CHAPTER ww CONTROL MECHANISM IN INDIA In this chapter, ve will discuss: about judicial review of administrative action in India, The control haniem in Indie is exercised by ordinery courts and not by special administrative courts like in France where the highest administrative court, the conseil d'etat exercises control over all administrative tribunals, This chapter will attempt to explain the judicial review of administrative action in India, It may be pointed out that the fundamentals of real democracy ies in the independent Judiciary enjoying the ultimate authority to cheek and restrain the exercise of absolute and arbitrary power, Independent Judiciary, which is 2 Protector, Guarenter snd a custodian of rights of people, requires not only for survival of it but also for development of democrasy.1 Without some kind of judicial power to control administretive suthoritii there is a danger that they may commit exeesses which would be detrimental for the development ef s democrasy and concept of rule of law, Fundamental values of country's legal order could be maintained through judicial control over such excessive administrative pouer, In India judiciery has its oun place intaeeountry's legal set up. It plays an important and creative role1 in the field of administrative ley, It becomes nesessary to meet the needs of a democratic, independent society and aleo for the speedy development of Socio-economic legal order. Considering the limitations on judicial proegss and judicial creativity, we may say that, judi- ciery stood very well to the challenging tesk assigned to it, An individuel can bring his complaint or grievenee against administrative action within the cognisance of the courts for violetion of hin rights through techniques and tools available to him. The techniques commonly used are urits, appeals, references to courts, injunctions, declarations, suits for demages for tortuous actions of the administration and civil servants, and for breaeh of contracts between the State and private persons etc.2 Writs are issued by the Supreme Court and High Courts under Arte,32 amg 226 of the Constitution respectively, Under Article 227 the High Courts exerci: the power of supervision over tribunals within their territorial juris- diction, From the decision of the tribunal the appesel cen je Court under Article 136. The tech- 3 simi- be made to the Supri niques of reference is covered under some statut: larly injunctions and declarations can be! granted under relevent provisions of Specific Relief Act, 1963, In this chapter we will discuss the judicial control of delegated Legislation, Judicial review of administrative action, Administrative tribunals, the doctrine of Ultra= Vires, Judicial control of Administrative discretion, etc.i78 lL Judieial Control of Delegsted Legislation, The concept of delegated Legislation was developed due ta.some reasons/factors in s modern democratic state, Nowedays state functions for the Socio-economic development of the people. Law has become an instrument of Socio~ economic change in the democratic societies. Pressure of work on Legislature increased and it vas necessary to decentralise or divide or delegate its work so that it can meet the challenge of grouing demands and keep a socio-political and economic system on its road. The technique of delegated legislation is resorted by almost all countries and some legisletive pousre are delegated nt cir= by the legisleture to the executive. In the pre cumstances legislative povers can validly be delegated to the executive within the permissible limits, but at the time, there is inherent danger of abuse of such power by the executive authorities, Therefore, the basic pro- blem is, that of controlling the delegate: in exercising The committee on Ministers’ his legisletive pover: povers states that though the practice of delegated legisr lation is not bad, risks of abuse are incidentel to it and therefore safeguards are required if the country is to continue the adventages of the practice without suffering from its inherent dangers, Thus today the question is not whether delegated legislation is desirable or not, but it is uhat controls and sefeguards can be introduced so that the power conferred is not misused or misapplied.419 There is no inherent power of delegation in the legislature, but the constitution confers a pover and imposes a duty on the Legislature to enact laus as a nace. Ty postulate of the soversightyy of the people. Therefors, if th and to go bayond the implied limits of the Constitution, Ingisleture cheoses ta delegate and dows not perform sssential legislative function by determining legislative policy, and delegates broad powers to the axecutive, it rune the risk of the enabling Act being declared as ultre vires the Constitution.5 As the Comittee of Ministe: powers rightly observed, ‘ve doubt, hovever, whether Parliament itself has fully 7 lised how extansive the practice of delagation has become, or the extent to uhich it has surrendered its oun functions ily the practice might be abused.® Similarly Krishna/J, observed that, "the system of law /Tyer in the process, or hou meking and performance auditing needs careful, yet radical re-structuring if participative, pluralist Government by the people is not to be jettisoned.” 7 Much before this Subba Rao J, uarned about ths misuse and excessive paver of Delegated Legislation in Devidas v. State of Punjab® as follous : There is a danger inherent in such 2 process of dele- gation, An over burdened legislature or ons controlled by ® powerful exscutive may unduly overstep the limits of delegation, It may not lay doun policy at all; it may declare its policy in vague and general terms; it may not ley doun any stenderd for the guidance of the executive; it may confer an arbitrary power on the executive to changs er modify the policy leid doun by it without r itself any control over subordinate legislation. This ving forself effacemant of legislative pover in favour of another agency either in whole or in part is beyond the permissible limits of delegation, It is for a court to hold on a fair, generous. and liberal construction of an impugned Statute jad such limits, But the whether the Legislature exc said liberal construction should not be carried by the courts to the extent of aluays trying to discover dorment or latent legislative policy to sustain an arbitrary pover conferred on executive authorities. It is the duty of the court to strike doun without any hesitation, any arbitrary pouer conferred on the executive by the Legislaturo®. (emphasis added). Control over delegated Legislation may be classified into three categories, viz. (1) Judictel Control, (2) Legis-. lative Control, (3) Other Controls, As pointed out, dele- gated legislation does not fall beyond the seope of judicial review and in almost all the democratic countries it is accepted that courts can decide the velidity of delegated legislation mainly applying tuo tests : (a) that it 1s ultra-vires the enabling Act, i.e. Substantive ultr vires (b) that it 4s not made in accordance with the procedure prescribed by the enabling Act, i.e, Procedural ultra - vires, (1) Delegated Legislation ultra vires the Enabling Act. Whenever any parson, or body of persons exercising statutory authority, acts beyond the powers conferred upon and him or them by statute, such acts become ultra vir181 accordingly void, Substantive ultra vires maans the dele- gated legislation goes beyond the scope of the authority conferred-on it by parent statute, It is 2 fundamental principle of law thet public authority cannot act outside the povers, i.e, ultra vires and it has been rightly pointed out as ‘the central principle’ and ‘foundation of large part of administrative lew,9 An det uhich is for any reason in exeess of power is ultra vires. The basic prineiple is that the delegete cannot wake @ rule which is not authorised by the parent statute, If the subordinate legislative authority keeps within the powers delegated, the delegated legislation is valid, but if it does not the courts can strike doun such Act. A usual technique used to confer rule-making power is first to give a general pouer to make rules for the purposes of the Act, and then to lay doun, without preju- diee to the generality of the previous clause, specific h js for which the delegate may make rules, The leading case on this point is Emperor V.Sibnath Banerji,10 In this case the Judicial Committee of the Privy Council held that a rule which was covered by the more general language used in sub-section (1) of the enabling provision would not be invalid because it did not fall within the terms of sub-section (2) of such provision which specifically enumerated the items of rule making. Sub-clause (X) of clause (2) of Section (2)qthe Defence of India (Amendment) Act, 1940, authorised the making of rules for the detention of persons reasonably suspected of cer-te to act in a manner prejudicial to the public safety or interest or ta the defence of British India. Under rule 26 it was enough that <' ' the Central Government vas satisfied with respect to any particular person that his detention was necessary with a view to preventing him from acting in any manner prejudicial to the defence of British India, the public safety and the maintenance of publie order, The Federal Court of India had held in Keshay Telnale V. Emperor 10(a) that rule 26 wes ultra vires the Defenes of Indie Act as according to cleuse (X) of Section 2(2) @ rule could confer a right to detain only such persons es vere reasonably suspected of acting in any manner prejudicial to the defence of British India, the public safety or the maintenance of public order and did not confer power to detain a parson because the Government thought that he might do something thereafter or that he ves a man likely to do it, The Privy Council reve: this decision and upheld the rule, It was pointed out that clause (2) of section 2 vas merely illustrative, The in- pugned rule could be comprehended within the general power to make rules "to carry out the purposes of the Act” uhieh was given by clause (1), In G,T.Khanzada V. Reserve Bank of Indiall chief Justice Chandrechud observed : "It fs well settled that where a specific pouer is conferred without prejudice to the generality of a power already conferred, the specific power is only illustrative and cannot restrict the width of the general pover,"193 Sectien 58(1) of the Reserves Sank of Indis Act, 1934 power to the Central Board of the Reserve Bank to giv © regulations for giving effect to the provisions of the Act, Cla (2) specifies certain matters on which regule- tions can be mads, It was observed that the Board could make regulations to provide for the service conditions @f the staff, although thet matter was not mentioned in clouse (2), because by section 7(2) of the Reserve Bank of India Act, the general superintendence and direction of the affairs and business of the bank were entrusted to the Board and eervice conditions of the staff vere pre-eminently tters which related to the affaires of the Bank and vere therefore covered by clauses (1) ef Section 58. In another cose, houever, the Court had said that the rule making power ‘for carrying out all or any of the purpose as were anu ated or indicated in the preamble or other provisions of the Act.’ The Gauhati High Court’? observed that in determi- fing whether power claimed by a statutory authority cen be held to be incidental or ancillary to the powers expressly conferred by statute, the Court must not enly see uhether the power might be derived by reasonable implication from the provisiéns ef the statute, but also uhather such povers were nec ry for carrying eut the purpose of the Act, given to the Bar Council ufder the Advocates! Act, 1961 also included within its power to lay doun stendards of legal education. The efficacy of Judicial review on the greund of sub- stantéve ultra-vires depends on the phraseology of statutery provision delegating rule making power, If power is con-184 ferred in top broad terms, the efficacy of the doctrine of substantive ultra-vires is very much diluted as in such a case the court may find it extremely difficult to hold « rule as falling outside the scope of the povars delegated, Further, Judicial attitude generally is to interpret the delegating provision rather breadly. They also adopt a deferential rather than a critical attitude touards dele- gated legislation, The Liberal attitude towards delegated legisletion is tellingly typified by the Supreme Court pronouncement in Stats of Tamil Nadu v. M/s, Hind Store’S where it upheld rule 8=c of the Tamil Nadu Mines & Minerals Rules, The rule banned the leases for carrying black granite in favour of private persons, Lease could only be granted in faveur of a corporation uholly ouned by the State Government, It was contended that creation of a monopoly vas essentially a legislative function and wa therefore, outside the capacity of the rule making autho- rity, It was further contended that 6.15 of the Mines and Minerals (Development and Regulation) Act, 1957, enabled the State Government to regulate, not prohibit, the grant ef leases, The Supreme Court upheld the rule because the policy of the Act was the conservation and prudent and discréminatory expleitation of mineral vith a view te securing maximum benefit to the community, Since a general emi complete ben on private mining had not been imposed, but @ single major mineral was excluded from it for the purpose of conserving it, the rule could not be held to be ultra vires the Act, The Delhi Ice Control Crder, 1979 was upheld because ice was food uithin the meaning of Sec.3 of the Essential Commodities Act, 1955, The rules of theBar Council of India preseribing that for admission to the Bar a person should have obtained 2 lay degree after under- going a reguler course of 3 years and should have attended at least 60% of the classes in each subject vere upheld as the expression "to lay doun standards of such education" oecuring in Section 7(1)(b) of the Advor es Act, 1961 was capable of taking in every ingredient to constitute the end or ultimate level of education that was expected of @ candidate who applied for enrolment as an advocete. A