Camparative administrative

law
Axita maam
Module 1
Historical perspective and evolution of Administration Law.

Administrative law in India is often traced back to ancient historic times

during the reign of the Mauryas and therefore the Gupta dynasties of
Ancient India had centralised administrative system. Following this, came
the Mughals who had somewhat similar administrative system.
The kings within the ancient period of history were mostly concerned
majorly about three things-
• Protecting the state from external aggression
• Maintaining law and order and peace
• Collecting taxes.
The rule of “Dharma” was observed by kings and Administrators and no-
one claimed any exemption from it. the essential principle of natural justice
and fair play were followed by the kings and officers because the
administration might be run only on those principles accepted by Dharma,
which was even a wider word than “Rule of Law” or “Due process of Law”.
Yet, there was no law is existence within the sense during which we study it
today.
With the arrival of British in India, there was the arrival of recent law.
Establishment of Malay Archipelago Company increased the government’s
powers manifold. Several Acts, legislatures and statutes were brought by
British Parliament for regulating public safety, health, morality, transport
and labour relations.
With the establishment of Malay Archipelago company (EIC) and event of
British rule out India. The powers of the govt had increased. Many Acts,
statutes and Legislation were gone by British government regulating public
safety, health, morality transport and labour relations. Practice of granting
Administrative licence began with the State Carriage Act 1861. the primary
public corporation was established under the Bombay Port Trust Act 1879.
Delegated legislation was accepted by the Northern India Canal and
Drainage Act, 1873 and Opium Act 1878 proper and effective steps were
taken to manage the trade and traffic in explosives by the Indian Explosives
by the Indian Explosives Act 1884.
The exercise of granting licences began with the State Carriage Act, 1861.
the primary public corporation came into existence under the Bombay Port
Trust Act, 1879. Delegated legislation was accepted as legitimate power of
the chief in Northern India Canal and Drainage Act, 1873 and Opium Act,
1878.
In many, statutes, provisions were made with reference to holding of
permits and licences and for the settlement of disputes by the executive
authorities and Tribunals.
During the Second war, the chief powers tremendously increased Defence
of India Act, 1939 and therefore the rules made thereunder conferred ample
powers on the property of a private with little or no judicial control over
them, additionally to the present, the govt issued many orders and
ordinances, covering several matters by way of Administrative instructions.
Post-Independence, India adopted a state approach, which successively
increased state activities. With increase in power and activity of the govt
and administrative authorities increased so did the necessity for ‘Rule of
Law’ and ‘Judicial Review of State actions’.
Administrative law has become extremely crucial within the developed
society since the connection of the executive authorities and therefore the
people has become complex. So as to manage these complexities some law
is important, which may help maintain regularity certainty and check
misuse of powers vested within the administration. This increase within the
spectrum of responsibilities ushered in an administrative age and an era of
law.
Dichotomy and relationship between Constitutional Law and Administration
Law: views of Keith.
Keith said that it is impossible to distinguish administrative law from
constitutional law, and all attempts to do so are artificial. Keith also said
that constitutional law describes the government at rest, while
administrative law describes it in motion. Constitutional law governs the
highest parts of government: the executive, judicial, and legislative
branches. Administrative law governs the lower agencies in government
that report to these main branches, especially the executive branch. The
doctrine of watershed establishes a proper demarcation between both
these laws. When one draws two circles marking one as Constitutional law
and other as the administrative law, they may overlap at some areas and
these overlapping areas are known as watersheds.
According to Holland, constitutional law describes the various organs of the
government at rest, while administrative law describes them in
motion. Holland contends that the structure of the executive and the
legislature comes within the purview of constitutional law whereas their
functioning is governed by administrative law.

Jennings puts forward another view, which says that 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 relationships and relationship of these organs with the
individual. [5] Simply put, constitutional law lays down the fundamentals of
the workings of government organs while administrative law deals with the
details.

The fundamental constitutional principle, inspired by John Locke, holds that

“the individual can do anything but that which is forbidden by law, and the
state may do nothing but that which is authorised by
law”. [6] Administrative law is the chief method for people to hold state
bodies to account. People can apply for judicial review of actions or
decisions by local councils, public services or government ministries, to
ensure that they comply with the law. The first specialist administrative
court was the Conseil d’État set up in 1799, as Napoleon assumed power in
France.

Basic principles in the context of Administrative Law: Rule of Law &

Separation of Powers
Both the constitutional and administrative law is a part of the public law in
the modern State. It is logically impossible to distinguish between
administrative law from constitutional law and all attempts to do so are
artificial. Till recently, the subject of administrative law was dealt with &
discussed in the books of constitutional law and no separate & independent
treatment was given to it.
Many definitions of administrative law, was included in constitutional law.
According to Holland, the 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 legislative and
executive comes within the preview of the constitutional law but their
functioning comes within the sphere of administrative law.
On one hand administrative law deals with the organization, function,
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 relationships and
relationship of these organs with the individuals.
The relationship between the administrative law and
constitutional law is not very watertight, sometimes
administrative law invades into the territory of constitutional law,
so it is very important for jurists, scholars and law students to
develop a proper understanding between the relationships
between these two. Both constitutional law and administrative
law are parts of the public law which shows that constitutional
law is the mother of administrative law and it cannot be totally
separated from each other.

