A STUDY MATERIAL

FOR,

PAPER III

ADMINISTRATIVE LAW

(Paper Code: K-3003)

PREPARED BY,
S.M. MARJINA SULTANA
 CHAPTER 1 - EVOLOTION OF ADMINISTRATIVE LAW
DEFINITION AND ITS SCOPE
INTRODUCTION:

The most notable and important development of the modern state is the rapid growth of
Administrative law. The growth which took place in the 20th century can be considered as a
radical change. The role and the functions of the state have undergone an extreme alteration.
There is a multiplication of government functions. The state which is functioning today act as
a progressive democratic state it as to make sure whether the essential needs of the citizens
are full filled by the state. It as to ensure Social peace and security, control the over
production, manufactures and distributes essential commodities, ensures equal pay for equal
work it should work on the improvement of slums, health and education of the citizens the
modern state takes care of its citizen till their existence inside the state. Such kind of
development have increased the reach and scope of Administrative law. It is the law which
governs the duties, powers and also the manner in which those powers are executed.
Administrative law limits the authorities from using their powers in an abusive manner.
Determining the Reasons for the Growth of Administrative law which helps in Analyzing
whether such growth has witnessed an efficient functioning of the Administrative authorities.
Administrative law developed principles which assist to ensure that the Administrative or
public authorities works in a legal, reasonable and efficient manner. This article is mainly
concentrated on knowing the reasons for the growth of Administrative law with a brief
introduction to the subject as well as the chronicle of administrative law and it‟s functioning,
through which a better understanding of Administrative can be gained and also the need for
administrative law can be known.

In India there present several Administrative bodies appointed by the Central or the State
government to ensure a proper and systematic functioning of Government Agencies and
Public Enterprises established either by the state or the central governments. Administrative
agencies can be shortly classified into three the Legislative, the Executive and the Judiciary
All the administrative activities can be covered under these three main heads. It becomes
necessary to keep an eye on these Administrative Agencies. to regulate the activities of the
Administrative Authorities the concept of Administrative law was introduced. Administrative
law deals with the powers of the Administrative authorities, the manner in which the powers
are exercised and the remedies which are available to the aggrieved persons when those
powers are abused by these authorities. Administrative law is a part of constitutional law and
all concerns of administrative law are also concerns of constitutional law. The main object of
the study of administration 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 powers1.

CRONICLES OF ADMINISTRATIVE LAW

Administrative law is not a codified, document or well-defined law. It is essentially

unwritten, uncodified or a “judge-made” law. The evidence of administrative law can be
evidenced even in the ancient times. The concept of dharma ruled and observed by the kings
and administrators. The basic principles of natural justice and fair play were followed by the
kings and officers as the administration could be run only on those principles accepted by
dharma, but still there was no administrative law in existence in the sense in which it is
studied today. After the establishment of the East India Company and the rule of British rule
in India, the powers of the government had increased. Many Acts, statutes and legislations
were passed by the British government regulating public safety, health, morality, transport
and labour relations2. The practice of granting administrative license began with the state
with the Stage Carriage Act 1861.

The first public corporation was established under the Bombay Port Act, 1873. Delegated
legislation was accepted by the Northern India canal and Drainage Act,1873and the Opium
Act, 1878. Proper and effective steps were taken to regulate the trade and traffic in explosives
by the Indian Explosives Act, 1884.In many statutes, provisions were made regarding holding
of permits and licenses and for the settlement of disputes by the administrative authorities and
tribunals. In the present century, social and economic policies of the government had
significant impact on private rights of citizens, e.g. housing, employment, planning,
education, health, service, pension, manufacture of goods etc., Traditional legislative and
judicial system could not effectively solve these problems. It resulted in increase in delegated
legislation as well as tribunalisation. Administrative law thus became a living subject. Since
independence, the activities and the functions of the government have further increased.
Under the Industrial Disputes Act, 1947, the Minimum wages Act, 1948, the factories Act,
1948 and the Employees State Insurance Act, 1948, important social security measures have
been taken those employed in industries. The philosophy of a welfare state has been
specifically embodied in the Indian constitution. In constitution itself provisions are there to
secure social, economic and political justice, equality of status and opportunity to all citizens.
The ownership and control of material resources of the society should be so disturbed as to
best serve the common good. The operation of the economic system should not result in the
concentration of wealth and means of production with few. For the implementation of all
objects, the state is vested with the power to impose reasonable restrictions even on the
fundamental rights guaranteed by the constitution. While interpreting all these Acts and the
provisions of the constitution, the judiciary started taking into consideration the objects and
ideals of social welfare3.

In Joseph Kuruvilla Vellukunnel vs RBI 4, the Supreme Court held that under the banking
companies Act, 1949, the Reserve Bank was the sole judge to decide whether the affairs of a
banking company were being conducted in a manner prejudicial to the depositors interest and
the court had no option but to pass an order of winding as prayed for by the reserve bank.
In Javid Rasool Bhat vs state of J&K,5 the Supreme Court observed that a member of the
Selected Committee can even ask irrelevant questions to explore the candidates capacity to
detect irrelevancies5.

DEFINITIONS OF ADMINISTRATIVE LAW:

Ivor Jennings has defines “ Administrative law is the law relating to the administration. It
determines the Organaisation, powers and duties of the administrative authorities”. This is the
most widely accepted definition6.

According to wade, administrative law is the law relating to the control of Governmental
power. according to him, the primary object of administrative law is to keep powers of the
government with in their legal bounce so as to protect the citizens against their abuse. The
powerful engines of authority must be preventive from running amok7.

According to K.C. Davis administrative law is the law concerning the powers and
procedures of administrative agencies, including especially the law governing judicial review
of administrative action8.
According to garner also adopts the American approach advocated by K.C.Davis. According
to him administrative law may be describe as those rules which are recognized by the courts
as law and which relate to regulate the administration of government9.

According to Griffith and Street, the main object of administrative law is the operation
and control of administrative authorities.It must deal with three aspects.

1.What sought power does the administration exercise?

2.What are the limits of those powers?

3.What are the ways in which the administration is contained within those limits?

FUNCTIONS OF ADMINISTRATIVE LAW:

The primary function of administrative law is to keep governmental powers within the limits
of law and to protect private rights and individual interests. As already noted, the scope of
activities of the government have expanded. Today the state is “ the protector, provider,
entrepreneur, regulator and arbiter”. Rulemaking power and an authority and an authority to
decide are described as effective and powerful weapons of administration. All powers have
two inherent characters 1) they are not absolute or unfettered, and 2) they are likely to be
abused. Administrative law attempts to control the powers of the government, and its
agencies. To achieve the object Administrative law provides an effective mechanism and
adequate protection. It helps to bring a balance between two conflicting forces individual
rights and public interest.

REASONS FOR THE GROWTH OF ADMINISTRATIVE LAW:

The following factors are responsible for the growth of administrative law:

# There is a radical change in the philosophy of the role played by the state. The negative
policy of maintaining law and order and social welfare is changing. The state has not
confined its scope to the traditional and minimum functions of defense and administration of
justice, but has adopted the positive policy and as a welfare state has undertaken to perform
varied functions11.
# The judicial system was proved to be an inadequate to decide and settle all types of
disputes. It was slow, costly, inept, complex and formalistic. It was already overburdened and
it was not possible to expect speedy disposal of even very important matters. The important
problems could not be solved by mere literally interpreting the provisions of some statutes,
but required consideration of various other factors and it could not be done by the ordinary
courts of law. Therefore, industrial tribunals and labour courts. Were established, which
possessed the techniques and expertise to handle these complex problems.

# The legislative process was also inadequate. It had no time and technique to deal with all
the details. It was impossible for it to lay down detailed rules and procedures, and even when
detailed provisions were laid down by the legislature, they have found to be defective and
inadequate. Therefore, it was necessary to delegate some powers to the administrative
authorities

# There is scope for experiments in administrative process. Here unlike, in legislation, it is

not necessary to continue a rule until commencement of the next session of the legislature.
Here a rule can be made , tired for some time and if it is defective, can be altered or modified
within a short period. Thus, legislation is rigid in character , while the administrative process
is flexible.

# The administrative authorities can avoid technicalities. Administrative law represents

functional rather than a theoretical and legislative approach. The traditional judiciary is
conservative, rigid and technical. It is impossible for courts to decide cases without formality
and technicality. Administrative tribunals are not bound by rules of evidence and procedure
and they can take a practical view of the matter to decide complex problems.

# Administrative authorities can take preventive measures. Unlike regular courts of law, they
do not have to wait for parties to come before them with disputes. In many cases, these
preventive actions may prove to be more effective and useful than punishing a person after he
has committed a breach of law. As freeman says, „ Inspection and grading of meat answers
the consumer‟s need more adequately than does a right to sue the seller after the consumer
injured”12.

# Administrative authorities can take effective steps for the enforcement of the aforesaid
preventive measures e.g. suspension, revocation and cancellation of license, destruction of
contaminated articles etc., which are not generally available through regular courts of law13
NATURE AND SCOPES OF ADMINISTRATIVE LAW

Administrative law determines the organization, powers and duties of administrative

authorities. The emphasis of Administrative Law is on procedures for formal judgment based
on the principles of Natural Justice and for rule making. Administrative law also determines
the nature and scope of the powers deliberated to the government official by the specific
legislation. Through legislation, the Parliament delegate specific powers as well as duties to
government officials to enable them to act on behalf of the government.

The concept of Administrative Law is founded on the following principles:

a) Power is conferred on the administration by law

b) No power is absolute or uncontrolled howsoever broad the nature of the same might be.

c) There should be reasonable restrictions on exercise of such powers depending on the

situation.

The Administrative law deals with the structure, functions and powers of the Administrative
structures. It also lays down the methods and procedures which are to be followed by them
during the course of remedies which are available to the persons whose rights and other
freedoms are damaged by their operations. Administrative law specifies the rights and
liabilities of private individuals in their dealings with public officials and also specifies the
procedures by which those rights and liabilities can be enforced by those private individuals.
It provides accountability and responsibility in the administrative functioning. Also there are
specified laws and rules and regulations that guide and direct the internal administration
relations like hierarchy, division of labor etc.

GENERAL PRINCIPLES OF ADMINISTRATIVE LAW

In the administrative law context, the first step is to determine the legal validity or authority
of the action by the government official. This involves looking at the basis of the legal
authority to act, that is, the specific law that gives that administrator the lawful authority to
act. Constitutional law essentially deals with who has the ability to make laws.
Administrative law deals with the government officials who have been empowered by these
laws to act. Therefore, there is a close relationship between constitutional and administrative
law. Specifically, if the law that empowered the government official to act was itself found to
be unconstitutional, and therefore invalid, then any actions by the government official under
that law will also be invalid. Consequently, this may result in a legal remedy for an individual
adversely affected by this action.

THE RULE OF LAW

It is based on the concept of rule of law that supports Natural Justice, i.e. to judge based on
impartiality, unjustness and the prescribed laws and legal methods instead of arbitrariness and
abuse of official power on the part of govt. while serving the people and deciding cases
brought before its Tribunals etc. Natural justice is basically applied in cases where there are
no laws prescribed, here the individual has to be given an opportunity to be heard and the
judgment is to be taken into consideration the particular facts and cases of the case and the
judgment should be free from bias. It is to prevent violation of people‟s rights by officials in
power. One of the best-known definitions of rule of law is that of Professor A V Dicey
contained in his famous book The Law of the Constitution. He considered that the Rule of
Law requires the recognition of the predominance of the regular law (as opposed to arbitrary
or wide discretionary powers), equality before the law and that the constitution is the product
of the ordinary law. In essence, therefore, the Rule of Law requires that there should be
government according to law and an avoidance of arbitrary action.

Dicey‟s Rule of Law depends on the capacity of the court to control abuses of administrative
power. That the courts are incapable of undertaking this control function is seen in the fact
that not all administrative action is contained in statute amenable to judicial interpretation.
Increasingly, administrative functions are dissipated, particularly with the development of
privatization. In this and many other governmental contexts some functions are carried out by
means of contracts governed, not by public, administrative law, but by the private law of
contract. Even if Dicey‟s Rule of Law depended on the supremacy and sovereignty of
Parliament, there would be an important question about Parliament‟s capacity to control the
executive. For so many different purposes the reality is that the executive government of the
day influences and controls Parliament.
DELEGATION OF POWERS

Delegation of powers from the legislators to administrators is necessary given the great
importance of the business of government. Due to the volume of decisions required, it is not
possible for the Parliament to decide all issues in a country. Another important reason for the
delegation of powers is that laws by their very nature need to be broad since the wording of
laws cannot encompass all specific and often changing circumstances that occur. Thus, the
application of the law may require some aspect of discretion in order to apply to specific
circumstances, and the laws themselves must set out criteria for the application of such
discretion to ensure fairness and consistency. Almost all laws passed by Parliament identify
specific powers and duties for various government entities or officials such as a cabinet, a
specific minister or civil servant, or a judge. Given the grave importance of the delegation of
powers, Parliament has developed control guidelines for their own delegation of powers to
administrators.

CHARACTERIZATION OF POWERS AND SUB-DELEGATION OF

POWERS

Characterization of the function of the legislative powers enables the determination of the
scope of these powers and the duties they grant, and the procedures the delegate is required to
follow to lawfully exercise these powers. In turn, this determines the available remedies in
court if the impugned act is found to be unlawful.

Powers can be characterized as

• Legislative

• Judicial (or quasi-judicial) or

• Administrative (or executive)

If the delegated power is legislative or judicial in nature, the general rule in administrative
law is that such powers must be exercised by the specific person identified in the legislation.
Such a person (government official) is prohibited from sub-delegating these powers and
duties to another person. By contrast, powers characterized as administrative can be sub-
delegated.
CHARACTERIZATION OF DUTIES AND DISCRETIONARY POWERS

Another important principle of administrative law distinguishes between delegated powers

that are duties that the delegate must perform and delegated powers that are discretionary in
nature. Some powers are broadly set out in the legislation with some discretionary aspects to
enable the delegate to apply the broad principle to specific circumstances. The rationale
behind such discretionary powers includes the difficulty of providing a general rule that
would apply to all circumstances; the difficulty in anticipating all possible factors for all
situations; and the difficulty in ascribing weight of all factors in a broad legislation.
Discretionary powers generally constitute either the delegate being authorized to exercise
discretion on an ad hoc basis or the delegate being authorized to enact “subordinate
legislation” to govern specific types of cases. Examples of subordinate legislation include
regulations, codes, and bylaws. In administrative law, it is important to determine the scope
of discretion of delegates in order to examine the validity of their acts, especially given that
discretionary powers are generally granted within specific limits.

ADMINISTRATIVE BOARDS OR TRIBUNALS

Federal and provincial laws have expressly created administrative boards or tribunals as
decision-making bodies for a variety of areas. The underlying rationale is to make the
governmental decision-making process more efficient and accessible to the general public.
The checks and balances for these decision-making bodies are provided by the provincial
superior courts who oversee them by providing judicial review of the administrative actions
of the boards and tribunals.

ADMINISTRATIVE REMEDIES

In reviewing the legality of an impugned act, if a court determines that the act was ultra virus,
it has the following remedies available: declarations; injunctions; damages; statutory appeals
to a court or another administrative body; or prerogative remedies.
CONSTITUTIONAL LAW

Constitutional law is the body of law which defines the relationship of different entities
within a state, namely, the executive, the legislature, and the judiciary. Constitutional law can
be defined as the written text of the state and federal constitutions. The bodies of judicial
precedent that has gradually developed through a process in which courts interpret, apply,
and explain the meaning of particular constitutional provisions and principles during a legal
proceeding.

The text of the U.S. Constitution is marked by four characteristics: a delegation of power, in
which the duties and prerogatives of the executive, legislative, and judicial branches are
delineated by express constitutional provisions; a Separation of Powers, in which the
responsibilities of government are divided and shared among the coordinate branches; a
reservation of power, in which the sovereignty of the federal government is qualified by the
sovereignty reserved to the state governments; and a limitation of power, in which the
prerogatives of the three branches of government are restricted by constitutionally
enumerated individual rights, Unremunerated Rights derived from sources outside the text of
the Constitution, and other constraints inherent in a democratic system where the ultimate
source of authority for government action is the consent of the people.

In deciding their cases, courts look to these constitutional provisions and principles for
guidance. Once a court has interpreted a constitutional provision in a certain fashion, it
becomes a precedent. Under the doctrine of Stare Decisis, the judicial branch is required to
adhere to existing precedent in all future cases presenting analogous factual and legal
circumstances, unless it has a compelling reason for deviating from the precedent or
overruling it. A state or federal law is said to be constitutional when it is consistent with the
text of a constitutional provision and any relevant judicial interpretations. A law that is
inconsistent with either the written text or judicial interpretation of a constitutional provision
is unconstitutional.

