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    24 views21 pages

    Developments in Indian Administrative Law PDF

    Uploaded by

    N.Murugesan

    Copyright:

    © All Rights Reserved
    Download as PDF or read online from Scribd
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    of 21
    Developments in Indian Administrative Law UPENDRA BAXI* \ seven a are review of the gosrl penile, of edminiatve eae SDuning exerci. Tb nat nt beau the sad sofa fx ical respons to the problems erie salning amiistave power and drain of src om ore unt that thesis contol What ay ma ech i aa gots yond asa nei of Poet en in eal dotines, rato extend te the et lic powsr and authority With teat ens rough jal essence : i of ea a wher cout anywhere ave been powefl sR operating an tos of eat in be eer of imam hey ate sided by at overall pola rir public owes aie of eccoutbiy. In Fi, thelac of ¢tble masini ae ure oral aporoprate mecharsns=¥eh a ems a ora nystem af ribuals—ias exposed tbe courts Fe mot un of refing everaayexcenes of adit 1 am of creating oad susaning an thos of Wel ate ponte a aro public power. To understand wheter aa en oh hei process as important it ea rey ih excess of power ars epsdialycombrted Fade aticicn, Treditonal wring on adinisrative lw Ho a lly on the second aspect. We cndeavout 2 concen ats ay ape ager eoount of administra 1 (evctopmentsin tna? adie M2 ca, The hs Anite Za 97D, 3 — | | | Derelopments ts Indian Adiisrtive Low 13 Another chapar i this volume deals with the evolution of concepts and techniques by. which the courts in Tadiahave, through constant Feintrpretation of jc powers uadee the Constitution, manage! the exersse and excests of adainistrative power. In this chapter, tte ry to daa only with the evoltion of som speci principles and “octracs ef fairness, rather than with the processes or problems of fesivation of remedy srueures fr actual ai. ‘Tie RuLE OF Law NOTION AS GROUNDNOR OF ADMINISTRATIVE LAW -The concept ofthe “rule of lays the mainspring of the principles of administrative Taw. Over & period of time, the concept his Been Sherationalced as meaning abarnce, or at any rate diminution, of TRSinasness inthe exerci of public power. The Consttion Srnbouis many facets thi concept in several of its provisions, cluding thot of Part UT which guarantee fundamental rights. The Thuan experience is athe unique i thatthe courts, and pacewarly the Supreme Cour, had to pronounce ther understandings of the Scnoopt repeatedly. In Kesaranande? there occurred refreshing Uislogve on the sue whether the concept of the rale of lw was Sse an aspoet ofthe datrine of base structure of the Constittion, sihich even the plenary power of Parliament eanaot reach o amend. Turdislopuecontinued among justices ofthe Supreme Conrt during the lateral emergency of 1975-77. In Jndva Nehru Gand an sm Ghument to the Constitution (immunizing. the lection dispute 1356" Macias Caw fence taied st th ft wooo Aid inthe "or comemporaneou scouts of developments a tis ar, cont ch ak Sere of Ins Loni La ata sd contin othe ‘kl of he tit a lee, hereto io respetay ws 4.8.10 "rib onrbon by DX: Sing thi volume. EEonmnte Bh Sit of Berle, AIR. 1973 SC. 146 (ina Nees Gomi el Novae, AUR. 1578 SC. 299 a able Law in Indie involving the Prime Minister from any kind of judicial review), was invalidated by Khansa and Chandrachud, on the ground that it violated the concept of the rule ofa, which was anaspect ofthe basicstruture. Other Justices didnot take this route to invalidation complaining ia exence that the concept cannot posess « “brooding omnipresence” over the specie provisions ofthe Constitution, In the Flabas Corpus case? tho argument was pressed that the exeative cannot even in times of an emergency entaling suspension ofthe bill ‘of rights, atin voltion ofthe concept of the rule of aw a the ‘obligation to act in accordance with the ral o aw. sa cates feature of our constittioal system and is @ basle feature of the CConstttion". Although there wat rome confusion ao the satis ofthe concept during the period ofthe emergeney and some justices ‘went 50 Tar a t0 suggest that the emergeney provisions themselves constitute the rale of aw during sch a repime,the opiaions closely read do suggest the conclusion tht the contention of the petitioners ‘wan accepted inthe reasoning of al the five opinions, though uafor: tanatly not in resule® The revlt was a creel drafted order, as the court was itelfto later so characterize which eft detenus wi ro remedy