Administrative law – Paper 7

Q1 : Define Administrative Law and discuss its nature and functions.

Introduction
For the smooth functioning of a democratic country, there should be a society based on fairness, reasonableness
and justness. Administrative law strives to develop a rule of law. It regulates the relationships between citizens and
government & protects the common man from arbitrary decisions of officials. It consists of all executive actions,
its programs & policies; all administrative aspects of parliament & judiciary; all actions of state like actors (agency
& instrumentality of the state); all actions of non-state actors (private entities) exercising public functions.
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.
It is that branch of public law that dictates how governmental agencies ad offices are to work both at central and
state level. It is mostly judge made law that provides the guidelines for public administration and ensuring public
welfare.
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.
Administrative law may be identified on the four basics stone:-
1. Checking constructive or abusive of the powers of the administrative authorities
2. Ensuring citizens a just and fair solution or determination of disputes
3. Protect from unauthorized curtailing of rights of the citizens
4. Accountability of the powers.
Ensuring the protection of citizens over the arbitrary actions of the administration and also focuses on the judicial
review of the actions or decisions taken by the administration to fulfill that protection against the actions of the
administration are main objects of the administrative law.
Definitions of Administrative law
Administrative law is a law related to administration and can be defined as the law which governs the activities of
the administrative agencies of the government including actions like rulemaking, adjudication, or the enforcement
of a particular agenda.
Many scholars state different definitions of Administrative law in their views:
According to K.C. Devis, Administrative law is a law which is related to powers and procedures of administrative
agencies, including specially the law related to judicial review of administrative actions.
According to Ivor Jennings, Administrative law is relating to the administration which helps in the determination of the
organization, powers and duties of the administrative authorities.
According to F.J. Port, Administrative law consists of all legal rules which have ultimate objects to fulfill the public
law, it touches legislature and judiciary too and also there are rules which govern judicial actions such as issuing writs
brought by or against the administrative person, rules that permit the administrative body to exercise judicial powers and
practical application of the law.
According to Austin, Administrative law is to determine the ends to and the modes in which the sovereign powers shall
be exercised. It shall be directly or by the subordinates.
According to Prof. H.W.R. Wade, Administrative law is the law which controls the powers of the government.
According to Dicey, Administrative law denotes that part of the nation’s legal system which determines the legal status
and liabilities of all states offices which defines the rights and liabilities of private individuals in their dealing with their
public officials and which specifies the procedure by which these rights and liabilities are enforced.
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 enterrise.
Nature of Administrative law
Administrative law is the branch of public law which defines the relation between individuals and state. But it is
not a law in a true sense like other laws such as property law or labor law. It is also not like private law which
deals with relations of individual inter se. it is a law to administer the administrative authorities and check them
from making any arbitrary decisions. Administrative law deals with the organization, powers and duties of the
administrative authorities and also the procedure followed by the officials while exercising the powers.
Administrative law is limited to the law which limits the power of administrative authorities while exercising the
powers. It also provides remedies in the favor of the public when the rights of the public encroached.
In India, administrative law is almost judge made law. Thus it suffers from more facilities and benefits because of
judicial lawmaking. Judiciary interprets law according to the need of time and issues guidelines for such. It affects
administrative law and makes it more strong and beneficial.  It is a branch of the constitution that regulates all
three branches i.e. legislative, executive and judiciary in the same way administrative regulates all administrative
authorities and protects them from corrupt practices.
Scope of Administrative law
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:
Administrative Law incorporates and culls out new rules and regulations. The concept of administrative law is
founded on the following:-
1. Principles of natural justice and for rulemaking
2. Notion of the Rule of law
3. Law conferred power to administration as per Article 13 of the Indian Constitution
4. Accountability of powers, no power is absolute or uncontrolled
5. There should be a reasonable restriction on the regulations of such powers
6. The power of the court to issues writs
7. Opinions of public and mass media.
As administrative law incorporates new rules and regulations as per the requirement of time, so its scope is wide
enough to incorporate all such rules and regulations. In general, it is a judge made law so it varies according to
societal needs. 
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.
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 administrators.
Administration is an all pervading feature of our lives. The ambit of administration is wide embraces several
functions:
1.Policy making ,2.Leadership to legislature ,3.Execution and administration of regulations of the land
4.Administering both traditional and contemporary functions of the State ,5.Exercising legislative powers by way
of a range of bye-laws, orders, decrees, orders, etc.
Continuous experimentation and adjustment of detail has become essential requisite of modern administration. If a
rule is found to be unsuitable in practice, a new rule incorporating the requisite changes is put in place, without
much delay. This flexibility is what widens administrative law and makes it significant in our lives. Administrative
laws not only puts law into effect but does much more than that.
Conclusion
Administrative law is to administer & protect the public from the arbitrary actions of the administrative authorities.
For a democratic country, there should be a strong and honest administration system. Administrative law provides
that strength by making laws for administrative authorities.
Q2- Discuss Judicial control over delegated legalization.
Introduction
According to M.P. Jain, “ the term is used in two different senses:
 to exercise the legislative power by subordinate agents, or
 the subsidiary rules themselves which are made by the subordinate authority in pursuance of the
powers conferred on it by the legislature”.
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.
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.
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.
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.
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.
 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,
Advantages of Delegated Legislation
 Save time for the legislature.
 Allow for flexibility.
 Expert opinion is required in legislation.
 Parliament is not always present in the session.
 Used as an experimental basis.
 It is restored to use it in a situation of emergency.
 Can be easily Settle down with consulting the required party of the case.
Criticism of Delegated Legislation
 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.
 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.
 The executive has become stronger with delegated legislation, it can easily encroach the rules and
regulation of legislation by making rules.
 This concept opposes the rule of Separation of Power.
 Lack of relevant discussion before framing the law.
 It is not in acceptance with the principle of rule of law.
 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
 Power to bring the act into action.
 Power to extend the time period or life of the act.
 Power to extend the application of the act to any territory and to make restriction or make an alteration
in the act itself.
 Exempt the operation on certain ground or subjects of territories.
Power to fill in the blanks of the format – A rough format is prepared by the legislature and pass on to the
executive to fill up with all the necessary blanks or elements needed by the subordinate legislation.
Power face in removing difficulties – Power to modify the statute maybe given to the government by removal of
difficulties clause.
Control of Delegated Legislation
There are three kinds of Control given under Delegated Legislation:
1. Parliamentary or Legislative Control
2. Judicial Control
3. Executive or Administrative Control
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.
Conclusion
If in India, Parliamentary control overlaps the delegated legislation then it is mandatory that the committee of parliament need
to be strong enough and separate laws should be made and passed which give a uniform rule for laying down and publication
purposes.
Q3- What do you understand by doctrine of separation of power. Explain its importance in administrative
law.
Introduction
The concept of separation of powers is the rudimentary element for the governance of a democratic country. This
principle corroborates fairness, impartiality and uprightness in the workings of a government. Although it is not
followed in its strict sense yet, most of the democratic countries have adopted its diluted version under their
respective constitutions.
Meaning
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.
The Historical Evolution
The doctrine of separation of powers emerged in the ancient era. Aristotle, in his book ‘Politics’, discussed the
concept of separation of powers stating that every constitution should have a heterogeneous form of government
consisting of mainly three branches: the deliberative, public officials and the judiciary. A similar structure of
government was observed in the Roman Republic setting off the principle of checks and balances in the country.
According to Wade and Phillips, the principle of separation of powers meant three things:
1. One person should not be made part of more than one branch of the government.
2. There should not be any interference and control of any organ of the government by the other.
3. No organ of the government should exercise the functions and powers of the other organ.
However, in the 18th century, the term ‘trias politica’ or the doctrine of separation of powers was theorized
meticulously by a French jurist, Baron de Montesquieu. He put more emphasis on the independence of the judicial
branch. He described that rather being ostensible, the judiciary must be authentic in nature. In his viewpoint, one
organ or one person should not discharge the functions of all the other organ and the reason was to safeguard and
protect the freedom of the individuals and avoidance of tyrannical rule. In his book De L’Esprit des Lois (The
Spirit of Laws, 1748), he propounded that:-
 The Executive should not exercise the legislative or judicial powers because this may threaten the
freedom and liberty of individuals.
 The Legislative should never exercise the executive or judicial powers as this may lead to arbitrariness
and hence, end the liberty.  
 The Judiciary should not exercise the executive or legislative powers because then a judge would
behave like a dictator.
Objectives of Separation of Powers
The following are the fundamental objectives of the doctrine of separation of powers:-
1. Firstly, it aims to eliminate arbitrariness, totalitarianism and tyranny and promote an accountable and
democratic form of government.
2. 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.
3. Thirdly, it keeps a check on all the branches of the government by making them accountable for
themselves.
4. 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.
5. 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.
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 –
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.
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.”
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.
 1. 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.
2. 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.
Importance of separation of powers: 
Separation of powers is a very important political concept. It is important because it goes a long way to determine
the relationship between the government and the masses in a state. Coupled with that, separation of power is
apparently known as a tool used to ensure justice in the state and accountability in the activities of the government.
Importance of Separation of powers
Below are some of the benefits of separation of powers in government:
1. Decentralization of Power:
One great importance of Separation of power is the decentralization of the powers of government which is
clearly seen in the political system. There are a lot of benefits of decentralization of government control. These
include; effective monitoring of the system by each of the division organs of government. It also avoids misuse of
power by one person or organ.
2. Prevention of arbitrary use of powers:
Another importance of the concept of separation of powers is that it prevents arbitrary use of powers. Where
absolute power is conferred on one body it is bound to be misused, and that is what separation of powers is meant
to stop. Separation of powers ensure that government powers are not concentrated in the hands of a single central
authority. This has been supported by the dictum of Chief Justice Taft.
3. Creating a harmonious working relationship:
Separation of powers also create a harmonious working relationship among the organs of the government. When
each unit and subunits of all the organs of the governments are aware of their role and duties, there is bound to be
respect for each unit’s duties and role, and this will create a good working condition among workers,
administrators, civil servants etc.
4. Protection of the Judicial Independent:
One great importance of separation of powers is not only the division of government powers amongst the
organs but the protecting and preserving of the judiciary by making sure that neither the legislature nor
executive takes away the powers, and the exercise of legislatives powers in particular is subject to control by
judiciary.
Section 4(8) of the 1999 constitution of the Federal republic of Nigeria restates this protection by providing
thus:
Save as otherwise provided by this constitution, the exercise of legislative powers by the National Assembly or
House of Assembly shall be subject to the jurisdiction of court of law and of judicial tribunals established by law
and of judicial tribunal established by law, and accordingly, the National Assembly or House of Assembly shall
not enact any law, that oust or purports to oust the jurisdiction of a court of law or of a jurisdiction of a court of
law or of a judicial tribunal established by law.
5. Protection of liberty:
The only mechanism that can protect the liberty and rights of citizens, more especially the minority in the country
is when powers to govern are not concentrated in the hands of one person, otherwise the powers will be
corrupted absolutely. This is apparently one of the key importance of Separation of Powers.
The idea of Separation of powers into different organs solves the problem of concentration of government powers
and protects the liberty of citizens. In “the spirit of the law” Montesquieu said that the secret of civil liberty lays
in the separation of these powers in the reserving of each type of power to different person or body of
persons.
6. Enhancement of effective government:
Lastly, Separation of Powers enhances and create viable and effective government by administrators. Since
the functions and responsibilities of the government has been divided, each of the organs are faced with lesser and
more specific responsibilities to attend to. Thus, there will obviously be effectiveness in government activities
generally, and where there is an unnecessary interference in the activities of any of the organs of government, the
law will come in to put a stop to that.
Q4- No one can be judge of his own cases. Explain
Principles of 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 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.
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
 To provide equal opportunity of being heard.
 Concept of Fairness.
 To fulfil the gaps and loopholes of the law.
 To protect the Fundamental Rights.
 Basic features of the Constitution.
 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
 Administrative action.
 Civil consequences.
 The doctrine of Legitimate exception.
 Fairness in action.
 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
 NEMO JUDEX IN CAUSA SUA
 AUDI ALTERAM PARTEM
 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.
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.
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.
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
Nemo judex in causa sua
 “No-one should be a judge in his own case”. The phrase is credited to Sir Edward Coke in the 17th century. It is also found
in The Moral Sayings of Publius Syrus, a Roman Slave (1856), by Darius Lyman, Jun., A. M.
Explanation
Nemo judex in causa sua (or nemo judex in sua causa) is a Latin phrase that means, literally, “no-one should be a judge in his
own case.” It is a principle of natural justice that no person can judge a case in which they have an interest.[1] The rule is very
strictly applied to any appearance of a possible bias, even if there is actually none: “Justice must not only be done, but must be
seen to be done”.
This principle may also be called:

 nemo judex idoneus in propria causa est

 nemo judex in parte sua
 nemo judex in re sua
 nemo debet esse judex in propria causa
 in propria causa nemo judex
The legal effect of a breach of natural justice is normally to stop the proceedings and render any judgment invalid; it should be
quashed or appealed, but may be remitted for a valid re-hearing.
Illustration:- If one sits in his own case as a judge and decides the case, the justice delivery system will never be free from
criticism. So it is imperative that no one shall be a judge in a case where s/he is either directly or indirectly a party
Cases Referred
Uma Nath Pandey & ors. vs. State of Uttar Pradesh
The first rule is ‘nemo judex in causa sua’ or ‘nemo debet …sua’ as stated in Earl of Derby’s case 1605 12 Co Rep 114, that
is, ‘no man shall be a judge in his own cause’. Coke used the form ‘aliquis non debet esse judex in propria …natural justice in
judicial process, including therein quasi-judicial and administrative process.
Yunus Khan v. State of Uttar Pradesh and ors.
The legal maxim “nemo debet essejudex in propria causa” (no man shall be a judge in his own…trial. Decision arrived at by
such process and order founded on such decision cannot possibly be regarded as valid or binding.”
 Q5- Examine the liability of the Government of India for torts committed by its servant in the course of
employment.

Q6- Write a detailed note on the contractual liability of state in India refer to any two Supreme Court
decisions.

Q7- Define and distinguish between judicial and quasi judicial function. Give the cases.