In constitutional law, arbitrary action is limited by the norms and

principles of administrative law of fairness, reasonable and
justness. Administrative law deals with the organizations, powers,
functions, and duties of administrative authorities, on the other
hand, constitutional law deals with the general principles relating
to the organization and powers of various organs of the state and
the relationship of these organs with the individuals. The
constitution describes the various organs of the government at
rest, while administrative law describes them in motion. It may
be pointed out that constitutional law deals with the rights and
administrative law focus on public needs.
It is a necessity of time to draw a line of between these two laws
in order to define the territory of the functioning of the
jurisdiction of both the laws.

Importance
The doctrine of water shades is very important as it gives a base
to establish a line of proper demarcation of the proper boundaries
for the functioning of both the laws. It defines the relationship
between the constitutional law and Administrative law which was
defined by various English authors like Dicey and Holland which is
already discussed above. Their definition clearly states that the
laws are dependent and interconnected to each other.

Anatomy of administrative action, Quasi legislative, Quasi Judicial & purely

administrative action

Judicial & other controls on the aforesaid administrative actions.

Judicial control over administration is the process by which judges monitor

government workers to ensure that they follow the law.
Judicial control is exercised by way of judicial writs and judicial
review. Some methods judges can use to control administration include:

 Reviewing government rules and policies: Judges can cancel rules

that violate the law.
 Issuing writs: Judges can issue orders to government workers called
writs. Writs tell government workers to do or not do something.

