II YEAR OF 3 YEAR LL.

B
SEMESTER - IV
EVEN SEMESTER

Page 1 of 222
SUBJECT : ADMINISTRATIVE LAW
SUBJECT CODE : TA4B

Page 2 of 222
 SYLLABUS
TA4B - ADMINISTRATIVE LAW
Unit - I Introduction to Administrative Law

Definition, Nature, Scope - Origin and Development of Administrative Law in U.K.,

U.S.A., France and India -Sources -Administrative Law and Constitutional Law-. Rule of Law
Concept, Evaluation of Dicey's concept of Rule of Law, Modern conception of Rule of Law,
Rule of Law in U.K., U.S.A. and India, Rule of Law vis-à-vis Administrative Law- Doctrine of
Separation of Powers – Meaning, Origin, Montesquieu's Doctrine of Separation of Powers,
System of Checks and Balances, Position in U.K., U.S.A., and India-. Parliamentary Sovereignty
in U.K., Limited Legislative Powers in U.S.A. and India- Classification of Administrative
Action.

A. Nature of Powers-Executive, Legislative and Judicial

B. Legislative Function-Quasi Legislative Functions -Administrative Directions.
C. Judicial Function – Quasi Judicial Functions – Tribunals and Administrative Justice.
D. Executive Function - Ministerial Functions and Discretionary Functions.
Unit - II Delegated Legislation

Meaning, Nature, Origin, Development and Growth of Delegated Legislation, Types of

Delegated Legislation and Constitutionality of Delegated Legislation-Delegated Legislation and
Conditional Legislation, Sub-Delegation-Restraints on Delegation of Legislative Power,
Doctrine of Excessive Delegation - Control over Delegated Legislation – Judicial, Procedural
and Legislative Control - Administrative Directions and Delegated Legislation.

Unit - III Procedural Fairness and Judicial Review

Principles of Natural Justice-Concept, Parameters and Application of the Principles of

Natural Justice-Rule against Bias-Audi Alteram Partem or the Rule of Fair Hearing - Meaning,
Object, Ambit and Ingredients of Fair Hearing, Institutional Decision, Post-Decision Hearing-
Reasoned Decisions- Exceptions to the Rule of Natural Justice-Effects of Breach of Natural
Justice.

Administrative Process and Judicial Review -Meaning and need for Judicial Review-
Scope of Judicial Review, Jurisdiction of the Supreme Court -Writ Jurisdiction-Appeal by
Special Leave (Art. 136)-Scope and Object of Article 136-Jurisdiction of the High Court-Judicial
Review of Administrative Action through Writs-Scope of the Writ Jurisdiction -Against whom
the Writ Lies-Territorial extent of Writ Jurisdiction - Relief against an Interim Order – Interim
Relief (Art. 226(3)]-Locus-Standi-Kinds of Writ -Grounds for issue of Writs-Principles for the
Exercise of Writ Jurisdiction, Alternative Remedy-Laches or Delay-Res Judicata-Public Interest
Litigation and Locus-Standi-Doctrine of Legitimate Expectation and Doctrine of Proportionality,

Page 3 of 222
 Statutory Remedies- Injunction- Declaration against the Government - Exclusion of Civil
Suits

Privileges and Immunities of Government in Legal Proceedings Privilege to Withhold

Documents - Miscellaneous Privileges of the Government-Notice, Limitation, Enforcement of
Court Order-Binding nature of Statutes over the States Action-Promissory Estoppel-Right to
Information.

Judicial Control of Administrative Discretion -Meaning, Nature and Need of

administrative Discretion -Ground and Extent of Judicial Review -Fundamental Rights and
Discretionary Powers.

Liability of the State - Liability of the State in Torts and Contracts

Unit - IV Ombudsman, Lokpal, Lokayukta and Central Vigilance Commission

Meaning, Object, Main characteristics, Need and Utility-Origin and Development of the
Institution -Ombudsman in New Zealand Ombudsman in England (Parliamentary
Commissioner)-Ombudsman in India -Lokpal-Lokayukta in States-Central Vigilance
Commission

Unit - V Administrative Tribunals and Public Undertaking

Administrative Tribunals- Meaning, Nature, Main characteristics, Origin and

Development (U.S.A., U.K. and India)-Franks Committee Tribunal and Court, Similarity and
Difference-Reason for growth of Administrative Tribunals-Merits and Demerits of
Administrative Tribunal-Procedure and Powers of Administrative Tribunal (U.K., U.S.A. and
India)-Tribunal under Constitution -High Court's Superintendence over Tribunals-Appeal to
Supreme Court by Special Leave-Working of the Administrative Tribunal-Administrative
Tribunals under Administrative Tribunals Act, 1985-Administrative Procedure Act in U.S.A.-
Domestic Tribunal.

Public Undertaking- Object, Importance, Characteristics, Classification, Reason for the

growth-Working of Public Corporations Rights, Duties and Liabilities of Public Corporations-
Controls over Public Corporations, Government Control, Parliamentary Control, Judicial
Control, Public Control-Role of Ombudsman in Public Undertaking.

Books for Reference

1. M.P. Jain and S.N. Jain : Principles of Administrative Law

2. S.P. Sathe : Administrative Law
3. I.P. Massey : Administrative Law
4. C.K. Takwani : Administrative Law
5. Kailash Rai : Administrative Law

Page 4 of 222
 6. Wade : Administrative Law
7. De Smith : Administrative Law
8. Foulkes : Administrative Law
9. Indian Law Institute : Cases and Material of Administrative Law
10. Markose : Judicial Control of Administrative Action
11. Griffith and Street : Administrative Law
12. Report of the Law Commission : First Report, Second Report, Fourteenth Report
13. Report on the Committee of Minister's Power : Franks Committee Report.
********************************

Page 5 of 222
 ADMINISTRATIVE LAW

UNIT – 1

INTRODUCTION TO ADMINISTRATIVE LAW

ADMINISTRATIVE LAW – DEFINITION- SCOPE AND DEVELOPMENT.

Definition:
Administrative law deals with law relating to administration. It is the basic foundation of
administration. According to Holland and Maitland, administrative law is part of Constitutional
law. The general principles relating to the organisation, powers and functions of the organs of the
State namely Legislative, Executive and Judicial and their relationship are, inter alia, dealt with,
in the Constitution.

Administrative law determines the organisation powers and functions of the Administrative
authorities (Wade & Philips). It includes the matters relating to civil services, public
departments, public corporations, local authorities and other statutory bodies exercising quasi-
judicial functions and the law governing Judicial review of administrative action. As Jennings
rightly points out, the subject matter of administrative law is "Public Administration".

Garner's definition: Administrative law is:

i) a study of institutions and administrative process ,
ii) the source of governmental legal powers,
iii) provisions or methods to deal with persons, grievances & appropriate remedies,
iv) the public corporations and
v) administration of local government & general principles applicable to local authorities.

Nature & Scope:

Administrative law mainly deals with the powers & duties of administrative authorities, and the
various remedies available to affected persons. Under Welfare State, there is a tremendous
increase in State activities in keeping with the technological & scientific developments.

Page 6 of 222
With the increase in State activities, grew the necessity to exercise powers: the administrative
and executive powers were enlarged, delegated legislation also developed in the form of rules,
regulations, bye-laws, notifications etc. Administrative Tribunals started exercising judicial
functions to resolve disputes. The Administrative authorities are empowered with discretionary
powers. If these are properly used, there will be the welfare state. If abused there will be
totalitarian state (Lord Dennings).

Hence, administrative law defines and demarcates these powers and also provides for remedies
to the affected persons, when there is abuse. This exercise of considerable power is the main
cause for growth of administrative law. The trend is to reconcile freedom and justice of persons,
with the necessities of implementing social and economic policies. In this regard, liberty and
personal freedoms are to be safeguarded within the frame work of the Constitution of India.

In this context, judicial review of administrative action, prevention of misuse or abuse of power
and provisions for suitable remedies form the basic principles of administrative law. It is true to
say with Bernard Schwartz, that "the goal of administrative law is to ensure that the
individual and the State are placed on a plane of equality before the Bar of Justice".

Reasons for growth and development:

Many reasons account for the sudden growth of administrative law. The main reasons are:-
i) The age-old laissez faire, gave way to a positive policy under Welfare State to perform many
duties and functions by the State.

ii) Legislative processes were rigid and could not be changed except by amendment by the
legislature. Under delegated legislation executive started making rules, regulations, bye-laws etc,
thus it gave flexibility.

iii) As judicial system was extensive, slow, complex and over-burdened, the speedy methods of
disposal of disputes got recognition as people found them to be quick, in-expensive and useful.
This led to the constitution and working of a large number of tribunals and quasi judicial bodies.

Page 7 of 222
iv) The evolving system of administrative law was more "functional". It was not theoretical or
technical or legalistic and hence administrative authorities could solve complex problems.

v) The administrative bodies or authorities started taking preventive measure in suitable

circumstances, e.g. in licensing, fixing of minimum wages, rate fixing, etc. Thus, it was better for
authorities to take measures to prevent adulteration of food rather than allowing adulteration by
the wrong-doer, to be sued later by the affected-persons.

vi) Authorities took effective step to enforce the measures and suspend, or cancel licenses, or in
suitable cases destroy articles i.e., narcotic drugs etc., following the Principles of Natural Justice.

These were the main reasons that gave impetus to administrative law to grow fast, especially
during the present century.

Historical sketch of the growth of Administrative Law:

i) U.K. :
According to Dicey "In England, we know nothing of administrative law and we wish to know
nothing about it". Though Dicey had much disregard, Maitland and others were of the view that
administrative discretion and administrative justice had already made their way into England. Of
course, Dicey changed his view, and, later admitted that Parliament had conferred quasi-judicial
authority on administrative bodies and hence, there was administrative law-operating.

Dicey :
Dicey explained the "Droit Administratiff” (French Administrative law) and compared it with
the “Rule of Law” of England. In his masterpiece "Introduction to the study of the Law of the
Constitution", he gave a brilliant explanation to the concept of “Rule of Law” and contrasted that
with the Administrative Law of France, and in this exercise, administrative law became
insignificant. Robson's book on Justice and Administrative law, made the study of this subject
more interesting in England.

Page 8 of 222
Apart from these developments, Lord Hewart's book 'New Despotism' exposed the dangers of
delegated legislation and forced the British Govt. to appoint the Donoughmore Committee which
suggested inter alia, to set up a select Committee on statutory instruments. This Committee
published its report in 1932.

Allens book 'Law & Order', 1945 was a critical appraisal of the executive exercise of power.
Besides, Statutory Instruments Act, 1946 and the Crown Proceedings Act, 1947 gave the
individual, better protection against the arbitrariness of the Executive. Abuse of executive power
is another aspect. The “Crichel Down Affair”, forced the Government, to appoint the Franks
Committee in 1955, and, on the basis of this "The Tribunals and Inquiries Act" was passed in
1958. This deals with the procedures to be followed by every administrative body or agency.

ii) U.S.A:
Though the origin of administrative law in the USA can be traced to the year 1789, still it is with
the passing of the Commerce Act of 1877, that it took a definite shape. Authoritative writings
like Franks Comparative Administrative Law, 1911; Ernst Freund's Case book on Administrative
law gave much impetus.

A Special Committee appointed in 1933, Report of Roscoe Pound (1933) & Attorney General's
Committee Report, 1939, paved the way for the enactment of Administrative Procedures Act,
1946.The rules and the procedures provided for in this Act, should invariably followed by all
administrative agencies and bodies, as otherwise the act of the agency will be quashed as ultra
vires by the Courts in the U.S.

(iii) FRANCE:
Droit Administratiff:
1) French Administrative Law had some peculiar features, alien to English system of “Rule of
law”, as enunciated by Dicey. It was Dicey who made a reference to the French system in his
masterpiece "Introduction to the study of the Constitution" in 1885. He had focused his attention
on two peculiarities of the French system:

Page 9 of 222
(1) The Government’s special rights & privileges against the individual's rights; and
(2) Under separation of powers, it had kept the Government officials free from the jurisdiction of
the Courts. The weight was in favour of administration. The rules of procedure followed by the
Courts were not followed by the Tribunals. Viewed from Dicey's angle there was no protection
to the ordinary citizen, in French system.

i) Conseil d' etat.

This is the Council of State (This was founded by Napolean in 1799). It is the supreme
Administrative Court of Appeal. It has certain subordinate administrative courts called 'Conseil
de prefecture' (Courts of the prefects). They are adjudicatory and consultative bodies.

Composition:
It has executive officials as presiding officers: They are selected by competitive examinations
and are given special training. The Conseil d’etat decides its jurisdiction, and procedures are laid
down by it in the form of doctrines. It is also an adviser to the Govt. It has developed a spirit of
independence. It has powers to execute its judgments directly. According to the Reform of 1900,
an aggrieved citizen who receives no reply from Government may go in appeal to the Conseil
d'etat.

Its independence and Jurisdiction are evident from a famous case. Andre Canol was convicted by
a Military Court. On application by the accused, the Couseil d’ etat held that there was a
departure from the criminal code. The President De Gaulle tried to interfere but in vain. Today in
France there are five sections. Four are Administrative and one is judicial. Each is headed by a
President.

Jurisdiction:-
The lower tribunals have jurisdiction over:-
a) Disputes between citizen and Government departments
b) Matters of appointment, promotion and disciplinary action of Government officials and
all administrative matters. It has no Jurisdiction over Magistrates and prosecutors.

Page 10 of 222
2. The Conseil d’ etat has revisional jurisdiction over the lower tribunals in respect of errors of
law, abuse of power, mala fides, failure to observe the Principles of Natural Justice etc. It may
strike down the orders of the Government officials.

In Barel's case (1954), Minister's order not to allow certain candidate to take the examination
was quashed by the Conseil d' Etat.

Assessment:
To the French citizens, the Conseil d' Etat is a bulwark (protection) against the violation of their
rights. It has provided security to the citizens.

Apeal :
There is no appeal from the highest conseil to any Court.

Conclusion:
The Conseil d' Etat is an unique institution: Its independence and jurisdiction account for its
success. It protects the right of the citizens against abuse or excess of administrative powers etc.

(iv) INDIA:
Historically it may be possible to trace the existence of and the application of Administrative law
to ancient India, and to the concept of Dharma. The King and the administrators followed
Dharma which was more comprehensive than Rule of law. During the period of the East India
Company and later under British regime many Acts, were made to increase governmental power.
The modern system started with Stage Carriage Act 1861, under which the system of granting
license was initiated.

Then followed a series of enactments to enlarge the powers of the Executive authorities :
Bombay Port Trust Act (1879), The Opium Act (1878), The Explosives Act 1884, The Arms Act
(1878), The Dramatic Public Performance Act (1876), Companies Act (1850) etc.

Page 11 of 222
The era of judicial control started with the establishment of Supreme Court at Calcutta, Bombay,
and Madras. Many enactments in the field of Health, Labour, Public safety, and Morality,
Transportation and Communication, Defence etc, were made in the present century until 1947
when India became independent.

Modern system:-
The Modern system of Administrative Law started with the inauguration of the Constitution of
India, and, the establishment of the Supreme Court of India at New Delhi. The philosophy of
Welfare State envisaged in the Constitution, ushered in, new dimensions of growth in the
social, economic and political fields.

The ownership and control of material resources of the society should be so distributed as best to
sub- serve the common good of the community and the economic distribution should not
result in concentration of wealth in the hands of a few individuals (Art. 39 of the Constitution),
became the objective of Welfare State. Since independence, a large number of enactments have
been made. New administrative agencies and bodies have been brought into existence in addition
a number of Administrative Tribunals have been established.

Provisions are made in the Constitution (Art. 32 & 226) empowering the Supreme Court and the
High Courts in India to issue writs, as Constitutional remedies. This is the effective part of
Judicial control of administrative action in India. The recognition of Public Interest Litigation
(PIL) by the Supreme Court in the Judges Transfer case (1981), Bandhua Mukthi Morcha
case (1984), Hawala case etc., added a new dimension and since then PIL is gaining ground, as
a process of participative justice.

Administrative Law in India has grown considerably during these decades in the fields of
delegated legislation, Rule of Law, Administrative Tribunals, Judicial control of administrative
action and remedies, Liability of the Government, Public Corporation and Ombudsman.

Page 12 of 222
The Lokpal and Lokayuktas Act, 2013 defines Lokpal: ‘As from the commencement of this Act,
here shall be established, for the purpose of making inquiries in respect of complaints made
under this Act, an institution to be called the “Lokpal’.

The objective is stated thus:

to provide for the establishment of the institution of Lokpal to inquire into allegations of
corruption against certain public functionaries and for matters connected therewith or
incidental thereto.

It is gratifying to note in many States in India, Lokayukta institution is effectively and efficiently
operating and the credit goes to all those officers who have honestly and sincerely discharging
their functions. With all these developments, Administrative law has grown considerably and is
recognised as an independent branch for study and is distinguished from Constitutional Law.

SOURCES OF ADMINISTRATIVE LAW:

1. Statutes
Statute law is, then, a well high exclusive source of Administrative power. The term covers both
Act of parliament and delegated legislation. Act of parliament comprise public general Acts and
private or local Acts.
Delegated of Parliament comprise public general Acts legislation, includes statutory rules and
orders. Acts of parliament fall into two categories which may be conventionally termed
constituent Acts and enabling Act, but some Acts deal with both constitution and power. In short,
we can say statues are one of the important sources of Administrative law.

2. Constitution
The constitution of India deals with formulation of the executive, the powers of the executive
during peace and emergency times.
Administrative law is concerned solely with the Administrative acts or either the administrator or
of quasi judicial bodies. Now the methods by which such acts are interfered with are by the use
of the prerogative or common law writs, especially by the writs of certiorari, mandamus and

Page 13 of 222
prohibitions. These writs are issued only by the Supreme Court and High Courts in India under
Articles 32 and 226 of the constitution of India.

This jurisdiction excludes ordinary courts. Very civil or criminal proceedings in the land.
Because those proceedings carry with them the safeguards provided by statute of the appeal,
revision and review. Hence, it is clear that these writs are not available against the judicial
proceedings of the courts.

The constitution of India also provides under Article 299 and 300, the contractual and tortious
liability of the government servants.

*****

ADMINISTRATIVE LAW AND CONSTITUTIONAL LAW:

"Administrative law is a part of constitutional law. It has become an independent branch of study
only recently."

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 or independent treatment was given
to it. In many definitions of Administrative law, it was included in constitutional law, though in
essence constitutional law does not differ from Administrative law as much as both are
concerned with the functions of the government, both are concerned with the functions of the
government, both are part of public law in the modern state and the sources of both are the same.
Yet there is a distinction between the two.

According to Hood Phillips:

"Constitutional law is concerned with the organization and function of government at rest while
administrative law is concerned with that organisation and those functions in motion."

Page 14 of 222
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."

According to Prof. Wade:

"With the exercise of governmental power, Administrative law is itself a part of constitutional
law."

Maitland, said, "I think we catch his idea if we say that while constitutional law deals with
structure, administrative law deals with function".

Thus according to the view of these writers, Administrative law and constitutional law both deal
with the same subject. As Griffith writes that the truth is all these writers (with possible
exception of Austin) would themselves, point out, that any definition of constitutional or
Administrative law and any distinction drawn between them are arbitrary and based on the
convenience of the particular writer. Consequently Administrative law was within the books of
constitutional law, till recently. Although there is much similarity In the subject-matter of the
two laws as the definition of Administrative law by Ivor Jennings clearly indicates yet the
tremendous growth in the scope of Administrative law has separated from constitutional law. It
was Frank J. Goodnow who first took up Administrative law as a separate subject. He wrote a
book titled "Comparative Administrative Law" (published in 1893).

In India, Administrative law has not grown up fully. It is in infant stage. As regards the
relationship between the two branches of law there is no deviation from the modern tendency of
thought that Administrative law is an independent branch of the subject although the knowledge
of the Indian constitutional law is indispensable for understanding the correct position of
Administrative law in India.

Indian constitution itself envisages a few Administrative bodies mainly from the point of view of
inter-state corporation and co-ordination and to solve inter-state problems. Examples are Inter-
state council, the Finance Commission, Union Public Service Commission and the Election

Page 15 of 222
Commission. Besides this, we have several provisions in constitution, related to the control of
the Administrative powers.

In simple words, Administrative law is very much related to constitutional law. Administrative
law owes much to constitutional law, inspite of the fact that the former has developed as an
independent branch of study. In many ways constitutional law is the determining factor of
Administrative law.

****

RULE OF LAW.
Rule of law is a dynamic concept and is one of the essentials of a constitution based on
Democracy. It heralds the "Supremacy of Law' and is opposed to the Rules of man. Bracton
in the 13th century had said" Even the Rulers are subject to law', Fortseque uses this rule to
justify that tax could not be imposed without "law made by the Parliament". It was Chief Justice
Coke who originated it in England.

The modern concept of rule of law was expounded (present and explain (a theory or idea) in) by
Dicey and his exposition has three importance factors:

i) The rule against arbitrariness:-

This means that Administrative officers should not exercise their powers arbitrarily and even an
act of an officer must have some basis in the "Act" of the legislature or the rule authorizing him
to do it.

Hence, the Executive officer should exercise only those powers which are authorized by
legislature. This is what Dicey meant when he said that the rule of law is in operation. Further, it
should be noted that no discriminatory power should be given to the executive officials by Act or
by rules.

Page 16 of 222
Ultimately all the powers are to be controlled by the Constitution. This is the effective part of the
rule of law. Administrative powers are limited by legislation. But the Parliament itself is
controlled by the people.

ii) Equality:
The Second part of the rule of law is that among equals laws should be equal and should be
equally administered. It means that the like should be treated alike. To Dicey, this is 'equality
before the law' He declared that "no one should be made to suffer in body or goods except for a
distinct breach of law.”

It also means that "all persons must be amenable to the ordinary jurisdiction of the Court".
Rule of law contains the guiding principles to the administrators. They should exercise their
powers without making discrimination between persons in society. If they exercise this power
arbitrarily or by making discrimination, then, it should be controlled or corrected by Judicial
scrutiny. In India, the Supreme Court and the High Courts have powers to issue writs in the
nature of Habeas Corpus, Mandamus, Quo Warranto, Prohibition and Certiorari under Articles
32 and 226 of the Constitution of India.

Rule of law according to Dicey does not accept the French - "Droit-administratiff", as, it makes
special provisions and provides for special treatment to the Government officials who exercise
their power in the colour of their office. In India, the Courts have held that such exercise of
power by the Government officials –Central and States- is subject to judicial scrutiny.

Administration of Justice has the rule of law as its basic foundation. It means Justice should be
available to all. It should be equal and should not favour any particular individual in the society.
It also means ‘No individual shall be given preference on the grounds of his religion, race, caste,
place of birth, political influence, etc. Hence, justice under the rule of law is free from
discrimination and bias.

Page 17 of 222
iii) Common Law Rights:
According to Dicey, the third limb of the rule of law is that the Constitution of England is the
consequence of the common law right of the individuals, and hence common law is the source
of the freedom of the people. If the rights are based on a document like the Constitution, by
amending the constitution, by the Parliament, the rights can be abrogated or denied.

In A.D.M. Jabalpur v. Shukla case, our Supreme Court erred in holding that Art 21 of the
Constitution was suspended & hence, there was no remedy by writ under an emergency. This
was corrected by the 44th Amendment & hence Habeas Corpus cannot be suspended even
in emergency.
The Supreme Court held that Rule of law is the basic structure of the Constitution and cannot be
amended under Article 368 of the constitution (Minerva Mill's Case). Rule of law is explained
in Indira Gandhi v. Raj Narain and Keshavananda Bharathi's case.

In Miss Veena Seth V. State of Bihar, the Supreme Court extended Rule of Law to the poor,
the downtrodden, the ignorant, the illiterate, against exploitation. The rule of law aims at
protecting the individual his life, liberty and property.

State and the Rule of law:

In a landmark case, a Director of Rations was prosecuted by Corporation of Calcutta as he had
not taken out license for storing etc. The question before the Supreme Court was whether the
State was bound by its statute. Held: State not bound by statute. [Director of Rationing v.
Corporation of Calcutta (1960)].

This was overruled by Supreme Court in Superintendent of legal affairs West Bengal v.
Corporation of Calcutta, under "Rule of law", State was held bound to take out license etc. The
English concept of Royal prerogative is not applicable in India.

Entinck v. Corrington [UK case]

D had entered P's house by breaking open the doors, and had seized certain papers. The Court
awarded compensation to P as D had entered and seized papers. D's defence that his act was

Page 18 of 222
authorised by the Secretary of State was rejected by the House of Lords. It upheld the Supremacy
of Law and held that the Secretary of State had no statutory authority and hence had no power to
issue a warrant for search.
*****

CRICHEL DOWN CASE:

It was the big political scandal of 1954 and resulted in the resignation of a government minister,
Sir Thomas Dugdale, the Minister of Agriculture.

The case concerned a claim by a landowner of unfair treatment at the hands of the Ministry of
Agriculture and the Crown Lands Commissioners.

Contrary to wartime promises concerning procedures for resale, they held on to 725 acres of his
land that had been compulsorily purchased for £12,000 by the Air Ministry in 1937 to use it as a
bombing range.

After the Second World War, the owners asked the Government for the release of the land to
them but in vain.

A public enquiry was conducted and a report was published in 1954. It said that the department
did not properly treat the owners of Crichel Down land. The officials had committed certain
blunders.

Sir Thomas – who said he had nothing to do with the original decisions – nevertheless took
responsibility and quit.

He told Parliament: “I, as minister, must accept full responsibility for any mistakes and
inefficiency of officials in my department, just as, when my officials bring off any successes on
my behalf, I take full credit for them.”

Page 19 of 222
Then the concerned Minister resigned. Another Committee was appointed by the Prime Minister,
and then the land was returned at market value, to the owners.
*****
FRANKS COMMITTEE REPORT.
The Franks Report of 1957 was issued by a British committee of inquiry chaired by Sir Oliver
Franks in respect of growing concerns as to the range and diversity of tribunals, uncertainty
about the procedures they followed and worry over lack of cohesion and supervision. The
catalyst for this was the Crichel Down Affair. However, this was a result of a decision by the
British Government and the Franks committee was told to limit its discussion to formal statutory
procedure and not to go into decisions of the courts or one-off decisions, which excluded the
Crichel decision.
In 1955, the Franks Committee was appointed by the Lord Chancellor to enquire into the
administrative proceedings. It made certain recommendations relating to the Constitution and
working of administration tribunals in England.

The main recommendations were:

1. The Chairman of Administrative Tribunal should be appointed by the Lord Chancellor. The
Chairman should have legal qualifications.
2. Hearings should be in public, legal representation should always be allowed (Audi alteram
partem).
3. Tribunals should have powers to take evidence on oath.
4. It recommended for the appointment of a Council over the tribunals to supervise the work of
Administrative Tribunals.
5. It suggested that tribunals should observe Principles of Natural Justice and give out reasons for
the award or decision. Appeal should be allowed to the Court.

On the basis of these recommendations the Tribunals & Enquires Act, 1958 was passed. This
has provided for the Council of Tribunals. There is an appeal to the High Court from the decision
of the Tribunals.

*****

Page 20 of 222
NEW DESPOTISM:
This is a valuable book written by Lord Hewart, Lord Chancellor of England, in 1929. By a slow
but continuous process, the Parliament in England was delegating its legislative functions to the
subordinate authorities, so much so the concept of Rule of law had been sufficiently eroded.
Lord Hewart strongly criticised this tendency in his book 'The New Despotism'. Herein, he
elaborately wrote how the executive is armed with certain powers which were purely the
legislative functions of the Parliament. These powers could easily escape the scrutiny or the
supervision of both the Parliament and the Judiciary.

This book had its tremendous impact in as much as, a powerful public opinion against such
development was rised and Parliament was compelled to appoint a commission, in 1929, under
the Chairmanship of Donoughmore. It was charged with the duty to deal with the various
aspects of delegated legislation and also to suggest ways and means to control. The committee
made very valuable suggestions and also specified the limits within which Parliament may
delegate its powers.
*****
DONOUGHMORE COMMITTEE REPORT .
The Rule of law as propounded by Dicey was the rock bed (The fundamental principles on which
something is based) of British legal system. But, this suffered a set-back as administering
authorities were conferred with the powers to make rules under the concept of sub-legislative
powers. This was criticised by Carrin in his book 'Delegated Legislation'(1921). These
Administrative bodies had been invested with Judicial powers. This was the administrative
Justice criticised by Robson in his book 'Justice & Administrative Law’ (1928).

In1929 Lord Hewart published his 'New Despotism, wherein he exposed the excess of delegation
of legislative powers to ministers and other administrative authorities. All these resulted in the
British Government appointing a Committee which was headed by Lord Donoughmore. The
report was published in1932. It dealt, inter alia, with delegated legislation.

According to the Report, delegation is necessary because:

1. The legislature (Parliament) has much pressure of work on its time.

Page 21 of 222
2. The legislators lack the technical knowledge required by modern legislation.
3. Complexities & Contingencies in the law are to be specially dealt with.
4. Amendment of legislation is to be avoided.

Further it was observed that the truth was that Parliament must provide guidelines and also
scrutinise the work of the delegate to whom the power to legislate is delegated otherwise there is
the danger that "the servant would be turned the master."

These are:-
1) The limits of legislation must be precisely defined in clear language.
2) The Parliament must set up Standing Committees charged with the duty to scrutinise the work
of the delegate.
3) Henry VIII clause (blanket powers to executive bodies, to change when necessary) must be
avoided.
*****
HENRY VIII CLAUSE.
The general rule is that the legislature itself should discharge its primary legislative functions and
should not delegate them to other bodies. But, in some enactments provisions are made to
delegate certain powers to the executive. The delegation here is broad & without restriction.

For example: The National Insurance Act, 1911, mentions the powers of the Insurance
Commissioners. It also provides that they may do anything that they thought necessary and
expedient in case of any difficulty in implementing the provisions. 'To that extent may make
modifications, wherever necessary'.

This blanket power is nicknamed Henry VIII Clause. The executive is the delegate and if power
is granted to modify the provisions themselves, there is to that extent an indirect abdication of
legislative functions in favour of Executive.
A review of English Constitutional history shows how the King Henry VIII was asserting his
powers in an authoritarian manner and how he was 'modifying' the provisions to suit his

Page 22 of 222
conveniences. Hence, whenever such powers are exercised by executive, it is styled Henry VIII
powers.

Modern legislative Acts, generally provide for two types of such removal of difficulties. One is
to empower the executive to remove difficulties, consistent with the parent Act. This is to adjust
minor difficulties and is not objectionable e.g. Section 128 of the States Re-organisation Act,
1956.

However, the second type is very wide and even to modify the parent Act. This may be for a
limited purpose. It is here that Henry VIII, King of England, became authoritarian. He was a
despot (autocrat) under law. What he did was that he extended this power to an extraordinary
degree by constitutional means, to further his personal ends. Of course, he was not acting
unconstitutionally.

In India, though the circumstances are different, the executive may don on itself more powers.

In West Bengal Electricity Board v. Ghosh, the Regulation of removal of permanent employee
with three months notice or pay in lieu thereof was held arbitrary and void, such a Henry VIII
clause has no place, held the Supreme Court. Further in Central Inland water Transport Co. v.
Ganguly, the Rule in question Section 9(1) was declared by Supreme Court as void as it was a
Henry VIII clause.
*****
DOCTRINE OF SEPARATION OF POWERS.
The theory of separation of powers was enunciated by Montesquieu in his book: The Spirit of
the laws (De L' esprit des lois) (1748). He made a scientific division of the powers of the State
as Legislative, Executive and Judicial powers.

He maintained that ‘These three must be vested in three distinct & different authorities, if the
Liberty of the individual is to be guaranteed’. Having thus laid the foundation he pointed out
that there was no liberty when the legislature and executive powers were in one Authority,
(legislator should not be the executive). Again there is no liberty if judiciary is not separated

Page 23 of 222
from the legislative and Executive functions. If the Judicial and Legislative powers are joined,
the liberty would be subjected to arbitrary control, (Judge would be the legislator), if it is joined
with Executive the judge might behave with oppression and violence. There would be an end of
everything, if all the powers are in one Authority.

This theory gained general acceptance, as it was based on the protection of individual liberty.
The aim is, not to create absolute barriers but to impose mutual restraints in the exercise of
powers by the three organs of the State, viz., Legislature, Executive and Judiciary.

United States: (U.S.A):

The U.S. Constitution incorporated this theory with modification under "checks and balances".
Madison stated that the accumulation of all the three powers in one authority was the 'very
definition of tyranny'. In the U.S. Constitution, Articles I, II and III vest the Legislative,
Executive and Judicial powers in the Congress, the President and the Supreme Court
respectively. Of course, these are subject to "checks and balances".

In its practical application, the theory means that the organic powers vested in one, should not be
exercised by others. The U.S. Supreme court put it concisely when it said, in Springier v.
Phillipine Island, that the powers conferred on the legislature should not be exercised by the
executive or the Judiciary unless otherwise provided for or incidental thereto. The President
exercised the power of "veto" over Bills passed by the Congress: Congress has powers to
impeach the President; Senate has the executive power to ratify treaties; Congress may delegate
certain of its powers to administrative authorities, etc., these are examples to show that the
doctrine has undergone modifications. Hence, a rigid application of this theory is not to be found
in the U.S. or in any constitution as that would make it impossible to run the Government.

England:
According to Garner, there is 'no sharing-out' of power in England and as such 'Separation of
powers' has no place in its strict sense. There are in England, the three Authorities: Parliament,
Executive and the Judiciary. But, there is no exclusive province to any specific authority, e.g.
The Lord Chancellor, is the head of the Judiciary, Chairman of the Upper House, and a

Page 24 of 222
prominent member of the Cabinet (though not necessarily). The Court exercises legislative
powers when it is making the rules of procedure. Ministers make the subordinate legislation and
also exercise quasi-judicial powers. The House of Commons has the power to investigate and
punish for breaches of the privileges of the House. Hence, the theory has no direct application in
England.

India:
The Constitution has vested the Executive power in the President (or the Governor). There is no
such vesting in the legislature or the Executive. Article 51 enjoins [(prescribe (an action or
attitude) to be performed or adopted] separation of the Judiciary from the Executive. The
Supreme Court in re Delhi Laws Act case opined that the essence of modern separation of
powers was found in the concept of constitutional limitations and trust.

e.g.
(i) Ordinance making power of the president (Art.123);
(ii) Judiciary making its own Rules of procedure;
(iii) A Minister sitting as chairman of a Board to hear petitions;
(iv) Delegations of legislative power to subordinate lawmaking bodies etc.

In Ram Jawaya v. State of Punjab, the Supreme Court held that no organ of the state should
exercise functions that essentially belong to the other. In Keshavananda Bharathi's case the
Court held that separation of powers was part of the basic structure of constitution and even
under Art. 368, it cannot be amended.

Thus Parliament should respect and preserve the Courts: Courts should not enter into political
problems; such mutual checks and balances have become the core of separation of powers in
modern constitution.

The sum and substance is that the essential functions of the Legislature, Executive and the
Judiciary should not be exercised by the others.

Page 25 of 222
Functions: Judicial, Quasi Judicial and Administrative

Judicial, Quasi Judicial & purely Administrative functions:

These concepts are separate and distinct in Administrative law. The distinction was ably drawn
by the Committee on 'Ministers Powers’.

1. Judicial functions:
This presupposes the existence of a 'LIS' (dispute) between the two parties: plaintiff and
defendant or petitioner and Respondent. It contains the following ingredients:-
i) The case is presented by the parties.
ii) Questions of fact are decided on evidence adduced by the parties and argument thereon.
iii) Questions of law are decided on submission made by the parties.
iv) The Judiciary strictly follows the procedures, decides and disposes of the entire matter in
issue with findings and by applying the law. There is a ruling on the disputed question of law.

2. Quasi Judicial Functions:-

Quasi means "not exactly" therefore it is not an exact Judicial function. It has some of the
trappings of the Courts. The authority will not have observed all the attributes of Judicial
decision stated above. It will however observe items:
(i) & (ii) above sometimes
item (iii) but never item (iv)
It is not bound by rules of procedure (C.P.C., Evidence Act etc.)

However, it is essential and basic that the Quasi Judicial Authority should follow the principles
of Natural Justice. These are:-
i) 'Nemo debit esse Judex in propria causa' (Nemo Judex in causa): No one should be a Judge in
his own cause
ii) Audi alteram partem (Hear the other party)

Further the decision must be objective in character.

Page 26 of 222
Examples:
i) Dismissal or Removal of a Government Servant
ii) Dismissal of a student for alleged copying in the Exam.
iii) Cancelling a licence
iv)Deprivation of citizenship.
v) Impounding passport or refusing to renew, etc.

3. Purely Administrative Functions

Essential Features are:-
i) A Judicial approach need not be followed;
ii) The Act is based on policy, expediency and discretion;
iii) The decision may be subjective;
iv) The officer need not follow the Quasi-Judicial procedure;
But then it is provided for under a statute or when the rights of persons are affected, Principles of
Natural Justice should be followed by him.
v) He may affect the rights of individual, but he cannot decide with finality, Hence, Courts may
determine.
vi) The officer need not weigh the evidence and arguments placed before him.
vii) When an officer resolves to act in a particular way, at his discretion it is an Administrative
decision.
Though this distinction is broadly correct, it is often the case that the Courts do consider the
socio-economic policy, political philosophy, expediency, etc., The Tribunals decide just like the
Judiciary with impartiality. Similarly, the administration applies the law to the facts and, decide
without impartiality, in its discretion.

Examples:
1. Day-to-day administrative orders issued by the officers in the Departments.
2. Order under COFEPOSA [Conservation of Foreign Exchange and Prevention of Smuggling
Activities Act, 1974]
3. Externment order (moving a person(s) outside a particular place for a specific period of time).
4. Order issuing a licence or permit.

Page 27 of 222
Leading cases before the Hon’ble Supreme Court.
 Ram Jawaya v. State of Punjab (1955).
 Khushal Das Advani's Case (1950).
 Board of Education v. Rice.
 Gullapalli Nageswara Rao v. State of A. P.
 A.K. Kraipak v. Union of India (1969).
 Radheshyam v. State of Madhya Pradesh (1959).
 Ridge v. Baldwin (1964).
 Maneka Gandhi v. Union of India (1978).
 State of Orissa v. Binapam Dei (1967).

Recent Developments:
The Supreme Court observed in Kraipak case, that the distinction is thin, and is almost destroyed
completely: "What was considered as administrative power some years back is now
considered as quasi judicial". There is a radical change in the approach. The duty to act
judicially is the essence of quasi judiciality. But, this arises in various circumstances and it
would be impossible to define in clear terms.

Of course, if a statute provides that an administrative authority should act judicially, it is judicial
and it should be so followed. What if the statute is silent? The House of Lords held in Ridge v.
Baldwin that even if the statute is silent, a duty to act judicially was imperative, if the rights of
the subjects are affected.

The Supreme Court followed this is State of Orissa v. Binapani Dei and held that duty to act
judicially would arise from the very nature of the function. It held "If there is power to decide
and determine to the prejudice of a person, duty to act judicially is implied in the exercise of
such power". This was followed in Menaka Gandhi's case. Thus, the exercise to draw a line
between quasi-judicial and administrative is purely academic. If the right of a person is affected,
as a result of the order of the official, it is essentially judicial and he should follow the Principles
of Natural Justice.
*****

Page 28 of 222
LEGISLATIVE FUNCTION.

When any administrative authority exercises the law making power delegated to it by legislature,
it is known as the rule making action of the administration or quasi legislative action. The
legislative functions of the executive consist of making rules, regulations, bye-laws etc.

If a particular function is termed ‘legislative’ or ‘rule making’ rather than ‘judicial’ or

‘adjudication’ it may have substantial effects upon the parties concerned. If the function is
treated as legislative in nature, there is no right to a notice and hearing unless a statute expressly
requires them.

QUASI LEGISLATIVE FUNCTION.

The capacity in which a public administrative agency or body acts when it makes rules and
regulations.

When an Administrative Agency exercises its rule-making authority, it is said to act in a quasi-
legislative manner. Administrative agencies acquire this authority to make rules and regulations
that affect legal rights through statutes. This authority is an exception to the general principle that
laws affecting rights should be passed only by elected lawmakers.

Administrative agency rules are made only with the permission of elected lawmakers, and
elected lawmakers may strike down an administrative rule or even eliminate an agency. In this
sense quasi-legislative activity occurs at the discretion of elected officials. Nevertheless,
administrative agencies create and enforce many legal rules on their own, often without the
advice of lawmakers, and the rules have the force of law. This means they have a binding effect
on the general public.

Examples of quasi-legislative actions are many. Dozens of administrative agencies exist on the
federal level, and dozens more exist on the state and local levels, and most of them have the
authority to make rules that affect substantive rights. Agencies with authority over environmental
matters may pass rules that restrict the rights of property owners to alter or build on their land;
departments of revenue may pass rules that affect how much tax a person pays; and local housing

Page 29 of 222
agencies may set and enforce standards on health and safety in housing. These are just a few of
the innumerable rules passed by administrative agencies.

Except where prohibited by statute or judicial precedent, quasi-legislative activity may be

challenged in a Court of law. Generally, a person challenging quasi-legislative activity must wait
until the rule-making process is complete and the rule or regulation is set before challenging it.
Moreover, a challenge to an agency's rule or regulation usually must be made first to the agency
itself. If no satisfaction is received from the agency, the complainant can then challenge the rule
or regulation in a court of law.
Another distinctive feature of quasi-legislative activity is the provision of notice and a hearing.
When an administrative agency intends to pass or change a rule that affects substantive legal
rights, it usually must provide notice of this intent and hold a public hearing. This gives members
of the public a voice in the quasi-legislative activity.

ADMINISTRATIVE DIRECTIONS.
Administrative Directions are instructions or regulations issued by the higher authorities to the
lower authorities in the absence of a rule or enactment pertaining to a specific issue or to
compensate or fill the lacunas in the existing laws and thereby constructing better standards or
platforms to tackle issues. Administrative directions is otherwise designated as ‘Administrative
quasi-law’ or ‘Administrative quasi-legislations’.

