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Unit -1 Introduction to administrative Law

1.1 Rule of law

Meaning-the modern conception of rule of law has been well described by wade and Phillips in their
book
construction law- rule of law means-
 absence of arbitrary power
 Effective control of and proper publicity of delegated legislation
 That when discretionary powers is granted the manner in which it is to be exercised should be
as far as practicable
 that every man should be responsible for ordinary law whether he be private citizen or public
officer
 That fundamental private rights are safeguarded by the ordinary law of the land
Also, the concept of rule of law has been defined by an international commission of jurists made in
1959 at New Delhi. it has declared that rule of law is a dynamic concept. It should be employed to
safeguard and advance the political and civil rights of individuals in a free society.
In India the meaning of rule of law has been much expanded. It is regarded as a part of the basic
structure of the constitution and therefore it cannot be abrogated or destroyed even by parliament. It
is also regarded as a part of natural justice

According to dicey , rule of law has three meanings

 The first meaning of rule of law is that no man is punishable and can lawfully be made to suffer in
body or goods except for a distinct breach of law established in ordinary legal manner before the
ordinary courts of land. The rule of law according to dicey means the absolute supremacy of
predominance of regular law as opposed to the influence of arbitrary power and excludes the
existence of arbitrariness of prerogative and even of the wide discretionary authority on the part of the
government.
 The second meaning of the rule of law is that no man is above the law. every man whatever be his
rank or condition is subject to ordinary law of realm and amenable to the jurisdiction of ordinary
tribunals. Thus, Rule of law means equality before the law and equal subjection
of all classes to ordinary law of the land administered by the ordinary law courts.
 The third meaning of rule of law is that the general principles of the constitution are the result of
judicial decisions determining the rights of private persons in particular casesdropped before the
Court..

Welfare state
Meaning- a welfare state is a concept of government where the state plays a key role in the
protection and promotion of the economic and social well-being of its citizens.
The following provisions of constitution of India established formally rule of law in country for
the welfare
of state:

A) Article 13: the constitution of India has been made the supreme law of the country and other laws
are required to be in conformity with the constitution. any law which is found in violation of any
provision of the constitution is declared invalid.
Part 3 of the constitution of India guarantees fundamental rights.
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Article 13(1) of constitution makes it clear that all laws in force in territory of India immediately before
the commencement of the constitution insofar as they are in constituent with the provision of part 3
dealing with fundamental rights to the extent of such inconsistency by void.
Article 13 (2) provides that the state should not make any law which takes away or averages the
fundamental rights and any law made in contravention of this clause shall to the extent of
contravention by void.
B) Article 14 : Article 14 of constitution of India provides for equality before the law and equal
protection of the law equality before law implies the absence of any special privilege in favour of an
individual. It ensures that all are equal before law. Article 14 is primarily a guarantee against arbitrary
action in a state action and the doctrine of reasonable classification has been evolved only as a
subsidiary rule of testing
whether a particular action is arbitrary or not.
Case laws
A.K Kraipak v/s Union of India – Air (1971)SCC 457
It was held that every organ of the state under the constitution of India is regulated and controlled by
the rule of law.:

Separation of Powers

Meaning-Separation of powers divides the mechanism of governance into three branches i.e.
Legislature, Executive and the Judiciary. Although different authors give different definitions, in
general, we can frame three features of this doctrine.
1. Each organ should have different persons in capacity, i.e., a person with a function in one organ
should not be a part of another organ.
2. One organ should not interfere in the functioning of the other organs.
3. One organ should not exercise a function of another organ (they should stick to their mandate
only).
Thus, these broad spheres are determined, but in a complex country like India there often arises
conflict and transgression by one branch over the other.

Significance of the doctrine

Why do we need a separation of powers between the various organs of the State?
Whenever there is a concentration of power in one centre/authority, there is bound to be greater
chances of maladministration, corruption, nepotism and abuse of power. This principle ensures that
autocracy does not creep into a democratic system. It protects citizens from arbitrary rule. Hence, the
importance of the Separation of Powers doctrine can be summed up as follows:
1. Keeps away autocracy
2. Safeguards individual liberty
3. Helps create an efficient administration
4. Judiciary’s independence is maintained
5. Prevents the legislature from enacting arbitrary or unconstitutional laws
Constitutional Status of Separation of Power in India
The doctrine of separation of powers is a part of the basic structure of the Constitution, although not
specifically mentioned. The legislature cannot pass a law violating this principle. The functions of the
three organs are specifically mentioned in the Constitution. Let us take a look at some of the articles
of the Constitution which suggest separation of powers. Article 50: This article puts an obligation over
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the State to separate the judiciary from the executive. But, since this falls under the Directive
Principles of State Policy, it is not enforceable.
Article 123: The President, being the executive head of the country, is empowered to exercise
legislative powers (Promulgate ordinances) in certain conditions.
Articles 121 and 211: These provide that the legislatures cannot discuss the conduct of a judge of the
Supreme Court or High Court. They can do so only in case of impeachment.
Article 361: The President and Governors enjoy immunity from court proceedings. There is a system
of checks and balances wherein the various organs impose checks on one another by certain
provisions.
 The judiciary has the power of judicial review over the actions of the executive and the legislature.
 The judiciary has the power to strike down any law passed by the legislature if it is unconstitutional
or arbitrary as per Article 13 (if it violates Fundamental Rights).
 It can also declare unconstitutional executive actions as void.
 The legislature also reviews the functioning of the executive.
 Although the judiciary is independent, the judges are appointed by the executive.
 The legislature can also alter the basis of the judgment while adhering to the constitutional
limitation.
Checks and balances ensure that no one organ becomes all-too powerful. The Constitution
guarantees that the discretionary power bestowed on any one organ is within the democratic
principle.
Parliamentary Sovereignty

Meaning- Parliamentary sovereignty means that parliament is superior to the executive and judicial
branches of government, and can therefore enact or repeal any law it chooses. It is a cornerstone of
the UK constitutional system and also applies in some parts of the Commonwealth such as Canada.
The idea of parliamentary sovereignty is neatly summed up by 19th century constitutional theorist A V
Dicey:
“Parliament…has, under the English constitution, the right to make or unmake any law whatsoever;
and, further, …no person or body is recognised by the law of England as having the right to override
or set aside the legislation of Parliament.”
In theory, the UK parliament could enact legislation which oppresses 95% of the population if it
chose to do so, however the political consequences of such a measure mean that in practice this is
very unlikely to happen.

The notion of parliamentary sovereignty was at the heart of the Brexit referendum in 2016. Those
wishing to leave the European Union saw its institutions, such as the European Parliament, as
directly challenging the sovereignty of the Westminster Parliament because European laws can be
automatically binding and override local laws within the UK. On the other hand, it was the
Westminster Parliament which accepted
some limits on its own sovereignty when it decided to join the European Union (then known as the
European Economic Community) in 1972 when it passed the European Communities Act.

Canadian parliamentary sovereignty

In Canada, the provinces have legislative sovereignty in some matters as well. In addition, federal
parliament is sovereign in several areas but the majority of amendments to the Canadian Constitution
can only be made with the consent of two-thirds of the provinces which represent 50% of the
Canadian population.

1.2 - Administrative Law

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Meaning-

According to the Indian Institute of Law:

 Administrative law deals with the part and the functions of the administrative authorities.
 The procedure to be followed by these authorities in the exercise of such powers.
 The remedies available to the aggrieved person when authorities abuse of the powers

According to Ivor Jennings

“Administrative law is the law relating to the administration. It determines the organisation, powers
and duties of the administrative authorities.”
According to Wade
“Administrative law is the law relating to the control of the governmental powers.” According to him
the primary object of the administrative law is to limit the powers of Government and to prevent
citizens against their abuse.
According to KC Davis
“Administrative law is the law concerning the powers and procedure of the administrative agencies,
including especially the law governing the judicial review of the administrative actions.”
Nature and Scope of Administrative Law

The administrative law has a growing importance and the interest and it is most outstanding
phenomenon in the welfare state today. Knowledge of the administrative law is as important for the
officials as responsible for carrying on administration as for the students of law.
Not a codified Law: Administrative law is not codified like the IPC or law of the contracts. It is based
on the constitution.
Judge made law: It is essentially a judge made law and it is a branch of public law which deals with
the constitution and delegation of power.
Deals with the organisation: Administrative Law deals with organisation and powers of the
administrative and quasi-administrative authorities.
Concerned with the official actions: Administrative Law is primarily concerned with the official action
and the procedure by which official action is reached. Example: Rule Making, Rule Application,
Monitoring actions or pure administration.
Control Mechanism: It includes control mechanism (judicial review) by which the administrative
authorities are kept within bounds and made effective.
Authorities: Administrative law is derived from the authorities from the constitutional and statutory
law.
Rights: Administrative Law relates to the individual rights as well as public needs and ensures
transparency, open and honest governance which is more people friendly.
Means or the End : The study of the administrative law is not an end in itself, but it is a means.
Emergence and development: Administrative law emerges and develops wherever and whenever
any person becomes the victim of the arbitrary exercise of the public power. Administrative law I not
the branch of the philosophy of law, but of sociology of law.
Branches which govern: It is the body of law which governs the activities of the administrative
authorities
of the government. Government agency action includes rule making, rule adjudication, enforcement
of
specific regulations and the related agenda.

Significance of Administrative Law:

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The development of Administrative law is an unavoidable necessity of the modern times. Prior to
1947, India was a police state, primarily interested in strengthening its own domination. Administrative
machinery was mainly implemented with the object of civil service in view. This soon came to be
recognized as the ‘steel frame of Indian polity’. Post independence there was a change in the
philosophy of Indian Constitution. It laid down lofty goals of socio-economic equality, with public
welfare being primary concern. It is an important weapon for bringing harmony between power and
justice. The Constitution governs administrators.
Administration is an all pervading feature of our lives. The ambit of administration is wide embraces
several functions:
 Policy making
 Leadership to legislature
 Execution and administration of regulations of the land
 Administering both traditional and contemporary functions of the State
 Exercising legislative powers by way of a range of bye-laws, orders, decrees, orders, etc.
Continuous experimentation and adjustment of detail has become essential requisite of modern
administration. If a rule is found to be unsuitable in practice, a new rule incorporating the
requisitechanges is put in place, without much delay. This flexibility is what widens administrative law
and makes it significant in our lives. Administrative laws not only puts law into effect but does much
more than that.
Reasons for the Growth of Administrative Law:

The following factors are responsible for the growth of administrative law:
 There is a radical change in the philosophy of the role played by the state. The negative policy of
maintaining law and order and social welfare is changing. The state has not confined its scope to
the traditional and minimum functions of defense and administration of justice, but has adopted the
positive policy and as a welfare state has undertaken to perform varied functions 11.

 The judicial system was proved to be an inadequate to decide and settle all types of disputes. It
was slow, costly, inept, complex and formalistic. It was already overburdened and it was not
possible to expect speedy disposal of even very important matters. The important problems could
not be solved by mere literally interpreting the provisions of some statutes, but required consideration
of various other factors and it could not be done by the ordinary courts of law. Therefore, industrial
tribunals and labour courts. Were established, which possessed the techniques and expertise to
handle these complex problems.
 The legislative process was also inadequate. It had no time and technique to deal with all the
details. It was impossible for it to lay down detailed rules and procedures, and even when detailed
provisions were laid down by the legislature, they have found to be defective and inadequate.
Therefore, it was necessary to delegate some powers to the administrative authorities.
 There is scope for experiments in administrative process. Here unlike, in legislation, it is not
necessary to continue a rule until commencement of the next session of the legislature. Here a
rule can be made , tired for some time and if it is defective, can be altered or modified within a
short
period. Thus, legislation is rigid in character , while the administrative process is flexible.
 The administrative authorities can avoid technicalities. Administrative law represents functional
rather than a theoretical and legislative approach. The traditional judiciary is conservative, rigid
and technical. It is impossible for courts to decide cases without formality and technicality.
Administrative tribunals are not bound by rules of evidence and procedure and they can take a
practical view of the matter to decide complex problems.
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 Administrative authorities can take preventive measures. Unlike regular courts of law, they do not
have to wait for parties to come before them with disputes. In many cases, these preventive
actions may prove to be more effective and useful than punishing a person after he has committed
a breach of law. As freeman says, Inspection and grading of meat answers the consumer's need
more adequately than does a right to sue the seller after the consumer injured 12.
 Administrative authorities can take effective steps for the enforcement of the aforesaid preventive
measures e.g. suspension, revocation and cancellation of license, destruction of contaminated
articles etc., which are not generally available through regular courts of law 13.