DISTINGUISHING ADMINISTRATIVE & CONSTITUTIONAL LAW

Sometimes, a question is asked as to whether there is any distinction between constitutional

law and administrative law. Till recently, the subject of administrative law was dealt with and
discussed in the books of constitutional law and no separate and independent treatment was
given to it. In many definitions of administrative law, it was included in constitutional law.

The relationship between constitutional and administrative law is complex. In general,

written constitutions tend to say relatively little about the administrative state. General due
process type considerations may apply particularly to administrative agencies. More directly,
of course, constitutions control the administrative state through founding the structures of
government, providing chains of accountability and democratic legitimacy for the decisions
of administrative.

Though in essence constitutional law does not differ from administrative law inasmuch as
both are concerned with functions of the government and both are a part of public law in the
modern State and the sources of both are the same and they are thus inter-related and
complementary to each other belonging to one and the same family. Strict differentiation,
therefore, is not possible, yet there is a distinction between the two. According to Maitland,
while constitutional law deals with structure and the broader rules which regulate the
functions, the details of the functions are left to administrative law.

The orthodox understanding is that the fields of constitutional and administrative law share
similar purposes of protection of rights, control of agency costs, and limitation of
government. The primary difference, in this view, concerns their place in the hierarchy of
public law: constitutional law regulates the highest norms of the state, while administrative
law rules sub?legislative action, somewhat lower in the hierarchy of sources.

According to Hood Phillips, “Constitutional law is concerned with the organization and
functions of Government at rest whilst administrative law is concerned with that organization
and those functions in motion.” But the opinion of English and American authors is that the
distinction between constitutional law and administrative law is one of degree, convenience
and custom rather than that of logic and principle. It is not essential and fundamental in
character. Keith Rightly remarks: “It is logically impossible to distinguish administrative law
from constitutional law and all attempts to do so are artificial.” According to Maitland, while
constitutional law deals with structure and the broader rules which regulate the functions, the
details of the functions are left to the administrative law. So, constitutional law deals with the
general principles relating to the organization and power of the legislature, executive and
judiciary and their functions inter se and towards the citizen, administrative law is that part of
constitutional law which deals in detail with the powers and functions of the administrative
authorities, including civil services, public departments, local authorities and other statutory
bodies. At the end, constitutional law is concerned with constitutional status of ministers and
civil servants; administrative law is concerned with the organization of the service and the
proper working of various departments of the government.

A table of distinguishable features of both administrative and constitutional law is provided

below.

CONSTITUTIONAL LAW

1. Constitutional law is its own kind.

2. Constitutional law deals with various departments of the state.

3. It deals with the structure of the state.

4. It is the highest law.

5. It gives the guidelines with regard to the general principles relating to organization and
powers of organs of the state, and their relations between citizens and towards the state. It
touches almost all branches of laws in the country.

6. It also gives the guidelines about the international relations.

ADMINISTRATIVE LAW

1. Administrative law is a species of constitutional law.

2. It deals with those organs as in motion.

3. It deals with the functions of the state.

4. It is subordinate to constitutional law.

5. It deals in details with the powers and functions of administrative authorities.

6. It does not deal with international law. It deals exclusively the powers and functions of
administrative authorities.
CONCLUSION

Administrative law is the law governing the Executive, to regulate its functioning and protect
the common citizenry from any abuse of power exercised by the Executive or any of its
instrumentalities. It is a new branch of law which has evolved with time and shall continue to
evolve as per the changing needs of the society. The aim of administrative law is not to take
away the discretionary powers of the Executive but to bring them in consonance with the
„Rule of law‟.

END NOTES:

1.C.K .Takwani –Administrative law

2.V.G. Ramachandaran, Administartive law (1984) 56-57

3.Administrative law in India (1961) 257.

4.AIR 1962 SC 1371 :1962

5.(1984) 2 SCC 631, 637: AIR 1984 SC 873, 877

6.Principles of Administrative law (1967) 3.

7.Wade & Forsyth, Administration law (2009) 4-5

8.Administrative law text (1959) I.

9.Administrative law (1985) 4.

10.Administrative law C.K. Takwani

11.Administrative law C.K .Takwani

12.Case Materials on Administrative law in India, Vol I (1966) 3-4

13.Harlow & rawlings law and administration (1997) chap 2

 CHAPTER 2 - RULE OF LAW

“The bedrock of our democracy is the rule of law and that means we have to have an
independent judiciary, judges who can make decisions independent of the political winds that
are blowing.”-Caroline Kennedy

In order to understand the concept of rule of law, it is to be comprehended that the state is
governed not by the ruler or the nominated representatives of the people but by the law. The
term „Rule of Law‟ is nowhere defined in the Indian Constitution but this term is often used
by the Indian judiciary in their judgments. Rule of law has been declared by the Supreme
Court as one of the basic features of the Constitution so it cannot be amended even by the
constitutional amendment. Rule of law is seen as an integral part of good governance.[1]

As per rule of law, it is required that the people should be governed by the accepted rules
rather than the decisions that are arbitrarily taken by the rulers. For this, it is essential to keep
in mind that the rules that are made should be general and abstract, known and certain and it
should apply equally to all individuals. Legal limitation on government is the essential
attribute of constitutionalism. Rulers are not above law under the concept of
constitutionalism, government power is divided with laws enacted by one body and
administered by another and for that an independent judiciary exists to ensure laws.[2]

CONCEPT OF RULE OF LAW

The originator of the concept of rule of law was Sir Edward Coke the Chief Justice in James I
Reign.

The concept of rule of law is of old origin. Greek philosophers such as Plato and Aristotle
discussed the concept of rule of law around 350 BC. Plato wrote “Where the law is subject to
some other authority and has none of its own, the collapse of the state, in my view, is not far
off; but if law is the master of the government and the government is its slave, then the
situation is full of promise and men enjoy all the blessings that the gods shower on a state”.
Aristotle wrote “law should govern and those who are in power should be servant of the
laws.”
The derivation of the phrase „ Rule of Law‟ is from the French phrase „la principe de legalite‟
which implies principle of legality. By this phrase it refers to a government based on
principles of law and not of men. One of the basic principles of Constitution is rule of law
and this concept is up to standard in both India and America Constitution.

The doctrine of rule of law is the entire basis of Administrative law. As discussed by
Aristotle, the concept of rule of law is grounded in the ideas of justice, fairness and
inclusiveness. Today, an intricate chain of fundamental ideas is incorporated in rule of law
which further encompasses equality before law, equal treatment before the law for
government, independence of judiciary, consistency, transparency and accountability in
administrative law.[3]

MEANING OF RULE OF LAW

To simply understand the meaning of rule of law, it means that no man is above law and also
that every person is subject to the jurisdiction of ordinary courts of law irrespective of their
position and rank.

The term „rule of law‟ is originated from England and India has taken this concept. The
concept of rule of law further requires that no person should be subjected to harsh or arbitrary
treatment. The word „law‟ in rule of law means that whether he is a man or a society, he must
not be governed by a man or ruler but by law. In other words, as per Article 13 of the Indian
Constitution rule of law means law of land.

According to Black‟s Law Dictionary: “Rule of Law” means legal principles of day to day
application, approved by the governing bodies or authorities and expressed in the form of
logical proposition.

According to Oxford Advance Learner‟s Dictionary: “Rule of Law” means the situation in
which all the citizens as well as the state are ruled by the law.
POSTULATES OF RULE OF LAW

In 1885, Professor A.V Diceydeveloped this concept of Coke and propounded three
principles or postulates of the rule of law in his classic book „Law and the Constitution.‟
According to Professor A.V Dicey, for achieving supremacy of law three principles of
postulates must be followed which are as follows:

·Supremacy of law,

·Equality before law and

·Predominance of Legal Spirit

1. SUPREMACY OF LAW

As per the first postulate, rule of law refers to the lacking of arbitrariness or wide
discretionary power. In order to understand it simply, every man should be governed by law.

According to Dicey, English men were ruled by the law and the law alone and also where
there is room for arbitrarinessand that in a republic no less than under a monarchy
discretionary authority on the part of the Government must mean insecurity for legal freedom
on the part of its subjects. There must be absence of wide discretionary powers on the rulers
so that they cannot make their own laws but must be governed according to the established
laws.

2. EQUALITY BEFORE LAW

According to the second principle of Dicey, equality before law and equal subjection of all
classes to the ordinary law of land to be administered by the ordinary law courts and this
principle emphasizes everyone which included government as well irrespective of their
position or rank. But such element is going through the phase of criticisms and is misguided.
As stated by Dicey, there must be equality before law or equal subjection of all classes to the
ordinary law of land. French legal system of Droit Administrative was also criticized by him
as there were separate tribunals for deciding the cases of state officials and citizens
separately.

3. PREDOMINANCE OF LEGAL SPIRIT

According to the third principle of Dicey, general principles of the Indian Constitution are the
result of the decisions of the Indian judiciary which determine to file rights of private persons
in particular cases. According to him, citizens are being guaranteed the certain rights such as
right to personal liberty and freedom from arrest by many constitutions of the states
(countries). Only when such rights are properly enforceable in the courts of law, those rights
can be made available to the citizens. Rule of law as established by Dicey requires that every
action of the administration must be backed and done in accordance with law. In modern age,
the concept of rule of law oppose the practice of conferring discretionary powers upon the
government and also ensures that every man is bound by the ordinary laws of the land as well
as signifies no deprivation of his rights and liberties by an administrative action.[4]

RULE OF LAW UNDER INDIAN CONSTITUTION

In order to develop Indian democracy, rule of law has played a great role. At the time of
framing of Constitution, the framers had two options i.e. USA and England. Some of the
provisions were adopted from USA and some of them were adopted from England. Rule of
law was adopted from England by our constitutional fathers and many provisions were
incorporated in the Indian Constitution. Indian Constitution is considered to be supreme and
no one is above Indian Constitution. Rule of law is also given impliedly in the preamble and
such concept is enshrined in Part III of the Indian Constitution.

In case of violation of such rights, one can approach Supreme Court or High Court under
Article 32 and 226 of the Indian Constitution. The Constitution of India is enriched with the
principles of law i.e. justice, equality and liberty. Any law made by the Central government
or State government must be complied in accordance with the Constitution of India. If any
law made by the legislature contravenes with the provisions of the Constitution then such law
will be declared void.
Under Article 32 of the Indian Constitution, the Supreme Court has the power to issue writs
in the nature of Habeas Corpus, mandamus, prohibition, quo warranto, and certiorari. The
power of judicial review is also given to Supreme Court in order to prevent any ultra vires
law so as to preserve „Rule of law‟.

ROLE OF INDIAN JUDICIARY

There are a plethora of cases where the concept of rule of law was discussed and came into
light. Some of the cases are as follows:

ADM Jabalpur v. Shivkant Shukla [5]

This case is also known as “Habeas Corpus case”. It is one of the most importantcase when
comes to rule of law. The question that was raised before the hon‟ble court was that whether
there was any rule of law in India apart from Article 21 of the Indian Constitution. It was in
context relating to the proclamation of emergency where the enforcement of Articles 14, 21
and 22 were suspended.

Som Raj v. State of Haryana [6]

In this case it was held that the absence of arbitrary power is the postulate of rule of law upon
which the whole constitutional edifice is dependent.

Union of India v. Raghubir Singh [7]

In this case it was held by the court that a considerable degree that governs the lives of the
people and regulates the State function flows from the decision of the superior courts.

Chief Settlement Commissioner, Punjab v. Om Prakash[8]

In this case, Supreme Court observed“In our constitutional system, the central and most
characteristic feature is the concept of rule of law which means, in the present context, the
authority of law courts to test all administrative action by the standard of legality. The
administrative or executive action that does not meet the standard will be set aside if the
aggrieved person brings the matter into notice.”
Keshvananda Bharti v. State of Kerela [9]

In this case, the Supreme Court enunciated the concept of rule of law as one of the most
important aspects of doctrine of basic structure.

Maneka Gandhi v. Union of India [10]

In this case Supreme Court declared that Article 14 strikes against arbitrariness.

Gadakh Yashwantrao Kankarrao v. Balasaheb Vikhe Patil [11]

In this case, the ration laid down was “If the rule of law has to be preserved as the essence of
the democracy of which purity of elections is a necessary concomitant, it is the duty of the
courts to appreciate the evidence and construe the law in a manner which would sub serve
this higher purpose and not even imperceptibly facilitate acceptance, much less affirmance, of
the falling electoral standards. For democracy to survive, rule of law must prevail, and it is
necessary that the best available men should be chosen as people's representatives for proper
governance of the country. This can be best achieved through men of high moral and ethical
values who win the elections on a positive vote obtained on their own merit and not by the
negative vote of process of elimination based on comparative demerits of the candidates.”

Secretary, State of Karnataka and Ors. v. Umadevi [12]

A Constitution Bench of this Court has laid down the law in the following terms:“Thus, it is
clear that adherence to the rule of equality in public employment is a basic feature of our
Constitution and since the rule of law is the core of our Constitution, a court would certainly
be disabled from passing an order upholding a violation of Article 14 or in ordering the
overlooking of the need to comply with the requirements of Article 14 read with Article 16 of
the Constitution.”

CONCLUSION
From the above mentioned discussion, it can be concluded that Supremacy of law is the Aim,
Rule of Law is the best tool to achieve the Aim. Some of the efforts are also taken by the
court where the Rule of Law is linked with Human Rights of the people. Strategy is being
evolved by the court by which government can be forced not only to submit to law but also to
create conditions where capacities can be developed by the people so as to enjoy their rights
in proper and meaningful manner.

In the Indian society, the rule of law has not achieved the intended results. A few examples
where rule of law was upheld by our judiciary and ensured justice can be clearly seen in the
creation of new avenues seeking remedies for human rights violations by filing of PIL pleas.

The originator of this concept i.e. Sir Edward Coke, the Chief Justice of King James I‟s reign
maintained that the King should be under God and the law and also he established the
supremacy of law against the executive and that there is nothing higher than law.

END-NOTES

[1] http://ijlljs.in/wp-content/uploads/2017/08/Rule_of_Law.pdf.

[2] Ibid.

[3] Ibid.

[4] Ibid.

[5] (1976) 2 SCC 521.

[6] 1990 AIR 1176.

[7] Decided on 18.09.2013.

[8] AIR 1969 SC 33.

[9] (1973) 4 SCC 225.

[10] AIR 1978 SC 597.

[11] AIR 1994 SC 678.

[12] (1992) 3 SCR 826.

 CHAPTER 3 - SEPERATION OF POWERS

“If the legislative and executive authorities are one institution, there will be no
freedom. There won‟t be any freedom anyway if the judiciary body is separated from
the legislature and executive”- Charles de Montesquieu

INTRODUCTION

The separation of powers is imitable for the administration of federative and democratic
states. Under this rule the state is divided into three different branches- legislative, executive
and judiciary each having different independent power and responsibility on them so that one
branch may not interfere with the working of the others two branches. Basically, it is the rule
which every state government should follow in order to enact, implement the law, apply to
specific case appropriately. If this principle is not followed then there will be more chances
of misuse of power and corruption If this doctrine is followed then there will be less chance
of enacting a tyrannical law as they will know that it will be checked by another branch. It
aims at the strict demarcation of power and tries to bring the exclusiveness in the functioning
of each organ.

BACKGROUND

The term “separation of powers” or “trias –politica “ was initiated by Charles de

Montesquieu. For the very first time, it was accepted by Greece and then it was widespread
use by the Roman Republic as the Constitution of the Roman Republic. Its root is traceable in
Aristotle and Plato when this doctrine became the segment of their marvels. In 16th and 17th-
century British politician Locke and Justice Bodin, a French philosopher also expressed their
opinion regarding this doctrine. Montesquieu was the first one who articulated this principle
scientifically, accurately and systemically n his book “ Esprit des Lois” (The Spirit Of Laws)
which was published in the year 1785.
MEANING

The definition of separation of power is given by different authors. But in general, the
meaning of separation of power can be categorized into three features:

 Person forming a part of on organs should not form the part of other organs.
 One organ should not interfere with the functioning of the other organs.
 One organ should not exercise the function belonging to another organ.

The separation of power is based on the concept of trias politica. This principle visualizes a
tripartite system where the powers are delegated and distributed among three organs outlining
their jurisdiction each.

THREE TIER MACHINERY OF STATE GOVERNMENT

It is impossible for any of the organs to perform all the functions systematically and
appropriately. So for the proper functioning of the powers, the powers are distributed among
the legislature, executive and judiciary. Now let‟s go into the further details of the
functioning of each organ.

