Vatsala Khandelwal

Administration of a State by the government (Executive)

 Sec. 46 of the GNLU Act allows the University to make rules. The constitutional oddity
here is that the legislative power was delegated. There is an outright discrimination in not
admitting students having qualified their exam in two attempts.
 Why should the Exec. make the rules? There is a reason why the separation of powers
exists. It is a violation of the constitutional principle.
 But such delegation is important because the legislative lacks the technical know-how and
it has too much to do.
 The functionalist school and the constitutional orthodoxy school – The former focuses on
whether the laws are enabling the government to function, from the perspective of the
government. The latter is from the perspective of the lawyer, focusing on the rights of the
individual.
Purpose of Administrative law:
PUSH AND PULL: A push towards a functional state and a pull towards individual rights or
constitutional principles.

The court tries to balance between the two.

 Negative and positive liberty. The former involves a non-intervening state – minimalist
state; the latter requires a functionalist state – helping people obtain their fullest
potential. Alcohol ban in Gujarat and no ban in Haryana? Should the State intervene?
Jennings, Laski and Robson said that the liberty you derive from classical liberalism is not
liberty at all unless through collective action we can all reach our optimal potential.
 How does the shift from minimal to a functional state affect our understanding of public
law? Law which determines the relation between state and society. Under a minimal state
public law is a limitation on the rights of the state. What does the constitution represent?
Limitations on the power of the state. With the advent of welfare state – public law
doesn’t just include limitations on the state but also from the perspective of
enabling/empowered for governance. There was thus a recognition that the state needs
to be empowered to some extent.
 Constitutional Orthodoxy – A.V. Dicey (1885) – It is a negative concept; a limitation on
the State. Things that a State cannot do. Droit Administratif (immunes the Executive from
the jurisdiction of ordinary courts of law- created a parallel jurisdiction.) One system that
all citizens are subject to. When there is no law and the executive gets to exercise
discretion, the executive high-handedness goes against two very important constitutional
principles – separation of powers and the rule of law.
The first critique of a functional/administrative state came from Dicey. Value of rule of law is
essentially supremacy of law, equality before the law, and predominance of legal spirit.
o Supremacy of law - Every State action must have a legal sanction. Since law is
supreme, there should be no scope of exercise of discretion.
Vatsala Khandelwal

o Equality before the law - Law is the same for everyone and the same law is
administered by the same independent judiciary. Dicey is challenging the
creation of separate administrative courts. You cannot immune the executive
from the common-law courts of judiciary.
o Predominance of legal spirit - Law in motion, not only on paper. If the State
abridges the rights of the people, the courts must have the power to restore
those rights.

In the Indian Constitution, this value is reflected in Art. 14, 21, 13(3), 226, 32. In an Emergency,
the right to move the court for a violation of fundamental right is suspended. The right itself
is not suspended. Does that mean that the rule of law ceases to exist during Emergency (pre-
44th Amendment)? Since one cannot move the Court for the enforcement of Art. 14 and 21,
there is no rule of law. Justice Khanna dissented – Rule of law is not restricted to the
Constitution of India. Dicey’s definition of the rule of law is completely antagonistic to
administrative law.

 Classical Liberalism View - How does this affect our understanding of public law? [Law
which determines the relationship between state and individual; private law: law which
determines the relationship between individuals]. State is an evil entity as it is the only
entity that can legitimately use force against me- Max Weber- public law is the limitation
on the use of force by the state upon the individual. The constitution represents the
limitations on the power of the State
 Welfare State - But now, with the advent of a welfare state, public law includes not only
limitations of the state but also how much the state is enabled to do something- the state
must be enabled to perform certain functions required of it as a welfare state- this is
public law- a push towards governance and a pull towards limiting the abuse of power-
court tries to balance between the two. The Constitution both limits and enables it.

Formalist and Substantive Rule of Law - Former doesn’t talk about giving rights to people,
centrally. The idea of rule of law was made more substantive- they decided that the
rule of law must provide the person subject to such law some basic dignities/ rights.
Joseph Raz – Formal - After the WWII, the international congress of jurists sought to define
the rule of law. It is a system of law which provides basic human rights to an individual, there
should be an independent judiciary; values of dignity and human rights were also envisaged
as part of the rule of law. It cannot merely be a formal legality.
Per Dicey’s definition, even Nazi Germany had the rule of law. However, the laws were devoid
of basic human rights and dignity. (Hart-Fuller debate). Joseph Raz, being a Jew, came forward
and defended the rule of law in Nazi Germany. He defined it as prospective laws, which are
open, clear, stable, general, administered by an independent judiciary and they must be
consistent. If these qualities exist, there definitely is a rule of law. (Something akin to Fuller’s
inner morality). Rule of law has nothing to do with basic human rights. Morals and values are
Vatsala Khandelwal

irrelevant to the rule of law, if these formal characteristics are present to a certain degree or
extent. Perennial debate between the natural law school and the positivist school.
People who believed in substantial rule of law and not formal rule of law started questioning
the value of the rule of law, keeping in view the holocaust. Raz’s response was that the
function of the law is to guide a citizen’s actions. That doesn’t mean that the law must be
moral. Thus, law should be effective as a guide to human action and allow one to foresee
actions and liability attached.

ADM Jabalpur v. Shivkant Shukla

Right centric assessment of RL by the judiciary. Certain rights are sacrosanct and cannot be
taken away even by legislative action.
Facts: Maintenance of Internal Security Act. On 25th June, 1985, an Emergency was declared
under Art. 352. The State has the right of preventive detention. The bases for preventive
detention were – defence of India and foreign relations, maintenance of supplies and services
essential for the country and the security of state and public order. This provision was misused
by the police authorities to make political persons and put them under bars; there were large
scale preventive detentions. Art 359(1) – right to move the court suspended. Some courts
accepted the petitions with the argument that your right to life and liberty must be protected.
Others followed the black letter.
Supreme Court, five-judge bench – Chandrachud, Bhagwati, Khanna, A.N. Ray and
Hameedullah. The divergence of perspectives between Ray and Khanna. Petitioners’ claim is
that our right to life and liberty is not solely derived from Art. 21, it is also a statutory right as
well as a common law right; it is also a natural right. Khanna – dissenting opinion - It exists
even if the Constitution does not provide it so. Rule of law is something that is beyond the
constitution. He agrees that during emergency, national interests trump individual interests.
However, rule of law cannot be suspended during Emergency. Ray, however, opined that
there are no natural rights; citizens only enjoy the rights as envisaged in the Constitution. Art.
21 is the sole repository of right to life and liberty. Constitution itself is the rule of law. For
administrative expediency, rule of law may be suspended if it is by procedure established by
law.
44th Amendment was introduced which said that the right to move the court for the
enforcement of rights under Art. 20 and 21 cannot be suspended during Emergency. Case of
Maneka Gandhi – due process; procedure established by law.
Two lessons from the dissenting opinion in ADM:
1. Rule of law is not just equality before law/ judicial independence but is a substantive view
of Rule of Law and inclusive right to life and liberty.
2. Rule of Law is not limited to the constitution- even if something is barred- we have a right
to approach the court.
Vatsala Khandelwal

Ultra Vires Model and Rights-based Model of Judicial Review of Executive Action
For a formalist like Dicey, if an executive action is backed by legislation then it is alright.
Irrelevant if it’s taking away the rights of people. Dicey’s model of rule of law is the ultra vires
model of judicial review of executive action. Judges are only to be concerned with the
question of whether the executive has acted within legislative bounds.
Problem: this model will not help people claim compensation or rehabilitation from the
government. But, it is democratic.
The rights-based model of judicial review arises from the substantive concept of rule of law.
Even if there is legislative sanction, the executive cannot take rights away. The courts’
interpretations have substituted the law with what the law should be. Problem: it is
undemocratic. It tends to interfere with executive wisdom and effective governance.
Moreover, the courts will be flooded with case laws.
The trade-off is between upholding the constitution’s supremacy and going against the values
of parliamentary democracy.

