Administrative Law

The Meaning, Scope, Definition and Significance of Administrative Law

INTRODUCTION
⇒ Administrative law is about the public administration of life, in the sense that the state regulates what we do
⇒ It is mainly about principles or notions of good governance, fairness, accountability, transparency, the rule of
law, parliamentary sovereignty, legality, and comity or respect for public office
 There is a clear overlap with constitutional law
WHAT IS ADMINISTRATIVE LAW?
⇒ Administrative law comprises both court-based and ‘other’ practices
⇒ By ‘court-based’ practices, we are invariably speaking of judicial review
 Judicial review is a type of court proceeding in which a judge reviews the lawfulness of a decision or
action made by a public body - this is explored in depth later
 Sometimes we feel administrative law is just about judicial review, but it is not just about the court
⇒ By ‘other’ practices there are administrative tribunals and ombudsmen (there are more, but these are of
greatest significance)
 So although we often think of administrative law comparison only judicial review, the principles of good
governance, fairness, accountability, etc. can be pursued in law without a role for the courts
⇒ That said, judicial review is the main topic of administrative law as it is a cause of action which is particularly
constitutionally significant
⇒ Also, historically speaking, judicial review has dominated the domain of administrative law and has had its
remit extended by the courts massively in the last 50 years
 Judicial review has gone through a renaissance, so the courts have made it increasingly important
⇒ But, that is not to say we should not be critical of judicial review’s prevalence
 Evidently, good governance, fairness, etc. can be pursued without much of a role for the courts - why
should we wait for things to go wrong, then bring an expensive case before the High Court in judicial
review proceedings?
 Perhaps we should be looking to improve and better governance (a belief of green light theorists)
 Or, perhaps we should just better judicial review (red light theorists)
WHO DOES THE JUDICIAL REVIEWING?
⇒ Judicial review is carried out by the High Court – specifically, the Administrative Court which is part of the
Queen’s Bench Division of the High Court
⇒ This is a senior court hearing claims in judicial review at first instance.
⇒ The High Court has an ‘inherent jurisdiction’ i.e. its powers are inherent to it and are not contingent on another
source e.g. statute (although statute may seek to limit the court’s powers)
WHO MAY BE JUDICIALLY REVIEWED?
⇒ Any public body may be judicially reviewed, except:
 Senior Courts with inherent jurisdiction
 Parliament (because Parliament is sovereign)
⇒ Some bodies which are not public bodies (or not bodies at all) but who carry out function that are public in
nature may also be amenable to judicial review
⇒ Thus, in practice, this means the following legal persons are routinely judicially reviewed (i.e. these people are
regular defendants in administrative law):
 Crown Ministers or their departments or departmental agencies;
 Local authorities (councils);
 Health trusts, police forces, and educational authorities;
 ‘Inferior courts’ and administrative tribunals;
 Regulatory and investigatory bodies;
 Other bodies established by statute or prerogative.

 Administrative law is the by-product of expanding socio-economic functions of the State and increased
powers of the government. It has become immensely important in developed societies since the
relationship of individuals with the authorities has also become complex.
Meaning:
 Administrative law is that law which deals with the relationship between a country’s citizens with the government.
It determines the organizational and power structure of the administration and quasi-judicial bodies to enforce the
rule of law. Administrative law is primarily concerned with governmental and administrative actions and process
and puts in a control mechanism to prevent administrative agencies from spiraling out of control.  It is not codified
law and rather has developed over time. It ensures that the authorities don’t misuse or abuse the powers vested in
them.
Definition:
Several jurists and scholars have defines administrative law to reveal the scope and various dimensions of this
branch of law.
Austin has defined administrative law as one which determines the ends and modes to which the sovereign power
shall be exercised. According to him sovereign power should be either exercised directly by the monarch or
entrusted to subordinate political agents holding a position of trust.[i]
Holland regards Administrative law as “one of the six divisions of public law”[ii] while Bernard Schawartz has
defined it to be the law applicable to those administrative agencies which possess adjudicatory authority of a
delegated legislation.[iii]
Ivor Jennings defined Administrative law a “the law relating to administration”. It determines the organization,
powers and duties of administrative authorities.[iv]
AV Dicey in the 19th Century provided an expansive and explanatory definition of Administrative law.  He
defined it to have the following elements:[v]
 Portion of a nation’s legal system which determines the legal status and liabilities of all State officials
 The rights and liabilities of private individuals vis-à-vis their business with public officials
 Specifies the procedure by which rights and liabilities are enforced
However, over the years this definition has been found to be problematic. It is lacking in the sense that it’s
concerned only with the singular aspect of judicial control of public officials.
Friedman, on the other hand, provides an inclusive definition. In his words Administrative law is the law
concerning the powers and procedures of administrative, especially the law governing judicial review of
administrative action.[vi] It includes:
 Administrative powers of administration
 Legislative powers of the administration at both common law and under various statutes
 Judicial and quasi-judicial powers
 Legal liability of public authorities
 Powers of ordinary courts to supervise administrative authorities
History:
Administrative law is known to be in existence since the inception of administration itself. With the growth of the
society, its complexity increased, thereby posing new problems with respect of administration. In the ancient
society the functions of the State were few and numbered with the most prominent ones being protection of the
country against foreign powers, levying of taxes maintenance of peace and order. The law is a concomitant of
administration at any given period and has been growing and developing ever since.
The ruling gospel of 19th century was the Laissez faire system which manifested in individualism, individual
enterprise and self-help. The State was characterized by minimum government; it was an era of free enterprise.
However soon it was realized that the bargaining power was not equal and uncontrolled contractual freedom lead
to the exploitation of the weak. State’s interference was recognized as essential for emancipation of the down
trodden. Therefore, state intervention was favored and there was regulation on individual enterprise.
In India administrative law can be traced back to the Mauryans and Guptas, several centuries before Christ
followed by the Mughal administration, the British and Empire and finally the modern day administrative law.
Rather the administration under the British provided the foundation for modern day administrative law. In the
modern Era with responsibilities of the State manifold, modern State is regarded the custodian of social welfare.
The growth in range of responsibilities has ushered in an era of Administrative law.     
Scope:
Administrative law determines the organization, powers and duties of administrative authorities. The emphasis of
Administrative law is on the procedural aspect of formal adjudication. Its concept founded on the following:
 Principles of natural justice
 Rule of law
 Power is conferred on the administration by law
 No power is absolute or uncontrolled howsoever broad the nature of the same might be
 There should be reasonable restrictions on exercise of such powers depending on the solution.
Since its judge made law and evolves over time, there is room for modification. While the basic principles remain
the same, the scope is wide enough to incorporate and cull out new rules and regulations, to suit the requirement of
time.
Significance:
The development of Administrative law is an unavoidable necessity of the modern times. Prior to 1947, India was
a police state, primarily interested in strengthening its own domination. Administrative machinery was mainly
implemented with the object of civil service in view. This soon came to be recognized as the ‘steel frame of Indian
polity’. Post-independence there was a change in the philosophy of Indian Constitution. It laid down lofty goals of
socio-economic equality, with public welfare being primary concern. It is an important weapon for bringing
harmony between power and justice. The Constitution governs administrators.
Administration is an all pervading feature of our lives. The ambit of administration is wide embraces several
functions:
 Policy making
 Leadership to legislature
 Execution and administration of regulations of the land
 Administering both traditional and contemporary functions of the State
 Exercising legislative powers by way of a range of bye-laws, orders, decrees, orders, etc.
About Administrative Law
Administrative law is the law that governs the administrative actions. As per Ivor Jennings- the Administrative law
is the law relating to administration. It determines the organisation, powers and duties of administrative authorities.
It includes law relating to the rule-making power of the administrative bodies, the quasi-judicial function of
administrative agencies, legal liabilities of public authorities and power of the ordinary courts to supervise
administrative authorities. It governs the executive and ensures that the executive treats the public fairly.
Administrative law is a branch of public law. It deals with the relationship of individuals with the government. It
determines the organisation and power structure of administrative and quasi-judicial authorities to enforce the law.
The growth of Administrative Law.
ENGLAND
In 1885 Albert Venn Dicey, a British jurist, rejected the whole concept of Administrative law. Hence, the
numerous statutory discretionary powers given to the executives and administrative authorities and control
exercised over them were all disregarded to be able to form a separate branch of law by the legal thinkers. Until the
20th Century, Administrative law was not accepted as a separate branch of law. It was only later that the existence
of Administrative law came to be recognised.
The Lord Donoughmore Committee, in 1929, recommended for better publication and control of subordinate
legislation. The principle, King can do no wrong, was abolished and the scope of Administrative law expanded by
virtue of the Crown Proceeding Act in 1947 which allowed initiating civil proceedings against the Crown as
against any private person.
UNITED STATES OF AMERICA
In the United States of America, the existence of administrative law and its growth was ignored until it grew up to
become the fourth branch of the State. By then many legal scholars like Frank Goodnow and Ernst Freund had
already authored a few books on Administrative law.
It was in 1933 that a special committee was appointed to determine how judicial control over administrative
agencies could be exercised. Thereafter, in 1946 The Administrative Procedure Act was passed which provided for
judicial control over administrative actions.

