RELATION BETWEEN ADMINISTRATIVE LAW AND

CONSTITUTIONAL LAW

Submitted by

SHUBHAM AGARWAL (15010324324)

DOYEL BASU (15010324342)

MRIDUL DAVE (15010324349)

Supervised by

PROF. SHREE RAHUL

Symbiosis Law School

Hyderabad (India)

2017
1
 Declaration

I hereby declare that the work reported in this project report entitled “Relation between
Administrative law and Constitutional law” submitted at Symbiosis Law School,
Hyderabad is an outcome of my work carried out under the supervision of Prof Shree Rahul.
I have duly acknowledged all the sources from which the ideas and extracts have been taken.
To the best of my understanding, the project is free from any plagiarism issue.

SHUBHAM AGARWAL

DOYEL BASU

MRIDUL DAVE

Symbiosis Law School, Hyderabad

2
List of Acronyms and Abbreviations

AIR All India Reporter

FC Federal Court

SC Supreme Court

SCC Supreme Court Cases

V/Vs. Versus

SCR Supreme Court Reports

3
 List of Cases
 Ridge vs. Balwin (1964) AC 40
 Tata Iron Steel co. ltd. vs. Workmen AIR 1972 SC 1917
 Kishan Prakash Sharma vs. Union of India, (2001) 5 SCC 212
 Gwalior Rayon Silk Manufacturing Co. vs Assistant Commisioner of Sales Tax, Air
1974 SC 1660
 Delhi Municipal Corporation vs. Birla Cotton Mills, Air 1968 SC 1232
 B. Shama Rao vs. Union Territory of Pondicherry, AIR 1967 SC 1480
 Vasy Dev Singh vs. Union of India, (2006) 12 SCC 753
 Queen vs. Burah, 5 IA 178 (1878)
 Jatindra Nath Gupta vs. Province of Bihar, AIR 1949 FC 175
 Tata Cellular vs. Union of India, (1994) 6 SCC 651

 Anirudhsinhji Karansinhji Jadeja v. State of Gujarat, (1995) 5 SCC 302: 1995 SCC
(Cri) 902
 Bhavnagar University v. Palitana Sugar Mill (P) Ltd., (2003) 2 SCC 111; Capt. Sube
Singh v. Lt. Governor of Delhi, (2004) 6 SCC 440
 Associated Provincial Picture Houses Ltd. v. Wednesbury Corpn, (1947) 2 All ER
680: (1948) 1 KB 223 (CA)
 Dy. Director of Consolidation v. Deen Bandhu Rai, (1964) 4 SCR 560: AIR 1965 SC
484
 Barium Chemicals Ltd. v. Company Law Board, 1966 Supp SCR 311: AIR 1967 SC
295
 Shalini Soni v. Union of India, (1980) 4 SCC 544: 1981 SCC (Cri) 38
 Rohtas Industries v. S.D. Agarwal, (1969) 1 SCC 325

 Maneka Gandhi v. Union of India, (1978) 1 SCC 248

 State of Orissa v. Dr. Binapani Dei, (1967) 2 SCR 625: AIR 1967 SC 1269
 State of Maharashtra v. Jalgaon Municipal Council, (2003) 9 SCC 731
 H.C. Narayanappa v. State of Mysore, (1960) 3 SCR 742: AIR 1960 SC 1073
 S.N. Mukherjee v. Union of India, (1990) 4 SCC 594: 1990 SCC (Cri) 669
 Union of India v. Kannadapara Sanghatanegala Okkuta, (2002) 10 SCC 226
 Ramachandra Rao v. State of Karnataka

4
 Kilhoto Hollohan v. Zachillhu, 1992 supp (2) SCC 651

 Hari Nagar sugarmills Limited V. ShyamSunder , AIR 1961 SC 1669

 Associated Cement Co. Ltd. V P.N. Sharma, AIR 1965 SC 1595
 L. Chandra Kumar V. UOI (1997) 3 SCC 261

 P. Satyanarayana v. Land Reforms Tribunal

 G. Rajalakshmi v. Appelate Authority

 S.N. Mukherjee V. UOI (1988) 3 SCC 579.

 India General Navigation and Rly. Co. V. Workmen, AIR 1960 SC 1286.
 Jain Exports (p) Ltd. V. UOI, 2014 SCC Online Mad 4982

 Mallappa MurigeppaSajjan v. State, AIR 1980 Kar. 53

 A.P. v. Chitra Venkato Rao, (1975) 2 SCC 557: AIR 1975 SC 2151.

 State of Gujarat v. M.I. Haider Bux Imam Razvi, (1976) 3 SCC 536: AIR 1977 SC 594
 J.B. Chopra v. Union of India, (1987) 1 SCC 422: AIR 1987 SC 357.
 S.P. Sampath Kumar v. Union of India, (1987) 1 SCC 124: AIR 1987 SC 386
 L. Chandra Kumar v. Union of India (1997) 3 SCC 261, 308: AIR 1997 SC 1125, 1154

5
 Table of Contents

Serial No. Contents Page No

1. Abstract 7

2 Literature Review 8

3. Research Methodology 10

4 Research Objective 10

5. Research Questions 11

6 Chapter 1: The evolution 12

of administrative law as an
offshoot of constitutional
law

7 Chapter2: Delegated 19
legislation- constitutional
limitations

8 Chapter 3: Judicial review 24

of administrative action

9 Chapter 4: Constitutional 33
limitations on
administrative adjucation

10 Conclusion 42

11 References 43

6
 ABSTRACT

Administrative Law as a separate branch of legal discipline especially in India came to be

recognized only by the middle of the 20th Century. Today the administration is ubiquitous and

impinges freely and deeply on every aspect of an individual’s life. Therefore, administrative

law has become a major area for study and research.

Administrative law has a tremendous social function to perform. It is the body of reasonable

limitations and affirmative action parameters, which are developed, and operationalized by the

legislature and the courts to maintain and sustain the rule of law. The courts, through writs of

habeas corpus, mandamus, certiorari, prohibition and quo warranto, control administrative

action.

Droit Administratif is the French Administrative law. Administrative law is the part of law that

governs the activities of administrative groups of government like rulemaking, adjudication, or

the enforcement of a particular rigid programme. If we see the Indian system then it is still

following Anglo-Saxon system, we have no separate administrative tribunals such as Droit

Administratif of France but administrative verdicts are also reviewed by ordinary courts within

the restricted sphere of the jurisdiction. According to the French Law, it is the law whose

actions are being taken by citizens against officials for unlawful acts committed in their official

capacity are tried not by ordinary courts of law.

7
 LITERATURE REVIEW

PRINCIPLES OF ADMINISTRATIVE LAW BY M. P. JAIN 6TH EDITION

AND

ADMINISTRATIVE LAW BY I. P. MASSEY 9TH EDITION

This book has been a very essential part of my research project as the in-depth information that
I could acquire from here, I could not from any other source.

The concept of administrative law has assumed great importance in the last three decades and
has witnessed remarkable advances in recent times. It is a branch of law which is being
increasingly developed to control abuse or misuse of governmental power and keep the
executives and its various instrumentalities and agencies within the limits of their power. Also,
we may define administrative law as that branch of public law which deals with the
organization and powers of administrative and quasi-administrative agencies and prescribes
principles and rules by which an official action is reached and reviewed in relation to individual
liberty and freedom.

These books not only highlight with the topic of the evolution of administrative law as an
offshoot to constitutional law, they also talk about the difference between the administrative
law and constitutional law, the concept of Rule of law, Separation of power and Droit
Administrative that took place with respect to this concept.

These books provide a vast concept of how Delegated Legislation is related to administrative
law. Delegated Legislation is defined as that which proceeds from any authority other than
sovereign power and is therefore dependent for its continued existence and validity on some
superior or supreme authority.

Principles of Administrative Law by MP Jain and Administrative law by I. P. Massey has very
efficiently covered all the aspects of the nature, scope and growth of administrative law but
also relation between administrative law and constitutional law and has been proved to be the
most relevant source of information that I could get on this topic.

8
9
 RESEARCH METHODOLOGY AND OBJECTIVES

RESEARCH METHODOLOGY

The methodology adopted is largely analytical and descriptive. Reliance has been placed on

secondary sources like Books, Journals and Articles. The classroom discussions have been rich

with valuable pointers and gave direction to the research.

