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2 (Constitutional imperatives and use of discretionary authority), 4.4.4 (Non-exercise of discretionary power), 5.3 (Exclusion of judicial review), 5.4 (Suits against administration), 6.2.6 (Doctrine of legitimate expectation). For 3.4, you just need to know the meaning of administrative appeal, for 4.4.2 you just have to show how administrative discretion must be used to carry out constitutional directions, for 4.4.4 just write how discretion may be questioned on the ground of non-exercise of such power. With respect to 5.3, you need write down that HC’s power of judicial review cannot be excluded and mention L. Chandra Kumar’s case, for 5.4 you need to write down how the government and other authorities can be brought under the writ jurisdiction of the courts. Please remember that the writs to be used here are Habeas Corpus, Mandamus and Quo Warranto. Certiorari and Prohibition deal with judicial authorities primarily. As far as 6.2.6, the doctrine of judicial expectation means that when the executive declares that it shall do a particular thing, there is a legitimate expectation on the part of the public that the government shall do the same with reasonable care and caution. Also, my notes under the RTI Act are incomplete. For this part you need to know about the information which may be disseminated as such, authorities and basic procedure under the act. Also, as regards the functions of ombudsman, just mention general functions and nothing more. Further, the important chapters for the examination are Chapter 1 (2 questions), 2( 2 questions), 4 (1 question), 1 or 2 short notes with respect to the writs and 1 question with respect to the RTI Act. The source of my notes is MP Jain and class notes. The reading material consists of a total of 59 pages. Kindly let me know incase any doubt arises. Regards Ankita
ADMINISTRATIVE LAW Unit I- Evolution, Nature and Scope of Administrative Law 1.1 Change in the concept of state-from laissez faire to Social Welfare state
1. Administrative law is recognised as the most outstanding legal development of the 20th
2. The 19th century was characterised by the welfare state wherein there was minimum
government control, free enterprise, contractual freedom, etc. Individualistic theories flourished in this period. 3. The state played a negative role. It was primarily a police state which helped in maintenance of law and order, protecting the nation from external aggression, dispensing justice to its citizens and collecting taxes for financing such activities.
4. However, in the 20th century, the evils of this system were realised. Due to contractual
freedom and freedom of enterprise, there was unequal distribution of wealth. This led to
several socialist movements specially ones in which the grievances of labourers was voiced. 5. Thus, a need was felt that the state shall be more than a police state. It shall help in alleviating the poor, regulating individual enterprise and most importantly bringing about social justice. This led to the establishment of the social welfare state. 6. This may be seen even in case of India. Before independence, India was essentially a police state as the British were more interested in furthering their own interests rather than working for the welfare of the people. 7. However, the concept of social welfare was taken up immediately after independence especially after the adoption of the constitution.
8. The preamble to the constitution states that India shall be a socialist, secular,
democratic, republic and must provide justice, equality, rights, freedom, etc. to all. 9. Other examples are that given in Part IV wherein it has been provided that there shall be no concentration of wealth towards the common detriment. There shall be equitable distribution of wealth. 10. Also, right to free and compulsory education for children upto 14 years is now a fundamental right. 11. There is also provision of equal pay for equal work under Part IV. 12. Further, various social legislations such as the Factories Act, Minimum Wages Act, etc. have come into the picture.
1.2 Increase of functions of modern state 1. The growth of administrative law has primarily been due to the growth of administrative powers and functions which is again the result of increased state functions.
2. This has also been also attributed to the fact that the international situation in the 20th
century was such that at times quick decisions required to be taken by the executive in times of emergency and thus administrative powers increased. 3. The state today has taken up functions which were earlier carried out by the private sector. It provides for transport, communication, energy, housing, banking, education, trade and commerce, etc. 4. The functions of the state today may be put into 5 broad categories, namely- as a protector, provider, entrepreneur, economic controller and arbiter. 5. A state consists of 3 organs- the legislature, executive and the judiciary. Out of the three, the executive is the most powerful these days. 6. Not only does the executive have powers of administration, it also has powers of legislation in the form of delegated legislation. Alongwith that it has the power to
conduct enquiries and investigations and give binding decisions as in case of administrative adjudication. Sometimes it may even exercise its discretion. 7. However, some sort of check must be exercised on such powers and the same is done with the help of administrative law. Administrative law helps in balancing public power and personal rights. 8. If exercised properly, vast administrative powers could lead to a well functioning welfare state and if not exercised properly it would lead to despotism. 9. Administrative law provides several limitations on executive power in the form of rule of law, separation of powers, principles of natural justice, judicial and parliamentary controls, administrative appeals, ombudsman, etc.
1.3 Definition and Scope of Administrative Law
1. According to KC Davis, ‘administrative law is the law concerning the powers and
procedures of the administrative agencies including especially the law governing judicial review of administrative action.’ This explains the American approach to the subject. 2. As per Davis, an administrative agency is a governmental body other than a court or a legislature which affects the rights of private parties through adjudication and rule making. 3. However, this definition cannot be accepted in totality as even though it emphasises on the procedure followed by administrative authorities, it does not talk about certain other functions of the executive which are non-adjudicatory in nature and do not at the same time fall within the scope of legislative or quasi-judicial function. Also, it lays too much emphasis on judicial control and does not mention about other means of control such as parliamentary control, etc.
4. The British approach has been provided in the definition given by AV Dicey. He
defines administrative law as ‘denoting that portion of a nation’s legal system which lays down the legal status and liabilities of state officials, the rights and liabilities of private individuals in their dealings with public officials and specifies the procedure by which such rights and liabilities may be enforced.’ 5. Dicey’s definition may be criticised on the ground that it is a very restrictive definition as it emphasises only on the aspect of control over public officials. Further, it only talks of state officials and ignores others like public corporations, etc. It excludes several other functions and powers of public authorities.
6. The modern British approach can be seen in the definition given by Sir Ivor Jennings
who states that ‘administrative law is the law of the administration. It determines the organisation, powers and duties of the administrative authorities.’
7. The above definition is the most widely accepted definition of administrative law.
However, it has been criticised on the ground that it doesn’t differentiate between administrative law and constitutional law. Also, it is too broad a definition. Further, it
does not provide for remedies available to an aggrieved person when his rights are affected by administrative action.
8. According to Wade, ‘administrative law is the law relating to the control of
governmental power. The primary object of administrative law is to keep powers of the government within their legal bounds so as to protect the citizens against their abuse.’
9. According to Jain and Jain, ‘Administrative law is deals with the structure, powers and
functions of the organs of the administration, the limits of their powers, the methods and procedure followed by them in exercising their powers and functions, the methods by which their powers are controlled including the legal remedies available to a person against them when his rights are infringed by their operation.’ 10. Administrative powers have been called a necessary evil as even though they are required, they may lead to arbitrariness on the part of the executive. They might even adversely affect the rights of individuals.
11. Lord Denning has stated that ‘properly exercised, the new powers of the executive
could lead to a welfare state but if abused could lead to a totalitarian state.’ 12. Thus, administrative law is required to exercise a system of checks and balances against such power. 13. The similarity between administrative law and constitutional law is to the extent that both deal with functions of the government and both form a part of modern public law. 14. Differences may be discussed as followsCONSTITUTIONAL LAW It deals with the organs and functions of the state at rest. It deals with the structure of the various organs of the state and regulates their relation with each other and with individuals. ADMINISTRATIVE LAW It deals with the organs and such functions in motion. It deals with the functions of various organs of the state and controls the exercise of powers by the executive.
It lays down fundamental and basic principles. It fills in the details. It is based on a written constitution. It is based on statutes, precedent, etc.
15. However there are similarities between the two such as availability of constitutional remedies, concern with affected rights of individuals or fundamental rights, etc.
16. As per several American and English authors the difference between the two is more of
degree, convenience and custom rather than that of logic and principle.
1.4 Separation of Powers
1. The doctrine of separation of powers was given by French jurist and philosopher Montesquieu. 2. This doctrine has 3 meanings, namely(a) The same person cannot be a member of more than one organ of the government. (b) One organ of the government cannot control or interfere with the functions of the other. (c) One organ of the government cannot perform the functions of another. 3. This doctrine was theoretically very sound but posed certain practical problems such as(a) Its historical basis which describes separation of powers as thriving in England is faulty. (b) It is based on the assumption that all 3organs of the government have completely distinct powers. This is wrong as any one organ of the government performs atleast some of the functions of the other two. (c) Also, complete separation is neither practical nor desirable. If the legislature were only to legislate, it could not punish anyone for its contempt. (d) Modern state is a welfare state characterised by complex socio-economic problems and the same cannot be solved with complete separation. (e) The primary aim of this doctrine was to ensure greater freedom for the people and strict separation may not necessarily ensure the same. 4. This doctrine is used more in the form of a system of checks and balances these days wherein every organ of the government performs some functions of the other 2 organs, thereby exercising a check on arbitrary use of power. 5. This doctrine may be unreasonable and impractical but it has helped in building a system of checks and balances.
6. This doctrine has been used in a strict sense in the US wherein legislative powers rest
with the Congress, executive powers with the President and judicial powers with the Supreme Court and the subordinate courts. All three organs exercise a system of checks and balances on each other and no one organ can encroach upon the power of another. 7. Although Montesquieu developed his theory based on the British constitution, at no point of time has there been strict separation in the UK inspite of there being three different organs having three different functions which may even overlap at times. An example may be given of the Lord Chancellor who is the head of the judiciary, is the chairman of the House of Lords which is the legislature, is a member of the executive and is generally part of the cabinet.
8. In India although this doctrine has been implicitly set out in the constitution and forms
part of the basic structure of the constitution, there is no complete separation of functions as such inspite of there being a scheme for separation of powers. The same is not practically possible as well.
1.5 Rule of Law 1. Rule of law is a basic principle of the British constitution and has even been adopted by the Indian and US constitutions. It forms the entire basis for administrative law.
2. It was first stated by Sir Edward Coke who stated that the King cannot be above God
and the law and thus upheld the supremacy of the law over the executive.
3. It was further developed by Dicey who stated that ‘rule of law means the absolute
supremacy or predominance of regular law as opposed to influence of arbitrary power and excludes the existence of arbitrariness of predominance, or even wide discretionary authority on the part of the government.’ 4. Dicey gave 3 meanings to this doctrine namely- supremacy of the law, equality before law and predominance of legal spirit.
5. Supremacy of the law- This means that no man may be punished without due process of
law for an established breach of the law in the ordinary legal manner in the ordinary courts of law. It also means that administrative discretion leads to arbitrariness and thus the same should be avoided. The law is supreme and even the administration is under the law.
6. Equality before law- This means that every citizen must be subject to one and the same
body of law which is the ordinary law of the land administered by the ordinary courts of the land. Dicey criticised the principle of Droit Administratiff as in the French legal system which provided for separate tribunals for settlement of disputes between the government and individuals. He saw this as a negation of the principle of the rule of law as it took away the jurisdiction of the courts and subject government officials to a law different from that which the general public was subjected to. Also, it allowed the administration to adjudicate upon matters which was primarily a function of the judiciary.
7. Predominance of legal spirit- As per Dicey it is the courts which enforce rights of
individuals while a written constitution merely declares such rights. Thus, the constitution is not the source but only a consequence of legal rights. It was emphasised that in order for rights to be secured, enforcement by courts was required rather than a mere declaration whereby such rights could easily be trampled upon. He used the example of the various Habeas Corpus Acts which actually went ahead to talk of the enforcement of rights rather than defining them. 8. One of the merits of Dicey’s theory was that it helped exercise a check on executive powers and kept administrative authorities within their limits. It became a touchstone to judge administrative acts. 9. However, even during Dicey’s time in 1885 there were several acts which conferred wide discretionary powers on the executive without allowing any sort of judicial review, thereby contravening this doctrine. 10.One of the major drawbacks of this theory lies in the fact that discretionary powers are regarded as being arbitrary and in a modern welfare state, administrative discretion is indispensible.
11. Another drawback is a presumption made by Dicey about the judiciary being the
solution to all suits. His mistrust over the system of Droit Administratiff in France was wrong as this system exercised checks in a much better manner than the judiciary. The Counseil d’ Etat which exercised judicial control over the administration was infact a part of the administration itself while being a court in reality. 12.Dicey’s rule of law however has been identified in democracies across the world with rights of the people. The International Commission of Jurists in their Delhi Declaration, 1959 accepted the idea of rule of law as the modern form of law of nature. 13.Though Dicey’s original rule of law cannot be accepted in totality, the modern rule of law as given by Davis has the following 7 connotations(a) Law and order (b) Fixed rules (c) Due process or fairness (d) Elimination of discretion (e) Principles of natural justice (f) Preference to ordinary courts over administrative tribunals (g) Judicial review of administrative actions
14. Rule of law is a part of the basic structure of the Indian constitution. A few examples
of where it may be seen in the constitution are as follows(a) The preamble talks about justice, liberty and equality. (b) There is provision for judicial review by the SC and the HC s for the enforcement of fundamental rights. (c) If there is any abuse of power by the executive, the same may be challenged on the grounds of malafide, etc. before a court of law. (d) Art. 21 provides that no person shall be deprived of his life or personal liberty except in accordance with procedure established by law. This brings in the principles of natural justice especially after the Maneka Gandhi case. (e) Art. 13 provides that all rules, ordinances, by-laws, orders, etc. would be regarded as ‘law’ and could thus be subjected to judicial review. (f) The Constitution is supreme and all three organs of the government are below the constitution. (g) In India there is no rule of the King can do no wrong. (h) Art. 14 talks about equality before law and equal protection of the law. Even the state and its officials are liable in torts and contracts and if any wrong is committed by an employee of the state, the state may be made liable for such act.
15. However, in several areas, there exists a great deal of executive interference. This is
primarily due to excessive delegation of powers by the legislature and the judiciary to the executive. Also, the executive has been given wide discretionary powers. Further, it is not just the executive but even the legislature which by passing demonic acts such as the Prevent Detention Act or the Maintenance of Internal Security Act encroaches upon the rights of the people.
16. In Chief Commissioner, Punjab v. Om Prakash, it was held that the rule of law is a
characteristic feature of the constitution by which the judiciary may question any administrative action on the ground of legality especially when there is a violation of fundamental rights.