INDIA
The Mauryans and the Guptas of ancient India had a centralised administrative system. It was with the coming of
the British that Administrative law in India went through a few changes. Legislations regulating administrative
actions were passed in British India.
After independence, India adopted to become a welfare state, which henceforth increased the state activities. As
the activities and powers of the Government and administrative authorities increased so did the need for ‘Rule of
Law’ and ‘Judicial Review of State actions’.
Reasons for growth of Administrative law.
The concept of a welfare state
As the States changed their nature from laissez-faire to that of a welfare state, government activities increased and
thus the need to regulate the same. Thus, this branch of law developed.
The inadequacy of legislature
The legislature has no time to legislate upon the day-to-day ever-changing needs of the society. Even if it does, the
lengthy and time-taking legislating procedure would render the rule so legislated of no use as the needs would have
changed by the time the rule is implemented.
Thus, the executive is given the power to legislate and use its discretionary powers. Consequently, when powers
are given there arises a need to regulate the same.
The inefficiency of Judiciary
The judicial procedure of adjudicating matters is very slow, costly complex and formal. Furthermore, there are so
many cases already lined up that speedy disposal of suites is not possible. Hence, the need for tribunals arose.
Scope for the experiment
As administrative law is not a codified law there is a scope of modifying it as per the requirement of the State
machinery. Hence, it is more flexible. The rigid legislating procedures need not be followed again and again.
Difference between Administrative law and Constitutional law.
There are significant differences between Administrative law and Constitutional law.
A Constitution is the supreme law of the land. No law is above the constitution and hence must satisfy its
provisions and not be in its violation. Administrative law hence is subordinate to constitutional law. In other words,
while Constitution is the genus, administrative law is a species.
Constitution deals with the structure of the State and its various organs. Administrative law, on the other hand,
deals only with the administration.
While Constitution touches all branches of law and deals with general principles relating to organisation and
powers of the various organs of the State; administrative law deals only with the powers and functions of the
administrative authorities.
Simply speaking the administrative authorities should first follow the Constitution and then work as per the
administrative law.
Administrative Law in India
Administrative law in India attempts to regulate administrative actions by controlling delegated legislation and
subjecting administrative discretionary actions to judicial review. It also provides for the constitution of tribunals
and their composition.
Delegated Legislation
When the functions of Legislature is entrusted to organs other than the legislature by the legislature itself, the
legislation made up by such organ is called Delegated Legislation. Such a power is delegated to the
executives/administrators to resolve the practical issues which they face on a day-to-day basis.
The practice of delegated legislation is not bad however the risk of abuse of power is incidental and hence
safeguards are necessary.
There are three measures of controlling abuse of power through delegated legislation (as adopted in India)-
Parliamentary Control
Parliamentary control is considered as a normal constitutional function because the Executive is responsible to the
Parliament.
In the initial stage of parliamentary control, it is made sure that the law provides the extent of delegated power. The
second stage of such control involves laying of the Bill before the Parliament.
There are three types of laying-
Simple laying
In this, the rules and regulations made come into effect as soon as they are laid before the Parliament. It is done to
inform the Parliament, the consent of the Parliament with respect to its approval of the rules and regulations made
are not required.
Negative laying
The rules come into force as soon as they are placed before the Parliament but cease to have effect if disapproved
by the Parliament.
Affirmative laying
The rules made shall no effect unless approved by both the Houses of the Parliament.
Procedural Control
Procedural control means the procedures defined in the Parent Act (Act delegating the legislating power) have to
be followed by the administrative authority while making the rules.
It involves pre-publication of the rules so that the people who would be affected by the proposed rules know it
beforehand and can make representations if they are not satisfied.
After pre-publication is done and once all the concerned bodies, persons and authorities have been consulted the
rules are to be published in the official gazette so that the public is aware of the existence of the rules.
Judicial Control
The judiciary looks into the following aspects to determine the legal validity of the rules so made using the power
so delegated-
1. If the administrative legislation is ultra-vires the Constitution.
2. If the administrative legislation is ultra-vires the Parent Act.
3. If the administrative legislation is arbitrary, unreasonable and discriminatory.
4. If the administrative legislation is malafide.
5. If the administrative legislation encroaches upon the rights of private citizens derived from the
common law, in the absence of an express authority in the Parent Act.
6. If the administrative legislation is in conflict with another statute.
7. Power of the legislating authority to legislate the rule.
8. If the administrative legislation is vague.
 Judicial Review
Judicial review deals with three aspects-
 Judicial review of legislative action.
 Judicial review of the judicial action.
 Judicial review of administrative action.
When it comes to administrative law judicial review of administrative action becomes a vital part of it.
An administrative authority must have discretionary powers to resolve real-time issues. However, the decisions
taken by exercising these discretionary powers must be reasonable. Reasonableness is the ‘Rule of Law’s’ response
to the challenge of discretion. It brings discretionary powers closer to ‘rule of law’ ideas of transparency,
consistency and predictability. Through the process of judicial review- administrative action and discretion are
checked and controlled.
Judicial review ensures the legality of the administrative action and keeps the administrative authority within its
bounds. The Court inquires if the administrative authority acted according to the law.
Administrative adjudication – Tribunals.
Tribunals are constituted for speedier adjudication of disputes and settlement of complaints. In a tribunal, matters
are adjudicated by a Bench comprising both judicial and non-judicial members. Tribunals are not, however, a
substitute for Courts. In India, there are a number of tribunals which are constituted under the Central Acts. Some
of the Tribunals are listed below.
1. Administrative Tribunal- constituted under the Administrative Tribunal Act, 1985.
2. Industrial Tribunal- constituted under the Industrial Dispute Act, 1947.
3. Railway Rates Tribunal- constituted under the Railway Act, 1989.
4. Claim Tribunal- constituted under the Motor Vehicle Act, 1939.
5. Income Tax Appellate Tribunal- constituted under Income Tax Act, 1961.
6. National Green Tribunal- constituted under National Green Tribunal Act, 2010.
7. Competition Appellate Tribunal- constituted under the Competition Act, 2002.
In L. Chandra Kumar v Union of India, the Supreme Court had held that tribunals are the court of first instance in
respect of the areas of law for which they were constituted. All the decisions of the Tribunals are, however, subject
to scrutiny before the Division Bench of the High Court within whose jurisdiction the concerned tribunal would
fall, through an appeal.
Lokpal and Lokayuktas Act, 2013
The Lokpal and Lokayuktas Act, 2013 is an anti-corruption Act which provides for the establishment of the
institution of Lokpal which would inquire into allegations against public functionaries and matters connecting
them. The Act provides for an investigation into complaints of maladministration. The office of the Lokpal is an
equivalent to that of an Ombudsman.
The Act was a result of the massive public protest against corruption under the leadership of Anna Hazare.
The Lokpal is an officer of the Parliament having as his primary function, the duty of acting as an agent for the
Parliament for the purpose of safeguarding citizens against the abuse or misuse of administrative power by the
executive.
Right to Information Act, 2005
The Act provides for the right to information of citizens to gain access to information under the control of public
authorities. The Act promotes transparency and accountability of every public authority.
The Act is essential as it keeps the citizenry informed and holds the Government and its agencies accountable to
the governed.
Evolution and Scope of Administrative law.
Nature, scope and development of administrative law.
As one begins to study the specifics of a particular branch of law it becomes important to know why and how the
said branch of law came about.
Administrative law is a judge-made law which evolved over time. It is not a codified law. The need for it arose
with the increase in administrative actions and its discretionary powers.
Rule of law and administrative law.
The concept of ‘rule of law’ is that the State should be governed by principles of law and not of men.
Administrative laws ensures that ‘rule of law’ prevails despite the presence of discretionary powers vested in the
administrators. Administrative law developed to restrict the arbitrary exercise of powers by subordinating it to
well-defined law.
Separation of Powers and its relevance.
‘Separation of power’ is one of the basics on which the State machinery works. However, with the increase in
administrative actions/powers, it is seen that the doctrine cannot be practised with rigidity. Every organ of the State
is dependent on the other for smooth functioning, thus, the doctrine of separation of power cannot be exercised by
placing the organs of the State in watertight compartments. There has to be a flexible approach while ensuring that
no organ encroaches upon the functions of another.
The relationship between Constitutional law and Administrative law.
As every law of the State must satisfy the Constitutional benchmark, it is essential to know the relationship
between the Constitutional law and the Administrative law of the State. Constitutional law is the genus and
administrative law its species, hence the judge-made law must comply with the constitutional provisions.
Legislative Functions of Administration.
Delegated legislation and its constitutionality.
The Administrative authorities are delegated the power to legislate by the Legislature. Administrative law
examines whether the power so delegated to the administrative authorities is permissible within the constitutional
definition or not.
Control Mechanism.
As the administrative authorities are given the discretionary powers to legislate delegated legislation;
administrative law puts in place a control mechanism which keeps a check on the power so exercised by the
authorities through-
 Parliamentary control of delegated legislation,
 Judicial control of delegated legislation,
 Procedural control of delegated legislation.
Sub-delegation.
When administrative authorities further delegate the power delegated to them it is called sub-delegation. However,
such sub-delegation is allowed only when the Act delegating the power to the administrative authorities allows it.
Administrative law ensures that sub-delegation of power is as per the law and that such a provision (of sub-
delegation) does not make the administrator lethargic.
Judicial Functions of Administration.
Need for devolution of adjudicatory authority on Administration.
The judiciary of the State could not put in place a mechanism for speedy adjudication, moreover, there was a
backlog of cases. Adjudicatory authority was hence devolved upon the administration to resolve the issue.
However, it is not an absolute substitute of the judiciary.
Problems of administrative decision making.
Though the administration has been given adjudicatory authority to a certain extent, there are lacunas in the
administrative adjudication. For instance, the procedure of a proceeding before an administrative adjudicatory
authority is not defined, there is an unsystematic system of appeal, the decisions of the authority are not recorded
and vesting of overlapping functions in the same authority are the problem in administrative adjudication.
Nature of Administrative Tribunals.
Thereafter, the nature of administrative tribunals is assessed. The Constitution, powers, areas pertaining to which a
Tribunal shall adjudicate is defined.
Principles of Natural Justice.
Administrative law requires that the administrative adjudicatory authority adjudicates matters applying the
principles of natural justice, which are namely-
  Rule against bias: That no person should be a judge in one’s own case and that justice should not only be
done but seen to be done.
 Audi Alteram Partem: That every person has the right to be heard before a matter is adjudicated in his
favour/against him.
 Speaking order (Reasoned decisions)- That the adjudicating authority must provide the reason behind
its decision. This is a newly evolved principle which aims at curbing arbitrariness on part of the
adjudicating authority.
 Judicial Control of Administrative action.
 Judicial review of administrative action.
The judiciary keeps a check on the other organs of the State through judicial review. The grounds on which this
power is exercised on the administrative authority are-
 Abuse of discretion,
 Failure to exercise discretion,
 Illegality, irrationality and procedural impropriety.
Evolution of the concept of Ombudsman.
The concept of Ombudsman evolved to keep a check on the administrative action. An ombudsman is an
independent officer of the Legislature who supervises the administration and deals with complaints against
maladministration by the administrative authority. It is a check on the administrative bodies by the Legislature.
Utility of Administrative Law –
As Wade has defined administrative law as a law which relates to control of governmental powers which keep the
within their legal bounds so as to product citizen against their abuse .it like balancing of the function of the state.
Major Functions of the State -
The functions of a modern state may broadly be placed into five categories, viz, the state as a) protector, b)
provider, c) entrepreneur, d) economic controller and e) arbiter. 
Protector  – a right to life, liberties, properties which are enshrined in the constitution is to be protected by the
state. we will feel secured only when our rights are protected.
Provider –State has to provide livelihood, distribution of natural and materials resources.
Entrepreneur (enterprise) - According to Duguit State is the largest enterprise State has provide employment in
fact, the State is an employer as well as the employee.
Economic controller – Tax, levies, duties, tolls, etc, are economic activities in which the state is engaged.
Arbitrator –  similarly, these administrative agencies also exercises power of adjudication of disputes by
establishing number of administrative tribunals. 
       In India, we have witnessed a very slow growth of administrative law. the various areas in which
administrative law has developed are public safety , public health, morality, trading activities, industrials
development, etc.

Separation of Powers and its Relevance

The concept of separation of powers refers to a system of government in which the powers are divided among
multiple branches of the government, each branch controlling different facet of government. In most of the
democratic countries, it is accepted that the three branches are the legislature, the executive and the judiciary.
According to this theory, the powers and the functions of these branches must be distinct and separated in a free
democracy. These organs work and perform their functions independently without the interference of one into
others in order to avoid any kind of conflict. It means that the executive cannot exercise legislative and judicial
powers, the legislature cannot exercise executive and judicial powers and the judiciary cannot exercise legislative
and executive powers.
Objectives of Separation of Powers--The following are the fundamental objectives of the doctrine of separation
of powers:-
Firstly, it aims to eliminate arbitrariness, totalitarianism and tyranny and promote an accountable and democratic
form of government.
Secondly, it prevents the misuse of powers within the different organs of the government. The Indian Constitution
provides certain limits and boundaries for each domain of the government and they are supposed to perform their
function within such limits. In India, the Constitution is the ultimate sovereign and if anything goes beyond the
provisions of the constitution, it will automatically be considered as null, void and unconstitutional.
Thirdly, it keeps a check on all the branches of the government by making them accountable for themselves.
Fourthly, separation of powers maintains a balance among the three organs of government by dividing the powers
among them so that powers do not concentrate on any one branch leading to arbitrariness.
Fifthly, this principle allows all the branches to specialize themselves in their respective field with an intention to
enhance and improve the efficiency of the government.
Elements of Separation of Powers
Legislative
The legislative organ of the government is also known as the rule-making body. The primary function of the
legislature is to make laws for good governance of a state. It has the authority of amending the existing rules and
regulations as well. Generally, the parliament holds the power of making rules and laws.
Executive
This branch of government is responsible for governing the state. The executives mainly implement and enforce
the laws made by the legislature. The President and the Bureaucrats form the Executive branch of government.
Judiciary
Judiciary plays a very crucial role in any state. It interprets and applies the laws made by the legislature and
safeguards the rights of the individuals. It also resolves the disputes within the state or internationally.

Separation of Powers in Practice

U.K. Constitution
The United Kingdom practices the unitary parliamentary constitutional monarchy. The concept of separation of
powers is applied in the UK but not in its rigid sense because the UK has an unwritten constitution. The Crown is
the head of the state whereas the Prime Minister is recognised as the head of the government. The executive and
the legislature are somehow interconnected to one another.

The executive powers are exercised by the Crown through his government. Thus, the Crown is the nominal head
and the real executive powers vest in the Prime Minister and the other Cabinet Ministers. The UK parliament is
bicameral and divided into two houses – The House of Commons and House of Lords. The Parliament is the
sovereign rule-making body in the UK. The Prime Minister and the other cabinet ministers are also a part of The
House of Commons. The government is answerable to the Parliament.
U.S. Constitution
The US has a written constitution and governed by the Presidential form of government. The cornerstone of the
Constitution of the United States is the doctrine of separation of powers. This concept is well-defined and clear
under the American Constitution.
Article I – Section 1 of the American Constitution states that –
“ All the legislative powers are vested in Congress.”
Article II – Section 1 of the American Constitution states that –
“ All the executive powers are vested in the President.”
Article III – Section 1 of the American Constitution states that –
“ All the judicial powers are vested in the federal courts and the Supreme Court.”
Australian Constitution
Australia is governed by a federal parliamentary constitutional monarchy system. The Australian Constitution had
borrowed the concept of separation of power from the U.S. Constitution. The first three chapters of the Australian
Constitution defines the three different organs of the government- the legislative, the executive and the judiciary.
The legislative branch includes the Parliament of Australia, the executive comprises of the Queen, Governor-
General, Prime Minister and other ministers.
Indian Constitution and Separation of Power
Like the United Kingdom, India also practices the parliamentary form of government in which executive and
legislature are linked to each other. So, the doctrine of separation of powers is not implemented in its strict sense.
However, the composition of our constitution creates no doubt that the Indian Constitution is bound by the
separation of powers. There are various provisions under the Indian Constitution that clearly demonstrate the
existence of the doctrine of separation of powers. This principle is followed both at the centre and the state level.
Provisions that Substantiate Separation of Power
Article 53(1) and Article 154 of the Indian Constitution clearly say that the Executive powers of the Union and the
States are vest in the President and Governor respectively and shall only be exercised directly by him or through
his subordinate officers.
Article 122 and Article 212 of the Indian Constitution state that the courts cannot inquire in the proceedings of
Parliament and the State Legislature. This ensures that there will be no interference of the judiciary in the
legislature.
Article 105 and Article 194 of the Indian Constitution specify that the MPs and MLAs cannot be called by the
court for whatever they speak in the session.
Article 50 of the Indian Constitution encourages the separation of judiciary from the executive in the states.
Article 245 of the Indian Constitution gives authority to Parliament and State Legislature for making laws for the
whole country and the states respectively.
Article 121 and Article 211 of the Indian Constitution state that the judicial conduct of any judge of the Supreme
Court or High Court shall not be discussed in Parliament or State Legislature.
Article 361 of the Indian Constitution specifies that the President and the Governor are not accountable to any
court for exercising their powers and performance of duties in his office.
Overlapping Provisions
Article 123 of the Indian Constitution allows the President to issue ordinance when both the houses are not in
session.
Article 213 of the Indian Constitution gives power to the Governor to issue ordinance when state legislative
assembly is not in session.
Article 356 of the Indian Constitution lays the provision of Presidential Rule in case of state emergency.
Article 73 of the Indian Constitution specifies that the powers of the executive shall be co-extensive with that of
the legislature.
Article 74 of the Indian Constitution states that the council of ministers shall aid the President in the exercise of his
executive functions.
Article 75(3) of the Indian Constitution makes the Council of Ministers collectively responsible to the House of the
People.
Article 61 of the Indian Constitution lays the provision of Impeachment of the President by passing a resolution
from both the houses in order to remove the President.
Article 66 of the Indian Constitution states that the election of Vice-President is done by the electoral members of
both the houses.
Article 145 of the Indian Constitution allows the Supreme Court to make laws with approval of the President for
the court proceedings and the practices.
Article 146 of the Indian Constitution lays the provisions for the appointment of the servants and officers of the
Supreme Court by the Chief Justice of India with consultation from President and the Union Public Service
Commission.
Article 229 of the Indian Constitution lays the provision for the appointment of the servants and officers of the
High Courts with the consultation of the Governor and the State Public Service Commission.
Article 124 of the Indian Constitution gives the President the power to appoint the judges of the Supreme Court.
Article 72 of the Indian Constitution empowers President to grant a pardon or suspend the sentence of any person
who is convicted by the Supreme Court of India.
Article 32, Article 226 and Article 136 of the Indian Constitution provide the power of judicial review to the
Supreme Court to strike down any law made by the Parliament or any administrative action which is found to be
unconstitutional.
Judicial Approach towards Separation of Power in India
The court has interpreted the applicability of the doctrine of separation of power in India in many case laws.
The very first judgment with relation to the separation of powers was given by Mukherjee J. in the case of Ram
Jawaya Kapur v. State of Punjab[3]. He concluded that-
“ The Constitution of India has not acknowledged the doctrine of separation of power emphatically but the
functions and powers of all the organs have been adequately distinguished. Thus it would not be wrong to say that
Indian constitution does not behold assumptions rather it works in a flexible manner considering the needs of the
country.
In the case of Indira Nehru Gandhi v. Raj Narain[4], Ray C. J. said:-
“ A rigid sense of separation of powers which has been given under the American and Australian constitution does
not apply to India.”
Beg J. further added that:-
“ The separation of power is a part of the basic structure of the constitution. So, the schemes of the constitution
cannot be changed even after restoring Article 368 of the Indian Constitution.”
In Golak Nath v. State of Punjab[5], it was observed by Subba Rao C.J. that:-
“ The three organs of the government have to exercise their functions keeping in mind certain encroachments
assigned by the constitution. The constitution demarcates the jurisdiction of the three organs minutely and expects
them to be exercised within their respective powers without overstepping their limits. All the organs must function
within the spheres allotted to them by the constitution.
Separation of Powers: A Barrier to Administrative Law
Administrative law is a branch of public law that determines the organisation, powers and duties of administrative
authorities. The principle of separation of power creates a demarcation among the three organs of the government.
But in the present scenario, administrative law is antithetical to this principle. With the emerging pattern of
globalized interdependence, the administrative agencies are not just exercising the administrative functions but also
practises quasi-legislative and quasi-judicial powers, thus, violating the principle of separation of powers.
The relevance of separation of powers in the Modern Era
Although, the doctrine of separation of powers does not have the rigid applicability that does not imply that it has
no relevance in the current scenario. The core objective of the doctrine of separation of powers is to keep checks
and balances among the three organs of the government which is an essential factor to run a government
dynamically. The logic behind this doctrine is not the strict classification rather it is the avoidance of concentration
of powers to a specific person or a body. This theory is not operative in its absolute sense but yes, it is very
advantageous if applied correlatively. Thus, not impenetrable barriers and unalterable frontiers but mutual
curtailment in the exercise of powers by the three organs of the state is the spirit of the doctrine of separation of
powers.