Legislative

The main function of the legislature is to enact a law. Enacting a law expresses the will of the
State and it also acts as the wain to the autonomy of the State. It is the basis for the
functioning of executive and judiciary. It is spotted as the first place among the three organs
because until and unless the law is framed the functioning of implementing and applying the
law can be exercised. The judiciary act as the advisory body which means that it can give the
suggestions to the legislature about the framing of new laws and amendment of certain
legislation but cannot function it.

Executive

It is the organs which are responsible for implementing, carrying out or enforcing the will of
the state as explicit by the constituent assembly and the legislature. The executive is the
administrative head of the government. It is called as the mainspring of the government
because if the executive crack-up, the government exhaust as it gets imbalanced. In the
limited sense, executive includes head of the minister, advisors, departmental head and his
ministers.

Judiciary

It refers to those public officers whose responsibility is to apply the law framed by the
legislature to individual cases by taking into consideration the principle of natural justice,
fairness.

SIGNIFICANCE

As it is a very well known fact that whenever a large power is given in the hand of any
administering authority there are higher chances of maladministration, corruption and misuse
of power. This doctrine helps prevent the abuse of power. This doctrine protects the
individual from the arbitrary rule. The government is the violator and also protects individual
liberty.

Summarily, the importance can be encapsulated in the following points:

 Ending the autocracy, it protects the liberty of the individual.

 It not only safeguards the liberty of the individual but also maintains the efficiency of
the administration.
 Focus on the requirement of independence of the judiciary
 Prevent the legislature from enacting an arbitrary rule.

CONSTITUTIONAL STATUS OF SEPARATION OF POWER IN INDIA

Going through the provisions of Constitution of India one may be ready to say that it has
been accepted in India. Under the Indian Constitution:

Legislature

 Parliament ( Lok Sabha and Rajya Sabha)

 State legislative bodies
Eecutive

 At the central level- President

 At the state level- Governor

Judiciary

 Supreme Court, High Court and all other subordinate courts

The Parliament is competent enough to make any law subject to the conditions of
Constitution and there are no restrictions on its law-making powers. The president power and
functions are given in the Constitution itself (Article 62 to Article 72). The judiciary is self
–dependent in its field and there is no obstruction with its judicial functions either by
Legislature or the Executive. The High Court under Article 226 and Article 227 and
Supreme Court under Article 32 and Article 136 of Constitution are given the power of
judicial review and any law passed by the legislature can be declared void by the judiciary if
it is inconsistent with Fundamental Rights (Article 13). By going through such provisions
many jurists are of opinion that doctrine of separation of powers is accepted in India.

Before looking into the case laws, let us understand what the meaning of the doctrine of
separation of power is in a strict and broad sense.

The doctrine of separation of power in a rigid sense means that when there is a proper
distinction between three organs and their functions and also there should be a system of
check and balance.

The doctrine of separation of power in a broad sense means that when there is no proper
distinction between three organs and their functions.

In the case of I.C Golakhnath vs State of Punjab, Constitution brings in actuality the
distinct constitutional entities i.e namely, the Union territories, Union and State. It also has
three major instruments namely, judiciary, executive and legislature. It demarcates their
jurisdiction minutely and expects them to exercise their function without interfering with
others functions. They should function within their scope.

If we go through the constitutional provision, we can find that the doctrine of separation of
power has not been accepted in a rigid sense in India. There is personnel overlapping along
with the functional overlapping. The Supreme Court can declare any law framed by the
legislature and executive void if they violate the provisions of the Constitution.

Executive also has an impact on the functioning of the judiciary as they appoint the judges
and Chief justice. The list is so exhaustive.

In the case of Indira Gandhi vs Raj Narain, the court held that In our Constitution the
doctrine of separation of power has been accepted in a broader sense. Just like in American
and Australia Constitution where a rigid sense of separation of power applies is not
applicable in India.

Justice Chandrachud also expressed his views by stating:

“The political purpose of the doctrine of separation of power is not widely recognized. No
provision can be properly implemented without a check and balance system. This is the
principle of restraining which has in its precept, innate in the prudence of self- preservation
that discretion is better than its valor.”

In Ram Jawaya vs The State of Punjab, Justice Mukherjee observed:

“In India, this doctrine has been not be accepted in its rigid sense but the functions of all
three organs have been differentiated and it can be said that our constitution has not been a
deliberate assumption that functions of one organ belong to the another. It can be said
through this that this practice is accepted in India but not in a strict sense. There is no
provision in Constitution which talks about the separation of powers except Article 50 which
talks about the separation of the executive from the judiciary but this doctrine is in practice
in India. All three organs interfere with each other functions whenever necessary.”

Although, there is an explicit provision in Constitution just like American Constitution that
executive power is vested in President under Article 53(1) and in Governor under Article
154(1) but there is no provision which talks about the vesting of legislative and judiciary
power in any organ. We can conclude that there is no rigid separation of power.

At the first instance, it appears that our Constitution is based on this doctrine itself as the
judiciary is self-sufficient and there is no interference either by executive or legislature. Court
also prohibits the administration of judiciary is not to be discussed in the parliament. Power
of judicial review and to declare any law as void is given to the Supreme Court. The judges
of Supreme Court is appointed by President in consultation. Chief Minister and judges of the
supreme court. The Supreme court make the rules and regulations for the effective conduct of
business.

However, Article 50 of the Constitution of India talks about the separation of the executive
from the judiciary as being a Directive Principle of State Policy it is not enforceable. Certain
privileges, power, immunities are given to the Member of Parliament under Article 105. this
provision makes the legislature independent. The executive power is conferred on President
and Governor they are being exempted from civil and criminal liabilities.

But, if we read carefully it is clear that doctrine is not accepted in a rigid sense. The executive
is a portion of the legislature and the executive is accountable for its conduct to the legislature
and also its derive its authority from the legislature. Since India has a parliamentary form of
government should a mutual connection and coordination between the legislature and
executive. As executive power is vested in the president but in actuality, the real head is
Prime Minister of India along with Council of Minister and president is only a nominal head.
Article 74(1) talks that executive head has to conduct in conformity with the aid and
advice of Cabinet.

Ordinarily, all the legislative power is vested in the legislature but in certain circumstances,
the president may be empowered to exercise the legislative power. For example, the president
can issue ordinance under Article 123 when the parliament is not in session, making the
rules when there is an emergency. Sometimes the president may also exercise judiciary
power. When a president is being impeached, both houses take active participation and
finalize the charges.

Judiciary also performs the administrative actions while formulating the regulations and
giving guidance for the subordinate court as well as perform legislative powers by framing
the rules regulating their own procedure

So it is presumed from the provisions of the constitution that India being a parliamentary
form of government does not follow the absolute separation there is an amalgamation of the
powers where the connections between the different wings are inevitable and it can be drawn
from the constitution itself. Every organ performs all types of functions in one or other form
subject to the check and balance by other organs. All three organs are interdependent because
India has a Parliamentary democracy. This does not mean that it is not accepted in India it has
been accepted up to a certain extent.
But when it is expressly provided that one organ shall not perform functions of the other, then
it is prohibited. In the Delhi laws case, it was stated that the legislature should exercise all the
powers of legislation only in extraordinary circumstances like when parliament is not in
session or emergency. We can say that the legislature is created by the Constitution to enact
the laws.

In India, there is no separation of power but there is a separation of powers. Hence, in India,
the people are not stuck by the principle by its rigidity. For example, the cabinet minister
exercises both the executive and administrative functions. Article 74(1) states that it is
mandatory for the executive head to comply with the advice of the cabinet ministers. In Ram
Jawaya vs the State of Punjab, it was held that the executive is a part of the legislature and
is accountable.

If we talk about the amending power of the Parliament under Article 368, it has been
subject to the concept of the basic structure held in case of Kesavananda Bharati vs State
of Kerala.

In this case, it was held that the Parliament couldn‟t amend the provision in such a way that
violated the basic structure.

And if it is made in violation of basic structure then such amendment will be declared as
unconstitutional null and void.

Going through this case law regarding the Supreme court judgment it can be observed that
the basic structure cannot be amended and strict applicability of doctrine can be seen.

Although strict separation of power is not followed in India like the American Constitution,
the system of check and balance is followed. However, no organs are to take over the
essential functions of other organs which is the part of the basic structure, not even by
amending and if it is amended, such amendment will be declared as unconstitutional.
CONSTITUTIONAL STATUS IN OTHER COUNTRIES

Australia

No strict separation of power between the executive and legislative but judiciary is
independent. Basically, the government is divided into three branches and it is judiciary who
will impliedly define the separation of power between legislative and executive.

Denmark

The government is divided into three branches:

Legislature Parliament

Executive Prime Minister, Cabinet, Government Department, Civil service

Judiciary Department, High court and other subordinate courts

There is a no sharp demarcation of powers between legislative and executive as compared to

the United States but the judicial power has been distinct from other powers.

France

The government is divided into three branches:

Legislature Senate (upper house) and national assembly (lower house). If a dispute arises,
the decision of the lower house is final.

Executive President, Prime minister and cabinet minister. PM is accountable to the National
Assembly.

Judiciary Includes constitutional court.

The Constitution of France provides for the separation of powers proclaims France as
“attachment to the rights of man” and the principle of national sovereignty as declared by the
declaration of 1789.

United Kingdom

Legislature Parliament
Executive Prime Minister, Cabinet, Government Department, Civil service

Judiciary Supreme Court

It has the weak separation of power which means that the doctrine of separation of power is
used in the broad sense. Because the functions of all three organs overlap with each other and
also work together.

United States

The doctrine of separation of power is applied in the strict sense.

The powers are vested in different entities. Article 1 section 1 states that all legislative
powers shall be conferred on the Congress of the United States.

Article II Section 1 talks about all the executive powers that shall be conferred in President of
the United States of America.

Article III Section 1 states that judicial power shall be conferred on the Supreme Court and
other courts which the Congress may establish from time to time.

The word “shall” is used which means that it is mandatory and it has to be followed.

CONCLUSION

“Power corrupts and absolute power tends to corrupt absolutely” – Lord Action.

Exercising the doctrine of separation power cannot be applied in the strict sense in any
contemporary countries like The United States, Nepal, France etc. But still, this doctrine has
relevancy nowadays. Our government is an organized system and it is very difficult to divide
into watertight compartments.

For the smooth functioning of any government, cooperation and coordination among all
three wings of the government are necessary. Professor Garner said that “this doctrine is
impracticable as working principle of Government. It is difficult to divide the functions of
each organ on an accurate basis”.
In my opinion, this doctrine has a great significance as it protects the liberty of the individual
from the arbitrary rule and prevents the organs from usurping the essential functions of other
organs.

It is applicable in almost all countries up to a certain extent.

REFERENCES

1.https://www.lawctopus.com/academike/doctrine-of-separation-of-powers/
2.http://www.legalservicesindia.com/article/1617/Separation-of-Powers-and-Its-
Development-with-Special-Reference-to-India.html
3.https://www.heritage.org/political-process/report/what-separation-powers-means-
constitutional-government
 CHAPTER 4 - DELEGATED LEGISLATION

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. It allows the bodies beneath the primary authority or
legislature to make laws according to the requirement. Through an act of Parliament,
Parliament has full authority to permit any person or authority to make legislation. An act of
parliament creates a framework of a particular law which tends to be an outline of the
purpose for which it is created. The important object of this is that any legislation by such
delegation should be according to the purposes as laid down in the act.

The main feature is that it allows the state government to amend the laws if there is any need
without delaying for the new act to be passed by the Parliament. If there is any requirement
then sanctions can also be altered by the delegated legislation as the technology changes. It is
believed that when such authority is delegated by the Parliament to any person or authority it
enables such person or the authority to provide more detail to the act of the Parliament.

For example, the local authority has power conferred by the superior one to make or amend
laws according to the requirement of their respective areas. The delegated legislation plays a
very important role as the number of them are more than the acts of the Parliament. It has the
same legal standing as the act of Parliament from which it is created.

There are three forms of delegated legislation i.e., statutory instrument, orders in council and
by-laws.
STATUTORY INSTRUMENTS

They are the one which is formed by the government. For example – a parent act is an act
which permits the parliament for making the law. Orders in the council are generally made by
the government when there is a need and it can affect the public at large as well as an
individual.

BY-LAWS

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

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

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

CASES

In the case of Narendra Kumar v. Union of India, it was held by the Supreme Court that the
provision under Section 3(5) of the Essential Commodities Act, 1955, which explains that
any rules framed under the Act must be presented before both the houses of the Parliament.
Therefore, clause 4 of Non – Ferrous Control Orders, 1958 has no effect until it is presented
in the Parliament.

There are a number of rules in the area of judicial control over the delegation of legislation
which is laid down by the judiciary.

In Chandra Bhan‟s case, it was held that the delegation of legislation must be reasonable and
should not suffer from any unreasonableness.

Delegated legislation should protect the rule of law and there should be no arbitrariness.
Rules framed which violates the Parent Act are illegal. Rules framed which violates any other
statute should also be considered as void. Delegated legislation made with mala fide intention
is also considered illegal.

To have a better understanding please go through the attached PowerPoint Presentation. It has
a better version of explanation about the Control Mechanism of Delegated Legislation.

Factors responsible for the rapid growth of Delegated Legislation

 Pressure on Parliament – The number of activities in states is expanding which

requires law and it is not possible for the Parliament to devote sufficient time to every
matter. Therefore for this, the Parliament has made certain policies which allows the
executives to make laws accordingly.

 Technicality – Sometimes there are certain subject matters which requires

technicality for which there is a requirement of the experts who are professional in
such fields and members of Parliament are not experts for such matters. Therefore,
here such powers are given to experts to deal with such technical problems like gas,
atomic, energy, drugs, etc.

 Flexibility – It is not possible for the Parliament to look after each contingency while
passing an enactment and for this certain provisions are required to be added. But the
process of amendment is very slow as well as the cumbersome process. Thus, the
process of delegated legislation helps the executive authority to make laws according
to the situation. In the case of bank rate, policy regulation, etc., they help a lot in
forming the law.
  Emergency – At the time of emergency, it is not possible for the legislative to
provide an urgent solution to meet the situation. In such case delegated legislation is
the only remedy available. Therefore, in the times of war or other national
emergencies, the executives are vested with more powers to deal with the situation.

 The complexity of modern administration – With the increasing complexity in

modern administration and the functions of the state being expanded and rendered to
economic and social spheres too, there is a need to shift to new reforms and providing
more powers to different authorities on some specific and suitable occasions. In a
country like Bangladesh, where control over private trade, business or property may
be needed to be imposed, and for implementation of such a policy so that immediate
actions can be taken, it is needed to provide the administration with enough power.

And so, therefore for immediate and suitable actions to be taken there has been an immense
growth of delegated legislation in every country and being that important and useful it
becomes a non-separable part in the modern administrative era.

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. Executive or Administrative Control

3. Judicial Control

1. 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.

2. 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.

3. 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. A committee
must contain a special body to look on the delegated work whether it‟s going in the right
direction and effectively or not. All the three organs should focus on their work and do not
interrupt unnecessarily to prevent chaos in the system.
 CHAPTER 5 - 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 principle of natural justice is
adhered to by all the citizens of civilised State with Supreme importance. In the ancient days
of fair practice, at the time when industrial areas ruled with a harsh and rigid law to hire and
fire, the Supreme court gave its command with the passage of duration and establishment of
social, justice and economy statutory protection for the workmen.

Natural justice simply means to make a sensible and reasonable decision making procedure
on a particular issue. Sometimes, it doesn‟t matter what is the reasonable decision but in the
end, what matters is the procedure and who all are engaged in taking the reasonable decision.
It is not restricted within the concept of „fairness‟ it has different colours and shades which
vary from the context.

Basically, natural justice consists of 3 rules.

The first one is “Hearing rule” which states that the person or party who is affected by the
decision made by the panel of expert members should be given a fair opportunity to express
his point of view to defend himself.

Secondly, “Bias rule” generally expresses that panel of expert should be biased free while
taking the decision. The decision should be given in a free and fair manner which can fulfil
the rule of natural justice.

And thirdly, “Reasoned Decision” which states that order, decision or judgement of the court
given by the Presiding authorities with a valid and reasonable ground.
ORIGIN

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

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

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

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

PURPOSE OF THE PRINCIPLE

 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

(a) 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.

1. PERSONAL BIAS

Personal bias arises from a relation between the party and deciding authority. Which lead the
deciding authority in a doubtful situation to make an unfair activity and give judgement in
favour of his person. Such equations arise due to various forms of personal and professional
relations.