17. In ADM Jabalpur v. Shivkant Shukla (Habeas Corpus case), the freedoms under Art.
19 were suspended and enforceability of Art.s 14, 21 and 22 was suspended during emergency. Several persons were detained and they approached the courts by filing writ petitions asking the courts to issue writs of habeas corpus. The majority held in this case that Art. 21 of the Constitution is the rule of law as far as the Indian constitution is considered and as the enforceability of the same is suspended, it cannot be enforced. This was an erroneous judgment and J. Khanna in his dissenting judgment stated that the rule of law is the antithesis of arbitrariness. The right to life and personal liberty as enshrined in Art. 21 is inherent in all human beings and thus no person may be deprived of his life and personal liberty even by state action of suspending such right
Unit II- Legislative Powers of Administration 1. Delegated legislation essentially means the bulk of legislation promulgated by the Executive. 2. This term is used in two senses. It is either when the subordinate agency exercises power as conferred on it by the legislature or when such subordinate agency makes subsidiary rules in accordance with such power conferred on it. 3. In the first sense, it refers to subordinate legislation wherein the executive makes laws within the limits prescribed by the parent act as it is subordinate to such legislation.
4. In the second sense, it refers to all rules, regulations (which are essentially made by
corporations), by-laws, etc. framed by the executive. An example may be given of the Essential Commodities Act wherein the list of essential commodities given in the statute are not exhaustive and the executive may add to it as and when it feels necessary. 5. Delegated legislation may be distinguished from administrative action on the following grounds(a) Publication- Usually legislative acts or orders must be published in the official gazette for the purpose of notification. However, administrative orders generally need not be published as they are applied with respect to only a particular individual or a particular group of individuals.
(b) Procedure- In case of legislation, only such rules of procedure need to be followed which are specified in the statute, while in the case of administrative action, principles of natural justice must be followed even when the parent statute is silent on such issue. (c) Grounds of judicial review- Malafide may be pleaded as a ground with respect to administrative action but the same can several be used as a ground to challenge delegated legislation. (d) Differences between legislative and non-legislative functions also come to the forefront when questions about sub-delegation arise.
6. However, it has been stated by the Committee on Ministers’ Powers that the test to differentiate between the two is that the power to formulate general laws, rules, etc. is legislative while the power to apply such rules and make orders with respect to specific cases is administrative.
7. This has been stated in the Generality and Prospectivity test as given in Union of India
v. Cynamide India Ltd. wherein an order of the Central Government fixing the maximum prices for sale of certain bulk drugs was challenged on the grounds of violating the principles of natural justice as it was an administrative action. The HC on the other hand held that fixing prices here affects the rights of the general public and not just particular drug manufacturers and hence it was a piece of delegated legislation and the principles of natural justice would not apply.
8. In K.I. Shepherd v. Union of India, the application of this rule was rejected. Herein the
rights of particular bank employees were affected due to termination of services caused by the merger of certain banks.
2.1 Need for delegation of legislative power1. Factors leading to growth of delegated legislation(a) Increase in state functions owing to the creation of a welfare state in place of a laissez faire state. (b) It helps in saving time of the legislature which is generally overburdened these days. (c) It reduces the burden of the legislature. (d) If each piece of legislation were to consist of all possible details, it would become too complex for the common man to understand. (e) It would be better to leave such tasks to specialists who shall be in a better position to make such technical rules, regulations, etc. (f) At times, it might become necessary to hold consultations with persons going to be affected by schemes and the same may be done by the administration which works at the grass-root level.
(g) Delegated legislation involves a lot of flexibility and opportunity for experimentation. (h) It might not be possible for the legislature to forsee the possible effects of an act each time owing to the changing circumstances. (i) Such legislation is required especially during times of emergency such as war, armed aggression, natural disasters, etc. wherein it might not be possible to the extensively lengthy and complex process of legislation. 2. Drawbacks of delegated legislation(a) It has often been criticised as being an abdication of its powers/duties by the legislature. Many times only the skeleton of the legislation is laid down, leaving even the policies and principles to be formulated by the executive. (b) It leads to arbitrariness as many times no guidelines are laid down using which the delegate may exercise his functions and thus he gets complete authority to do whatever he likes. (c) Delegated legislation has been criticised as being undemocratic as it is not discussed or criticised in parliament as is the case with any statute. It may not reflect the general public opinion. 3. Thus, an effective system of checks and balances must be developed both at the legislative level by not allowing for excessive delegation and at the executive level by avoiding arbitrary use of power and application of mind. 4. Restraints on delegated legislation(a) In Britain, due to the prevalence of the principle of Parliamentary sovereignty, delegated legislation is also controlled by the Parliament. There is no restriction on the capacity of the Parliament to delegate and thus the courts cannot question such power. However, controls may be exercised by the Parliament if it so pleases and it cannot be compelled by any external agency to do so. (b) In the United States due to the presence of a written constitution and the principle of separation of powers, the Congress cannot delegate excessive amount of power as the same may be struck down by courts as being unconstitutional. Also, the US Supreme Court has evolved the doctrine of ‘delegatus non potest delegare’ by virtue of which, the Congress cannot delegate as it is technically the delegate of the people. However, keeping in mind practical considerations, it has been stated that the Congress may delegate provided it lays down discernible standards and policies which the executive must follow while exercising such powers. (c) In India, (i) The first important case concerning the limits of delegated legislation was that of Jatindra Nath v. Province of Bihar where it was held that there can be no delegation beyond conditional legislation. As per the principle of conditional legislation, the general piece of legislation is made by the legislature and it is to be enforced by the executive subject to the fulfilment of a condition. Whether or not the law shall take effect will
depend upon whether or not such condition has been fulfilled by the administration. However, this principle was followed only at the time of independence. (ii) Later in the Delhi Laws Act case, a new approach was adopted. After independence, states in India were divided into three categories- Part A(provinces of British India), Part B(princely states) and Part C(smaller territories which were previously governed by Governor Generals). Part A and Part B states had their own legislature to make laws but Part C states were under the control of the Central Government. Thus, due to time constraints, the Parliament passed the Part C States (Laws) Act, 1950 by virtue of which the Central Government could extend any law in force in a Part A state to a Part C state with modifications as and when required and in doing so it could also repeal/amend the provisions of any law, provided it is not a law enacted by the Centre, which is in force in a Part C state to the extent is inconsistent with the former. All 7 judges gave different opinions but concurred on 2 major points, i.e. keeping in mind the practical need of delegated legislation, the same must be continued and as the legislature in India derives authority from a written constitution, there must be certain limits to the capacity to delegate (there should not be any excessive delegation). Thus, keeping the same in mind it was held that the part of the law which allowed it to repeal/amend provisions of laws prevalent in a Part C state was bad and thus should not be allowed (excessive delegation). Also, when the law is being made applicable to Part C state subject to modifications, the modifications must not be such that they change the underlying policy of the law itself. Further, only such laws as under the Union list and are applicable to Part A and Part B states must be extended to Part C states so that the state legislatures may not abdicate their duties of legislation. It was also stated in this case that the legislature may not delegate its basic functions of policy formulation, etc. (iii) In Gwalior Rayon Co. v. Asst. Commissioner of Sales Tax, it was held that whenever the legislature delegates power to an authority, it must lay down the basic policy, principles or standards of guidance for such authority to follow. However, in his dissenting judgment, Matthew J. stated that as long as Parliament retains its power to repeal the delegating provision, there is no abdication of its duties (stated in previous case by Attorney General). However, this view is not proper as keeping in mind the current political scenario the Parliament cannot possibly repeal the delegating statute after conferring such power as most present day executives exercise almost complete power over the legislature as they themselves enjoy a majority in the legislature.
2.2 Constitutionality of Delegated Legislation 2.2.1 Skeleton Legislation 1. Skeleton Legislation refers to such a legislation wherein the legislature provides for merely the basic skeleton and the gaps are filled in or the flesh and blood are provided by the Executive. In many cases, the judiciary has upheld the validity of such legislations.
2. In Bagla v. Madhya Pradesh, it Ss. 3, 4 and 6 of the Essential Supplies Act, 1946 were challenged. S.3 laid down that the Central Government may lay down rules for regulation of production, distribution and prices of essential commodities. This was challenged on the ground of excessive delegation stating that the legislature had not laid down any policy or
standards. But, the SC held otherwise and stated that the basic policy has been provided in the form of maintenance or increase in supply and maintenance of prices in public interest. S.4 stated that the Central Government may further delegate its powers to its subordinate officers or such officers working under the State Government. This was challenged on the basis of the fact that a delegate may not sub-delegate. However, the SC held that as the officers to whom power may be sub-delegated have been mentioned in a list under S.4, there is infact delegation by the legislature and not the executive as the latter cannot merely appoint anyone to perform the duty. S.6 provides that orders made by Centre under S.3 would have effect even if they were inconsistent with any other act in force. This amounted to repeal of such other act or its provisions. It was thus challenged on the ground of repeal of a legislative act by way of delegated legislation (as discussed in the Delhi Laws Act case). However, the SC upheld the validity of this section and stated that it was provided only to by-pass any other law in force and not to repeal it. Also, even if any act gets repealed in the process, it is due to an act of the legislature and not of the delegate as S.6 was declared by the legislature itself.
3. In Bhatnagar and Company v. Union of India, it was held that the power of the Central Government under the Imports and Exports Act to restrict or prohibit the import or export of products of a specific category is valid even if no guidelines for deciding as to how such commodities are to be chosen is provided in the parent legislation. This is because the policy has been laid down in a preceding legislation- the Defence of India Act. Also, owing to the dynamic nature of imports or exports, it becomes impossible for the legislature to predict as to which goods need to be put into such category.
4. In DS Garewal v. Punjab, the provisions of the All India Services Act which empowered the Centre to make rules to regulate conditions of service was challenged as amounting to excessive delegation. However, it was also stated that the rules which would have already been in existence at the time of enactment of the statute would be deemed to be part of the act itself. Thus, the rules were held to be valid as they were adopted by the act itself and thus the underlying policy was established.
2.2.2 Power of Inclusion and Exclusion 1. This is a common legislative practice which provides that certain individuals, organisations, commodities, etc. be excluded or included from the purview of the Act by way of adding or omitting such names from a schedule annexed to the Act by the executive.
2. In Edward Mills Company v. State of Ajmer, it was held that inclusion or exclusion of
any sort of employment under the Minimum Wages Act so that such group of persons may or may not be entitled to the wages fixed under the act does NOT amount to excessive delegation. This is because the policy is already laid down in the act which entitles such persons to minimum wages who do not receive the same due to unfair practices, unorganised labour, etc.
3. In Jalan Trading Company v. Mill Mazdoor Union, it was held that the government
may decide to exempt certain establishments from the ambit of the Payment of Bonus
Act taking into consideration their financial capacity, etc. and the same shall not amount to being excessive delegation as the policy has already been laid down by the statute.
4. In Hamdard Dawakhana v. Union of India, for the first time after the Delhi Laws Act
case, a Central Act was held to be ultra vires. Herein, S.3 of the Drug and Magic Remedies (Objectionable Advertisements) Act was challenged. This section contained a list of drugs whose advertisement was prohibited and entitled the government to add to or remove from such list. This provision was held to be unconstitutional as there was no specific standard or guideline laid down to be considered by the executive while adding or removing names of such drugs.
2.2.3 Power of modification of statute 1. This is also known as the power to remove difficulties or the Henry VIII Clause. 2. This power is given so that the executive in times of need might change any provision of the parent statute.
3. This might seem as a drastic power given in the hands of the executive but it is required
to bring about a certain degree of flexibility in legislation so that changes may be brought about keeping in mind changing social needs.
4. It might also be used to remove any difficulty in the operation of the act. 5. Also, it is generally used when a particular law forays into an entirely new area where
socio-economic or other conditions are different. 6. All the above may be carried out by inserting a ‘removal of difficulties’ clause or a Henry VIII clause in the statute. 7. It was named Henry VIII clause after King Henry VIII who was called the ‘impersonation of executive autocracy’ by the Committee on Ministers’ Powers Report, 1932. 8. There are generally 2 types of ‘removal of difficulty’ clauses, one which is narrower and another which is broader. 9. A narrower clause allows removal of difficulty without any modification to the parent act. It must always be in consonance with the parent act. An example may be given of the Reorganisation of States Act wherein it has been stated that in order to remove any difficulty, the President may by order do anything NOT inconsistent with the provisions of the Act which he considers are necessary for the removal of such difficulty.
10. The broader clause allows removal of difficulty even if the same modifies the parent
act. An example may be given of Art.s 372 and 392 of the Constitution which empowers the President to make adaptations and modifications in the existing law.
11. In Jalan Trading Company v. Mill Mazdoor Union, the Payment of Bonus Act under
S.37(1) empowered the Central Government to make any orders for removal of any difficulty not inconsistent with the purposes of the Act and S.37(2) make such orders
made by the Government binding. Clause 1 was regarded as being constitutional as it merely sought to advance the purposes of the act while Clause 2 completely excluded judicial review and thus was unconstitutional due to excessive delegation.
2.2.4 Power to impose tax 1. Under Art. 265 of the Constitution, no tax may be levied except when provided under statute. Thus, the power to impose tax essentially rests with the legislature. 2. However, the executive may be asked to specify the rates of tax available provided the maximum and minimum rates have been provided in the statute itself. 3. The executive may also exempt certain persons or commodities from such taxation.
4. In Orient Weaver Mills v. India, it was held that the provision empowering the
executive from exempting certain excisable goods from duties leviable on such goods does not amount to excessive delegation.
5. Refer to Gwalior Rayon Company case as well. (mentioned previously)
6. Power to impose taxes or duties may even be extended to municipal bodies taking into consideration the nature of the body to whom such authority is being delegated.
2.3 Consultation of affected interest and public participation in rule making
1. Public participation leads to democratization of the process of delegated legislation. It
helps in getting the views of affected parties so as to make a better piece of legislation. It also helps the persons affected as their grievances are heard and suggestions are taken into consideration. 2. It has been on the rise these days due to the involvement of several organisations which help in eliciting public opinion and bringing them before the government. 3. However, in order that such participation is allowed, a provision with respect to the same must be made in the parent act.
4. In Tulsipur Sugar Company v. Notified Area Committee, Tulsipur, the plaintiff
challenged an order made by the government which extended the limits of the municipal boundaries without making an prior publication thereby not giving anyone affected a reasonable opportunity to be heard. The court held that the statute did not provide for any prior publication of such rules and hence the government is under no obligation to do the same. Also, reasonable opportunity of being heard cannot be claimed as it is a legislative function whereby principles of natural justice need not be followed. 5. As per the General Clauses Act, for the purpose of the term ‘previous publication’ the draft of proposed rules must be published by the concerned authority in a manner it
deems fit. It must specify the time and date of such consideration and must keep in mind the objections/suggestions while finalising the rules. 6. One of the major issues concerned with such pre-publication of draft rules is that there is no time lag specified which is to be maintained between the publication of draft rules and final publication. This may allow the authorities to keep a very small time gap thereby making the entire process a sham. 7. Also publication is to be made by the rule making authority in the manner it deems fit and thus too much is dependent on executive discretion. 8. Further, publication of the rules in the gazette is conclusive proof of the fact that the rules have been duly made.
