What is Administrative Law?

At its core, administrative law defines how government bodies operate outside of the
traditional legislative and judicial branches. It covers:

 Organization: How administrative agencies are structured and formed.

 Powers: What authority these agencies have to make decisions, create rules, and
enforce them.
 Duties: The responsibilities these agencies have to the public and how they must act.

Administrative law has grown tremendously in the 20th century, reflecting the expanded role
of governments in areas like social welfare, economic regulation, and public health.

Key Definitions of Administrative Law

1. Ivor Jennings:
o Definition: "Administrative Law is the law relating to the administration. It
determines the organization, powers and duties of the administrative
authorities."
o Strengths: Widely accepted and concise.
o Weaknesses: Blurs the line between administrative and constitutional law,
doesn't cover remedies for those harmed by administrative actions.
2. Kenneth Culp Davis:
o Definition: "Administrative Law is the law concerning the powers and
procedures of administrative agencies, including especially the law governing
judicial review of administrative action."
o Strengths: Emphasizes the importance of fair procedures used by agencies.
o Weaknesses: Excludes substantive laws made by agencies, overemphasizes
judicial control over other forms of oversight.
3. Upendra Bakshi:
o Definition: "Administrative law is that portion of law which controls the abuse
of powers by the administrative authorities so as to protect the rights of
individuals."
o Strengths: Focuses on the critical aspect of protecting individual rights.
o Weaknesses: Doesn't encompass the full scope of administrative law, which
includes more than just preventing abuse.

A Comprehensive View

While no single definition is perfect, a comprehensive understanding of administrative law

includes:

 Defining the structure, powers, and duties of administrative agencies and

authorities.
 Outlining procedures for fair decision-making and rulemaking.
 Establishing mechanisms for judicial review of administrative actions.
 Protecting individual rights from abuse of administrative power.
Nature of Administrative Law
 Unique Law: Administrative law isn't a traditional law like property or labor law. It's
a framework for governing how administrative authorities operate.
 Purpose:
o To regulate the organization, powers, and duties of administrative bodies.
o To ensure administrative actions follow proper procedures.
o To protect the public from arbitrary decisions made by administrative
authorities.
 Uncodified and Judge-Made: Unlike many other areas of law, administrative law
isn't found in a single, comprehensive statute. Instead, it has evolved over time
through court decisions and interpretations
 Primarily Judge-Made: In India, administrative law is largely developed through
court decisions and interpretations. This makes it adaptable to changing times and
needs.
 Constitutional Connection: Administrative law is intertwined with the Indian
Constitution, regulating all three branches of government (legislative, executive, and
judiciary) to prevent corruption and abuse of power.
 Judicial Review: A core function is to allow for judicial review of administrative
actions. This means courts can examine decisions made by administrative bodies to
ensure they are lawful and fair.
 Flexible Roles: Administrative bodies can take on legislative, executive, or quasi-
judicial roles as needed to fulfill their functions.

Scope of Administrative Law

 Wide-Ranging: The scope of administrative law is broad and continuously evolving
due to its judge-made nature and the changing needs of society.
 Key Foundations:
o Principles of Natural Justice: Fair procedures and unbiased decision-
making.
o Rule of Law: Everyone, including administrative authorities, is subject to the
law.
o Constitutional Powers: Administrative powers are granted and limited by the
Constitution.
o Accountability: Administrative powers must be exercised responsibly and
with checks and balances.
o Reasonable Restrictions: Limitations on administrative powers must be
justifiable.
o Judicial Writs: Courts can issue writs to correct unlawful administrative
actions.
o Public Opinion and Media: Play a role in shaping administrative law through
scrutiny and feedback.

Key Points

 Dynamic: Administrative law adapts to societal needs and incorporates new rules as
necessary.
  Multi-Faceted: Administrative bodies can function in various capacities (legislative,
executive, quasi-judicial).
 Subject to Review: Administrative decisions are not final; they can be reviewed by
courts, which may issue guidelines if necessary.

Sources of Administrative Law in India:

 The Constitution of India:

 Fundamental Rights: Articles 14 (Equality before law), 19 (Freedom of speech and

expression), and 21 (Protection of life and personal liberty) provide a framework for
administrative actions and ensure that they do not violate these rights.
 Directive Principles of State Policy: These principles guide the state in making laws
and policies that promote social and economic justice.
 Distribution of Powers: The Constitution divides powers between the Union and the
States, which impacts the scope of administrative law at different levels.
 Judicial Review: Articles 32 and 226 empower the Supreme Court and High Courts,
respectively, to review administrative actions and ensure their legality.

 Statutes (Acts of Parliament and State Legislatures):

 Enabling Acts: These acts delegate powers to administrative authorities and define
their functions, such as the Indian Penal Code, the Code of Criminal Procedure, and
the Income Tax Act.
 Regulatory Acts: These acts aim to control and regulate specific activities, such as
the Environment Protection Act and the Consumer Protection Act.
 Acts Establishing Tribunals: These acts create specialized tribunals to adjudicate
disputes related to specific areas, such as the Central Administrative Tribunal and the
National Green Tribunal.

 Ordinances and Delegated Legislation:

 Ordinances: These are temporary laws issued by the President or Governor in urgent
situations when the legislature is not in session.
 Delegated Legislation: This includes rules, regulations, notifications, and bye-laws
made by the executive under the authority delegated by the legislature.

 Judicial Decisions (Case Law):

 Precedent: Decisions of the Supreme Court and High Courts have a binding effect on
lower courts and administrative authorities.
 Interpretation of Statutes: Courts interpret and clarify the meaning of statutes,
shaping the application of administrative law.
 Development of Principles: Judicial decisions have contributed to the development
of important principles of administrative law, such as the principles of natural justice
and proportionality.

 Administrative Decisions and Orders:

  Quasi-Judicial Decisions: Decisions of administrative tribunals and other quasi-
judicial bodies have a persuasive value and contribute to the development of
administrative law.
 Policy Decisions: While not binding, policy decisions of administrative authorities
can influence the interpretation and application of administrative law.

 International Treaties and Conventions:

 Incorporation into Domestic Law: Some international treaties are incorporated into
domestic law through legislation and become a source of administrative law.
 Influence on Interpretation: Even if not directly incorporated, international treaties
can influence the interpretation of domestic law by courts.

 Customary Practices and Conventions:

 Established Practices: Certain practices followed by administrative authorities over

time can gain recognition as customary law, although they are not binding in the same
way as statutes or judicial decisions.
Rule of Law:
Origin and Evolution:

 The concept of Rule of Law is ancient, dating back to Roman times ("Just Law") and
the Medieval period ("Law of God").
 Enlightenment thinkers like Hobbes, Locke, and Rousseau referred to it as "Natural
Law."
 A.V. Dicey, a prominent English jurist, solidified the modern concept in his lectures
at Oxford University.

