1

ADMINISTRATIVE LAW
I. P. Massey*

I INTRODUCTION

ADMINISTRATIVE LAW which deals with the malignancy of power has

witnessed remarkable advances in recent times. Today, we are fast moving
into an era where globalization has revolutionalized administrative process in
India and aboard. International administrative law is growing fast into a
separate discipline. Though the government is withdrawing from its role as
entrepreneur, yet its role as provider, facilitator, enabler and regulator has
increased tremendously. This has put emphasis on the concept of
administrative law which aims at enforcing the norms of good governance in
the administrative process to make it efficient, effective, moral, responsive,
accountable and people-centric. In this context, the developments in
administrative law in India still remain a classical example of judicial
creativity and high benchmark of judicial activism. Over the years, judiciary
is engaged in the task of balancing the power of the administration with
fairness to the people with remarkable success. It has developed fine norms
of administrative jurisprudence to ensure observance of rule of law in the
administration. Thus, today, administrative law has developed into an effective
instrument in the hands of people to keep administration within the bounds of
law and the Constitution. 1 Though the year under review did not provide
enough opportunity to the court for breaking new grounds, yet it depicts the
valiant effort on the part of the judiciary to enforce rule of law in the
governance of the country. Enforcing probity, responsibility and
accountability in public life, keeping the administration within the bounds of
law and the Constitution and protecting the rights and expectations of the
common man have been the chief concerns of the administrative law discourse
in India.

II CLASSIFICATION OF ADMINISTRATIVE ACTION

Though the conceptual distinction between administrative and quasi-

* Visiting Professor of Law, Hidayatullah National Law University, Raipur. Formerly,

Professor of Law, H.P University, Shimla and Member, H.P State Human Rights
Commission.
1 Massey , IP., Administrative Law, Introduction by Upendra Baxi, xiii (2005).

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2 Annual Survey of Indian Law [2005

judicial action of the administration has become blurred and is being gradually
obliterated, yet difference still remains. Reiterating its earlier decisions,2 the
Supreme Court held that the classification of an act as quasi-judicial or
administrative depends on the facts and circumstances of each case. But
generally speaking if there is a contest between two contending parties and a
statutory authority is to adjudicate upon the competing contentions, that action
would be quasi-judicial. Elaborating the law further,3 the court identified
three characteristics of quasi-judicial action: (i) it is in substance a
determination upon investigation of a question by the application of an
objective standard to facts found in the light of pre-existing rules; (ii) it
declares rights or imposes upon parties obligation affecting their civil rights;
and (iii) that the investigation is subject to certain procedural attributes
contemplating an opportunity of presenting its case to the authority,
ascertainment of facts and if the dispute be on a question of law on the
presentation of legal arguments, and a decision resulting in the disposal of the
matter on findings on those questions of law and fact. Applying the above test,
the apex court concluded in Manju Verma (Dr.) v. State of U.P.* that the
power exercised by the Chief Justice of the Allahabad High Court under para
14 of the United Provinces High Courts (Amalgamation) Order, 1948 to
transfer a writ petition from Lucknow bench to Allahabad bench in
administrative capacity is quasi-judicial power subject to review by the apex
court. The court opined that the chief justice could not have allowed the plea
without hearing the affected party and without determining on objective
criteria and upon investigation whether the case is transferable and should be
transferred. The decision of the chief justice thus would have a direct bearing
on the right of the appellant to choose "forum convenience". Hence, the action
is quasi-judicial subject to review by the higher forum.

Ill DELEGATED LEGISLATION

Delegated legislation is a compulsive necessity today. Keeping in view the

tremendous growth of administrative process, certainly, legislature cannot give
that quantity and quality of law which is needed to govern the country.
Therefore, legislature exercises only essential legislative functions and leaves
the ancillary law making for the administration.
One of the fundamental principles of delegated legislation is ''Delegatus
non potest delegare ". Explaing the reach of this principle, the Supreme Court
held, that in general, a delegation of power does not imply parting with the
authority. It points rather to the conferring on an authority or a subordinate
officer to do things which otherwise that person would have done himself.
Thus, question involved in Ishwar Singh v. State of Rajasthan5 was that if law

2 Engineering Mazdoor Sabha v. UOI; AIR 1963 SC 874 and Jaswant Sugar Mills v.
Lakshmi Chand, (2002) 5 SCC 605.
3 Manju Verma (Dr.) v. Stale of LLP., (2005) 1 SCC 73.
4 Ibid.
5 (2005) 2 SCC 334.

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Vol. XLI] Administrative Law 3

allows delegation of administrative power by an officer to another officer

subordinate to him, then whether the delegator denudes himself of all the
power? Answering this question in the negative the apex court held that the
delegating authority will retain not only power to revoke the grant but also the
power to act concurrently on matter within the area of delegated authority,
except insofar as it may already have bound himself by an act of his delegatee.
In Iridium Telecom Ltd.v. Motorola Inc.6 an important question was
relating to the power of the high courts to make rules as to their original civil
jurisdiction. Through section 29 of the Civil Procedure Code, 1908 (CPC)
Parliament has delegated power to high courts to make rules relating to the
original civil jurisdiction. Section 129 of CPC provides: "Notwithstanding
anything in this code, any High Court... may make rules, not inconsistent with
Letter Patent Order or any other law, establishing it to regulate its own
procedure in exercise of its original jurisdiction as it shall think fit...."
Explaining the ambit of law making power of high courts and negativating the
contention that high courts cannot make any rule under section 129 of CPC
which is in conflict with the provisions of the Code which is a parent
legislation, the Supreme Court held that non obstante clause in the beginning
of section 129 CPC invests high courts with the power to make rules for the
regulation of their own procedure, which may be inconsistent with the Letter
Patent establishing the high courts in India. The court further clarified that non
obstante clause used in section 129 of CPC is not merely declaratory, but is
indicative of the intention of Parliament to prevent the application of CPC in
respect of civil proceedings on the original side of the chartered high court.
Constitutionality of delegated legislation has always been a very contested
issue. Breaking a new ground the Supreme Court in Southern Agrifurane
Industries Ltd. v. C.T.O1 held that while dealing with the constitutionality of
delegated legislation court may take into consideration relevance of the
background in which the power of administrative rule making has been
exercised. In this case in order to rehabilitate the appellant sick company,
acting under the provisions of the Sick Industrial Companies (Special
Provisions) Act, 1985 on the recommendation of the Board of Industrial and
Financial Reconstruction the government issued notification for deferring sales
tax without specifying the amount. Subsequently, the board amended the
scheme to enhance the cost of rehabilitation and consequently the state
government issued a second notification quantifying the deferred sum to a sum
higher than that originally mentioned in the scheme. The company contended
that quantifying the amount of sales tax in the second notification amounts to
retrospectively denying it the benefit of deferment of the entire tax liability
conferred by the first notification under the scope of section 174 of the T.N.
General Sales Tax Act, 1959 and hence unconstitutional. Negativating the
contention the high court held that the subsequent notification was merely
clarificatory in nature and had not made any retrospective amendment. The

6 (2005) 1 SCC 145.

