INTRODUCTION TO ADMINISTRATIVE LAW

Meaning of Administrative Law;-

Definition by Ivor Jennings
Ivor Jennings in his "The law and the constitution, 1959" provided the following definition of the
term "administrative law".

According to him, "administrative law is the law relating to the administrative authorities".

This is the most widely accepted definition, but there are two difficulties in this definition.
(1) It is very wide definition, for the law which determines the power and functions of
administrative authorities may also deal with the substantive aspects of such powers.
For example :- Legislation relations to public health services, houses, town and country planning
etc.. But these are not included within the scope and ambit of administrative law, and
(2) It does not distinguish administrative law from constitution law.

Definition by K. C. Davis
According to K. C. Davis, "Administrative law as the law concerning the powers and procedures of
administrative agencies, including especially the law governing judicial review of administrative
action".

Definition by Prof. Wade

According to Wade (Administrative Law, 1967) administrative law might be said "the law which
concerns administrative authorities as opposed to the others". Or “the law relating to the control of
government power.”

Definition by Griffith and Street

According to Griffith and Street, (Principles of administrative law, 1963), Administrative law is the
operation and control of administrative authorities, it must deal with the following three aspects :-
1. What are the limits of those powers?
2. What sort of power does the administration exercise?
3. What are the ways in which the administrative is kept within those limits?

NATURE & SCOPE(LIMITATION) OF ADMINISTRATIVE LAW

Nature of Administrative Law;-
Administrative Law is a branch of public law that deals with the powers of the Administrative
authorities, the manner in which powers are exercised and the remedies which are available to the
aggrieved persons, when those powers are abused by administrative authorities.
The Administrative process has come to stay and it has to be accepted as a necessary evil in all
progressive societies. Particularly in welfare state, where many schemes for the progress of the
society are prepared and administered by the government. The execution and implementation of
these programs may adversely affect the rights of the citizens. The actual problem is to reconcile
social welfare with rights of the individual subjects. The main object of the study of Administrative
law is to unravel the way in which these Administrative authorities could be kept within their limits
so that the discretionary powers may not be turned into arbitrary powers.

Scope;- Administrative Law as a law is limited to concerning powers and procedures of

administrative agencies. It is limited to the powers of adjudication or rule-making power of the
authorities. Thus, it is limited to:
 Establishment, organization and powers of various administrative bodies
 Delegated legislation - the Rule-making power of the authorities
 Judicial functions of administrative agencies such as tribunals
  Remedies available such as Writs, Injunction etc.
 Procedural guarantees such as the application of principles of Natural Justice
 Government liability in tort
 Public corporations

SOURCES OF ADMINISTRATIVE LAW

 The Constitution – Various administrative organs derive their powers and functions from
the Constitution, such organs include the president, Ministers, local government authorities
etc.
 The Statute – Most of administrative organs are statutory formed.
 Case law – These are decisions by the supreme courts of the land in administrative
disputes.
 Received laws – These include the common law principles, doctrine of equity and such
statutes of general application.
 Books – Books by prominent jurists and opinions from prominent jurists.

REASONS FOR THE GROWTH AND DEVELOPMENT OF ADMINISTRATIVE LAW.

The following can be considered as the factors that gave ways to the development of administrative
law;-
1. A radical change in philosophy as to the role played by the state.
2. The judiciary process was inadequate to settling disputes, judicial system proved to be
inadequate to be able to solve multifarious increase in number of disputes.
e.g;- the disputes between employers and employees
3. The legislative process was also inadequate to meet all the needs of the community in
legislative matters.
4. Flexibility in the function of administrative organs.
5. The administrative authorities can avoid technicalities. Administrative law represent
functional rather than a theoretical and legalistic approach. The administrative tribunals are
not bound by the rules of evidence and procedure and they can take a practical view of
matter to decide complex problems.

CONSTITUTIONAL LAW & ADMINISTRATIVE LAW

Constitutional law is concerned with organization and the functions of the government at rest, while
the administrative law is concerned with the organizations and those functions in motions.