Separation of Powers
- Prevents the concentration of power
- Allows for a system of checks and balances
- Absolute power corrupts absolutely
- Montesquieu’s theory was one of the first theories of Sop – then worked upon by Madison
acc. to whom SOP also involves check and balance mechanism b/w the three organs – it
is intrinsic to SOP. None of the organs should abuse structural advantages to undermine
the authority of the other.
- If no checks and balances, since executive is closer to the people it can manipulate people
and hence, assume a great amount of power.
o Montesquieu: Absolute power corrupts absolutely- all powers unto one individual
may lead the individual to act tyrannical.
Madison: separation of power requires that the powers of the three organs would be
separate and ensures checks and balances. These checks and balances are intrinsic to
separation of power and not a deviation from the same. The executive is much closer
to the people and if there is no check and balance, the E would enjoy more power and
manipulate the people.
In reality, there is an overlap. Separation of powers in India is blurred because we have a
strong judiciary. There is no complete separation of powers. Court can JR executive order;
Impeachment; Appointment of Judges. SOP therefore, not sacrosanct. It is therefore not such
a strong argument for going against the JR of an executive order.
Vatsala Khandelwal

Article 73 & 162 - The power of the executive to function extends to those areas where the
legislature has the power to legislate. The executive can function solely based on executive
orders and without a legal sanction from the parliament.

Ram Jawaya Kapur v. State of Punjab

The government started printing books on executive orders and private companies filed a
petition on grounds of violation of right to trade and profession as per Art 19(1)(g).
Held: If for every executive action the parliament needs to pass a law then it will become
impossible for the government to function. Art. 73 – separation of powers is not a very strong
ground for challenging executive action in India. Therefore, if the executive is operating in an
area in which the legislature can legislate, the executive is not overstepping. The separation
of powers doctrine is not violated and 73 is merely for functional expediency of the state.

American separation of power:

Field v. Clark
The congress comes up with a law on imposing import duties. In the same parent act, the
President is given the power to suspend the application of this act if he deems fit on certain
items if there is a reciprocal tax imposed on those items from the countries from which they
are being exported. The President cannot do so at any time he feels like it. So, when this
delegation was challenged in the US Fed SC: this is violation of separation of power and the
President cannot be allowed to decide the invocation and suspension of an Act. The executive
is being given the discretion to decide when to suspend the act.
FED COURT: Yes, we do have a strict separation of power. For governance, some power must
be given. There is a test of difference: The president can be given the power if the president
is not deciding the legislative policy. The president is only invoking the law or suspending the
law upon fulfilling the conditions laid by the legislation. The president’s duty is merely to
ascertain if the conditions exist.
The conditions which need to be fulfilled, cannot always be foreseen by the legislation in a
narrow manner. Dissent – Even if the parent act lays down sufficient principles.

Panama Refining Co. v. Ryan

There is a National Industrial Recovery Act – Sec. 9(c) – President can put restriction on
storage of petroleum from one state to another beyond the limitation given to him by the
state government. Quota is fixed by the state govt. and the president has the power to fine
them if they exceed limitation. President has the power to prohibit inter-state commerce of
oil and petroleum. But when can the president do it? There are no criteria based on which
the President can stop it. (This is a bad delegation: 1. Discretionary power given to the
Vatsala Khandelwal

President is wide- the only condition that it must be more than the state quota is a weak
condition because the quota is diff for diff states and 2. Oil companies are being discriminating
because there is nothing impending on the President to stop trade between two states and
not between the other two states).
Justice Cardozo - Dissenting opinion – There should be conditions provided by the law, but
they could be broad principles. It is assumed that the legislature cannot think of all the
conditions upon which the president can act. So, the legislation has ascertained certain
principles/legislative policies. That is enough condition for the President to act.

National Broadcasting Co. v. United States, 1943

Communications Act 1934 gives certain powers to a federal communications commission, not
the President. The FCC was to come up with rules and regulations in relation to chain
broadcasting for the purposes of public interest, convenience or necessity.
The Court went with the dissenting opinion of Panama Refining- even though pi, c and n are
broad terms giving more discretionary powers to the FCC to come up with the rules. But the
terms are to be read with the objective of the act- it is not only the conditions that matter but
also the objective [this is the same in Panama]. When the parent act mentions pi as one of
the conditions it is pi in relation to the available programs- so it is not as broad as it initially
seems.

Three principles that have arisen based on the 3 cases so far:

1. The law must have a clear legislative policy
2. To achieve the same, the power is given to the executive, but the same must
be restricted through conditions
3. Conditions may not be very specific or narrow- may be broad if it tallies with
achieving the purpose of the act.

There was a plethora of delegated legislations in the US during late 19th and 20th century
which created a ripple amongst constitutional jurists who said that the UK is increasingly
governed by the laws made by the executive and not only the parliament.
The Donoughemore Commission to see whether the delegation of legislative power to the
executive can be controlled. Recommendations of the Donoughemore Committee:
1. Classify essential legislative function.
2. Limit in the parent Act – Make it as fool-proof as possible to bind the administration
within the limits of the parent act.
3. Henry VIIIth Clauses to be removed – Henry VIIIth clauses gives the executive this power
if the executive thinks that the parent law conflicts with the rules that that are being
Vatsala Khandelwal

created / law is insufficient to achieve your sought objective, then you can modify the
parent act.
4. Intention of Legislature
5. Standing Committee

Yakus v. United States, 1944 (same thing)

Delegated Legislation
Excuse for the legislator (because the legislature is doing away with its responsibilities), shield
for the executive (as executive is enjoying powers it ordinarily shouldn’t have) and
provocation for the constitutional jurists (as what is the scope of DL is a perennial provocation
because on one hand there’s need for executive legislation but on the other there are
constitutional limitations).

 It violates separation of power. There would always be an ambiguity or a debate on the

scope of judicial review. The power of law making has been given to the legislature by the
people, not to the executive. The legislature cannot delegate something that has been
delegated to it (Delegatus Non-Potest Deligare). But, neither do we have parliamentary
sovereignty nor do we have a strict separation of powers. Judicial review is a part of the
basic structure.
 Art. 13 of Constitution – for judicial review, more than parliamentary laws are subject to
it.
o Usually, by-laws enable better functioning within a company/firm. Order can be in
the nature of a judicial order, or any other order. Order is a form by which rules
and regulations are promulgated. Can also be called notification. Rules are laws
made by the executive. Regulations – compliance measures.
The difference of what is an administrative law comes when the judiciary is trying to interpret
it. In the UK, there is no SOP because parliamentary sovereignty.

 The reasons for allowing the legislation to delegate – Convenience; expertise or

specialisation; Legislation cannot pre-empt the difficulties that the executive will face.
Necessity – when the executive needs to act fast in an emergency. Flexibility/Efficiency –
takes a lot of time for the parliament to pass a law. Secrecy/confidentiality – like
demonetisation.