pro- vision for consultation with the Public Service Commission in a rule not be said to be beyond the rule-making pover since it complies with the eonstitutional provision, Rule 44 of A.P, Panchayat Samitis and Zille Parishads’ Rules made under the A.P, Panchayets Samitis and Zille Parishads Aet, 1959, which provided that voting for no-confidence motion shall be by open ballot was held to be valid. Secrecy of bellot vas not e constitutional requirement. S.5 of the Maharashtra Agricultural Produce Marketing (Re~ gulation) Act, 1964, euthorised the establishment of a principal market and one or more subsidiary markets, The ablish a principal market and one or more sub- rries with it the power to de-establish power to sidiery markets such a market, Therefore if for more effective regulation of marketing it is thought that all marketing operations in respect of a declared agricultural produce should be carried on only in the principal and subsidiary markets established under the Act, it cannot possibly be said that @ rule made for that purpose was beyond the competence of the rule-making authority under the Act.186 (44) Delegated Legislation held Ultra Vires the Act. When @ subordinate legislation fails to comply with certain procedural requirements prescribed by the parent Act or by the General Lay, it is knoun as procedural ultra vires, While framing rules, regulations, bye-laus, atc., the parent Act or enabling statute may require the delegate to observe a prescribed procedure, such as helding ef con- sultetions uith particular bodies or interests, publicatien of draft rules or bye-laus, laying them befere Parliament, etc. It is necessary on the part of the delegate to comply with these procedural requirements and to exercise the pover in the manner indicated by the legislature, Failure to womply with the sama may invalidate the rules so framed, But at the same time it is also to be noted that failure to observe the procedural requirements doss not necessarily and aluays invalidate the rules. It depends on the proce- dure whether it is mandatory or discretionary one, Non vance of @ mandatory procedural norm would make the rul so made ultra vires and is knoun as procedural ultra vires. In mandatory procedural requirement a Court can strike doun a rule or reguletion so made. In Mohd. Hussain Gulam Mohammed v. State of Bombay’4 the validity of rules 53, 65, 66 and 67 made under the Bombay Agricultural Produce Market Act, 1939, was questioned before the Supreme Court on the ground that they were in conflict with the enabling Act. Rule 53 provided that the market committee should levy and collect fees on agricultural produce bought and sold in the market area at such rates as might be specified eribe in the bye-laus, The rule, houever, failed to pr the maximum to which the bye-lays had to conform, Section187 11 of the Act clearly stipuleted that the maximum should be pr cribed by the rules. The Supreme Court held that Tule 53 vas ultre vires section 11, Rule 65 authorised the market committee to grant a licence for doing business in any market committees only after a rket was established, the market committee could not grant licenees, In so far as the rule gave the power to issue licences to the market committee it was clearly ultra vires the Act. For similer reasons rules 66 and 67 were held ultra vires, Section 18 of the Andhra Pradesh Panehayat Semitis Act, 1858, vested the administration of blocks in the Panchayat Samiti, Sub-section (2) of this section provided that the Panchayet Samiti shall exercise powers and perform functions as specified in the Schedule. Accordingly the statutory pover to establish and maintain primary health centres was vested in the Samiti, Section 69 empouered the Government to make rules for carrying out the purposes of the Act. It was held that the Government could not under the guise of making rules convert the Samiti which hed power to establish the Health centres into a mere reeom mendatary body. Since the rule provided that the Government had to establish @ primary health centre on the recommen- dation of the Samiti, it in effect reduced the Semiti to @ mere recommending authority and hence it vas ultra vires the Act. No tax, fee or other pecuniary impositions may be levied by an instrument of subordinate legislation unl: the enabling Act specifically authorises such imposition.168 Similarly, uhere a statute empovers the levy of @ rate on the annual value, the authority cannot fix it at @ percentage of the capital value. In the Raj Narain case’S in which Supreme Court has held that pouer to sapply an act with modifications could not be exercised so as to change the essential features of the Act. This w Lachmi Narain v. India’S Part C States (Laus) Act, 1950 Court in stri ed again by the Supr empowered the Central Government to extend by notification in the official Gazette to any Part C State or to any part of such State, with such modification and restrictions, as it thought fit, any enactment which vas in force in a Part A State, The modification of the Government wi held invalid because (1) the power had not been exercised con= gemporerily with the extension of the Act, and (2) the alteration introduced by it purported to change the essen- tial features of section 6(2) of the Act in so far as it dispensed with the requirement of three months notice by providing for "such previous notice as the Government considered reasonable. Section 21(2)(g) of the Motor Vehicles Act empovered the State Government to make rules for the granting of certificates by the registered medical practitioners re- quired under section 7(3) and rule 16 (a). A rule provided that certificates could be granted only by those registered medical practitioners who held a medical degree or by a Government physician not below the rank of assistant surgeon. It was held to be ultra vires the Act, becauss a diploma holder of Licentiate Medical Faculty could not grant a certi- ficate under the rule though no such restriction was conten- plated by the Act. The M.P, Excise Act, 1915, authorised189 the levy of excise duty on alcoholic liquors when they vere either imported or exported or transported or manufactured within the state. A rule requiring the licensed vendors to pay exeise duty on liquor remeining unsold by them below the ceiling limit was held to be ultra vires the Act. Section 33 of the Bombay Police Act gave pover to the Com- missioner and the District Magistrate to make rules for "regulating the conduct of and behaviour or action of per= sons constituting assemblies and processions on or along the streets". Rule 7-A made under this power geve pover to the Commissioner or the District Magistrate to refuse permission to hold @ meeting. The rule was held ultre vires the Act since the Act authorised the making of rules for "regulating" the meetings, not for totelly banning them also held to be an unreasonable restriction The rule wu on fundamentel right to assemble guaranteed by Article 19 (1) (b) of the Indian Constitution!® The Madras Buildings (Lease and Rent Control) Act, 1960, authorised the control- ler to fix fair rents for the buildings according to cer= tain principles leid doun therein. One of the principles was that the cost of construction had to be determined on the basis of the cost incurred originally for construction. A rule made under the Act, hovever, provided thet the value of the buildings reproduced on the date when the Aet came into force should form the basis for such determination. The rule vee held to be ultra vires the Act. In Ber Council of India Vs, Surjeet Singh, (A IR 1980 $C 1612) under the Advocates’ Act, the qualifications and conditions entitling an advocate to vote at an election or\g0 fer being chosen as a member of State Bar Council are required to be prescribed by the Bar Council of India, The State Bar Council has no such power. The pover of the State Ber Council is merely to propare and revise from time to time to heve the electoral rolls subject to the rules made by the Bar Council of India concerning the qualifications and cefditions aforesaid, But in the garb of making the rule for preparation and revision of elacteral rolls it cannot prescribe disqualifications, qualifications or conditions subject to uhich an advocate can find his name in the electeral roll, Where the State Bar Ceuncil provided that failure on the part of an advocate to submit a required declaration within the specified time resulted in the omis- sien of his name from the electoral roll it acted ultra vires the Advocates’ Act because its pouer was limited to providing for electoral roll from time to time. Even approval of the Bar Council of India to the above provision of the State Bar Council did not cure the defect because such an approval could not confer pouer on the State Bar Council, A rule providing for cansideration of the tenant's Hardship uhile considering an application by the landlord's for eviction under the U.P. Urbad Buildings (Regulations of Letting, Rent and Eviction) Act, 1972, was held ultra vires section 21 ef that Act because the Act did not contemplate such consideration. Under the Electricity Act, the Electri- city Board had power of making regulations laying doun the tariff, but such a pouer did not include the power of enhan- cing the charges for supplying electricity in disregard of @ contractual stipulation entered into by it under section 49(3) of the Act. Where the Punjab Ceiling on land Holdings Act provided1 that the permissible ceiling arsa should be determined oh the basis of valuation to be calouleted in the prescribed manner, taking into account the intensity of irrigation, ounership of the means of irrigation and the kind of soil, subject to the condition that the total physical holding 8 not exc d 21.8 hectares, a rule made under the Act which gdve ne consideration to the kind of soil in the determination ef the ceiling limit was held to be ultra vires the Act, Section 9 of the Punjeb Cinema Regulation Act, 1952 provided that the Government could prescribe terms and conditions subject te which a licence might be granted, It was held that the provisions did not give unlimited pouer to the rule-making authority and therefore the Licensing authority could net include conditions es regards rates af admission while granting the licence, even if euch a condition was covered by the Gram Panchayat to impese fees for giving such « fas was void. Subordinate legislation may be assailed as ultre vires if it encreaches upon the rights of private parties derived from the Comman Lau in the ebsence af an express autho-rity under the enabling Act. In Chaster v. Batason’? a statute authorised the making of regulations far ths public safety and successful prosecution of the Act, One of the requla- tions made under the Statute prohibited in certain cases, procesdings to recover possession ef tha dwellings of work men empleyed in the manufacture of war materials, and imposed penalty for taking such proceedings, It wes obser ved that the regulation forbade the ouner of the property access to all legal Tribunels in the manufacture of war terials, and imposed penelty for taking such proceedings.ipz It wae observed that the regulation forbade the ouner of the property aecess to all legal tribunals in regard to the matter and that there vas no authority to do so given by the stetute, It vas held that the enabling Aet could Mot have gone so far as to forbid access to courts in such @ ease and that so grave an invasion of the rights of the subj 8 was not intended by the legislation, The regulation was held invalid as being ultra vires the Act. Here the rule is that common law is to be presumed as legislation unless it is changed by Parliament through legislation. If the enabling Act does not provide for change in the Common Law the delegated legislation eannot effectuate it, The rule access to all legal tribunals in regard to effect it. The rule of Chester v. Bateeon invoked by the High Court of Bombay in Miss Sophy Kelly v. State of Maharashtra,18 Here the High Court invalidated a regulation made by the Masters of schools to present to the 8.S.C.Board for admission to the S.