to their functions a role of policing of codes. One
aspect of the generalized task of uncovering instances of governmental corruption assigned to
ombudsman offices in the developing world takes the form of responsibility from policing the
application of ‘leadership codes’. In Papua New Guinea, Uganda and Vanuatu, the duty of
ombudsman include applying the rule of ethical conduct which senior politicians, judges and
public officials are required to follow.
11. The Australian Commonwealth Ombudsman and NSW ombudsman have the responsibility for
auditing telephone intercepts records. Both offices also have the responsibility of protecting
‘whistle blowers’. The NSW ombudsman also have witness protection function.
12. During the 1970s, the ombudsman offices began to develop an approach to case handling that
diverged significantly from ‘investigation and report’ mode of operation which has characterized
the office in earlier years. The ombudsman offices have increasingly focused on the possibility of
conciliation, and on helping to achieve an outcome satisfactory to the complainant and the
agency concerned as quickly and informally as possible. Stephen Owen maintains that the
primary role of ombudsman is ‘to strive for the mutually acceptable resolution of a problem
rather than necessarily finding of faults or the absence of it’, the office should attempt ‘to
provide informal mediation services wherever such an approach may be productive’.
Jurisdiction of the Ombudsman
The operational mode of the ombudsman varies greatly according to the activity and environment.
However, in essence, there are two models: –
1. Reactive ombudsman who waits for complaints and acts on what has been brought forward. In
Britain, for example, ombudsmen tend to be reactive offices that can only respond to
complaints or grievances, the last port of call in a formal complaints procedure.
2. Proactive ombudsman who seeks out matters of concern, inspects and initiates investigations.
In Scandinavia, an ombudsman may initiate action and has an ongoing inspection role, such as
the Public Justice Ombudsman who keeps a watchdog eye on public administration and tackles
action to ensure acceptable quality and standards are maintained.
Criteria Used by Ombudsman to Judge the Official Actions
Ombudsman Offices around the world receive a bulk of complaints each year. Out of these, a large
number of complaints are rejected on the ground that they fall outside the ombudsman jurisdiction.
Ombudsmen have to operate within the jurisdiction set out in their legislation. Common criteria for
accepting or rejecting complaints largely include the following questions:
1. Is the complaint within the Ombudsman’s jurisdiction at all? (A surprising number are not.)
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2. Has the person complaining exhausted the other remedies available to them? (The Ombudsman
should be a last resort, not a first port of call.) If not, is it reasonable to expect them to have
done so?
3. Has the complainant sufficient personal interest in the subject matter of the complaint?
4. Is the matter already before the courts? If so, is it appropriate for the Ombudsman to become
involved?
5. On the face of the complaint, does it appear that the person complaining is not acting in good
faith?
Ombudsmen apply various criteria for making judgment whether a particular conduct is proper or
improper. Some of the important criteria are: –
1. Whether a particular government action concords or conflicts with statutes and principles,
Ideally, an Ombudsman approaches the action broadly and reviews it both in the light of the
provisions of the written law, and in the light of unwritten legal principles, as well as, against the
standards for good governance.
2. Investigations of the action in view of the written law include such areas relating to human and
constitutional rights, definitions of competence, and provisions governing from procedure and
substance.
3. Investigation of the action in view of the unwritten legal principles (developed in case law and
legal doctrine) are equally relevant to the lawfulness of government conduct, and include the
principles of: equal treatment for equal cases; reasonableness; proportionality between means
and end; legal certainty and of legitimate expectations; the requirement to provide reasons for
decisions; and, of certain duties of care.
4. An Ombudsman also uses standards or guidelines for good governance which contribute to the
decency of the way the executive authorities act. The standards can be summed up as the
imposition of a broad duty of care. These are manifested in certain accepted standards for
administrative processes and the conduct of public servants in relation to the public. They
include the requirement to act without undue delay; to supply the individual with relevant
information; to treat people fairly and respectfully; and, to be unbiased and helpful.
5. Finally, the Ombudsman sets standards for the government organization – such as those of
coordination, monitoring of progress, protection of the individual’s privacy, and accessibility of
the authorities.
Feedback on the quality of government services
The ombudsman office provides not only for individual redress, appeals and dispute resolution, but also
an auditing and accountability role. Ombudsmen office can make the political system more responsive
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to citizens both individually and collectively. An Ombudsman can also contribute significantly to the
quality of government, by providing feedback on the administrative performance. This is particularly
important for government organizations wishing to perform their functions in a customer-friendly
manner. Complaints are signals, constituting a valuable source of information for quality assurance. This
feedback can be of particular value for government organizations as they often have a monopoly of their
own and are rarely exposed to the dynamics in the outside world. Observing the criteria for proper