These directions can be specific, that is formulated and applied to a particular purpose, or a
particular case`; or it may be general nature, laying down general principles, policies, practices,
or procedures to be followed in similar cases. And further, these direction are issued in the form
of letters, circulars, orders, public notices, pamphlets, press notes, etc, it is even published in
Government Gazette.
In contemporary India, the government enjoys indefinite or boundless administrative powers,
and therefore the areas of issuing administrative directions are quite ample. The concept of
Administrative directions has its roots in Article 73 and Article 162 of the constitution. These
Articles deals with administrative powers of Government and such directions are generally
issued under it. According to Article 73, the executive power of the Union extends to the matters

Page 30 of 222
with respect to which Parliament has power to make laws. Similarly, according to Article 162,
the executive power of the State extends to the matters with respect to which State Legislative
has power to make laws. These provisions exclusively deals with the executive power of
government and do not confer any kind of legislative power. At times, statutory powers are
granted to issue directions. A direction issued under statutory power prevails over a direction
issued under general administrative power. In the case of Secretary to the Government of
Haryana v Vidya Sagar, where two circulars are issued on the same subject and the former was
general and later was specific, it was held that the latter one will prevail.

A direction does not confer any enforceable rights on an individual, or impose an obligation on
the Administration or individual. Even if a direction is misapplied or ignored by the
Administration, the affected individual can hardly claim a remedy through a court of law. But,
this doesn’t mean that, administrative authorities may disregard them with impunity. The
authorities are expected to follow the directions and their breach by them may lead to
disciplinary or other appropriate actions against them.

At this point, it is essentially relevant to consider the concept of Delegated Legislation, as it is an

equally relevant and superior concept that comes under the administrative powers of
government. Similar to Administrative directions, delegated legislations or rules are also
formulated for the same purpose or under such circumstances, but unlike directions, they are not
made under the executive power conferred on government, rather these rules are formulated in
accordance with the legislative powers conferred on the administrative bodies via constitutional
or statutory provisions. As mentioned above, in legal hierarchy, delegated legislation is superior
in authority to a direction. The main point of this disparity in authority can be attributed to the
well established enforceability of rules or delegated legislation. That is, delegated legislation is
binding on both, the Administration and the individual and is enforceable through a court of law.
On the other hand, Administrative directions as discussed in the above paragraph are not so
binding and enforceable. Though minor remedies are made available to render the individual
secured, the point still remains valid that the remedy available to the individual is intra-
departmental or administrative in nature, not through court of law.

Page 31 of 222
Moreover, a rule can override an instruction but an instruction cannot override a rule. This
principle was well established in the case of Jagit Singh v State of Punjab, in this case, the
State government had made a request to the Punjab Public Service Commission to select and
endorse six vacancies in the Punjab Civil Services (Executive Branch). The appellant secured
third position amongst the Scheduled Caste (SC) candidates in the competitive exam that was
consequently conducted. The reserved quota was 20% and appointment letters were issued to the
first two candidates.

Need for Administrative Direction

Though not very comprehensive and authoritative, Administrative directions have become an
integral part of Indian Administrative system. These directions often serve as the best means to
inform the people regarding the dynamic policy decisions of government. Directions are issued
in order to fill the lacunas in administrative arena and to meet the exigencies. Supreme Court in
Union of India v Rakesh Sharma observed that, if the rules are silent on any point the
Government can fill up the gaps and supplement the rules by issuing instructions not inconsistent
with the rules. It is often used to lay down procedure for various purposes to be followed by the
Administration or the public. Directions are a part of the internal administrative procedure of
government procedure of a Government department. When a number of officials are engaged in
executing in a law and taking decisions there under, directions may serve the purpose of
providing some criteria which may be followed by these officials in discharging their functions
so that there will be a uniformity of approach in disposing similar cases.

Here arises a question as to why Administrative Direction, when there is are provisions to make
rules or delegated legislation which is more powerful? This trend of resorting to administrative
directions can be attributed to the flexibility or easiness in formulating and implementing
administrative directions. On the other hand, certain formalities or procedures such as laying
before parliament, consultation of affected interest, republication, publication in gazette etc are
to be met for formulating or promulgating a rule, issuing a direction is devoid of all kind
burdening procedural catenae and therefore administrative directions are proffered over rules.
Further, Government may change a direction at any time without much formality, a direction can

Page 32 of 222
be amended by issuing another direction. While, amending a rule is not that smooth and it
involves a catenae of procedures.

Circumstances That Render Administrative Directions Invalid

i) An administrative direction will be held void if it is against this principle of Natural Justice.
ii) A direction should not be inconsistent with other existing rules or laws.
iii) A direction should not encroach into or adversely affect individual rights. Any restriction
prejudicial to individual interest can be placed only by law, cannot be done through
administrative directions.
iv) A direction can stand only if it in congruence with Article 14 of the constitution.

*****
JUDICIAL FUNCTIONS.
According to committee on Ministers Power – Pure Judicial Function pre supposes an existing
dispute between two or more parties & dispute between two or more parties & it involves four
requisites.
 Presentation of their cause by the parties to the dispute
 If the dispute is question of fact- ascertainment by evidence, arrangements etc.
 If the dispute is question of Law submission of Legal argument by the parties.
 A decision- by finding facts in dispute & application of Law to the facts— ruling upon
disputed question of Law. Thus in a pure judicial function – The aforesaid if requisites
must be present the decision is Judicial decision even though it might have been made by
Minister, Board Exe-authority Adm./ officer, tribunal etc.

QUASI JUDICIAL FUNCTIONS.

“Quasi” means “not exactly”. Generally an authority is described as quasi-judicial when it has
some attributes or trappings of judicial functions but not all.

Griffith and Street – Stated that quasi judicial function stands midway between judicial function
& Adm. Function. Quasi Judicial decision — is nearer to administrative decision in terms of

Page 33 of 222
discretionary element & nearer the judicial decision in terms of procedure
procedure & objectivity of its
end product.

Quasi-Judicial
Judicial & Judicial: Distinction

*****

TRIBUNALS AND ADMINISTRATIVE JUSTICE.

Importance of Administrative Tribunal.

Tribunal
The
he reasons why parliament increasingly confers powers of adjudication on special tribunals
rather than on the ordinary courts may be stated positively as showing the greater suitability of
such tribunals, or negatively as showing the inadequacy of the ordinary courts for the particular
kind of work that has to be done.

The growth of administrative

dministrative decision making was the need to explore new public law standards
based on moral and social principles away from the highly individualistic norms developed by
the courts. Realising their limitation, the Supreme Court once said that leaving suc
such technical
matters to the decision of the court is like giving surgery to a barber and medicine to an
astrologer.

Page 34 of 222
An even more important practical reason for the growth of tribunals was the desire to provide a
system of adjudication, which was informal, cheap and rapid. Litigation before a court of law is
not only time consuming but is a luxury for the rich man. The reasons why parliament
increasingly creates tribunals may be the ordinary courts are already over burden with work,
their procedures is technical and costs are prohibitive and questions arising out of a social or
industrial legislation are better decided by persons who have an intimate and specialised
knowledge of the working of that Act. Hence for a government, this has taken on ambitious and
massive plans of public health, education, planning, social security, transport, agriculture,
industrialization, national assistance. It is impossible to carry out these programs and determine
legal questions involved therein with the assistance of the law courts because of their highly
individualistic and ritualistic approach.

No intensive form of government can function without a decision making system of its own.
Therefore, administrative decision making through administrative tribunals is inevitable and
essential. The Administrative Tribunal can adjudicate on the matters: levy, assessment, collection
and enforcement of any tax; foreign exchange, import and export across customs frontiers;
industrial and labour disputes; land reforms by way of acquisition by the State of any estate as
defined in Article 31A or of any rights therein or the extinguishment or modification of any such
rights or by way of ceiling on agricultural land or in any other way; ceiling on urban property;
elections to either House of Parliament or the House or either House of the Legislature of a State,
but excluding the matters referred to in Article 329 and Article 329A; production, procurement,
supply and distribution of foodstuffs (including edible oilseeds and oils) and such other goods as
the President may, by public notification, declare to be essential goods for the purpose of this
article and control of prices of such goods; any matter incidental to any of the above specified
matter.

Objectives of the administrative tribunals.

a. To provide for a forum to deal exclusively with service matters which off loaded the burden of
the cases of High Court from their jurisdiction;

Page 35 of 222
b. To provide inexpensive and speedy relief to government servants in service matters;

c. To provide special powers to the tribunals to make their own special powers and procedures
and not be guided by the Civil Procedure Code or the Law of Evidence but to work according to
rules of natural justice.

d. As far as creation of tribunals is concerned constitution is silent. No express provision in the

Constitution, as it stood originally, provides for the establishment of tribunals. However, Articles
262(2) and 263(1) are important in this regard.

 Article 262(2) provides for the creation of tribunal to adjudicate the disputes relating to water
of interstate rivers or valleys.

 Article 263 (1) provides for creation of council charged with the duty of inquiry into the
disputes between states. Apart from these two Articles, the creation of tribunals is implied in
the Articles 136, 226 and 227 of the Constitution as the term ̳tribunal‘ is used in these Articles.
However, forty second Constitutional Amendment expressed the provision for the creation of
tribunals. This Amendment opened the possibility for the proliferation of the tribunals system
in the country.

 Article 323A empowers the parliament to establish service tribunals, which will deal with the
service matters i.e., recruitment, conditions of service of persons appointed to public services
and posts in connection with the affairs of the Union or any State or any local or other
authority in India or under the control or owned by the government and Article 323B
empowers the appropriate legislature to provide the law, for adjudication or trial by tribunals
of any disputes and offences with respect to several matters.

 Further the Article 323B is wide amplitude and it provides that tribunals may try certain
criminal offences also. In 1985, Parliament passed the Administrative Tribunals Act in
pursuant of Article 323 A of the Constitution.

Page 36 of 222
 And under Article 323B parliament and state legislatures are passing law from time to time
which provided for the creation of tribunals. The work assigned to the tribunal is very
complex in nature. It requires qualified and experienced members to the adjudication of the
subject matters. Hence the chairman must come from judiciary with an experience of
adjudication to his credit. He must be legally qualified person because he only can apply
statute law or case law to complex situations other members of the tribunal shall have the
sound professional knowledge and practical experience of the service matters. So they are to
be senior executive officers who are men of character, integrity and having best ability.Each
tribunal shall consist of chairman, Vice chairman and judicial and administrative members in
such number as the appropriate government may deem fit. The qualifications are fixed by the
President of India after consulting Chief Justice of India and for their members‘ consultation
with the Government of the concerned State i.e. in case of State Administrative Tribunal or
joint Administrative Tribunal will be made. The chairman of tribunal has been given the
exclusive power to constitute bench. He may transfer the vice chairman or other member from
one bench to another. He can constitute a bench composed of more than two members and
also single member bench.

*****

EXECUTIVE FUNCTIONS.

In Ram Jawaya V/s State of Punjab, Mukherjee C.J. observed. “It may not be possible to frame
an exhaustive definition of what executive functions means and implies.
Ordinarily the executive power connotes the residence of Govt. function that remains after
Legislative & Judicial functions are taken away.

MINISTERIAL FUNCTIONS.

Ministerial function is that function of agency which is taken as a matter of duty imposed upon it
by the law devoid of any discretion or judgment. Therefore, a ministerial action involves the
performance of a definite duty I respect of which there is no choice, no wish and no freedom.

Page 37 of 222
Here, the high authority dictates and lower authority carries out. Collection of revenue may be
one such ministerial action.

When an administrative agency is acting ministerially it has no power to consult its own wishes
but when it is acting administratively its standards are subjective and it follows its own wishes.

*****

DISCRETIONARY FUNCTIONS.
In Layman’s language, discretion means choosing from amongst the various available
alternatives without reference to nay predetermined criterion, no matter how fanciful that choice
may be.
CJ. Coke says– Discretion is a science or understanding to discern between falsity and truth,
between right and wrong and not to do according to will and private affection.
The problem of administrative discretion is complex. It is true that in any intensive form of
government cannot function without the exercise of some discretion by the officials. It is
necessary not only for individualization of the administrative power but also because it is
humanly impossible to lay down a rule for every conceivable eventuality in the complex art of
modern government. But it is equally true that absolute discretion is a ruthless master.

*****

Page 38 of 222
 UNIT - 2
DELEGATED LEGISLATION
Doctrine of Delegated Legislation.
i) Meaning:
The Maxim ‘delegatus non-potest delegare’ means a delegated power should not be re-
delegated. The Parliament is the Delegated authority of the people, i.e., to declare what the law
shall be. This power is to be exercised only by the Parliament and should not be delegated to the
executive or any other authority. Parliament cannot create a parallel legislature to destroy its
legislative power. Though this is true in principle, in reality delegation has been resorted to in
U.K., U.S.A., India etc.

Delegated Legislation is generally understood to be the "legislation" made by any authority other
than the Parliament or State legislature, but this duty entrusted by the "Act" passed by the
Parliament or State legislature to the said authority. This is the subordinate authority which
makes "subordinate legislation" within the limits prescribed by the parent Act.

E.g: Payment of Bonus Act enables "Central Government", to exempt certain establishments on
certain considerations. The Minimum Wages Act has enabled the central Government to add any
other establishment to the schedule, to apply the Act. The exercise of this by Government is
delegated legislative authority and is valid under delegated legislation.

Apart from this, delegated legislation also means the rules, regulations, bye laws, orders etc,
made by subordinate Authority. Thus, the parent Act is made by the Parliament or State
legislature, and a subordinate authority makes delegated legislation.

(ii) Necessity: The necessity for this delegation may be accounted for as follows:

1. The bulk of modern legislation is so great that the Parliament has neither the time nor energy,
not the desire, to go into details. The Parent Act is made by it called skeleton & the details are
filled in by the appropriate subordinate legislative body- which gives flesh and blood to the
skeleton law. (Child legislation)

Page 39 of 222
2. Laws requiring technical details are best attended by leaving them to the experts.

3. There are many advantages in the 'sub-laws' as the authority may make modifications,
depending on the contingencies, of course, within the frame-work of the Parliament's Law. This
has relieved the Parliament of making law each time a change is required.

4. The Committee on Minister's powers succinctly (concisely) described: 'The truth is that if
Parliament were not willing to delegate law-making power', Parliament would be unable to pass
the kind and quality of legislation which modern public opinion requires'.

5. Amendment by Parliament in slow, and cumbersome.

6. The executive may take quick action in times of emergency or war. Similarly when there is
epidemic, floods, economic depression, health hazards etc delegation is essential.

7. Modern complex administrative matters require a dynamic approach.

iii) Essential functions:

The Supreme Court has laid down that essential functions entrusted to the Parliament should not
be delegated. It has laid down judicial tests to find out what are essential functions or powers
which are non-delegable. If a non-delegable function is delegated, that delegation is bad and ultra
vires of the Constitution.

iv) Non-delegable functions of the Parliament (or State Legislature):

These are:-
a) It is the essential duty of the Parliament to lay down the legislative policy of the Government.
Hence, this Policy making should not be delegated to any other authority, like the executive.

b) To effect any amendment to an Act, is the essential duty of the Parliament. The Executive
Authority should not be allowed to change the Act.

Page 40 of 222
c) To declare the offence under a penal law is the essential function of the Parliament.

d) To declare punishment, penalties etc., is the essential function of the Parliament / Legislature.

e) To impose a tax, fee, in an essential function of the Parliament / Legislature (Art. 265).

f) When tribunals are constituted specifying the jurisdiction and powers is the essential duty of
the Parliament.

g) To repeal a law or to provide exemptions is an essential function of the Parliament.

(h) Giving an Act, retrospective effect is an essential function.

(i) Legislature cannot provide for Henry VIII Clause to enable the executive to make law in the
guise of "removing difficulties" (W.B. Electricity Board v. Ghosh)

Leading Cases:
1. Panama Refining Co. v. Ryan (1934)
Congress in the U.S., authorized the movement of oil in Inter-State Commerce, if it is produced
by the State in excess of the fixed quota. Held, there were no standards, guidelines laid down by
the Congress and there was no definite policy. Hence, this delegation was bad.

2. Yarkus v. U.S.
During World War II, the Price Administration Dept, was authorised to fix prices as per the
policy of the Govt. Held, this was valid as the Legislature had given sufficient guidelines and
standards to decide the prices.

3. In re Delhi Laws Act Case (1950)

Part 'C' State (Laws) Act 1950: was made by Parliament. It gave the Central Govt. the power to
extend any of the existing laws of Part ‘A’ State to Part ‘C’ State. Further, even future laws made
in Part ‘A’ State, could be extended to Part ‘C’ State. If the Government so desires it may modify

Page 41 of 222
or repeal any corresponding law existing in Part ‘C’ State. Held, that power which enabled the
Executive Govt. to repeal the existing Part ‘C’ State law was ultra vires. Held, modification
power should not be extended to change the policy itself or change the essential features of the
Act. Thus, delegation is valid, but strictly limited.

4. Shama Rao v.Pondicherry (1967)

The Pondicherry Sales Tax Act was made. It authorised to apply the Madras Sales Tax Act, after
due notification. The Madras legislature effected certain amendments. The Pondicherry law
stated that the Madras Sales Tax Act was applicable as and when amended. This was challenged.
Held, the delegation by Pondicherry was excessive and therefore ultra vires. The Major Act and
the Amendment were both void. Actually there was abdication of authority by the Pondicherry
legislature, therefore its Act was bad. This was followed in Brijsunder v. District Judge (1989).

5. Hamdard Dawakhana v.Union (1960)

In this case, the Drugs and Magic Remedies Act provided that no advertisement must be made
which recommends the use of certain drugs which are calculated to be used to cure venereal
diseases, improving sexual potency and any other disease or condition which may be specified
by the Central Government. Held, this was excessive delegation as 'any other' has no control or
guidelines. Hence, the delegation was unguided or uncontrolled.

6. In Jalan Trading Co. v. Mazdoor Sabha.

The Payment of Bonus Act provided that: 'If any difficulty ordoubt arises, the Central Govt. may
make such provision as is necessaryfor removal of that difficulty or doubt & the order of the
CentralGovernment. was final'.The Supreme Court held that 'clearing doubts' is primarily a
legislative power & should not be delegated to the executive. It wasan unchartered delegation &
hence void.

7. In Devi Das V. State of Punjab, the Punjab General Sales Tax Act provided that the State
Govt. may fix the rates of Sales Tax. This was held to be void as in excess of delegation. Hence,
power to fix rate of tax should not be delegated.

Page 42 of 222
Recent developments:
In Gwalior Rayon Silk Mfg. Co. v. Asst. Commissioner: it was challenged before the Supreme
Court, that the Central Sales Tax Act, Section 8(2) (b), did not fix the rate of tax, but adopted the
concerned State’s rates applicable, if the tax on sale or purchase was above 10% and that there
was no legislative policy. The Court rejected this contention and, upheld the section. The Tax
Department's argument that Parliament's power to repeal was sufficient control, and no policy
need be stated, was rejected by the Court.

The Court held that the Parliament should state the legislative policy, standard or principle for
the guidance of the delegate. Section 8(2) (b) was upheld on the ground that it was made to
prevent evasion of tax. What is prohibited is abdication of power to subordinate body or
authority. There was no abdication and hence valid.The above decision was reiterated by the
Supreme Court in Kerala State Electricity Board v. Indian Aluminium Co.

Delegable Functions.
This is also called permissible delegation.
i) Power to extend the duration of a statute is delegable, if the Act has so provided.

ii) The Parliament may allow the executive, at its discretion to adopt an existing statute and
apply that to a new area without modifying the Policy of the Act. (Conditional Legislation).
R. v. Burah.

iii) When the legislature lays down definite standards and policy to be applied in Administration,
the power to exempt persons or items within those limits is permissible.

iv) To fix a date called "appointed day" for the commencement of Statute is delegable, to the
executive. The Govt. may by notification in the official gazette announce the date of
commencement. The Act comes into operation on and from that date. Sir Cecil says: here the
legislature has provided the gun and target, the Govt. only presses the trigger. The delegation is
valid.

Page 43 of 222
v) Parliament may leave it to the subordinate agency to fill in the details to carry out the policy
of the Act. Here the ancillary functions are delegated. Ex: All India Services Act, 1951, enables
the Central Government to frame rules to regulate conditions of service.

SUBORDINATE LEGISLATION / SUB DELEGATION.

1. Meaning:
Parliament or State Legislature under its 'Act', may empower a subordinate authority (named in
the Act), to fill in the details. Such a law made by the authority is subordinate Legislation, (also
sometimes called sub delegation or Quasi-legislation or child legislation).The different kinds of
such legislation are: Rules, Regulations, Orders Notification, Bye laws, Standing Orders,
Schemes etc.

2. Procedure:
The Parliament in its 'Rules of Procedure and Conduct of Business of the House of the People',
has constituted a 'Committee on Subordinate Legislation' charged with the duty to scrutinise and
report (Rule 317) to the House whether the delegated powers have been exercised within the
framework of the concerned Act. This states that Rules, Regulations etc. must be laid before the
House. These must be published in the official Gazette. The Committee scrutinizes and reports.
Thereupon it is formally passed by the House.

3. Kinds:
i) Rules:
These are framed by the concerned statutory authority named in the Act. e.g. Income Tax Rules.

ii) Orders:
The Government is empowered to issue the orders according to the Parent Act.

iii) Regulations:
These are generally made by such autonomous statutory authorities like Universities, public
corporations etc.

Page 44 of 222
iv) Notification:
It is a statutory instrument under which the Government heralds its power to make rules or
exercise some power under a Statute (Act), e.g: Defence of India Act provided as follows: The
Central Government may by notification etc.

vi) Standing Orders:

These are made by an Industrial establishment dealing with the conditions of service agreed to
by employer and workers. But, these are to be certified by the prescribed authority
(i.e. Commissioner) for their validity.
vii) Rules made by the Courts:
The Supreme Court Rules 1950, the High Court Rules and the Rules of Practice (for Lower
Courts). These are made by the Courts (subject to Ultra Vires Doctrine).

viii) Schemes:
These are the ways and means to implement certain measures e.g. Bonus schemes. It may be in
any other area as a Scheme under Motor Vehicles Act to take over or nationalize certain routes
etc.

4. Legislative Control.
Parliament has power to control the subordinate law making agency. In fact, Parliament has not
only the right but it is under a duty to see that it delegate, carries out what is entrusted to it. It is
for this reason that procedural safeguards are provided:

a) The primary condition is that it must be laid before the Parliament, for a prescribed time.
b) Scrutinising Committee must consider & approve & report to the Parliament.
c) Where affected persons or groups are to be consulted it is mandatory and must be consulted.
d) Publication of the Rules etc. in the Official Gazette is a must.

(i) Laying on the table of the Houses :

This brings to the knowledge of the Parliament, what the rules as framed by the executive are.
Further, the legislators get an opportunity to examine and propose changes, if need be.

Page 45 of 222
The procedure in India is generally:-
i) Rules should be laid as soon as possible on the table of each House for 30 days
ii) Modification, may be made by each House if found necessary.
iii) Publication in Official Gazette.
According to the Supreme Court the publication is essential. (Harla v. State.)

(ii) Scrutiny Committee:

The Lok Sabha Committee on subordinate legislation and the Rajya Sabha Committee on
subordinate legislation in Parliament are charged with the duty to study and scrutinise all
subordinate legislation and report to the Houses whether the powers are properly exercised.These
two bodies act as watch-dogs which bark and arouse their master (House) from slumber
when they find that there is an invasion on legislative power. These two are evidently vigorous
and independent bodies, and, their working is very satisfactory, thus preventing usurpation of
power of Parliament.

*****

DELEGATED LEGISLATION.
Introduction.
Parliament does not have the time or the expertise to pass every law that is required each year.
It is therefore necessary for it to give some of its power to other people and organisations to
make laws.
Parliament gives this power in an enabling Act.
There are three main types of delegated legislation:
• bylaws
• statutory instruments
• Orders in Council

Bylaws.
Bylaws are made by local councils and other public bodies.

Page 46 of 222
For example, a local council might wish to ban drinking in its town centre. Another example
would be the fines incurred by people who let their dogs foul in public parks.
Public corporations, such as the bus and train services, are able to impose fines for non-payment
of fares.

Statutory instruments.
Statutory instruments are regulations made by government departments to implement the
provisions made in Acts of Parliament.
For example, the Department of Constitutional Affairs can make changes to the provision of
legal aid under the Legal Aid Act 1998.

Orders in Council.
Orders in Council are laws passed by the Privy Council, which is a group of senior politicians
who are allowed to make law without the need for the whole of Parliament to be sitting.
The Privy Council has the power to pass laws in times of emergency with the permission of the
queen under the Emergency Powers Act 1920. It may do this in wartime.

Controls on delegated legislation.

• general supervision of delegated legislation
• parliamentary supervision of delegated legislation
• court supervision of delegated legislation

- General supervision
Enabling Act: the enabling Act sets out the powers that Parliament wishes to delegate.
Consultation: the enabling Act may specify that certain organizations or experts must be
consulted before delegated legislation is made.
Publication: all delegated legislation is published and made available for interested parties to
read.

- Parliamentary supervision.
• All bylaws are checked by the relevant government minister.

Page 47 of 222
• All statutory instruments are scrutinised by a group of MPs known as a select committee.
• Affirmative resolution procedure -requires some statutory instruments to be voted on by
Parliament.
• Negative resolution procedure - means that most statutory instruments become law unless a
debate is requested by a Member of Parliament (MP).
• Question time - Government Ministers are accountable and can be questioned by Parliament

- Court supervision: Judicial review.

Under judicial review, an organisation or member of the public may challenge a piece of
delegated legislation in the High Court.
The judge will interpret the wording of the enabling Act to decide whether the law was made
ultra vires (beyond the powers granted by Parliament). If the legislation is found to be ultra
vires, it will be declared void.

Judicial review.
Substantive ultra vires: delegated legislation will be declared void if it allows something that
the enabling Act did not intend, e.g. Commissioners of Customs and Excise v Cure and Deeley
(1962), or if the law made under the enabling Act is ‘unreasonable’ (‘Wednesbury
unreasonableness’).
Procedural ultra vires: the enabling Act may set out certain procedures that must be followed
before delegated legislation can be passed, e.g. Agricultural, Horticultural and Foresty Training
Board v Aylesbury Mushrooms Ltd (1972).
Topic 2

Advantages of delegated legislation

• It saves time. Parliament is only able to pass about 50 Acts of Parliament per year. It is
therefore vital for it to delegate power to make the thousands of other necessary laws.
• It is flexible. Delegated laws can be passed more quickly if they are not required to go through
the official legislation process.
• It is made by experts.

Page 48 of 222
Disadvantages of delegated legislation
• It is undemocratic because it is made by unelected people rather than by Parliament.
• The sheer quantity of delegated laws made each year makes it difficult for the public to be
informed of all the changes to the law.
• Although there are controls and checks for delegated legislation, the large quantity makes it
difficult for proper scrutiny to occur.

Constitutionality of Delegated Legislation

It might be so that the parent statute may be constitutional, but the emanating delegated
legislation maybe in conflict with some provisions of the constitution. The principles of law
applicable to judge the constitutional validity of the Statute are also applicable equally to test the
constitutional validity of the Rules/delegated legislation framed under the said Statute.

If the rules go beyond the rule making power conferred by the Statute, the same has to be
declared ultra vires. If the rule supersede and replace any provision for which power has not
been conferred, it becomes ultra vires.

Therefore, in order to determine the validity/legality of the rules, the basic test is to determine
and consider the source of power which is relatable to the rule. Similarly, a rule must be in
consonance with the parent statute as it cannot travel beyond it.

The judgment of the Supreme Court in :

General Officer Commanding-in-Chief v. Subhash Chandra Yadav
wherein it has been held as under:
“Before a rule can have the effect of a statutory provision, two conditions must be fulfilled,
namely:
(1) it must conform to the provisions of the statute under which it is framed; and
(2) it must also come within the scope and purview of the rule making power of the authority
framing the rule. If either of these two conditions is not fulfilled, the rule so framed would be
void.”
*****

Page 49 of 222
CONDITIONAL LEGISLATION.
When the Legislature enacts a law and authorises the Executive authority to bring into force in
such areas or at such times as it decides or to extend the life of the Act, it is generally called
'Conditional Legislation’. This doctrine was invented by Privy Council, in R v. Burah (1878).
In 1869, the Indian Legislature passed an Act under which it removed Gora Hills from the
system of Law & Courts prevailing therein and vested the administration of justice in some
officers. These officers were to be appointed by the Lt. Governor of Bengal. It also empowered
the Lt. Governor to extend to Gora Hills any other law in force in other places under his control.
The Lt. Governor was allowed to fix a date for the commencement of the Act.

The Privy Council held the Act as valid. The reason was that the Act had exercised its judgment
regarding the place, persons, laws and powers etc., and the Indian legislature having plenary
powers had legislated conditionally. Hence, fixing the date, extending the Act etc., was valid.
Burah and others were convicted as extension of law to them was held valid by the Privy
Council.

The legislation is complete in itself but its operation is made to depend on fulfilment of
certain conditions and what is delegated to an outside authority, is the power to determine
according to its own judgment whether or not those conditions are fulfilled.

It contains no element of delegation of legislative power and is, therefore, not open to attack on
the ground of excessive delegation.
Ex: Sardar Singh V. State of Rajasthan AIR 1957 SC 510
In this case, it was laid down that when an appropriate Legislature enacts a law and authorises
an outside authority to bring it into force in such area or at such time as it may decide, that is
conditional and not delegated legislation.

The Supreme Court in Tulsipur Super Co. Ltd v. Area Committee applied this doctrine. Under
Sec. 3 of the U.P. Town Areas Act, 1914, the Government issued a notification extending the
limits of Tulsipur town to Shitalpur village. The sugar factory in Shitalpur affected by it
challenged this notification. The Court held that the Act had provided the conditions and that

Page 50 of 222
extension was valid as delegated legislation. The other cases are Inder Singh v. Rajasthan and
State of Bombay. V. Narotham Das.

Conditional Legislation: Summary

In this, the subordinate authorities are not delegated to legislate.
It is contingent and conditional. It is only a time factor. Upon reaching certain time or
circumstance, the readymade Act (legislated by supreme legislative authority) is put into force.
The subordinate authorities cannot use their discretionary power. It is their only duty to apply the
law after fact finding (e.g. to inquire whether facts requiring operation of the Act exist).
The conditional legislation delegate’s power is that of determining when a legislative declared
rule of conduct shall become effective.
*****
DOCTRINE OF EXCESSIVE DELEGATION.
While accepting the proposition that delegated legislation is indispensable today, the question of control over this
activity of the Administration becomes crucial. The question of control arises arises at two stages.

1. At source, when legislative power is conferred on the Administration by the Legislature. In England, Parliament
is regarded as supreme and so the courts cannot control Parliament in the matter of delegation of legislative power.
But in USA, the situation is different because of the prevalence of doctrine of separation of power. Therefore the
proposition that is followed here is that legislature ought not to delegate unlimited power to an administrative
authority. The legislature should itself discharge the essential legislative functions, viz., to make and lay down the
policy of statute, and that only the power to lay down details to effectuate that policy may be delegated.
The principle of excessive delegation has been laid down in Panama and the same principle has been adopted in
India as well.

In Panama Refining Co. v. Rya: The Plaintiffs sued to restrain the defendants, who were the federal officials
from enforcing the regulations IV, V and VI prescribed by the Secretary of the Interior under Section 9(c) of the
National Industrial Recovery Act as an unconstitutional delegation to the President of legislative power and as
transcending the authority of the Congress under Commercial Clause. The section purports to authorize the
President to pass a prohibitory law. In this case the delegation was held to be invalid since it involved a very
sweeping congressional delegation. The Supreme Court declared: “ In view of the scope of the

Page 51 of 222
broad declaration, and of the nature of the few restrictions that are imposed, the discretion of
President in approving or prescribing codes, and thus enacting laws for the government of trade
and industry throughout the country is virtually unfettered”.
The Court found no standard in the Act. The code-making authority was held to confer an unconstitutional
delegation of legislative power.

2. After delegated legislation has been made by the concerned authority in exercise of the power conferred as in
(1.)Delegated legislation has come to stay as an important component of the modern administrative process. The
question today lies is not whether there should be delegated legislation or not, but is to ensure that power given to
the Administration is exercised properly, under proper controls, so that benefits of the institutions may be
minimized. This leads to the important question of Judicial Control of Delegated legislation.

Nature and Scope

It has been accepted that Parliament does not possess the legislative power as an inherent and original power. That
power has been delegated to it by constitution. Parliament thus possesses not a right that it can delegate by its sweet
will, but a competence that the Constitution obliges it to exercise itself. It cannot legally delegate its legislative
functions to the executive. Such delegation would be unconstitutional. It is well settled that essential and primary
legislative functions must be performed by the legislature itself and they cannot be delegated to the executive.
Essential legislative functions consist of determination of legislative policy and its formulation as a rule of conduct.
In other words, a legislature has to discharge the primary duty entrusted to it. Once the essential legislative powers
are exercised by the legislature, all ancillary and incidental function scan be delegated to the executive.
In Great Britain, excessive delegations of parliamentary powers are political concerns, in United States (and in
India), they are primarily judicial.

Principles to determine excessive delegation

The question whether there is excessive delegation or not, has to be examined in the light of three broad principles:
1. Essential legislative functions to enact laws and to determine legislative policy cannot be delegated
2. In the context of modern conditions and complexity of situations, it is not possible for the legislature to envisage
in detail every possibility and make provisions for them. The legislature, therefore, has to delegate certain functions
provided it lays down legislative.

Page 52 of 222
3. If the power is conferred on the executive in a manner which is lawful and permissible, the delegation cannot be
held to be excessive merely on the ground that the legislature could have made more detailed provisions.

Test to be applied by Courts

In dealing with the challenge to the vires of any statute on the ground of excessive delegation it is necessary to
enquire whether the impugned delegation involved surrender of essential legislative function and whether the
legislature has left enunciation of policy and principle to the delegate. If the reply is in the affirmative, there is
excessive delegation but if it is in negative, the challenge must necessarily fail .A statute challenged on the ground
of excessive delegation must be subjected to two tests:
1.Whether it delegates essential legislative function; and
2.Whether the legislature has enunciated its policy and principle for the guidance of the executive.

POSITION IN INDIA.
The Supreme Court has made it clear that the excessive delegation is not permissible. The
doctrine of excessive delegation has played an important role in controlling the practice of
delegated legislation. Excessive delegation is taken as abdication of essential legislative function
by the legislature. The delegation must not be unguided and uncontrolled. If the delegation is
excessive, the Enabling Act or Parent Act will be unconstitutional and therefore void and the
delegated legislation made under such Enabling or Parent Act will also be unconstitutional and
void.

In the matter of In re: Delhi Laws ACT is a seminal case in the area of delegated legislation and majority of
judges did play a creative role in evolving doctrine of excessive delegation and was in view that: It is essential that
Parliament (and State Legislatures) should have power to delegate legislative power to the Executive. No doctrine
of Separation of Powers prevails in India.

The Indian Parliament working under a written constitution cannot claim an unlimited freedom to delegate
legislative power. One view, propounded by Fazl Ali, Das and Sastri, JJ., was to put the limit at
“effacement or abdication” by the Legislature which means that legislature could delegate to any extent it
likes as long as it retains its own legislative power. The other view propounded by majority was that legislature
ought not to delegate its “essential legislative power” to an outside agency.

Page 53 of 222
Mahajan J., took a stricter view, said, “Parliament has no power to delegate its essential
legislative functions to others, whether State legislature or executive authorities, except, of
course, functions which really in their true nature are ministerial.”

Mukerjee J., took the view that, it cannot be said that an unlimited right of delegation is inherent in the legislative
power itself and the legislature must retain in its own hands the essential legislative functions which consist in
declaring the legislative policy and laying down the standard which is to be enacted into a rule of law.

The Constitution confers a power and imposes a duty on the legislature to make laws.
It cannot abdicate its functions in favour of another. But in view of the multifarious activities of a welfare state, it
must necessarily delegate the working out of details to suit various aspect of situation. But there is a danger inherent
in such delegation such as, it may not set down any standard for the guidance of the executive, it may confer
arbitrary power on the executive to change or modify the policy laid down by it, without reserving any control over
the subordinate legislation. It is for a Court to hold on a fair, generous and liberal construction of a impugned statute
whether a legislature exceeded such limit.

Excessive delegation as ‘Abdication’.

Abdication means abandonment of sovereignty. When the legislature does not legislate and entrusts that primary
function to the executive or to an outside agency, there is abdication of legislative power. Abdication may be partial
or total. The power to delegate is subject to the qualification that the legislature does not abdicate or efface itself by
setting up a parallel legislature.

But the delegation of legislative power need not necessarily amount to abdication or complete effacement. What
constitutes abdication and what class of cases are covered by that expression is always a question of fact and it
cannot be defined nor a rule of universal application can be laid down.

The legislature cannot part with its essential legislative function which consists in declaring its policy and making it
a binding rule of conduct. A surrender of this essential function would amount to abdication of legislative powers
in the eyes of law. The Court can interfere if no policy is discernible at all or the delegation is of such an indefinite
character as to amount of abdication.

Page 54 of 222
Operation of The Doctrine Of Excessive Delegation.
Powers and Duties of Courts.
The Founding Fathers of the Constitution have entrusted the power of legislation to the representatives of the
people so that the power may be exercised not only in the name of the people but also by the people speaking
through their representatives. The rule against excessive delegation thus flows from and is a necessary postulate of
the sovereignty of the people. At the same time, however, it also cannot be overlooked that in view of multifarious
activities of a modern welfare state, the legislature can hardly find time and expertise to enter into matters of detail.
Sub-ordinate legislation within a prescribed sphere is a practical necessity and pragmatic need of the day.
Delegation of law making power is the dynamo of modern government. If legislative policy is enunciated by the
legislature and a standard has been laid down, the Court will not interfere with the discretion to delegate non-
essential functions to the executive.

Court’s view on Excessive Delegation.

Challenge to the validity of enactments on the ground of delegated legislation often enough presents problems
which are not easy of solution. The recent history of judicial decisions however shows that, there is a considerable
divergence of opinion in the approach to the question dealing with such a challenge. Where the Legislature
provides and lays down principles underlying the provisions of a particular statute and also afford guidance for the
implementation of the said principles, it is open for the legislature to leave to actual implementation to its chosen
delegate.

Excessive Delegation and Constitutional objections.

Delegation of power to the executive is of two kinds i.e. Legislative and Executive. The grant of legislative power
is challenged on the ground that of excessive delegation whereas the grant of executive power may be challenged
on the ground of its alleged violation of the right to equality guaranteed by Art. 14 or violation of any rights
guaranteed under Art.19.The delegation of power is upheld once it is accordance to the policy and standards laid
down by the Courts.
Excessive delegation of legislative power can be assailed under Article 14 of the Constitution as being capable of
being used in a discriminatory manner. When the High Court Judges (Conditions of Service) Act 1954 as
amended in 1986 and 1988, which provided for revised pensions for judges, left the discretion to fix the dates on
which such amendments were to come in force to the state governments, it was held that conferment of such
power could act discriminatorily because every state government might fix a different date for that purpose thus

Page 55 of 222
making revised pensions applicable to the judges on different dates depending upon the state in which the High
Court was located.
The Supreme Court struck down the provisions of the Tamil Nadu Private Educational Institutions (Regulation)
Act 1966, both on ground of excessive delegation as well as violation of the Art. 14 of the Constitution as it did not
contain adequate guidelines to the executive for the exercise of the delegated legislative power.

Conclusion.
Entrustment of legislative power without laying down policy is inconsistent with the basic concept on which our
constitutional scheme is founded. Our Constitution-makers have entrusted the power to legislate to the elected
representatives of the people, so that the power is exercised not only in the name of the people, but by the people.
The rule against excessive delegation of legislative authority is a necessary postulate of the
sovereignty of the people. It is not claimed to be nor intended to be a panacea against the shortcomings of
public administration. Governance of the State in manner determined by the people through their representatives
being of the essence of our form of government, the plea that a substitute scheme for governance
through delegates may be more effective is destructive of our political structure.

*****
JUDICIAL CONTROL OF DELEGATED LEGISLATION.
Doctrine of Ultra Vires.
Meaning:
Ultra Vires means "beyond powers". If the subordinate legislative Authority goes beyond the
powers conferred by the enabling Act, such an exercise of power is Ultra Vires and void. This
applies to all authorities exercising Governmental functions including the subordinate legislative
bodies or Authorities which make rules, regulations, Bye laws, Orders, etc. The doctrine of Ultra
Vires was expounded by Dicey. According to him, the subordinate legislation may be declared
by the Courts as 'beyond the powers' of the Parent Act i.e., the enabling Act. This is the Judicial
control over subordinate legislation.

This is of two kinds:

i) Procedural Ultra Vires,
ii)Substantive Ultra Vires.

Page 56 of 222
i) Procedural Ultra Vires:
a) Publication is essential & mandatory. Hence, if there is no publication in the Offcial Gazzete
as required under the Act, the Subordinate Legislation becomes UltraVires.
b) When previous sanction for making the Rules etc. or where there is provision in the parent
Act, to follow a particular procedure, that must be followed.
c) When power is vested in one authority by the Parent Act, further delegation is Ultra Vires.
d) If consultative requirement, or, public enquiry is prescribed by the Parent Act, it must be
followed strictly and effectively. It should not be a sham consultation of affected parties. If the
procedural requirements are not complied with, the subordinate legislation will be void and Ultra
Vires. However, Courts have drawn a distinction between mandatory (imperative) provision,
and, a directory provision. The legislation is Ultra Vires; but if the provision is directory, then
substantial compliance is sufficient to make it valid.

1. Consultation of interest:
This helps to check possible misuse of power. The persons to be affected may participate in the
rule making process, when they are consulted. Generally the parent Act provides for such
consultation. The Consultation may be varied: It may be official consultation, e.g. Reserve Bank
being consulted in making rules under Banking Companies Act, or statutory Bodies e.g. Board
under Income Tax Act, or Advisory Body as Mine Board in Mines Act.