Indian National Congress v Institute of Social Workers

Because of hartals and the ISW asked that names of parties be removed from the list-
delegitimize them to prevent them from participating in the elections. Here, the order passed
Vatsala Khandelwal

by the election commission would be a judicial order passed by the executive (election
commission). UNDER ART 13 ORDER MAY ALSO BE A JUDICIAL ORDER PASSED BY THE
EXECUTIVE.

In re: Delhi Laws Act

7 Judge Bench – There are three pieces of legislation – Section 7 of the Delhi Laws Act, 1912,
Section 2 of the Ajmer-Merwara Extension of Laws Act, 1950, Section 2 of Part C State Laws
Act, 1950.
First section says that the govt. of Delhi has the power to extend any law, prevalent in
any part of this country, into the province of Delhi, with such restrictions and
modifications. The next section is the same. The third is similar, but with slight
difference. Part C states are Union territories. Can extend any law prevalent in a Part
A state; the govt. of the Part C state can repeal or amend any law which is present in
a Part C state (made by the parliament).
Whether these laws are constitutionally permissible? Does the power to extend laws from
one territory to another be given to the executive? If yes, can it be done with restrictions and
modifications? Can the executive be given the power to repeal or amend an act made by the
legislature?
S.7 DLA S.2 AM S.2 Part C Repeal + Amend
CJ, Kania Not allowed Not allowed Not allowed Not allowed
Fazl Ali Allowed Allowed Allowed Allowed
P Shastri Allowed Allowed Allowed Allowed
Mahajan Not allowed Not allowed Not allowed Not allowed
Das Allowed Allowed Allowed Allowed
Mukherjee Allowed Allowed Allowed Not allowed
Bose Allowed Allowed Allowed Not allowed

By 5:2, we see that extension of laws by the executive is allowed, and while doing so
restrictions and modifications can be done. However, repeal and amendment cannot be done
by the executive because it is an essential legislative function. Modification is something
which is incidental to the act of extension; however, amending an act would be significantly
altering the Act.
Art. 73 and 162 were not argued in this case. These are the most important articles which say
that executive action can be done without legislative sanction. Probably because these article
cater to purely administrative actions and not legislative actions. In the absence of these
articles, there is no strict separation of power, because India follows the British system of
Parliamentary democracy. So the executive is a part of the legislature. The legislature, by
Vatsala Khandelwal

delegating power to the executive, is not creating a parallel legislation; only a subordinate
legislation. The reigns continue to be with the legislature. If the legislature abdicates its
powers, only then will it constitute excessive powers.
CJ Kania – Has to make a distinction between the present case and Queen v. Burra. He
accepted the fact that there is major distinction between the British parliamentary system
and the Indian one because of the constitutional limits and judicial restrictions that bind the
Indian parliament. It is proof that the parliament is not sovereign. So it cannot delegate its
powers. What we allowed in Queen v. Burra, was a conditional legislation and not a delegated
legislation. So that case cannot be cited. Even partial abandonment of law making power is
abdication. If one argues that as long as the legislation has the power to repeal, it can be
delegated, that makes legislative power frivolous because then anything and everything can
be delegated. Restrictions and modifications are incidental changes. One can change the law
incidentally when extending it from one state to another. But, what if the executive uses
modification in order to alter the purpose of the act? You are giving the executive a lot of
power to interpret and apply it as it deems fit.
Fazl Ali said that the Indian Parliament cannot be a delegatee of the electors because there is
no relationship of principal-agent. The fact that the Indian Parliament is under constitutional
limits, but there is no strict separation of power under the Constitution. Even a country that
has strict separation of powers, the US, allows legislative delegation. And we don’t have a
strict separation of power anyway. Governance is essential. You are saying that separation of
power clashes with delegation. But there is no separation of power. So where is the clash?
The test should be abdication of power.
But once you go for the abdication test, anything can be delegated.
Mukherjee - Closer to Kania. He concedes to all the assertions made by Fazal Ali that SOP and
DNPD cannot be strictly followed because of practical necessities of governance. Everything
is ok but still there is no parliamentary sovereignty in India and there are constitutional
limitations. Since JR is applicable to executive made laws as well, so what are these
constitutional limitations that you are talking about?
He says that to strike a balance between practicality and constitutional limitations, he says
that delegation can only be ancillary to make the laws made by legislature effective but
essential legislative function (ELF) cannot be delegated. He is making a distinction between
the essential legislative function and subordinate legislative function, thereby creating legal
fiction of ELF. Subordinate legislative function are the rule making functions that make the
legislative policy effective. ELF is to lay down the legislative policy itself.

Humdard Dawakhana v. UOI, 1960

The court went one step further than in re Delhi laws act and said that there is not enough
ELF means to lay down a leg policy and formally enacting the policy. Conditions and guidelines
need to be specific for the executive to act within the legislative policy. It must be ensured
that the executive cannot go beyond that.
Vatsala Khandelwal

Requirements of a Valid Legislation

 Legislative Policy (Broad & General)

 Delegated legislation must be ancillary to the policy
 Specific conditions/guidelines
 Guidelines may not always be specific, but depends on case to case (Nature and Object
of the Act)

Gwalior Rayon Silk Mfg Co v. Assistant Commissioner of Sales Tax, 1974

Section 8(2)(b) of the central tax act (now repealed) - Executive is given the power to levy
sales tax on goods other than declared goods. Parliament is fixing for interstate commerce of
certain unregistered goods, a min rate of taxation at 10%: yes, there is leg policy (power to fix
taxation for particular goods).

FLASHBACK ON: WHETHER TAX IS AN ESSENTIAL LEGISLATIVE FUNCTION?

Pandit Banarasi Das Bhanot v. State of Madhya Pradesh, 1958
The power given to the executive was to amend the schedule and include/exclude any good
for the tax to be levied under the Berar Sales Tax Act, 1947.
This is a function which is ancillary to the legislative policy. The executive’s function is filling
in the gaps of the legislature. (Obiter) The authorities are clear that it is not unconstitutional
of the legislature to leave it to the executive to determine details relating to the working of
taxation laws, such as the selection of persons on whom the tax is to be laid, the rates at
which it is to be charged in respect of different classes of goods and the like.

Corporation of Calcutta v Liberty Cinemas, 1965

Sarkar, J: S.548(2) of the Calcutta Municipal Act 1951 allowed the corporation of Calcutta to
charge a fee along with licenses to a Cinema Halls at a rate which it may fix from time to time.

 The fee is a tax because it is being charged without any specified service in return.
[Because the distinguishing factor of a fee is the idea of quid pro quo] Delegation of
ELF is bad, But Pandit Banarasi Das suggests that fixing of a rate of tax is not ELF.

 Banarasi Das was not concerned with fixation of rates of taxes; it was a case where
the issue was on what subject matter and therefore on what persons the tax could be
imposed. Between the two we are unable to distinguish in principle as to which is of
the essence of legislation, if the power to decide who is to pay the tax is not an
essential part of legislation neither would the power to decide the rate of tax be so.

 “No doubt when the power to fix rates of taxes is left to another body, the legislature
must provide guidance for such fixation. The question then is, was such guidance
Vatsala Khandelwal

provided in the Act ? We first wish to observe that the validity of the guidance cannot
be tested by a rigid uniform rule; that must depend on the object of the Act giving
power to fix the rate. It is said that the delegation of power to fix rates of taxes
authorized for meeting the needs of the delegate to be valid, must provide the
maximum rate that can be fixed, or lay down rules indicating that maximum. We are
unable to see how the specification of the maximum rate supplies any guidance as to
how the amount of the tax which no doubt has to be below the maximum, is to be
fixed. Provision for such maximum only sets out a limit of the rate to be imposed and
a limit is only a limit and not a guidance.”