Dicey's Three Principles of Rule of Law:

1. Supremacy of Law:
o Law reigns supreme, not arbitrary power or the whims of the government.
o Individuals can only be punished for violating established laws, not for
anything else.
o This principle emphasizes the importance of legal certainty and predictability.
2. Equality Before Law:
o Everyone is subject to the same law, regardless of social status or position.
o There are no special tribunals or privileges for government officials.
o This principle safeguards against discrimination and ensures fair treatment for
all.
3. Judge-Made Constitution:
o Rights and freedoms are secured through judicial decisions in specific cases
rather than solely through a written constitution.
o Dicey believed that court-protected rights were more robust and less
susceptible to being ignored or violated compared to rights merely declared in
a document.

Application in England:

 Wilkes v. Wood: Established that government ministers can be sued for damages if
their actions cause harm, even if those actions were taken in an official capacity.
 Entick v. Carrington: A landmark case where the court upheld the right to privacy
and property, awarding damages to a publisher whose house was illegally searched by
government agents.

Significance and Implications:

 Dicey's Rule of Law is a cornerstone of democratic societies and the protection of

individual liberties.
 It provides a framework for ensuring that government power is limited and exercised
lawfully.
 It underscores the importance of an independent judiciary in upholding the rule of law
and protecting citizens' rights.

Key Points to Remember:

  Rule of Law is a fundamental principle with a long history and deep roots in political
philosophy.
 Dicey's three principles provide a clear framework for understanding the concept.
 The application of the Rule of Law in England demonstrates its practical significance
in protecting individual rights and limiting government power.

Dicey's Rule of Law: A Critical Analysis

Merits

 Effective Weapon: The Rule of Law has been a powerful tool in keeping
administrative authorities in check and ensuring their actions align with legal
principles.
 Constitutional Safeguard: It has been adopted by many legal systems as a
fundamental protection against arbitrary government action.
 Upholds Democracy: The principle of supremacy of law is essential for democracy,
ensuring that the government is subject to the law, not above it.
 Protects Rights: It safeguards citizens' rights by opposing arbitrary and discretionary
powers of governmental authorities.
 Promotes Equality: The principle of equality before the law ensures that everyone is
treated equally under the law, regardless of their status or position.
 Empowers Judiciary: It emphasizes the judiciary's role in enforcing individual rights
and personal freedoms, even in the absence of explicit constitutional provisions.

Pitfalls

 Not Logical Deductions: Some critics argue that the rules of law in the English legal
system are a result of political struggles rather than logical deductions.
 Conflation of Discretionary and Arbitrary Power: Dicey's criticism of
discretionary power is seen as flawed, as not all discretionary power is arbitrary. In
fact, modern welfare states require some discretionary power to function effectively.
 Misunderstanding of Droit Administratif: Dicey's critique of the French
administrative law system (droit administratif) is considered inaccurate. French
administrative courts, like the Counseil d'Etat, do not give special privileges to
officials but provide a mechanism for judicial review of administrative actions.
 Inaccurate Claim of Equality Before Law: The claim of absolute equality before
the law in England was not entirely true, even in Dicey's time. The Crown enjoyed
immunity, and administrative tribunals existed with their own legal procedures.

Rule of Law in India: A Constitutional Perspective

Dicey's Influence: The Indian Constitution has adopted and incorporated Dicey's rule of law
principles. This is evident in the Preamble, which emphasizes justice, liberty, and equality,
and in Part III of the Constitution, which enshrines these concepts as enforceable
Fundamental Rights.

Key Features of Rule of Law in India:

 Constitutional Supremacy: The Constitution is the supreme law of the land, and all
government organs (legislature, executive, and judiciary) are subordinate to it.
  Judicial Review: The judiciary has the power of judicial review, enabling it to
declare laws and actions of the government unconstitutional if they violate the
Constitution.
 Enforcement of Fundamental Rights: Citizens can approach the High Courts and
the Supreme Court to enforce their Fundamental Rights, providing a crucial safeguard
against government overreach.
 Equality Before the Law: All individuals, including government officials, are equal
before the law and are subject to the jurisdiction of ordinary courts.
 No Special Privileges: The government and public officials are not above the law and
do not enjoy immunity from legal action.
 Delegation of Powers: While the principle of separation of powers is upheld, there is
also a provision for delegation of legislative and judicial powers to administrative
authorities.
 Wide Discretionary Powers: Administrative authorities are often vested with wide
discretionary powers, especially in areas like national planning and economic
regulation.

Challenges to Rule of Law in India:

 Executive Overreach: There are concerns about executive overreach and abuse of
power, particularly in the use of preventive detention laws like the National Security
Act (NSA).
 Judicial Delays: The backlog of cases in Indian courts leads to significant delays in
justice delivery, hindering the effective enforcement of the rule of law.
 Corruption: Corruption within the government and judiciary poses a significant
threat to the rule of law, eroding public trust in institutions.
 Balancing Individual Liberty and Public Interest: The challenge lies in striking a
balance between individual liberty and public interest, especially in areas like national
security and economic development.
Separation of Powers
Meaning:

It is generally accepted that there are three main categories of governmental functions –
Legislative, Executive, and Judicial. Likewise, there are three main organs of the Government
in a State - Legislature, Executive and Judiciary. According to the theory of separation of
powers, these three powers and functions of the Government must, in a free democracy,
always be kept separate and be exercised by three separate organs of the Government. Thus,
the Legislature cannot exercise executive or judicial power; the Executive cannot exercise
legislative or judicial power and the Judiciary cannot exercise legislative or executive power
of the Government.

Origins:

 Ancient Roots: The concept of separating government functions dates back to

Aristotle (4th century BCE) and the Roman Republic.
 Modern Development: Montesquieu, an 18th-century French philosopher,
formulated the doctrine in a systematic way, inspired by the English system.
 Further Contributions: John Locke added to the development of this idea.

Purpose:

 The primary goal of separation of powers is to prevent the abuse of power by a

single person or group.
 It aims to protect society from tyranny, arbitrary rule, and ensure individual freedom.
 It ensures that each branch of government is best suited to perform its specific
functions effectively.

Meaning:

The doctrine divides government into three branches:

1. Legislature: Makes laws

2. Executive: Implements laws
3. Judiciary: Interprets laws

Three Key Features:

1. Personnel: Each branch should have distinct personnel, meaning individuals should
not hold positions in multiple branches simultaneously.
2. Non-interference: One branch should not interfere with the functioning of the others.
3. Functional Exclusivity: Each branch should stick to its designated functions and not
encroach upon the roles of others.