Consultation makes the process democratic to reach the people in full measure. Otherwise, it
may become bureaucratic. Sufficient opportunity should be given by the Government, with
necessary material. Consultation is mandatory (Banwarilal v. State of Bihar). Hence, without
consultation, it would be void.

2. Publication :
Publication of delegated legislation is an essential requisite; if not published, it would be void
and Ultra Vires. The reason is unlike legislation, where it is widely publicised, the delegated
legislation is made in the secret recesses of the chamber of the Government, affecting the life,
liberty and property of individuals. Hence, it is abhorrent to democratic notions. Hence, the

Page 57 of 222
courts have held that publication i.e., Official Gazette publication is the usual method should be
adopted.

In Narendra Kumar v. Union, the parliament had made the Essential Commodities Act. Section
3 of it provided that rules made under the Act should be published in the official Gazette. The
Central Government, made certain rules, but applied them to issue licenses to acquire non-
ferrous metals. The Supreme Court held that as there was no publication, it was void.

Hence, publication in the official Gazette or some other reasonable mode is a must. The Courts
distinguish whether this requirement is mandatory or directory. If directory, substantial
compliance is essential, otherwise the rule etc would be Ultra vires and void,

Other leading Cases:

1. Srinivasan v. State of Karnataka (1987).
2. Raza Buland Sugar Co. v. Rampur Municipality (1965).
3. Govindlal v. Agricultural Produce Market Committee (1975).

ii) Substantive Ultra Vires:

The Subordinate legislative body or Authority, should not go beyond the policy, principles,
purposes or standards prescribed in the Parent Act. It should also not go beyond the Constitution
of India.

(i) Parent Act & subordinate legislation should be constitutional

The basic requirement is that the parent Act should be constitutional; if not the Act will be Ultra
Vires, and so the rules etc. In Chintaman Rao v. State of M.P, the Parent Act prohibited
manufacture of bidis by agriculturists during certain seasons. The District Court could prohibit
such manufacture certain areas by issuing on order. Held, the Act itself was violative of Article
19(1) (g) of the Constitution and hence Ultra Vires.

The Second requirement is that the subordinate legislation should not be Ultra Vires the
Constitution.

Page 58 of 222
In Narendra Kumar v. Union (1960), the order issued under Section 3 of the Essential
Commodities Act 1955, was challenged, but not the Act. Held, the order should also be
constitutional, otherwise it would be void. The order was held void.

ii) Parent Act should not be violated. This is an essential requisite, and, the subordinate
legislation should not go beyond its power or authority defined in the parent Act. If it does, it
would be Ultra Vires.

In Mohammad Yasin v. Town Area Committee (1952), The Municipalities Act, had
empowered the town Area Committee to frame bye-laws to heavy fee for use of immovable
property of the Committee by traders. The Committee exceeded its authority and levied fee on
wholesale dealers, on any place within the limits of the committee. Held this was Ultra Vires as
it applied to any place.

iii) Retrospective effect:

In I.T.O. Alleppy v. Ponnose, the Govt. by a notification invested the Tahsildar to recover tax
with retrospective effect. Held this was Ultra Vires and void.

iv)Mala fides, unreasonableness:

If the rules orders etc made by the body or authority are malafides, or are unreasonable then they
would be quashed as Ultra Vires the parent Act. The Act made by the Parliament or State
legislature, cannot be questioned on the ground of mala fides, but the rule made by the
administrative authority may be challenged.

In Air India v. Nargesh Merza (Air Hostess Case 1981), that the regulations framed by Air
India for termination of a air-hostess on her first pregnancy was held by the Supreme Court as
unreasonable, arbitrary and hence void.

Page 59 of 222
Conditional Legislation
Meaning:
When the Legislature enacts a law and authorises the Executive authority to bring into force in
such areas or at such times as it decides or to extend the life of the Act, it is generally called
'Conditional Legislation’. This doctrine was invented by Privy Council, in R v. Burah (1878).
In 1869, the Indian Legislature passed an Act under which it removed Gora Hills from the
system of Law & Courts prevailing therein and vested the administration of justice in some
officers. These officers were to be appointed by the Lt. Governor of Bengal. It also empowered
the Lt. Governor to extend to Gora Hills any other law in force in other places under his control.
The Lt. Governor was allowed to fix a date for the commencement of the Act.

The Privy Council held the Act as valid. The reason was that the Act had exercised its judgment
regarding the place, persons, laws and powers etc., and the Indian legislature having plenary
powers had legislated conditionally. Hence, fixing the date, extending the Act etc., was valid.
Burah and others were convicted as extension of law to them was held valid by the Privy
Council.

According to leading authorities Hart, and Cooley, in the United States, the doctrine is
applicable.
The Act or statute provides controls; it does not delegate its legislative powers. But it empowers
the executive to bring the Act into operation on fulfillment of certain conditions.

The Position in India is the same. The Supreme Court in Tulsipur Super Co. Ltd v. Area
Committee applied this doctrine. Under Sec. 3 of the U.P. Town Areas Act, 1914, the
Government issued a notification extending the limits of Tulsipur town to Shitalpur village. The
sugar factory in Shitalpur affected by it challenged this notification. The Court held that the Act
had provided the conditions and that extension was valid as delegated legislation. The other
cases are Inder Singh v. Rajasthan and State of Bombay. V. Narotham Das.

Page 60 of 222
3. Limited Scope:
In view of extended meaning of delegated legislation, the scope for conditional legislation is
very much limited and hardly has any significance today.

Judicial Control:
The administrative action is subject to substantive and procedural ultra vires concept and hence,
may be declared void by the High Courts and the Supreme Court.
i) When the acquisition of land was for the purposes of 'building a market', acquisition made for
car parking was held bad.
ii) The order of detention must be for the purpose specified in the Defence of India Act,
otherwise, the order is Ultra Vires. Similarly, procedures, if prescribed, become compulsory and
should be followed, or where the authority is to consult some specified body or Board, then
consultation is mandatory.

Cases:
1. Franklin v. Minister of the Town and Country Planning
A local inquiry was conducted in public, the objectors were heard in respect of the formation of
Stevenage (name of a town) area. Five months later in a speech, the Minister had said that he
would go ahead with his scheme. The Court held that after the report of the inquiry is submitted,
further steps taken are administrative and not judicial. Hence, Bias is no bar in administrative
action. There must be good faith and an intention to conform to law.

2. Gullapalli Nageswara Rao v. State of A.P. (II Phase)

The Minister for Transport, heard objections and finalised the scheme for Nationalization of bus
routes. Held, there was no violation of Bias.

*****

Page 61 of 222
LEGISLATIVE CONTROL OVER DELEGATED LEGISLATION.
Parliament has power to control the subordinate law making agency. In fact, Parliament has not
only the right but it is under a duty to see that it delegate, carries out what is entrusted to it. It is
for this reason that procedural safeguards are provided:

a) The primary condition is that it must be laid before the Parliament, for a prescribed time.
b) Scrutinising Committee must consider & approve & report to the Parliament.
c) Where affected persons or groups are to be consulted it is mandatory and must be consulted.
d) Publication of the Rules etc. in the Official Gazette is a must.

(i) Laying on the table of the Houses :

This brings to the knowledge of the Parliament, what the rules as framed by the executive are.
Further, the legislators get an opportunity to examine and propose changes, if need be.

The procedure in India is generally:-

i) Rules should be laid as soon as possible on the table of each House for 30 days
ii) Modification, may be made by each House if found necessary.
iii) Publication in Official Gazette.
According to the Supreme Court the publication is essential. (Harla v. State.)

(ii) Scrutiny Committee:

The Lok Sabha Committee on subordinate legislation and the Rajya Sabha Committee on
subordinate legislation in Parliament are charged with the duty to study and scrutinise all
subordinate legislation and report to the Houses whether the powers are properly exercised.These
two bodies act as watch-dogs which bark and arouse their master (House) from slumber
when they find that there is an invasion on legislative power. These two are evidently vigorous
and independent bodies, and, their working is very satisfactory, thus preventing usurpation of
power of Parliament.

*****

Page 62 of 222
PROCEDURAL CONTROL OVER DELEGATED LEGISLATION
(a) Prior consultation of interests likely to be affected by proposed delegated Legislation From
the citizen's post of view the must beneficial safeguard against the dangers of the misuse of
delegated Legislation is the development of a procedure to be followed by the delegates while
formulating rules and regulations. In England as in America the Legislature while delegating
powers abstains from laying down elaborate procedure to be followed by the delegates.

But certain acts do however provide for the consultation of interested bodies. and sometimes of
certain Advisory Committees which must be consulted before the formulation and application of
rules and regulations. This method has largely been developed by the administration independent
of statute or requirements. The object is to ensure the participation of affected interests so as to
avoid various possible hardships.

The method of consultation has the dual merits of providing as opportunity to the affected
interests to present their own case and to enable the administration to have a first-hand idea of
the problems and conditions of the field in which delegated legislation is being contemplated.

(b)Prior publicity of proposed rules and regulations Another method is antecedent publicity of
statutory rules to inform those likely to be affected by the proposed rules and regulations so as to
enable them to make representation for consideration of the rule-making authority. The rules of
Publication Act, 1893, S.I. provided for the use of this method. The Act provided that notice of
proposed 'statutory rules' is given and the representations of suggestions by interested bodies be
considered and acted upon if proper.

(c) Publication of Delegated Legislation - Adequate publicity of delegated legislation is

absolutely necessary to ensure that law may be ascertained with reasonable certainty by the
affected persons. Further the rules and regulations should not come as a surprise and should not
consequently bring hardships which would naturally result from such practice. If the law is not
known a person cannot regulate his affairs to avoid a conflict with them and to avoid losses. The
importance of these laws is realized in all countries and legislative enactments provide for
adequate publicity.

Page 63 of 222
ADMINISTRATIVE DIRECTION AND DELEGATED LEGISLATION.
It is the directions or instructions envisaged by the higher administrative authority to its lower
level administrative authority to apply its discretionary power. Additionally it includes
announcing what would be the policy decisions of the Government

The rules, orders u/ delegated legislation has got legal power; if any one violates those rules they
can be held responsible under law, further it can be executed; if any one is affected they can
approach the court of law for remedy (Writ of Mandamus). But in the case of the Administrative
direction: it does not have the power of law and one cannot be held responsible under law and no
remedy in court of law- once can approach the executive and not the judiciary. So, they are not
law or rules. If a rule controls the executive then it is administrative direction and if it controls
the common public then it is delegated legislation. The above statement is clearly explained by
the Supreme Court in: Raman and Raman V. State of Madras

Administrative Direction are binding?

Amratlal v. State of Gujarat (AIR 1972 Gujarat 260)
The Gujarat State Government has released a Gujarat Grant-in-Aid Code. According to this,
rules are made for the schools in the State receiving aid from the State. The Gujarat HC has
made this as an administrative direction also said that its an equitable right.

*****

Page 64 of 222
 UNIT – 3
PROCEDURAL FAIRNESS AND JUDICIAL REVIEW

Principles of Natural Justice.

'Natural Justice' is an expression of English Common Law having its origin in Jus natural (law of
Nature). It involves procedural requirement of fairness. In England, it was initially applied to the
Courts, but later projected from the judicial to the Administrative sphere. It is justice that is
simple and elementary, and fair play in action. In fact, ‘Arthasastra’ of Kautilya has a reference
to natural justice.

 The Principles of Natural Justice have come out from the need of man to protect himself
from the excesses of organized power man has always appealed to someone beyond his
own creation. Such someone is the God and His laws, divine law or natural law, to which
all temporal laws and actions must confirm.
 Natural Law is of the 'higher law of nature' or 'natural law'
 Natural Law does not mean the law of the nature or jungle where lion eats the lamb and
tiger eats the antelope but a law in which the lion and lamb lie down together and the
tiger frisks the antelope.
 Natural Law is another name for common-sense justice.
 Natural Laws are not codified and is based on natural ideals and values which are
universal.
 In the absence of any other law, the Principles of Natural Justice are followed.
 Earliest form of natural law can be seen in Roman philosophical expressions (Jus
Naturale). It is used interchangeably with Divine Law, and the common law of nations.
 The Principles of Natural Justice are considered the basic Human Rights because they
attempt to bring justice to the parties naturally.
 Giving reasoned decisions is a principle of Natural Justice.

Page 65 of 222
Calvin’s case

• In this English case, where the Law of morals was considered to be Natural Law. It was

made by God, it does not change and even the Parliament cannot distort the safeguard

provided by it and the Court has held that it is Law of All Laws.

Dr. Bentlay’s case

• The Law of God and the Law of Man enshrines the concept of natural justice and gives

the opportunity of hearing to both the sides or parties in a case. Before punishing Adam,

the God gave opportunity to him to explain his side.

In Ridge v. Baldwin (1964) the observance of natural justice was made applicable to the entire
range of administrative action. This was followed in India in State of Orissa v. Binapani;

A.K. Kraipak v.Union of India and Maneka Gandhi v. Union of India. The purpose of
Natural Justice is prevention of miscarriage of justice, and hence is applicable to administrative
enquiries. It was held that if there is no specific provision or rule to follow these principles,
before taking action against an individual, the Court would read into the provision the
requirement of natural justice.

Basic Pillars of Principles of Natural Justice

Two core points in the concept of principles of natural justice.
1. Nemo Debet Esse Judex In Propria Causa - No one should be made a judge in his own case,
or the rule against bias / Interest of Prejudice.
2. Audi Alteram Partem -This means 'hear the other party ' i.e., 'no one should be condemned
unheard'.

These two constitute the essence of Natural Justice. The Rule of law demands that these
principles should be followed. These apply in all cases where a quasi-judicial tribunal or an
administrative authority is determining the rights of the individuals.

Page 66 of 222
Nemo debet esse judex in propria Causa (No one should be a judge in his own cause.)
This is also named as RULE AGAINST BIAS.
 When a judge is authorised to decide a case through his power, leaving aside the
evidence(s) of the case getting influenced from other thing s or facts and deliver a verdict
is considered to be biased.
Rule against Bias: Based on 3 Maxims
(1) No man shall be a judge in his own cause.
(2) Justice should not only be done but manifestly and undoubtedly be seem to be done.
(3) Judges, like Caesar’s wife should be above suspicion. Rule Against Bias:
No man shall be a judge in his own cause
 Judge should be impartial and natural and must be free from bias.
 If the judge is subject to bias in favour of or against either party to the dispute, he is
disqualified to act as a judge and the proceedings will be vitiated (spoil or impair the
quality or efficiency of sth).
 Justice should not only be done but manifestly and undoubtedly be seem to be done
 Justice can never be seen if a man acts as a judge in his own cause or is himself interested
in its outcome
Leading cases:
1. Dr.Bonham's case (1610):
The leading case that projected this concept into prominence was Dr. Bonham's Case. The Royal
College of physicians was empowered to grant licence to practice medicine. Dr. Bonham did not
take out the licence. He was fined and imprisoned. He filed a suit for false imprisonment.
Chief Justice Coke decided in favor of Dr. Bonham, and held that the 'College could not be a
judge, in its own cause'. The decision of the College was quashed. Half of the fine so collected
was to go to the college itself. Hence Bias was complete. Absence of Bias is the essence of this
doctrine. 'Judges like Caesar's wife should be above suspicion'. Even a remote interest or Bias is
enough.

2. Dimes v. Grand Junction Canal (1852)

There was a dispute between the land owner and a Company. The case was heard and decided in
favour of the Company by the Vice-Chancellor. On appeal, the Lord Chancellor (Lord

Page 67 of 222
Cottonham) heard and confirmed the decision. (Lord Cottonham retired). His decision was
challenged before the House of Lords on the ground that Lord Cottonham was a shareholder of
that company. Held, no one can suppose that Lord Cottonham could be, in the remotest degree,
influenced by the 'interest' he had in this Company. But, no one should be a judge in his own
cause is sacred. Hence, his decision was quashed. This is called legal interest i.e., the judge is
in such a position that bias must be presumed.

As Lord Hewart, aptly puts 'Justice should not only be done, but should manifestly and
undoubtedly be seen to be done'.

R v. Deal Justices ex parte Curling

The Magistrate was not declared disqualified to try a case of cruelty to an animal on the ground
that he was a member of Royal Society for the Prevention of Cruelty to Animals as this did not
prove a real likelihood of bias.

Indian Case Laws

G. Sarna v. University of Lucknow
If a person had waived his right to challenge a selection on the ground of bias, he cannot
subsequently challenge the same.

Jeejeebhoy v. Asst. Collector, Thana

The CJ, reconstituted the bench when it was found that one of the members of the bench was a
member of co-operative society for which the land in dispute had been acquired.

A.K. Kraipak v. UOI

The acting Conservator of Forests was a member of the selection board and was also a candidate
for the selection to the All India Cadre of Forest Service. He did not take part in the deliberations
of board when his name was considered and approved, but he did participated when the names of
the rivals were considered for selection. And he did participate in the deliberations of the board
while preparing list of selected candidates in order of preference. The SC, held that there was a

Page 68 of 222
real likelihood of bias for the mere presence of candidate on the selection board may adversely
influence the judgment of other members. The actual proof of bias is not necessary.

Kirti Deshmanker v. UOI

When a personal relation of a person was directly in a position to influence the decision, it was
held that there was reasonable likelihood of bias.

Cantonment Executive Officer v. Vijay D. Wani

The members of a committee who conducted a disciplinary inquiry were also the members of the
Cantonment Board where the inquiry report was to be considered i.e., a decision about the guilt
of the respondent was to be adjudged. Held, reasonable bias.

Hari v. Dy. Commissioner of Police

An internment order was challenged on ground that since the police department which initiated
the proceeding and the Department which heard and decided the case were the same, the
element of departmental bias vitiated administrative action. The Court held, no bias as the
functions discharged by two different officers.

RC Cooper v. UOI
One of the SC judges in the bench was having shares in a nationalized bank involved in the case.
Despite that the enquiry was done and given verdict. Before the enquiry of the case, the
information regarding the shares were shared to the petitioners and as their counsel did not have
any objection then only the enquiry was started. So, no bias.

3. Bias may be of three kinds:

(i) Pecuniary Bias
(ii) Personal Bias
(iii) Official Bias

Page 69 of 222
(i) Pecuniary Bias: Judge may have bias - in the subject matter or with litigation.(Legal
interest). “There is a presumption that any financial interest however small in the matter in
dispute disqualifies a person from adjudicating” - Halsbury’s Laws of England.
1. Dr.Bonham's case.
2. Dimes Case
3. Gullapalli Nageswara Rao v. A.P. Road Transport Corporation. (I Phase)
In this case, the scheme to nationalise the bus routes was made by the Secretary to the Road
Transport Dept., He himself heard the objection of the fleet owners under the Motor Vehicles
Act, and recommended for nationalisation of routes. As Secretary, he was interested in the
subject matter and biased and hence disqualified to hear the Supreme Court held. The Order was
quashed.

Vishakapatanam Motor Transport Ltd. V. Bangaruraju

The RTO authority presided over by the District Collector – granted a permit to a co-operative
society of which the Collector was the president – court set aside the order – contrary to PNJ

R v. Mulvihill
The test of pecuniary interest will not apply to criminal cases – accused was convicted for
committing robbery in a bank in which the trial judge was having 1650 shares – accused
contended that the trial was vitiated.

It was observed that there are two types of cases of Interest.

There may be cases in the outcome of the case. In these cases, the Court applies very strictly the
maxim that ‘nobody may be a judge in his own cause’ and the decisions which are made in those
circumstances are voidable because bias is conclusively presumed’. There may be cases in
which there is no direct pecuniary interest in the outcome of the case, but the surrounding
circumstances give rise to a reasonable suspicion that justice is not being done because an
adjudicator has an interest which falls short of being direct pecuniary interest.

Page 70 of 222
(ii) Personal Bias:
This may be due to relationship, personal friendship, professional or employment relationship or
personal hostility. The judges hould be free from certain obvious and crude forms of interest.

• Personal bias occurs when there exists some relationship between the deciding authority
and the parties which incline him favourably or unfavourably on the side of one of the
parties before him.
• Personal bias occurs when there exists some relationship between the deciding authority
and the parties which incline him favourably or unfavourably on the side of one of the
parties before him.

Cottle v. Cottle:
W had filed a divorce petition against her husband H. The chairman of the Bench was the friend
of W’s family. W told H that she would win the case. The order was in her favour. The Court
quashed the order of the Chairman.

Maneklal v. Premchand:
A filed a complaint against M, his advocate for misconduct. The Disciplinary committee was
appointed which conducted an enquiry. The Chairman had represented "A" in a case. The
Supreme Court held that the enquiry was vitiated.

There is substantial likelihood of bias in these cases. The bias here depends not on what actually
was done but upon what might appear to be done. (Lord Hewart).The test is a reasonable
apprehension based on factual situation. Whimsical, capricious or vague opinions are not
standard to judge bias. "Justice in fact should be done" according to Lord Hewart.

RC Chandel v. High Court of M.P.

SC upheld compulsory retirement of a District and Sessions Judge of MP – “ A judge is expected
not to be influenced by any external pressure and he is also supposed to not exert any influence
on others in any administrative or judicial matter”

Page 71 of 222
The credibility of the judicial system is dependent upon the judges who man it. For a democracy
to thrive …. Every judge must discharge his judicial functions with integrity, impartiality and
intellectual honesty. Justice R.M. Lodha cautioned that, “A judge must be a person of
impeccable integrity and unimpeachable independence” for the survival of democracy and rule
of law.

Meenglas Tea Estate v. Workman

A manager conducted an inquiry against a workman for the allegation that he had beaten the
manager. It was held that the inquiry was vitiated because of personal bias.

Pratap Singh v. State of Punjab

In this case the appeal was made by a doctor and he was removed from service by the
intervention of the CM of the State, this was proved in the Court. The SC held that the
termination of service is void.

AK Kraipak v. UOI
In this case, one Kraipak and others were Gazetted Officer of State of J&K and they applied for
the post of Indian Forest Service u/ The Indian Administrative Act, 1951. This recruitment
process was the work of UPSC. One Naquishbund, was the ex-officio member of UPSC involved
in the selection process of candidates and he was also a candidate for the IFS. Naquisbund got
selected with others.
The SC held that the its personal bias and against the PNJ. It is against all canons of justice to
make a man judge in his own cause.

State of UP v. Mohd. Nooh

In this case a Head Constable was charged with some offence and the enquiry was done headed
by the Commissioner of Police. The Commissioner made the Asst. Commissioner head the
enquiry and gave evidence in the case.. The SC held, its personal bias and the whole enquiry was
void.

Page 72 of 222
Other leading Cases:
1. Institute of Chartered Accountants v. Ratna (1986)
2. Krishna Bus Service v. State of Haryana.
3. R. v. Sutherland
4. R. v. Sussex Justices.
5. Hindustan Petroleum v. Yashwant (1991)

(iii) Official Bias / Subject Matter Bias

The Judge or person should not be a witness in the matter that he is deciding.

Muralidhar v. Kadam Singh

In this case the Head of the Election Tribunal’s wife was a candidate in a election who defeated
the petitioner in the election. When there was a case on this issue then the SC held that there was
no official bias. The situations where the deciding officer is directly or indirectly in the subject
matter of the case.

Gullapalli Nageswara Rao v. APSRTC (I)

In this case. It was held that violation of NJ where the Secretary was interested in the subject
matter.

Gullapalli Nageswara Rao v. APSRTC (II)

Scheme initiated by Secretary and hearing was given by the CM – valid proceedings

Tata Cellular v. UOI

Tender for giving license for operating cellular mobile in 4 metros – Director General of
Telecom is the technical member of evaluation company – his presence is required in the
evaluation committee – his son working in one of the company has applied for license –
committee issued license to that company – bias alleged – SC held that there is Remote bias – it
is not accepted – doctrine of necessity applied, as no substitution is possible.

Page 73 of 222
Test of Real Likelihood of Bias:
Manak Lal v. Dr. Prem Chand
Manak Lal was lawyer practicing in Rajasthan HC. It was alleged by Prem Chand that he has
committed Professional misconduct and complained to Bar Council. A tribunal with a Chairman
and two members were made to enquire the case and Manak Lal was removed from the
Advocate rolls for professional misconduct. It was alleged by Manak lal that the Chairman of the
tribunal was initially an advocate for the said Prem Chand. Alleged Personal bias. The Court
held that there was no personal bias as he would not remember a case before 7 years. No real
likelihood of bias but the Chairman of the Tribunal was disqualified to be in his post.

Judicial Obstinacy (Stubborness) / Judicial Bias

Justice P.D. Dinakaran v. Hon’ble Judges Inquiry Committee
The SC held that in India the Courts have held that, the test of “real likelihood of bias” is to be
applied, considering whether a fair minded and informed person, apprised of all the facts, would
have a serious apprehension of bias.

• “Real likelihood of bias” – Real likelihood of bias depends not upon what actually was
done but upon what might appear to be done (Lord Hewart)

State of U.P. v. Mohammad Nooh.

The Superintendent of Police got himself examined as a prosecution witness at a proceeding
against a constable, in which the S.P., was the enquiring officer. Held, violation of natural justice
and therefore the proceedings were quashed.

Raja Ram v. The State:

A Superintendent of Police dismissed a Constable, on the ground that the Constable had sent a
telegram against him to the higher officials. This was quashed as the S.P. was a judge in his own
cause.

Page 74 of 222
Mohapatra v. State of Orissa:
A Committee had been setup by the Government for prescribing text books for educational
Institutions. Some were authors of books and they had recommended their own books. Held,
Bias.

Audi Alteram Partem: RIGHT TO BE HEARD.

'No man should be condemned unheard'. This demands a fair hearing because, the persons
must know the case he has to meet and he must have adequate opportunity to meet it. This means
any authority or body empowered to decide the question of legal rights, of persons should follow
this rule. Otherwise, the decision would be quashed as violative of Audi alteram partem.

India:
It’s the first principle of the civilised jurisprudence. The Position in India is the same as in U.K.
"fair hearing" is a must and the person should not be "hit below the belt" (Krishna Iyer J). "Oral
hearing" is the content of fair play and hence should be provided to the affected person. Full
opportunity should be given. No material or evidence should be used against the affected person
without giving on opportunity to him to defend.

 A person facing the charge must be given an opportunity to be heard, before any decision
is taken against him.
 The laws of God and man both give the party an opportunity to defend himself. Even
God did not pass a sentence upon Adam before he was called upon to make his defence.
(Cooper V. Wandsworth Board of Works)
 Art 14 – Right to Equality – Maneka Gandhi case – any action which is arbitrary is a
violation of quality clause.
 Art. 19 – reasonableness – procedural reasonableness means right of fair hearing
 Art. 21 – ‘ procedure established by law’ – a procedure cannot be called fair procedure
which denies a right to fair hearing
 Art. 22 ; Art. 32 & 226; Art. 227
 Art. 311(2) – right to notice and reasonable opportunity as a safeguard against arbitrary
dismissal or removal from service.

Page 75 of 222
In State of Orissa v. Dr. Binapani Dei, the petitioner had been compulsorily retired on the basis
that she had attained 55 years of age. On the facts of the case, the Supreme Court held that the
order was bad as no opportunity had been given. It held that even if the order was administrative
in character, it should follow the principles of natural justice when the order involved civil
consequences. If the statute or rules are silent, the courts read into it the principles of natural
justice, as a "must", to be followed, by the Authorities, the Court said.

Board of High School v. Ghaneshyam.

The Respondent were debarred from taking next exam as penalty for using unfair means in the
Exam. The Committee gave no opportunity. Held, as the nature of the Committee order was
quasi-judicial, it should have followed the Principles of Natural Justice. As there was no hearing,
the decision of the Committee was quashed.

Olga Tellis v. Bombay Municipal Corporation (1985) where unauthorized slum dwellers were
thrown out by the Corporation, the Corporation contended that there was no provision to give
notice. Supreme Court rejected and said that the provision was not a command to the
corporation, "not to issue notice". The discretion was held bad.

Maneka Gandhi v. Union (1978) where the passport of petitioner had been impounded by the
Govt. of India "in public interest". No opportunity had been given to her before impounding the
passport. Held, this was violative of the right of hearing and held ultra vires. Her Fundamental
right to go abroad under Art. 21 had been affected, without hearing.

Srilekha Vidyarthi v. State of U.P. (1991) where the State Government issued a circular
terminating all the Government Counsels (Pleaders). They could be terminated at any time,
without assigning any cause. The Supreme Court held that the circular was arbitrary and against
public policy and hence void.

Board of High School v. Ku. Chitra (1970). C had taken the examination. The Board later
cancelled her exam, on the ground that she had shortage of attendance. The Board had given no

Page 76 of 222
hearing. The Supreme Court held that there was violation of ‘audi alterm partem’ and hence the
cancellation was void.

Audi Alteram Partem: International Dimension

 Art. 10 of Universal Declaration of Human Rights:
Everyone is entitled in full equality to a fair and Public Hearing by an independent and impartial
tribunal, in the determination of his rights and obligations and of any criminal charge against
him.

 European Convention on Human Rights and Fundamental Freedoms, 1950

Art. 16(1) :“ In the determination of his civil right and obligations or any criminal charge agaisnt
him, everyone is entitled to a fair and public hearing within a reasonable time by independent
and impartial tribunal established by law”.

Contents of the Concept:

i) Notice:
Notice of place, time and the proposition must be given. It must be sufficient clear, specific,
unambiguous and understandable by the concerned person. There should be sufficient time to
make representation.

ii) Fair hearing:

Adequate opportunity must be provided for an oral hearing. Documentary and oral evidence are
to be considered, cross-examination must be allowed.

iii) Evidence is to be collected in the presence of both parties.

iv) He who hears must decide is a rule though not essential.
v) There should be no malafides or vindictive tendency on the part of the presiding Officer.
vi) Reasoned Decisions or Speaking orders should be made giving out reasons for the
findings decision.
 Speaking order means an order which contains the reasons for the decisions.

Page 77 of 222
  Giving reasons in support of an order is considered to be a third principle of natural
justice.
 The main advantages of reasoned decision are:
 The party aggrieved will get an opportunity to raise a contention before the appellate
authority or revisional court that the reasons which persuaded the authority to reject the
case is erroneous.
 It minimize chances of arbitrariness and ensures fairness in the decision making process.
 It introduces clarity in the decisions.

Audi Alteram Partem: Notice

 Hearing starts with the notice by the authority concerned to the affected person.
 Proceeding without notice – violate PNJ – void ab initio.
 Notice – statutory requirement – given in a manner provided by the statute.
L.P. Singh V. Board of Governors, M.A.C.T. – gross violence between students – notice could
not be served on them because they had absconded – action of the authority was held to be valid
– as a notice could not be served on the students on account of their own fault.

R v. University of Cambridge – University deprived Dr. Bentley’s degree for his misconduct –
without giving notice and opportunity of hearing – decision of University is null and void.
 Notice must be clear, specific and unambiguous and the charges should not be vague and
uncertain

Canara Bank v. Dabaris Das

 Notice must give sufficient time to the person concerned

Audi Alteram Partem: Fair Hearing

The Election Commission cancelled the poll without conducting a hearing with the candidates -
should be heard before passing the order.

Mohinder Singh v. CEC

• Both side should be heard before passing the order.

Page 78 of 222
Audi Alteram Partem: Disclosure of Evidence
If the evidence is used without disclosing to the affected party, it will be against the rule of fair
hearing

State of Orissa v. Binapani De

It was not necessary to show the report of enquiry committee to the affected persons – whether
the report of enquiry committee should be furnished or not depends in every individual case on
merits of the case.

Keshav Mill Co. V. UOI

All the evidence which the authority wishes to use against the party, should be placed before the
party for his comment and rebuttal.

Audi Alteram Partem: Cross Examination

Central Bank of India v. Karunamoy
Parties must get an opportunity to rebut the evidence or material in the disciplinary proceedings
initiated by the Govt against the civil servants, the right to cross examination is included in the
rule of hearing.

Hira Nath Mishra v. Rajendra Medical College

Male students were charges off indecent behavior towards girl students – refusal to allow the
accused male students to cross examine the girl students was upheld – not treated as violation of
Natural Justice – allowing the accused to cross examination would have been more embarassing
for the girl students and refusal was necessary for protecting them.

Audi Alteram Partem: One Who Decide Must Hear

Gullapalli Nageswara Rao v. APSRTC
‘P’ owner of a motor transport – Govt. published a scheme for nationalisation of motor transport
in the State – invite objections – ‘P’ filed objections – Secretary of the transport department
received and gave a personal hearing to the objections – scheme was approved by the CM – held
that there is violation of NJ- Secretary who has initiated the scheme has also has heard the

Page 79 of 222
objections (not a fair hearing) – hearing was held before one person and another gave the final
decision (CM). Scheme initiated by Secretary and hearing was given by the minister – valid
proceedings.

Audi Alteram Partem: Right of Counsel

Krishna Chandra v. UOI
Denial of legal representation will amount to violation of NJ, because in such condition the party
may not be able to understand the question of law effectively.

The Board of Trustees, Port of Bombay v. Dalip Kumar

Illiterate persons will not be able to plead the case as effectively as a legal representative of
counsel may represent fairly watching the interest of the affected party.

Mohinder Singh v. Election Commission

Not a part of natural justice and cannot be claimed as of right.

MH Hoskot v. State of Maharashtra

Free legal aid to the poor is an essential element of reasonable, fair and just procedure and a
procedure which failed to provide for free legal service to the poor and needy persons cannot be
referred as reasonable, fair and just and thereby it would be violative of Art. 21

ii) Leading cases:U.K.

1. Dr. Bentley's Case: (1723)
This rule got into prominence with Dr. Bentley's case Dr.Bentley was a professor of great
eminence. A process was sent to him by the Vice Chancellor of Cambridge University. He
ignored it and remarked that the Vice Chancellor had acted like a fool. The University, deprived
him of his degrees. The case was nullified by the Court on the ground that Dr. Bentley was not
heard. The judge Fortescue said '..."Even God himself did not pass sentence upon Adam,
before he was called upon to make a defence". Hence, opportunity of being heard is the first
rule of civilized jurisprudence as developed by Men and God, and "Right of hearing" is sine qua
non.

Page 80 of 222
2. Ridge v. Baldwin (1964)
A Chief Constable was prosecuted for obstructing justice, but was acquitted by the court. The
judge passed strictures against the accused in the course of his judgment. The 'Watch Committee'
based on the decision of the Court and the strictures, passed by the Judge, dismissed, the Chief
Constable. When this was challenged, the House of Lords held that as no opportunity was given,
there was violation of audi alterem partem, Hence, the dismissal order was quashed.

3. Errington v. Minister of Health (Jarrow Case)

Objection to a 'demolition and clearing' order were received at a public enquiry and a report was
submitted. Later, the Inspector visited the place again, discussed and collected further evidence
from the officials of Jarrow Corporation, behind the back of the objectors. The Court held that
hearing one side in the absence of the other was violative of Natural Justice and the order of the
Minister was quashed, as it was based on evidence collected without hearing the affected
persons.

4. Cooper v. Wandsworth Board (1863)

The Act had not stated that notice should be given before taking action to pull down a house.
Coopers House was pulled down even without hearing him. The contention that this was an
administrative act and no notice called for was rejected by the Court. The Court said that it
would supply the omission. Held, hearing was a must. The Court ordered for the payment of
compensation.

5. Local Board v. Alridge

The Council issued an order to close down the house which was unfit for human habitation. A
public enquiry was held, but the owner did not attend. Later he complained that there was no fair
hearing. Held the plea of the owner was bad. Giving opportunity was essential. Alridge by not
appearing, had waived his right.

6. Spackman's Case
The Medical Council struck off Dr. Alridge’s name on the ground that the divorce Court had
found Dr. Alridge guilty of adultery with a woman professionally. The Council had not

Page 81 of 222
conducted a 'due inquiry' before removing Dr. Alridge's name. The House of Lords, issued a
Certiorari to quash the council's decision.

7. Bagg's Case(1615)
James Bagg condemned the Mayor of Plymouth and said 'You are a knave, I will crack your
neck" etc. For his unbecoming conduct, he was deprived of his voting right. Held, as there was
no "hearing", the order was bad and was quashed.

iii) Position in the United States:

The Administrative Procedure Act 1946 has provided that the adjudicatory action to be valid
should have a hearing where each party is given the opportunity to know the claims of the
opponent, to hear the evidence, to cross-examine the witnesses, to make arguments etc. This is
the requirement of the due process clause of the Fifth Amendment of the Constitution.

Cases where hearing was not required:

1. In case of mass copying, in Exams, the courts have held that hearing was not essential.
2. Hira Nath v. Rajendra Medical College: Some male students had entered nakedly into a
girl's hostel compound in the night. 36 lady students reported and on this basis, the male students
were charged. The Committee told the charges to them and held them guilty. The male students
were expelled from the college. No hearing was allowed. When challenged, the Supreme Court
held that looking to the facts and circumstances, hearing and cross exam, of girl students etc. was
not feasible. The order of expulsion was held valid.

Scope:-1. The general rule is that the body or authority should make a speaking order, recording
reasons in support of the decision taken by it. (M.P. Industries v. Union). This ensures fairness,
and minimises arbitrariness. As per the Supreme Court (per Bhagavati J), in Maneka Gandhi's
case, recording reasons in support of the order etc is a basic requirement of audi alteram partem.
Hence, impounding of passport was held bad. Sometimes, requiring reasons for the decision is
called the third principle of Natural Justice. This was held so in Raipur development
Authority v.Chakamal.

Page 82 of 222
If relevant grounds are not disclosed, the appellate court will have no material to test whether
the order was just. Appellate authority or court should judge the validity, on the basis of reasons
recorded in the order. In Padfield v. Minister, the minister had the power to refer complaints to
the committee. He gave detailed reasons for not referring to committee. When this was
challenged, the House of Lordsheld that the order was questionable whether he had given
reasons or not. There were no| good reasons and hence the order was quashed.

The Courts in India, have applied the same high standards. In Maneka Gandhi's case, not
disclosing the grounds for impounding passport was held to be subject to judicial scrutiny. It held
"Law cannot permit the exercise of power to keep the reasons undisclosed, if the sole reason for
doing so, is to keep the reasons away from judicial scrutiny".

EXCEPTIONS TO THE PRINCIPLES OF NATURAL JUSTICE.

 The need for notice and hearing is excluded in exceptional cases of emergency in which
prompt, preventive or remedial action is required.
Mohinder Singh Gill v Chief Election Commissioner
 If to condemn unheard is wrong, it is wrong except where it is overborne by dire social
necessity.
 Exclusion in emergency.
 Exclusion in cases of confidentiality
 Exclusion in cases of fairness
 Exclusion in case of purely administrative matters
 Exclusion based on impracticability
 Exclusion in cases of interim preventive actions
 Exclusion in cases of legislative action
 Where right of no person is infringed
 Exclusion in case of Statutory Exception or Necessity
 Exclusion in case of contractual arrangement
 Exclusion in case of government policy decision

BALCO Employees Union v. UOI

Page 83 of 222
While taking policy decisions relating to economic matters, the Govt was not bound to observe
Natural Justice.

Effects of Breach Of Natural Justice.

 A decision rendered in violation of the rule against bias is merely voidable and not void. The
aggrieved party may waive his right to avoid the decision.
 But any action in violation of the audi alteram partem rule is completely void and of no
value.
*****
POST DECISIONAL HEARING.
Introduction.
Pre-decisional hearing is a hearing managed before making a choice or sanctioning an order.
Post-decisional hearing, as opposed to its counterpart, is a hearing given by the adjudicating
authority subsequent to making a choice or a decision.

As a general rule, a hearing should be afforded before a decision is taken by an authority. In the
leading case law Ridge v. Baldwin which is sometimes referred as the be all and end all of
Natural Justice, a Constable was accused of conspiracy followed by the prosecution by the
authorities but in the end he was held not guilty and was acquitted of blame. While the judge was
deciding the matter, certain remarks were made by the judge against the character of the
Constable based on which he was expelled from his service. The Court of Appeal held that the
committee which had expelled the Constable from his job as a result of the remarks made by the
judge against his character, was exercising Administrative and Judicial or Quasi-Judicial power
and therefore the Principles of Natural Justice did not fit here. Soon, this decision was reversed
by the House of Lords by a 4:1 majority and the order of dismissal was therefore, not upheld.

Post-Decisional Hearing.
The principle of the post-decisional hearing was propounded by the Supreme Court in Maneka
Gandhi v. Union of lndia. For this situation, the Supreme Court set out the rule that if in the
interest of the general public, quick action was fundamental and it is impractical to manage the
cost of a hearing before the decision, it ought to be managed after the decision. The passport of

Page 84 of 222
the petitioner who also happened to be a journalist was seized by the Government of India in
light of a legitimate concern for public wellbeing.
The petitioner was not given any chance before making the impugned move. At the point when
the legitimacy of the impoundment request was checked, the Government battled that the use of
the audi alteram partem rule would have gone against the very reason for seizing the passport.
Despite the fact that the Supreme Court dismissed the conflict, it acknowledged the principle of
post-decisional hearing in instances of outstanding nature. lt set out the recommendation that
wherein an emergent circumstance, requiring prompt activity, it is not possible to give prior
notice of hearing the preliminary action should be soon followed by a full remedial hearing.

A similar methodology was employed by the Supreme Court in Swadeshi Cotton Mills v.
Union of lndia where a void administrative choice was approved by post-decisional hearing. An
order assuming control over the administration of an organization by the Government without
earlier notice or hearing was held to be bad as it abused the audi alteram partem rule. Be that as it
may, the Court approved the impugned order on the grounds that the Government had consented
to give post-decisional hearing.

In Liberty Oil Mills v. Union of lndia, a request for examination was tested on the ground of
contravention with the principles of natural justice. The Supreme Court saw that maybe that the
chance to be heard may not be pre-decisional, it might essentially be post-decisional where the
danger to be averted is imminent, or the action to be taken can brook no delay.