 There needs to be sufficient guidance in giving such power. [Hamdard had required
this guidance to be narrowly tailored]. There cannot be uniform rule to determine
what constitutes sufficient guidance, has to be decided on a case to case basis.
Presently, the purpose of the act is sufficient guidance – to allow the municipal
corporation to collect revenue in order to meet various expenditure, which it incurs in
producing various services. That need of the revenue changes from time to time
according to different situations. So, the discretion to fix the rate of tax has been given
to the Calcutta Corporation. To meet the needs is sufficient guidance. There is no
requirement of mention of min or max rate of tax for the power of taxation but a
requirement of guidance of how to levy it. The discretionary power given to the E has
to be based on a condition but this condition does not have to be strict (stripped of
Hamdard Case ruling of requiring a strict or narrowly tailored condition). The purpose
of the act is sufficient guidance. Calcutta Corporation does not overrule Hamdard
requirement of guidance is recognized in both cases but the concept of what
constitutes sufficient guidance has been changed to the idea that this needs to be
decided on a case to case basis. Due to this idea of case to case, there is great lack of
uniformity even when the case facts are similar. This is what Dicey had feared- the
issue of rule of law- law not the same for everybody. In order to fulfill the purpose of
the act, certain discretion is to be given to the Executive.

 Concluding points from this case: 1. Fixation of taxation is not an ELF. 2. The conditions
given to the E need not be specific- has to be determined on a case to case basis. 3.
on the basis of the nature and purpose of the legislative act.
[more flexibility is given]
“No tax to be levied unless under the authority of law”Law can also be law made by the E
and not merely that made by the Parl. Then the question is: what is the purpose of Art 265?
There has to be general policy under which the E may make laws. Exception to Articles 72 and
162 executive can act without the sanction of the Parl (Ram Sahib Ram Jawaya Kapur)
there has to be a parent act, whether you fix the rate or you determine who is to be taxed
and who is not to be taxed.
Art 265 gives us the impression that fixation of tax is an ELF but going back Pandit Banarsi
and Corporation of Calcutta, we find that taxation is not an ELF
Vatsala Khandelwal

The Purpose of the Act is to allow the Municipal Corporation to collect revenue in order to
meet various expenditure which it incurs in producing various services. That need of revenue
changes from time to time according to different situations. So, the discretion to fix the rate
of tax has been given to the Calcutta Corporation. To meet the needs is sufficient guidance.
Under Art. 265, when you say tax can only be levied under authority of law, that law can also
be made law made by the executive.
1. Fixation of rate of tax is not an essential legislative function
2. The conditions given to the executive need not be specific. Has to be determined on a
case-to-case basis based on the object and nature of the Act

Creation of legislative policy ELF (In re delhi: policy can be broad or general)

Repeal and amendment of existing laws ELF (In re delhi)

Taxation: initially thought to be ELF (Art 265) but found to be not an ELF (Pandit Banarasi
and Corporation of Calcutta)

Restrictions and modifications; Extension not ELF (In re Delhi)

Power to give decide who can be included or excluded from existing tax schme- supplying
details/ inclusion/exclusion not ELF (Pandit Banarasi)
Tax after the Gwalior case is not an ELF.

Rules of valid delegation till Calcutta corporation

1. There has to be a clear legislative policy
2. The executive is to be made to work within this legislative policty by way of sufficient
conditions and guidelines (Humdard) there should not be too much consideration
3. Specific and narrowly tailored conditions as per Humdard this was changed to general
and not strict sufficient guidelines to be seen on a case to case basis + purpose of the
act is enough guidance by Corporation of Calcutta v Liberty Cinema

Devi Das Gopala Krishnan v State of Punjab, 1967

Purpose of the act: To fix a scheme for sales tax; to make the act foolproof- minimize
sales tax evasion. East Punjab general sales tax act (46 of 1948) Section 5: subject to
the provision s of this act there shall be levied on the taxable turnover every year of a
dealer a tax at such rates as the Provisional Govt may by notification direct. East Punjab
General Sales Tax (second Amendment) Act 1952 (Act No. 19 of 1952). Section 2.
Amendment of Section 5 of Punjab Act 46 of 1948: In sub-section (1) of section 5 after
the word rates the following words shall be inserted and shall be deemed always to
Vatsala Khandelwal

have been so inserted, namely ‘not exceeding two piece in a rupee’ (A max limit was
provided)
Subba Rao:
 If this decision (Calcutta corporation) is an authority for the position that the
legislature can delegate is power to a statutory authority to levy taxes and fix
the rates in regard thereto, it is equally an authority of the position that the said
statue to be valid must give a guidance to the said authority for fixing the said
rates and that guidance cannot be judged by stereotyped rules but would
depend upon the provisions of a particular act.
 But we cannot go further and hold, as the learned counsel for the respondents
asked us to do, that whenever a statute define-, the purpose or purposes for
which a statutory authority constituted and empowers it to levy a tax that
statute necessarily contains a guidance to fix the rates it depends upon the
provisions of each statute.
 Q: Are there sufficient guidelines in original Section?
 In this case as well as Calcutta Corporation executive given the power to
determine rate of tax. So, yes.
 Q: So then why is there a need for an amendment where there is a specific
condition that is given?
 Court: It went back to Hamdard Dawakhana. Area of discretion must be
sufficiently conditioned.

In this case, in unamended section 5, there are no conditions on which taxes are to be
fixed this is invalid delegation. The amended section 5 is a valid delegation. (in this
sense, we go back to Humdard)
Higher responsibility on the L to control the area of discretion of the E. There is no
longer a clear difference between an ELF and not ELF.
Confusing medley of precedents

Rules for valid delegation, in the case of non ELF, as on date

1. Legislative policy must be laid which may be broad or general. Executive’s
function is ancillary to the L’s to effectively implement legislative policy.
Vatsala Khandelwal

2. Executive must be made to work within the legislative policy by providing for
conditions and guidelines
3. The guidelines need not be always strict. What amounts as sufficient guidelines
depends on eh nature and object of the act.

Harishankar Bagla v. State of Madhya Pradesh, 1954

• S. 3. (1) The Central Government, so far as it appears to it to be necessary or expedient
for maintaining or increasing supplies of any essential commodity, or for securing their
equitable distribution and availability at fair prices, may by order provide for
regulating or prohibiting the production, supply and distribution thereof and trade
and commerce therein (2) Without prejudice to the generality of the powers
conferred by sub-section (1), an order made thereunder may provide-
• (a) For regulating by licenses, permits or otherwise the production or manufacture of
any essential commodity;
• (d) For regulating by licenses, permits or otherwise the storage, transport,
distribution, disposal, acquisition, use or consumption of any essential commodity;
• Section 6 runs thus:
• "6. Any order made under section 3 shall have effect notwithstanding anything
inconsistent
• There with contained in any enactment other than this Act or any instrument having
effect by virtue of any enactment other than this Act."

Following the judgment in the case of Re Delhi Laws Act, is this a valid delegation? Court said
that this is not a repeal. The law still exists, the executive just gets to bypass.
Mukherjee: Section 6 does not repeal any law i.e., does not remove any law from statute book
or abrogate them, it just allows the executive to by-pass an existing law. The old laws exist
with the order at the same time. Even if it is repeal it is done by S.6 and not by the executive
order.