RESEARCH OBJECTIVES

1. THE EVOLUTION OF ADMINISTRATIVE LAW AS AN OFFSHOOT OF

CONSTITUTIONAL LAW

2. DELEGATED LEGISLATION: CONSTITUTIONAL LIMITATIONS

3. JUDICIAL REVIEW OF ADMINISTRATIVE ACTION: CONSTITUTIONAL

PRINCIPLES

4. CONSTITUTIONAL LIMITATIONS ON ADMINISTRATIVE ADJUCATION:

TRIBUNALS, CONSTITUTIONAL LIMITATIONS AND POSITIONS

10
RESEARCH QUESTIONS

1. THE EVOLUTION OF ADMINISTRATIVE LAW AS AN OFFSHOOT OF

CONSTITUTIONAL LAW

I. HOW DID THE CONCEPT OF ADMINISTRATIVE LAW EVOLVED IN

INDIA?

II. HOW DID ADMIN LAW BECOME THE OFFSHOOT OF

CONSTITUTIONAL LAW?

2. DELEGATED LEGISLATION: CONSTITUTIONAL LIMITATIONS

I. HOW DELEGATED LEGISLATION RELATED TO ADMINISTRATIVE

LAW AND CONSTITUTIONAL LAW?

3. JUDICIAL REVIEW OF ADMINISTRATIVE ACTION: CONSTITUTIONAL

PRINCIPLES
I. JUDICIAL CONTROL ON EXECUTIVE POWER VIZ. (a) STATUTORY (b)
NON- STATUTORY
II. ROLE OF WRITS IN ADMINISTRATIVE ACTIONS
4. CONSTITUTIONAL LIMITATIONS ON ADMINISTRATIVE ADJUCATION:
TRIBUNALS, CONSTITUTIONAL LIMITATIONS AND POSITIONS
I. WHAT ARE THE LEGITIMACY OF TRIBUNALS IN THE OVERALL
JUSTICE DELIVERY SYSTEM?
II. WHETHER THE FEATURES OF “DROIT ADMINISTRATIF” WERE
SEEN IN INDIA DURING THE PERIOD OF SAMPATH KUMAR CASE
TO L. CHANDRA KUMAR?

11
CHAPTER 1: THE EVOLUTION OF ADMINISTRATIVE LAW AS AN OFFSHOOT
OF CONSTITUTIONAL LAW

I. HOW DID THE CONCEPT OF ADMINISTRATIVE LAW EVOLVE?

Administrative Law as a separate branch of legal discipline especially in India came to be

recognized only by the middle of the 20th Century. Today the administration is ubiquitous and
impinges freely and deeply on every aspect of an individual’s life. Therefore, administrative
law has become a major area for study and research.1

It is difficult to evolve a satisfactory definition of administrative law so as to define its nature,

scope and content. There are many formulations in the field, but none of them are
satisfactory, either they are too broad or too narrow, either they include much more than what
properly should be included within the scope of the subject, or they leave out some essential
aspect or element of administrative law.

Administrative Law has been characterized as the most “outstanding legal development of the
twentieth century.”2 That does not mean that there was no administrative law before the
twentieth century in our country. Administrative Law is related to public administration, it
should be deemed to have into existence in one form or another in the country having some
form of Government.

In India, Administrative law can be traced to the well- organized and centralized administration
under the Mauryas and the Guptas, several centuries before the Christ, following through the
administrative system of the Mughals to the administration under the East India Company, the
precursor of the modern administrative system.3

In modern times, the rapid growth of Administrative Law is the direct result of the growth of
administrative powers and functions. This development can partly be attributed to the critical

1
The first seminar on administrative law was organized by the Indian Law Institute, New Delhi in
December,1957 right after its inauguration. Since then the major area of activity of the Institute has been
administrative law.
2
VANDERBILT’S INTRODUCTION TO SCHWARTZ, FRENCH ADMINISTRATIVE LAW AND THE COMMON LAW
WORLD xiii (1954)
3
SHAMASASTRY, KAUTALYA’S ARTHASASTRA 56-75 (1961); KANE, HISTORY OF DHARMASHASTRA, VOL 1, p.
201 (1968) JAYASWAL, MANU AND YAJNAVALKYA 9, 92-101 (1930); MAJUMDAR, PROBLEMS OF PUBLIC
ADMINISTRATION IN INDIA 11 (1952); A. K. CHANDA, INDIAN ADMINISTRATION 15-42 (1965).

12
international and internal situation creating a sense of insecurity which compels the
Government to acquire vast powers to provide for defence and internal security of the
country.

The ruling political gospel of the nineteenth century was laissez faire which manifested itself
in the theories of individualism, individual enterprise, and self-help.4 The philosophy
envisages minimum Government control, maximum free enterprise and contractual freedom.

The State was characterized as the ‘law and order” state and its role was conceived to be
negative as its interest in the extended primarily to defending the country from external
aggression, maintaining law and order within the country, dispensing justice to its subjects
and collecting a few taxes to finance these activities.5

There existed in India from very early times a system of both administrative legislation and
adjudication. The object of early British Administration was to maximize the profit, and for
this efficiency in the administration was the chief necessity. The executive had overriding
power in matters of administration of justice. However, the establishment of Supreme Court
at Calcutta in 1774 under the provisions of Regulating Act, 1773 inaugurated an era in
independent judicial administration. But with the passage of the Act of settlement, 1781, the
era came to an end and all the later development in the judicial system during the company’s
time worked to the detriment of the native population.6

From the Battle of Plassey in 1757 until independence one significant advantage that the
Indian administration had from a centralized but undemocratic form a government, was the
facility to make laws. During that period, the executive was invested with such wide powers
to make rules as a modern democratic legislature cannot even imagine. Even prior to the
famous Code of Civil and Criminal Procedures known as Cornwallis Code of 1793,
Elphinstone Code of 1827 and many other regulations were in operation. This regulation laws
aimed mainly at the regulations of the powers of the administration and their control. Thus,
expansion of the administrative power and provisions of some kind of control went hand in
hand. For instance, Regulation 10 of 1822 which codified the law regarding excise on salt,
opium, and general custom dealt mainly with the powers of administrative agencies (salt

4
DICEY, LAW AND PUBLIC OPINION IN BRITAIN 126-210 (1962); JETHRO BROWN, THE UNDERLYING PRINCIPLES
OF MODERN LEGISLATION 156-280 (1971)
5
Principles of Administrative law 6th edition p. 2
6
I. P. Massey 9th edition

13
chowkies) and also the control of these agencies. It made provisions regarding power of
confiscation, procedure in the proceeding confiscation and the control to be exercised by the
courts. Section 108 of the Regulation of 1822 reminds of one of the provisions of the
Administrative Procedure Act, 1946 when administrative agencies were required to record
facts, evidence and the decision. Judicial relief was made available only after the exhaustion
of the administrative remedies. The courts, though had ample powers to set aside an
administrative action, yet paid great respect and attention to their decisions.7

Till the end of the British rule in India, the Government was concerned with the most primary
duties only, and the functions of a welfare state were not discharged. However, increasing
and rapid strikes in the fields of communication and transport in the west resulted in the need
for control of administrative agencies through regulatory bodies and tribunals like the Inter-
State Commerce Commission in the US and the Railways and Canal Commission in England.
Finally, the two World Wars brought in a plethora of administrative agencies exercising
control over almost every aspect of individual life. 8

Some of the reasons for the evolution of the administrative law are:

 Changing functions of the State

 Intensive form of the Government
 Inadequacy of legislative process
 Inadequacy of judicial process
 Growth of Science and Technology
 Establishment of Regulatory agencies
 Scope for experimentation
 Discretionary powers
 Preventive measure

Lord Ried said: "growth of Administrative Law and development in recent times is done to
the fact that in dealing with new types of cases for courts have had to grope for solutions and
have found that old powers, rules, and procedures are largely inapplicable to cases which they
were never designed or intended to deal with."9

7
Administrative law by I.P. Massey p. 12 9th edition
8
Administrative law by I.P. Massey 9th Edition
9
Ridge vs. Baldwin, [1964] AC 40

14
The Constitution aims at establishing a sovereign socialist secular democratic republic in
India so as to secure to all its citizen, inter alia, social, economic and political justice.10

Administrative law becomes that body of reasonable limitations and affirmative action
parameters which are developed and operationalized by the Legislature and the Courts to
maintain and sustain a Rule of Law society. Thus, four basic bricks of the foundation of any
administrative law may be identified as: (i) to check abuse or detournment of administrative
power; (ii) to ensure to citizens an impartial determination of their disputes by officials (iii) to
protect them from unauthorized encroachment on their rights and interests;11 (iv) to make
those who exercise public power accountable to the people.