In Shepherd v. Union of India, a request was issued to amalgamate certain banks with some
Nationalized Banks. Certain representatives of Private Banks were prohibited from working in
the Nationalized Banks. Thus, their service was ended without allowing them a chance to be
heard. Dismissing the proposition for post-amalgamation hearing, the Supreme Court felt that,
“there was no reason to think about a post-decisional hearing.”

The authority who sets out on a post-decisional hearing will ordinarily continue with a shut mind
and there is not really any possibility of getting a proper consideration of the representation at
such post-decisional hearing.” In Bari Doab Bank V. Union of lndia, the legislature passed the

Page 85 of 222
request for bank under Banking Regulations Act, 1949 of the petitioner Bank. It was held by the
Supreme Court that applicants were not qualified for pre-decisional hearing before passing a
request as post-decisional at the phase of filing issues with the draft plan would be adequate.

The teaching of post-decisional hearing has been given an exceptionally legitimate exposition in
Charan Lal v. Union of lndia, which is a case identifying with the Bhopal Gas Disaster
(Processing of Claims) Act, 1985. The Supreme Court held that a general rule unique in relation
to an absolute rule applying consistently is that where the statute does not reject the rule of pre-
decisional hearing but rather ponders over post-decisional hearing which adds up to full review
of the benefits of original order, at that point such a resolution would be interpreted so that it bars
audi alteram partem rule at the phase of pre-decisional hearing. On the off chance that the rule is
quiet on the purpose of giving pre-decisional hearing, at that point administrative activity after
post-decisional hearing is legitimate.

Conclusion
The application of this doctrine does not come with a strait jacketed formula but is rather based
on the facts and the situation of the case. In the event where pre-decisional hearing cannot be
applied, post-decisional hearing can come to the rescue.
*****
JUDICIAL REVIEW: MEANING AND DEFINITION.
 Judicial Review refers to the power of the judiciary to interpret the constitution and to
declare any such law or order of the legislature and executive void, if it finds them in
conflict the Constitution of India.
 The Constitution of India is the supreme law of the land. The Supreme Court of India has
the supreme responsibility of interpreting and protecting it. It also acts as the guardian-
protector of the Fundamental Rights of the people. For this purpose, the Supreme Court
exercises the power of determining the constitutional validity of all laws.
 It has the power to reject any law or any of its part which is found to be unconstitutional.
This power of the Supreme Court is called the Judicial Review power. State High Courts
also exercise this power but their judgments can be rejected or modified or upheld by the
Supreme Court.

Page 86 of 222
  Judicial Review refers to the power of the judiciary to interpret the constitution and to
declare any such law or order of the legislature and executive void, if it finds them in
conflict the Constitution of India.
Judicial Review is the power of the Judiciary by which:
(i) The court reviews the laws and rules of the legislature and executive in cases that come before
them; in litigation cases.
(ii) The court determines the constitutional validity of the laws and rules of the government; and
(iii) The court rejects that law or any of its part which is found to be unconstitutional or against
the Constitution.

Features of Judicial Review in India.

1. Judicial Review Power is used by both the Supreme Court and High Courts:
Both the Supreme Court and High Courts exercise the power of Judicial Review. But the final
power to determine the constitutional validity of any law is in the hands of the Supreme Court of
India.

2. Judicial Review of both Central and State Laws:

Judicial Review can be conducted in respect of all Central and State laws, the orders and
ordinances of the executives and constitutional amendments.

3. Limitations:
Judicial Review cannot be conducted in respect of the laws incorporated in the 9th Schedule of
the Constitution. It covers laws and not political issues.

4. Judicial Review applies only to the questions of law. It cannot be exercised in respect of
political issues.

5. Judicial Review is not automatic:

The Supreme Court does not use the power of judicial review of its own. It can use it only when
any law or rule is specifically challenged before it or when during the course of hearing a case
the validity of any law is challenged before it.

Page 87 of 222
6. Decisions’ in Judicial Review Cases:
The Supreme Court can decide:
(i) The law is constitutionally valid. In this case the law continues to operate as before, or
(ii) The law is constitutionally invalid. In this case the law ceases to operate with effect from the
date of the judgment.
(iii) Only some parts or a part of the law is invalid.
In this case only invalid parts or part becomes non-operative and other parts continue to remain
in operation. However, if the invalidated parts/part is so vital to the law that other parts cannot
operate without it, then the whole of the law gets rejected.

7. Judicial Review Decision gets implemented from the date of Judgment:

When a law gets rejected as unconstitutional it ceases to operate from the date of the judgment.
All activities performed on the basis of the law before the date of the judgment declaring it
invalid, continue to remain valid.

8. Principle of Procedure established by Law:

Judicial Review in India is governed by the principle: ‘Procedure Established by law’. Under it
the court conducts one test, i.e., whether the law has been made in accordance with the powers
granted by the Constitution to the law-making body and follows the prescribed procedure or not.
It gets rejected when it is held to be violative of procedure established by law.

9. Clarification of Provisions which a rejected law violates:

While declaring a law unconstitutional, the Supreme Court has to cite the provisions of the
constitution which it violates. The court has to clearly establish the invalidity of the concerned
law or any of its part.

Critical Evaluation of Judicial Review.

Points of criticism:
1. Undemocratic:
The critics describe Judicial Review as an undemocratic system. It empowers the court to decide
the fate of the laws passed by the legislature, which represent the sovereign, will of the people.

Page 88 of 222
2. Lack of Clarity:
The Constitution of India does not clearly describe the system of Judicial Review. It rests upon
the basis of several articles of the Constitution.

3. Source of from Administrative Problems:

When a law is struck down by the Supreme Court as unconstitutional, the decision becomes
effective from the date on which the judgment is delivered. Now a law can face Judicial Review
only when a question of its constitutionality arises in any case being heard by the Supreme
Court. Such a case can come before the Supreme Court after 5 or 10 or more years after the
enforcement of that law. As such when the Court rejects it as unconstitutional, it creates
administrative problems. A Judicial Review decision can create more problems than it solves.

4. Reactionary:
Several critics regard the Judicial Review system as a reactionary system. They hold that while
determining the constitutional validity of a law, the Supreme Court often adopts a legalistic and
conservative approach. It can reject progressive laws enacted by the legislature.

5. Delaying System:
Judicial Review is a source of delay and inefficiency. The people in general and the law-
enforcing agencies in particular sometimes decide to go slow or keep their fingers crossed in
respect of the implementation of a law.
They prefer to wait and let the Supreme Court first decide its constitutional validity in a case that
may come before it at any time.

6. Tends to make the Parliament less responsible:

The critics further argue that the Judicial Review can make the Parliament irresponsible as it can
decide to depend upon the Supreme Court for determining the constitutionality/ reasonableness
of a law passed by it.

7. Fear of Judicial Tyranny*:

Page 89 of 222
A bench (3 or 5 or 9 judges) of the Supreme Court hears a judicial review case. It gives a
decision by a simple majority. Very often, the fate of a law is determined by the majority of a
single judge. In this way a single judge’s reasoning can determine the fate of a law which had
been passed by a majority of the elected representatives of the sovereign people.
* cruel, unreasonable, or arbitrary use of power or control.
8. Reversal of its own decisions by the Supreme Court:
It is on record that on several occasions the Supreme Court reversed its earlier decisions. The
judgment in the Golaknath case reversed the earlier judgments and the judgment in the
Keshwananda Bharati case reversed the judgment in the Golaknath case. The same enactment
was held valid, then invalid and then again valid. Such reversals reflect the element of
subjectivity in the judgments. On all these grounds the critics strongly criticise the system of
Judicial Review as it operates in India.

Justification of Judicial Review

A very large number of the supporters of Judicial Review do not accept the arguments of the
critics. They argue that Judicial Review is an essential and very useful system for Indian liberal
democratic and federal system. It has been playing an important and desired role in the
protection and development of the Constitution.
(1) Judicial Review is essential for maintaining the supremacy of the Constitution.

(2) It is essential for checking the possible misuse of power by the legislature and executive.

(3) Judicial Review is a device for protecting the rights of the people.

(4) No one can deny the importance of judiciary as an umpire, or as an arbiter between the centre
and states for maintaining the federal balance.

(5) The grant of Judicial Review power to the judiciary is also essential for strengthening the
position of judiciary. It is also essential for securing the independence of judiciary.

Page 90 of 222
(6) The power of Judicial Review has helped the Supreme Court of India in exercising its
constitutional duties.

(7) The possibility of abuse of is power of by the Judiciary is very less because several checks
have been in existence:
(a) Lack of a clear statement of this power in any article of the Constitution.

(b) Judicial Review is not possible on some laws. The Parliament can place laws aimed at
securing socio-economic reforms in the 9th Schedule of the Constitution. This makes these
immune from Judicial Review.

(c) The scope of Judicial Review stand limited to only legal and constitutional cases.

(d) The Supreme Court is itself bound by the Constitution of India and the Parliament can amend
the Constitution.

(e) The grant of specific fundamental rights to the also limits the scope of Judicial Review.

(f) The Parliament can pass laws and amendments for overriding the hurdles created by Judicial
Review.

These limitations can prevent a possible misuse of Judicial Review power by the Courts.
A formidable fact which justifies the presence and continuance of the Judicial Review has been
the judiciousness with which it is being used by the Supreme Court and High Courts for carrying
out their constitutional obligations. These have used it with restraint and without creating
hindrances in the way of essential socio-economic reforms.

*****

Page 91 of 222
JURISDICTION OF THE SUPREME COURT.
Jurisdiction: Meaning:
The authority of a Court to rule on certain cases.
Ex: The Supreme Court has Jurisdiction over the entire India.
It is the power that a court of law exercises to carry out judgments and enforce laws.
a) Original Jurisdiction
b) Appellate Jurisdiction
c) Advisory Jurisdiction
d) Revisory Jurisdiction
e) Judicial Review

Original Jurisdiction:
Original Jurisdiction means the power to handle those cases which cannot be moved in any other
court other than SC i.e. in the first instance.
These cases include:
a) Centre-State or State-State Disputes ( Centre-State, State- State, Centre-State v/s State,
States v/s States)
b) Protection of Fundamental Rights: In case if the Fundamental Rights of an individual are
violated, then such individual can directly approach the SC.
c) Transfer of Cases from One Lower Court to Another Lower Court in the cases of great
importance.
d) Interpretation of the Constitution: Cases related to Interpretation of the Constitution, are
exclusively handled by the SC.

Appellate Jurisdiction:
Appellate Jurisdiction means the power to handle the cases on appeal against the judgement
delivered by any court in the country. (SC is the Court of Appeal which can reduce or change the
judgement passed by any lower courts in the country.)
These cases include:

Page 92 of 222
a) Constitutional Cases: When HC is unable to handle, or wants SC to handle an important
case, then it sends such cases to SC with a certificate. In absence of a certificate, if required SC
can intervene and handle such special cases on appeal.
b) Civil Cases: important case with HC certificate, or without HC certificate on appeal.
c) Criminal Cases: important case with HC certificate, or without HC certificate on appeal.
In case if the Fundamental Rights of an individual are violated, then such individual can
directly approach the SC.
SC has power to issue writs like habeas corpus, mandamus, writ of prohibition, writ of
certiorari & quo warranto for the enforcement of the Fundamental Rights.
Writ: It is an order from a judicial authority asking a person to perform some act or stop
performing an act. (It is as order issued by the Supreme Court in order to protect fundamental
right of an individual).

Advisory Jurisdiction:
President may refer and send a case of special case of importance or regarding any law for
consideration to SC, this power of SC to handle such cases is called as Advisory Jurisdiction.

Cases regarding disputes of Pre-Constitution period are also handled under this power.
SC is empowered to review any judgment or order made by it with a view of removing any
mistake or error that might have crept in the judgment or order this power of SC is called as

Revisory Jurisdiction.
SC is empowered to review any judgement or order made by it with a view of removing any
mistake or error that might have crept in the judgement or order this power of SC is called as
Revisory Jurisdiction.
This is done because, SC is a court of record, its decisions has special importance and can’t be
questioned in any other court.

*****

Page 93 of 222
WRIT JURISDICTION AND ITS SCOPE.
 Both the Supreme Court (under the Article 32) and the high courts (under the Article
226) can issue the writs of habeas corpus, mandamus, prohibition, certiorari and also the
quo-warranto.
 However, the Parliament (under Article 32) can empower any other court to issue these
writs.

Difference Between Writ Jurisdiction of Supreme Court and High Court:

Writ Jurisdiction of SC Writ Jurisdiction of HC
Wider Writ Jurisdiction: HC can issue writs for
Narrow Writ Jurisdiction: SC can issue writs
the enforcement of other Rights also viz.
only for the enforcement of Fundamental Rights.
ordinary legal right.
Wider territorial jurisdiction Narrow territorial jurisdiction
SC can’t refuse to exercise its writ jurisdiction HC can refuse to exercise its writ jurisdiction
since Art.32 is itself a Fundamental Right since this remedy is discretionary.

Writs Explained:
1. Habeas Corpus
Literal meaning: It is a Latin term which literally means ‘to have the body of’.
 It is an order which is issued by the court to a person who has detained another
person to produces the body of the latter before it.
 In fact, the court then examines the cause and the legality of the detention.
 And, it would set the detained person free, if the detention is found illegal. Thus, this writ
is a bulwark of individual liberty against the arbitrary detention.
 It can be issued against both the public authorities as well as private individuals.
 Limitations: The writ is not issued where the: (a) detention is lawful, (b) the proceeding
is for contempt of the legislature or a court, (c) detention is by a competent court, and (d)
detention is outside the jurisdiction of the court. [ie. A particular H.C.]

Page 94 of 222
  Habeas Corpus is rendered ineffective if the detenu is produced before Judicial
Magistrate.

Current Linkage- Hadiya Case: A unique Case of Habeas Corpus Background of the case
 Hadiya is a 24-year student of homoeopathy from Kerala who converted to Islam before
getting married to Shefin Jahan, a Muslim man.
 In early 2016, her father initially filed a missing person report with the police and later
filed a Habeas Corpus petition in the Kerala High Court to trace her.
 Shefin Jahan is on the National Investigation Agency (NIA) radar.
 Both NIA and Hadiya's father claimed Jahan was a recruiter for radical groups.
 After the petition and on NIAs report to the Supreme Court which stated that Hadiya was
a victim of indoctrination and psychological kidnapping i.e. she was brainwashed to
accept Islam and marry Jahan, the Kerala High Court annulled the marriage.
 This case was popularised by the Indian media as a case of love jihad.
 A plea was filed by Hadiya’s husband. The Supreme Court bench comprising Justices A
M Khanwilkar and D Y Chandrachud examined the plea.
 On January 23, 2018, the judges proclaimed the decision that no one including the SC
can question Hadiya’s choice of marrying a person and that the NIA cannot investigate
whether she married a good person or a bad person.
 When it was stated that “Marriage is only a device to legitimise her illegal confinement,”
the Supreme Court said that “Who is the person to tell the court? She must say. She is
an adult. She appears in court and says she is married. What can the court do?”
 Thus, the court alienated itself from questioning Hadiya’s choice for a husband.

2. Mandamus: It literally means ‘we command’.

 Well, it is a command which is issued by the court to the public official asking him to
perform the official duties that he has failed or refused to perform. Examples- For every
action having a legal authorisation [i] Asking D.C. to provide Compensation for Land
Acquisition [ii] Asking the State to consult Gram Sabha before felling of Trees in certain
areas [iii] Timely payment of Widow pensions [iv] Elimination of Manual Scavenging

Page 95 of 222
  It can also be issued against any public body, a corporation, an inferior court, a tribunal
or government itself [i.e. not only against officers]for the same purpose.
 The writ of mandamus cannot be issued (a) against a private individual or body; (b) To
enforce departmental instruction that does not possess the statutory force; (c) when the
duty is discretionary and not mandatory; (d) to enforce a contractual obligation; (e)
Against the president of India or the state governors; and (f) Against the chief justice of
the high court acting in the judicial capacity.
Note: Mandamus is a discretionary remedy and High Courts may refuse to grant it
where some alternate remedy is available.
 However, in the matters of enforcement of Fundamental Rights, the availability of an
alternative remedy does not weigh so much.
 It is issued when one or the other organization from Judiciary, Executive or Legislature
refuses to exercise its jurisdiction. If S.H.O of as particular Police Station refuses to arrest
a criminal politician accused of rape or other heinous crime.
 High Courts can issue these writs even for violation of Ordinary rights.
 Mandamus can be issued even negatively, to direct a public official not to implement a
law which is unconstitutional. So, Mandamus works both ways: Positively as well as
negatively
 The Courts are normally reluctant to issue any direction to Govt. for making a Law
Recently former Law Minister moved S.C. to issue directions to Govt. to enact a Law
against Torture. But S.C. refused.

Mandamus cannot be issued for the following:

1. The President or Governor of a State, for the exercise and performance of the powers and
duties of his office or for any act done by him or purporting to be done by him in the
exercise of those duties Eg. President’s Rule or Governor’s approval to the ordinance.
2. Mandamus does not lie against a private individual or body whether incorporated or not.
Except where the State is in partnership with a private party eg. NTPC + Vedanta or
Reliance are negligent about water Pollution in the course of Mining operations.

Page 96 of 222
 3. Prohibition: Literally, it means ‘to forbid’. [negative connotation]
 Well, it is issued by the higher court to the lower court or the tribunal to prevent the
latter from exceeding its jurisdiction or usurping a jurisdiction that it does not possess.
 Thus, the unlike mandamus that directs the activity, the prohibition directs inactivity.
 Furthermore, the writ of the prohibition can be issued only against the judicial and the
quasi-judicial authorities.
 In can be issued before the judicial authority has passed its order.
 Limitation: It is not available against administrative authorities, legislative bodies, and
private individuals or bodies.
 Current Linkage: An example of Prohibition, though not strictly applicable [Writs]
 Ministers not under RTI: Delhi High Court
 The Delhi High Court has set aside the Central Information Commission (CIC) order
declaring ministers as “public authorities” under the transparency law.
 Delhi High Court overturned the 2016 order of the CIC, declaring the “ministers in the
Union Government and all State Governments as public authorities” under the Right to
Information (RTI) Act.
 Clarifying its stance, H.C. said that there was no occasions for the CIC to enter upon the
question as to whether a Minister is the public authority under the Section 2(h) of the
Act. Further, directions which is issued by the CIC are also wholly outside the scope of
the matter before CIC.
Analysis: The CIC directive that ministers were answerable under the RTI Act would mean that
people can directly send the questions to a minister by filing an RTI application which will be
answered by the public information officer in his office. The case emanates from the application
filed by a man in 2014 before Additional Private Secretary, Minister of Law and Justice seeking
to know the time period of minister or minister of state meeting the general public.

4. Certiorari
 Well, in the literal sense, it means ‘to be certified’ or sometimes ‘to be informed’.
 In fact, it is issued by a higher court to the lower court or the tribunal either to transfer a
case pending with the latter to itself or to squash the order of the latter in the case.

Page 97 of 222
  Also, it is issued on the grounds of the excess of jurisdiction or the lack of jurisdiction or
error of the law. Thus, an unlike prohibition, which is only preventive, certiorari is
both the preventive as well as the curative.
 Till recently, the writ of certiorari could be issued only against judicial and quasi-judicial
authorities and not against administrative authorities.
 However, in the year of 1991, the Supreme Court ruled that the certiorari can be
issued even against administrative authorities affecting the rights of individuals.
 Like prohibition, certiorari is also not available against the legislative bodies and also
the private individuals or the bodies.

5. Quo-Warranto
 It means ‘by what authority or warrants’.
 However, it is issued by the court to inquire into the legality of the claim of the person
to the public office. Hence, it prevents an illegal usurpation of the public office by the
person.
 The writ can be issued only in the case of the substantive public office of a permanent
character which is created by the statute or by the Constitution.
 Moreover, it cannot be issued in the cases of the ministerial office or private office.
 Unlike the other four writs, this can be sought by any interested person and not
necessarily by the aggrieved person.
*****
WRIT JURISDICTION OF THE SUPREME AND HIGH COURTS
 A writ is a quick remedy against injustice, a device for the protection of the rights of
citizens against any encroachment by the governmental authority. Writs originated in
Britain where they were king’s or queen’s ‘prerogative’ writs and were commands to the
judicial tribunals or other bodies to do or not to do something. Since writs carried the
authority of the crown they were to be obeyed. Later, writs came to be enjoyed by the
judges of the King’s Bench. In India, the power to issue writs has been vested in the
Supreme Court and the High Courts. It is an extraordinary remedy which can be
expected in special circumstances.

Page 98 of 222
  The Supreme Court has been empowered to issue writs in the nature of habeas corpus,
mandamus, prohibition, and certiorari and quo warranto for protecting the fundamental
rights [article 32(2)]. Similar power has been conferred on the high courts via article 226.
The high court can issue the above writs for protecting the fundamental as well as
statutory and common law rights. The high courts can issue writs to any governmental
authority outside their territorial jurisdiction, provided the cause of action arises (in
whole or in part) within their territorial jurisdiction.
 A writ is a discretionary remedy and the high court can refuse it on the ground of
acquiescence, laches (delay), available alternative remedy and no benefit to the party.
Under article 226(3), a high court can grant interim relief by way of interlocutory orders.
 While the jurisdiction of the high court is more extensive than that of the Supreme Court,
art. 226 (4) provides that the powers conferred on a high court shall not be in derogation
of the powers conferred on the supreme court by article 32(2). In L Chandra Kumar
verses UOI, held that a person cannot go directly to the Supreme Court from a decision of
a tribunal, without first going to the high courts. Thus, the aggrieved person has got
another remedy by way of a writ petition before the high court concerned. Thus, what
was earlier two-tier litigation has now become three-tier litigation. The tribunals cannot
oust the jurisdiction of the high courts under articles 226/227 set free forthwith. Its
purpose is not to punish the wrongdoer but merely to secure the release of the person
illegally detained.
 The scope of the writs in Indian law is wider than that of the prerogative writs in
England. This is because, firstly, the constitution uses the words writs in the nature of
which does not make our writs identical with those in England but only draws an analogy
from the latter. Secondly, Article. 32(2) do not require the Supreme Court to observe all
procedural technicalities which were relevant for the issuance of writs under English law.
Therefore, even if the conditions for the issue of any of the writs are not fulfilled, the
Court may still issue a writ in an appropriate case (except cases of government policy) of
appeal. The court will not examine the correctness or otherwise of the decision on merits.
It cannot substitute its own wisdom for the discretion vested in the authority unless the
exercise of discretion is illegal. This is true for other writs also.

Page 99 of 222
  Our High Court can issue directions, orders or writs other than the prerogative writs. This
enables the courts to mould the reliefs to meet peculiar and complicated requirements of
this country. Under article 226, writs can be issued to “any persons or authority” (any
person or body performing public duty).

SPECIAL LEAVE PETITION (ART. 136)

 An unjust law is itself a species of violence. Arrest for its breach is more so.”
– Mahatma Gandhi
 Under Article 136, the Constitution of India gives power to the Supreme Court to grant
special permission or leave to an aggrieved party to appeal against an order passed in any
of the lower courts or tribunals in India.

Special Leave Petition: Meaning

 Special leave petition (SLP) means that an individual takes special permission to be heard
in appeal against any high court/tribunal verdict. Thus it is not an appeal but a petition
filed for an appeal. So after an SLP is filed, the Supreme Court may hear the matter and if
it deems fit, it may grant the ‘leave’ and convert that petition into an ‘appeal’. SLP shall
then become an Appeal and the Court will hear the matter and pass a judgment.

Special Leave Petition: When It Can Be Presented ??

Special leave petition (SLP) can be presented in the following circumstances:
 It can be filed against any judgment or decree or order of any high court / tribunal in the
territory of India, or
 It can be filed in case a high court refuses to grant the certificate of fitness for appeal to
Supreme Court of India.

Special Leave Petition: Who Can File It ?

 Any aggrieved party can file an SLP against the judgment or order of refusal of grant of
certificate.
 Through SLP, an aggrieved party can appeal to the Supreme Court against any judgment
passed by any lower court or tribunal. This leave is granted when the case involves a

Page 100 of 222

 question of law. Mere errors of fact, mis-appreciation of evidence or even findings of fact
arrived at wrongly are not grounds of appeal before the Supreme Court. The Supreme
Court is only concerned with question of law i.e. if the law was correctly applied,
whether the interpretation of law was in accordance with the settled principles of law etc.
 The aggrieved party or the petitioner filing SLP has to give a brief synopsis of the facts
and issues presented in the case along with a list of dates specifying the chronology of
events pertinent to the judgement. Along with this, the petitioner has to formulate
questions of law to appeal against the judgement. These questions should pertain to laws
relevant to the general public as well.
 Once registered and presented in the Supreme Court, the petitioner will get a hearing
before the Court. Subsequently, depending on the merits of the case, the Supreme Court
will issue a notice to the opposite parties who will then file a counter affidavit stating
their views. It’s at this point that the Supreme Court will decide whether to grant leave to
the petitioner or not. If the Court grants leave, the case is then converted into a civil
appeal and will be argued afresh in the Supreme Court.
 The Supreme Court can revoke the earlier judgment, modify it or allow it. The Court can
also send the case back to the relevant lower court for fresh adjudication** in light of
principles laid down by it or on account of any issues missed out by the lower court.

APPELLATE JURUISDICTION OF SUPREME COURT

Article 133–136 of the Constitution of India defines the appellate jurisdiction of the Supreme
Court. Article 133 provides for civil appeals from orders of the High Court, Article 134 provides
for criminal appeals and Article 136 provides for special leave petition. If a case does not fall
within Article 133 or Article 134 then under Article 136, the Supreme Court may be moved and
a special permission may sought to grant leave to appeal.

DISCRETIONARY POWER OF SUPREME COURT

Appeal to Supreme Court is not a matter of right but it is matter of privilege which only the
Supreme Court will grant to any individual if there exists an important constitutional or legal
issue involved. Appeals are regulated by the Constitution of India and Supreme Court Rules,
2013.

Page 101 of 222

According to Article 141 of the Indian Constitution, the Supreme Court’s judgment is declared
as law of the land and is binding on all courts in India.
*****

RELIEF AGAINST AN INTERIM ORDER – INTERIM RELIEF (ART. 226(3)).

Article 226(3) in The Constitution Of India states as follows:
(3) Where any party against whom an interim order, whether by way of injunction or stay or in
any other manner, is made on, or in any proceedings relating to, a petition under clause ( 1 ),
without
(a) furnishing to such party copies of such petition and all documents in support of the plea for
such interim order; and
(b) giving such party an opportunity of being heard, makes an application to the High Court for
the vacation of such order and furnishes a copy of such application to the party in whose favour
such order has been made or the counsel of such party, the High Court shall dispose of the
application within a period of two weeks from the date on which it is received or from the date
on which the copy of such application is so furnished, whichever is later, or where the High
Court is closed on the last day of that period, before the expiry of the next day afterwards on
which the High Court is open; and if the application is not so disposed of, the interim order shall,
on the expiry of that period, or, as the case may be, the expiry of the aid next day, stand vacated

*****

LOCUS STANDI.
Locus Standi: Meaning.
 Locus Standi means "place for standing". Hence it means the legal capacity to challenge
or question an act or decision, by a party before the court.ie, it answers the question who
may apply or file a suit or a petition. The Court strictly speaking entertains only if he is
an aggrieved or interested person. But this is very much liberalized and widened.

Locus Standi: Scope in USA, England.

Page 102 of 222

  In the United States, the strict rule of “standing” is liberalized and the Court entertains if
the person is within the "zone of interests protected by Statute or Constitution". (Falset v.
Cohen)
 In England, the strict rule has undergone a change due to the dynamic activism of Lord
Denning. The person will be heard, if he has "sufficient interest". "I always like to hear,
what he has to say"-says Lord Denning.

Locus Standi: Scope: India.

 In India also the scope is very much widened, and hence the rule that the person should
be an “aggrieved person” is no longer applicable. Since the leading case of "Transfer of
Judges" (S.P. Gupta v. Union of India), the scope of Locus Standi is widened by the
Supreme Court.
(i) In Habeas Corpus petitions, the Court permits any other person, (next friend) to move the
Court. Even letter by the detenu to the Chief Justice, was itself considered by the Supreme
Court as a Writ petition.
(ii) Tax payers or fee payers may challenge the illegal action of the Authority e.g.
granting of cinema licence, liquor-shop license can be questioned by rate payer.
(iii) In Quo warranto, any person in the public may challenge usurpation of public office.
Lawyers may question order of transfer of Judges, appointment of Advocate General etc.
(iv) When the State or Public Authority has failed to carry out an obligation provided in a
Statute, any person to prevent "Public injury" may move the Court. e.g. Ratlam Municipal
Council v. Vardichand. Here the petitioner was held to have locus standi to question the
municipality which had failed to construct drainage.

Public Interest litigation and Locus Standi.

This has added a new dimension to the judicial activism. The Courts in public interest entertain
petitions and provide relief, going beyond the bounds of locus standi. In keeping with the socio-
economic changes, the Courts have used P.I.L., as a device to entertain petitions in public
interest.
The leading cases are:
1. Transfer of Judges case

Page 103 of 222

2. Bandhua Mukhi Morcha v. Union of India
3. S.Wadhwa v. State of Bihar
4. Fertiliser Corporation v. Union of India
5. M.C. Mehta v. Union of India

Thus Traditional locus standi rule no longer holds the field. It has been widened to meet the
challenges of the modern society in all areas socio-economic, scientific, technological,
environmental, etc.

State's Privilege (Crown's Privilege)

Meaning:
The general rule is: "Salus Populis Suprema Lex"(Public interest is Supreme law). On the basis
of this, the Crown may refuse to disclose documents or answer questions, if such disclosure or
answer was injurious to "Public Interest".

In Duncan v. Camell Laird a widow had claimed damages for death of her husband due to
negligence of Government contracts when a submarine tank had killed 99 persons. Certain
documents were summoned but the minister claimed “crown's privilege”. The Court upheld
the privilege. This was overruled, by the House of Lords in Conway v. Rimmer.

A Constable had sued the prosecutor for malicious prosecution and certain documents were
claimed by the minister to be under privilege. The Court rejected the plea. Hence, the
dangerous executive power of "privileges" is subject to judicial scrutiny.

India:
Though Crown's privilege is not acceptable in India, the Executive or State privilege is stated in
Section 123 of the Indian Evidence Act. It states that evidence from unpublished official records
relating to any affairs of the State should not be given by any person, except with the permission
of the Head of the Department. Such person may give or withhold such permission "as he thinks
fit".

Page 104 of 222

Leading cases:
1. Judges Transfer Case.
2. State of U.P v. Raj Narain.
3. State of Punjab v. Sodhi Sukhdev Singh.
4. Reliance Petrochemicals v. Indian Express.

Scope:
The Concept of “right to know” is based on democratic principle that people should know what
the Government is doing. Hence disclosure by the State must be the rule, and, non disclosure or
privilege should be an exception. This was considered as part of the concept of “right to live”
under Art. 21 of the Constitution (Reliance Petro chemicals case).

As per Section 123, the Head of the Department may "as he thinks fit" allow or refuse disclosure
of documents. It this power, given to him, absolute? The Courts have held that under Section.162
Evidence Act, it is the Court which may decide finally. The objection by Govt., on grounds of
privilege, may be disallowed by Court and it may call for records. But, if the documents relate to
the secret affairs of State, the Court in public interest will not call for disclosure. Further,
whether the refusal by Head of the Department was in public interest or not, is decided by the
court by examining the documents. The final decision would always be with the Court.

According to Gajendragadakar C.J., the sole and the only test which should determine the
decision of the Head of the Department is injury to public interest and nothing else.

Finality Clause (Bar of Courts Jurisdiction).

Statutes sometime provide for finality clause i.e., the orders made by administrative authorities
or tribunals are "final". Question is whether such a clause excludes the jurisdiction of the Courts?
eg. (i) Order of Rent Controller is appealable to Rent Tribunal under Delhi Rent Control act. The
tribunal's order is final according to the Act.
(ii) Order of Assistant Commissioner of Income-tax when appealed to I.T. Tribunal, the order of
the tribunal is "final".The word "final" is interpreted by the courts to mean "final under the Act",

Page 105 of 222

and no appeal is allowed. This does not, however, mean ouster of jurisdiction of High Court
under Arts.226 & 227, and of Supreme Court under Art 32 of the Constitution.

Final means "Statutory Finality". Hence judicial review is not excluded. The ouster provision
may be indirect by providing no appeal, or it may be direct where it states that the Courts
Jurisdiction is barred.e.g. question of fact are final so far as Income Tax Tribunal is concerned.

Judicial Review:
Even if there is a direct ouster clause, the Courts interfere, if the order is:
1. Violative of Principles of Natural Justice.
2. Without evidence.
3. Issued in excess of Jurisdiction.
4. Abuse of power etc.

Rule of interpretation:
Followed by the Courts is that exclusion should not be readily inferred. Judicial review by High
Courts and Supreme Court is always available. It is the basic Rule of law which cannot be taken
away.

Leading Cases:
1. Radha Krishna v. Ludhiana Union.
2. Dhulabhai v. State.

Act of State.
This is an exercise of power by the Executive, as a matter of policy, in its relation with another
state or aliens. In such a circumstance, the State claims immunity from the Jurisdiction of the
Court, to decide. Such an act of the representative of the State may have the authority of the State
or the State may ratify such an act.

Page 106 of 222

Secretary of State v. Kamachi Bai Saheba
The Raja of Tanjore, an independent sovereign, died leaving no male heirs. The East India
Company declared that as there were no male heirs, the Raj lapsed to the British Government.
The Widow Kamachi Bai sued the company. The Privy Council held that it was an 'Act of State'
and hence, there was immunity. Hence, she failed.

Buron v. Denman:
P sued D, the captain of the British Navy for releasing the slaves and for burning the slave camps
belonging to P. This act of D was ratified by the British Government. Held this was an act of
State, and hence, P failed.

Exception: There is one exception. There is no act of State of a Sovereign State against and its
own subjects.

*****
KINDS OF WRITS AND GROUNDS FOR ISSUE OF WRITS.
1. WRIT OF HABEAS CORPUS
2. WRIT OF MANDAMUS
3. WRIT OF CERTIORARI
4. WRIT OF PROHIBITION
5. WRIT OF QUO WARRANTO

WRIT OF HABEAS CORPUS.

It is in the nature of a call to the detaining authority to produce the detenu before the Court, in
order to let the Court know on what grounds the detenu as been detained. If there are no legal
grounds for detention the detenu should be released. The writ may be addressed to anybody or
authority who has detained. The origin is in Magna Carta (1215).It is a great constitutional right
and the first security of civil liberty. According to Blackstone, the writ provides for a swift and
imperative remedy in all cases of illegal restraint or confinement. The earliest instance was in
First Edward's period in England.
Jurisdiction:

Page 107 of 222

  The Supreme Court under Art. 32 is empowered to issue the Writ of Habeas Corpus for
enforcement of Fundamental Right: (Eg: Art. 21 & 22). The High Courts are empowered
to, issue the writ for the enforcement of fundamental right and any other right. Any
person who has been detained or his next friend may move the writ of Habeas corpus.
The burden is on the detenu to prove that the detention is without legal authority or with
mala fides or in excess of authority.

Writ of Habeas Corpus: Grounds.

The burden is on the detenu to prove that the detention is:
a. Without legal authority or
b. With mala fides or
c. In excess of authority.
d. Grounds are vague, irrelevant etc.

Writ of Habeas Corpus: Petition.

The writ petition to the High Court or Supreme Court for Habeas Corpus should be accompanied
by an affidavit stating the facts and circumstances. If the Divisional Bench is satisfied that there
is a prima facie case for granting the prayer of release, it issues a rule nisi to the State (Detaining
authority).

It may grant interim "bail" to the detenu. On hearing the parties, if the Court, is of the opinion
that the detention is not justified, it issues orders to release the petitioner forthwith.(But, if it is
justified, it discharges the rule nisi).

Writ of Habeas Corpus: Emergency Period.

In Makhan Singh v. State of Punjab, it was held that if a person is detained under Defence of
India Act, he could not be released for violation of Fundamental Rights. However, if the order
was with mala fides or invalid he could be released under Arts 21 & 22 of the constitution.

However, in A.D.M. Jabalpur v. Shukla (1976), (Habeas Corpus Case) The Supreme Court, held
that during emergency the Fundamental Rights were suspended, and hence the remedy i.e.,

Page 108 of 222

habeas corpus was not available. Detenu has no locus standi, it held. This was an unfortunate
decision, Khanna J. wrote a powerful dissent.

Writ of Habeas Corpus and 44th Amendment.

According to 44th Amendment, even during National Emergency, Articles 21 and 22 cannot be
suspended. Hence this supersedes the Habeas corpus case. The position now compares well with
England, where even during I and II World Wars, Habeas corpus was not suspended. (Liveridge
v. Anderson and in re Halley).

Writ of Habeas Corpus: Widened scope.

Writ may be issued in cases of preventive detention, illegal custody of wife, children, contempt
of the House, under trial prisoners, detentions by private persons, etc.

Writ of Habeas Corpus: Leading Cases.

1. Darnel's Case or The Five Knights Case (1627)
Thomas Darnell, John Corbet, Walter Earle, John Heveningham, and Edmund Hampden
petitioned King's Bench for a writ of habeas corpus to be set free. The attorney general replied
that they were being held "by the special command of his majesty.” The question before the
court was whether this was an adequate return on the writ. The court found in favour of the King,
since common law had no control over the royal or absolute prerogatives of the monarch. The
Petition of Right 1628 reversed the effect of the decision by preventing the power of arbitrary
committal by the King. The Habeas Corpus Act 1640 restored the right to petition the courts for
being let free against the wishes of the King and his Council.

2. Rakesh Kaushik V. B.L. Vij, Superintendent, New Delhi

A number of allegations have been made in , regarding illegal acts committed by the rich and
influential prisoners not only with the permission of the prison officers, but also with their active
help. Some of the main allegations leveled by the petitioner (Prisoner) respect of a foreign
convict confined in Tihar Jail.

3. Hussainara Khatoon v. Home Secretary, Bihar.

Page 109 of 222

In December 1979, Kapila Hingorani had filed a petition regarding the condition of the prisoners
detained in the Bihar jail, whose suits were pending in the court. The special thing about this
petition was that it was not filed by any single prisoner, rather it was filed by various prisoners of
the Bihar jail. The case was filed in the Supreme Court before the bench headed by Justice
P.N.Bhagwati. This petition was filed by the name of the prisoner, Hussainara Khatoon, hence
the petition came to be known as Hussainara Khatoon Vs State of Bihar. In this case, the
Supreme Court upheld that the prisoners should get benefit of free legal aid and fast hearing.
Because of this case 40,000 prisoners, whose suits were pending in the court, were released from
the jail.

4. Motilal Jain v. State of Bihar.

The appellants partner in a grocery shop, was detained under s. 3 (I) (a) (iii) and s. 4 of the
Preventive Detention Act for indulging in black-marketing of essential commodities. He was
supplied with an order detailing a number of grounds in support of his detention. In one of the
&rounds viz., cl. (a) of the order the name of the shopkeeper to whom the appellant was said to
have sold match boxes and soap "at a price higher than that fixed for these commodities" was not
mentioned. Neither the price fixed nor the price at which it was said to have been sold was
mentioned. In another ground viz.' el. (d) of the order a sale was alleged to K who was not
existing in the described locality. On the question of the validity of the order of detention, this
Court, HELD: The order must be set aside.

5. Liveridge v. Anderson.
Emergency powers in Regulation 18B of the Defence (General) Regulations 1939 permitted the
Home Secretary to intern people if he had "reasonable cause" to believe that they had "hostile
associations". Sir John Anderson exercised this power in respect of a man called Jack Perlzweig,
who used the name Robert Liversidge, committing him to prison but giving no reason. On
appeal, the case, joined with that of Ben Greene, reached the Appellate Committee of the House
of Lords, the highest court of appeal. They had to decide whether the court could investigate the
objective basis for the reasonable cause; in other words, could they evaluate the Home
Secretary's actions on an objective standard, comparing them to that which might be taken by a
reasonable man, or were they to measure them against the personal standard of the Secretary?

Page 110 of 222

6. In re Halley.
The petitioner instituted this proceeding to obtain his release from the State prison of southern
Michigan. Based on the application filed, a writ of habeas corpus directed to the warden of the
prison was issued, with accompanying writ of certiorari to the bureau of pardons and paroles of
the State of Michigan. Returns to the writs have been filed.

7. Sunil Batra vs. Delhi Administration

A letter written by a convict to one of the judges of the Supreme Court was treated as a writ
petition. The court employed this writ for the neglect of state penal facilities. The writ was also
issued when a ban was imposed on the law students to conduct interviews with prison mates for
affording them legal relief.

WRIT OF MANDAMUS: MEANING

Literally it means "We Command". It originated in England. It is a peremptory order issued by
the High Court or Supreme Court in India. It demands Masterly activity on the authority or body
or person to whom it is addressed. It commands him to perform some public legal duty when the
doing of a duty had been willfully refused.
 When the performance cannot be enforced by any other means, the Writ of Mandamus
may be sought after, as a judicial remedy, as it is effectual, convenient and beneficial. It
is available in all cases, where there is specific right but not a specific legal remedy. It is
the right arm of the Court. : It is not issued to private parties.
 Magna Carta (1215) stated: Crown was bound neither to deny justice to anybody, nor to
deny anybody right to justice. Middleton's case of 1573 is the first reported case in
England. The objective is that justice may be done i.e., to remedy defects of justice or
failure of justice. Hence an extra-ordinary remedy. It is a popular remedy as well.
 Mandamus is a judicial remedy in the form of “‘an order’ to do or to forbear from doing
some specific act” which that agency is obliged to do or to refrain from doing under the
law and which is in the nature of a public duty or a statutory duty. It is considered as a
residuary remedy of the public law.
 It is a general remedy whenever justice has been denied to any person. It may be issued
not only to compel the authority to do something but also to restrain it from doing

Page 111 of 222

 something. Therefore, it is both negative and positive and hence can do the work of all
other writs. It can be issued on all those counts on which certiorari and prohibition can
be issued.
 Mandamus would lie only to enforce a duty which is ‘public’ in nature. There must be a
specific demand for the fulfillment of duty and there must be specific refusal by the
authority. The applicant must’ve a legal right to the performance of a legal duty. If the
rights are purely of a private character no mandamus can be issued.
 A ‘public duty’ is one which is created either by a statute, the constitution or by some
rule of common law. The public duty enforceable through mandamus must also be an
absolute duty i.e. which is mandatory and not discretionary. Mandamus would not lie
where the duty is ministerial in nature i.e. where the authority has to act on the
instructions of his superior. The remedy of mandamus will not be available against any
person involved in the election process.