Judicial Functions:
1. As lies inter parties (a dispute between two parties) is an essential characteristic feature of judicial function.
2. The evidence shall be taken on oath.
3. The rules of evidence, Civil Procedure Code, etc. are strictly followed.
4. The Court fee, as per rules, are required to be paid.
5. The doctrines of precedents, stare decisis etc. shall strictly be followed.
6. No man a judge in his own case. This maxim is strictly followed.
7. The court is the real forum of judicial proceedings.
Quasi-Judicial Functions
1. A lis inter parties is not an essential characteristic feature of quasi-judicial function.
2. The evidence is not taken on oath.
3. The rules of evidence, C.P.C., Cr.P.C. etc. are not strictly followed.
4. Court fee is not required to be paid.
5. These doctrines are not followed strictly.
6. Sometimes, it may be relaxed here.
7. It is only a trapping of a court, but in reality it is not a court.
Quasi-judicial is defined as an action by an administrative agency which[i];
 ascertains certain facts,
 hold hearings,
 weigh evidence,
 make conclusions from the facts as a basis for their official action, and
 exercises discretion of a judicial nature.
A quasi-judicial proceeding investigates a disputed claim, weighs evidentiary facts and reaches a binding
decision[ii].  In Brustad v. Rosas, 1999 Minn. App. LEXIS 1384 (Minn. Ct. App. Dec. 28, 1999), the court held
that quasi judicial decisions are binding on the disputed claim.  The proceedings of administrative agencies are
quasi-judicial when; hearing is held, both parties participate, the presiding officer subpoena witnesses and the
administrative body has the power to take remedial action[iii].
In Cabana v. Kenai Peninsula Borough, 21 P.3d 833 (Alaska 2001), the court held that when an entity which
normally acts as a legislative body applies general policy in private capacities, it is functioning in a quasi-judicial
capacity.
In Robertson v. Astrue, 2009 U.S. Dist. LEXIS 64487 (W.D. Va. July 17, 2009), the court held that although there
are wide differences between administrative agencies and courts, they share a relationship similar to lower and
upper courts.  similarly while performing a judicial function an entity is similar to a district court[iv].  When an
administrative body acts in a quasi-judicial manner, due process requires notice and an opportunity for a full and
fair hearing[v].  In Toker v. Pollak, 44 N.Y.2d 211 (N.Y. 1978), the court held that there is absolute immunity to
communications made in the course of quasi-judicial administrative proceedings.