conduct developed through the Office of the Ombudsman can, in short, contribute to the rationality and
legitimacy of public administration.
In this regard, a “negative feedback model of accountability” has been developed. The model explains
that citizen’s complaints are an important source of evaluative feedback on public programs. Taking
public laws and policies as statements of community goals, they set out politically agreed upon quantity
and quality of life in specific areas. When citizens are disinterested in existing policies or regulations, or
service delivery systems fail or are inadequate, citizens are the first to know. In most of the cases
citizens have no way to communicate this information to responsible decision-makers except through
the very structures which are often root cause of the problems. These structures, when dealing with
citizens often exhibit self-servicing interests inimical to resolving the problem. In addition, the
bureaucracies are often the only source of information about such issues available to elected
representatives and officials. In developed countries the interest groups and political parties identify
major issues, but insofar as the average citizen is concerned, particularly in developing countries, many
problems are effectively kept out of the decision-making process. In this situation citizen complaints and
problems are evaluative judgments that discrepancies exist between the criteria established in public
policy and the current operation of the system. Therefore, the demands on a generalized complaint
mechanism such as an executive ombudsman are a form of negative feedback. For example, analysis of
the data can provide specific “error signals” about where community goals and aspirations are not
effectively carried out. In this regard, the negative feedback approach says explicitly: “let the system
operate as long as it is working fairly well. We’ll listen to the people who pay for it (taxpayers) and those
who need to use it (consumers), when they find the system fails them.”
Furthermore, third-party complaint programs are typically called upon as a last resort, a place to appeal
when others fail (Best, 1981). And because they are open to the general public, such mechanisms do not
control the nature of their input. Attempts to bias input by political elites and organized interest groups
can easily be detected. Bureaucratic obfuscation is avoided by establishing programs which are external
to bureaucracies and directly accessible by the general public. Thus, the character of demands is
determined by individual citizens. Patterns or trends in particularized contacting constitute error signals
or negative feedback at the system level. This approach creates a new channel for political demand
external to bureaucracies whereby citizens can provide inputs directly to elected officials. Particularized
participation mechanisms which operate in this fashion can serve as people’s gatekeepers to the general
political and administrative channels of the political system, and they can provide elected
representatives with an external “window” on the bureaucratic network. When these conditions obtain,
a new open channel for political demand is created. Third-party complaint programs become
gatekeepers to the political system. A brief example from one such programs follows.
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Lokpal- An Indian Attempt at Establishing an Ombudsman System
A Lokpal is a proposed ombudsman in India. The word is derived from the Sanskrit word “lok” (people)
and “pala” (protector/caretaker), or “caretaker of people.”The concept of a constitutional ombudsman
was first proposed in parliament by Law Minister Ashoke Kumar Sen in the early 1960s. The first Jan
Lokpal Bill was proposed by Shanti Bhushan in 1968 and passed in the 4th LokSabha in 1969, but did not
pass through the RajyaSabha. Subsequently, ‘lokpal bills’ were introduced in 1971, 1977, 1985, again by
Ashoke Kumar Sen, while serving as Law Minister in the Rajiv Gandhi cabinet, and again in 1989, 1996,
1998, 2001, 2005 and in 2008, yet they were never passed. Forty-two years after its first introduction,
the Lokpal Bill is still not enacted in India.
The Lokpal Bill provides for the filing, with the ombudsman, of complaints of corruption against
the prime minister, other ministers, and MPs. The Administrative Reforms Commission (ARC)
recommended the enacting of the Office of a Lokpal, convinced that such an institution was justified,
not only for removing the sense of injustice from the minds of citizens, but also to instill public
confidence in the efficiency of the administrative machinery.
Following this, the Lokpal Bill was, for the first time, presented during the fourth LokSabha in 1968, and
was passed there in 1969. However, while it was pending in the RajyaSabha, the Lok Sabha was
dissolved, and thus the bill was not passed.
The bill was revived several times in subsequent years, including in 2011. Each time, after the bill was
introduced to the House, it was referred to a committee for improvements, to a joint committee of
parliament, or to a departmental standing committee of the Home Ministry. Before the government
could take a final stand on the issue, the house was dissolved again. Several conspicuous flaws were
found in the 2008 draft of the Lokpal Bill. The basic idea of a lokpal is borrowed from the Office of the
Ombudsman, which has the Administrative Reforms Committee of a lokpal at the Centre,andlokayuktas
in the states.
Anna Hazare fought to get this bill passed, and it did pass on Dec 27, 2011, around 9:30, with some
modifications. These were proposed as the Jan Lokpal Bill. However, Hazare and his team, as well as
other political parties, claimed that the Lokpal Bill passed was weak, and would not serve its intended
purpose. So the proposed bill by the ruling Congress Party has yet to be accepted in the RajyaSabha. As
of Dec 29, 2011, the bill has been deferred to the next parliamentary session, amid much controversy
and disruption by the LJP, RJD and SP parties. The media at large, and the opposition parties, claimed