7 (2005) 2 SCC 575.

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high court was further of the opinion that even if there was a retrospective
amendment it was authorized by the parent Act. Agreeing with the high court
the apex court further amplified that in order to determine the constitutionality
of the notification relevance of the background in which notification was
issued can be taken into consideration and therefore, appellant is entitled to
the sales tax deferment only to the extent it was necessary to take it out of the
'sickness' i.e. on rehabilitation and any further deferment would be beyond the
powers of the government under section 17 A of the T.N. General Sales Tax
Act, 1959.
Moving in the same direction, the Supreme Court further laid down that
while determining the constitutionality of delegated legislation, which is an
administrative necessity, no straitjacket approach is desirable and the intensity
of review in public law will depend on the subject matter in each individual
case. The court emphasized that there is difference in approach between the
traditional grounds of review of delegated legislation and proportionality
approach. It is important that in cases involving serious violation of public
interest proportionality approach may produce better results. Thus, in cases
involving constitutionality of delegated legislation, 'context' has become an
important factor.8 Food Corporation of India v. Bhanu Lodh,9 provided an
opportunity to court to lay down the new principle of "proportionality" and
"context" of public law review while determining the constitutionality of
delegated legislation. In this case, section 6(2) of the Food Corporation Act,
1964 empowered the central government to issue 'policy instructions' to the
board of directors of the corporation. In exercise of its powers the central
government issued policy instructions regarding recruitment policy and service
conditions. However, after receiving several complaints regarding
irregularities in appointments by the Food Corporation, the government later
on issued instructions and declared appointments already made as null and
void. The question before the court was whether these instructions are within
the power delegated to the government under the Act and hence constitutional.
Upholding the constitutionality of policy instructions of the central
government the court opined that the 'questions of policy' could not only be
with regard to the organization, management and functions, but also with
regard to its 'employment policy' which in the long run may affect the interest
of the consumers and producers for whom Food Corporation of India is
established.
IV CONSTITUENCY OF PUBLIC REVIEW
Reach of public law review is directly proportionate to the quality of
administrative action. In a very intensely contested case 10 where the stakes
were very high, main question for decision before the constitution bench of the
apex court was whether the Board of Control for Cricket in India (BCCI), a

8 Food Corpn. of India v. Bhanu Lodh, (2005) 3 SCC 618.

9 Ibid.
10 Zee Telifilms Ltd. v. Union of India, (2005) 4 SCC 649.

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Vol. XLI] Administrative Law 5

society registered under the Societies Registration Act, 1860 and recognized
by the government to promote the game of cricket is 'state' within the
expression 'other authorities' under article 12 of the Constitution and hence,
subject to the writ jurisdiction of the court? By a majority of 3:2, the apex
court held that BCCI is not 'state' and hence beyond the jurisdiction of the
court.
After analyzing the entire case law on the point, the majority of court
opined that the intention of the Constitution framers in incorporating article
12 "was to treat such authority which has got certain powers to make laws,
rules and regulations to be included in the term 'other authorities' as presently
incorporated in article 12 of the Constitution. The court pointed out that the
distinction to be noted between Sukhdev Singhu and Sabhajit Tewaryu is
that in the former the Supreme Court held that bodies which are creatures of
statute having important state functions and where state has passive control of
the activities of those bodies would be 'state* for the purpose of article 12;
while in Sabhajit Tewaryn the court held that a body which was registered
under a statute and not performing important state functions and not
functioning under the pervasive control of the government would not be a part
of the 'state' for the purpose of article 12 of the Constitution. Facts established
in this case showed that the board is not a creature of the statute; no part of
the share capital is held by the government; there is no state control; board
enjoys monopoly status in the field of cricket but such status is not state
conferred or state protected; and the board is autonomous and is not created
by transfer of a government owned corporation. Keeping these facts in view,
the apex court came to the conclusion that BCCI is not state within the
meaning of the term 'other authorities' in article 12 of the Constitution.
On a mere theoretical ground the court opined that the Constitution is a
living organism and it is the duty of the court to interpret the same to fulfil the
needs and aspirations of the people, depending on the needs of the times.
Today, the state is distancing itself from commercial activities and
concentrating on governance. Therefore, there seems to be no need to further
expand the scope of 'other authorities' under article 12 by judicial
interpretation. The court concluded, "It should be borne in mind that in a
democracy there is a dividing line between a state enterprise and a non-state
enterprise, which is distinct and the judiciary should not be an instrument to
erase the said dividing line unless of course, the circumstances of day require
it to do so." 14
Minority in this case emphasized on functional and purposive approach to
resolve the issue. According to the minority, besides 'agency' and
'instrumentality test' following further tests may be followed: when the body
acts as a public authority and has public duty to perform; when it is bound to

11 (1975) 1 SCC 421.

12 (1975) 1 SCC 485.
13 Ibid.
14 Supra note at 683.

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6 Annual Survey of Indian Law [2005

protect human rights; when it regulates a profession or vocation of a citizen

which is otherwise a fundamental right under a statute or under its own rule;
when it regulates the rights of a citizen contained in article 19 (1) (a) of the
Constitution available to the general public and viewers of the game in
particular; when it exercises a de facto or de jure monopoly; when the state
outsources its legislative power in its favour; and when it has positive
obligation of a public nature. Following the retests, minority concluded, that
the BCCI is a 'state 'within the meaning of article 12 of the Constitution.

