Administrative law

Unit-I

Qs. Definition, nature and scope

Ans. Administrative law is the law that governs the administrative actions. As per Ivor Jennings- the
Administrative law is the law relating to administration. It determines the organisation, powers and duties
of administrative authorities. It includes law relating to the rule-making power of the administrative
bodies, the quasi-judicial function of administrative agencies, legal liabilities of public authorities and
power of the ordinary courts to supervise administrative authorities. It governs the executive and ensures
that the executive treats the public fairly.

Administrative law is a branch of public law. It deals with the relationship of individuals with the
government. It determines the organisation and power structure of administrative and quasi-judicial
authorities to enforce the law. It is primarily concerned with official actions and procedures and puts in
place a control mechanism by which administrative agencies stay within bounds.

However, administrative law is not a codified law. It is a judge-made law which evolved over time.

Meaning:

Administrative law is that law which deals with the relationship between a country’s citizens with the
government. It determines the organizational and power structure of the administration and quasi-judicial
bodies to enforce the rule of law. Administrative law is primarily concerned with governmental and
administrative actions and process and puts in a control mechanism to prevent administrative agencies
from spiraling out of control. It is not codified law and rather has developed over time. It ensures that the
authorities don’t misuse or abuse the powers vested in them.

Definition:

Several jurists and scholars have defines administrative law to reveal the scope and various dimensions of
this branch of law.

According to the definition of Sir Ivon Jennings” Administrative Law can be defined as a law relating to
administration. It determines the organization, powers and duties of administrative authorities.”

Massey gives a broad and comprehensive definition “ Administrative law is that branch of public law
which deals with the organization and powers of administrative and quasi administrative agencies and
prescribes the principles and rules by which official actioal action is reached and reviewed in relation to
individual liberty and freedom”.

Austin has defined, it as the law “which determines the ends and modes to which the sovereign power
shall be exercised.”

Nature of Administrative Law

Friedman’s view on the nature of Administrative law is widely accepted and includes 5 points as follows:
 I. it includes the legislative powers of the administration, both at common law and under the statute
II. the administrative powers of administration under both common law and statutes
III. the judicial and quasi-judicial powers all under statutory provisions
IV. the legal liability of public authorities
V. the power of the ordinary courts to supervise the administrative authorities

Scope:

Administrative law determines the organization, powers and duties of administrative authorities. The
emphasis of Administrative law is on the procedural aspect of formal adjudication. Its concept founded on
the following:

I. Principles of natural justice

II. Rule of law
III. Power is conferred on the administration by law
IV. No power is absolute or uncontrolled howsoever broad the nature of the same might be
V. There should be reasonable restrictions on exercise of such powers depending on the solution.
VI. Since its judge made law and evolves over time, there is room for modification. While the basic
principles remain the same, the scope is wide enough to incorporate and cull out new rules and
regulations, to suit the requirement of time.

The growth of Administrative Law.

ENGLAND

In 1885 Albert Venn Dicey, a British jurist, rejected the whole concept of Administrative law. Hence, the
numerous statutory discretionary powers given to the executives and administrative authorities and
control exercised over them were all disregarded to be able to form a separate branch of law by the legal
thinkers. Until the 20th Century, Administrative law was not accepted as a separate branch of law. It was
only later that the existence of Administrative law came to be recognised.

The Lord Donoughmore Committee, in 1929, recommended for better publication and control of
subordinate legislation. The principle, King can do no wrong, was abolished and the scope of
Administrative law expanded by virtue of the Crown Proceeding Act in 1947 which allowed initiating
civil proceedings against the Crown as against any private person.

In 1958, Tribunals and Inquiries Act was passed for better control and supervision of Administrative
Decisions.

Breen v Amalgamated Engineering Union [1971] 2 QB 175 was the first case wherein the existence of
Administrative law in the United Kingdom was declared.

UNITED STATES OF AMERICA

In the United States of America, the existence of administrative law and its growth was ignored until it
grew up to become the fourth branch of the State. By then many legal scholars like Frank Goodnow and
Ernst Freund had already authored a few books on Administrative law.
It was in 1933 that a special committee was appointed to determine how judicial control over
administrative agencies could be exercised. Thereafter, in 1946 The Administrative Procedure Act was
passed which provided for judicial control over administrative actions.

INDIA

The Mauryans and the Guptas of ancient India had a centralised administrative system. It was with the
coming of the British that Administrative law in India went through a few changes. Legislations
regulating administrative actions were passed in British India.

After independence, India adopted to become a welfare state, which henceforth increased the state
activities. As the activities and powers of the Government and administrative authorities increased so did
the need for ‘Rule of Law’ and ‘Judicial Review of State actions’.

Henceforth, if rules, regulations and orders passed by the administrative authorities were found to be
beyond the authorities legislative powers then such orders, rules and regulations were to be declared ultra-
vires, unconstitutional, illegal and void.

Reasons for growth of Administrative law.

The concept of a welfare state

As the States changed their nature from laissez-faire to that of a welfare state, government activities
increased and thus the need to regulate the same. Thus, this branch of law developed.

The inadequacy of legislature

The legislature has no time to legislate upon the day-to-day ever-changing needs of the society. Even if it
does, the lengthy and time-taking legislating procedure would render the rule so legislated of no use as
the needs would have changed by the time the rule is implemented.

Thus, the executive is given the power to legislate and use its discretionary powers. Consequently, when
powers are given there arises a need to regulate the same.

The inefficiency of Judiciary

The judicial procedure of adjudicating matters is very slow, costly complex and formal. Furthermore,
there are so many cases already lined up that speedy disposal of suites is not possible. Hence, the need for
tribunals arose.

Scope for the experiment

As administrative law is not a codified law there is a scope of modifying it as per the requirement of the
State machinery. Hence, it is more flexible. The rigid legislating procedures need not be followed again
and again.

Difference between Administrative law and Constitutional law.

There are significant differences between Administrative law and Constitutional law.
A Constitution is the supreme law of the land. No law is above the constitution and hence must satisfy its
provisions and not be in its violation. Administrative law hence is subordinate to constitutional law. In
other words, while Constitution is the genus, administrative law is a species.

Constitution deals with the structure of the State and its various organs. Administrative law, on the other
hand, deals only with the administration.

While Constitution touches all branches of law and deals with general principles relating to organisation
and powers of the various organs of the State; administrative law deals only with the powers and
functions of the administrative authorities.

Simply speaking the administrative authorities should first follow the Constitution and then work as per
the administrative law.

Qs Rule of Law

Ans. In order to understand the concept of rule of law, it is to be comprehended that the state is governed
not by the ruler or the nominated representatives of the people but by the law. The term ‘Rule of
Law’ is nowhere defined in the Indian Constitution but this term is often used by the Indian judiciary
in their judgments. Rule of law has been declared by the Supreme Court as one of the basic features of the
Constitution so it cannot be amended even by the constitutional amendment. Rule of law is seen as an
integral part of good governance.

Meaning of Rule of Law

To simply understand the meaning of rule of law, it means that no man is above law and also that every
person is subject to the jurisdiction of ordinary courts of law irrespective of their position and rank.

The term ‘rule of law’ is originated from England and India has taken this concept. The concept of
rule of law further requires that no person should be subjected to harsh or arbitrary treatment. The word
‘law’ in rule of law means that whether he is a man or a society, he must not be governed by a man
or ruler but by law. In other words, as per Article 13 of the Indian Constitution rule of law means law of
land.

According to Black’s Law Dictionary: “Rule of Law” means legal principles of day to day
application, approved by the governing bodies or authorities and expressed in the form of logical
proposition.

According to Oxford Advance Learner’s Dictionary: “Rule of Law” means the situation in
which all the citizens as well as the state are ruled by the law.

Rule of Law – Meaning & Scope

Dicey in his work stated that Rule of Law is fundamental to the English legal system and gives the
following three meanings to the doctrine:
Supremacy of Law

Rule of law according to Dicey means the absolute supremacy or predominance of regular law as opposed
to the influence of arbitrary power or wide discretionary power.

It means the exclusion of the existence of arbitrariness on part of the government.

This in essence means that no man can be arrested, punished or be lawfully made to suffer in body or in
goods except by the due process of law and for breach of a law established in the ordinary legal manner
before the ordinary courts of the land.

Equality before Law

While explaining this aspect of the doctrine, Dicey stated that there must be equality before the law or
equal subjection of all classes to the ordinary law of the land administered by the ordinary law courts.

Dicey believed that the exemption of civil servants from the jurisdiction of the ordinary courts of law and
providing them with the special tribunals was the negation of equality.

He stated that any encroachments on the jurisdiction of the courts and any restriction on the subject’s
unimpeded access to them are bound to jeopardise his rights.

Judge-made Constitution

Dicey observed that in many countries rights such as the right to personal liberty, freedom from arrest,
freedom to hold public meetings, etc. are guaranteed by a written Constitution; in England, it is not so.

In England, those rights are the result of judicial decisions in concrete cases that have actually arisen
between the parties.

Thus he emphasized the role of the courts of law as guarantors of liberty and suggested that the rights
would be secured more adequately if they were enforceable in the courts of law than by mere declaration
of those rights in a document.

Rule of Law Under Indian Constitution

In order to develop Indian democracy, rule of law has played a great role. At the time of framing of
Constitution, the framers had two options i.e. USA and England. Some of the provisions were adopted
from USA and some of them were adopted from England. Rule of law was adopted from England by our
constitutional fathers and many provisions were incorporated in the Indian Constitution. Indian
Constitution is considered to be supreme and no one is above Indian Constitution. Rule of law is also
given impliedly in the preamble and such concept is enshrined in Part III of the Indian Constitution.

In case of violation of such rights, one can approach Supreme Court or High Court under Article 32 and
226 of the Indian Constitution. The Constitution of India is enriched with the principles of law i.e. justice,
equality and liberty. Any law made by the Central government or State government must be complied in
accordance with the Constitution of India. If any law made by the legislature contravenes with the
provisions of the Constitution then such law will be declared void.
Under Article 32 of the Indian Constitution, the Supreme Court has the power to issue writs in the nature
of Habeas Corpus, mandamus, prohibition, quo warranto, and certiorari. The power of judicial review is
also given to Supreme Court in order to prevent any ultra vires law so as to preserve ‘Rule of law’.

Role of Indian Judiciary

There are a plethora of cases where the concept of rule of law was discussed and came into light. Some of
the cases are as follows:

ADM Jabalpur v. Shivkant Shukla 1976 SC

This case is also known as “Habeas Corpus case”. It is one of the most importantcase when comes
to rule of law. The question that was raised before the hon’ble court was that whether there was any
rule of law in India apart from Article 21 of the Indian Constitution. It was in context relating to the
proclamation of emergency where the enforcement of Articles 14, 21 and 22 were suspended.

Som Raj v. State of Haryana 1990 SC

In this case it was held that the absence of arbitrary power is the postulate of rule of law upon which the
whole constitutional edifice is dependent.

Union of India v. Raghubir Singh 2013

In this case it was held by the court that a considerable degree that governs the lives of the people and
regulates the State function flows from the decision of the superior courts.

Chief Settlement Commissioner, Punjab v. Om Prakash 1963 SC

In this case, Supreme Court observed“In our constitutional system, the central and most characteristic
feature is the concept of rule of law which means, in the present context, the authority of law courts to test
all administrative action by the standard of legality. The administrative or executive action that does not
meet the standard will be set aside if the aggrieved person brings the matter into notice.”