the situation had been staged.
Jan Lokpal Bill
The Jan Lokpal Bill or the Citizen’s Ombudsman Bill is a draft anti-corruption bill drawn up by prominent
civil society activists, seeking the appointment of a Jan Lokpal, an independent body that would
investigate corruption cases, complete the investigation within one year and conduct trials for the case
within the next year.
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Drafted by Justice SantoshHegde ,a former Supreme Court Judge and former Lokayukta of
Karnataka, PrashantBhushan, a Supreme Court Lawyer and ArvindKejriwal, an RTI activist, the draft Bill
envisaged a system in which a corrupt person found guilty would go to jail within two years of the
complaint being made and his ill-gotten wealth confiscated. It also sought power for the Jan Lokpal to
prosecute politicians and bureaucrats without requiring government permission.
Retired IPS officer KiranBedi and others, like Anna Hazare, Swami Agnivesh, Sri Sri Ravi Shankar, and
Mallika Sarabhai are also members of the movement, called India Against Corruption. Its website
describes the movement as “an expression of collective anger of people of India against corruption.” It
goes on to state: “We have all come together to force/request/persuade/pressurize the Government to
enact the Jan Lokpal Bill. We feel that if this Bill were enacted it would create an effective deterrence
against corruption.”
Anna Hazare, an anti-corruption crusader, began a fast-unto-death, demanding that this bill, drafted
by Civil Society, be adopted. The website of the India Against Corruption movement calls the Lokpal Bill
of the government an “eyewash”, and hosts a critique of that government bill. It also lists the difference
between the bills drafted by the government and civil society.
Features of the Jan Lokpal Bill:
1. An institution called Lokpal at the centre and Lokayukta in each state will be set up.
2. Like the Supreme Court and Election Commission, they will be completely independent of
governments. No minister or bureaucrat will be able to influence their investigations.
3. Cases against corrupt people will not linger on for years anymore: investigations in any case will
have to be completed in one year. Trial should be completed in the next one year, so that the
corrupt politician, officer or judge is sent to jail within two years.
4. The loss that a corrupt person caused to the government will be recovered at the time of
conviction.
5. If the work of any citizen is not done in a prescribed time, in any government office, Lokpal will
impose a financial penalty on the guilty officers, which will be given as compensation to the
complainant.
6. So, you could approach Lokpal if your ration card or passport or voter card had not been made,
or if the police are not registering your case, or if any other work is not being done within the
prescribed time. Lokpal will have to get it done in a month’s time. You could also report any case
of corruption to Lokpal, like rations being siphoned off, poor quality roads being constructed or
panchayat funds being siphoned off.
7. But won’t the government appoint corrupt and weak people as Lokpal members? That won’t be
possible because its members will be selected by judges, citizens and constitutional authorities,
not by politicians, through a completely transparent and participatory process.
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8. The entire functioning of Lokpal/ Lokayukta will be completely transparent. Any complaint
against any officer of Lokpal will be investigated and the officer dismissed within two months.
9. CVC, the departmental vigilance and anti-corruption branch of the CBI, will be merged into
Lokpal. Lokpal will have complete powers and machinery to independently investigate and
prosecute any officer, judge or politician.
10. It will be the duty of the Lokpal to provide protection to those who are being victimized for
raising their voice against corruption.
Fundamental duties
1. To judge the cases and make jurisdictions against corruption cases with the Lokpal.
2. To judge whether a case is genuine or whether a fake complaint has been made.
3. To potentially impose fines on a fake complaint, or even a short span of jail time, if the case is
not proved to be legally true.
Criticisms of the Jan Lokpal Bill
A Naïve Approach-The bill has been criticised as being naïve in its approach to combating corruption.
According to PratapBhanu Mehta, President of the Center for Policy Research Delhi,the bill “is premised
on an institutional imagination that is at best naïve; at worst subversive of representative democracy”.
The very concept of a Lokpal concept has received criticism from Human Resource
Developmentminister KapilSibal in that it will lack accountability, be oppressive and undemocratic.
Extra Constitutional- The pro-bill activist Arvind Kejriwal rejects the claim of Lokpal being extra-
constitutional with the explanation that the body will only investigate corruption offences and submit a
charge sheet which would then tried and prosecuted through trial courts and higher courts, and that
other bodies with equivalent powers in other matters exist. The proposed bill also lists clear provisions
for the Supreme Court to abolish the Lokpal.
Despite these clarifications, critics feel that the exact judicial powers of Lokpal are rather unclear in
comparison with its investigative powers. The bill requires “…members of Lokpal and the officers in
investigation wing of Lokpal shall be deemed to be police officers”. Although some supporters have
denied any judicial powers of Lokpal, the government and some critics have recognised Lokpal to have
quasi-judicial powers.
The bill also states that “Lokpal shall have, and exercise the same jurisdiction powers and authority in
respect of contempt of itself as a High court has and may exercise, and, for this purpose, the provisions
of the Contempt of Courts Act, 1971 (Central Act 70 of 1971) shall have the effect subject to the