9. In Lachmi Narain, atleast a 3 months’ notice to give effect to a modification to a
schedule in the sales tax act was considered a matter of legislative policy and necessary for taking into consideration of affected interests.
10. In Raza Buland Sugar Company v. Rampur Municipality, the act stipulated that
publication be made in a newspaper published in Hindi but the municipality published it in an Urdu daily. The court held the same to be valid on the ground that there has been substantial compliance with the provisions of the statute as the Urdu daily had a much wider circulation in the area. 11. In England, there is no statutory mention of consultation of interests but never the less the same is followed as a general departmental practice. 12. In the US, pre-publication is made mandatory under S.553 of the Administrative Procedure Act unless the authority feels that the use of such procedure would be impracticable, unnecessary or contrary to public interest.
2.4 Publication of Delegated Legislation 1. In England, the Statutory Instruments Act requires the publication of delegated legislation.
2. In the US, only after the Panama case in 1935 was such need felt. Thus, the Federal
Register Act and the Administrative Procedure Act came into force. 3. In India, publication must be done if provided in the parent act. But, as a matter of practice rules are published in the Gazette of India. 4. In 1960, the Central Government commenced the publication of various orders under the title of ‘statutory rules and orders’.
5. In Harla v. Rajasthan, it was held that promulgation or publication of some sort is
required so that people understand what they are required to do or not do.
6. In Maharasthra v. George, it was held that where there is no statutory provision for
publication of rules, it must be published in such media as is generally adopted to notify all such persons concerned with such rules.
7. Publication in the gazette is advantageous as(a) It gives authenticity to the rules. (b) It creates certainty in the mind of the people that the rule exists. (c) The individual may have easy access to the rules. 8. Rules should be generally published in one customary channel and not in several channels depending on the will of the executive.
9. In Bangalore WCS Mills Company v. Bangalore Corporation, it was held that a
resolution not published under the act was still valid due to a provision in the act which stated that no action existed merely on the ground of any defect or irregularity in an act or proceeding which does not affect the merits of the case. 10. If there is due publication in the mode specified in the statute or in the usual mode, it amounts to sufficient notice being given. 11. Delegated legislation comes into force on the day it is published and not on the day it is made. 12. However, if the publication specifies that it shall come into effect on a date after such publication, the same shall be considered.
2.5 Legislative Control of delegated legislation 2.6 Laying procedures and their efficacy 1. As it is the legislature which delegates, it can exercise a better check. 2. The first step comes into the picture at the time when the rules are being made.
3. As per Rule 70 and Rule 65 of the rules of procedure of the Lok Sabha and the Rajya
Sabha respectively, every form of delegated legislation must first be introduced as a bill in Parliament. 4. Such bill must be accompanied by a memorandum stating the reason for delegation as well as the scope of such delegation. 5. This shall enable the legislature to discuss the bill at length and pose questions. 6. The second step comes into the picture after the rules have been made. This is with respect to the laying procedure. 7. A laying procedure is generally provided for in all common law countries. 8. It ensures that all such rules are placed before the house for discussion and informs the legislature as to what rules have been made as part of delegated legislation. 9. The laying procedure generally takes place under the parent statute. The rules, regulations, etc. are laid before the house for a period of 30 days and they can be annulled if they violate the provisions of the constitution or the parent statute.
2.7 Judicial Control of delegated legislation
1. Judicial control is generally exercised at the time of delegation and legislative power is
exercised after such delegation, with the help of committees, etc. 2. The courts may review delegated legislation on the grounds discussed as follows.
3. Constitutionality of the Parent Act- If the parent legislation is itself unconstitutional, the
delegated legislation made under it shall also be considered as being unconstitutional. This may happen if the act is contrary to fundamental rights or if it does not adhere to the centre-state distribution of powers or if it provides for excessive delegation, etc.
4. Constitutionality of Delegated Legislation- The constitutionality of a piece of delegated
legislation has been considered in the following cases(a) Dwarka Prasad Laxmi Narain v. State of UP- Rules were made under the Essential Supplies Act as per which in order to carry on coal business, a license is required to be got from the State Coal Controller who has the power to refuse or exempt any person from taking such license. This order was held to be arbitrary and violative of Art.s 14 and 19(1)(g). (b) Chintamani Rao v. State of Madhya Pradesh- The district collector was authorised to make rules regulating and prohibiting the manufacture of bidhis. This was struck down as being unreasonable and unconstitutional. (c) Himmat Lal Shah v. Commissioner of Police- The Commissioner of Police was given the authority to regulate processions and under Rule 7 of the rules, permission of the Commissioner must be sought before convening any meeting or assembly. It was held that this rule was unconstitutional as it was violative of the right to peaceful assembly. (d) Air India v. Nargesh Mirza- Air India Service Regulation which provided for termination of service of airhostesses on marriage or on pregnancy or on attainment of 35 years of age were held to be discriminatory under Art. 14. (e) Muthamma v. Union of India- Service rules made by the central government stating that any employee of the government was to seek permission from the government before getting married and that service of women employees shall be terminated on marriage was held to be discriminatory under Art.s 14 and 15(2). (f) Deepak Sibbal v. Punjab University- The Bar Council of India passed a rule stating that a student of law could not pursue another professional course. The same was struck down as being violative of Art. 14. (g) Parag Ice and Oil Mills v. Union of India- It was held that even if the parent act shall be exempted from judicial review if it is placed in the IXth schedule, the rules made under such act cannot be regarded as being immune from judicial review.
5. Rules violating parent act- This is called substantive ultra vires. It is when the delegated
legislation either goes beyond the purview of delegated legislation or when it is in conflict with the delegating statute.
6. In Lachmi Narain v. UP, under the Part C laws act, certain laws prevalent in other states
could be extended to union territories with such modifications as do not change the underlying policy of such law. In one such case, a schedule was amended and as per the requirements of the parent act, a 30 days’ notice was not provided before such amendment and thus it was held to be void.
7. In Bar Council of India v. Surjit Singh, it was seen that for the purpose of voting at an
election or being a member of the state bar council, qualifications are to be provided by rule made by the Bar Council of India. If such rule is made by the state bar council, it shall be invalid even if it is approved later by the Bar Council of India as an approval cannot validate it and making a rule is different from approving it.
8. In V.Sunder v. Bar Council of India, it was seen that before getting registered, a law
graduate is to practice under a senior advocate. It was held that the Bar Council can only specify standards and not impart training.
9. Retrospective effect of subordinate legislation- Delegated legislation cannot be made
applicable retrospectively unless expressly provided under the parent statute. In Union of India v. Krishnamurthy, it was held that amendment of a previous regulation so as to make it applicable retrospectively was invalid.
10. Unreasonableness- This may be seen in the case of Kruse v. Johnson, wherein the local
authority made rules prohibiting playing of music or singing in a public area 50 yards away from a dwelling house. The same was held as being unreasonable.
2.8 Sub-delegation of legislative powers 1. As a general rule, a delegate cannot further delegate. (Delegatus non potest delegare) 2. Sub-delegation is not allowed generally because it would then dilute the level of accountability and it can never be ascertained whether an official making a rule actually has the power to do so. 3. Sub-delegation may be allowed only when the parent statute expressly or impliedly authorises the delegate to sub-delegate. 4. Sub-delegation must not be made in a very wide language. Also, a sub-delegate cannot act beyond the power granted to him.
5. Sub-delegated legislation must also be published. This has been held in Narendra
Kumar v. Union of India and Maharashtra v. George. 6. The mode of publication is to be prescribed by the concerned authority and no other mode is to be followed. 7. Statutory Instruments Act in England does not require sub-delegated legislation to be published. 8. If the statute provides that only rules shall be laid before the legislature, the subdelegated rules might escape legislative scrutiny. However, this is also useful as it reduces the burden of the legislature.
Unit III- Administrative Adjudication 3.1 Reasons for the growth of administrative adjudication 1. The functions of the state have increased due to the coming in of the concept of a welfare state. This has led to several situations where there are disputes between citizens or between citizens and the state and thus a proper mechanism is required to settle such disputes. 2. The courts of today are already overburdened with cases.
3. Court procedure is very time consuming and dilatory, requiring several formalities to be
completed. Administrative adjudication does not follow such procedural requirements and is thus faster. 4. Following court procedure not only leads to overburdening of the judiciary but due to the slow and cumbersome process, administrative decisions and policies also remain blocked. 5. Further, due to the changes in society certain new socio-economic problems have come up which need to be decided not just based on law and facts but also on the basis of policy considerations.
6. Judges generally take a very rigid and technical approach applying only the law in its
literal sense to every problem. This is not a practical approach when it comes to solving new problems which the law may not always have a solution to. 7. Further, judges are generalists applying general principles of the law. Problems of the society require expertise and specialised knowledge which is possessed by the administrative authorities. 8. However, there are certain drawbacks of administrative adjudication as well. The judiciary is independent from the other governmental organs while the administrative tribunals cannot possibly remain independent. Also, the procedure followed by the judiciary such as cross examination of witnesses, giving reasoned decisions, etc. may not always be present in case of administrative adjudication.
3.2 Difference between quasi-judicial and administrative functions Administrative function It does not affect the rights of private parties. It does not follow any particular procedure unless provided by the parent statute. It may not be provided for under an statute as such. There may be delegation of such functions. Quasi-judicial function It affects the rights of private individuals and binds such individuals. It must necessarily follow the principles of natural justice as part of its procedure. It must necessarily involve a statutory exercise of power. There can be no delegation of such functions unless expressly provided by
3.3 Principles of Natural Justice or fairness 3.3.1 Nemo judex in re sua 1. This maxim literally means that no one should be a judge in his own cause. 2. It thus speaks about the rule against bias. If there is bias, the decision given will be unfair. 3. The rule of bias has 2 connotations- no person can be a judge in his own cause and justice must not only be done but also be seen to be done. 4. Bias is generally of three kinds- pecuniary bias, personal bias and subject matter or policy bias. 5. Incase of pecuniary bias, even the slightest of pecuniary interests may disqualify a person from acting as a judge.
6. In Annamalai v. Madras, it was held that a permit granted by the regional transport
authority to one of its members amounts to bias and thus such order needs to be quashed. 7. Personal bias may come up due to various reasons such as friendship, animosity, etc.
8. In Mineral Development Ltd. v. Bihar, it was seen that the revenue minister cancelled
the petitioner’s license for a lease on account of personal animosity. Thus, there existed a bias in this case. 9. In England, the rule which was previously followed was that of ‘likelihood of bias’. This means that it is not bias what the judiciary feels it is but it is what the reasonable man considers it to be bias. 10. This test was followed by the broader ‘reasonable suspicion’ test which states that even when a reasonable man would not construe something as being bias, if there is reasonable suspicion in the mind of the judiciary that there infact exists such bias, the person cannot be allowed to judge. This test is mainly the outcome of the fact that justice must not just be done but it must be seen to be done.
11. This maxim has been followed in India as well. Proof of bias is not required as the
same is very difficult to prove. It is sufficient if there is a reasonable suspicion of bias. This was also held in AK Kraipak v. Union of India. 12. There may also exist a subject matter or a policy bias which has often been termed as an official bias. This may be seen especially in case of administrative adjudication wherein the adjudicator being part of the administration might have a bias towards the policy.
13. However, it may be very difficult to exactly lay down as to what shall come under such
14. One of the factors is that there must be a direct and close connection between the adjudicating authority and the issue at hand.
15. In Parthasarathi v.Andhra Pradesh, it was held that an officer who has framed charges
cannot act as the inquiry officer in disciplinary proceedings against an officer.
16. In Hari v. Deputy Commissioner of Police, an externment order was passed by the
Deputy Commissioner of Police. This was challenged on the grounds of bias as it was the police department which had initiated the proceedings and also sat as judge in the case. However, the SC held that as the proceedings were initiated by an officer above the rank of inspector, the Commissioner could only pass such order and thus there was no bias. Hence, it may be seen that there will be no presumption of bias if the case involved 2 officers of the same department provided the posts are held by 2 different persons.
17. In Gullapalli Nageshwar Rao v. Andhra Pradesh State Road Transport Corporation, an
authority had the power to regulate transport activities in the state. The General Manager of this body made rules for nationalisation of transport in the Krishna district of Andhra Pradesh whereby private transport companies would require a license from the government. 88 objections were raised and were all heard by the Secretary of the Transport Department and later a report was given to the Chief Minister. It was held that the secretary here had departmental bias and thus could not have given a fair decision.
18. In Kameshwar Prasad v. State of Bihar, as well the court maintained the distinction
between the Chief Minister and the Secretary. It was stated that when the decision is taken by the Secretary, it amounts to bias as the secretary is part of the department. Also, it was stated that the principles of natural justice cannot be dragged to any sphere and there must be a limitation on the same.
19. In Maharashtra State Secondary and Higher Secondary Board v. Paritosh Kumar,
students got less marks in their HSC and thereby asked to take a look at their papers to ascertain the marking scheme. However, the parent statute provided only for a revaluation of marks and nothing else. The petitioner claimed that the Board’s decision to refuse to show papers was invalid as they would have a bias in favour of their teachers who corrected the papers. The SC held that there was no bias and that this rule must not be dragged unnecessarily without any limitations. It stated that as the Board merely followed express provisions of the statute, there was no bias as such. 20. Thus, a need was felt to put some limitations on such rule and hence the following exceptions have been provided for(a) Statutory provisions- If the parent statute provides expressly for a fair procedure, the same must be followed and it need not be substituted by the principles of natural justice. If however such procedure is ambiguous, the principles of natural justice might come into play. (b) Statutory limitations- This is when specific limitations are laid down by the statute itself to minimise bias in any form. (c) Contempt of Court- Incase of contempt of court , the rule cannot be used. A judge or judges of the court might initiate proceedings against the party even if they are the interested parties in such case.
(d) Waiver- Where the party knows about the existence of bias but does not object to the same, he waives his right.