Keshvananda Bharti v. State of Kerela 1973 SC

In this case, the Supreme Court enunciated the concept of rule of law as one of the most important aspects
of doctrine of basic structure

.Maneka Gandhi v. Union of India 1978 SC

In this case Supreme Court declared that Article 14 strikes against arbitrariness.

Gadakh Yashwantrao Kankarrao v. Balasaheb Vikhe Patil 1994 SC

In this case, the ration laid down was “If the rule of law has to be preserved as the essence of the
democracy of which purity of elections is a necessary concomitant, it is the duty of the courts to
appreciate the evidence and construe the law in a manner which would sub serve this higher purpose and
not even imperceptibly facilitate acceptance, much less affirmance, of the falling electoral standards. For
democracy to survive, rule of law must prevail, and it is necessary that the best available men should be
chosen as people's representatives for proper governance of the country. This can be best achieved
through men of high moral and ethical values who win the elections on a positive vote obtained on their
own merit and not by the negative vote of process of elimination based on comparative demerits of the
candidates.”

Secretary, State of Karnataka and Ors. v. Umadevi 1992 SC

A Constitution Bench of this Court has laid down the law in the following terms:“Thus, it is clear that
adherence to the rule of equality in public employment is a basic feature of our Constitution and since the
rule of law is the core of our Constitution, a court would certainly be disabled from passing an order
upholding a violation of Article 14 or in ordering the overlooking of the need to comply with the
requirements of Article 14 read with Article 16 of the Constitution.”

Exceptions to Rule of Law

Some exceptions to the concept of the rule of law are discussed below.

I. ‘Equality of Law’ does not mean that the powers of private citizens are the same as the powers of
public officials. e.g. a police officer has the power to arrest which the private citizen does not
have.
II. The rule of law does not prevent certain classes of persons from being subject to special rules, for
example, the armed forces are governed by military laws.
III. Ministers and other executive bodies are given wide discretionary powers by the statute.
IV. Certain members of the society are governed by special rules in their professions like lawyers,
doctors and nurses.

Qs. Separation of Powers

Ans. The three branches of the government are the executive, the legislature and the judiciary. Although
the three have distinct functions to perform, their scope sometimes meet. In this question you can read all
about the relationship between the three arms of the government.

Separation of Powers
In India, a separation of functions rather than of powers is followed. Unlike in the US, in India, the
concept of separation of powers is not adhered to strictly. However, a system of checks and
balances have been put in place in such a manner that the judiciary has the power to strike down any
unconstitutional laws passed by the legislature.
Today, most of the constitutional systems do not have a strict separation of powers between the various
organs in the classical sense because it is impractical. In the following sections, we will see the prevailing
system in India, what the relationship between each organ is, and the constitutional provisions thereof.
Before proceeding with the relationships, let us examine in brief what the functions of each organ of the
government are.
What is the Legislature?
The chief function of the legislature is to enact laws.

 It is the basis for the functioning of the other two organs, the executive and the judiciary.
 It is also sometimes accorded the first place among the three organs because until and unless laws
are enacted, there can be no implementation and application of laws.

What is the Executive?

The executive is the organ that implements the laws enacted by the legislature and enforces the will of the
state.

 It is the administrative head of the government.

 Ministers including the Prime/Chief Ministers and President/Governors form part of the
executive.

What is the Judiciary?

The judiciary is that branch of the government that interprets the law, settles disputes and administers
justice to all citizens.

 The judiciary is considered the watchdog of democracy, and also the guardian of the Constitution.
 It comprises of the Supreme Court, the High Courts, District and other subordinate courts.
 For more on Indian Judiciary, click on the linked article.
Meaning of Separation of Powers
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 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.

Judicial Pronouncements Upholding Separation of Powers Doctrine

Kesavananda Bharati Case (1973): In this case, the SC held that the amending power of the Parliament
is subject to the basic features of the Constitution. So, any amendment violating the basic features will be
declared unconstitutional.
Swaran Singh Case (1998): In this case, the SC held the UP Governor’s pardon of a convict
unconstitutional.
Other SC Judgements

 The Honourable Supreme Court in Ram Jawaya Kapoor V State of Punjab held that the Indian
Constitution has not indeed recognised the doctrine of separation of powers in its absolute rigidity
but the functions of the different parts or branches of the government have been sufficiently
differentiated and consequently it can be very well said that our Constitution does not
 contemplate assumption by one organ or part of the state of functions that essentially belong to
another.
 In Indira Nehru Gandhi V Raj Narain, Ray, CJ observed that in the Indian Constitution there is a
separation of powers in a broad sense only. A rigid separation of powers as under the American
Constitution or under the Australian Constitution does not apply to India. The Court further held
that adjudication of a specific dispute is a judicial function which Parliament even acting under a
constitutional amending power cannot exercise. Apart from difficulties inherent in the
enforcement of the strict doctrine of separation of powers in the functioning of the modern
government, there is also an inherent difficulty in defining, in workable terms, the division of
powers into executive, legislative and judicial.

Relationship between Legislature and Judiciary

Even though the functions of the executive and the judiciary are well-defined in the Constitution, the
system of checks and balances ensures that each one can impose checks on the other.

 The judiciary can strike down laws that it considers unconstitutional or arbitrary.
 The legislature, on its part, has protested against judicial activism and tried to frame laws to
circumvent certain judgements.
 Judicial activism is said to be against the principle of separation of powers.
 There have been instances where the courts have issued laws and policies through judgements.
For example, the Vishakha Guidelines where the SC issued guidelines on sexual harassment.
 In 2010, the SC directed the government to undertake the distribution of food grains.
 If the judiciary oversteps its mandate and crosses over into the territory of the legislature or the
executive, it is called judicial overreach.

Relationship between Legislature and Executive

The Constitution states that the executive branch of the State (Council of Ministers) shall be collectively
responsible to the Legislature (Lok Sabha). This implies that the Parliament should supervise the work of
the government and hold it accountable for its actions.

 In a parliamentary form of government, the executive is not separated from the legislature in that
the members of the council of ministers are members of the legislature.
 The executive loses power when it loses the confidence of the legislature. The executive/council
of ministers is dismissed if it loses the legislature’s confidence before its tenure is over. So, the
legislature controls the executive through a vote of no-confidence.
 The head of government and head of state are different. The head of the government is the Prime
Minister while the head of state is the President.
 The parliament makes laws in general broad terms and delegates the powers to the executive to
formulate detailed policy and implement them.
 In a presidential form of government, the executive is not accountable to the legislature. One
person is the heads of both the State as well as the government. A minister need not be from the
legislature.

Relationship between Executive and Judiciary

There are several provisions in the Constitution that make the judiciary independent. This is because, it is
believed that for a democracy to remain efficient and effective, the judiciary must be independent. The
judiciary is said to be the guardian of the constitution. If the executive also assumes judicial powers, that
sort of a government tends to become oppressive.
However, there are some judicial functions which are performed by the executive as well. They are:

1. The appointments of the judges are made by the executive.

2. The President and the Governors also enjoy the power to pardon, reprieve, etc. These are direct
judicial functions.
3. Under the system of administrative adjudication, the executive agencies have the power to hear
and decide cases involving particular fields of administrative activity.

Qs. Principles of Natural Justice: Rule against bias; Right of fair hearing.

Ans. Natural justice simply means to make a sensible and reasonable decision making procedure on a
particular issue. Sometimes, it doesn’t matter what is the reasonable decision but in the end, what matters
is the procedure and who all are engaged in taking the reasonable decision. It is not restricted within the
concept of ‘fairness’ it has different colours and shades which vary from the context.

Basically, natural justice consists of 3 rules.

The first one is “Hearing rule” which states that the person or party who is affected by the decision made
by the panel of expert members should be given a fair opportunity to express his point of view to defend
himself.

Secondly, “Bias rule” generally expresses that panel of expert should be biased free while taking the
decision. The decision should be given in a free and fair manner which can fulfil the rule of natural
justice.

And thirdly, “Reasoned Decision” which states that order, decision or judgement of the court given by the
Presiding authorities with a valid and reasonable ground.

Origin

The principle of natural justice is a very old concept and it originated at an early age. The people of Greek
and roman were also familiar with this concept. In the days of Kautilya, arthashastra and Adam were
acknowledged the concept of natural justice. According to the Bible, in the case of Eve and Adam, when
they ate the fruit of knowledge, they were forbidden by the god. Before giving the sentence, eve was
given a fair chance to defend himself and the same process was followed in the case of Adam too.

In India, this concept was introduced at an early time. In the case of Mohinder Singh Gill vs. Chief
Election Commissioner,AIR 1978 SC the court held that the concept of fairness should be in every
action whether it is judicial, quasi-judicial, administrative and or quasi-administrative work.

Purpose of the principle

1. To provide equal opportunity of being heard.

2. Concept of Fairness.
 3. To fulfil the gaps and loopholes of the law.
4. To protect the Fundamental Rights.
5. Basic features of the Constitution.
6. No miscarriage of Justice.

The principles of natural justice should be free from bias and parties should be given fair opportunity to
be heard and all the reasons and decision taken by the court should be informed by the court to the
respective parties.

Supreme court said that arriving at a reasonable and justifiable judgement is the purpose of judicial and
administrative bodies. The main purpose of natural justice is to prevent the act of miscarriage of justice.

A committee i.e. “Ministers Power” gave 3 essentials procedure related to the principles of natural justice.

I. No one should be a judge in his own matter.

II. No one can be condemned unheard.
III. The party is entitled to know each and every reason and the decision

In the case of the Province of Bombay vs. Khushaldas Advani,AIR 1950 SC it was said that natural
justice will be applicable on statutory as it is a basic principle of Natural justice which leads to fairness
and justice.taken by the authority.

Rules of Natural Justice

NEMO JUDEX IN CAUSA SUA

AUDI ALTERAM PARTEM

REASONED DECISION

Nemo Judex In Causa Sua (Rule against bias)

“No one should be a judge in his own case” because it leads to rule of biases. Bias means an act which
leads to unfair activity whether in a conscious or unconscious stage in relation to the party or a particular
case. Therefore, the necessity of this rule is to make the judge impartial and given judgement on the basis
of evidence recorded as per the case.

Type of Bias

1. Personal Bias.
2. Pecuniary Bias.
3. Subject matter Bias.
4. Departmental Bias.
5. Policy notion Bias.
6. Bias on the account of obstinacy.

Personal bias
Personal bias arises from a relation between the party and deciding authority. Which lead the deciding
authority in a doubtful situation to make an unfair activity and give judgement in favour of his person.
Such equations arise due to various forms of personal and professional relations.

In order to challenge the administrative action successfully on the ground of personal bias, it is necessary
to give a reasonable reason for bias.

Supreme court held that one of the members of the panel of selection committee his brother was a
candidate in the competition but due to this, the whole procedure of selection cannot be quashed.

Here, to avoid the act of biases at the turn of his brother respective panel member connected with the
candidate can be requested to go out from the panel of the selection committee. So, a fair and reasonable
decision can be made. Ramanand Prasad Singh vs. UOI. AIR 1996 SC

Pecuniary bias

If any of the judicial body has any kind of financial benefit, how so ever small it may be will lead to
administrative authority to biases.

Subject matter bias

When directly or indirectly the deciding authority is involved in the subject matter of a particular case.