Writ of Mandamus: To Whom It Is Issued

 It is issued to: President of India, Courts, Tribunals, Speaker of the House, Government
(State or Central), local Authorities, Muncipalities, City Corporations, Panchayats,
Universities, Taxing or Election authorities, Public officials, other authorities (Art.12).
Also to UPSC, Chief Justice, Passport, or Revenue Authorities etc. Exception: It is not
issued to private parties.

Writ of Mandamus: Conditions.

To issue a mandamus, the Supreme Court or the High Court should be satisfied, that:
1. The Petitioner has a specific legal right;
2. The Respondent State or Authority has a legal duty;
3. Writ is made in good faith;
4. The respondent has refused relief (i.e., there should be a demand and refusal);
5. There is no other efficacious, alternate relief.
 It is a command to act lawfully and to desist from perpetrating an unlawful act. Where it
has a legal right which casts certain legal obligations on ‘B’, ‘A’ can seek a writ of
mandamus directing to perform its legal duty? Mandamus may lie against any authority,

Page 112 of 222

 officers, government or even judicial bodies that fail to or refuse to perform a public duty
and discharge a legal obligation.

 The Supreme Court may issue a mandamus to enforce the fundamental right of a person
when its violation by some governmental order or act is alleged. The high courts may
issue this writ to direct an officer to exercise his constitutional and legal powers, to
compel any person to discharge duties cast on him by the constitution or the statute, to
compel a judicial authority to exercise its jurisdiction and to order the government not to
enforce any unconstitutional law.

Writ of Mandamus: Leading Cases

Laxman Popat Bihari v. State of Gujarat
The Pension of the petitioner was not released even on the "endless in fructuous enquiries" for 15
years after retirement of the civil servant,
Held, abuse of power, Mandamus was issued to stop enquiries and order was issued to pay the
pension, with arrears.

Venkatraman v. State of Madras (To enforce a Fundamental Right)

A Communal G.O. of Madras Government was quashed as ultra vires of Art.16 of the
Constitution and the court issued a mandamus to consider the petitioner for the magistrate's job
on merit, without looking to the ultra vires G.O.

Somnath v. State of Rajasthan

The Court issued a mandamus to the municipality restraining it from collecting
"Taxes" as it had no jurisdiction.

Salonath Tea Co. v. Superintendent of Taxes

An order of assessment of taxes, was declared bad. But dept, refused to refund taxes
already paid. Mandamus was issued, to pay.

Page 113 of 222

Maneka Gandhi v. Union of India
 Right to go abroad was a fundamental right under Art.21 of the Constitution, and, hence
impounding passport without hearing the party was bad, and a mandamus could be
issued.

Jatinder Kumar vs. State of Punjab

It was held that article 320(3) of the constitution which provided that before a government
servant was dismissed, the UPSC should be consulted, did not confer any right on a public
servant and hence failure to consult the public service commission did not entitle the public
servant to get mandamus for compelling the government to consult the commission. However, if
the authority is under law obliged to exercise discretion, mandamus would lie to exercise it in
one way or the other.

Praga Tools Corporation vs. CVI Manual

It was held that a mandamus could issue against a person or body to carry out the duties placed
on them by the statutes even though they are not public officials or statutory body. Technicalities
should not come in the way of granting that relief under article. 226.

Unni Krishnan vs. Union of India

It was held that a private medical/engineering college comes within the writ jurisdiction of the
court irrespective of the question of aid and affiliation.

UOI vs. Prakash P. Hindu

It was held that parliament exercises sovereign power to enact laws and no outside power or
authority can issue a direction to enact a particular piece of legislation. Similarly, no mandamus
can be issued to enforce an act which has been passed by the legislature. Therefore, the direction
issued by the apex court in Vineet Narain case regarding conferment of statutory status on
CENTRAL VIGILANCE COMMISSIONcannot be treated to be of such a nature the non-
compliance whereof may amount to contempt.

Page 114 of 222

Where, however, the issuance of mandamus directing the investigating agencies to investigate
into offences was found futile, the court forged out a new tool of “continuing mandamus”
requiring the agencies to report the progress to the court so that monitoring by the court could
ensure continuance of the investigation.

Privy purse** Case

 A Mandamus was issued to the President of India by the Supreme Court, not to give
effect to the presidential order abolishing privy purse.
**In India, the Privy Purse was a payment made to the ruling (royal or lower) families of
erstwhile princely states as part of their agreements to first integrate with India in 1947 after the
independence of India, and later to merge their states in 1949 whereby they lost all ruling rights.
The abolition of 'privy purse' had to wait till 1971 and was successfully passed as the 26th
Amendment to the Constitution of India in 1971. The then Prime Minister, Indira Gandhi, argued
the case for abolition based on equal rights for all citizens and the need to reduce the
Government's revenue deficit.
Sawyer's Case
 The American Supreme Court issued to the President of U.S. not to enforce "steel
seizure" order.

WRIT OF CERTIORARI.
Certiorari means ‘to certify’. It was a High prerogative writ issued by the superior Courts to the
inferior Courts in England and other countries including India. Later these were extended to
Tribunals and other executive authorities who exercised quasi-judicial functions.
 1. Certiorari means 'to certify' It was a High prerogative writ issued by the superior
Courts to the inferior Courts in England. Later these were extended to Tribunals and
other executive authorities who exercised quasi-judicial functions.
 In India, only the Supreme Court and the High Courts are invested with the writ
jurisdiction under Art.32 and Art.226 of the Constitution respectively. The object of the
writ of certiorari is to see that the inferior authorities properly exercise their jurisdiction.
The Courts will interfere to quash, a quasi-judicial order which is either without
jurisdiction or against the Principles of Natural justice.

Page 115 of 222

  (The writ of prohibition is issued if the case is 'pending' in the lower court or tribunal) If
the case has already been decided, certiorari may be issued to quash the decision of the
lower court or tribunal.

Writ of Certiorari: Conditions.

i) The Lower Court or tribunal or authority must be under a duty to act judicially such an act
must affect the rights of the individuals;
ii) There must be want of or excess of jurisdiction (Error of Jurisdiction);
iii) Contravention of the Principles of Natural justice;
iv) To correct an error apparent on the face of the record.

 ‘Certiorari’ is a Latin word meaning ‘to inform’ or ‘to certify.’ it was essentially a royal
demand for information. The king wishing to be certified of some matter ordered that the
necessary information be provided for him. ‘certiorari’ may be defined as a judicial order
operating in personam and made in the original legal proceedings, directed to any
constitutional, statutory or non-statutory body or person, requiring the records of any
action to be certified by the court and dealt with according to law.
 It can be issued against constitutional bodies (legislature, executive and judiciary or their
officers), statutory bodies like corporations, non-statutory bodies like companies and
cooperative societies and private bodies and persons.
 The writ is corrective in nature, thus its scope of operation is quite large. The purpose of
certiorari is not only negative (to quash an action) but it contains affirmative or positive
action also.
 In India, only the Supreme Court and the High Courts are invested with the writ
jurisdiction under Art.32 and Art.226 of the Constitution respectively. The object of the
writ of certiorari is to see that the inferior authorities properly exercise their jurisdiction.
The Courts will interfere to quash, a quasi-judicial order which is either without
jurisdiction or against the Principles of Natural justice.

Writ of Certiorari: Leading Cases.

Gujarat steel tubes v Mazdoor Sabha

Page 116 of 222

  It was held that while quashing the dismissal order, the court can also order reinstatement
and the payment of back wages.

Syed Yakoob verses Radhakrishnan, held that the jurisdiction of the high court to issue a writ
of certiorari is a supervisory jurisdiction and the court exercising it is not entitled to act as an
appellate court. An error of law which is apparent on the face of the record can be corrected by a
writ, but not an error of fact, howsoever grave it may appear to be. However, if a finding of fact
is based on ‘no evidence,’ that would be regarded as an error of law which can be corrected by
certiorari.
 Certiorari can be issued to quash judicial, quasi-judicial as well as administrative actions

A.K. Kraipak vs. UOI

 In this case, the writ of certiorari was issued to quash the action of a selection board, on
the ground of personal bias.

Province of Bombay vs. Kushaldas Advani

The Government of Bombay requisitioned* the house of K, a tenant and allotted it to A, under
Bombay Land Acquisition Act. K applied for certiorari. The Supreme Court held that if the
certiorari is to be issued, the lower authority must be exercising quasi-judicial functions. The
Act had not provided for such an authority.
*demand the use or supply of (something) by official order.
 This decision is no longer good law as in State of Orissa v. Binapani Dei the Supreme
Court has held, a duty to act judicially is implied when the act is affecting the rights of
persons, and hence if the Act is silent, the court will read into it, fair procedure of Natural
Justice in such cases.

WRIT OF PROHIBITION.
It is a judicial writ, (an order), issued by the Superior Court to the inferior court, preventing it
from exercising a jurisdiction which is not legally vested in it: or which it is continuing its
proceedings against the law of the land. (Halsbury*)

Page 117 of 222

(*Halsbury's Laws of England is a uniquely comprehensive encyclopaedia of law, and provides
the only complete narrative statement of law in England and Wales. It has an alphabetised title
scheme covering all areas of law, drawing on authorities including Acts of the United Kingdom,
Measures of the Welsh Assembly, UK case law and European law. It is written by or in
consultation with experts in the relevant field.)

 The object of the writ is prevention i.e., prevention is better than cure. It restrains the
lower court, tribunal or Authority from proceeding further in excess of its jurisdiction. It
brings masterly inactivity, to it. It shall close the case forthwith.
 Prohibition is a judicial order to the agencies (constitutional, statutory or non-statutory)
from continuing their proceedings in excess or abuse of their jurisdiction or in violation
of the principles of natural justice or in contravention of the law of the land. it is issued
primarily to prevent an inferior court or tribunal from exercising its jurisdiction (i.e.
exercising power or authority not vested in them).
 Prohibition does not lie against an authority discharging purely administrative or
executive functions, it issues only against an authority discharging judicial functions
(Isha Beevi verses Tax Recovery Officer).
 Before the writ of prohibition can be issued there must be something to be done. It is a
‘writ of right’. Prohibition has much in common with certiorari’, both are ‘jurisdictional
writs’ issued against judicial or quasi-judicial authorities on similar grounds. however,
prohibition is issued while judicial process is in motion to prevent it from proceeding
further, certiorari is issued to quash the proceedings and is therefore issued when the
judicial process has ended in a decision (i.e. on completion of the proceeding). Thus, the
object of the writ of prohibition is in short ‘prevention’ rather than cure, while certiorari
is used as a ‘cure.’
 However, these remedies may be applied simultaneously, certiorari to quash the
proceedings and prohibition to stop the tribunal from continuing to exceed its
jurisdiction. The usual practice is to pray for prohibition and alternatively certiorari
because it may happen that pending proceedings for prohibition the agency may hand
over its final decision.

Page 118 of 222

Writ of Prohibition: Grounds.
In India, the Supreme Court (Art. 32) the High Courts (Art.226) are empowered to issue the writ
of prohibition to the Lower court, Tribunal or Authority, if it proceeds to act:
(i) Without or in excess of jurisdiction;
ii) In violation of the principles of Natural justice;
iii) Under a law which is itself ultra vires;
iv) In violation of Fundamental Rights.

Writ of Prohibition: Leading Cases.

1. Rex v. Electricity Commissioner
 The Electricity Act, provided for the appointment of commissioners. They made a
scheme for some districts. They commenced a local enquiry. Certain companies affected
by the scheme, claimed for the issue of a prohibition. The court issued the write and
stopped forthwith the proceedings of the enquiry body, as the commissioner had no
jurisdiction.

2. R. v. Local Government Board

 The lower authority proceeded to try summarily a charge which was not for trial under
the concerned statute. Prohibition was issued.

3. Mathura Prasad v. State of Punjab.

 An item was exempted from payment of tax, but the taxing authority proposed to assess
on such a commodity, in the turnover of the assessee. A writ of prohibition was issued.

4. Abdul Kadhir v. State of Kerala.

 Levy of a licence fee without authority was restrained by issuing a writ of prohibition

5. Bidi Supply Co. v. Union

 Prohibition was issued to I.T., assessment proceedings when there was a transfer order
from one office to another as this was arbitrary and against Article 14 of the Constitution.

Page 119 of 222

Writ of Prohibition: Limits.
i) It is not issued to purely administrative acts of the Executive;
ii) Mere errors or irregularities are not the grounds for writ of prohibition when the lower court
or tribunal has acted within its jurisdiction;
iii) It is issued only if the proceedings are pending in the lower court, tribunal or authority.

WRIT OF CERTIORARI AND WRIT OF PROHIBITION.

 The writ of prohibition is issued if the case is 'pending' in the lower court or tribunal. If
the case has already been decided, certiorari may be issued to quash the decision of the
lower court or tribunal.

WRIT OF QUO WARRANTO.

 Means ‘by what Authority?’ This writ was issued in England to privilege belonging to the
state. The object was to enquire by what persons who usurped or claimed any office,
franchise liberty or authority such claim is made. The court enquires: “On what authority
you are holding this office?”. It decides who had the right to the office etc., If the answer
is not satisfactory the Court will oust the usurper by issuing this writ.
 It can be issued against offices created by the constitution such as the advocate-general,
the speaker of legislative assembly, officers under the municipal act, members of a local
government board, university officials and teachers, but it will not issue against the
managing committee of a private school which is not appointed under the authority of a
statute.
 The basis of the writ is to see that by an unlawful claim, a person does not usurp a public
office. The writ is discretionary and the Court may refuse to issue if there is an alternative
remedy. This writ is a very powerful instrument against usurpation of public office.
 Quo-warranto is a question asking ‘with what authority or warrant’. The writ may be
sought to clarify in public interest the legal position in regard to claim of a person to hold
a public office. An application seeking such a writ may be made by any person provided
the office in question is a substantive public office of a permanent nature created by the
constitution or law and a person has been appointed to it without a legal title and in
contravention of the constitution or the laws.

Page 120 of 222

Writ of Quo Warranto: Grounds.
 Office must be a public office.
 Public office must have an independent and substantive character.
 Public office must be statutory or constitutional.
 Writ can be issued in respect of offices of Prime Minister, Chief Minister, Advocate
General, Judge of a High Court, President of Zilla Parishad, Speaker of Parliament or
State Legislature, University officials etc.
 No Locus standi is necessary. It can be raised by way of a Public Interest Litigation.

Writ of Quo Warranto: Conditions.

i) The office must be statutory or constitutional
ii) It must be a substantive one.
iii) It should be a public office.
iv) The holder should be the occupier and user of the office.
Writ of Quo Warranto: Statutory offices.
The examples are:
Prime Minister, Chief Minister, Advocate General, Speaker of the House, M.P., M.L.A., Mayor
of Corporation, Chief Justice etc.

Writ of Quo Warranto: Who can move?

The affected officer, or any person, with a bona fide intention in public interest may challenge.
He need not be an aspirant for the office.

Writ of Quo Warranto: De Facto Doctrine

 This means it is the dejure officer who should exercises his powers and issues orders.
But, when a defacto officer exercise his powers, before he is ousted by the court under a
Quo Warranto, his actions, decisions or exercise of power would be considered as valid
on grounds of policy and necessity.

Writ of Quo Warranto: Leading Cases

Anand Bihari v. Ram Sahay

Page 121 of 222

  The court held that the office in question must necessarily be one which is public.

G. Venkateshwara Rao v. Government of A.P.

 The court held that a private person may file an application for a writ of Quo Warranto. It
is not required that this person is personally affected or interested in the case.
 In cases of office of private nature the writ will not lie. In Jamalpur Arya Samaj Sabha v.
Dr. D. Rama, the High Court of Patna refused to issue the writ of quo warranto against
the members of the Working Committee of Bihar Raj Arya Samaj Pratinidhi Sabha- a
private religious association. In the same way the writ was refused in respect of the office
of a doctor of a hospital and a master of free school, which were institutions of private
charitable foundation, and the right of appointment to offices therein was vested in
authorities who were private and not public functionary.

Niranjan Kumar Goenka vs. The University of Bihar, Muzzafarpur

The Patna High Court held that writ in the nature of quo warranto cannot be issued against a
person not holding a public office. Acquiescence (the reluctant acceptance of something without
protest) is no ground for refusing quo warranto in case of appointment to public office of a
disqualified person, though it may be a relevant consideration in the case of election. When the
office is abolished no information in the nature of quo warranto will lie.

Reddy v. State of A.P.

 Osmania University Vice – Chancellor was terminated by amending the University Act
by reducing from 5 years tenure to 3 years Held, the amended law was not applicable to
him, but to the new incumbent. Quo Warranto was issued.

University of Mysore v. Govinda Rao

 G who was a reader in English petitioned for a Quo Warranto writ against Sri Anniah
Gowda. The Supreme Court held that as per law the University could prescribe the
qualifications, and these were fulfilled by Sri Anniah Gowda. Hence, Quo Warranto was
not issued against the University.

Page 122 of 222

G. Rangaraju v. State of A.P
The Supreme Court quashed the appointment of a Sessions Judge But, he had disposed of a
number of cases as defacto sessions judge. Held, his decisions were valid.

*****
ALTERNATIVE REMEDY: LACHES OR DELAY.
 The Court may refuse to grant relief where there is no reasonable explanation for the
delay.
 However, this is not a rule of law but a rule of practice based on the Court’s discretion
and this direction is to be exercised in the light of the circumstances of each case.
 Limitation Act does not apply to a petition under Article 32 and therefore there is no
fixed period after the lapse of which the petition under Article 32 will not be entertained
by the Supreme Court.

LACHES: LEADING CASES

M.L.Cecil D’Souza v. Union of India [AIR 1957 SC 1269]
 A Petition under Article 32 was filed in the Supreme Court so as to obtain the order of the
Court quashing the seniority list prepared in 1956.
 The Supreme Court refused to entertain the petition on the ground of delay.

G.P. Doval v. Chief Secretary., Govt. of U.P. [AIR 1984 SC 1527]

 The Supreme Court entertained a writ petition under Article 32 even after unexplained
delay of 12 years on the ground that the petitioners went on making representation after
representation which did not yield any response or relief and that the petitioners belong to
the lower echelons of service.
*****
RES JUDICATA: Introduction
 Under the Roman law, “ex captio res judicata” means “one suit and one decision is
enough for any single dispute”. The doctrine has been accepted in all civilized legal
system. In India, it is governed under Section 11 of Civil Procedure Code, 1908 which

Page 123 of 222

 provides that once a matter is finally decided by a competent court, no party can be
permitted to reopen it in a subsequent litigation.

RES JUDICATA: Object.

 The doctrine is based on three maxims:-
 No man should be vexed twice for the same cause.
 It is in the interest of the state that there should be an end to litigation.
 A judicial decision must be accepted as correct.
 THE POSITION of administration of justice in India is divided into two parts:
1. ordinary and traditional;
2. extraordinary and non-traditional.
The Civil Procedure Code, 1908, inter alia, provides for the former, and articles 32, 226, 227
and 136 of the Constitution of India provide for the latter.

PRINCIPLE OF RES JUDICATA IN WRIT PROCEEDINGS.

 The principle of res judicata also applies in cases for the enforcement of fundamental
rights. Thus, where the matter had been ‘heard’ and ‘decided’ by the High Court under
Art. 226, the writ under Art. 32 is barred by the rule of res judicata and could not be
entertained.
 The principle of res judicata also applies in cases for the enforcement of fundamental
rights. Thus, where the matter had been ‘heard’ and ‘decided’ by the High Court under
Art. 226, the writ under Art. 32 is barred by the rule of res judicata and could not be
entertained. Similarly, if a decision is made under Art. 32 by Supreme Court is barred
under Art. 226.
 Exception: Writ of Habeas Corpus
(Cases: Sarwar v. UOI; Sunil Dutt v. UOI)

RES JUDICATA: LEADING CASES

Lakhanpal v. UOI

Page 124 of 222

  It was held that in the absence of new circumstances arising since the dismissal of the
petition filed in SCI under Art. 32, a fresh petition under Art. 32 on the same matter
cannot be held in the Supreme Court.

Virudhunagar Mills v. Govt of Madras

It is to be noted that a petition filed in the SCI under Art. 32 and dismissed by it on suit by a
speaking order will also be operative as res judicata, even though the order has been made
ex-parte.

Joseph v. State of Kerala

If a case has been dismissed not on merit but some preliminary grounds viz., on the ground
of laches (delay in filing the petition) or on the ground of alternative remedy available to the
petitioner, it will not operate as res judicata and, thus, will not bar petition under Art. 32.

Daryao v. State of U.P.

The general rule of res judicata cannot be treated as irrelevant or inadmissible even in dealing
with fundamental rights in petition filed under Art. 32.
*****
PUBLIC INTEREST LITIGATION: Origin.
 The Origin of PIL may be traced to the United States. The Council for public interest law
stated in 1967 that legal services have failed to provide any remedy to some segments of
the population, who have significant interests. Such groups included the poor, the
consumers, the environmentalists, the minorities etc. Hence, these were allowed
representation before the Courts in the U.S.
 In the United Kingdom, Lord Denning was responsible for PIL's remarkable development
(Leading cases: A.G. v. Independent Broadcasting Authority and Reg v. Greater London
Council)
 In India, it is the Supreme Court that has given an impetus to PIL in the Asiad case and
Transfer of Judges Case.

Page 125 of 222

  Since then a number of cases have been decided by it. The High Courts have also
followed the same lines of the Supreme Court, and today the PIL is a recognized mode of
Securing relief, which otherwise would not have been available.

Public Interest Litigation: Nature & Object.

 Public Interest Litigation is considered as "Participative Justice". It is to vindicate the rights
of many persons, even of masses, the poor, etc., as Rule of law demands that justice should
be available to all. PIL is a co-operative or collaborative effort of public spirited persons, to
enforce through courts, the legal and constitutional rights of large sections of society, against
the State or its authorities.
 The general litigation is called" adversary system", but in PIL the Government or its
Authority is always the Respondent. The Court ensures implementation-of the legislative and
executive socio economic programmers of the State, to benefit the have-nots, the
handicapped and the weaker sections of the Society. Also ensures enforcement of their
fundamental Rights. The Courts are assertive and creative in their approach. When they pass
an order in PIL the objective is to enforce the Constitution and the law.

Public Interest Litigation: Powers and Functions of Court.

 The Courts have assumed jurisdiction in PIL cases, as time had come to assert that the
Courts are also for the poor and the struggling masses half-clad and half-fed. Social
Justice is the signature tune of our Constitution. In this regard, PIL is an effective
instrument of Social Justice and has changed, in recent years, the entire theatre of law,
holding better prospects for the future.
Regarding procedure there is much flexibility. If need be, the Court may ignore the technical
rules of procedure. Hence, a letter to the Chief Justice may be treated as writ petition. Courts
have not insisted on regular writ petitions; being filed when public spirited persons move the
Court:
i) to protect under trial prisoners languishing in jails without trial;
ii) to protect inmates of protective Home in Agra;
iii) to protect Harijan workers employed in road construction in Ajmer etc.

Page 126 of 222

 Public Interest Litigation has added a new dimension to the judicial activism. The Courts in
public interest entertain petitions and provide relief, going beyond the bounds of locus standi.
In keeping with the socio-economic changes, the Courts have used P.I.L., as a device to
entertain petitions in public interest.
 Thus Traditional locus standi rule no longer holds the field. It has been widened to meet
the challenges of the modern society in all areas socio-economic, scientific,
technological, environmental, etc.
 The general rule is: "Salus Populis Suprema Lex"(Public interest is Supreme law). On
the basis of this, the Crown may refuse to disclose documents or answer questions, if
such disclosure or answer was injurious to "Public Interest".

Public Interest Litigation: Leading Cases.

1. Transfer of Judges (S.P. Gupta v. Union of India)
The Court held that the petitioners as lawyers, had sufficient interest to challenge the
"circular" issued by the Home Ministry for the appointment and transfer of Judges.

2. Asiad Case
(Peoples Union for Democratic Rights v. Union of India)
 Several Public spirited Organisations, filed a writ petition under Art.32 piloting the cause
of construction-workers of Asiad houses, on the ground of violation of the various labour
laws. The Court held that PIL writ was maintainable. It held that non-payment of
minimum wage was “forced labour” coming under Art. 23 of the Constitution.

3. State of H.P. v. U.R. Sharma.

A Letter addressed to Chief Justice of the High Court by some poor Harijans stating that an
access road to hilly area sanctioned in 1972, had not been taken up even in 1980 causing
great hardship. The Court considered the letter as writ petition. This was upheld by the
Supreme Court.

Page 127 of 222

 4. Ratlam Municipality v. Vardichand
 Some residents of Ratlam moved the Sub Divisional Magistrate under Section.133 of
Cr.P.C., for an order of abatement of Nuisance and order for construction of drainage etc.
The order was issued. This was challenged by the municipality before the Supreme Court
.The Court rejected the municipality plea that residents had no locus standi. It directed to
provide sanitation and drainage within a fixed period.

5. Bangalore Medical Trust v. Muddappa

 A Piece of land had been earmarked for “Public Park" under the Development plan of the
City of Bangalore Improvement Act, 1945. But at the instance of the Chief Minister, the
B.D.A. allotted the land to a private trust to construct a nursing home. Residents filed a
writ under Art. 226 of the Constitution. The petition was allowed. The B.D.A. appealed
to the Supreme Court. Dismissing it, the Court held that it had jurisdiction under PIL. The
allotment was held invalid and ultra vires.

6. Bandhua Mukti Morcha v.Union of India [AIR 1984 SC 803]

 An Organisation dedicated to the cause of release of bonded labourers gave a letter to the
Supreme Court and thereby informed it about the existence of bonded labourers in
Faridabad District of the State of Haryana.
 It prayed for the issue of writ for the release of the bonded labour and for the proper
implementation of the various provisions of the Constitution and Statutes with a view to
end suffering and helplessness of labourers.
 The Court treated the letter as a writ petition and entertained it and appointed a
Commission to make inquiries and report to the Court about the existence of bonded
labourers in the said area.
 The Court expressed the view that Public Interest Litigation has been evolved with a
view to bring justice within easy reach of the poor and the disadvantaged sections of the
Community.
 Even a letter given by the public spirited individuals or a social action group is treated as
writ petition by the Court and the Court readily responds to it.

Page 128 of 222

7. Hussainara Khatoon v. State of Bihar [AIR 1979 SC 1360]
 A Habeas Corpus petition was moved on the basis of a news report.
 The Court allowed the petition and ordered the release of all under-trial prisoners named
in the news report.

8. Lakshmi Kant Pandey v. Union of India [(1984) 2 SCC 244]

 A Writ petition was filed complaining that in the guise of adoption, Indian children of
tender age had to face the dreadful journey to distant foreign countries at the greater risk
of their lives.
 They were not provided any shelter and relief homes and in the course of time they were
to become beggars or prostitutes.
 The Court laid down certain principles which should be followed in determining whether
or not a child should be allowed to be adopted by foreign parents.

9. Narmada Bachao Andolan v. Union of India [AIR 2000 SC 3751]

 The Supreme Court has made it clear that change in environment does not per se violate
any right under Article 21 of the Constitution especially when ameliorative steps are
taken not only to preserve but also to improve ecology and environment.
 In case of displacement, prior relief and rehabilitation measures take place pari passu**
with the construction of the dam.
**is a Latin phrase that literally means "with an equal step" or "on equal footing". It is
sometimes translated as "ranking equally", "hand-in-hand", "with equal force", or "moving
together", and by extension, "fairly", "without partiality“; side by side; at the same rate or on
an equal footing.

10. M.C.Mehta v. Union of India [(1987) 4 SCC 463]

 A Social Worker brought to the notice of the court the pollution of the river Ganga.
 The Court ordered the closure of tanneries near Kanpur polluting the river Ganga.
 The Court directed the Nagar Mahapalika, Kanpur, to comply with the statutory
obligations under the Water (Prevention and Control of Pollution) Act, 1974.

Page 129 of 222

11. D.K.Basu v. State of West Bengal[AIR 1997 SC 610]
It is an example of a case of Public Interest Litigation filed for the prevention of torture
or inhuman treatment by the police.
 In this case, the Supreme Court has made it clear that any form of torture, cruel, inhuman
or degrading treatment with the persons arrested by the police is against Article 21,
whether it occurs during the investigation, interrogation or otherwise.

12. People’s Union for Civil Liberties v. UOI [AIR 1997 SC 1203]
 In this case, the Court has held that the fake encounter by the police is violative of Article
21.
 If it is proved that the person has been killed by the police in fake encounter, the State
may be directed to pay compensation and in such cases the doctrine of sovereign
immunity does not apply.
 PIL at best serves as just one more weapon of the social activists and public spirited
persons, in their continuous and arduous task of espousing the cause of millions, with the
well-intentioned fight for justice through Courts. However P.I.L., cannot be stretched too
far. It is not amend all and a cure-all of the ills of our society.
Other Notable cases:
 Veena Sethi v. State of U.P. (there was illegal detention of persons for over two to three
decades)
 K. Pahadiya v. State of Bihar (under-trail juveniles were kept in prison for over eight
years without trial)
 Khatri v. State of Bihar (Bhagalpur Blinding Case - Police has blinded accused persons
as punishment-) order was issued to rehabilitate them)
 Sheela Barse v. Union of India (Physically and mentally handicapped children kept in
jail)
 Wadhwa v.State of Bihar (Issue of over 100 ordinances by Governor could be
challenged under PIL.)

Page 130 of 222

Conclusion.
 PIL at best serves as just one more weapon of the social activists and public spirited
persons, in their continuous and arduous task of espousing the cause of millions, with the
well-intentioned fight for justice through Courts. However P.I.L., cannot be stretched too
far. It is not amend all and a cure-all of the ills of our society.

*****
DOCTRINE OF LEGITIMATE EXPECTATION.
 Doctrine of Legitimate Expectation: India The doctrine of legitimate expectation has been
developed by the court mainly to prevent the misuse of administrative power or discretion or
arbitrary exercise of the administrative power or discretion. The doctrine of legitimate
expectation has an important place in the development of the law of judicial review. Its is a
component of natural justice and well founded on Art. 14 of the Constitution. Article 14
requires fairness in Administrative action. Any state action which is arbitrary, is Considered
violative of Art. 14.
 Doctrine of Legitimate Expectation: India In India, the Supreme Court has developed this
doctrine in order to check the arbitrary exercise of power by the administrative
authorities.In private law, a person can approach the court only when his right based on
statute or contract is violated, but this rule of locus standi is relaxed in public law, to
allow standing even when a legitimate expectations from a public authority is not
fulfilled. Doctrine of Legitimate Expectation: India
Therefore, this doctrine provides a central space between “no claim” and a “legal claim”,
wherein a public authority can be made accountable in the ground of an expectation which is
legitimate.
For example:
If the government has made a scheme for providing drinking water in villages in certain area
but later on changed it, so as to exclude certain villages from the purview of the scheme, then
in such a case, what is violated is the legitimate expectation of the people in the excluded
villages for tap water, and the government can be held responsible if the exclusion is not fair
and reasonable.

Page 131 of 222

 The doctrine of legitimate expectation is at a stage of evolution. The principle is at the root of
the rule of law and requires fairness and reasonableness in dealings of government and its
instrumentalities with the public.
Where a decision of an administrative authority adversely affects legal rights of an
individual, duty to act judicially is implicit. But even in cases where there is no legal right, he
may still have legitimate expectations of receiving the benefit or privilege. Such expectation
may arise either from express promise or from existence of regular
practice which the applicant can reasonably expect to continue.
Principles of natural justice will apply in cases where there is some tight, which is likely to
be affected by an act of administration. Good administration , however, demands observance
of doctrine of reasonableness in other situations also where the citizens may legitimately
expect to be treated Fairly. A doctrine of legitimate expectations had been developed both in
the context of reasonableness and in the
context of natural justice.
The doctrine of legitimate expectation is well established and operated in the domain of
public law. Being less than an enforceable right, legitimate expectation does not apply to
private law. Where expectations were based upon some statement or understanding by or on
behalf of a Public authority, a person having no enforceable right but affected or likely to be
affected by an action of the public authority, may approach a court of law for appropriate
relief. The government and its departments, in administering the affairs of the country, are
expected to honour their statements of policy and treat all citizens fairly and equally. Every
action of State must be in conformity with Article 14 of the Constitution. The Doctrine of
legitimate expectation thus gets assimilated in the rule of law. If there is an express promise
held out or representation made by a public authority; or
1) Because of the existence of past practice which the claimant can reasonably expect to
continue; and
2) Such promise or representation is clear and unambiguous.
Legitimate expectation gives an applicant sufficient locus standi to apply for judicial review.
By an appropriate application, he may claim fair hearing before taking away the benefit
enjoyed by him though he may not straightaway claim such relief from the
court.

Page 132 of 222

 1. Procedural Legitimate Expectation.
Denotes the existence of some process right the applicant claims to possess as a result of
behavior by the public body that generates the expectation.
2. Substantive Legitimate Expectation.
Refers to the situation in which the applicant seeks a particular benefit or commodity, such as
a welfare benefit or license. The claim to such a benefit will be founded upon governmental
action which is said to justify the existence of the relevant expectation. Some of the
arguments in favor of substantive legitimate expectations are: it creates
fairness in public administration, reliance, and trust in government, the principle of equality,
upholds rule of law.
Schmidt v. Secretary of State, Home Affairs
The term “legitimate expectation” was first used by Lord Denning in above mentioned case
law.
Wherein the government had cut short the period already allowed to an alien to enter and stay
in England; the court held that the person had legitimate expectation to stay in England
which cannot be violated without following a procedure which is fair and reasonable.
In this manner, Lord Denning used the term “legitimate expectation” as an alternative
expression to the word “right”.
Thus, this doctrine becomes a part of the principles of natural justice, and no one can be
deprived of his legitimate Expectations without following the principles of natural justice.
The doctrine has negative and positive contents both. If applied negatively, an administrative
authority can be prohibited from violating the legitimate expectations of the people, and if
applied in a positive manner, an administrative authority can be
compelled to fulfill the legitimate expectations of the people.

Associated Provincial Picture Houses ltd v.Wednesbury Corporation

In this case certain principles have been laid down for review of the decision taken by
administrative authority. As per these principles, the court will interfere only when one of the
following conditions is satisfied:
i) The decision is contrary to law; or
ii) Relevant factors have not been considered; or

Page 133 of 222

iii) Irrelevant factors have been considered; or
iv) The decision is one which no reasonable authority or person would have taken.

Breen v/s Amalgamated Engg.Union

In this case the doctrine of legitimate expectation found its legitimate place. The district
committee of a trade union had refused to endorse a member’s election as shop steward. The
court held that if a person claims a privilege, he can be turned away
without hearing, but here a person has something more than a mere privilege –a legitimate
expectation that his election would be approved unless there are relevant reasons for not
doing so, therefore, the natural justice principles are attracted to the case in order to ensure
fairness.

The Privy Council In Attorney General of Hong Kong v. Ng Yuen Shiu (1983) 2 AC 629:
(1983) 2 WLR 735: 2 ALL ER 346 PC
While quashing the removal order passed by the Hong Kong Immigration Authority without
notice and hearing also, held that there is a violation of the legitimate expectation of the
immigrant based on an announcement of the authority that while examining the cases of illegal
immigration, each case would be decided on its own merit and therefore, a removal order cannot
be passed without a fair hearing.

Council of civil Services Union v. Minister of Civil Services

In this case the legitimate expectations may arise from an expression or promise made by the
authority, or from an established past practice which cannot be violate without good reasons. In
this case, the administrative authority had withdrawn a long standing practice by mere oral
instruction. In a sense, the doctrine of legitimate expectation imposes a duty on the authority to
act fairly and is not restricted to situations where expectationers to be consulted or be given an
opportunity to make representation .

R. v. Secy.of State for Home Dept.

The court held that a certain criterion or procedure would be followed, the people

Page 134 of 222

can legitimately expect that it would be followed in the decision making process of the authority
and, therefore the authority is under an obligation to follow that criterion or procedure. In this
case, in violation of the provisions of the circular regarding entry of adopted children in England,
the authority had refused entry to the adopted child of Mr. Khan.
The court quashed the order of the authority as it was on considerations of polices which were
not in existence when the circular had been issued.

R v. Secy. Of state for Transport, Ex p. Greater London Council

The doctrine was applied in tax cases. The court held that a taxpayer had legitimate expectations
to make representation that he should not pay tax at the maximum rate.
Though the doctrine as evolved in England is still in an evolutionary stage, yet one thing is
certain that it is an equity doctrine and, therefore, the benefit of the doctrine cannot be moulded
to suit the requirements of each individual case. The court did not apply the doctrine where
applicant’s own conduct was unlawful or claim was unworthy.

Development in India
The capacity of the Supreme Court to import legal doctrines and to plant them in a different soil
and climate and to make them flourish and bear fruits is tremendous.
The importance of the doctrine of legitimate exceptation is recent.The first reference to the
doctrine is found in below mentioned case law.

State of Kerala v/s Madhavan Pillai [(1988) 4 SCC 669: AIR 1989 SC 49]
In this case, the government had issued a sanction to the respondents to open a new unaided
school and to upgrade the existing ones. However, after 15 days a direction was issued to keep
the sanction in abeyance. This order was challenged on the ground of violation of the principles
of natural justice.
The court held that the sanction order created legitimate expectation in the respondents which
was violated by the second order without following the principles of natural justice, which is
sufficient to vitiate an administrative order.

Page 135 of 222

S.C. and W.S. Welfare Association v. State of Karnataka, (1991) 2 SCC 604.
Certain areas were notified by the Government where slum clearance scheme was to be
introduced. Subsequently, the notification was amended and certain areas which were notified
earlier were left out. it was held that the earlier notification had raised legitimate expectation in
the people residing in an area left out by subsequent notification and therefore this legitimate
expectation cannot be denied without a fair hearing.
Thus, where a person has legitimate expectation to be treated in a particular way which falls
short of an enforceable right, the administrative authority cannot deny him his legitimate
expectations without fair hearing.

Navjyoti Coop. Group Housing Society v. Union of India

In this case, the development authority, without notice and hearing, had changed the order of
priority for the allotment of land to cooperative societies from ‘’serial number of registration’’ to
the ‘’’date of approval of list of members’’. Quashing the order on the ground of violation of
legitimate, the court held that where persons have been enjoying certain benefits or advantage
under an old government policy, they derive a legitimate exceptation, even though they may not
have any legal right under private law in regard to its continuance. However, before changing
that policy affecting adversely that benefit or advantage, the aggrieved persons are entitled to a
fair hearing.

Jitendra Kumar v. State of Haryana

In this the government has a right to review the decision taken by the previous establishment
and, hence, it can suspend the process of recruitment started by previous government because of
allegations of irregularities, and this cannot be challenged on the ground of violation of
legitimate expectation because legitimate expectation is different from mere anticipation, desire
and hope.

National Building Construction Comp. v. S.Raghunathan AIR 1998 SC 2779

The court has well explained the conditions required to exist for the application of this doctrine.
For the application of this doctrine, there must be representation and reliance on the
representation and resultant detriment.

Page 136 of 222

Thus, only expectation is not sufficient for its application; the expectation must be legitimate or
reasonable. If an authority cannot legally do the act expected form the person concerned, it
cannot be said that the expectation is legitimate.
UOI V. Hindustan Development Corporation[ 3 SCC 499 :1993 AIR SCW 494]
 The Supreme Court has held that the legitimacy of expectation can be inferred only if it is
founded on the sanction of law or custom or an established procedure followed in a
natural and regular sequence.

*****
DOCTRINE OF PROPORTIONALITY.
 We live in an age where administrative authorities have been empowered to exercise
discretionary powers, the position holders in the administration exercise wide
discretionary powers and these powers cannot be used arbitrarily, therefore to keep a
check on them, the doctrine of proportionality is used.
 While exercising administrative action, the body should keep in mind the purpose it seeks
to obtain and the means it is using to achieve it, and if its actions deviate from the object
or are discriminatory or disproportionate then they would be quashed by the court by
using the doctrine of proportionality.
 In India the doctrine of proportionality was adopted by the Supreme Court of India in the
case of Om Kumar v. Union of India. In this case the Apex court observed that Indian
courts have been using this doctrine since 1950, in cases of legislations violating
fundamental rights enshrined in Article 19(1) of the constitution. Although the Doctrine
has been adopted in India in a very restrictive manner. The European model has not been
adopted fully. The doctrine of proportionality requires a body to maintain balance
between its action and purpose for which the powers have been conferred.

Doctrine of Proportionality: As a Ground of Judicial Review.

 Doctrine of proportionality is a principle that is prominently used as a ground for judicial
review in cases of administrative action. The doctrine was developed in Europe and it is a
vital part of the European administrative law. The doctrine essentially signifies that the
punishment should not be disproportionate to the offence committed or the means that are

Page 137 of 222

 used by administration to obtain a particular objective or result should not me more
restrictive than that are required to achieve it.

Doctrine of Proportionality: Application.

 “Proportionality is a principle where the Court is concerned with the process, method or
manner in which the decision-maker has ordered his priorities, reached a conclusion or
arrived at a decision.”
 It is a misconception that judicial review on the basis of this doctrine is similar to appeal.
In an appeal the appellate authority is authorized to adjudge the whole matter again,
whereas in the case when an administrative action is challenged on the basis of doctrine
of proportionality, the appellate authority only ensures that whether the procedure was
right or the punishment given was the least restrictive way to fulfil its objective.
 In Indian legal system a restrictive approach has been taken for this doctrine as if a
broader doctrine was adopted then the discretionary powers of the administration will
become redundant. It will allow the judiciary to encroach upon the powers of executive.
The judiciary cannot step into the shoes of executive and take actions on its behalf. Hence
the doctrine adopted in India is perfect to maintain this status. The administrative
tribunals deal with the matter of administrative actions, they act as primary reviewer of
these actions, courts only act as secondary reviewer.