Difference between Constitutional law and Adminitrative law

Constitutional Law Adminitrative law

1 The ultimate law of any nation-state is
constitutional law.
2 Deals with the organs of the State and its
structure
3 It has a wide scope and deals with the powers
of the State, general principles of
governance,and the relationship between the
citizens and the State.
4 It is codified into a single text in countries with
a written constitution.
5 Constitutional law establishes an
administrative body
Administrative law is ancillary to the ultimate
law.
Deals with the actual functioning of the rgans
of the State.
It has a narrow scope and only deals with the
powers and functioning of theadministrative
bodies.
It is not codified. There might be hundreds of
thousands of administrative laws.
Administrative law defines its legal roles and
limitations. Therefore, it can be seenas the
action arm of constitutional law.

1.3 Development and Evolution of Administrative Law in India, US, UK and France

Administrative law has become extremely crucial in the developed society since the relationship of
the administrative authorities and the people has become complex. In order to regulate these
complexities some law is necessary, which can help maintain regularity certainty and check misuse of
powers vested in the administration. This increase in the spectrum of responsibilities ushered in an
administrative age and an era of Administrative law. Administrative has been characterized as the
most outstanding legal development of the 20th-century. The governments have evolved from being
laisseze faire to parens patria. This development saw a similar trend in several parts of the world. In
this article we will be discussing the
evolution and development of administrative law in India, UK, USA and France.

Development of administrative law in India

Administrative law in India can be traced back to ancient history times. The Maurya and the Gupta
dynasties of Ancient India had centralised administrative system. Following this, came the Mughals
who had somewhat similar administrative system. The kings in the anterior period of history were
mostly concerned majorly about three things-
 Protecting the state from external aggression
 Maintaining law and order and order
 Collecting taxes.
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With the arrival of the British in India, there was the advent of modern administrative law.
Establishment of East India Company increased the government’s powers manifold. Several Acts,
legislatures and statutes were brought by the British Parliament for regulating public safety, health,
morality, transport and labour relations. The exercise of granting licences began with the State
Carriage Act, 1861. The first public corporation came into existence under the Bombay Port Trust Act,
1879. Delegated legislation was accepted as legitimate power of the Executive in Northern India
Canal and Drainage Act, 1873 and Opium Act, 1878. In many statutes, provisions were made vis-a-
vis granting of permits and licences and settlement of disputes by administrative authorities and
tribunals. During the Second World War, the executive powers increased manifold by virtue of
Defence of India Act. In addition to this, the government issued many orders and ordinances,
covering several matters by way of Administrative instructions.
Post independence, India adopted a welfare state approach, which in turn increased state activities.
Withincrease in power and activity of the Government and administrative authorities increased so did
the need for ‘Rule of Law’ and ‘Judicial Review of State actions’.[i] The philosophy of a welfare state
became specifically embodied in the Constitution of India. In the Constitution itself, provisions were
made to
secure to all citizens social, economic and political justice, equality of status and opportunity. The
ownership and control of material resources of the society should be so distributed as best to sub-
serve the common good.
For better administration and execution of laws at the ground level, procedures such as laying and
delegated legislation were borrowed from contemporary regimes and customised to cater to the
Indian needs. Also, if rules, regulations and orders passed by the administrative authorities were
found to be beyond their legislative powers then such orders, rules and regulations were to be
declared ultra-vires, unconstitutional, illegal and void. This flexibility of administrative law also marks
an important feature of evolution of administrative law in India.
Development of administrative law in UK

In 1885 a British jurist A.V. Dicey rejected the whole concept of Administrative law. Due to this
several legal thinkers suspended the notion of acknowledging the various statutory powers given to
administrative authorities to form a separate branch of law. They disregarded the control exercised by
such authorities to be anything distinct in itself. Hence, until 20th century administrative law was not
given its due in England.
It was only later that the concept came to be recognised.
In 1929, Lord Donoughmore Committee recommended for better publication and control of
subordinate legislation. The legal maxim that the king can do no wrong, was abolished and the scope
and extent of administrative law was expanded by the Crown Proceeding Act, 1947. It allowed
initiation of civil proceedings against the Crown in a similar fashion to any ordinary private citizen. The
Tribunals and Inquiries Act, 1958 brought about better control and supervision of administrative
decisions. Breen v Amalgamated Engineering Union[ii] was the first case wherein the existence of
administrative law in England was recognised.
Development of administrative law in USA

The existence and growth of administrative law was ignored in the United States until it grew into
being the fourth branch of Democracy. Also several legal jurists like Frank Goodnow and Ernst
Freund had authored several books on administrative law which bolstered its position in the States.
Dr. Freund in his observation of the characteristics of American and English system found that
American growth of administrative power didn’t encounter a temperamental opposition like it did in
England. Rather it was checked by the distribution of powers under a federal system. Not until 19th
century the Congress used its interstate commerce powers for regulatory purposes, with recourse
into administration by
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Commission. Bulk of the legislations, at first, was administered without general supervision; the
central-state administrative organisation was built slowly. As a result administrative control in the US
was less bureaucratic and hence less centralized

In the United States the rise of administrative law is contemporaneous with the need for governmental
regulation of industry. Such a need led to the creation in 1887 of the Interstate Commerce
Commission (ICC). In 1933 a special committee was appointed to determine how judicial control over
administrative agencies could be exercised. Thereafter, the Administrative Procedure Act, 1946 was
passed which provided for judicial control over administrative actions.

American administrative law developed from the operation of these different regulatory agencies,
vested with significant powers to determine, by rule or by decision, private rights and obligations. As
the regulations and orders promulgated by these organs impinged more and more upon the
community and the bar that counseled it, the development of legal rules to ensure the subordination
of agency activities to law became of concern to jurists. During the 1920s courses on administrative
law began to be offered in law schools, the American Bar Association set up a special committee on
the subject, and it came increasingly to occupy the attention of courts and lawyers.
Development of administrative law in France

The existence of an administrative authority (le droit administratif) in France, separate and distinct
from the civil law, dealing, in the main, with the competence of the administrative authorities and
watching over the relations amongst themselves and with private individuals, distinguishes
fundamentally the administrative and legal system of France from that of Anglo-Saxon countries.

A study of the history of French administrative law during the last hundred years will show that its
development has consisted principally in the working out of remedies for the protection of private
individuals against the arbitrary and illegal conduct of the administrative authorities and in the
extension of the control of the administrative courts (particularly the council of state) over the acts of
these latter authorities. It is somewhat analogous to the power of American courts to refuse to enforce
unconstitutional acts of the legislature.
This control has gone through a very interesting process of development. During the early years of
the First Empire when the judicial courts were, in large measure, the servile instruments of Napoleon,
they refused to entertain the plea of illegality as a bar to prosecution for the violation of all acts of the
administrative authorities, from the lowest to the highest. In 1800, however, the court of cassation
whichthree years before had held that the inferior judges had no right to refuse to enforce prefectural
or municipal police ordinances on the ground of their illegality, changed its opinion and ruled that they
were not bound to impose fines for the violation of such ordinances.

During the period of the Restoration when the judges became more independent in consequence of
the adoption of the rule of non removability, they went further and held that they were not even bound
to impose fines for the violation of ordinances issued by the King[v] Legality of nearly every
administrative act for the violation of which a fine is prescribed, and illegality includes not merely
nonconformity to the laws but also incompetence, vice of form, violation of the principle of equality of
citizens, of personal liberty, liberty of conscience, inviolability of domicile, violation of property rights,
etc.

Even so-called ordinances of public administration issued by the President of the Republic upon the
advice of the council of state, which until 1907 could not be questioned either before the
administrative or judicial courts, are now attackable before both classes of courts on the ground of
illegality and during the world war, when the French Parliament delegated extraordinary ordinance
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power to the President, the judicial courts regularly entertained the exception of illegality against such
ordinances. This power of the judicial courts to declare illegal the ordinances of the administrative
authorities is, as Hauriou remarks, one of the “correctives” of the French administrative system which
cannot be ignored. it offered a means of control over administrative conduct which was more
frequently invoked than now, its importance having decreased in consequence of the remarkable
extension of the control of the administrative courts, the effect of whichhas been to reduce
correspondingly the control of the judicial courts.”

Global Administrative Law

Global administrative law can be understood as comprising the legal rules, principles, and institutional
norms applicable to processes of ‘administration’ undertaken in ways that implicate more than purely
intra-State structures of legal and political authority. The term ‘global
administrative law’ came into use during the first decade of the 21st century. It encompasses most of
the subject-matter addressed by jurists in the 19th and 20th centuries under the rubric of ‘international
administrative law’ and, like this early work, it proceeds from a view of what
constitutes ‘administration’ beyond a purely domestic context, including some activities of national
administrative agencies, and many activities of international organizations. But this newer term is
preferred to avoid the misleading implication that the field is simply a branch of general
international law and thus can be structured in terms of traditional (and now much-contested) criteria
for sources of international law and subjects of international law. The variety of actors involved, the
fact that many of these actors are primordial rather than exercising authority
delegated by States, and the range of persons and processes affected by global administrative
actors, make sharp distinctions between spheres of national and international administration
increasingly difficult to maintain. Instead, much administration is taking place in what might be
thought of as a global administrative space, involving blurring of national and international, and public
and private, dimensions.

1.4 ADMINISTRATIVE ACTION

Meaning- Administrative action is the action which is neither legislative nor judicial in nature but only
concerned with the analysis and treatment of a particular situation and is devoid of generality. It has
no procedure of collecting evidence and weighing arguments but only based upon subjective
satisfaction where decision is based on policy and expediency. It does not decide a right or wrong ,
neither it ignores principles of natural justice completely though it may affect a right. Unless the
statute provides otherwise, a minimum of the principles of natural justice must always be observed
depending on the fact situation of each case. Administrative action may be statutory, having the force
of law, or non statutory, devoid of such legal force. The bulk of the administrative action is statutory
because a statute or the Constitution gives it a legal force but in some cases it may be non-statutory,
such as issuing directions to subordinates not having the force of law, but its violation may be visited
with disciplinary action. Though by and large administrative action is discretionary and is based on
subjective satisfaction, however, the administrative authority must act fairly, impartially and
reasonable.

CLASSIFICATION ADMINISTRATIVE ACTION

Administrative action is classified broadly into three main organs of the government namely-
 Legislative
 Executive
 Judiciary
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In Jayantilal Amritlal Shodhan V. F.N Rana and Ors

Generally an administrative action can be further bifurcated into 3 parts-
 Quasi-legislative action or Rule making: It includes the rule making power and delegated
legislation.
Under this organ the administration performs the function of legislation in such situations where it is
not possible for any legislation to legislate laws for the kind of conflicts arising.
 Quasi-Judicial action or Rule decision action: It includes such conditions under which the
administration puts on the hat of the judiciary and confers the special power of taking decisions
incases where legal rights of individual are effected.
 Purely administrative action or Rule application action: This includes the actions which are neither
legislative nor judiciary but purely administrative in nature.
In Article 14 and 21 of the constitution of India, the concept of natural justice is defined in case of
consequences suffered in administrative action.
1. Nemo in propria causa judex, esse debet – no one should be made a judge in his own cause, or
the rule
against bias.
2. Audi alteram partem – no one should be condemned unheard.
In case of A.K. Kraipak v. Union of India, the Court held that in order to determine whether the action
of the administrative authority is quasi-judicial or administrative in nature, one has to see the power
conferred, to whom power is given, the framework within which power is conferred and the
consequences.

CONTROL OF ADMINISTRATIVE ACTION

Administrative actions are controlled by courts in certain circumstances by issuing different writs and
thus plays an important role in judicial control of administrative actions in India. Article 32(2) states
the power of the Supreme court to issue writs in nature of-

1.WRIT OF HABEAS CORPUS

The expression “Habeas Corpus” in Latin means ‘to have the body’. Under this writ, if a person is
unlawfully detained, his friends or relatives or any person or any person on behalf of the prisoner or
the prisoner himself can file an application in court under Article 226 in High Court or under Article 32
in Supreme Court.
.
Even a letter to the judge mentioning illegalities committed on prisoners in jail can be admitted. If he
Court will be satisfied with the contents of the application ,it will issues the writ and will produce an
order calling upon the person who has detained another to produce the same before the Court, to let
know the grounds of confinement and set the peron free if there is no legal justification and will award
exemplary damages.