Significance:

1. Prevents Autocracy: Separation of powers safeguards against the concentration of

power, which can lead to authoritarian rule.
 2. Protects Individual Liberty: By limiting the power of any single branch, it protects
citizens' fundamental rights and freedoms.
3. Promotes Efficient Administration: Each branch specializes in its area, leading to
more effective governance.
4. Maintains Judicial Independence: An independent judiciary is crucial for upholding
the rule of law and ensuring fair trials.
5. Checks Arbitrary Laws: The separation of powers prevents the legislature from
enacting laws that violate the constitution or infringe upon individual rights.

Defects:

1. Impracticality: A rigid separation of powers is impractical in real-world governance.

The three functions often overlap, and a strict demarcation is difficult. For instance,
the legislature may need to exercise some judicial power to punish contempt of its
authority.
2. No Watertight Compartments: The functions of the three organs are not entirely
distinct and independent. They often share incidental powers, and a complete
separation could lead to gridlock and inefficiency.
3. Limitations in a Welfare State: In modern welfare states, the government needs to
address complex socio-economic issues that require a coordinated approach. A strict
separation of powers can hinder this flexibility.
4. Relative, Not Absolute Separation: The modern interpretation of the doctrine allows
for a degree of overlap in functions, focusing on preventing the usurpation of essential
powers by one organ over another.
5. Rule of Law and Independent Judiciary are Key: The true safeguard of liberty lies
not in a rigid separation of powers but in the rule of law and an independent judiciary.
England, despite not adhering to the doctrine, has a strong tradition of protecting
individual liberties.

Core Concept of Separation of Powers

 Purpose: Prevent abuse of power by dividing government functions among distinct

entities (Executive, Legislature, Judiciary).
 Montesquieu's Idea: If power is divided, each branch acts as a check on the others,
ensuring liberty.
 Widely Accepted Principle: The judiciary should be independent of the other
branches.

Separation of Powers in India

Key Points:

 Implicit Principle: The doctrine of separation of powers is not explicitly mentioned

in the Indian Constitution, but it's considered part of its basic structure. This means it's
a fundamental principle that cannot be violated by any law passed by the legislature.
 Constitutional Provisions: While not directly stating the doctrine, several articles in
the Constitution hint at the separation of powers:
 o Article 50: Directs the State to separate the judiciary from the executive
(though this is not legally enforceable).
o Article 123: Empowers the President (executive) to exercise legislative
powers under certain conditions (ordinances).
o Articles 121 & 211: Protect judicial conduct from legislative discussion
except during impeachment.
o Article 361: Grants immunity to the President and Governors from court
proceedings.

Checks and Balances:

Instead of strict separation, India follows a system of checks and balances to prevent any one
branch from becoming too powerful:

 Judicial Review: The judiciary can review and strike down laws passed by the
legislature or actions taken by the executive if they are unconstitutional or violate
fundamental rights.
 Legislative Oversight: The legislature can scrutinize the functioning of the executive
and hold it accountable.
 Appointment of Judges: While the judiciary is independent, judges are appointed by
the executive.
 Legislative Response to Judgments: The legislature can amend laws to address
issues raised by court judgments, within constitutional limits.

Overall:

 The Indian Constitution does not rigidly adhere to the doctrine of separation of
powers.
 Instead, it establishes a system where each branch has its primary functions but also
has some overlapping powers and checks on the other branches.
 This system of checks and balances is designed to ensure that no single organ of the
state becomes overly dominant, thereby upholding democratic principles and
protecting individual liberties.
What is Delegated Legislation?
 Definition: Delegated legislation refers to laws made by authorities other than the
supreme legislative body (Parliament in India). These laws are subordinate to the
supreme legislation and depend on it for their existence and validity.
 Salmond's Classification:
o Supreme Legislation: Made by the supreme authority (Parliament).
o Subordinate Legislation: Made by subordinate authorities (executive or other
bodies) under powers delegated by the supreme authority.

Reasons for the Growth of Delegated Legislation:

1. Pressure on Parliament: The Indian Parliament has a vast workload dealing with
diverse national issues. Delegated legislation allows it to focus on broad policy
matters while leaving detailed rule-making to the executive.
2. Technical Subject Matter: Many laws require technical expertise that Members of
Parliament may not possess. Delegated legislation allows experts to make rules in
specialized fields like atomic energy, technology, or medicine.
3. Flexibility: The legislative process is often slow and cumbersome. Delegated
legislation allows for quick and adaptable responses to changing circumstances, such
as regulations on terrorism, foreign exchange, or import policies.
4. Experimentation: Delegated legislation provides a platform for testing new laws
before making them permanent. This allows for trial-and-error approaches to issues
like traffic problems or share market regulations.
5. Speediness: Delegated legislation can be made and implemented much faster than
primary legislation passed by Parliament.
6. Emergency Situations: In times of war or national emergency, the executive needs
the power to make quick decisions. Delegated legislation provides the necessary
flexibility to deal with such situations effectively.

Key Features of Delegated Legislation:

 Subordinate to Supreme Legislation: Delegated legislation must be consistent with

the parent legislation and cannot exceed the powers granted by it.
 Flexibility: Unlike rigid primary legislation, delegated legislation can be easily
modified or repealed to adapt to changing needs.
 Technical Expertise: Allows for the involvement of experts in rule-making, ensuring
that regulations are informed and effective.
 Efficiency: Streamlines the law-making process by relieving the burden on the
legislature and enabling quicker responses to emerging issues.

Advantages of Delegated Legislation:

1. Control Over Administrative Discretion: Delegated legislation helps prevent

potential abuse of power by administrative authorities. Without clear rules and
guidelines, these authorities could exercise excessive discretion. Delegated legislation
provides a framework and limits their actions.
2. Contingent Legislation: Some acts only come into effect when specific conditions
are met. Administrative authorities are often better equipped to assess and determine
 when those conditions are fulfilled, making delegated legislation practical for such
situations.

Case Laws:

1. Minerva Talkies v. State of Karnataka:

 Issue: The state government limited cinema shows to 24 per day under a rule made
possible by the Karnataka Cinema Act. The rule's validity was challenged.
 Decision: The court held that the rule was valid, not exceeding the powers granted by
the parent act. It also did not violate Article 19(1)(g) of the Constitution, which
guarantees the freedom to practice any profession or occupation.

2. Air India v. Neergesh Meerza:

 Issue: Air India had a regulation allowing the termination of air hostesses' services
upon pregnancy.
 Decision: The court deemed this regulation arbitrary, unreasonable, and a violation of
the air hostesses' rights.

3. Ajay Canu v. Union of India:

 Issue: A rule mandated wearing helmets for two-wheeler riders.

 Decision: The court upheld the rule, stating that it was not arbitrary, discriminatory,
or imposing unreasonable restrictions on fundamental rights guaranteed under Article
19 of the Constitution.