V PRINCIPLES OF NATURAL JUSTICE

In the absence of any law dealing uniformly with the administrative

procedure, courts in India have always insisted that in the absence of a
provision made in the statute under which administrative authority is
exercising its power, every authority must follow a minimum fair procedure
which is referred to as principles of natural justice. Explaining the. scope and
applicability of this code of procedural fairness, the court observed that the
principles of natural justice cannot be stretched too far15 and the observance
of these principles should not be ritualistic.16

Empty formality rule

Recently, courts in India have developed a controversial 'empty formality'
rule of judicial review relating to the application of the principles of natural
justice to quasi-judicial actions of the administration. It is controversial
because the court proceeds with a predisposition that no good will come out
even if the principles of natural justice are applied in the case. The rule is
based on the assumption that when the facts speak for themselves application
of the principles of natural justice would be a mere empty formality. The court
applied this rule in case of termination of badli worker employed on day to
day basis. In Karnataka State Road Transport Corpn. v, Kotturappa,]1 the
respondent had committed repeated acts of misconduct and had also accepted
minor punishment after proper notice and hearing. Against this backdrop, the
apex court opined that as the worker being a daily wager had no right to
remain in service therefore, the principles of natural justice can be excluded
especially, when such compliance would be a mere empty formality, that too,
in the case of misconduct. The court opined: "The question as to what extent
principles of natural justice are required to be complied with would depend
upon the fact situation obtaining in each case. The principles of natural justice
cannot be applied in a vacuum. They cannot be put in any straitjacket formula.
The principles of natural justice are furthermore not required to be complied
with if it will lead to a mere empty formality."18

15 Bar Council of India v. High Court of Kerala, (2004) 6 SCC 311.

1 6 Escorts Farms Ltd. v. Commr. of Kumon Div. (2004) 4 SCC 281.
17 (2005) 3 SCC 409.
18 Id, at 41 I.

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VoL XLI] Administrative Law 7

Right to notice
Moving in the same direction the apex court further amplified that right
to notice as a part of audi atteram partem rule cannot be claimed in a routine
manner unless some prejudice is shown.19 The court was of the view that it is
not necessary for the administrative authority to give notice and hearing to a
party before a technical opinion submitted by the assessee is sent to the expert
for comments. If adjudicating authority relies on the report of such expert,
then certainly it must be brought to the notice of the other party, but if the
report is not relied upon by the authority then non-communication of the
report to the party, does not violate the principles of natural justice.

Order simpliciter
It has now been firmly established in administrative law that unless law
provides otherwise, principles of natural justice shall not apply where an
administrative order passed is simpliciter and is not punitive in nature.
Applying the same principle in Registrar, High Court of Gujarat v. C.G.
Sharma20 the Supreme Court came to the conclusion that the termination of
service of a probationer by the high court after perusing the confidential
reports and other relevant vigilance files and coming to the conclusion that
overall performance of the judicial officer is unsatisfactory recommended the
termination of service of the judicial officer to the state government in public
interest is not punitive or stigmatic but is simpliciter hence, no opportunity of
notice and hearing need be given as the action is based purely on subjective
satisfaction.

Report of enquiry
An important question of law agitated in Div. Manager, Plantation Div.
Andaman and Nicobar Island v. Munnu Barick2] was whether non-supply of
enquiry report to a workman before final decision is taken by the disciplinary
authority violates the principles of natural justice simpliciter0 Pointing to the
law already laid down in Karunakar22 the apex court emphasised 'prejudice
doctrine*, which makes it obligatory on the part of the workman to show that
he had been prejudiced by reason of non-supply of enquiry report. Reiterating
its earlier stand, the apex cqurt repeated that the principles of natural justice
cannot be put in a straitjacket formula. It must be viewed with flexibility. In
a given case where deviation takes place as regards compliance with the
principles of natural justice, the court may insist upon the proof of prejudice
before setting aside the impugned order.

Post-decisional hearing
The concept of post-decisional hearing has been developed to maintain a
balance between administrative efficiency and fairness to the individual. In the

19 Noble Synthetics Ltd. v. CCE, (2005) 3 SCC 674.

20 (2005) 1 SCC 132.
21 (2005) 1-SCC 237.
22 Managing Director, ECIL v. B. Karunakar, (1993) 4 SCC 727.

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8 Annual Survey of Indian Law [2005

interest of fairness, the court held that opportunity of being heard immediately
after an emergent action would satisfy the mandate of natural justice. 23
However, doubts were expressed on the validity of post-decisional hearing
when pre-decisional hearing is mandated by law.24 In a later decision the court
clarified that in situations where pre-decisional hearing is mandated by law,
pre-decisional hearing is necessary, though not an elaborate one, even in
emergent situations if the action involves grave consequences relating to
fundamental freedoms. 25 In a recent decision 26 the apex court further
emphasised that in judging the legal validity of post-decisional hearing legal
formulations cannot be divorced from the fact situation of the case, as the
purpose of natural justice is to prohibit accidents in administrative justice. In
this case personal hearing had been granted by the appellate authority, though
not statutorily prescribed before confirming the dismissal order of the
delinquent officer of the bank. Therefore, in the absence of any specific
prejudice shown by the officer, the court came to the conclusion that in this
given situation post-decisional hearing can obliterate the procedural deficiency
of the pre-decisional hearing. In the instant case, the respondent employee did
not raise any ground relating to the violation of the principles of natural justice
either in the memorandum of appeal or at the time of personal hearing before
the appellate authority. Additionally, there was no material placed by the
employee to show how he had been prejudiced. Moreover, in the appeal
before the appellate authority findings of the enquiry officer and disciplinary
authority had been challenged. Under these circumstances question of any
prejudice did not arise. On the basis of these specific facts, the court came to
the conclusion that the delinquent officer had the opportunity to meet the stand
of the bank, therefore, there was no violation of the principles of natural
justice.

Exemption to the principles of natural justice

In view of the liberalization and globalization of economy, a need of
enforcing labour discipline was being felt strongly. Realizing the importance
of balancing labour rights against labour responsibilities, the apex court
speaking through Thakkar J sent a clear message that, if exigencies of
situation demand prompt action to dismiss a workman without notice and
hearing can be taken to stop a situation from worsening as in such case
application of the principles of natural justice would do more harm than
good. 27
In this case, exercising its power under standing order 20, the general
manager of the corporation dismissed a workman for gross misconduct

23 Maneka Gandhi v. Union of India, (1981) 1 SCC 248.

24 See Swadeshi Cotton Mills v. Union of India, (1981) 1 SCC 664; Tea Trading Copn v.
Pashok Tea Co., (1981)4 SCC 113.
25 K.L Shephand v. Union of India, (1987) 4 SCC 431.
26 Canara Bank v. V.K. Awasthy, (2005) 6 SCC 321.
27 Ajit Kumar Nag v. General Manger (PJ), Indian Oil Corporation, Halldia, (2005) 7 SCC
764.