modification that the references therein to the High Court shall be construed as including a reference to
the Lokpal.”Review of proceedings and decisions by Lokpal is prevented in the bill by the statement
“…no proceedings or decision of the Lokpal shall be liable to be challenged, reviewed, quashed or called
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in question in any court of ordinary Civil Jurisdiction.”. As a result, how the trials will be conducted is
unclear in the bill, although the bill outlines requiring judges for special courts, presumably to conduct
trial that should be completed within one year. The critics hence express concern that, without judicial
review, Lokpal could potentially become an extra-constitutional body with investigative and judicial
powers whose decisions cannot be reviewed in regular courts.
Scope- The matter of whether the Indian Prime Minister and higher judiciary should or should not be
prosecutable by the Lokpal remains as one of the major issues of dispute. Anna’s own nominee for co-
chairing the joint panel Justice Verma, the former Chief Justice of the Supreme Court, has expressed his
constitutional objections for including the Prime Minister and higher judiciary under Lokpal. According
to him, “this would foul with the basic structure of the constitution”.
Criticism from the CBI Director- The CBI Director, in a presentation before the Standing Committee of
the Parliament, has strongly argued against the vivisection of the CBI and merger of its anticorruption
wing with the Lokpal, noting that this would seriously cripple the core functioning of the CBI and reduce
it to irrelevance. An organization built over last 60 years comprising competent professionals should not
be subsumed under Lokpal. CBI officers concede that in some sensitive political cases there is of course
interference from the government, but in respect of an overwhelming majority of cases CBI functions,
unfettered and uninfluenced by extraneous considerations. For this reason there is an ever increasing
demand for CBI investigation from all-over the country in respect of important cases.
LOKAYUKTA
Even after a lapse of so many years nothing has been done substantially at the central level for
implementing the institution of Lokpal. But at the state level, many states have adopted this institution
in the name of Lokayukta. There are as many as 17 states where the institution of Lokayukta has been
constituted, beginning with Orissa in 1971. However, the power, functions of jurisdiction of Lakayuktas
are not uniform in the country. In some state, it has been applicable to the entire elected representative
including CM. on the contrary, in some other state legislators have been deliberately kept out of his
purview. Lokayuktas have not been provided with their independent investigating machinery making
them dependent on the government agencies. As a result there lies enough scope for the politicians and
the bureaucrats to tinker with the process of investigation.
The first Administrative Reforms Commission headed by Mr. Morarjee Desai recommended for Sweden
based Ombudsmen type of institution. Accordingly the center can have Lokpal and states can have
Lokayukta. Though the institution of Lokayukta was introduced for the first time in Odisha but it was not
able to implement it. Maharashtra was the first state to implement in 1973. It investigates the allegation
against officials like corruption, favouratism, nepotism, injustice and other grievances. It does not
include Judges, Speaker, Chairman, Accountant General, Chairman and Members of State Public Service
Commission Commission, Judges of Civil and criminal court. The Lokayukta receives the petition from
the public and conducts inquiries. It has power to raid on the houses and offices of corrupt official.
• Lokayukta are appointed for 5 years or till attaining age of 70 years.
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• His salary is equivalent to Chief Justice of India and salary of its members is equivalent to Judge
of Supreme Court.
• They can be removed from the office by the governor, on the charge of misbehaviour or
incapacity proved in the state legislature by 2/3rd majority.
Powers and Functions of Lokayukta
1. Subject to the provisions of the Act, the Lok Ayukta may investigate any action which is taken by
or with the general or specific approval of chief minister, a minister, a member of the State
legislature, the Chairman, Vice-Chairman or a member of an authority, Board or a
committee etc. In any case where a complaint involving a grievance or an allegation is made in
respect of such action.
2. Lokayukta may investigate any action taken by the public servant if it is referred by the state
government.
3. In the process of investigation, the Lok Ayukta deals with the issue of search warrant. For the
said purpose, they have all the powers of a civil court which trying a suit under CPC, 1908 in
respect of summoning and enforcing the attendance of any person and examining him on oath,
production of any document, received evidence of affidavits, getting any public record or copy
from any court office etc.
4. The Lok Ayukta after investigation shall make a declaration with regard to the governor or chief
minister of the state to the vacation of office of the said official.
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Public Corporations
Q. Mention the chief features of Public Corporation. Do you think that corporation has distinct
personality? Write note on the Ministerial Control of Public Corporation.
A public corporation is a corporate body created by the special Act of the parliament. Such Act defines
the power, duties, privileges and pattern of management of these organisations. Such an organisation is
a statutory body to serve the general public. A public corporation is clothed with the power of the
government, but possessed with flexibility and initiative of private enterprises. A public corporation
enjoys complete autonomy in management.
Features or Characteristics of Public Corporation: The distinguishing features or characteristics of a