Case Study -In the case of Bhim Singh v State of Jammu& Kashmir, AIR 1986 SC 494, the Hon’ble
Court awarded the
exemplary damages of Rs.50,000 for the wrongful confinement.
Sunil Batra v Delhi Administration, AIR 1980 SC 1579, is another landmark judgement ,in which a
convict
wrote a letter to one of the Judges of the Supreme Court alleging inhuman torture and illegalities on a
fellow convict.
2.WRIT OF MANDAMUS
The expression ‘Mandamus’ in Latin means “We Command”. Mandamus is a Judicial order strictly
following the rule of rule of Locus Standi . It is issued in the form of a command to any Constitutional,
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Statutory or Non-Statutory authority asking to carry out a public duty imposed by law or to refrain from
doing a particular act, which the authority is not entitled to do under the law. It is an important writ to
check
arbitrariness of an administrative action. It is also called ‘Writ of Justice’.

3.WRIT OF PROHIBITION
The expression ‘prohibition’ literally means ‘to prohibit’. It is a judicial order issued by the Supreme
Court or a High Court to an inferior Court or quasi-judicial body which forbids the inferior courts to
continue proceedings and keep themselves within the limits of their jurisdiction. The writ of prohibition
can beissued on the following grounds:
(i) Absence or Excess of jurisdiction;
(ii) Violation of the principles of natural justice;
(iii) Unconstitutionality of a Statute;
(iv) Infraction of Fundamental Rights

4.WRIT OF CERTORI
The expression “certiorari” in Latin word means “to certify”. This writ is a judicial order which confers
power on the Supreme Court under Article 32 and High Courts under Article 226 of the Constitution to
correct illegality of their decisions or otherwise quash it.
The grounds on which the writ of certiorari may be issued are:
(a) Error of Jurisdiction- Lack of jurisdiction or Excess of jurisdiction
(b) Abuse of jurisdiction
(c) Error of law apparent on the face of the record
(d) Violation of principles of natural justice
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UNIT-2 Administrative Rule Making

2.1 Administrative Rule Making/Delegated Legislation-

Meaning- Need for administrative Rule-making /Delegated legislation (sometimes referred as

secondary legislation or subordinate legislation or subsidiary legislation) is a process by which the
executive authority is given powers by primary legislation to make laws in order to implement and
administer the requirements of that primary legislation. Such law is the law made by a person or body
other than the legislature but with the legislature’s authority. Legislation by any statutory authority or
local or other body other than the Legislature but under the authority of the
competent legislature is called Delegated legislation. It is legislation made by a person or body other
than Parliament. Parliament thereby, through primary legislation, enables others to make law and
rules through a process of delegated legislation.

Why Delegated Legislation Is Important?

The process of delegated legislation enables the Government to make a law without having to wait for
a new Act of Parliament to be passed. Further, delegated legislation empowers the authority to
modify or alter sanctions under a given statute or make technical changes relating to law. Delegated
Legislation is important due to various reasons.
They are as follows-
1.Delegated Legislation reduces the burden of already overburdened Legislature by enabling the
executive to make or alter the law under the authority of Legislature. Thus, this helps the Legislature
to concentrate on more important matters and frame policies regarding it.
2.It allows the law to be made by those who have the required knowledge and experience. For
instance, a local authority can be permitted to enact laws with respect to their locality taking into
account the local needs instead of making law across the board which may not suit their particular
area.
3.Finally, delegated legislation often covers those situations which have not been anticipated by the
Parliament during the time of enacting legislation, which makes it flexible and very useful to law-
making. Delegated legislation is, therefore, able to meet the changing needs of society and also
situations which Parliament had not anticipated when they enacted the Act of Parliament.

Classification of delegated legislation

There are mainly four types of delegated legislation classification:

1.Title based classification

An act may grant the authority the ability to enact laws, orders, or bye-laws. The variety of legislative
provisions that may exist under multiple names has basically no limitation.
13

Different forms of delegated legislation are:

o Central act to central government.

o Central act to state government
o Central act to statutory body.
o State act to state government
o State act to statutory bodies

2. Discretion based classification

A discretion may be conferred on the executive to bring the act into operation on fulfilment of certain
conditions, such legislation is called 'conditional legislation'.

Conditional legislation tends to provide control (not law-making power) and also specifies that the
legislation will come into force only after fulfilment of conditions provided by the statute.

In conditional legislation, legislature makes law that is 'full and complete' and no legislative function is
delegated to the executive. The only duty of the executive is to apply the legislation upon fulfilling the
conditions prescribed by the statue.

In the famous case of M.P High court bar association vs. Union of India, 2004, the Madhya Pradesh
reorganisation act, 2000 empowered the state government to abolish state administrative tribunal.
The validity of provision was challenged on ground that there was excessive delegation of power on
state. Court held that, the act enacted by parliament was full and complete and no legislative power
was delegated to the executive, they were mainly to decide the existence of the tribunal.

3.Purpose based classification

Parent act may also empower the executive to delegate its power further to its subordinate authority,
and this is known as 'sub-delegation'. When parent statute confers legislative power to executive and
executive further delegates it to another subordinated authority, then it is called sub delegation. The
parent act is allowed to produce descendants to a maximum of four or five degrees. 'Delegatus non
potest delegare', is a latin maxim which mean that "no delegated powers can be further delegated".

Exception to Delegatus non potest delegare are:

o Express power of sub delegation

o Implied power of sub delegation

Where a statute has itself authorised the subordinate authority to further delegate its power,
then no question arises as to the validity of delegated legislation.

In the case of Central Talkies Limited vs. Dwarka Prasad, 1961, AIR 606 1961 SCR (3) 495
where the U.P control of rent and eviction act stated that no suit shall be filed for the eviction of
tenant without the permission of District Magistrate or any other person authorised by him, the
power to further delegate wads challenged on ground of excess delegation.
14

Court held that since the power to further delegate arises from the statue itself, hence it is not
excess delegation.

4.Authority based classification

Purpose based classification: This classification of delegated legislation may be based on the nature
and extent of power conferred and purpose for which such power can be exercised. There are
various powers that is delegated such as:

� Power to bring an act into force - In the case of A.K. Roy v. Union of India, 1982 SCC (1) 271 the
Supreme Court ruled that the government has the authority to put the Act into effect and that this
power should not be exercised excessively.

For example: the Legal Services Authority act, Section 1(3) states that "it shall come into force on
such date as central government may prescribe".

o Power to include and exclude: this means addition or removal of any person,
commodity, item etc to the act. For example: Minimum Wage act empowers the state
government to add or remove any employment for which minimum wage should be
fixed.
o Power to fill in details: usually legislation makes 'skeleton legislation' which needs to be
filled by the subordinate authority.

In skeleton legislation the central or state legislation prepares only a structure of law
and leaves the details to be filled by the subordinated authority. For example, Under the
Essential commodities act, substantive law-making power is given to the central/state
government, and in this way, they fill in the gaps by way of delegated legislation.

o Power to Modify: sometimes the executive is given the power to modify or change the
law without changing the very nature of the law. This has been explained further in the
case of Rajnarain Singh vs. The Chairman, Patna Administration (1954) 1954 AIR 569 ,
in this case the court held that subordinate authority can make incidental changes to the
law but modification should not be substantial in nature and if done such changes would
be invalid.

A famous case involving the transfer of legislative authority was In Re The Delhi Laws Act, 1951. The
case established the rule that while the authority to amend already-existing laws can be assigned to a
subordinate authority, but the authority to amend the fundamental structure of a law cannot. In other
words, a subordinate authority may be given the authority by the legislature to make modifications to
an existing law, but the fundamental ideas and essential elements of the legislation must not be
changed by that authority. This rule makes sure that the fundamental components of law are
protected while allowing for required amendments to be made by executive or subordinate
authorities.

Constitutionality of Delegated legislation

15

Delegated legislation’s status and constitutionality in India can be shown in various cases. It is
separated
into two phases: before independence (pre-independence) and after independence (also known as
postindependence).

Pre-independence- The Privy Council has only authorised conditional legislation in Queen v. Burah
(1878). In this case, the privy council transferred the legislature’s power to the executive. The
administration of a territory’s civil and criminal justice might be entrusted to officials selected by the
Lieutenant-Governor regularly. In the case of King v. Banwari Lal Sharma, the Privy Council applied
conditions that were legislative once more, as it had in the matter of Queen v. Burah. The validity of
the Governor-General of India’s Emergency Ordinance was challenged in this case, among other
things. It was contested because he attempted to usurp power from the Provincial Government. He
was establishing special criminal courts for specific types of offences, but only the Provincial
Government had the authority to settle any court.
This is not delegated legislation, according to the judicial committee. The Privy Council further stated
that it is an example of an unusual legislative authority in which the local application of State
legislation is determined by the local administrative body when it is required.

Post-independence The Indian Constitution does not take the same delegation of legislative powers
as the influential British Parliament. The extent to which delegation is permissible in India must be
determined as a matter of construction from the express provisions of the Indian Constitution. There
is no such thing as an unexhaustible right of delegation inherited in legislative power. The Supreme
Court of India upheld the delegation of the power conferred to the executive body by the legislative
body in the Raj Narain Singh v. Chairman, Patna Administration Committee Air (1954) case. This
case empowered the local government to extend any provisions of the act (Bengal Municipality Act).
Nothing in the Indian constitution expressly prohibits the legislature’s power to delegate. But there are
two constitutional limitations on legislative delegation, which were laid down in the case named Re
Delhi Laws Act (1951) :
1. Legislature cannot delegate its essential legislative functions.
2. The power conferred on a subordinate authority or executive body should not suffer from excessive
delegation.

2.2 - CONDITIONAL LEGISLATION

Meaning- When the law is complete and certain conditions are laid down as to how and when the law
would be applied by the delegate, it is conditional legislation. It includes no law-making powers but
only the power of determining when it should come into force or when it should be applied. Supreme
Court in Hamdard Dawakhana v. Union of India [1] stated that in conditional legislation, the delegate’s
power is that of determining when a legislative declared rule of conduct shall become effective.

Delegated Legislation is a term which covers the vast amount of legislation made by government
agencies and the Governor-General under authority of Acts of Parliaments, which delegate this power
to agencies. This type of legislation is also known as Subordinate Legislation or, since 2005,
Legislative Instruments.

Sub-Delegation: Sub-delegated legislation means when the rule making authority further delegates
its rule making power to issue rules to other authority then such exercise of rule- making power is
known as subdelegated
legislation.
16

Delegation of Taxation Power

One of the most significant developments of the present century is the growth in the legislative
powers of the executives. The development of the legislative powers of the administrative authorities
in the form of the delegated legislation occupies very important place in the study of the
administrative law. We know that there is no such general power granted to the executive to make
law it only supplements the law
under the authority of legislature. This type of activity namely, the power to supplement legislation
been described as delegated legislation or subordinate legislation. Delegated legislation means
legislation by authorities other than the legislature, the former acting on express delegated authority
and power from the later. Delegation is considered to be a sound basis for administrative efficiency
and it does not by itself
amount to abdication of power if restored to within proper limits. The delegation should not, in any
case, be unguided and uncontrolled. In a democratic country levying tax is exclusively the function of
the legislature. Such a power is a strong weapon at the disposal of the legislature to control the
executive. But in modern times, a dent has been made in this principle as well, as delegation has
permeated even the tax
area. This paper is an endeavour to explain as to how the taxing been delegated to executive. Power
of taxation is an inherent and an essential attribute of sovereignty which primarily rests on necessity.
Modern constitutions of nations recognise this power by making express provisions therein. The
sovereign attribute of taxation is the authority of the sovereign to compulsorily impose burden or
charges upon persons or property to raise money as public revenue for public purposes. In a federal
constitution the power of taxation is distributed among the federal and the provincial legislatures i.e
the central and the state legislatures. Our constitution makes a fine balance in the taxing powers of
the Parliament and the
state legislatures. However, the distribution is not based on the distinction of direct and indirect unlike
other federal constitutions. While the Parliament has the power to levy tax vis. income, excise and
customs, service tax etc., the state enjoys the power to levy taxes on sale and purchase of goods, on
land and buildings, land revenue and excise duties on alcohol consumption etc. In the modern times,
the executive has made more laws in the exercise of their administrative powers than the legislature
itself.