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Vol. XLI] Administrative Law 9

without any notice and hearing. Standing order had authorized the authority
to dismiss any employee, in exceptional situation, after recording reasons. A
single judge of the high court granted ex parte interim relief which was later
on denied by the division bench, hence, special leave petition before the
Supreme Court. A fresh writ petition under article 32 was also filed in which
constitutional validity of standing order 20(vi) was also challenged as
violative of articles 14 and 19 being unreasonable, arbitrary and irrational. In
view of the fact that there were two conflicting decisions of the Supreme Court
on the point, matter was decided by a larger bench. In Workmen v. Hindustan
Steel Limited,2* the court had declared a similar standing order as
unconstitutional violating articles 14 and 19 of the Constitution. However, in
another case, Hah Pada Khan v. Union of India29 the court upheld the
constitutionality of a similar standing order. After hearing the arguments the
Supreme Court dismissed both the appeal and the writ petition, holding that
principles of natural justice are not rigid or immutable hence, they cannot be
used to paralyse the exercise of administrative power when need of
promptitude and urgency demand immediate action. 30 Therefore, where an
employee is involved in a serious act of indiscipline which is likely to affect
the functioning of the institution, prompt action, which involves an element of
deterence to save the situation from worsening is necessary, principles of
natural justice may not apply in the larger interest of the society. Thus, the
court is trying to shift the balance from concept of individual rights to
communitarian concept in view of the changed socio-economic imperatives.
This proves the fact that no court can decide a case in a vacuum on merely
theoretical or conceptual basis but must take the realities into consideration,
otherwise law would falter in the face of specifics of life.

VI DOCTRINE OF PROPORTIONALITY / STRICT SCRUTINY

Application of the doctrine of proportionality or strict scrutiny is still a

gray area in administrative law. It is true that much before this doctrine was
followed in western jurisdictions, the Supreme Court was applying it since its
inception in 1950 to legislative actions if they violated the fundamental rights
of the people. In such cases the court always insisted on appropriate or least
restrictive choice of measure which was with the court. Thus, the court
reserved to itself role of 'fair balancing' between fundamental freedom and the
need for restriction thereupon.
However, the application of the principle of proportionality in
administrative actions where no fundamental freedoms are involved was still
an open question. The court in Canara Bank v. V.K. Awasthy^ while
explaining the applicability of this doctrine in administrative law, opined that
in situations wherein an administrative action no fundamental freedoms are

28 (1985) SCC (L&S) 260.

29 (2005) 7 SCC 764 at 765.
30 (1996) 1 SCC 536.
31 Supra note 26.

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10 Annual Survey of Indian Law [2005

involved the courts will only play a secondary role while the primary judgment
as to reasonbleness will remain with the administrative authority. The
secondary judgment of the court is to be based on Wednesburyn and CCSJ733
principles to find out if the administrative authority has reasonaboly arrived
at the decision as the primary authority. However in a case where
administrative action affects fundamental rights (articles 19 and 21) the
question, whether the doctrine of 'proportionality' will apply empowering
court to assume primary role, was left open because in this case it was not
contended that any fundamental freedom was affected.34 The direction of the
court seems to be to give administration necessary flexibilities if it exercises
its role legally and rationally and the court would confine judicial review to
exercising "secondary role" unless fundamental freedoms are directly and
substantially in issue.
Regarding application of the doctrine of proportionality to determine the
quantum of punishment, the apex court was of the view that it cannot be a
routine matter. Where departmental proceedings reveal several acts of
misconduct and charges clearly establish failure in discharge of duties with
utmost integrity, honesty, devotion and diligence, the scope of judicial review
on the ground of proportionality is highly limited to situation of illegality and
irrationality.35

VII ADMINISTRATIVE ACCOUNTABILITY

Administrative accountability is emerging as one of the most important

facets of administrative law in India. Basic purpose of this development is to
check growing abuse of power by the administration and to provide speedy
remedy to the victims of such abuse of power. After importing the principle
of 'public trust' in the exercise of administrative power,36 the court focused
its attention on government litigation. Unfortunately, there is no accountability
in the government or statutory authorities for violating the spirit of section 80
of the Civil Procedure Code, 1908 (CPC) which aims at curtailing the growing
litigation by and against the government. Two months statutory notice period
is provided under section 80 CPC so that the government may examine the
claim made in the notice and has sufficient time to send suitable reply and to
take suitable action in the matter. However, the fact is that in large number of
cases, either the notice is not replied or where replied it is generally vague arid
evasive. This defeats not only the purpose of the law but also puts heavy cost
on the public exchequer besides adding to the misery of the litigants.
Therefore, in Salem Advocates Bar Association v. Union of India37 the apex

32 Associate Provincial Picture House v. Wednesbury Corpn., (1984) 1 KB.223.

33 Council for Civil Services Union v. Minister of Civil Services, (1984) 3 All ER 935.
34 Supra note 26 at 346.
35 Id. at 352.
36 A.G. of India v. Amritlal Prajivandas, (1994>5 SCC 54; D.D.A v. Skipper Construction
Co, (1996) 4 SCC 622; State of Bihar v. Subash Singh, (1997) 4 SCC 430; A.G. Hon Kong
v. Reid, (1993)3 WLR 1143.

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Vol. XLI] Administrative Law 11

court issued directions that whenever, statute requires service of notice as a

condition precedent for filing the suit or other proceedings, the government
will nominate, within a period of three months, an officer who shall be made
responsible to ensure that the replies to the notices under section 80 CPC are
sent within stipulated time after due application of mind. The court
emphasized that if the reply is not sent in time or is vague or evasive and has
been sent without proper application of mind, the court must award heavy cost
against the government which must be recovered by the government from the
officer concerned besides taking appropriate disciplinary action against the
delinquent officer. The apex court directed the courts also that the cost
awarded in such matter should not be nominal but real cost which may be
calculated after taking into consideration, (i) cost of time spent by the
successful party, (ii) cost of transportation and lodging, (iii) court fee, lawyer
fee and typing fee etc, and (iv) any other incidental cost. This decision will
certainly make administration responsive besides reducing the heavy burden
on the public exchequer and the misery of the people.

VIII LEGITIMATE EXPECTATION

Doctrine of legitimate expectation can provide a sufficient interest to

enable any one who cannot point to the existence of a substantive right to
obtain the leave of the court for judicial review. The doctrine does not give
scope to claim relief from administrative authorities as no crystallized right is
involved. It is generally agreed that legitimate expectations give applicant
sufficient locus standi for judicial review and the doctrine is to be confined
mostly to right of fair hearing before decision to withdraw a promise or
undertaking is taken. In Bannari Amman Sugar Ltd- v. CT.<9,38 the apex court
maintained that where a person's legitimate expectation is not-fulfilled by
taking a particular decision then authority should justify the denial of such
expectation by showing some overriding public interest. In the present case,
since the state had not indicated reasons justifying the withdrawal of benefit,
the court insisted that appellants be given an opportunity of hearing to present
their side of the picture.