statutory corporation can be summed up as follows:
1. Public Corporation is created by Law: A public corporation is created by a special legislative

enactment, defining its objectives, powers, privileges and the form of management and its relationship
with the Government.
2. Public Corporation is a Body Corporate: It is considered as a person in the contemplation of law. As

such, it can acquire, hold and sell properties in its own name. It can sue or may be sued by others.
3. Public Corporation is wholly Owned by the State: The Government generally provides the capital of
the public corporation. Other Governmental agencies and financial institutions can also contribute to
the capital of the corporation. But individual investors are generally deprived from acquiring the shares
of such corporations.
4. Public Corporation is Free from Government Controls: Public corporations are relatively free from
political, parliamentary and departmental interference in the exercise of the powers vested in them
under the Act.
5. Public Corporation enjoys Financial Autonomy: Public corporation not only enjoys administrative
autonomy but also financial autonomy. Except for appropriation to provide capital or to cover the
losses, the public corporations are usually financed independently. They prepare their own budgets and
have the power to retain their earnings.
They can also borrow funds from the public or from the Government or other financial institutions. They
are generally exempted from most of the regulatory and prohibitory statutes applicable to the
expenditure of public funds.
6. Service Motive: The management of the corporation generally vests with the Board of
Directors nominated by the Government. The directors may be Government officials or non-officials.
7. Management: A corporation is expected to behave commercially in the same manner as a private