Q8- Discuss the merits and demerits of institution of ombudsman . Is institution of ombudsman desirable for
India.
An ombudsman is an official, usually appointed by the government, who investigates complaints (usually lodged
by private citizens) against businesses, financial institutions, universities, government departments, or other public
entities, and attempts to resolve the conflicts or concerns raised, either by mediation or by making
recommendations.
Ombudsmen may be called by different names in some countries, including titles such as a public advocate or
national defender.
How an Ombudsman Works
An ombudsman typically has a broad mandate that allows them to address overarching concerns in the public, and
sometimes the private, sector. That said, sometimes an ombudsman’s mandate extends over only a specific sector
of society—for example, a children’s ombudsman may be tasked with protecting the rights of the young people of
a nation, while, in Belgium, the various linguistic and regional communities have their own ombudsmen.
Types of Ombudsmen
While the general duty of the ombudsman is the same, the types of grievances they handle and resolution services
they provide may differ according to their appointment. Ombudsmen can be found in organizations, governments,
schools, and other institutions.
Industry Ombudsman
An industry ombudsman, such as a telecommunications or insurance ombudsman, may deal with consumer
complaints about unfair treatment the consumer received from a company that operates within that industry. Often
—and especially at the government level—an ombudsman will seek to identify systemic issues that can lead to
widespread rights violations or poor quality of service to the public by the government or institution in question.
Organizational Ombudsman
A large public entity or other organization may have its own ombudsman—an example being the California
Department of Health Care Services. Depending on the appointment, an ombudsman may investigate specific
complaints about the services or other interaction a consumer has had with the entity concerned.
An ombudsman within an organization may also have a primary function of dealing with internal issues, such as
complaints by employees, or, if an educational institution, complaints by its students.
Classical Ombudsman
Ombudsmen duties may be more wide-ranging nationally. For example, some countries have ombudsmen in place
to deal with issues such as corruption or abuses of power by public officials. Furthermore, some countries have
ombudsmen whose main function is to protect human rights within those countries.
Advocate Ombudsman
An advocate ombudsman, just as the name suggests, advocates for people who have filed grievances or for those
with whom the grievances concern.1  They can be found in the private or public sectors but are typically found
championing for long-term care residents, the elderly, the underserved, and those who lack the capacity to
advocate for themselves.
Media Ombudsman
Familiar to many is the media or news ombudsman who receives complaints about news reporting. The media
ombudsman promotes accurate and transparent news reporting in an environment that fosters trust with the general
public.
Media ombudsmen work with journalists, editors, and other media professionals to investigate and respond to
complaints. Often, to promote transparency in operations, they publish their response to a broader audience.
Advantages and Disadvantages of an Ombudsman
 Ombudsmen provide a channel for people to submit complaints against institutions (e.g., governments,
businesses, organizations, news outlets, and schools) without influence from the complainee. They conduct fair
and unbiased investigations at no cost to the complainant, providing resolutions or mediation services.
 Where corruption is present, ombudsmen can investigate, expose, and help correct illegal behaviors.
Ombudsmen help prevent governments from abusing their power, such as imposing unfair laws and exerting
controls over their citizens without constraints. They also help restore confidence in the system and its ability
to fairly address issues.
 In addition to investigating and providing resolutions, ombudsmen serve as a source of information about
policies and procedures. Serving as an unbiased party, they are able to promote communication between
parties and clarify issues that stifle progress.
 On the other hand, an ombudsman offers no benefit when their work produces lackluster or no results. A lack
of dedication and service erodes the trust of the complainant and the audience they are appointed to serve.
 If the claim is complex, receiving a quick resolution is unlikely. Investigations take time and may require
additional resources. Despite the recommendation or resolution, the institution has the final say on how to
resolve the issue.
 Unlike lawyers, ombudsmen are impartial—except in cases where they advocate for the rights of others. Some
are familiar with or have legal training; however, they cannot provide legal advice.
 If the complainant disapproves of the resolution, they may pursue other actions, such as suing the institution.
An ombudsman cannot, however, investigate a case after submitted to a court.
Q9- Write an essay on Public Interest litigation.
Public Interest Litigation
Introduction
 The expression ‘Public Interest Litigation’ has been borrowed from American jurisprudence, where it
was designed to provide legal representation to previously unrepresented groups like the poor, the racial
minorities, unorganised consumers, citizens who were passionate about the environmental issues, etc.
 Public interest Litigation (PIL) means litigation filed in a court of law, for the protection of “Public
Interest”, such as Pollution, Terrorism, Road safety, Constructional hazards etc. Any matter where the
interest of public at large is affected can be redressed by filing a Public Interest Litigation in a court of law.
 Public interest litigation is not defined in any statute or in any act. It has been interpreted by judges
to consider the intent of public at large.
 Public interest litigation is the power given to the public by courts through judicial activism. However,
the person filing the petition must prove to the satisfaction of the court that the petition is being filed for a
public interest and not just as a frivolous litigation by a busy body.
 The court can itself take cognizance of the matter and proceed suo motu or cases can commence on the
petition of any public spirited individual.
 Some of the matters which are entertained under PIL are:
o Bonded Labour matters
o Neglected Children
o Non-payment of minimum wages to workers and exploitation of casual workers
o Atrocities on women
o Environmental pollution and disturbance of ecological balance
o Food adulteration
o Maintenance of heritage and culture
Genesis and Evolution of PIL in India: Some Landmark Judgements
 The seeds of the concept of public interest litigation were initially sown in India by Justice Krishna
Iyer, in 1976 in Mumbai Kamagar Sabha vs. Abdul Thai.
 The first reported case of PIL was Hussainara Khatoon vs. State of Bihar (1979) that focused on the
inhuman conditions of prisons and under trial prisoners that led to the release of more than 40,000 under trial
prisoners.
o Right to speedy justice emerged as a basic fundamental right which had been denied to
these prisoners. The same set pattern was adopted in subsequent cases.
 A new era of the PIL movement was heralded by Justice P.N. Bhagawati in the case of S.P. Gupta vs.
Union of India.
o In this case it was held that “any member of the public or social action group acting bonafide”