-C. Examination the applications of only such pupils as had made satisfactory progress during the final yaar. The regulation required the Heads of sehools to forward the applications of each and every candidate in the XI Class irrespective of his academic progress during the final yoar, 2. Judicial Review of Administrative Action The Constitution of India provides for judiefal review of administrative action under Articles 32, 136, 226 and 227, Article 32 confers right to eonstitutional remedies for the enforcement of the fundamental rights guaranteed by Part III of the Constitution, Under clausecy (2) of that article, the Supreme Court hes power tp issue "directions or orders or urits, including urite in the nature of habeas corpus, Mandamus, Prohibition, duo warrants and Certioreri, whichever may be appropriate, for the enfor- cement of any of the fundamental right arliament Y by law empower any other Court to exercise within the local limits of its jurisdiction all or any of the powers exer- cieable by the Supreme Court. Article 32 being a part of tha Pundamentel rights cannot be suspended except es other- wise provided by the Constitution. Article 226 of the Constitution confers similar paver on the High Courte to issue to ony person or authority, including in appropriate ceses, any Government, within their territorial jurisdic- tion, dirsctions, orders or urits, including urits in the nature of Habeas corpus, Mandamus, Prohibition, Quo warrants and Certioreri or any of them, for the enforcemant of any of the rights conferred by Part IIT and far any ather pur~ pose, Article 227 gives to the High Courts ths power of superintendence over all courts and tribunals threughout the territories in relation to which thay exercise juri diction, Under Article 136 of the Constitution ths Suprame Zourt may, in its discretion, grant special eave to appeal from any judgement, decres, determination, sentence or order in any cause of matter passed er made by any Court or Tribunal in the térritory ef India, An express mention of the word "tribunals" in Articles 227 and 136 is indica- tive of the auareness on the part of the Constitution mekers of the need for judicial review of administrative action, The Censtitution (Forty-second Amendment) Act, 1976 ampovered the Parliament to "provide for the adjudi-tay sation or trial by administrative tribunals of disputes and somplaints with respect to recruitment and conditions of service of persons appointed to public services and posts in conn tion with the affairs of the Union or of any State or any logel or other authority within the territory of India or under the control of the Government of India or of 419 any Corporation owned or eontrolled by the Government: The term other authorities in Article 12 of the Con~ stitution20 has caused great diffieulties. With the passage of time this term has been broadly interpreted by the Supreme Court21, Under Article 12, Fundamental Rights ean be enforced inter alia, against any authority, vhether it 1s a statutory22 or nonestatutory one23, Under Artiele: 32 and 226 the Courts enjoy broad discretion in the matter of giving proper relief, The Courts may not only issue @ writ but also make any order, or give any direction, as it may consider appropriate in the circumstances to give proper relief to the petitioner.24 Article 32 is itself a Fundamental Right and eannot therefore, be diluted or whittled doun by legislation and can be invoked even when a law declares, a particular administrative setion as final. It provides a guaranteed, quick and summary remedy for the enforcement of Fundamental Rights. Any person complaining of infringement of his fundamental rights by an administrative action can go straight to the Supreme Court. A notable aspect of Article 32 is that it can be invoked only when there is an administrative action in445 if n@ question of enforcing Fundamental Right arises. While dealing with a petition under Article 32, the Court would ‘onfine itself to the question of infringement of Funda- mental Rights and would not go into any other question. Article 32 cannot be invoked even if en administrative aetion is illegal unless fundamental right is infringed,25 The question whether a particular administrative action infringes a fundamental right or not and therefore whether @ petition under Article 32 to challenge it is mainteineble or not, does raise some complex issues, The notable case on this point is Ujjam Bai v. U.P.25 In thie filed in the Supreme Court under Art.32 ease a petition on the ground that # Seles Tex Officer by misconstruing a provision in a taxing statute hed imposed sales tax on the petitioner end thereby effeeted his Fundamental Right under Article 19 (1) (g). The Suprome Court held that sines the order of assessment was made by the officer concerned within his jurisdiction, 8 mere misconstruction of « statu- tory provision by him would not justify @ petition under Artiele 32 even though # Fundamental Right may be involved, The Court stated that under Article 32 it would quash an intel ~judieial body affecting e Fundi order of @ qui Right if it ecte under an ultre vires leu or without jurisdietion or if it wrongly assumes jurisdiction by com mitting an error om a collateral fact or, if it fails to follow the principles of naturel justice, or to observe jandatory procedural provisions prescribed in the relevant statute, Gut a mere error of law committed by @ quasi- judicial body cannot be cured under Article 32.‘ae It means that the Ujjam Bai ruling vill not apply if the function is not quasi-judicial but exeessive. An executive order is amenable to Article 32 jurisdiction of the Supreme Court, end it is immaterial uhether error of law or ertor of justice is involved.27? But it is diffi- cult to eccept the Supreme Court's reasoning that error of lau is not amendable to ites jurisdiction in case of a quasi fudieial body. It is well-known that e patent error of lew by ® quasi judicial body can be quashed by @ writ of Certio~ reri which can be issued uncer Article 32, It is therefore difficult to comprehend as to why the Court should refuse to give relief in a case of misconstruetion of leu uhen a Fundamental Right is involved. As Or.M.P.Jain observed28, the question involved in Ujjam Bai case simply vas whether an unauthorised tax can be alloued to stand so as to affect @ Fundamental Right. Instead of looking at the situation in Ujjam Bai case in the perspective, the court take into account the nature of the body involved which element herdly the Supreme Court observed that though tribunals are clad in many:” ef the trapings of a court and though they exercise quasi-judicial functions they are not fulifledged courts, Thus a tribunal 4s an adjudicating body which decides controvers: betueen the parties and exercises judicial pouers as distinguished from purely administrative functions and thus po: some of the trappings ef a court but not a11,°4 Expertise, cheapn » expediency, flexibility of procedures are of administrative of the qualiti adjudicating bedi These bodies sometime have to settle disput between private parti: For example, the Indus= trial Tribunal deale with the disputes between the lebour and the management. Sometimes they deal with disputes between the administration and the citizen, Fer example, the Income Tax Appellete Tribunal hears sppeals from the decisions of the Appellate Assistant Commissioner. 35 There are statutory bodies like the Railuay Board, the Mining Boards, the Central Board of Revenue, the Regional Transport Authoriti the Industrial Tribunal, the Employees Insurance Court, the Court of Survey, the Railuay Rates Tribunal, the Compensation Tribunal, the Incoma Tax Appellate Tribunal enjoying varying degrees of independence and performing specislised kinds of adjudi-eatory funetions, There are other administrative authori- ties such as the Income Tax authorities, the Estate Duty Controller and the Central Board of Film Censors, etc, which perform quasi-judicial functions. t one of Most of the important tribunals have at 1 their mombers with judicial experience, The Ingoms Tax Appellate Tribunal consists of as many judicial and aecoun- tant members as the Central Government thinks necessary to appoint. A person is appointed as a judicial member if he has hold @ judicial post for ten years or practised as an advo @ for not less than ten years or served in the Central Legal Service for not less than three years. Judicial experienae or competence to become a judge is also required for the membership of the following tribunals : the | tribunal under the Coal ting Areas (Acquisition and Deve~ lopment) Ast, 1957; tha compensation tribunals under the Air Corporations Act, 1953, or the Life Insurance Corpo- ration Act, 1958; the Insurance Courts under the Employe: State Insurance Act, 1948; the Commissioner under the Paymant of Wages Act, 1936, the authority under the Minimum Wages Aet, 19483 tribunale and labour courts appointed under the Industrial Disputes Act, 1947; the Motor Accidents Cleime Tribunal under the Motor Vehicles Act, 1988; the Reiluay Rates Tribunal under the Indian Railuays Act. 1890; the Court of Survey under the Merchant Shipping Act, 1958, Most of these tribunals have povers of a civil court under the Code of Civil Procedure in respact of summoning the witnesses, administering oath, compelling the producttion of documents, issuing commissions and receiving evidence on20 affidavits: They are net bound by the law of avidance a: far as the procedure is concerned, They have buen given Power to regulate their procedure. Some tribunals have bedn empousred to review their decisions in case of error of law found on the face of the record of a clerical error, for example, the Compensation Tribunele, the Insurence Courts, the Commissioner under the Payment of Wages Act, the Special Court under the Waste Lands (Claims) Act. Some tribunals like the Commissioner under the Workman's Compensation Act or the Insurance Courts under the Employees State Insurance Act, 1948, can also avard costs. In most cases, appeals are provided from the deci- sions of these tribunals to the courts on questions of lau, though on questions of fact their decisions are finel and Conclusive. Appeals can be filed frem the decisions of the Insurance Courts under the Employees State Insurence Act, 1948; “authority” under the Payment of Wages Act, 1936; the Commissionsr under ths Uorkman's Compansatian Act, 1923 and the Glaims Tribunal under the Motor Vehicles Act, 1988. In some cases, the tribunals can refer the matter involving @ question of lew to the High Ceurt for epinien. Thus there is no provision in the Inceme Tax Act for appealing against the decision ef the Income Tax Appellate Tribunal, Houever, the tribunal is required to refer the matter to the High Court for its opinien on a question of lau at the instence of any of the parties, The tribunel may also sand the matter directly to the Supreme Court if in its opinian there ere conflicts in High Court decisio From the decision ef the High Court given on reference from the tribunal, further appeal lies to the Supreme Court, previded202 the High Court certifies that it is fit for eppeal. If the tribunal refuses to refer s matter to the High Court fer opinion, the assessee of the Commissioner may ask the tri- bunal to state the case, Similar provisions for ‘erence by the tribunal are to be found in other Acts, for example: The Waste Lands (Cleims) Act, 1963: The Workman's Compen- ation Act, 1923: The Employ: State Insurance Act, 1948, Certain Acts make ne provision for appeal or reference. They are for example, the Air Corporations Act, 1953, the Life Insurance Corporation Act, 1956; the Industrial Disputes Act, 1947; the Minicum Wages Act, 1948,36 Although Administrative Tribunals and quasivjudicial authorities have to adjudicste disputes betuaen the adminis tration and the citizen, they are part ef the executive branch af the Government. Where tribunals are manned by man of high judicial experience, there is a greater certainty of their being impartial and fearless, However, institutio- nal safeguards and healthy cenventions can alse help to keep these bodies independent and fair. The Income Tax Appellate Tribunal is not subject to the control and supervision ef the Board of Revenue Act, 1963, which is a body entrusted with the responsibility te administer all taxes, The Tri- bunal is under the control ef the Ministry ef Law and net the Ministry of Finance,3? It hes been held thet though a tribunal era quasi-~ judicial authority may be administratively under the control of @ higher administrative authority, such Administrative contrel should not extend to the discharge of quasi-judicial judicial function, In the discharge of such a function the qui263 authority must act independently and an its oun, Thus where the paver to issue a no objection certificate for building « cinema theatre w it vas given to the District Magistrati held that such power could not be exercised by the State Government, though the District Magistrate was "subject to the contrel of the Government" because such contrel did not extend te the exercise of quasi-judicial function. A co= operative society uhose objects are not confined to one State is governed by the Central Act, In matters of registratien, control and dissolution, housver, it is governed by the law of the State in which it is registered, It was held that the Registrar of Co-operative Societies of the State in which it uas registered had no jurisdiction to decide « dispute betuaen the Society and its members residing outside the State, The Court pointed out that edjudicetion vas a quasi-judicial function and as such was not covered by the word 'centrol' which was an administrative function, It has been held that no general instructions can be given to quasi-judiciel bodies directing them how they should exer- cise their function, Such instructions can be given to administrative bodies but not to quasi-judicial bodi Where quasi-judicial bodies act on some other authority's advice, they fail te apply their mind te the question and thereby fail to exercise the jurisdiction which is vested in them, In Gujarat Steel Tubes Ltd. v. Gujarat Steel Tub Mazdoor Sabha38 the word 'tribunal' means a seat of justic For the purpose of Article 227 and 136 ef the Constitution na quasi- tha word 'tribunal' has been interpreted to judicial body, an arbitrator, a Commission, a court or otherne4 judicatory organ created by the Stats, It was held by the Supreme Court by a majority of two judges against one ((lyer and Desai 33., Koshal 3, dissenting) that a High Court can interfere vith the avard of an arbitrator appeinted under section 11-A of the Industrial Disputes Act, 1947, under Article 226 of the Constitution if it is based on a com- plete misconception of lay or on no evidence or that no reasonable man could coma to the conclusion to which the arbitrator had arrived, Enquiry Commissions, which are often appointed on an ad hoc basis are also judicial bodies, but they de not enjoy the status of a tribunal, The Enquiry Commissions are appointed under the Commissions of Inquiry Act, 1957. A Commission has the powers of a civil court while trying a suit under the Code of Civil Procedure, 1908, in respect of matters such as (a) summoning and enfarcing the atten- dance of any person and examining him on oath; (b) requi- Ting the discovery and production ef any document; (c) receiving evidence on affidavits; (d) requisitioning any public record or copy thereof from any court or offices ions. for the examination of witni (e) issuing commi or documents and (f) any other matter which may be pre: cribed.