Essential Legislative Functions Non-Essential Legislative Functions

 Legislative Policy  Conditional Legislation
 Repeal/Amend Laws  Extension of laws
 Taxation (?)  Restrictions and modifications
 Defining offence/prescribing  Supplying details, inclusion,
punishment exclusion
 Henry VIIIth clause

Raj Narain Singh v. Chairman, Patna Administration

Vatsala Khandelwal

Bose, J.:-
• S.3 (1) (f) of the Patna Administration Act
• empowers the delegated authority to pick any section it chooses out of the Bihar and
Orissa Municipal Act of 1922 and extend it to "Patna"
• empowers the Local Government (and later the Governor) to apply it with such
"restrictions and modifications" as it thinks fit.
• Picking up one section from an act amounts to Modification.
• The Parent Act allows Modification of even that part.
• Just as the whole act cannot be modified to bring an essential alteration in the act or
change the legislative policy, the same rule applies in case of a part of it.
• It follows that when a section of an Act is selected for application, whether it is
modified or not, it must be done so as not to effect any change of policy, or any
essential change in the Act regarded as a whole. Subject to that limitation we hold
that section 3(1)(f) is intra vires.
Court ruled that this is a power of modification, not amendment.
Amendment: can change the legislative policy. Modification: an incidental change
Q. After making modifications, I make further modifications 2 years later. Is this possible?

Lachmi Narain v. UOI, 1976

S.2 of the Union Territories (Laws) Act, 1950 – allows central govt. to extend state legislations
to Delhi. Extending Bengal Finance Sales Tax Act to Delhi. Certain modifications made. Goods
exempted under the application of sales tax under a schedule as per sec 6. Notification of
three months to amend the schedule. In 1957, the Central govt. changed section 6 – 3 months’
notice period was reduced to such previous notice as it considered reasonable.
Argument – Power to modify this Act came with extension. Modification could have taken
place at the time that the Act was being extended and not now, at a later point. The power
to make subsequent modification should be specifically provided for in the parent act.
Henry VIIIth clause in the Parent Act – Removal of difficulties clause – A Henry VIII clause is a
clause of an Act of Parliament which enables the Act to be expressly or impliedly amended by
subordinate legislation or Executive action.

Jalan Trading Co. v. Mill Mazdoor Union, 1967

S. 37(1) of the Payment of Bonus Act empowers the central govt. by order to make provision,
not inconsistent with the purpose of the Act, for removal of difficulties or doubts in giving
effect to the provisions of the Act. Five judge bench.
Vatsala Khandelwal

Shah, Wanchoo and Sikri – Delegation not permissible. The section authorizes the govt. to
determine the purposes of the Act and make provisions for removal of doubts or difficulties.
It is for the legislature to remove that doubt or difficulty. Power to remove the doubt or
difficulty by altering the provisions of the Act would in substance amount to exercise of
legislative authority and that cannot be delegated to an executive authority.
Hidayatullah – Not excessive delegation. The Parent Act says that you cannot tamper with
the PA to subvert its purpose. So the executive can modify but not amend it. If the executive
comes up with a rule and the subsequent modification in the PA has not been made, people
will challenge the rule made by the executive saying that the executive has exceeded its
scope under the PA. The power to pass an order of this character cannot be used to add to
or deduct from that which the Act provides. The order only makes smooth the working of
the Act particularly in its initial stages. This power is given to the Central Government so
that litigation may not ensue as the policy of Act is to avoid litigation.

Gammon India Ltd. v. UOI, 1974

Section 34 of The Contract Labour (Regulation and Abolition) Act, 1970. Did not overrule Jalan
Trading Case. In the previous case power was given to the executive to make changes.
However, the powers given under the two sections are more or less the same. It does not
replace Jalan Case. Henry VIII clauses are allowed in India as long as it does not subvert the
legislative policy. Non-essential Legislative function.

D.N. Ghosh v. Additional Sessions Judge, 1959

Coal Mines Provident Fund & Bonus Schemes Act – Penalty and declaring an offence. Yes, as
long as the legislative policy is not being violated. The executive can decide what it wants to
see as a criminal offence. The executive may not want to see the violation of all rules as a
criminal offence.

Control and Safeguards against Delegated Legislation

There are two ways by which the laws made by the executive can be controlled
1. Parliamentary Control – Whenever a rule is made by the executive, it must be
presented to the parliament in some form or the other. Must have parliamentary
sanction. By laying or by the scrutiny committee.
Laying in the parliament: Simple laying; laying with immediate effect but
subject to annulment; laying subject to resolution.
Vatsala Khandelwal

The parent act may provide that the executive may make rules and those rules
may simply be laid on the parliament – this means that the parliament is taking
cognizance of it.
The second form means that the executive may make rules and it may come
into effect immediately without putting it forth to the parliament first,
however, the parliament can annul it later.
The last means that the rules made by the executive does not become law until
the parliament does not pass it.
Suppose the parent act prescribes laying and it is not laid, do the rules become
invalid? In the first case, there is a confusion about this because what the court
should consider is whether it is directory or mandatory when it comes to
simple laying. If it is directory, then it becomes law immediately; if it is
mandatory then they need to wait for the parliament to sanction it.
Scrutiny Committee  Committee on Subordinate Legislation – Duty to scrutinise
subordinate legislations and make recommendations to the parliament accordingly.
Comprises of 15 members

2. Judiciary Control – Grounds of challenging executive made laws in the court of law.
Doctrine of Ultra Vires – where the delegated legislation is beyond the scope of the
legislative power given to it by the parliament/parent act.
It could be substantive or procedural. The former means that the executive was given
the power to make laws on a certain subject but it has made laws on a different
subject. The latter is a situation where the executive was bound by procedures while
making the laws, but they have failed to do so.

Procedure is of two types: publication and consultation. Publication means that the
executive was supposed to publish the rules in a certain manner and they have failed
to do so. Consultation is where the executive was supposed to consult certain people
before making the rules and they haven’t done so.
Publication is again of two types: antecedent and post-natal.
Antecedent rules – that the executive must publish rules before finalising them to
invite recommendations and suggestions from the people and then later finalise the
rule.
Post-Natal publication – the executive makes the rules first and then publish in a
manner that the parent act asks you to. Whether the executive will comply with the
antecedent rules is a matter of the prescription as per the parent act. But post-natal
publication is mandatory.
There is a question of compliance and non-compliance when it comes to procedural
ultra vires. The executive cannot comply verbatim, or the purpose of the publication
is frustrated by absolute compliance of the procedure. Hence, you do a substantive
compliance of the procedure.

Atlas Cycles v. State of Haryana, 1979

Vatsala Khandelwal

Sec. 3(6) of the Essential Commodities Act, 1955 ordains every order made under this section
to be laid before both houses of the parliament as soon as may be, after is made. Notification
fixes the Max selling price of Iron and Steel but not laid before the Parliament. A person is
prosecuted for having sold it at a higher price. Challenges it on the grounds that the
notification had not become law because it was not passed in the Parliament. The
presumption is in favour of validity of the rules (directory simple laying). Whether the rule is
directory or mandatory depends upon the nature and the object of the Act. Extent of violation
may take place of an individual’s right as an effect of the rule then it is mandatory.