 This position was explained in: R v. Secretary of State for the Home Department
the Lord Bridge in this case held that when convention rights i.e. Fundamental Rights are
invoked then the court will act as a primary reviewer and if non-Convention rights are
involved, the court can only act as a secondary reviewer.
This arrangement does not allow the court to go into the merits of the administrative action.

Doctrine of Proportionality and Wednesbury Reasonableness:

 The concepts of Proportionality and unreasonableness are fused together providing an
adequate rubric for the judicial review of irrationality in administrative law. The principle
of Proportionality can be treated as an aspect resulting out of Wednesdury

Page 138 of 222

 unreasonableness. This is to say that the Wednesbury test was developed to review an
action which is highly arbitrary and discriminatory.
 The judiciary seemed reluctant to enter into the administrative and review its actions.
Later in the course of time the test of Proportionality came up to review an action which
is not proportional to the desired goal to be achieved by that action. So this would mean
that the administrative action to be arbitrary would have to be Wednesbury unreasonable
first to be disproportionate.
 Wednesbury principle is a tool for challenging administrative action. The way in which
such challenge is made is relevant; and in this respect, the Wednesbury principle is
understood with respect to grounds of judicial review of administrative action. In relation
to this, the ultra vires principle already exists. The ultra vires doctrine refers to an action
which is in excess of the powers of decision making bodies, and the reasoning or
implications of this principle are important insofar as they uphold the sovereignty of
parliament, and the rule of law.
 To have the right to intervene, the court would have to form the conclusion that:
 The corporation, in making that decision, took into account factors that ought not to have
been taken into account, or
 The corporation failed to take account factors that ought to have been taken into account,
or
 The decision was so unreasonable that no reasonable authority would ever consider
imposing it.
 The decision was so unreasonable that no reasonable authority would ever consider
imposing it.
 The court held that the condition did not fall into any of these categories. Therefore, the
claim failed and the decision of the Wednesbury Corporation was upheld. The test laid
down in this case, in all three limbs, is known as the “Wednesbury test”. The term
“Wednesbury unreasonableness” is used to describe the third limb, of being so
unreasonable that no reasonable authority could have decided that way.

Page 139 of 222

Doctrine of Proportionality: Indian Scenario.
 The concept of proportionality in India is restricted from the broad view as it does not
accord with the traditional common law judicial review. The principle of proportionality
in India is based in the Constitution which ensures the fundamental rights as opposed to
the statutory basis in England.
 Article 14 of the Constitution is one of the main provision under which an administrative
action can be reviewed. Under Article 14, the law or the administrative action has to
satisfy the reasonable test. In the case of Maneka Gandhi v. Union of India , quoting
himself from Royappa case, Justice Bhagwati has read the principle of reasonableness in
Article 14 by the words:
 Any arbitrary action of the administration will be struck down as unconstitutional as it
gives it uncontrolled power and scope for discrimination. The exercise of discretion by
the administration should be guided by the administration itself. If it is not guided then
the judiciary will have to enforce or strike down some actions of the administration as
invalid.
 While testing the validity of the discretionary power under Article 14 due regard should
be given to the importance of the reasonableness and non-arbitrariness of the action. If
the administrative action is unreasonable and arbitrary, it will be struck down under
Article 14.

B.C. Chathurvedi v. UOI [AIR 1995 SC 4374]

 The Three judge Bench has said that while exercising the power of judicial review, the
High Court/Tribunal cannot normally substitute its own conclusion on penalty and
impose some other penalty.
 If the punishment imposed by the disciplinary authority or the appellate authority shocks
the conscience of the High Court/Tribunal, it will appropriately mould the relief, either
by directing the disciplinary authority to reconsider the penalty imposed or to shorten the

Page 140 of 222

 litigation, it may, in exceptional cases, impose appropriate punishment with cogent
reason, in support thereof.

Master Marine Services (P) Ltd. v. Metcalfe & Hodgkinson (P) Ltd.
[AIR 2005 SC 2299]
 The Setting aside of awarding of contract on the basis of the term not incorporated in
tender document was held to be not proper, more so when the tender instructions
conferred power on the authority to relax the tender conditions and commercial
considerations were in favour of awardee of the contract.
 The Court reiterated that the power under Article 226 should be exercised in furtherance
of the public interest.

Doctrine of Proportionality: Conclusion

 Though the right of superior Courts to invoke the judicial review is guaranteed by the
Constitution, its content, reach and power, and the balance between various principles are
not enunciated in any provision of the Constitution, but have probably been founded on
various principles enunciated on the basis of notions of fairness which generally permeate
the common law.
*****

STATUTORY REMEDIES.
Injunction: Introduction
An injunction is a prohibitive writ issued by a court of equity, at the suit of a party complainant,
directed to a party defendant in the action, or to a party made a defendant for that purpose,
forbidding the latter to do some act, or to permit his servants or agents to do some act, which he
is threatening or attempting to commit, or restraining him in the continuance thereof, such act
being unjust and inequitable, injurious to the plaintiff, and not such as can be adequately
redressed by an action fit law.
For example, if it so happens that a person is demolishing a building you have possible claims
on, you may ask the competent court to order such person to not demolish the building until the
trial for the claim of the building is complete and judgement goes in his favour.

Page 141 of 222

INJUNCTION: ACTS
 The law of injunction has been provided for by the Specific Relief Act, 1963, and is also
regulated by the Code of Civil Procedure, 1908 in India.

INJUNCTION: TYPES
Generally speaking, there are two types of injunctions,
as mentioned below:
 Temporary Injunction
 Perpetual / Permanent Injunction

TEMPORARY INJUNCTION
 Temporary injunctions, as the name suggests, are the injunctions that are given for a
specific period of time or until the court gives further order regarding the matter in
concern. They can be obtained during any stage of the trial and are regulated by the Code
of Civil Procedure (CPC), 1908.

TEMPORARY INJUNCTION: SEC. 94 of CPC

 Section 94: The section provides for supplemental proceedings, to enable the court to
prevent the ends of justice from being defeated. Section 94(c) states that a court may
grant temporary injunction and in case of disobedience commit the person guilty thereof
to the civil prison and order that his property be attached and sold. Section 94(e) of the
Code enables the court to make interlocutory orders as may appear to it to be just and
convenient.

TEMPORARY INJUNCTION: SEC. 95

 Section 95: If it is found by the court that there were no sufficient grounds to grant the
injunction, or the plaintiff is defeated in the suit, the court may award reasonable
compensation to the defendant on his application claiming such compensation.

TEMPORARY INJUNCTION: ORDER XXXIX

Page 142 of 222

Rule 1: It enlists the situations when a court may grant temporary injunction. These are:
 Any property in dispute in a suit is in danger of being wasted, damaged or alienated by
any party to the suit, or wrongfully sold in execution of a decree, or
 the defendant threatens, or intends, to remove or dispose of his property with a view to
defrauding his creditors,
 the defendant threatens to dispossess the plaintiff or otherwise cause injury to the plaintiff
in relation to any property in dispute in the suit.

Rule 2: It provides that an interim injunction may be granted for restraining the defendant from
committing a breach of contract or other injury of any kind to the plaintiff.

Rule 3: It states that a court shall direct a notice of application to the opposite party, before
granting the injunction to the plaintiff. However, if it seems to the court that the purpose of the
injunction would be defeated by the delay, it may not provide the notice.

Rule 4: It provides for vacation of already granted temporary injunction.

Rule 5: It states that an injunction directed to a corporation is binding not only on the corporation
itself, but also on all members and officers of the corporation whose personal action the
injunction seeks to restrain.

TEMPORARY INJUNCTION: LEADING CASES

M. Gurudas and Ors.
The Hon’ble Supreme Court of India has opined, “while considering an application for
injunction, the Court would pass an order thereupon having regard to prima facie, balance of
convenience and irreparable injury.”

Prima Facie Case:

 Prima Facie literally means, on the face of it.
Martin Burn Ltd. vs. R.N. Banerjee,
2. Balance of Convenience:

Page 143 of 222

  In the case of Anwar Elahi, the court has clearly explained the meaning of ‘balance of
convenience’. According to the court:
 “... In applying this principle, the Court has to weigh the amount of substantial mischief
that is likely to be done to the applicant if the injunction is refused and compare it with
that which is likely to be caused to the other side if the injunction is granted.”

3. Irreparable Injury:
 ‘Irreparable injury’ means such injury which cannot be adequately remedied by damages.
The remedy by damages would be inadequate if the compensation ultimately payable to
the plaintiff in case of success in the suit would not place him in the position in which he
was before injunction was refused.

PERMANENT INJUNCTION
 A permanent injunction can be granted by the court by passing a decree made at the
hearing and upon the merits of the suit. Once such decree is passed, the defendant is
permanently prohibited from the assertion of a right, or from the commission of an act,
which would be contrary to the rights of the plaintiff.

PERMANENT INJUNCTION: WHEN IT CAN BE GRANTED ??

(1) To the plaintiff in a suit to prevent a breach of an obligation existing in his favour,
whether implicit or explicit. However, in a case where such an obligation arises out of a
contract, the court follows the rules as specified by Chapter II of the Act. Chapter II, under
Section 9 provides that a person may claim relief in respect to a contract, by pleading in his
defense, any of the ground available to him under any law relating to contracts.
In a case where the plaintiff invades or threatens to invade the the plaintiff’s right to, or
enjoyment of, property, the court may grant a permanent injunction where:
 The defendant is trustee of the property for the plaintiff;
 there exists no standard for ascertaining the actual damage caused, or likely to be caused,
by the invasion;
 the invasion is such that compensation in money would not afford adequate relief;
 the injunction is necessary to prevent a multiplicity of judicial proceedings.

Page 144 of 222

PERMANENT INJUNCTION: LEADING CASES
 Jujhar Singh vs. Giani Talok Singh where a permanent injunction was sought for by a
son to prevent his father who happened to be the Karta of the Hindu Undivided Family
(HUF), from selling the HUF property was set aside. It was not maintainable because the
son, also a coparcener, had got the remedy of challenging the sale and getting it set aside
in a suit subsequent to the completion of the sale.
 On the other hand, granting the injunction sought would allow the son to use the
injunction to prevent the father from selling the property even if he is compelled to do so,
due to legal necessities.

Cotton Corporation Of India vs. United Industrial Bank, an injunction was sought for to
restrain the defendants from presenting a winding-up petition under the Companies Act, 1956 or
under the Banking Regulation Act, 1949, the court dismissed the petition as it was not competent
to grant, as a relief, a temporary injunction restraining a person from instituting a proceeding in a
court not subordinate to it.
 The Court here was of the view that if a perpetual injunction cannot be granted for the
subject matter of the case under Section 41(b) of the act, ipso facto* temporary injunction
cannot be granted.
*by that very fact or act

MANDATORY INJUNCTION: INTRODUCTION

 If the court finds it necessary and within its capability, to compel the performance of an
act, to prevent the breach of an obligation, it may do so granting a mandatory injunction
to the plaintiff, compelling the defendant to perform the requisite acts.

MANDATORY INJUNCTION: DAMAGES IN LIEU OR ADDITION TO INJUNCTION

If the plaintiff claims for any additional damages along with the injunction sought for, either
perpetual or mandatory, or in substitution of the said injunction, the court may award him
such damages, if it thinks fit. If no damages have been claimed, the court may allow the
plaintiff to make the required amendments to the plaint and claim damages.

Page 145 of 222

  However, it is highly recommended to claim damages in the plaint before submitting it,
as permission for further amendments rests solely at the discretion of the court.
 The dismissal of a suit to prevent the breach of an obligation existing in favor of the
plaintiff bars his right to sue for damages for such breach.

INJUNCTION TO PERFORM NEGATIVE AGREEMENT

 The Court can grant an injunction to not do certain acts, which are prohibited by the
contract to do. The court may do so even if it is unable to compel the performance of the
affirmative terms of the contract, i.e. the terms that requires the defendant to do (perform)
certain acts. However, it is subject to the fact, whether the plaintiff has performed the
terms of the contract binding on him or not. Non performance by the plaintiff dis-entitles
him from obtaining such an injunction.

GROUNDS FOR REJECTION OF AN APPLICATION FOR INJUNCTION

On the following grounds, an injunction cannot be granted:
 To restraint a person from prosecuting a pending judicial proceeding, unless it is to
prevent multiplicity of the proceeding.
 To restraint a person from instituting or prosecuting a judicial proceeding in a court,
where the injunction is sought from a court subordinate to that court.
 To restrain any person from instituting or prosecuting any proceeding in a criminal
matter.
 To prevent the breach of a contract the performance of which would not be specifically
enforced (Illustration: a contract between a master and servant, requiring the servant to
render personal services to the master cannot be specifically enforced by the master or the
servant. Hence, an injunction cannot be granted in this situation)
 Where it is not reasonably clear that an act it nuisance, to prevent such an act on the
ground of nuisance.
 To prevent a continuing breach in which the plaintiff has acquiesced, as the general rule
is that an acquiescence is an implied consent by remaining silent.

Page 146 of 222

  Where except in the case of breach of trust, equally efficacious relief can certainly be
obtained by any other usual mode of proceeding.
 To restrain any person from applying to any legislative body.
 When the conduct of the plaintiff or his agents has been such as to dis-entitle him to the
assistance of the court.
 When the plaintiff has no personal interest in the matter.

DECLARATION AGAINST THE GOVERNMENT: LIMITATION PERIOD

 Establishing title/possession for a period exceeding twelve years may be adequate to
establish title in a declaratory suit against any individual. On the other hand,
title/possession for a period exceeding thirty years will have to be established to succeed
in a declaratory suit for title against government. This follows from Article 112 of
Limitation Act, 1963 which prescribes a longer period of thirty years as limitation in
regard to suits by government as against the period of 12 years for suits by private
individuals.

 The reason is obvious. Government properties are spread over the entire state and it is not
always possible for the government to protect or safeguard its properties from
encroachments. Many a time, its own officers who are expected to protect its properties
and maintain proper records, either due to negligence or collusion, create entries in
records to help private parties, to lay claim of ownership or possession against the
government. Any loss of government property is ultimately the loss to the community.
Courts owe a duty to be vigilant to ensure that public property is not converted into
private property by unscrupulous elements.
 Many civil courts deal with suits for declaration of title and injunction against
government, in a casual manner, ignoring or overlooking the special features relating to
government properties. Instances of such suits against government being routinely
decreed, either ex parte or for want of proper contest, merely acting upon the oral
assertions of plaintiffs or stray revenue entries are common.
 Whether the government contests the suit or not, before a suit for declaration of title
against a government is decreed, the plaintiff should establish, either his title by

Page 147 of 222

 producing the title deeds which satisfactorily trace title for a minimum period of thirty
years prior to the date of the suit (except where title is claimed with reference to a grant
or transfer by the government or a statutory development authority), or by establishing
adverse possession for a period of more than thirty years.
 In such suits, courts cannot, ignoring the presumptions available in favour of the
government, grant declaratory or injunctive decrees against the government by relying
upon one of the principles underlying pleadings that plaint averments which are not
denied or traversed are deemed to have been accepted or admitted.
 A court should necessarily seek an answer to the following question, before it grants a
decree declaring title against the government : whether the plaintiff has produced title
deeds tracing the title for a period of more than thirty years; or whether the plaintiff has
established his adverse possession to the knowledge of the government for a period of
more than thirty years, so as to convert his possession into title.

 Incidental to that question, the court should also find out whether the plaintiff is recorded
to be the owner or holder or occupant of the property in the revenue records or municipal
records, for more than thirty years, and what is the nature of possession claimed by the
plaintiff, if he is in possession - authorized or unauthorized; permissive; casual and
occasional; furtive and clandestine; open, continuous and hostile; deemed or implied
(following a title).
 Mere temporary use or occupation without the animus (hostility or ill feeling) to claim
ownership or mere use at sufferance will not be sufficient to create any right adverse to
the Government. In order to oust or defeat the title of the government, a claimant has to
establish a clear title which is superior to or better than the title of the government or
establish perfection of title by adverse possession for a period of more than thirty years
with the knowledge of the government.

*****

Page 148 of 222

 DECLARATION OF TITLE AGAINST THE GOVERNMENT:
NATURE OF PROOF REQUIRED IN SUITS
 Suits for declaration of title against the government, though similar to suits for
declaration of title against private individuals differ significantly in some aspects. The
first difference is in regard to the presumption available in favour of the government. All
lands which are not the property of any person or which are not vested in a local
authority, belong to the government. All unoccupied lands are the property of the
government, unless any person can establish his right or title to any such land. This
presumption available to the government, is not available to any person or individual.
The second difference is in regard to the period for which title and/or possession have to
be established by a person suing for declaration of title.

*****

PRIVILEGES AND IMMUNITIES IN SUITS OF THE STATE: INTRODUCTION

 Every problem has its own remedy. For the purpose of actions of the administration,
these remedies help in preventing the recurrence the extraordinary legal remedies that is
available to the individual against the illegal of an illegality. However, they do not
provide full redress to the aggrieved individual. Private citizens access to the ordinary
courts and the ordinary legal remedies may be qualified by the existence of certain
privileges and immunities enjoyed by the state.
 These privileges immunities though justified in the days in which they originated, are
hardly justified in a democratic society. However, the state does enjoy and it may be
necessary for it to enjoy certain privileges and immunities. Administrative law is engaged
in the process of redefining such privileges and immunities with a view to reconciling
them with the needs of modern times.
 The Constitution clearly says that the executive power of the Union and of each state
extends to ‘the carrying on for any trade or business and to the acquisition, holding and
disposal of property and the making of contracts for any purpose’. The Constitution
therefore, provides that a Government may sue or may be sued by its name. Similar
provisions to be found in the Code of Civil Procedure. The above provisions do not,

Page 149 of 222

 however, enlarge or restrict the extent of State liability; they merely provide the method
of redress.

PRIVILEGES AVAILABLE TO THE GOVERNMENT

 IMMUNITIES FROM THE OPERATION OF THE STATUTE: ENGLAND
 IMMUNITIES FROM THE OPERATION OF THE STATUTE: INDIA
 Section 80 (1) provides that no suit shall be instituted against the Government or against
a public officer in respect of any act purporting to be done by such public officer in his
official capacity, until the expiration of two months next after notice in writing has been
delivered in the manner provided in the section. The section is mandatory and admits of
no exception. Thus, the requirement of notice is mandatory. However, it is to be noted
that if a public officer acts without jurisdiction, the requirement of notice is not
mandatory. Its object appears to provide the Government or the public officer an
opportunity to consider the legal position thereon and settle the claim without litigation.

 PRIVILEGES UNDER THE EVIDENCE ACT TO WITHHOLD DOCUMENTS

 PRIVILEGES OF GOVERNMENT AND LIMITATION ACT

 The Government may waive the requirement of notice; the waiver may be express or
implied.
 The requirement of notice causes much inconvenience to the litigants especially when
they seek immediate relief against the Government. To minimize the hardships to the
litigants a new Clause 20 was inserted in Section 80 of the C.P.C by the Civil Procedure
Code Amendment Act, 1970.
 The clause provides that the Court may grant leave to a person to file a suit against the
Government or a public officer without serving the two-month’s notice in case where
relief claimed is immediate and urgent. Before granting this exemption the Court is
required to satisfy itself about the immediate and urgent need.

Page 150 of 222

  It is to be noted that S.80 of the C.P.C does not apply to a suit against a statutory
Corporation. Consequently in case the suit is filed against the statutory Corporation.
Consequently, such notice is not required to be given in cases the suit is filed against
statutory Corporation.
Section 80 does not apply with respect to a claim against the Government before the
claim Tribunal under the Motor Vehicle Act.

 Section 80 of the C.P.C. does not apply to a writ petition against the Government or a
public officer, the requirement of notice as provided under Section 80 of the C.P.C is not
required to be complied with Section 82 of the C.P.C. also provides privilege to the
Government. According to this section where in a suit by or against the Government or
the public officer, a time shall be specified in the decreed within which shall be satisfied
and if the decree is not satisfied writhing the time so specified and within three months
from the date of the decree.

 Where no time is so specified, the Court shall report the case fro the orders of the
Government. Thus a decree against the Government or a public officer is not executable
immediately. The Court is required to specify the time within which the decree has to be
satisfied and where no such time has been specified, three moths from the date of the
decree will be taken to be the time within which is to be satisfied. If the decree is not
satisfied within such time limit the Court shall report the case for the orders of the
Government
*****

PROMISSORY ESTOPPEL.
Estoppel is a rule whereby a party is precluded from denying the existence of some state of facts,
which he had previously asserted and on which the other party has relied or is entitled to rely on.
Courts, on the principle of equity, to avoid injustice, have evolved the doctrine of promissory
estoppels.
 The doctrine of promissory estoppel or equitable estoppel is firmly established in
administrative law. The doctrine represents a principle evolved by equity to avoid injustice.

Page 151 of 222

Application of the doctrine against government is well established particularly where it is
necessary to prevent manifest injustice to any individual.
 Estoppel is a rule whereby a party is precluded from denying the existence of some state of
facts, which he had previously asserted and on which the other party has relied or is entitled to
rely on. Courts, on the principle of equity, to avoid injustice, have evolved the doctrine of
promissory estoppels.

 The doctrine of promissory estoppel against the Government also in exercise of its
Government, public or executive functions, where it is necessary to prevent fraud or manifest
injustice. The doctrine within the aforesaid limitations cannot be defeated on the plea of the
executive necessity or freedom of future executive action.

 The doctrine cannot, however, be pressed into aid to compel the Government or the public
authority “to carry out a representation or
promise.
a)which is contrary of law; or
b)which is outside the authority or power of the Officer of the Government or of the public
authority to make.”

 It is to be noted that Estoppel cannot be pleaded against a minor or against statute. Estoppel
does not lie against the Government on the representation or Statement of facts under Section
115 if it is against the statute or Act of the Legislature but it may be applied in irregular act. The
liability of the Government has been extended by the doctrine of Promissory Estoppel.
 Doctrine of Promissory Estoppel is often applied to make the Government liable for its
promises and stopped from going back from the promise made by it. According to this doctrine
where a person by words or conduct and the other person acts on such promise changes his
positive to his detriment, the person who gives such promise or assurance cannot be allowed to
revert or deviate from the promise.
 In India, the courts are invoking this doctrine; In Union of India v. Anglo (Indo) – Afghan
Agencies Ltd. , The doctrine of Promissory Estoppel was applied against the Government. This

Page 152 of 222

case developed a new judicial trend. The Court upheld the application of Promissory Estoppel to
the executive acts of the State.
 The Court negated the plea of executive necessity. Under the scheme an exporter was entitled
to import raw materials equal to the amount, which was exported. Five lakhs rupees worth goods
were exported by the petitioner but he was given import license for an amount below two lakh
rupees. The Court held that the Government was bound to keep its promise. The scheme was
held to be binding on the Government and the petitioner was entitled to get the benefit of the
scheme.
 The Supreme Court in Century Spinning and Manufacturing Co. Ltd. V. Ulhasnagar
Municipal Council, again extended the doctrine of Promissory Estoppel. In this case this doctrine
was applied against public authorities. The Court has made it clear that this Court will not make
a distinction between a private individual and a public body so far as the doctrine of Promissory
Estoppel is concerned.
 In short, if the Government makes a promise and promisee acts upon it and changes his
position, then the Government will be held bound by the promise and cannot change its position
against the promisee and it is not necessary for the promisee to further show that he has acted to
his detriment. For the application of the doctrine of Promissory Estoppel it is not necessary that
there should be some pre-existing contractual relationship between the parties.

 In Delhi Cloth and General Mills v. Union of India, the Supreme Court has held that for the
application of the principle of Promissory Estoppel change in position by acting on the assurance
to the promise is not required to be proved.

 However, the judicial opinion is that it cannot be invoked against a statutory provision or to
support an ultra vires act or to compel the Government or a public authority to carry out a
promise, which is contrary to law, or ultra vires its powers.

 The doctrine of Promissory Estoppel is not applied in the following conditions:

1. Public Interest,
2. Representation against law,
3. Ultra vires promise or representation,

Page 153 of 222

4. Fraud,
5. Fraud on the Constitution.

Public Interest:
The doctrine of Promissory Estoppel is an equitable doctrine and therefore it must yield place to
the equity if larger public interest requires. It would not be enough to say that the public interest
requires that the Government would suffer if the Government were required to honor it. In order
to resist its liability the Government would disclose to the Court the various event insisting its
claim to
be exempt from liability and it would be for the Court to decide whether those events are such as
to render it equitable and to enforce the liability against the Government.

Representation against law:

The doctrine of Promissory Estoppel cannot be applied so as compel the Government or the
public authority to carry out a promise, which does law prohibit.

Ultra vires promise or representation:

If the promise or representation made by the officer is beyond his power, the State cannot be held
liable for it on the basis of the Principle of Promissory Estoppel.

Fraud:
The doctrine of Promissory Estoppel is not applied in cases where the promise from the
Government is obtained by fraud.

Fraud on the Constitution:

The doctrine of Promissory Estoppel is not applied in cases when the promise or representation
is obtained to play fraud on the Constitution and enforcement would defeat or tend to defeat the
Constitutional goal.

*****

Page 154 of 222

RIGHT TO INFORMATION: What is RTI ?
 Provides a legal framework of Citizens democratic right to access to information under
the control of Public Authorities.
 An Act to provide for setting out the practical regime of right to Information for citizens
to secure.
 To Promote Transparency and accountability in the functioning of every public authority.

Right To Information: Public Authority.

Public Authority means any Authority or Body or Institution established or constituted:
 By or under the Constitution
 By any other law made by parliament
 By any other law made by State Legislature
By notification issued or order made by the appropriate Government

Right To Information: Information.

 Records
 Documents
 Memos
 Opinions & Advices
 Press Releases
 Circulars, Orders & Logbooks
 Contracts
 Reports, Papers, Samples & Models

Right To Information: Applicability.

 The law talks of Access To Information under the control of public authorities. That
means that any citizen in India can approach any “Public Authority” of a body of
Government or “Instrumentality of State” for the same.
 There is a 30 day limit for a reply. In fact the ambit was widened even further and made
applicable for bodies “owned, controlled or substantially financed” by the Government.

Page 155 of 222

  Article 370 of the Constitution confers a special autonomous status to Jammu & Kashmir.
And it is out of the ambit of the RTI too. However it’s not that they don’t have access.
They have to rely on the Jammu and Kashmir Right to Information Act of 2009.

Right To Information: When Enacted ?

 The RTI act 2005 was enacted by permission and authority of his Excellency, President
of India. This act was enacted by the parliament on 15.06.2005 and notified in the
Gazette of India dated 21.06.2005 and came fully into force on 12 October 2005. Every
day, over 4800 RTI applications are filed. In the first ten years of the commencement of
the act over 1,75,00,000 applications have been filed.

Right To Information: Need For RTI Act.

It helps to promote openness, transparency and accountability in the working of every public
authority.
 Reduces Corruption.
 Prevent Administrative Arbitrariness.
 Bride the gap between providers and recipient of public services.
 Make citizens part of decision making.
 Make administrative responsive
 Strengthen the foundations of democracy.

Right To Information: Request For Obtaining Information.

A person, who desires to obtain any information under this Act, shall make a request in writing
or through electronic means in English or Hindi or in the official language of the area in which
the application is being made, accompanying such fee as may be prescribed to— (a) The Central
Public Information Officer or State Public Information Officer, as the case may be, of the
concerned public authority.

Page 156 of 222

Right To Information: Request For Obtaining Information.
The Central Assistant Public Information Officer or State Assistant Public Information Officer,
as the case may be, specifying the particulars of the information sought by him or her provided
that where such request cannot be made in writing, the Central Public Information Officer or
State Public Information Officer, as the case may be, shall render all reasonable assistance to the
person making the request orally to reduce the same in writing.

Right To Information: Exemptions From Disclosure.

 National Security
 Contempt of Court
 Parliamentary Privilege
 Trade Secrecy
 Foreign Government
 Safety of Informer in Law Enforcement
 Investigations
 Cabinet Papers
 Privacy

Right To Information: Very First RTI Application.

• On October 12, 2005, a person called Shahid Raza Burney submitted India’s first ever
Right To Information application to a police station in Pune and thus we entered the RTI
age.

Right To Information: Success

 Overall it has been hugely successful and has helped citizens get crucial information. One
of the biggest successes has been getting information in the Adarsh scam. It also helped
expose corruption in the Public Distribution System in Assam.
 While there are national and State level scams, it has helped unearth hundreds of
wrongdoings at the local level Such as- 2G Scam (Rs. 1,76,645 crores), Commonwealth
Games - Diversion of Dalit Funds (Rs. 5,27,723.72 crores worth of funds), Indian Red
Cross Society Scam etc.

Page 157 of 222

Right To Information: RTI Deaths.
 While RTI activism (the policy or action of using vigorous campaigning to bring about
political or social change) became an industry, attacks on RTI activists followed. The
number of such attacks now number hundreds and dozens have been killed. •Lalit Mehta
was exposing a NREGA scam and was killed in 2008. •Satish Shetty was exposing land
scams in Maharashtra and was stabbed to death in 2010. •In the same year Amit Jethwa
was shot in the Ahmedabad High Court complex. He was exposing a mining scam. There
are many such stories which talk of the bravery of RTI activists.

Right To Information: Fee And Charges.

 Application Fees- Rs, 10/-
 In the Form of Electronic Media, Floppy/CD etc.- Additional charges applicable.
 Inspection charges of relevant files, documents and records- >> No fee for first hour of
inspection. >> Rs. 5/- for every subsequent hour or fraction thereof.

Right To Information: Government Department & Portal.

 Right to Information Act 2005 mandates timely response to citizen requests for
government information. It is an initiative taken by Department of Personnel and
Training, Ministry of Personnel, Public Grievances and Pensions to provide a–
RTI Portal Gateway to the citizens for quick search of information on the details of first
Appellate Authorities, PIOs etc. amongst others, besides access to RTI related
information / disclosures published on the web by various Public Authorities under the
government of India as well as the State Governments.

Right To Information: Website & Contact Details.

 http://rti.gov.in
 Contact : Director(IR) Room No.279A, North Block, New Delhi - 110 001;
Email: osdrti-dopt@nic.in
 Under Secretary(IR) Room No.281, North Block, New Delhi-110 001;
Email: usir-dopt@nic.in
*****

Page 158 of 222

MALICIOUS PETITION.
 If the petition is filed under Article 32 in the Supreme Court is found to be malicious or
ill motivated, it may be dismissed by the Supreme Court.
*****

MISREPRESENTATION OR SUPPRESSION OF MATERIAL FACTS

 When the petitioner is found to have made clear misrepresentation as to material facts or
suppression of material facts, the Supreme Court may dismiss the petition at any stage.
*****
INFRUCTUOUS PETITION
 Infructuous means fruitless. If the petition under Article 32 is found to be infructuous or
fruitless or unfruitful, it may be dismissed by the Supreme Court on that ground.
 For example, if a petition under Article 32 is filed in the Supreme Court for the writ of
habeas Corpus and the detenu has been released during pendency of the proceedings, the
petition may be dismissed on the ground of its having become infructuous. [Mohit v.
D.M., AIR 1974 SC 2237]
 Existence of adequate Alternate Remedy
 Existence of an alternative remedy does not bar the Supreme Court to entertain a petition
under Article 32.
 However, the Supreme Court has held that in the case of adequate alternate remedy, it
may exercise its discretion to refuse to entertain a petition filed under Article 32.

*****
EXISTENCE OF ADEQUATE ALTERNATE REMEDY: LEADING CASE
BALCO Employees Union v. Union of India [AIR 2002 SC 350]
 The Court has refused to entertain the writ petition filed under Article 32 on the ground
of alternative remedy available to petitioners.
 The Court held that the petitioners have adequate remedy open to it under the Acts under
which notices were issued and in appropriate case, can approach the High Court under
Article 226 of the Constitution.
*****

Page 159 of 222

DOCTRINE OF PRECEDENT / STARE DECISIS: MEANING.
 Case law, so called, or the decisions of the courts serve as a very important source of law,
especially in countries following the common law system of adjudication. In countries
that follow the common law system, the judgments of the higher courts are treated as
binding on all subordinate courts. This concept of treating judgments of superior courts as
binding is called the doctrine of precedent or stare decisis.

Doctrine Of Precedent / Stare Decisis: Application In India.

 The doctrine of precedent is expressly incorporated in India by Article 141 of the
Constitution of India, 1950. Article 141 provides that the decisions of the Supreme Court
are binding on all courts within the territory of India. Although there is no express
provision, but by convention the decisions of a High Court are binding on all lower courts
within the territorial jurisdiction of that High Court. Similarly, a decision of a higher
Bench , is binding on the lower Bench.
*****

RATIO / RATIONES DECIDENDI: MEANING.

 Ratio decidendi is the Latin term meaning “the reason for the decision,” and refers to
statements of the critical facts and law of the case. These are vital to the court’s decision
itself. The binding part of a judicial decision is the ratio decidendi.

Ratio / Rationes Decidendi: Determining The Ratio in a Case.

 The justification for this approach is that debate or arguments and the application of the
judicial mind are over resolving the issues before the court and not merely the facts.
 Although there is no universal method of determining the ratio of a case, the
indeterminate nature of the concept holds wide scope for judicial choice. The exercise of
judicial choice, however paradoxically (contradiction), is restricted by justice and fairness
in the exercise.
*****

Page 160 of 222

OBITER DICTA: MEANING
 Obiter dicta are additional observations, remarks, and opinions on other issues made by
the judge. These often explain the court’s rationale in coming to its decision and, while
they may offer guidance in similar matters in the future, they are not binding. In reading a
court’s decision, obiter dicta may be recognized by such words as “introduced by way of
analogy,” or “by way of illustration.” Obiter dicta may be as short as a brief aside or a
hypothetical example, or as long as a thorough discussion of relevant law. In either case,
the additional information is given to provide context for the judicial opinion.

*****
JUDICIAL CONTROL OF ADMINISTRATIVE DISCRETION.
ADMINISTRATIVE DISCRETION.
Meaning.
 Rule of law demands that Govt. should be of laws and not of men. However, in the Govt.
vast administrative machinery, officers, while discharging their functions should
invariably have "discretions" to exercise their powers effectively. These administrative
functions are general and varied. Administrative discretion means the "determination"
reached by the Authority, on facts (ascertained by it), on consideration of available
evidence, and on the basis of policy, efficiency and expediency of the Department.

Administrative Discretion and Judicial Review.

 The general rule is that the courts will not interfere with the exercise of discretion, by
administrative authorities (Ranjit Thakur v.Union). However, they do interfere in public
interest, when there is abuse or lack of jurisdiction. According to the Courts, the
"discretion" should be fair honest, based on reason & justice and should not be arbitrary,
or unjust fanciful or exercised with mala fides.
 "Judicial Review" is also the basic structure of the constitution (Minerva Mills v. Union
of India 1980).
 In the recent landmark cases in England:
Anismatic Ltd v. Foreign Compensation Commission; and Tameside case, the House
of Lords has widened the scope of judicial review of administrative discretion.

Page 161 of 222

Administrative Discretion and Judicial Review: Scope
 The Scope of judicial review of administrative discretion is very extensive; it not only
deals with abuse or excess of discretion, but extends to all areas of failure to exercise
discretion e.g. non-application of mind, deciding under dictation, etc. Broadly, the review
may be dealt with under the following heads:
(1) Abuse of or in excess of discretion
(2) Malice in fact or factual malafides
(3) Fraud on state or colorable exercise of power
Non exercise of discretion.
 The administrative authority may fail to exercise discretion by non application of mind,
or, by deciding on the dictates of others, or by sub delegating this power to another. In all
these circumstances, the decision is Ultra vires.
 The authority should apply his mind to the facts & circumstances of the case on hand. If
he acts mechanically, without a sense of responsibility, there is failure of exercise of
discretion.

Jagannath v. State of Orissa

 There was non-application of mind of Home minister when the detention order was based
on two grounds, the first one or the second. His order was quashed.

Barium Chemicals Ltd. v. Company Law Board

 The Central Government could issue an order of Investigation, under the Companies Act
on the ground of fraud. The Government issued order but no circumstances had been
stated, on which opinion was formed. Order was quashed.
 If the authority vested with power under a statute simply acts under the dictators, of a
superior authority, he has not taken his own decision, as required by the statute, and
hence his decision is bad.

Abuse of or in excess of discretion.

It is essential that the authority should exercise its powers within the limits of the Statutes or
Rules, otherwise it would be ultra vires on the ground of abuse or excess of jurisdiction.

Page 162 of 222

Dr. Markose, an authority on Administrative Law, has appointed reference to say, there is Abuse
of power when the mode of exercising valid power is unreasonable or improper.
 He quotes an example: “If a new and sharp axe presented by Father Washington, i.e,
Congress, to young George (Statutory authority), to cut timber from father's compound,
is, tried on the father favorite apple tree, there is a clear abuse of power! Another classical
example is: Red haired teacher dismissed, because she has red hair! This is unreasonable,
based on irrelevant considerations, bad faith, colorable exercise of power -" all run into
one another”.
 In A.G. v. Fulham Corporation, the Statute had empowered the corporation to run bath
houses and wash houses for the benefit of the public. The Corporation opened a public
laundry. This was held excess of jurisdiction and hence ultra vires.

Administrative Discretion: Mala Fides.

 The authority should act with bona fides i.e., in good faith properly and lawfully. Mala
fide means malice ill-will, corrupt motive, vengeance or fraudulent intention. This may
take many forms and may be express or implied. There may be malice in fact or malice in
law. The exercise of power with malafides vitiates the proceedings and hence would be
void.
Malice in fact or factual malafides:
 This means the action taken is based on some personal vengeance or motive or ill will: or
with dishonest intention.
Commissioner of Police v. Govardhandas, the Commissioner had granted a licence to
construct a theatre. But, under the directions of the State Government, he cancelled it. The
Supreme Court quashed the cancellation order.

Administrative Discretion: Leading Cases.

Shivraj Patil v. Mahesh Madhav: Here, the Maharastra Chief Minister's daughter Ms.
Chandrakala Patil's M.D. marks card had been tampered to her advantage, at the behest of the
C.M. This was evident from circumstances. Commenting on the deplorable decline of moral
values at high levels, the Supreme Court quashed the result of M.D. exam of the daughter of
C.M.

Page 163 of 222

In Express Newspaper v. Union of India, the Union Government’s notice issued to Sri.Ram
Goenka, Chairman of Express Newspaper entry by Government by terminating lease of land
given to him was held to be mala fides and politically motivated and hence void.

State of Punjab v. Gurdial Singh, the Chief Minister had engineered with vengeance and ill
will to acquire lands: Held mala fides.
State of Haryana v. Bhajanlal, it was held that prosecution against the C.M., of the State under
the provision of Prevention of Corruption Act was without any malice and hence proceedings
were not quashed.

Administrative Discretion: Malice In Law.

Zanida Bai v. State of M.P.
According to the Supreme Court, if power is exercised without just or reasonable cause or alien
or different from the purpose of the statute, it would be malice in law and void.

Fraud on state or colorable exercise of power.

 When power is exercised under "Color" or guise of legality but, in reality the purpose of
the statute is different, it amounts to "colorable" exercise of power.
1. Somavanti v. State of Punjab
2. Vora v. State of Maharashtra.

Bangalore Medical Trust v. Muddappa

Here, land preserved for Public Park was allotted at the instance of CM to a private nursing
home. Supreme Court held this was "colourable" and quashed the order of allotment.

Administrative Discretion: Unreasonableness.

 This includes many things. Taking into consideration irrelevant facts, omitting relevant
facts, exercising power for a collateral purpose etc. e.g. "fixing wages as it may think fit"
in the statute does not mean the authority may fix Rs 3 per day. It should mean
"reasonable think fit". Hence, if the decision of the authority is "perverse", "outrageous"

Page 164 of 222

 or so absurd that the person "must have taken leave of his senses" (Lord Scarman in
Notinghamshire case), it is void and Ultra vires.

The House of Lords in the recent Tameside case ruled that if the statute says “if the minister
is satisfied” it means “if reasonably satisfied”; that means that though subjective satisfaction
of the authority is to be based, it should not be on some personal opinion but should be on
objective grounds from which reasonableness could be inferred." This is a landmark decision
on judicial control
*****
FUNDAMENTAL RIGHTS AND DISCRETIONARY POWER.
 Fundamental rights control the executive and legislative powers of the government. And
it has also the control over the administrative discretion. No Law may provide
administrative finality, because court has jurisdiction to check the administrative
discretion. If discretion is against fundamental rights it must be void and declared
unconstitutional by the court. Court will focus on some protective principles when it may
be necessary during exercise discretionary power in respect of fundamental rights.
 Discretion can be controlled in a limited jurisdiction with the effect of Fundamental
rights. Court has also time to time discuss on the legality of such laws, which provide
discretionary power. To fulfill this object Court shall view the summary and making
procedure of such law. If Court finds these laws against constitution, it will be declared
unconstitutional. Administration cannot violate article 14 & 19 when they will exercise
discretionary powers.

LIABILITY OF THE STATE.

Tortious Liability Of The State: Origin & Development.
 The English maxim "The King can do no wrong" had its sway in England. But, the
Crown was made liable since the Crown Proceedings Act, 1947, for tortious and
contractual obligations. In India, during the time of the East India Company, the
Company was held liable for the tortious acts of its servants.
(P&O Steam Navigation Co v. Secretary of State).

Page 165 of 222

Tortious Liability Of The State: India.
 Art 294(b) provides that the Union or State Government is liable for any act arising out of
any contract or otherwise. Here, otherwise includes tortious liability. How far Union or
State is liable is made clear in Art.300(l). According to this, extent of liability is the same
as that of the Dominion of India and the Provinces, before the commencement of the
Constitution. Hence, the State is liable for tortious acts of its servants. However, if the
state function is Sovereign, it is not liable. Hence liable for non-Sovereign functions.