BASIC ADMINISTRATIVE PRINCIPLES

1. RULE OF LAW
A)Meaning- (also known as nomocracy) is the legal principle that law should govern a nation,
Rule of law implies that every citizen is subject to the law, including law makers themselves. In this
sense, it stands in contrary to an autocracy, collective leadership, dictatorship, or oligarchy where
the rulers are held above the law (which is not necessary by definition but which is typical).
DICEY attributed the following three meanings to the said doctrine;-
 Supremacy of the law- The First meaning of the Rule of Law is that no man is punishable
or can lawfully be made to suffer in body or goods except for a distinct breach of law
established in the ordinary legal manner before the ordinary courts of the land. “It implies
that a man may be punished for a breach of law and cannot be punished for anything else, no
man can be punished except for a breach of law. An alleged offence is required to be proved
before the ordinary courts in accordance with the ordinary procedure”.

 Equality before the law- The Second meaning of the Rule of Law is that no man is above
 law. Every man whatever be his rank or condition is subject to the ordinary law of the realm
and amenable to the jurisdiction of the ordinary tribunals.

 Predominance of legal spirit- The Third meaning of the rule of law is that the general
principles of the constitution are the result of juridical decisions determining file rights of
private persons in particular cases brought before the Court.

B) Application of doctrine of rule of law

In England the doctrine of rule of law was applied in concrete cases, According to Wade if a man is
wrongful arrested by police he can file a suit for damages against them as if the police were private
individuals.

Cases;-
Wilkes v. Wood(1763) 19 St Tr
It was held that an action for damages of trespass was maintainable even if the action complained of
was taken in pursuance of the order of the minister.

C) Importance of doctrine of Rule of law.

1. Constraints(limitations) on Government Powers
In a society governed by the rule of law, the government and its officials and agents are subject to
and held accountable under the law. Modern societies have developed systems of checks and
balances, both constitutional and institutional, to limit the reach of excessive government power,
and to subject the government power, or ruler, to legal restraints
2. Absence of Corruption
The absence of corruption - conventionally defined as the use of public power for private gain - is
one of the hallmarks of a society governed by the rule of law, as corruption is a
manifestation(evidence or fact) of the extent to which government officials abuse their power or
fulfill their obligations under the law.
3. Open Government
Open government is essential to the rule of law. It involves engagement, access, participation, and
collaboration between the government and its citizens, and plays a crucial role in the promotion of
accountability.
4. Fundamental Rights
Under the rule of law, fundamental rights must be effectively guaranteed. A system of positive law
that fails to respect core human rights established under international law is at best “rule by law”.
Rule of law abiding societies should guarantee the rights embodied in the Universal Declaration of
Human Rights including the right to equal treatment and the absence of discrimination; the right to
life and security of the person; the right to the due process of the law; the freedom of opinion and
expression; the freedom of belief and religion; the absence of any arbitrary interference of privacy;
the freedom of assembly and association; and the protection of fundamental labor rights.
5. Human Security
Human security is one of the defining aspects of any rule of law society. Protecting human security,
mainly assuring the security of persons and property, is a fundamental function of the state.
6. Regulatory(control) Enforcement
Public enforcement of government regulations is pervasive in modern societies as a method to
induce conduct. A critical feature of the rule of law is that such rules are upheld and properly
enforced by authorities, particularly because public enforcement might raise the scope for
negligence and abuse by officials pursuing their own interest.
7. Civil Justice
In a rule of law society, ordinary people should be able to resolve their grievances(wrongs) and
obtain remedies in conformity with fundamental rights through formal institutions of justice in a
peaceful and effective manner, rather than resorting to violence or self-help.
 8. Criminal Justice
An effective criminal justice system is a key aspect of the rule of law, as it constitutes the natural
mechanism to redress grievances and bring action against individuals for offenses against society.
9. Informal Justice
For many countries it is important to acknowledge the role played by traditional, or ‘informal’,
systems of law — including traditional, tribal, and religious courts, as well as community-based
systems — in resolving disputes. These systems often play a large role in cultures where formal
legal institutions fail to provide effective remedies for large segments of the population or when
formal institutions are perceived as foreign, corrupt, and ineffective.

D)The droit (right) of administratif

droit administratif' is a body of rules which determines the organization and duties of public
administrations and which regulates the relation of administration with the citizen of the states.