can invoke the Writ Jurisdiction of the High Courts (under article 226) or the Supreme Court (under
Article 32) seeking redressal against violation of legal or constitutional rights of persons who due to
social or economic or any other disability cannot approach the Court.
o By this judgment PIL became a potent weapon for the enforcement of “public duties” where
executive action or misdeed resulted in public injury. And as a result any citizen of India or any
consumer groups or social action groups can now approach the apex court of the country seeking legal
remedies in all cases where the interests of general public or a section of the public are at stake.
o Justice Bhagwati did a lot to ensure that the concept of PILs was clearly enunciated. He did not
insist on the observance of procedural technicalities and even treated ordinary letters from public-
minded individuals as writ petitions.
 The Supreme Court in Indian Banks’ Association, Bombay & Ors. vs. M/s Devkala Consultancy
Service and Ors held :- “In an appropriate case, where the petitioner might have moved a court in her
private interest and for redressal of the personal grievance, the court in furtherance of Public Interest may
treat it a necessity to enquire into the state of affairs of the subject of litigation in the interest of
justice.” Thus, a private interest case can also be treated as public interest case.
 M.C Mehta vs. Union of India: In a Public Interest Litigation brought against Ganga water pollution so
as to prevent any further pollution of Ganga water. Supreme Court held that petitioner although not a riparian
owner is entitled to move the court for the enforcement of statutory provisions, as he is the person interested
in protecting the lives of the people who make use of Ganga water.
 Vishaka v. State of Rajasthan: The judgement of the case recognized sexual harassment as a violation
of the fundamental constitutional rights of Article 14, Article 15 and Article 21. The guidelines also
directed for the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act,
2013.
Factors Responsible for the Growth of PIL in India
 The character of the Indian Constitution. India has a written constitution which through Part III
(Fundamental Rights) and Part IV (Directive Principles of State Policy) provides a framework for regulating
relations between the state and its citizens and between citizens inter-se.
 India has some of the most progressive social legislations to be found anywhere in the world whether it
be relating to bonded labor, minimum wages, land ceiling, environmental protection, etc. This has made it
easier for the courts to haul up the executive when it is not performing its duties in ensuring the rights of the
poor as per the law of the land.
 The liberal interpretation of locus standi where any person can apply to the court on behalf of those
who are economically or physically unable to come before it has helped. Judges themselves have in some
cases initiated suo moto action based on newspaper articles or letters received.
 Although social and economic rights given in the Indian Constitution under Part IV are not legally
enforceable, courts have creatively read these into fundamental rights thereby making them judicially
enforceable. For instance the "right to life" in Article 21 has been expanded to include right to free legal aid,
right to live with dignity, right to education, right to work, freedom from torture, bar fetters and hand cuffing
in prisons, etc.
 Judicial innovations to help the poor and marginalised: For instance, in the Bandhua Mukti
Morcha, the Supreme Court put the burden of proof on the respondent stating it would treat every case of
forced labor as a case of bonded labor unless proven otherwise by the employer. Similarly in the Asiad
Workers judgment case, Justice P.N. Bhagwati held that anyone getting less than the minimum wage can
approach the Supreme Court directly without going through the labor commissioner and lower courts.
 In PIL cases where the petitioner is not in a position to provide all the necessary evidence, either because
it is voluminous or because the parties are weak socially or economically, courts have appointed
commissions to collect information on facts and present it before the bench.
Who Can File a PIL and Against Whom?
 Any citizen can file a public case by filing a petition:
o Under Art 32 of the Indian Constitution, in the Supreme Court.
o Under Art 226 of the Indian Constitution, in the High Court.
o Under sec. 133 of the Criminal Procedure Code, in the Court of Magistrate.
 However, the court must be satisfied that the Writ petition fulfils some basic needs for PIL as the letter is
addressed by the aggrieved person, public spirited individual and a social action group for the enforcement of
legal or Constitutional rights to any person who are not able to approach the court for redress.
 A Public Interest Litigation can be filed against a State/ Central Govt., Municipal Authorities, and
not any private party. The definition of State is the same as given under Article 12 of the Constitution and
this includes the Governmental and Parliament of India and the Government and the Legislature of each of
the States and all local or other authorities within the territory of India or under the control of the
Government of India.
Significance of PIL
 The aim of PIL is to give to the common people access to the courts to obtain legal redress.
 PIL is an important instrument of social change and for maintaining the Rule of law and accelerating
the balance between law and justice.
 The original purpose of PILs have been to make justice accessible to the poor and the marginalised.
 It is an important tool to make human rights reach those who have been denied rights.
 It democratises the access of justice to all. Any citizen or organisation who is capable can file petitions
on behalf of those who cannot or do not have the means to do so.
 It helps in judicial monitoring of state institutions like prisons, asylums, protective homes, etc.
 It is an important tool for implementing the concept of judicial review.
 Enhanced public participation in judicial review of administrative action is assured by the inception of
PILs.
Certain Weaknesses of PIL
 PIL actions may sometimes give rise to the problem of competing rights. For instance, when a court
orders the closure of a polluting industry, the interests of the workmen and their families who are deprived of
their livelihood may not be taken into account by the court.
 It could lead to overburdening of courts with frivolous PILs by parties with vested interests. PILs
today has been appropriated for corporate, political and personal gains. Today the PIL is no more limited to
problems of the poor and the oppressed.
 Cases of Judicial Overreach by the Judiciary in the process of solving socio-economic or environmental
problems can take place through the PILs.
 PIL matters concerning the exploited and disadvantaged groups are pending for many years. Inordinate
delays in the disposal of PIL cases may render many leading judgments merely of academic value.
Conclusion
 Public Interest Litigation has produced astonishing results which were unthinkable three decades ago.
Degraded bonded labourers, tortured under trials and women prisoners, humiliated inmates of protective
women’s home, blinded prisoners, exploited children, beggars, and many others have been given relief
through judicial intervention.
 The greatest contribution of PIL has been to enhance the accountability of the governments towards the
human rights of the poor.