3.3.2 Audi Alteram Partem 1. This literally means ‘hear both sides’. 2. It has been taken to mean a fair hearing and includes the right to be represented and right to defence oneself. 3. The first constituent of a fair hearing is the rule of notice. As per this rule, adequate notice must be served on a person so that he may be informed about the charges against him and he is able to prepare to defend himself. 4. A notice must always be adequate and must specify details with respect to charges, time of hearing, etc. 5. It must be properly served on an individual and must give him sufficient time to come up with his defence. 6. It must not simply embody the language of the statute but must lay down required details. 7. It must not be ambiguous as a vague notice is regarded as being no notice. 8. If the statute provides that notice is to be served on a person in a particular manner or mode, it must be served in such manner unless otherwise necessary. 9. If the statute specifies a particular form in which notice is to be served, it must be served in such form only. However, a minor irregularity will not be considered. 10. Whether a notice is adequate or not is to be decided by the court. The test is whether the irregularity in the notice is such that it adversely affects the rights of the person on whom it is served or not. 11. After the notice, there must be provision for a fair hearing. 12. This means that the person against whom charges are levelled must be allowed to present his case before the adjudicatory authority. 13. A personal or oral hearing is however not required. It is sufficient if the person gets to present a written memoranda alongwith an explanation to the court. 14. A fair hearing involves the following three essentials(a) The adjudicatory authority should receive all relevant material which the individual wishes to produce. (b) The authority must disclose to the individual as to what it wishes to use as evidence against him. (c) The individual must be given an opportunity to rebut such charges.
15. In Dhakeshwari Cotton Mills Ltd. v. CIT, the authorities refused to accept account
books by the appellant as part of evidence. This was held to be violative of the principles of natural justice. 16. However, the party cannot produce any amount of evidence unless such evidence is relevant. 17. Also, the adjudicating authority might issue summons for attendance of witnesses. But, they cannot compel such attendance unless the statute expressly provides for the same.
18. In Brajlal Manilal and Co. v. India, it was held that when the Central Government
considers a report of the state government as being evidence against the party concerned, the same must be disclosed to such party.
19. In Gurbachan Singh v.Bombay, the appellant was not allowed to cross examine
witnesses or have the witnesses examined before him. But, he was given an opportunity to be heard. This was held by the SC as being valid as at times witnesses might not like to depose in the presence of the party.
20. In Jammu and Kashmir v. Bakshi Ghulam Mohd., it was held that the defendant would
be only allowed to cross examine such witnesses as had deposed orally and not others who had merely given affidavits.
21. Another question comes up with respect to the right of counsel. In AK Roy v. Union of
India, it was held that incase of preventive detention proceedings, if the government or the detaining authority is represented through a legal practitioner or a legal adviser, the person detained shall also have a right to such practitioner or adviser. Herein, the court broadly interpreted the term ‘adviser’.
3.3.3 Reasoned Decision 1. In England, there is a general rule that reasoned decisions are not required while following principles of natural justice. However, the Franks Committee in its report stated that even administrative bodies must give reasons for their decisions. This got statutory recognition under S.12 of the Tribunals and Enquiries Act. 2. In the US, the Administrative Procedure Act also provides for the same. 3. A reasoned decision is required because of the following(a) To reduce arbitrariness as when the authorities would know that they would have to give reasons for their decision, they would be more careful while considering the case and not merely rely on policy as such. (b) To bring about justice as justice must not only be done but also must be seen to be done. (c) It gives a firm basis to the case and supports the decision when there is an appeal. Thus, there is scope for judicial review. (d) It acts as res judicata.
4. If a statute in India expressly provides that reasons must be given for any decision
taken, the adjudicating authority must necessarily adhere to the same. However, this may not always be the case. But, the courts have now substituted it with the principles of natural justice and constitutional provisions. 5. In the US, due to the existence of the due process doctrine, it is necessary to give reasons for every decision taken. It is a procedural requirement that the executive shall implement what is just and reasonable.
6. In India, after the case of Maneka Gandhi v. Union of India, the concept of reasoned
decision assumed greater importance. In this case, the term ‘procedure established by law’ in Art. 21 of the constitution was deemed to include the due process principle as it is followed in the US. Thus, greater emphasis was now laid on the principles of natural justice. (Read ADM Jabalpur case, Indira Gandhi v. Raj Narain and AK Gopalan’s case)
7. In Bhagat Raja v. Union of India, it was held that both the authority which hears the
case at the first instance as well as the appellate authority must furnish reasons for their decision.
8. In Anumati Sadukhan v. AK Chatterjee, it was held that an order empowering an
authority to cancel a licence without giving reasons is invalid. 9. Further, it is not sufficient for the authority to furnish such information which has already been written down in the statute as reasons. Adequacy of reasons however differs from case to case. 10. Also, the adjudicatory authority must necessarily maintain a record of the hearing along with the reasons for future reference.
3.3.4 Institutional Decision 1. Institutional decision is one which is taken by the designated official with the assistance of his subordinates in the department.
2. It is called institutional due to it being taken by the department as a whole.
3. There are however two main problems associated with it namely, the authorship of the decision is unknown and secondly it leads to division in the decision making process.
4. In Local Government Board v. Alrdige, the borough council declared a house unfit for
human habitation and asked for its closure. The landlord approached the Local Government Board to conduct investigations and help him. The Board asked an inspector to carry out the task who in his final report stated that the house was infact unfit for habitation. This was challenged by the landlord who stated that he had not been given a fair hearing as he was not allowed to be heard by the officer who had actually examined the case. The court held otherwise stating it to an institutional decision. Herein it is not necessary to identify the officer who had conducted the enquiry as the decision is deemed to be that of the department. Further, in this case it is not necessary that the official conducting enquiry must hear the case as well as is seen in case of judicial decisions.
5. Another point of difference between institutional decision and a judicial decision is that
in an institutional decision not all evidence against the person may be provided to him. 6. Institutional decision is different from the decision of a single official or administrative tribunal as it is the decision of the department. 7. In the US, the Administrative Procedure Act has provisions for regulation of institutional decisions. In UK as well, it is an accepted fact that when a decision is to be taken by a minister it means that such decision is to be taken by the department as a whole.
8. In Union of India v. Shripati Rajan, the respondent was dismissed from service by the
collector of customs. As per the law, he appealed to the President but his appeal was dismissed by the Finance Minister without consideration by the President. The SC held such decision as being valid as the Finance Minister disposed off the case in accordance with the rules of business and the President is a mere constitutional head. It was thus an institutional decision.
9. In Mahavir Prasad Santosh Kumar v. State of UP, it was held that an executive
authority can exercise power through their subordinates. 10. Generally speaking, the report made by the hearing officer which is submitted before the authority which sits in judgment is not necessary unless it prejudices the case to a great extent. 3.4 Administrative Appeal 3.5 High Court’s superintendence over Tribunals
1. According to Art. 227(1) of the Constitution, the High Court has the right of
superintendence over tribunals within its territorial jurisdiction except for those established under the armed forces.
2. This power is wider than Art. 226 as the HC not only exercises administrative but
judicial control as well on the tribunal. Under Art. 226, a writ of certiorari may be issued quashing the decision of a tribunal. However, under Art. 227 the same may be done with something else added to it.
3. Under Art. 226, the tribunal is a necessary party but this is not the case under Art. 227.
The tribunal is a necessary party in case of a writ petition as the court requires a record of the proceedings of the tribunal to decide on the matter.
4. The SC has stated that the decision of the HC under Art. 227 is binding on the tribunal. 5. The grounds for instituting a suit under both Art.s 226 and 227 are the same such as
arbitrary exercise of power, abdication of powers, exceeding its jurisdiction, etc.
6. However, Art. 227 has a narrower approach as compared to Art. 226 in one matter. Art.
227 can be used to superintend only courts and tribunals while Art. 226 applies to administrative bodies as well.
7. Art. 227 empowers the court to intervene suo moto while in case of Art. 226, a petition
is required to be filed first.
8. In Gujarat v. Vakhatsinghji, it was held that the HC may exercise its jurisdiction under
Art. 227 even when the decision of the tribunal is deemed to be final and conclusive.
9. In L.Chandrakumar’s case and Sampath Kumar’s case, the same aspect as that in the
above case was discussed. The rule as it stands now is that the HC’s jurisdiction cannot be excluded in any case and the HC can exercise its powers under Art. 227 even when the decision of the tribunal is final.
Unit IV- Administrative Discretion 4.1 Administrative Powers 4.2 Formulation and Execution of Policy
1. Administrative Powers have increased particularly after the coming in of the welfare
state. 2. Functions dischargeable by the executive are either ministerial or discretionary.
3. Ministerial functions are those which are prescribed in clear and definite terms under
the parent statute and which the delegate must adhere to and wherein he has no option to exercise his discretion.
4. In Hriday Narain v. ITO, it was seen that under S.35 of the Income Tax Act, the Income
Tax Officer was to rectify any mistakes in assessment and he did not do the same even after the same was brought to his notice. It was held that when a statute lays down that a particular procedure shall be followed by an authority in a particular set of circumstances. It is not what he ‘may do’ but what he ‘shall do’. 5. Discretionary powers on the other hand are wherein the administrative authorities are given considerable power to choose between different alternatives by applying their subjective satisfaction. 6. Examples might be given of investigation of facts, making of choices as in the case of the Land Acquisition Act, etc. 7. Thus, administrative discretion involves the taking of a decision by the administration not just on the basis of evidence but also in accordance with policy and expediency in exercise of their discretionary powers. 8. An authority conferred with such powers must exercise the same taking into consideration the facts and circumstances of each case and by applying their mind to every case. 9. This was severely criticised by AV Dicey who said that such powers would lead to arbitrariness and could be used to override the law, which is quite the case today. An example may be given of S.10 of the Industrial Disputes Act wherein the government has discretionary powers to decide as to whether a tribunal would be constituted or not.
4.3 Need for Administrative Discretion
1. The primary reason why administrative discretion comes into play is because of the need to distinguish each case from the other and avoid applicability of general rules in all cases. 2. Some of the reasons why there is a need to exercise discretion are as follows(a) Recent problems are more complex and thus require a different degree of expertise which may not necessarily be always taken care of with the help of legislation. (b) The coming in of new types of problems which requires a new approach to be taken. Lack of experience to tackle such problems warrants discarding of use of general rules. (c) It is not always possible to forsee each and every problem. However, there must always be some solution available when a problem comes up inspite of there being no legislation to control the same. (d) Also every case differs from the other and the use of discretion makes it possible to go in for a case to case application of general rules.
3. Never the less, there are certain disadvantages of this system. The same may be listed as follows(a) The case to case approach may take an individual by surprise who will not know what to expect considering nothing is laid down as to what should or should not be done. (b) It may lead to discrimination against many individuals. (c) It is a time consuming process and involves multiplicity of cases. (d) It might lead to arbitrariness on the part of the executive.
4.4 Limitations on exercise of discretion Judicial Control on exercise of discretion-
1. Judicial control on administrative discretion may be exercised at 2 levels, namely(a) At the time the parent statute is made by the legislature, the judiciary may prevent excessive delegation by challenging the statute as violating the provisions of the constitution especially Part III. (b) It may hold some sort of a post decisional review to look into whether the administrative authorities have exercised their discretion within the ambit of the parent statute and within constitutional limits.
2. However, the basic principle of administrative discretion is that administrative discretion cannot be substituted by judicial discretion. This means that the judiciary cannot go into the merits of the case and look into whether the opinion of the authority was right or wrong.
3. In AK Gopalan v. State of Madras, it was held that decision as to whether a person shall
be detained or not under the Preventive Detention Act lies solely within the power of the executive and the judiciary cannot substitute such decision with its own decision.
4. Another important case is that of Arora v. State of UP, wherein the State Government
acquired a piece of land under the Land Acquisition Act for manufacturing a factory for public purpose. Arora contended that even he required the land to manufacture a factory for public purpose. It was thus a case of public purpose v. public purpose. However, the court held that if the government has satisfied the requirements of public purpose under the act, they have the discretion to acquire the land.
4.4.1 Malafide exercise of discretion 1. This is a ground on which administrative discretion may be challenged. 2. It means corrupt or ill motive or bad intention, etc. 3. It primarily results out of animosity, personal vengeance, spite, involvement of personal benefit, etc. 4. Malafide can be of 2 types- malafide in fact and malafide in law. 5. Malafide in fact is when there is some sort of personal animosity of the authorities against a particular person. It thus involves the facts and circumstances of the case as here the ill motive is against a particular individual. 6. Herein, the burden of proof lies on the person alleging malafide in fact as presumption is in favour of the executive. 7. Malafide in law is when the law is made such that it involves some sort of corrupt intention on the part of the executive in order to benefit itself or otherwise.
8. In Pratap Singh v. State of Punjab, a civil surgeon was suspended on the grounds of
taking bribe. It was later found out that there was malafide involved in taking such decision as the Chief Minister had some personal animosity with the surgeon.
9. In Rowjee v. Andhra Pradesh, the state transport corporation had framed a scheme for
nationalisation of certain transport routes on the directions of the Chief Minister. It was later discovered that such decision was taken in order to nationalise only such routes which were used by private transport operators who were the Chief Minister’s political opponents. Thus, malafide was involved.
10. In Shivaji Rao Patil v. Mahesh Madhav, it was alleged that there had been tampering of
mark sheets of the Chief Minister’s daughter and the same was held invalid due to malafide. 4.4.3 Irrelevant Consideration
1. This means that the executive has exercised its powers taking into consideration such factors as are not relevant to the purposes of the statute. 2. It may distinguished from malafide exercise of power in the sense that it does not involve any ill will or corrupt motive but an honest mistake on the part of the administration.
3. In Ram Manohar Lohia v. State of Bihar, a person was detained under the Defence of
India rules in order to prevent him from acting in a manner prejudicial to maintenance of law and order. However, the rules provided for detention only in case of subversion of public order. This was distinguished from the maintenance of law and order and the detention order was held invalid due to irrelevant considerations.
4. In Hukum Chand v. Union of India, the divisional engineer was given the power to
disconnect telephone lines on the occurrence of any public emergency. In one such case, he disconnected the telephone lines as they were being used for illegal purposes. This action was held to be invalid due to irrelevant considerations.
5. In Madhya Pradesh v. Ram Shankar Raghuvansh, a teacher was to be employed in
government service after checking his antecedents and medical fitness. One such teacher was refused employment due to his political views (he was involved in activities of the RSS and Jan Sangh). This was held to be invalid on the grounds of irrelevant considerations.
6. In Barium Chemicals Ltd. v. Company Law Board, the Company Law Board ordered
an investigation into the activities of a company due to delay in carrying out a particular project and financial losses. This was held to be invalid as the Board could investigate only in case of managerial fraud.