E) Modern concepts of rule of law

The New Delhi Congress or Declaration of Delhi was an international gathering of over 185
judges, lawyers, and law professors from 53 countries all over the world, united as the International
Commission of Jurists that took place in New Delhi, India in 1959. The theme of the New Delhi
Congress was "The Rule of Law in a Free Society". The Congress further developed the principles
and procedures underlying the Rule of Law as well as defining and clarifying the concept itself.
In preparation of the Congress, the Commission held a preparatory meeting in The Hague,
Netherlands on 7 and 8 July 1958, where the drafting of the Congress Working Paper on the Rule of
Law was mandated to former ICJ Secretary-General, Mr Norman Marsh. The 134 page paper was
based on information gathered in an international survey of lawyers and legal institutions conducted
by the ICJ Secretariat in the course of 1957. The information gathered was divided into the
following sections:
 1. The Legislative and the Rule of Law
 2. The Executive and the Rule of Law
 3. Criminal Process and the Rule of Law
 4. The Judiciary and Legal Profession under the Rule of Law.

The Delhi Congress gave rise to three important elements in the concept of the Rule of Law.
 First, that the individual is possessed of certain rights and freedoms and that he is entitled
to protection of these rights and freedoms by the State;
 Second, that there is an absolute need for an independent judiciary and bar as well as for
effective machinery for the protection of fundamental rights and freedoms; and
 Third, that the establishment of social, economic and cultural conditions would permit
men to live in dignity and to fulfill their legitimate aspirations.

2. SEPARATION OF POWERS
The model was first developed in ancient Greece. Under this model, the state is divided into
branches, each with separate and independent powers and areas of responsibility so that the powers
of one branch are not in conflict with the powers associated with the other branches. The typical
division of branches is into a legislature, an executive, and a judiciary.

A)Antiquity( Historical background)

Aristotle first mentioned the idea of a "mixed government" or hybrid government in his work
Politics where he drew upon many of the constitutional forms in the city-states of Ancient Greece.
In the Roman Republic, the Roman Senate, Consuls and the Assemblies showed an example of a
mixed government according to Polybius (Histories, Book 6, 11-13).

B)Montesquieu's tripartite system

The term tripartite system is ascribed to French Enlightenment political philosopher Baron de
Montesquieu. In The Spirit of the Laws (1748), Montesquieu described the separation of political
power among a legislature, an executive, and a judiciary. Montesquieu's approach was to present
and defend a form of government which was not excessively centralized in all its powers to a single
monarch or similar ruler. He based this model on the Constitution of the Roman Republic and the
British constitutional system. Montesquieu took the view that the Roman Republic had powers
separated so that no one could usurp complete power. In the British constitutional system,
Montesquieu discerned a separation of powers among the monarch, Parliament, and the courts of
law.
Montesquieu did actually specify that "the independence of the judiciary has to be real, and not
apparent merely". "The judiciary was generally seen as the most important of powers, independent
and unchecked", and also was considered dangerous.

C) Importance of separation of power

1.Sharing Power and Checking One Another
The system of separation of powers divides the tasks of the state into three branches: legislative,
executive and judicial. These tasks are assigned to different institutions in such a way that each of
them can check the others. As a result, no one institution can become so powerful in a democracy as
to destroy this system.
2.Clear Distinctions
The separation of powers is also reflected in the fact that certain functions must not be exercised by
one and the same person. Thus, the Federal President cannot at the same time be a Member of the
National Council, or a judge who is appointed Minister or elected to be a Member of the National
Council must be temporarily suspended from his/her judicial duties.
3.The Legislative Power
The first of the three powers has the task of passing laws and supervising their implementation. It is
exercised by Parliament – i.e. the National and Federal Councils – and the Provincial Diets.
The implementation of laws is the task of the executive and judicial branches
4.The Executive Power
The executive branch has the task of implementing laws. It comprises the Federal Government, the
Federal President and all federal authorities including the police and the armed forces.
5.The Judicial Power (Judiciary)
Judges administer justice, viz. they decide disputes independently and impartially. It is their task to
ensure that laws are complied with. Judges cannot be deposed and cannot be assigned other
positions against their will.

D) Separation of powers in practice

i) In U.S.A- Separation of powers is a political doctrine originating in the writings of Montesquieu

in The Spirit of the Laws where he urged for a constitutional government with three separate
branches of government. Each of the three branches would have defined abilities to check the
powers of the other branches. This idea was called separation of powers. This philosophy heavily
influenced the writing of the United States Constitution, according to which the Legislative,
Executive, and Judicial branches of the United States government are kept distinct in order to
prevent abuse of power. This United States form of separation of powers is associated with a system
of checks and balances.