In India, the power of judicial review of administrative action is derived from

Article 226 of the Constitution. This empowers the High Courts to issue
writs for the enforcement of fundamental rights and to remedy any violation
of legal rights. Article 32 grants the Supreme Court similar powers.
Judicial review is the authority of Courts to declare void the acts of the
legislature and executive, if they are found in violation of provisions of the
Constitution.
The Legislative Control In India we have Parliamentary system of government
which is based on the principle of collective responsibility. The ministers are
responsible to the parliament for their policies and actions. Thus, the legislative
control over administration under such a system is only indirect, that is, through
ministers. The officials (administrators) cannot be held directly responsible to the
parliament. They remain behind the veil of ministerial responsibility and remain
anonymous. Thus it is the minister who takes responsibility for the actions of the
administrators working under his ministry/department. The parliament exercises
control over administration in the following ways. i) General control over the
policies and actions of the government through questions, discussions, motions and
resolutions. ii) Financial control through budget and audit. iii) Detailed control
over financial, administrative and legislative matters through committees. The
various technique or modes or tools of parliamentary control are as follows:- Law
Making The principle function of the parliament is to make laws. The parliament
lays down the policies of the government by making, enacting, altering , amending
or repealing the laws. Parliamentary laws determine and condition the
organisation, structure, powers, functions and procedures of the administration.
However, the control exercised by the parliament through the law making process
is in broad and general terms. The parliament makes laws in a skeleton form and
authorises the executive to make detailed rules and regulations within the
framework of the parent law. This is what is commonly known as delegated
legislation or executive legislation or subordinate legislation. The rules and
regulations thus made are laid before the parliament for its consideration.
. EXECUTIVE CONTROL Executive control over administration means the
control exercised by the chief executive (political executive) over the
functioning of bureaucracy. Such control is exercised in India and Britain by
the cabinet and ministers (individually). In parliamentary government the
cabinet is collectively responsible to the parliament for its policies and
actions. Each minister is also individually responsible for the acts of
omission and commission in his ministry/department. In other words,
ministerial responsibility is the basic feature of the parliamentary
government. For this very reason the political executive (cabinet and
ministers) exercise control over administration. Unlike the legislative control
which is general, periodical, informational and reportive, the executive
control is fuller in content, constant, continuous, simulative, corrective and
directive in nature. The executive exercises control over administration
through following means:. i. Policy Making ii. Budgetary System iii.
Personnel Management & Control iv. Delegated Legislation v. Civil
Services Code vi. Staff Agencies vii. Appeal to Public Opinion 13 Political
Direction (Policy-making) :In India, the cabinet formulates administrative
policies and enjoys the power of direction, supervision and coordination
with regard to its implantation. The minister, who is incharge of one or more
departments, lays down the departmental policy and directs, supervises
and coordinates its implementation by the administrators. Thus, through
political direction, the minister controls the operations of administrative
agencies working under his ministry/department(s). The department
officials are directly and totally responsible to the minister. In the USA, the
same function is performed by the President and his secretaries. Budgetary
System : The executive controls the administration through budgetary
system. It formulates the budget, get it enacted by the parliament, and
allocates the necessary funds to the administrative agencies to meet their
expenditure. In all such activities, the ministry of finance (which is the
central financial agency of the Government of India) plays an important
role. It exercises financial control over administration in the following
ways :- 1. Approval of policies and programmes in principle. 2. Acceptance
of provision in the budget estimates. 3. Sanctioning expenditure subject to
the powers which are delegated. 4. Providing financial advice through the
integrated Financial Advisor. 5. Reappropriation of grants (i.e. transfer of
funds from one sub-head to another). 6. Internal audit system. 7.
Prescribing a financial code to be followed by the spending authorities.
Appointment and Removal (Personnel Management and Control) : This is
the most effective means of executive control over administration. The
executive plays an important role in personnel management and control
and enjoys the power of appointment and removal of top administrative. In
this function, the executive (in India) is assisted by the Department of
Personnel and Training, the ministry of Finance, and the Union Public
Service Commission. The Department of Personnel and Training is the
central personnel agency in India and plays a major role in personnel
management and control. At the highest level, the ministers play an
important role in the selection and appointment of secretaries and heads of
departments. Thus they (i.e. ministers) exercise full control over the
administration of departments under their charge through such appointees.
In the USA also, though the President has to seek the approval of senate
for effecting appointments to top posts, he has the exclusive power of
removing them from office. The office of Personnel Management (OPM) in
the US plays an important role in personnel management and control.
Delegated Legislation : Also known as the executive legislation, it is an
important tool in the hands of the executive to exercise control over
administration. The Parliament makes laws in skeleton forms and
authorises the executive to fill in minor details. Therefore, the executive
makes rules, regulations and byelaws which have to be observed by the
administrators in execution of the law concerned. Ordinances : The
Constitution of India authorises the chief executive, that is, the President to
promulgate ordinances during the recess (interval) of Parliament to meet
situation demanding immediate action. An ordinance is as authoritative and
powerful as an act of Parliament and hence, governs the functioning of
administration.
. JUDICIAL CONTROL i. Power of Judicial Review ii. Extra Ordinary Remedies :
Writs The judicial control over administration emanates from the concept of ‘rule
of law’ A.V. Dicey’s the British constitutional lawyer, in his famous book
Introduction to the study of the Law of the Constitution gave a classic exposition
of this concept as follows. “No man is punishable or can be lawfully made to suffer
in body or goods except for a distinct breach of law established in the ordinary
legal manner before the ordinary courts of the land... no man is above the law,
but ... every man, whatever be his rank or condition, is subject to the ordinary law
of the realm and amenable to the jurisdiction of the ordinary tribunals... every
official from the Prime Minister down to a constable or a collector of taxes, is
under the same responsibility for every act done without legal justification as any
other citizen. The general principles of Constitution... are with us the result of
judicial decision determining the rights of private persons in particular cases
brought before the courts.” Thus according to Dicey, the rule of law signifies three
different but inter related concept. Rule of Law : (i) The supremacy of law :
Supermacy of law is the first principle of rule of law. It signifies the predominance
of regular law as opposed to prevalence of wide, arbitrary, discretionary power it
negates the existence- arbitrariness and any form of sovereign prerogative . (ii)
Equality before law: Equality before the law, that is, equal subjection of all citizens
(rich or poor, high or low, official or non- official) to the ordinary law of the land
administered by the ordinary law courts. 15 (iii) Predominance of Legal Spirit :
The primacy of the rights of the individual, that is, the Constitution, is the result of
the rights of the individual as defined and enforced by the courts of law rather than
the Constitution being the source of the individual rights. Thus, the rights of the
citizens of Great Britain flow from the judicial decisions, not from the
Constitution. The Indian Constitution has not accepted the maxim that “The king
can do no wrong” and all administration authorities are subject to be jurisdiction of
ordinary civil courts of the land. Moreover no person can be deprived of his life
and personal liberty, except according to be procedure established by law.
Additionally, all rules, regulations bye- laws etc. are covered by the term law and
can be challenged before the court which can strict them down as unconstitutional.
The judiciary exercises control over administration through the following modes:
1) Power Of Judicial Review : It is a process in which courts can pronounce upon
the validity of an action taken by executive. Judicial Review is inherent in the
administrative process as it is basic structure of constitution and thus cannot be
abrogated even by amending the Constitution. It is the power of the courts to
examine the legality and constitutionality of administrative acts. On examination,
if they are found to be violative of the constitution (ultra vires), they can be
declared as illegal, unconstitutional and invalid by the court. ".1 Doctrine of Ultra
Vires : Traditionally, the basis of judicial control of acts and decisions of public
authorities both under common law and Indian laws has been doctrine of ultra
vires. The term ultra vires is derived from two words ultra and vires. Ultra means
beyond and vires means power. Precisely speaking it means any act or decision by
administrative authority must be exercised within the limit prescribed by law. Any
act/decision which is beyond the power shall be ultra vires and hence void-ab-
initio.
RULE OF LAW AND SEPARATION OF POWER……………..
MODULE 2
Rule against bias
Nemo in propria causa judex , esse debet, i.e.; no one should be made a
judge in his own cause. It is popularly known as the rule against bias. It is
the minimal requirement of the natural justice that the authority giving
decision must be composed of impartial persons acting fairly, without
prejudice and bias. Bias means an operative prejudice, whether conscious
or unconscious, as result of some preconceived opinion or predisposition,
in relation to a party or an issue. Dictionary meaning of the term bias
suggests anything which tends a person to decide a case other than on the
basis of evidences.