The definition given by Dr. F.J. Port was impossible to attempt and cover the entire range of
administrative law that is the reason the first book bearing the title Administrative Law in
England in 1929 did not venture to define the term.12

Early English writers did not differentiate between administrative law and constitutional law
and therefore, the definition they attempted was too broad and general.

According to Sir Ivor Jennings, Administrative law is the law relating to administration. It
determines the organization, powers, and duties of administrative authorities.13 This
formulation does not differentiate between administrative and constitutional law. It lays entire
emphasis on organization, power and duties to the exclusion of the manner of their exercise.

Dicey, like Ivor Jennings, belongs to that group of English writers who did not recognize the
independent existence of administrative law. According to Dicey’s formulation,
administrative law relates to that portion of the nation’s legal system which determines the
legal status and liabilities of private individuals in their dealings with public officials and
specifies the procedure by which those rights and liabilities are enforced.14

According to Kenneth Culp Davis the American approach to Administrative law is the law
concerning the powers and procedures of administrative agencies, including especially the

10
Preamble to the Constitution.
11
Julius stone: SOCIAL DIMENSIONS OF LAW AND JUSTICE, (1966), P. 711. There the reference is to judicial
review
12
Principles of Administrative Law by M. P. Jain (6th edition)
13
Jennings: LAW AND THE CONSTITUTION, p. 217
14
Dicey: LAW OF THE CONSTITUTION, p. 329

15
law governing judicial review of administrative action. Davis says that the emphasis of
administrative law is on procedures for formal adjudication and for rule making. It also
studies such matters as investigating, prosecuting, negotiating, settling, or informally acting.15

Prof. Upendra Baxi thus lays special stress on the protection of the ‘little man’ from the
arbitrary exercise of public power.16 According to him, administrative law is the study of
pathology of power in a developing society.

For our purposes, we may define administrative law as that branch of public law which deals
with the organization and powers of administrative and quasi-administrative agencies and
prescribes principles and rules by which an official action is reached and reviewed in relation
to individual liberty and freedom.17

15
Principles of Administrative law by M. P. Jain (6th edition) p. 9
16
Introduction by Upendra Baxi.
17
Administrative law by I. P. Massey (9th edition) p. 4

16
 II. HOW DID ADMINISTRATIVE LAW DIFFERENT FROM THAT OF
CONSTITUTIONAL LAW?

Constitutional law and administrative law are parts of the public law. While constitutional
law is anti-majoritarian, administrative law is anti-authoritarian. In every constitutional
democracy, power is limited by express or implied constitutional limitations and values. In
administrative law exercise of constitutional power is limited by the norms and principles of
administrative law of fairness, reasonableness and justness. In this manner, administrative
law is the common law of the constitution which fills the constitution in the same manner as
equity filled the law in Britain. Administrative law makes constitutional governance public
centric and the state incrementally ethical.18

To the early English writers on Administrative law there was no difference between
Administrative law and Constitutional law. Therefore, Keith observed:

“It is logically impossible to distinguish administrative from constitutional law and all
attempts to do so are artificial”.19

However according to Holland, the constitutional law describes the various organs of the
government at rest, while administrative law describes them in motion.20 Therefore according
to his view, the structure of legislature and the executive comes with in the purview of the
constitutional law but their functioning comes within the sphere of administrative law.
Maitland, however, does not agree with this classification for, in that case, powers and
prerogatives of the Crown would be relegated to the arena of administrative law. 21

According to another view,22 administrative law deals with the organization, functions,
powers and duties of the administrative authorities while constitutional law deals with the
general principles relating to the organization and powers of various organs of the State and
their mutual relationships and relationship of these organs with the individual. In other words,
constitutional deals with fundamentals while administrative law deals with the details. It may
also have pointed out that constitutional law deals with the rights and administrative law lays

18
Administrative law by I. P. Massey 9th edition p. 15
19
Administrative law by I. P. Massey 9th edition
20
Holland: CONSTITUTIONAL LAW OF ENGLAND FIRST EDITION, p.506
21
Maitland: CONSTITUTIONAL HISTORY OF ENGLAND, (1908), p.526
22
Jennings, the Law and the Constitution (5th Edition), p. 217

17
emphasis on public law. However, a dividing line between constitutional law and
administrative law is a matter of convenience because every student of administrative law has
to study some constitutional law.23

In countries which have written constitutions, the difference between constitutional law and
administrative law is not so blurred as it is in England. In such countries, the source of
constitutional law is the Constitution while the source of administrative law may be statutes,
statutory instruments, precedents and customs. Whatever may be the arguments and counter-
arguments, the fact remains that today administrative law is recognized as a separate,
independent branch of the legal discipline, though at times the disciplines of constitutional
law and administrative may overlap. The correct position seems to be that if one draws two
circles of administrative law and constitutional law, at a certain place they may overlap and
this area may be termed as the “watershed” in administrative law.24

In India, in the watershed one can include the whole control mechanism provided in the
Constitution for the control of administrative authorities, i.e. Articles 32, 136, 226, 227, 300
and 311. It may also include the study of those administrative agencies which are provided
for by the constitution itself, i.e. Inter-State Water Dispute Authority, Article 262; Public
Service Commissions, Article 315; and Election Commission, Article 324. It may further
include the study of constitutional limitations on delegation of powers to the administrative
authorities and also those provisions of the Constitution which place fetters on administrative
action, i.e. fundamental rights.25

23
Benjafield and Whitmore, Principles of Australian Administrative Law (4th Edition)
24
Administrative law by I.P. Massey p. 15-17 9th Edition
25
Ibid

18
CHAPTER 2: DELEGATED LEGISLATION: CONSTITUTIONAL
LIMITATIONS

I. HOW DELEGATED LEGISLATION RELATED TO ADMINISTRATIVE

LAW AND CONSTITUTIONAL LAW?

If the legislature were to attempt enacting comprehensive laws including not only policies but
all necessary details as well, its work load would become so heavy that it may not be able to
enact the quantity of law on diverse subject which the public demands of it and which only
legislature can enact. It is therefore, essential to free legislature from the burden of formulating
details so that it can better devote its time to the consideration of the essential and policies.26

The Parliament and the State legislatures have neither the time nor expertise to deal with
technical and situational intricacies. During the laissez faire era, when government discharged
only limited functions, the legislature could possibly enact all legislature that is needed, but
today it cannot cope with all the legislative walk by itself unaided. A method to economize
legislative time is delegated legislation.27

The term “delegated legislation” is difficult to define. However, if defined in a simple way,
delegated legislation refers to all law making which takes place outside the legislature and is
generally expressed as rules, regulations, bye-laws, orders, schemes, directions or notifications,
etc. in other words, when an instrument of a legislative nature is made by an authority in
exercise of power delegated or conferred by the legislature, it is called subordinate legislation
or delegated legislation.28 Salmond defines delegated legislation as “that which proceeds from
any authority other than the sovereign power and is, therefore, dependent for its continued
existence and validity on some superior or supreme authority.”29

The delegation of legislative power is permissible only when the legislative policy is
adequately laid down and the delegate is empowered to carry out the policy within the
guidelines laid down by the legislature.30

26
Principles of administrative law by M. P. Jain (6th edition)
27
Principles of administrative law by M. P. Jain (6th edition) p. 46
28
Halsbury’s law of England, vol. 44 (4th edition 98i-84)
29
Salmond, Jurisprudence 12th edition
30
Tata Iron and steel co ltd. vs. Workmen, AIR 1972 SC1917

19
The Supreme Court of India has mentioned the following as the dominant reasons for giving
power of delegated legislation to the Government.

 The area for which powers are given to make delegated legislation may be technically
complex so much so it may be not possible and may even be difficult to set out all the
permutation in the statute.
 The executive may require to experiment and to find out how the original legislation
was operating and therefore to fill up all other details.
 It gives an advantage to the Executive, in the sense that a Government with an onerous
Legislative time schedule may feel tempted, to pass skeleton legislation with the details
being provided by the making of rules and regulations.31

According to the doctrine of separation of powers, the legislature cannot exercise executive or
judicial powers, and the judiciary cannot exercise the other two powers.