Other factors based on which administrative discretion may be challenged and judicial review be conducted-
I Non- Application of Mind 1. When the executive is empowered to exercise its discretion, it must do so taking into consideration the facts and circumstances of each case. 2. When it does not take into consideration a vital and relevant fact, it amounts to nonapplication of mind. 3. Non-application of mind may take place under any of the following categories-
(a) Condition Precedenti) Where law requires that power must be exercised only after satisfaction of a condition, such power will be valid only after fulfilment of the condition.
ii) In Orient Paper Mills v. Union of India, it was held that when the law stipulates
that action be initiated only after a definite matter of public importance comes up, such requirement must be satisfied. (b) Acting Mechanicallyi) This means that an authority cannot use its discretion without taking into consideration the facts and circumstances of every case.
ii) In Assistant Collector of Estate Duty v. Prayag Das Agarwal, it was held that
when the government has the discretion to accept or reject certain property offered to it, it cannot merely reject such property without even considering such request. (c) Abdication of functionsi) Wherein the authority which is supposed to exercise its discretion does not do the same and merely delegates authority to its subordinate, such orders as may be made by the subordinate are invalid.
ii) In Manikchand v. State, it was seen that wherein nationalisation of certain bus
routes was to be done based on the scheme of the road transport corporation and the same was merely delegated to the manager of the corporation without any consideration by the corporation, such order of the manager was invalid. (d) Acting under dictationi) Orders made by an authority are invalid when he does not exercise his discretion but merely works under the dictation of his superior.
ii) In Punjab v. Suraj Prakash, it was held that the East Punjab Holdings Act does
not entail that the consolidation officer shall follow instructions of the state government and hence any such instructions of the state government shall be deemed to be invalid and any order passed in consonance with such instructions is also invalid. (e) Imposing fetters on the exercise of discretioni) This means that where the executive is required to exercise its discretion as per certain standards laid down in the parent statute on a case to case basis, the same authority cannot impose fetters on such discretionary power by merely framing general rules for exercise of power.
ii) In Gell v. Teja Noora, the Commissioner of Police was required to grant or
reject licenses for land conveyance taking into consideration factors like public benefit, etc. Instead of considering each case as per its merits, he passed a general order laying down standards which were to be followed while granting or rejecting such licenses. This order was held to be invalid. II Non-compliance with procedural requirements
1. An exercise of discretionary power may be considered bad due to non-compliance with
procedural requirements provided such procedure is considered mandatory by the judiciary.
2. In Narayana v. Kerala, it was held that wherein revocation of a license to supply
electricity is to be revoked provided there has been consultation with the state electricity board, the same is valid only after such consultation.
3. In Naraindas v. Madhya Pradesh, it was held that wherein text books where to be
prescribed for schools only after consultation with the Board of Higher Education, such requirement must be satisfied.
4. In Vimal Chand v. Pradhan, it was held that no person can be detained under the
Preventive Detention Act without being given a chance to represent himself. This is a procedural requirement and must necessarily be complied with.
4.4.2 Constitutional imperatives and use of discretionary authority 4.4.4 Non-exercise of discretionary power Unit V- Remedies against Administration 5.1 Writs under Art.s 32 and 226 of the Constitution of India- Habeas Corpus, Certiorari, Prohibition, Mandamus and Quo Warranto
1. Art. 32(1) of the Constitution guarantees the right to move the Supreme Court for
violation of fundamental rights while Art. 32(2) empowers the SC to issue writs in the nature of habeas corpus, certiorari, prohibition, mandamus and quo warranto for the same.
2. Art. 226 on the other hand empowers the HC s notwithstanding anything contained in
Art. 32 to issue writs or orders within such territories wherein it exercises jurisdiction to individuals or authorities including the government for the enforcement of fundamental rights or any other purpose. 3. The concept of writ jurisdiction has been borrowed from England however the SC has declared that it shall only follow the British system in its broad sense and avoid any technicalities as may be there. Nevertheless the system of judicial review in both India and England is more or less the same. 4. The power of the courts under such jurisdiction is very broad. They may not only issue writs but may also give directions or orders or any other appropriate remedy in order to provide relief. However, the court will not reject a case merely on the ground that the appropriate writ has not been prayed for.
5. Art. 32 being a fundamental right in itself cannot be whittled down by legislation and
does not get restricted by administrative order even when such order is final. 6. It may be filed directly with the SC and the person need not go through the entire procedure of approaching the lower courts, etc.
7. In AK Gopalan v. Madras, the SC struck down S.14 of the preventive detention act
which prohibited the person detained from disclosing grounds for detention as provided to him by the detaining authorities before the court. This did not really
deprive the detenu the right to move the court under Art. 32 for issuing a writ of habeas corpus but it rendered the role of the court somewhat illusory as the court could not examine the grounds of detention and thus could not determine as to there was any actual violation of fundamental rights or not.
8. In Prem Chand v. Excise Commissioner, it was held that a security was not required to
be given before filing a writ petition as it posed a hindrance to the court’s function of determining whether there is a violation of fundamental rights or not.
9. However, Art. 32 empowers the court to only go into questions concerning violation of
fundamental rights. Where there is no violation of fundamental rights, Art. 32 cannot be invoked. Similarly in Ramjilal v. ITO, it was held that illegal levying of tax does not violate any fundamental right but is merely contradictory to the provisions of Art. 265.
10. In Ujjam Bai v. Uttar Pradesh, it was held that a mere error of law committed by a
quasi judicial body cannot be challenged under Art. 32. The court can strike down an order passed by such body only when such power is exercised without jurisdiction or without conforming to statutory provisions or without following the principles of natural justice, etc.
11. Executive orders are also open to be challenged under Art. 32 and it is immaterial
whether there is an error of law or error of jurisdiction involved. 12. The error of law here refers to a ‘patent error of law’.
13. Art. 226 is broader in its scope than Art. 32. It allows for moving the HC not just for
the protection of fundamental rights but also for the protection of legal rights provided that the error of law complained of is a patent error of law.
14. However, the writ jurisdiction of both the SC as well as the HC is independent of the
other. A person may go straight to the SC to enforce his fundamental rights rather than going to the HC. However, he may also go to the HC first and if his petition is dismissed, go to the SC on appeal. However, in such case he cannot invoke Art. 32 again due to res judicata.
15. Art. 226 being a constitutional provision, its ambit cannot be curtailed by way of
legislation or administrative order even when such order is regarded as being final. This is different from the situation in England wherein the Parliament may curtail the writ jurisdiction of the courts.
16. Never the less these constitutional remedies may be restricted by way of other
constitutional provisions. However, the courts have a general tendency to strictly construe such exclusionary provisions and uphold its power of judicial review inspite of such exclusion. In India v. JP Mitter, it was seen that Art. 217(3) states that the decision of the President with respect to age of the judge shall be final. In this case, the SC held that such orders made could be struck down if decisions are taken on the basis of collateral considerations or without following the principles of natural justice or are coloured by executive advice or representation or are based on no evidence.
17. In Sangram Singh v. Election Commission, it was held that although Art. 329 bars the
jurisdiction of courts with respect to election disputes, it does not bar the courts from dealing with such a dispute once the petition was disposed off by an election tribunal.
18. In Madhav Rao Scindia v. India, it was held that although Art. 363 bars interference of
the courts in matters concerning treaties or agreements between the government of India and rulers of Indian states before commencement of the constitution, it does not bar the court to review an order of the President derecognising such rulers under Art. 32.
19. Art. 226 empowers the HC to exercise jurisdiction within its territorial limits.
However, if a part of such dispute is outside its territorial jurisdiction, it may still exercise power under this provision. 20. The five writs may be discussed as follows(a) Habeas Corpusi) It literally means to have the body and is issued primarily to secure the release of a person who has been unlawfully detained or without any jurisdiction.
ii) However, issuance of such a writ largely depends on the statute or other
circumstances under which detention has taken place. For example, habeas corpus cannot be granted when a person has been detained by a competent court even when such detention may appear to be wholly illegal.
iii) The scope of this writ has been extended by the court to include inhuman and
cruel treatment to prisoners as well. (Sunil Batra v. Delhi Administration) iv) The aggrieved person or anyone on his behalf might approach the court. When a prima facie case has been established for the issuance of the writ, the court shall ask the detaining authority by issuing a rule nisi, to show cause why the writ should not be issued. If the court is then convinced that such cause shown is not sufficient, it shall issue the writ.
v) The detaining authority has to meet the grounds on which detention has been
challenged by the detenu as well as prove that detention was under the procedure established by law as provided in Art. 21.
vi) In Kanu Sanyal v. District Magistrate(I), the court held that it is not necessary
to produce a person during writ proceedings as the objective of the writ is to secure freedom for the detenu as soon as possible and not production before the court. This rule may however be changed by the court in compelling circumstances. (b) Quo Warrantoi) It literally means ‘what is your authority’. ii) It is generally used by the courts asking the holder of a public office (not private office) to show as to why he is entitled to such office. It acts as a judicial control over administrative action with respect to making appointments as well as protects individual rights from being violated by a person who has no authority to hold such office. iii) The writ is with respect to a public office of substantive character. iv) This writ will not be issued if there is an alternate remedy available.
v) In PL Lakhanpal v. AN Ray, it was seen that AN Ray who was appointed the
CJI by superseding 3 other judges was challenged as the seniority principle was not applied. The Delhi HC rejected such a petition stating that the writ jurisdiction of the court involves technicalities and is based on the discretion of the court whether or not to accept such petition. Further, it was also stated that if an irregularity which was challenged was cured during the pendency of proceedings, the writ need not be issued. In this case after the appointment of Justice Ray as CJI, he automatically became the senior most judge thereafter and thus there was no irregularity. Thirdly, the case was challenged on the grounds of malafide on the part of the appointing authority but the court stated that a writ of quo warranto can be issued against the holder of the office and not the appointing authority.
vi) In another important judgment of Gokaraju Rangaraju v. Andhra Pradesh, it was
held that after quashing the appointment of a public officer, such acts of the officer which were for the benefit of third persons or the public and not for personal benefit shall remain valid as if they were passed by officers entitled to such office. (c) Mandamusi) It is a command issued by the court directing an authority to do its public duty as laid down by the law. ii) It may be issued to any authority performing any kind of function. iii) Mandamus is used to enforce a duty which is obligatory under the law and is not merely optional or discretionary. iv) A mandamus may also be issued to compel an authority to carry out the decision of a tribunal. v) A mandamus may also be issued in case of a non-statutory duty. vi) However, generally the courts do not grant such a writ in cases where there is a general duty to be performed such as improving railway services, etc. vii) The writ cannot be used incase of civil liability arising under torts or contracts.
viii) In Jivan Mal Kochar v. India, it was held that the petitioner could not claim
damages under Art. 32 for the humiliation, indignity and loss suffered by him due to governmental action. ix) In order to issue a writ of mandamus, it must first be shown by the petitioner that he has a right to compel the authority to act in a particular manner. x) The person asking for issuing the writ must first demand justice from the concerned authority (and no other authority) and only on rejection of the same can he approach the court. (d) Certiorari and Prohibition i) These writs are mainly used to prevent excesses on the part of public authorities.
ii) Earlier, it could be used only against judicial or quasi-judicial bodies but now it has been extended to all public authorities exercising any kind of public function. iii) Both these writs are issued for the same purpose and in similar circumstances. The only difference is with respect to the stage at which they are used. A writ of certiorari is used to quash an order which has already been passed as in when a decision has already been rendered. While a writ of prohibition is used when proceedings are going on so as to stall such proceedings. iv) The various grounds based on which such writs may be issued are when there exists an error apparent on the face of the record, incase of any jurisdictional error, an order made under an invalid law, contravention of the principles of natural justice, an order made based on no evidence, etc. v) However, a writ of certiorari cannot be used to disguise an appeal in order to discuss the merits of a case already dismissed by a lower authority. Its main aim is to exercise supervision.
5.2 Procedural Aspects-Locus Standi, Laches, Res Judicata, Exhaustion of alternate remedies Locus Standi1. The provisions of Art.s 32 and 226 do not provide for any rule on standing as such.
This has largely been left on judicial discretion. 2. However, the general rule is that only an aggrieved person may move the court to enforce his rights under the abovementioned provisions. This is primarily because remedies are a correlative of rights and only those persons whose rights are infringed might invoke the court’s jurisdiction to get the appropriate remedy. 3. This implies 3 things, namely(a) Only an aggrieved person may invoke the court’s jurisdiction. (b) If such person belongs to a group or class of persons aggrieved by administrative action, in order to file a suit, he must show that he has suffered special injury and thus needs to be remedied. (c) If the person challenging is a total stranger to the issue, the court would not normally allow him to continue. 4. However, if the above rule were to be followed in a country like India where people may not come up to file a case or would due to poverty, ignorance, illiteracy, etc. not be in a position to file a case in court, administrative action could simply go unchallenged.
5. Therefore, the courts have tried to provide a somewhat balance by liberally interpreting the term ‘aggrieved person’ and in certain cases allowing strangers to a cause to file a suit. However, this largely depends on the discretion of the court. 6. However there is a distinction between standing and justiciability. A person may have standing to move the court for enforcement of his rights but at the same time his claim may not be justiciable or enforceable.
7. Inspite of modifications in the rule of standing, the general rule still stands. This has
been stated in Bandhua Mukti Morcha v. India. Exceptions may be made to the rule only when the courts exercise their discretion to do so and when certain conditions are satisfied. 8. A person has standing when his personal or individual right has been infringed. He also has a standing when another person’s rights from whom he derives a benefit or otherwise have been affected. 9. Also, a person may have standing even when a personal or constitutional right is not violated but the court is satisfied that he has suffered a genuine grievance due to action or inaction on the part of an authority.
10. In Gurunanak Society v. State, it was held that even an unauthorised owner of land
may move the court incase he has been removed from such land in an unauthorised manner as in Indian law even an unauthorised owner has to be evicted from land by a process authorised by law.
11. In Peermohammed v. DFO Tenmala, it was held that a person had no standing to
challenge illegal activity or construction going on in an adjoining land unless there is nuisance or trespass or the same affects his easement rights.
12. In Mallappa Murigeppa Sajjan v. Karnataka, it was held that the members of a tribunal
had the required standing to challenge suspension of the working of such tribunal as being legally appointed members of the tribunal, their rights were adversely affected by the decision.
13. In MS Jain v. Haryana, it was held that a person whose name was recommended for
appointment could not challenge a decision not to appoint him as he has no legal right to get appointed.
14. In SP Subba Rao v. PP Veeraraghvaiah, it was seen that under statute there has to be a
minimum distance between a permanent cinema and a temporary cinema has to be that of 1000m but the government could grant an exemption to the temporary cinema owner. The court held that the permanent cinema owner had the right to challenge such an exemption in order to protect his interests. 15. When a person does not at all participate in the proceedings, he has no standing to challenge such proceedings later.
16. In Vijay Mehra v. Rajasthan, it was held that a member of a political party cannot
compel the government to constitute a commission for enquiring into certain floods as it was a matter of executive discretion and the petitioner was not affected by such floods.