The rule against bias strikes against those factors which may improperly
influence a judge against arriving at a decision in a particular case. This
rule is based on the premises that it is against the human psychology to
decide a case against his own interest. The basic objective of this rule is to
ensure public confidence in the impartiality of the administrative
adjudicatory process, for as per Lord Hewart CJ, in R v. Sussex[1], justice
should not only be done, but also manifestly and undoubtedly seen to be
done.
Types of bias:
Bias manifests itself variously and affects a decision in a variety of ways. It
can broadly be classified into six categories:
Personal Bias
Pecuniary Bias
Subject Matter Bias
Departmental Bias
Preconceived Notion Bias
Bias On Account Of Obstinacy.

Dealing with each kind in detail:

Personal Bias:
It arises out of the personal or professional relationship of friendship or
hostility between the authority and the parties. Its the human nature that we
try to give favorable decision to our friends or relatives, whereas use the
same as a weapon against the enemies.
Apex courts decision in Mineral Development Corporation Ltd. V. State of
Bihar[2], serves as a good illustration on the point. Here, the petitioners
were granted a mining lease for 99 years in 1947. But in 1955, government
quashed the license. The petitioners brought an action against the minister
passing this order on the behalf of government, on the ground that, the
petitioner in 1952 opposed the minister in General election. Therefore, on
the account of political rivalry, the minister passed such an order, and
hence the order was suffered from personal bias. Similarly in Baidyanath
Mohapatra v. state of Orissa[3], the Supreme Court quashed the order of
the tribunal confirming premature retirement on the ground that the
chairman of the tribunal was also a member of the review committee which
had recommended premature retirement.
Pecuniary Bias:
Any financial interest howsoever small it may be is bound to vitiate the
administrative action. The judicial opinion is unanimous as to it.
In R v. Hendon Rular District Council[6], the court in England quashed
the decision of the planning commission, where one of the members was
an estate agent who was acting for the applicant to whom permission was
granted.

In Jeejeebhoy vs. Astt. Collector,Thana[7] the CJ reconstituted the

bench ,when it was found that one of the members of the bench was the
member of the cooperative society for which the land has been acquired.

But this rule is not applicable where the judge, though having a financial
interest, has no direct financial interest in the outcome of the case. this is
evident from the Court of Appeal decision in R v. Mulvhill[8], where the
court refused to set aside the conviction of an accused on a charge of
robbery in a bank on the ground that the trial judge had shares in that bank.
In such cases unless there is a likelihood of bias administrative action will
not be quashed.
Subject Matter Bias
The situations where the deciding officer is directly or indirectly in the
subject matter of the case.
In R v. Deal Justices ex p. Curling[9], the magistrate was not declared
disqualified to try a case of cruelty to an animal on the ground that he was
a member of the royal society for the prevention of cruelty to animals as
this did not prove a real likelihood of bias.
The supreme court in cases like murlidhar v. kadam singh and sub –
committee of judicial accountability v. Union of India, followed the
same line. But in Gulla palli Nageshwara Rao v. APSRTC[10], the
Supreme Court quashed the decision of A.P. government . nationalizing
road transport on the ground that the secratery of the transport department
who was given a hearing was interested in the subject matter. It may be
mentioned that in USA and England, predisposition in favor of a policy in
the public interest is not considered as legal bias vitiating administrative
actions.

4. Departmental Bias
The problem of departmental bias is something which is inherent in the
administrative process, and if it is not effectively checked, it may negate the
very concept of fairness in the administrative proceeding.

In Gullapalli Nageswara Rao v. APSRTC the order of the government

nationalizing road transport was challenged in this case. One of the
grounds for challenge was that the Secretary of the Transport Department
who gave the hearing was biased, being the person who initiated the
scheme and also being the head of the department whose responsibility it
was to execute it. The court quashed the order on the ground that, under
the circumstances, the Secretary was biased, and hence no fair hearing
could be expected.

Principle of fair hearing

The principle of fair hearing, also known as the rule of Audi Alteram Partem, is a
key concept of natural justice. It states that all parties should have the opportunity
to be heard before a decision is made.
The principle of fair hearing includes several aspects:
 Prior notice: The right to adequate notification of the date, time, and place of
the hearing
 Opportunity to be heard: The right to present one's own case
  Opportunity to present evidence: A person should have the right to submit
evidence to support their case
 Impartial decision-maker: The decision-maker should be neutral and
unbiased
The rule against bias states that decision-makers and judges should not have any
personal, financial, or preconceived feelings or opinions that could influence their
judgment in a case.
Reasoned decision
A reasoned decision is a decision that includes reasons for its support. It's also
called a speaking order.
Reasoned decisions are considered the third pillar of natural justice. The other two
pillars are "nemo debet esse judex in propria causa" and "audi alterem partem".
Reasoned decision-making is a process that groups use to check if a proposal,
existing agreement, or amendment is good enough. It also helps to determine if a
particular argument is relevant, valid, or empirically true.
Reasoned decisions are a facet of natural justice. Reasons are considered to be the
essence of a judicial decision. They act as a bridge between the facts and the
conclusion reached. Recording reasons helps to understand the rationale behind the
decision.
Every court must give reasons for its decisions. The court has to explain why, on
what facts, and on which laws it has taken these decisions. This requirement refers
to both the final judgment and various decisions during the proceedings.
Doctrine of proportionality.
The doctrine of proportionality is a legal principle in administrative law that
balances the means and outcomes of government actions. It is a vital
aspect of judicial review and a safeguard against excessive or arbitrary
state action.
The doctrine of proportionality ensures that administrative decisions are
least intrusive of the rights of the citizens. It also ensures that there is a
balance between such intrusion and the exercise of rights.
The doctrine of proportionality originated in Europe and is part of Article 14
of the Constitution of India.
The doctrine of proportionality states that the actions or measures taken by
a public authority must be proportionate to the objective pursued. In other
words, the authority should not use more force or impose more restrictions
than necessary to achieve a legitimate goal.
Doctrine of legitimate expectation
The term “legitimate expectation”, which was coined by Lord
Denning in 1969, is an expectation of an ordinary man to have
benefit or relief, which is a consequence of a promise or
representation, either express or implied, made by the
administrative authority concerned or its prior established
practice. Hence, a legitimate expectation is an expectation to be
treated in a particular way by the administrative authority or to
receive some benefit as a matter of public law, although no such
enforceable right is conferred on him under private law. Thus,
this doctrine creates a central space between ‘no claim’ and a
‘legal claim’.