ii) In United Kingdom- Although the doctrine of separation of power plays a role in the United
Kingdom's constitutional doctrine, the UK constitution is often described as having "a weak
separation of powers" A. V. Dicey, despite its constitution being the one to which Montesquieu
originally referred. For example, in the United Kingdom, the executive forms a subset of the
legislature, as did—to a lesser extent—the judiciary until the establishment of the Supreme Court of
the United Kingdom. The Prime Minister, the Chief Executive, sits as a member of the Parliament
of the United Kingdom.

iii) In India - India follows a parliamentary system of government, which offers a clear separation
of powers. The judiciary branch is fairly independent of the other two branches. Executive powers
are vested with the President and Prime Minister, who are assisted by the Cabinet Secretary and
other Secretaries. But practically the separation of powers does not exist between Legislature and
Executive, as Prime Minister is elected by Parliament it self. Hence in India, there is no separation
between Legislature and Executive. All three branches have "checks and balances" over each other
to maintain the balance.

E)Doctrine of Ultra vires This a Latin phrase meaning literally "beyond powers", and slightly less
literally (from interpolating the definite article "the", not found in Latin) "beyond [the] powers",
although its standard legal translation and substitute is "beyond power". If an act requires legal
authority and it is done with such authority, it is characterized in law as intra vires (nearly literally
"within [the] powers", after interpolating "the"; standard legal translation and substitute, "within
power"). If it is done without such authority, it is ultra vires. Acts that are intra vires may
equivalently be termed "valid" and those that are ultra vires "invalid".

CLASSIFICATION OF ADMINISTRATIVE ACTIONS

The administrative law has classified actions of the administration into three, namely,
“administrative”, “legislative”, “judicial” or “quasi- judicial”. Although attempts have been made to
avoid such classification for reasons of practically vague distinctions amongst them. However, this
exercise of labeling the functions cannot be avoided completely and requires a coordinated and
consistent working of these three primary functions.
Just as the government of a country is divisible into three functional components, viz., Legislative,
Judicial and Executive, so are the powers conferred on the Administration, which are classified
into:-
(i) Legislative Power: which in administrative law parlance is known as Delegated Legislation.
Legislation might be defined as the making of general rules to govern future conduct (Public Acts
of the Parliament)

(ii) Adjudicative, power which is generally characterized as quasi-judicial or adjudicative power.

Administration is considerably more difficult to define. It may be taken to mean the application of
general rules to particular cases by the making of some order or some decision or by performing
some action.

(iii) Administrative power, which is non-legislative and non-adjudicative in nature. The central
case of judicial function is the final and binding resolution of disputes as to facts, or as to the
existences or the scope of legal rights or duties, by means of finding facts deciding what the law is
and applying the law to the facts.

DELEGATED LEGISLATION

Delegated legislation (also referred to as secondary legislation or subordinate legislation or

subsidiary legislation) is law made by an executive authority under powers delegated from a
legislature by enactment of primary legislation; the primary legislation grants the executive agency
power to implement and administer the requirements of that primary legislation. It is law made by a
person or body other than the legislature but with the legislature's authority. The power to create
delegated legislation is limited to making regulation that is incidental to administering the primary
legislation. Otherwise it will be considered as invalid or ultra vires.

Delegated legislation, also referred to as secondary legislation, is legislation made by a person or

body other than Parliament. Parliament, through an Act of Parliament, can permit another person or
body to make legislation. An Act of Parliament creates the framework of a particular law and tends
only to contain an outline of the purpose of the Act

Reasons for delegated legislation

1. Pressure upon parliament time
It avoids overloading the limited Parliamentary timetable as delegated legislation can be amended
and/or made without having to pass an Act through Parliament, which can be time consuming.
Changes can therefore be made to the law without the need to have a new Act of Parliament and it
further avoids Parliament having to spend a lot of their time on technical matters, such as the
clarification of a specific part of the legislation.

2. Technicality of experts of certain matters

Sometimes, subject matter of legislation is technical in nature. So, assistance of experts is required.
Members of parliament may be the best politicians but they are not expert to deal with highly
technical matters. These matters are required to be handled by experts. Here, the legislative power
may be conferred on experts to deal with the technical problems. i.e. gas, atomic energy, drugs,
electricity etc.

3. Emergences
In times of emergency, quick action is required to be taken. Delegated legislation can deal with an
emergency situation as it arises without having to wait for an Act to be passed through Parliament
to resolve the particular situation. E.g;- in times of war and in cases of epidemics(Sudden disease),
floods, inflation(increase and fall of price), economic depression(decline) and other national
emergencies, the executive is vested with extremely wide powers to deal with the situation.