Muralidhar vs. Kadam Singh The court refused to quash the decision of Election tribunal on the ground
that the chairman’s wife was a member of Congress party whom the petitioner defeated.

Departmental bias

The problem or issue of departmental bias is very common in every administrative process and it is not
checked effectively and on every small interval period it will lead to negative concept of fairness will get
vanished in the proceeding.

Policy notion bias

Issues arising out of preconceived policy notion is a very dedicated issue. The audience sitting over there
does not expect judges to sit with a blank sheet of paper and give a fair trial and decision over the matter.

Bias on the account of the obstinacy

Supreme court has discovered new criteria of biases through the unreasonable condition. This new
category emerged from a case where a judge of Calcutta High Court upheld his own judgement in appeal.
A direct violation of the rules of bias is done because no judge can sit in appeal against in his own case.

Audi Alteram Partem

It simply includes 3 Latin word which basically means that no person can be condemned or punished by
the court without having a fair opportunity of being heard. In many jurisdictions, a bulk of cases are left
undecided without giving a fair opportunity of being heard. The literal meaning of this rule is that both
parties should be given a fair chance to present themselves with their relevant points and a fair trial
should be conducted.

This is an important rule of natural justice and its pure form is not to penalize anyone without any valid
and reasonable ground. Prior notice should be given to a person so he can prepare to know what all
charges are framed against him. It is also known as a rule of fair hearing. The components of fair hearing
are not fixed or rigid in nature. It varies from case to case and authority to authority.

Components

Issuance of notice– Valid and proper notice should be given to the required parties of the matter to
further proceed with the procedure of fair trial method. Even if the statute does not include the provision
of issue of notice then it will be given prior to making decisions. This was held in the case of Fazalbhai
vs. custodian. AIR 1961 SC

In the case of Kanda vs. Government of Malaya,1962 the court held that notice must directly and
clearly specify on the matter of bias, facts and circumstances against which needs to be taken. It’s one of
the rights of the individual to defend himself so he should be familiar with the relevant matter so he may
contradict the statement and safeguard himself.

The notice should be with regard to the charges framed against the accused person and proceeding to be
held. He can only be punished on the charges which are mentioned in the notice, not for any other
charges.

Right to present the case and evidence– After receiving the notice he must be given a reasonable time
period to prepare and present his case in a real and effective manner. The refusal should not be done on
the unreasonable ground or due to arbitrary.

Right to Cross Examination– Right of fair hearing includes the right to cross-examination the statement
made by the parties. If tribunals denied the right to cross-examination then it will violate the principles of
natural justice. And all the necessary copies of documents should be given and failure of that will also
encroach the principle. The department should make available officers who are involved in the procedure
of investigating and do cross-examination. Cross-examination is defined under Section 137 of the Indian
Evidence Act, 1872 (amended).

In certain exceptional cases, the right to cross-examination can be denied or rejected. Hari Nath Mishra
vs. Rajendra Medical College, AIR 1973 SC under this case a male student was charged off some
indecent behaviour towards a female student. So, here the right to cross-examination was denied for the
male student as it will lead to embracement for the female student and it will not also lead to violation of
natural justice.

Sometimes it becomes very necessary to keep the identity confidential as there is a threat of life and
property. And the same situation was faced in the case Gurubachan Singh vs. the State of Bombay AIR
1952 SC.

Let’s take an illustration, In the matter where lawyer and client are involved so, nobody can force a
lawyer to reveal what all information is given by the client to the lawyer in relation to the case.
In the case of Ludhiana food product,1990 the court held that If the party itself refuse to cross-examine
the witness then it will not fall under miscarriage of natural justice.

Right of Legal representative– In the process of enquiry, every party has the right to have a legal
representative. Each party will be presented by the legally trained person and no one can deny (A.K.Roy).
Similarly, the department has the same right to direct its officer even though there are investigating
officer in conducting an adjudicating proceeding (Sanghi textile processor vs. Commissioner 1991 AP).

Qs. Exclusion of principles of Natural Justice

Ans. No rule is absolute, not even the rules of natural justice. Even these rules can be excluded either
expressly or by necessary implication, subject to the provisions of Articles 14 and 21 of the constitution.

Emergency

In such exceptional cases of emergency where prompt action, preventive or remedial, is needed, the
requirement of notice and hearing may be obviated. If the rule of audi alteram partem will paralyse the
process, law will exclude it. Even in a situation of emergency where precious rights of people are
involved, post-decisional hearing has relevance to administrative and judicial gentlemanliness.

Otherwise some pre-decisional hearing, no matter in a rudimentary form must be given depending on the
fact situation of every case. However, the administrative determination calling for the exclusion of rules
of hearing or rule against bias is not final. Courts may review the determination of such a situation.
In Swadeshi Cotton Mills v. Union of India AIR 1981 the court held that the word “immediate” in section
18-A of the Industries (Development and Regulation) Act cannot stand in the way of the application of
the rules of natural justice.

Confidentiality

In Malak Singh v. State of Punjab & HaryanaAIR 1981 the Supreme Court held that the maintenance of
surveillance register by the police is a confidential document. No public member or otherwise can have
access to it. Moreover, adherence to the rules of natural justice in such a situation may defeat the very
purpose of surveillance and there is every possibility of the ends of justice being defeated instead of being
served.

Purely administrative matters

A student of the university was removed from the rolls for unsatisfactory academic performance without
being given any pre-decisional hearing. The Supreme Court in Jawahar Lal Nehru University v. B.S.
Narwal 1980 AIR held that the very nature of academic adjudication appears to negative any right of an
opportunity to be heard. Therefore if the competent academic authorities examine and assess the work of
a student over a period of time and declare his work unsatisfactory, the rules of natural justice may be
excluded. However, this exclusion would not apply in case of disciplinary matters or where the academic
body performs non-academic functions.

Impracticability
In R. Radhakrishnan v. Osmania University, 2007 where the entire MBA entrance examination was
cancelled by the university because of mass coping, the court held that notice and hearing of all
candidates is impossible in such a situation, which had assumed national proportions. Thus the court
sanctified the exclusion of the rules of natural justice on the ground of administrative impracticability.

Interim Preventive Action

If the action of the administrative authority is a suspension order in the nature of a preventive action and
not a final order, the application of the principles of natural justice may be excluded. The Delhi High
Court has held that such an order could be compared to an order of suspension of pending enquiry which
is helps in maintaining campus peace – hence the principles of natural justice shall not apply.

Legislative Action

Legislative actions, plenary or subordinate, aren’t subject to the principle of natural justice because it lays
down a policy without reference to a particular individual. On the same logic these principles can also be
excluded by a Constitutional provision. The Constitution of India excludes the principles of natural justice
in Articles 22, 31(A), (B), (C) and 311(2) as a matter of policy.

No person’s right is infringed

Where no right has been conferred on a person by any statute nor any such right arises from common law
the principles of natural justice are not applicable. Therefore, where an order of extension was cancelled
before it became operational or the order of stepping up salary was withdrawn before the person was
actually paid or the services of the probationer terminated without charge the principles of natural justice
are not attracted.

Statutory exception or necessity

Disqualification on the ground of bias against a person will not be applicable if he is the only person
competent or authorised to decide that matter or take that action. If this exclusion is prohibited there
would be no other method for deciding that issue and the whole administration would come to a grinding
halt.

Contractual Agreement

In State of Gujarat v. M.P. Shah Charitable Trust 1994 SC, the Supreme Court held the principles of
natural justice are not attracted in case of termination of an arrangement in any contractual field.
Termination of an arrangement/agreement is neither a quasi-judicial nor an administrative act so that the
duty to act judicially is not attracted.

Government Policy Decision

Apex Court is of the view that in taking of a policy decision in economic matters at length, the principles
of natural justice have no role to play. In this case employees had challenged the government’s policy
decision regarding disinvestment in Public sector undertakings. The Court held that even though workers
may have interest in the decision, but unless the policy decision to disinvest is capricious, arbitrary, illegal
or uninformed , and is not contrary to law, the decision cannot be challenged on the grounds of violation
of the principles of natural justice. Therefore, if in exercise of executive powers the government takes any
policy decision, principles of natural justice can be excluded because it will be against public interest to
do so. (Balco Employees Union V. Union of India Transfer Case (civil) 8 of 2001)

Unit-II

Qs. Delegated Legislation – Meaning, Nature & Scope

Ans. Delegated legislation means legislation made by bodies other than legislature. Delegated legislation
means a legislation which is passed by a body to which the power of legislation is delegated by the
statute. The parliament delegates the power making rules, regulation, orders etc to certain bodies and
authorities. Such powers are exercised by these authorities within the limits and in accordance with the
limits and in accordance with the principles laid down by parliament. In other word, when the function of
legislation is entrusted to organs other than parliament by word, when the function of legislation is
entrusted to organ other than the legislation. Delegated legislation is generally known as rules,
regulations, bye-laws or notification etc.

Delegated legislation’ in India is generally expressed as statutory rules and orders, but expressions like,
‘regulation’, notification, bye-laws, schemes, direction etc are also employed in the same context. The
practice in England, India, France has been the same. The term statute law covers both acts of parliament
and delegated legislation. It is also called subordinate legislation.

Definition

According to R.Dayal, “Delegated legislation means legislation which is passed by a body to which the
power of legislation is delegated by the statute.”

According to Salmond, “Delegated legislation as that which proceeds from any authority other than the
sovereign power and is therefore dependent for its continuous existence and validity on some superior or
supreme authority.”

According to jain and jain, The term delegated legislation is used in two sense.

1. The exercise by a subordinate agency of the legislative power delegated to it by legislature, or

2. The subsidiary rules themselves which are made by the subordinate agency pursuance of the
power as mentioned in no (a).

So, from above definition we can say that delegated legislation is a subordinate legislation by the
authority other than the legislature and it gets legal validity and recognition on the basis of the law
promulgated by the supreme authority.

Case law

In the case of Raj Narain Singh v. Chairman, Patna Administration Committee Air, AIR 1954 SC the
Supreme Court of India upheld the delegation of power given to the executive by the legislature.

Delhi Law Act Case 1951In this case the power is given to the Central Government through an act to
repeal the pre-existing law held to be ultra vires.

Chintaman Rao’s Case 1951 Prohibition of making bidis in the agriculture season by the Deputy
Commissioner is violative of Article 19(1)(g) of the Indian Constitution.

Chandran v. R: It was held in this case that if the power of by-laws entrusted in the hands of the
Legislature, then it must be within the limits of the Legislature and if it exceeds the limit then this by-laws
can be struck down.

Reasons for growth of Delegated Legislation

Many factors are responsible for the rapid growth of delegated legislation in today’s time. Because of the
radical change in the governance of a country from ‘police state’ to the ‘welfare state’ the function and
the need of delegated legislation have increased. These factors and reasons for growth of delegated
legislation can be seen as follows:

Pressure upon time of Parliament: The area, scope, or horizon of state activities are expanding day by
day and it is difficult for the Parliament to make laws on each and every matter as they are having a lot of
work to do and they also have to make legislation on various matters. The Parliament is so much occupied
with matters concerning foreign policy and political issues that it has not much time to enact the laws in
detail. So it only frames the broad part of the rule and outline of the legislation and gives that legislation
to the executive or some of its subordinates to fill the full detail following the necessary rules and
regulations. It is like they have given the only skeleton and the subordinate have to fill flesh and blood to
the skeleton to make it alive. The committee on Ministers’ Power has observed that if the parliament is
not willing to delegate law making power to the subordinate then he will unable to pass the quality of
rules and regulations that a person needs to live a happy life or legislation which a modern public
requires.