Restropective operation of Delegated Legislation

The meaning of the word retrospective is backdated or to look back. Therefore, the retrospective law
is a law that has backdated effect or is effective since before the time it is passed. The retrospective
law is also referred to as ex post facto law.
2. Whether the Retrospective law is ultra vires to the Constitution or against the law of natural justice?
The answer to this question depends upon the nature of the law passed. Whenever the retrospective
law impairs the obligation of contract, it is void. However, law which only varies the remedies, divests
no right, but is curative and merely cures a defect in the proceedings is fair and valid.
3. Article 20 of the Constitution of India prohibits the legislature to make retrospective criminal laws,
however, it does not prohibit a civil liability retrospectively i.e. with effect from a past date. Therefore,
tax can be levied retrospectively. However, in tax law, if there is a penal provision, retrospectivity is
not permitted to that extent.
4. The validity and scope of retrospective legislation can be understood and analysed from some of
the judgments, of the Hon’ble Apex Court and High Courts, wherein the guidelines and law has been
laid down therein, as follows:
a. In the matter of Hitendra Vishnu Thakur v. State of Maharashtra [(1994) 4 SCC 602; AIR 1994 SC
2623] the Hon’ble Supreme Court laid down the ambit and scope of an amending Act and its
retrospective operation as follows:
17

“(i) A statute which affects substantive rights is presumed to be prospective in operation unless made
retrospective, either expressly or by necessary intendment, whereas a statute which merely affects
procedure, unless such a construction is textually impossible, is presumed to be retrospective in its
application, should not be given an extended meaning and should be strictly confined to its clearly
defined limits.
(ii) Law relating to forum and limitation is procedural in nature, whereas law relating to right of action
and right of appeal even though remedial is substantive in nature.
(iii) Every litigant has a vested right in substantive law but no such right exists in procedural law.
(iv) A procedural statute should not generally speaking be applied retrospectively where the result
would be to create new disabilities or obligations or to impose new duties in respect of transactions
already accomplished:
(v) A statute which not only changes the procedure but also creates new rights and liabilities shall be
construed to be prospective in operation unless otherwise provided, either expressly or by necessary
implication.”

2.3 Parliamentary Control over Delegated Legislation

In India the legislative control over administration in parliamentary countries like India is more
theoretical than practical. In reality, the control is not that effective as it ought to be. The following
factors are responsible for the ineffectiveness of parliamentary control over delegated legislation in
India:
(i) The Parliament has neither time nor expertise to control the administration which has grown in
volume as well as complexity.
(ii) The legislative leadership lies with the executive and it plays a significant role in formulating
policies.
(iii) The very size of the Parliament is too large and unmanageable to be effective.
(iv) The majority support enjoyed by the executive in the Parliament reduces the possibility of
effective criticism.
(v) The growth of delegated legislation reduced the role of Parliament in making detailed laws and
increased the powers of bureaucracy.
(vi) Parliament’s control is sporadic, general and mostly political in nature.
(vii) Lack of strong and steady opposition in the Parliament has also contributed to the ineffectiveness
of legislative control over administration in India.
(viii) There is no automatic machinery for the effective scrutiny on behalf of the Parliament as a
whole; and the quantity and complexity are such that it is no longer possible to rely on such scrutiny.

Procedural and Executive Control

There is no particular procedure for it until the legislature makes it mandatory for the executive to
follow certain rules or procedure.
To follow a particular format it may take a long time which will definitely defeat the actual objective of
the act. Hence, procedural control means that under Parent act certain guidelines are given which
need to be followed while whether it is mandatory or directory to follow it or not. It includes three
components:
1. Pre publication and consultation with an expert authority,
2. Publication of delegated legislation.
3. Laying of rules.
It can be either Mandatory or Directory, to know, certain specified parameters are given:
1. Scheme of the Act.
18

2. Intention of Legislature.
3. Language used for drafting purpose.
4. Inconvenience caused to the public at large scale.
And these four parameters were given in the case Raza Buland Sugar Co. vs. Rampur Municipal
Council.

Judicial Control

Judicial review upgraded the rule of law. The court has to see that the power delegated is within the
ambit of the constitution as prescribed. Judicial review is more effective because court do not
recommend but it clearly strikes down the rule which is ultra vires in nature. As per Section 13(3)(a)
“Law” is defined under the Constitution of India which clearly indicate that State should not make
any law which abridge the right
given in Part iii of the Constitution. It is dependent on two basic grounds:
1. It is ultra vires to the Constitution of India, and
2. It is ultra vires to the enabling Act.

Doctrine of Ultravires

Meaning- Ultra vires is a Latin phrase that interprets to beyond the powers. this implies that
somebody is acting on the far side the scope of the authority or power that's granted to him by law,
contract, or agreement. Ultra vires is opposite from intra vires, that is Latin for within the powers. If
somebody desires the legal authority to try to one thing, and so acts among that granted authority,
then he's acting intra vires. For instance, ultra vires actions may be deemed invalid when the very
fact, whereas acts that performed intra vires measure to be valid.

Introduction
The Doctrine of ultra vires is related to actions taken by a private in relevancy corporation or
company. Each company has what's known as a Memorandum of Association of Company
(Memorandum), that is the company's constitution. The memorandum defines the company's
objectives, powers, and areas of operation, each internal and external. The memorandum are an
overview and a guide that the executives of
the corporate will follow to make sure of the scope of their own powers, and what lines they can't and
may
not cross.
This commitment to uphold the company's memorandum is cited as doctrine of ultravires. If the
corporate performs an act that's on the far side the scope of the powers afforded to that by its
memorandum, then that act is ultra vires, or on the far side its powers. The Doctrine of ultravires
could be a reasonably policy that reassures a company's shareholders and creditors that the
corporate won't use their assets or funds
for any functions aside from people who afforded to that, and such that among the ultra vires school
of thought.

The Doctrine of ultra vires could be a basic rule of Company Law. It states that the objects of a
corporation, as laid out in its memorandum of Association, may be departed from solely to the extent
allowable by the Act. Hence, if the corporate will act, or enters into a contract on the far side the
powers of the administrators or the corporate itself, then the aforesaid act/contract is void and not
wrongfully binding on the corporate.
The term ultra vires means that Beyond Powers. In legal terms, it's applicable solely to the acts
performed in way over the legal powers of the someone. This works on assumption that the powers
19

restricted in nature. Since the Doctrine of ultra vires limits the corporate to the objects laid out in the
memorandum, the corporate will be:
 Restrained from exploitation its funds for functions aside from those laid out in the memorandum
 Restrained from carrying on trade totally different from the one licensed.
The company cannot sue on ultra vires dealings. Further, it cannot be sued too. If a corporation
provides product or offers service or lends cash on Associate in Nursing ultra vires contract, then it
cannot get payment or recover the loan. However, if an investor loans cash to a corporation that has
not been extended nevertheless, then he will stop the corporate from parting with it via Associate in
Nursing injunction.
The investor has this right as a result of the corporate doesn't become the owner of the money
because it is ultra vires to the corporate and also the investor remains the owner. Further, if the
corporate borrows cash in ultra vires dealings to repay a legal loan, then the investor is entitled to
recover his loan from the corporate.
Sometimes act that is ultra vires may be regularised by the shareholders of the corporate. for
instance:
 If act is ultra vires the facility of administrators, then the shareholders will validate it.
 If act is ultra vires the Articles of the corporate, then the corporate will alter the Articles.
Remember, you cannot bind a corporation through ultra vires contract. Estoppel, acquiescence, lapse
of
your time, delay, or approval cannot build it Intra vires.

Effects of an Ultra Vires Act

The effects of an ultra vires act may be summed up as follows:

 An ultra vires act is going to be totally void and it'll not bind the corporate; neither the company nor
the outsider will enforce the contract.
 Any member of the corporate will bring injunction against the corporate to stop it from doing any
ultra vires act.
 The administrators of the corporate are going to be in person susceptible to keep the funds used
for the ultra vires acts.
 Wherever a company's cash has been used ultra vires to amass some property, the correct of the
corporate over such property is command secure.
 Since ultra vires contracts are treated as invalid from the kick-off, it cannot become intra vires by
reason of rule of evidence or approval.
 Ultra vires borrowing doesn't produce the link of mortal and person. the sole attainable remedy in
such case is in rem and not in personam.
20

UNIT-3 Judicial Review

3.1 Judicial review

Meaning-has been recognized as a necessary and basic requirement for the construction of an
advanced civilization to safeguard the liberty and rights of the citizens. The power of judicial review in
India is significantly vested upon the High Courts and the Supreme Court of India. Judicial review is
the ourt’s power to review the actions of other branches of government, especially the court’s power
to deem invalid actions exercised by the legislative and executive as ‘unconstitutional’.
Broadly speaking, judicial review in India deals with:
1. Judicial Review of Legislative Actions;
2. Judicial Review of Administrative Actions;
3. Judicial review of Judicial Actions.
We will be dealing with the second aspect i.e. judicial review of administrative actions. The judicial
review ensures the legality of administrative actions.
Judicial Review: A Comparative Analysis of India, USA & UK

In India, the essence of judicial review is the supremacy of law. It is the power of the court to review
the actions of legislative, executive and judiciary. It is the great weapon in the hands of the court to
hold unconstitutional and unenforceable any law and order which is in conflict with the basic law of
the land. This paper will deal with the various doctrines formulated by the Apex Court on the basis of
judicial review, for e.g., Doctrine of Severability, Doctrine of Eclipse, Doctrine of Prospective Over-
ruling etc.

. Judicial review had mainly originated in USA from the notable landmark case of Marbury vs.
Madison. But originally Lord Coke’s decision in, Dr. Bonham vs. Cambridge University had rooted the
scope of judicial review first time in 1610 in England. This paper will discuss as to how the U.S.
Constitution does not provide power of judicial review expressly but Articles III and VI of the U.S.
Constitution touch down this concept. There being no written Constitution in UK, the paper will also
deal with the principle of “Parliamentary Sovereignty” which dominated the Constitutional democracy.
Parliament Supremacy in UK incorporates the will of the people and the Courts cannot scrutinize the
actions of Parliament. Parliament prevents the scope of judicial review to primary legislation except in
few cases related to human rights and individual freedom. But secondary legislations are subject to
judicial review. Court can review the administrative and executive actions in UK.

Irrationality (Wednesbury Test)

A general established principle is that the discretionary power conferred on an administrative

authority should be exercised reasonably. A decision of an administrative authority can be held to be
unreasonable if it is so outrageous in its defiance of logic or prevalent moral standards that no
reasonable person who had applied his mind to the subject could have arrived at it.
‘Irrationality’ was developed as a ground of judicial review in the Associated Provincial Picture House
v. Wednesbury(1947) case which later came to be known as the ‘Wednesbury test’. The court laid
out threeconditions in order to conclude the right to intervene-
1. In arriving at the decision, the defendant took into consideration the factors that ought not to have
been taken into, or
2. The defendant failed to take into consideration the factors that ought to have been taken into, or
3. The decision was so unreasonable that any reasonable authority would never consider imposing
it.The court held that it could not intervene to change the decision of the defendant simply because it
disagreed with it.
21

Procedural Impropriety:

It is a failure to comply with the laid down procedures. Procedural Impropriety is to cover two areas
which are failure to observe rules given in statute and to observe the basic commonlaw rule of justice.
:::::::Ridge v Baldwin(1963) is an exclusive case where procedural fairness shows its
insistence on the judicial review irrespective of the type of body determining the matter. Ridge, the
Chief Constable of Brighton was suspended on the charges of conspiracy to obstruct the course of
justice. Despite the clearance of allegations against Ridge, the Judge made comments which
criticized Ridge’s conduct. Following that, Ridge was dismissed from the force but he was not invited
to attend the meeting which had decided his dismissal. Later, he was given an opportunity to be
heard before the committee which had dismissed his appeal. Ridge then appealed to the House of
Lords that the committee had totally violated the rules of natural justice. This case has been important
because of the emphasis on the link
existing between the right of a person to be heard and the right to know the case brought against him.

Proportionality:
Proportionality means that the concerned administrative action should not be more forceful than it
requires to be. The principle of proportionality implies that the court has to necessarily go into the
advantages and disadvantages of the action called into question. Unless the so-called
administrative action is advantageous and in the public interest, such an action cannot be upheld.
This doctrine tries to balance means with ends.
Courts in India have been adhering to this doctrine for a long time but Courts in England started using
it after the passing of the Human Rights Act, 1998 . In the test of proportionality, the court quashes
the exercise of discretionary powers in which there is no reasonable relation between the objective to
be achieved and the means of achieving it. If the administrative action is disproportionate to the
mischief, it will be quashed.
In Hind Construction Co. v. Workmen(1965), some workers called for a holiday and remained absent.
They were later dismissed from service. The court held that the workers should have been warned
and fined instead of abruptly being dismissed in a permanent manner. It was out of the question to
think that any reasonable employer would have given such extreme punishment. The court held that
the punishment imposed on the workmen was not only severe but also disproportionate.