°9 The Commission has power to require any person (subject to any privilege which may be claimed by that person under any lau for the time being in force) to fur- Nish information on such paints or matters, as in the opinion of the Commission may be useful for, or relevant to, the subject-matter of the inquiry. Any proceeding within the meaning of sections 193 and 228 of the Indian Penal Code.40 The Enquiry Commissions are, hovever, chargedaes with the function of fact-finding, e.9., what led to en air crash or a railuay accident or whether an investment by or on behalf of the State or @ public corporation ua: improperly motivated. Here no specifie charge is kept against any pertieuler individual. If, in the course of the enquiry, it is found that a particular person was guilty of dereliction of duty, formal ection under the lew vill be taken against him, These bodies merely advise the Govern- nt, Their reports are not legally binding on the Govern= ment, though they may have a great deal of political and morel force. Judicisl review of administrative action essentially deals with the doctrine of ultre vires. If the adminis- tretive euthority has acted in exeess of its pouers or has not done what it is bound to do under the law, the courts correct it by suitable order, Judieial review of administrative action in Indie, like in England and the United States, is exercised by ordinary courts and not by speciel administrative courts es in France, In Englend as well as in India, there is no separate hierarchy of administrative courts as in France. In France, the highest administrative Court, the Conseil d! Etat, exercises control over all administrative tribunals. While judiciel review in Englend tends to be restricted to peripheral matters of ultra vires, judicial revieu by admi- nistrative courts in France probes deeper and undertakes even a scrutiny of the merits of the administrative actions, But both Englend as well as India have unequivocelly rejee- ted that system, Prof, Robson4! had suggested the settingup of higher administrative tribunals to hear appeals against the lower tribunals and other quasi-judicial autho= rities, However, judiciel review has improved in Englend considerably singe the submission of the Frank Committes's report in 1957, A good deal of attention has been peid to the vorking of the tribunals, procedural safeguards have been strengthened, the tribunals have been judicielised. The role of the courts in decision-making the administra- tive acts and decisions hes been "far" more active and creative". There has b na striking increase both in the frequency with which judiciel review has been invoked and in the readiness of the courts to intervene, The courts have extended the duty to hear, which ves strictly over- lapping with quasi-judicial function and which wes deter- mined with extremely legalistic tests to various other administrative functions have narrowed doun governmentel privileges and immunities such es privilege to withhold disclosure ef documents and have also liberalised the rules of locus standi thus making the remedial institutions more easily accessible, All these developments have also taken plage in Indien Administrative Lau in which the scope of judicial review is bound to be much greater and significant due to the written Constitution and a decleration of funda~ mental rights, By 42nd Constitutional Amendment Act, 1976, Part XIV-A has bean added in the Constitution by which Art,323=A and Art.323-842) were inserted in the Constitution which enables Parliament to constitute administrative tribunals for dealing207 with certain disputes, Parliement may by lew specify the jurisdietion, power and authority of such tribunals and prescribe the procedure to be folloued by them. Such a lau may also provide for the exelusion of jurisdietion ef all eourts exeept that of the Supreme Court under Art. 136. Thus Part XIV-A inserted by the 42nd amendment has opened a neu chapter in the Indian Constitutional and Administra= tive lau, substantielly excluding or curteiling judicial review of administrative action, It is a tetrograde inno- vation aecording to Jurists*> and its object is to take avay the superiieory jurisdiction of the High Court over tribunals under Art.227. However Art.323-A and Art.323-8 are not self executing in as much as they themselves do not take avay the jurisdietion of High Courts under Art.226 or Art.227 of the Constitution, but they only enable the Par- Liament or the appropriate legislature to make lave to set up such tribunals and to exclude the jurisdiction of the High Courts under Art.226 or Art.227.44 In exercise of the povers conferred by Art.323-A of the Constitution, the Parliament enaeted the Central Adminis- trative Tribunals Aet, 1985, Section 28 of the Act excluded power of judicial review exercised by the High Courts in service matters under Art.226 and Art.227. However it has not excluded the judicial review entirely in as much as the jurisdiction of the Supreme Court under Art,32 and Art. 136 of the Constitution was kept intect. The Constitutional velidity of the Act vas challenged before the Supreme Court in Sampeth Kumar v. Union of India.45 The Constitutional Bench of the Supreme Court headed by Bhaguati C.J. upheld the validity of the Act, Speaking for the majority RanganathMishra J. (as he then was) observed : "We heve already seen that judieial review by this court is left wholly uneffected and thus there 1s a forum where matters of importence and grave injustice can be braught for determination or recti~ fication,” Thus exelusion of the jurisdiction of the High Courts does not totally avoid judieial review, This Court in Minerva mills4 did point out thet "effective alternative institutional mechani nts for judicial review" 8 or arrang jan be made by Parliament, Thus it is possible to set up an alternative institution in plaee of the High Court for providing judieial review, The tribunal has been conter- plated as a substitute and not as supplemental to the High Court in the echeme of administration of justice, What, however, has to be kept in view is that the Tribunal should be a real substitute for the High Court not only in form and dejure but in content and de fasto. Under sections 14 and 15 of the Act, all the powers of the Court in regard to matters specified therein vest in the tribunal, either Central or Ste Thus the tribunal is the substitute of the High Court. In separate but concurring judgement Bhaguati C.J. observed ¢ "This Constitutional amendment authorising exclusion of the jurisdiction of the High Court under Art.226 and Art.227 postulates its validity that the lay made thereunder clause (1) of Art,323-A excluding the jurisdiction of the High Court under Art.226 and Art.227 must provide for an effective alternative institutional mechanism or authority for judicial review. If this constitutional amendment vere(JAYAKAR 5 & LIBRARY 4 ) \ 20g to permit a leu m under Art.325-A clause (1) to exclude the jurisdiction of the High Court under Art.226 end Art.227 without setting upon an effective alternative institutional mechanism or arrangement for judicial review, it wollld be violetive of the basic structure doctrin& and hence outside the Constitutional povers of the rliament. It must there- fore be read as implicit in this constitutional amendment - that the lau excluding the jurisdiction of the High Court under Art,226 and Art, 227 permidsible under it must not leave @ void but it must eet up another effective institu- tonal mechanism or authority and vest the power of judicial review in it, Consequently the impugned Act excluding. the jurisdiction of the High Court under Art,226 and Art.227) in respact of service matters and roasting such jurisdiction, |» v in the Administrative Tribunal can pi 3 the test of consti< | | oe (d) of Art.323-A, only if it can be shoun tha © the Adminis-. tutionality as being within the ambit and coverage of cla trative Tribunal set up under the impugned Act is equally efficacious as the High Court, so far as the power of judi~ cial review over service matters is concerned,” 47 In these circumstances in J.8,Chopra v. Union of Indie48 the Supreme Court held that the Administrative Tribuhal has juriediction, pover and authority to decide even the consti- tutional validity or otheruise of any statute, statutory rule, regulation er notification. A question of gr t public importance having a far, Teaching effect apese in the case Sembamurthy v. State df Aa.P.49, In this case the constitutional validity of clause (5) of Art.371-D cf the Constitution was challenged, which210 was introduced in the Constitution by the 32nd Amendment Aet. 1983, Thus clause (5) decide whether it would confirm the order or modify or even pouered the State govern annul it, Taking judicial notice of the fact that almost invariably in every service dispute brought before the Ad~ ministrative Tribunal, the State government was a party, which was granted ultimate authority to uphold or reject the determination of the Administrative Tribunal, the Supreme Court held the provision unconstitutional and ultra vires, Bhaguati C.J. observed : "It would be open to the State Government after it lost before the Administrative Tribunal, to set at naught the decision given by the Administrative Tribunal against it, Such a provision is to say the least shocking and is clearly subvarsive of the principles of justice. Hou can a party to litigation be given the power to override the deeision given by the tribunal in the litigation, without violating the basic concept of justice? It would vitiate the entire adjudicative process. Not only is the pover conferred on the State government to modify or annul the decision of the Administrative Tribunal startling and uholly Tepugnant to our notion of justice but it is also a pover whieh can be abused or misused." 51 Further, the court observed that "the pover of modi- fying or annulling an order of the Administrative Tribunal conferred on the State government under the proviso to cla (5) 4s violative of the rule of law which is eleaely@ basic and essential feature of the constitution. It is a basic prinsiple of the rule of lay that the exercise of power by the executive or any other authority must not only be conditioned by the constitution but also must be in aecordance with law and the power of judicial review is conferred by the Constitution with a view to ensuring that the leu is obsarved and there is compliance with the require- ment of lau on the part of the executive and other authori- th It 4s through the power of judicial review conferred on an independent institutional authority such as the High Court that the rule of law is maintained and every organ of the State is kept within the limits of lau. Now if the exercise of the power of judicial review can bs set at naught by the State government by overriding the decision given by the Administrative Tribunal against it. Such a provision is to say the 1 t, shocking and is clearly subversive of the principle of justice. How can a party to Litigation be given the power to override the decision given by the Tribunal in the litigation, without violating the basic concept of justice? It would vitiate the entire Not only is the power conferred on adjudicative proce: the Stete governmant to modify or annul the decision of the Administrative Tribunal startling end uholly repugnant to our notion of justice but it is also @ power which can be abused or misused." Further, the court observed that "this power of modi- fying or annulling an order of the Administrative Tribunal conferred on the State government under the proviso to clause (5) is violative of the rule of law which is clearly @ basic and executive feature of the constitution, It is@ basie prineiple of the rule of lav that the exercise of pouer by the executive or any other authority must not be conditional by the Constitution but must also be in aecor= dance with lau and the power of judicial review is confer- red by the Constitution with a view to ensuring that the lau is observed and there is compliance with the require= ment of lau on the part of the executive and other authori- ties, It 1s through the pover of judicial review conferred on an independent institutional authority such as the High Court that the rule of law is maintained and every organ of the State is kept within the limite of lau, Nou if the exercise of the power of judicial review can be set at naught by the State government by over-riding the decision given against it, it would sound the deathknell of the rule of lau. The rule of lau will cease to have any meaning be- eause then it would open to the State government to defy the lew and yet to get evay with it, The proviso to clause (5) of Art, 371-D ie therefore clearly violative of the basic structure doctrine, 52 In Rajuanshi v. State of U.P.9> the constitutional validity of section 6(4) of the U.P. Industriel Disputes Act, 1947 was challenged. The said provision empovered the State government to remit any avard passed by a Labour Court or Industrial Tribunal in an industrial dispute refe- red to it for reconsideration, It was contended that Se 6(4) conferred uncontrolled and unguided power of adminis- trative review on the State government over quasi-judicial decision, Holding the provision unconstitutional and ultra vires, the Supreme Court observed :"Section 6(4) of the Act does not require the State governmont to hear the parties before passing en order Tomitting the avard for reeonsideration of the adjudicating authority, It does not also require the State government to inform the adjudicating authority the specific points on which the adjudicating authority has to reconsider the avard, The said sub-section also doas not impose any res~ triction on the scope and nature of proceeding that has to take plage before the Labour Court or the Industrial Tri- bunal after the avard is remitted to it by the State govern- mont. Thus it is seen that the efféct of an order passed by the State government under section 6(4) of the Act can be in @ given case a toal annulment of the avard submitted by the Labour Court or the Industrial Tribunal originally under sub-section (1) of Section 6 of the Act. Sub=section (4) of Section 6 of the Act also does not contain any guide- Lines regarding the circumstances in which the State govern= ment can éxereise its power under that sub-section.” The court further observed that the State government was also required to state the grounds why and on what points the State government was not satisfied uith the auard and the question on whieh the Labour Court or Indus- trial Tribunal was required to reconsider the averd, It vas also open to the State government to delegate the power under section 6(4) to any other person or authority, The Act was applicable to disputes in industries ouned by the State government and their workmen, For all those reasons