Technicality in the matters: With the progress and advancement in society, things have become more
twisted, complicated and technical. So to understand the technicality of each and every topic, legislature
needs the expert of that particular topic who is well aware of each and every detail of that matter. Over
the years it has been observed that some legislature only know politics and some might have knowledge
about one or two topics. Therefore, after framing policies by the parliament on any topic, that topic is
given to the government department or any particular person who knows about the technicalities of that
particular topic and given the power to lay down the details.

Flexibility: Parliamentary amendment is very slow and it requires a process to make any type of law but
by the tool of delegated legislation it can be made expeditiously with the help of the executives, e.g.,
police regulation, bank rate, import and export, foreign exchange, etc. Also, Parliament cannot foresee the
contingency while enacting a law so to make it foresee the workload is being given to the executives. So
it is necessary to give work to lower body to have that work in a smooth and better manner.

Emergency: In any type of emergency one should know how to deal with it quickly without any delay.
The legislature is not equipped with the skills of providing an urgent solution to meet the situation of
emergency. Delegated legislation is the only way to meet that situation. Therefore, in times of emergency
and war, an executive is given wide power to deal with that situation. Some examples of delegation in
England during the First and Second World War are the Defence of the Realm Act 1914-
15, the Emergency Power Act, 1920, etc. Similarly, in the case of inflation, flood, epidemic, economic
depression, etc immediate remedial actions are necessary.

Experiment: The practise of delegated legislation enables the Executive to experiment. As every work is
new for the legislative and he has to experiment that either this law is working in perfect condition or not.
This method or approach permits the utilization of experience and implementation of the necessary
changes in the application of the provision made by the Parliament. For example, in traffic matters of the
road an experiment method can be conducted and in the wake of its application necessary changes can be
made in the provisions. The advantages of such a course is that it allows the delegated authority to consult
the interest of people at the ground level that what type of law is affecting them and then he makes an
experiment by altering the provisions.

Complexity of modern administration: Modern administration used to take added responsibilities when
it came to upraise the condition of the citizens such as looking after their employment, health, education,
regulating trade, etc. Therefore, the complexity in modern administration and expansion of states’
function to the social sphere and economic have allowed the formation of a new form of legislation and to
give wide powers to various authorities on various occasions. It is important that an administration should
give an excess of power to activate socio-economic policies. In a country like Bangladesh where control
over private trade, business or property may be required to be imposed, it is necessary that the
administration should hand over the excess amount of power to implement such policy.

Criticism on delegated legislation

Following are the criticism of delegated legislation:

1. Delegated legislation results in overlapping of functioning as the delegated authorities get

work to amend the legislation that is the function of the legislators.
2. It has been a matter of question that if the Legislature control has come down after the arrival
of the delegated legislation.
3. Unelected people cannot make much delegated legislation as it would be against the spirit of
democracy.
 4. After getting too much power from the Legislature, the Executive has encroached upon the
domain of legislature by making rules and regulations.
5. The enactment subject that was appointed to less Parliamentary scrutiny than essential
enactment. Parliament, along these lines, has an absence of authority over appointed
enactment, and this can prompt irregularities in laws. Appointed enactment, in this way, can
possibly be utilized in manners which Parliament had not foreseen when it was given the
power through the Act of Parliament.
6. Delegated legislation makes laws without much discussion. So, it may or may not be better
for the public.
7. Designated legislation by and large experiences an absence of exposure. Since the law made
by a statutory authority not informed to general society. Then again, the laws of the
Parliament are generally broadcasted. The purpose of the absence of exposure is the enormous
degree of enactment that is being assigned. There has likewise been concern communicated
that an excess of law is made through appointed enactment.
8. It can possibly be misused for political gain. The executive makes law according to what the
political parties. Hence, it results in the misuse of the legislation made by the Executive by the
ruling party.
9. Executives become too powerful as it already has the power of executing any laws and
legislation and now the Legislature is delegating its legislative power to the Executive. So,
both the power are in the hands of the executives now he can use this power in whatever way
he wants to use it.
10. It is against the theory of the power of separation which has been given by the famous
political thinker Montesquieu.

Qs. Judicial Control of Delegated Legislation – Substantive and Procedural.

Doctrine of Ultra Vires.

Meaning :

Ultra Vires means "beyond powers". If the subordinate legislative Authority goes beyond the powers
conferred by the enabling Act, such an exercise of power is Ultra Vires & void. This applies to all
Authorities exercising Governmental functions including the subordinate legislative bodies or Authorities
which make rules, regulations, Bye laws, Orders etc The doctrine of Ultra Vires was expounded by
Dicey. According to him, the Subordinate Legislation may be declared by the courts as 'beyond the
powers' of the Parent Act i.e., the enabling Act. This is the Judicial control over Subordinate Legislation.
This is of two kinds:

1. Procedural Ultra Vires,

2. Substantive Ultra Vires.

Procedural Ultra Vires:

I. Publication is essential & mandatory. Hence, if there is no publication in the Offcial Gazetee as
required under the Act, the Subordinate Legislation becomes Ultra Vires.
II. When previous sanction for making the Rules etc. or where there is provision in the parent Act, to
follow a particular procedure, that must be followed.
III. When power is vested in one authority by the Parent Act, further delegation is Ultra Vires.
IV. If consultative requirement, or, public enquiry is prescribed by the Parent Act, it must be
followed strictly and effectively. It should not be a sham consultation of affected parties.

If the procedural requirements are not complied with, the subordinate legislation will be void & Ultra
Vires. However, courts have drawn a distinction between mandatory (imperative) provision, and, a
directory provision. The legislation is Ultra Vires; but if the provision is directory, then substantial
compliance is sufficient make directory provision. The legislation is Ultra Vires; but if the provision is
directory, then substantial compliance is sufficient make it valid.

1. Consultation of interest:

This helps to check possible misuse of power . The persons to be affected may participate in the rule
making process, when they are consulted. Generally the parent Act provides for such consultation. The
Consultation may be varied : It may be official consultation, e.g. Reserve Bank being consulted in making
rules under Banking Companies Act, or statutory Bodies e.g. Board under Income Tax Act, or Advisory
Body as Mine Board in mines Act.

Consultation makes the process democratic to reach the people in full measure. Otherwise, it may become
bureaucratic. Sufficient opportunity should be given by the Govt, with necessary material. Consultation is
mandatory (Banwarilal V. State of Bihar) Hence, without consultation, it would be void.

2. Publication:

Publication of delegated 'legislation is an essential requisite; if not published, it would be void & Ultra
Vires. The reason is unlike legislation, where it is widely publicised, the delegated legislation is made in
the secret recesses of the chamber of the Govt, affecting the life liberty & property of individuals. Hence,
it is abhornent to democratic notions.

Hence, the courts have held that publication i.e, Official Gazette publication is the usual method should
be adopted. In Narendra Kumar V. Union, the parliament had made the Essential commodities Act.
Section 3 of it provided that rules made under the Act should be published in the official Gazette. The
central Govt. made certain rules, but applied them to issue licenses to acquire non ferrous metals. The
supreme court held that as there was no publication it was void. Hence, publication in the official Gazette
or some other reasonable mode is a must. The courts distinguish whether this requirement is mandatory or
directory. If directory, substantial compliance is essential, otherwise the rule etc would be Ultra vires and
void.

Substantive Ultra Vires:

The subordinate legislative body or Authority, should not go beyond the policy, principles, purposes or
standards prescribed in the Parent Act. It should also not go beyond the Constitution of India.

(i) Parent Act & subordinate legislation should be constitutional

The basic requirement is that the parent Act should be constitutional; if not the Act will be Ultra Vires,
and so the rules etc. In chintaman Rao V, State of M.P, the Parent Act prohibited manufacture of bidi's
by agriculturists during certain seasons. The DC Could prohibit such manufacture certain areas by issuing
on order. Held, the Act itself was violative of Act. 19(1) (g) of the Constitution & hence Ultra Vires.

The second requirement is that the subordinate legislation should not be Ultra Vires the Constitution. In
Narendra Kumar V. Union 1960, the order issued under Section 3 of the Essential Commodities Act
1955, was challenged, but not the Act. Held, the order should also be constitutional, otherwise it would be
void. The order was held void.

ii) Parent Act shoud not be violated.

This is an essential requisite, and, the subordinate legislation should not go beyond its power or authority
defined in the parent Act. If it does, it would be Ultra Vires. In Mohammad yasin V. Town Area
Committee (1952), The Municipalities Act, had empowered the town Area Committee to frame bye-laws
to heavy fee for use of immovable property of the committee by traders. The committee exceeded its
authority & levied fee on wholesale dealers, on any place within the limits of the committee. Held this
was Ultra Vires as it applied to any place.

iii) Retrospective effect: In I.T.O Alleppy V Ponnose, the Govt. by a notification invested the Tahsildar
to recover tax with retrospective effect. Held this was Ultra Vires & void.

iv) Mala fides, unreasonableness : If the rules orders etc made by the body or authority are mala fides,
or are unreasonable then they would be quashed as Ultra Vires the parent Act. The Act made by the
Parliament or state legislature, cannot be questioned on the ground of mala fides, but the rule made by the
administrative authority may be challenged.

In Air India V. Nargesh Merza (Air Hostess case 1981), that the regulations framed by Air India for
termination of a air-hostess on her first pregnancy was held by the supreme court as unreasonable,
arbitrary & hence void

Qs. Legislative control of Delegated Legislation

Ans. One of the most significant developments of the present century is the growth in the legislative
powers of the executive. 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. Such type of power is known as delegated legislation.

The underlying object of parliamentary control is to keep watch over the rule-making: -
authorities and also to provide an opportunity to criticize them if there is abuse of power on their part.
Parliament has control in that the enabling or parent Act passed by Parliament sets out the framework or
parameters within which delegated legislation is made. In India, the question of control on rule-making
power engaged the attention of the Parliament.

With regard to the control of the legislature over delegated legislation, M.P. Jain states: -
In a parliamentary democracy it is the function of the legislature to legislate. If it seeks to delegate its
legislative power to the executive because of some reasons, it is not only the right of the Legislature, but
also its obligation, as principal, to see how its agent i.e. the Executive carries out the agency entrusted to
it. Since it is the legislature which grants legislative power to the administration, it is primarily its
responsibility to ensure the proper exercise of delegated legislative power, to supervise and control the
actual exercise of this power, and ensure the danger of its objectionable, abusive and unwarranted use by
the administration.

Legislative control in USA

In U.S.A., the control of the Congress over delegated legislation is highly limited because neither is the
technique of “laying” extensively used nor is there any Congressional Committee to scrutinise it. This is
due to the constitutional structurization in that country in which it is considered only the duty of courts to
review the legality of administrative rule-making.

Legislative control in UK

In England, due to the concept of Parliamentary sovereignty, the control exercised by Parliament over
administrative rule-making is very broad and effective. Parliamentary control mechanism operates
through “laying” techniques because under the provisions of the Statutory Instruments Act, 1946, all
administrative rule-making is subject to the control of Parliament through the Select Committee on
Statutory Instruments. Parliamentary control in England is most effective because it is done in a non-
political atmosphere and the three-line whip does not come into operation.