4.Experiment
The practice of delegated legislation enables the executive to experiment. This method permits
rapid utilization of experience and implementation of necessary changes in application of the
provisions in the light of such experience.
For example, in road traffic matters, an experiment may be conducted and in the light of its
application necessary changes could be made. The advantage of such a course is that it enables the
delegate authority to consult interests likely to be affected by a particular law, make actual
experiments when necessary and utilize the result of his investigation and experiments in the best
possible way. If the rules and regulations are found to be satisfactory, they can be implemented
successfully. On the other hand, if they are found to be defective, the defects can be cured
immediately.

5. Flexible situations
Delegated legislation can be used to cover a situation that Parliament had not anticipated at the time
it enacted the piece of legislation, which makes it flexible and very useful to law-making. Delegated
legislation is therefore able to meet the changing needs of society and also situations which
Parliament had not anticipated when they enacted the Act of Parliament. E.g. bank rate, police
regulations, export and import, foreign exchange etc.

6. Complexity of modern administrative law

The complexity of modern administration and the expansion of the functions of the state to the
economic and social sphere have rendered it is necessary to resort to new forms of legislation and to
give wide powers to various authorities on suitable occasions. In a country like Bangladesh, where
control and regulation over private trade, business or property may be required to be imposed, it is
necessary that the administration should be given ample power to implement such policy so that
immediate action can be taken.

FORMS OF DELEGATED LEGISLATION

1-Title based classification
Rule: For the definition see the General Clauses Act 1897
Regulation: An instrument by which decisions, orders and acts of government are made known to
the public.
Order: in general order refers to Administrative Rule making.
Bye-laws: Rules made by semi-governmental authorities established under the Acts of Legislature
Directions: Expression of Administrative Rule making under the authority of law
Scheme: It is the situation where the law authorizes the administrative agency to lay down a
framework.
2-Distinction based classification
Subordinate legislation: The process consist of discretionary elaboration of rules and regulations
Conditional Legislation: The statute that provides control but specifies that they are to go in to
effect only when a given administrative authority finds the existence of conditions defined in the
statute itself.

3.Purpose based classification

DELEGATED LEGISLATION IN USA

Under constitutional separation-of-powers provisions, laws are enacted by the legislature,
administered by the executive and interpreted by the judiciary.
In theory, there is no delegated legislation in United States because it is not written in the
constitution and also there is theory of separation of powers, In constitutional and administrative
law, the principle delegata potestas non potest delegari (Latin) states that "no delegated powers can
be further delegated". Alternatively, it can be stated delegatus non potest delegare, "one to whom
power is delegated cannot himself further delegate that power" This principle is present in several
jurisdictions such as that of the United States, the United Kingdom and India

In practice there is delegated legislation in United States where by the house of congress delegates
power to its provinces or federal governments to make laws
Case
National Broadcasting Co. v. United States, 319 U.S. 190 (1943)
Facts
The Federal Communications Commission (FCC) established Chain Broadcasting Regulations for
pertaining to associations between broadcasting networks and their affiliated stations, in 1941,
which specifically governed the licensing and content of chain broadcasting stations. NBC sued to
enjoin the enforcement of the regulations. The United States District Court for the Southern District
of New York dismissed the complaint, ruling for the government, and NBC appealed.
Held
Supreme Court of the United States held on May 10, 1943 that the Federal Communications
Commission had the power to issue regulations pertaining to associations between broadcasting
networks and their affiliated stations, otherwise known as "chain networks." The case is important
in the development of American administrative law.
The Supreme Court ultimately affirmed the dismissal of the complaint, ruling that the government
had the power to enact and enforce the regulations in question.
Lichter v. United States 334 U.S. 742 (1948)
Facts:
Petitioners(applicants) challenged that the Renegotiation Act unconstitutionally attempted to
delegate legislative power to administrative officials. Renegotiations Act authorized the government
to determine and recapture excessive profits by private contractors during war time. Petitioners
brought suit challenging the constitutionality of this legislation, arguing improper delegation
because the legislation contained too slight a definition of legislative policy and standards.

Issue: Whether Congress can delegate its war making authority to administrative agencies for
determining “excessive profits” during wartime.