Criticism
Every doctrine has some effects and defects. The separation of powers might have proved to be flawless
theoretically but it cannot be applied comprehensively in real life situations. There are certain drawbacks and
limitations to it.
It is extraordinarily difficult to distinguish the powers of the legislature, executive and judiciary precisely. A
smooth and stable government can exist only if there is cooperation among the three organs. Any attempt made to
separate these organs into watertight compartments may lead to failure and inefficiency in the government.
If this concept is adopted in its totality, then it will become impossible to take certain actions. Consequently,
neither the legislature can delegate the law making power to the executive which may have expertise in the subject
matter, nor the courts can make laws related to the functioning of courts and proceedings.
Delegated Legislation and its Control
Delegated legislation is generally a type of law made by the executive authority as per the powers conferred to
them by the primary authority in order to execute, implement and administer the requirements of the primary
authority. It can be said that it is the law made by any person or authority under the power of parliament. It is also
known as subordinate legislation in administrative law. It allows the bodies beneath the primary authority or
legislature to make laws according to the requirement. Through an act of Parliament, Parliament has full authority
to permit any person or authority to make legislation. An act of parliament creates a framework of a particular law
which tends to be an outline of the purpose for which it is created. The important object of this is that any
legislation by such delegation should be according to the purposes as laid down in the act.

The main feature is that it allows the state government to amend the laws if there is any need without delaying for
the new act to be passed by the Parliament. If there is any requirement then sanctions can also be altered by the
delegated legislation as the technology changes. It is believed that when such authority is delegated by the
Parliament to any person or authority it enables such person or the authority to provide more detail to the act of the
Parliament.
For example, the local authority has power conferred by the superior one to make or amend laws according to the
requirement of their respective areas. The delegated legislation plays a very important role as the number of them
are more than the acts of the Parliament. It has the same legal standing as the act of Parliament from which it is
created.
There are three forms of delegated legislation i.e., statutory instrument, orders in council and by-laws.
Statutory instruments
They are the one which is formed by the government. For example – a parent act is an act which permits the
parliament for making the law. Orders in the council are generally made by the government when there is a need
and it can affect the public at large as well as an individual.

By-Laws
They are created by the local authority which is approved by the Central Government. There are many reasons for
the delegation of the legislature. The parliament does not have that much time to deliberate and debate about every
topic. Therefore, delegated legislation helps in making laws rapidly than the Parliament and the procedure of the
Parliament is also very slow as the bills for every law needs to pass from every stage. Further, it is also believed
that the Member of Parliament does not possess the technical ability which is required to make law.

For example – making any law regarding taxation requires knowledge as well as experience which can be done by
the person who is professional in that field. In the case of welfare purpose, the local authority can understand the
needs of the people in his area more effectively than others. The democratic bodies have many important powers
for the delegated legislation which can be easily used for updating the legislation according to the requirement
which leads to social welfare.

But there should be control over delegated legislation. Delegated legislation is controlled by the Parliament and the
Judiciary. Parliament has the overall control over the delegated legislation as it takes account with the statutory
committees which make law through bills. The main object of parliamentary control is to look that there is no
abuse or unnecessary use of the powers given to rulemaking authorities.

Cases
In the case of Narendra Kumar v. Union of India, it was held by the Supreme Court that the provision under
Section 3(5) of the Essential Commodities Act, 1955, which explains that any rules framed under the Act must be
presented before both the houses of the Parliament. Therefore, clause 4 of Non – Ferrous Control Orders, 1958 has
no effect until it is presented in the Parliament.
There are a number of rules in the area of judicial control over the delegation of legislation which is laid down by
the judiciary.
In Chandra Bhan’s case, it was held that the delegation of legislation must be reasonable and should not suffer
from any unreasonableness.
Delegated legislation should protect the rule of law and there should be no arbitrariness. Rules framed which
violates the Parent Act are illegal. Rules framed which violates any other statute should also be considered as void.
Delegated legislation made with mala fide intention is also considered illegal.
Factors responsible for the rapid growth of Delegated Legislation
Pressure on Parliament – The number of activities in states is expanding which requires law and it is not possible
for the Parliament to devote sufficient time to every matter. Therefore for this, the Parliament has made certain
policies which allows the executives to make laws accordingly.
Technicality – Sometimes there are certain subject matters which requires technicality for which there is a
requirement of the experts who are professional in such fields and members of Parliament are not experts for such
matters. Therefore, here such powers are given to experts to deal with such technical problems like gas, atomic,
energy, drugs, etc.
Flexibility – It is not possible for the Parliament to look after each contingency while passing an enactment and for
this certain provisions are required to be added. But the process of amendment is very slow as well as the
cumbersome process. Thus, the process of delegated legislation helps the executive authority to make laws
according to the situation. In the case of bank rate, policy regulation, etc., they help a lot in forming the law.
Emergency – At the time of emergency, it is not possible for the legislative to provide an urgent solution to meet
the situation. In such case delegated legislation is the only remedy available. Therefore, in the times of war or other
national emergencies, the executives are vested with more powers to deal with the situation.
The complexity of modern administration – With the increasing complexity in modern administration and the
functions of the state being expanded and rendered to economic and social spheres too, there is a need to shift to
new reforms and providing more powers to different authorities on some specific and suitable occasions. In a
country like Bangladesh, where control over private trade, business or property may be needed to be imposed, and
for implementation of such a policy so that immediate actions can be taken, it is needed to provide the
administration with enough power.
Advantages of Delegated Legislation
1. Save time for the legislature.
2. Allow for flexibility.
3. Expert opinion is required in legislation.
4. Parliament is not always present in the session.
5. Used as an experimental basis.
6. It is restored to use it in a situation of emergency.
7. Can be easily Settle down with consulting the required party of the case.
Criticism of Delegated Legislation
 1. It has a long duration of bearing for legislative control because the legislature is the supreme organ of the
state as it consists of three main organs which are: Judiciary, Legislative and Executive.
2. All of them have to work with or in relation to each other and it should be done in a balanced way on the
basis of power given to each organ for working effectively. Instead of various advantages, delegated
legislation has weakened the legislative control executive.
3. The executive has become stronger with delegated legislation, it can easily encroach the rules and
regulation of legislation by making rules.
4. This concept opposes the rule of Separation of Power.
5. Lack of relevant discussion before framing the law.
6. It is not in acceptance with the principle of rule of law.
7. It is not stable in nature, it keeps on fluctuating on the ground of Political changes.
Classification of Delegated Legislation
Power to bring Act into Action As it is already given that in a specified date this Act will come into force
prescribed by Central or State Government by giving a notice in the Official Gazette.
In A.K. Roy vs. Union of India, case Supreme Court held that executive has the power to bring the Act into force
and it should not be excessive in delegated power of legislation. So, here the court rejected the contention that the
power was excessive in nature as per prescribed. It was practically difficult for enforcement. Therefore, power is
given to the executive authority to decide the date of enforcing the act.
Conditional Legislation the rules are framed or designed by the legislature but to implement or enforce it, is done
by the executive organ, so executive has to look that what all conditions need to be fulfilled to bring it in operation.
If all conditions are satisfied then it is well and good otherwise notice will be issued to bring the law into operation
and it is known as Conditional Legislation.
Condition legislation is of following types
1. Power to bring the act into action.
2. Power to extend the time period or life of the act.
3. Power to extend the application of the act to any territory and to make restriction or make an alteration in
the act itself.
4. Exempt the operation on certain ground or subjects of territories.

Parliamentary or Legislative Control

Under parliamentary democracy it is a function of the legislature to legislate, and it’s not only the right but the duty of the
legislature to look upon its agent, how they are working.
It is a fact that due to a delegation of power and general standards of control, the judicial control has diminished and shrunk its
area.
In India “Parliamentary control” is an inherent constitutional function because the executive is responsible to the legislature at
two stages of control.
1. Initial stage
2. Direct and Indirect stage
In the Initial stage, it is to decide how much power is required to be delegated for completing the particular task, and it also
observed that delegation of power is valid or not.
Now, the second stage consists of two different parts.
1. Direct control
2. Indirect control
Direct control
Laying is an important and essential aspect under direct control and it is laid down as per the requirement which means that
after making the rule it should be placed before the Parliament. It includes three important part as per the degree of control
needs to be exercised.
1. Simple Laying
2. Negative Laying
3. Affirmative Laying
And “test of Mandatory” & “Test of Directory” are two main test.
Test of Mandatory – Where the laying demand is a condition pattern to guide the rule into impact then in such a case laying
need is mandatory.
Where the provision is mentioned that the rules should be drafted in a particular format then it becomes mandatory to follow
the format.
Test of Directory – Where the laying need is next to enforce the rule into operation then it will be directory in nature.
Indirect control
This is a control exercised by Parliament and its committees. Another name for such type of committee is Subordinate
legislation. The main work of the committee is to examine
 1. Whether rule are according to general object of the act.
2. It bars the jurisdiction of the court in direct or indirect ways.
3. Whether it has retrospective effect or not.
4. Whether it safeguard or destroy the Principle of Natural Justice.
5. Expenditure involved in it is from Consolidated fund.
Procedural and Executive Control
There is no particular procedure for it until the legislature makes it mandatory for the executive to follow certain rules or
procedure.
To follow a particular format it may take a long time which will definitely defeat the actual objective of the act. Hence,
procedural control means that under Parent act certain guidelines are given which need to be followed while whether it is
mandatory or directory to follow it or not. It includes three components:

1. Pre publication and consultation with an expert authority,

2. Publication of delegated legislation.
3. Laying of rules.
It can be either Mandatory or Directory, to know, certain specified parameters are given:
1. Scheme of the Act.
2. Intention of Legislature.
3. Language used for drafting purpose.
4. Inconvenience caused to the public at large scale.
And these four parameters were given in the case Raza Buland Sugar Co. vs. Rampur Municipal Council.
Judicial Control
Judicial review upgraded the rule of law. The court has to see that the power delegated is within the ambit of the constitution
as prescribed. Judicial review is more effective because court do not recommend but it clearly strikes down the rule which is
ultra vires in nature. As per Section 13(3)(a) “Law” is defined under the Constitution of India which clearly indicate that State
should not make any law which abridge the right given in Part iii of the Constitution. It is dependent on two basic grounds:
1. It is ultra vires to the Constitution of India, and
2. It is ultra vires to the enabling Act.
THE DOCTRINE OF COLOURABLE LEGISLATION
Federalism is one of the basic features of Indian constitution. By virtue of this power the constitution envisages a
demarcation of governmental functions and powers between various constituent units of the country. Generally in a
federation there are two levels of govt. the existence or authority of each level of the Government has been
guaranteed by the constitution. Indian system is very much influenced to the colonial rulling system of the English
for many reasons. One of the influences of this must be the policy which created the three pillars of the democracy
i.e. executive, legislature and the judiciary. In Indian constitutional pattern a direct separation of power prevails by
which a balance has been maintained between the different organs of the govt. among these the law making power
primarily vests on the legislature.
The doctrine of colourable legislation refers to the question of competency of the legislature while enacting a
provision of law. My project has two different parts, the part one of my work deal with the doctrine of colourable
legislation and part two deals with legislative accountability. It is worthy to be mention that my whole research
work is doctrinal in nature.
Legislature of a federal state is accountable to its people and the legislation has different power which is vested
upon it by the constitution. So the question is what would be the extent and context of legislative accountability
with reference to the power conferred upon it in the light of doctrine of colourable legislation in Indian scenario.
To get a satisfactory answer of this above question first we have to deal with the doctrine of colourable legislation.
If a legislature is prohibited from doing something, it may not permitted to do this under the guide or pretence of
doing something while acting within its lawful jurisdiction and this prohibition is an implied result of the maxim
“what cannot be done directly, cannot be done indirectly” and This doctrine is based on the maxim ‘what cannot be
done directly, cannot also be done indirectly. It is applicable when the legislature intends to do something
indirectly which cannot be done directly. . Later on I deal with the legislative accountability, which means
excessive secrecy or open abuse of the public trust vested upon legislative assembly is not tolerable. They are
bound to do justice towards the public aspirations which led them to their seats. These two parts are discussed in a
broad manner respectively with the help of constitutional provisions and judicial decisions.
The doctrine of colourable legislation is based on the maxim that “what cannot be done directly cannot also be
done indirectly”. The doctrine becomes applicable when a legislature seeks to do something in an indirect manner
when it cannot do it directly. Thus, it refers to the competency of the legislature to enact a particular law. If the
impugned legislation falls within the competence of the legislature, the question of doing something indirectly
which cannot be done directly does not arise.
COLOURABLE LEGISLATION IN INDIA:
In India ‘the doctrine of colorable legislation’ signifies only a limitation of the law making power of the
legislature. It comes into picture while the legislature purporting to act within its power but in reality it has
transgressed those powers. So the doctrine becomes applicable whenever any legislation seeks to do in an indirect
manner what it cannot do directly. If the impugned legislation falls within the competence of legislature, the
question of doing something indirectly which cannot be done directly does not arise.
In India legislative powers of Parliament and State Legislatures are conferred by Art. 246 and distributed by Lists
I, II and III in the seventh schedule of the Constitution. Parliament has exclusive power to make laws with respect
to any of the matters in List II. Parliament and State Legislatures have both powers to make laws with respect
matters in List III which is also known as concurrent list. Residuary power of legislation is vested in Parliament by
virtue of Art. 248 and entry 97 in list I. the power of State Legislatures to make laws is subject to the power of
Parliament to make laws with respect to matters in List I and III. While examining the legislative competence of
Parliament to make a law all that is required to be seen is whether the subject matter falls in List II which
Parliament cannot enter for in view of the residuary power vesting in Parliament other matters are not outside the
legislative competence of Parliament. Legislative competency is an issue that relates to how legislative power must
be shared between the centre and states. It focuses only on the relation between the two.
The question whether the Legislature has kept itself within the jurisdiction assigned to it or has encroached upon a
forbidden field is determined by finding out the true nature and character or pith and substance of the legislation .
The main point is that the legislature having restrictive power can not step over the field of competency. It is
termed as the “fraud on the constitution”
The Supreme Court in the case of K.C gajapti vs state of Orissa1 while explaining the doctrine held that “if the
constitution of a state distributes the legislative spheres marked out by specific legislative entries or if there are
limitations on the legislative authority in the shape of fundamental rights, questions do arise as to whether the
legislature in a particular case in respect to the subject matter of the statute or in the method of enacting it,
transgressed the limits of the constitutional power or not. Such transgression may be patent, manifest and direct,
but may also be distinguished, covered and indirect and it is the latter class of cases that the expression ‘colourable
legislation’ has been applied in certain judicial pronouncements.”