enterprise i.e. they are supposed to function efficiently on sound commercial principles. This does not
mean that the corporations are expected to make profits.
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They can make profit but not at the expense of the consumers. Thus, the public corporations primarily
work for service, and profit is only a secondary consideration.
8. Public Accountability: Public accountability is another important feature of a public corporation.

Though it enjoys complete autonomy in its administrative areas, it is accountable to the legislature. Its
accounts are audited by the corporation and the Auditor General, and its annual report must be placed
before the legislature.
9. Status of Staff: The employees of the corporation are not the servants of the Government and are not
governed by Civil Service Rules. They are employed and paid out of the funds of the corporation.
The above-referred characteristics of the corporation reveal that it is a combination of public

accountability and business management. It thus gives us the best of both public ownership and private
enterprise.
SEPARARATE ENTITY
A public undertaking, for purposes of examination by the Estimates Committee, was defined by the
Speaker of the Lok Sabha as follows,
“Public Undertaking means an organization endowed with a legal personality and set up by or under the
provisions of a statute for undertaking on behalf of the government of India an enterprise of industrial,
commercial nature or special services in the public interest and possessing a large measures of
administrative and financial autonomy.”
This definition obviously is concerned only with the public undertakings under the union Government
and leaves out of account public undertakings in the States. A more comprehensive definition has been
given by S. S. Khera,
“By State economic activity carried on by the central government or by a state government or jointly by
the central government and state government, and a in each either solely or in association with private
enterprise so long as it is managed by a self-contained management.”
i) It is wholly owned by the State.
ii) It is generally created by, or pursuant to, a special law defining its powers, duties and immunities and
prescribing the form of management and its relation to established departments and ministries.
iii) As a body corporate, it is a separate entity for legal purposes and can sue and be sued, enter into
contracts and acquire property its own name. Corporations conducting business in their own names
have been generally given greater freedom in making contracts and acquiring and disposing of property
in its own name. Corporations conducting business in their own names have been generally given
greater freedom in making contracts and acquiring and disposing of property than ordinary government
departments.
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iv) Except for government appropriations to provide capital or a to cover losses, a public its funds from
borrowing either from the Treasury or the public, or from revenues derived from the sale of goods and
services. It is authorized to use and re-use its revenues.
v) It is generally exempted from most regulatory and prohibitory statues applicable to expenditure of
public funds.
vi) It is ordinarily not subject to the budget, accounting and audit laws, and procedures applicable to
non-corporate agencies.
vii) In the majority of cases, employees of Public Corporations are not civil servants, and are recruited
and remunerated under terms and conditions which the Corporation itself determines.
Parliamentary control over Public Corporation in India
By the expression “Public Corporation” is meant the type of body set up to operate nationalised
industries or for the organisation of their public enterprise and services.
These Corporations are generally formed to meet the special problems arising out of the execution of
large scale irrigation and power projects covering more than one State or for other public undertakings
which may require powers and privileges which could not generally be obtained under the Company
Law.
Further, in the case of such development projects and undertakings of public importance, the statute
defining the relationship between them and Government would seem to be the most proper form of
management, whereas in the case of enterprises engaged in continuous manufacturing activity such as
large scale industry it would appear that the company form is more suitable, as it provides the requisite
freedom and elasticity.
The statutory Boards or Corporation which had been formed are:
(1) The Damodar Valley Corporation— 1948.
(2) The Industrial Finance Corporation—1948.
(3) The Rehabilitation Finance Administration—1948.
(4) The Employees’ Insurance Corporation— 1948.
(5) The Reserve Bank of India—1948.
(6) The Air Transport Corporation—1953.
(7) The State Bank of India—1955; and
(8) The Life Insurance Corporation—1956.
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These Corporations are treated both as public authorities and as, commercial concerns. As public
authorities they are subject to the normal controls of constitution and administrative laws to supervision
by the Minister, who in turn is answerable to Parliament, and by Courts through the control which they
exercise over administrative authorities.
Parliamentary control over Public Corporation: In the State establishing the Corporations it is often
provided that their annual reports should be submitted to the Government of India giving an account of
the activities and then laid before both the Houses of Parliament.
Under the Insurance Corporation Act, 1956, besides the auditor’s report and annual report, the report of
the actuaries containing the result of an investigation made by the actuaries into the financial condition
of the business of the Corporation should also be so laid.
The Parliamentary control over the function of the statutory corporations is confined to broad featured
criticism and day to day functioning is outside the purview of such control. The member’s right to ask
questions about the public undertakings and general debates especially the budget debate provide the
occasions for such criticism.
The Estimates Committee of the House of the People has often been making suggestions with a view to
proper working to the Damodar Valley Corporation and the Oil and Natural Gas Commission and other
Corporations.
A Committee of the Parliamentary Congress party under the chairmanship of Shri V.K. Krishna Menon
has also gone into the matter and made certain recommendations. Amongst other things it has
suggested the appointment of a Committee of the Lok Sabha for exercise of continuous broad
supervision.
The Committee has made recommendations with a view to make Parliament’s control “real and gainful”
by watching the functioning of the Corporations.
It is difficult to say exactly how this Committee shall work in such a manner that it makes the
Parliamentary supervision “real and gainful” and at the same time not provide an instrument of
interference into the normal working of the Corporations.
The test for determining the constitutional position of a Public Corporation as either a Department of
Government or as a servant of the State may be summarized as below:
i) If the statute in terms answers the question (as it did in the case of the Central Land Board under the
Company & Town Planning Act, 1917), the need for any further enquiry s obviated.
ii) In the absence of such statutory declaration or provision, the intention of Parliament as to be
gathered from the provisions of the statute constituting the Corporation.
Some Attributes of Public Corporation
Page 85 of 88
•= Vicarious Liability a Corporation. On principles of vicarious liability, corporation is liable to pay