17. In Karpoori Thakur v. Abdul Ghafoor, the court held that a member of Parliament
cannot ask for dissolution of the ministry on the ground of loss of confidence in the house as the ministry is collectively responsible to the entire Parliament and not just one legislator. Thus, only one of such members of Parliament does not have a standing.
18. A different view was taken by the court in Ramana Dayaram Shetty v. International
Airport Authority wherein it stated that while conferring a benefit, the executive cannot act arbitrarily, illegally or in a discriminatory manner. Thus, the view that the government has sole discretion in granting a benefit is no longer tenable. 19. If a person suffers an injury by virtue of being a member of an indiscriminate class, he may file a suit only when he has suffered some sort of special injury which is over and above the injury suffered by the others. This is to reduce the number of cases that might be brought before the courts in such situations.
20. In Milap Ram v. Jammu and Kashmir, it was held that any member of a state might file
a petition challenging the grant of permanent residence of the state to a particular person as the right of every such person is affected by such grant. 21. If a person’s legal right has been substantially affected, he will have a standing. What shall be considered as being substantial or remote will depend on the facts and circumstances of every case.
22. A determinate class of persons organised into a group or association also have
standing. In Warrangal Chamber of Commerce v. Director of Marketing, it was held that a registered body corporate had the standing to file a case on behalf of its members.
23. In Fertilizer Corporation Kamgar Union v. India, it was held that members of a trade
union have standing to file a petition.
24. Decisions of a municipality may also be challenged. In Ratlam municipality v.
Vardichand, it was held that the residents of the locality had the locus standi to move the court asking for the municipality to construct drain pipes.
25. Even members of the municipality have the required standing to challenge a
governmental order when the rights of the municipality have been seriously affected by such governmental action. (SL Kapoor v. Jagmohan) 26. There has however been a recent development in the form of Public Interest Litigation which has led to a compromise in the general rule of locus standi. 27. By this rule, an individual or group of individuals might institute a case in court even if they have no locus standi as per the general rule. 28. Such an exception is generally seen in 2 situations, namely(a) When an individual or group of individuals institutes a case wherein their rights are only remotely affected or when their rights are affected equally being part of the group due to administrative action. (b) When any public spirited individual or body devoted to such cause brings a cause of action before the court challenging administrative action which is prejudicial to the interests of the general public or a section thereof.
29. This rule is generally allowed because at times the persons whose rights are affected are not in a position to defend themselves due to illiteracy, ignorance, poverty, etc. or simply when public interest at large is at stake. 30. However, such person or group of persons filing the case must have sufficient interest in the case and must act bonafidely without any considerations such as personal benefit, etc. Also, the court will not allow such petitions where the affected party itself is disinterested. 31. Also, the courts consider only legal and justiciable issues when it comes to PIL s and granting such PIL s is upto the court’s discretion.
32. A landmark case in this regard is that of SP Gupta v. India, wherein it was held that
lawyers have a locus standi to bring a case before the court which involved appointment of additional judges in courts and frequent transfers of HC judges as such lawyers are interested in the independence of the judiciary.
33. In Babubhai Jasbhai Patel v. India, it was seen that 2 opposition members of the
Gujarat legislature brought a case before the HC asking for reconsideration of payment of royalty by ONGC to the state government in order to assert the claim of the state government vis-a-vis the Union Government. This was rejected by the HC on the ground that the matter involved here was that of high policy and individuals cannot be allowed to take over governmental function. Further, the matter involved a question under Art. 131 (Centre-state dispute) which could only be resolved by the SC.
34. In People’s Union for Democratic Rights v. India, it was held that the union had the
standing to file a case on behalf of construction workers whose rights were being infringed by contractors who had hired them for such worker by contravening several laws.
35. A similar case is that of Sanjit Roy v. Rajasthan, wherein it was held that the petitioner
who was a member of a registered social group could file a case bringing to light the gross violations being committed by the state government in contravention of the minimum wages act with respect to workers engaged in famine work.
36. Again in Bandhua Mukti Morcha v. India, the morcha, an organisation dedicated to the
cause of bonded labourers was decided as having standing to challenge inaction by the government in implementing the provisions of the Bonded Labour System Act.
37. In DS Nakara v. India, it was held that a registered society which was a non-political,
non-profit and voluntary organisation had standing to bring a case with respect to problems of old pensioners.
38. With respect to writs of habeas corpus and quo warranto, the rule of aggrieved person
is not applicable. Laches1. This principle states that if a petitioner files his case after undue delay, his petition shall be rejected on the ground of latches. This rule is applicable even in case of violation of fundamental rights.
2. In RS Makashi v. IM Menon, the petition was filed 8 years after the alleged
infringement of fundamental rights under Art.s 14 and 16 by the executive and the same was rejected on the ground of laches.
3. However, there is no hard and fast rule prescribed under Art.s 32 or 226 as to how long
would be considered enough to reject the petition on the ground of laches. This matter is infact left to the discretion of the court as could be seen in RS Deodhar v. Maharashtra, wherein a case filed for enforcement of rights even after a period of 10 years was held as being valid. However, in certain case even a gap of 6 months could attract dismissal on the ground of laches.
4. In Nirmal Khosla v. India, it was held that if the government itself is responsible for
delay in disposal of the case of the petitioner and the same resulted in inordinate delay in filing of the petition, the case will not be dismissed as it would then act to the detriment of the petitioner who is not at fault in such a case.
5. Sometimes when the government is one of the parties, a delay may be taken into
consideration by the court owing to the involvement of public interest in such a situation. This was also held in UP v. Bahadur Singh.
6. The doctrine of laches is generally brought into the picture when a delay in filing the
case might adversely affect the interests of the other party or third parties. Incase there exists no such situation, generally the provisions of the Limitation Act are taken into consideration. This has been seen in the case of Madhya Pradesh v. Bhailal Bhai.
7. In the case of Tilokchand, the court held that the question of laches is one left to the
discretion of the court. Also, it is upto the court’s discretion whether to follow the provisions of the limitation act or not.
Res Judicata1. The principle of res judicata provides that when courts of competent jurisdiction give binding decisions, the petition cannot be moved in the same court on the same cause of action. 2. This is a principle of private law and is applicable to writ proceedings as well.
3. Similarly, in Devilal v. ITO, it was held that when a tax assessment order has been
unsuccessfully challenged in the court, it cannot be challenged again through another writ petition before the same court. 4. The reason for this principle is that the party will go on filing petitions thereby causing harassment to the other party.
5. In Lallubhai Jogibhai v. India, it was held that a habeas corpus petition could be filed
again if the grounds for granting such writ are different. However, again in Kavita v. Maharashtra, it was held otherwise. Never the less the general rule followed is that of the former case. 6. Also, another rule emerges with respect to withdrawal of cases. However, it has been observed that incase a case is withdrawn, there is no res judicata.
7. Also, where a writ petition is dismissed without speaking order, there is no res judicata
and there may be subsequent petitions filed. This is because on the absence of grounds it is not possible to understand as to why such petition was dismissed. 8. Further, the HC cannot review its own decision based on its merits provided no new evidence or matter is discovered.
9. If the HC dismisses a case on the basis of laches or availability of alternate remedies or
without passing a speaking order, there is no res judicata and the case may be filed under Art. 32 before the SC.
10. The principle of res judicata has been made applicable between Art.s 32 and 226 due to
the reason that both the SC and HC have more or less similar writ jurisdictions. 11. This may be criticised on the ground that res judicata applies between courts of the same jurisdiction. Never the less the SC has held that the SC and the HC are on the same footing with respect to writ jurisdiction.
12. After dismissing a special leave petition, the SC will not accept a writ petition under
Art. 32 due to res judicata. However, exception may be made when the life of a person is at stake.
13. When a special leave petition is dismissed by the SC, the case may not be entertained
under Art. 226 before the HC except when the former dismisses the case without giving speaking order. However, if a special leave petition is withdrawn, remedy under Art. 226 would still be available. 14. Res judicata operates even when the case is dismissed under a writ petition and is again filed under a regular petition.
Exhaustion of Alternate Remedies1. Generally speaking, the court would decline to accept a case if there exists an alternate
and more efficacious remedy. However, if there is a violation of fundamental rights and Art. 32 or 226 is invoked, the court cannot reject the case on such ground. 2. The petitioner need not prove that there is no other adequate remedy or that he has exhausted all possible alternate remedies in such a case.
3. Thus, necessarily under Art. 32 this rule is to be followed. However, under Art. 226
when the case does not involve a fundamental right, the HC might ask the petitioner to first exhaust all possible alternate remedies as was seen in the case of Titaghur Paper Mills Co. Ltd. v. Orissa. 4. However, whether or not to resort to the same is a matter of discretion available to the HC. For example if a person has lost a right to exercise a particular remedy due to no fault of his own, the HC would not ask him to first exhaust alternative remedies. 5. Further, an alternate remedy need not be resorted to where it leads to inordinate delays or is illusory in nature.
6. A HC could issue a writ of certiorari even without exhaustion of alternate remedy when there is a violation of the principles of natural justice.
5.3 Exclusion of Judicial Review-Exclusionary clauses 5.4 Suits against administration 5.5 Notice under S.80, Civil Procedure Code, 1908 1. As per S.80 of the CPC, no suit can be instituted against the government or any other government official for acts done within his official capacity within 2 months from the date a notice is tendered to him with respect to the same. 2. The following requirements of this section must be necessarily satisfied, namely(a) There must be identity of the person who issues the notice with the person who institutes the suit. (b) The notice must clearly mention charges, name and complete description of the place of residence of the plaintiff. (c) It must also mention reliefs claimed by the plaintiff. 3. It can be with respect to any suit such as those with respect to injunctions, contracts, etc. 4. The section provides for no exceptions and hence unless the requirements of this section are complied with no suit may be instituted.
5. Also, any suit filed before the period of 2 months shall be dismissed. (Bihari
Chaudhary v. Bihar) 6. A suit may be filed under such provision not only for acts already done but for acts which might be committed in the future or acts which are threatened to be committed in the future.
7. This provision has been made to allow the government to redress the grievances of the
plaintiff within the period of 2 months without going in for unnecessary litigation thereby wasting public funds.
8. No specific form of notice has been specified. However, in Beohar Rajendra Sinha v.
Madhya Pradesh, it was held that the terms of the notice must be worded in such a manner so as to show on a reasonable reading that such notice has complied with all the requirements of S.80. Further, no unimportant irregularity shall be taken into consideration if the notice otherwise contains a justified claim. 9. The notice must essentially provide for the nature of the claim so that the government might be in a better position to redress grievances.
10. This section applies only to such public officials who commit an act or omission in
their official capacity and not otherwise. In Chandrakant v. State, it was held that the registrar of trusts was a public official acting in his official capacity while declaring whether a trust was a public trust or not. It was also stated that while considering cases
under this section, no distinction may be drawn between public officials acting bonafide and those acting malafide.
11. Another question arose in India v. Chattar Singh, wherein the plaintiff gave a notice to
the Government under S.80 but did not notify the concerned officer. The case was dismissed due to lack of notice to the public official. However, in NS Jayanandan v. State, a similar case was instituted and it was held that once the Government has been notified under s.80, the public official concerned need not be notified. The state in these cases was responsible jointly and thus the claim could not be defeated merely on the fact that notice was not served on the concerned person. 12. S.80 does not apply to a statutory corporation as neither does it fall within the ambit of the term ‘government’ nor ‘public official’. 13. Also, this section cannot be used when suits are filed before a tribunal constituted under the Motor Vehicles Act.
14. This section is for the benefit of the government and thus at times the government may
also use its discretion to waive the requirement of notice or ignore minor technical flaws. However, this is rarely the case. In Shanti Pada v. India, the case was ruled in favour of the plaintiff but was dismissed on the grounds that the requirements under S.80 were not specified. The plaintiff thus filed a fresh suit but the government challenged the same on the grounds of res judicata. However, the court ruled in favour of the plaintiff.
15. In Nani Amma v. Kerala, the government pleaded that the case was instituted before
the expiry of the period of 2 months after a period of 5years from the date of filing the suit. This plea was dismissed on the ground that even though there was premature filing of the case, 5 years was more than sufficient to give a notice to the government about the case against it. 16. The Law Commission has at several times suggested that the provision of service of 2 months notice under S.80 be done away with but no action has been taken by the government with respect to the same.
17. However, certain relaxations have been made due to the amendment of the CPC.
Earlier, incase there was a matter requiring urgent or immediate relief to be given, the plaintiff could approach the court by way of a writ. Now, due to the amendment in such cases where immediate relief needs to be provided, the plaintiff need not follow the 2 month notice rule and made with the leave of the court seek a remedy. If it is proved that there was infact no urgency, the plaintiff shall be asked to file the suit again after following the 2 month notice requirement and he need not pay court fees again. 18. Another relaxation made is that there shall be no dismissal if there is any minor irregularity in the notice provided that the name and description of the place of residence of the plaintiff has been specified in such notice so as to help identify the plaintiff and also if the cause of action and relief has been clearly mentioned in such notice.
19. The Law Commission in its 100th report however stated that amendments to the section
do not resolve the situation and S.80 must be repealed.
5.6 Period of Limitation 1. S.82 of the CPC provides that a period for satisfaction of decree be provided in the decree itself when a decree is passed against the government or any public official. 2. If the decree is not satisfied within such period it shall be reported by the court to the government for its orders. 3. Execution shall not be issued on such decree unless it remains unsatisfied for a period of 3 months after the date of the decree. 4. Under S.112 of the Limitation Act, the government enjoys a limitation period of 30 years for all cases filed by it or on its behalf. 5. This has been criticised by the Law Commission as being derogatory to the interests of private parties. It has also been stated as being discriminatory as private parties have been given a much lesser period of limitation.
Unit VI- Liability for Wrongs (Tortious and Contractual) 6.1 Government Tortious Liability 1. In UK because of the maxim- the King can do no wrong and due to the principle that the state cannot be sued in court without its permission, the government could not be made liable especially for torts committed by its servants. 2. However, this view was changed with the coming in of the Crown Proceedings Act under which now even the Crown could be made liable in torts. 3. In the US, the Federal Tort Claims Act provides for the tortious liability of the government. It provides that with respect to fulfilment of its common law duties, the government could be held liable. However, it could not be held liable incase of intentional wrongs such as assault, battery, etc. or incase of statutory wrongs. Thus, the US law is more restrictive than the English law with respect to tortious liability of the government.
4.In India, Art. 300 of the constitution provides for the same and states that the
Government of India may be sue or be sued in the same manner as the Dominion of India and the corresponding provinces or the corresponding Indian states might have sued or been sued.