In order to challenge the administrative action successfully on the ground of personal bias, it
is necessary to give a reasonable reason for bias.

Supreme court held that one of the members of the panel of selection committee his brother
was a candidate in the competition but due to this, the whole procedure of selection cannot be
quashed.

Here, to avoid the act of biases at the turn of his brother respective panel member connected
with the candidate can be requested to go out from the panel of the selection committee. So, a
fair and reasonable decision can be made. Ramanand Prasad Singh vs. UOI.

2. 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.

3.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.
4. 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.

5. 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.

6. 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.

(b) 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

1. ISSUANCE OF NOTICE– Valid and proper notice should be given to the required
parties of the matter to further proceed with the procedure of fair trial method. Even if the
statute does not include the provision of issue of notice then it will be given prior to making
decisions. This was held in the case of Fazalbhai vs. custodian.

In the case of Kanda vs. Government of Malaya, the court held that notice must directly and
clearly specify on the matter of bias, facts and circumstances against which needs to be taken.
It‟s one of the rights of the individual to defend himself so he should be familiar with the
relevant matter so he may contradict the statement and safeguard himself.

The notice should be with regard to the charges framed against the accused person and
proceeding to be held. He can only be punished on the charges which are mentioned in the
notice, not for any other charges.

2. 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.

3. RIGHT TO CROSS EXAMINATION– Right of fair hearing includes the right to cross-
examination the statement made by the parties. If tribunals denied the right to cross-
examination then it will violate the principles of natural justice. And all the necessary copies
of documents should be given and failure of that will also encroach the principle. The
department should make available officers who are involved in the procedure of investigating
and do cross-examination. Cross-examination is defined under Section 137 of the Indian
Evidence Act, 1872 (amended).
In certain exceptional cases, the right to cross-examination can be denied or rejected. Hari
Nath Mishra vs. Rajendra Medical College, under this case a male student was charged off
some indecent behaviour towards a female student. So, here the right to cross-examination
was denied for the male student as it will lead to embracement for the female student and it
will not also lead to violation of natural justice.

Sometimes it becomes very necessary to keep the identity confidential as there is a threat of
life and property. And the same situation was faced in the case Gurubachan Singh vs. the
State of Bombay.

Let‟s take an illustration, In the matter where lawyer and client are involved so, nobody can
force a lawyer to reveal what all information is given by the client to the lawyer in relation to
the case.

In the case of Ludhiana food product, the court held that If the party itself refuse to cross-
examine the witness then it will not fall under miscarriage of natural justice.

4. 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

(C) REASONED DECISION

Basically, it has 3 grounds on which it relies:-

1. The aggrieved party has the chance to demonstrate before the appellate and revisional
court that what was the reason which makes the authority to reject it.

2. It is a satisfactory part of the party against whom the decision is made.

3. The responsibility to record reasons works as obstacles against arbitrary action by the
judicial power vested in the executive authority.

(D) DOCTRINE OF LEGITIMATE EXPECTATION

“A man should keep his words. All the more so when the promise is not a bare promise but is
made with the intention that the other party should act upon it”

Administrative Law is overarching in nature and it is difficult to categorize its multiple

functions in watertight compartments. Consequently, multiple principles and doctrines have
been formulated to ensure proper functioning of the administration
THE DOCTRINE OF LEGITIMATE EXPECTATION

The doctrine of „Legitimate Expectations‟ is one amongst several tools incorporated by the
Court to review administrative action. This doctrine pertains to the relationship between an
individual and a public authority. According to this doctrine, the public authority can be made
accountable in lieu of a „legitimate expectation‟. A person may have a reasonable or
legitimate expectation of being treated in a certain way by the administrative authorities
owing to some consistent practice in the past or an express promise made by the concerned
authority.

ORIGIN OF DOCTRINE OF LEGITIMATE EXPECTATIONS

The doctrine is not a specific legal right engraved in a particular statute or rule book. The first
time, an attempt was made to establish the principles of the doctrine were in the case
of Council of Civil Service Unions and Others v. Minister for the Civil Service ([1985] AC
374), that the decision by the public authority should affect the person such that-

 His rights or obligations are altered, which are enforceable by or against him

 He is deprived of some benefit or advantage which he had been permitted by the

authorizing body in the past and which he could have legitimately expected to enjoy
until a valid ground for withdrawal of the same was communicated to him or he had
been assured by the decision making body that such a benefit or advantage would not
be withdrawn until him being given an opportunity of contending reasons as to why
they were withdrawn.

CIRCUMSTANCES FOR THE FORMATION OF LEGITIMATE

EXPECTATION

Circumstances which may lead to the formation of legitimate expectations were postulated
in Madras City Wine Merchants v. State of Tamil Nadu ((1994) 5 SCC 509) namingly-

 If there was some explicit promise or representation made by the administrative body
  That such a promise was clear and unambiguous

 The existence of a consistent practice in the past which the person can reasonably
expect to operate in the same way

It was laid down in P.T.R. Exports (Madras) Pvt. Ltd. And Others vs. Union of India and
others (AIR 1996 SC 3461) that the doctrine of legitimate expectations has no role to play
when the appropriate authority is empowered to take a decision under an executive policy or
the law itself and that the Government is not restricted from evolving new policy on account
of „legitimate expectations‟ as and when required in public interest.

The Supreme Court ruled in M.P. Oil Extraction v. State of M.P ((1997) 7 SCC 592) that the
doctrine of legitimate expectations operates in the realm of public law and is considered a
substantive and enforceable right in appropriate cases. It was held that the industries had a
legitimate expectation with regards to past practice and the renewal clause, that the
agreements are renewed in a similar manner.

In National Buildings Construction Corporation v S. Raghunathan ((1998) 7 SCC 66),

respondents were brought on deputation for an overseas project that was to be carried out in
Iraq by NBCC (Government Company). The Respondents chose to draw their salary in the
same scale as of employee of Central P.W.D along with Deputation allowance. They were
also given foreign allowance at 125% of the basic pay, however, their basic pay was revised.
It was contended by them that this allowance should be paid out of the revised pay scale.

 The claim which was based on legitimate expectations was rejected by NBCC. The
Court agreed with the decision that no such promise or agreement was carried out by
NBCC.

 The Court while elaborating on the doctrine, stated that the doctrine has its genesis in
the administrative law and that Government departments ought not to act in an
unfettered manner guided by abuse of discretion.

 The Court also pointed to a procedural aspect stating that the contention of „legitimate
expectation‟ should have been raised in the pleadings itself, and thus the High Court
was erroneous in allowing the plea at the stage of arguments in the absence of
pleadings and affidavit to support the same.
It can be inferred from the aforementioned case that the doctrine has both substantive and
procedural facets to it.

It was reiterated in the case of Bannari Amman Sugars Ltd. V. CTO ((2005) 1 SCC 625) that
guarding legitimate expectation should not come at the cost of non-fulfillment of an
overriding public interest, so to say that in case a legitimate expectation of a person is not
fulfilled, the decision making body can hide behind the veil of „overriding public interest‟.

ARTICLE 14 AND LEGITIMATE EXPECTATION

The doctrine‟s use has essentially been embedded into Article 14 of the Constitution and thus
„non-arbitrariness and unreasonableness‟ have been made the necessary qualifiers for
assessing as to whether there was a denial of legitimate expectation or not. Such a mandate
has made the doctrine quite redundant in the Indian Context. For the doctrine to grow
individually, it is necessary that lower standards are set as qualifiers which undoubtedly may
run its own risks like a too much Judicial intervention.

CONCLUSION

The principles of natural justice have been adopted and followed by the judiciary to protect
public rights against the arbitrary decision by the administrative authority. One can easily see
that the rule of natural justice include the concept of fairness: they stay alive and support to
safeguard the fair dealing.

So at all the stages of the procedure if any authority is given off the judicial function is not
purely accepted but the main motive of the principal is to prevent the miscarriage of justice. It
is supreme to note that any decision or order which violates the natural justice will be
declared as null and void in nature, hence one must carry in mind that the principles of
natural justice are essential for any administrative settlement to be held valid.

The principle of natural justice is not confined to restricted walls the applicability of the
principle but depends upon the characteristics of jurisdiction, grant to the administrative
authority and upon the nature of rights affected of the individual.
The doctrine of legitimate expectation has undoubtedly gained significance in the Indian
Courts, giving locus standi to a person who may or may not have a direct legal right. The
doctrine of legitimate expectations very well leads to a procedural right i.e. right to judicial
review in India but the substantive aspect of the doctrine can be said to be in a budding stage.
There has been hesitance amongst academicians as to whether the doctrine should apply to
substantive rights at all. It has been argued that application of the doctrine to substantive
rights might result in failure of separation of powers and would qualify as overstepping of
Judiciary‟s powers.

REFERENCE

1. https://www.academia.edu/23092337/Title_PRINCIPLES_OF_NATURAL_JUSTIC
E_IN_THE_LIGHT_OF_ADMINISTRATIVE_LAW_An_Analytical_and_compreh
ensive_study_of_Principle_of_natural_justice_especially_in_the_field_Of_administr
ative_law

2. https://www.nacenkanpur.gov.in/download3.inc.php?rid=164

3. Mohinder Singh Gill vs. Chief Election Commissioner AIR 1978 SC 851

4. Province of Bombay vs. Khushaldas Advani AIR 1950 SC 222

5. Board of high school vs. Ghanshyam AIR 1962 SC 1110

6. High water mark case- Eurasian equipment and company limited vs. State of West
Bengal AIR 1975 SC 266

7. Ramanand Prasad Singh vs. UOI, AIR 1996 SCC 64

8. Muralidhar vs. Kadam Singh AIR 1954 MP

9. Fazalbhai vs. custodian, AIR 1961 SC 284

10. Kanda vs. Government of Malaya, 1962 A.C. 322

11. Hari Nath Mishra vs. Rajendra Medical College, A.I.R. 1973 S.C. 1260

12. Gurubachan Singh vs. State of Bombay, A.I.R. 1952 S.C. 221

13. Ludhiana food product, 1990 (47) ELT 294

14. A.K.Roy, AIR 1982 SC 710

15. Sanghi textile processor vs. Commissioner, 1991 (55) ELT 151 A.P.

16. Lord Denning “Recent Development in the Doctrine of

Consideration”, Modern Law Review, Vol. 15, 1956.

17. A.K.Srivastava, Doctrine of Legitimate Expectation

(1995), http://www.ijtr.nic.in/articles/art13.pdf.
18. Confederation of Ex-Servicemen v. Union of India, AIR 2006 SC
2945.

19. B.N.Pandey, Doctrine of Legitimate Expectation, Banaras Law

Journal, Vol. 31 (2002).

20. Sarica AR, Doctrine of legitimate expectations,

ACADEMIKE, https://www.lawctopus.com/academike/doctrine-
legitimate-expectations/
 CHAPTER 6 - WRITS

A person whose right is infringed by an arbitrary administrative action may approach the
Court for appropriate remedy. The Constitution of India, under Articles 32 and 226 confers
writ jurisdiction on Supreme Court and High Courts, respectively for enforcement/protection
of fundamental rights of an Individual. Writ is an instrument or order of the Court by which
the Court (Supreme Court or High Courts) directs an Individual or official or an authority to
do an act or abstain from doing an act.

Article 32(2) of the Constitution of India provides:‟‟ The Supreme Court shall have power to
issue directions or orders or writs, including writs in the nature of habeas corpus, mandamus,
prohibition, quo warranto and certiorari, whichever may be appropriate, for the enforcement
of any of rights conferred by this Part.”

Article 32 is a fundamental right under Part -III of the Constitution. Under this Article, the
Supreme Court is empowered to relax the traditional rule of Locus Standi and allow the
public interest litigation (PIL) at the instance of public-spirited citizens. The Supreme Court
can provide relief to various types of litigants such as bonded labour, undertrial prisoners,
victims of police torture etc. The Supreme Court may also award exemplary damages by
exercising its power under Article 32 as it has imposed in Bhim Singh’s and Rudul Shah’s
cases.

Article 226(1) of the Constitution of India, on the other hand says,” Notwithstanding
anything in Article 32, every High Court shall have powers, throughout the territories in
relation to which it exercise jurisdiction, to issue to any person or authority, including in
appropriate cases, any Government, within those territories directions, orders or writs,
including writs in the nature of habeas corpus, mandamus, prohibitions, quo warranto and
certiorari, or any of them, for the enforcement of any of the rights conferred by Part III and
for any other purpose.”

As is clear from the bare language, this Article guarantees an individual to move the High
Court for enforcement of the fundamental rights as well as for any other purpose also i.e. for
enforcement of any other legal right. Article 226 confers wide powers on the High Courts. It
serves as a big reservoir of judicial power to control administration. Its power under Article
226 cannot be curtailed by legislation. Thus powers of High Courts conferred under Article
226 are wider as compared to powers conferred on the Supreme Court under Article 32 of the
Constitution of India.

Both the Articles 32 and 226 provide five types of writs namely writ of habeas corpus,
mandamus, prohibition, certiorari and quo-warranto. These are known as prerogative writs in
English Law because they had originated in the King‟s prerogative power of superintendence
over the due observance of law by his officers and tribunals. The prerogative writs are extra-
ordinary remedies intended to be applied in exceptional cases in which ordinary legal
remedies are not adequate.

Now, let us discuss the prerogative writs in detail:

A) WRIT OF HABEAS CORPUS

The expression “Habeas Corpus” is a Latin term which means „to have the body‟. If a person
is detained unlawfully, his relatives or friends or any person can move the Court by filing an
application under Article 226 in High Court or under Article 32 in Supreme Court for the writ
of Habeas Corpus. The Court on being satisfied with the contents of the application, issues
the writ. This writ is in the nature of an order calling upon the person who has detained
another to produce the latter before the Court, in order to let the Court know on what ground
he has been confined and to set him free if there is no legal justification for the confinement.
The Court may also award exemplary damages. In Bhim Singh Vs State of Jammu&
Kashmir, AIR 1986 SC 494, the Hon‟ble Apex Court awarded the exemplary damages of
Rs.50,000/-(At that time this was a very significant amount).

An application for habeas corpus can be made by any person on the behalf of the
prisoner/detenu as well as the prisoner/detenu himself. Even a letter to the judge mentioning
illegalities committed on prisoners in jail can be admitted. In Sunil Batra Vs Delhi
Administration, AIR 1980 SC 1579, a convict had written a letter to one of the Judges of the
Supreme Court alleging inhuman torture to a fellow convict. The late justice Krishna Iyer
treated this letter as a petition of habeas corpus and passed appropriate orders. Courts can also
act suo motu in the interests of justice on any information received by it from any
quarter/source. The general principle is that a person illegally detained in confinement
without legal proceedings is entitled to seek the remedy of habeas corpus.

However, the writ of habeas corpus is not issued in the following cases:

(i) Where the person against whom the writ is issued or the person who is detained is not
within the jurisdiction of the Court.

(ii) To secure the release of a person who has been imprisoned by a Court of law on a
criminal charge.

(iii) To interfere with a proceeding for contempt by a Court of record or by Parliament.

Thus writ of habeas corpus is a bulwark of personal liberty. I has been described as “a great
constitutional privilege” or “ first security of civil liberty”. The most characteristic element of
the writ is its peremptoriness i.e. a speedy and effective remedy for having the legality of
detention of the person enquired and determined by the Court.

B) MANDAMUS

The expression „Mandamus‟ is a Latin term which means “ We Command”. Mandamus is a

Judicial order issued in the form of a command to any Constitutional, Statutory or Non-
Statutory authority asking to carry out a public duty imposed by law or to refrain from doing
a particular act, which the authority is not entitled to do under the law. It is an important writ
to check arbitrariness of an administrative action. It is also called „Writ of Justice‟.

Mandamus demands some kind of activity on the part of the body or person to whom it is
addressed. Thus, when a body omits to decide a matter which it is bound to decide, it can be
commanded to decide the same. Where the Government denies to itself a jurisdiction which it
has under the law or where an authority vested with the power improperly refuses to exercise
it, mandamus can be issued. Thus, mandamus will not be issued unless the applicant has a
legal right to the performance of legal duty of a public nature and the party against whom the
writ is sought is bound to perform that duty.
The rule of Locus Standi is strictly followed in while issuing writ of mandamus. The
petitioner has to prove that he has a right to enforce public duty in his favour. The petitioner
can approach the High Court or Supreme Court for issuing the writ of mandamus on the
following grounds:-

(i) Error of jurisdiction;

(a) Lack of jurisdiction (b) Excess of jurisdiction

(ii) Jurisdictional facts;

(iii) Violation of the principles of natural justice i.e. principles of Rule against bias and Rule
of Audi alterem partem;

(iv) Error of law apparent on the face of record

(v) Abuse of jurisdiction

It is a discretionary remedy and the High Court may refuse to grant mandamus where an
alternative remedy is available for the redressal of the injury complained of. In the matter of
enforcement of fundamental rights, however, the question of alternative remedy does not
weigh so much with the Court since it is the duty of the High Court or the Supreme Court to
enforce the fundamental rights. In India, mandamus will lie not only against officers who are
bound to do a public duty but also against the Government itself as Article 226 and 361
provided that appropriate proceedings may be brought against the Government concerned.
This writ is also available against inferior Courts or other Judicial bodies when they have
refused to exercise their jurisdiction and thus to perform their duty.