IX ADMINISTRATIVE DISCRETION

In today's complex art of governance, discretion is an unavoidable evil.

While discretion is necessary to provide flexibility and particularization of
administrative action, it has been a source of a host of problems like
corruption and nepotism because discretion is a law-free zone and is based on
the subjective satisfaction of the administrative authority. It is for this reason
that under the scheme of Indian Constitution judge-free discretion is
impermissable.

37 (2005) 6 SCC 344.

38 (2005) 1 SCC 625.

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Endorsing the same statement of law, the Supreme Court in Bharat Heavy
Electricals Ltd. v. M. Chandershekhar Reddy39 held: "there is no such thing
as unlimited discretion vested with any judicial or quasi-judicial forum. An
unlimited discretion is a sworn enemy of constitutional guarantee against
discrimination. An unlimited discretion leads to unreasonableness. No
authority, be it judicial or quasi-judicial has any power to exercise discretion
vested in it unless the same is on justifiable grounds supported by acceptable
material and reasons thereof. In this case the labour court, while exercising
its discretion recorded that though the confidence of the employer in the
employee is shaken still it gave three reasons for exercising its discretion: (i)
There is no earlier instance of misconduct; (ii) he takes part in cultural
activities; (iii) punishment of dismissal is harsh. The decision of the labour
court was upheld by the high court in appeal. The apex court reversing the
order of reinstatement by the labour court and the high court opined that by
no stretch of imagination either the extenuating circumstances recorded by the
labour court or exercise of discretion could be termed either as reasonable or
judicious. 40
Elaborating on the ambit of the power of judicial review of administrative
discretion which is based on subjective satisfaction, the apex court held that
discretionary powers of an administrative authority can be subject to judicial
review on two main grounds: (i) failure to exercise discretion; (ii) excess or
abuse of discretion. These two classes are not mutually exclusive. Thus, an
authority in which discretion is vested can be compelled to exercise discretion,
but not to exercise it in a particular manner. The court has to find out if the
administration has left out relevant factors or taken into account irrelevant
factors. The decision must be within the four corners of law and must be
reasonably exercised. The decision must not be one which no sensible man
could have reasonably arrived at. Having regard to the above principles, the
authority must act in a bona fide manner. The decision could be one of many
choices but it is for the authority to decide upon the choice and not for the
court to substitute its views; however, a little play in the joints is certainly
permissible while dealing with the subjective satisfaction.41

X PROMISSORY ESTOPPEL

Estoppel as a rule of equity to avoid injustice and infuse fairness in the

administration has now gained new dimension designated as 'promissory
estoppel' by the courts. All the cases right from Indo Afghan Agencies42 to the
present43 have established this doctrine firmly in administrative law. Doctrine
of promissory estoppel applies even though the case would not fall within the

39 (2005)2 SCC 481 at 486.

40 Ibid.
41 State of NCT of Delhi v. Sanjeev, (2005) 5 SCC 181.
42 AIR 1968 SC718.
43 Howrah Municipal Corpn. v. Ganga Rope Co., (2004) 1 SCC 663.

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Vol. XLI] Administrative Law 13

ambit of section 115 of the Evidence Act. Elaborating the scope of the
doctrine in Bannari Amman Sugars Ltd. v. CTO44 the apex court held that no
vested right as to tax exemption is acquired by a person who is granted
concession by the government. If any concession is given by the government
it can be withdrawn at any time and no time limit should be insisted upon
before it is withdrawn. The court clarified that the rule of promissory estoppel
can be invoked by the industry if on the basis of representation made by the
government the industry was established to avail the benefit of the exemption.
Though it is firmly established that the government may change its policy at
any time because public interest is always considered superior to private
equity, however, the withdrawl of representation / promise which induced a
person to change his position to his disadvantage must not be arbitrary,
unreasonable and must satisfy the requirements of articles 14 and 19 of the
Constitution. Reasonableness of restriction is to be determined in an objective
manner and from the standpoint of interest of the general public. A restriction
cannot be said to be unreasonable because it operates harshly in a given case.
In order to determine whether the change of policy is unreasonable or not, the
court must see the nature of the right infringed, underlying purpose of the
restriction imposed, the extent of urgency of the evil sought to be remedied,
the disproportion of the imposition, and prevailing conditions at a given time.
The court opined that canalization of a particular business in favour of even
a specified individual is reasonable where interest of the country is concerned
or where business affects the economy of the country. The Supreme Court
further elucidated that in order to invoke the doctrine of promissory estoppel,
clear, sound and positive foundation must be laid by the party invoking the
doctrine. Mere bold assertion without supporting material would not attract the
doctrine simply because the party has altered its position relying on
government assurance. The courts are bound to consider all aspects including
the results sought to be achieved and the extended public good.

XI RES JUDICATA

Principle of res judicata is based on the need of giving finality to judicial

decisions. This principle which prevents the same case being litigated twice
is of general application and is not limited by the specific words of section 11
of the Civil Procedure Code in this respect. Res judicata applies also between
two stages in the same litigation to the extent that a court whether the trial or
appellate having at an earlier stage decided a matter in a way will not allow
the parties to reagitate the matter again at a subsequent stage of the same
proceedings. Taking a long stride in the same direction the apex court in U.P.
State Road Transport Corp. v. State of U.P.45, held that once it has decided
in two earlier decisions that the draft scheme of nationalization of certain road
routes under section 100 (4) of the Motor Vehicle Act, 1988 has not lapsed,

44 Supra note 38.

45 (2005) 1 SCC 444.

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it was not open to the high court to reopen the matter again in a writ
proceeding and hold contrary to the decision of the apex court. This decision
thus, concludes the controversy that reopening of the same issue by the high
court or any court or tribunal and recording a contrary finding is a clear
violation of the principle of res judicata which has been now finally and
firmly established itself in writ jurisdiction.