Key Takeaway:

 Delegated legislation serves important purposes like controlling administrative

discretion and enabling contingent legislation.
 However, the courts play a crucial role in ensuring that delegated legislation remains
within the bounds of the parent act and does not violate fundamental rights

Delegated Legislation and Judicial Review

 Rise of Delegated Legislation: In the 20th century, administrative agencies
increasingly made rules and regulations (delegated legislation) to fill in the details of
broader laws passed by the legislature.
 Need for Judicial Control: While delegation is necessary for efficient governance, it
raises concerns about potential misuse of power by the executive branch.
 Judicial Review as a Check: Courts play a vital role in ensuring delegated legislation
stays within the boundaries set by the legislature and does not violate constitutional
principles.

Doctrine of Ultra Vires

  Meaning: Ultra vires is a Latin term meaning "beyond the powers." It's a legal
doctrine that determines whether actions taken by administrative bodies or individuals
are within the scope of their authority.
 Two Aspects:
o Substantive Ultra Vires: This refers to actions that exceed the power granted
by the parent legislation (the law that authorizes the delegated legislation). The
delegated legislation may try to regulate something that the parent act does not
cover or may impose stricter regulations than allowed.
o Procedural Ultra Vires: This occurs when the correct procedures for making
delegated legislation are not followed. For example, the required consultation
with stakeholders might be skipped, or the proper publication of the rules
might be neglected.

How Courts Apply the Doctrine

 Ultra Vires = Invalid: If a court finds delegated legislation to be ultra vires, it

declares it invalid. This means it is as if the legislation never existed and cannot be
enforced.
 Intra Vires = Valid: If the delegated legislation is found to be intra vires (within the
powers), it remains valid and enforceable.

Importance of Judicial Control

 Upholding the Rule of Law: The doctrine of ultra vires ensures that administrative
bodies adhere to the laws enacted by the legislature and do not overstep their
authority.
 Protecting Individual Rights: Courts can invalidate delegated legislation that
infringes upon fundamental rights or imposes unreasonable restrictions.
 Maintaining a Balance of Power: Judicial review of delegated legislation prevents
the executive branch from accumulating excessive power and maintains the balance
between different branches of government.

What is Substantive Ultra Vires?

 Definition: Substantive ultra vires occurs when delegated legislation (rules,

regulations, etc., made by administrative authorities) exceeds the powers granted to it
by the parent act (the law that authorizes the delegated legislation).
 Core Principle: Administrative authorities cannot act beyond the scope of their legal
authority. If they do, their actions are considered invalid and can be challenged in
court.

Circumstances Leading to Substantive Ultra Vires:

1. Unconstitutional Parent Act: If the law that authorizes the delegated legislation is
itself unconstitutional, the delegated legislation is also invalid.
2. Delegation of Essential Legislative Functions: The legislature cannot delegate core
law-making powers, such as repealing laws or imposing taxes.
3. Inconsistency with Parent Act: Delegated legislation must be consistent with the
purpose and intent of the parent act.
 4. Inconsistency with General Law: Delegated legislation cannot contradict other
existing laws.
5. Unconstitutional Delegated Legislation: The rules themselves cannot violate
fundamental rights or other provisions of the constitution.
6. Unreasonableness: Rules cannot be excessively harsh, arbitrary, or disproportionate
to their objectives.
7. Mala Fide (Bad Faith): Rules made with ill intent or for improper purposes are
invalid.
8. Sub-delegation: Delegated authorities generally cannot further delegate their law-
making power unless specifically authorized.
9. Exclusion of Judicial Review: Attempts to prevent courts from reviewing the
legality of delegated legislation are usually not allowed.
10. Retrospective Effect: Delegated legislation usually cannot have a retrospective effect
unless explicitly allowed by the parent act.

Case Examples:

 Chintaman Rao v. State of M.P: A law allowing a district official to ban bidi
production was unconstitutional, making the ban invalid.
 Indian Express Newspapers v. Union of India: Established that "unreasonableness"
is a ground for challenging delegated legislation.

Key Takeaways:

 Substantive ultra vires is a crucial check on the power of administrative authorities.

 It ensures that delegated legislation remains within the boundaries of the law and
respects individual rights.
 Courts play a vital role in upholding the rule of law by reviewing and invalidating
ultra vires delegated legislation.

What is Procedural Ultra Vires?

 Definition: Procedural ultra vires occurs when delegated legislation (rules,

regulations, etc., made by administrative authorities) fails to follow the procedural
requirements prescribed by the parent act or general law.
 Core Principle: Administrative authorities must adhere to the specific procedures
outlined in the law when creating delegated legislation. Failure to do so can invalidate
the legislation.

Key Procedural Requirements:

1. Publication:
o Purpose: To ensure that the public is aware of the new rules and has a chance
to understand and comply with them.
o Manner: Usually, publication in the Official Gazette is required, but other
methods like websites or newspapers may also be acceptable.
o Effect of Non-Publication: If not published, the delegated legislation is
considered ineffective and cannot be enforced.
2. Consultation:
 o Purpose: To gather input from affected parties and stakeholders, allowing
them to express their views and concerns before the rules are finalized.
o Object: To ensure that the rules are fair, reasonable, and take into account the
interests of those who will be affected by them.
o Mandatory vs. Directory: Whether consultation is mandatory or directory
depends on the specific wording of the parent act and the intent behind it.
o Effect of Non-Consultation: If mandatory consultation is not done, the
delegated legislation can be declared invalid.

Distinguishing Mandatory and Directory Requirements:

 Mandatory: These requirements must be strictly followed. Failure to do so will

invalidate the delegated legislation.
 Directory: These requirements are meant to be followed, but minor deviations may
not invalidate the legislation as long as the overall purpose is achieved.

Case Examples:

 Harla v. State of Rajasthan: The Supreme Court emphasized the importance of

publication, holding that legislation must be made known to the public.
 Narendra Kumar v. Union of India: Rules were held ineffective because they were
not notified in the Official Gazette as required by the parent act.

Key Takeaways:

 Procedural ultra vires serves as a check on administrative power, ensuring fairness

and transparency in the rule-making process.
 Courts play a vital role in determining whether procedural requirements are
mandatory or directory and whether their non-compliance invalidates the delegated
legislation.
 The goal is to strike a balance between efficient administration and safeguarding the
rights and interests of individuals affected by the rules.

What is Sub-delegation?
 Definition: Sub-delegation occurs when a legislative body (like Parliament) delegates
its law-making power to an administrative authority (like the executive branch), and
that authority further delegates the power to another subordinate agency or individual.
 Chain of Delegation: This process can create multiple layers of delegation, with each
level potentially delegating further down the line.
 Example: In India's Essential Commodities Act, the Parliament (first stage) delegates
power to the Central Government, which then delegates to state governments (second
stage), which can further delegate to their officers (third stage).