against any arbitrary exer of authority. But deite {his distortion, whose severe consequences were tragically documen- ted ina denial ofall odisial elit even as regards the conditions of detention Kesevanand,Indre Gandhi andthe Habeas Corpus eases provide a distillation of fndian judicial thought onthe conesptions ‘ofthe rule of aw, which has evolved well over a quarter century. References to Wester theorist and thinkers from Dicey onwards abound in these opinions; but thse oceut by way of rhetorical flourishes, masking the typically Indian approaches. ‘Whee one reflects upon deiional fw inthis ares, one finds that the concept of the ruloflaw thus developed has several sompoaet, ‘One is that power should not be exereized arbitrarily. This has meant that it shouldbe exercised fr the purposes for which it has. been conferred? It also means that power should be exerisd within the ADM. Jalan Shale, AIR. 1976 $C. 12 ‘SLM. Serva The Emorecy, Pure Seed a he Habeas Coat cave, 197% Tipe, UB, Fe Inn Soprone Coe od Poe, 1980, ice hoo Comper. "See Mr Doe Be’ bration ir Sha Lal Unio of In Bhar, ALR. 1996 8.6. a0 ‘Ee Sie of Bonky WAP Resin, ALR. 1908.0. 123. Developments i Indian Adminitrative Law 4135 statutory ambit and purported eerie of it would not just be ara tes bet fa ate sone of he erm arian. Simple negation ot biarnes i however, not enough to prone the ral of ae Yalues. Indian courts have go furbe to inst on apse psi content of thera of law obligation, These inclae te iaey of Tatra Justice which have to be flioned not jot in uaud Acton but often also in purely adminstatve aston’™ The seme {nd conteat of the requirements of ata ase hae varied fee time to time according tothe juicalinterretaion Wut the bnoed fnnltence remains. In adiion, aosan to information Lo the ‘rounds of dechion hs remained an important prececapation ofthe Tadian Judiciary, a» aay impediments to it have the tendon ot busing jul revi of min taive sin, Ths nears tat ‘he cout have from tine tone insisted tat eee of adn ‘ie power be scconpaniad by reason ahough he exact tats ‘the obligation to give reson vas yr indstrmtate Therule oflaw nation has bes in addon comvstnty extended to sect for the individ fr dang bythe State int somone sts Fr example the government shld bound by issonraces to individuals in busts tatactonsby-vay of extoppe™ The Sane hat to ell some ofthe als of mural sce Deore reach ing deion that it would to trade with gen enacts oc bofore blacklisting them" Tn tr ivalving poverament contract {he ours have bcm nereasingly Keon to ist that the ambit of fala is ot lesened in vif the dominating capacity of te Sate over he individals™ Inthe are of ones and injury sing oof heStatesconomietrprncuia fonction cout have tended to esi the cope ofthe defen of wvereign munity i fect of the affected individuals We review the dehional lew on soe ofthese mater in hs chapter Stic to say Deve tha the Tle Of law concepts evened y he odin jain extends nt nt {0 providing a amenork of negative contains on povetametal Aeton but ao to imporions of peste conde onthe Site se section V, inf Use ote 28 _— see sec Xf "Ser estonia 36 Pde Law i Pda uit afew respects then the Indun administrative law transcends the ispiration and model of judicial intervention found in cosmo polit Jurisprudence of Anglo-American decisional av; although Suita discourse remainseuTused with quite deveptive reliance on "hese very sources, “Tw StvaRATION oF Powsn, The separation of powers doctrine, as an emanation of the rule of ta values, bas been a dierte ates for judicial pronouncements in India. Tt has been acknowledged in a longline of fndian deisons that the Constitution doce not envisage any strict separation of| powers. Apart from the drcti principle embodied in Arti 50 wich enjoin separation of judiciary from executive, the const Vionl scheme des not ountenace any dogmatic ivsion of powers. For example, the President of India has wide legislative powers. OF his wide power 40 promulgate ordinances daring the recess of the Howic of Pavliament, it as boon ai that its “extent and scope would have aon eves by Heney VIII and would have taken the Judges ofthe Cae of Proclamations by surprise" The system of Psi ain the states provides another example ™ When the separation of posters doctrine was urged in the Bits as denying, or nthe alterative substantively restraining, wide grant of delegated legistive powers tothe execntive, the Supreme Court uphelt such

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