Theory - Administrative Law

● Justice Khanna in Gwalior Rayon case. He talks about the necessity of delegation of legislative
power, while also explaining the rationale behind excessive delegation of legislative power:

“It may be stated at the outset that the growth of the legislative powers of the executive is a

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significant development of the twentieth century. The theory of laissez-faire has been given a
go-by and large and comprehensive powers are being assumed by the State with a view to

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improve social and economic well-being of the people. Most of the modern socioeconomic
legislations passed by the legislature lay down the guiding principles and the legislative policy.
The legislatures because of limitation imposed upon by the time factor hardly go into matters

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of detail. Provision is, therefore, made for delegated legislation to obtain flexibility, elasticity,
expedition and opportunity for experimentation. The practice of empowering the executive to

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make subordinate legislation within a prescribed sphere has evolved out of practical necessity
and pragmatic needs of a modern welfare state. At the same time it has to be borne in mind
that our Constitution-makers have entrusted the power of legislation to the representatives of
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the people, so that the said power may be exercised not only in the name of the people but also
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by the people speaking through their representatives. The rule against excessive delegation of
legislative authority flows from and is a necessary postulate of the sovereignty of the people.
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The rule contemplates that it is not permissible to substitute in the matter of legislative policy
the views of individual officers or other authorities, however competent they may be, for that
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of the popular will as expressed by the representatives of the people.”

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● Justice Matthew in Gwalior Rayon delivered a separate opinion. He is in favour of excessive

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delegation of legislative power, and does not refer to any limits to it as such:
“We must be aware of the practical reality, and that is, that Parliament cannot go into all
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legislative matters. The doctrine of abdication expresses a fundamental democratic concept but
at the same time we should not insist that law-making as such is the exclusive province of the
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legislature. The aim of government is to gain acceptance for objectives demonstrated as

desirable and to realize them as fully as possible. The making of law is only a means to achieve a
purpose. It is not an end in itself. That end can be attained by the legislature making the law.
But many topics or subjects of legislation are such that they require expertise, technical
knowledge and a degree of adaptability to changing situations which parliament might not
possess and, therefore, this end is better secured by extensive delegation of legislative power.

Paritosh Tengshe, LL.B. 2021

 The legislative process would frequently bog down if a legislature were required to appraise
beforehand the myriad situations to which it wishes a particular policy to be applied and to
formulate specific rules for each situation. The presence of Henry VIII clause in many of the
statutes is a pointer to the necessity of extensive delegation. The hunt by court for legislative
policy or guidance in the crevices of a statute, or the nook and cranny of its preamble is not an
edifying spectacle. It is not clear what difference does it make in principle by saying that since
the delegation is to a representative body that would be a guarantee that the delegate will not
exercise the power unreasonably, for, if ex hypothesi the legislature must perform the essential

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legislative function, it is certainly no consolation, it the body to which the function has been
delegated has a representative character. In other words, if no guidance is provided or policy

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laid down, the fact that the delegate has a representative character could make no difference in
principle.

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Administrative Directions
● An administrative direction is an instruction that the admin body is issuing for itself.
● It is issued for internal purposes by the executive.
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● It has its origins in Articles 73 and 163 of the Constitution.
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● Admin directions are different than delegated legislation (DL):

→ DL always has some statutory backing; admin directions do not need statutory backing
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(they emerge out of a necessity)

→ DL is enforceable by a private citizen; Admin directions are not enforceable by private
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citizens (exception for this in the Minhas case)

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● An admin direction is like a textbook given for you to acquaint yourself with the workings of
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the admin body.

● It can be called as rules/bye-laws/directions.
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● If DL comes in conflict with an admin direction, then the DL will prevail.

● Admin direction should be consistent with existing laws.
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● Question: How to spot if it is a DL or admin direction?

→ Answer: The DL will say that it is doing so under a statute.

Paritosh Tengshe, LL.B. 2021

JUDICIAL REVIEW

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● It is an important part of separation of powers, therefore it is an important part of rule of law.

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● Judicial review is part of the basic structure.
● DL leaves room for discretion. The discretion that the admin offices have is subject to judicial
review.
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● The supervisory jurisdiction of a High Court is wider. They also examine admin decisions
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within the state. The principles they use are common law principles.
→ example of principles: the intention behind the exercise of discretion should be bonafide,
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not mala fide.

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● Arbitrariness was traditionally used in fundamental rights enforcement only. But now, a lack of
arbitrariness is also a legal right.
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● Most of service law is produced under Article 226 in the HCs.

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● ‘Writ’ = order. Only SC and HCs have writ jurisdiction.

→ Habeas corpus = 32; 226
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→ Mandamus = asking the govt authority to do something or abstain from doing something
→ Certiorari = Higher court has supervisory jurisdiction over a lower court
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→ Quo Warranto = whether the authority which is acting has an authority or not
→ Prohibition = like an injunction

● Over time, writs have also been used to enforce legal rights by the HCs.
● HC has review power over decisions of admin bodies.
● Writ jurisdiction cannot be ousted by a statute, even though a statute may say that no appeal
lies from an order.