Excessive delegation

In course of time, through a series of decisions the Supreme court has confirmed the principle
that the legislature can delegate its legislative power subject to its laying down the policy. The
legislature must declare the policy of the law, lay down legal principles and provide standards
for the guidance of the delegate to promulgate delegated legislation, otherwise the law will be
bad on account of excessive legislation32. In applying the test of excessive delegation apart
from considering the breadth of the discretion conferred by an act to promulgate delegate
legislation, the courts also examine the procedural safeguards contained in the against misuse
of powers, as for example, laying of the ruled before the legislature, consultation, with the
interests affect. A completely unlimited blanket power where there is neither any guidance to
the delegate nor any procedural safeguards against improper exercise of power the delegate,
can be held invalid as excessive delegation.33

The question sought to be settled in the Delhi laws act case and subsequent cases was again
reopened in Gwalior Rayon after a period of 24 year since the doctrine was laid down in Delhi
laws act case. MATHEW, J., in his opinion argued that so long as Parliament retains the power
to repel the delegating provision it does not abdicate its legislative function and therefore, there

31
Principles of Administrative law by M. P. Jain p. 48 (6th edition)
32
Supra 5
33
Kishan Prakash Sharma vs Union of India (2001) 5SCC212, Para 18

20
should be no objection to delegation howsoever, broad its extend. In a large number of cases
the courts have considered the validity of various delegating provisions with reference to the
doctrine of excessive delegation. The cases have been classified from the point of view of the
nature of the power conferred under the following broad heads:

 Skeleton legislation
 Power of inclusion and exclusion
 Power of modification of statute
 Removal of difficulties
 Power to impose tax34

These categories are not mutually exclusive and have been adopted because of their most
common occurrence and for the sake of convenience to facilitate analyses of cases governed
by the same principles of excessive delegation. The truth however, remains that in practice,
Difficulties arise in applying the doctrine of excessive delegation to concrete situations and by
and large the judicial tendency to uphold the power of delegated legislation. It is only rarely
that such a power may be struck down on the ground of excessive delegation.35

Gwalior rayon silk manufacturing company vs Assistant commissioner of sales tax, in this case
section 8(2)(b) of the central sales tax act was challenged. This provision permitted the central
government to adopt the provisions of the state sales tax act. It further provided the following
two situations:

1. In case the state sales tax was less than 10%, the centre would charge tax at the rate of
10%
2. In case the state sales tax is more than 10%, then the centre will charge tax at a rate
equivalent to that of the sales tax.

It was contended that this was an instance of extensive delegation as there was no legislative
policy involved in this. The court applying the two-constitutional test that is the policy test and
abdication test held that this is not a case of excessive delegation as there was presence of
legislative policy and the threshold of the abdication test was met. The court further held that

34
Ibid
35
Ibid

21
this was done to prevent tax revision and even if the power to repeal is bested with the
legislature it does not mean that the threshold of abdication is not met.36

Delhi Municipal Corporation vs. Birla Cotton Mills- the Delhi Municipal Corporation Act
unable the Delhi Municipal corporation through a resolution to fix the rate of tax, the classes
of people to be taxed and to determine the articles to be taxed. It was contended by the Birla
cotton mills that DMC was given sweeping legislative power but the court held that the
municipal corporation was not intended only to collect taxes. Given the nature of municipal
corporations they also have the power to fix the rate of tax. Therefore, there is no excessive
delegation.37

B. Shama Rao vs. Union Territory of Pondicherry- In this case a provision of the Pondicherry
Sales Tax Act was challenged. The provision was such that the Madras Sales Tax Act would
apply to the Union Territory of Pondicherry along with amendments. The Act was notified on
1st March and came into force on 1st April. Within this time the said provision was amended to
state that the Madras Sales Tax Act will apply as amended. The court held that the phrase “as
amended” would include future amendments as well. Since there was no formulation of policy
as nature of future amendments is unknown, thus, this was a clear instance of excessive
delegation.38

Conditional legislation

During the colonial days in India, a very modest delegation of legislative power was upheld by
the courts under the rubric of “conditional legislation”. The idea behind this term is that the
legislature makes the law which is full and complete in all respects, but it is not brought into
operation immediately. The enforcement of the law is made dependent upon the fulfillment of
a condition; what is delegated to the outside agency is the authority to determine, by exercising
its own judgement, whether or not the stipulated condition has been fulfilled. Thus, in
conditional legislation, a complete law is there but its taking effect is made to depend upon the
determination of some fact or condition by an outside agency.39

36
1974 AIR 1660, 1974 SCR (2) 879
37
1968 AIR 1232, 1968 SCR (3) 251
38
1967 AIR 1480, 1967 SCR (2) 650
39
Vasy Dev Singh vs. Union of India, (2006) 12 SCC 753, para 16

22
The classic case is Queen v. Burah.40 In 1869, the legislature passed an act to remove Garo
Hills from the system of law and courts prevailing therein, and to vest the administration of
justice there in such officers as the Lt. Governor of Bengal might appoint. The law also
authorized the Lt. Governor to extend to Garo Hills any law which might be then in force in
other territories under him. The Act was to come into force on a day appoint by the Lt.
Governor. The Act was held valid by the Privy Council on the ground that the Legislature
having determined that a certain change should take place, had left to the discretion of the Lt.
Governor the time and manner of carrying the same into effect. The Legislature had exercised
its judgement as to the place, person, laws, powers, and legislated on all these things
conditionally.

Jatindra Nath Gupta vs. Province of Bihar- section 1 (3) of the Bihar Maintenance of Public
Order Act allowed the provincial Government to extend the Act for a year. The proviso to this
section empowered the provincial government to extend the act further for a year after its
expiry. There was some part of the province to which no provincial legislation applied, this
was known as “partial excluded areas”. Chota Nagpur was one of them. Therefore, the said act
was not applicable to Chota Nagpur. However, under section 92 of the Government of India
Act, 1935, the Governor would extend the application of law to a partially excluded area. The
Governor extended this Act to the territory of Chota Nagpur after it came into force. The
provincial legislature extended this act just before its expiry but the Governor did not extend
the application of the renewed act to Chota Nagpur. A few days before the expiry of the
renewed act the Governor retrospectively applied the act to the territory of Chota Nagpur.
Arrests were made in Chota Nagpur during that one year. It was contended that when the arrest
took place the act was not applicable to Chota Nagpur neither the retrospective application of
the act was permissible. So, the arrested persons had to be set free. The court held that the
power given to the Governor under section 92 is a legislative power. Had he applied the act a
year before it was done it would have been a valid exercise of legislative power. But since it
was applied as an after-thought he delegated his legislative power to the provincial
government.41

40
5 IA 178 (1878)
41
AIR 1949 FC 175

23
CHAPTER 3: JUDICIAL REVIEW OF ADMINISTRATIVE ACTION:
CONSTITUTIONAL PRINCIPLES

Administrative law has a tremendous social function to perform. It is the body of reasonable
limitations and affirmative action parameters, which are developed, and operationalized by the
legislature and the courts to maintain and sustain the rule of law. The courts, through writs of
habeas corpus, mandamus, certiorari, prohibition and quo warranto, control administrative
action.

Judicial review of administrative action is perhaps the most important development in the field
of public law in the second half of this century. In India, the doctrine of judicial review is the
basic feature of Indian Constitution. Judicial review is the most potent weapon in the hands of
the judiciary for the maintenance of the rule of law. Judicial review is the touchstone of the
Constitution. The Supreme Court and High Courts are the ultimate interpreters of the
Constitution. It is, therefore, their duty to find out the extent and limits of the power of
coordinate branches, viz. executive and legislature and to see that they do not transgress their
limits. This is indeed a delicate task assigned to the judiciary by the Constitution. Judicial
review is thus the touchstone and essence of the rule of law.

The power of judicial review is an integral part of Indian Constitutional system and without it,
there will be no government laws and the rule of law would become a teasing illusion and a
promise of unreality. The judicial review, therefore, is a basic and essential feature of the
Constitution and it cannot be abrogated without affecting the basic structure of the Constitution.
In judicial review, the court is not concerned with the merits or correctness of the decision, but
with the manner in which the decision is taken or order is made. A court of law is not exercising
appellate power and it cannot substitute its opinion for the opinion of the authority deciding
the matter.