Legislative control in India

In India parliamentary control of administrative rule-making is implicit as a normal constitutional

function because the executive is responsible to the Parliament. There are three types of control exercised:

Direct General Control

Direct but general control over delegated legislation is exercised:

I. Through the debate on the act which contains delegation. Members may discuss anything about
delegation including necessity, extent, type of delegation and the authority to which power is
delegated.
 II. Through questions and notices. Any member can ask questions on any aspect of delegation of
legislative powers and if dissatisfied can give notice for discussion under Rule 59 of the
Procedure and Conduct of Business in Lok Sabha Rules.
III. Through moving resolutions and notices in the house. Any member may move a resolution on
motion, if the matter regarding delegation of power is urgent and immediate, and reply of the
government is unsatisfactory.

Direct special control

This control mechanism is exercised through the technique of “laying” on the table of the House rules and
regulations framed by the administrative authority. The notable use of this technique was made in the
Reorganization Acts of 1939 to 1969, which authorised the President to reorganise the executive
government by administrative rule-making. In England the technique of laying is very extensively used
because all the administrative rule-making is subject to the supervision of Parliament under the Statutory
Instruments Act, 1946 which prescribes timetable. The most common form of provision provides that the
delegated legislation comes into immediate effect but is subject to annulment by an adverse resolution of
either house.

By Section 4 of the Statutory Instruments Act, 1946, where subordinate legislation is required to be laid
before Parliament after being made, a copy shall be laid before each House before the legislation comes
into operation. However, if it is essential that it should come into operation before the copies are laid, it
may so operate but notification shall be sent to the Lord Chancellor and the Speaker of the House of
Commons explaining why the copies were not laid beforehand. Under Section 6 of the Statutory
Instruments Act, 1946, the draft of any statutory instrument should be laid before the parliament.

Laying on Table In almost all the Commonwealth countries, the procedure of ‘Laying on the Table’ of the
Legislature is followed. It serves two purposes: firstly, it helps in informing the legislature as to what all
rules have been made by the executive authorities in exercise of delegated legislation, secondly, it
provides a forum to the legislators to question or challenge the rules made or proposed to be made.

Legal consequences of non-compliance with the laying provisions

In England the provisions of Section 4(2) of the Statutory Instruments Act, 1946 makes the laying
provision mandatory for the validation of statutory instruments. In India, however, the consequences of
non-compliance with the laying provisions depend on whether the provisions in the enabling Act are
mandatory or directory.

In Narendra Kumar v. Union of India, the Supreme Court held that the provisions of Section 3(5) of
the Essential Commodities Act, 1955, which provided that the rules framed under the Act must be laid
before both Houses of Parliament, are mandatory, and therefore Clause 4 of the Non-Ferrous Control
Order, 1958 has no effect unless laid before Parliament.

However, in Jan Mohammad v. State of Gujarat, the court deviated from its previous stand. Section
26(5) of the Bombay Agricultural Produce Markets Act, 1939 contained a laying provision but the rules
framed under the Act could not be laid before the Provincial legislature in its first session as there was
then no functioning legislature because of World War II emergency. The rules were placed during the
second session. Court held that the rules remained valid because the legislature did not provide that the
non-laying at its first session would make the rules invalid.

Even if the requirement of laying is only directory and not mandatory, the rules framed by the
administrative authority without conforming to the requirement of laying would not be permissible if the
mode of rule-making has been violated.

Indirect control

Indirect control is exercised by Parliament through its Committees. With a view to strengthen
Parliamentary control over delegated legislation, Scrutiny Committees were established. In UK and India,
there are Standing Committees of Parliament to scrutinise delegated legislation. In the USA, on the other
hand, there is no equivalent to such committees, the responsibility being diffused. The responsibility is
shared but a host of committees – standing committees in each House of Congress, committees on
government operation in each house, and some other joint bodies like the committee on atomic energy. In
England, the Select Committee on Statutory Instruments was established by the House of Commons in
1944. In 1950, the Law Minister made a suggestion for the establishment of a Committee of the House on
the pattern of the Select Committee on Statutory Instruments, 1944, to examine delegated legislation and
bring to the notice of the House whether administrative rule-making has exceeded the intention of the
Parliament or has departed from it or has affected any fundamental principle.

Such a committee known as the Committee on Subordinate Legislation of Lok Sabha was appointed on
December 1, 1953. The main functions of the Committee are to examine:

I. Whether the rules are in accordance with the general object of the Act,
II. Whether the rules contain any matter which could more properly be dealt with in the Act,

III. Whether it is retrospective,

IV. Whether it directly or indirectly bars the jurisdiction of the court, and questions alike. The
Committee has between 1953 and 1961, scrutinized about 5300 orders and rules has submitted 19
reports.

There is also a similar Committee of the Rajya Sabha which was constituted in 1964. It discharges
functions similar to the Lok Sabha Committee. Recommendations by the committee on subordinated
legislation The Committee on Subordinate Legislation has made the following recommendation in order
to streamline the process of delegated legislation in India.

(i) Power of judicial review should not be taken away or curtailed by rules.

(ii) A financial levy or tax should not be imposed by rules

(iii) Language of the rules should be simple and clear and not complicated or ambiguous.

(iv) Legislative policy must be formulated by the legislature and laid down in the statute and power to
supply details may be left to the executive, and can be worked out through the rules made by the
administration.
(v) Sub-delegation in very wide language is improper and some safeguards must be provided before a
delegate is allowed to sub-delegate his authority to another functionary.

(vi) Discriminatory rules should not be framed by the administration.

(vii) Rules should not travel beyond the rule-making power conferred by the parent Act.

(viii) There should not be inordinate delay in making of rules by the administration.

(ix) The final authority of interpretation of rules should not be with the administration.

(x) Sufficient publicity must be given to the statutory rules and orders.

UNIT – III

Qs. Administrative discretion – meaning, nature and scope

Ans. Administrative decisions often include the exercise of discretion. Discretion exists when the
decision-maker has the power to make a choice about whether to act or not act, to approve or not approve,
or to approve with conditions. The role of the decision-maker is to make a judgment taking into account
all relevant information.

The word administrative discretion denotes two words administrative and discretion. It means discretion
which is used by administration in their functions. Firstly we will discuss on discretion than we will point
out on the administrative discretion. Discretion means decision power. In other words the power to do
something according their mind and wisdom.

Meaning

Rule of law demands that Govt. should be of laws and not of men. However, in the Govt. vast
administrative machinery, officers, while discharging their functions should invariably have "discretions"
to exercise their powers effectively. These administrative functions are general and varied.

Administrative discretion means the "determination" reached by the Authority, on facts (ascertained by
it), on consideration of available evidence, and on the basis of policy, efficiency & expediency of the
Department.

Definition

Discretion in laymans language means choosing from amongst the various available alternatives without
reference to any predetermined criterion, no matter how fanciful that choice may be...

Lord Cock, ―discretion is a science to understand the difference between truth - untruth, right – wrong
and reasonable & unreasonable. They must not do their work under the influence of personal interest and
to fulfill own will.

Mr. Justice Frankfurter said, ―Discretion without a criterion of its exercise is authorization of
arbitrariness.

Reasons behind the Development of Discretionary Powers

There are many reasons behind the development of the power of administrative discretion. Some reasons
are given blow---

1- In present time administration face difficult and different- different problems which can not solved by
a single rule.

2- Most of those problems are new and rise first time, so a general rule can not apply against those
problems because they don’t have sufficient experience.

3- It is not possible always anticipate to all problems, but when these problems rise and cannot be solved
according to circumstances than administrative authorities must be solved it.

4- Every problem is based on a different circumstance, if we will apply a rule to all it can be cause of
injustice.
5- It may be possible that administrative discretion can be misused by administrative authorities.

Nature and scope of administrative discretion

Administrative Discretion and Indian Constitution Any statute cannot be challenged on the ground of
alleged mala fide intentions or mysterious motive, if it is enacted by competent legislature. If any statute
confers discretion to the executive, it must impose some limitations for the exercise their discretion. There
are so provisions in our constitution which refer discretion.

President of India is the supreme of Executive. He exercised much discretionary power. He can impose
national emergency if he is satisfied that any condition has been rise under article 352.

He has power to enact and enforce ordinance. He can dissolve to lok sabha, when not any party is in
majority. He has discretion whose will call to form the government. He has also the power to grant
pardon or remission of sentence to person convicted of offences by court of law under article 72 and 161.

He can also presidential rule on a state under article 356. But all these power are under some restrictions.
These are not arbitrary nature. Even judiciary has also exercised some discretion, when judges punished
to guilty person they have discretion where it is mentioned imprisonment or fine or both, they can convict
with any sanction.

Administrative Discretion and Fundamental Rights

Fundamental rights control the executive and legislative powers of the government. And it has also the
control over the administrative discretion. No Law may provide administrative finality, because court has
jurisdiction to check the administrative discretion. If discretion is against fundamental rights it must be
void and declared unconstitutional by the court. Court will focus on some protective principles when it
may be necessary during exercise discretionary power in respect of fundamental rights. Discretion can be
controlled in a limited jurisdiction with the effect of Fundamental rights. Court has also time to time
discus on the legality of such laws, which provide discretionary power. To fulfill this object court see the
summary and making procedure of such law. If court finds these laws against constitution, it will be
declared unconstitutional. Administration cannot violate article 14 & 19 when they will exercise
discretionary powers.

Qs. Judicial control of Administrative Discretion

Ans. The actions of the administration can be checked at the judicial level as well. The Constitution of
India has provided the judiciary with the power to review. The courts can keep a check upon any arbitrary
exercise of discretionary powers by the administration. The courts can take up cases of discretion upon
receiving a cause as well as suo moto. The courts can control it at two stages.

(1) At the stage of delegation of discretion

The courts exercise control over delegation of discretionary powers to the administration by adjudicating
upon the constitutionality of the law under which such powers are delegated with reference to the
fundamental rights. The statute conferring the power of discretion upon the government body needs to be
constitutional. If the parent statute is ultra vires the Constitution, it cannot confer valid discretionary
powers upon the administration. Every law has to pass the test of validity upon the touchstone of Articles
14 and 19 of the Constitution. Thus, if the law confers vague and wide discretionary powers on any
administrative authority, it may be declared ultra vires Articles 14, 19 and other provisions of the
Constitution.

In State of West Bengal v Anwar Ali, the Supreme Court held that the West Bengal Special Courts Act
was invalid on the ground that the expression ‘speedier trials’ conferred wide discretionary powers on the
government and may lead to unreasonable classification.

In State of Bihar v K K Mishra, the Supreme Court held Section 144(6) of the Criminal Procedure Code
unconstitutional because it invested the administrative authority with blanket discretionary power that
was capable of being used arbitrarily resulting in unreasonable restriction upon the freedom of movement.

(2) Control at the stage of the exercise of discretion

Abuse of or in excess of discretion:

It is essential that the authority should exercise its powers within the limits of the status or Rules,
otherwise it would be ultra vires on the ground of abuse or excess of jurisdiction.

In A.G.V. Fulham corporation, the statute had empowered the corporation to run bath houses & wash
houses for the benefit of the public. The corporation opened a public laundry. This was held excess of
jurisdiction & hence Ultra Vires.

Mala fides:

The authority should act with bona fides ie, in good faith properly and lawfully. Mala fide means malice
ill-will, corrupt motive, vengeance or fraudulent intention. This may take many forms & may be express
or implied. There may be malice in fact or malice in law. The exercise of power with malafides vitiates
the proceedings & hence would be void.