Further, Mandamus will not be granted against the following persons:

(i) The President or the Governor of a State, for the exercise and performance of the powers
and duties of his Office or for any act done or purporting to be done by him in the exercise
and performance of those powers and duties.

(ii) Mandamus does not lie against a private individual or body whether incorporated or not
except where the State is in collusion with such private party, in the matter of contravention
of any provision of the Constitution or a Statute or a Statutory instrument.
(iii) It will not lie against the State legislature to prevent from considering enacting a law
alleged to be violative of constitutional provisions.

(iv) It will not lie against an inferior or ministerial officer who is bound to obey the orders of
his superiors

Thus, Writ of Mandamus is a general remedy whenever justice has been denied to any
person.

(C) PROHIBITION

The expression „prohibition‟ literally means „to prohibit‟. The Writ of Prohibition is a
Judicial order issued by the Supreme Court or a High Court to an inferior Court or quasi-
judicial body forbidding the latter to continue proceedings therein in excess of its jurisdiction
or to usurp a jurisdiction with which it is not legally vested. Thus, object of the writ is to
compel inferior courts to keep themselves within the limits of their jurisdiction.

Earlier, this writ was used to issue only to judicial and quasi-judicial bodies. But such
requirement is no longer valid. With the expanding dimensions of natural justice and the
requirement of fairness in administrative functions, the rigidity about prohibition has been
liberalized. This writ can now lie to anybody, irrespective of the nature of function exercised
by it, if any of the grounds on which the writ is issued is present.

The writ of prohibition can be issued on the following grounds:

(i) Absence or Excess of jurisdiction;

(ii) Violation of the principles of natural justice;

(iii) Unconstitutionality of a Statute;

(iv) Infraction of Fundamental Rights

Thus, writ of prohibition is available during the pendency of the proceedings and before the
order is made. The object is to secure that the jurisdiction of an inferior court or tribunal is
properly exercised and that it does not usurp the jurisdiction which it does not possess.
 D) CERTIORARI

The expression “ certiorari” is a Latin word which means “ to certify”. This writ confers
power on the Supreme Court and High Courts to correct illegality of their decisions.
„Certiorari‟ is a judicial order issued by the Supreme Court under Article 32 and/or by the
High Court under Article 226 of the Constitution to an inferior Court or quasi-judicial or any
administrative body to transmit to the Court of records of proceedings pending therein for
scrutiny and decide the legality and validity of the orders passed by them. If the decision is
bad in law, it is quashed.

The conditions necessary for the issue of the writ of certiorari are:-

(i) Any body of persons;

(ii) Having legal authority;

(iii) To determine questions affecting the rights of subjects;

(iv) Having the duty to act judicially;

(v) Act in excess of legal authority

The grounds on which the writ of certiorari may be issued are:

(a) Error of Jurisdiction

(i) Lack of jurisdiction

(ii) Excess of jurisdiction

(b) Abuse of jurisdiction

(d) Error of law apparent on the face of the record

(e) Violation of principles of natural justice

The purpose of the writ of certiorari is not only negative in the sense that it is used to quash
an action but it contains affirmative action as well. It is preventive as well as curative in
nature. The power of judicial review is not restricted where glaring injustice demands
affirmative action.
Case study:- In A.K. Kripak Vs Union of India, AIR 1970 SC 150, the Supreme Court
issued the writ of certiorari to quash the selection list of the Indian Forest Service on the
ground that one of the selected candidates was the ex-officio member of the selection
committee.

(E) WRIT OF QUO WARRANTO

The Writ of „Quo Warranto‟ questions the title as to the holder of an office. The term „Quo
Warranto‟ means „what is your authority „ It is a judicial order asking a person, who occupies
public office, to show by what authority s/he holds the office. If it is found that the holder of
the office has no valid title, then this writ is issued to him to oust from the office.

Thus writ of Quo Warranto is a mode of judicial control in the sense that the proceedings
review the actions of the administrative authority which appointed the person. The writ is
issued to the person ousting him from holding a public post to which he has no right. It is
used to try the civil right to a public post. Accordingly, the use of the writ is made in cases of
usurpation of a public office and removal of such usurper. Conversely, it protects citizen from
being deprived of public office to which he may have a right. A petition for the writ of Quo
Warranto can be filed by any person though he is not an aggrieved person.

The conditions necessary for the issue of a writ of Quo Warranto are:

(i) The office must be public and it must be created by a statute or by the constitution itself.

(ii) The office must be a substantive one and not merely the function or employment of a
servant at the will and during the pleasure of another.

(iii) There has been a contravention of the Constitution or a statute or statutory instrument, in
appointing such person to that office.

The fundamental basis of the proceeding of Quo Warranto is that the public has an interest to
see that an unlawful claimant does not usurp a public office. It is, however, a discretionary
remedy which the Court may grant or refuse according to the facts and circumstances of each
case. Thus, it may be refused when it is vexatious or where it would be futile in its result or
where the petitioner is guilty of laches or where there is an alternative remedy for ousting the
usurper. In P.L. Lakhan Pal Vs A.N.Ray, AIR 1975 Del.66, the Delhi High Court refused to
issue writ against Chief Justice of India, Justice Ray because it would be futile in its result as
the three Judges senior to him already resigned. Justice Ray becomes the seniormost and as
such can be re-appointed even it were assumed that the appointment of Chief Justice of India
should be on the basis of seniority rule.

CONCLUSION

Thus it is clear that vast powers are vested with the Judiciary to control an administrative
action when it infringes fundamental rights of the citizens or when it goes beyond the spirit of
Grundnorm of our country i.e Constitution of India. It ensures the Rule of Law and proper
check and balances between the three organs of our democratic system.The philosophy of
writs is well synchronized in our Constitutional provisions to ensure that rights of citizens are
not suppressed by an arbitrary administrative or Judicial action.

BIBLIOGRAPHY
1.Prof.Narender Kumar, Constitutional Law of India, Allahabad Law Agency,
Faridabad,2012
2.Dr.D.D.Basu, Introduction to the Constitution of India, Wadhwa and Company Law
Publishers, Agra, 2005.

3.Dr.J.J.R. Upadhyaya, Administrative Law, Central Law Agency, Allahabad,2013.

4.Dr.Rega Surya Rao, Lectures on Administrative Law, Asia Law House, Hyderabad,2012.

5. Bhim Singh Vs State of Jammu& Kashmir, AIR 1986 SC 494,

6.Sunil Batra Vs Delhi Administration, AIR 1980 SC 1579

7. A.K. Kripak Vs Union of India, AIR 1970 SC 150

8. P.L. Lakhan Pal Vs A.N.Ray, AIR 1975 Del.66

 CHAPTER 7 - PUBLIC INTEREST LITIGATION

Injustice anywhere is a threat to justice everywhere- Martin Luther King, Jr.

Judiciary, being the sentinel of constitutional statutory rights of citizens has a special role to
play in the constitutional scheme. It can review legislation and administrative actions or
decisions on the anvil of constitutional law. For the enforcement of fundamental rights one
has to move the Supreme Court or the High Courts directly by invoking Writ Jurisdiction of
these courts. But the high cost and complicated procedure involved in litigation, however,
makes equal access to jurisdiction in mere slogan in respect of millions of destitute and
underprivileged masses stricken by poverty, illiteracy and ignorance. The Supreme Court of
India, pioneered the Public Interest Litigation (PIL) thereby throwing upon the portals of
courts to the common man.

The meaning, origin, development and the scope of Public Interest Litigation and the locus
standi for resorting to this jurisdiction of the Supreme court has been described by that court
itself as follows;

“The question, “What „PIL‟ means and is” has been deeply surveyed, explored and explained
not only by various Judicial pronouncements in many countries, but also by eminent Judges,
Jurists, activist Lawyers, outstanding scholars, Journalists and Social scientists, etc. Basically,
the meaning of the word “Public Interest” is defined in Oxford English dictionary as “the
common well-being also public welfare”

PROCEDURES TO FILE A PIL IN THE COURT

Any citizen of India can approach the court for public case (upon the interest of public) by
filing a petition:

• Under Supreme Court Article 32 of the constitution

• Under High Court under Article 226 of the constitution

• Under Court of Magistrate under Section 133 CRPC

At present, a court can treat a letter as a writ petition and take action upon it. In such cases,
the court has to be satisfied that the writ petition compiles the following;

1. Where the letter is addressed by the aggrieved person

2. A public-spirited individual

3. A social action group for the enforcement of legal or constitutional rights to any person
who, upon poverty or disability, are not able to approach the court for redress.

CATEGORIES INVOLVED IN FILING A PIL

The guidelines provide that ordinarily letter/petitions falling under one of the following 10
categories will be entertained as PIL:

1. Bonded labor matters

2. Neglected children

3. Non-payment of minimum wages

4. Petitions from jails complaining of harassment, death in jail, speedy trial as a fundamental
right, etc.
5. Petitions against police for refusing to register a case, harassment of bride, bride-burning,
rape, murder, kidnapping, etc.

6. Petitions against atrocities on women, in particular harassment of bribe, bribe-burning,

rape, murder, kidnapping, etc.

7. Petitions complaining harassment or torcher of persons belonging to scheduled caste and

scheduled tribes

8. Petitions pertaining to environmental

PROS AND CONS OF THE PIL

PROS

 citizens get an inexpensive remedy to solve the problem of crime as there is only a
nominal rate of court fees
 courts can concentrate on larger public issues such as the issues of Human Rights,
consumer welfare and environment
 PILs have made it easier for the judiciary to haul up the executive when it is not
performing its duties properly
 If the petitioner is socially or economically weak and cannot provide necessary
evidence to support his case, the court orders appointed commissions to look into and
collect information about the case.

CONS

 Many people started handling PIL as tool for harassment because frivolous cases
can be filed without heavy court fee as compared to private litigations
 Due to the flexibility of character of the PIL, the opposite party gets an
opportunity to ascertain the precise allegation and respond to specific issues.
 The judiciary has been criticized due to the overstepping of its jurisdiction and
that it is unable to implement its order effectively
 PIL as being misused in many ways, by the public agitating for private grievances
in the grab of public interest by seeking publicity rather than supporting the
public cause.
Justice Krishna Iyer in the case of Fertilizer corporation Kamagar union Vs
Union of India has enumerated the following principles on Public Interest
Litigation such as;
 The exercise of State power to eradicate corruption may result in unrelated
interference‟s of individuals right
 Social justice want‟s liberal judicial review administrative action
 Restrictive rules of standing are an antithesis to an effective system of
administration
 Activism is essential for participative public justice.
M.C. Mehta, a lawyer by profession, acted in such way that by looking to the number of PIL
filed by him, it will be clear that many landmark judgements in various fields mainly
environment was obtained by him. Some of them include;

1. Oleum gas leakage case

2. Child labor case

3. Gamma rays case

4. Delhi vehicular pollution case

5. Ganga pollution case and so on

There are many cases involved in Public Interest Litigation as one of the main causes for the
case and its judgement. In the case of Sheela Barse Vs State of Maharashtra, the case dealt
with a historical judgement on the issue of custodial violence against women. The Court held
that there must be separate police lockups for women convicts to protect them from further
trauma and brutality. In the case of M.C. Mehta Vs Union of India, it leads to the landmark
judgment which lashed out at the civic authorities allowing untreated sewage from Kanpur
tanneries making its way into the Ganges. In the case of Paramanand Katara Vs Union of
India, Supreme Court held that in the field of Public Interest Litigation, which was filled by a
human rights activist for general public interest that it is a paramount obligation of every
member of medical profession to give medical aid to injured person as soon as possible
without waiting for any procedural formalities.

NATURE OF PUBLIC INTEREST LITIGATION

PRINCIPLES AND BASIS OF JURISDICTION

The introduction of social action litigation popularly known as Public Interest Litigation (or)
PIL supreme court shows its Judicial Activism the court has entertained the complaints made
through letters address to it by public spirited citizens of the violation of the rights of
disadvantages, dispossessed and deprived persons (or) group of persons who because of their
future (or) socially (or) economically disadvantaged position unable to approach the court for
itself the trade rule of locus standi has been relaxed.

PUBLIC INTEREST

In PIL, the strict rule of locus standi approved to private litigation is relaxed and a broad rule
is evolved which gives the right of locus standi to any member of the public acting bonfire
and having sufficient interest in instituting an action for reducing of public wrong (or) public
injury but who is not a meddlesome busy body (or) meddlesome interloper, since the
domestic object of PIL is to ensure observance of the provision of the constitution (or) the
law which can be best achievement to advance the cause of community (or) disadvantage of
groups and individuals (or) Public interest by permitting any person, having no personal gain
(or) private motivation (or) any other oblique consideration but acting bonfireand having
sufficient interest in maintaining an action or judicial redress for public injury to put the
judicial machinery in motion like Actio popularis of Roman law whereby any citizen could
bring such an action in respect of a public delict.

NATURE OF PIL JURISDICTION

The PIL jurisdiction forged by supreme court is an extension of its jurisdiction under Article
32 of the constitution. PIL is not in the nature of adversary litigation, but it is a challenge and
an opportunity to the government and its officers to take basic human rights meaningful to
the deprived and vulnerable sections of the community and to assure them socio and
economic Justice which is the signature tune of our constitution.

GRIEVANCE AND RELIEF

In PIL the court has power to take affirmative action by issuing specific directions in cases of
governmental inaction (or) lethargy to perform its functions under law further, the court has
power to award cost to the petitioner who brought an important matter before the court for
compensation to persons who have suffered on and of the violation of their constitutional (or)
legal rights.
RELAXATION OF LOCUS STANDI

The important innovation in the matter of PIL is relaxation regarding locus standi. Though no
hard and fast rules have been laid down in this regard, in S.P.Gupta and others Vs U.O.I and
others, popularly known as Judges transfer case the supreme court elaborately stated the rule
in this regard.

However, the court observed that it would have to be decided from case to case as to whether
person approaching the court for relief has sufficient interest and has not acted with malafide
(or) political motion.

PROTECTION OF WEAKER SECTIONS OF SOCIETY

Public (or) social interest litigations is innovative strategy which has been evolved by the
supreme court for the purpose of providing easy access to justification to the weaker sections
of Indian humanity and it is powerful tool in the hands of public spirited individual and social
action groups for combating exploitation and injustice and securing for the under privileged
segments of society their social and economic entitlement.

In M.C. Mehtha Vs state of Tamil Nadu, the Supreme court issued directions for the welfare
and protection of children employed in match factories. In numerous cases, the supreme court
has passed orders and issued directions for the welfare and protection of labor.

In people‟s union for Democratic Rights Vs union of India (U.O.I). The supreme court in this
case passed an order for Payment for minimum wages to the labor.

PROTECTION OF ENVIRONMENT

In M.C.Mehtha Vs Union of India (U.O.I) in this case the supreme court ordered for
closure of tanneries near Kanpur which were polluting river Ganges and creating Industrial
pollution affecting lifetime of world wonder Taj mahal.
SECURING HUMAN RIGHTS AND HUMAN DIGNITY

In Bandhu Mukthi morcha Vs Union of India, the supreme court said Article 21 assures the
Right to Live with Human dignity, includes free from exploitation.

MATTERS OF PUBLIC IMPORTANCE

In matters of great public importance the supreme court has passed appropriate orders under
its PIL jurisdiction;

• To check arbitrary and malafide use of executive discretion

• Widening area of Public Interest Litigation

• Grand of variety Of reliefs

CARE AND CAUTION NEEDED

In recent years there has been tremendous development and dynamic progress of COSMOS
of PIL. However, great care and caution is needed on the part of court in entertaining PIL. It
has been pointed out by the supreme court that – “Public Interest Litigation is a weapon
which can be used with great care and circumspection and the Judiciary has to be extremely
careful to see behind the beautiful veil of public interest an ugly private malice, vested
interest and seeking is not lurking.

Judiciary may step in where it finds the actions on the part of Legislature (or) the executive is
illegal (or) unconstitutional but the same by itself would not mean that public interest
litigation would be converted into an adversarial litigation.