It is a cardinal principle of Indian Constitution that no one howsoever highly placed and no
authority lofty can claim to be the sole judge of its power under the Constitution. The rule of
law requires that the exercise power by the legislature or buy the judiciary or by the government
or by any other authority must be conditioned by the Constitution. Judicial review is thus the
touchstone and repository of the supreme law of the land. In recent times, judicial review of
administrative action has become extensive and expansive. The traditional limitations have
vanished and the sphere of judicial scrutiny is being expanded. So basically, there are four

24
grounds for judicial review of administrative action that are illegality, irrationality, procedural
impropriety and proportionality.

I. JUDICIAL CONTROL ON EXECUTIVE POWERS

In Tata Cellular v. Union of India42 , the Supreme Court laid down the following basic
principles relating to administrative law:

(1) The modern trend points to judicial restraint in administrative action;

(2) The Court does not sit as a court of appeal over administrative decisions, but merely reviews
the manner in which the decisions were made;

(3) The Court does not have the expertise to correct administrative decisions. If a review of the
administrative decisions is permitted it will be substituting its own decision without the
necessary expertise, which itself may be fallible;

(4) A fair play in the joints is a necessary concomitant for the administrative functioning.

(5) However, the administrative decision can be tested by application of the Wednesbury
principle of reasonableness, and must be free from arbitrariness, bias or mala fides.

Statutory controls

In most well-developed acts creating administrative tribunals, especially those given judicial
or so called quasi-judicial powers, the course of procedure for judicial review of the
administrative decisions is fairly completely outlined in the pertinent statutes. However, the
provisions vary in important particulars both from state to state and from tribunal to tribunal.
Some statutes provide for review by the state supreme court, some of courts of original
jurisdiction with appeal to the supreme court and in the case of the federal systems particulary,
some by the intermediate appellate courts with final appeal to the highest court in the system.

In others, it is limited to questions of law only.

42
(1994) 6 SCC 651

25
Statutory controls are given in the statute (or rules or regulations made under the statute). Any
executive action in violation of the same will be declared illegal by the courts, by applying the
ultra vires doctrine.

An executive authority may also act unlawfully if it fails to perform a duty imposed upon it by
statute such as maintenance of civic services (e.g. sewerage, drainage, water supply, etc.) by
the Municipalities or other local bodies whose duty under the statute is to maintain such
services. Here also a mandamus will issue from the courts to compel such authority to perform
its statutory duty.

Where the statute delegates a power to a particular authority, that authority cannot sub-delegate
that power to another authority or person unless the statute permits such sub-delegation.

Similarly, discretion exercised by the prescribed authority on the direction of a higher authority
would be illegal.43

When the statute prescribes the manner of doing an act, the authority must do it in that manner
alone.44

Difficulty, however, arises in the matter of what is called "subjective discretion" conferred by
the statute. An instance of such subjective discretion is where the statute says that an executive
authority can take such decision "as it deems fit". Another example is where the statute says
that action can be taken or order passed where the authority has "reasonable grounds to believe"
to take that action or pass such order e.g. Section 132 of the Income Tax Act which confers
power on the Commissioner of Income Tax to order search and seizure where he has "reason
to believe" that some person is concealing his income.

NON-STATUTORY CONTROL

Some of the non-statutory controls are:

(a) The Wednesbury principle (b) Rules of natural justice (c) Proportionality (d) Promissory
estoppel (e) Legitimate expectation

43
Anirudhsinhji Karansinhji Jadeja v. State of Gujarat, (1995) 5 SCC 302: 1995 SCC (Cri) 902
44
Bhavnagar University v. Palitana Sugar Mill (P) Ltd., (2003) 2 SCC 111; Capt. Sube Singh v. Lt. Governor of
Delhi, (2004) 6 SCC 440

26
We may only consider some of these in detail.

(a) Wednesbury Principle

Up to 1947 the law in England was that the courts could interfere only with judicial or quasi-
judicial decisions and not with administrative decisions. This legal position changed after the
famous decision of Lord Greene in Associated Provincial Picture Houses Ltd. v. Wednesbury
Corpn45. in which it was said:

A person entrusted with discretion must, so to speak, direct himself properly in law. He must
call his attention to matters which he is bound to consider. He must exclude from his
consideration matters which are irrelevant to what he has to consider. If he does not obey those
rules he may truly be said to be acting unreasonably. Similarly, there may be something so
absurd that no sensible person could ever dream that it lay within the powers of the authority.

The above observation incorporates what is frequently called as the Wednesbury principle.

The courts often intervene to quash as illegal the exercise of administrative discretion on the
ground that it suffers from "Wednesbury unreasonableness".

Thus, in Dy. Director of Consolidation v. Deen Bandhu Rai46, the settlement officer rejected
an application for permission to affect an exchange of holdings on the grounds (i) that the
granting of the permission would entail considerable work on the part of officers of the
department, and (ii) that the applicants were big landholders. The Supreme Court held that
these reasons were not germane and pertinent for the rejection of the petitions.

In Barium Chemicals Ltd. v. Company Law Board47 the Secretary of the Company Law Board
issued an order under Section 237(b) of the Companies Act, 1956 appointing inspectors to
investigate the affairs of a company. Section 237(b) of the Act authorised such an appointment
to investigate the affairs of a company "if, in the opinion of the Central Government" there
were circumstances suggesting (a) that the business of the company was being conducted with
the intent to defraud its creditors, members, or any other person; (b) that the persons concerned
in the formation of the company or the management of its affairs had been guilty of fraud or

45
(1947) 2 All ER 680: (1948) 1 KB 223 (CA)
46
(1964) 4 SCR 560: AIR 1965 SC 484
47
1966 Supp SCR 311: AIR 1967 SC 295

27
misconduct towards the company or towards any of its members; (c) that the members of the
company had not given out all the information with respect to its affairs. The Supreme Court
held that before the discretion conferred by Section 237(b) of the Companies Act can be
exercised, there must exist circumstances which in the opinion of the authority suggest the
grounds set out in the statute.

Unfettered discretion would also be inconsistent with Article 19 of the Constitution which
permits only reasonable restrictions on the rights conferred by that Article. Similarly, it would
also be violative of Article 14 which prohibits arbitrariness 48 In Shalini Soni v. Union of
India49 the Supreme Court observed:

"It is an unwritten rule of the law, constitutional and administrative, that whenever a decision-
making function is entrusted to the subjective satisfaction of a statutory functionary, there is an
implicit obligation to apply his mind to pertinent and proximate matters only, eschewing the
irrelevant and the remote."

In Rohtas Industries v. S.D. Agarwal50, an investigation into the affairs of a company was
ordered under Section 237 of the Companies Act, 1956. The Company Law Board took into
account the fact that there were complaints of misconduct against one of the leading directors
of the company in relation to other company’s subject to his control for which he was being
prosecuted. The Court held that this factor was irrelevant in establishing fraud.

The Wednesbury principle is often misunderstood to mean that any administrative decision
which is regarded by the Court to be unreasonable must be struck down. The correct
understanding of the Wednesbury principle is that a decision will be said to be unreasonable in
the Wednesbury sense if (i) it is based on wholly irrelevant material or wholly irrelevant
consideration, (ii) it has ignored a very relevant material which it should have taken into
consideration, or (iii) it is so absurd that no sensible person could ever have reached to it.

"Two reasonable parents can perfectly reasonably come to opposite conclusions on the same
set of facts without forfeiting their title to be regarded as reasonable. ... Not every reasonable
exercise of judgment is right, and not every mistaken exercise of judgment is unreasonable."

48
Maneka Gandhi v. Union of India, (1978) 1 SCC 248
49
(1980) 4 SCC 544: 1981 SCC (Cri) 38
50
(1969) 1 SCC 325

28
Hence, the Wednesbury unreasonableness means "unreasonableness verging on absurdity"

Rules of Natural Justice

The rules of natural justice were originally only two viz.:

1. Audi alteram partem i.e. the person(s) to be affected by an order of the authority should be
heard before the order is passed, and

2. The rule against bias.

Subsequently, some more rules of natural justice are in the process of development e.g. that the
administrative authority should give reasons for its decisions, particularly when the decisions
affect the rights and liabilities of the citizens.