XII PUBLIC INTEREST LITIGATION

Public Interest Litigation (PIL) as a strategy to reinforce rule of law in

administrative process is hailed as a unique innovation of judicial
statesmanship. However, the Supreme Court expressed its anguish at the
manner in which a very useful strategy of reaching justice to the disadvantaged
sections of the society on equal basis is being misused by unscrupulous
litigants for everything except genuine public interest for which it was
designed. D.N. Thaware v. State of Maharashtra,46 thus, certainly is a sad
reflection of the misuse of PIL when a lawyer filed it to blackmail people and
was caught red-handed accepting 'blackmailing' money.
Explaining the meaning of 'public interest' which is at the heart of PIL the
court quoted with approval the definition as given in Stroud's Judicial
Dictionary,47 which lays down that public interest or general interest matter
does not mean that which is interesting or gratifying curiosity or a love of
information or amusement, but that in which a class or the community have a
pecuniary interest or some interest by which their legal rights or liabilities are
affected.
Giving further guidelines to the courts for entertaing PIL, the apex court
opined that besides 'public or general interest' which must be present in the
petition, the court has to be satisfied about (a) the credentials of the applicant;
(b) prima facie correctness or nature of information given by him; (c) the
information being not vague or indefinite. The information should show
gravity and seriousness involved. The court then should strike a balance
between two conflicting interests: (i) nobody should be allowed to misuse the
judicial process by making wild and rackless allegation besmirching the
character of others; (ii) avoidance of public mischief to avoid mischievous
petitions seeking to assail, for oblique motives, justifiable executive actions;
(iii) in such cases court cannot be liberal, (iv) court must watch that under the
guise of redressing a public grievance, it does not encroach upon the sphere
reserved by the Constitution to the executive and the legislature.41a The apex
court emphasised that the court must be ruthless while dealing with imposters
and busybodies or meddlesome interloper's impersonating as public spirited
holy men who masquerade as crusaders of justice and pro bono publico. The
court had earlier emphasised that in situations where serious questions of law

46 (2005) 1 SCC 590.

47 Vol 4, ed. 4.
Ala Supra note 46 at 596.

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are involved, like the one in service matters, PIL should not be allowed.48

XIII JUDICIAL REVIEW OF ADMINISTRATIVE ACTION

Judicial review is central in dealing with the malignancy in the exercise

of power. However, in the changed circumstances of socio-economic
development in the country the court is emphasizing 'self-restraint' in the
interest of administrative flexibilities. Trend of judicial decisions indicate that
unless administrative action is violative of law or the Constitution, or is
arbitrary or mala fide, courts should not interfere in administrative decisions.
Moving in this direction, the apex court in Sidheswar Sahakari Sakhar
Karkhana Ltd. v. Union of India49 was of the opinion that normally the court
should not interfere in policy matter which is within the purview of the
government unless it is shown to be contrary to law or inconsistent with the
provisions of the Constitution. Therefore, it held that grant of concession,
exemption, incentive and rebate is a matter of policy with the government
under the Central Excise Act, 1944, and hence, court shquld not interfere
unless found violative of law and the Constitution. The court was quick to add
that this principle of judicial review is not a matter of exclusion of the power
of judicial review but of judicial "self-restraint".
Reiterating the same principle of judicial review of administrative
action50 the court held that how equitably tax could fall on different persons
is not for the court to decide. It is a policy matter within the purview of the
legislature. If the tax is based on reasonable classification founded on an
intelligible differentia having rational relation to the object of the tax, court's
interference is not called for.51 The court even went to the extent of saying
that even a wrong decision of a business corporation is not open to challenge
unless the same is mala fide. Thus, doctrine of fairness cannot be invoked to
the extent of disabling the corporation from recovering the debt while not
insisting upon the borrower to honour his commitment. The court opined that
reasonableness of action has to be tested against the dominant consideration
to secure the best price by public auction or tender or negotiation. In
commercial matters, therefore, the courts should not risk their judgment for
the judgment of the bodies to which that task is assigned. 52 The apex court
followed the same principle of judicial review in Assn. of Registration Plates
v. Union of India.53 In this case the government had prepared a scheme of high
security number plates for automobiles. Tender issued for implementation of
the scheme contained stringent conditions to ensure fail-safe and sustainable
delivery of plates. Capacity and capability were the underlying considerations

48 Duryodhan Sahu (Dr.) v. Jatinder Kumar Mishra, (1998) 7 SCC 273.

49 (2005) 3 SCC 369.
50 Mohan Das Hegde v. State of Karnatka, (2005) 4 SCC 64.
51 See also State of Tamil Nadu v, M. Krishnappam, (2005) 4 SCC 53.
52 Karnataka State Investment and Development Corpn. v. Cavalet India Ltd., (2005) 4 SCC
456.
53 (2005) 1 SCC 679.

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16 Annual Survey of Indian Law [2005

for the tender conditions. These conditions were challenged by those who did
not fulfil these conditions on the ground of arbitrariness. Elaborating the
extent of judicial review in such cases, the apex court held that article 14 of
the Constitution prohibits government from arbitrarily choosing a contractor
at will and pleasure. Government has to act fairly, reasonably and in public
interest in awarding contracts. At the same time no person can claim a
fundamental right to carry on business with the government. All that he can
claim is that in competing for the contract he should not be unfairly treated
and discriminated to the detriment of public interest. Therefore, in dealing
with the contracts of the government the court must be prepared to enforce
standards of fairness. However, in the absence of any evidence of mala fide
on the part of the authority showing that the conditions were tailor-made to
promote certain parties, judicial interference is uncalled for. The court made
it amply clear that if two alternatives are available to the authority, the court
should not dictate the choice because on the subject of business management
expertise is available with the state authorities and not with the court. On the
basis of these considerations, the apex court did not find anything arbitrary or
discriminatory which deserved interference with conditions of the tender.
The Supreme Court has now firmly established that 'impracticability' or
'inadequacy' of a notified action is valid ground for judicial review. 54 In an
earlier decision 55 the court had held that a notified action may be quashed if
nothing has been done beyond publishing the notification to effectuate the
concerned statute. However, in a situation where only partial infrastructure/
facilities/convenience have been provided, the court instead of quashing the
notified action may issue time-bound directions for providing necessary
facilities. In the light of above statement, staying of the operation of
notification of the government to implement the Maharashtra Act 15 of 1987
due to inadequacy of infrastructure (court rooms, appointment of judges etc)
by the high court was upheld by the Supreme Court. Though high court is
generally not permitted to decide whether sufficient and adequate reasons
existed for bringing the law into operation, yet in case of dealing with the
administration of justice, high court may issue directions because of its
judicial and administrative control over subordinate courts. The clear message
which the court is trying to give is that before taking any measure which
increases the burden of the courts, adequacy of infrastructural facilities
available must form an essential part of the planning.
It is a settled law that in the exercise of power of judicial review courts
do not interfere with the quantum of punishment awarded to the delinquent
employee by the authority unless it is unduly harsh, vindictive or generally
disproportionate. However, even in such cases judicial discretion is not
unlimited and must be exercised judiciously. Reiterating its earlier position in
Bharat Heavy Electricals Ltd v. M. Chandershekhar Reddy56 the apex court