Q10- What do you understand by the “Administrative Discretion”? On What ground it can be challenged in a
court of law.
Administrative discretion is an informal unilateral practice and is therefore unprotected by the protections inherent
in structured procedure. Discretion in simple words means choosing among the different alternatives available
without respect to any predetermined criterion, irrespective of how fanciful that choice may be. The administrative
discretionary issue is complex. Really, the government can not work in any intensive form of government without
the officials exercising some discretion. It is important not only for the individualization of the administrative
power but also because in the dynamic nature of modern state it is humanly impossible to lay down a guideline for
every imaginable eventually. Equally true, however, is that absolute power is a merciless master. It is more
destructive of liberty than any Other technology made by man.
There are three main heads under which the control over administrative discretion exercised.
1. Parliamentary Control over administrative discretion
2. Judicial Control over administrative discretion
3. Procedural and Executive Control

Parliamentary control over Administrative Discretion

There are several grounds of parliamentary control.
1. Direct General Control – The first form of parliamentary control shall be exercised at the time the enabling act
is passed. This is Parliamentary hearings that are of a general and direct control sort. In India, different methods
and procedures are used, such as discussions on the delegation bill, which include aspects such as requirement,
scope, form of delegation and authority delegated to. In addition, any Member can.ask questions on any aspect of
the delegation of legislative powers and, if disappointed, may give notice of discussion under Rule 59 of the Rules
of Procedure and Conduct of Business in Lok Sabha. Budget cuts during grant voting and committee debates
throughna private member’s Bill requesting changes to the parent act or through a debate at the time of the
President’s speech to.the joint parliamentary session are also useful. Yet in India as well as in the UK. Those
methods are seldom employed. This is due solely to a lack of tradition or experience. However, scholars think that
this approach should be used widely and efficiently to nip delegation vices in the bud.
2. Direct Special Control – Prominent among these remedies is the “laying on the table” method, which demands
that administrative “laws” rendered under delegated authority be submitted for approval to the legislature. Under
direct control, laying is an important and necessary feature, and it is laid down in compliance with the law, which
ensures that it should be put before Parliament after making the regulation. It contains three important parts to be
exercised according to.the degree of control required.

 Simple Laying
 Negative Laying
 Affirmative Laying
And two key tests are “Mandatory test” & “Directory test.”
i. Mandatory testing – Where laying demand is a condition pattern to direct the rule into effect, then laying need
is compulsory in such ancase. Where the clause that the rules should be drafted in a particular format is specified
then it becomes mandatory to adopt the format.
ii. Directory test – If the laying prerequisite is next to enforce the rule, it will be a directory in nature.
3. Indirect control – This is a power every Parliament and its committees exercise. Subordinate legislation is
another term for such form of committee. The committee’s principal job is to investigate.

 Whether rule are according to general object of the act.

 It bars the jurisdiction of the court in direct or indirect ways.
 Whether it has retrospective effect or not.
 Whether it safeguard or destroy the Principle of Natural Justice.
 Expenditure involved in it is from Consolidated fund.
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.

Judicial Control over Administrative Discretion

The rule of law has been applied to judicial review. The court must see that the delegated authority as defined is
within the meaning of the Constitution. Judicial review is more effective as it is[2] not recommended by the.court,
but it specifically violates the ultra vires law. In accordance with section 13(3)(a) “Rule” is stated in the Indian
Constitution which clearly indicates that the State should not make any law which abridge the right given in Part iii
of the Constitution. It is dependent on two basic grounds:

 It is ultra vires to the Constitution of India, and

 It is ultra vires to the enabling Act.
Although Indian courts have established some successful guidelines for proper exercise of discretion, the
conspectus of judicial conduct remains stagnant, varied, and residual, and lacks American courts’.activism.
Administrative direct judicial review process is exercised in two grounds :
(1) Control at the stage of delegation of discretion – The court exercises control over the delegation of
discretionary powers to the government by adjudicating the constitutionality of the law under which these powers
are delegated in relation to the fundamental rights set out in Part III of the Constitution of India. Consequently, if
the law confers undefined and broad discretion on any administrative authority, it may be considered ultra vires
Article 14, Article 19 and other Constitutional provisions.
(2) Control at the stage of the exercise of discretion – In India, unlike the USA, there is no Administrative
Procedure Act which provides for judicial review of administrative authority exercising. The.power of judicial
review therefore derives from the statutory structure of the tribunals. Indian courts have always held the view that
judge-proven discretion is a negation of the rule of law. Thus, they developed different formulations to control the
exercise of administrative discretion.
In P.B. Samant v. State of Maharashtra, the court held the distribution of cement against the law and the circulars
or guidelines issued by the Government on that behalf as bad. The distribution of cement was in favour of certain
builders in return for the donations given by them to certain foundations of which the Chief Minister was a trustee.
It was a clear case of mala fide exercise of power. The power to control the distribution of an essential commodity
like cement is given to the Government with a view to ensuring its equitable distribution. When this power is used
for obtaining donations for a trust, it is a clear case of abuse of power.

Procedural and Executive Control

There is no clear protocol for this until the legislature compels the executive to obey those laws or procedures. It
may take a long time to follow a.particular format which will certainly negate the actual purpose of the act.
Procedural regulation therefore means that certain rules are laid down under the Parent Act which must be
followed whilst it is compulsory or directory to follow it or not. It includes three components:

 i. Pre publication and consultation with an expert authority,

 ii Publication of delegated legislation.
 iii Laying of rules.
It can be either Mandatory or Directory, to know, certain specified parameters are given:

 i.Scheme of the Act.

 ii.Intention of Legislature.
 iii.Language used for drafting purpose.
 iv.Inconvenience caused to the public at large scale.
 Meaning of Administrative Discretion

Discretion is a science or understanding to discern between falsity and truth, between right and wrong, between
shadows and substance, between equity and colourable glosses and pretences, and not to do according to their
wills and private affections. -Lord Edward Coke, Rooke's Case (1598), 5 Rep. 99 b.