It must, however, be made clear that the rules of natural justice are flexible, and are not a
straitjacket formula.51 In exceptional cases not only can they be modified but even excluded
altogether. natural justice is not an unruly horse. If fairness is shown, there can be no complaint
of breach of natural justice.

As regards the rule audi alteram partem, up to 1964 the legal position in England was that in
judicial and quasi-judicial proceedings opportunity of hearing had to be given, but it was not
necessary to do so in administrative proceedings. This legal position changed
in Ridge v. Baldwin52 in which the House of Lords held that opportunity of hearing had to be
given even in administrative proceedings if the administrative order would affect the rights and
liabilities of the citizens. This view of the House of Lords was followed by the Supreme Court
in State of Orissa v. Dr. Binapani Dei53 and State of Maharashtra v. Jalgaon Municipal
Council54wherein it was held that administrative orders which involve civil consequences have
to be passed consistently with the rules of natural justice. The expression "civil consequences"
means where rights and liabilities are affected. Thus, before blacklisting a person he must be
given a hearing.

51
Bar Council of India v. High Court of Kerala
52
1964 AC 40: (1963) 2 All ER 66 (HL)
53
(1967) 2 SCR 625: AIR 1967 SC 1269
54
(2003) 9 SCC 731

29
It may be noted that even if the statute does not expressly require that opportunity of hearing
must be given before passing an order which affects rights and liabilities, the courts have held
that such opportunity of hearing must be given unless expressly excluded by the statute. Thus,
natural justice is an implied requirement of administrative decisions which affects rights and
liabilities.

It may be mentioned that a hearing need not always be an oral hearing. In certain circumstances,
the Administrator can only issue a show-cause notice to the party likely to be affected and on
his/her reply can pass the decision without giving a personal hearing to the parties. However,
in certain circumstances where the party may be very seriously affected the courts have insisted
that an oral hearing with opportunity of presenting witnesses and cross-examining the
witnesses on the other side must be given.

Similarly, the principle that "no man should be a judge in his own cause" disqualifies an
Administrator from giving a decision which affects the rights and liabilities, if he is biased.

It may, however, be pointed out that in H.C. Narayanappa v. State of Mysore55 the Supreme
Court observed that the Minister or officer invested with the power to hear objections to a
scheme is acting in his official capacity and unless there is reliable evidence to show that he is
actually biased, his decision will not be liable to be called in question merely because the
objections to the government scheme are heard by the government itself or by its officers.

The requirement to give reasons in administrative decisions which affect rights and liabilities
has been held to be mandatory by the Supreme Court in S.N. Mukherjee v. Union of
India56 This reduces the chances of arbitrariness on the part of the authority, as the reasons
recorded by him are subject to judicial scrutiny by the higher courts or authorities.

It must also be mentioned that there are certain administrative matters which are inappropriate
for judicial review. One of these is policy decisions of the government or of the executive
authority which ordinarily should not be interfered with by the courts unless they are clearly
violative of the statute or shockingly arbitrary, Union of India v. International Trading Co. etc.
In the instant case, the facts were that the Central Government had initially decided to locate
the headquarters of South Western Railways at Bangalore. Later it was decided to locate it at

55
(1960) 3 SCR 742: AIR 1960 SC 1073
56
(1990) 4 SCC 594: 1990 SCC (Cri) 669

30
Hubli, and this decision was challenged. The Supreme Court held that it was a policy decision
and hence the Court cannot interfere, even if the decision was political57

Similarly, maintenance of law and order is an executive function, and the courts should not
ordinarily interfere with the same.

Apart from that, practically every legal system recognises certain subjects as inappropriate for
judicial review e.g. foreign affairs, declaration of wars, etc.

57
Union of India v. Kannadapara Sanghatanegala Okkuta, (2002) 10 SCC 226

31
 II. ROLE OF WRITS IN ADMINISTRATIVE ACTIONS

Five types of writs are available for judicial review of administrative actions under Article 32,
and Article 226 of the Indian Constitution.

Writ of Habeas Corpus literally means “You may have the body” this writ is issued to secure
the release of person from illegal detention or without legal justification, its deals with person
right of freedom. In simple words Court, direct the person and even authority who has detained
individual to bring such person before Court so that Court may decide the validity, justification,
jurisdiction of such detention. It is to be filed by any person.

Writ of Mandamus means “To command the public authority” to perform its public duty in
India. It is discretionary remedy even as all five writs are discretionary remedy in nature. Court
has full power to refuse to entertain a writ petition. This writ cannot be issued on President or
Governor.

Writ of Quo Warranto is an ancient common law remedy. It is used against an intruder or
usurper of public office. Literally means “What is your authority”. Court directs the concerned
person that by what authority he holds the office. The Court may expel a person from the office
if he finds that he is not entitled to obtain such office.

Writ of Prohibition is an extraordinary prerogative writ of prevention; it seeks to prevent

Courts, Tribunals, Quasi-judicial authorities and officers from exceeding their jurisdiction.
Main objective of this writ is to prevent the encroachment of jurisdiction. It is based upon the
famous saying “Prevention is better than cure.”

Writ of Certiorari deals with a method to bring the record of subordinate Court before the
superior Court for correction of jurisdiction or error of law committed by them. In simple word
if any inferior Court decided the case beyond its powers than Apex Court and High Courts
correct the error by issuing this writ. Earlier it was used for criminal matters but later on it was
started to use in civil cases too. Grounds for issue of this writ are –

1. excess or failure to exercise the jurisdiction

2. violation of natural justice rules such as right of notice and hearing
3. violation of fundamental rights or statutory provisions of laws
4. Finding of facts which no person would have reached to the conclusion.

32
CHAPTER 4: CONSTITUTIONAL LIMITATIONS ON
ADMINISTRATIVE ADJUCATION: TRIBUNALS, CONSTITUTIONAL
LIMITATIONS AND POSITIONS

I. WHAT ARE THE LEGITIMACY OF TRIBUNALS IN THE

OVERALL JUSTICE DELIVERY SYSTEM?

This is true that people have right under Article 21 of the constitution to get speedy, qualitative
justice has also held in case of Ramachandra Rao v. State of Karnataka58. However, our
existing judicial system is not quantitatively and qualitatively that strong to deliver justice fast.
And this delay and over burdening of judiciary has given birth to the need to have tribunals.
The main question here is how we can organize tribunals in a manner that it does not violates
the integrity of constitutional jurisdiction system.

The dictionary meaning of the word ‘tribunal’ suggests the ‘seat of a judge’. In administrative
law tribunals are considered as adjudicatory bodies outside the sphere of ordinary courts of the
land.59 Under the constitution in Article 136, 226 and 227 the terms ‘courts’ and ‘tribunals’
have been used to mean two different things.60 Therefore, a tribunal may possess some but not
all trappings of the court.61

A body in order to be considered as a ‘tribunal’ must be one which is Administrative in

character, but is also provided with judicial powers to adjudicate on questions of law or fact
affecting the rights of a citizen in a judicial manner.

In case of Kilhoto Hollohan v. Zachillhu62, the Supreme Court referred to its earlier
decisions63and observed that in order to determine whether an authority exercising adjudicatory
powers is a tribunal or not, the test is whether:

 There is lis- an affirmation by one party and denial by the other;

 The dispute involved decisions on the rights and obligations of parties.
 The authority is called upon to decide it.

58
Ramachandra Rao v. State of Karnataka
59
I.P. Massey, pg 171, 9th edition.
60
Hari Nagar sugarmills Limited V. ShyamSunder , AIR 1961 SC 1669.
61
Associated Cement Co. Ltd. V P.N. Sharma, AIR 1965 SC 1595.
62
1992 supp (2) SCC 651
63
Supra 60

33
The Supreme Court in case of L. Chandra Kumar64 case held that judicial review and superintendence
over tribunals is the basic structure of constitution. Though Article 323-A and B were not declared as
unconstitutional but invalidated those provisions of law which excluded high court’s jurisdiction.