Grounds of judicial review

The doctrine-ultra-vires is the basic structure of administrative law. It is considered as the foundation
of judicial review to control actions of the administration. Ultra-vires refers to the action which is made
in an excessive manner or outside the ambit of the acting party.
Generally, the grounds for judicial review in India are as follows-
1. Jurisdictional Error;
2. Irrationality;
3. Procedural Impropriety;
4. Proportionality;
5. Legitimate Expectation.
The above grounds of judicial review were given by Lord Diplock of England in the case of Council of
Civil Service Union v. Minister of Civil Service(1984). Though these grounds of judicial review are not
exhaustive, yet these provide an apt base for the courts to exercise their jurisdiction.
22

1.Jurisdictional Error
The term ‘jurisdiction’ means the power to decide. There might be a ‘lack of jurisdiction’, ‘excess of
jurisdiction’ or ‘abuse of jurisdiction’. The court may reject an administrative action on the ground of
ultra vires in all these three situations. A case of ‘lack of jurisdiction’ is where the tribunal or authority
holds no power or jurisdiction at all to pass an order. The court may review this administrative action
on the ground that the authority exercised jurisdiction which it was not supposed to. The power of
review may be exercised on the following threegrounds-
1. That the law under which the administrative authority is constituted and exercising jurisdiction
is itself unconstitutional,
2. That the authority is not properly constituted as the law requires, and
3. That the authority has mistakenly decided a jurisdictional fact and henceforth assumed jurisdiction
which did not belong to it first.

A case of ‘excess of jurisdiction’ covers a situation wherein though the authority initially had the
jurisdiction over a matter but then it exceeded and afterwards its actions become illegal. This can
happenin the following situations when –
1. An administrative body continues to exercise jurisdiction despite the occurrence of an event
ousting the jurisdiction, and
2. When it is entertaining matters outside its jurisdiction.All administrative powers must be exercised
bonafide and fairly. If the powers are abused, it will give rise to a ground of judicial review. An ‘abuse
of power’ may arise under the following conditions-
1. Improper purpose- When an authority uses its power for a different purpose
2. Error apparent on the face of record- When it can be ascertained by examining the record without
having to recourse to other evidence.
3. In bad faith- Where an administrative authority has acted dishonestly by stating to have acted for a
particular motive when in reality the decision was taken with some other motive in mind.
4. Fettering discretion-When an authority adopts a policy in the exercise of its powers, which means
that it is not actually exercising its discretion at all.
5. Non-consideration of relevant material- When a decision-maker does not look at the relevant
matter.

2.Irrationality (Wednesbury Test)

A general established principle is that the discretionary power conferred on an administrative
authority should be exercised reasonably. A decision of an administrative authority can be held to be
unreasonable if it is so outrageous in its defiance of logic or prevalent moral standards that no
reasonable person who had applied his mind to the subject could have arrived at it.
‘Irrationality’ was developed as a ground of judicial review in the Associated Provincial Picture House
v. Wednesbury(1947) case which later came to be known as the ‘Wednesbury test’. The court laid out
three conditions in order to conclude the right to intervene-
1. In arriving at the decision, the defendant took into consideration the factors that ought not to
have been taken into, or
2. The defendant failed to take into consideration the factors that ought to have been taken into, or
3. The decision was so unreasonable that any reasonable authority would never consider imposing
it.
The court held that it could not intervene to change the decision of the defendant simply because it
disagreed with it.

3.Procedural Impropriety
23

It is a failure to comply with the laid down procedures. Procedural Impropriety is to cover two areas
which are failure to observe rules given in statute and to observe the basic common-law rule of
justice. Ridge v Baldwin(1963) is an exclusive case where procedural fairness shows its insistence on
the judicial review irrespective of the type of body determining the matter. Ridge, the Chief Constable
of Brighton was
suspended on the charges of conspiracy to obstruct the course of justice. Despite the clearance of
allegations against Ridge, the Judge made comments which criticized Ridge’s conduct. Following
that, Ridge was dismissed from the force but he was not invited to attend the meeting which had
decided his dismissal. Later, he was given an opportunity to be heard before the committee which
had dismissed his appeal. Ridge then appealed to the House of Lords that the committee had totally
violated the rules of natural justice. This case has been important because of the emphasis on the
link existing between the right of a person to be heard and the right to know the case brought against
him.
4.Proportionality
Proportionality means that the concerned administrative action should not be more forceful than it
requires to be. The principle of proportionality implies that the court has to necessarily go into the
advantages and disadvantages of the action called into question. Unless the so-called administrative
action is advantageous and in the public interest, such an action cannot be upheld. This doctrine tries
to
balance means with ends.
Courts in India have been adhering to this doctrine for a long time but Courts in England started using
it after the passing of the Human Rights Act, 1998 . In the test of proportionality, the court quashes
the exercise of discretionary powers in which there is no reasonable relation between the objective to
be achieved and the means of achieving it. If the administrative action is disproportionate to the
mischief, it
will be quashed.

In Hind Construction Co. v. Workmen(1965), some workers called for a holiday and remained absent.
They were later dismissed from service. The court held that the workers should have been warned
and fined instead of abruptly being dismissed in a permanent manner.

5.Legitimate Expectations
This doctrine serves as a ground of judicial review to protect the interest when a public authority
rescinds from a representation made to a person. A legitimate expectation arises in the mind of the
complainant who has been led to understand expressly or impliedly that certain procedures will be
followed in reaching a decision. The expectation has a reasonable basis. This doctrine has evolved to
give relief to the persons who have been wronged because of the violation of their legitimate
expectation and have not been able to justify their claims on the basis of law. Two considerations
determine legislative expectations-
1. Where an individual or group has been led to believe impliedly or expressly that a certain
procedure will apply.
2. Where an individual or group relies upon a particular policy or guideline which has previously
governed an area of executive action.

In Regina v. Liverpool Corporation ex parte Liverpool Taxi Fleet Operators Association(1972), the
Corporation had given undertakings to the effect that the taxi drivers’ licenses would not be revoked
without their prior consultation. But the corporation acted in the breach of its undertaking. The court
ruled that the taxi drivers had a right to be consulted.

3.2 – Writs Jurisdiction

24

What is Writ?:
Writs are a written order from the Supreme Court or High Court that commands constitutional
remedies for Indian Citizens against the violation of their fundamental rights. Article 32 in the Indian
Constitution deals with constitutional remedies that an Indian citizen can seek from the Supreme
Court of India and High Court against the violation of his/her fundamental rights. The same article
gives the Supreme Court power to issue writs for the enforcement of rights whereas the High Court
has the same power under Article 226.
Types of Writs in India
The Supreme Court of India is the defender of the fundamental rights of the citizens. For that, it has
original and wide powers. It issues five kinds of writs for enforcing the fundamental rights of the
citizens.
The five types of writs are:
1. Habeas Corpus
2. Mandamus
3. Prohibition
4. Certiorari
5. Quo-Warranto

1.Habeas Corpus
The Latin meaning of the word ‘Habeas Corpus’ is ‘To have the body of.’ This writ is used to enforce
the fundamental right of individual liberty against unlawful detention. Through Habeas Corpus,
Supreme Court/High Court orders one person who has arrested another person to bring the body of
the latter before the court.
Facts about Habeas Corpus in India:
 The Supreme Court or High Court can issue this writ against both private and public authorities.
 Habeas Corpus can not be issued in the following cases:
o When detention is lawful
o When the proceeding is for contempt of a legislature or a court
o Detention is by a competent court
o Detention is outside the jurisdiction of the court

2.Mandamus
The literal meaning of this writ is ‘We command.’ This writ is used by the court to order the public
official who has failed to perform his duty or refused to do his duty, to resume his work. Besides
public officials, Mandamus can be issued against any public body, a corporation, an inferior court, a
tribunal, or government for the same purpose.

Facts about Mandamus in India:

 Unlike Habeas Corpus, Mandamus cannot be issued against a private individual
 Mandamus can not be issued in the following cases:
o To enforce departmental instruction that does not possess statutory force
o To order someone to work when the kind of work is discretionary and not mandatory
o To enforce a contractual obligation
o Mandamus can’t be issued against the Indian President or State Governors
o Against the Chief Justice of a High Court acting in a judicial capacity For more on the writ of
mandamus.

3.Prohibition
25

The literal meaning of ‘Prohibition’ is ‘To forbid.’ A court that is higher in position issues a Prohibition
against a court that is lower in position to prevent the latter from exceeding its jurisdiction or usurping
a jurisdiction that it does not possess. It directs inactivity.
Facts about Prohibition in India:
 Writ of Prohibition can only be issued against judicial and quasi-judicial authorities.
 It can’t be issued against administrative authorities, legislative bodies and private individuals or
bodies.

4.Certiorari

The literal meaning of the writ of ‘Certiorari’ is ‘To be certified’ or ‘To be informed.’ This writ is issued
by a court higher in authority to a lower court or tribunal ordering them either to transfer a case
pending with them to itself or quash their order in a case. It is issued on the grounds of an excess of
jurisdiction or lack of jurisdiction or error of law. It not only prevents but also cures for the mistakes in
the judiciary.
Facts about Certiorari in India:
 Pre-1991: The writ of Certiorari used to be issued only against judicial and quasi-judicial authorities
and not against administrative authorities
 Post-1991: The Supreme Court ruled that the certiorari can be issued even against administrative
authorities affecting the rights of individuals
 It cannot be issued against legislative bodies and private individuals or bodies.

5.Quo-Warranto

The literal meaning of the writ of ‘Quo-Warranto’ is ‘By what authority or warrant.’ Supreme Court or
High Court issue this writ to prevent illegal usurpation of a public office by a person. Through this writ,
the court enquires into the legality of a claim of a person to a public office
Facts about Quo-Warranto in India:
 Quo-Warranto can be issued only when the substantive public office of a permanent character
created by a statute or by the Constitution is involved
 It can’t be issued against private or ministerial office
Note: This writ gives the right to seek redressal to any individual other than the aggrieved
person.General Facts about Writs in India:
 Article 32 also empowers Parliament to authorize any other court to issue these writs
 Before 1950, only the High Courts of Calcutta, Bombay and Madras had the power to issue the
writs
 Article 226 empowers all the High Courts of India to issue the writs
 Writs of India are borrowed from English law where they are known as ‘Prerogative writs’.

How Writ Jurisdiction of the Supreme Court Differs from that of the High Court?:

Where Article 32 of the Indian Constitution empowers the Supreme Court to issue writs; Article 226
empowers the High Courts of
India. However, there are a few differences between the writ jurisdiction of both the courts which are
given
in the table below:

Difference Supreme Court High Court

Purpose To only enforce fundamental rights To enforce fundamental rights but also for
other purposes (The expression ‘for any
26

other purpose’ refers to the enforcement

of an ordinary legal right)
Territorial Against a person or government Against a person residing, government or
Jurisdiction throughout the territory of India authority located within its territorial
jurisdiction only.

Outside its territorial jurisdiction only if the

Power Article 32 is a fundamental right the
Supreme Court may not refuse to
exercise its power to issue the writs
cause of action arises within its territorial
jurisdiction
Article 32 is a fundamental right the
Supreme Court may not refuse to
exercise its power to issue the writs

3.3 Judicial Doctrines

Doctrine of Legitimate Expectation

Meaning :A person may have a legitimate expectation of being treated in a certain way by an
administrative authority even though he has no legal right in private law to receive such treatment.
The expectation may rise from a representation or promise made by the authority including an
implied representation or from consistent past practice.[ii]As per this doctrine, it is possible to make
an administrative authority answerable where there lies a legitimate expectation. Although the
“legitimate expectation” may not necessarily flow from a legal right, if there exists an expectation that
flows from a promise or an established practice, the doctrine of legitimate expectation will stand
strong. Nonetheless, it is pertinent
to make a note of the fact that the legitimate expectation must at all costs be valid and reasonable.
This doctrine mandates fairness in administrative action arising from a promise or an established
practice. When the public authority fails to act as per the expectation, it will be considered as a
breach of the rule of law that mandates predictability and would ultimately be ultra vires.

What is Doctrine of Proportionality?