Holding:
Yes. The Supreme Court held that the Renegotiation Act and the Second Renegotiation Act were
constitutionally sound because Congress had the express authority, and the laws were necessary and
proper for carrying into execution the war powers and especially its power to support armies.
The court held that petitioner taxpayers were required to pay excessive profits to the United States
under the Renegotiation Act and the Second Renegotiation Act because Congress had authority to
recover excessive profits as part of the war powers granted by the U.S. Constitution. Further,
petitioners were not entitled to a redetermination of the tax owed by the tax court because
petitioners failed to petition the court for a redetermination.

Panama Refining Co. v. Ryan, (1935),

Facts
Also known as the Hot Oil case, was a case, in which the United States Supreme Court ruled that
the Roosevelt Administration's prohibition of interstate and foreign trade in petroleum goods
produced in excess of state quotas, the "hot oil" orders adopted under the 1933 National Industrial
Recovery Act, was unconstitutional.
The ruling was the first of several that overturned key elements of the Administration's New Deal
legislative program. The relevant section 9(c) of the NIRA was found to be an unconstitutional
delegation of legislative power,as it permitted presidential interdiction of trade without defining
criteria for the application of the proposed restriction.
The finding thus differed from later rulings that argued that Federal government action affecting
intrastate production breached the Commerce Clause of the Constitution;

Held
n Panama v. Ryan, the Court found that Congress had violated the nondelegation doctrine by
vesting the President with legislative powers without clear guidelines, giving the President
enormous and unchecked powers. The omission of Congressional guidance on state petroleum
production ceilings occasioned the adverse ruling because this omission allowed the executive to
assume the role of the legislature. Justice Cardozo dissented, claiming that the guidelines had been
sufficient.

Delegated legislation In Tanzania

There is no delegated legislation theoretically but in practice there is delegated legislation.

EXCESSIVE DELEGATION
Delegation of powers means those powers, which are given by the higher authorities to the lower
authorities to make certain laws, i.e., powers given by the legislature to administration to enact laws
to perform administration functions
Delegated legislation shouldn't be excessive because there are some mandatory power which can
not be delegated.
Permissible delegated legislation;-
1. Commencement(the beginning of something.)
Several statues contain an 'appointed day' clause, which empowers the government to appoint a day
for the act to come into force. In such cases, the operation of the act depends on the decision of the
government.
2. Supplying details:
If the legislative policy is formulated by the legislature, the function of supplying details may be
delegated to the executive for giving effect to the policy. What is delegated here is an ancillary
function in aid of the exercise of the legislative function.
3. Modifications:
Sometimes, provisions are made in the statute authorizing the executive to modify the existing
statute before application. This is really a drastic power as it amounts to an amendment of the act,
which is a legislative act, but sometimes, this flexibility is necessary to deal with the local
conditions.
4. Prescribing punishments:
In some cases the legislature delegates to the executive the power to take punitive actions.
5. Inclusion:
Sometimes, the legislature passes an Act and makes it applicable, in the first instance, to some areas
and classes of persons, but empowers the Government to extend the provisions thereof to different
territories, persons or commodities, etc. e.g., the Transfer of Property Act, 1882 was made
applicable to the whole of India except certain areas, but the Government was authorized to apply
the provisions of the Act to those areas also.
6. Exclusion:
There are some statutes which empower the Government to exempt from their operation certain
persons, territories, commodities, etc. E.g., Section 36 of the Payment of Bonus Act, 1965
empowers the Government to exempt any establishment or a class of establishments from the
operation of the Act. Such provision introduces flexibility in the scheme of the legislation. The
Legislature which is burdened with heavy legislative work is unable to find time to consider in
detail hardships and difficulties likely to result in enforcing the legislation.
7. Suspension:
Some statutes authorize the Government to suspend or relax the provisions contained therein. e.g.
under Section 48(1) of the Tea Act, 1953, the Central Government is empowered under certain
circumstances to suspend the operation of all or any of the provisions of the said Act.
8. Application of existing laws:
Some statutes confer the power on the executive to adopt and apply statutes existing in other States
without modifications (with incidental changes) to a new area. There is no unconstitutional
delegation in such cases, as the legislative policy is laid down in the statute by the competent
legislature.
9. Framing of Rules:
A delegation of power to frame rules, bye-laws, regulations, etc. is not unconstitutional, provided
that the rules, bye-laws and regulations are required to be laid before the legislature before they
come into force and provided further that the legislature has power to amend, modify or repeal
them.