The Supreme Court of India described this doctrine accurately

in Ram Pravesh Singh and Ors. v. State of Bihar and Ors. (2006),
as “a person can be said to have a ‘legitimate expectation’ of a
particular treatment, if any representation or promise is made by
an authority, either expressly or impliedly, or if the regular and
consistent past practice of the authority gives room for such
expectation in the normal course”. Thus, the Supreme Court,
through various judgements, has developed this doctrine in order
to keep a check on the abuse of administrative power by public
bodies.

Whether legitimate expectation is a legal right

There is no legal right conferred on an expectant, the person who
has a legitimate expectation, in the application of the doctrine of
legitimate expectation in administrative actions. As it is not a
legal right, it is not absolutely enforceable in all cases. This
doctrine is a concept designed by the courts; hence, it is up to
the courts to decide on its enforceability

Constitutional Remedies:
Constitutional remedies are legal mechanisms that protect and enforce the
fundamental rights of citizens. They are a fundamental right, which means they
cannot be taken away by any law passed by parliament.
Constitutional remedies include: The right to equality, Freedom from
discrimination, The right to life and liberty, and The right to constitutional
protection.
When a citizen's constitutional rights are violated, they can seek relief from the
judiciary. They can approach the courts, or even go directly to the Supreme Court,
which can issue writs for enforcing fundamental rights.
Article 32 of the Indian Constitution is considered the heart of the Indian
constitution. It states that individuals have the right to approach the Supreme Court
seeking enforcement of other fundamental rights recognized by the Constitution.
Article 226 and Article 32 of the Indian Constitution provide for the right to
constitutional remedies. This article is a fundamental right and guarantees
equality in every aspect. Constitutional remedies are available to every
citizen of India. A writ petition is a formal request made to a court for the
enforcement of a constitutional right.
Legal Provision for the Constitutional Remedies
Article 32 and Article 226 talk about constitutional remedies. Let’s discuss
them.
Article 32: Article 32 is called the heart and soul of the Indian constitution
as marked by Dr Ambedkar because it gives the power to the supreme
court to issue writs to enforce Fundamental Rights. The power to issue
writs by the Supreme Court goes under the original jurisdiction. Original
jurisdiction means the power of the court to hear a case for the first time.
Article 32 also has the power of judicial review. This means that the
supreme court can declare a law unconstitutional if it goes against any
article of the constitution.
Article 226: Article 226 gives power to the High Courts to issue writs for the
implementation of Fundamental Rights. This article also talks about
equality in every aspect. Article 226 gives a wide array of power to the high
court with its concerning jurisdiction to issue writs against different bodies
and other authorities in case of any violation of the fundamental rights.
What is a Writ Petition?
A writ petition is a legal document that is filed in a court of law to request
relief from an authority against the violation of fundamental rights. It is a
fundamental right guaranteed by article 226 and Article 32 of the Indian
Constitution which ensures equality in every aspect.
The writ petition is filed when an individual’s fundamental rights are violated
by the state or any of its agencies. It is a means to ensure that the state
respects and protects the rights of its citizens.
What are the different types of Writs?
There are five types of writs that are as follows: mandamus, habeas
corpus, quo warranto, certiorari, and prohibition. Article 32 of the Indian
Constitution gives power to the individual to take the matter to the Supreme
Court for the proper implementation of the rights conferred by Part 3 of the
Indian Constitution. It is an extraordinary remedy available to aggrieved
individuals when all other avenues have failed. Let’s discuss them one by
one.
Habeas Corpus: It is a Latin term which means ‘you have the body. It is
issued to produce a person who has been illegally detained before the
court. In the case of Rudel shah v/s State of Bihar, the court opined a new
rule to protect the fundamental right of an aggrieved party. The court put
the liability on the state to compensate the individual in case of illegal
detention.
Mandamus: It is a Latin term which means ‘we command’. It is issued to
compel a public authority to perform its statutory duty. It is also known as
the prerogative writ. In the case of Sohanlal v/s Union of India, the court
held that mandamus may be issued against private individuals as well if
they owe a public duty.
Quo Warranto: It is a Latin term which means ‘by what authority.’ It is
issued to inquire into the legality of a person holding a public office. In the
case of the Jamalpur Arya Samaj v/s DR. D Ram, the court held that the
power to issue quo warranto lies with the High Court but cannot be issued
against the private offices.
 Certiorari: It is a Latin term which means ‘to be certified’. It is issued to
quash the orders of a subordinate court or a tribunal that is exceeding its
jurisdiction. In the case of Rajasthan State Electricity Board v/s Mohanlal,
the court held that the power of judicial review can be exercised by the
apex court of the country and the High Court to keep subordinate courts
within their limits.
Prohibition: It is a Latin term which means ‘to forbid’. It is issued to
prevent a subordinate court or tribunal from exceeding its jurisdiction. In the
case of the State of Karnataka v/s Union of India, the court held that the
power to issue prohibition lies with the High Court and the Supreme Court.
Right to Constitutional Remedies is a fundamental right guaranteed by the
Constitution of India. It is a safeguard against arbitrary action by the state.
This right is available to all citizens, irrespective of their caste, creed, or
religion.
PIL
Introduction
 The expression ‘Public Interest Litigation’ has been borrowed from
American jurisprudence, where it was designed to provide legal
representation to previously unrepresented groups like the poor, the
racial minorities, unorganised consumers, citizens who were passionate
about the environmental issues, etc.
 Public interest Litigation (PIL) means litigation filed in a court of law,
for the protection of “Public Interest”, such as Pollution, Terrorism, Road
safety, Constructional hazards etc. Any matter where the interest of
public at large is affected can be redressed by filing a Public Interest
Litigation in a court of law.
 Public interest litigation is not defined in any statute or in any act. It
has been interpreted by judges to consider the intent of public at large.
 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.
 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.
 Some of the matters which are entertained under PIL are:

o Bonded Labour matters

 o Neglected Children
o Non-payment of minimum wages to workers and exploitation of
casual workers
o Atrocities on women
o Environmental pollution and disturbance of ecological balance
o Food adulteration
o Maintenance of heritage and culture
Genesis and Evolution of PIL in India: Some Landmark Judgements
 The seeds of the concept of public interest litigation were initially sown in
India by Justice Krishna Iyer, in 1976 in Mumbai Kamagar Sabha vs.
Abdul Thai.
 The first reported case of PIL was Hussainara Khatoon vs. State of
Bihar (1979) that focused on the inhuman conditions of prisons and
under trial prisoners that led to the release of more than 40,000 under
trial prisoners.

o Right to speedy justice emerged as a basic fundamental

right which had been denied to these prisoners. The same set
pattern was adopted in subsequent cases.
 A new era of the PIL movement was heralded by Justice P.N.
Bhagawati in the case of S.P. Gupta vs. Union of India.

o In this case it was held that “any member of the public or social action
group acting bonafide” can invoke the Writ Jurisdiction of the High
Courts (under article 226) or the Supreme Court (under Article 32)
seeking redressal against violation of legal or constitutional rights of
persons who due to social or economic or any other disability cannot
approach the Court.
o By this judgment PIL became a potent weapon for the enforcement of
“public duties” where executive action or misdeed resulted in public
injury. And as a result any citizen of India or any consumer groups or
social action groups can now approach the apex court of the country
seeking legal remedies in all cases where the interests of general
public or a section of the public are at stake.
o Justice Bhagwati did a lot to ensure that the concept of PILs was
clearly enunciated. He did not insist on the observance of procedural
 technicalities and even treated ordinary letters from public-minded
individuals as writ petitions.
 The Supreme Court in Indian Banks’ Association, Bombay & Ors. vs.
M/s Devkala Consultancy Service and Ors held :- “In an appropriate
case, where the petitioner might have moved a court in her private
interest and for redressal of the personal grievance, the court in
furtherance of Public Interest may treat it a necessity to enquire into the
state of affairs of the subject of litigation in the interest of justice.” Thus,
a private interest case can also be treated as public interest case.
 M.C Mehta vs. Union of India: In a Public Interest Litigation brought
against Ganga water pollution so as to prevent any further pollution of
Ganga water. Supreme Court held that petitioner although not a riparian
owner is entitled to move the court for the enforcement of statutory
provisions, as he is the person interested in protecting the lives of the
people who make use of Ganga water.
Who Can File a PIL and Against Whom?
 Any citizen can file a public case by filing a petition:

o Under Art 32 of the Indian Constitution, in the Supreme Court.