Malice in fact or factual malafides:

This means the action taken is based on some personal vengeance or motive or ill will: or with dishonest
intention.

Shivraj Patil V mahesh madhaw: Here, the maharastra chief minister's daughter's M.D. marks card had
been tampered to her advantage, at the behest of the C.M. This was evident from circumstances.
Commenting on the deplorable decline of moral values at high levels, the supreme court quashed the
result of M.D. exam of the daughter of C.M.

In Express Newspaper V. Union, the union Govts notice, issued to Sri. Ram Goenka chairman of
Express Newspaper, of re- entry by Govt by terminating lease of land given to him was held to be mala
fides & politically motivated. & hence void.

Malice in law
According to the Supreme court, if power is exercised without just or reasonable cause or alien or
different from the purpose of the statute, it would be malice in law & void. State of Haryana V. Bhajanlal,
it was held that prosecution against the C.M. of the state under the provision of prevention of corruption
Act was without any malice & hence proceedings were not quashed

Fraud on state or colorable exercise of power

When power is exercised under "Color" or guise of legality but, in reality the purpose of the statute is
different, it amounts to "colorable" exercise of power.. Bangalore medical Trust V. Muddappa Here,
land preserved for Public Park was allotted at the instance of CM to a private nursing home. Supreme
Court held this was "colourable" & quashed the order of allotment.

Unreasonablenes :

This includes many things. Taking into consideration irrelevant facts, omitting relevant facts, exercising
power for a collateral purpose etc. e.g. "fixing wages as it may think fit" in the statute does not mean the
authority may fix Rs 3 per day . It should mean "reasonably think fit".

Non exercise of discretion :

The administrative authority may fail to exercise discretion by non application of mind, or, by deciding
on the dictates of others, or by sub delegating this power to another. In all these circumstances, the
decision is Ultra Vires.

a) The authority should apply his mind to the facts & circum stances of the case on hand. If he acts
mechanically, without a sense of responsibility, there is failure of exercise of discretion. Jagannath V.
St. of Orissa, There was non application of mind of Home minister when the detention order was based
on two grounds, the first one or the second. His order was quashed. Leading case : Barium chemicals
Ltd. V. Company law Board : Central Govt. Could issue an order of Investigation, under the Companies
Act. on ground of fraud. Govt issued order but No circumstances had been stated, on which opinion was
formed. Order was quashed.

b) If the authority vested with power under a statute simply acts under the dictators, of a superior
authority, he has not taken his own decision, as required by the statute, and hence his decision is bad. In
Com. of Police V. Govardhandas the commissioner. had granted a licence to construct a theatre. But,
under the directions of the State Government, he cancelled it. The Supreme Court quashed the
cancellation order.

Qs. Constitutional control of Administrative Discretion

Ans. 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 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

Aspirants should go through these writs one-by-one as all of these are important for UPSC prelims
and UPSC Mains and can help score well if understood with clarity.

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

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
Prohibition
The literal meaning of ‘Prohibition’ is ‘To forbid.’ A court that is higher in position issues a Prohibition
writ 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.

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 squash 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.

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 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
Or

 Outside its territorial jurisdiction only if the

cause of action arises within its territorial
jurisdiction

Power Article 32 is a fundamental right- the Discretionary-May refuse to exercise its power to
Supreme Court may not refuse to issue writs
exercise its power to issue the writs

Qs. Ombudsman

Ans. The origin of this institution can be traced to Sweden (1809). Rowat's book on 'Ombudsman' is
almost a classic. The necessity of ombudsman is traceable to the deficiencies in parliamentary system of
administration like wrong decisions, mal-administration corruption , of public officials etc, The office of -
Ombudsman was established in Finland, Denmark, Norway, U.K. and other States. In U.K. the equivalent
office is that of the 'Parliamentary commissioner' established in 1967. The experiment was a success, in
these countries.

What is Ombudsman?

An ombudsman is an official who is appointed by the Government to investigate individual’s complaints

against a company, financial institutions, businesses, organization, specially a government department or
public entities and attempts to resolve the raised concerns either by process of mediation or giving
recommendations. To discuss the ombudsman in India, we need to describe Lokpal and Lokyukta.

The Lokpal and Lokayukta Act, 2013 was enacted to establish Lokpal for the Union and Lokayukta
for States to perform the functions of Ombudsman in India.
What is the need for such institutions?

I. In our country corruption is the main reason of maladministration. The public organizations are
slow and do not have efficiency just because of the corruption. The anti-corruption agencies are
mostly not independent. The CBI has been termed as a “caged parrot”, which speaks in its
master’s voice only.
II. Many of these agencies exist only for giving recommendations, which are not followed most of
the times.
III. There is no superior authority to check the functionality of these institutions. Moreover the
employees are also not accountable for their faults.

Here Lokpal was a very necessary way forward to stop all these hazards and perils.

Historical Backdrop of Institution of Ombudsman:

I. In 1809, the institution of ombudsman was established conventionally for the first time in
Sweden and after Second World War, it emerged in its true sense.
II. In India, law minister Ashok Kumar Sen first proposed the notion of constitutional
ombudsman was in early 1960s and the terms Lokpal and Lokayukta were brainstormed by
Dr. L. M. Singhvi.
III. In 1968, Lokpal bill was passed in Lok Sabha but terminated with the dissolution of Lok Sabha
and it was voided eight times afterwards till 2011.
IV. In 2002, Chairman of review commission M.N. Venkatachaliah asked for the assignation of
the Lokpal and Lokayuktas; and he proposed that Prime Minister of India should not be
included with the purview of its authority.
V. The movement by Anna Hazare: “India Against Corruption movement”; created pressure zone
on the United Progressive Alliance (UPA) government at the Centre and finally in 2013, both
the houses of Parliament passed the Lokpal and Lokayuktas Bill.
VI. The bill became the act when it got the assent on 1 January 2014 from Hon’ble President
Pranab Mukherjee and came into effect from 16 January of the same year.

Structure of Lokpal Body:

I. The Lokpal body consists of one chairperson and a maximum of 8 members where half will be
judicial members and other half will be from SC/ ST/ OBC/ Minorities class and women. The
President appoints the members with the recommendations of a selection committee and search
panel of minimum 8 persons.
II. The former Chief Justice of India or the former Judge of Supreme Court or a renowned person
with having specific knowledge and expertise of minimum 25 years in the field relating to anti-
corruption policy, public administration, diligence and surveillance, law and management etc;
will be eligible to become Chairman of Lokpal. The term of Chairman’s office is 5 years or till
the age of 70 years whichever is earlier.
III. The selection committee is composed of the Prime Minister who is the Chairperson; Speaker of
Lok Sabha, Leader of Opposition in Lok Sabha, Chief Justice of India or a Judge nominated by
him/her and One eminent jurist..

Authority and Jurisdiction of Lokpal :

I. Lokpal have the power to check upon Prime Minister, Ministers, members of Parliament,
Groups A, B, C and D officers and officials of Central Government due to any kind of
 allegation except the ones on corruption relating to security, sovereignty, integrity of India, the
public order, international friendly relations, atomic energy and space.
II. Although the Lokpal Ministers and MPs in any matter discussed in Parliament or a vote given
there.
III. Its jurisdiction also falls on someone who is or has been director/ manager/ secretary of any
organization or society established by central act or any other body partially or wholly financed
or/ and controlled by central government.
IV. It also acts as supervisor and superintendent over CBI & it can also give orders and directs to
CBI for betterment of its function.
V. The powers of a civil court have been imposed on the Inquiry Wing of the Lokpal. So it
can confiscate assets, receipts and benefits arisen or got hold of by corrupt measures, in
certain special circumstances.
VI. Lokpal has the power to endorse for termination of office, transfer and debarment of public
servant connected with allegation of corruption.

Limitations of Jurisdiction of Lokpal :

As all other organizations in world Lokpal body also have its own loopholes and drawbacks.
I. The Lokpal act extolled to appoint a Lokayukta within a year after it came in force. But till date
only 16 states have successfully built up the Lokayukta. There are no restrictions and guidelines
regarding the appointment of Lokayukta and these have been left completely on the separate
rules and regulations of respective States.
II. Though Lokpal was formed to keep the public institutions isolated from political and other
kinds of filthy corruption but Lokpal cannot be perceived outside of political influence as the
members of the appointing committee itself forms with the members from political parties.
III. The clauses of the membership of Lokpal can be tampered with easily. It can be manipulated
because there is no specific criterion to decide who is an ‘eminent jurist’ or ‘a person of
integrity’ and there is a chance that deserving candidate for this position is not chosen due to
nepotism or other reason.
IV. The biggest lacuna of this system is that supreme judiciary is excluded from the purview of
the Lokpal.
V. There is no proper system of proceedings to appeal against the Lokpal if anyone is not satisfied
with its decision, as of now.

There is a restriction in the time limit of complaining. Even if there is any valid reason of not
complaining, the complaint against the alleged incident of corruption cannot be cataloged after a period of
seven years from the date of the

Suggestions to Overcome the Limitations :

As per my view, each and every flaw in the system can be meted out with full proof planning and in this
case my suggestion for better administration of ombudsman will be:

I. Lokpal and Lokayukta should be independent monetarily, administratively and legally, of those
over whom they have the jurisdiction to investigate and prosecute.
II. The process of appointment of Lokpal and Lokayukta must not be vague but transparent with
proper set of guidelines of whoever can be appointed strictly in various posts in accordance
with their merit and experience.
 III. Several dispersed and decentralized or regional institutions should be there with efficient
answerability mechanism to avoid the intensification of too much power on anyone, any one
institution or organization.

Unit-IV

Qs. Tortious Liability of the State

Ans. State is not a living entity but a legal entity which cannot function without human agency. It is
therefore, that the state has to act through its servants. The concepts of Tortious liability of the state refers
to situation when the state can be held vicariously liable for the wrongs committed by its servants. There
are numbers of constitutional provisions relating to the tortious liability of the state. Under article 294 (b),
the liability of the union government or a state may arise out of any contract or otherwise.

The word otherwise indicates that such liability may arise in respect of tortious acts as well the extent of
the said liability is defined in article 300 (l) which declares that the government of India or of a state may
sue or may be sued in relation to their respective affairs in the like cases as the Dominion of India and
corresponding provinces or Indian states might have sued or been sued.

Origin and development:

The English maxim "The King can do no wrong" had its sway in England. But, the Crown was made
liable since the Crown proceedings Act 1947, for tortious and contractual obligations. In India, during the
time of the East India Company, the Company was held liable for the tortious acts of its servants. (P&O
Steam Navigation Co V. Sec of State)

Under the Constitution:

Art 294(b) provides that the Union or State Government is otherwise includes tortious liability. How far
Union or State is liable is made clear in Art.300(l) According to this, extent of liability is the same as that
of the Dominion of India and the Provinces, before the commencement of the Constitution. Hence, the
State is liable for tortious acts of its servants. However, if the state function is Sovereign, it is not liable.
Hence liable for non-Sovereign functions.

Landmark judgements on Constitutional Tort

P & O Navigation Company v Secretary of State for India– This was the first case in which the
Sovereign immunity of the state was debated. There was a piece of a funnel made up of iron which was
being carried by some workers on a Government’s steamer, which in its way hit plaintiff’s horse-driven
carriage. Plaintiff sued the Govt. for damages due to negligence on the part of the servants employed by
the govt.