The Supreme court of India in different judicial pronouncements has laid down the certain tests in order to
determine the true nature of the legislation impeached as colourable:-
1. The court must look to the substance of the impugned law, as distinguished from its form or the label which the
legislature has given it.
For the purpose of determining the substance of an enactment, the court will examine two things: a) effect of the
legislature and the b) object and the purpose of the act.
2. The doctrine of colourable legislation has nothing to do with the motive of the legislation, it is in the essence a
question of vires or power of the legislature to enact the law in question.
The doctrine does not involve any question of bonafides or malafides intention on the part of the legislature. If the
legislature is competent enough to enact a particular law, then whatever motive which impelled it to act are
irrelevant. On the other hand, it was observed by the Apex court that “the motive of the legislature in passing a
statute is beyond the scrutiny of the courts” so the court has no power to scrutinize the policy which led to an
enactment of a law falling within the ambit of the legislature concerned.
The provision was held to be a piece of colourable legislation and hence void on the basis of the following
grounds:-
 That it was not within the competence of Bihar state legislature to enact the impugned act.
 That the acquisitions of the estates not being for public purpose, the act was unconstitutional
 That the legislative power in various sections of the act has been abdicted in favour of the executive and
such abdication of power was unconstitutional.
 That the act was a fraud on the constitution and that certain parts of the act were unenforceable on account
of vagueness and indefiniteness.

There is always a presumption that the legislature that the legislature does not exceed its jurisdiction (ut res magis,
valet quam parret) and the burden of establishing that an act is not within the competence of the legislature or that
it has transgressed other constitutional mandates as is always on the person who challenges its constitutionality.
So the ultimate analysis is that colorable legislation indicates that while making the law the legislature transgressed
the limits of its power. But the question may be raised that whether or not parliament can do something indirectly,
which it cannot do directly, may depend upon why it cannot do directly. There are so many examples in law as
1
well as life where something can be done indirectly, although not directly. So the true principle of colourable
legislation is “it is not permissible to do indirectly, what is prohibited directly.”

Administrative Tribunals in India

Introduction
In Administrative law, the term ‘tribunal’ is used in a significant sense and refers to only the adjudicatory bodies
which lie outside the sphere of the ordinary judicial system. Technically in India, the judicial powers are vested in
the Courts which aims to safeguard the rights of the individuals and promotes justice.
History of Tribunalisation

The concept of tribunalisation came into existence in India with the establishment of the Income Tax Appellate
Tribunal before the independence of the country. After independence, a need was being felt for resolving
administrative disputes with flexibility and speed. The core objective of tribunalisation was to provide specialised
and speedy justice to the people.
Growth of Administrative Tribunals
The 42nd Amendment to the Constitution introduced Part XIV-A which included Article 323A and 323B
providing for constitution of tribunals dealing with administrative matters and other issues. According to these
provisions of the Constitution, tribunals are to be organized and established in such a manner that they do not
violate the integrity of the judicial system given in the Constitution which forms the basic structure of the
Constitution.
The introduction of Article 323A and 323B was done with the primary objective of excluding the jurisdiction of
the High Courts under Article 226 and 227, except the jurisdiction of the Supreme Court under Article 136 and for
originating an efficacious alternative institutional mechanism or authority for specific judicial cases.
The purpose of establishing tribunals to the exclusion of the jurisdiction of the High Courts was done to reduce the
pendency and lower the burden of cases. Therefore, tribunals are organised as a part of civil and criminal court
system under the supremacy of the Supreme Court of India.
Characteristics of Administrative Tribunals
The following are the few attributes of the administrative tribunals which make them quite disparate from the
ordinary courts:
1. Administrative tribunals must have statutory origin i.e. they must be created by any statute.
2. They must have some features of the ordinary courts but not all.
3. An administrative tribunal performs the quasi-judicial and judicial functions and is bound to act
judicially in every circumstance.
4. They are not adhered by strict rules of evidence and procedure.
5. Administrative tribunals are independent and not subject to any administrative interference in the
discharge of judicial or quasi-judicial functions.
6. In the procedural matters, an administrative tribunal possesses the powers of a court to summon
witnesses, to administer oaths and to compel the production of documents, etc.
7. These tribunals are bound to abide by the principle of natural justice.
8. A fair, open and impartial act is the indispensable requisite of the administrative tribunals.
9. The prerogative writs of certiorari and prohibition are available against the decisions of administrative
tribunals.
Categories of Administrative Tribunals
Administrative Tribunals for service matter [Article 323A]
Article 323A provides the establishment of administrative tribunals by law made by Parliament for the
adjudication of disputes and complaints related to the recruitment and conditions of service of Government
servants under the Central Government and the State Government. It includes the employees of any local or other
authority within the territory of India or under the control of the Government of India or of a corporation owned or
controlled by the Government.
The establishment of such tribunals must be at the centre and state level separately for each state or for two or
more states. The law must incorporate the provisions for the jurisdiction, power and authority to be exercised by
tribunals; the procedure to be followed by tribunals; the exclusion of the jurisdiction of all other courts except the
Supreme Court of India.

Tribunals for other matters [Article 323B]

Article 323B empowers the Parliament and the State Legislature to establish tribunals for the adjudication of any
dispute or complaint with respect to the matters specified under clause (2) of Article 323B. Some of the matters
given under clause (2) are a levy, assessment, collection and enforcement of any tax; foreign exchange and export;
industrial and labour disputes; production, procurement, supply and distribution of foodstuffs; rent and it’s
regulation and control and tenancy issues etc. Such a law must define the jurisdiction, powers of such tribunals and
lays down the procedure to be followed.
In the landmark case of L. Chandra Kumar v. Union of India[1], the court reached various conclusions as to
jurisdictional powers of the tribunal constituted under Articles 323A and 323B. The Supreme Court struck down
clause 2(d) of Article 323A and clause 3(d) of Article 323B on the ground that they excluded the jurisdiction of the
High Courts and the Supreme Court under Article 226/227 and 32 respectively.
The SC ruled that the tribunals created under Article 323A and 323B would continue to be the courts of the first
instance in their respective areas for which they are constituted. The litigants are not allowed to approach the High
Courts directly by overlooking the jurisdiction of the concerned tribunal.
Distinction between Courts and Tribunals
Courts Administrative Tribunal
A Court of law is a part of the traditional judicial The administrative tribunal is an agency created by a statue
system. endowed with judicial powers.
A Court of law is vested with general jurisdiction It deals with service matters and is vested with limited
over all the matters. jurisdiction to decide a particular issue.
It is not bound by the rules of the Evidence Act and the
It is strictly bound by all the rules of evidence and
CPC unless the statute which creates the tribunal imposes
by the procedure of the Code of Civil Procedure.
such an obligation.
It is not mandatory in every case that the members need to
It is presided over by an officer expert in the law.
be trained and experts in law.
The decision of the court is objective in nature
The decision is subjective i.e. at times it may decide the
primarily based on the evidence and materials
matters taking into account the policy and expediency.
produced before the court.
It is not obligatory to follow precedents and principle of res
It is bound by precedents, the principle of res
judicata but the principle of natural justice must be
judicata and the principle of natural justice.
followed.
It can decide the validity of legislation. It cannot decide the validity of legislation.
The courts do not follow investigatory or inquisition
Many tribunals perform investigatory functions as well
functions rather it decides the case on the basis of
along with its quasi-judicial functions.
evidence.
The Administrative Tribunals Act, 1985
In pursuance of the provisions in Article 323A, Parliament passed the Administrative Tribunal Act, 1985,
providing for all the matters falling within the clause(1) of Article 323-A.
According to this Act, there must be a Central Administrative Tribunal (CAT) at the centre and a State
Administrative Tribunal (SAT) at the state level for every state.
The tribunal is competent to declare the constitutionality of the relevant laws and statutes. The Act extends to, in so
far as it is related to the Central Administrative Tribunal, to the whole of India and in relation to the Administrative
tribunals for states, it is applicable to the whole of India except the State of Jammu and Kashmir (Section 1).
Objective for the establishment of Administrative Tribunals
The main purpose of the introduction of this act was :
1. To relieve congestion in courts or to lower the burden of cases in courts.
2. To provide for speedier disposal of disputes relating to the service matters.
Applicability of the Act
According to Section 2 of the Administrative Tribunals Act, 1985, the act applies to all Central Government
employees except –
 The members of the naval, military or air force or any other armed forces of the Union
 Any officer or servant of the Supreme Court or any High Courts
 Any person appointed to the secretariat staff of either House of the Parliament.
Composition of the Tribunals and Bench
Section 4 of this Act describes the composition of the tribunals and bench. Each tribunal shall consist of a
Chairman, Vice Chairman, Judicial and Administrative members. Every bench must include at least one judicial
and one administrative member. The benches of the Central Tribunal shall ordinarily sit at New Delhi, Allahabad,
Calcutta, Madras, Bombay and such other place as the Central Government specifies. The Chairman may transfer
the Vice Chairman or other members from one bench to another bench.
Qualification and Appointment of Members
Section 6 of the Administrative Tribunals Act, 1985, lays the provisions specifying the qualifications and
appointment of the members of tribunals.
Chairman: To be appointed as a chairman, a person must have the following qualifications-
 He is or has been a judge of a High Court or
 He has held the office of Vice Chairman for two years or
 He has held the post of secretary to the Government of India or
 He has held any other post carrying the scale pay of secretary.
Vice-Chairman: A person is qualified for the post of Vice-Chairman if he-
 Is or has been a judge of the High Court or
 Has for 2 years held the post of Secretary to the Government or holding any other post carrying the
same pay scale under the Central or State Governments or
 Has held for 5 years the post of an Additional Secretary to the Government of India or any other post
carrying the scales of pay of Additional Secretary.
Judicial Member: A person to be appointed as a judicial member must-
 Be or have been a judge of the High Court or
 Have been a member of Indian Legal Service and has held a post in Grade I of the service for at least 3
years.
Administrative Member: A person to be appointed as an Administrative member must-
 Have held the post of an Additional Secretary to the Government of India or another equivalent post
for at least 2 years, or
 Have held the post of a Joint Secretary to the Government of India or other equivalent post, or
 Have adequate administrative experience.
The Chairman, Vice-Chairman and other members shall be appointed by the President. The Judicial Members shall
be appointed by the President with the consultation of the Chief Justice of India. The Chairman, Vice-Chairman
and other members of the State Tribunal shall be appointed by the President after consultation with the Governor
of the concerned state.
Term of Office
According to Section 8 of the Act, the Chairman, Vice-Chairman and other members of the tribunal shall hold the
office for a term of 5 years or until he attains-
1. Age of 65 years, in the case of the Chairman or Vice-Chairman
2. Age of 62 years in the case of other members
Resignation and Removal
Section 9 of the Act prescribes the procedure of resignation by any member and removal of any member.
The Chairman, Vice-Chairman or other members may resign from his post by writing to the President.
They shall be removed from their office only by an order made by the President on the ground of proved
misbehaviour or incapacity after an enquiry made by a judge of the Supreme Court. They shall have the right to be
informed of the charges against them and shall be given a reasonable opportunity of hearing. The Central
Government may make rules to regulate the procedure for the investigation of the charges against them.
Jurisdiction of Central Tribunal
Section 14 states that the Central Tribunal from the day of the appointment shall exercise all the jurisdiction,
powers and authority in relation to the following matters which were within the jurisdiction of other courts (except
the Supreme Court) before the enactment of this Act:
1. Recruitment of any civil service of Union or All India service or civil post under the Union or civilian
employees of defence services;
2. All service matters of the above-mentioned employees, and also of employees of any local or other
authority within the territory of India or under the control of the Government of India or any
corporation or society owned or controlled by the Government;
3. All service matters of such persons whose services have been placed by the State Government or any
local or other authority or any corporation at the disposal of the Central Government.
Procedure and Powers of Tribunals
Section 22 of the Administrative Tribunals Act, 1985 lays down the powers and procedure of tribunals discussed
below-
 1. A tribunal is not bound to follow the procedure laid down by the Code of Civil Procedure, 1908. It has
the power to regulate its own procedure but must abide by the principle of natural justice.
2. A tribunal shall decide the applications and cases made to it as rapidly as possible and every
application shall be decided after scrutinizing the documents and written submissions and perceiving
the oral arguments.
3. Tribunals have the same powers as vested by the civil courts under the Code of Civil Procedure, 1908,
while trying a suit, with regard to the following subject-matter-
4. Summoning and enforcing the attendance of any person and examining him on oath;
5. Production of documents;
6. Receiving evidence on affidavits;
7. Ask for any public record or document from any office under Section 123 and 124 of the Indian
Evidence Act, 1872;
8. Issuing commissions for the examination of witnesses and documents;
9. Reviewing its decisions;
10. Deciding the case ex-parte;
11. Setting aside any order passed by it ex-parte;
12. Any other matter prescribed by the Central Government.
13. Leading Case Laws
Case:  S.P. Sampath Kumar v. Union of India[2]
Facts: The constitutional validity of the Administrative Tribunals Act, 1985, was predominantly challenged on the
ground that this Act excludes the jurisdiction of High Courts under Articles 226 and 227 with regard to service
matters and hence, destroyed the concept of judicial review which was an essential feature of the Indian
Constitution.
Judgment: A five-Judge Bench of the Court upheld the validity of the Act except Section 6(1)(c). The court held
that although this Act has excluded the jurisdiction of judicial review exercised by the High Courts in the service
matters it has not entirely excluded the concept of judicial review. The jurisdiction of the Supreme Court under
Article 32 and 136 has not been excluded by this Act and kept unscathed.
Thus, there still exists an authority where matters of injustice can be entertained by judicial review. The judicial
review which is the part of the basic structure of the Indian Constitution can be taken away from a particular area
only if an alternative effectual institutional mechanism or authority is provided.
Advantages of Administrative Tribunals
The concept of administrative tribunals was introduced because it has certain advantages over ordinary courts. Few
of them are mentioned below-
 Flexibility: The introduction of administrative tribunals engendered flexibility and versatility in the
judicial system of India. Unlike the procedures of the ordinary court which are stringent and inflexible,
the administrative tribunals have a quite informal and easy-going procedure.
 Speedy Justice: The core objective of the administrative tribunal is to deliver quick and quality justice.
Since the procedure here is not so complex, so, it is easy to decide the matters quickly and efficiently.
 Less Expensive: The Administrative Tribunals take less time to solve the cases as compared to the
ordinary courts. As a result, the expenses are reduced. On the other hand, the ordinary courts have
cumbrous and slow-going, thus, making the litigation costly. Therefore, the administrative tribunals are
cheaper than ordinary courts.
 Quality Justice: If we consider the present scenario, the administrative tribunals are the best and the
most effective method of providing adequate and quality justice in less time.
 Relief to Courts: The system of administrative adjudication has lowered down the burden of the cases
on the ordinary courts.
Drawbacks of Administrative Tribunals
Although, administrative tribunals play a very crucial role in the welfare of modern society, yet it has some defects
in it. Some of the criticisms of the administrative tribunal are discussed below-
 Against the Rule of Law: It can be observed that the establishment of the administrative tribunals has
repudiated the concept of rule of law. Rule of law was propounded to promote equality before the law
and supremacy of ordinary law over the arbitrary functioning of the government. The administrative
tribunals somewhere restrict the ambit of the rule of law by providing separate laws and procedures for
certain matters.
 Lack of specified procedure: The administrative adjudicatory bodies do not have any rigid set of rules
and procedures. Thus, there is a chance of violation of the principle of natural justice.
  No prediction of future decisions: Since the administrative tribunals do not follow precedents, it is not
possible to predict future decisions.
 Scope of Arbitrariness: The civil and criminal courts work on a uniform code of procedure as
prescribed under C.P.C and Cr.P.C respectively. But the administrative tribunals have no such stringent
procedure. They are allowed to make their own procedure which may lead to arbitrariness in the
functioning of these tribunals.
 Absence of legal expertise: It is not necessary that the members of the administrative tribunals must
belong to a legal background. They may be the experts of different fields but not essentially trained in
judicial work. Therefore, they may lack the required legal expertise which is an indispensable part of
resolving disputes.