the court declared sub-section (4) of section 6 ultra vires - feo.214 challenged on various grounds. It may be challenged on various grounds, It may be challenged on the ground that the authority acted without or in excess of the power. Although en authority is at liberty to act uhile acting within the power, the courts may interfere if (1) the findings on fact are perverse or (2) if there is an error of law apparent on the face of the record, or (3) if the rule of natural justice has been violsted or (4) if the discretion has been exercised on irrelevant grounds or mala fide, The power of judicial review is an integral part of the Indian Constitutional system and without it, there will be no government of laus, and the rule of lay would become at ing illusion and a promise of unreality., If there is one feature of our constitution which more than any ether, is basic end fundamental to the maintenance of democracy and the rule of lau, it is the power of judicial review, The judiciary has been made the interpretor of the Consti~ tution and has been ssigned the delicate task to determine what is the power conferred on each branch of the government and to see that it does not trans§ress such limits. It is for the judiciary to uphold the constitutional valuss and te enforce constitutional limitations, That is the essence of the rule of lau. Ultra vires Doctrine The term ‘ultra vires' uas first used to denote excess of legal authority by independent statutory bodie: and the railuay companies in the middle years of nineteenth century, though the main features of the doctrine to whichthis name was given had already beon taking shepe over a long period in reletion to the power of the Common Lau Corporetions. The term came to be used in relation to Municipal Corporations, then to the other types of loeal governmental authorities, and finally to the Croun and its servants and even to inferior officers. The doctrine of ultra vires, which in England applies to the acts of the Executive was made applicable to the ests of the colonial legislatures also, The Indian law on judi- cial control of administrative action, therefore, develop on the lines of the Anglo Saxon Lau. 5. Leek of Jurisdiction A tribunal or an administeative authority must funetion within its jurisdiction, If it acts beyond its jurisdiction the courte will issue either Certiorari or Prohibition to quash its action or to prevent it from exceeding its juris- diction, If the tribunal declines to exercise the jurisdb- tion, Mandamus will issue to compel it to exercise it. In Ebrahim Aboobeker v. Custodian General of Evacuee PropertyS6 tho Supreme Court stated that vant of jurisdiction may arise from (i) the subject matter being outside the scope of the power of the tribunal, or (ii) the absence of some ential preliminary, or (iii) the erronsous determination of some facts collateral to the actual matter which the court hes to try and which is a condition precedent to the assumption of jurisdiction by it.16 6, Judicial Control of Administrative Discretion Judiciel poliey regarding the exercise of adminis- trative discretion was stated by the Supreme Court as follous:57 "The Court is not an appellate forum uhere the eorrect- Rass of an order of Government could be canvassed and indeed, it has no jurisdiction to substitute its oun vie For the entirety of the pouer, jurisdiction and discretion in that regard is vested by leu in the Government. The only questicn uhich could be considered by the Court is uhether the authority vested vith the power has peic attention to or taken into account circumstances, events or matters uholly extraneous to the purpose for uhich the power vas vested, or whether the progeedings have been initiated mala fide satisfying grudge of the authority. 58 The principle that the courts vill not set aside the conclusion of an administretive authority on the ground that it has wrongly exercised its discretion hes been leid doun in @ number of cases, 59 The best explanation of administrative discretion is given by Professor Freund.59 It is as follous + “When we speek of administrative discretion, ue mean that a determination may be reached in part at least, upon the basis of consideration not entirely susceptible of proof or disproof, It may be practically convenient to say that diseretion includes the case in which the ascertainment of fact is legitimately left to administrative determination™.20 As ag al rule, it is accepted that courts have no pover to interfere with the action taken by adminis trative authorities in exercise of discretionary powers. Lord Halsbury expressed similar view in the following etetement : “Where the Legisleture h confided the pouer to a particuler body with a diseretion how it is to be used, it is beyond the power of any court to contest that discretion.®! In India the same principle is eccepted and in a number of cases the Supreme Court has held that courts heve no pover to interfere vith the orders p: ed by the administrative authorities in exercise of discretionary pouers,62 This does not hovever mean that there is no control over the discretion of the administration, The Adminis- tration possi es vest discretionary pouers and if complete and absolute freoy"1s given to it, it will lead to arbitrary exercise of pouer, The uider the discretion the greater is the possibility of abuse, "Every pover tends to corrupt absolutely, The wider the pover, the greater the need for the restraint in its exercise." There must be control over discretionary powers of the administration so that there will be @ 'government of laus and not of men’, It is not only the power but the duty of the courts to see that dis- cretionary povers of the administration may not be abused and the administration should exercise them properly, res- ponsibly and with @ view to doing uhat is best in the public interest. It 1s from this presumption that the courts take their warrant to impose legal bounds on even the most exten= sive discretion,64The exercise of administrative discretion may be challenged on any one of the following grounds t (1) that it was not exercised for the purpose for which it was given. These are cases of ultra vires which ue have already dealt withs (2) that it has been exercised so the fundamental rights guaranteed by the Constitution; (3) to violate any of that the authority exercising it has not applied its mind; (4) that the authority has not acted on any material but in an arbitrary manner; (5) that the authority has taken irre- evant considerations of has failed to take into account relevant considerations, and (6) that the authority has acted mala fide, That the Authority has not applied its mind : This ground requires further discussion, When a dis~ cretionary power is conferred on an authority, the said quthority must exercise that pover after applying ite mind to the facts and dircumstances of that cai If this con- dition is not satisfied, there is clear non-application of mind on the part of the authority concerned. The Authority might be acting mechanically without due care and caution or without a sense of respopsibility in the exercise of its discretion, Thus in Emperer V, Sibnath Banerjee®5 an order of preventive detention vas quashed as it had been issued in a routine manner on the recommendation of Police authori- ties and the Home Secretary hii 1f had not applied his mind and satisfied himself that the impugned order was called for. It transpired at the hearing of the case before the Court that the Home Department followed the practice of issuing a detention order automatiéally whenever the Police recor mended it and the Home Secretary did not personally satisfyhimself on the materials plsced before him whether the issue af the order of preventive detention in the particular case was justified or not, It was held that the Home Seeretary's Personal satisfaction in each case of detention vas a condi~ tion precedent to the issue of the order, otherwise it vould be quashed, Withdraval of Prosecution. Section 321 of the Code of Criminal Procedure, 1973 (section 494 of the Old Criminal Procedure Code) gives power to the Public Prosecutor to decide whether a prosection deserves to be withdraun in the interest of the administra- tion of justice, The District Magistrate or the Superin- tendent of Police cannot order the Public Prosecutor to move for the withdraval altheygh it may be apen to him to bring to the notice of the Public Prosecutor materials and suggest to him to consider whether the prosectuion should be vith- draun, Where the Public Prosecutor and afteruards the Magistrate surrender this discretion, they have not applied their mind,*’ It 4s not expedient to proceed with the pro- secution. He has to make out some ground uhich vould shou that the prosecution might not be able to produce sufficient evidence to sustain the charge or that the prosecution does not appear to be well-founded or that there are other eir- cumstances which clearly show that the object of admini tration of justice vould not be advanced or furthered by going on with the prosecution. The ultimate guiding consi- deration muet be the interest of the administration of justice. In Sheonandan Paswen v. Bihar66 the Supreme Court speaking through Islam and Misra JJ, in a majority judgmentheld that the Public Prosecutor was bound to receive instruc- tions from the Government and such instructions would not unt to an extraneous influence. The Court pointed ut that he could not file an application for withdrawal of prosecution without such instructions, The decision to withdrew @ prosecution is an executive decision uhich has got to be taken by the Public Prosecutor, Nobody can compel him to de so, He must apply his mind and decide, In preventive detention, the deteining authority must apply its mind and decide whether detention is necessary. He cannat mechanically sign the detention order. The sufficiency of grounds is not justifiable. That the Authority has not acted on any material An authority uhich orders preventive detention has to be satisfied that the activities of the detenu are such as warrant hig detention, The legislature has entrusted the pouer of deciding to a specific functionary, he alone must decide it, He cannot delegate that power to another person unless ths lau allows such delegation, In the case of dis- cretion, it is not a matter to be delegated. A qui judicial body cannot be asked to exercise its discretion according to instructions given by some other bedy, In the preventive detention oi the courts have insisted that there must be grounds on which the satisfaction of the detaining authority is based and although sufficiency of the grounds is for the autherity to considers uhether the grounds have @ nexus with the satisfaction about the deten- tien is for the courts to consider. Thereby the courts make sure that the authority had applied its mind, Under section 35(1) of the Advocates Act, 1961, the State Bar Council hasaa te apply its mind and form a reasonable belief about the exidance of a prima facie case of misconduct against an advocate before referring his c to the disciplinary committes for disposal, Where a resolution vas passed by the Council referring the complaint to the committee in a routine manner without forming an epinion that there uas a prima facie c! thn reference was held invalid.§? The satisfaction of authority, hovevar, is entirely subjective, But it must be besed on some material and such material must have @ nexus with the activities of the detenu. Thus, mere allegations in the F.1.R. without showing that the autho= rities had any valid reasons to believe those allegations to be true, cannot constitute materiel far the subjective setisfaction under Sections 3(2) and 8 of the National Security Act, Similarly, offences which are said to have been committed by the detenu as Par back as on 27th February 1980, could hardly form a ground for his detention on a date as late as 10th July 1981, Every minor infraction of law having @ panel sanction cannot be upgraded to the height of an activity prejudicial to the maintenance of public order so &s to justify a detention order under the J&K Public Safety Act, 1978. That the Authority has acted arbitrarily A decision is said to be arbitrary when it is based en more whim or caprice or purely subjective likes er dis- likes or irrational beliefs, Arbitrariness means leck of objectivity, It also means lack of predictability. Lav never gives the power to act arbitrarily, Arbitrariness also results in discrimination, Therefore, decisions should be besed on knoun principli In fact, when @ decision is taken without applying the mind or under the distation of222 some body er on irrelevant considerations or out of malice, it is arbitrary, But arbitrariness gay exist without male fides, Even an honest person with the best of intentions may act arbitrarily if he cannot show the logical bases of his decision, Thus uhere tenders are invited and conditiens are set out in the notice for accepting the tenders, accep- tence of @ tender uhich does not fulfil the conditions is an arbitrary act, Where tenders are invited, rejecting the lowest quotation without assigning any reason is arbitrary. Appointment of Assistant Government Pl lors by the Collector, on the basis ef a panel of advocates submitted by the Tahsil- de® through the Revenue Divisional Office vas held to be illegal, Where the petitioner applied for grant of privi- lege to supply bhe arrack and his application w: nded recom by the Commissioner, disapproval by the Government on tho ground that the applicant carried on another businsss of money lending was held to be arbitrary. The pouer to abolish @ post which may result in the holder thereof ceasing to be @ government servant {9 inherent in the right to create it, Vhethor or not a post should be retained ie a policy decision. But the decision should be taken in good feith and the action to abolish a post should not just be pretence to get rid of an inconvenient incumbent. Where section 17 of the Land Acquisition Act permits the Government to acquire land for an urgent purpose without geing through the formalities provided by Sections 4 to 9 of that Act, the acquiring authority is the beat judge of the situation