Held- “The Government cannot be held liable when the injuries are caused while carrying out sovereign
functions but is liable when the acts of the servants are non-sovereign functions”.

Nobin Chunder Dey v Secretary of State– When the Plaintiff pleaded for damages for refusal of
Government to give him licence to sell liquor and drugs, it was held that it was out of sovereign functions
of the state and thus, is out of reach of tortious liability. Since this decision, the distinction between
sovereign and non-sovereign functions is the foremost criteria that are looked into by the courts in their
judgements.

Rajasthan v Mst. Vidyawati– The facts were that in this case- a Government jeep hit a pedestrian who
eventually died of an accident. The plea of Sovereign immunity was rejected but it was held that the
government cannot be held liable for the “Act of State” under Article 300. Compensation of Rs. 15000
was given. The Hon’ble Supreme Court stated that “in the modern era, the liability of State is not limited
to Sovereign functions, but is socialistic and is related to the welfare of the people and thus, the old
immunity of State functions is irrelevant”.
Kasturi Lal v State of Uttar Pradesh– The police seized the gold which belonged to the Plaintiff. The
head constable later misappropriated the gold and flew with it to Pakistan. The Court did not take account
of the judgement in Vidyawati case and ruled in favour of the State stating that the act was sovereign in
nature. It was held that the law established in P & O Navigation is still good law. The court was not
pleased as it could help the Plaintiff with its ruling. Through this judgement, in addition to disapproving
the law in Vidyawati, it was also added by the Court that the state is not liable when the tort is done in
statutory power by its servants.

N. Nagendra Rao v State of Andhra Pradesh– It was held that the ratio of Kasturi Lal is applicable in
rare cases only where the statutory authority to carry out certain functions are delegated. In any civil
society, the state cannot be allowed to play with the rights of the citizens and take the plea of sovereign
function and thus, it cannot be treated above and against the rule of law.

Devaki Nandan Prasad v State of Bihar– In this landmark ruling, the Apex court laid the foundation of
new reasoning in matters involving constitutional tort and compensation. In this case, the plaintiff who
has been denied his pension, without much discussion, was allowed to recover exemplary damages of Rs.
25000 for being harassed by the defendant deliberately.

Rudal Shah v State of Bihar– In this case, the petitioner had filed a case against the state for his illegal
imprisonment for 14 years and asked for compensation and rehabilitation cost. The question presented
before the Apex court was whether the court can award monetary damages under its jurisdiction as given
in Article 32 or not.

The court gave the answer in affirmative by stating that monetary damages under article 32 may be
granted and thus gave a judgement that proved to be a giant leap in the cases involving both constitutional
tort and compensation.

The judgement formulated two landmark rules by holding that:

Civil liability can arise when constitutional rights are violated.

Civil liability can also emerge when there is a violation of personal liberty.

Saheli v Commissioner of Police– In this judgement, the ratio in Vidyawati was revisited and upheld by
its application. When a child died by police assault and beating, the compensation of Rs. 75000 was
granted and the Delhi Administration was allowed to recover the same from the officials which were
responsible for the incident.

Common Cause, A registered society v Union of India– In this judgement, the court ruled that when
there is a violation of fundamental rights of the person, the remedy for him is available under public law
despite the fact that there is an optional remedy in private law also. The distinction between damages and
remedies given in private and public law were evaluated and this judgement opened the way for the
development and growth of public law torts increasing State’s liability.

Qs. Contractual Liability of the State.

Ans. In England the concept "The King can do no wrong" had its sway: All the Courts in England were
under the Crown and hence he could not be sued. After the passing of the Crown proceedings Act 1947
by the Parliament, the Ministers and Government would be liable for contractual (and tortuous)
obligations. In India the East India Company was held liable in Mudalay V. Morton. The Government of
India Act 1935 had expressly made Government liable for contractual violations under Sn.l75(3) This is
reproduced in Art 299(1) of the Constitution.

Government liability in Contracts:

(i) Power or Authority to contract: Art.298: The Executive power of the Union or of State extends to
carrying on any trade or business and to the acquisition, holding and disposing of property and also to the
making of contracts for any purpose. However, the Government will be liable only if the contact is within
the scope of Art 299(1) Art 299(1) prescribes certain essential requirements: -

(i) The contract made in exercise of executive power, must be expressed to be made by the President or
the Governor as the case may be.

(ii) The contract is to be executed by persons and in such manner as the President or Governor directs or
authories.

(iii) The contract is to be executed on behalf of the President or Governor.

Essentials :

(i) The contract by the President or Governor :- Though the contract should be in writing and to be
executed as per Art 299(1) the courts have held that writing is not essential in all circumstances. In
Chatturbhuj V. Parashram, the Supreme Court held that a contract could be oral, or may be by
correspondence; in an emergency, a contract may be made by Government, without following the
"ponderous legal document couched in a particular form". A contact made by correspondence was upheld
in Union V Rallia Ram.(Tender case).

ii) Contract by authorized person: The contact should be signed by the officer of the Government, who
is duly authorised by the President or Governor. If not so authorised, the contract is not enforceable. In
Union V. N.K.(P) Ltd, the Director had been authorised to enter into contract, but the secretary had
signed on behalf, of the President of India. Held, there was no authority and hence invalid. In Bhikaji
Jaipuria V. Union, a contract had been made by a firm with Railways for supply of food grains. When
the same was supplied the Railways refused to take delivery. The plea of the Government that the
Railway Divisional Superintendent had no authority to sign as per rules, was rejected by the Supreme
Court. Power may be granted, otherwise than by rules, it held.

iii) Name of President or Governor :- It is essential that the Government contract should be made by the
officer in the name of the President or Governor. It is generally expressed in agreements as "on behalf of
If this is not done:, the contract is invalid. Karamshi V.St of Bombay, Here Government agreed ivith
Karamshi for supply of water to his "Cane farm". There were two letters but no contract as required by
Art.299(l).Held: contract invalid. D.G .Factory V. St of Rajasthan, the I.G.Phad signed but it was not
"on behalf of Governor". Held Contract invalid.
Objective:

The objective of Art:299 (l )is to safeguard the Government and not to saddle the Government with
obligations, which are made by unauthorised officers or in excess of authority. Saving public funds is
essential. Hence, if the contract is invalid, the Government cannot later ratify and make it valid.
(Malamchand V. St. of.M.P) The reason is that when there was no contract "at all", the question of
ratification does not arise.

Unjust enrichment:

From the interpretation of Art 299(1) by the Courts it is evident that the contract will be declared invalid
by the Courts, if any one of the three essentials is not complied with but this may prove harsh and unjust
in genuine cases. Hence, the courts have applied the doctrine of "unjust enrichment" in such
circumstances, in the interest of This is in Section.70 of the contract Act (quasi contractual liability).
Hence, if the contract comes within the scope of Sn.70 the affected party is entitled to claim
compensation from the Government. The Government cannot derive a benefit or retain money of the
other party and claim immunity by saying that the contract is invalid and hence it is not liable. In such
circumstances the courts will award, compensation to the affected party to prevent unjust enrichment of
the state at the cost of the aggrieved party. The conditions to be fulfilled for unjust enrichment are:

(i) The person should lawfully do or deliver something to the other.

(ii) He should not have done it gratuitously (ie not done freely)

(iii) The other party should have enjoyed or derived benefit thereof.

Qs. Tribunalization: Meaning and Concept and Constitution and function of Central Administrative
Tribunal, State Administrative Tribunal

Ans. Tribunal is an administrative body established for the purpose of discharging quasi-judicial duties.
Tribunals relieve the burden of judiciary and provide quick and speedy justice. It is to be noted that
tribunals are not courts because courts follow the Courts are governed by strict procedure defined in
CrPC, IPC and the Indian Evidence Act whereas tribunals are driven by the principles of natural justice

Meaning .

Tribunal is a quasi-judicial institution that is set up to deal with problems such as resolving administrative
or tax-related disputes. It performs a number of functions like adjudicating disputes, determining rights
between contesting parties, making an administrative decision, reviewing an existing administrative
decision and so forth.

 The term ‘Tribunal’ is derived from the word ‘Tribunes’, which means ‘Magistrates of the Classical
Roman Republic’.
 o Tribunal is referred to as the office of the ‘Tribunes’ i.e., a Roman official under the
monarchy and the republic with the function of protecting the citizen from arbitrary action by
the aristocrat magistrates.
 A Tribunal, generally, is any person or institution having an authority to judge, adjudicate on, or to
determine claims or disputes – whether or not it is called a tribunal in its title.
Need of Tribunal

 To overcome the situation that arose due to the pendency of cases in various Courts, domestic
tribunals and other Tribunals have been established under different Statutes, hereinafter referred to
as the Tribunals.
 The Tribunals were set up to reduce the workload of courts, to expedite decisions and to provide
a forum which would be manned by lawyers and experts in the areas falling under the jurisdiction
of the Tribunal.
 The tribunals perform an important and specialised role in justice mechanism. They take a load off
the already overburdened courts. They hear disputes related to the environment, armed forces, tax
and administrative issues.
Constitutional Provisions

 Tribunals were not part of the original constitution, it was incorporated in the Indian Constitution
by 42nd Amendment Act, 1976.
o Article 323-A deals with Administrative Tribunals.
o Article 323-B deals with tribunals for other matters.
 Under Article 323 B, the Parliament and the state legislatures are authorised to provide for the
establishment of tribunals for the adjudication of disputes relating to the following matters:
o Taxation
o Foreign exchange, import and export
 o Industrial and labour
o Land reforms
o Ceiling on urban property
o Elections to Parliament and state legislatures
o Food stuff
o Rent and tenancy rights
 Articles 323 A and 323 B differ in the following three aspects:
o While Article 323 A contemplates the establishment of tribunals for public service matters
only, Article 323 B contemplates the establishment of tribunals for certain other matters
(mentioned above).
o While tribunals under Article 323 A can be established only by Parliament, tribunals
under Article 323 B can be established both by Parliament and state legislatures with respect
to matters falling within their legislative competence.
o Under Article 323 A, only one tribunal for the Centre and one for each state or two or more
states may be established. There is no question of the hierarchy of tribunals, whereas
under Article 323 B a hierarchy of tribunals may be created.
 Article 262: The Indian Constitution provides a role for the Central government in adjudicating
conflicts surrounding inter-state rivers that arise among the state/regional governments.

Characteristics of Administrative Tribunals

The following are the few attributes of the administrative tribunals which make them quite disparate from
the ordinary courts:

1. Administrative tribunals must have statutory origin i.e. they must be created by any statute.
2. They must have some features of the ordinary courts but not all.
3. An administrative tribunal performs the quasi-judicial and judicial functions and is bound to
act judicially in every circumstance.
4. They are not adhered by strict rules of evidence and procedure.
5. Administrative tribunals are independent and not subject to any administrative interference in
the discharge of judicial or quasi-judicial functions.
6. In the procedural matters, an administrative tribunal possesses the powers of a court to
summon witnesses, to administer oaths and to compel the production of documents, etc.
7. These tribunals are bound to abide by the principle of natural justice.
8. A fair, open and impartial act is the indispensable requisite of the administrative tribunals.
 9. The prerogative writs of certiorari and prohibition are available against the decisions of
administrative tribunals.

Distinction between Courts and Tribunals

Courts Administrative Tribunal

A Court of law is a part of the traditional judicial The administrative tribunal is an agency created by a statue
system. endowed with judicial powers.