Impermissible Delegated Legislations

The following functions, on the other hand, cannot be delegated by the Legislature to the
Executive:-
1.Essential legislative functions:
Even though there is no specific bar in the Constitution of India against the delegation of legislative
power by the legislature to the executive, it is now well-settled that essential legislative functions
cannot be delegated by the legislature to the executive. In other words, legislative policy must be
laid down by the legislature itself and by entrusting this power to the executive, the legislature
cannot create a parallel legislature.

2.Repeal of law:
Power to repeal a law is essentially a legislative function, and therefore, delegation of power to the
executive to repeal a law is excessive delegation and is ultra vires.

3.Modification:
Power to modify the Act in its important aspects is an essential legislative function and, therefore,
delegation of power to modify an Act without any limitation is not permissible.

4.Exemption: (state of being free from an obligation)

The aforesaid principle applies in case of exemption also, and the legislature cannot delegate the
power of exemption to the executive without laying down the norms and policy for the guidance of
the latter.

5.Removal of difficulties:
Under the guise of enabling the executive to remove difficulties, the legislature cannot enact a
Henry VIII clause and thereby delegate essential legislative functions to the executive, which could
not otherwise have been delegated.

6.Retrospective operation: (looking back on)

The legislature has plenary power of law making and in India, Parliament can pass any law
prospectively or retrospectively subject to the provisions of the Constitution. But this principle
cannot be applied in the case of delegated legislation.

7.Future Acts:
The legislature can empower the executive to adopt and apply the laws existing in other States, but
it cannot delegate the power by which the executive can adopt the laws which may be passed in
future, as this is essentially a legislative function.

8.Imposition of Taxes:
The power to impose a tax is essentially a legislative function. Under Article 265 of the
Constitution no tax can be levied or collected save by authority of law, and here ‘law’ means law
enacted by the competent legislature and not made by the executive.

9.Ouster of jurisdiction of courts:

The legislature cannot empower the executive by which the jurisdiction of courts may be ousted.
This is a pure legislative function.

10.Offences and Penalty:

The making of a particular act into an offence and prescribing punishment for it is an essential
legislative function and cannot be delegated by the legislature to the executive. However, if the
legislature lays down the standards or principles to be followed by the executive in defining an
offence and provides the limits of penalties, such delegation is permissible.

SAFE GUARD AND CONTROL

JUDICIAL CONTROL
This is the administration of justice, where by judiciary or court can control two things;-
 1. The government
2. The legislature

The court can check ;-

1. the abuse of power
2. the validity of those power.

Substantive law is the statutory, or written law, that defines rights and duties, such as crimes and
punishments (in the criminal law), civil rights and responsibilities in civil law.

JUDICIAL REVIEW
Meaning of Judicial review.
The power which is given to the high court of law to review the actions of the executive and
legislative branches is called judicial review.

Marbury v. Madison,
Facts
On his last day in office, President John Adams named forty-two justices of the peace and sixteen
new circuit court justices for the District of Columbia under the Organic Act. The Organic Act was
an attempt by the Federalists to take control of the federal judiciary before Thomas Jefferson took
office.
The commissions(mission or job) were signed by President Adams and sealed(secured) by acting
Secretary of State John Marshall (who later became Chief Justice of the Supreme Court and author
of this opinion), but they were not delivered(provided or furnished) before the expiration of
Adams’s term as president. Thomas Jefferson refused to honor the commissions, claiming that they
were invalid because they had not been delivered by the end of Adams’s term.
William Marbury (P) was an intended recipient of an appointment as justice of the peace. Marbury
applied directly to the Supreme Court of the United States for a writ(court order) of mandamus to
compel Jefferson’s Secretary of State, James Madison (D), to deliver the commissions. The
Judiciary Act of 1789 had granted the Supreme Court original jurisdiction to issue writs of
mandamus “…to any courts appointed, or persons holding office, under the authority of the United
States.

Held
It was held that Marbury has a right to the commission, The Supreme Court has the authority to
review acts of Congress and determine whether they are unconstitutional and therefore void. The
law grants Marbury a remedy as the very essence of civil liberty certainly consists in the right of
every individual to claim the protection of the laws whenever he receives an injury. One of the first
duties of government is to afford that protection.