and its decision, basically subjective, would normally be not interfered with by the High Court. But where no factor is disclosed and no consideration revealed, where the Court is left in the dark and the aggrieved person233 left in the lurch, the application of the urgency clause is put in serious jeopardy, It stands exposed to the court's interference and renders itself liable to be struck doun, If the Government is satisfied that a sudden situation has arisen uhich calls for immediate action then only s.17 can be invoked, The satisfaction can be reached on the basis ef the circumstances existing at the time of the notification under 9.17, Uhere @ disciplinary authority dispenses yith the enquiry of © delinquent servant belonging to Railuay Protection Force under rule 47, ths disciplinery authority must give reasons in uriting as to why it is not reasonably practical to follow the procedure for holding an enquiry, The reasons have to be recorded in order that a delinquent could challenge the seid order before the appellate autho- rity. An authority, refusing registration under Section 49 of the Trade and Merchandise Marks Act, 1958, on the ground of “interest of the general public and development of indi- genous industry" must state the actual facts on hich the action is proposed to be taken, However, an allegation of acting unreasonably as vell as arbitrary must be proved. Where the Government has discretion to refer or not to refer a dispute for adjudication und 4-k of the U.P. Industrial Disputes Act, it need not give reasons for its refusal to refer a dispute. The Government is required to give reasons if it does not accept the recommendations of the Public Service Commission, The reasons, however, have to be given to the legislature. Relevant Considerations Overlooked & Irrelevant Considerations Imported, Whers = decision is taken without taking into accountthe relevant factors or is based on irrelevant considerations, it is @ result of @tbaneous exercise of discretion, An autho- rity must take inte account the considerations which a State prescribes expr: ly or impliedly. In case the statute dees not prescribe any considerations but confers paver in a general way, the court y still imply some relevant censi- derations for the exercise of the power and quesh an order because the concerned authority did not take these into account, When reneual of a licence was refused on the ground that it could not be issued to two partnership firms having common partners, the decision of the Collector under the Foodgrains Dealers Licensing, 1961, was quashed because it vas beesd on grounds which vere extraneous to the require- ments of the Order, The grounds of detention must be per- tinent and relevant, proximate and not stale, unprecise and vague. The Court pointed out that irrelevance, stelene and vagueness were vices, any single one of which was suffi- cient to vitiate an order of preventive detention. where incidents of 7 years ago were relied on by the detaining authority for detaining a person, the order of detention could not sustain. Individual actions which do not disturb the even tempo of life in society cennot cause apprehension in the minds of the authorities regarding the maintenance of public order, Criminal cases in which the detenu ui found to be not guilty could not form part of the grounds of detention. Reliance on such grounds was not permissible, Past conduct or antecadent history of a person can appro- priately be teken into account in making @ detention order. here an order of detention is based on distinct and separate grounds, the entire order will fall to the ground if any ofgrounds is found vague or irrelevant or non-existent. where however, the Court 4s satisfied that the authosity vould have passed the order on the basis of the other relevant and existing ground could not have affected the ultimate decision, the order may be sustained. Inclusion of irrele- vent grounds in the groundsaf detention communicated to the detenu vitiates the order of detention for reasons: (1) it vielates the right of detenu to be informed of the Qrounds of detention, and (2) it violates the detenuts right to be afferded en oppertunity to make 2 representation against the proposed detention. There is a specific provi- sion in the COFEPOSA in Section SA that where there are a number of grounds of detention covering various activitie: of detenu spr: ding over @ period or periods, each activity 4s a separate ground by itself for detention and if ons ef grounds is irrelevant, vague or unspecific, then that would not vitiate the erder of detention. This is, hovever, an exception, As a rule where subjective satisfaction is based on @ number of grounds, the erder of detention would be set aside if one of the grounds ie vague or irrelevant. In Zora Singh v. J.M,Tandon®® it was held that if amongst the reasons given by # quasi-judicial body, some vers extranseus, yet if 8 were relevant and could be censi-~ dered sufficient, the conclusions of the quasi-judicial body would not be vitiated, The Court drau a distinction between @ decision in which the conclusion was bai dan subjective satisfaction ef authority and whare it Was based on ebjec~ if the finding can be sustained on the rest of the evidence, the decision tive facts and evidence. In the ‘latter ca is valid. In Maursinhe v. .P.°% the Madhya Pradesh High Court held that an order of supersession of the Municipalitii226 Act, 1954, based on several grounds, most of which were found to be irrelevant, was invalid. In Dhirajlal v. Com: joner of Income Tax,70 Bombay, it was held that where the tribunal acted on material partly relevant and partly irrelevant, it was impossible to aay to what extent its finding was vitiated. Section 237 (b) of the Companies Act, 1956, provides that the Central Government may investigate the affairs of any Company if in the opinion of the Government there are circumstances suggasting that the affairs of the company are nat managed properly. On behalf of the Central Government, the Company Lau Board ordered an enquiry into the affairs of the appellant company, This enquiry vas challenged in Barium Chemicals Ltd. v. Company Lau Board,?? made (1) that the order was mala fide because the Minister Tuo contentions vere of Finance vas interested in the prosperity of a rival com- pany where his son was serving and had (2) the order vas bi ed on extraneous matters. The first ground vas rejected, But the majority consisting of Hidayatullah, Bachauat and Shelat J3., upheld the second contention. The reasons given by the Gompany Lau Board for investigating the company's affairs vere : (1) there was delay and faulty planning of the project resulting in double expenditure and continueus lean te the company; (2) the value of the company's shares had gone down and (3) soma eminent persons had declined the membership of the Board, Nr.Justice Hidayatullah observed that from the above circumstances the inference that there ues fraud in the company's affairs was far fetched, Accor- ding to Bachavat J., the above reasons and the inference offraud were not logically connected and accerding to Shelat J, the reasons were relevant to the grounds mentioned in the act, The Court observed : "The words, "reason to believe" or "in the opinion of" do not aluays lead to the construction that the process of entertaining “reasons to believe" or "the epinion” is an altogether subjective process not lending itself even to a limited scrutiny by the court that such "a resson to believe” or "opinion" vas not formed on relevant facts or within the limits. . exist or that they are such that it is impossible for any id things, the opinien is challengeable on the ground of non- . If it is shown that the circumstances do not one to form an opinion therefrom suggestive of the afore: application of mind or perversity or an the ground that it wi formed on collateral grounds". In Rohtes Industries v. S.D.Agarval’? an investiga- tion ordered under Section 237 of the Companies Act was ence again held to be bad on the ground that the circumstan— c shoun by the Company Lau Board did not lead to the con= clusion of fraud on the part of the company. The Company Lau Board gave tuo reasons for the enquiry : (1) that there were complaints ef misconduct against one of the leading directors of the company in relation to other companies subject to his control for which he was being prosecuted and (ii) the com- pany had arranged to sell the preference shares of the face value of Re.3 lacs of another company held by it for inade- quate consideration, The Court held that the first r son was net relevant and the second wes without evidence, where an application fer affiliation of a college to a University vas rejected on the ground that it was the policy of theGovernment not to allow any non-Government institutions in the Faculty of Ettucation without going inte the proficiency or excellence of the courses of study, it was held that the decision uas invalid, Where the order of compulsory retirement was passed without taking into account the last years’ confidential reports, it was held to be invalid because a relevant factor had been averteoked, While fixing the b ic minimum price of sugarcens the interests of consumers must be taken into consideration, Rajastham v. India73 was a major judicial pronounce- ment on the exercise of administrative discretion. The Union Home Minister had written to the Chief Ministers of nine that in view of results of Lok Sabha Elections, in ys Party led by Mrs.Indira Gandhi had lest sta which the Congr the majority in the Lek Sabha and had been rejected in most of those states, they should tender resignations and face the electorate, If they did not, the Government might advise the President to dissolve the legislative assemblies of those states. The Chief Ministers of those states came to the Supreme Court under Article 131 of the Constitution, Under Article 356 of the Constitution the President is to be satisfied "that @ situation has arisen in which the govern- ment of the state cannot be carried on in accordance with the provisions of the Censtitution", The question which the Court was required to consider was whether the exercise of power under Article 356 of the Constitution was subject to judicial review, Clause(S) of the Article 356 precluded tion any challenge "on the ground" against the procl whereby the Presidential rule was sought to be imposed. Bhaguati and Gupta 33,, hovever, observed that although the229 Court could not go into the correctness of the decision, if the satisfaction of the President was bi don mala fide or wholly extraneous or irrelevant grounds, the court would have jurisdiction to examine it because in that case there weuld be no satisfaction of the President. Although the satisfaction of the President could not be challenged, Beg C.J. also agreed that the Court had the pouer to inquire into jurisdictional qu J. (as he then wi this view, tions. The other judges Chandrachud ) Goswami 3, as well as Fazl Ali J. shared "The Dissolution Case, as it is knoun thus added one more dimention to judicial review of administrative discre~ tion, It meant that the area of unsevieuable discretion is now considerably narrowed. It also meant that an ouster clause as existed in clause (5) of Airticle 356, and which has, since then, been deleted by constitutional amendment could not stop the court from enquiring into the exercise of administrative discretion. Previously, the Court had held that satisfaction of the executive must be based on Fight tests and right construction of a statute; and an materials uhich had probative value and were such as a rational human being would consider connected with the fact in respect of uhich the satisfaction uas to be reached, the satisfaction ought to be based on relevant and neu extraneous considerations, The "Oissolution Case” signifi- cantly widened the area of judicial review. Recently the Supreme Court in S.R.Bommai and other v. Unien of India”4 categorically stated that ‘the proclamation under Art 356 (1) is not immune from judicial review. The Supreme Court or the High Court can strike down the proclamation if it is found to be mala fide or based on wholly irrelevant or230 extraneous grounds, The deletion of clause (5) removes the cleud on the revievability af the action, When called upon the Union of India has to produce the material on ths basis of uhich action uns teken, It cannot refuse to do so, £f it seeks to defend the action. The court will not go inte the correctness of the materiel or its adsquacy, Its inquiry is limited to see whether the material is ierelevant, The court cannot interfere so long as there is some material which is relevant to the action taken. 8. Mala fide Exercise of Pouer Where 2ctual purpose is different from that uhich is authorised by lau, and the discretionary pouer is used asten- sibly for the authorised but in reality for the unauthorised d male fide. This purpose, the power is seid to be exerci is also called abuse of power. This principle was developed by the Conseil d'Etat in France and is knoun es detournemant ge puveir. A typical example in French Lav is the case uhere @ prefect used his powers to requisition a gas company in order to realise by an indirect means his oun policy in favour of nationalisation of public utilities, In Nalini Mohan v. District Magistratie?75 Malda, the High Court of Calcutta held an order ultra vires and illegal because the power given by the onabling law for the purpose of rehabilitating the persons displaced from their residences within the ste ult of communal riots im that country, In Ahmedabad Manufacturing and Calico Printing Co. v. The Municipal Corporation?6 Ahmedabad, the Bombay High Court found that the power of the Corporation to refuses a permit for the construction of a new building was used to bring indirect pressure on the ouners to construct drainage231 to their other already existing buildings which the Municipal Corporation had no legal authority to order directly, The Court issued @ urit of mandamus directing the Corporation to grant the permission required, Similerly, in Ahmed Hussain ve MP.” of mandamus from exercising its power of requisi- tion with the ulterior purpose of dislodging a particular tenant because of the religious susceptibiliti, lord, In M/s.P.S. Traders & Exporters v. 0.G.