Doctrine of proportionality is applicable in cases where rights are violated by administrative action and
the courts scrutinize administrative conduct specifically and go to the courts Issue about the accuracy
of the authority’s choices. The ordinary sense of proportionality is that it should not be more extreme
than it should be to achieve desired results. It means can not use canon to fire a sparrow. This
philosophy, in other words, seeks to
balance means with ends.
Irrationality as a ground and legitimate expectation to challenge of any decision was developed by the
Court in Associated Provincial Picture House v. Wednesbury, later came to be known as
“Wednesbury test”
to determine ‘irrationality’ of an administrative action decision of the Administrative authority shall be
deemed to be irrational
 if it is beyond the authority of law,
 if it is not based on evidence,
27

 if it is based on irrelevant consideration,

 if it is so absurd in its violation of logic or established moral standards that no reasonable person
may make such a decision on the facts and circumstances in question.
In other words, it is so ridiculous that no reasonable person would ever believe that it is beyond the
jurisdiction of the government. In practical sense it is the use of the doctrine.

Doctrine of Public Accountability

In the last decade, Doctrine of Public Accountability has been materialising steadily as a facet of
administrative law. The development of this doctrine is key in establishing a check in the increase of
misuse of power by government servants and provision of a just and speedy relief to people who may
have suffered at the hands of such exploitation. The premises of this doctrine is that the
administrative authorities power and discretion is a public trust placed in their hands and should be
exercised in realisation of such conviction.

The doctrine is based on the premise that the powers vested in a public authority are based on public
trust and must be exercised in the best interests of the public. In any democratic society, it is of
utmost importance that citizens are provided with sufficient information and knowledge about the
functioning of government. Without accountability to the public, democracy cannot survive. The
fundamental purpose of accountability is openness of government. The integrity of the legal system
and public confidence depend on full disclosure of the facts.

Accountability to the public stems from the fact that judges act like legislators (who legislate from the
bench) and not like ordinary or traditional courts. This is one of the examples of self-assumption of
the legislature by the judiciary. Unbridled discretion is always a contradiction in practical life. The
concept of public accountability is a matter of vital public interest. All three organs of government, i.e.,
the legislature, the executive and the judiciary, are subject to public accountability.

Public accountability means the obligation to be publicly accountable, i.e., to account to an

acceptable standard for the performance of functions that significantly affect the public. It is the
obligation to answer for a delegated responsibility. The duty to answer publicly arises as a duty of
fairness whenever public authorities intend to do something that significantly affects the public. The
obligation therefore goes beyond responding to formally or legally affected tasks.

Case Study of Public Accountability

Case-1;The doctrine of Public Accountability has continued to evolve in cases that have been argued
and debated in the courts. The case of Attorney General of Hong Kong v Reid (1993)[1] is one of the
most illustrative cases of bribery and constructive trust, i.e., a remedy for a party who has been
deprived of his rights because a person has taken possession of his property by illegal means. In this
case, a Crown-appointed prosecutor was paid bribes to bury criminal cases.

He used this bribe money to buy certain properties. The court held that a gift received and accepted
by a public official as payment for the breach of his or her public duties constitutes bribery. In
addition, it was held that there was a fiduciary duty such that the owners were constructive trustees of
the Crown. This meant that money was owed to the person aggrieved by the trustee and that he had
to hold the money acquired as a constructive trust.
28

Case-2;This case was followed up in India by the Supreme Court in the case of Attorney General of
India v Amritlal Prajivandas (1994)[2]. This case dealt with the validity of the SAFEMA Act (1976),
which mandates the release of assets obtained as inducements for smuggling or other dishonest
acts. The doctrine was further elaborated in the famous case of DDA v Skipper Construction
Corporation (1996)[3].

In that case, the general public was given priority and alleged to have been defrauded, whether or not
there was a fiduciary relationship or whether or not a public official was involved. The Supreme Court
stated that it has the power to pass orders irrespective of the above conditions where there was
wrongful acquisition of property. It was also held that Indian courts are not only courts of law but also
courts of equity.

Case-3;Through another judgment, NilabatiBehera v. State of Orissa (1993)[4], the courts now award
compensation and exemplary costs are imposed when a public servant abuses his power and
thereby violates fundamental rights. In this case, it was held that such a claim is recognised in public
law. It was recommended that the human rights of the aggrieved persons be given constitutional
protection through a public law review under Article 226 and Article 32 of the Constitution of India.
Judicial activism is also evident in this doctrine as the courts recognise the proper accountability of
public authorities who fail to discharge their statutory duties effectively.

3.4 Private Law review and other remedies

The action of awarding contract by a public authority falls within the purview of public law but the
terms of contract regarding rates, time specified for completion of work and other similar condition in
the contract between public authority and the private individual as also the quantum of damages for
breach of the contract, all fall within the purview of private law in respect of which no judicial review
will be permissible.

Thus, grant of licences, imposition of fees, classification of land, rules relating to dealership of
essential commodities, etc. which fall within the domain of public law, can be the subject-matter of
judicial review. Judicial review should not be mistaken for the appeal. The right of appeal is a
statutory right which can be invoked when it is so provided in the relevant Act whereas the right to
seek judicial review is available even when there is a finality clause or ouster clause in an Act that the
order passed by an authority thereunder is final and shall not be questioned in a court of law or that
the civil court has no jurisdiction to entertain a suit in respect of any matter required to be dealt with
by the authority under the Act. In the face of such a provision in any Act, an ordinary civil court has no
jurisdiction to entertain a suit for adjudication of any question arising under such an Act but the
extraordinary jurisdiction of the High Courts and the Supreme Court, conferred by the Constitution, is
not barred. Chandra Kumar case[xvii] is a glaring example.

One important aspect to be borne in mind is that in judicial review the courts are mainly concerned
with the competence of the authority and the mode in which the authority takes the decision and not
the decision taken by the authority. They are not concerned with the merits of the decision. The
courts do not substitute their opinion or decision in place of the impugned decision of the authority but
29

in appeal the appellate court does have the power to consider the merits of the case and substitute its
own decision for that of the subordinate court or tribunal. It is profitable to be apprised of the words of
Lord Hailsham L.C., in the case of Chief Constable of N.W.[xviii]:

"Judicial review is concerned not with decision but with decision-making process. Unless that
restriction on the power of court is observed, the court will under the guise of preventing the abuse of
power, be itself guilty of usurping power."

An injunction
An injunction is a court order requiring a person to do or cease doing a specific action. There are
three types of injunctions: Permanent Injunctions,Temporary restraining orders and preliminary
injunctions. Temporary Retraining Orders (TRO) and Preliminary injunctions are equitable in nature.
They can be issued by the judge early in a lawsuit to stop the defendant from continuing his or her
allegedly harmful actions.
Choosing whether to grant temporary injunctive relief is up to the discretion of the court. Permanent
injunctions are issued as a final judgment in a case, where monetary damages will not suffice. Failure
to comply with an injunction may result in being held in contempt of court, which in turn may result in
either criminal or civil liability. See, e.g., Roe v. Wade 410 US 113 (1973).orruption against certain
public functionaries and for related matter

Suit For Damages

The term ‘damages’ may be defined as the monetary compensation payable by the defaulting party to
the aggrieved party for the loss suffered by him. The aggrieved party, may therefore bring an action
for damages against the party who is guilty of the breach of the contract. And the party, guilty of the
breach, id liable to pay damages to the aggrieved party. The primary aim of damages is to
compensate the aggrieved party, and to place him in the same position which he would have
occupied had the breach of contract not occurred. It may, therefore, be noted that the damages are
given by way of compensation for the loss suffered by the aggrieved party, and not for the purpose of
punishing the default party.

Ombudsman (lokpal And Lokayuktas)

An ombudsman is a government-appointed official who investigates complaints (usually made by
private citizens) against businesses, financial institutions, government departments, or other public
entities, and attempts to resolve conflicts or concerns raised through mediation or recommendations.
Ombudsmen are also referred to as public defenders or national defenders. In India, the offices of
National and State Ombudsman are referred to as Lokpal and Lokayuktas, respectively.

What are Lokpal and Lokayukta?

The Lokpal and Lokayukta Act, 2013 provided for the establishment of Lokpal for the Union and
Lokayukta
for States. These institutions are statutory bodies without any constitutional status. They perform the
function of an "ombudsman” and inquire into allegations of cinjunction
30

UNIT-4- Principles of Natural Justice , State Liability and Administrative

adjudication

4.1 : Principles of Natural Justice

Meaning –
1.Principles of Natural Justice ‖ (PNJ) , derived from the expression „Jus Natural” of the Roman Law,
does not have force of law as they may or may not form part of statute but they are necessarily to be
followed.
2.The adherence to principles of natural justice as recognized by all civilized States is of supreme
importance when a quasijudicial body embarks on determining disputes between the parties, or any
administrative action involving civil consequences is in issue. These principles are well settled.
3. Principles of natural justice are those rules which have been laid down by the Courts as being the
minimum protection of the rights of the individual against the arbitrary procedure that may be adopted
by a judicial, quasi-judicial and administrative authority while making an order affecting those rights.
These rules are intended to prevent such authority from doing injustice.
4. The rules of natural justice do not supplant the law of the land but only supplement it. It is now
firmly established that in the absence of express provisions in any statute dispensing with the
observance of the principles of natural justice, such principles will have to be observed in all judicial,
quasi-judicial and administrative proceedings which involve civil consequences to the parties. (A.K
Kraipak vs. Union of India
(AIR 1970 S.C.150) & Maneka Gandhi (AIR 1978 S.C.597).
5. Natural justice is the essence of fair adjudication, deeply rooted in tradition and conscience, to be
ranked as fundamental. The purpose of following the principles of natural justice is the prevention of
miscarriage of justice.

Natural Justice recognizes three principles:

(i) Nemo debet essc judex in propria causa./ Rule against bias
(ii) Audi alterem partem, and
(iii) Speaking orders or reasoned decisions.
The first two have come to us from the Roman Law and the third one is a recent
Innovation due to the rapid development of the constitutional as well as administrative Law
(i)Nemo judex causa in sua:: It is a Latin phrase that means, “Rule against bias.” It is one of the
first principles of natural justice, which states that no one shall be judge in his own cause, and that
any judging authority must be unbiased and neutral while making a decision. 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.

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.
A decision which is a result of bias is a nullity and the trial is Coram non judice.

(ii) Audi Alteram Partem

31

Audi Alteram Parterm a phrase of Latin which also means audiatur et altera pars. Its meaning is
"Hear the other side" or the other side also heard as well. This is a strong principle that no person
shall be judged without a fair hearing. This principle is meant to give each party to give opportunity to
respond to the evidence against them. biased or partial, he or she is disqualified from judging any
issue before them.
Generally, this maxim includes two elements: (i) Notice; and (ii) Hearing.
(iii) Speaking orders or reasoned decisions
A reasoned decision or speaking order is a decision that is supported by reasons. It is an intelligible
order or an order which is comprehensive, i.e. an order which speaks of its own. The term ‘Reasoned
Decisions’ or ‘Speaking orders’ means that the order which is passed affecting the rights of an
individual must be speaking order. It introduces clarity and minimizes arbitrariness on the part of
administration

INCIDENTS OF AUDI ALTRRAM PARTEM

A. Notice Right to Notice

 The term notice originated from the Latin word notitia which means being known. In its popular
sense it is equivalent to information, intelligence or knowledge. In legal sense it embraces
knowledge of circumstances that ought to induce suspicion or belief, as well as direct
information of that fact.

(i) Canara Bank v. Debasis Das[2]

 Notice embodies rule of fairness and must proceed an adverse order.

 It should be clear and precise so as to give the party adequate information of the case he has
to meet Phil stuff time given should be adequate for a person so that he could prepare an
effective defense full stuff denial of notice and an opportunity to respond make an
administrative decision completely vitiated.

(ii) BALCO Employees' Union v. UOI[3]

 The rule of Fair hearing is the basic concept of the principles of natural justice. The Omni
potency inherent in the doctrine is that no one should be condemned unheard.
 In the field of administrative action, this principle has been applied to ensure fair play and
justice to affected persons.
 However, the doctrine is not the cure to all ills and the process. Its application depends upon
the factual metrics to improve administrative efficiency, expediency and to mete out justice.
 The procedure adopted must be just and fair.