Dwarka Nath v. Municipal Corporation of Delhi, 1971

S. 23(1) of the Prevention of Food Adulteration Act, 1954 – Power to the central govt. to make
rules on the packaging and labelling of the product so that the consumer is not misled as to
the character, quality or quantity of the product.
Rule 32 – contents of label – batch/code no. in Hindi or English
numerical/alphabets/combination. Mohan ghee company is challenging that rule 32 is
beyond the scope of the legislative power.
Court – The purpose within section 23 is very clear, which is to ensure that the public is not
deceived. Rule 32 is not within the scope because the batch no. or code no. does not help the
purchaser to assess the quality or the quantity or even the characteristics of the food product.

V. Sudeer v. Bar Council of India, 1999

S. 24 of the Advocates Act, 1961 – subject to the sections and rules under this act, certain
people are ineligible to take the bar examination – basic criteria for anyone to practice law in
India. S 49 – general rule making power to the BCI. BCI says that they are empowered to make
rules under the two sections and therefore they came up with the BCI rules of 1995, through
which it introduced a one-year pre-enrolment training after graduation. After being certified,
you can enrol yourself in a bar. This is being challenged on the grounds of violation of right to
freedom of trade and profession and the BCI is forcing me into the pre-enrolment training,
which it does not have the power to do.
Court – Section 24 is for a specific purpose; so whatever rules are made thereunder are to
determine which people are qualified/eligible. To add an additional criterion for eligibility is
beyond the scope of the legislative power which has been given to it.

Harla v. State of Rajasathan

Jaipur Opium Act – Rules relating to the sale of the opium has to mandatorily be published in
the Official Gazette. The rules were made by the council but not published. A person was
prosecuted for transporting a certain amount of opium. Challenged prosecution on the
ground of procedural ultra vires. If the parent Act does not provide you with the direction,
Vatsala Khandelwal

you still have to mandatorily do a post-natal publication in the Official Gazette. The executive
does not have to do anything else unless the parent act specifically asks otherwise.

Raja Buland Sugar Co. v. Municipality of Rampur

S. 94 – Whenever the Municipal Board is taking a resolution, it must be published in the local
newspaper in Hindi or in whichever language as the state government may decide. Here, the
publication was made in an Urdu newspaper. They argued that there was substantive
compliance of the procedure. Court – there are two requirements, publishing it in a
newspaper and publishing it in Hindi. The first is mandatory and the second is directory. The
object behind the procedure becomes important to determine if it is mandatory or directory.
Purpose is being better served by publishing it in an Urdu newspaper. Urdu is predominant.

Govindlal v. Agricultural Produce Market, 1976

There was an Agricultural Produce Act – designating certain places as the market place of
agricultural produce and to fix prices. The procedural requirement is that once you have
designated a place, you must publish it in a local Gujarati newspaper. A person was booked
for selling ginger in the market place without a license. He challenged the rule saying that the
notification publishing this as a market place was not published in a local Gujarati newspaper.
In this case, the publication is a Gujarati newspaper is a mandatory provision and not
directory. There is no substantive compliance.

Retrospective Application for Delegated Legislation

1. Must be expressly or impliedly mentioned in the Parent Act
2. Rational Nexus
3. No vested or accrued right can be taken away
4. New rights can be given; even a class can be created to give new rights.
5. Unreasonablity/Arbitrariness
In India, there is no separate ground for unreasonablilty or arbitrariness because of
the presence of Article 14 and 19 (reasonable restrictions) of the Constitution.
Kruse v. Johnson, 1898, UK – Lord Russel:
 Partial or unequal application of law
 Manifestly unjust
 Mala-fide
 Oppressive interference with rights that no justification can be found in a
reasonable mind
Vatsala Khandelwal

State of MP v. Tikamdas, 1975

Krishna Iyer J.: On or before the date of publication in the Official Gazette. Parent Act
impliedly allowed retrospective application.

B.S. Yadav v. State of Haryana, 1981

The Governor of Punjab was making rules for the service of Judicial Officer. In this case, it was
the Governor’s power of law making under Article 309 of the Constitution. Rule 12 was
amended on 31 December, 1976 and was retrospectively applied from April, 1976. The
condition of seniority for Judges was changed from dates of confirmation to the period of
continuous service. The government will be in the position to justify why they want the law
to apply retrospectively. There was no rational nexus between the objective and purpose of
the Act, and the date from which it is to be applicable.

Miss Raj Soni v. Air Officer In-charge, 1990

Appointed as government school teacher, governed under the Delhi Education Code.
Retirement age was fixed at 60 yrs. Delhi Education Act, 1973  Delhi education Rules set it
at 58 yrs. Court – This was not allowed because when she joined, she had a vested right to
work until 60 yrs of age. Vested/accrued right cannot be taken away.

Union of India v. V.D. Dubey, 2009

Respondent got recruited in 1958 – there was no rule on superannuation (pension). Rule
2423-A introduced in 1976: those who retire after 31 st March, 1960, are entitled to
superannuation. Later the rule was amended: superannuated benefits are available only to
those whose recruitment rules provide for it. Court – Your vested rights can’t be taken away.
You can’t first give a right then take it away. But new rights can be given for a new class so
created.

Indian Council of Legal Aid v. BCI, 1995

Rule 9 of BCI stated that those who have attained the age of 45 years on the date of
application for enrolment is barred from getting enrolled. Reason: They have already spent
their golden years investing in a different occupation. The standard of the Bar will go down
by allowing such people to enrol. Violative of Article 14 and 19(1)(g) – there is no
reasonability. In India, unreasonability is not invoked as a separate ground, but within the
ambit of article 14 and 19.
Vatsala Khandelwal

Principles of Natural Justice

The standard of judicial review differs.

Legislative Functions of the Purely Administrative Quasi-Judicial Functions of

Admin Functions the Admin
Principles of natural justice not PNJ – required. PNJ – required PNJ – required
necessary.
No Lis/Quasi-lis Lis/Quasi-lis
Published in a local gazette No publication
Validated by parent Act Not required Not required Validation required
Not required Reasoned order

Both, the judicial function and the legislative function of the administration must be validated
by the Parent Act.
Lis – A legal dispute between two independent parties, decided by a third, neutral party.
Quasi-lis – A judicial function performed by the administrative. (Complaining to the
administrative and being decided by the administrative – breach of discipline; sexual
harassment case within campus).
Lis/Quasi-lis not required in purely administrative functions.

Indian National Congress v. Institution of Social Workers

In Kerala, the political parties have been calling for bandhs, which causes destruction of
property, blah blah. Court – Bandhs are unconstitutional because it forcibly prevents people
from enjoying their right to life and liberty. But, hartals are constitutional because they don’t
force other people to be involved and causes minimal disruption.
These parties started calling for bandhs in the name of hartals. This caused a massive amount
of destruction. The Institution of Social Workers wanted the Election Commission to de-
register the political parties. EC said that they don’t have the express power to do so. Matter
went to the High Court. Moreover, there is already an SC judgement saying that there is no
power to de-register. High Court – That is not a valid precedent because it was summarily
decided and the Court did not go into the merits of the case. The power to register includes
the power to de-register.
Claims: Appellant claims that this is a judicial function and it must be expressly provided for.
Respondent says that it is purely an administrative function because there is no lis/quasi-lis.
Supreme Court – This is after all a judicial function because there is a duty of acting judicially.
Even in the absence of a lis/quasi-lis, where the administrative body is doing something in the
nature of an inquiry, looking into the facts and circumstances and then determining the rights
Vatsala Khandelwal

and liabilities of a certain class of people, it is a judicial function. The power to de-register
should be expressly given, otherwise it cannot be performed. Therefore:
1. Administration performs quasi-judicial, legislative and purely administrative rules.
2. The difference is thin, and the criteria for the difference is not sacrosanct.