JUDICIARY REVIEW IS OF THREE WAYS;-

1. Legislative action
2. Decision action
3. Administrative action

SCOPE & NATURE OF JUDICIARY REVIEW

1. The rule of law
2. The legislation
3. The justiciable
4. The reasonableness
5. The abuse
 6. The excessive of powers

GROUNDS OF JUDICIARY REVIEW

1.No jurisdiction
The question of whether an authority has jurisdiction to make a decision or perform an action is of
particular importance in judicial review. The power of an authority or a decision-maker is
usually confined to a strictly defined area by its governing statute, because it is parliament
through the statute that gives them that power.
The question of whether or not a ground of review constitutes a “jurisdictional error” can have
particular significance if the Act under which the decision was made contains a “privative
clause” that attempts to exclude judicial review. The High Court has held that privative clauses
are not always effective to exclude judicial review for jurisdictional errors. Further, most errors
of an administrative tribunal will be jurisdictional if they are of any substance. There is caselaw
on this (see Administrative Power and the Law (details in “Further reading”, below) for further
discussion on this topic).

2.Error of law
Error of law is a common judicial review ground. It occurs when the decision-maker has
misunderstood or misapplied a statute, for example, by applying the wrong criteria, or asking
the wrong question. In practice this often occurs because the decision-maker has failed to read
or understand the statute. In addition, where policy exists, decision-makers can fail to realize its
limitations, sometimes believing that the policy empowers them, rather than the law.

3. Improper exercise of power

A court will interfere with an administrative decision or question if it can be shown to amount to an
improper exercise of power. There is a large amount of case law on the various grounds for
such an attack.
Following is a summary of these grounds. If you think one of these grounds may be available you
should investigate the applicable law further.

4. Unreasonableness
Another ground of judicial review is that an action or decision was so unreasonable that no
reasonable body would have reached it. This is often called “manifest unreasonableness”, or
“Wednesbury unreasonableness” (after an old English case: Associated Provincial Picture
Houses Ltd v Wednesbury Corporation [1948] 1 KB 223). This is a difficult ground; it is not
enough to convince the judge that they would have made the decision differently, it must be
shown that the decision was an absurd or irrational one. A decision-maker may have acted
unreasonably because highly significant factors were not given proper weight or because their
opinion could not have been reasonably formed on the information available (Re Minister for
Immigration and Multicultural Affairs; Ex parte Eshetu [1999] HCA 21). This ground of
review has given rise to a number of recent cases, but the general principle remains that usually
this ground is a last resort. If it is clear that the decision-maker erred, it would usually be
evident as another ground of review, for example, as an error of law or failure to take account
of a relevant consideration.

5. Bad faith
Another ground of attack on administrative actions that appear on their face to be proper is that of
“bad faith”. Here, it is necessary to show the decision was affected by corruption, bribery,
dishonesty or similar malpractice. The great difficulty, of course, is to obtain evidence to prove
what is considered by the courts to be a very grave allegation against the conduct of
government.
6. Improper delegation
The usual cases where improper delegation has been made out are those where a body responsible
for a decision decided to let its judgment be formed by a body over which it had no control. For
example, it may be improper delegation if the Secretary of a Department left a matter for which
they were responsible to an independent agency to decide. If guidelines had been laid down,
however, and the Secretary had only treated the independent agency’s views as
recommendatory, there may be no ground for judicial review.

Case;-

A.G V. FURMUCH(1927)

Facts
A person who was a teacher with very big stomach was dismissed from school due to his big
stomach.
Held
It was held that the action was very in law

DOCTRINE OF ESTOPPEL
In law, the doctrine of estoppel is a legal principle by which a claimant may be prevented from
asserting a legal right or depending on a set of facts to support a claim if that claimant has said or
done something that contradicts his current claim. This doctrine attempts to avoid injustice or harm
to one party due to inconsistencies of another party. Although there are several forms of estoppel, a
doctrine of estoppel generally involves a promise or representation by one party that influences the
behavior of the second party, who relies on the veracity of the promise or representation. For
example, if a dog breeder agrees to give a customer a free dog, he cannot make a claim for the price
of the dog six months later. The doctrine of estoppel prevents him from asserting his otherwise
legitimate right to payment for the dog due to the representation that he made to the customer that
the dog would be free.

PUBLIC ACCOUNTABILITY
The obligations of agencies and public enterprises who have been trusted with the public resources,
to be answerable to the fiscal and the social responsibilities that have been assigned to them. These
companies and agencies need to be accountable to the public at large and carry out the duties asked
of them responsibly.