Rationale for Sub-delegation:

1. Practical Necessity: The sheer volume and complexity of modern governance make
it impossible for the legislature to handle every detail. Sub-delegation allows for
expertise and efficiency in rule-making.
 2. Ancillary to Delegation: Sub-delegation is seen as a natural extension of the power
to delegate. If the legislature can delegate, it's argued that the delegate should also
have some flexibility to sub-delegate.

Permissibility of Sub-delegation:

 Express Power: If the parent act explicitly allows for sub-delegation, there's no legal
issue.
 Implied Power: Even without explicit permission, courts may allow sub-delegation if
it's necessary to implement the parent act's objectives effectively. The wider the scope
of the parent act, the more likely sub-delegation is implied.

Case Law Examples:

 Central Talkies Ltd. v. Dwarka Prasad: Sub-delegation was upheld because the
parent act allowed an officer to be authorized by the District Magistrate to perform
functions under the Act.
 Ganpati Singhji v. State of Ajmer: Sub-delegation was invalid because the parent
act gave the power to the Chief Commissioner, not the District Magistrate to whom it
was sub-delegated.
 States v. Baren: Multiple layers of sub-delegation were upheld because they were
deemed necessary to implement the broad powers granted by the parent act.

Key Takeaways:

 Sub-delegation is a common practice in modern administrative law.

 Its validity depends on whether it's expressly or impliedly allowed by the parent act.
 Courts play a role in determining the permissibility of sub-delegation, ensuring it
doesn't exceed the original legislative intent or violate the principles of the rule of
law.
Introduction: The Rule Against Bias
The foundation of natural justice rests on the principle of impartiality. This is encapsulated in
three maxims:

 Nemo judex in causa sua: No one should be a judge in their own cause.
 Justice must not only be done but also be seen to be done: The perception of
fairness is as crucial as actual fairness.
 Judges, like Caesar's wife, should be above suspicion: The integrity of a judge
must be beyond reproach.

The Doctrine of Bias Explained

At its core, bias refers to a predisposition that prevents a judge from deciding a case based
solely on the evidence. A biased judge may favor one party or hold prejudice against another,
undermining the true merits of the dispute.

For justice to be served, a judge must be impartial and neutral. They cannot have any
personal or financial interest in the case, as this could influence their judgment. This rule
applies not only to judicial figures but also to administrative authorities exercising quasi-
judicial powers.

Types of Bias

1. Pecuniary Bias: This occurs when a judge has a financial stake, however small, in
the outcome of a case.
o Dimes v. Grand Junction Canal: The Lord Chancellor's decision was
quashed despite not being influenced by his shareholding in the company
involved, highlighting the strictness of the rule against pecuniary bias.
2. Personal Bias: This arises from personal relationships, grudges, or rivalries between
the judge and a party.
o State of U.P. v. Mohd. Nooh: A departmental inquiry was invalidated as the
officer conducting the inquiry became a witness against the accused, violating
natural justice.
o A.K. Kraipak v. Union of India: A candidate's selection to the Indian
Foreign Service was quashed because he was also a member of the Selection
Board, raising concerns about impartiality.
3. Official Bias: This refers to a judge's general interest in the subject matter of a case,
which rarely invalidates proceedings unless there's a direct connection to the
litigation.
o Gullapalli Nageswara Rao v. A.P.S.R.T.C.: A nationalization scheme was
challenged as the official hearing the objections was considered a party to the
dispute.
4. Judicial Obstinacy: This is a unique form of bias where a judge refuses to accept a
higher court's decision and continues to apply their overruled judgment.
 o State of W.B. v. Shivananda Pathak: The Supreme Court emphasized that a
judge must adhere to higher court decisions, even if it means setting aside their
own previously held views.

Key Points to Remember

 The rule against bias is essential for upholding the integrity of the judicial and
administrative processes.
 Even the appearance of bias can be enough to invalidate a decision.
 There are various forms of bias, and each must be carefully considered to ensure fair
and just outcomes.

Audi Alteram Partem: The Right to be Heard

Originating from the 17th century, this Latin phrase means "let the other side be heard." It's a
fundamental principle of natural justice enshrined in many legal systems, including ancient
texts and religious teachings. This principle ensures that no one is judged without a fair
hearing and the opportunity to defend themselves.

Key Elements of Audi Alteram Partem

1. Notice: Before any decision is made, parties must be informed of the details of the
hearing, including date, time, place, charges, and jurisdiction. This notice must be
clear and complete.
o Punjab National Bank v. All India Bank Employees Federation: Notice
lacked information on penalty, making it invalid.
o Abdul Latif v. Commr: Notice was invalid due to lack of information about
the property to be acquired.
2. Hearing: Both parties must be given a fair chance to present their case, either in
writing or orally.
o Harban Lal v. Commissioner: Fair hearing is essential, and authorities must
ensure parties have an opportunity to attend a hearing.
o Union of India v. J.P. Mitter: Written submissions can be a valid alternative
to personal hearings.
3. Evidence: Evidence should be presented in the presence of both parties, and decisions
should be based on the evidence presented.
o Hira Nath v. Principal: Evidence can include previous convictions, but the
affected party must have a chance to deny them.
o Stafford v. Minister of Health: No evidence should be produced without the
presence of both parties.
4. Cross-Examination: While not always mandatory, the right to cross-examine
witnesses is crucial for challenging evidence and ensuring fairness.
o Kanungo & Co. v. Collector of Customs: Cross-examination of informants
was not allowed under the Sea Customs Act, but this did not violate natural
justice in that specific context.
5. Legal Representation: Although not always required, denying legal representation in
complex cases can violate natural justice.
o Krishna Chandra v. Union of India: Denying legal representation was
considered a violation in a case where the party couldn't effectively understand
legal issues.
Exemptions to Audi Alteram Partem

In rare cases, the right to a fair hearing can be excluded, but these situations must be justified.

1. Statutory Exclusions: A law can explicitly or implicitly exclude natural justice, but
such a law may be challenged if it appears arbitrary or unreasonable.
o Charan Lal Sahu v. Union of India (Bhopal Gas Tragedy): The
government's role as victim representative was upheld due to the doctrine of
necessity, despite potential conflict of interest.
2. Legislative Functions: Natural justice doesn't apply to legislative actions that affect
the general public, rather than specific individuals.
3. Emergency Situations: In urgent situations where immediate action is necessary, a
fair hearing might be temporarily suspended.
4. Waiver: If a party voluntarily gives up their right to a hearing, it cannot later claim a
violation of natural justice.

Speaking Orders: Unveiling the Rationale Behind Decisions

A "speaking order" is a decision by a court, tribunal, or administrative authority that includes
the reasons behind the decision. It's not merely a pronouncement of the outcome but also an
explanation of the thought process leading to it.