 The functions of the Executive cannot be categorised into water-tight compartments.

 The distinction based on lis/quasi lis did not hold in the case of INC v. Institution of
Social Workers.
 Since it is difficult to separate purely administrative functions from judicial functions
of the executive, PNJ must be applied in purely administrative functions as well.
 For example, if it is an interview of a candidate/acceptance of tender, it is a purely
administrative function, PNJ must be complied with. PNJ demands that my
grandfather isn't conducting my interview or that the party whose tender is being
accepted does not hold shares in the company.
 Initially, it was not so. Application of PNJ was limited to judicial functions of
administration - trial for sexual harassment and stuff. Since 1964, PNJ started to be
applied on purely administrative functions as well.

Landmark Judgement in the House of Lords:

Bridge v. Baldwin
Committee in a County deciding upon the eligibility of a police officer. They had the power to
suspend the police officer, if found guilty of negligence or incompetence.
The Chief Constable had a conspiracy case going on against him the common-law court. The
court acquitted him, but observed negligence in his performance of duty. Based on the
observation made by the Court, this Committee suspended him w/o a show cause notice or
giving them a chance to present their case as to why they should not be suspended.
They moved the common-law court and the court said that this is a purely administrative
function and we will not interfere.
Court of appeals ruled the same.
House of Lords said that even though it is purely an administrative function, it cannot deny
people procedural fairness or 'FairPlay in action'. Other side must be heard. The concept of
procedural fairness or a kind of due process gave rise to the practice of application of PNJ on
administrative functions. Changed the applicability of PNJ on quasi-judicial functions and
purely administrative functions.

 Judicial review of administrative functions has become more right-centric ever since
this case.
Vatsala Khandelwal

 From the perspective of the executive, (obvious case of disciplinary breach) you may
say that this is a redundant formality.
 But, from the perspective of rights, since so many extraordinary powers have been
given to you, which you wouldn't ordinarily perform, you should perform them in a
way that PNJ is complied with. Power is given for speedy redressal.
 Must be done in the way that it would have been done in an ordinary court of law.

Principles of Natural Justice has two limbs:

1. Nemo Judex in Causa Sua (nobody can be the judge in his own cause) - Admin cannot be
biased.
2. Audi Alteram Partem - Hear the other side. To better judge the merits of the case.

In India, PNJ started applying much before Bridge v. Baldwin.

State of Orissa v. Dr. Binapani

This doctor was serving in the Orissa State Health Department (govt. job). To fix her pension,
the authorities needed her date of birth. Problem was that she submitted four different dates
of birth in four different places. The govt. could not fix a date for determining her
superannuated function. The authorities - Mitra Commission - after enquiry fixed a date of
birth. She was not happy with that date of birth, because she wasn't getting enough pension
through that. She moved the court saying that she wasn't given a chance to present before
the commission what she thought should be the date of birth. Court struck down the decision
of the Commission because there was denial of audi alteram partem even though it was a
purely administrative function.

A.K. Kraipak v.UOI

PNJ applied for the first time? No. In the above case. But strangely, the above case was never
cited in this case.
There was a man who was a Chief Conservator of Forest. By virtue of that, he was also one of
the panellists in the Indian Forest Service. He was also one of the applicants for the Indian
Forest Service. He was involved in the entire process. An aspirant as well as a panellist. He
interviews everybody and when his turn came, he just moved from the seat of the interviewer
to the interviewee. Obviously, he was selected.
All others moved the court and tried to complain that this was not an administrative function;
it was judicial. (Because if you omit Binapani, PNJ can only be applied on judicial functions).
Vatsala Khandelwal

Court suo moto invoked the precedent of Binapani because otherwise the judgement would
have been per incurium. Invoked the principle of nemo judex in causa sua. It is a quasi-judicial
function.
Whether you have acted under bias, is not the issue. Whether there is reasonable ground
to believe that you have acted under bias, is to be determined.
Therefore, even in purely administrative functions, PNJ is to be applied.

Scope of applicability of the two limbs of PNJ are different:

1. Nemo Judex in Causa Sua - There can be personal bias - hostility or favouritism.
 Pecuniary Bias – Conflict of interest in terms of a monetary aspect.
Example - J. Mohapatra v. State of Orissa - Flood affected areas were to be rebuilt. School
system was being rebuilt. Board was given the power to select textbooks for the school
curriculum. Some publishers challenged their decision, because some publishers had their
textbooks on the list while being on the Board. Therefore, pecuniary bias. The Court vitiated
the decision on that ground.
(In the R.C. Cooper case, a large number of judges had refused to sit on the bench because
they held shares in the bank - possibility of pecuniary bias - until there was an undertaking,
consenting to their judgeship.)
 Personal Bias -
- Judge-witness-prosecutor combination - I am the judge, I am the witness and I am the
prosecutor. (Victim of sexual harassment also the head of the Gender Sensitisation
Committee, so would declare herself as judge, also spear-heading the charges against
you, and obviously is the prime witness).
- Judge-witness combination - I am deciding the case and I am also the witness against
you.
- Judge-prosecutor combination - I am the person bringing the charge and I am the
judge.
- Personal Friendship
- Personal Relationship
- Personal Hostility

 Official Bias –
A decision which has already been taken, not against an individual, but based on a bias
towards a particular policy of the administration. Being pre-disposed to a policy decisions.
Complaints, grievances, suggestions and recommendations are being solicited, but the ones
who made the policy are the ones who receive the complaints. (Example - the punch-in and
punch-out rule for professors. No matter how logical the proposals, nothing is done because
they like the policy). It has been accepted in Indian courts as a ground for judicial review of
administrative actions. So it is blurry. We don't know if it is a ground.
Vatsala Khandelwal

Maneklal v. Premchand
Dr. Premchand filed a case against Maneklal, who was an advocate at the HC. BCI constituted
an enquiry commission, headed by a senior lawyer. Maneklal, claimed that the chairman and
Premchand had a previous professional relationship, on account of having had represented
Premchand. It was vitiated on that ground. Does not matter how intimate the relationship is.
Mere acquaintance is sufficient to vitiate it for prevention of bias. There should be reasonable
ground to believe that there can be bias.
Example - If I am being interviewed for a job, my college seniors cannot conduct such
interview even if I may not have interacted with them at all. Their interviewing me
would vitiate the entire procedure.

State of UP v. Md. Nooh

(Judge-witness combination)
There was a police training camp to be held in Allahabad. To qualify for the camp, the police
constables must qualify certain exams. The certificate of this camp would help in future
promotions, so everybody wants it. Md. Nooh passed all tests but failed in Hindi. So, he was
not eligible for the camp. He was a constable in Fatehpur. Those selected from Fatehpur, were
on a list which had been sent to Allahabad. Later Allahabad receives a letter from Fatehpur
saying that Md. Nooh has been selected, make arrangements accordingly. Obvious case of
forgery because they checked the list and saw that he had failed.
Enquiry Commission formed - the DSP was part of that Commission. The DSP went to that
police station and casually chatted with the constables and one of them admitted that, Md.
Nooh has forged the letter with an accomplice - a typist and one other person. The DSP asked
him to testify before the Court.
At the Court, he said he knows nothing so the DSP became the witness and narrated the
incident. He was also on the Commission and therefore a judge.
Court - Still ruled against Nooh, because this enquiry was of 1948 when the Constitution had
not come into being. So, no PNJ was to be applied on this. PNJ only for judicial functions.