Natural Justice
Introduction
Principle of Natural Justice is derived from the word ‘Jus Natural’ of the Roman law and it is closely related to
Common law and moral principles but is not codified. It is a law of nature which is not derived from any statute or
constitution. The principle of natural justice is adhered to by all the citizens of civilised State with Supreme
importance. In the ancient days of fair practice, at the time when industrial areas ruled with a harsh and rigid law to
hire and fire, the Supreme court gave its command with the passage of duration and establishment of social, justice
and economy statutory protection for the workmen.

Natural justice simply means to make a sensible and reasonable decision making procedure on a particular issue.
Sometimes, it doesn’t matter what is the reasonable decision but in the end, what matters is the procedure and who
all are engaged in taking the reasonable decision. It is not restricted within the concept of ‘fairness’ it has different
colours and shades which vary from the context.
Basically, natural justice consists of 3 rules.
The first one is “Hearing rule” which states that the person or party who is affected by the decision made by the panel of
expert members should be given a fair opportunity to express his point of view to defend himself.
Secondly, “Bias rule” generally expresses that panel of expert should be biased free while taking the decision. The decision
should be given in a free and fair manner which can fulfil the rule of natural justice
And thirdly, “Reasoned Decision” which states that order, decision or judgement of the court given by the Presiding
authorities with a valid and reasonable ground.

Origin
The principle of natural justice is a very old concept and it originated at an early age. The people of Greek and roman were
also familiar with this concept. In the days of Kautilya, arthashastra and Adam were acknowledged the concept of natural
justice. According to the Bible, in the case of Eve and Adam, when they ate the fruit of knowledge, they were forbidden by the
god. Before giving the sentence, eve was given a fair chance to defend himself and the same process was followed in the case
of Adam too.

Later on, the concept of natural justice was accepted by the English jurist. The word natural justice is derived from the Roman
word ‘jus-naturale’ and ‘lex-naturale’ which planned the principles of natural justice, natural law and equity.

“Natural justice is a sense of what is wrong and what is right.”

In India, this concept was introduced at an early time. In the case of Mohinder Singh Gill vs. Chief Election Commissioner,
the court held that the concept of fairness should be in every action whether it is judicial, quasi-judicial, administrative and or
quasi-administrative work.

Purpose of the principle

1. To provide equal opportunity of being heard.
2. Concept of Fairness.
3. To fulfil the gaps and loopholes of the law.
4. To protect the Fundamental Rights.
5. Basic features of the Constitution.
6. No miscarriage of Justice.
The principles of natural justice should be free from bias and parties should be given fair opportunity to be heard and all the
reasons and decision taken by the court should be informed by the court to the respective parties.

Supreme court said that arriving at a reasonable and justifiable judgement is the purpose of judicial and administrative bodies.
The main purpose of natural justice is to prevent the act of miscarriage of justice.
A committee i.e. “Ministers Power” gave 3 essentials procedure related to the principles of natural justice.

1. No one should be a judge in his own matter.

2. No one can be condemned unheard.
3. The party is entitled to know each and every reason and the decision taken by the authority.
When it can be claimed?
Natural justice can be claimed when acting judicially or quasi-judicial like panchayat and tribunals etc. as well. It includes the
concept of fairness, basic moral principles and various different kinds of biases and why the natural justice is required and
what all special cases or situation it includes where the principles of natural justice will not be applicable.
In the case of the Province of Bombay vs. Khushaldas Advani, it was said that natural justice will be applicable on statutory as
it is a basic principle of Natural justice which leads to fairness and justice.
Effect of function
1. Administrative action.
2. Civil consequences.
3. The doctrine of Legitimate exception.
4. Fairness in action.
5. Disciplinary proceeding.
In the case of Board of high school vs. Ghanshyam, a student was caught while cheating in the examination hall and he was
debarred due to the act. Supreme Court held that student cannot file a Public Interest Litigation against the examination board.
High water mark case- Eurasian equipment and company limited vs. State of West Bengal: Under this case, all the executive
engineers were blacklisted. Supreme Court held that without giving a valid and reasonable ground you cannot blacklist anyone
and further he should be given a fair opportunity of being heard.

Rules of Natural Justice

1. NEMO JUDEX IN CAUSA SUA
2. AUDI ALTERAM PARTEM
3. REASONED DECISION
Nemo Judex In Causa Sua
“No one should be a judge in his own case” because it leads to rule of biases. Bias means an act which leads to unfair activity
whether in a conscious or unconscious stage in relation to the party or a particular case. Therefore, the necessity of this rule is
to make the judge impartial and given judgement on the basis of evidence recorded as per the case.
Type of Bias
1. Personal Bias.
2. Pecuniary Bias.
3. Subject matter Bias.
4. Departmental Bias.
5. Policy notion Bias.
6. Bias on the account of obstinacy.
Personal bias
Personal bias arises from a relation between the party and deciding authority. Which lead the deciding authority in a doubtful
situation to make an unfair activity and give judgement in favour of his person. Such equations arise due to various forms of
personal and professional relations.
In order to challenge the administrative action successfully on the ground of personal bias, it is necessary to give a reasonable
reason for bias.
Supreme court held that one of the members of the panel of selection committee his brother was a candidate in the competition
but due to this, the whole procedure of selection cannot be quashed.
Here, to avoid the act of biases at the turn of his brother respective panel member connected with the candidate can be
requested to go out from the panel of the selection committee. So, a fair and reasonable decision can be made. Ramanand
Prasad Singh vs. UOI.
Pecuniary bias
If any of the judicial body has any kind of financial benefit, how so ever small it may be will lead to administrative authority
to biases.
Subject matter bias
When directly or indirectly the deciding authority is involved in the subject matter of a particular case.
Muralidhar vs. Kadam Singh The court refused to quash the decision of Election tribunal on the ground that the chairman’s
wife was a member of Congress party whom the petitioner defeated.
Departmental bias
The problem or issue of departmental bias is very common in every administrative process and it is not checked
effectively and on every small interval period it will lead to negative concept of fairness will get vanished in the
proceeding.
Policy notion bias
Issues arising out of preconceived policy notion is a very dedicated issue. The audience sitting over there does not
expect judges to sit with a blank sheet of paper and give a fair trial and decision over the matter.
Bias on the account of the obstinacy
Supreme court has discovered new criteria of biases through the unreasonable condition. This new category
emerged from a case where a judge of Calcutta High Court upheld his own judgement in appeal. A direct violation
of the rules of bias is done because no judge can sit in appeal against in his own case.
Audi Alteram Partem
It simply includes 3 Latin word which basically means that no person can be condemned or punished by the court
without having a fair opportunity of being heard.
In many jurisdictions, a bulk of cases are left undecided without giving a fair opportunity of being heard.
The literal meaning of this rule is that both parties should be given a fair chance to present themselves with their
relevant points and a fair trial should be conducted.
This is an important rule of natural justice and its pure form is not to penalize anyone without any valid and
reasonable ground. Prior notice should be given to a person so he can prepare to know what all charges are framed
against him. It is also known as a rule of fair hearing. The components of fair hearing are not fixed or rigid in
nature. It varies from case to case and authority to authority.
Components
Issuance of notice– Valid and proper notice should be given to the required parties of the matter to further proceed
with the procedure of fair trial method. Even if the statute does not include the provision of issue of notice then it
will be given prior to making decisions. This was held in the case of Fazalbhai vs. custodian.
In the case of Kanda vs. Government of Malaya,  the court held that notice must directly and clearly specify on the
matter of bias, facts and circumstances against which needs to be taken. It’s one of the rights of the individual to
defend himself so he should be familiar with the relevant matter so he may contradict the statement and safeguard
himself.
The notice should be with regard to the charges framed against the accused person and proceeding to be held. He
can only be punished on the charges which are mentioned in the notice, not for any other charges.
Right to present the case and evidence– After receiving the notice he must be given a reasonable time period to
prepare and present his case in a real and effective manner. The refusal should not be done on the unreasonable
ground or due to arbitrary.
Right to Cross Examination– Right of fair hearing includes the right to cross-examination the statement made by
the parties. If tribunals denied the right to cross-examination then it will violate the principles of natural justice.
And all the necessary copies of documents should be given and failure of that will also encroach the principle. The
department should make available officers who are involved in the procedure of investigating and do cross-
examination. Cross-examination is defined under Section 137 of the Indian Evidence Act, 1872  (amended).
In certain exceptional cases, the right to cross-examination can be denied or rejected. Hari Nath Mishra vs.
Rajendra Medical College, under this case a male student was charged off some indecent behaviour towards a
female student. So, here the right to cross-examination was denied for the male student as it will lead to
embracement for the female student and it will not also lead to violation of natural justice.
Sometimes it becomes very necessary to keep the identity confidential as there is a threat of life and property. And
the same situation was faced in the case Gurubachan Singh vs. the State of Bombay.
Right of Legal representative– In the process of enquiry, every party has the right to have a legal representative.
Each party will be presented by the legally trained person and no one can deny (A.K.Roy). Similarly, the
department has the same right to direct its officer even though there are investigating officer in conducting an
adjudicating proceeding (Sanghi textile processor vs. Commissioner).
Exceptions
1. During the Emergency period
2. Public interest
3. Express statutory provision
4. Nature of the case is not of a serious kind
5. If it doesn’t affect the status of the individual
Applicability
 1. Natural justice is applicable to some of the following points:-
2. Court- except to ex-parte
3. Tribunals
4. Authority entrusted with discretion but subject to legal limitations
Reasoned Decision
Basically, it has 3 grounds on which it relies:-
1. The aggrieved party has the chance to demonstrate before the appellate and revisional court that what was
the reason which makes the authority to reject it.
2. It is a satisfactory part of the party against whom the decision is made.
3. The responsibility to record reasons works as obstacles against arbitrary action by the judicial power
vested in the executive authority.

What is Writ and Writ Jurisdiction

Writs are a written order from the Supreme Court or High Court that commands constitutional remedies for Indian
Citizens against the violation of their fundamental rights. Article 32 in the Indian Constitution deals with
constitutional remedies that an Indian citizen can seek from the Supreme Court and High Court against the
violation of his/her fundamental rights. The same article gives the Supreme Court power to issue writs for the
enforcement of rights whereas the High Court has the same power under Article 226.
Types of Writs in India
The Supreme Court of India is the defender of the fundamental rights of the citizens. For that, it has original and
wide powers. It issues five kinds of writs for enforcing the fundamental rights of the citizens. The five types of
writs are:
1. Habeas Corpus
2. Mandamus
3. Prohibition
4. Certiorari
5. Quo-Warranto
Habeas Corpus
The Latin meaning of the word ‘Habeas Corpus’ is ‘To have the body of.’ This writ is used to enforce the
fundamental right of individual liberty against unlawful detention. Through Habeas Corpus, Supreme Court/High
Court orders one person who has arrested another person to bring the body of the latter before the court.
Facts about Habeas Corpus in India:
 The Supreme Court or High Court can issue this writ against both private and public authorities.
 Habeas Corpus can not be issued in the following cases:
o When detention is lawful
o When the proceeding is for contempt of a legislature or a court
o Detention is by a competent court
o Detention is outside the jurisdiction of the court
Mandamus
The literal meaning of this writ is ‘We command.’ This writ is used by the court to order the public official who
has failed to perform his duty or refused to do his duty, to resume his work. Besides public officials, Mandamus
can be issued against any public body, a corporation, an inferior court, a tribunal, or government for the same
purpose.
Facts about Mandamus in India:
 Unlike Habeas Corpus, Mandamus cannot be issued against a private individual
 Mandamus can not be issued in the following cases:
o To enforce departmental instruction that does not possess statutory force
o To order someone to work when the kind of work is discretionary and not mandatory
o To enforce a contractual obligation
o Mandamus can’t be issued against the Indian President or State Governors
o Against the Chief Justice of a High Court acting in a judicial capacity
Prohibition
The literal meaning of ‘Prohibition’ is ‘To forbid.’ A court that is higher in position issues a Prohibition writ
against a court that is lower in position to prevent the latter from exceeding its jurisdiction or usurping a
jurisdiction that it does not possess. It directs inactivity.
Facts about Prohibition in India:
 Writ of Prohibition can only be issued against judicial and quasi-judicial authorities.
 It can’t be issued against administrative authorities, legislative bodies and private individuals or bodies.
Certiorari
The literal meaning of the writ of ‘Certiorari’ is ‘To be certified’ or ‘To be informed.’ This writ is issued by a court
higher in authority to a lower court or tribunal ordering them either to transfer a case pending with them to itself or
quash their order in a case. It is issued on the grounds of an excess of jurisdiction or lack of jurisdiction or error of
law. It not only prevents but also cures for the mistakes in the judiciary.
Facts about Certiorari in India:
 Pre-1991: The writ of Certiorari used to be issued only against judicial and quasi-judicial authorities and
not against administrative authorities
 Post-1991: The Supreme Court ruled that the certiorari can be issued even against administrative
authorities affecting the rights of individuals
 It cannot be issued against legislative bodies and private individuals or bodies.
Quo-Warranto
The literal meaning of the writ of ‘Quo-Warranto’ is ‘By what authority or warrant.’ Supreme Court or High Court
issue this writ to prevent illegal usurpation of a public office by a person. Through this writ, the court enquires into
the legality of a claim of a person to a public office
Facts about Quo-Warranto in India:
 Quo-Warranto can be issued only when the substantive public office of a permanent character created by a
statute or by the Constitution is involved
 It can’t be issued against private or ministerial office
Note: This writ gives the right to seek redressal to any individual other than the aggrieved person.
General Facts about Writs in India:
 Article 32 also empowers Parliament to authorize any other court to issue these writs
 Before 1950, only the High Courts of Calcutta, Bombay and Madras had the power to issue the writs
 Article 226 empowers all the High Courts of India to issue the writs
 Writs of India are borrowed from English law where they are known as ‘Prerogative writs’
How Writ Jurisdiction of the Supreme Court Differs from that of the High Court?
Where Article 32 of the Indian Constitution empowers the Supreme Court to issue writs; Article 226 empowers the
High Courts of India. However, there are a few differences between the writ jurisdiction of both the courts which
are given in the table below:
Difference Supreme Court High Court