o Under Art 226 of the Indian Constitution, in the High Court.
o Under sec. 133 of the Criminal Procedure Code, in the Court of
Magistrate.
 However, the court must be satisfied that the Writ petition fulfils some
basic needs for PIL as the letter is addressed by the aggrieved person,
public spirited individual and a social action group for the enforcement of
legal or Constitutional rights to any person who are not able to approach
the court for redress.
 A Public Interest Litigation can be filed against a State/ Central Govt.,
Municipal Authorities, and not any private party. The definition of
State is the same as given under Article 12 of the Constitution and this
includes the Governmental and Parliament of India and the Government
and the Legislature of each of the States and all local or other authorities
within the territory of India or under the control of the Government of
India.
 Significance of PIL
 The aim of PIL is to give to the common people access to the courts to
obtain legal redress.
 PIL is an important instrument of social change and for maintaining
the Rule of law and accelerating the balance between law and justice.
 The original purpose of PILs have been to make justice accessible to
the poor and the marginalised.
 It is an important tool to make human rights reach those who have been
denied rights.
 It democratises the access of justice to all. Any citizen or organisation
who is capable can file petitions on behalf of those who cannot or do not
have the means to do so.
 It helps in judicial monitoring of state institutions like prisons, asylums,
protective homes, etc.
 It is an important tool for implementing the concept of judicial review.
 Enhanced public participation in judicial review of administrative action is
assured by the inception of PILs.
Certain Weaknesses of PIL
 PIL actions may sometimes give rise to the problem of competing
rights. For instance, when a court orders the closure of a polluting
industry, the interests of the workmen and their families who are
deprived of their livelihood may not be taken into account by the court.
 It could lead to overburdening of courts with frivolous PILs by parties
with vested interests. PILs today has been appropriated for corporate,
political and personal gains. Today the PIL is no more limited to
problems of the poor and the oppressed.
 Cases of Judicial Overreach by the Judiciary in the process of solving
socio-economic or environmental problems can take place through the
PILs.
 PIL matters concerning the exploited and disadvantaged groups are
pending for many years. Inordinate delays in the disposal of PIL
cases may render many leading judgments merely of academic value.

MODULE 4
Need, importance & main features of ombudsman

The primary purpose of an Ombudsman in administrative law is to ensure

transparency, fairness, accountability and adherence to legal and
procedural standards within the administrative processes of the
government.

This official is often referred to as a grievance officer. The Ombudsman’s

job is to examine the complaints made by citizens when they believe that a
government agency is not doing its job properly. In simple terms, if the
government isn’t doing things right, citizens can report their concerns to
this official, who works for the government but is independent and
impartial.

Importance of Ombudsman in Administrative Law

Regarding the importance of the Ombudsman in administrative law, it’s
essential to understand that this official is not a super administrator to
whom you can appeal just because you’re not happy with a decision made
by a government official. The main role of the Ombudsman is to investigate
complaints of mismanagement or unfair treatment.

In terms of its usefulness, think of the Ombudsman in administrative law as

a guardian of the government’s actions and a protector of regular people.
The Ombudsman looks into all complaints made by citizens when they
believe that the government is using its power improperly, not doing its job
well or being unfair. The Ombudsman has extensive authority, including
access to government records. People who file complaints don’t have to
provide evidence; the Ombudsman investigates and can provide remedies
to those who have been wronged.

The Ombudsman’s role is to make sure complaints are valid and address
them appropriately. They can even take action on their own if they see a
problem and their authority is not limited like that of a Civil Court.
Origin of Concept of Ombudsman
The idea of an Ombudsman first started in Sweden over two hundred years
ago in 1809. As the twentieth century began, other European countries
began to take notice of this system.

For instance, Finland established the Ombudsman institution in 1919,

Denmark followed suit in 1955 and Norway did the same in 1961. Many
European countries adopted the term “Ombudsman” for this role. However,
some countries, like New Zealand, used the term “Parliamentary
commission.”

In the early 1960s, the British government began to seriously consider

creating a body to address people’s complaints about public administration
and to protect against the misuse of power. In 1966, the British government
appointed a Parliamentary Commissioner for this purpose. By 1973, this
Parliamentary Commissioner also took on the role of a Health
Commissioner.

Types of Ombudsmen
In 1962, during the “All India Lawyers’ Conference,” a social reformer
named M.C. Setalvad proposed the idea of establishing an Ombudsman
system in India to improve how the government functions.

An Ombudsman can be anyone, from an inspector general to a citizen

advocate, appointed by the national legislature. Ombudsmen are also
appointed at the state, local and municipal levels.

To handle complaints in a confidential, independent and impartial manner,

the government appoints various Ombudsmen for different domains and
issues. There are several types of Ombudsmen:

Organisational Ombudsman
These Ombudsmen review, administer and investigate complaints from
employees, members or clients of public or private sector organisations
 regarding problems or policy violations. They ensure issues are properly
addressed and communicate changes and conflicts within the organisation.

Classical Ombudsman
Appointed by the government, Classical Ombudsmen deal with problems
and conflicts of the general public concerning authorities or the
government itself. They have the authority to review and address public
grievances and take appropriate actions.

Advocate Ombudsman
These Ombudsmen work in both the private and public sectors and are
focused on publicly defending and advocating for persecuted individuals or
groups. They are often found in social work entities or government
agencies and primarily address policies practised by government entities or
organisations.

Hybrid Ombudsman
Their main role is to informally investigate complaints from both private
and public sectors. They have the power to conduct investigations and
produce annual reports.

Legislative Ombudsman
As part of the government, Legislative Ombudsmen address issues, conflicts
and disputes faced by the public when dealing with government agencies
and branches. They emphasise issues related to government policies and
legislation and can propose changes based on public demands.