Lords Halsbury in Sharp v. Wakefield

Observed: Discretion means when it is said that something is to be done within the discretion of the authorities
that something is to be done according to the rules of reason and justice, not according to private opinion
...according to law and not humour. It is to be, not arbitrary, vague and fanciful, but legal and regular. And it must
be exercised within the limit, to which an honest man competent to the discharge of his office ought to confine
himself.
The main grounds for reviewing the administrative discretion, may be classified as under:
Ultra-Vires
The doctrine of ultra-vires states that a person or authority acting under statutory power can do only those things
which are statutorily authorised.
In case of failure to do so, the doctrine permits the courts to strike down the decision made by the bodies
exercising the public functions.
Khoday Distillaries Ltd. v. State of Karnataka
That the act of the administrative authority can be struck down if it is manifestly unreasonable and arbitrary.
The test of reasonableness plays a significant part in the governance of the country.
It can always be pointed whether the authority has a reasonable ground exercising judgement.
Abuse of Power
It has been seen that administrative bodies do not exercise their discretionary power for the purpose intended to
by the legislature.
All these factors amount to the abuse of discretionary powers and become ground for judicial review
Irrelevant Consideration
If the authority concerned pays attention to, or takes into account wholly irrelevant or extraneous circumstances,
events or matters, then the administrative action is ultra-vires and bound to be quashed
Associated Provincial Picture Homes Ltd. v. Wednesbury Corp.
Ruled that an authority exercising discretion must adhere to some principles: which include:
take all relevant factors into account;
exclude all irrelevant factors from its consideration;
reach the decision which is neither perverse nor irrational.
Improper Purpose
If the statutory authority exercises discretion for a different purpose the actions taken may be quashed on the
ground to have exercised that power for improper purpose.
Pratap Singh v. State of Punjab
It may be also possible to prove that an act of public body, though performed in good faith and without the taint
of corruption, was so clearly founded an alien and irrelevant ground as to be outside the authority conferred
upon the body and therefore inoperative.
It is not possible to draw hard and fast line, but if the administrative authority, by reason of its having
misconstrued the Act or for any other reason so used its discretion as to thwart or run counter to the policy and
objects of the Act, the court would certainly provide protection to the persons aggrieved.
Errors of Law
Syed Yakoob v. K. S. Radha Krishnan
Court observed:
An error of law which is apparent on the face of record can be corrected by a writ but not an error of fact,
however, grave it may appear to be.
The only case where a finding of fact might be impugned on the ground of error of law apparent on the face of
record are:
erroneously refusing to admit admissible and material evidence,
erroneously admitting inadmissible evidence which influenced the finding, and
a finding of fact based on no evidence.
Unauthorised Delegation
The principle is that when a power entrusted to a person in circumstance indicating that trust is being placed in
his individual judgement and discretion, he must exercise that power personally unless he has been expressly
empowered to delegate it to another.
Fettering of Discretion
When a statute confers powers on an authority to apply a standard as the case in administrative discretion, it is
expected of it to apply it from case to case, and not fetter its discretion by declaration of rules or policy to be
followed uniformly in all the cases.
Somabhai v. State
The court observed that:
Generalization on matters which rest on discretion and the attempt to discover formulae of universal application
when facts are bound to differ from case to case frustrates the very purpose of conferring discretion.
Proportionality
The doctrine of proportionality is emerging as a new ground of challenge for judicial review of administrative
discretion.
It is a recognised general principle of law evolved with a purpose to maintain a proper balance between any
adverse effects which its decision may have on the rights, liberties or interests of persons and the purpose it
pursues.
The doctrine of proportionally endavours to confine the exercise of discretionary powers of administrative
authority to mean which are proportioned to the object to be pursued.
The courts while invoking the doctrine of proportionality may quash the exercise of powers in which there is not
a responsible relationship between the objective which is sought to be achieved and the means used to that end.
Tests
'Proportionality' involves a Balancing test which keeps a check on the excessive or arbitrary punishments or
encroachment upon the rights and Necessity test which takes into account other less restrictive alternates.
The principle of proportionality evaluates two aspects of a decision:
Whether the relative merits of differing objectives or interests were appropriately weighed or fairly balanced?
Whether the measure in question was in the circumstances excessively restrictive or inflicted an unnecessary
burden on affected persons.
Landmark Case:
Associated Provisional Picture Houses Vs. Wednesbury Corporation
Under the concept of Secondary Review the Courts would strike down Administrative Orders only if it suffers the
vice of Wednesbury unreasonableness which means that the order must be so absurd that no sensible person
could ever dream that it lay within the powers of the administrative authority.
Union of India v. Kuldeep Singh
The Supreme Court while invoking the principle of proportionately has held that:
It is equally true that the penalty imposed must be commensurate with the gravity of the misconduct and that
any penalty disproportionate to the gravity of misconduct would be violative of Article 14 of the Constitution.
Union of India v. G. Ganayutham
In that case the Supreme Court after extensively reviewing the law relating to Wednesbury unreasonableness and
proportionality prevailing in England held that the 'wednesbury' unreasonableness will be the guiding principle in
India, so long as fundamental rights are not involved.
Omkumar v. Union of India
However the Court refrained from deciding whether the doctrine of proportionality is to be applied with respect
to those cases involving infringement of fundamental rights.