Purpose To only enforce fundamental rights To enforce fundamental rights but also for other purposes
(The expression ‘for any other purpose’ refers to the
enforcement of an ordinary legal right)

Territorial Against a person or government  Against a person residing, government or authority

Jurisdiction throughout the territory of India located within its territorial jurisdiction only
Or
 Outside its territorial jurisdiction only if the cause of
action arises within its territorial jurisdiction

Power Article 32 is a fundamental right- the Discretionary-May refuse to exercise its power to issue writs
Supreme Court may not refuse to exercise
its power to issue the writs

Writ Jurisdiction
In India only the Supreme and High Courts have writ jurisdiction and judicial review of all the government
activities by these courts are known as writ jurisdiction. Writ jurisdiction is exercised to control the vast
discretionary power of administrative authorities as those powers become subjects in the absence of guidelines for
exercising those powers. To ensure that “rule of law” exists in all the government action, there arises a need to
control the discretionary powers of administrative authorities. Judicial review of administrative actions is important
to ensure that all the actions taken by the administrative authorities are legal, rational, fair, just and as per the
provisions of law. 
Article 32 and 226 of Indian Constitution provides power to Supreme Court and High Court simultaneously of
judicial review of administrative actions and also designed for the enforcement of fundamental rights, in the form
of writs. 
High Court (Article 226)
Article 226 of Indian Constitution empowers The State High Courts to issue a direction, order or writ for
enforcement of fundamental rights, or for reviewing administrative actions. This power can be used by the High
Court not only for enforcement of fundamental right but also lie for non- fundamental rights. The power conferred
to every High Court under Article 226 to issue writ shall not be in derogation to the power conferred under clause
(2) of article 32 on the Supreme Court.
Case- Sarvepali Ramaiah & others v The District Collector
In this recent case of March 2019, Supreme Court has tried to define the scope of Article 226 of the Indian
Constitution.
It was held that- 
1. Administrative actions are subject to judicial review under Article 226 on the ground of illegality,
rationality, want of power or irregularity in the procedure.
2. The decision of the administrative authorities may also be quashed on the   of illegality or there is an
error of law on the face of the decision by the High Court under Article 226.
3. Judicial review under Article 226 of Indian Constitution, 1950 not only directed against any order or
decision but also directed against a decision making process.
4. A further appeal does not lie before the court exercising the power under article 226 neither does it
passionately adjudicate disputed question of facts.
5. The remedy under Article 226 of Indian Constitution,1950 is available only when there is a violation of
some statutory duty on the part of the statutory authority.
6. While exercising its power under Article 226 High Court can only either annul the order/decision or
quash the same whereas, under Article 227 High Court apart from annulling the proceedings,   can also
substitute the impugned decision by the decision which the inferior court should have passed.
7. Exercise of Article 227 Of Indian Constitution,1950 is restricted to only those cases where there is a
grave failure in fulfilling the duty and there was immoral abuse of fundamental principles of law.
8. In the case of purely contractual rights writs under Article 226 can’t be invoked.
9. While exercising its power under Article 226 High Court can’t proceed adjudication upon affidavit or
on questions of facts.
10. Lastly its is said that power of Judicial Review Conferred upon High Court under Article 226 is a basic
essential feature of Indian Constitution and legislature including Armed Forces Act,2007 also can’t 
overrides the jurisdiction of the High Court under this section.
Supreme Court (Article 32)
Under Article 32 of Indian constitution, 1950 any person can move to the Supreme Court of India for enforcement
of his Fundamental Rights conferred under part III of the Indian Constitution.
Article 32 empowers Supreme court to issue a direction, order or writ of any of its five types for enforcement of
fundamental right.
Writ can also be issued on any application if such application include violation of social welfare laws. As it was
held in Bandua mukti morcha case by the Supreme Court.
Though supreme court jurisdiction to issue a writ under Article 32 is less wider than that of High Court conferred
under Article 226 because Supreme court can only issue writ for protection of fundamental rights of the person
seeking protection whereas, High Court can also issue writ for protection of any legal right but for that High Court
has Discretionary power.
Writ Jurisdiction of High Court
Public Law Remedy of Immense Scope
The power conferred under article 226 of the constitution empowers the High Courts to issue to any person or
authority any order or writs in form of habeas corpus, certiorari, mandamus, prohibition and quo warranto for
enforcement of rights conferred under part III of Indian Constitution and also for enforcement of any other legal
right. These five writs in English Law are known as Prerogative Writs, as they are originated from the king’s
prerogative power of superintendence over his subjects.This power can also be exercised against the legislature in
appropriate cases. 
In India before the commencement of the constitution, only three chartered were competent to issue the writs were
High Court of Bombay, Calcutta and Madras and that too within some specified limits and the other high courts
could not exercise this power at all.  But now all the high court has the same power to grant the remedy via issuing
prerogative writs.
Language used in article 226 and in article 32 is very broad and does even provides for any rigid procedure. The
power not only extent to issuing of writs but also extends to issuing of direction, orders and writ also. The scope of
prerogative writs is wider in India than England. 
Case- Bandhua mukti Morcha v Union of India 
In this case, petitioner was an organisation addressed the issue by a letter stating that there are bonded labour
practices being followed in the country before justice Bhagwati. Treating the letter as a writ petition and appointed
a commission for making an enquiry into the allegations made. After the enquiry commission pointed out certain
points in its report such as-
1. Dusty atmosphere, very difficult to breathe in it.
2. Forced labour, workmen were not allowed to leave work
3. No pure drinking water is provided to workmen therefore, they are forced to drink dirty water.
4. No proper shelters were provided to workers
5. Many of them were suffering from chronic disease
6. Whenever any labour got injured during work no compensation is paid to him
7. No medical facilities for workers and their families neither there were any schooling facilities for
children of workers.
Territorial Extent of Writ Jurisdiction
Clause (1) of article 226 provides a two folded territorial limitation on the power of a High Court to issue writs. 
1. Writs issued by the high court must lie in its territorial limits i.e a High Court of Andhra Pradesh can’t
issue a writ for protection of a right of person permanent resident. And the power to issue writ by the
High Court must be exercised throughout the territory to which it exercise jurisdiction.
2. Writ can only be issued by High Court against the authority or person within the territorial limits of the
High Court i.e. High Court of Punjab and Haryana can’t issue a writ against the chief minister of Uttar
Pradesh. 
These two contentions on territorial limits of High Court makes it clear that the jurisdiction to issue a writ can
either be decided by residence or location within those territories.
Case- Election Commission v Saka Venkata Subba Rao
In this case respondent filed an application to issue a writ under Article 226 before the Madras High Court for
restraining the election commission from inquiring into his alleged disqualification for membership of the
assembly. Permanent office of election commission is situated in New Delhi. 
It was held by the Supreme Court on appeal before it that High Court of Madras has no power to issue Writ against
Election Commision as its permanent office is located in New Delhi. It was observed by the court that mere
functioning of a tribunal or authority, having permanent office located elsewhere is not sufficient to create High
Court jurisdiction under Article 226 to issue writ.
Ombudsman: Origin, Nature, Power and Functions
The meaning of Ombudsman is-an official appointed to investigate individuals’ complaints against
maladministration, especially that of public authority. The precise meaning of the term Ombudsman is grievance
officer. An Ombudsman is a public officer whose function is to investigate the grievances, raised by citizens
regarding maladministration of the authority. In other words if there are gross lapses in the functioning of the
public administration the citizens have power to lodge complaint against the concerned authority. He is an officer
of parliament.
The concept of Ombudsman at first originated in Sweden, a Scandinavian state, in 1809 more than two centuries ago. From
the beginning of the twentieth century the system began to draw attention of several other European states.

For example Finland created the institution of Ombudsman in 1919, Denmark in 1955 and Norway in 1961. The institution of
Ombudsman drew the attention of several European states, and they did borrow the term. Some countries used the term
Parliamentary commission and New Zealand is one of them.
Ombudsman means a delegate, agent, officer or commissioner. Gender defines ombudsman as “an officer of parliament,
having as his primary function, the duty of acting as an agent for parliament, for the purpose of safeguarding the citizen
against abuse or misuse of administrative power by the executive “. Administrative law provides for control over the
administration by an outside agency, strong enough to prevent injustice to the individual, at the same time leaving the
administration adequate freedom to enable it to carry on effective government..
Democracy, Public Administration and Ombudsman:
There is an inseparable relation between democracy and ombudsman. The central idea of democracy means people’s rights
and freedom shall be vindicated and protected and their legitimate grievances shall be removed. When in 1809 the Swedish
government created the institution of Ombudsman the purpose was to protect rights and privilege
Since the creation of Ombudsman the concept of democracy and related ideas have changed enormously —so also has
increased the importance of Ombudsman.
In any democracy the following ideas are given predominance—rule of law equality before law, and equal protection of law. If
these are neglected or are not properly maintained the idea or value of democracy will face a big question mark. Another idea
of liberal democracy is attainment of justice —especially redistributive justice.
Powers and Functions:
(1) An important function of Ombudsman is to protect the rights and freedoms of citizens and needless to say that primarily
for this purpose the post of ombudsman was instituted.
(2) In the Scandinavian countries the ombudsman has another function. The ombudsman shall have the power to supervise the
general civil administration. On this point the duty of ombudsman is closely connected with the public administration. Because
the protection of freedom, execution of policies and other fall within the jurisdiction of public administration and whether
these are properly performed or not that requires to be examined-and ombudsman does this job.
(3) In many states Ombudsman or institution like this supervises the general administration. It is also called general
surveillance of the functioning of the government. This is a very important function. Particularly in the Scandinavian states the
Ombudsman or person of this type performs this function. In these countries the Ombudsman has been found to undertake tour
for inspection.
(4) In some countries the Ombudsman enjoys enormous power. For examples in Sweden the Ombudsman has been
empowered to investigate the cases of corruption (in any form) not only against the government officers but also against the
judges of the highest court! But the supervising power of Ombudsman over the judges does not erode the independence of the
judiciary. The judges are prosecuted or fined for corruption, negligence of duties, or delay in delivering judgement.
(5) In UK the Parliamentary Commissioner (British type of Ombudsman) also acts as a Health Commissioner. In 1974 the
British parliament enacted a law to enhance the jurisdiction of Parliamentary Commissioner to the level of local government.
The local councillors can lodge complaints against the local body and can seek redressal of grievances.
(6) An important function of Ombudsman is the exercise of discretionary powers. The discretionary powers are really vast and
how to use these powers depend upon the person concerned. Discretionary powers include corruption, negligency,
inefficiency, misbehaviour etc.
Characteristics of ombudsman
Independence - It is a body that assists with fair and expeditious resolution of complaints in an impartial confidential and
independent manner.
Impartiality and fairness - It works impartially
Credibility - It maintains its Credibility
Confidentiality -

Prof S.K. Agrawal

According to Professor SK Agrawal, the term ombudsman refers only to institute, which have three basic and unique
characteristic which are as follows -
i) Ombudsman refers only is an independent and non-partisan officer of the legislature who supervise the administration.
ii) He deals with specific complaints from the public against administrative injustice and maladministration.
iii) He has the power to investigate, criticize and report back to the legislature, but not to reserve administrative action.
Importance/need of Ombudsman -
a) Powers and Duties of Ombudsman -
A) Ombudsman is a watchdog of the administration or the protector of the little man ombudsman inquires and
investigates all complaints made by the citizen against the abuse of discretionary power,mal administration inefficiency and
take appropriate actions . for that purpose very wide power has been given to him . he has access to departmental files. the
complainant is not required to lead any evidence before the ombudsman to prove his case he is empowered to grant relief to
the aggrieved person . his function is to satisfy himself whether the complaint is justified or unjustified .he can act even suo-
moto .these power are not limited like the powers of civil court. he is responsible and responsive to people
B) Nature/Status of an ombudsman is judge or lawyer or a high officer and his character, reputation and integrity are
above board. he is appointed by the parliament and sets out the reaction of the citizen against the administration .he makes his
own recommendation to eliminate the cause of complaints .ombudsman is thus a strong position to redress individual
grievances arising out of bad administration.
Defects in Ombudsman -
I) It is argued that this institution may prove successful in those countries which have a comparatively small population,
but it may not prove very useful in populous countries like United States of America or India as the number of complaints may
be too large for a single man to dispose of.
II) It is also said the success of the institution of ombudsman in Denmark owes a great deal to the personality of its first
ombudsman professor Hurwitz. He took a keen interest in the complaints made to him and investigated them personally .
prestige and personal contact would be lost if there are a number of such officers, or if there is a single officer who has always
to depends upon a large staff and subordinate officers.
 III) According to Mukherjee, J. in India this institute is not suitable .he describe it as “an accusatorial (implying accusation )
and inquisitorial(like and inquisitor) institution –a combination unprecedented in a democracy with traditions of an
independent judiciary “. It is an impracticable and disastrous experiment’ which will not fit into the Indian constitution.

Public interest litigation

The term Public Interest Litigation has been consciously borrowed from the American Jurisprudence. As per the original plan,
the purpose of introducing PILs in the USA was to provide a subtle amount of legal representation to the unrepresented poor,
minorities, citizens who were truly passionate about issues pertaining to the public interest such as terrorism, road safety,
environmental hazards, etc. No particular statutes or acts have been created to address the issue of public interest litigation by
the judges who could interpret the intent of the public.
Listed below are a few types of issues that are entertained by the courts under PIL
1. Neglected children;
2. Unpaid minimum wages;
3. Exploitation of workers;
4. Atrocities on humanity;
5. Environmental pollution and related issues;
6. Debt slavery.

What instigated the growth of PIL in India

The character of the Constitution of India
As per the constitution of India, Part III and Part IV which are fundamental rights and directive principles respectively of
India, lays down a framework of regulating the relationship between the state and its citizens.