A Court of law is vested with general jurisdiction It deals with service matters and is vested with limited
over all the matters. jurisdiction to decide a particular issue.

It is not bound by the rules of the Evidence Act and the

It is strictly bound by all the rules of evidence and
CPC unless the statute which creates the tribunal imposes
by the procedure of the Code of Civil Procedure.
such an obligation.

It is not mandatory in every case that the members need to

It is presided over by an officer expert in the law.
be trained and experts in law.

The decision of the court is objective in nature

The decision is subjective i.e. at times it may decide the
primarily based on the evidence and materials
matters taking into account the policy and expediency.
produced before the court.

It is not obligatory to follow precedents and principle of res

It is bound by precedents, the principle of res
judicata but the principle of natural justice must be
judicata and the principle of natural justice.
followed.

It can decide the validity of legislation. It cannot decide the validity of legislation.

The courts do not follow investigatory or inquisition Many tribunals perform investigatory functions as well
functions rather it decides the case on the basis of
 evidence. along with its quasi-judicial functions.

The Administrative Tribunals Act, 1985

In pursuance of the provisions in Article 323A, Parliament passed the Administrative Tribunal Act, 1985,
providing for all the matters falling within the clause(1) of Article 323-A. According to this Act, there
must be a Central Administrative Tribunal (CAT) at the centre and a State Administrative Tribunal (SAT)
at the state level for every state.

The tribunal is competent to declare the constitutionality of the relevant laws and statutes. The Act
extends to, in so far as it is related to the Central Administrative Tribunal, to the whole of India and in
relation to the Administrative tribunals for states, it is applicable to the whole of India except the State of
Jammu and Kashmir (Section 1).

Objective for the establishment of Administrative Tribunals

The main purpose of the introduction of this act was :

1. To relieve congestion in courts or to lower the burden of cases in courts.

2. To provide for speedier disposal of disputes relating to the service matters.

Applicability of the Act

According to Section 2 of the Administrative Tribunals Act, 1985, the act applies to all Central
Government employees except –

 The members of the naval, military or air force or any other armed forces of the Union
 Any officer or servant of the Supreme Court or any High Courts
 Any person appointed to the secretariat staff of either House of the Parliament.
Composition of the Tribunals and Bench

Section 4 of this Act describes the composition of the tribunals and bench. Each tribunal shall consist of a
Chairman, Vice Chairman, Judicial and Administrative members. Every bench must include at least one
judicial and one administrative member. The benches of the Central Tribunal shall ordinarily sit at New
Delhi, Allahabad, Calcutta, Madras, Bombay and such other place as the Central Government specifies.
The Chairman may transfer the Vice Chairman or other members from one bench to another bench.

Qualification and Appointment of Members

Section 6 of the Administrative Tribunals Act, 1985, lays the provisions specifying the qualifications and
appointment of the members of tribunals.

Chairman: To be appointed as a chairman, a person must have the following qualifications-

 He is or has been a judge of a High Court or

 He has held the office of Vice Chairman for two years or
 He has held the post of secretary to the Government of India or
 He has held any other post carrying the scale pay of secretary.

Vice-Chairman: A person is qualified for the post of Vice-Chairman if he-

 Is or has been a judge of the High Court or

 Has for 2 years held the post of Secretary to the Government or holding any other post
carrying the same pay scale under the Central or State Governments or
 Has held for 5 years the post of an Additional Secretary to the Government of India or any
other post carrying the scales of pay of Additional Secretary.

Judicial Member: A person to be appointed as a judicial member must-

 Be or have been a judge of the High Court or

 Have been a member of Indian Legal Service and has held a post in Grade I of the service for
at least 3 years.
Administrative Member: A person to be appointed as an Administrative member must-

 Have held the post of an Additional Secretary to the Government of India or another
equivalent post for at least 2 years, or
 Have held the post of a Joint Secretary to the Government of India or other equivalent post, or
 Have adequate administrative experience.

The Chairman, Vice-Chairman and other members shall be appointed by the President. The Judicial
Members shall be appointed by the President with the consultation of the Chief Justice of India. The
Chairman, Vice-Chairman and other members of the State Tribunal shall be appointed by the President
after consultation with the Governor of the concerned state.

Term of Office

According to Section 8 of the Act, the Chairman, Vice-Chairman and other members of the tribunal shall
hold the office for a term of 5 years or until he attains-

1. Age of 65 years, in the case of the Chairman or Vice-Chairman

2. Age of 62 years in the case of other members

Resignation and Removal

Section 9 of the Act prescribes the procedure of resignation by any member and removal of any member.

The Chairman, Vice-Chairman or other members may resign from his post by writing to the President.

They shall be removed from their office only by an order made by the President on the ground of proved
misbehaviour or incapacity after an enquiry made by a judge of the Supreme Court. They shall have the
right to be informed of the charges against them and shall be given a reasonable opportunity of hearing.
The Central Government may make rules to regulate the procedure for the investigation of the charges
against them.
Jurisdiction of Central Tribunal

Section 14 states that the Central Tribunal from the day of the appointment shall exercise all the
jurisdiction, powers and authority in relation to the following matters which were within the jurisdiction
of other courts (except the Supreme Court) before the enactment of this Act:

1. Recruitment of any civil service of Union or All India service or civil post under the Union or
civilian employees of defence services;
2. All service matters of the above-mentioned employees, and also of employees of any local or
other authority within the territory of India or under the control of the Government of India or
any corporation or society owned or controlled by the Government;
3. All service matters of such persons whose services have been placed by the State Government
or any local or other authority or any corporation at the disposal of the Central Government.

Procedure and Powers of Tribunals

Section 22 of the Administrative Tribunals Act, 1985 lays down the powers and procedure of tribunals
discussed below-

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;
9. Reviewing its decisions;
10. Deciding the case ex-parte;
11. Setting aside any order passed by it ex-parte;
12. Any other matter prescribed by the Central Government.
13. Leading Case Laws

Case: S.P. Sampath Kumar v. Union of India[2]

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.

State Administrative Tribunal

Article 323 B empowers the state legislatures to set up tribunals for various matters like levy,
assessment, collection and enforcement of any of the tax matters connected with land reforms covered
by Article 31A.
Water Disputes Tribunal

 The Parliament has enacted Inter-State River Water Disputes (ISRWD) Act, 1956 have formed
various Water Disputes Tribunal for adjudication of disputes relating to waters of inter-State
rivers and river valleys thereof.
o Standalone Tribunal: The Inter-State River Water Disputes (Amendment) Bill, 2019 is
passed by Parliament for amending the existing ISRWD Act, 1956 to constitute a standalone
Tribunal to remove with the need to set up a separate Tribunal for each water dispute which
is invariably a time-consuming process.
Armed Forces Tribunal (AFT)

 It is a military tribunal in India. It was established under the Armed Forces Tribunal Act, 2007.
 It has provided the power for the adjudication or trial by AFT of disputes and complaints with
respect to commission, appointments, enrolments and conditions of service in respect of persons
subject to the Army Act, 1950, The Navy Act, 1957 and the Air Force Act, 1950.
 Besides the Principal Bench in New Delhi, AFT has Regional Benches at Chandigarh, Lucknow,
Kolkata, Guwahati, Chennai, Kochi, Mumbai and Jaipur.
o Each Bench comprises of a Judicial Member and an Administrative Member.
 The Judicial Members are retired High Court Judges and Administrative Members are retired
Members of the Armed Forces who have held the rank of Major General/ equivalent or above
for a period of three years or more, Judge Advocate General (JAG), who have held the
appointment for at least one year are also entitled to be appointed as the Administrative Member.
National Green Tribunal (NGT)

 The National Environment Tribunal Act, 1995 and National Environment Appellate Authority
Act, 1997 were found to be inadequate giving rise to demand for an institution to deal with
environmental cases more efficiently and effectively.
 The Law Commission in its 186th Report suggested multi-faceted Courts with judicial and technical
inputs referring to the practice of environmental Courts in Australia and New Zealand.
o As a result NGT was formed as a special fast-track, quasi-judicial body comprising of judges
and environment experts to ensure expeditious disposal of cases.
 The National Green Tribunal was established in 2010 under the National Green Tribunal Act
2010 as a statutory body.
o It was setup for effective and expeditious disposal of cases relating to environmental
protection and conservation of forests and other natural resources.
o It also ensures enforcement of any legal right relating to environment and giving relief and
compensation for damages to persons and property.
 The Tribunal is mandated to make and endeavour for disposal of applications or appeals
finally within 6 months of filing of the same.
 Initially, the NGT is proposed to be set up at five places of sittings and will follow circuit procedure
for making itself more accessible.
o New Delhi is the Principal Place of Sitting of the Tribunal and Bhopal, Pune, Kolkata and
Chennai shall be the other four place of sitting of the Tribunal.
Income Tax Appellate Tribunal

 Section 252 of the Income Tax Act, 1961 provides that the Central Government shall constitute
an Appellate Tribunal consisting of many Judicial Members and Accountant members as it thinks
fit to exercise the powers and functions conferred on the Tribunal by the Act.
Advantages of Administrative Tribunals

The concept of administrative tribunals was introduced because it has certain advantages over ordinary
courts. Few of them are mentioned below-

 Flexibility: The introduction of administrative tribunals engendered flexibility and versatility

in the judicial system of India. Unlike the procedures of the ordinary court which are stringent
and inflexible, the administrative tribunals have a quite informal and easy-going procedure.

 Speedy Justice: The core objective of the administrative tribunal is to deliver quick and
quality justice. Since the procedure here is not so complex, so, it is easy to decide the matters
quickly and efficiently.

 Less Expensive: The Administrative Tribunals take less time to solve the cases as compared
to the ordinary courts. As a result, the expenses are reduced. On the other hand, the ordinary
courts have cumbrous and slow-going, thus, making the litigation costly. Therefore, the
administrative tribunals are cheaper than ordinary courts.

 Quality Justice: If we consider the present scenario, the administrative tribunals are the best
and the most effective method of providing adequate and quality justice in less time.
 Relief to Courts: The system of administrative adjudication has lowered down the burden of
the cases on the ordinary courts.

Drawbacks of Administrative Tribunals

Although, administrative tribunals play a very crucial role in the welfare of modern society, yet it has
some defects in it. Some of the criticisms of the administrative tribunal are discussed below-

 Against the Rule of Law: It can be observed that the establishment of the administrative
tribunals has repudiated the concept of rule of law. Rule of law was propounded to promote
equality before the law and supremacy of ordinary law over the arbitrary functioning of the
 government. The administrative tribunals somewhere restrict the ambit of the rule of law by
providing separate laws and procedures for certain matters.

 Lack of specified procedure: The administrative adjudicatory bodies do not have any rigid
set of rules and procedures. Thus, there is a chance of violation of the principle of natural
justice.

 No prediction of future decisions: Since the administrative tribunals do not follow

precedents, it is not possible to predict future decisions.

 Scope of Arbitrariness: The civil and criminal courts work on a uniform code of procedure
as prescribed under C.P.C and Cr.P.C respectively. But the administrative tribunals have no
such stringent procedure. They are allowed to make their own procedure which may lead to
arbitrariness in the functioning of these tribunals.

 Absence of legal expertise: It is not necessary that the members of the administrative
tribunals must belong to a legal background. They may be the experts of different fields but
not essentially trained in judicial work. Therefore, they may lack the required legal expertise
which is an indispensable part of resolving disputes.