damages for wrongs done by their officers or servants. They are liable even for tort requiring a mental
element as an ingredient, e.g. malicious prosecution. In India, local authorities like Municipalities and
District Boards have been held responsible for the tort committed by their servants or officers.
•= Grant of exemption to government companies from the application of a statutory provision does not
fall foul of Art. 14 and is not discriminatory as government companies stand in a different class
altogether and the classification made between government companies and others is a valid one. The
Supreme Court has advanced the following justification for this view.
“As far as Government undertakings and companies are concerned, it has to be held that they form a
class by themselves since any profit that they may make would in the end result to the benefit to the
members of the general public… The role of industries in the public sector is very sensitive and critical
from the point of view of national economy…”
•= The public corporation (statutory corporation) is a body having an entity separate and independent
from the Government. It is not a department or organ of the Government. Consequently, its employees
are not regarded as Government servants and therefore they are not entitled to the protection of Article
311.
•= A public corporation is a person but not citizen. And therefore it can claim the benefit of the
Fundamental Rights.
•= It is to be also noted that a public corporation is included within the meaning of State under
Article12. and therefore the Fundamental right can be enforced against it
•= The public corporation or statutory corporations are included with the meaning of other authorities
and therefore it is subject to the writ jurisdiction of the Supreme Court under Article 32 and of the High
Court under Article 226.
•= For the validity of the corporation contract, the requirements of a valid contract laid down in Article
299 are not required to be complied with.
•= The employees of a public corporation are subject to the labour laws.
•= The Government control over the financial matters relating to the public corporation provides teeth
to the governmental control of the public corporations. Generally the Government is vested with the
powers of controlling the borrowing expenditure and capital formation. For example, the Oil and Natural
Gas.
Commission Act, 1956 provides that the Commission can borrow money with the prior approval of the
Central Government. Similarly, the Damodar Valley Corporation Act provides that the Corporation can
borrow money with the prior approval of the Central Government. The statute creating the corporation
may require the corporation to submit to the Government its budget and programme for the next year.
Page 86 of 88
To sum up we can say that public enterprise in the near future will be subjected to the scrutiny of the
consumers and Courts. Because the quality of services rendered by these enterprises to the public is a
matter, which concerns consumers in many ways. It is but natural, therefore, that disputes arises
between the enterprises and their employees, or between the enterprises and the public also, the
courts are not averse to extending their supervisory role over these enterprises in some respects.
The Supreme Court has recently underlined the principle of public accountability of these enterprises
(with reference to the life Insurance Corporation) in the following words:
“ Corporation which carries on the business of life insurance in the shape of a statutory monopoly is
answerable to the people of India with whose funds it deals and to whose welfare it clams to cater.
Page 87 of 88