Importance

 Third Principle of Natural Justice: Giving reasons for a decision is fundamental to

good administration and allows the affected party to understand the basis of the
decision and, if necessary, challenge it.
 Transparency and Accountability: Recording reasons promotes transparency, curbs
arbitrariness, and ensures decisions are based on relevant legal and factual
considerations.
 Effective Appellate Review: Without reasons, higher courts or tribunals cannot
properly review a decision, hindering the right to appeal.

General Propositions Regarding Speaking Orders

1. Statutory Obligation: If a law mandates recording reasons, the authority must do so.
2. Inference from Circumstances: Even if not explicitly required, the need for reasons
can be inferred from the case's nature.
3. Confidentiality is No Excuse: Even if proceedings are confidential, reasons must still
be recorded.
4. Essential for Appeal: When a decision is subject to appeal, reasons are even more
crucial as they form the basis for review.
5. Fair Play Demands Reasons: Even without a statutory requirement, fairness dictates
that reasons be given.
6. Relevant Reasons Suffice: Reasons need not be overly detailed but should address
the relevant issues.
7. Judicial Review of Reasons: Courts cannot interfere with an order merely because
the reasons are inadequate.
8. Intervention for Flawed Reasons: Courts can intervene if reasons are factually
incorrect, legally unsound, or irrelevant.
9. Affirmation Doesn't Need New Reasons: An appellate authority affirming a lower
court's decision doesn't need to provide new reasons.
10. Reversal Requires Reasons: If an appellate authority overturns a lower court's
decision, reasons must be provided.
11. Validity Based on Recorded Reasons: An order's validity is assessed based on the
recorded reasons, not subsequent explanations.
12. Invalidity Due to Lack of Reasons: Not recording reasons can sometimes, but not
always, invalidate an action.
13. No Vague Generalities: The duty to record reasons is a responsibility, not to be
discharged with vague statements.
14. No Guesswork Allowed: If reasons aren't recorded, courts cannot speculate about the
decision's rationale.
15. Restricted to Public Law: The doctrine of speaking orders applies to public law, not
private law matters like arbitration.
16. Natural Justice Principle: The requirement to record reasons is a fundamental
principle of natural justice.
17. Communication to Aggrieved Party: Reasons should typically be communicated to
the affected party.
18. Reasons Must Exist, Even if Not Communicated: Even if not communicated for
reasons of public interest, reasons must still be documented.
19. Judicial Scrutiny: Reasons are always subject to review by the courts.
Administrative Discretion

Shifting Paradigm: From Laissez-Faire to Welfare State

The traditional "hands-off" approach of the state (laissez-faire) has evolved into a more
involved "welfare state." This shift has led to a significant expansion of governmental
functions and the powers granted to administrative authorities.

Administrative Discretion: A Double-Edged Sword

Administrative discretion refers to the flexibility given to officials to make decisions based
on their judgment and expertise within the boundaries of the law. This discretion is crucial for
adapting to diverse situations, but it also carries the risk of potential abuse.

The Triple Role of Administration

Modern administration performs a multifaceted role:

 Executive: Implements laws passed by the legislature.

 Legislative: Creates rules and regulations under delegated authority.
 Judicial: Interprets laws through administrative tribunals. This concentration of
powers necessitates checks and balances to prevent misuse.

Judicial Review: A Guardian of Legality

Judicial review is the court's power to scrutinize the actions of other branches of government,
particularly the executive and legislative branches. It's a mechanism to ensure that
administrative decisions comply with the law and fundamental rights.

Grounds for Judicial Review

While not an appeal process, judicial review examines the decision-making process itself.
Lord Diplock's classification offers three primary grounds:

1. Illegality: The decision-maker has exceeded their authority or misinterpreted the law.
2. Irrationality: The decision is so unreasonable that no reasonable person could have
reached it.
3. Procedural Impropriety: The decision-making process was flawed, violating
principles of natural justice or fairness.

Lord Brightman emphasized that judicial review focuses on the process, not the decision
itself, to avoid usurping the authority of administrative bodies.

Judicial Review in India

Indian courts interfere with administrative discretion when there's:

  Failure to exercise discretion: The authority refuses to make a decision when
required.
 Excess or abuse of discretion: The authority acts beyond their powers, acts
arbitrarily, or uses their discretion for improper purposes.

Important Considerations

 Proportionality: Courts may also assess whether a decision's impact is proportionate

to the intended objective (increasingly recognized in Indian jurisprudence).
 Deference: Courts generally defer to the expertise of administrative bodies, but they
won't hesitate to intervene if there's a clear violation of the law or fundamental rights.
 Balancing Act: Judicial review aims to strike a balance between respecting
administrative autonomy and upholding the rule of law.

Administrative Discretion: The Need for Balance

In modern welfare states, administrative authorities are often granted discretionary powers to
address complex issues. Discretion allows for flexibility and adaptability in decision-making.
However, it also creates a potential for misuse.

Indian Approach to Administrative Discretion

India has developed a framework to control administrative discretion, with the judiciary
playing a crucial role. The courts intervene at two stages:

1. Control at the stage of delegation of discretion: Courts assess whether the law
granting discretionary power is constitutional and doesn't violate fundamental rights.
If the law confers overly broad powers, it might be declared ultra vires (beyond the
legal power or authority) under Articles 14 and 19 of the Constitution.
2. Control of the exercise of discretion: Courts examine how administrative authorities
use their discretion. Improper exercise of discretion includes:
o Mala fides: Acting with bad intentions or ill will.
o Improper purpose: Using power for a reason not intended by the law.
o Irrelevant considerations: Basing decisions on factors not relevant to the
purpose of the power.
o No material: Making decisions without sufficient evidence or facts.
o Misdirection of law and fact: Misinterpreting legal provisions or
misconstruing facts.
o Unreasonableness: Making decisions that are so illogical or disproportionate
that no reasonable person would have made them.

Specific Grounds for Judicial Intervention

 Mala Fides:
o Pratap Singh v. State of Punjab: The Supreme Court quashed an order as it
was found to be motivated by the Chief Minister's personal grudge against the
appellant.
o G. Sadanandan v. State of Kerala: A detention order was quashed due to the
allegation of mala fide intent, as the officer's brother was a competitor in the
same business.
  Improper Purpose:
o R.L. Arora v. State of Uttar Pradesh: The government's order to acquire
land was quashed as it did not serve the intended public purpose under the
Land Acquisition Act.
 Irrelevant or Relevant Considerations:
o Barium Chemicals Ltd. v. Company Law Board: An investigation order
was quashed as it was based on grounds not mentioned in the relevant statute.
 No Material:
o Administrative actions must be based on sound evidence and reasoning.
 Misdirection of Law and Fact:
o Courts can intervene if authorities misinterpret the law or facts.
 Unreasonableness:
o Air India v. Nergesh Meerza: A regulation terminating the services of an air
hostess due to pregnancy was deemed unreasonable and struck down.
 Proportionality:
o Ranjit Thakur v. Union of India: The Supreme Court quashed an army
official's court-martial as the punishment was disproportionate to the offense
committed.