£apen”® it vas held by the Supreme Court that the Iron and Steel (Control) of the land- Order could not be used for imposing on the export licensee @ condition which was foreign to the Import and Export (Control) Act, 1947, and the Export (Control) Order under which such a licence had bean given. In Pratep Singh v. Punjeb?9 the appellant wes employed ae a civil surgeon by the respondent uhen he proceeded on leave preparstory to retirement. His leave was at first grented, but efter about six months of the grant, the leave wes cancelled end he wae put under suspension and an enquiry was instituted against him on the charge of receiving a sum of Rs.16 Prom a patient in an illegal manner during the period he was working as 2 civil surgeon. The petitioner alleged that tha procasdings had been instituted against him at the instance of tha then Chis? Minister ta ureak personal vangsence on him, as he had not yielded to the illegal demands af the former. The court upheld ths contention of the peti- tioner that tha exercise of power uas mala fide and observed + "In the circumstances we are satisfied that the dominant motive which induced the Government to take action against the appellant uas not to take disciplinary oroceedings against him for misconduct which it bone fide believed he; 222 had ‘oi itted, but to wreak vengeance on him for incurring his wrath and for the discredit he had brought on the Chief Minister by the allegations that he had made in the article which appeared in.the Blitz magazine in its desue dated Jahuary 15, 1961 follewed by the communication to the same magazine by the appellant's wife, in which these allegations were affirmed and uhich in large part ue heve found to be true, We therefore hold that the impugned orders vere vitiated by mala fid » in that they were motivated by an improper purpose which was outside that for which the pover or discretion was conferred on Government and the seid orders should therefore be set aside.” Similarly in State of Punjab v. Gurdial Singh89 the land acquisition proceedings for acquiring the lend of the petitioners for building 2 mandi were challenged on the ground that they were mala fide, It vas alleged thet the proceedings were initiated as a result of the influence wielded by 2 Minister, uho vas related to the ounsr of the lend which was sought to be acquired initially and then dropped. In the absence of any effidavit by the Minister denying the allegations, the court held the proceedings mala fide, Krishna Iyer J, observed : "Not that this lend is naeded for the mandi, in the judgement of the Government, but that mandi needed is hijecked to reach the private destination of depriving an enemy af his land through back- seat driving of the Statutory engine.” Again in the case of Shivajireo Patil v. Mahesh Madhav Gosevi®! a, the daughter of then Chief Minicter of Mah rashtra appeared for M.D, examination along with ether233 students. &, uho failed at the examination filed a urit petition in the Bombay High Court. Relying upon the circum= stences the High Ceurt held that altering and tampering with the mark sheets had been done by the person conducting the examination at tha behest of the then Chief Minister, The Chief Minister resigned but filed an appsai to the Supri Court. Confirming the judgement of the High Court, the Supreme Court further observed thet "there was no question of giving clean chit to the then Chisf Minister, It left a great deal of suspicion that tampering was done to please Shri,Patil or at his behest, Though there vas no direct evidence to link him up with tampering, certain facts, such as tampsring, relationship, etc. were established. The reluctancs to face @ public enquiry by the then Chief Minister te be conducted by @ body nominated by the Chief Justice of the High Court was also obvious, Apparently Shri,Patil, though holding » public office did nat believe that, Caeser's wife must be above suspicion, According to the Court the facts disclosed ‘a sorry state of affairs’ and an attempt was made to pass the daughter of erstuhile Chiof Minister, who had failed thrice before, by tampering with the record, Speeking for the court Mukherjee J, obser- ved : "It has to be borns in mind that things are happening in public 1ife which were never even anticipated before and theresere several glaring instances of misuse of power by nin authority and position, This is a phenomenon of which the courts are bound to take judicial notice.” Mukherjee J, further ebserved : "This Court cannot be ablivious that there has basn a steady decline of public ary to clear standards or public morals, It is nepublie life in this country along uith or even before clean- sing the physical atmosphere, The pollution in our velues and standards is an equally grave menace as the pollution of the environment. Where such situations cry out, the courts should not and cannot remain mute and dumb." Locus Standi The Supreme Court can issue a urit under Article 32 of the Constitution only for enforcement of any fundamental right conferred by the Constitution, The powersof a High Court are wide in this respect as it can issue a urit for enforcement of any fundamental right and also for other ‘purposes mentioned in sub cleuses (b) and (c) of cleuse (1) of Article 226. As a general rule, @ person uho approaches the court must prove his right which can be enforced by the court by issuing an appropriate writ, Sut this rule does 8 of writs of Habeus Corpus and not strictly apply in cel quo warranto, Thus, @ non-citizen cannot file e writ peti- tion for the enforcement of a fundamental right conferred only for @ citizen, Such right must be an existing right. A busy body is not to be encouraged to challenge an act or omission of an authority which does not prejudicially affect him. 8l1t is not necessery that @ urit petition can be filed only uhen there is actual invasion of @ right. It can be filed even vhen there is reasonable apprehension of invasion of the right of the petitioner. But the traditional rule of locus standi was throun out by the Supreme Court uhile inter- preting it very dynamically, Since the era of public inte- 82 Test litigation began in the Indian Constitutional Juris-prudence, the doctrine of locus stendi has been liberalised by the court. Now not only the aggrieved person, but any other person or organisation can also go to the court of lew against the violation of fundamental rights of others and in which he/it does not have any vested interest, As Krishna Iyer J, said, ‘the narrow concept of “aggrieved person® and individual litigation is becoming obsolescent in some juris- dictions. Gur current proceesual jurieprudence is not of individualistic Anglo-Indian mould, It is broad based and people oriented, and envisions access to justice through ‘class actions', public interest litigation and 'reprasen- tative proceedings’. Indeed little Indian in large number secking remedies in courts through collective procesdings, instead of being driven to an expensive plurality of liti- gations is an affirmation of participative justice in our democracy, 83 In peoples Union of Democratic Rights v. Union of Indie®*, Bhaguati J. observed + "The traditional rule of standing which confines access to the judicial process only to those to uhom legal injury is caused or legal urong is done has now been jetti~ soned by this court and the nerrou confines within uhich the rule of stending vee imprisoned for long years as a result of inheritence of the Anglo-Saxon system of jurisprudence have been broken and a neu dimension has been given to the doctrine of locus stendi which hes revolutionised the uhole concept of access to justice in a uay not knoun before to the western System of Jurisprudence, This court has taken the view that, having regard to the peculiar socio-economicconditions pre iling in the country where there is consi- derable poverty, illiteracy and ignorance obstructing and impading accessibility to the judicial process, it would result in closing the doors of justice to the peor and deprived sections of the community if the traditional rule of standing evolved by Anglo-Saxon jurisprudence that only @ person uranged can sue for judicial redress were to be blindly adhered to and followed, and it is therefore neces~ sary to evolve a new strategy by relaxing this traditional ily rule of standing in order that justice may become available to the lowly and the lest." The Suprema Court invoked the liberalised doctrine of locus standi in various cases.®5 dactrine of locus standi which has vital importance in an Indian Judicial Proce since liberalised and because of judicial activism and Creativity, flood gates of litigation in the Supreme Court were opened for the public interest litigation, It should not, havever, be lost sight of that public interest liti- gation has its oun socio-economic change and in @ heirar~ chical society organised around privilegs, patronage and pouer, it cannot be brought about just by a few public interest litigation actions, housoaver well intentioned. It is @ continuous ardueus task which only the social activists can undertake, Public interest litigations can at best serve as just one more weapon in the armoury of the social activist,86 Urite in Particular 1, Habeas Corpus Habeas carpus is a urit in the nature of an order calling the person who has detained another to produce thelatter before the court, in order to let him free if there is no legal justification for the imprisonment. In other words, by this urit the court directs person or authority who has detained another person to bring the body of pri- soner before the court so that the court may decide the validity, jurisdiction or justification for such detention. Habeas corpus has been described as 'a great consti- tutional privile: It provides prompt and effective remedy against illegal restraint on liberty, As Lord Uright hes observed 'the incelculable value of hebeas corpus is that it enables the immediate determination of the right of the appellant's freedom, If the court comes to the conclu- sion that there is no legal justification for the imprison- ment of the person concerned the court will pass an order to set him at liberty forthuith.®? Thus the object of the writ of hal 8 corpus is to releese a person from illegel detention and not to punish the detaining authority, The question for a habeas corpus court is whether the subject is lawfully detained, If he is, the writ cannot issue; if he is not it must issue, 88 (a) Conditions The urit of habeas corpus may be issued uhen the procedure established by lau has not been followed in case of detention of a person, or the order of detention is not in accordance with the provisions of the constitution, or the law under which he has been detained is ultra vires or invalid, or where there is abuse of statutory pouer, or mala fide exercise of power by dataining authority,238 (b) Who may apply? An application for the urit of habeas corpus may be made by person illegally detained, But if the p#isoner hae If is unable to make such epplication it cen be made by any other persan having interest in the prisoner. Thus a uifs, father, or even a friend may in such circumstances make an spplication for the urit of habeas corpus. (c) Procedure Every application for the urit of habeas corpus must be accompanied by an affidavit stating the facts and cir cu ances leading to the making of such application, If the Court is tisfied that there is a prima facie case for granting the prayer, it will issue rule nisi calling upon the detaining authority on a specified day to shou cause as to why the rule nisi should not be made absolute. On the specified day, the Court will consider the merits of the end will pass an appropriste order. If the Court is of the opinion that the detention vas not justified, it will issue the urit and direct the detaining authority to release the prisoner forthuith. On the other hand, if accerding to the Court, the datention was justified, the rule nisi uill be discharged. Where there is no return to the rule nisi, the prisoner is entitled to be released forthwith, 2. Mandamus Mandamus {8 an order issued by 2 court to a public authority asking it to perform a public duty imposed upon it by the Constitution or by any other lau, It is a judicial remedy uhich is in the form of an order from @ superior Court (the Supreme Court or High Court) to any Government, court,234 corporation or public authority to do or to forbear © from some spacific act which that bedy is obliged under law to do or refrain from doing, as the case may be and which is in the nature of a public duty and in certain cases of a statutory duty, (8) Condition A urit of mandamus cen be issued if the following conditions are satisfied by the petitioner: + (i) The petitioner must have a legal right, Thus, uhen the petitioner contend that his juniors had been promoted by the Government and he had been left aut, and the Court held that the petitioner was not qualified for the post, his petition vas dismissed, (44) A legal duty must have been imposed on the authority and the performance of that duty should be imperative, not discretionary or optional, There must be in the applicant @ right to compel the performance of some duty cast on the opponent. Thus, if at its oun discretion, Government makes @ rule to grant dearness ajlowance to its employees, there is no legal duty and the writ of mandamus cannot be issued 89 against the Government fer performance of that duty. (441) The duty must be statutory; one imposed either by the Constitution,92 or by any other statute, or by some rule of common law92, but should not be contractual. (iv) In certein circumstances, hovever, even if discre- tionary power is conferred on the authority and the statu- tory provisions are made for such exercise of the said power, the urit of ment of that duty.% ndamus can be issued for the enforce-ayo (v) The duty must be of @ public nature. 