From a functional point of view Administrative tribunals are neither exclusively a judicial body
nor exclusively an administrative body but is somewhere between the two. The feature of
administrative tribunals are as follows65:

 An administrative tribunal is the creation of a statute and thus has statutory origin.
 It has some trappings of the court but not all.
 An administrative tribunal is entrusted with the judicial powers of a state and, thus, performs
judicial and quasi-judicial functions, as distinguished from pure administrative or executive
functions, and is bound to act judicially.
 Even with regards to procedural matters, an administrative tribunal possesses powers of a court
to summon witnesses, to administer oath and to compel production of documents etc.
 An administrative tribunal is not bound by strict rules of evidence and procedure.
 The decisions of most of the tribunals is not bound by strict rules of evidences and procedure.
 Sometimes tribunals also decide dispute between two parties.
 The decisions of most of the tribunals are judicial rather administrative.
 Administrative tribunals are independent and they are not subject to any administrative
interference in discharge of their judicial or quasi-judicial functions.
 The prerogative writs of certiorari and prohibition are available against the decisions of
Administrative tribunals.

In India, the tribunals do not follow any uniform procedure. The procedure is sometimes laid down in
the statute, and sometimes the tribunals are free to develop their own procedure. For example, the
provision for copyright Board is given in Copyright Act,1957 while the Tax Appellate tribunal is free
to decide its own procedure.66 In the absence of any statutory provisions tribunals also follow the
principles of natural justice. Their proceedings are considered as judicial proceeding for the purpose of
Section 193, 195and 226 of the Penal Code,1860. Though the rules or procedure of tribunals shall not
in any case violate the prerequisites of fair procedure in adjudicating the matters which come across it.

64
L. Chandra Kumar V. UOI (1997) 3 SCC 261.
65
Frank’s Report, 1957 Cmnd 218, Para. 40 quotted in C.K. Thakker , A
66
IP Massey, Pg no.- 175, 9th edition

34
And also, tribunals are accountable and had to give reasons for their decisions. And this preserves the
concept of judicial review and also saves the interest of disciplines for public confidence.67
The principle of Res Judicata in technical sense does not applies to the tribunals.68
And tribunals are also bound by the law declared by the Supreme Court, and the tribunals working
under the territorial jurisdiction of High Courts are bound by the laws laid down by the High Courts.69

These tribunals did not come under the jurisdiction of High Courts under Articles 226 and 227
of the Constitution. It was through judicial pronouncement the Supreme court declared Articles
323-A and 323-B as unconstitutional insofar as they took away the jurisdiction of the High
Courts, and thus, these tribunals have been brought under the jurisdiction of High Courts. The
jurisdictions under articles 226 and 227 of the High Court cannot be taken away either
expressly or impliedly through any legislation or by amendment.70

In Mallappa Murigeppa Sajjan v. State71, the Karnataka High Court was of opinion that
government cannot suspend the working tribunal. The tribunal in this case had been constituted
under Karnataka Land Reforms Act, 1961. It had official and non-official members. Non-
official members were drawn from the Congress (I) Party; when the Congress (U) government
came to power it issued an order directing the suspension of the working of the tribunal until
further orders. Non-official members challenged the order as mala fide. The court of law held
that because the act has not given the government a power of superintendence over the tribunal,
the government could not be directly impinging on the judicial functioning of the tribunal
which falls under supervisory jurisdiction of the high court under article 227 of the constitution.

In P. Satyanarayana v. Land Reforms Tribunal72, The Andhra Pradesh High Court ruled that
in the absence of any statutory provisions, a tribunal cannot review its own decisions. However,
it can recall its orders obtained through fraud in exercise of its inherent powers. Further in G.
Rajalakshmi v. Appelate Authority73, it was challenged before the court of law that if the
tribunal fails to consider the objections filed before it, can the appellate tribunal fails to consider
the merits of the case as the original authority; The Andhra Pradesh High Court held that the
proper course in such a situation would be to remand the case to the original tribunal.

67
S.N. Mukherjee V. UOI (1988) 3 SCC 579.
68
India General Navigation and Rly. Co. V. Workmen, AIR 1960 SC 1286.
69
Jain Exports (p) Ltd. V. UOI, 2014 SCC Online Mad 4982
70
Supra64
71
Mallappa MurigeppaSajjan v. State, AIR 1980 Kar. 53
72
P. Satyanarayana v. Land Reforms Tribunal
73
G. Rajalakshmi v. Appelate Authority

35
 II. WHETHER THE FEATURE OF “DROIT ADMINISTRATIF”
WERE SEEN IN INDIA DURING THE PERIOD OF SAMPATH
KUMAR CASE TO L. CHANDRA KUMAR?

Droit Administratif is the French Administrative law. Administrative law is the part of law that
governs the activities of administrative groups of government like rulemaking, adjudication, or
the enforcement of a particular rigid programme. If we see the Indian system then it is still
following Anglo-Saxon system, we have no separate administrative tribunals such as Droit
Administratif of France but administrative verdicts are also reviewed by ordinary courts within
the restricted sphere of the jurisdiction.74 According to the French Law, it is the law whose
actions are being taken by citizens against officials for unlawful acts committed in their official
capacity are tried not by ordinary courts of law. According to Dicey, Droit Administratif is that
which determines:

1. Positions and liabilities of government officials,

2. Rights and liabilities of private individuals in their dealings with officials as
representatives of governments,
3. Procedure by which these rights and duties are imposed.75

The Droit Administratif has their own principle on which it is base i.e. the government and its
officials are self-governing of and free from the jurisdiction of the ordinary civil courts. Droit
Administratif does not represent principles and rules laid down by the French Parliament; it
consists of rules developed by the judges of administrative courts. It includes some chain of
rules:

1. Rules dealing with administrative authorities and officials – These all relate to
appointment, dismissal, status, salary, and duties, etc.
2. Rules dealing with the operation of public services to meet the needs of the citizens-
These services may be operated either wholly by government officials or under the
supervision or they may assist private agencies to provide public utility services.
3. Rules dealing with administrative adjudication – If any injury is done to private citizen
by the administration, the matter would be decided by the administrative courts.
Counseil d’Etat is the highest administrative court. This system of administrative
adjudication developed in France due to historical reasons in order to avoid

74
I.P.Massey: Administrative Law (9th Edition)
75
Law of the Consitution (1915)330.

36
 encroachment by the courts on the powers of the administrative authorities and prevent
intrusion by the judges into the business of the administration. 76

Prof. Dicey did not favour Droit Administratif, according to him the object of two sets of courts
and two types of laws is to protect government officials from the consequence of their acts.
According to him there was no rule of law in France. In view of fact, there was supremacy of
law, and quality of citizens before the law, and there was much more effective control over
administrative action in England rather than in France.77

DEVELOPMENT OF ADMINISTRATIVE LAW IN INDIA

Administrative Law was in existence in India even in ancient times under the Mauryas and
Guptas and there was a well-organized and centralized administration in India.78 Since
Independence, the activities and functions of the government have further increased and social
security measures have been taken for those employed in industries.

The Philosophy of Welfare State has been specifically embodied in the Indian Constitution. In
the constitution, itself provisions are there to secure social, economic, and political justice,
equality of status and opportunity to all citizens. There was some statistics which was studied
by Markose from years (1953-1955) that from all the 250 reported cases in Supreme Cases,
around half (119) of the cases were related to administrative law. It is obvious that it has
increased considerably thereafter. There are some cases related to the administrative law in
which the judiciary started taking into consideration the objects and ideals of the social welfare:

State of A.P. v. Chitra Venkato Rao79, in this case Supreme Court held that the jurisdiction to
issue a writ of certiorari under Article 226 is supervisory in nature. It is not an appellate court
and if there is some evidence on record on which the tribunal had passed the order, the said
finding cannot be challenged on the ground that the evidence for the same is insufficient or
inadequate. The adequacy or sufficiency of evidence is within the exclusive jurisdiction of the
tribunal.

State of Gujarat v. M.I. Haider Bux Imam Razvi80, in this case Supreme Court held that under
the provision of Land Acquisition Act, 1894, generally the government is the best authority to

76
I.P. Massey: Administrative Law (9th Edition), Page No.18
77
C.K. Takwani: Lectures on Administrative Law, Page No. 12
78
C.K. Takwani: Lectures on Administrative Law, Page No. 13
79
(1975) 2 SCC 557: AIR 1975 SC 2151.
80
(1976) 3 SCC 536: AIR 1977 SC 594

37
decide whether a particular purpose is a public purpose and whether the land can be acquired
for that purpose or not.