Key Points to Remember

 Administrative discretion is essential for effective governance but must be exercised

within the limits of the law and for the intended purpose.
 Courts play a crucial role in checking the abuse of discretion to ensure fairness,
justice, and the rule of law.
 Judicial review aims to strike a balance between respecting administrative autonomy
and protecting individuals from arbitrary or unreasonable decisions.

Administrative Discretion

 Meaning: The authority given to administrators to make decisions and choices within
legal boundaries, often based on their judgment and the specific circumstances of a
case.
 Concerns: The lack of clear statutory guidelines or conditions for exercising these
powers raises concerns about potential arbitrariness and misuse.

Concentration of Powers

 Legislative: Administration not only implements laws but can also create rules and
regulations (through delegated legislation).
 Executive: They enforce and execute these laws and regulations.
 Judicial: Administrative tribunals often interpret laws within their specific domains.
 Issue: This concentration of all three powers within the administration raises
questions about checks and balances.

Judicial Review

 Definition: The power of the courts to review actions of other branches of

government, including the administration.
  Purpose: To ensure administrative decisions are lawful, reasonable, and procedurally
fair.
 Not Appellate: Judicial review doesn't re-decide the merits of a case, but rather
examines the legality and process of the decision.

Grounds for Judicial Review

 Illegality: When administrative action exceeds its legal authority or violates

established laws.
 Irrationality: A decision so unreasonable that no sensible person would have made
it.
 Procedural Impropriety: Failure to follow proper procedures, such as denying a fair
hearing or ignoring relevant facts.
 Proportionality (emerging): The administrative action must be proportionate to the
objective it seeks to achieve.

Indian Context

 Courts Intervene When:

o Failure to exercise discretion: An authority refuses to make a decision when
they are required to.
o Excess or abuse of discretion: The authority acts beyond their powers, acts
with bad faith, or considers irrelevant factors.

Key Points to Remember

 The shift to a welfare state has vastly increased administrative discretion.

 While necessary for flexibility, this discretion raises concerns about potential misuse.
 Judicial review is a crucial safeguard to ensure administrative action remains within
the bounds of law, reason, and fairness.

pen_spark

Administrative Discretion

 Coke's Definition: Discretion is the wisdom to discern truth from falsehood, right
from wrong, and to make decisions based on sound judgment, not personal whims.
 In Practice: Administrative authorities use discretion to make decisions considering
not only the evidence but also policy, practicality, and the specific powers granted to
them.

Judicial Review

 Role of Courts: Courts have the power to review and potentially invalidate actions
taken by other government branches, including administrative decisions, if they are
unconstitutional or illegal.
 Types in India: Judicial review covers legislative acts, judicial decisions, and
administrative actions.

Failure to Exercise Discretion

  Core Principle: When an authority is given discretionary power, they have a duty to
actually use that discretion and make informed decisions.
 Negative Consequences: Failure to exercise discretion renders the action invalid or
"bad."

Forms of Failure to Exercise Discretion

1. Sub-delegation:
o The Issue: An authority delegates its discretionary power to someone else,
even though the law intended for them to exercise it personally.
o Exceptions: Sub-delegation can be valid if explicitly allowed by the law.
o Key Test: Whether the final decision rests with the original authority or not.
2. Imposing Fetters on Discretion:
o The Issue: Instead of considering each case individually, the authority creates
rigid rules or policies that they apply mechanically to all situations.
o Problem: This eliminates the exercise of judgment and discretion required by
law.
3. Acting under Dictation:
o The Issue: The authority acts based on the orders of a superior, not their own
judgment.
o Concern: This abdicates their responsibility to make independent decisions.
4. Non-application of Mind:
o The Issue: The authority makes a decision without carefully considering the
facts and circumstances of the specific case.
o Consequence: The decision can be seen as arbitrary or careless.
5. Power Coupled with Duty:
o The Issue: Even when the law uses permissive language (like "may"), the
authority might still be obligated to exercise their discretion under certain
circumstances.

Key Takeaways

 Purpose of Discretion: Discretion allows for flexibility and tailored decision-making

within the legal framework.
 Importance of Judicial Review: Judicial review ensures that administrative
authorities use their discretion responsibly and do not act arbitrarily or illegally.
 Failure to Exercise Discretion: There are various ways an authority can fail to
exercise their discretion, all of which can render their actions invalid.
What is Tortious Liability?
Tortious liability refers to the legal responsibility of the government (or any entity) for
wrongful acts or omissions that cause harm to others. This can include negligence, trespass,
defamation, and other civil wrongs.

How Article 300 Deals with Tortious Liability

 Government Can Sue and Be Sued: Article 300(1) states that the government can
initiate legal action and be the subject of legal action just like any other legal entity.
 Extent of Liability: The government's liability is similar to that of the Dominion of
India and corresponding provinces/states before the Constitution was enacted.
 Parliament/State Can Make Laws: Article 300(1) allows Parliament or state
legislatures to pass laws regarding the government's liability.

Key Case Laws

 P and O Navigation Company v. Secretary of State for India: This case

established the principle of "sovereign immunity," stating the government is not liable
for harm caused while performing "sovereign" functions (like defense or lawmaking)
but can be held responsible for actions during "non-sovereign" functions (like
commercial activities).
 Nobin Chunder Dey v. Secretary of State: This case further reinforced the
distinction between sovereign and non-sovereign functions.

Other Relevant Provisions

 Article 294(4): This article indirectly acknowledges that the government can be held
liable for contractual obligations and "otherwise" (which includes torts).
 Section 80 of CPC: This section requires a two-month notice period before a suit can
be filed against the government.
 Section 82 of CPC: This section mandates a three-month waiting period before
executing a decree against the government.
 Article 112 of the Limitation Act: This article sets a 30-year limitation period for
suits by or on behalf of the government.

Key Takeaways

 Article 300 is the foundation: It outlines the government's capacity to sue and be
sued.
 Sovereign Immunity is Key: This doctrine is central to understanding the
government's liability in torts, but it is not absolute.
 Distinction between Sovereign and Non-sovereign Functions: This is crucial for
determining the government's liability in specific cases.
 Other Laws Matter: The Code of Civil Procedure and the Limitation Act contain
specific provisions regarding suits against the government.
Tortious liability of government, Sovereign and Non-Sovereign
Functions, act of state
Introduction

 Sovereign Immunity: A legal doctrine that historically shielded the government from
liability for wrongful actions.
 Rationale: Rooted in the idea that "the king can do no wrong" and that the state
cannot be sued in its own courts.
 Evolution in India: Courts have progressively narrowed the scope of sovereign
immunity to ensure victims receive compensation for legitimate claims.