5.Thus, reference needs to be taken from the Government of India Act, 1935 which in
turn relates such liability to the liability of the Secretary of State under the Government of India Act, 1915. The powers and liabilities of the Secretary of State are coextensive with that of the East India Company prior to 1858. Thus, regard must be had of the liability of the East India Company and its officers in such period.
6.1.1 The Old view
1. As the company was primarily an autonomous body and there existed no relationship of master and servant between the company and the crown, the sovereign immunity of the crown could not be extended to the company.
2. In the landmark judgment of P & O Steam Navigation Company v. Secretary of State,
it was held that under the Charter of 1833, the company had been entrusted the power to govern Indian territories under it as a trustee of the Crown. Thus, even though the sovereign immunity of the Crown could not be extended to the company, the company could not be made liable in torts for acts done within the ambit of its sovereign functions as conferred by the Charter of 1833. However, if the company or any of its officials commits a tort in pursuance of any activity which could be carried on by private individuals as well, it could be made liable.
3. However in Secretary of State v. Hari Bhanji, it was held that immunity extends to the
company only for ‘acts of the state’ and the distinction between sovereign and nonsovereign functions as stated in P & O was not well founded. 4. But, the view in P&O was accepted generally rather than the one given in Hari Bhanji. Even collection of land revenue by officers or delegates of the government was regarded as a sovereign function and could not be challenged on the ground of malafide intention on the part of the official.
5. Again in Gurucharan Kaur v. Madras Province, it was held that incase of illegal
detention of a person by the police, the government could not be held liable as it falls within the ambit of sovereign functions.
6. However, railways were regarded as an activity which could be carried on even by
private individuals and thus was not a sovereign function. In Maharaja Bose v. Governor-General in Council, it was held that when earth from the plaintiff’s land was removed by a government official to put the same on a railway track, the government was liable in damages for conversion to the plaintiff.
7. If the state is engaged in some sort of commercial activity or business it does not
amount to a sovereign function. In District Board, Bhagalpur v. Bihar, it was held that by running the state treasury, the government could not be said to be running a commercial activity or business and thus would not be liable for torts committed by the officials of the treasury.
8. In Nodin Chunder Dey v. Secretary of State for India, it was held that giving of licence
and taking excise duty fell within the sovereign functions of the state and thus the state could not be held liable for any wrongs committed thereunder. 6.1.2 Vidyawati to Kasturilal and the later developments
1. In the landmark judgement of Vidyawati v. Rajasthan, the sovereign immunity of the
state after commencement of the constitution was examined for the first time. The driver of a jeep kept exclusively for use by the collector fatally injured a pedestrian while driving the jeep back from the warehouse to the collector’s residence. A suit for damages was filed against the state as it was vicariously liable for the negligence of its servant. The state pleaded sovereign immunity under the P&O decision but the court held that herein the driver was not performing any sovereign function and thus the state would be held liable. However, the court also stated that the state would be liable as any employer would be liable for acts done by the employee within the course of
employment. Though this did not expressly overrule the principle laid down in P&O, it did by implication mean that the government could no longer be immune incase of wrongs committed by its servants whether the same was done in the exercise of sovereign or non-sovereign functions.
2. However, in Kasturi Lal Ralia Ram Jain v. Uttar Pradesh, the development as made in
Vidyawati was considerably whittled down. In this case a person was arrested and some gold was seized from him on the ground that it was stolen. A police constable stole such gold and fled to Pakistan. In the meanwhile, the person arrested was acquitted and he proceeded against the state for damages under the principle laid down by the Vidyawati case. However, the court referred to the P&O case and stated that the act was committed by the constable in exercise of his sovereign functions as delegated by the state and thus the state was not liable. 3. The court also stated that in the Vidyawati case, the driving of the jeep back from the warehouse to the collector’s residence was not a sovereign function and thus the state could be held liable. 4. The court however did state that owing to the number of commercial activities which the state enters into, limits for sovereign must be specified keeping in mind the provisions of the Crown Proceedings Act in the UK. 5. It stated that it was necessary to differentiate between sovereign and non-sovereign functions of the state so that it may not evade liability. 6. The Kasturilal case may be criticised for the fact that there exists no clear distinction between a sovereign and non-sovereign function except for the fact that when the government carries out such functions as may be performed even by private individuals, it shall be considered to be a non-sovereign function. However, even in this case when the gold was left with the police, it may be considered as a bailment which can be performed even by private individuals. Also, in Vidyawati, the jeep was kept for exclusive use of the collector who is an administrator with police functions and thus the wrong committed could very well fall within the ambit of sovereign functions of the state.
7. In the present day scenario, even though the distinction between sovereign and non-
sovereign functions is maintained, the courts have considerably reduced the ambit of sovereign functions thereby increasing the number of cases wherein the government could be held liable.
8. For example in Mysore v. Ramachandra, damage was caused to the plaintiff’s land due
to water overflowing from a reservoir constructed by the government for the purpose of providing water to the general public. The state was held liable as construction of the reservoir was regarded as being a welfare function of the state and not a sovereign function.
9. Again in Uttar Pradesh v. Hindustan Lever, a sub-treasury was being run by the state
government for collecting such amounts as deposited by private individuals and bodies for being credited into the accounts of government departments. Some such amounts were embezzled by government officials. The government was held liable as it was exercising functions as could be exercised by any normal bank and thus were not performing any sovereign function.
10. In Bihar v. SK Mukherji, it was held that the state is responsible for the safety of its
employees and would be held liable if it does not provide for necessary measures for the same.
11. In State v. Ram Pratap, it was held that most functions carried out by the Public Works
Department could be carried out by any private individual and thus could not be regarded as a delegation of the sovereign functions of a state.
12. In Shyam Sunder v. Rajasthan, it was held that when a government official died on
famine duty due to negligence of the driver of a government truck, the state would be liable as famine relief work does not traditionally come within the ambit of sovereign functions of the state as it could be undertaken even by private individuals.
13. Other such cases where similar judgments have been given are that of Andhra Pradesh
v. K Padma Rani, Kerala v. K Cheru Babu, Indian Insurance Company v. Radhabai.
14. In Khatri v. State of Bihar (Bhagalpur blinding case), it was held that the state would
be liable to pay compensation wherein the right to life under Art. 21 was seriously affected as it is the duty of the state to act within the authority of the law and protect the fundamental rights of the people.
15. Similarly in Rudal Shah v. State of Bihar, a person who was detained for 14 years
after his acquittal by the court was paid compensation by the state.
16. Other cases involving payment of compensation include Nilabati Behera v. State of
Orissa (custodial death) and Chairman Railway Board v. Chandrima Das (rape of Bangladeshi woman by railway employees).
17. However, the present day distinction between sovereign and non-sovereign functions
has been criticised by many. It has been argued that sovereign immunity must be made applicable for a foreign state in national territory for acts committed against nationals.
18. The Law Commission in its First Report on Liability of State in Tort stated that there
must be a relaxation in the rule of sovereign immunity of the government and the distinction between sovereign and non-sovereign functions of the state must be done away with. Thus, it recommended drafting of a new law in this regard. 19. A bill entitled Government (Liability in Tort) Bill was thus drafted and first introduced in Parliament in 1965 but could not be passed. It was re-introduced in 1967 and certain modifications were suggested by the Joint Select Committee but no law has been enacted so far.
6.1.3 Writs and damages for Government torts
1. Generally speaking, damages cannot be awarded incase of a writ petition under Art.s
32 and 226. This was also stated in the case of Jivan Mal Kochar v. India.
2. However, in recent cases such as Rudal Shah v. State of Bihar, the court has awarded
damages in writ petitions as well. In Devki Nandan Pd. v. Bihar, the court also awarded exemplary costs.
3. Generally the courts are reluctant to award damages as then it raises questions with respect to fact and the courts do not like to dwell on the same when it comes to writ petitions.
4. The Law Commission in a Working Paper suggested that a writ petition under Art. 226
be combined with a suit for damages with relief being provided by the HC in the first place and damages being awarded by a lower court. However, whether or not such damages may be awarded is to be left to the discretion of the HC.
5. There is but a lacuna in this scheme that it does not suggest anything with respect to
6.2 Contractual Liability of Government 6.2.1 Formation of Contract 1. In UK due to the coming in of the Crown Proceedings Act, the crown can now be sued for breach of contractual obligations and no permission of the crown is required to institute a suit against it.
2. In India, formation of government contracts has been enshrined in Art.s 298 and 299 of
3. Art. 298 states that the Union or state government may enter into a contract for any
purpose in exercise of their executive power. 4. Thus, the government may make any contract for any purpose irrespective of the fact as to whether the same comes within its powers as enshrined in the 3 lists. 5. Also, the government may enter into a contract in exercise of its executive power and no statutory authority is required.
6. Art. 299(1) lays down the following conditions based on which a contract shall be
entered into(a) All such contracts are to be made in the name of the President or the Governor as the case may be. (b) All contracts and assurances of property are to be executed on behalf of the President or Governor. (c) The President or Governor shall prescribe that the contracts are to be executed by such persons and in such manner as they may direct or authorise.
7. It has been held that provisions of Art. 299(1) have not merely been laid down for the
purpose of form but are mandatory in nature. This is done to prevent the government from being liable incase a contract is unauthorised. 8. Unless all conditions under this provision are not satisfied, the contract cannot be enforced by the government or against the government.
9. Such a strict view of the Art. is taken by the SC though the HC has generally taken a
more liberal view.
10. However, a liberal view needs to be taken some times as even though protecting the
government from unauthorised contracts is necessary, it is also important to protect private parties who may be unaware of such technicalities. Further, it is also important to make sure that governmental work is not delayed. Thus, the courts have generally taken a liberal view when the provisions of Art. 299 have been substantially complied with.
11. A written contract is necessary however there need not necessarily be a formal
document. It may even be through correspondence or through offer and acceptance if all the provisions of Art. 299 are complied with. The terms ‘executed’ in the article have been interpreted as meaning a written contract. 12. The contract may be executed on behalf of the President or the Governor only by an authorised person. An unauthorised person cannot bind the government.
13. Art. 299(1) doesn’t lay down any specific rules with respect to conferment of authority.
Generally it is done by way of notification in the official gazette. However, at times even though a person is not authorised by express terms of the rules but the rules may be interpreted as conferring special or ad hoc authority on such person.
14. If the government objects to a contract duly signed by an official claiming that such
person was not authorised to do so, the burden to prove that such person was unauthorised lies on the government due to S.114(c) of the Evidence Act which presumes that official acts have been performed regularly. 15. The contract unless made and executed in the name of the President or Governor is unenforceable even when it is made by an authorised person.
16. In Chaturbhuj v. Vithaldas Moreshwar, the court relaxed its view towards Art. 299(1)
and stated that even when a contract does not conform to the requirements of the article, it will not be null and void. If the government wishes, it may ratify such contract particularly when it is for the benefit of the government. However, in Mulamchand v. Madhya Pradesh, this view was held as being bad and it was stated that any contract which did not comply with the provisions of Art.299(1) was null and void. 17. Also, a contract of service between the government and its employee need not conform with the requirements of Art.299(1). This is because when a person gets appointed to such service, his rights and duties become subject to the statutory rules framed by the government.
18. A statutory contract does not come within the ambit of Art. 299(1). Such a contract is
one made under statute and not an ordinary executive order. This has been upheld in A Damodaran v. Kerala.
19. In West Bengal v. BK Mondal, it was held that even if the contract was invalid due to
non-compliance with the provisions of Art.299 (1), the government is liable to pay the respondents for the work already done due to the principle against unjust enrichment enshrined in S.70 of the Contract Act.
6.2.2 Estoppel and Government Contracts
1. Generally speaking, Art.299 (1) cannot be by-passed by invoking the doctrine of
2. However, many times the Courts have upheld the doctrine incase there is a breach of
contract or a breach of promise (provided Art.299 has been complied with) by the government and the same has given rise to remedies under equity for the private party. Thus, in such a case, the private party involved may invoke the court’s jurisdiction under Art. 226. 3. But, this defence of estoppel cannot be used when the provisions of Art. 299(1) are not complied with.
4. However, this has been criticised as even though Art.299 may not have been complied
with, the party may have done an act in furtherance of the contract and thus such strict interpretation of Art.299 must be relaxed. A contract must not be vitiated merely on the ground of inadequacy in form. 5. This principle is however not applicable to statutory contracts as they do not fall within the purview of Art. 299.
6. In Union of India v. Indo-Afghan Agencies and Century Spinning and Manufacturing
Co. v. Ulhasnagar Municipality, it was held that the HC under its extraordinary jurisdiction as laid down by Art.226 was empowered to enforce equities in favour of the plaintiff due to the promise made by the government to such person.
6.2.3 Contracts and Statutory Discretion 1. As such the doctrine of promissory estoppel does not pertain to statutory contracts as Art. 299(1) only deals with contracts made under executive power. 2. If a public authority enters into a contract using its general powers, then such contract cannot fetter the exercise of a statutory power. However, if fetters are imposed under a statutory power, the contract would be valid even if it fetters subsequent use of power.
3. An example may be given of a contract between an electricity board and a company to
supply electricity to such company on subsidised rates owing to a statutory provision. This is an exception to the general rule provided under the statute. Now, in the future, the board cannot charge at a higher rate from the company claiming that the general rule provides for charging such rates. The reason for the same is that the exception is made under statute and thus it may be used to impose fetters on the exercise of general statutory powers. (Indian Aluminim Company v. KSE Board)
6.2.4 Articles 14 & 19(1)(g) and Government Contracts 1. Earlier, the courts generally tended to support the government with respect to the party with which they wanted to enter into a contract. The government was thus allowed to deal with anyone it chose as per its discretion.
2. Similarly, in CK Achutan v. Kerala, the Government cancelled its contract with a
person for supply of milk in pursuance of its policy of awarding the same to a cooperative society. This was challenged under Arts. 14, 19(1)(g) and 31. The court however ruled in favour of the government stating that a contract creates a private right and not a public right. The government thus had the freedom to deal with anyone it chose.
3. Again in Punnen Thomas v. Kerala, a person was blacklisted for 10 years from
submitting any tender or taking up any government work. This was upheld on the basis of the fact that the government has the right to choose anyone it wishes to deal with. Herein, Mathew J. in his dissenting judgment stated that such action was contrary to the principles of natural justice as the person was not given an opportunity to be heard and it was invalid as it would lead to loss of reputation of the plaintiff in the business world.
4. In Rasbihari v. Orissa, the government had the monopoly over trade in kendu leaves
and it invited offers for purchase of such leaves for further leaves. Instead of following a system of competition between the purchasers, it arbitrarily allowed only the previous year’s licensees to apply. This was contested on the ground that granting such privilege to the former licensees had no connection with the object of the sale which was to effectively sell the leaves in public interest. Thus, the government order was struck down.