But generally, a notice in order to be adequate must contain the following:

a. Time place and nature of hearing

b. Legal authority under which hearing is to be held
32

c. Statement of specific charges which the person has to meet

d. Particular penalty or action which is proposed to be awarded or taken

(iii) State of U.P. v. Vam Organic Chemicals Ltd.[4]

 The Supreme Court stressed that before any notices issued, there must exist sufficient
reasons for your proposal action for which notice is to be issued.
 Therefore, reasons are a precondition for issuing the notice, and these must be contained in
notice.
 In this case a person was granted recognition certificate for dealing in certain items.
Thereafter, government decided to delete certain items from the certificate.
 Quoted that sufficient reasons are a precondition before notice is issued and they should form
part of the notice.
 The code further emphasized that even if it is a rectification of a mistake, notice must be given
very a person would suffer a serious prejudice. Rectification cannot die vest a vested right.

(iv) Keshav Mills Co. Ltd v. UOI[5]

 The requirement of notice will not be insisted upon as a mere technical formality when the
party concerned clearly knows the case against it, and he's not there by plagiarized in any
manner in putting up an effective defense.
 Therefore in this case the court did not crash the order of the government taking over the mill
for a period of five years on the technical ground that their parents were not issued notice
before this action was taken, as at an earlier stage a full scale hearing had already been given
and there was nothing more which the appellants wanted to know.

Consequences of non-issue of notice:

1. Non issuance of notice or mistake in the issue of notice, or defective service of notice does not
affect the jurisdiction of the authority if, otherwise a reasonable opportunity of being hard has
been given.
2. Issuance of notice as prescribed by law constitutes a part of reasonable opportunity of being
heard.
3. If Richard eyes has been caused by non-issuance or invalid service of notice, the proceedings
would be vitiated. But, irregular service of notice would not render the proceedings invalid,
more so if the person by his conduct has rendered service impracticable or impossible or is
otherwise aware of the proceedings or notice either actually or constructively.
4. In case of non-issuance of northeast or defective service which violates the principles of
natural justice, the administrative authority may decide the case de Novo With proper notice.
Violation of the principles of natural justice vitiates Older but not the preceding.
5. He show-cause notice if contains unspecified, vague or unintelligible allegations would imply a
denial of proper opportunity of being heard

B) Hearing
33

 The second requirement of Audi alteram partem maxim is that the person concerned must be
given an opportunity of being heard before any adverse action is taken against him.

(i) Cooper v. Wandsworth Board of Works[6

 The defendant Board had power to demolish any building without giving any opportunity of
hearing if it was erected without prior permission.
 The Board demolished the house of the plaintiff under this provision.
 The action of the Board was not in violation of the statutory provision. The court held that the
Board's power was subject to the qualification that no man can be deprived of his property
without having an opportunity of being heard.

(ii) Fateh Singh v. State of Rajasthan[7]

 The reasonable opportunity of hearing which is also well known as 'fair hearing' is an important
ingredient of the audi alteram partem rule.
 This condition may be complied by the authority by providing written or oral hearing which is
the discretion of the authority, unless the statue under which the action being taken by the
authority provides otherwise.

(iii) Union of India v. J.P. Mitter[8]

 The rule of fair hearing requires that the affected party should be given an opportunity to meet
the case against him effectively and this may also be achieved by providing opportunity to the
affected person by making 'written representation' instead of oral or personal hearing

Rights

1. Right to present case and evidence/ oral hearing

i. A.K. Roy v. UOI[9]

 Supreme Court held that if the detenu desires to examine any witnesses, he shall
have to keep them present at that point at a time and no obligation can be cast
on the Advisory Board to someone them.
 The board can also limit the time within which the detenu must complete his
evidence.

2. Right to rebut adverse evidence

i. Dhakeshwari cotton Mills Limited v.Commr of Income Tax[10]

 The court quashed the order of the tax tribunal where the information supplied by
the Department against the assesses was not disclosed to him.
34

 This does not, however, necessitate the supply of adverse material in original in
all cases.
 It is sufficient if the summary of the contents of the adverse material is made
available, provided it is not misleading.

(C) Evidence:

i. Stafford v. Minister of Health[11]

o Evidence is an important part which is to be brought properly before the Court in the
presence of both the parties and a judicial or quasi-judicial authority must have to act on
the evidence produced.
o Ordinarily, no evidence personal or oral should be received at the back of other party
and if any such evidence is recorded, it is duty of the authority that such evidence must
be made available to the other party.

ii. Keshav Mill Co. v. Union of India[12]

o The Supreme Court was not ready to lay down an inflexible rule that it was not
necessary to show the report of enquiry committee to the affected person.
o The court made it clear that whether the report of the enquiry committee should be
furnished or not depends in every individual case on merits of the case.

(D) Cross Examination:

 The adjudicating authority in a fair hearing is not required only to disclose the person
concerned the evidence or material to be taken against him, but he should be provided an
opportunity to rebut the evidence or material.
 The important question before the authority is that the witness should be cross-examined or
not.

(i) Kanungo & Co. v. Collector of Customs

 The business premises of a person were searched and certain watches were confiscated by
the authority under Sea Customs Act.
 The said person was not allowed to cross-examine the persons who gave information to the
authority.
 There was no violation of the natural justice and the Court held that the principles of natural
justice do not require the authority to allow the person concerned the right to cross examine
the witnesses in the matters of seizure of goods under the Sea Customs Act.
 If the person concerned is allowed the right to cross-examine, it is not necessary to follow the
procedure laid down in the Indian Evidence Act.
35

(E) Legal Representation

 Normally, the representation through a lawyer in the administrative adjudication is not

considered as an indispenasble part of the fair hearing.
 But in certain situations if the right to legal representation is denied, then it amounts to violation
of natural justice.,

i. M.H. Hoskot v. State of Maharashtra[13]

o The Supreme Court held that while importing the concept of Fair procedure in Article 21
of the Constitution, held that the right to personal liberty implies provision by the state of
free legal service to a prisoner who is indigent or not, held that the right to personal
Liberty implies provision by the state of free legal service to a prisoner who is indigent or
otherwise disabled from securing legal assistance where the ends of justice call for such
service.

ii. Khatri v. State of Bihar[14]

o The Supreme Court further ruled that state is constitutionally bound to provide legal aid
to the poor or indigent accused not only at the stage of trail but at the time of remind
also.
o Such right cannot be denied on the ground of financial constraints or administrative
inability or that the accused did not ask for it.
o The Supreme Court emphasized that it is the duty of the presiding officer to inform the
accused of such right.

Exceptions To The Principles Of Natural Justice

Now it is well established preposition of Law that the Principles of Natural Justice supplements the
enacted statute with necessary implications, accordingly administrative authorities performing public
functions are generally required to adopt “fair procedure” and in relation to a variety of different
circumstances, we considered the content of the requirements of procedural fairness. A person may
also have legitimate expectation of fair hearing or procedural fairness/treatment but as Natural Justice
Principles is to be invoked in doing justice, where their observance leads to injustice they may be
disregarded. There are several well established limitations on Principles of Natural Justice. Existence
of certain circumstances deprives the individual from availing the benefit of principles of natural
justices, authors in this research work undertakes to cover the circumstances in which judiciary
admitted the exceptions to the observance of Principles of Natural Justice.
Principles of Natural Justice are ultimately weighed in the balance of fairness and hence the Courts
have been circumspect in extending principles of natural justice to situations where it would cause
more injustice rather than justice so, where a right to be fairly heard has been denied, it is more
probably a case of bad decision than of true exception, then principles of natural justice can be
discarded. Application of the principles of natural justice can be excluded either expressly or by
necessary implication, subject to the provisions of Article 14 and 21 of the constitution. However,
along with constitutional limitations in India Common Law exception are also preferred.
36

Common Law Exceptions to the Principles of Natural Justice:

The requirements of procedural fairness are on first appearance applicable to Judicial, Quasi-Judicial
and Administrative Proceedings, however, the decision maker may be exempt from all or some of the
procedural safeguards that would otherwise be required. Several factors may be identified as capable
of
excluding the normal procedural fairness requirements in Common Law Courts are:
(i)Exclusion-in-case-of-emergency,
(ii)Express statutory exclusion,
(iii)Where discloser would be prejudicial to public interests
(iv) Where prompt action is needed,
(v)Where it is impracticable to hold hearing or appeal,
(vi)Exclusion in case of purely administrative matters.
(vii)Where no right of person is infringed,
(viii)The procedural defect would have made no difference to the outcome.
(ix) Exclusion on the ground of ‘no fault’ decision maker. We shall examine them in turn.

4.3- Liability of State

The Doctrine of Sovereign Immunity: It is pertinent to examine in brief historically the action taken
by individuals against the state. The Indian law was in a state of confusion from its colonial times.
This was ecause the concept of tortuous liability – as it existed in England – was blindly followed in
India. Though liability existed in some areas, the Indian courts had been so obsessed with the maxim
“King can do no wrong” that they made a distinction between sovereign and non – sovereign
functions. The decision of the Supreme Court in Kasturi Lal v. State of Uttar Pradesh, laid down that
the exercise of a sovereign function will not give rise to a tort action. This decision was erroneous,
and to an extent was resolved by later decisions enumerated in this article, but has still not been
completely overruled. Most judges either conveniently avoid reference to it or distinguish its ratio.

Liability of administration in contract/ Government contract: The government contact has

become more significance in these days. Government will have to enter into contact with private
organizations in order to carry out welfare activities. Government contract is that where one party is
either central
government/state government. The contact act defines the contract as "an agreement which is
enforceable by law " (1). But in that Act now-where mentioned /defined about government contract.
The contract must fulfill the essential requirement of section 10 of Indian contract Act,1872:
There should be free consent, Parties must be competent to enter into contract, Contract should be
for lawful consideration and for lawful object,
Constitutional provisions
Article 294: all property and assets which immediately were vesting with majesty for the purpose of
the government dominion of India and government of each governors province shall such property
and assets vest respectively in the Union and state. and all rights, liabilities and obligations of
government of the dominion of India and governor's province which is arising out of contract shall be
the government of India
and of corresponding state.
Article 298:: The union and state shall carry out any trade or business and for that purpose, it can
acquire, dispose or hold any property and can enter into contract.
Article 299:: All contracts made in exercise of the executive power of the union or state shall be
expressly made by the president or by the governor of the state, and all such contracts and the
assurance of property shall be executed on behalf of the president or governor of the state and they
shall not be made personally liable for in respect of contract or assurance made for the purpose of the
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constitution nor shall any such individual person executing contract or assurance on behalf of them
shall be made personally liable.
Article 300:: The government of India and government of state may be sued subjects to the provision
made by the act of parliament and legislature of state or by virtue of powers conferred by this
constitution. Compensatory Jurisprudence: "While studying the biological, sociological, psychological,
and criminological details about the victim - victimology brings into focus the victim-offender
relationship and role played by victim." - Fattah
Compensation to victims is a recognised principle of law being enforced through the ordinary civil
courts. Under the law of torts the victims can claim compensation for the injury to the person or
property suffered by them. It is taking decades for the victims to get a decree for damages or
compensation through civil courts, which is resulting in so much hardship to them. The emergence of
compensatory jurisprudence in the light of human rights philosophy is a positive signal indicating that
the judiciary has undertaken the task of protecting the right to life and personal liberty of all the people
irrespective of the absence of any express constitutional provision and of judicial precedents. Article
32 of the Constitution of India confers power on the Supreme Court to issue direction or order or writ,
including writs in the nature of habeas corpus, mandamus, prohibition, quo-warranto and certiorari,
whichever may be appropriate, for the enforcement of any of the rights conferred by Part III of the
Constitution. The right to move the Supreme Court by appropriate proceedings for the enforcement of
the rights conferred by Part III is "guaranteed", that is to say, the right to move the Supreme Court
under Article 32 for the enforcement of any of the rights conferred by Part III of the Constitution is
itself a
fundamental right.
The approach of redressing the wrong by award of monetary compensation against the State for its
failure to protect the fundamental right of the citizen has been adopted by the courts of Ireland, which
has a written Constitution, guaranteeing fundamental rights, but which also like the Indian
Constitution contains no provision of remedy of compensation for the infringement of those rights.
That has, however, not prevented the courts in Ireland from developing remedies, including the award
of damages, not only against individuals guilty of infringement, but also against the State itself. Article
32(1) provides for the right to move the Supreme Court by appropriate proceedings for the
enforcement of the fundamental rights. The Supreme Court under Article 32(2) is free to devise any
procedure for the enforcement of fundamental right and it has the power to issue any process
necessary in a given case.

Liability of administration in tort

State liability refers to the liability of the state arising from the acts of omission/ commission
committed by its servants. It has been governed by written or unwritten laws and is not a static
concept. The State’s liability for the tortious acts of its servants, known as the tortious liability of the
State, makes it liable, voluntarily or involuntarily, for acts of omission and commission, and puts it
before the Court of Law in a
claim for unliquidated damages to such acts. This liability is also a branch of the Law of Torts.