CONCLUSION

Public Interest Litigants, all over the country, has not taken very kind towards various court
decisions. It is a welcome move from the part of the judiciary that no one in the country even
PIL activists must be responsible and accountable. Now a day, PIL are increasing in number
as there are a number of incidents which curtails or hurts the feeling of people as well as their
rights as the citizens of the country. For instance, mass petitions were filed in many rape
cases as well as murder cases in our country due to the lack of interest from the part of
investigating agencies and even from the part of Government. The Supreme court has also set
up legal aid in favour of the millions of people in India, and it also plays an inevitable role in
the field of PIL in expanding its scope so that it turns to be a counter balance to the lethargy
as well as inefficiency of the executive. Hence, the machinery governing Public Interest
Litigation is undergoing a serious reconstruction or rethinking for possible developments in
this field so that the people deserved will be awarded justice as well as the people who abuses
it will be punished accordingly.
 CHAPTER 8 - OMBUDSMAN (LOKPAL) IN INDIA AND
LOKAYUKTA IN STATE OF U.P.

INTRODUCTION

For a nation to prosper and develop holistically it needs to have an organised system of
administration, a system which seeks to redress the problems of the people and most
importantly, is free from corruption. Maladministration leads to various obstacles in the
progress of a nation and is like a termite which slowly erodes the very foundation of a nation
and prevents the very structure of administration from accomplishing its task. The root cause
of this problem of maladministration is corruption. Administrative law is an ever growing
subject which cannot be confined to one single terrain. It does not confine itself to any one
branch of law and is eventually bound to be present at every instance where there is an abuse
of power. For an administrative system to be good it must not abstain from being answerable
to the people. But, as has been said, absolute power corrupts absolutely which implies that if
there is power then its abuse is bound to be there. With the administrative agencies pervading
every aspect of our lives, the chances of administrative law interfering with the rights of a
person have increased manifold. It eventually leads to the need for an appropriate mechanism
which can secure the rights of a person from being infringed by administrative wrongs. For
this reason, the institution of “ombudsman” came to the rescue and proved to be of immense
importance and has been and is still being adopted by various nations to protect the rights of
the individual against the administrative practices of the State and also to avoid inefficiency
in the administrative set up of the State.

HISTORICAL BACKGROUND

The year was 1713 and in this year the king of Sweden, King Charles XII was in a situation
of war with Russia and during this point of time the King in order to keep a check on the
working of the public servants came up with an office named “Hogsta
Ombudsmannen”. However in the year 1719 the name of this office was changed to
“Justitiekansler” which meant Chancellor of Justice.[i]
Officially the institution of ombudsman was inaugurated in the year 1809 in Sweden. This
institution did not become very famous till it was adopted by Denmark. The administrative
policies of Sweden were followed by Finland also, but it is very surprising that it was after a
huge gap of 110 years that Finland finally adopted the institution of ombudsman. Denmark
and Finland had their own problem in adopting the institution of ombudsman. Since Finland
was under the control of Russia till the year 1919 it did not adopt this institution and for
Denmark the problem was actually the language barrier which prevented it from adopting
it. However, there was a huge impact in a positive sense on the institution of ombudsman
when it was adopted by New Zealand and Norway in the year 1962 and it proved to be of
great significance in spreading of the concept of ombudsman. The reason why this system of
ombudsman was so easily adopted by various countries having different political and
historical backgrounds was the degree of flexibility of the institution of ombudsman and
hence its easy adaptation to this concept was readily adopted by various nations, the
Scandinavian countries being the best suited example of it.

The institution of ombudsman is not only confined to the developing nations, it equally
extends itself to the various developed nations as well. In the year 1967 the Great Britain
became the first large nation in the democratic world to adopt the ombudsman institution and
it was largely based on the recommendations of the Whyaat Report of 1961.[ii] The
developing countries also began to look into the concept of ombudsman and it was because of
this that Guyana became the first developing nation to have adopted the concept of
ombudsman and it was adopted in the year 1966 and subsequently it was further adopted by
Mauritius, Singapore, Malaysia and India as well. All these systems of ombudsman are in
essence based on the same structure and idea but deviate only in very fine aspects relating to
the changes in the different political and historical systems of the respective nations, whether
already developed or in the phase of development.

THE INSTITUTION OF OMBUDSMAN IN THE INDIAN SCENARIO

In the year 1966 a commission was set up named the Administrative Reforms Commission
and this commission recommended that an institution based on the lines of an ombudsman is
necessary in India and in pursuance of this a bill was forwarded in the Lok Sabha in the year
1968 which was eventually passed in the year 1969. Since the governments have yielded so
much power that can lead to its abuse, it eventually leads to the advent of the ombudsman in
India.

Once India attained freedom from the shackles of the British Empire, India had a humungous
task to deal with, coping with problems such as the Second World War, economic crises and
famines to name a few. And in order to tackle all these problems, India required a competent
administrative set up and huge amount of power was given to the administrators and therefore
a proper mechanism was required to protect the individuals from the faults of the
administration. As was the case in Denmark, India also had to suffer a lot of administrative
crises after the Second World War and there were numerous cases of maladministration and
corruption surfacing during this period and such problems had to be tackled immediately.

THE ORIGIN OF LOKPAL AND LOKAYUKTA IN INDIA

The issue concerning the ombudsman was for the first time raised in the Parliament in the
year 1963. The idea of ombudsman came to India in the year 1959. Mr C.D. Deshmukh was
the Chairman of the University Grants Commission and he made possible the establishment
of a tribunal which would be completely impartial and would look into the matters and make
proper reports on the complaints filed by the public in general. From this incident there have
been continuous demands for the establishment of such a mechanism like an ombudsman in
all the strata of the Indian society.[iii]

A crucial change with reference to the Lokpal Bill came in the year 2011 and it was in this
year that the Lokpal Bill was passed and it eventually led to the establishment of the
institution of Lokpal at the Centre and Lokayukta at State level. Another important feature of
this Bill is that the form of the current Bill has been arrived at after it went through numerous
recurring rounds of consultations and discussions with all the interested parties which also
included the society at large. And it was only after such numerous deliberations and proper
consultations that this Act eventually came into force on the 1st January 2014.[iv]
A CRITICAL ANALYSIS OF THE LOKPAL AND THE LOKAYUKTA
ACT[V]

Section 4(1) of the Act reads as, “the Chairperson and members of Lokpal shall be appointed
by the President and this appointment shall be compulsorily made in accordance with the
recommendations which are based on the report given by the Selection Committee.” This
Selection Committee which will be giving its recommendation will be comprised of the
Prime Minister, the Speaker of the House of People, Leader of the Opposition in the House of
People, the Chief Justice of India or a Judge of the Supreme Court nominated by the Chief
Justice and one eminent Jurist.

This specific provision has been heavily criticised. A Chief Justice, because of his credentials
should never be subordinate to the Prime Minister and with respect to the appointment of the
Jurist it is very crucial that it be done with extreme caution as it will definitely be a very
important factor to prevent the Lokpal from becoming a mere toothless law; rather, it would
become a rubber stamp of the party which is in power at that point of time. Section 4 (2)
clearly states, that mere vacancy in the Selection Committee will not annul the appointment
of a Chairperson or a member of Lokpal. It becomes very difficult to ascertain the real intent
behind this provision. It is almost impossible to have a situation when the post of the Prime
Minister, Lok Sabha Speaker, and Leader of Opposition in the Lok Sabha or the Chief Justice
of India are vacant. Section 5 makes it very clear that the selection process must compulsorily
start before a minimum of three months from expiry of the term of the Chairperson or a
Member of the Lokpal in order to make sure that there is no vacancy in the Selection
Committee. It is the vacancy of the eminent jurist which has a proper legal backing. The
appointment or vacancy of the eminent jurist is actually an important tool which the
government possesses and it is with the help of this tool that the government is able to take
control of the majority of the members who are in the executive, specifically in matters of a
dissenting judicial member, the Lok Sabha Speaker and the Prime Minister being at one end.
Such sections can be used to mould the circumstances accordingly and hence it is very
ambiguous and should have been avoided.

Section 14 (1) (a) deals with the procedural aspect of the Act and it states that if there is any
allegation of corruption which is made in the complaint filed by the aggrieved party with
respect to any person who is or has been a Prime Minister, it can be taken into consideration
and an enquiry can be made into by the Lokpal. However there is an exception to this
provision and it excludes certain matters such as public order, international relations, atomic
energy and space from the purview of this provision and given the important character of
such matters it is fair to exclude these matters.[vi]

It is very astonishing to see that the procedure which is actually prescribed in the case of
preliminary inquiry and the procedure which entails the issue of investigation provided under
Section 20 are in complete contrast with one another and it will not be wrong to say that they
are self-contradictory. Once there is a complaint which is received by the Lokpal, it has the
authority to order a preliminary enquiry to look into the matter to see whether there exists any
prima facie case or not or it may order the investigation to be carried on by any other agency,
but it can only be done if it has been established that there is a prima facie case.

However the issue is that the proviso given in this section clearly states that before giving
orders for any kind of investigation stated under Clause (b), it is the duty of the Lokpal to call
for an explanation which is to be given by the public servant which is done with a view to
ascertain whether there is a prima facie case or not. Therefore, it is compulsory for the Lokpal
to seek the explanation of the public servant before ordering any sort of investigation.

The provision also states that “the seeking of explanation from the public servant before an
investigation shall not interfere, with the search and seizure, if any, required to be undertaken
by any agency” which is totally toothless as it is very clear from the section that unless the
Lokpal himself has authorised the investigation by a particular agency, it is not legal for the
agency to go for search and seizure under the law, and unless a proper explanation has been
sought by the Lokpal from the public servant the Lokpal is not allowed to proceed with
investigation and hence the Lokpal is bound to seek an explanation from the public servant.
As it is clear from the section, there is a clear contrast between these provisions and it is very
difficult to reconcile the two sections.

In the month of December 2013, the Lokpal and Lokayukta Act 2014 was finally passed by
the Parliament. The main objective of this particular act was to put a strict control on the acts
of corruption with the establishment of independent machinery in the Centre, which would be
called Lokpal and it will be receiving complaints in connection with the corrupt activities by
public servants and it will be the duty of the Lokpal only to ensure that proper investigation is
conducted into the matters and also in addition to this, wherever it is needed there must be
effective prosecution.
Special courts have been established to ensure that all these processes are completed within a
stipulated time period. It has also been made compulsory by the Act for every State to pass a
law within a given time period of one year to establish a body of Lokayukta at the level of the
State. However there is one problem with this provision and that problem is that the specific
details in relation to the Act have been left completely on the State.[vii] To tackle the
problems of corruption at the Central level this Act provides for the establishment of a body
called the Lokpal which would be responsible to look into the matters of investigation,
prosecution against the public officials.

The Act empowers the Lokpal to receive complaints regarding corruption against the Prime
Minister, Ministers, Members of Parliament (MPs), and officers of the central government,
and against functionaries of any entity that is completely or partially financed by the
government with an annual income which is beyond a specified limit.[viii]

It is clearly mentioned in the Act that on receiving a complaint against any public official,
officers from groups A, B, C or D being the sole exceptions, the Lokpal will be mandatorily
bound to order an inquiry concerning the matter. The Lokpal has an option with respect to the
execution of the enquiry, as in, whether the enquiry should be done by the Lokpal‟s own
enquiry system and at the same time the Lokpal also has the option of directing the Central
Bureau of Investigation or any other agency to do the inquiry. This inquiry is generally to be
finished within sixty to ninety days and then a proper report needs to be submitted to the
Lokpal.

When there are complaints which are specifically targeted towards the public servants of
group A,B,C or D, then under such circumstances the matter will be referred to the Central
Vigilance Commission for an initial inquiry and once the inquiry is done the report is to be
submitted to the Lokpal if the matter is in reference to public servants belonging to group A
and B but the CVC is authorised to continue with the CVC Act, 2003 if the matter is in
connection with the public servants who are in group C and D.[ix]

Once the report which is submitted after the inquiry is received by the Lokpal, the Lokpal
should make sure that the public servant is given a fair opportunity to present his side of the
case and he must be given the right to be heard and after hearing the public servant if the
Lokpal comes to the conclusion that on the face of it there is a case then the Lokpal can give
orders for the investigation to be carried out by the CBI or can also order for some
departmental inquiry into the same matter.
Usually the time period for the investigation to be finished is six months but under certain
circumstances this time period of six months can be extended to one year also and once the
investigation is complete, a proper report is to be submitted to the appropriate court and also
a copy of the same report must be sent to the lokpal.

SELECTION PROCEDURE FOR THE MEMBERS OF LOKPAL

The Lokpal consists of one Chairperson and eight members and these members are selected
through the screening of two committees and these committees are, Selection Committee and
Search Committee.

The Selection Committee has the core function of selection and final say in the matter and it
comprises of five prestigious office-bearers as members, viz, the Prime Minister, the Speaker
of the Lok Sabha, the Leader of Opposition in the Lok Sabha, the Chief Justice of India (CJI)
or a judge of the Supreme Court nominated by the CJI, and one eminent jurist, as
recommended by the other four members of the committee. Before selection by the
committee above, another group of seven members is constituted, called the Search
Committee. An essential function of this committee is to shortlist a panel of eligible
candidates for the post of Chairperson and members of the Lokpal, which is then put before
the Selection Committee. The Selection Committee then decides upon this proposed panel by
the Search Committee. A peculiar feature of the Search Committee and that of the Lokpal is
that, half of the total members of each should be persons belonging to the Scheduled Castes,
the Scheduled Tribes, Other Backward Classes, minorities and women.

SUPERINTENDENCE OF THE FUNCTIONING OF THE CBI

The Lokpal & Lokayukta Act provides that the Lokpal will have powers of
“superintendence” over the CBI besides envisaging that the Lokpal has powers to enquire or
investigate complaints under its jurisdiction, against any committee. But the real picture
showcases otiose nature of such provisions of the said Act due to lack of instrumentalities
that would affect the change proposed.
To some extent, the need for functional independence of the CBI has been catered to by a
change brought forth in the selection process of its Director, by this Act. Earlier, the CBI
Director was directly appointed by a committee, usually dominated by the ideologies and
emissaries of the ruling government; but now he is to be selected through a four member
Selection Committee comprising of the Prime Minister, the Speaker of the Lok Sabha, the
Leader of Opposition in the Lok Sabha, the Chief Justice of India (CJI) or a judge of the
Supreme Court nominated by the CJI. Also, the Act provides that the transfer of CBI officers
investigating cases referred by the Lokpal can be done only with the approval of the Lokpal.

However, such procedure only provides for a ten-per centre supervision of Lokpal over the
CBI; as the Central Government still controls the budget, appointment of other officials of the
CBI, and the receiving authority for the annual confidential reports of senior CBI officials,
making them vulnerable to governmental pressure.

A plethora of suggestions were made by civil society groups and awareness NGOs to enhance
the independence of CBI and efficiency of its investigation, all of which were discarded by
the government to be included in the Lokpal & Lokayukta Act. Proposals like budget to be
chargeable to the consolidated fund of India, appointment and removal of senior CBI officers
to require Lokpal approval and make Lokpal the receiving authority of for annual
confidential reports of officers working on cases referred by the Lokpal; so as to provide
complete financial as well as administrative supervision of Lokpal over the CBI.

LIMITATIONS

Power and Jurisdiction of the Lokayuktas in States

The controversial backlog of the Act involving State legislatures was the one that led to the
rejection of a previous Bill which in turn brought a revised Bill providing an option of Article
252 to be invoked and option was given to the States to have their own Lokpal Act.

The present Act mandates the setting up of Lokayuktas in each state within one year along
with the provision that State legislatures shall have the authority to determine the powers and
jurisdiction of the Lokayukta. This makes the situation crystal clear and the gives rise to the
apprehension of inefficient Lokayuktas with restricted jurisdiction in the fetters of the state
government‟s stewards adversely affecting the poor and marginalized through raging
corruption.

Laches Or Restrictions

Another limitation of the Act is envisaged in the following words that the Lokpal “shall not
inquire or investigate into any complaint, if the complaint is made after the expiry of a period
of seven years from the date on which the offence mentioned in such complaint is alleged to
have been committed.”

Though unreasonable delay by the plaintiff in instituting a suit or filing a complaint is a

ground for dismissal but the gist of the matter is that cases concerned with lokpal are usually
high-profile scams of the government bringing under its garb the highest office bearers which
are discovered with proper evidence only after one regime ends (five years or even seven
years) and a proposal is made that in the presence of concrete and corroborative evidence,
complaints should be entertained and worked upon by the Lokpal to ensure justice and so that
the purpose of the Act is served.