Sovereign vs. Non-Sovereign Functions

 Sovereign Functions: Acts carried out by the state where it is not answerable to the
courts. Examples include:
o Defense of the country
o Maintenance of armed forces
o Maintaining peace and order
o Taxation
o Police functions
o Legislative functions
o Administration of law and policies
o Granting pardons
 Non-Sovereign Functions: Activities where the state can be held liable for wrongful
actions, just like a private individual. These are often commercial or contractual in
nature.

Challenges in Differentiation

The line between sovereign and non-sovereign functions has become increasingly blurred.
Early cases like Peninsular and Oriental Steam Navigation Co. established this distinction
but didn't provide clear criteria.

Important Judgments: Distinguishing Sovereign & Non-Sovereign Functions

These landmark cases illustrate how courts have interpreted the nature of different state
functions:

 Performance of Statutory Duty: The state is not liable for wrongful acts committed
by officials while performing statutory duties, as seen in Shivbhajan Durga Prasad v.
Secretary of State.
 Maintenance of Public Paths: The state is generally not liable for issues related to
public road maintenance, as this is considered a sovereign function (McInerny v.
Secretary of State).
 Maintenance of Military Roads: This is also considered a sovereign function, as it
relates to defense and national security (Secretary of State v. Cockcraft).
  Commandeering Goods during War: Acts like seizing goods for war efforts are
categorized as sovereign functions, exempting the state from liability (Kessoram
Poddar & Co. v. Secretary).
 Administration of Justice: Judicial officers are immune from liability for actions
taken in their official capacity, but not for acts outside their judicial role.

Key Takeaways

 Sovereign Immunity: While the doctrine has been eroded over time, it still holds
relevance in determining the state's liability.
 Distinction is Crucial: The categorization of a function as sovereign or non-
sovereign is key in deciding whether the state can be held accountable for its actions.
 Judicial Interpretation: Courts have played a significant role in defining and
refining the boundaries of sovereign immunity through various judgments.
Contractual Liability
Introduction

 Shift in Perspective: Historically, the English concept of "the King can do no wrong"
(sovereign immunity) provided broad protection to the government from legal
liability.
 Modern Approach: In India, the government (Union and States) is treated as a legal
person, capable of entering into contracts and being held liable for breaches.

Constitutional Provisions

 Article 298: Confers power on the government to engage in trade, business, and
property transactions, including making contracts.
 Article 299(1): Mandates that government contracts must be:
o Expressed to be made by: The President or Governor (depending on the level
of government)
o Executed by: A person authorized by the President or Governor
o Expressed in the name of: The President or Governor

Requirements for a Valid Government Contract

1. Written Contract: Oral contracts are not binding on the government.

o Case Law: Union of India v. N.K. (P) Ltd. (contract invalid because entered
into by an unauthorized officer).
2. Execution by Authorized Person: Only a person authorized by the
President/Governor can enter into contracts on behalf of the government.
3. Expression in the Name of President/Governor: Even if executed by an authorized
person, the contract is not enforceable if not expressed in the name of the
President/Governor.
o Case Law: Bhikraj Jaipuria (contracts not enforceable even though made by
an authorized person because not expressed in the name of the Governor-
General).

Consequences of Non-Compliance

 Contract Unenforceable: A contract not fulfilling these requirements is not legally

valid and cannot be enforced against the government.
 No Ratification: The government cannot simply "ratify" an invalid contract to make
it enforceable (Mulamchand v. State of M.P.).
 Quasi-Contractual Liability: In some cases, the court may invoke the principle of
"unjust enrichment" under Section 70 of the Indian Contract Act to provide
compensation to the aggrieved party.

Quasi-Contractual Liability and Unjust Enrichment

 Concept: Even without a valid contract, if one party benefits at the expense of
another, the court can order compensation to prevent unjust enrichment.
  Case Law: Orient Paper Mills Ltd. v. State of Orissa (refund not granted to a dealer
who had passed on the burden of an illegal tax to the purchaser).

Additional Considerations

 Grant of State Largess: The government's discretion in granting benefits like

licenses or permits is subject to judicial review to ensure fairness and prevent
arbitrariness.
 Contracts of Service: These are not governed by Article 299 but by relevant service
rules and regulations.
o Case Law: Roshan Lal Tandon v. Union of India (emphasized the unique
nature of the government-servant relationship).
 Unconscionable Contracts: Courts won't enforce government contracts that are
arbitrary, unreasonable, or against public policy.
 Statutory Contracts: Contracts made under a specific statute are governed by that
statute, not Article 299.

Vicarious Liability
 Definition: A situation where one person (e.g., an employer) is held legally
responsible for the wrongful acts of another person (e.g., an employee) if those acts
were committed during the course of employment.
 Rationale: The principle is based on the idea that the employer benefits from the
employee's work and should also bear the risks associated with it.

Vicarious Liability of the State

 Foundation: Article 300 of the Indian Constitution outlines the state's capacity to sue
and be sued.
 Historical Context: The East India Company's transition from a commercial entity to
a sovereign power influenced India's approach to state liability.
 Key Principles:
o Respondeat superior: "Let the master answer" – the employer is responsible
for the employee's actions.
o Qui facit per alium facit per se: "He who acts through another does it himself"
– the actions of an agent are attributed to the principal.
o Socialization of Compensation: The burden of compensating victims should
fall on the state, which is better equipped to handle it.

Sovereign and Non-Sovereign Functions

 Sovereign Functions: Acts of the state related to its core functions like defense,
foreign relations, lawmaking, etc. Generally, the state is not liable for torts committed
in the exercise of sovereign functions.
 Non-Sovereign Functions: Activities like commercial ventures or welfare projects.
The state can be held vicariously liable for torts committed by its employees in the
course of these functions.
 Distinction Challenged: The line between these two categories has blurred, leading
to debates and inconsistencies in judicial decisions.
Pre-Constitution Judicial Decisions

1. Peninsular & Oriental Steam Navigation Company v. Secretary of State: This

case introduced the distinction between sovereign and non-sovereign functions. The
state was held liable only for acts done in the course of non-sovereign functions.
2. Secretary of State v. Hari Bhanji: This case limited state immunity to "acts of state"
(acts done in the exercise of sovereign power).
3. Other Cases: Several other cases grappled with the issue of state liability, with
varying interpretations of what constituted a sovereign function.

Key Takeaways

 Evolution of State Liability: India's legal framework has evolved from the English
common law principle of sovereign immunity towards a more nuanced approach.
 Vicarious Liability is Key: The state can be held responsible for the wrongs
committed by its employees in the course of their employment, but the scope of this
liability depends on the nature of the function involved.
 Debate on Sovereign vs. Non-Sovereign Functions: This distinction remains a
contentious issue, with ongoing debates about its relevance and application in modern
times.