Progressive civil litigation

India is a developing country yet our constitution provides some of the most progressive social legislation in the world. Issues
like bonded labour (debt slavery), exploitation of workers, land ceilings, etc are the main burning issues that are addressed by
the PILs in India. This provision by the courts has proved to be super useful for the benefit of the citizens themselves due to
the fact that when the executive addresses other matters, the poor or minorities aren’t neglected.
Locus Standi
Locus Standi means a right or capacity of an individual to approach or appear in a court on the behalf of any person that is
economically or physically incapable of appearing in a court. The very liberal interpretation of Locus Standi is one of the main
reasons for the growth of PILs in India. Sometimes, judges themselves initiate suo moto based on newspaper articles or
petition letters received by them.
Judicial assistance
Even though social and economic rights have been laid down in Part IV of the Indian constitution, the PILs aren’t legally
enforceable under the constitution. Therefore, the courts have listed under the fundamental rights thus making them judicially
enforceable.
For example: Under Article 21 which states ‘right to life’ also inculcates the right to free legal aid, live with dignity,
education, work, freedom from torture, etc.
There have been PIL cases when the petitioner isn’t able to provide necessary evidence due to its voluminous nature of the
social/ economic weakness. Therefore, to keep such cases in mind, the court-appointed a commission whose sole function is to
collect information on facts that will be later presented to the bench.
Who can file a PIL
Any Indian citizen can file a petition for a PIL in the Supreme Court of India, under Article 32 of the Indian Constitution.
Any Indian citizen can file a petition for a PIL in the High Court of India, under Article 226 of the Indian Constitution.
Any Indian citizen can file a petition for a PIL in the court of Magistrate, under Article 133 of the Criminal Procedure Court.
One of the most basic criteria a petitioner needs to fulfil to satisfy the needs of the said court. The main fulfilments required
are a basic letter addressed by the aggrieved party, the petitioner must be a public-spirited individual or a social activity group
works too to enforce legal action against any of the respondents.
It is mandatory that any PIL filed should be filed against a State, Central government, municipal authority, etc, and not against
a private party.
Importance of a PIL
1. The main reason for filing a PIL is to provide access to the courts to the common people so that they can get
opportunities to obtain the legal remedy. It is an important social changing instrument that is used for maintaining the
rule of law which will in return control and balance the gravity between law and justice.
2. The fundamental reason for filing PILs is to provide access to courts to the poor and marginalized section of the
society as it is an important tool to outsource the availability of human rights, consumer welfare, and environment to
those who have been deprived of the said rights. In other words, this provision democratizes the access of justice to
all the citizens of the country regardless of their race, gender, economic/ social status. This provision also provides an
inexpensive legal remedy because only the nominal court fees are charged to file a PIL.
 3. The PILs not only help in democratizing access to justice, but it also helps in monitoring the state inducted
institutions such as prison, protective homes, asylums, etc. Also, it is considered as a tool that can be used to
implement the concept of judicial reviews in India.
Abuse of the PIL
1. No matter how much progress PILs have brought to the Indian Judicial system, we cannot unsee the flip side of the coin
at any cost as PILs are being abused a lot nowadays along with its extensive and abused use. They have brought various
pitfalls and drawbacks too. Therefore, to avoid such cases of abuse of the PILs, the supreme court itself laid down a
detailed guideline that will be used to govern the management and disposal of the PILs.
2. Many PIL activists in India have been using the PILs as a handy tool for harassing the judicial system. Since filing PILs
is an inexpensive process, many frivolous cases are being filed without any investment of hefty court fees which one
would normally pay for civil litigation cases. Therefore, by filing such cases, deals are negotiated to obtain money for the
said aggrieved party to obtain the PILs. The simple explanation for such cases is that any weapon that can be used to
defend oneself can also be used to attack someone. Using the same logic, one can lower the Locus Standi requirements
which permit the motivated parties to file PILs which could represent a public interest matter.
3. The abuse of the PILs has become so uncontrollable that its fundamental purpose has been lost amongst all the ingenuine
cases which have been filed by privately motivated interests which are silhouettes of the apparent public interest cases.
4. For example, various groups that are affiliated with politics use PILs so they can use the judicial system to get their way
around their problems or when they cannot achieve the goal they have been longing to achieve. They abuse the concept
of PIL to bring themselves closer to their aims and interests.
5. PILs have been criticized a lot nowadays as the concept of entertaining judicial activism has been brewing a lot amongst
the people of India. Justice Bhagwati who fought the landmark case of Bandhua Mukti Morcha vs. Union of India made
an observation which stated that the courts were performing the aforementioned actions which are the meagre efforts that
lead to the realization of the constitutional objectives of the judicial system which does not collide with the executive and
the legislature.
6. Another similar loose thread that is criticized by the public of India is the process of absolutely diluting the principle on
which ‘Locus Standi’ is based on. This grey area has been brought up in various arguments stating that dilution of the
Locus Standi has opened up various scandalous information such as the petitioner’s private hidden interests, the motive
of the petitioners which state that the reason behind filing the PIL was to seek publicity and not justice, usage of PILs to
showcase their political objectives, etc. due to such instances, this acts as a deterrent to people which prevents them from
filing PILs which matters in future.
Remedies
Keeping in mind that the judiciary is responsible to keep the use of the PILs in check listed below are a few guideline remedies
that used by the supreme court itself to manage the use and disposal of the PILs:

The fundamental duty of the courts should be to check the petitioner’s bonafide reason so that the PIL doesn’t get abused in
the name of personal gain, political funding, private interest, or oblique considerations.
The courts need to keep in mind that the process isn’t manipulated or corrupt. Although with the second largest population in
the world, it is difficult to keep that in check, trying to do the same doesn’t hurt anyone.
The judicial system must make sure that the process of petitioning for a PIL isn’t abused or altered by politicians or the rich
which results in the supremacy of corrupt political objectives as well as the delay of the administrative action.
In various instances, the PILs have affected so many rights of a person even before hearing back from the courts. The simplest
solution to this is that the courts must be cautious and keep in mind the interests of people who are the victims. The judicial
system must adopt a strategy that ensures sufficient notices of all the interests of the people who are likely to suffer the impact
of the judiciary’s actions.
Landmark judgements
1. The main concept of Public Interest Litigation (PILs) was introduced to the Indian judicial system by Justice Krishna
Iyer in the year 1976. The landmark judgment is known as the Mumbai Kamgar Sabha vs. Abdul Thai.
2. The very first case that was reported to the courts was a PIL which goes by the case name Hussainara Khatoon vs.
Home Secretary, State of Bihar (1979). The case concentrated on the barbaric conditions of prisons and how the
prisoners who were under trial were kept in those prisons. This case is considered as the landmark PIL case as more
than 40,000 prisoners who were under trial back then were released after this judgment was announced.
3. India saw a new judicial system after the PIL movement took place which was initiated and instigated by Justice P.N.
Bhagwati while he was fighting the case of S.P. Gupta vs. Union of India. As per this case, it was specified that any
person affiliated with the social/ public group acting bonafide has the right to invoke a ‘writ jurisdiction’ of the high
courts that too under Article 226 or if they want to invoke a ‘writ jurisdiction’ of the Supreme Court, then they can
invoke their rights under Article 32.
4. Under this judgment, PILs became a hugely formidable and influential weapon that can be used to enforce public
duties. As a result, a citizen of India for that matter got the opportunity to approach the apex court themselves where
they can seek legal remedies in cases where the interest of the general public is on the stand.
5. The very famous case known as MC Mehta vs. Union of India is the most prominent example of a Public Interest
Litigation case. This PIL was filed against the water pollution that was observed in the holy river Ganga. This was a
legal step taken by the petitioner M.C Mehta to prevent further pollution of Ganga.
Public Corporations
Public Corporations are those institutions, which are established through separate Acts of the legislature.
Therefore, they are also known as statutory corporations. The functions and powers of the corporations are
clearly defined in the Acts through which they are established.
MEANING AND DEFINITION OF CORPORATIONS
Basically, a public corporation is an extended idea of the form of joint stock companies. A public corporation can
be defined as a corporate body specially created by a legislative enactment with clearly defined powers and
functions and enjoying considerable financial and administrative autonomy.
It is a creation of law and represents the most significant development in the field of management of state
enterprises in the present century.
FEATURES OR CHARACTERISTICS OF PUBLIC CORPORATION
The distinguishing features or characteristics of a statutory corporation can be summed up as follows:
1. PUBLIC CORPORATION IS CREATED BY LAW
A public corporation is created by a special legislative enactment, defining its objectives, powers, privileges and the form of
management and its relationship with the Government.
2. PUBLIC CORPORATION IS A BODY CORPORATE
It is considered as a person in the contemplation of law. As such, it can acquire, hold and sell properties in its own name. It
can sue or may be sued by others.
3. PUBLIC CORPORATION IS WHOLLY OWNED BY THE STATE
The Government generally provides the capital of the public corporation. Other Governmental agencies and financial
institutions can also contribute to the capital of the corporation. But individual investors are generally deprived from acquiring
the shares of such corporations.
4. PUBLIC CORPORATION IS FREE FROM GOVERNMENT CONTROLS
Public corporations are relatively free from political, parliamentary and departmental interference in the exercise of the powers
vested in them under the Act.
5. PUBLIC CORPORATION ENJOYS FINANCIAL AUTONOMY
Public corporation not only enjoys administrative autonomy but also financial autonomy. Except for appropriation to provide
capital or to cover the losses, the public corporations are usually financed independently. They prepare their own budgets and
have the power to retain their earnings.
They can also borrow funds from the public or from the Government or other financial institutions. They are generally
exempted from most of the regulatory and prohibitory statutes applicable to the expenditure of public funds.
6. SERVICE MOTIVE
The management of the corporation generally vests with the Board of Directors nominated by the Government. The directors
may be Government officials or non-officials.
7. MANAGEMENT
A corporation is expected to behave commercially in the same manner as a private enterprise i.e. they are supposed to function
efficiently on sound commercial principles. This does not mean that the corporations are expected to make profits.
They can make profit but not at the expense of the consumers. Thus, the public corporations primarily work for service, and
profit is only a secondary consideration.
8. PUBLIC ACCOUNTABILITY
Public accountability is another important feature of a public corporation. Though it enjoys complete autonomy in its
administrative areas, it is accountable to the legislature. Its accounts are audited by the corporation and the Auditor General,
and its annual report must be placed before the legislature.
9. STATUS OF STAFF
The employees of the corporation are not the servants of the Government and are not governed by Civil Service
Rules. They are employed and paid out of the funds of the corporation.
The above-referred characteristics of the corporation reveal that it is a combination of public accountability and
business management. It thus gives us the best of both public ownership and private enterprise.
ADVANTAGES OF THE PUBLIC CORPORATION
1. EFFECTIVE FORM OF ORGANIZATION
The public corporation is considered as an effective administrative instrument, which follows a middle course
between the departmental organizations on the one side and privately owned and managed companies on the other
side.
2. PUBLIC CORPORATIONS ARE FLEXIBLE IN NATURE
The public corporation enjoys maximum autonomy in dealing with its affairs. It is almost free from the rigid and
persistent control of the Government. Therefore, it can manage its affairs with initiative and flexibility.
3. PUBLIC CORPORATIONS ARE FREE FROM RED TAPISM
Since the Board of Directors is entrusted with powers to make important decision, quick decisions are possibly. It
can also adjust its policies according to the changing business conditions and take prompt actions. Thus it is free
from the evils of red tapism associated with the departmental organization.
4. INITIATIVE
Being an autonomous body, it can experiment new lines and exercise initiative in the business affairs.
5. SERVICE MOTIVE
The evils generally associated with private enterprise such as profiteering, exploitation, illegitimate speculation are
absolutely absent in the workings of the corporation. Its principal motive is service. Hence, the interests of the
consumers are well protected.
6. EASY FINANCING
The public corporations can raise funds very easily from various sources. The investing public also readily
subscribes to the loans floated by them as they consider the loan bonds more safe and sound.
7. NO EXPLOITATION OF THE WORKERS
The employees of the public corporations are generally well paid. Since their aim is not to maximize profits, they
are in a position to pay higher wages and bonus to their employees. They are acting as model-employers.
8. EXPERTISE MANAGEMENT
The Government can appoint even an outsider as the managing director of the corporation. By appointing business
experts, the corporation can avail their valuable and expertise services. It can also appoint the representatives of the
various interests like labour, consumers etc. Therefore, there is no possibility for exploitation of any section of the
society.
9. ECONOMIES OF LARGE SCALE OPERATIONS
Public corporations are considered as a viable form of organization for launching enterprises on large scale.
Besides, businesses, which do not produce enough profits during the initial stages can be organized only as
corporations. Only this form of organization can do justice where public utilities and social services are involved.
DEMERITS OF PUBLIC CORPORATION
Experience of the working of the public corporations have shown some of its defects and raised certain problems.
The important defects are outlined below:
1. PUBLIC CORPORATIONS HAS LIMITED AUTONOMY
The corporations, in practice, enjoy neither complete autonomy nor flexibility. Their autonomy is somewhat
limited.
2. POLITICAL INTERFERENCE
The Ministers and the politicians frequently interfere with the workings of the corporations and influence their
policies. In many cases, politicians are appointed as the Chairman or Managing Directors of such corporations.
They possess no sufficient experience in the business lines of the corporations. Thus, the management of the
corporations is also very poor.
3. PUBLIC CORPORATIONS ARE EVILS OF BIG BUSINESS
As large undertakings are generally organized as public corporations, the evils of big business are bound to exist in
all the activities of the corporations.
4. LABOUR PROBLEMS
Bridging the gulf between the labour and management really poses a difficult problem to the management which is
already inefficient. In reality, the experiences are more bitter and painful in public corporations
Public undertaking
Public undertaking. An undertaking over which the public authorities directly or indirectly exercise dominant
influence by virtue of their ownership, financial participation, or the rules which govern it.
Public Sector Undertaking, known as PSU, is a company in which majority of the stake (more than 50%) is owned
by the Government.
An undertaking over which the public authorities directly or indirectly exercise dominant influence by virtue of
their ownership, financial participation, or the rules which govern it. A dominant influence of public authorities is
in particular presumed when they: a) hold the major part of the undertaking’s subscribed capital, b) control the
majority of the votes attached to shares issued by the undertaking or c) are in a position to appoint more than half
of the members of the undertaking’s administrative, managerial or supervisory body.
EVOLUTION OF PUBLIC SECTOR UNDERTAKINGS IN INDIA:
During the British Rule the presence of factories and enterprises was conspicuous,however they were mostly built and used for
vested interests of colonialism and thus did little good to India and its people.
Post Independence due to the above as well as other factors, India was in deep socio-economic issues. There was grave
underdevelopment,along with disparities in income,unemployment,lack of trained manpower and a weak industrial base and
investments,unacceptable infrastructural facilities,etc.
Therefore in order to self sustain and become self reliant the Public Sector Undertaking blueprint was developed under
Planned Economic Development model of Socialist countries that would address all the above problems.
ROLE OF PUBLIC SECTOR UNDERTAKINGS IN INDIA:
PSUs have laid a strong foundation for the Industrial development of the country as it is not interested in profit making but
nation building.
They leverage the government through major shareholding in the Industries to intervene in the economy in a major way thus
helping in achieving the desired socio-economic objectives and long term goals.
They help in pushing the agricultural economy on to the progressive pathway and rural development as well as providing basic
infrastructural facilities,educational and employment opportunities.
PUBLIC SECTOR IN MODERN INDIA:
In the beginning these PSUs were confined to those core and strategic industries that would not be touched by the private
players like Railways,Coal and Oil,Heavy Industries,Forest industries,etc. due to heavy investment required along with a lot of
time to complete and humongous risks involved that could lead to heavy loss if went wrong and also the private players lacked
the expertise for the same.
Therefore,the public sector(govt.) entered the same and began the development.
The later or second phase witnessed steps like nationalisation of industries,sick units being taken over by private players,and
the public sector entering into many other fields like manufacturing consumer goods,consultancy,contracting and
transportation,etc.
Thus according to Industrial Policies taken out from time to time, there were three categories that industries were classified
into with respect to the State's role:
i) Schedule A category was reserved for the future development of those industries that would be the exclusive responsibility
of State.
ii) Schedule B category included Enterprises whose initiative of development would be driven principally by the State and
then private participation would be allowed to supplement the efforts.
iii) Schedule C included remaining industries left to the private sector.
The latest Industrial policy of 1991 has thus under collapse of socialist model of development,non fulfillment of stated
objectives of the State of PSUs leading to low growth,underdevelopment and Liberalisation,privatisation and globalisation
principles brought in fundamental changes in the approach of public sector responsibilities .
FORMS OF PUBLIC SECTOR UNDERTAKINGS IN INDIA:
i) Public Sector Enterprises - Where government (state or central or both) hold at least 51% shares. Its forms of
organisation are Departments,Corporations,Company,Joint Enterprise,Development corporation. For details please
refer to the classifications of the above mentioned in a previous post on this blog titled "Organisations"- 
ii) Central Public Sector Enterprises - Classified into Strategic and Non Strategic. Their areas are: Arms and
Ammunitions and allied items of defence equipments,defence aircrafts and warships. Atomic energy(except in the
areas related to the operation of nuclear power and applications of radiation and radio-isotopes to agriculture,
medicine and non-strategic industries). Railways transport. Further conferred with Maharatna,Navratna,Miniratna
status,refer  .
iii) Public Sector Banks - Banks where government holds more than 50% or majority stake. 
iv) Section 25 Companies -
Public Sector Enterprises having objects to promote commerce, art, science, religion, charity or any other useful
purpose and not having any profit motive can be registered as non-profit company under section 25 of the
Companies Act, 1956.
This section empowers the Central Government to grant a licence directing that such an association may be
registered as a company with limited liability, without the addition of the words `Limited' or `Private Limited' to its
name.
Such companies are also called as the Non-profit or 'No Profit - No Loss' companies.
CHANGING SCENARIO OF PUBLIC SECTOR UNDERTAKINGS IN INDIA:
Their elevated status as drivers as economy was romanticist in approach and thus led to issues like over staffing
,corruption,wasteful practices,lack of work culture and motivation were unchecked and systematically ignored by
the government and led to the subsidisation of these concerns by them.
Many reports and committees followed to understand the issue and these were the results:
i) Persistently loss making units that are irretrievable and either need to be disposed off or handed over to private
sector for overhaul.
ii) Diversification into activities like producing bread and foot wear,where public enterprise intervention is
superfluous.
iii) High wage bills to the total neglect of productivity.
iv) Under utilisation of capacities
v) Hasty nationalisation of sick concerns that ultimately turned out as an incentive for unscrupulous capitalists to
bleed the enterprise white in the hope that once sick,the Govt's intensive care unit would automatically jump to
rescue.
vi) Unprofessional personnel practices
vii) Appointment of politicians as part time chairmen
viii) Low calibre of senior executives
ix) Excessive rules and regulations causing red tapism
x) Non cooperation from controlling economic ministers residing in New Delhi
xi) Poor infrastructural linkages among various segments like power,coal,steel,cement,irrigation,transport and
communication.
xii) Wrong product mix which saddles the public sector with unsold stock.
xiii) Obsolete technology
xiv) Unclear definition of objectives.
xv) Low profitability which is an impediment to successful plan implementations. THis is because of
contradictions and dilemma in the socio economic objectives of the PSUs due their obligation to provide
employment to a large base instead of profitability as well.
xvi) They are not permitted to change their economic prices for the services they render and goods they supply.
 PROBLEMS OF AUTONOMY IN PUBLIC SECTOR UNDERTAKINGS IN INDIA:
i) Chief executives of the PSUs not given a fixed tenure thus hampering policy stability and continuity in a definite
manner.
ii) Minister allotted to the undertaking has full authority to terminate Chairman or Director or Chief Executive.
iii) Due to a short tenure (As per a Standing conference on Public Enterprise the average tenure is only 2 years) the
Chief Executive is under constant pressure to show short term results at the cost of long term disadvantages.
iv) Many Committees have recommended that the procedure of contract termination of a CEO should be same as
the appointment procedure,i.e. by an appointment committee of the cabinet's recommendation. This
recommendation has been somewhat implemented by the Central government but with certain conditions.
v) Directors appointed by the government to the Board of Directors of PSUs try to influence the decision making
process of the board without accepting responsibility at the end creating a lot of interference in their independent
functioning and economical inititatives.
vi) Control from above is a big impediment in the functioning of PSUs as whenever a new project is taken up by a
PSU it has to go through Expenditure Finance Committee and Project Investment Board which is very
cumbersome and causes unnecessary delay and authoritarianism.
vii) No definite criteria for evaluation of performance of PSUs. On the basis of The Sen Gupta Committee
recommendations certain memoranda of understanding have been signed with the PSUs and Central Govt. and
State Govt. Recent one is between the Central Govt. and SAIL.
viii) Nepotism and favourability in PSU appointments by politicians leading to inefficiency and incompetency in
functioning. Therefore merit should only be the criteria for selection.
ix) No proper retention policies for retaining competent staff from the lure of lucrative private offers.
x) Lack of corporate planning,inventory management,paucity of resources,not up to the mark pay scales,delay in
project implementations.
xi) Lack of authority in taking a commercial mode in areas where opportunities exist for profit making and thus
gets caught in bureaucratic and political red tapism thus keeping it bureaucratic in nature instead of a
complementing approach of profitability and social obligations.
Another very good and effective measure to increase autonomy of PSUs introduced is the conferring of
Navratna,Maharatna and Miniratna status to them.
ACCOUNTABILITY AND CONTROL OF PUBLIC SECTOR UNDERTAKINGS IN INDIA:
The Parliamentary Committee on Public Undertakings since 1963 is a mechanism of accountability and control of
parliament over the PSUs. Every year,it submits 6 reports that educate the public opinion but that is all what they
seem to do. The latest device invoked to enforce accountability is a memorandum of understanding between the
PSU/PSE and its undertaking Ministry. Since 1989 PSE in India had been put under a notice as it were to show
results and in 1990 and 91 about 95 enterprises have signed MoUs. Latest is SAIL MoU with the Central Govt.
IMPACT OF LIBERALIZATION AND PRIVATISATION ON PUBLIC SECTOR UNDERTAKINGS IN
INDIA:
on 24th July 1991,the New Economic Policy was announced to be followed from there on that has been advocating
for public sector reforms.
Under collapse of socialist model of development,non fulfillment of stated objectives of the State of PSUs leading
to low growth,underdevelopment and Liberalisation,privatisation and globalisation principles brought in
fundamental changes in the approach of public sector responsibilities and priorities where the role of the State is
rolled back and restrictions removed along with New Public Management,Public Choice theory and Public-Private
Partenership theories and practices taking over.
What are Lokpal and Lokayuktas?
The Lokpal and Lokayukta Act, 2013 mandated for the establishment of Lokpal at the Union level and Lokayukta
at the State level. Lokpal and Lokayuktas are statutory bodies and these do not have any constitutional status.
These institutions perform the function and role of an “Ombudsman” (an official appointed to investigate
individuals’ complaints against a company or organization, especially a public authority). They inquire into
allegations of corruption against certain public bodies/organizations and for other related matters.
Origin and History
The story of the Lokpal and the Lokayukta has a long story. Lokpal and Lokayukta is not Indian origin concept.
The concept of ombudsman originated in 1809 with the official inauguration of the institution of Ombudsman in
Sweden. Later in the 20th century, after the Second World War, the institution of ombudsman developed and grew
most significantly. Countries like New Zealand and Norway also adopted the system of ombudsman in the year
1962. This system proved extremely significant in spreading the concept of ombudsman to other countries across
the globe.
Great Britain adopted the institution of the Ombudsman in the year 1967, on the recommendations of the Whyatt
Report of 1961. Through the adoption of such a system, Great Britain became the first eminent nation in the
democratic world to have such an anti-corruption institution. After great Britain, Guyana emerged as the first
developing nation to adopt the concept of the ombudsman in the year 1966. Subsequently, this concept was further
adopted by Mauritius, Singapore, Malaysia, and India as well.
Lokpal and Lokayukta Amendment Act, 2016
After the introduction of the Lokpal and Lokayukta Act 2013, a bill was passed by Parliament in July 2016 which amended the
Lokpal and Lokayukta Act, 2013. This amendment enabled the leader of the single largest opposition party in the Lok Sabha
to become a member of the selection committee in the absence of a recognized Leader of Opposition.
This bill also amended Section 44 of the Lokpal and Lokayukta Act 2013. Section 44 of the Act dealt with the provisions of
furnishing of details of assets and liabilities, within 30 days of joining the government service, of any public servant. This
amendment replaced the time limit of 30 days. It stated that the public servants will make a declaration of their assets and
liabilities in the form and manner as prescribed by the government.
In the case where any non-governmental organization receives funds of more than Rs. 1 crore from government or receives
foreign funding of more than Rs. 10 lakh then the assets of the trustees and board members were to be disclosed to the Lokpal.
The bill provided an extension to the time limit given to trustees and board members to declare their assets and those of their
spouses.
Structure of the Lokpal 
Let us try to understand the structure of the Lokpal. Lokpal is a multi-member body consisting of one chairperson
and a maximum of 8 members.
The person to be appointed as the chairperson of the Lokpal must be either:
1. The former Chief Justice of India; or
2. The former Judge of the Supreme Court; or
3. An eminent person with impeccable integrity and outstanding ability, who must possess special
knowledge and a minimum experience of 25 years in matters relating to:
1. Anti-corruption policy; 
2. Public administration; 
3. Vigilance;
4. Finance including insurance and banking;
5. Law and management.
The maximum number of members must not exceed eight. These eight members must constitute:
 Half members to be judicial members;
 Minimum 50% of the Members should be from SC/ ST/ OBC/ minorities and women.
The judicial member of the Lokpal must be either:
 A former Judge of the Supreme Court or;
 A former Chief Justice of the High Court.
The non-judicial member of the Lokpal needs to be an eminent person with flawless integrity and outstanding
ability. The person must possess special knowledge and an experience of a minimum of 25 years in matters
relating to:
  Anti-corruption policy;
 Public administration;
 Vigilance;
 Finance including insurance and banking;
 Law and management.
Term and appointment to the office of Lokpal
Lokpal Chairman and the Members can hold the office for a term of 5 years or till they attain the age of 70 years,
whichever is earlier. The members and the chairman of Lokpal are appointed by the president on the
recommendation of a selection committee.
The selection committee consists of:
 The Prime Minister of India; 
 The Speaker of Lok Sabha;
 The Leader of Opposition in Lok Sabha;
 The Chief Justice of India or any Judge nominated by Chief Justice of India;
 One eminent jurist.
The Prime Minister is the Chairperson of the selection committee. The selection of the chairperson and the
members is carried out by a search panel of at least eight persons, constituted by the selection committee.
Lokpal search committee
As per the Lokpal Act of 2013, the Department of Personnel and Training needs to create a list of candidates who
are interested to become the chairperson or members of the Lokpal. The list was then to be presented to the
proposed eight-member search committee. The committee on receiving the list shortlists the names and place them
before the selection panel, headed by the Prime Minister.
The selection panel has discretion in selecting the names from the list presented by the search committee. In
September 2018, a search committee was constituted by the government which was headed by former Supreme
Court judge Justice Ranjana Prakash Desai. The Lokpal and Lokayukta Act of 2013 also mandates that all states
must set up the office of the Lokayukta within one year from the commencement of the Act.
Jurisdiction and powers of Lokpal
The Jurisdiction of Lokpal extends to:
 Prime Minister, Ministers, 
 Members of Parliament,
 Groups A, B, C and D officers,
 Officials of Central Government.
The Jurisdiction of the Lokpal extends to the Prime Minister, except in the cases of allegations of corruption
relating to:
 International relations; 
 Security;
 The public order;
 Atomic energy and space.
The jurisdiction of the Lokpal does not include ministers and members of Parliament in the matter relating to:
 Any speeches delivered in the Parliament or; 
 For a vote cast in the Parliament.
Lokpal’s jurisdiction also includes:
 Every person who is or has been in charge (director/ manager/ secretary) of a body or a society set up
by the act of central government,
 Any society or body financed or controlled by the central government,
 Any person involved in act of abetting, 
 Bribe giving or bribe-taking.
The Lokpal and Lokayukta Act states that all public officials need to furnish their assets and liabilities as well as
their respective dependents. The Lokpal also possesses the powers to superintendence over the CBI. It also has the
authority to give direction to CBI. If a case is referred to CBI by the Lokpal, then the investigating officer in such a
case cannot be transferred without the prior approval of the Lokpal. The powers of a civil court have been vested
with the Inquiry Wing of the Lokpal.
Limitations
The institution of Lokpal came up as a much-needed change in the battle against corruption. The Lokpal was a
weapon to curtail the corruption that was spreading in the entire administrative structure of India. But at the same
time, there are loopholes and lacunae which need to be corrected. The appointing committee of Lokpal consists of
members from political parties that put Lokpal under political influence.
There are no criteria to decide who is an ‘eminent jurist’ or ‘a person of integrity’ which manipulates the method of
the appointment of Lokpal. The Lokpal and Lokayukta Act 2013 failed to provide any kind of concrete immunity
to the whistleblowers. The provision related to the initiation of inquiry against the complainant, in cases where the
accused is found innocent, leads to discouraging people from making complaints. One of the biggest lacunae is the
exclusion of the judiciary from the ambit of the Lokpal.
Main features of the Lokpal and Lokayukta -
    According to the Administrative Reforms Commission, the Lokpal and Lokayukta should have the following
features.
1) Lokayukta and Lokpal should be independent and impartial.
2) The investigation and proceedings of Lokpal and Lokayukta should be conducted in private and should be
informal in character.

3) Appointment of Lokpal and Lokayukta should be Non-political.

4) Status of Lokpal and Lokayukta should be compared with the highest judicial functionary in the country.
5) Their proceeding should not be subject to judicial interference and they should have the maximum latitude and
powers in obtaining information relevant to their duties.
6) Lokpal and Lokayukta should deal with matters in the discretionary field involving acts of injustice, corruption
or favoritism.
7) Lokpal and Lokayukta should not look forward to any benefit or pecuniary advantage from the executive
government.
8) The person appointed as Lokpal must not be connected with any political party, must not be a member of
Parliament or state legislature or Hold any office of profit
References: Ipeladers.com, srd notes, Lwannotest,toppers.com