54 Jamshed N. Guzdar v. State ofMah., (2005) 2 SCC 591.

55 Ramesh Chandra v. State ofU.P., (1981) 2 SCC 722.
56 Supra note 39.

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held that without a finding, based on record, that the fact of loss of confidence
or quantum of punishment is so harsh as to be vindictive or shockingly
disproportionate, interference with the award of punishment in a domestic
enquiry is impermissible. In this case an employee had taken a house building
loan from the company by depositing the title deeds. However, later on by
forging the signature of the concerned authority he took back the title deeds
and tried to sell the property. Domestic enquiry found the employee guilty and
thereafter, his services were terminated on the ground of loss of confidence in
the employee. Labour court, which heard the dispute, nevertheless, passed
order for reinstatement on the ground that it was the first misconduct and that
the employee was a cultural activist and took part in cultural activities of the
company. In appeal, the high court agreed with the decision of the labour
court. Reversing the decision, the apex court held that taking part in cultural
activities and the fact that it was the first instance of misconduct could not be
a sufficient ground germane to the records for altering the punishment
awarded by the company where there was a complete lack of faith and
confidence in the employee. Approach of the court clearly seems to be
'discipline oriented' which can provide for management flexibilities in this age
of economic liberalization as a principle of judicial review of administrative
action.
Article 136 of the Constitution which is in the nature of a residuary
reserve power of judicial review in the area of public law lays down that the
Supreme Court may, in its direction, grant special leave to appeal from any
judgment, decree, determination, sentence or order in any cause or matter
passed or made by any court or tribunal. Since the court has power to grant
special leave to appeal against the decisions of administrative tribunals and
other agencies, it is now regarded as an important mode of judicial review of
administrative adjudicatory actions. In Manju Verma (Dr.) v. State ofU.P.51
an important question which claimed judicial response was whether an order
passed by the Chief Justice of the Allahabad High Court on the administrative
side under para 14 of United Provinces High Courts (Amalgamation) Order,
1948 transferring a case from Lucknow bench to Allahabad bench of the high
court is appealable under article 136 of the Constitution? Respondent, in this
case, raised a preliminary objection before the Supreme Court that appeal is
not maintainable as the order of the chief justice is administrative passed on
the administrative side and thus it is not a judicial or quasi-judicial order
passed by a court or tribunal which is a requirement of article 136 for filing
appeal. Rejecting the contention, the court held that article 136 confers broad
powers on the Supreme Court to grant special leave to appeal from any order
provided two conditions are present: (i) the proposed appeal must be against
a judicial or quasi-judicial and not purely executive or administrative order;
(ii) the determination must have been made or passed by a court or a tribunal.
Keeping in view these two jurisdictional conditions, the court held that the

57 Supra note 3.
58 See generally Durga Shanker Mehta v. Thakur Raghuraj Singh, AIR 1954 SC 520.

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18 Annual Survey of Indian Law [2005

order passed by the chief justice was quasi-judicial as there was lis between
two contesting parties making rival claims and the statutory authority under a
statutory provision was required to decide a dispute, which made the authority
quasi-judicial authority.58 Replying to the question whether the chief justice
in this case could be said to have acted as a 'court' or 'tribunal', the court
opined that the chief justice was acting as a 'tribunal' if not as a court.
Clarifying further, the apex court made it clear that the expression 'tribunal'
as used under article 136 does not mean something as 'court' but includes,
within its ambit, all adjudicating bodies, provided they are constituted by the
state and are invested with judicial as distinguished from purely administrative
or executive functions except those established under any law relating to
armed forces. 59 Thus, the apex court concluded that the order of the chief
justice passed under para 14 of the United Provinces High Courts
(Amalgamation) Order, 1948 to transfer a writ from Lucknow bench to
Allahabad bench of the high court, though passed on the administrative side,
was subject to the jurisdiction of the Supreme Court under article 136 of the
Constitution.
Explaining the nature and scope of judicial review under article 136
further, the court made it clear that the jurisdiction of the court is plenary
which can be exercised in spite of other specific provisions for appeal
contained in the Constitution or other laws. It opined that article 136 confers
on the Supreme Court special or residuary powers which are exercisable
outside the purview of the ordinary laws in cases where the needs of justice
demand interference by the apex court and this jurisdiction cannot be taken
away by any legislation subordinate to the Constitution.60
In order to make writ jurisdiction more 'people centric' by extending its
long arms, the Supreme Court maintained that a person in the same trade has
a right to file writ for cancellation of licence granted to another person in
violation of the provisions of the law and the rules, because it will have impact
on his trade and he will suffer civil consequences. In this case61 the appellant
who was running a cinema had filed a writ petition against the grant of licence
to another person in violation of the law and rules for opening a video parlour.
The high court declined the writ on the ground of locus standi because the
appellant had not suffered any damage or no legal right of his was violated.
Thus, by expanding the writ jurisdiction the apex court has provided enlarged
protection to the right of people and also infused the administration with the
culture of fairness.
Aristotle once said that generalities of law falter before the specifics of
life. Thus, courts always try to balance generalities with specifics in order to
meet the needs of the hour. In State of NCT of Delhi v. Sanjeev62, the apex
court went out of its way to balance the competing interests of the individual

59 See generally Indian National Congress (1) v. Institute of Social Welfare, (2002) 5 SCC
685.
60 Mahindra Saree Emporium (II) v. G. V. Srinivas Murthy, (2005) 1 SCC 481.
61 Sai Chalchitra v. Commr. Meerut Mandal, (2005) 3 SCC 683.
62 Supra note 41.