Tortious Liability Of The State: Leading Cases.

Peninsular and Oriental Steam Navigation Co. V. The Secretary of State (1861)
 A Servant of ‘P’, was traveling in a coach through the Government's dockyard(‘D’). Due
to the negligence of D's servants, a heavy piece of iron carried by them fell and the horse
of the coach was injured. ‘P’ used ‘D’. It was held that the maintenance of the dockyard
was a non sovereign function, and hence, the secretary of State was liable.

Rup Ram v. State of Punjab

 ‘P’, a motor cyclist was seriously injured when the driver of a P.W.D., truck dashed
against him. It was held that the Government was liable. The Government's argument that
at the time of the accident, the driver was carrying materials for the construction of a
bridge and that this was a sovereign function and hence, the State was not liable was
rejected by the Court.

State of Rajasthan v. Mrs.Vidyavati

 Vidyavati's husband died of an accident caused by the Government driver who was
driving negligently the Government jeep from the garage to the office. Vidyavati sued the
Government, for compensation. Held, the State is liable.

Kasturilal. v. State of U.P.

 A was arrested on suspicion of having stolen gold. Gold so seized from him was
deposited in police Malkhana. A was acquitted. In the meanwhile, the Head Constable

Page 166 of 222

 had stolen the gold andescaped to Pakistan. A sued the Govt. for the return of the gold or
for compensation. Gajendragadkar J held, that the State was not liable.

Reasons:
i) The Police Officers were within their statutory powers.
ii) The Authority of the police in keeping the property (gold) was a 'Sovereign function'.
Held, Government not liable for the act done in the exercise of sovereign function.
Comment:
 This decision is not satisfactory as the concept of Sovereign function is
extended beyond limits. The Supreme Court itself has suggested that the
remedy is to make a suitable law to give-protection to individuals in such
cases. No such law has been made so far.

Basavayya v. State of Mysore (1977)

 In a case of theft, property worth Rs.10,000/-was recovered and kept in police custody.
This was stolen from custody. The Supreme Court held that payment should be made to
the owner, who had claimed the property.

State of Gujarat v. Memon Mohamed

 Customs Authorities seized certain items, on the ground that the goods were smuggled.
Against the seizure order, the party had made an appeal. When this appeal was pending
the goods were disposed of under the order of a magistrate. But, later the appeal was
allowed, and seizure order was set aside, and, the authorities were directed to return the
goods. The Supreme Court has held that the Government was a "bailee", and hence was
bound to return the goods.

Sovereign and non-Sovereign functions:

 The distinction between these two drawn by Courts, in Kasturial's case has become thin,
and, in many cases after that decision the Supreme Court has held that the State was
liable. Hence, the ratio of Kasturilal's case is very much limited and the State is liable for
tortious obligations.

Page 167 of 222

CONTRACTUAL LIABILITY OF THE STATE: ORIGIN & DEVELOPMENT
 In England the concept "The King can do no wrong" had its sway: All the Courts in
England were under the Crown and hence he could not be sued. After the passing of the
Crown Proceedings Act, 1947 by the Parliament, the Ministers and Government would be
liable for contractual (and tortuous) obligations.

 In India the East India Company was held liable in Mudalay v. Morton. The Government
of India Act, 1935 had expressly made Government liable for contractual violations
under Section l75(3). This is reproduced in Art 299(1) of the Constitution.

*****
CONTRACTUAL LIABILITY OF THE STATE: GOVERNMENT LIABILITY IN
CONTRACTS
Power or Authority to contract:
 Art.298: The Executive power of the Union or of State extends to carrying on any trade
or business and to the acquisition, holding and disposing of property and also to the
making of contracts for any purpose. However, the Government will be liable only if the
contract is within the scope of Art 299(1).
 The Objective of Art. 299(l) is to safeguard the Government and not to saddle the
Government with obligations, which are made by unauthorised officers or in excess of
authority. Saving public funds is essential. Hence, if the contract is invalid, the
Government cannot later ratify and make it valid. (Malamchand v. State of M.P.)The
reason is that when there was no contract at all, the question of ratification does not arise.

Doctrine of Unjust enrichment:

 From the interpretation of Art 299(1) by the Courts, it is evident that the contract will be
declared invalid by the Courts, if any one of the three essentials is not complied with but
this may prove harsh and unjust in genuine cases. Hence, the Courts have applied the
doctrine of "unjust enrichment" in such circumstances, in the interest of justice.

Page 168 of 222

  This is in Section.70 of the Indian Contract Act, 1872 (quasi contractual liability).
Hence, if the contract comes within the scope of Section.70, the affected party is entitled
to claim compensation from the Government. The Government cannot derive a benefit or
retain money of the other party and claim immunity by saying that the contract is invalid
and hence it is not liable. In such circumstances the Courts will award, compensation to
the affected party to prevent unjust enrichment of the state at the cost of the aggrieved
party.

The Conditions to be fulfilled for unjust enrichment are:

(i) The person should lawfully do or deliver something to the other;
(ii) He should not have done it gratuitously (i.e., not done freely);
(iii) The Other party should have enjoyed or derived benefit thereof.

Contractual Liability Of The State: Leading Cases.

State of W.B. v. B.K. Mondal
In this case, a Government officer ordered for the Construction of a building for the Government
office as per the rules of the Department. The Contractor completed the building. Government
officer took possession and began using it. But, no payment was made. The Government argued
that as the contract was not according to Art. 299(1), it was “no contract”". The Supreme Court
held that there was no contract.
 However, it held that the Government was liable to pay compensation, under Section.70
of the Indian Contract Act i.e., for unjust enrichment. Thus, if the contracts fails under
Art.299(l) the Courts with a view to preventing injustice have provided the remedy under
Section.70 of the Indian Contract Act, 1872.

Art 299(1) prescribes certain essential requirements: -

 The Contract made in exercise of executive power, must be expressed to be made by the
President or the Governor as the case may be.
 The Contract is to be executed by persons and in such manner as the President or
Governor directs or authorises.
 The Contract is to be executed on behalf of the President or the Governor.

Page 169 of 222

The Contract by the President or Governor:-
 Though the contract should be in writing and to be executed as per Art 299(1) the courts
have held that writing is not essential in all circumstances. In Chatturbhuj v. Parashram,
the Supreme Court held that a contract could be oral, or may be by correspondence; in an
emergency, a contract may be made by Government, without following the "ponderous
legal document couched in a particular form". A Contract made by correspondence was
upheld in Union of India v. Ralia Ram (Tender case).

Contract by authorized person:

 The contact should be signed by the officer of the Government, who is duly authorised by
the President or Governor. If not so authorised, the contract is not enforceable. In Union
of India v. N.K.(P) Ltd, the Director had been authorised to enter into contract, but the
secretary had signed on behalf, of the President of India. Held, there was no authority and
hence invalid.

Name of the President or the Governor:-

 It is essential that the Government contract should be made by the officer in the name of
the President or Governor. It is generally expressed in agreements as “on behalf of” - If
this is not done then the contract is invalid.

Bhikaji Jaipuria v. Union of India

A contract had been made by a firm with Railways for supply of food grains. When the same
was supplied, the Railways refused to take delivery. The plea of the Government that the
Railway Divisional Superintendent had no authority to sign as per rules, was rejected by the
Supreme Court. Power may be granted, otherwise than by rules, it held.

Karamshi v. State of Bombay

Here, Government agreed with Karamshi for supply of water to his "Cane farm". There were two
letters but no contract as required by Art.299(l).Held: contract invalid.

Page 170 of 222

Director General, Factories v. State of Rajasthan
The I.G. had signed but it was not "on behalf of Governor". Held Contract invalid.

*****

Page 171 of 222

 UNIT - 4
OMBUDSMAN, LOKPAL, LOKAYUKTA AND
CENTRAL VIGILANCE COMMISSION
Ombudsman:
i) Origin:
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. 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 necessity of ombudsman is traceable to the deficiencies in parliamentary system of

administration like wrong decisions, mal-administration, corruption of public officials etc. The
office of Ombudsman was established in Finland, Denmark, Norway, U.K. and other States. In
U.K. the equivalent office is that of the ‘Parliamentary Commissioner’ established in 1967. The
experiment was a success, in these countries.

ii) Status and functions:

He is the people's Watch-dog. His jurisdiction extends to all actions of the public officials. The
present position is that Ombudsman is appointed for 4 years by a Special Committee consisting
of Parliamentarians. The main qualifications are his outstanding integrity and proved abilities in
his job. He receives complaints, makes the investigation. He has powers to reprimand the
blameworthy officials and criticise their conduct in his Report to the Parliament. Frivolous and
baseless complaints are rejected by him, with reasons. He has jurisdiction over judges also.

iii) Lokpal:
One of the recommendations of the Administrative Reforms Committee there is absolute need
for the establishment of such an office of Ombudsman. The equivalent of Ombudsman is Lokpal,
In order to meet the grievances of citizens and to provide an easy, quick and in-expensive

Page 172 of 222

machinery to meet such grievances, the office of Lokpal is to be established by an Act of the
Parliament.

iv)Lokayukta:
Lokpal is for the Centre. The Lokayukta is for the States in India. Each State may make law to
establish the office of the Lokayukta. Maharashtra established such an office in 1977. Karnataka
has recently established an office.

v) Nature:
1. He should be demonstrably independent and impartial.
2. His appointment should be apolitical. His status should empower him to investigate and to
proceed directly.
3. His proceedings should not be subject to judicial scrutiny.
4. He should have an independent office with powers not controlled by the executive.

vi) Appointment:
He is appointed by the President of India on the advice of the Prime Minister, in consultation
with the Chief Justice of India and the Leader of Opposition in Lok Sabha. On appointment, he
becomes non-partisan. His status and salary are the same as that of the Chief Justice of India.

vii) Removal:
The Procedure is the same as in the case of the removal of the Judges of the Supreme Court.
[Art.124(4)]. This provides much independence, freedom to act without aspiring for any favours.

viii) Functions:
He has the investigating powers to investigate into any action of Minister on receipt of a written
complaint or suomoto relating to -
1. Mal-administration.
2. Undue exercise of power.
3. Corruption.

Page 173 of 222

Where corruption is established against the Minister, Lokpal may bring to the notice of the Prime
Minister or the Chief Minister and proceed. He submits annual reports.

ix) Immunity:
The Lokpal is immune from any suit, prosecution or other proceedings in respect of official acts
done in good faith, under the Act.
*****
OMBUDSMAN IN NEW ZEALAND.
 The Office of the Ombudsman was established in 1962 under the Parliamentary
Commissioner (Ombudsman) Act 1962. The term Ombudsman is Swedish and basically
means "grievance person”.
 The primary role of the Ombudsman in New Zealand is to investigate complaints against
government agencies. In 1983 the responsibilities were extended to include investigation
of agencies that fail to provide information requested in accordance with the Official
Information Act. The Ombudsman also has responsibility to protect whistleblowers and
investigate the administration of prisons and other places of detention.
 The Ombudsmen Act came into force in 1975. This allowed for the appointment of
additional Ombudsmen in addition to the chief Ombudsman and extended the role to
include local government agencies.
 In 1983, the Official Information Act required government agencies to respond to
requests for information (known as OIA requests) and the Ombudsman was given the
task of investigating complaints against Ministers of the Crown and central government
agencies when requested information was not supplied in a timely manner. In 1988 the
Ombudsman's powers were extended to decisions made by local government agencies as
well.
 In 2001, the Protected Disclosures Act (commonly known as the “whistle-blower”
legislation) was passed. This makes the Ombudsman responsible for "providing advice
and guidance to any employee who has made, or is considering making, a disclosure
about serious wrongdoing in their workplace (either public or private sector)”. In 2005 all
crown entities were brought within the Ombudsman's jurisdiction under the Ombudsmen
Act and Official Information Act.

Page 174 of 222

OMBUDSMAN IN ENGLAND.
In the England, a post of Ombudsman is attached to the Westminster Parliament (this term comes
from the Palace of Westminster, the seat of the British Parliament) jurisdiction extending to all
departments of the central government and other government institutions. The office of the
Parliamentary Commissioner for Administration was created in 1967, covering the activities of
central government departments.
A separate (National) Health Service ombudsman was subsequently created, but this office
has to date always been held by the same person and the two offices are usually referred to as the
Parliamentary and Health Service Ombudsman.
 This Ombudsman will usually investigate complaints referred to him or her by a Member
of Parliament where there has been evidence of “maladministration” having occurred
which has resulted in an "unremedied injustice".
 Complaints to the Ombudsman are subject to a "time bar" – this means that the
Ombudsman may determine a complaint to be out of jurisdiction if too much time has
passed between the event or course of events being complained about and the complaint
being received by the Ombudsman.

*****
OMBUDSMAN IN INDIA.
 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.
 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.

LOK PAL.
 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.

Page 175 of 222

  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.
 Sec. 63 of The Lokpal and Lokayuktas Act, 2013 states that all States in the country are
mandated to set up a Lok Ayukta within a year of the commencement of the Act. The Act
came into effect in January 2014.
 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.

LOK PAL.
 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.
 It comprises of a chair person and 8 members where 4 members (50%) are judicial
members who is or has been a Judge of the Supreme Court or a Chief Justice of a High

Page 176 of 222

 Court while other 4 members (50%) are non-judicial members are people of impeccable
integrity and outstanding ability having special knowledge & expertise of not less than
twenty-five years in the matters relating to anti-corruption policy, public administration,
vigilance, finance including insurance & banking, law & management.

LOK PAL COMPOSTION:

 Pinaki Chandra Ghose, Chairperson
Judicial Members:
Dilip Babasaheb Bhosale, Pradip Kumar Mohanty,
Abhilasha Kumari, Ajay Kumar Tripathi
Non-Judicial Members:
Dinesh Kumar Jain, Archana Ramasundaram, Mahender Singh,
Indrajeet Prasad Gautam,
vacant, Secretary; vacant, Director of Inquiry;
vacant, Director of Prosecution

LOK PAL: WHO CANNOT BECOME CHAIRPERSON ??

The following persons cannot become chairperson of Lokpal:
 MPs and MLAs Persons convicted of any offense involving moral turpitude ;
 Less than 45 years of age
 Members of Panchayats or Municipality ;
 A person who was removed or dismissed from the public service;
 A person who holds any office of trust / profit; if so, he would need to resign from
Lokpal;
 A person who is affiliated to a political party ;
 Carries on some business / profession; if so, he would need to quit some business.

LOK PAL: TERM OF OFFICE

 The term of office for Lokpal Chairman and Members is 5 years or till attaining age of 70
years.

Page 177 of 222

  The salary, allowances and other conditions of service of chairperson are equivalent to
Chief Justice of India and members is equivalent to Judge of Supreme Court.
 If the person is already getting the pension (for being a former judge), the equivalent
pension amount will be deducted from the salary
 The source of salary for Lokpal and Members is Consolidated Fund of India.
 If the chairperson dies in office or has resigned from the post, President can authorise the
senior-most Member to act as the Chairperson until new chairperson is appointed. If
chairperson is not available for certain functions due to leave, his job will be done by
senior most member.

LOK PAL: POST RETIREMENT JOBS

Once a Lokpal chairperson / member has ceased to be so, he cannot take
up the following jobs:
 He cannot be reappointed as chairperson / member of Lokpal Cannot take any diplomatic
assignment Cannot be appointed as administrator to a Union Territory
 Any constitutional / statutory post in which appointment is made by President
 Any other office under the government of India
 He cannot contest any of the elections such as President / Vice President / MLA / MLC/
Local bodies for 5 years after relinquishing the post

LOK PAL: OFFICIALS

There are three important officers of Lokpal,
they are appointed by Lokpal Chairperson:
 Secretary to Lokpal
 Director of Inquiry
 Director of Prosecution
There is one secretary appointed by the chairperson from a panel of names sent by central
government. The Director of Inquiry and Director of Prosecution cannot be below the rank of
Additional Secretary to the Government of India. These officials will also be appointed by
chairperson.

Page 178 of 222

LOK PAL JURISDICTION
 The following come under the jurisdiction of Lokpal: Prime Minister of India, under
certain conditions:
 All ministers of the Union
 Members of Parliament except for matters related to article 105 of constitution. (that is
anything said or a vote given by him in Parliament) Group ‘
 Group ‘A’ / Group ‘B’ officers / Group ‘C’ /Group ‘D’ officials
 Any person who is or has been in-charge (director / manager/ secretary) of anybody /
society set up by central act or any other body financed / controlled by central
government. Any other person involved in act of abetting, bribe giving or bribe taking.

LOK PAL BENCHES

 A Lokpal Bench will be constituted by the Chairperson with two or more members.
Every Lokpal Bench has to have at least half members as judicial members. If bench
consists of Chairperson, it will be headed by him. If the bench does not consist of
chairperson, it will be headed by a judicial member only. The Lokpal benches will sit in
New Delhi or any other places as decided by Lokpal. The benches can be constituted and
reconstituted by Chairperson time to time.

LOK PAL JURISDICTION

 All entities receiving donations from foreign source in the context of the Foreign
Contribution Regulation Act (FCRA) in excess of Rs. 10 lakhs per year are brought
under the jurisdiction of Lokpal.
 Lokpal will have power of superintendence and direction over any investigation agency
including CBI for cases referred to them by Lokpal.

LOK PAL: ENQUIRY PROCEDURE

 The Lokpal’s inquiry wing is required to inquire into complaints within 60 days of their
reference. On considering an inquiry report the Lokpal shall-
(i) order an investigation;
(ii) initiate departmental proceedings; or

Page 179 of 222

(iii) close the case and proceed against the complainant for making a false and frivolous
complaint.

LOK PAL: INVESTIGATION & PROSECUTION

 The investigation shall be completed within 6 months. The Lokpal may initiate
prosecution through its Prosecution Wing before the Special Court set up to adjudicate
cases.
 The trial shall be completed within a maximum of two years.

*****
LOK AYUKTA.
 Lokayukta can be understood as an independent anti-corruption statutory body
established in states, to fight against corruption.
 On the receipt of any complaint regarding corruption or bribery of the public official
working at the state level, members of legislative assembly or ministers etc.
 Lokayukta comes into the picture, to deal with it and investigate the case thoroughly.
 Even before the Lokpal and Lokayukta Act, 2013 was enacted in the country, many
states have already set up Lokayukta for combating corruption, of which Maharashtra
was the pioneer state.
 The Composition of Lokayukta is different in different states of the country.
 Lokayukta is the head of the body who can be the Judge of the Supreme Court or Chief
Justice/Judge of the High Court.
 Moreover, there is an Uplokayukta, who can be a Judge of High court or any central or
state government employee whose scale of pay is greater than or equal to Additional
Secretary to the Government of India.
 The Governor of the concerned state appoints both Lokayukta and Uplokayukta for a
period of six years.

TAMILNADU LOK AYUKTA APPOINTED.

 The Governor has appointed retired High Court judge P. Devadass as the chairperson of
the five-member Lokayukta that was notified on Monday, 02.04.2019.

Page 180 of 222

  The notification was issued following the recommendations made by a search committee.
 Four members: Former district judges K. Jayabalan and R. Krishnamoorthy are the two
judicial members and retired IAS officer M. Rajaram and advocate K. Arumugam are the
two non-judicial members of the anti-corruption body, according to the notification
issued by the Personnel and Administrative Reforms Department.
 “The chairperson and the members shall hold office for five years from the day they
enter office or the date on which they attain the age of 70 years, whichever is earlier,”
stated the notification.
 It was in December , 2018, the State government constituted a search committee for
submitting names for the posts of the chairperson and members of the Lokayukta.
Search committee
 Retired High Court judge K. Venkataraman was the chairperson of the panel. Former
Advocate General R. Krishnamoorthy and retired IPS officer A. Pari were the other
members on the search committee. In July last year, the Tamil Nadu government passed
the legislation in the Assembly a day before the deadline set by the Supreme Court in this
regard.
 In November that year, the State government notified the Tamil Nadu Lokayukta Rules,
2018.
 Complaints against a public functionary can be submitted to the Registrar or the
designated officer in person or by post, but anonymous complaints would not be
entertained by the panel.
 When the State government invited Leader of the Opposition M.K. Stalin to participate in
the meeting called over constituting the search committee in December last year, he
boycotted it, contending that his objections expressed before the passing of the legislation
were ignored and the Bill was passed in a hurried manner.

Huge furore ( a public outburst, esp of protest; uproar):

 It may be recalled that Mr. Devadass’ judgment in June 2015 during his tenure in the
Madras High Court suggesting mediation between a rape convict and the survivor,
resulted in a huge furore from across the country.

Page 181 of 222

  The judge had then recalled his judgment and eventually cancelled the bail granted to the
rape convict.
*****
CENTRAL VIGILANCE COMMISSION.
HISTORY.
 Central Vigilance Commission is an apex Indian governmental body created in 1964 to
address governmental corruption.
 It has the status of an autonomous body, free of control from any executive authority,
charged with monitoring all vigilance activity under the Central Government of India,
and advising various authorities in central Government organizations in planning,
executing, reviewing and reforming their vigilance work.
 It was set up by the Government of India in February, 1964 on the recommendations of
the Committee on Prevention of Corruption, headed by Shri K. Santhanam, to advise and
guide Central Government agencies in the field of vigilance.

ANNUAL REPORT.
 It not only gives the details of the work done by it but also brings out the system failure
which leads to corruption in various Departments / Organisations, system improvements,
various preventive measures and cases in which the Commission's advises were ignored
etc.

ROLE OF CENTRAL VIGILANCE COMMISSION.

 It is not an investigating agency, and works through either the CBI or through the
Departmental Chief Vigilance Officers.
 The only investigation carried out by it is that of examining Civil Works of the
Government which is done through the Chief Technical Officer.
 Corruption investigations against government officials can proceed only after the
government permits them. The Central Vigilance Commission publishes a list of cases
where permissions are pending, some of which may be more than a year old.
 The Ordinance of 1998 conferred statutory status to the Central Vigilance Commission
and the powers to exercise superintendence over functioning of the Delhi Special Police

Page 182 of 222

 Establishment, and also to review the progress of the investigations pertaining to alleged
offences under the Prevention of Corruption Act, 1988 conducted by them.
 The Central Vigilance Commission publishes a list of cases where permissions are
pending, some of which may be more than a year old.
 The Ordinance of 1998 conferred statutory status to the Central Vigilance Commission
and the powers to exercise superintendence over functioning of the Delhi Special Police
Establishment, and also to review the progress of the investigations pertaining to alleged
offences under the Prevention of Corruption Act, 1988 conducted by them.
 In 1998 the Government introduced the Central Vigilance Commission Bill in the Lok
Sabha in order to replace the Ordinance, though it was not successful. The Bill was re-
introduced in 1999 and remained with the Parliament till September 2003, when it
became an Act after being duly passed in both the Houses of Parliament. The Central
Vigilance Commission has also been publishing a list of corrupt government officials
against which it has recommended punitive action

APPOINTMENT OF CENTRAL VIGILANCE COMMISSION

 The Central Vigilance Commissioner and the Vigilance Commissioners are appointed by
the President after obtaining the recommendation of a Committee consisting of:
 The Prime Minister — Chairperson
 The Home Minister — Member.
 The Leader of the Opposition in the Lok Sabha — Member.

REMOVAL OF CENTRAL VIGILANCE COMMISSIONER.

 The Central Vigilance Commissioner or any Vigilance Commissioner can be removed
from his office only by order of the President on the ground of proved misbehavior or
incapacity after the Supreme Court, on a reference made to it by the President, has, on
inquiry, reported that the Central Vigilance Commissioner or any Vigilance
Commissioner, as the case may be, ought to be removed.
 The President may suspend from office, and if deem necessary prohibit also from
attending the office during inquiry, the Central Vigilance Commissioner or any Vigilance
Commissioner in respect of whom a reference has been made to the Supreme Court until

Page 183 of 222

 the President has passed orders on receipt of the report of the Supreme Court on such
reference.
 The President may, by order, remove from office the Central Vigilance Commissioner or
any Vigilance Commissioner if the Central Vigilance Commissioner or such Vigilance
Commissioner, as the case may be: is adjudged an insolvent; or has been convicted of an
offence which, in the opinion of the Central Government, involves moral turpitude; or
engages during his term of office in any paid employment outside the duties of his office;
or is, in the opinion of the President, unfit to continue in office by reason of infirmity of
mind or body; or has acquired such financial or other interest as is likely to affect
prejudicially his functions as a Central Vigilance Commissioner or a Vigilance
Commissioner (As per CENTRAL VIGILANCE COMMISSION Act, 2003)

CENTRAL VIGILANCE COMMISSION: ORGANIZATION COMPOSITION

 It’s headed by a Central Vigilance Commissioner who is assisted by two Vigilance
Commissioners. The Central Vigilance Commission has its own Secretariat, Chief
Technical Examiners' Wing (CTE) and a wing of Commissioners for Departmental
Inquiries (CDI).

LIMITATIONS OF CENTRAL VIGILANCE COMMISSION.

 It is only an advisory body. Central Government Departments are free to either accept or
reject it's advice in corruption cases.
 Central Vigilance Commission does not have adequate resources compared with number
of complaints that it receives. It is a very small set up with sanctioned staff strength of
299. Whereas, it is supposed to check corruption in more than 1500 central government
departments and ministries.
 Central Vigilance Commission cannot direct CBI to initiate inquiries against any officer
of the level of Joint Secretary and above on its own. Such a permission has to be obtained
from the concerned department.
 Central Vigilance Commission does not have powers to register criminal case. It deals
only with vigilance or disciplinary cases.

Page 184 of 222

  Central Vigilance Commission has supervisory powers over CBI. However, it does not
have the power to call for any file from CBI or to direct CBI to investigate any case in a
particular manner. CBI is under administrative control of Department of Personnel and
Training (DoPT). Which means that, the powers to appoint, transfer, suspend CBI
officers lie with DoPT.
 Appointments to Central Vigilance Commission are indirectly under the control of Govt
of India, though the leader of the Opposition (in Lok Sabha) is a member of the
Committee to select Central Vigilance Commission and VCs. But the Committee
considers candidates put up before it. These candidates are decided by the Government.
 As a result, although Central Vigilance Commission is relatively independent in its
functioning, it has neither resources nor powers to inquire and take action on complaints
of corruption that may act as an effective deterrence against corruption.

CENTRAL VIGILANCE COMMISSION& WHISTLEBLOWER PROTECTION

 A few years after the murder of IIT Kanpur alumnus NHAI engineer Satyendra Dubey,
the Central Vigilance Commission launched an initiative to protect whistleblowers.
However, this program has been criticized by ex-Chief Justice of India R.C. Lahoti as
being ineffective. He said that he had on previous occasions through his NGO India
Rejuvenation Initiative, tried to draw the attention of high officials in the CENTRAL
VIGILANCE COMMISSIONto the unsatisfactory manner of its functioning, but with no
results.
Central Vigilance Commission: Purpose and Functions.
Central Vigilance Commission is a top government body, established in 1964 with the aim of
addressing corrupt practices within the government.
The Central Vigilance Commission works in coordination with the government authorities for
the betterment of the system.
Purpose.
1. The main purpose for which this important body had been established was to ensure all sorts
of corruptions in government sector could be well prevented and addressed minutely.
2. It is an autonomous body, responsible for monitoring all vigilance activities under the union
government.

Page 185 of 222

3. Its major role is to recommend government agencies in “planning, executing, reviewing and
reforming” their vigilance capability.
4. Central Government of India formed Central Vigilance Commission in the year 1964 as an
important body that could take into account the measures and steps to prevent all the corruptions
especially the governmental ones for a better system and governance.
Central Vigilance Commission has been given several powers including its status to work
independently as a major sovereign body which remains free from any type of control from the
authorities.
Central Vigilance Commission has came into existence after the reports submitted by Committee
on Prevention of Corruption whose chairperson Mr. K. Santhanam had suggested for the
formation of this Commission. Mr. Nittoor Srinivasa Rau was appointed as first Chief Vigilance
Commissioner of India.
It must be informed that Central Vigilance Commission is not an investigating agency. It
operates in coalition with the CBI or the Departmental Chief Vigilance Officers. The only search
that Central Vigilance Commission conducts is that of investigating Civil Works of the
government, which is done through the Chief Technical Officer.
Before Central Vigilance Commission can take up investigations into corruption cases against
government officials, it has to be approved by the government. The Central Vigilance
Commission also publishes list of corrupt officials and recommends punitive action against
them.

Appointment.
The President of India appoints the Central Vigilance Commissioner and the Vigilance
Commissioners on the recommendation of the Prime Minister, Home Minister and the leader of
the opposition in the Lok Sabha. It clearly indicates that the appointments to Central Vigilance
Commission are indirectly under the government’s control.

Is CENTRAL VIGILANCE COMMISSION a powerless agency?

Central Vigilance Commission is often considered a powerless agency as it is treated as an
advisory body only with no power to register criminal case against government officials or direct
CBI to initiate inquiries against any officer of the level of Joint Secretary and above.

Page 186 of 222

 Although Central Vigilance Commission is “relatively independent” in its functioning, it neither
has the resources nor the power to take action on complaints of corruption.

Functions and powers of Central Vigilance Commission

With respect to CBI:
 To exercise superintendence over the functioning of the Delhi Special Police Establishment
(DSPE) (i.e. CBI)with respect to investigation under the Prevention of Corruption Act, 1988; or
offence under Cr.P.C. for certain categories of public servants and to give directions to the DSPE
for purpose of discharging this responsibility;
 To give directions and to review the progress of investigations conducted by the DSPE into
offences alleged to have been committed under the Prevention of Corruption Act;
 As a fallout of the Vineet Narain case, the Supreme Court of India ruled that the Director of the
CBI (and Director of Enforcement) should be appointed on the recommendations of a Committee
headed by the Central Vigilance Commissioner, the Home Secretary and the Secretary in the
Department of Personnel as members. The Committee should also take the opinion of the
incumbent Director CBI before forwarding their recommendations to the Appointments
Committee of the Cabinet.
 The Committee concerned with the appointment of the Director of CBI is also empowered to
recommend, after consultation with the Director (CBI), appointment of officers to the posts of
the level of SP and above in DSPE.
 The Committee concerned with the appointment of the Director of Enforcement is also
empowered to recommend, after consultation with the Director of Enforcement, appointment of
officers to the posts of the level of Deputy Director and above in the Directorate of Enforcement.

With respect to Vigilance..

 To undertake an inquiry or cause an inquiry or investigation to be made into any transaction in
which a public servant working in any organization, to which the executive control of the
Government of India extends, is suspected or alleged to have acted for an improper purpose or in
a corrupt manner;

Page 187 of 222

 To tender independent and impartial advice to the disciplinary and other authorities in
disciplinary cases, involving vigilance angle at different stages i.e. investigation, inquiry, appeal,
review etc.
 To exercise a general check and supervision over vigilance and anti-corruption work in
Ministries or Departments of the Government of India and other organizations to which the
executive power of the Union extends; and
 To undertake or cause an inquiry into complaints received under the Public Interest Disclosure
and Protection of Informer and recommend appropriate action.
 Respond to Central Government on mandatory consultation with the Commission before making
any rules or regulations governing the vigilance or disciplinary matters relating to the persons
appointed to the public services and posts in connection with the affairs of the Union or to
members of the All India Services
 The Central Government is required to consult the CENTRAL VIGILANCE COMMISSIONin
making rules and regulations governing the vigilance and disciplinary matters relating to the
members of Central Services and All India Services.
Its main functions include technical audit of construction works of governmental organizations
from a vigilance angle, investigation of specific cases of complaints relating to construction
works and assisting CBI in its investigations involving technical matters.

Other functions of Central Vigilance Commission.

1. To exercise superintendence over the functioning of the Delhi Special Police Establishment
(DSPE) with respect to investigation under the Prevention of Corruption Act, 1988; or offence
under CRPC for certain categories of public servants and to give directions to the DSPE for
purpose of discharging this responsibility.
2. To review the progress of investigations conducted by the DSPE into offences alleged to have
been committed under the PC Act.
3. To undertake an inquiry or cause an inquiry or investigation to be made into any transaction in
which a public servant working in any organisation, to which the executive control of the
Government of India extends, is suspected or alleged to have acted for an improper purpose or in
a corrupt manner.

Page 188 of 222

4. To tender independent and impartial advice to the disciplinary and other authorities in
disciplinary cases, involving vigilance angle at different stages i.e. investigation, inquiry, appeal,
review etc.
5. To exercise a general check and supervision over vigilance and anti-corruption work in
Ministries or Departments of the Govt. of India and other organisations to which the executive
power of the Union extends.
6. To chair the Committee for selection of Director (CBI), Director (Enforcement Directorate) and
officers of the level of SP and above in DSPE.
7. To undertake or cause an inquiry into complaints received under the Public Interest Disclosure
and Protection of Informer and recommend appropriate action.
It can be said that Central Vigilance Commission is an apex Indian governmental body to
address governmental corruption. It has the status of an autonomous body, free of control
from any executive authority, charged with monitoring all vigilance activity under the
Central Government of India.
Central Vigilance Commission Act, 2003 also empowers the Commission to exercise
superintendence over the functioning of the Delhi Special Police Establishment (DSPE) now
called Central Bureau of Investigation (CBI).
The Commission is also empowered to review the progress of investigations conducted by the
CBI and the progress of applications pending with the competent authorities for grant of sanction
for prosecution for offences alleged to have been committed under the Prevention of Corruption
Act,1988.
The Commission also exercises superintendence over the vigilance administration of the various
organizations under the Central Government.

*****

Page 189 of 222

 UNIT – 5
ADMINISTRATIVE TRIBUNALS AND PUBLIC UNDERTAKING
Meaning:
Administrative Tribunals are quasi judicial authorities established under an Act of Parliament or
of State Legislature charged with the duty to discharge adjudicatory functions. Dicey's Concept
of Rule of law is opposed to the establishment of Administrative Tribunals. But, Administrative
Tribunals have become a necessity in the modern welfare activities of the States and they have
come to stay with us. A Tribunal means the 'Seat of a Judge'. Administrative Tribunals therefore,
are bodies other than the courts. They simulate the Courts and have powers to determine
controversies but they are not Courts. They have only some of the 'Trappings of the Courts'.
They perform hybrid functions - administrative and judicial.

 The word ‘tribunal’ takes its origin from the Latin term ‘tribunus’ which means “a
raised platform with the seat of judge, who elected by the people to protect their
interests.”
 The Important practical reason for the growth of tribunals was the desire to provide a
system of adjudication, which was informal, cheap and rapid.
 Tribunals can be called as “Judgment seat or court of justice or board or committee
appointed to adjudicate on claims of a particular kind”.
 Therefore, they are adjudicatory* bodies (except ordinary courts of law) constituted by
the State and entrusted with judicial and quasi-judicial functions as distinguished from
administrative or executive functions.
*to settle or determine (an issue or dispute) judicially

Origin and development:

The Origin of these tribunals can be traced to the French system of Droit Administratiff. It was
accepted in other continental countries. The Donoughmore Committee suggested two reforms:
The tribunals should disclose the reasons and Inspectors report should be published. The Frank’s
Committee was constituted to make recommendation in respect of tribunals and their functions.
It stated the characteristics of the Tribunals.

Page 190 of 222

The Tribunals are cheap, non-technical, easily accessible, expeditious and have expertise in a
particular field. It recommended:
i) for the appointment of a Council over the tribunals to supervise the work of the Administrative
Tribunals.
ii) that the Lord Chancellor should be the appointing authority of the Chairman of the tribunals.
iii) It suggested that the tribunals should observe certain principles like public hearing,
Representation by lawyers, Principles of Natural Justice etc. The English Tribunals and
Enquiries Act, 1958 was passed by Parliament broadly, on the basis of these recommendations.

ADMINISTRATIVE TRIBUNALS: OBJECTIVES

 To provide for a forum to deal exclusively with service matters which off loaded the
burden of the cases of High Court from their jurisdiction;
 To provide inexpensive and speedy relief to government servants in service matters;
 To provide special powers to the tribunals to make their own special powers and
procedures and not be guided by the Civil Procedure Code or the Law of Evidence but
to work according to rules of natural justice.
 As far as creation of tribunals is concerned constitution is silent. No express provision in
the Constitution, as it stood originally, provides for the establishment of tribunals.
 However, Articles 262(2) and 263(1) are important in this regard.
 Article 262(2) provides for the creation of tribunal to adjudicate the disputes relating to
water of interstate rivers or valleys.
 Article 263 (1) provides for creation of council charged with the duty of inquiry into the
disputes between states.
 Apart from these two Articles, the creation of tribunals is implied in the Articles 136,
226 and 227 of the Constitution as the term ‘tribunal’ is used in these Articles.
 However, 42nd Constitutional Amendment, 1976 expressed the provision for the
creation of tribunals. This Amendment opened the possibility for the proliferation of the
tribunals system in the country.
 Article 323A empowers the parliament to establish service tribunals, which will deal
with the service matters i.e., recruitment, conditions of service of persons appointed to

Page 191 of 222

 public services and posts in connection with the affairs of the Union or any State or any
local or other authority in India or under the control or owned by the government and
 Article 323B empowers the appropriate legislature to provide the law, for adjudication or
trial by tribunals of any disputes and offences with respect to several matters namely:
(a) levy, assessment, collection and enforcement of any tax;
(b) foreign exchange, import and export across customs frontiers;
(c) industrial and labour disputes;
(d) land reforms by way of acquisition by the State of any estate as defined in Article 31A or of
any rights therein or the extinguishment or modification of any such rights or by way of ceiling
on agricultural land or in any other way;
(e) ceiling on urban property;
(f) elections to either House of Parliament or the House or either House of the Legislature of a
State, but excluding the matters referred to in Article 329 and Article 329A;
(g) production, procurement, supply and distribution of foodstuffs (including edible oilseeds and
oils) and such other goods as the President may, by public notification, declare to be essential
goods for the purpose of this article and control of prices of such goods;
(h) offences against laws with respect to any of the matters specified in sub clause (a) to (g) and
fees in respect of any of those matters;
(i) any matter incidental to any of the matters specified in sub clause (a) to (h).
 In 1985, Parliament passed the Administrative Tribunals Act in pursuance of Article
323 A of the Constitution.
 And under Article 323B Parliament and State legislatures are passing law from time to
time which provided for the creation of tribunals.

India:
Though there are a number of Tribunals established in India, there is no 'Conseil d’ Etat of
France or a 'Council over Tribunals' of the British system. Instead the High Courts have
jurisdiction over these tribunals under Art. 226 of the Constitution. A Number of Tribunals have
been established in India: Income Tax Appellate Tribunal, Labour Tribunal, Land Tribunals,
Railway Rate Tribunals, Rent control Authority, Commissioner for Religious Endowments, etc.

Page 192 of 222

Necessity & Reasons for Growth:-
(i) The Ordinary Courts follow strictly the procedures and the Evidence Act and hence take
much time. However tribunals act rapidly with wide discretionary powers, basing their decisions
on departmental policy and other factors

ii) Administrative Tribunals with experts on their panel may effectively dispose of technical
problems, as they possesses technical knowledge in particular fields like labour, Revenues,
Excise, wages etc.

iii) Tribunals are less expensive, and procedures are not complex and formalistic as in courts.
Courts are generally rigid and have legalistic approach. Tribunals are not bound by strict rules of
evidence and procedure codes. They are more pragmatic & realistic in their approach.

iv) Tribunals are not costly, and are easily accessible to the affected persons, eg. Sales Tax
Appellate Tribunal, Labour Tribunal, Land Appellate Tribunals etc.

v) The Courts decide all questions objectively but the tribunal may decide subjectively on
departmental policy basis.

Essential features:
i) Statutory Origin:
Every Tribunal should have its base in a Statute made by the Parliament or state Legislature. It
cannot be created under a statutory instrument by the executive, or by a resolution.

ii) Composition & Appointment:

The Statute must specify the Composition and special Qualifications of the personnel to be
appointed as Members of the Tribunal. Normally one Presiding Officer, and two Assessors are
appointed. Persons with Expertise or specialization in a particular field (with administrative
experience) are appointed.

Page 193 of 222

iii) Jurisdiction, Powers and functions:
1. As the jurisdiction has the tendency to oust the jurisdiction of the Civil Courts, the Statute
should specify clearly the nature of jurisdiction, powers and functions.
2. Its powers normally include some of the powers of the Civil Courts in issuing processes, in
securing attendance of witness examining them on oath, to compel production of documents etc.
3. Members of the Tribunals are public servants.

iv) Procedure:
Though the procedure codes and the Evidence Act is not binding on the Tribunals they should
provide for fair hearing or opportunity and no information should be used against a person
without giving an opportunity to defend. However, it should not violate rules relating to hearsay
or admit documents without proving them. Thus observance of principles of natural justice is a
sine qua non.

v) Speaking order:
The Tribunal should record reasons for its order (Speaking order). This discloses the mind of the
Tribunal and prevents arbitrariness. This will also enable the appellate Court to decide the
legality of the order.

vi) Review:
Tribunals have no inherent power to review, their decisions. The reason is that once the order is
made, the tribunal becomes functus officio (authority ceases). The High Court has powers to
correct the errors of the tribunals.

vii) Appeals:
The order of the tribunal, has no finality and hence, it may be set aside under reference to the
High Court. Certiorari or prohibition writ may be issued under Arts 226 and 227 of the
constitution quashing the order of the Tribunal. (Judicial Review).

Page 194 of 222

42ndAmendment and Administrative Tribunals.
The 42nd Constitution Amendment introduced Arts. 323- A & B to enable Parliament to make
law to constitute Administrative Tribunals to deal with certain disputes. The law according to it
may exclude jurisdiction of all Courts except that of the supreme court under Art. 136 (SLP:
Special-leave petition) of the Constitution. This means, by law the Jurisdiction of the High
Courts, Art 226 and 227, could be excluded.