5. However, the above case’s effect was diluted in Trilochan Mishra v. Orissa, wherein an
in an auction for kendu leaf sale rights, sale was made to the ones with the lowest bids. Such bidders were asked to raise their prices in order to meet that of the highest bidder. It was held that the government had the discretion of selecting whoever it wanted to.
6. The trend was finally changed in Ramana Dayaram Shetty v. International Airport
Authority (Airport case). In this case, the International airport authority, a statutory body invited tenders for setting up a 2nd class restaurant in the airport and K’s tender was accepted as it was the highest and it satisfied all the requirements. Meanwhile, K purchased the required equipment for setting up the restaurant. However, the owner of the former restaurant did not vacate the premises and litigation ensued between him and the government which he lost. Thereafter, K was allowed to set up the restaurant. The former owner, Ramana then appealed to the SC on special leave. The following issues were addressed in the case(a) The first contention made was that K’s petition was not selected on the conditions of eligibility as given in the invitation. To this, it was stated that the test for eligibility was to be an objective and not a subjective one. (b) The second contention was as to whether the authority’s action in granting the tender to K was wrong or not. Herein, the authority contended that it could not be bound by the criteria provided in the invitation as they were not based on any statute or administrative rules. Further, they stated that they had the discretion to reject all other tenders and enter into negotiations with K. To this, the court contended that infact the authority had rejected all tenders and accepted K’s tender without entering into any negotiations. (c) Again, it was questioned whether the petitioner had any locus standi to file the case as he was not a tenderer in the first place. To this the court replied that had the petitioner known that the criteria of eligibility as given in the invitation would not be
used to grant a tender even he would have applied. Thus, he had locus standi as such decision affected his rights. In this case, the court held for the first time that the state does not have absolute discretion with respect to entering into a contract. It must consider all claims fairly and give everyone applying an opportunity to have their claims examined fairly.
7. Thereafter in Uttar Pradesh v. Shri Charan Sharma, it was held that parties must be
allowed to bid against each other in an auction so that the best claim is selected.
6.2.5 Contracts and Writs
1. Previously, as stated in Achutan’s case, no action with respect to writ proceedings
would lie incase of government contracts.
2. This rule changed in the Ram Sanehi case. Herein, cases involving contracts were
categorised as those which are purely contractual and neither do they have any statutory basis nor are they regulated by any statute. The second category of cases involves statutory contracts and there is a direct breach of a statutory provision. The third and last category is of such cases where the contract has a statutory flavour but is not violative of any statutory provision as such. 3. Incase of the first category of contracts, the relationship between the parties are ruled by the terms of the contract. This is not enforceable by way of a writ as the contract here creates a private right and not a public right. 4. Incase of the second category, as there is a violation of a statutory provision such as when the statutory right of a petitioner is infringed or when the authority does not fulfil a statutory obligation, a writ petition will lie. 5. In the above category may be placed such cases wherein rights of the parties are infringed under Art.14 due to discrimination. 6. As regards the third category, the general rule is that a writ may be issued even when the obligation has a statutory flavour, i.e. when it is partially statutory and partially contractual. However, this rule has always been in a state of flux.
7. In SKG Sugar Ltd. v. State, a similar question came up. The court stated that as the
order for inviting contracts was made under statute, the fact that it was a contractual obligation did not bar the court to issue a writ.
8. However, in Mangat Ram v. Delhi Development Authority, the court ruled otherwise.
Lease of a piece of land was executed in the name of the President on behalf of the plaintiff based on statutory provisions. Later such lease was cancelled and the petitioner filed a writ petition. This was rejected by the court on the ground that the obligation was purely contractual in nature although the lease was granted under statute and under the authority of the President.
9. In Shital Prasad v. M. Saidullah, a contract to sell sugar was entered into with the
petitioner subject to the clause that it could be cancelled by orders from the district magistrate without giving an opportunity to be heard. The contract was cancelled and the petitioner filed a writ petition claiming that principles of natural justice were not
followed. The court dismissed the petition on the ground that it was a cancellation of a contract and non-adherence to principles of natural justice couldn’t be argued.
10. However, a writ is a proper remedy when there is undue exercise of administrative
power in context of the contractual relationship. In Marwar Tent Factory v. India, the petitioner had entered into a contract with the government for sale of tents to the latter. The government later terminated the contract stated that the tents were not of proper quality and went on to assess damages unilaterally without allowing the petitioner a right to be heard. This was held by the court in a writ petition as being unreasonable as no contractual or statutory provision allowed the government to assess damages on its own.
6.2.6 Doctrine of Legitimate Expectation
Unit VII- Government Privileges in Legal Proceedings 7.1 Whether a statute binds the State? 1. The rule in England is that the statute cannot bind the government unless the same is expressly mentioned in such statute. This was primarily due to the maxim- the King can do no wrong
2. This view existed in India prior to independence and was upheld in the case of Province
of Bombay v. Municipal Corporation of the City of Bombay. After independence, the same rule was upheld in Director of Rationing v. Corporation of Calcutta. However, in his dissenting judgment Wanchoo J. stated that such a rule is erroneous as India was no longer a monarchy and was a republic. Thus, keeping in mind the same, the rule must be modified.
3. This case was later overruled in Superintendent and Remembrancer of Legal Affairs,
West Bengal v. Corporation of Calcutta. It was held that generally speaking, the government would be bound by statute except when an exception has been made with respect to the same expressly or by necessary implication. This rule was confirmed in India v. Jubbi. 4. The burden is on the state to prove that an exception has been made. 5. Generally, the courts liberally construe the terms ‘necessary implication’ to allow an exception to the state. An example of such exclusion by way of necessary implication may be seen with respect to criminal proceedings wherein the punishment involved is one of imprisonment. In such a case, the state has to be exempted as it cannot be imprisoned.
6. A similar situation was seen in India v. Jubbi, wherein the statute provided for transfer
of rights and title in land from the landowner to the tenant on the payment of some compensation. The question was whether the state could apply for the same as well. The court ruled in the affirmative stating that the court could not be necessarily excluded from the ambit of the statute in such case as the primary object of the statute
was to take away vast stretches of land from the control of landowners and grant it to others.
7. In State v. Employees State Insurance Corporation, a question arose as to whether the
state could be made liable to reimburse the insurance corporation for an accident caused by negligence of its employee. It was held that the object of the act was to work for public good. Thus, exclusion of the state from the ambit of the statute by way of necessary implication would defeat the very purpose of the act.
7.2 Government Privileges not to produce documents 1. S.123 of the Evidence Act provides that no person can produce unpublished government records with respect to the affairs of the state as evidence unless permission to do the same is granted by the head of the concerned department as per his discretion. 2. This provision gives great advantage to the government especially because the term ‘affairs of the state’ have been construed very broadly and include even the commercial activities of the state.
3.In Bihar v. Kasturbhai Lallbhai, it was held that the term ‘public affairs’ means any
matter of a public nature or any case wherein a disclosure made by the state would affect public service. 4. A valid argument in favour of this provision is that where a case in which disclosure might seriously jeopardize public interest, this provision might prove helpful. 5. S.123 is based on the common law principle that no evidence may be allowed to produced in court if its disclosure would adversely affect public interest. 6. However, in a later case, the House of Lords held that the court has the right to inspect such documents without showing it to the parties so as to judge whether disclosure would actually prejudice public interest.
7.In Punjab v. Sodhi Sukhdev Singh, it was held that the privilege under S.123 must be
claimed only with respect to cases involving injury to public interest and not in cases wherein producing such evidence could defeat the government’s claim. 8. It is for the courts to decide whether a matter is concerned with the affairs of the state or not. Generally, the courts are reluctant to construe commercial activities as being part of the term ‘affairs of state’. Thus, they use the parameter of ‘injury to public interest’ as a defence.
9.In the abovementioned case, the court also stated the ‘class doctrine’ whereby a certain
class of documents could be exempted not on the basis of their content but on the basis of the fact that disclosure would materially affect the freedom of expression of opinion with respect to public policies as is seen with respect to the minutes of discussion in the Parliament. Another example may be given of inter-departmental and intra-departmental correspondence.
10. In India as well it has been stated that if the court is not satisfied by the reasons given
in the affidavit by the government seeking privilege, it may look into such evidence so as to decide whether or not there is any injury to public interest.
11. Also, if a part of the evidence is published, it does not mean that the rest cannot be protected.
12. All these provisions were upheld in Raj Narain v. Indira Gandhi and SP Gupta v.
President of India (Judges Case).
13. In the Judges Case, the question came up as to whether incase of correspondence
between the Law Minister and the Chief Justice with respect to extension of term of service of an additional judge can be protected under S.123. It was held that there was no protection in such case as in a democracy there is a need for an open government so that public interest may be catered to. Also, the class doctrine cannot be brought into the picture here as this doctrine is used mainly to protect matter so that there is no hindrance to freedom of expression due to fear of recording of such matter as evidence. 14. Another issue considered in this case was whether the advice given by the ministers to the President is protected by S.123. It was held that such advice could be protected but the basis for such advice had to be disclosed.
7.3 The Official Secrets Act, 1923 1. This act deals with (a) spying or espionage and (b) disclosure of any other secret official information. 2. Persons having possession of official information include(a) Those that are in possession or control of any secret information. (b) Those persons who obtain such information in contravention with the Act. (c) Those persons to whom such information has been entrusted by another holding such office. (d) Those persons who have such information or obtain the same owing to holding of some office (past or present) or by holding a government contract or holding office under any person.
3. An offence is not only committed by such person who passes on the information but
also by such person who receives the information.
4. The information covered under this act must be an official secret and not a secret of a
private nature. What is an official secret is generally to be decided by the government though it is not always the sole judge with respect to the same.
5. In RK Karanija v. Emperor, it was held that an advertisement in a newspaper inviting
people from the general public to send letters to the editor for publication of official secrets for payment was in contravention of the provisions of the act.
6. Similarly, in State v. K. Balakrishna, parts of the budget were published before
presentation and the same was considered a contravention of the Act as the budget is a secret document.
7. The Act gives a carte blanche to the executive to punish any person incase of voluntary
disclosure of official secrets without any exception being made with respect to public interest or otherwise. The information may be disclosed only to such persons as the law authorises or to a court of justice or to any person to whom it is in the interests of the state his duty to communicate. 8. The punishment provided is imprisonment which might extend to 3 years or fine or both. The same has to be decided by court. 9. Also, no court may take cognisance of such cases unless they are brought to its notice by the government or any officer who is authorised to do so. 10. The Indian Act is largely based on the English Act of 1911. 7.4 Right to Information Act, 2005 1. Right to information forms part of the fundamental right to speech and expression and thus must be guaranteed to all citizens. Another reason for the existence of such right is due to the maxim-justice should not only be done but also must be seen to be done. 2. However, secrecy may be kept in cases involving public security or national interest. 3. Reasons for requirement of an open government(a) To ensure active participation of the people in the government. (b) In a democracy, the government is answerable to the people. In order that the people exercise such right, they must have a right to know about all the policies of the government. (c) Increase in state functions due to the coming in of the concept of welfare state, it is necessary that all information be given to the public so that the state does not act arbitrarily. Unit VIII- Ombudsman in India: Lokpal and Lok Ayukta 1. An ombudsman is essentially a mechanism created by the legislature in order to control the executive especially civil servants. 2. Such an office is created primarily because due to the increase in executive functions which has allowed problems such as bias, corruption, etc. to creep in. 3. The ombudsman helps checking administrative excesses, protects interests of citizens and helps redress their grievances. 4. According to Garner, an ombudsman is ‘an officer of Parliament, having as his primary function, the duty of acting as an agent of parliament for the purpose of safeguarding citizens against abuse or misuse of administrative function by the executive.’ 5. This institution first started in Scandinavian countries with Sweden being the first in 1809 to implement the same. It was then followed by Finland, Norway, England, New Zealand, India, Australia, etc.
6. In England, such powers are generally exercised by a Parliamentary Commissioner who is appointed by the Crown and holds office till he attains 65 years of age. He can be removed only by an address of both houses of Parliament. 7. In India, there is no such provision at the central level. However, Lok Ayuktas do exist in various states. 8. Need for ombudsman(a) Judicial control is not effective as the judiciary cannot go into the merits of any decision given by the administration. It can merely quash an administrative decision on the grounds that it is not in accordance with the law such as ultra vires, malafides, irrelevant considerations, patent error in the law, etc. (b) It is very difficult to prove the abovementioned grounds and the courts generally do not prefer asking administrative authorities to produce reports and files. Thus, the entire burden lies on the individual challenging the order to prove his case. (c) The legislature generally does not lay down standards which are to be followed by the administration while framing rules, orders, etc. It might so happen that something in a statute may be permissive for the administration to do but not mandatory. The administration cannot be questioned in this case even if it does not do such thing in public interest as the same is not mandatory. (d) Also, in writ petitions which is the most common way of challenging an administrative action, courts rely primarily on affidavits filed by the parties rather than oral testimony and cross examination. Such affidavits generally seek to conceal more than they reveal. (e) The administration cannot also be compelled to give reasons for decisions taken by it beyond the principles of natural justice. (f) Further, judicial procedure is very time consuming and expensive. It regards the engaging of counsels as well which many people cannot afford. (g) Also, technically the legislature being a representative of the people should exercise a check on the administration. But, this is not possible owing to a multi-party system and party politics because of which now it is the executive which exercises power over the legislature. (h) The legislature is always overburdened and focuses more on legislation and formulation of policies rather than exercising a check on the administration.
9. The creation of a system of ombudsman in India has been a failure so far atleast at the centre. 10. In 1966, the Administrative Reforms Commission suggested the creation of such an office in its report. 11. In 1968, a Bill was introduced in the Lok Sabha called the Lok Ayuktas Bill but before it could be placed before the Rajya Sabha, the Lok Sabha was dissolved and the Bill collapsed.
12. Another attempt was made with the Central Bill of 1971 but again the Lok Sabha was dissolved. 13. A third and final attempt was made in 1977 with the Lokpal Bill but again it could not be passed due to the dissolution of the Lok Sabha. 14. However, this system is being followed in several states of India like Orissa, Maharashtra, Rajasthan, Gujarat, Karnataka, Bihar, Uttar Pradesh, Madhya Pradesh, Himachal Pradesh and Andhra Pradesh on the model of the 1971 Central Bill. 15. It has been stated that such an institution may be created in countries with a small population. In a nation like India which has a large population, the office of ombudsman would be overburdened with cases of maladministration and hence the system of judicial review is best. 16. Also, the ombudsman only has powers of investigation, reporting matters and imposing functioning. It cannot act as a super administrator and enforce its decisions.
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