SUPREME COURT ON LOKPAL AND LOKAYUKTA

Supreme Court has pronounced several decisions regarding the institution of Ombudsman.
This heading analyses various case laws related to the institution.

1. Common Cause, A Registered Society v. Union of India & Ors.[x]

This case is a review petition to provide relief to pass an appropriate writ, order or orders to
direct the Parliament to draft a Bill for the enactment of a legislation to establish the
institution of Lokpal, or an alternative system similar to Ombudsman for checking and
controlling corruption at public, political and bureaucratic levels. The Solicitor General
brings to notice that efforts were made with no consensus on the proposed bill. It is a matter
which concerns the Parliament and the Court cannot do anything substantial in this matter.

2. Justice K. P. Mohapatra v. Sri Ram Chandra Nayak and Ors.[xi]

Retired Judge of the High Court of Orissa was appointed as the Lokpal by the Governor of
Orissa by issuing a notification. By a notification dated 26.11.1996, the Government of
Orissa appointed the appellant as the Lokpal with effect from the date on which he was sworn
in as such. After hearing the parties, the PIL was allowed and it was held that there was no
effective consultation with the Leader of the Opposition and that the consultation under
Section 3(1) of the Orissa Lokpal and Lokayukta Act was effective on reference to the
Governor, Chief Justice and Leader of the Opposition. The Court observed that there was no
consultation with the Chief Justice with regard to the name suggested by the Leader of the
Opposition. Therefore, appointment of the appellant as the Lokpal was void. That order is
under challenge in this appeal.

In the context of the aforesaid functions of the Lokpal and the required qualification of a
person who is to be appointed to hold such office, the word „consultation‟ used in Section 3 is
required to be interpreted. As

“(i) Consultation is a process which requires the meeting of minds between the parties
involved in the process of consultation on the material facts and points involved to evolve a
correct or at least satisfactory solution. There should be meeting of minds between the
proposer and the persons to be consulted on the subject of consultation. There must be
definite facts which constitute the foundation and source for final decision. The object of the
consultation is to render consultation meaningful to serve the intended purpose. Prior
consultation in that behalf is mandatory.

(ii) When the offending action affects fundamental rights or is to effectuate built-in insulation
as fair procedure, consultation is mandatory and non-consultation renders the action ultra
vires or invalid or void.

(iii) When the opinion or advice binds the proposer, consultation is mandatory and its
infraction renders the action or order illegal.

(iv) When the opinion or advice or view does not bind the person or the authority, any action
or decision taken contrary to the advice is not illegal, nor does it become void.

(v) When the object of consultation is only to apprise of the proposed action and when the
opinion or advice is not binding on the authorities or person and is not bound to be accepted,
the prior consultation is only directory. The authority proposing to take action should make
known the general scheme or outlines of the actions proposed to be taken be put to the notice
of the authority or the persons to be consulted; have the views or objections, take them into
consideration, and thereafter, the authority or person would be entitled or has/have authority
to pass appropriate orders or take decisions thereon. In such circumstances it amounts to an
action „after consultation‟.”

Applying the principle enunciated in the aforesaid judgment, it is apparent that the
consultation with the Chief Justice is mandatory and his opinion would have primacy. The
nature of the consultation with the Leader of the Opposition is to apprise him about the
proposal of selecting a person for the post and also to take his views on the said proposal.
However, the opinion rendered by the Leader of the Opposition is not binding on the State
Government and the Leader of the Opposition would have no power to recommend someone
else for the said post.

3. Sri Justice S. K. Ray v. State of Orissa and Ors.[xii]

The appellant was the Chief Justice of the Orissa High Court and retired on 5.11.1980. He
was appointed as the Lokpal on 17.8.1989 under Section 3 of the Orissa Lokpal and
Lokayukta Act, 1970. Prior to his appointment as Lokpal, he had also functioned as the
Chairman of the Commission of Enquiry into certain disputes involving the States of Tamil
Nadu, Kerala and some of their Ministers. Pursuant to the repeal of the Act by the Orissa
Lokpal and Lokayuktas [Repeal] Ordinance, 1992, which came into effect on 16.7.1992, he
ceased to hold the office of Lokpal. The said Ordinance was subsequently replaced by the
Orissa Lokpal and Lokayuktas [Repeal] Act, 1995. The appellant filed a writ petition before
the High Court contending that he had incurred certain liabilities in ceasing to hold the office
being ineligible for further employment under the State Government or for any other
employment under an office in any such local authority, corporation, Government Company
or society registered under the Societies Registration Act, 1860, which is subject to the
control of the State Government and which is notified by the Government in that behalf. He
claimed-

 Compensation for loss of salary for the remainder period of his tenure as Lokpal.

 Pension with effect from 16.7.1992 as per Rule 7 of the Orissa Lokpal (Conditions of
Service) Rules, 1984.

 Refund of the amount of pension deducted from his salary during the period
17.8.1989 to 16.7.1992, and
  Payment of encashment value of unutilised leave which accrued to him during the
period 17.8.1989 to 16.7.1992.

Of the four claims made by the appellant, the High Court held that the appellant was not
entitled to compensation for loss of salary for the remainder period of his tenure as Lokpal as
well as for payment of pension with effect from 16.7.1992. However, insofar as the
encashment of value of unutilised leave and the deduction of amount of pension during the
period from 17.8.1989 to 16.7.1992 were concerned, appropriate reliefs were given.

4. In Re: Under Article 317 (1) of the Constitution of India for enquiry and report on
the allegations against Dr. H.B. Mirdha, Chairman, Orissa Public Service
Commission[xiii]

Reference was made by the State Government to the Lokpal, Orissa. The Lokpal in his order
observed that in view of the provisions of Section 21 of the Orissa Lokpal and Lokayuktas
Act, 1985, the Lokpal was not authorised to investigate into the actions taken by the
Chairman or a member of the OPSC.

5. State of Gujarat and Anr. v. Hon‟ble Mr. Justice R .A. Mehta (Retd.) and Ors.[xiv]

Writ Petition was referred by two Judges challenging appointment of Respondent No. 1 to the
post of Lokayukta. Contention rose whether appointment of Respondent No. 1 could be held
to be illegal. In the State of Gujarat, post of Lokayukta had been lying vacant for a period of
more than nine years. The Governor had misjudged her role and had insisted that under
Gujarat Lokayukta Act, 1986, Council of Ministers had no role to play in the appointment of
Lokayukta and that she could so fill it up in consultation with the Chief Justice of Gujarat
High Court and the Leader of Opposition. Appointment of Lokayukta could be made by
Governor as Head of State only with the aid and advice of the Council of Ministers and not
independently as a statutory authority.

The recommendation of the Chief Justice suggested only one name in place of the panel of
names and was in consonance with the law laid down by the Court and there was no cogent
reason to not give effect to said recommendation. Objections raised by the Chief Minister
have been duly considered by the Chief Justice as well as by the Court and none of them were
tenable to the extent that any of them might be labelled as cogent reasons for the purpose of
discarding the recommendation of a name for appointment to the post of Lokayukta. Thus,
the process of consultation stood complete and in such a situation, the appointment could not
be held to be illegal and the appointment of the candidate was held to be legal, so that the
process of consultation for appointment was completed.

6. Justice Chandrashekaraiah (Retd.) v. Janekere C. Krishna and Ors. etc.[xv]

The matter in dispute was the appointment of Upa-Lokayukta. In the matter of appointment
of Upa-Lokayukta the advice tendered by the Chief Minister will have primacy and not that
of the Chief Justice of High Court and others. Under Karnataka Lokayukta Act, 1984
consultation is mandatory, Section 3(2)(a) and (b) when read literally and contextually admits
no doubt that the Governor of the State can appoint Lokayukta or Upa-Lokayukta only on the
advice tendered by the Chief Minister and that the Chief Justice of the High Court is only one
of the consultees and his views have no primacy. The Chief Minister is legally obliged to
consult the Chief Justice of the High Court and other four consultees, which is a mandatory
requirement. The various directions given by the High Court, is beyond the scope of the Act
and the High Court has indulged in a legislative exercise which is impermissible in law. The
Chief Minister committed an error in not consulting the Chief Justice of the High Court in the
matter of the appointment of Upa-Lokayukta. The appointment of Upa-Lokayukta is in
violation of Section 3(2)(b) of the Act since the Chief Justice of the High Court was not
consulted nor was the name deliberated upon before advising or appointing him as a Upa-
Lokayukta, consequently, the appointment as Upa-Lokayukta cannot stand in the eye of law
and he has no authority to continue to hold the post of Upa-Lokayukta of the State.
Appointment was declared invalid as the authority did not follow mandatory provisions.

COUNTRIES WITH THE PRESENCE OF THE OMBUDSMAN

The International Ombudsman Institute (IOI), established in 1978, is the only global
organisation for the cooperation of more than 150 Ombudsman institutions. In addition to its
periodic conferences the IOI fosters regional and international information exchange. The
International Ombudsman Institute is organised in regional chapters in Africa, Asia,
Australasia & Pacific, Europe, the Caribbean and Latin America, and North America. The
organisation has three working languages, English, French and Spanish.[xvi]
When we look throughout the world institution of ombudsman exist in countries which are
thrown light on few developed and developing countries where the institution is in existence
and is flourishing.[xvii]

 Sweden: It comprises 4 member offices comprising 1 chief and 3 members appointed

by the Swedish Parliament for 4 years. It can take suo motu action with jurisdiction
extending to all state authorities and institutions. It has no jurisdiction over any
member of Parliament. Recommendations made by it are not binding.

 New Zealand: This is a post appointed by the Governor-General. He oversees the

action of the Centre and local government agencies and ministries can initiate action
based on oral complaint. He has the power to investigate independently and submit
his recommendation to the concerned department head. If no action is taken, the
complaint is forwarded to the House of Representatives.

 UK: Here the ombudsman is called Parliamentary Commissioner. It is a position

appointed by the Prime Minister for a period of seven years. No suo motu action can
be initiated. Action can only be taken on complaints received on approval by a
member of parliament with jurisdiction extending to ministers and bureaucrats. There
is no specific eligibility for selection.

 Finland: He is a legal expert appointed for a term of 4 years. Legality of the

government, ministries, and the President along with courts and employees of public
bodies are looked into by the Ombudsman. It has the power to prosecute, reprimand,
guide and rebuke officials. Legislative and private company‟s affairs are outside its
jurisdiction.

 Hong Kong: Sends recommendation to the head of the department concerned and
then to legislative council in case of non- redressed. Opinion prevalent in the public
that more powers should be enshrined on the ombudsman.

 Indonesia: It is elected by the House of Representative based on nominations by the

President of the Country. Its jurisdiction includes both public offices and private
sector involved in administering public service.
CONCLUSION

In order to make sure that a nation should prosper it becomes very important that the
administrative wing of the nation is functioning properly and efficiently and at the same time
one key point to be noted is that there is no corruption in the administrative department of the
nation. Corruption is actually the deep rooted cause which is the biggest obstacle in the
development of a nation. In order to tackle this problem of corruption the institution of
ombudsman plays the most important role and in the Indian context this role is played by the
Lokpal.

The other point to be noted is that when the concept of ombudsman emerged at that point of
time it was made to tackle the problem of maladministration and inefficiency with corruption
just being a part of it but as time passed the problem of corruption grew to such an extent that
now the institution of ombudsman is considered to be made only for the problem of
corruption. This problem of corruption cannot be tackled only through legislation; a
concentrated and unified effort is required from the society as a whole. For corruption to
spread its root so deep into the system of any nation the citizens of the nation are equally to
be blamed because it is not only the administrative officials who are at the wrong side.

REFERENCES
[i]Lester B. Orfield , THE SCANDINAVIAN OMBUDSMAN ,Vol. 19, No. 1, 7
Administrative Law Review ,7,7 (1966), available at http://www.jstor.org/stable/40708529

[ii]Hing Yong Cheng ,The Emergence and Spread of the Ombudsman Institution, Annals of
the American Academy of Political and Social Science,Vol. 377, (1968), 20,20-30, available
at http://www.jstor.org/stable/1038138

[iii]Lokpal bill to cover PM, Press Trust of India, IBNLive, 21/11/2010, available at
http://ibnlive.in.com/news/lokpal-bill-to-cover-pm/135533-3.

[iv]Jason Burke, Lokpal bill to create Indian anti-corruption watchdog approved, The
Guardian, 18/12/2013, http://www.theguardian.com/world/2013/dec/18/lokpal-bill-indian-
anti-corruption-watchdog-approved

[v]Amrita Johri‟ Anjali Bhardwaj, and Shekhar Singh The Lokpal Act of 2014,An
Assessment ,49( 5), Economic and Political Weekly (2014) ,available
at http://www.epw.in/commentary/lokpal-act-2014.html
[vi]All about the Lok Pal Bill, PRS Legislative Research, available
at http://www.prsindia.org/pages/all-about-the-lok-pal-bill-137/

[vii] Ram Jethmalani, Many black holes in Lokpal Act, The Sunday
Guardian, http://www.sundayguardian.com/analysis/many-black-holes-in-lokpal-act

[viii]Nadim Asrar, Lokpal Bill: key provisions of the amended legislation, 18/12/2013,
available at http://www.ndtv.com/cheat-sheet/lokpal-bill-key-provisions-of-the-amended-
legislation-544801,last

[ix] Salient features of Lokpal bill, Published by DNA, 18/05/2013,

http://www.dnaindia.com/india/report-salient-features-of-lokpal-bill-1937413

[x]Common Cause, A Registered Society v. Union of India & Ors., (1999) 6 SCC 667

[xi]Justice K. P. Mohapatra v. Sri Ram Chandra Nayak and Ors ., (2002) 8 SCC 1

[xii] Sri Justice S. K. Ray v. State of Orissa and Ors, 2003 (1) SCR 434

[xiii] In Re: Under Article 317 (1) of the Constitution of India for enquiry and report on the
allegations against Dr. H. B.Mirdha , Chairman , Orissa Public Service Commission, 2009 (I)
OLR (SC) 995

[xiv] State of Gujarat and Anr. v. Hon‟ble Mr. Justice R .A. Mehta (Retd.) and Ors.,AIR
2013 SC 693

[xv]Mr. Justice Chandrashekaraiah (Retd.) v. Janekere C. Krishna and Ors. etc., AIR 2013
SC 726

[xvi]About the IOI, International Ombudsman Institute, available

at http://www.theioi.org/the-i-o-i/about-the-ioi

[xvii]Udit Misra, World Watch, I‟ll be watching you, Forbes India, available
at http://forbesindia.com/graphics/world-watch/ombudsman-in-countries-across-the-
globe/25362
 CHAPTER 9 - ADMINISTRATIVE TRIBUNALS

INTRODUCTION

In Administrative law, the term „tribunal‟ is used in a significant sense and refers to only the
adjudicatory bodies which lie outside the sphere of the ordinary judicial system. Technically
in India, the judicial powers are vested in the Courts which aims to safeguard the rights of the
individuals and promotes justice. Therefore, to institute an effective system of the judiciary
with fewer complexities, the judicial powers are delegated to the administrative authorities,
thus, giving rise to administrative tribunals or administrative adjudicatory bodies which holds
quasi-judicial features.

HISTORY OF TRIBUNALISATION

The concept of tribunalisation came into existence in India with the establishment of the
Income Tax Appellate Tribunal before the independence of the country. After independence,
a need was being felt for resolving administrative disputes with flexibility and speed. The
core objective of tribunalisation was to provide specialised and speedy justice to the people.

After the drafting of the Indian Constitution, several rights for the welfare of the individuals
were guaranteed by the Constitution. People have the right to speedy trials and of specialised
quality which cannot be delivered by the prevailing judicial system due to the overburden of
cases and appeals, technicalities in procedure etc.

Hence, the need for the inception of the administrative tribunals couldn‟t be ignored.

GROWTH OF ADMINISTRATIVE TRIBUNALS

The 42nd Amendment to the Constitution introduced Part XIV-A which included Article
323A and 323B providing for constitution of tribunals dealing with administrative matters
and other issues. According to these provisions of the Constitution, tribunals are to be
organized and established in such a manner that they do not violate the integrity of the
judicial system given in the Constitution which forms the basic structure of the Constitution.

The introduction of Article 323A and 323B was done with the primary objective of excluding
the jurisdiction of the High Courts under Article 226 and 227, except the jurisdiction of the
Supreme Court under Article 136 and for originating an efficacious alternative institutional
mechanism or authority for specific judicial cases.

The purpose of establishing tribunals to the exclusion of the jurisdiction of the High Courts
was done to reduce the pendency and lower the burden of cases. Therefore, tribunals are
organised as a part of civil and criminal court system under the supremacy of the Supreme
Court of India.