Powers and Functions of Ombudsman in Administrative Law

 One of the key roles of an Ombudsman is to safeguard the rights and
freedoms of citizens. The establishment of the Ombudsman position
primarily serves this purpose.
 In Scandinavian countries, the Ombudsman has an additional responsibility:
supervising the general civil administration. This duty closely ties the
Ombudsman’s role to the oversight of public administration.
 Many states, including some institutions similar to the Ombudsman,
engage in the general supervision of government functions. This oversight
is often referred to as monitoring the government’s performance.
 In certain countries, the Ombudsmen wield significant authority. For
instance, in Sweden, the Ombudsman is empowered to investigate cases of
corruption, in any form, not only involving government officials but also
judges of the highest court.
 In the United Kingdom, the Parliamentary Commissioner, a British version
of the Ombudsman, also serves as a Health Commissioner. In 1974, the
British parliament passed a law to expand the jurisdiction of the
Parliamentary Commissioner to cover local government matters. This allows
local councillors to file complaints against local authorities and seek
resolution for their grievances.
 Another crucial aspect of the Ombudsman’s role is the exercise of
discretionary powers. These powers encompass a wide range of issues,
including corruption, negligence, inefficiency and misbehaviour. How these
powers are applied depends on the individual Ombudsman and their
judgment.

Ombudsman in India
The success of the Ombudsman functions in other countries served as
inspiration for the establishment of Lokpal and Lokayuktas in India. Lokpal
functions as the Indian Ombudsman at the national level, while Lokayuktas
serve as State Ombudsmen.

The idea of setting up an Ombudsman in India was first proposed by M.C.

Setalvad at the All India Lawyers’ Conference in 1962.

Salient features of The Lokpal and Lokayuktas Act, 2013

The Lokpal and Lokayuktas Act, 2013 established the Lokpal at the national
level, which has the authority to investigate cases of corruption involving
Members of Parliament and central government employees. Lokayuktas, on
the other hand, operate at the state level and perform similar functions.
Both the Lokpal and Lokayuktas handle corruption charges against public
officials, including the Prime Minister, but with certain safeguards in place.
They conduct investigations and trials based on their findings.

The Act allows for the creation of Lokayuktas in each state with their
respective powers, although it doesn’t clearly define the extent of these
powers. This has resulted in variations in the powers of Lokayuktas across
different states. To bring uniformity, there has been a proposal to
implement Lokayuktas consistently across all Indian states. The Act also
mandates that all states establish the office of the Lokpal and/or Lokayukta
within one year from the commencement of the Act.

The Lokpal consists of a chairperson and a maximum of eight members.

Half of the members are judicial and the other half are from SC/ST/OBCs,
minorities and women.

Under the newly enacted Lokpal Act, corruptly acquired properties of

government officials can be confiscated and attached even while
proceedings against them are ongoing.

The Act requires all public officials to disclose their assets and liabilities as
well as those of their dependents. It also provides protection for
government officials who act as whistleblowers and an accompanying
Whistle Blowers Protection Act has been enacted to support this aspect.

Composition of the Lokpal

The Lokpal office is composed of a Chairman and up to 8 members. The
Chairman of the Lokpal can either be a current or former judge of the
Supreme Court or the Chief Justice of a High Court. Alternatively, the
Chairman can also be an eminent person known for their impeccable
reputation and exceptional expertise, with at least 25 years of experience in
areas such as anti-corruption policy, public administration, vigilance, law,
management, finance (including insurance and banking) and related
matters.
The powers of the Lokpal are defined in Section 25 of the 2013 Act. If the
Lokpal receives a complaint under the Prevention of Corruption Act of
1988, it has the authority to initiate an investigation. If the complaint is
substantiated during the investigation, the Lokpal can recommend that the
government take disciplinary action against the accused public servants or
file a corruption case in a special court.

Conclusion
The role of the Ombudsman in administrative law is pivotal in upholding
the principles of transparency, fairness and accountability within the
workings of government. This independent authority serves as a beacon of
hope for individuals and organisations who encounter administrative issues,
ensuring that their grievances are heard and resolved impartially.

The Ombudsman’s multifaceted functions, from mediating disputes to

conducting thorough investigations, shine a light on potential
shortcomings within the administrative apparatus. Through their
recommendations and proactive measures, Ombudsmen help governments
enhance their processes, reducing the likelihood of future conflicts.
Lokayukta at the Central/ State level respectively) in India………..????
main features of ombudsman
An ombudsman is a public officer who investigates complaints against public
authorities, such as businesses, organizations, and the government. The
ombudsman's basic function is to report on the complaints, but unlike a court, an
ombudsman doesn't normally have the power to make legally binding
decisions. Depending on the jurisdiction, an ombudsman's decision may or may not
be legally binding, but it typically carries considerable weight.
Here are some other features of an ombudsman:
 Independent: The ombudsman is independent of the legislature, executive,
and judiciary.
 Unbiased: The ombudsman is impartial and provides cost-free services.
 Investigative: The ombudsman has wide powers to investigate complaints
made by citizens against abuse of discretionary power, maladministration, or
administrative inefficiency.
 Advisory: The ombudsman's functions are usually advisory in nature.
 Equal status: The ombudsman has equal status with the judges of the highest
judiciary of the country.
 Can't punish offenders: The ombudsman can't punish an offender, but can
only report to the highest authorities for taking necessary actions.