Law of Torts like various other laws has travelled through the British to this country and is now varied
because it is regulated by local laws and constitutional provisions. English law – In England, the
Crown’s outright insusceptibility was acknowledged under precedent-based law. The administration
depended on the maxim “the King can’t be blamed under any circumstance”. In 1863, in Tobin v. R.,
the court observed: “if the Crown were at risk in tort, the rule might have appeared to be insignificant”.
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In 1947 the Crown Proceeding Act was enacted which put the Government in an indistinguishable
position from a private person’s view.

Indian Law – The maxim ‘the king can’t be blamed under any circumstance’ was never acknowledged
in India. The government’s absolute insusceptibility was not understood in the Indian legal system
before the constitution’s beginning and in numerous cases, the government was subjected to its
employees’ convoluted actions. According to Article 294(4) of the Constitution, the liability of the
Government of the
Union or a Government of the State can arise ‘from some contract or other.’ Article 12 of the Indian
Constitution defines the term ‘state’. Under Article 300 (1), the degree of such liability is settled. It
states the Union of India or State Government’s liability to be the same as that of Dominion of India
and the Provision before the Constitution commenced. The idea of open responsibility involves an
open concern which is imperative. It is a settled law that everysingle optional power must be sensibly
practised in greater open intrigue.
In Arvind Dattatreya v. Maharashtra State, the Supreme Court refused the transfer of a police officer
because the transfer of the officer was nothing but mala fide exercise of the power to demoralise
honest officers who would efficiently discharge the duties of a public office. It was observed that the
Government demoralises the officers who discharge the duties honestly and diligently and bring to
book the persons indulging in black marketing and contrabanding.
The vicarious liability of the State (for torts) shall be borne by its servants in the exercise of the duties
of the State. If the acts performed were necessary to protect life or property, the State would not be
held liable. Acts such as judicial or quasi-judicial decisions made in good faith also invite no liability
whatsoever. There are specific statutory provisions that are binding on the administrative authorities
However, such protection would not scale up malicious acts. The burden of proving a malicious act
would lie on the person who is assaulting the administrative action. The principles of tort law would
apply in determining what is a tort and the public servant would also have access to all of the
defenses available to
the respondent in a tort lawsuit.

What is Compensatory Jurisprudence?

Compensatory Jurisprudence focuses on providing compensation to victims of harm, typically due to

wrongful acts such as negligence, breach of contract or criminal offences. It seeks to restore the
victim to their original position before the harm occurred by awarding monetary damages or other
forms of restitution. This branch of law emphasises the victim’s right to be compensated for losses,
including physical injury, emotional distress and financial damages.

Compensatory Jurisprudence is grounded in principles of fairness and justice, ensuring that those
responsible for causing harm are held accountable and that victims receive adequate redress. It plays
a crucial role in civil litigation and is an essential aspect of the justice system, promoting
accountability and providing relief to affected individuals.

4.4 Administration

Administrative Adjudication : Meaning dministrative decision-making’ or ‘Administrative

Adjudication’ is a by-product of an intensive form of government, and consequential socialization of
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law (thus causes for the evolution of administrative adjudication and delegated legislation are same);
the traditional judicial system cannot give to the people that quantity and quality of justice which is
required in a welfare state, because it is the highly individualistic and ritualistic approach.In the words
of Prof White, “…administrative adjudication means the investigation
and settling of a dispute involving a private party on the basis of a law and fact by an administrative
agency.” Prof Dimock defines Administrative Adjudication as the process by which administrative
agencies settle issues arising in the course of their work when legal rights are in question. Blachly
and Oatman describe administrative tribunals or Administrative Courts as, “authorities outside the
ordinary court system which interpret and apply the laws when acts of public administration are
attacked in formal suits or by other established methods.”

Reasons for the growth of Administrative Adjudication

 Administrative Adjudication protect the rights of citizens at the cost of the state authority. Following
mentioned are some of the reasons contributing to the growth of Administrative Adjudication:
 Administrative authorities can help in taking various preventive and cautionary measures. As it has
been observed that the disputing parties approach the courts of law for redressal, however, the same
is not the case with Administrative authorities as herein, the preventive actions are already taken
which then prove to be more effective and useful than what happens in regular courts i.e. punishing
the perpetrator after he has committed a breach of law.
 Administrative authorities endure effective measures for the enforcement of the aforesaid preventive
measures e.g. suspension, revocation and cancellation of license, destruction of contaminated
articles etc., which are not generally available through regular courts of law.
 The judicial system of India is considered to be inadequate in deciding and settling all kinds of
disputes, for the reasons it being, slow, incompetent, costly, complex and formal. The Indian court are
already overloaded with number of cases and it becomes impossible to expect speedy disposal of
even very important matters. Thus, the development of administrative authorities such as industrial
tribunals and labour courts have led to bring a relief in the number of cases. Lastly, these tribunals
had updated techniques and expertise to handle such complex issues.
 The legislative process followed in our country is considered to be quite inappropriate. The lengthy
proceedings and obsolete techniques followed in the Indian courts make the process of delivering
justice delayed. Even having detailed provisions in some legislations made by the legislature, they
are considered to be defective. Therefore, it the need of the hour to delegate some powers to the
administrative authorities.

Difference between Judicial and Quasi-Judicial Acts

SL JUDICIAL ACTS QUASI-JUDICIAL ACTS

No
1 The judicial acts require a proper
proceeding of the court and the judge is
duty-bound.
2 The judicial acts are bound by the common
law precedents to give decisions.
3 In absence of any common law precedent,
judicial acts may invent newlaws.
The quasi-judicial acts don’t require the courts
and decisions taken under them are by the
person, who isnot a judge.
The quasi-judicial acts are not usually bound.
The quasi-judicial is based on the decisions of
the existing laws.

4.5 Administrative tribunals

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It is the name given to the ‘administrative exercise of the judicial functions. It is the term
synonymously used with the administrative sections and decision making. It is the name given to
various ways of deciding the dispute outside the ordinary courts. It is constitutional, though it is a
negation of the principle of separation of powers. It is the participation or the involvement of the
executive of the government (administrative authorities) in the judicial functions. Through the
instrumentality of the administrative adjudication, administrative agencies can pass the authoritative
and appealable decisions. This adjudicatory function is expired in a variety of ways. However, the
most popular mode of adjudication is
through tribunals. Generally, a tribunal is any ‘person’ or ‘institution’. Authority to judge, adjudicate
and determine claims or disputes whether or not have tribunals n it. Tribunals can be defined as
‘judgement seats’ or ‘court of justice’ or ‘board or committee’ formed to adjudicate on the claim of a
particular kind. Tribunal is not originally a part of the constitution but they were introduced by the 42nd
Amendment Act, 1976.
Administrative tribunals are quasi-judicial authorities that are established under an Act of the
Parliament or of State Regulations which is changed with the duty to discharge, adjudicatory
functions.

Advantages of administrative tribunals

 They offer flexibility when compared to ordinary courts.
 They are cheaper and offer speedy justice.
 The procedure followed by the Tribunals is the simplest and is easy to understand.
 They offer relief to the ordinary courts that are already over-burdened courts with various suits.
 They have their experts in the panel who specialise in a particular area like labour law, wages
etc.
 They provide sufficient administrative acts and fair justice to all.
Limitations of administrative tribunals
 They consist of members and heads that may not possess any background in law.
 As they do not rely on the uniform precedence and hence may lead to arbitrary and inconsistent
decisions.
Disadvantages of administrative tribunals
 They may go against the spirit of the Rule of Law. The Rule of Law ensures that there is arbitrary
power. It is not exercised by the institutions or the individuals.
 It is the principle that everybody is subject to and accountable to laws, which are in favour of them.
 They don’t have a uniform code of procedure whereas ordinary courts do not have a uniform code.
 Most judges do not enjoy the same independence as enjoyed by the judges and the executives of
the courts.
 The administrative tribunals are handled by the individuals like the administrators and technical
heads who may have no experience or training in judicial proceedings.
 They hold summary trials and do not follow any procedure, so it is not possible to predict the
course of future decisions.

PROCEDURE AND POWERS OF Administrative Tribunals Act, 1985

Section 22 of the Administrative Tribunals Act, 1985 lays down the powers and procedure of tribunals
discussed below-
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1. A tribunal is not bound to follow the procedure laid down by the Code of Civil Procedure, 1908. It
has the power to regulate its own procedure but must abide by the principle of natural justice.
2. A tribunal shall decide the applications and cases made to it as rapidly as possible and every
application shall be decided after scrutinizing the documents and written submissions and perceiving
the oral arguments.
3. Tribunals have the same powers as vested by the civil courts under the Code of Civil Procedure,
1908, while trying a suit, with regard to the following subject-matter-
4. Summoning and enforcing the attendance of any person and examining him on oath;
5. Production of documents;
6. Receiving evidence on affidavits;
7. Ask for any public record or document from any office under Section 123 and 124 of the Indian
Evidence Act, 1872;
8. Issuing commissions for the examination of witnesses and documents; and
9. Reviewing its decisions

constitutional validity of the Administrative Tribunals Act, 1985

CASE LAWS

S.P SAMPATH KUMAR VS UNION OF INDIA

Facts: The constitutional validity of the Administrative Tribunals Act, 1985, was predominantly
challenged on the ground that this Act excludes the jurisdiction of High Courts under Articles 226 and
227 with regard to service matters and hence, destroyed the concept of judicial review which was an
essential feature of the Indian Constitution.

Judgment: A five-Judge Bench of the Court upheld the validity of the Act except Section 6(1)(c). The
court held that although this Act has excluded the jurisdiction of judicial review exercised by the High
Courts in the service matters it has not entirely excluded the concept of judicial review. The
jurisdiction of the Supreme Court under Article 32 and 136 has not been excluded by this Act and
kept unscathed.

Thus, there still exists an authority where matters of injustice can be entertained by judicial review.
The judicial review which is the part of the basic structure of the Indian Constitution can be taken
away from a particular area only if an alternative effectual institutional mechanism or authority is
provided.

However, Section 6 (1)(c) of the Act was held to be unconstitutional as it gave unrestricted power to
the Government to appoint the Chairman, Vice-Chairman and other members of the tribunals. These
appointments must be made by the Government in a meaningful and effective manner only after
consulting the Chief Justice of India.

The court recommended that the term of 5 years prescribed under the Act for Chairman, Vice-
Chairman and other members of the tribunal is not rational because it would act as dissuasion for the
good and generous people to accept the job in the tribunal and should, therefore, be reasonably
extended.
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The directions given by the Supreme Court came into effect through the Administrative Tribunals
(Amendment) Act, 1987.

UNION OF INDIA VS GANDHI PRESIDENT, MADRAS BAR ASSOCIATION

Facts: The constitutionality of the National Company Law Tribunal (NCLT) and National Company
Law Appellate Tribunal (NCLAT) on the following grounds-

1. Parliament does not have authority to vest the judicial functions in any tribunal that have been
traditionally performed by the High Courts since so long.

2. Transferring the entire company jurisdiction of the High Court to the tribunal are violative of the
doctrine of Rule of Law, Separation of Powers and Independence of the Judiciary.

3. The various provisions of Part 1B and 1C of the Companies Act are defective and unconstitutional,
being in breach of constitutional principles of Rule of Law, Separation of Powers and Independence
of the Judiciary.

Judgment: The court upheld the constitutionality of NCLT and NCLAT in exercising the powers and
jurisdiction of the High Court subject to necessary changes to be made in the Companies Act, 1956
as amended in 2002, through suitable amendments

The court acknowledged and upheld the constitutional power of the Parliament to constitute tribunals
for adjudication of disputes. The legislative competence of Parliament to provide for the creation of
courts and tribunals can be traced to Article 245, 246 and 247 of the Constitution read with various
entries in the Union List and the Concurrent List which is in no way affected or controlled by Article
323A or 323B of the Constitution.

The court further added that it cannot be assumed that constitution of tribunals and transferring
judicial powers per se infringe the rule of law, separation of powers and independence of the judiciary
because the Constitution enables both courts and tribunals to exercise judicial powers.

What matters the most is whether the constituted tribunals respect and maintain the principles of
separation of powers, rule of law and independence of the judiciary. The constitution of NCLT and
NCLAT must be subject to judicial review so that the court in the exercise of judicial review look into
the matter to check if these principles are compromised by such tribunalisation and may interfere in
between to preserve the same.