Paritosh Tengshe, LL.B. 2021

 ● You have to satisfy the court that you have exhausted all alternative remedies before
approaching the court to issue a writ.
● The HCs have wider latitude in terms of granting relief in an Article 226 matter.
● When the admin body passes an order, it must state its reasons for passing such an order.
● Admin orders must be reasoned. It has to convey enough meaning.
→ When admin bodies do not pass a reasoned order, it becomes a ground for judicial review.
**Sometimes there is a statutory requirement that the reasons be recorded/reasoned.
→ The decision maker has taken into consideration irrelevant considerations –he has gone

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beyond the law.
** irrelevant considerations make the order ultra vires the DL, and therefore null and void.

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** is the admin body passing the order in a colourable way or not?

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● Because of common law principles, the meaning given to Article 14 has widened.

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● In constitutional law, the tests used for Article 14 violation are reasonable classification and

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nexus to the object of the law. In admin law, the tests used are reasonableness and arbitrariness.

Principles of Natural Justice

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● It has two components: (i) right to be heard; (ii) right against bias.
● Quasi judicial = somewhat judicial, but not completely.
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● When quasi judicial bodies are making decisions which are prejudicial to an individual’s
interest, then application of principles of natural justice is needed.
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● Applicable in two types of cases : (i) Department v. individual; (ii) individual v. individual
● INC v. Institute of Social Workers (2002) case laid down what is a quasi judicial act.
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● Natural justice principles are common law principles.

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● Ridge v. Baldwin:
→ idea that admin decisions should make use of natural justice principles, which includes the
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right to fair hearing.

→ it was a case of service law — fairness is a facet of justice.
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● Transparency in admin decision-making is a modern offshoot of natural principles of justice.

● Right to be heard means the hearing needs to be fair.
● In India, natural justice jurisprudence emerged from the 1960s.
● 3 landmark cases:
(i) State of Orissa v. Dr. Binapani, AIR 1967 SC 1269
(ii) Swadeshi Cotton Mills v. Union of India, (1981) 1 SCC 664
(iii) A.K. Kraipak v. Union of India, AIR 1970 SC 150

Paritosh Tengshe, LL.B. 2021

 ● Article 311(2) – you cannot remove a person from service without an inquiry wherein a fair
hearing is provided.
→ natural justice is jurisprudentially recognised in the constitution through this Article.

● What is a fair hearing has many components:

(A) Notice
→ elements of a valid notice: it needs to be non-defective and well-reasoned
→ notice needs to be addressed correctly; it must state the reasons for the action taken;

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it must give a reply-by date.

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(B) Hearing must happen – it can be oral or through written communication.
→ idea is that parties must be given a fair chance of making their case.

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→ if the statute states how hearing must be done, then that must be followed.

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→ disclosure of materials to the party – summoning of witness; opportunity to

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cross-examine the witness.1

● The objection of no fair hearing needs to be stated at the first instance. Failure to do so acts as
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an estoppel.
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Doctrine of Legitimate Expectations

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● It is an extension of natural justice. It, therefore, does give rise to a fresh right.
● The predictability of admin decisions is a part of fairness.
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● Admin authorities on part of their conduct can give expectations to the receiving authorities.
When admin authorities do not act in an expected way, a legal right accrued to another party.;
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● Consistent conduct has to give rise to a reasonable expectation

● Expectation needs to be reasonable.
● Consistent conduct suggests consistent action. Sometimes, these actions are put down in a
document.

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However this may not always be the case.

Paritosh Tengshe, LL.B. 2021

 ● Expectations from the admin authority cannot be such that if they meet your expectation it
violates a statute/rule.
→ expression provision cannot be disregarded by the admin body.

Promissory Estoppel
● I make a promise and you act on it. Then, I cannot take back my promise.
● It applies to public law and private law.

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● Unlike legitimate expectations which came from public law, promissory estoppel came from
private law.

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● Based on promise/representation the party changes its position and therefore, the promisor is
estopped. In legitimate expectation, the ‘change in position’ requirement is not present.

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● 3 ingredients:

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→representation;

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→ acting on representation;
→ acted to their detriment.
● Promissory estoppel against the State emerged after Indo-Afghan Agencies case – 3rd ingredient
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was removed post Indo-Afghan Agencies application of promissory estoppel by Indian Courts.
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The (Fictitious) Doctrine of Substantive Legitimate Expectations in India [Paper by Chintan

Chandrachud] [#incomplete]
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● Because of the inconsistent application of this doctrine by the courts, it is difficult for courts to
use them as precedents.
● In the case of public service law, the doctrine has been employed times – because of reluctance
to use the doctrine in favour of the petitioner, it has weakened public service law.
●

Paritosh Tengshe, LL.B. 2021

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Paritosh Tengshe, LL.B. 2021