From a functional point of view, an administrative tribunal is neither an exclusively judicial

body nor an absolute administrative body but is somewhere between the two. That is why an
administrative tribunal is also called „quasi-judicial‟ body.

CHARACTERISTICS OF ADMINISTRATIVE TRIBUNALS

The following are the few attributes of the administrative tribunals which make them quite
disparate from the ordinary courts:

1. Administrative tribunals must have statutory origin i.e. they must be created by any
statute.

2. They must have some features of the ordinary courts but not all.

3. An administrative tribunal performs the quasi-judicial and judicial functions and is

bound to act judicially in every circumstance.

4. They are not adhered by strict rules of evidence and procedure.

5. Administrative tribunals are independent and not subject to any administrative

interference in the discharge of judicial or quasi-judicial functions.

6. In the procedural matters, an administrative tribunal possesses the powers of a court to

summon witnesses, to administer oaths and to compel the production of documents,
etc.
 7. These tribunals are bound to abide by the principle of natural justice.

8. A fair, open and impartial act is the indispensable requisite of the administrative
tribunals.

9. The prerogative writs of certiorari and prohibition are available against the decisions
of administrative tribunals.

CATEGORIES OF ADMINISTRATIVE TRIBUNALS

ADMINISTRATIVE TRIBUNALS FOR SERVICE MATTER [ARTICLE

323A]

Article 323A provides the establishment of administrative tribunals by law made by

Parliament for the adjudication of disputes and complaints related to the recruitment and
conditions of service of Government servants under the Central Government and the State
Government. It includes the employees of any local or other authority within the territory of
India or under the control of the Government of India or of a corporation owned or controlled
by the Government.

The establishment of such tribunals must be at the centre and state level separately for each
state or for two or more states. The law must incorporate the provisions for the jurisdiction,
power and authority to be exercised by tribunals; the procedure to be followed by tribunals;
the exclusion of the jurisdiction of all other courts except the Supreme Court of India.

TRIBUNALS FOR OTHER MATTERS [ARTICLE 323B]

Article 323B empowers the Parliament and the State Legislature to establish tribunals for the
adjudication of any dispute or complaint with respect to the matters specified under clause (2)
of Article 323B. Some of the matters given under clause (2) are a levy, assessment, collection
and enforcement of any tax; foreign exchange and export; industrial and labour disputes;
production, procurement, supply and distribution of foodstuffs; rent and it‟s regulation and
control and tenancy issues etc. Such a law must define the jurisdiction, powers of such
tribunals and lays down the procedure to be followed.
In the landmark case of L. Chandra Kumar v. Union of India[1], the court reached various
conclusions as to jurisdictional powers of the tribunal constituted under Articles 323A and
323B. The Supreme Court struck down clause 2(d) of Article 323A and clause 3(d) of Article
323B on the ground that they excluded the jurisdiction of the High Courts and the Supreme
Court under Article 226/227 and 32 respectively.

The SC ruled that the tribunals created under Article 323A and 323B would continue to be
the courts of the first instance in their respective areas for which they are constituted. The
litigants are not allowed to approach the High Courts directly by overlooking the jurisdiction
of the concerned tribunal.

No appeal for the decision of the tribunal would lie directly before the Supreme Court under
Article 136 but instead, the aggrieved party would be entitled to move the High Court under
Article 226 and 227 and after the decision of the Division Bench of the High Court, the party
may approach the Apex Court under Article 136.

DISTINCTION BETWEEN COURTS AND TRIBUNALS

Courts Administrative Tribunal

A Court of law is a part of the traditional The administrative tribunal is an agency created by a
judicial system. statue endowed with judicial powers.

A Court of law is vested with general It deals with service matters and is vested with limited
jurisdiction over all the matters. jurisdiction to decide a particular issue.

It is strictly bound by all the rules of evidence It is not bound by the rules of the Evidence Act and
and by the procedure of the Code of Civil the CPC unless the statute which creates the tribunal
Procedure. imposes such an obligation.

It is presided over by an officer expert in the It is not mandatory in every case that the members
law. need to be trained and experts in law.

The decision of the court is objective in nature The decision is subjective i.e. at times it may decide
primarily based on the evidence and materials the matters taking into account the policy and
produced before the court. expediency.

It is not obligatory to follow precedents and principle

It is bound by precedents, the principle of res
of res judicata but the principle of natural justice must
judicata and the principle of natural justice.
be followed.

It can decide the validity of legislation. It cannot decide the validity of legislation.

The courts do not follow investigatory or

Many tribunals perform investigatory functions as
inquisition functions rather it decides the case
well along with its quasi-judicial functions.
on the basis of evidence.

THE ADMINISTRATIVE TRIBUNALS ACT, 1985

In pursuance of the provisions in Article 323A, Parliament passed the Administrative
Tribunal Act, 1985, providing for all the matters falling within the clause(1) of Article 323-A

According to this Act, there must be a Central Administrative Tribunal (CAT) at the centre
and a State Administrative Tribunal (SAT) at the state level for every state.

The tribunal is competent to declare the constitutionality of the relevant laws and statutes.
The Act extends to, in so far as it is related to the Central Administrative Tribunal, to the
whole of India and in relation to the Administrative tribunals for states, it is applicable to the
whole of India except the State of Jammu and Kashmir (Section 1).

OBJECTIVE FOR THE ESTABLISHMENT OF ADMINISTRATIVE

TRIBUNALS

The main purpose of the introduction of this act was :

1. To relieve congestion in courts or to lower the burden of cases in courts.

2. To provide for speedier disposal of disputes relating to the service matters.

APPLICABILITY OF THE ACT

According to Section 2 of the Administrative Tribunals Act, 1985, the act applies to all
Central Government employees except –

 The members of the naval, military or air force or any other armed forces of the
Union

 Any officer or servant of the Supreme Court or any High Courts

 Any person appointed to the secretariat staff of either House of the Parliament.

COMPOSITION OF THE TRIBUNALS AND BENCH

Section 4 of this Act describes the composition of the tribunals and bench. Each tribunal shall
consist of a Chairman, Vice Chairman, Judicial and Administrative members. Every bench
must include at least one judicial and one administrative member. The benches of the Central
Tribunal shall ordinarily sit at New Delhi, Allahabad, Calcutta, Madras, Bombay and such
other place as the Central Government specifies. The Chairman may transfer the Vice
Chairman or other members from one bench to another bench.

QUALIFICATION AND APPOINTMENT OF MEMBERS

Section 6 of the Administrative Tribunals Act, 1985, lays the provisions specifying the
qualifications and appointment of the members of tribunals.

Chairman: To be appointed as a chairman, a person must have the following qualifications-

 He is or has been a judge of a High Court or

 He has held the office of Vice Chairman for two years or

 He has held the post of secretary to the Government of India or

 He has held any other post carrying the scale pay of secretary.

Vice-Chairman: A person is qualified for the post of Vice-Chairman if he-

  Is or has been a judge of the High Court or

 Has for 2 years held the post of Secretary to the Government or holding any other post
carrying the same pay scale under the Central or State Governments or

 Has held for 5 years the post of an Additional Secretary to the Government of India or
any other post carrying the scales of pay of Additional Secretary.

Judicial Member: A person to be appointed as a judicial member must-

 Be or have been a judge of the High Court or

 Have been a member of Indian Legal Service and has held a post in Grade I of the
service for at least 3 years.

Administrative Member: A person to be appointed as an Administrative member must-

 Have held the post of an Additional Secretary to the Government of India or another
equivalent post for at least 2 years, or

 Have held the post of a Joint Secretary to the Government of India or other equivalent
post, or

 Have adequate administrative experience.

The Chairman, Vice-Chairman and other members shall be appointed by the President. The
Judicial Members shall be appointed by the President with the consultation of the Chief
Justice of India. The Chairman, Vice-Chairman and other members of the State Tribunal shall
be appointed by the President after consultation with the Governor of the concerned state.

TERM OF OFFICE

According to Section 8 of the Act, the Chairman, Vice-Chairman and other members of the
tribunal shall hold the office for a term of 5 years or until he attains-

1. Age of 65 years, in the case of the Chairman or Vice-Chairman

2. Age of 62 years in the case of other members

RESIGNATION AND REMOVAL

Section 9 of the Act prescribes the procedure of resignation by any member and removal of
any member.

The Chairman, Vice-Chairman or other members may resign from his post by writing to the
President.

They shall be removed from their office only by an order made by the President on the
ground of proved misbehaviour or incapacity after an enquiry made by a judge of the
Supreme Court. They shall have the right to be informed of the charges against them and
shall be given a reasonable opportunity of hearing. The Central Government may make rules
to regulate the procedure for the investigation of the charges against them.

JURISDICTION OF CENTRAL TRIBUNAL

Section 14 states that the Central Tribunal from the day of the appointment shall exercise all
the jurisdiction, powers and authority in relation to the following matters which were within
the jurisdiction of other courts (except the Supreme Court) before the enactment of this Act:

1. Recruitment of any civil service of Union or All India service or civil post under the
Union or civilian employees of defence services;

2. All service matters of the above-mentioned employees, and also of employees of any
local or other authority within the territory of India or under the control of the
Government of India or any corporation or society owned or controlled by the
Government;

3. All service matters of such persons whose services have been placed by the State
Government or any local or other authority or any corporation at the disposal of the
Central Government.
PROCEDURE AND POWERS OF TRIBUNALS

Section 22 of the Administrative Tribunals Act, 1985 lays down the powers and procedure of
tribunals discussed below-

1. A tribunal is not bound to follow the procedure laid down by the Code of Civil
Procedure, 1908. It has the power to regulate its own procedure but must abide by
the principle of natural justice.

2. A tribunal shall decide the applications and cases made to it as rapidly as possible and
every application shall be decided after scrutinizing the documents and written
submissions and perceiving the oral arguments.

3. Tribunals have the same powers as vested by the civil courts under the Code of Civil
Procedure, 1908, while trying a suit, with regard to the following subject-matter-

4. Summoning and enforcing the attendance of any person and examining him on oath;

5. Production of documents;

6. Receiving evidence on affidavits;

7. Ask for any public record or document from any office under Section 123 and 124 of
the Indian Evidence Act, 1872;

8. Issuing commissions for the examination of witnesses and documents;

9. Reviewing its decisions;

10. Deciding the case ex-parte;

11. Setting aside any order passed by it ex-parte;

12. Any other matter prescribed by the Central Government.

13. Leading Case Laws

CASE: S.P. Sampath Kumar v. Union of India[2]

Facts: The constitutional validity of the Administrative Tribunals Act, 1985, was
predominantly challenged on the ground that this Act excludes the jurisdiction of High
Courts under Articles 226 and 227 with regard to service matters and hence, destroyed the
concept of judicial review which was an essential feature of the Indian Constitution.

Judgment: A five-Judge Bench of the Court upheld the validity of the Act except Section
6(1)(c). The court held that although this Act has excluded the jurisdiction of judicial review
exercised by the High Courts in the service matters it has not entirely excluded the concept of
judicial review. The jurisdiction of the Supreme Court under Article 32 and 136 has not been
excluded by this Act and kept unscathed.

Thus, there still exists an authority where matters of injustice can be entertained by judicial
review. The judicial review which is the part of the basic structure of the Indian Constitution
can be taken away from a particular area only if an alternative effectual institutional
mechanism or authority is provided.

However, Section 6 (1)(c) of the Act was held to be unconstitutional as it gave unrestricted
power to the Government to appoint the Chairman, Vice-Chairman and other members of the
tribunals. These appointments must be made by the Government in a meaningful and
effective manner only after consulting the Chief Justice of India.

The court recommended that the term of 5 years prescribed under the Act for Chairman,
Vice-Chairman and other members of the tribunal is not rational because it would act as
dissuasion for the good and generous people to accept the job in the tribunal and should,
therefore, be reasonably extended.

The directions given by the Supreme Court came into effect through the Administrative
Tribunals (Amendment) Act, 1987.

CASE: Union of India v. R. Gandhi, President, Madras Bar Association[3]

Facts: The constitutionality of the National Company Law Tribunal (NCLT) and National
Company Law Appellate Tribunal (NCLAT) on the following grounds-

1. Parliament does not have authority to vest the judicial functions in any tribunal that
have been traditionally performed by the High Courts since so long.
 2. Transferring the entire company jurisdiction of the High Court to the tribunal are
violative of the doctrine of Rule of Law, Separation of Powers and Independence of
the Judiciary.

3. The various provisions of Part 1B and 1C of the Companies Act are defective and
unconstitutional, being in breach of constitutional principles of Rule of Law,
Separation of Powers and Independence of the Judiciary.

Judgment: the court upheld the constitutionality of NCLT and NCLAT in exercising the
powers and jurisdiction of the High Court subject to necessary changes to be made in
the Companies Act, 1956 as amended in 2002, through suitable amendments

The court acknowledged and upheld the constitutional power of the Parliament to constitute
tribunals for adjudication of disputes. The legislative competence of Parliament to provide for
the creation of courts and tribunals can be traced to Article 245, 246 and 247 of the
Constitution read with various entries in the Union List and the Concurrent List which is in
no way affected or controlled by Article 323A or 323B of the Constitution.

The court further added that it cannot be assumed that constitution of tribunals and
transferring judicial powers per se infringe the rule of law, separation of powers and
independence of the judiciary because the Constitution enables both courts and tribunals to
exercise judicial powers.

What matters the most is whether the constituted tribunals respect and maintain the principles
of separation of powers, rule of law and independence of the judiciary. The constitution of
NCLT and NCLAT must be subject to judicial review so that the court in the exercise of
judicial review look into the matter to check if these principles are compromised by such
tribunalisation and may interfere in between to preserve the same.

ADVANTAGES OF ADMINISTRATIVE TRIBUNALS

The concept of administrative tribunals was introduced because it has certain advantages over
ordinary courts. Few of them are mentioned below-

 Flexibility: The introduction of administrative tribunals engendered flexibility and

versatility in the judicial system of India. Unlike the procedures of the ordinary court
 which are stringent and inflexible, the administrative tribunals have a quite informal
and easy-going procedure.

 Speedy Justice: The core objective of the administrative tribunal is to deliver quick
and quality justice. Since the procedure here is not so complex, so, it is easy to decide
the matters quickly and efficiently.

 Less Expensive: The Administrative Tribunals take less time to solve the cases as
compared to the ordinary courts. As a result, the expenses are reduced. On the other
hand, the ordinary courts have cumbrous and slow-going, thus, making the litigation
costly. Therefore, the administrative tribunals are cheaper than ordinary courts.

 Quality Justice: If we consider the present scenario, the administrative tribunals are
the best and the most effective method of providing adequate and quality justice in
less time.

 Relief to Courts: The system of administrative adjudication has lowered down the
burden of the cases on the ordinary courts.

DRAWBACKS OF ADMINISTRATIVE TRIBUNALS

Although, administrative tribunals play a very crucial role in the welfare of modern society,
yet it has some defects in it. Some of the criticisms of the administrative tribunal are
discussed below-

 Against the Rule of Law: It can be observed that the establishment of the
administrative tribunals has repudiated the concept of rule of law. Rule of law was
propounded to promote equality before the law and supremacy of ordinary law over
the arbitrary functioning of the government. The administrative tribunals somewhere
restrict the ambit of the rule of law by providing separate laws and procedures for
certain matters.

 Lack of specified procedure: The administrative adjudicatory bodies do not have any
rigid set of rules and procedures. Thus, there is a chance of violation of the principle
of natural justice.
  No prediction of future decisions: Since the administrative tribunals do not follow
precedents, it is not possible to predict future decisions.

 Scope of Arbitrariness: The civil and criminal courts work on a uniform code of
procedure as prescribed under C.P.C and Cr.P.C respectively. But the administrative
tribunals have no such stringent procedure. They are allowed to make their own
procedure which may lead to arbitrariness in the functioning of these tribunals.

 Absence of legal expertise: It is not necessary that the members of the administrative
tribunals must belong to a legal background. They may be the experts of different
fields but not essentially trained in judicial work. Therefore, they may lack the
required legal expertise which is an indispensable part of resolving disputes.

CONCLUSION

It can be concluded that in the present scenario, the administration has become an important
part of the government as well as the citizen‟s life. Due to this increasing role, it is important
to establish a competent authority for the redressal of people‟s grievances and adjudication of
the disputes. Therefore, the concept of administrative tribunals was emerged and is
dynamically flourishing in India holding certain flaws and strengths.

REFERENCES
1. AIR 1997 SC 1125

2. 1987 SCR (3) 233

3. 2010 6 SCR 857

4. The Administrative Law by I.P. Massey

5. The Administrative Tribunal Act, 1985