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Vol. XLI] Administrative Law 19

and the society in an objective manner. In this case the respondent was
engaged in several illegal activities and this was causing concern and alarm to
the residents. Therefore, acting under section 47 of the Delhi Police Act, an
externment order was passed for a period of one year. This order was
challenged before Lt. Governor of Delhi who rejected the appeal, hence writ
before high court. Under section 47 of the Delhi Police Act, there are three
options available to the authority: (i) to direct such person to conduct himself
as deemed necessary to prevent violence and alarm; or (ii) to direct him to
remove himself outside any part of Delhi; or (iii) to direct him to remove
himself outside the whole territory of Delhi. In an earlier case, 63 the High
Court of Delhi had held that the authority while passing an order under section
47 must indicate as to why one of the three options is being adopted. Relying
on this decision, the high court held that though one of the options was
adopted, yet there was no clear material or elaborate reasoning indicating the
grounds for selecting an alternative option, hence appeal before the apex
court. Though by the time appeal was heard the period of externment was
over, yet the court deemed it proper to decide the matter in order to clarify the
doubtful area of judicial review in view of some divergent views of the high
courts.
Disposing the appeal, the court held that material justifying externment
can also throw light on options to be exercised. If referring to the materials,
the authority directing externment also indicates the option it thinks to be
proper and appropriate, it cannot be said to be vitiated, even though there is
no specific reference to the other options. It is a matter of legitimate inference
that when considering the material to adjudicate on the question of desirability
of externment options are also considered as which one of the three options
can be adopted. There cannot be any hair-splitting in such matter.64 The court
clarified that where the action is based on subjective satisfaction of the
authority, the court will interfere only when satisfaction recorded is
demonstrably perverse, based on no clear evidence, misreading of evidence,
or which a reasonable man could not form, or that the person concerned was
not given due opportunity resulting in prejudice. Thus, objectivity is inbuilt
in the subjective satisfaction of the authority.
Elaborating on the scope of judicial review of administrative action the
court opined that it is limited to consideration of legality of decision making
process and not legality of order per se. Mere possibility of another view
cannot be a ground for interference. In case of an administrative action court
will not interfere unless the decision suffers from illegality, irrationality and
procedural impropriety. It must be specifically established that in which
specific category the impugned action falls. Mere assertion in that regard will
not be sufficient. Illegality and procedural impropriety as ground of judicial
review are easy to ascertain but to characterize an administrative decision as
'irrational' the court emphasized that it has to hold on material, that it is a

63 Blum Singh v. State of Delhi, (2002) 2 SCC 1132.

64 Supra note 1 at 194.

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20 Annual Survey of Indian Law [2005

decision "so outrageous" as to be in total defiance of logic or moral standards

that no reasonable person could come to that conclusion. However,
proportionality as a ground of judicial review was left to the future to give
administration a lease of flexibility. The apex court emphasized that the
exercise of administrative power, will be set aside if there is manifest error in
the exercise of such power, or the exercise of power is manifestly arbitrary.
If the power has been exercised on a non-consideration or non-application of
mind to relevant facts, the exercise of power will manifestly be regarded as
erroneous. Furthermore, if the power is exercised on the basis of non-existent
facts or which are patently erroneous such exercise of power will be
vitiated.65 Asserting the power of judicial review, the court emphasized that
doctrine of immunity from judicial review is restricted to those cases or class
or classes of cases which relate to deployment of troops and entering into
international treaties etc. The distinctive features of some of the recent
decisions signify willingness of the courts to assert their powers to scrutinize
the factual basis upon which discretionary powers have been exercised. 66
However, if the administrative decision could be one of many choices open to
the authority, then it is for the authority to decide upon the choice and not for
the court to substitute its views. Nevertheless little play in the joints is
certainly permissible while dealing with the subjective satisfaction of the
administrative authority. 67
In Canara Bank v. V.K. Awasthy,6* the apex court had the opportunity of
explaining the scope and ambit of the power of judicial review of
administrative action. The court held that an administrative action if adversely
affects fundamental freedoms of articles 19 and 21 of the Constitution, then
the extent of judicial review will be extensive and the court would make
primary judgment or close scrutiny of the administrative action. Hence, the
power of judicial review will be exercised on the grounds of illegality,
irrationality, procedural impropriety and proportionality. The court will
closely scrutinize the correctness of the choice made by the administration
from amongst various alternatives available to it. Here the court will strictly
scrutinize the administrative action and would make a fair balance between the
choice made by the administration and the purpose of the law so the adverse
effects on the fundamental freedoms could be minimal. While balancing
adverse effects on fundamental freedom and the object sought to be achieved,
the court would look to the necessity, utility, rationality and proportionality
of the action.69
However, in cases where an administrative action has no adverse effect on
fundamental freedoms, the scope of judicial review of administrative action
will be limited. The court will not exercise 'close scrutiny' and would not
make primary judgment as to the choices made by the administration. In such

65 Supra note 41.

66 Id. at 191.
67 Id. at 192.
68 Supra note 26
69 ■Suora note 33

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situations judicial review will be confined to Wednesbury rules. 70 The court's

scrutiny will be confined to finding out whether the administrative action is
contrary to law and procedure, or is based on irrelevant facts, or action is
perverse, absurd and mala fide. The court would not go into the question of
'proportionality' of the administrative action and would not make judgment as
to the correctness of choice made by the authority. It will not substitute its
own judgment to that of the administrative authority unless administrative
action is so outrageous in defiance of logic and moral standards that no
sensible person, on the basis of material before him, and within the framework
of law could have reached such a conclusion.71
The apex court clarified that secondary judicial review based on
Wednesbury rules will also be made in cases where an administrative action
is challenged under article 14 of the Constitution being arbitrary as in cases
where punishment in disciplinary cases is challenged. In such situation the
question will be whether the administrative order is 'rational' or 'reasonable'
as per Wednesbury test. The power of courts would then be confined only to
a secondary role and will only have to see whether the administrator has done
his primary role, whether he has acted illegally or has omitted relevant facts
from consideration or has taken irrelevant facts into consideration or whether
his view is one which no reasonable person could have taken. If administrative
action does not satisfy these tests, it will be treated as arbitrary. In such
situation the court would not apply 'proportionality' rule as a primary
reviewing court because no fundamental freedoms are involved. Where the
court finds that Wednesbury rules are violated, it normally willrHremit the
matter to the administrator for a fresh decision on the quantum of punishment.
Only in rare cases of long delays that the court may interfere with cogent
reasons.72 The tenor of the apex court seems to suggest that in the changed
economic scenario the court is concerned with responsibility and obligations
along with rights of the working classes.

XIV CONCLUSION

Judicial role perception and performance during the period under review
pertaining to the development of an effective administrative law regime clearly
demonstrates, that within its own limitations judiciary in India is trying hard
to develop administrative law as an instrument to ensure observation of rule
of law by the administration which runs like a golden thread through the pages
of the Constitution and indisputably constitutes its basic feature and requires
that every organ of the state must act within the parameters of the law and the
Constitution. This has certainly kept alive the hope of the common man in the
democratic governance of the country. Alternative would have been disastrous
and would have carried in its deluge all the fine values of life which we all so
dearly cherish.

70 Supra note 32.

71 Id. at 226.
72 Supra note 26 at 323.

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