94 (vi) If the public authority invested with discretionary power abuses the power, or exceeds it, or acts mala fide, or there is non-application of mind by it, or irrelevant considerations have been taken into account, the urit of Mandamus can be issued. Who may apply A person whose right has been infringed may apply for the writ of mandamus, Such right must be subsisting on the date of filing the petition, Thus, in cese of an incorpo- rated company, the petition must be filed by the company itself, In case any individual makes an application for the enforcement of any right of an institution, he must disclose facts te relate what entitled him to make an appli- cation on behalf of the said institution, 3. Prohibition The urit of prohibition is a judicial writ, It can be issued against @ judicial or quasi-judicial authority, uhen such authority exceeds its jurisdiction or tries to exercise jurisdiction not vested in it, When matter over uhich it has no jurisdiction, the High Court or the Supreme Court can prevent it from usurping jurisdiction and keep it within its jurisdictional boundaries, 95 Condition A urit of prohibition may be issued against a judicial or quasi-judicial authority on the following grounds :24) (1) Where it proceeds to act without or in exeess of jurisdicgion, (41) Where there is a violation of the principles of natural justice, (444) Where there is infringement of the fundamental Tight of the petition Limite of the Writ of Prohibition (e) The object of the urit of prohibitian is to prevent unlavful assumption of jurisdiction, Therefore, it can be issued only when it is proved that a judicial or quasi-~ judicial authority bas no jurisdiction, or it acts in excess of jurisdiction vested on it, Prohibition cannot lie in cases where such authority having jurisdiction exercises it irregulerly, improperly or erroneously. (b) A urit of prohibition can lie only in cases where the proceedings are pending before a judiciel or quasi-judiciel authority. Thus when such authority hears « matter over which it has no jurisdiction, the aggrieved person may move a High Court for the urit of prohibition forbidding such authority from proceedings with the matter, But if the pro~ ceeding have been terminated and such authority hes becene functus officio, a urit of prohibition would not lie, %6 There the remedy may be a urit of certiorari, (ce) If the proceedings before a judicial or quasi-judicial authority are partly without jurisdiction, the urit of prohi- bition may be issued in respect of the latter. Thus if the Collector of Customs imposes invalid conditions for release of certain goods on payment of fine in lieu of confiscation,24a from enforcing illegal conditions.9? Similarly, if some proc dings are disposed of and some are still pending in respect of the pending prohihition, the urit of prohibition may be issued. 4, Certioreri Certiorari is an order issued by the High Court or Supreme Court to an inferior court or any authority exerei- sing judicial or quasi-judicial functions to investigate and decide the legality and validity of the orders passed by it. The object of the urit of certiorari is to keep all subordi- nate courts and inferior tribunals and quasi-judicial autho- rities within the limite of their jurisdiction, and if they act in excess of their jurisdiction, their decisions can be quashed by superior courts by issuing this urit.98 The Court further observed: "An appellate court might have on a review of this evidence coma to a different conclusion but these are not matters which would justify the issue of a urit of certiorari.” It also stated: "A tribunal may be competent to enter upon an enquiry but in making the enquiry it may act in flagrant disregard of the rules of procedure or where no particuler procedure is prescribed, it may violate the principle of natural justice. A urit of certiorari may be available in such cases. An error in the decision or deter= mination itself may also be amen able to a urit of certiorari but it must be a manifest error appardnt on the face of the proceedings, e.g. whan it is based on clear ignorence or dis- regard of the provision of lau. In other words it is a patent error which can be corrected by certiorary but not « mere wrong decision,In R.V. Electricity Commisstoner,99 Lord Atkin observed, “uhenever any body of pe¥sons having legal euthority to deter- mine questions affecting the right of subjects and having the duty to act judicially, act in excess of their legal autho- rity they are subject to the controlling jurisdiction of the King's Bench division exercised in these writs, From the above observations,writs of certiorari can be issued on the folloving conditions + 1) The judicial or quasi-judiciel body must have legal authority. ii) Such authority must be an authority to determine questions affecting rights of subjects. ifi) It must have acted in excess of its authority. iv) It must have duty to act judicially, Lack of jurisdiction may also arise from absence of some preliminary facts, which must exist before a tribunal exercises its jurisdiction, They are knoun as 'jurisdic- tionel' or 'colleteral' facts, The existence of these facts is @ gins qua non or a condition precedent to the assumption of jurisdiction by an inferior court or tribunal, If the jurisdictional fact does not exist, the court of the tribunal wrongly assumes the existence of such a fact; urit of certiorary can be issued. The underlying principle is that by erroneously presuming such existence an inferior court or a tribunal cannot confer upon itself jurisdiction uhich is otheruise not vested in it under the law. 12° correct propo- sition of lew was laid down by Gajendredregadkar J, in Syed Yakoob v, Radhakrishnan, 101 as follows :say "It 4s of course not easy to define or adequately describe what an error of law apparent on the face of the record means, What can be corrected by eo writ has to be an error of law, but it must be such an error of lew as can be regarded es one which is apparent on the face of record, Where it is manifest or clear that the conclusion of law recorded by an inferior court or tribunal is based on an obvious misinterpretation of the relevant statotory provision or some time in ignorence or may be even in dis~ regard of it or is expressly founded on reasons which are wrong in lew, the said conclusion can be corrected by a urit of certiorery, In ell these cases the conclusion cen be corrected by e urit of certioreri, In all these cases, the impugned conclusion should be so plainly inconsistent with the relevant stetutory provision that no difficulty is experienced by the High Court in holding that the said error of leu is epparent on the fece of it. It may also be that in some ceses the impugned error of lew may not be obvious or patent on the face pf the record as such and the court may need an argument to discover the said error but there can be no doubt that what cen be corrected by « urit of cer- tioreri is an error of law end the said error must on the whole be of such character es would setisfy the test that it is an error of law apparent on the face of the record. If a stetutory provision is reasonably capable of tuoccons~ tructions and oné construction has been adopted by the inferior court or tribunal, its conclusion may not necessarily aluays be open to correction by @ urit of certioreri. In our opinion it is neither possible nor desirable to attempt eitheras to define or to describe adequately all cases of errors uhich can be approximately described es errors of law appe- rent on the face of the record. Whether or not an impugned error is an error of lew and an error of which is apparent on the face of the record, must aluays depend upon the facts and circumstances of each case and upon the nature and scope of the legal provision which is alleged to have been mis- construed or contravened, 1024 9%. 10. 246 NOTES Bommai v. Union of Indie and others Jain & Jain, Administrative Law 4th Edn (1986) p.426 For example, under Section 10 of the Industrial Disputi Act, 1947, the appropriate Government may refer an indus~ trial dispute to a Labour Court, Industrial Tribunal or National Tribunal for adjudication, Committee on Subordinate Legislation (First Lok Sabha) * fepor' jee also C.J,Thakkar, Te pe 16. Administrative Lay (1992) p.106. In re Delhi Lave Act, AIR 1951, SC 332 Maganbhai v. State of Bombay. AIR 1961, SC 12 Avinder Singh v. State of Punjab. AIR 1979 sc 321 AIR 1967, SC 1895 Wade, Administrative Lay. p.39 AIR 1945 FC 156 10fa)AIR 1943 FC 1. WW. 12. 13, 14, 15, 16. 17, 18. 19, 20. a 22, AIR 1982 SC 917 Arbinda Das v. State of Assam, AIR 1981 Gau 18 AIR 1981 SC.711 AIR 1962 SC 97 AIR 1959 SC 569 Himmetlal v, Police Commissioner, Ahmedabad, AIR 1973 (1920)1.K.8, 829 69 Bom, L.R. (1967) Sathe, Administrative Lau, Tripathi Bombay 1984 p.220 See Article 12 of the Indian Constitution. Sukuder Singh v. Bhagatram. AIR 1975 SC 1331. Rajasthan Electricity Board v, Mohanlal, AIR 1967 Ain 1979 SE i808. (Uhevoin snagestt 3s tele oun the” test of instrumentality of a state).23, 24, 25, 26. 27. 28. 29, 30. a, 32. 33. 34, 35. 36. 37. 38. 247 Sabhajit Tiveri v. Union of India, AIR 1975 SC 1329; ‘ay Haste aiid Majib, 361, SC 487; femprakesh Rakhi v. Union of India, AIR 1981’ SC 212 K.KeKochunni v. Madras, AIR 1959 SC 725 Khyberban Tea Co. v. 1-7-0. AIR 1964 SC 925; Fertiliser Corporation Kamgar Union v. Union of India AIR 1981 SC 344 AIR 1962 SC 1621; 8 Lay 1986, p.430 Gulem Abbas v. State of U.P, AIR 1981 SC 2198 Jain & Jain opp, Cit p.431 also Jain & Jain, Administrative Takwani, Lectures on Administrative Lau, Eastern Book Co, Delhi (1980) pp 152-5 Art. 136 "Special leave to appeal by the Supreme Court ~ (1) Notwithétanding anything in this chapter, the Sup: Court may in its discretion grant special bave to appeal from any judgement, decrac, determination, sentence or order in any case or matter passed or made by any Court or tribunal in the territory of India. (2) Nothing in eleuse (1) shall apply to any judgement, determination, sentence or order passed or made by any Court or tribunal eonstituted by or under any law Telating to the Armed Forces.” Art.227 “Power of superintendence over all courts by the High Court - (i) Every High Court shall have supe intendenee over all courts and tribunals throughout the territories in ralation to which it exercises jurisdiction.. (4) Nothing in this article shall be deemed to confer on @ High Court powers of superintendence over any court or tribunal constituted by or under any law relating to Armed Forces,” Si Thakkar C.J, Administrative Lau (1992) p.224 AIR 1954, SC 520 AIR 1955, SC 188 ent _Compenios Ltd. v. P.N.Sharma, ARSE SEES > SC 1595 M,P,Jain, S.N,Jain opp. civ. The list is not exhaustive Sathe, opp. civ: p.229 AIR 1980, SC 189639, 40, 41, 42. 43, 44, 4s. 46. 47, 49, 50. 51. 52. 53. 54, 55. 56. 57. 58. 59, 248 Section 5(2), Commission of Enquiry Act, 1952 Ibid section 5(5) Robinson ~ Justice and Administrative Leu, p.309 See Indien Constitution Part XIV-A Art.323-& and Aet. 323-8 for details, enabling Parliament to provide for adjudication or triel by administrative tribunals on various matters. M.P.Jain, Constitutional Lau, 1987 p.418 See, Thakkar C.J. Administrative Lau, 1992, p.250 AIR 1987, SC 386 Minerva Mills Ltd. v. linion of India, AIR 1980 SC 1789 (1987) 1. SCC p,30-31 2.8. Chopra v, Union of India (1987) 1, SCC 362 Pefsandi°esnaily? atepsatsg'ar° any" Gace shell Bsaae effective upon its confirmation by the State governnant or on the expiry of three months from the date on which the order is made, whichever is earlier. Provided that the State Governmant may, by speeial order made in writing and for reasons to be specified therein modify or annul any order of the Administrative Tribunals before it becomes effective, and in such a case, the order of the Administrative Tribunal shall have effect only in such modified form or be of no affect, as the case may be, (1987) 1. sce 368 Ibid p. 369 (1988) 2. SCC 415 See also Thakkar O,J. Administrative Lay 1992. p.254 Minerva Mills Ltd. v. Union of India, AIR 1980 SC 1789 per Bhaguati J. AIR 1952 SC 319 Kishan Chand v, Commissioner of Police; AIR 1961 SC 705 Pratap Singh v. Punjab. AIR 1964 SC.72 ReReVerma v. Union of India (1980) 3,SCC 40260, 61, 62, 63. 64, 65. 66. 67. 68, 69, 70, mm, 72. 3. 74, 75. 76. 7 78. Frennd, Ai strative Ps 8 over persons and ba (1928) p.77 Westminster Corporation v, London & North Western O Je See 0g. AsKsGopalan v. State of Nedras, AIR 1950 SC 27; Lokhanpal v. Union of India, AYR 1967 SC 908; Ram Manohar Lohia v. » AIR 1966 SC 740 Ranjit Thakur v. Union of India, AIR 1987 SC 2386 Wade = Administrative Lau 1985 p.388; See also Thakker C.J. Adm au 1992, p.317 AIR 1945 F.C. 186 AIR 1983 SC 194 Nendlel v. Bar Council of Gujarat, AIR 1981 SC 477 AIR 1971 SC 1537 AIR 1958.9.P, 397 AIR 1985 SC 274 AIR 1967 SC 295 AIR 1969 SC 767 AIR 1977 SC 1361 Judgement Today JT 1994 2.SC 215 AIR 1951 Cal 344 AIM 1956 Bom 117 AIR 1954 MP 138 AIR 1963 Bom 50, Also see Gujarat V. Krishna Cinems AIR 1971 SC 1650 Pratap Singh v. State of Punjab, AIR AIR 1980 SC 319 AIR 1987 SC 294 Professor Upendra Baxi calls it Social Action Litigation See Baxi, Courage, Craft and Constitution (1980). A.B.SeK.Sangh v, lnion of India, AIR 1981 SC 298 AIR 1982 SC 147387. 88. 89, 90. a, 92, 93. 94, 96. 97, 38. 99, 00. 101, 102, ase se Bandha Bukit Moreha V, Union of Jodie 3 Met .Mehte v. Union of India, AIR 1988 a: SC 1115; Fertiliser Corporatian Wamger Union v. Union of India . f -P.tupts v. Undon WIR T9582 SC 149; D.C,Wadhva v. State of Bihar, AIR 1987 $C 5795 Sheela Barse v. Union of India, AIR 1988 S& 2211. Profassor S.K.Agravala, Public Entarest Litigation in India, a critique. p.45 akant v. State of Bihar, AIR 1973 SC 964 State of Madhye Pradesh v. Mandavar, AIR 1954 SC 493 Rashid v. Munfeipal Board, AIR 1950 SC 163 State of Bombay v. Hospital Mazdoor Sabha, AIR 1960 SC 610 Commissioner of Police v. Gordhandes Bhenii, AIR 1952 SC 16 Lekhraj v. Dy. Custodian, AIR 1966 SC 934 Commissioner of Police v. Gordhandes Bhanji, AIR 1952. SC 16 Sohenlel v. Ynion of Indie, AIR 1957 SC 579 Eget India Commercial Co. v. Collector of Customs ATR 1962, SC 1893 ari Vishnu Kemath v. Syed Ahemad, AIR 1955 SC 233 Seu Pujsnraf Indrasanrai v. Collector of Customs, AIR 1954 SC 440 (1924) 1,KB 174 Qerosh Miraikar v. State of Maharashtra, AIR 1967 SC.1 AIR 1964 SC 477 Ser also Associated Cement Co. Ltd. v. PeDeVyas, AIR 1960, SC 665.