Exercising this power, the parliament enacted the Administrative-Tribunals Act 1985, which in
Section. 28 excluded the jurisdiction ofthe High Courts over the Tribunals. This was challenged
before the Supreme Court in:

Sampath Kumar v.Union of India (1987)

The Court held:
(i) The Tribunal is to be a real substitute of a High Court, and should be entitled to exercise the
powers of the High Court. This means the Tribunal is to be a de jure and de facto substitute.
ii) The Tribunal should have jurisdiction to decide the validity of any statute, rule, regulation,
notification etc. as the High Court.
iii) If the Tribunal falls short of this requirement, there would be denial of the power of Judicial
review, is the basic structure of the Constitution.
In fact, the tribunal is to be an effective institutional mechanism equally efficacious as the High
Court in the exercise of judicial review. Within these parameters, the Administrative Tribunals
Act was held valid and constitutional. The Tribunal should be a worthy successor to a High
Court in all respects if rule of law is to be upheld.
*****

TRIBUNAL: NOT A SUBSTITUTE FOR HIGH COURT

 The Tribunals empowered to adjudicate disputes and entertain complaints with respect to
service matters.
 All other courts except Supreme Court are barred to entertain these cases.
 Therefore, tribunals do enjoy the same status or are at par with High Court. But a tribunal
will not have power to issue writ as power is not given to them.

Page 195 of 222

 SAMPATH KUMAR v. UOI [(1987) 1 SLJ 124]
 The Supreme Court in S.P. Sampath Kumar’s case declared that the tribunal is the
substitute of High Court and is entitled to exercise the power thereof.
 The tribunals are apart of the jurisdiction of High Court i.e., relating to service matters an
appeal cannot lay within the High Court against the order or judgment and as a matter of
right before the Supreme Court.
 But Supreme Court can entertain appeal in the exercise of its extra ordinary jurisdiction
under Article 136.
 Hence, the tribunal’s decision is made appealable within the tribunal itself before a large
bench as an ordinary employee cannot be accepted to afford the cost of litigation in the
Supreme Court, which may sometimes result in the denial of his right to seek justice.

L.CHANDRA KUMAR v. UOI [(1997) 3 SCC 261]

 The Supreme Court reversed its earlier judgment and ruled that power of judiciary vested
in the Supreme Court and High courts is part of the basic structure of the constitution
and could not be taken away.
 Now the tribunals are allowed to function as courts of first instance subject to the
jurisdiction of High Courts. This downgraded the role of tribunals from the substantial
role to supplemental role.
 The person who is aggrieved by an order of the government or its agencies can approach
the tribunal within a period of one year from the date on which the delinquent official
was penalized and this representation has to be disposed of within the period of six
months. [Section 21 of Central Administrative Tribunal Act, 1985]
 However, delay can be condoned by the tribunal if it is satisfied with sufficient cause.
 The tribunal shall follow the principles of natural justice.
 It is empowered to review its own decision and may reject the application of review if it
is satisfied that there is no sufficient ground for it such rejected application of review is
not appealable.
 It excludes the jurisdiction of other courts but subject to the writ jurisdiction of High
Court and Jurisdiction of Supreme Court under Article 136.

Page 196 of 222

The grounds for Supreme Court to interfere with the findings are:
 The Tribunal has acted in excess of jurisdiction or has failed to exercise apparent
jurisdiction.
 It has acted illegally.
 There is an error of law.
 The order of it is erroneous or has approached the question in a manner liable to result
in injustice.
 It has acted against the principles of natural justice.
 No civil servant is to be dismissed or removed without a departmental enquiry [Article
311 of the Constitution of India].
 The tribunal has the power of judicial review for the validity of such disciplinary
proceedings but power is limited as it cannot change the decision.
 However, the Supreme Court under equitable jurisdiction under Article 136 enjoys the
power to change such decision or opinion of the disciplinary proceedings.
 For the proper implementation of welfare schemes the tribunals were found to be
essential and inevitable.
 Thus, the tribunal system cannot be inconsistent with rule of law in fact they have
become the agencies for ensuring rule of law.
Some of the important tribunals are:
 Central Administrative Tribunal (CAT),
 Industrial Tribunals set up under Industrial Disputes Act, 1947
 Customs, Excise and Gold (Control) Appellate Tribunal
 Armed Forces Tribunal (AFT),
 Telecom Disputes Settlement Appellate Tribunal (TDSAT),
 Railway Rates Tribunals set up under Indian Railways Act,1890,
 Competition Appellate Tribunal (COMPAT),
 Debt Recovery Tribunal (DRT),
 Income Tar Appellate Tribunal set up under Income Tax Act, 1961,
 Court of Survey set up wider Merchant Shipping Act, 1958,
 VAT Tribunal,

Page 197 of 222

  Revenue Tribunal.

ADMINISTRATIVE TRIBUNALS: UK.

 Tribunals have been defined as “Bodies outside the hierarchy of the courts with
administrative or judicial functions” (Curzon, Dictionary of Law)
 Administrative tribunals resolve disputes between, for example, the citizen and an officer
of a government agency or between individuals in an area of law in which the
government has legislated the conduct of their relations.
Administrative tribunals have been established by statute, in the main, to resolve:
• disputes between a private citizen and a central government department, such as claims to
social security benefits;
• disputes which require the application of specialised knowledge or expertise, such as the
assessment of compensation following the compulsory purchase of land; and
• other disputes which by their nature or quantity are considered unsuitable for the ordinary
courts, such as fixing a fair rent for premises or immigration appeals.
The main reason for the creation of administrative tribunals may be identified as:
• the relief of congestion in the ordinary courts of law (the courts could not cope with the
case-load that is now borne by social security tribunals, employment tribunals and the
like);
• the provision of a speedier and cheaper procedure than that afforded by the ordinary
courts (tribunals avoid the formality of the ordinary courts); and
• the desire to have specific issues dealt with by persons with an intimate knowledge and
experience of the problems involved (which a court with a wide general jurisdiction
might not acquire).
•
CLASSIFICATION OF ADMINISTRATIVE TRIBUNALS: UK .
 Administrative tribunals are sets of tribunals which adjudicate on specialist civil disputes
outside of the court system. Darbyshire has reported (2008) that there are over 130 such
bodies in the UK covering a vast array of areas. Until recently each tribunal was separate
and in 1996 the list of administrative tribunals included the following:
 agricultural land tribunals,

Page 198 of 222

  child support appeal tribunals,
 the Civil Aviation Authority ,
 the Director General of Fair Trading in their licensing functions,
 criminal injuries adjudicators,
 the Data Protection Registrar,
 education appeal committees, immigration adjudicators
 the Immigration Appeal tribunal,
 industrial tribunals (renamed employment tribunals),
 the two Lands Tribunals,
 mental health review tribunals,
 the Comptroller-General of Patents,
 war pensions appeal tribunals,
 rent assessment committees,
 social security appeal tribunals
 the Social Security Commissioners,
 disability and medical appeal tribunals,
 the general and special commissioners of income tax, traffic commissioners, valuation
and community charge tribunals, and VAT tribunals.
 However, these tribunals have now been incorporated into the unified Tribunals System
which includes all administrative tribunals with the exceptions of Patent Office tribunals
and the Investigatory Powers Tribunal.

ADVANTAGES OF ADMINISTRATIVE TRIBUNALS: UK.

(a) quick with no long waits for the case to be heard and it is dealt with speedily;
(b) cheap, as no fees are charged;
(c) staffed by experts who specialise in particular areas;
(d) characterised by an informal atmosphere and procedure;
(e) allowed not to follow its own precedents, although tribunals do have to follow court
precedents.

Page 199 of 222

DISADVANTAGES OF ADMINISTRATIVE TRIBUNALS: UK.
 (a) some are becoming more formal;
 (b) they are not always independent of the Government, although the Independent
Tribunal Service now recommends possible chairmen to the Lord Chancellor;
 (c) some tribunals act in private;
 (d) legal aid is not generally available, except for the Lands Tribunal, the Employment
Appeal Tribunal and the Mental Health Review Tribunal;
 (e) there is no general right of appeal to the courts: it all depends on the particular statute
creating the tribunal. The 1992 Act gives a right of appeal on a point of law to the High
Court from specified tribunals.

TYPES OF ADMINISTRATIVE TRIBUNALS: UK

 Tribunals are usually divided into two types:
 domestic tribunals
 administrative tribunals.
 Domestic Tribunals are often used within the professions to determine questions relating
to the professional conduct of their members. This usually involves matters of discipline.
 Examples of domestic tribunals include the General Medical Council (GMC), the General
Dental Council (GNC), the Bar Council , etc.
Lee v Showmen’s Guild
Since Lee v Showmen’s Guild of Great Britain (1952) the Courts will interfere in any domestic
tribunal to ensure that the rules of these associations are correctly interpreted and the principles
of natural justice are observed.
Administrative Tribunals are concerned with administrative law or matters affecting the rights of
a large numbers of persons.
 A large number of administrative tribunals have been set up by various statutes.
However, there are some tribunals which rarely ever sit and a few that have never sat.
Important Administrative Tribunals:
 Employment Tribunals
 Asylum & Immigration Tribunal
 Mental Health Review Tribunal

Page 200 of 222

  Asylum & Immigration Tribunal
 Information Tribunal

ADMINISTRATIVE TRIBUNAL PERSONNEL: UK

 Most tribunals consist of a legally-qualified chair person with two lay members.
 The lay members often can bring expertise to the decision of the tribunal.
 For instance, the Employment Tribunal consists of a legally-qualified chairperson, a
person who has worked as an employer and a person who has worked as a trade unionist.
APPEALS FROM ADMINISTRATIVE TRIBUNALS: UK
 Appeal from many tribunals is to the Divisional Court of the Queen’s Bench. For some,
such as the Lands Tribunal, appeal lies to the Court of Appeal
 However, some tribunals have their own special appeal tribunal. For instance, an appeal
from an Employment Tribunal is to the Employment Appeal Tribunal;

ADMINISTRATIVE JUSTICE AND TRIBUNALS COUNCIL: UK

 The Administrative Justice and Tribunals Council (AJTC) keeps the tribunal and
administrative justice system under review.
 It was established by the Tribunals, Courts and Enforcement Act 2007
 It replaced the Council on Tribunals.
 Key duties of AJTC includes:
 To give advice and make recommendations on changes on the workings of the
administrative justice system;
 To review the relationships between the various components of the administrative justice
system (such as ombudsmen, tribunals and the courts);

KEY STAGE IN DEVELOPMENT OF TRIBUNALS: UK

 Much of the organisation of tribunals can be understood by looking at the Franks
Committee Report 1957.The main criticisms of this report were that tribunals did not give
reasons for their decisions and there were often no routes of appeal.

Page 201 of 222

EFFECT OF FRANKS COMMITTEE REPORT: UK
 Following the report a number of important changes were introduced to the
administrative tribunal system by the Tribunals and Inquiries Act 1958 (with later
additions in the Tribunals and Inquiries Act 1971 and Tribunals and Inquiries Act 1992).
 Council on Tribunals to supervise the work of most administrative tribunals was
established;
 Tribunals would now give reasons for their decisions;
 Parties can be represented by a lawyer if they wish;
 All material facts would be disclosed to all parties before the hearing;
 hearings would be in public unless public security was involved;
 appeals would lie from most tribunals to the Divisional Court of the Queen’s Bench.

CENTRAL ADMINISTRATIVE TRIBUNALS: INDIA

 The Central Administrative Tribunal had been established under Article 323 -A of the
Constitution for adjudication of disputes and complaints with respect to recruitment and
conditions of service of persons appointed to public services and posts in connection with
the affairs of the Union or other authorities under the control of the Government.
 In the statement of object and reasons on the introduction of the Administrative
Tribunals Act, 1985 it was mentioned:“It is expected that the setting up of such
Administrative Tribunals to deal exclusively with service matters would go a long way in
not only reducing the burden of the various Courts and thereby giving them more time to
deal with other cases expeditiously but would also provide to the persons covered by the
Administrative Tribunals speedy relief in respect of their grievances.”
 There are 17 Benches (HQ of High Courts), 33 Division Benches and 21 Circuit Benches
in the Central Administrative Tribunal all over India. In addition to the Ministries and
Departments of Central Government, the Government of India has notified about 214
organizations under section 14 (2) of the Administrative Tribunals Act, 1985 to bring
them within the jurisdiction of the Central Administrative Tribunal, from time to time.
Administrative Tribunal Act, 1985 came into effect from July 1985
 Object – to easing the congestion of pending cases related to service matters in various
High Courts and other Courts in the country.

Page 202 of 222

  In addition the Central Administrative Tribunal, Principal Bench is dealing with the
matters of Govt. of National Capital Territory of Delhi. The Central Administrative
Tribunal is headed by Hon’ble Chairman Sh. Justice L. Narasimha Reddy, former Chief
Justice of HC of Patna. There are 66 Hon’ble Members in various Benches of the
Tribunal out of which 33 are Judicial Members, including the Hon’ble Chairman and 33
are Administrative Members.
 Subject to other provisions of the Act, a Bench consists of one Judicial Member and one
Administrative Member. The Central Administrative Tribunal has been established as a
specialist body comprising of Administrative Members and Judicial Members who by
virtue of their specialized knowledge are better equipped to dispense speedy and effective
justice.
 The conditions of service of Hon’ble Chairman and Members are the same as applicable
to a Judge of High Court as per the Administrative Tribunals (Amendment) Act, 2006 (1
of 2007), which came into effect on 19.02.2007.
 After the establishment of the Tribunal in 1985, it received 13,350 pending cases on
transfer from the High Courts and subordinate Courts under section 29 of the
Administrative Tribunal Act, 1985.
 Since its inception in 1985 to 31st July, 2018 about 7,79,101 cases were instituted in the
Tribunal. Out of those 7,27,818 cases have already been disposed of. That is a disposal
rate of 93.41 %.
 The Administrative Tribunal is distinguishable from the ordinary courts with regard to
its jurisdiction and procedure. It exercises jurisdiction only in relation to the service
matters of the parties covered by the Act. It is also free from the shackles of many of the
technicalities of the ordinary Courts.
A provision has also been made in the Rules that where the Tribunal is satisfied that an applicant
is unable to pay the prescribed fee on ground of indigence (seriously impoverished condition;
poverty, it may exempt such an applicant from the payment of fee. Thus, the Tribunal has duly
justified its creation through speedy and inexpensive disposal of pending cases.
 The Tribunal is guided by the principles of natural justice in deciding cases and is not
bound by the procedure, prescribed by the Civil Procedure Code. The Central
Administrative Tribunal is empowered to frame its own rules of procedure and practice.

Page 203 of 222

 Under the said provision of the Act, the Central Administrative Tribunal (Procedure)
Rules, 1987 and Central Administrative Tribunal Rules of Practice, 1993 have been
notified to ensure smooth functioning of the Tribunal.
 The employees of the Central Administrative Tribunal are required to discharge their
duties under the general superintendence of the Chairman. Salaries and Allowances and
Conditions of Service of the officers and other employees of the Tribunal are specified by
the Central Government. Pursuant to these provisions, the Central Government has
notified the Central Administrative Tribunal Staff (Condition of Service) Rules, 1985.
 There are 1303 posts classified in 36 categories for assisting the Tribunal in discharging
its functions. The Central Administrative Tribunal is a dynamic organization with
increasing jurisdiction, responsibilities and work load. Now the Central Administrative
Tribunal has initiated an ambitious Plan Scheme for modernization and computerization
of its activities through a new dynamic website, Case Information System, Video
Conferencing etc. This project, on completion, will facilitate the litigants, lawyers,
researchers and public in general to access the orders and judgments of the Tribunal on
real time basis besides efficient maintenance & management of records and speedy
disposal of cases.

ADMINISTRATIVE TRIBUNALS IN INDIA.

 There are tribunals for settling various administrative and tax-related disputes, including
Central Administrative Tribunal (CAT), Income Tax Appellate Tribunal (ITAT),
Customs, Excise and Service Tax Appellate Tribunal (CESTAT), National Green
Tribunal (NGT), Competition Appellate Tribunal (COMPAT) and Securities Appellate
Tribunal (SAT), among others.
 In several states, Food Safety Appellate Tribunals have been created to hear appeals
against orders of adjudicating officers for food safety (additional deputy commissioners).
 Armed Forces Tribunal (AFT) is a military tribunal in India. It was established under the
Armed Forces Tribunal Act, 2007.
 Armed forces Tribunals are the various military courts where in the matters related to
Army/Air force /Navy laws are dealt and the Tribunal also passes orders on service

Page 204 of 222

 matters of the defence forces and their personnel. The bench comprises of an
administrative member and one judicial member.
 The court martial is disciplinary proceedings against an erring defence official by the
organisation. IT is presided over by the serving members of the armed forces and gives
punishments. The decisions of the Court martial can be challenged in Armed forces
Tribunal.

LEADING CASES: ADMINISTRATIVE TRIBUNALS IN INDIA

State Of Orissa Vs Bhagaban Sarangi
 The Supreme Court has held that a tribunal (Orissa state administrative tribunal) which is
bound by the decision of the High court.

Lloyds Bank Ltd Vs Indian Staff Assn.,

In this case it as been held that they should prevent unfair labour practices and victimisation
And restore industrial peace by ensuring the salutary principle of collective bargaining.

Durga Shankar Mehta Vs Raghuraj Singh

The Supreme Court defined ―tribunal in the following words:
The expression ‘tribunal’ as used in the article 136 does not mean the same thing as ‘court’ but
includes, within its ambit, all adjudicating bodies, provided they are constituted by the state and
are invested with the judicial as distinguished from administrative or executive functions.

Dhulabhai Vs State Of Madhya Pradesh

In this case it as been held that the court of law can decide the vires of the legislation, while an
administrative tribunal cannot do so.(Thakker and Thakker 2017) lectures on administrative
law)
For adjudication of disputes with respect to recruitment and conditions of service of persons
appointed to public services and posts. All Central Government Employees and Employees of 45
other organizations notified by the central Govt.

Page 205 of 222

CENTRAL ADMINISTRATIVE TRIBUNAL: JURISDICTION
 Cause of Action arises: When all the channels are exhausted
 If no reply received for appeal
 Six months after appeal.
 Time Limit: One year from the date of cause of action
 Continuous cause of action in cases like
 non settlement of pension
 nonpayment of pay

DEFENDING CAT CASES.

 Prepare reply
 objection relating to delay should be raised first
 objections relating to jurisdiction.
 Reply should be verified and signed by the authorized officer.
 All relevant documents relied upon should be annexed to reply.
 Relevant file/documents to be sent to CO/RO for defending the case
 Get full facts of the case
 Application for vacation of interim order may be made
 Obtain copy of final order
 Get legal opinion for review/writ/SLP
 Take steps to
 File writ/SLP
 Implement the order

ADMINISTRATIVE TRIBUNALS: USA

Administrative Procedure Act, 1946 (APA): An Act to improve the administration of justice by
prescribing fair administrative procedure. Enacted by the 79th US Congress on June 11, 1946, is
the US federal statute that governs the way in which administrative agencies of the federal
government of the US may propose and establish regulations. To protect citizens, the APA also
grants the judiciary oversight over all agency actions.

Page 206 of 222

ADMINISTRATIVE PROCEDURE ACT, 1946: USA
 The APA applies to both the federal executive departments and the independent agencies.
US Senator Pat McCarran called the APA "a bill of rights for the hundreds of thousands
of Americans whose affairs are controlled or regulated" by federal government agencies.
The text of the APA can be found under Title 5 of the US Code, beginning at Section
500.

CODE OF LAWS OF THE USA / UNITED STATES CODE

 The Code of Laws of the United States of America (variously abbreviated to Code of
Laws of the United States, United States Code, U.S. Code, U.S.C., or USC) is the
official compilation and codification of the general and permanent federal statutes of the
United States. It contains 53 titles (Titles 1–54, excepting Title 53, it being reserved). The
main edition is published every six years by the Office of the Law Revision Counsel of
the House of Representatives, and cumulative supplements are published annually.

ADMINISTRATIVE PROCEDURE ACT, 1946: USA

 There is a similar Model State Administrative Procedure Act (Model State APA), which
was drafted by the National Conference of Commissioners on Uniform State Laws for
oversight of state agencies. Not all states have adopted the model law wholesale, as of
2017. The federal APA does not require systematic oversight of regulations prior to
adoption, unlike the Model APA.
 Although each US government agency is constituted within one branch of the
government (judicial, legislative, or executive), an agency's authority often extends into
the functions of other branches. Without careful regulation, that can lead to unchecked
authority in a particular area of government, violating the separation of powers, a concern
that Roosevelt himself acknowledged.
 To provide constitutional safeguards, the APA creates a framework for regulating
agencies and their roles.

Page 207 of 222

  According to the Attorney General's Manual on the Administrative Procedure Act,
drafted after the 1946 enactment of the APA, the basic purposes of the APA are the
following:
BASIC PURPOSE OF ADMINISTRATIVE PROCEDURE ACT (APA), 1946: USA
1. to require agencies to keep the public informed of their organization, procedures and
rules;
2. to provide for public participation in the rulemaking process, for instance through public
commenting;
3. to establish uniform standards for the conduct of formal rulemaking and adjudication;
4. to define the scope of judicial review.
 The APA's provisions apply to many federal governmental institutions. The APA in 5
U.S.C. 551(1) defines an "agency" as "each authority of the Government of the United
States, whether or not it is within or subject to review by another agency," with the
exception of several enumerated authorities, including Congress, federal courts, and
governments of territories or possessions of the United States. Courts have also held that
the U.S. President is not an agency under the APA. Franklin v. Mass.

STANDARDS OF JUDICIAL REVIEW: USA.

The APA requires that to set aside agency action that are not subject to formal trial-like
procedures, the court must conclude that the regulation is "arbitrary and capricious, an abuse of
discretion, or otherwise not in accordance with the law”. However, Congress may further limit
the scope of judicial review of agency actions by including such language in the organic statute.
To set aside formal rulemaking or formal adjudication whose procedures are trial-like, a different
standard of review allows courts to question agency actions more strongly. For such more formal
actions, agency decisions must be supported by "substantial evidence” after the court reads the
"whole record”. which can be thousands of pages long.

*****
PUBLIC UNDERTAKINGS.

Page 208 of 222

  The public enterprises have had a phenomenal growth during the last three and a half
decades—the number of central public undertakings having gone to 244 from a mere five
at the time of the first Five Year Plan.
 However, from its expansion, it should not be concluded that the public undertakings in
India are functioning very efficiently.
 There is little which suggests that the public sector has turned the comer and launched
itself into self-sustaining growth on the basis of internal resource generation.
 Over 80 per cent of the net profits of public undertakings is based on the performance of
petroleum, steel and coal sectors through occasional price increase. The non-petroleum
sector has not shown any creditable performance.
 The financial losses are partly due to poor operational performance, low capacity utiliza-
tion, excessive overheads, poor technology, defective pricing policy, poor management,
over- staffing, groupism and unionism.
 An important objective of public sector in India was to provide a sound base for
industrial development and ensure balanced regional growth besides the social objective
of promoting the welfare of the weaker sections of the society.
 The public sector has served as an important instrument in coping with such tasks as
restructuring the economy on the basis of industrialisation, exploiting natural resources in
the national interests, construction of hydrological installations and improvement of the
living conditions of the peasantry.
 However, as the country marches ahead in the twenty-first century, restructuring of
public enterprises is essential, which much include modernisation, rationalization of
capacity, selective exit and privatisation, managerial practices and technological up-
gradation.
PUBLIC SECTOR UNDERTAKINGS.
The government-owned corporations are termed as Public Sector Undertakings (PSUs) in
India— In a PSU majority (51% or more) of the paid up share capital is held by central
government or by any state government or partly by the central governments and partly by one or
more state governments. Arms & Ammunition and the allied items of defence equipments,
defence air-crafts and warships— Atomic Energy (except in the areas related to the operation of

Page 209 of 222

nuclear power and applications of radiation and radio-isotopes to agriculture, medicine and non-
strategic industries)— Railways transport, air transport etc. come under PSUs.

ROLE OF PUBLIC SECTOR UNDERTAKINGS.

As agriculture is the backbone of Indian economy, Public Sector Banks (PSBs) play a crucial
role in pushing the agricultural economy— They are less concerned with making profits as
compared to private sector but they need profits.
The Indian Public Sector Undertakings are legal business entities— A number of PSUs are
highly profitable and denoted as ‘Maharatnas’ and Navaratnas. A prominent example of a
Maharatna company is ONGC.
The Public Sector Undertakings of Indian Government, number more than 200 commercially
functioning companies— These undertakings are divided into two parts – state and central.

NEED OF PSUs
Economic development
Development of backward Areas
Employment generation
Defence
Labour welfare
Consumer welfare
Public utilities
Self-reliance

Types of Public Enterprises.

Public Enterprises can be divided in to four types based on their Ownership:-
(i)Central Government enterprises, like the State Bank of India, Life Insurance Corporation,
Hindustan Steel;
(ii)State Government enterprises like Electricity Boards and State Transport Corporations;
(iii)Joint enterprises of both the Central and State Governments, like Damodar Valley
Corporation and Bhakra Nangal Project;

Page 210 of 222

(iv)Undertakings born out of association between government and private enterprises like Oil
India Limited.
 Public Corporations
 Corporation is an aggregate of persons having its existence, rights and duties separate
from the members who compose it.
 According to Davis, “The public corporation is a corporate body created by public
authority with defined process and functions and financially independent”
 William J. Grange defines a Corporation “as an artificial person, which is authorized by
law to carry on particular activities and functions.”

Characteristics of Corporation.
The main characteristics of a Corporation are:
 It is a legal person capable of suing and being sued, entering into contracts, acquiring
and owning property in its own name.
 It is a body corporate under a special statute of the Parliament which lays down its
purpose, powers and functions, etc.
 Its functions are primarily of a business or industrial nature.
 It is run on business lines and not in accordance with the departmental procedures and
practices. It is possessed of the flexibility and initiative of a private enterprise.
 It has its own budget and finances separate from the national budget and finances.
 It holds funds in its own name and enjoys complete autonomy in the management of
these funds. It is not subject to the budgeting, accounting and audit regulations followed
by departmental enterprises.
 It enjoys complete administrative autonomy from the control of the Chief Executive.
 Its personnel do not form a part of the Civil Services but are recruited independently and
appointed on the terms and conditions laid down by the corporation itself.
 They have to work according to policy guidelines given by the government from time to
time and submit the annual report and other documents to the government.
 The Board of Directors is appointed by the government.
 The First Indian public corporation established in India was the Bombay Port Trust
(1879). This was a success.

Page 211 of 222

  The Calcutta & Madras port Trusts were created later (1905).
 In 1934, The Reserve Bank of India and
 In 1935, The Federal Railway Authority were established.
The Statute is the "Charter" of the corporation. It should exercise its rights, powers, functions
according to it; otherwise it would be ultra vires. It has powers to make its own Regulations as
per the charter (statute).
It is autonomous in its day to day management, and, is a "State" within the definition of
authorities, of Art.12 of the Constitution.
 Hence, High courts & Supreme Court have jurisdiction.
 Servants of Public Corporation
 Servants of Public corporations are not civil servants and hence are outside Art. 311 of
the Constitution.
 They are subject to the rules and regulations of the corporations.
 If these rules are not followed and an employee is dismissed, the dismissal would be
void; they are entitled to reinstatement.

*****
PUBLIC CORPORATIONS.
Corporations:
Definition:
A Corporation is an aggregate of persons having its existence, rights and duties separate from the
members who compose it. It has the powers to make regulations. It has a right to acquire or
dispose of property can sue and be sued and. prosecute & be prosecuted. It can enter into
contract. It has a legal personality and therefore a person in the eye of law: (Salmond). It is a
body corporate with perpetual succession and common seal.

Features:
(i) Public Corporation is established under a statute. The Statute defines the powers and
functions, the nature of undertaking the business enterprise and also the administrative functions
to be discharged by it. The Corporation is a public authority and the duties imposed are public in
nature.

Page 212 of 222

ii) A Corporation may be established for trading activities. It has two features:
1. That of a Government department.
2. That of a business organisation.

Hence it is a hybrid institution. Early Corporations: The First Indian public corporation
established in India was the Bombay Port Trust (1879). This was a success. The Calcutta and
Madras port Trusts were created later (1905). In 1934, The Reserve Bank of India and in 1935,
The Federal Railway Authority were established.

Later Corporations:
A. Commercial:
State Trading Corporations, Air India, Indian Airlines, Ashoka Hotel, H.M.T. etc.

B. Financial :
Reserve Bank of India, State Bank of India, L.I.C., Industrial Finance Corporation etc.

C. Developmental:
ONGC, F. C. I., Damodar Valley Corporation, River Boards etc.

D. Service:
E.S.I. Corporation, Housing Board, Hospital Boards, etc.

Appointment:
Normally the Government appoints the Chairman, the members of the Board, the secretary & the
Financial Adviser.

Policy:

Page 213 of 222

In all policy matters, the Government has complete control over the corporations. The trend set
after the Mundhra Affair1 was to interfere in the least.

The Corporation has a right to acquire, hold and dispose of property. It can enter into contracts
and is liable for breach. It is liable for tort.

The Statute is the "Charter" of the corporation. It should exercise its rights, powers, functions
according to it; otherwise it would be-ultra vires. It has powers to make its own Regulations as
per the charter, (statute).

It is autonomous in its day to day management, and, is a "State" within the definition of
authorities, of Art.12 of the Constitution.

Hence, High Courts and Supreme Court have jurisdiction. This was decided by the Supreme
Court in Rajasthan State Electricity Board v. Mohanlal. This is confirmed by the Supreme Court
in Sukhdev Singh v. Bharatram (1975). Hence Fundamental-rights can be enforced against the
public corporations.

Servants:
Servants of Public corporations are not civil servants and hence are outside Art. 311 of the
Constitution. They are subject to the rules and regulations of the corporations. If these rules are
not followed and an employee is dismissed, the dismissal would be void; they are entitled to

1
It was the media that first hinted there might be a scam involving the sale of shares to LIC. Feroz Gandhi sourced
the confidential correspondence between the then Finance Minister T.T. Krishnamachari and his principal finance
secretary, and raised a question in Parliament on the sale of 'fraudulent' shares to LIC by a Calcutta-based Marwari
businessman named Haridas Mundhra. The then Prime Minister, Jawaharlal Nehru, set up a one-man commission
headed by Justice MC Chagla to investigate the matter when it became evident that there was a prima facie case.
Chagla concluded that Mundhra had sold fictitious shares to LIC, thereby defrauding the insurance behemoth to the
tune of Rs. 1.25 crore. Mundhra was sentenced to 22 years in prison. The scam also forced the resignation of
T.T.Krishnamachari.

Page 214 of 222

reinstatement (Sukhdev Singh v. Bharatram: Here dismissed employees of L.I.C, ONGC & IFC.
were held entitled to reinstatement).
*****
CONTROLS OVER PUBLIC CORPORATIONS:
PARLIAMENTARY CONTROL.
A Corporation as a juristic person is subject to legislative control. The Parliament or state
legislature may control the activities of a Corporation. Questions may be asked in the Houses on
the actual working of a corporation and effective & suitable changes may be introduced for the
successful working of a corporation. Committee on public undertakings 1964 is charged with
general supervision and comptroller and auditor general is to see whether sound business
principles and prudent practices are being followed.

The overall Legislative supervision and control in public interest are therefore provided for even
though it is an autonomous body. The Government has the power to appoint and remove the
Chairman and can therefore effectively control the corporation. Control in the financial sector is
dependent on the Government's involvement.

Budget proposals are to be submitted by corporations for Government's approval. Audit of

accounts is done by the Comptroller and Auditor General of India. "Directives" may be issued by
the Government on all matters of Policy. Government frames the Rules. But Regulations are
made by the Corporations. These should not be against the Rules. Chagla Commission has
recommended a compromise between the Govt. Control and the "Corporations authority" to the
effective exercise of day to day administrative functions.

 A Corporation as a juristic person is subject to legislative control.

 The Parliament or state legislature may control the activities of a Corporation.
 Questions may be asked in the Houses on the actual working of a corporation and
effective & suitable changes may be introduced for the successful working of a
corporation.

Page 215 of 222

  Committee on public undertakings, 1964 is charged with general supervision and
comptroller & auditor general is to see whether sound business principles and prudent
practices are being followed.
 The overall Legislative supervision and control in public interest are therefore provided
for even though it is an autonomous body.
 The Government has the power to appoint and remove the Chairman and can therefore
effectively control the corporation.
 Control in the financial sector is dependent on the Government's involvement.
 Budget proposals are to be submitted by corporations for Government's approval. Audit
of accounts is done by the Comptroller and Auditor General of India.
 "Directives" may be issued by the Government on all matters of Policy.
 Government frames the Rules. But Regulations are made by the Corporations. These
should not be against the Rules.
 Chagla Commission has recommended a compromise between the Government Control
& the "Corporation’s authority" to the effective exercise of day to day administrative
functions.

JUDICIAL CONTROL.
A Corporation is within the definition of "other authorities" under Art.12 of the Constitution. As
such they are subject to judicial scrutiny under Arts.226 & 227 by High Courts, and Art.32 by
the Supreme Court. Judicial control is essential when the rights and liberties of persons are
affected. Hence, the Courts have jurisdiction over the corporations and have powers to declare
the act of corporation as ultra vires, where such acts are beyond powers. The Corporations are
liable for breach of contractual obligations.

The Theory of separate juristic person of a corporation caused great hardship to the employeecs
as well as to third parties, by the acts of the Government, through the corporations. Hence, the
Court may tear the veil of the corporation to know "its real nature", to provide a suitable remedy.

Leading Cases:
J.I.R. v. Sunil Kumar.

Page 216 of 222

Hindusthan Antibiotics v. Its Workmen.

If the regulations or actions of the corporation are illegal, unreasonable or arbitrary, the courts
declare them as ultra vires Art.14of the Constitution. Hence while granting jobs, largess,
Government-contracts, tenders, granting of licences, issue of quotas, the corporation should act
according to law and the Constitution. The Court’s broad parameters are fairness in
administration, reasonable management of public business and bona fides.

 A Corporation is within the definition of "other authorities" under Art.12 of the

Constitution. As such they are subject to judicial scrutiny under Arts.226 & 227 by High
Courts, and Art.32 by the Supreme Court. J
 Judicial control is essential when the rights & liberties of persons are affected.
 Hence the Courts have jurisdiction over the corporations and have powers to declare the
act of corporation as ultra vires, where such acts are beyond powers. The Corporations
are liable for breach of contractual obligations.
 The Theory of separate juristic person of a corporation caused great hardship to the
employees as well as to third parties, by the acts of the Government, through the
corporations.
 Hence, the court may tear the veil of the corporation to know "its real nature", to provide
a suitable remedy.
 If the regulations or actions of the corporation are illegal, unreasonable or arbitrary, the
courts declare them as ultra vires Art.14 of the Constitution.
 Hence while granting jobs, largess, Government-contracts, tenders, granting of licences,
issue of quotas, the corporation should act according to law and the Constitution.
 The Court’s broad parameters are fairness in administration, reasonable management of
public business and bona fides.

GOVERNMENTAL CONTROL.
 Ordinarily the Government does not interfere in the day to day functions of public
corporations and it examines overall general control over their functions.

Page 217 of 222

  The Governmental control over the public corporations is not uniform. It varies from
corporation to corporation.
 The Governmental exercises its control over the public corporations in the following
ways:
1) Appointment and Removal:
 Generally, Government has power to make appointment to the top positions and remove
therefrom.
 Usually, the Government is given power to appoint and remove the Chairman and the
members of a public corporation.
 For example, the Damodar Valley Corporation Act, 1948, provides that the Chairman
and Members of the Board of Management will be appointed by the Government of India
in consultation with the Governments of the State of Bihar and West Bengal and they
may be removed by the Government of India for incapacity or abuse of position.
2) Directive to the Corporation
 One of the important methods of Governmental Control of the public corporation is to
authorise the Government to issue directives to the public corporation on the matters of
policy.
 For example, the Life Insurance Corporation Act, 1956, provides that in the discharge of
its functions under this Act, the Corporation shall be guided by such directions in matters
of policy involving public interest as the Central Government gives it.
3) Finance
 Generally, the Government is vested with the powers of controlling the borrowing
expenditure and capital formation. For example, the Oil and Natural Gas Commission
Act, 1956, provides that the Commission can borrow money with the prior approval of
the Central Government.
4) Enquiries
 Usually the Government is given power to order enquiries regarding the functions of the
public corporation.
 By this method, the misuse of the power by the corporation can be brought in to light and
such misuse may be checked and suitable action may be taken by the Government.
4) Rules and Regulations

Page 218 of 222

  Usually the statute creating the corporation empowers the Central Government to make
rules to give effect to the provisions of the Act.
 This also helps the Government in controlling the public corporation.

PUBLIC CONTROL.
 The Consumer Protection Act, 1986, makes provisions for the establishment of the
Central Consumer Protection Council and State Consumer Protection Councils.
 These Councils are expected to be useful in controlling the public enterprises including
public corporations in the interest of the consumers.
 They will be helpful in curbing the growth of corrupt practices.
 The Case against the Public Corporations comes to the court through the public interest
litigation also.
 The Courts issue the writ of mandamus to the public undertaking for performance of its
duty. [Corporation of Nagpur v. Nagpur Electricity Co., AIR 1958 Bom.498]
 The Courts have also interfered in cases of fixation of rates or prices unreasonably or
arbitrarily. [Assn. of Natural Gas Consuming Industries v. ONGC (1983) 24 (2) Guj LR
1437]
 The Courts have also interfered in the case of arbitrary disconnection of telephone.
[Hukum Chand v. Union of India, AIR 1979 SC 789]
 In a case, the Supreme Court has made it clear that the public corporation being
instrumentality of the Government must act reasonably and their act must be in
conformity of the principles which meet the test of reasonableness.
 Their act must not be in violation of the Article 14 if the Constitution.
Some of the important public corporation established by the Union government are:
 Reserve Bank of India (1935)
 Damodar Valley Corporation (1948)
 Industrial Finance Corporation of India (1948)
 Indian Airlines Corporation (1953)
 Air India International (1953)
 State Bank of India (1955)
 Life Insurance Corporation of India (1956)

Page 219 of 222

  Central Warehousing Corporation (1957)
 Oil and Natural Gas Commission (1959)
 Food Corporation of India (1964)

Some of the important public corporations established by state governments are:

 State Financial Corporations
 State Road Transport Corporations
 State Land Mortgage Banks
 State Electricity Boards
*****
ROLE OF OMBUDSMAN IN PUBLIC UNDERTAKING.
OMBUDSMAN.
 An ombudsman is a person who acts as a trusted intermediary between an organization
and some internal or external constituency and represents not only but mostly the broad
scope of constituent interests.
 An ombudsman is an official, usually appointed by the government or by parliament,
who is charged with representing the interests of the public by investigating and
addressing complaints reported by individual citizens.
 An Ombudsman is usually appointed by the organization, but sometimes elected by the
constituency. may, for example, investigate constituent complaints relating to the
organization and attempt to resolve them, usually through recommendations or
mediation.
 May sometimes identify organizational roadblocks running counter to constituent
interests. In some jurisdictions an ombudsman charged with the handling of concerns
about national government is more formally referred to as the Parliamentary
Commissioner (e.g., the United Kingdom Parliamentary Commissioner for
Administration, and the Western Australian state Ombudsman.
 In many countries where the ombudsman's remit extends beyond dealing with alleged
maladministration to promoting and protecting human rights, the ombudsman is
recognized as the national human rights institution .

Page 220 of 222

OMBUDSMAN IN VARIOUS SECTORS
 Electrictiy Ombudsman
 Insurance ombudsman
 Banking ombudsman
 Income tax ombudsman
 Anti corruption ombudsman

OMBUDSMAN IN INSURANCE SECTOR

 The Insurance Ombudsman scheme was created by the Government of India for
individual policyholders to have their complaints settled out of the courts system in a
cost-effective, efficient and impartial way.
 There are at present 17 Insurance Ombudsman in different locations and any person who
has a grievance against an insurer, may himself or through his legal heirs, nominee or
assignee, make a complaint in writing to the Insurance ombudsman within whose
territorial jurisdiction the branch or office of the insurer complained against or the
residential address or place of residence of the complainant is located.
 You can approach the Ombudsman with complaint if:
 You have first approached your insurance company with the complaint and
 They have rejected it
 Not resolved it to your satisfaction or
 Not responded to it at all for 30 days
 Your complaint pertains to any policy you have taken in your capacity as an individual
and
 The value of the claim including expenses claimed is not above Rs 30 lakhs.

Your complaint to the Ombudsman can be about:

a) Delay in settlement of claims, beyond the time specified in the regulations, framed under the
IRDAI Act, 1999.
b) Any partial or total repudiation of claims by the Life insurer, General insurer or the Health
insurer.
c) Any dispute about premium paid or payable in terms of insurance policy

Page 221 of 222

d) Misrepresentation of policy terms and conditions at any time in the policy document or
policy contract.
e) Legal construction of insurance policies in so far as the dispute relates to claim.

Your complaint to the Ombudsman can be about:

f) Policy servicing related grievances against insurers and their agents and intermediaries.
g) Issuance of life insurance policy, general insurance policy including health insurance policy
which is not in conformity with the proposal form submitted by the proposer.
h) Non issuance of insurance policy after receipt of premium in life insurance and general
insurance including health insurance and
i) Any other matter resulting from the violation of provisions of the Insurance Act, 1938 or
the regulations, circulars, guidelines or instructions issued by the IRDAI from time to time or the
terms and conditions of the policy contract, in so far as they relate to issues mentioned at clauses
(a) to (f)

Recommendation:
 The Ombudsman will act as mediator and
 Arrive at a fair recommendation based on the facts of the dispute
 If you accept this as a full and final settlement, the Ombudsman will inform the company
which should comply with the terms in 15 days
Award:
 If a settlement by recommendation does not work, the Ombudsman will:
 Pass an award within 3 months of receiving all the requirements from the complainant
and which will be binding on the insurance company

Once the Award is passed:

 The Insurer shall comply with the award within 30 days of the receipt of award and
intimate the compliance of the same to the Ombudsman.
*****

Page 222 of 222