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Jogesh Chandra Chaudhuri Law College

• By the Students • Of the Students • For the Students

5TH Semester ADMINISTRATIVE LAW Notes

ARKA KUMAR NAG NEIL BASU

CHAIR PERSON GENERAL SECRETARY

Celebrating 50 Years of Excellence

#JCCLCSU 2020 # COVID-19 COMMITEE

(2) It does not distinguish administrative law from constitution law.

Dicey in 19th century defines it as.

Sources of Administrative Law

There are four principal sources of administrative law in India:-

Nature and Scope of Administrative Law

Purpose of Administrative Law

• It embodies positive principles to facilitate good administrative practice; for example, in

• It operates to provide accountability and transparency, including participation by interested

• It may provide a remedy for grievances at the hands of public authorities.

• To check abuse of administrative power.

• To ensure to citizens an impartial determination of their disputes by officials so as to protect

• To make those who exercise public power accountable to the people.

Reasons For Growth Of Administrative Law

3. This law mainly deals with various organs of a state.

4. It mainly deals with the structure of the state.

6. It also gives guidelines about the intentional relations.

7. It deals with the general principal of state pertaining to all branches.

8. It demarcates the constitutional status of Ministers and public servants.

2. Administrative law is the species of Constitution law.

3. It deals with the organs of the state as motion.

4. It mainly deals with the various functions of the state.

3. the existence of a specialized administrative jurisdiction.

4. Conseil d’Etat is the highest administrative court.

i) The composition and functions of the Conseil d’Etat itself;

ii) The flexibility of its case-law;

iv) The special procedure evolved by those courts; and

v) The character of the substantive law, which they apply.

Meaning: Delegated legislation (sometimes referred as secondary legislation or subordinate legislation

Delegated Legislation is important because of several reasons. They are-

Growth of Delegated Legislation

List of Advantages of Delegated Legislation

List of Disadvantages of Delegated Legislation

1. Undemocratic Procedures: Legislation comes as a result to undemocratic processes and procedures.

Sub Delegated Legislation or 'Delegatus non protest delegare'

Q. Critically elucidate Parliamentary Control of delegated legislation.

1. Initial stage (At the stage of delegation of power)

Second stage: (A) Direct Control, and (B) Indirect Control.

(c) Affirmative Laying: The technique may take two shapes:

Legal consequences of non compliance with the laying provision

Test for mandatory:

3. whether it conations imposition of tax.

4. Whether it directly or indirectly bars the jurisdiction of the court.

5. Whether there has been unjustified delays in its publication or laying.

6. whether it is retrospective in nature.

7. Whether it involves expenditure from the consolidated fund.

8. Whether it is safeguard of principle of natural justice.

Q. Discuss Judicial Control of Delegated legislation

In other words, delegation of legislative power can be confined to ‘non-essentials’ or subsidiary

(i) Post- natal publicity of delegated legislation

(ii) Doctrine of Ultra Vires