14th Law Commission

Administrative tribunals are extra judicial tribunals and are not free sable since it might be
insulting to citizen’s rights. Even in advantages like speedy procedural, simplicity and
specialization these all tribunals can act only as a system that supplants the judiciary. These
tribunals cannot substitute High Courts because tribunals are here to help them.

“These Tribunals would be a court of politicians and enforcing policies but not a court of law.”
– Henry Maitland in 14th Law Commission81.

CONSTITUTION (44TH AMENDMENT) ACT

In this Constitution 44th Amendment Act, 1978 Article 227 was amended and jurisdiction of
High courts had been renovated over administrative tribunals. No amendment, though, was
made in Part XIV-A, as include by the Constitution (42nd Amendment) Act, 1976 and exclusion
of jurisdiction of all courts and tribunals formed in effect of powers under Article 323-A and
323-B. For reinforcement of that power and renovation of dignity of High Courts, the legal
fraternity had to wait for almost two decades.

In using the power which is discussed under Article 323-A of Indian Constitution, Parliament
enacted the Administrative Tribunals Act. And clause (2)(d) of Article 323-A of the Indian
Constitution excluded the jurisdiction of all courts, except the jurisdiction of the Supreme Court
under Article 136, with respect to disputes and complaints referred in clause (1). And then the
constitutional validity of Act was challenged before Supreme Court in Sampath Kumar Case82.

81
14th Law Commission Report.
82
S.P. Sampath Kumar v. Union of India, (1987) 1 SCC 124: AIR 1987 SC 386

38
S.P. SAMPATH KUMAR V. UNION OF INDIA

In this case the question was raise of far reaching effect and great public importance. The
challenge was related to the abolition of the jurisdiction of the Supreme Court under Article 32
as also of High Courts under Article 226 and 227 of the Indian Constitution. As far as the
jurisdiction of Supreme Court under Article 32 is concerned, referring to the debate in the
Constituent Assembly by Dr. Ambedkar wherein the provision was described as “soul” and
“heart” of the Constitution, the Supreme Court held that though Article 323-A(2)(d) authorised
exclusion of jurisdiction under Article 32. “The jurisdiction of Article 32 saves by the Act in
respect of original jurisdiction as also under Article 136 for entertaining appeals against the
decisions of the Tribunals or grant of Special Leave. The Tribunal has been contemplated as a
substitute and not as supplement to the High Court in the scheme of administration of justice.
Thus, the tribunal is substitute of the High Court and is entitle to exercise the powers. Judicial
Review by Apex Court has thus been left unharmed.” 83 - Ranganath Mishra J (Speaking for the
majority).

But there was once concurring judgement gave by Bhagwati CJ:

“The Constitutional amendment has to permit law made under clause (1) of Article 323-A to
exclude the jurisdiction of the High Court under Article 226 and 227 without setting up an
effective arrangement for judicial review, it would be violative of basic structure doctrine.
Consequently, the impugned Act excluding the jurisdiction of High Court under Article 226
and 227 related to service matters and vesting such jurisdiction in the Administrative Tribunal
can pass the test of constitutionality as being within the range or scope and coverage of clause
(2)(d) of Article 323-A, it shown that the Administrative Tribunal set up under the impugned
Act is equally effective as the High Court so far as the power of judicial review over service
matters is concerned.”84

There is one more case in which Supreme Court held that the administrative tribunal has
jurisdiction, power and authority to decide even the constitutional validity or otherwise of any
statute, statutory rule, regulations or notification.85

83
IBID, SCC 138-139: AIR 395-396
84
IBID, SCC 130-131: AIR 389-390
85
J.B. Chopra v. Union of India, (1987) 1 SCC 422: AIR 1987 SC 357.

39
AFTER SAMPATH KUMAR CASE

As in Sampath Kumar Case the Supreme Court upheld the validity of the Administrative
Tribunals Act, 1985. But after that some issues raises on administrative tribunals that:

1. Were administrative tribunals really substitutes of High Courts?

2. Did administrative tribunals fulfil the objects for which they had been set up?

As High Courts have played their role effectively, efficiently and also satisfactorily. The
litigants look up to the High Court as the unfailing protector of his or any person’s property
and honour. The High Court has served its purpose very well and the common man has thus
come to repose great confidence. Judges were well versed, disciplines, trained and independent
in law and working with all openness in an unattached and objective manner have ensured
dispensation of justice over the years. But in we see administrative tribunals in actual
experience and functioning of tribunals, were not satisfactory. They lacked in judicial
approach, objectivity, competence. They failed to inspire confidence in common man mind and
were not successful in creating an “effective alternative institutional mechanism.” There were
serious complaints against tribunals that they did not allow to argue cases properly and some
of the tribunals even did not allow oral submissions and some of them did not allow the
Supreme Court decisions cited cases. 86

On this bad picture of tribalization The Arrears Committee has stated that the justice of
tribunals is not satisfactory and encouraging in our country. There is need of fresh look and
review and a serious consideration before experiment is extended to new areas of the fields,
especially if the constitutional jurisdiction of the High Court is to be simultaneously ousted.87

86
C.K. Takwani, Page No. 278,279.
87
Report of Arrears Committee, Vol. II(1989-1990), Chapter 8,9, 110-111; para. 8-65.

40
L. CHANDRA KUMAR V. UNION OF INDIA88

In this case a Division Bench of the Supreme Court uttered the view that the decisions gave by
a five judges Constitutional Bench in Sampath Kumar Case89 needed to be carefully review by
a larger bench over all the issues adjudicated in Sampath Kumar case. So here in this case the
matter was presented before a larger bench of seven judges.

In this case, the larger Bench held that the power of judicial review is a basic and essential
feature of the Constitution and the jurisdiction gave to High Court under Article 226 and 227
and to the Supreme Court under Article 32 of the Constitution is a part of basic structure of the
Constitution. For securing the independence of judiciary, the judges of superior courts have
been assigned with the power of judicial review. Though Parliament has power to amend the
Constitution but not up to that extent in which the essential feature of the Constitution and basic
structure of the Constitution got destroy. It took more than a decade for the Supreme Court in
accepting an obvious legal position, judicial supremacy of High Courts over tribunals, restoring
their majesty and recognising the doctrine of judicial review as “basic feature” of the
Constitution. And court also held that the Section 28 of the ATA, 1985 was not only ultra vires
but clause (2)(d) of Article 323-A and clause 3(d) of Article 323-B which was amended by
Constitution (42nd Amendment) Act, were also ultra vires and unconstitutional as they
destroyed the basic structure of the Constitution. “And there was no constitutional prohibition
against administrative tribunals in performing a supplemental as opposed to a substitutional
role. In performing powers such tribunals cannot act as substitutes for High Courts and the
Supreme Court. Their subject will be subject to scrutiny by a Division Bench of the respective
High Courts.”90

As administrative tribunals perform a supplemental role and as the decision are rendered by
them are subject to scrutiny by a Division Bench of the tribunal cannot directly approach the
Supreme Court by invoking Article 136 of the Constitution. If a party aggrieved by a decision
of such tribunals can invoke the jurisdiction of High Court under Article 226 and 227 of rhe
Constitution. Only thereafter, a person aggrieved by the order of the High Court may approach
to the Supreme Court under Article 136 of the Constitution.

88
(1995) 1 SCC 400: (1997) 3 SCC 261: AIR 1997 SC 1125
89
S.P. Sampath Kumar v. Union of India, (1987) 1 SCC 124: AIR 1987 SC 386
90
L. Chandra Kumar v. Union of India (1997) 3 SCC 261, 308: AIR 1997 SC 1125, 1154

41
CONCLUSION

According to the author, judicial review is an integral part of our legal system and it is our basic
and essential feature of the Indian Constitution so it cannot be dispensed by creating tribunals
under Article 323-A and 323-B of the Constitution. Because the faith of the common man is
the foundation on which creation of judicial review and efficiency of the adjudication are
founded. So, the alternative arrangement must be therefore, effective and efficient for inspiring
confidence and faith in the litigating person and they must have assurance that the person who
is deciding or fighting for their disputes are completely free from pressure of executive. To
maintain independence of judiciary and impartiality it is necessary that persons who are
appointed in the tribunals have judicial, have sufficient knowledge to such subject and legal
training.

42
 REFERENCES

Sites referred

Books Referred

Priciples of Administrative Law by MP Jain, 6th Edition

Administrative law by I. P. Massey, 9th Edition

43