Gullapalli Nageshwar Rao v. Andhra Pradesh State Road Transport Corp. - Gullapalli 1
(Official Bias)

The govt. of AP, transport dept., wanted to nationalise the bus service. Only govt. buses would
function. Because this person Gullapalli was running bus syndicates, was maintaining a
monopoly and charging exorbitant amounts of fee. His business was obviously hit. In order to
nationalise the bus service, the transport secretary came up with some draft rules on how
this would function and published this on the Official Gazette. There were comments and
Vatsala Khandelwal

suggestions made on the draft rules. The transport secretary himself views the
recommendations so he rejected them and finalised the draft rules. Claim - there was official
bias. Ideally, the same person should not be entertaining the grievances after having made
the policy. The SC affirmed that there is official bias and the rules were vitiated.
But the government still wants to nationalise the bus services.

Gullapalli Nageshwar Rao v. Andhra Pradesh State Road Transport Corp. - Gullapalli 2
The Transport Ministry asked the transport secretary and he again made draft rules. This time
the recommendations and complaints were sought from the Chief Minister, who was also the
Transport Minister.
Court - There is a distinction between the Transport Minister and the secretary. Secretary
made the rules and the Minister was receiving the complaints. No official bias.
Artificial differentiation. But, why? They wanted to maintain official bias as a ground for
judicial review of administrative activities without creating administrative roadblocks. Official
bias is a problematic ground because in any way, the administration will have a bias toward
the rules and somebody within the same department would receive the complaints and
grievances. Wouldn’t that imply that all decisions can be vitiated on that ground? It will create
administrative roadblocks. The court made a shaky differentiation between Gullapalli 1 & 2.
How can one isolate the transport minister and secretary from the ministry? This distinction
does not cure the problem of official bias. The minister and the secretary ae equally capable
of being officially biased.

 But, if official bias is that problematic, why didn’t the court overrule it? What is the utility
of it?
In this case, the power gradient between the transport secretary and the minister is not
much. They are at very high levels. But, if this happens at a low level, then there is little
chance of official bias. If somebody at a high post is receiving suggestions, then there is a
possibility of the rules changing. Additionally, there is utility in relation to upholding
individual rights. There can be a post-decisional hearing. After taking an action towards a
person, an interim disciplinary action of sorts, there is a chance of hearing given. The
admin thinks that I have committed a disciplinary breach and they are already biased
towards that decision, without going into the merits of the case.
But, the court could have done both if the doctrine of necessity would have been a valid legal
doctrine at the time (1959). This common-law doctrine says that nemo judex causa sua can
be circumvented if it is absolutely necessary to do so. It is an exception on the ground that
there is no alternative. It is crucial that somebody from the Transport Ministry must consider
the complaints because only they have the expertise and the experience. Even if it is in non-
compliance with PNJ, the administrative action must be allowed.
Vatsala Khandelwal

 After the advent of the doctrine of necessity, is official bias still a valid ground for
judicial review? Legally, yes. It is still a ground. But the doctrine makes it
redundant.
 What constitutes necessity? For example, in the case of A.K. Kraipak, there was a classic
case of nemo judex in causa sua. What if they claim that the panellist was required to be
there as per the statute? Had they not let him conduct the interview, it would have been
a case of ultra vires. Does statutory requirement constitute necessity?

Tata Cellular v. UOI

There is a call for tender for telecommunication services in Calcutta. Many companies
submit their tenders. Director-general of the telecommunication department, must
be on the panel that selects the tender. One of the persons who submitted the
tenders, was the son of the Director General. Obviously, the son got selected.
The other companies made a claim of personal bias. But, they responded by saying
that the parent Act itself mandated the Director General to be on the panel, so it is a
necessity on the ground of being a statutory requirement. It would have been ultra
vires.
Court – The person belonging to a certain position is by virtue of their expertise and
experience. If the person can be replaced/substituted by another having similar
expertise or experience, and they can serve the purpose of the statue substantially,
then this conflict of interest can be vitiated by such substitution. Statutory
requirement alone cannot constitute necessity; it must be backed by non-availability
of alternatives. There must be absolute necessity. Substantial compliance with any
procedure requires substantial compliance with the purpose of the Act.

Election Commission v. Subramanium Swamy

S. Swamy levelled a complaint to the Governor of Tamil Nadu for the disqualification
of Jayalalitha from contesting. There are certain grounds mentioned under Art. 191 of
the Constitution. He alleged that those grounds were satisfied and the governor must
disqualify her under Art. 193. While the Governor takes the decision of
disqualification, he must act on the advice of the Election Commission. This advice is
binding on the Governor. T.N. Seshan was a close friend of S. Swamy.
So Jayaliltha moved the HC and finally the SC on the ground that the enquiry
commission and the election commission is headed by the man who is closely
associated with the person who brings the allegations. S. Swamy says that there are 3
Commissioners who would operate. The Chief Election Commissioner is only the first
among equals. Any advice would have the signatures of all other Commissioners. The
composition of the Election Commission has been fixed by the Constitution.
Therefore, it is a necessity that Seshan be a part of this, even though he is my friend.
Vatsala Khandelwal

SC – Since there is a chance of personal bias, if the Chief Election Commissioner takes
part in the enquiry, he should be removed from such process. Because there is the
alternative of two ECs of equal expertise. His elimination will in no way affect the
purpose of the enquiry. But if the two are of opposing opinions, then it will become
an absolute necessity that the CEC weighs in.

Two things we derive from the doctrine of necessity:

1. It is an exception to nemo judex in causa sua.
2. It has to be an absolute necessity; not just statutory requirement but also the
non-availability of an alternative.

Audi alteram partem

 Second limb to PNJ

 What does it mean to have the right to represent yourself? If a certain guideline
hasn’t been complied with by the university, you cannot say that a particular
aspect of due process hasn’t been given. Have to prove that by virtue of the
omission of the aspect of audi alterim partem, you have been prejudiced and have
not been able to make your case properly. Mere omission is not sufficient.
 Informed of the breach of discipline that has taken place- receive an email to the
effect- duty of the administration to notify you that a given action will be taken.
What should one be notified about? 1. Charges against you 2. Particulars of the
incident- the date, time (along with the stamp and seal of the authority- should be
clear which authority is issuing the same) and nature of the hearing [do they
require evidence etc]; 3. May or may not include the penalty proposed; 4.
Reasonable time to prepare your case.
 Re the charges- 1. the charges should be specific, clear and unambiguous. [The
charges cannot be general in nature. The notice served: “malpractice in the
examination” you have the right to know vide the notice what kind of malpractice
you are being charged with as ‘malpractice’ is a wide term encompassing several
others.] 2. Cannot be charged for something not mentioned in the notice. [it is
deemed that you are being charged without being given the opportunity to
defend]
 Re reasonable time: what is reasonable time? Unless the time given is prima facie
unreasonable, it is on the discretion of the administration to give you reasonable
time to prepare your case. You have to prove that the time given is prima facie
insufficient and unreasonable. In all other circumstances, the discretion of time
remains with the administration issuing the notice.
 ORDER: 1. Notice; 2. Evidence of the other party to the aggrieved (right to have
knowledge of the evidence that is against you so that you can rebut it)
Vatsala Khandelwal

 ON NOTICE: Ravi S Nayak v UoI: The speaker disqualified an MLA, Goa. As per the
rules for the Goa Leg Assembly, a notice of 7 days is to be served by the Speaker
on disqualifying MLAs. Only 3 days were given. The MLAs went to court on this
contention. Court: 3 days will also do as long as it does not cause prejudice to the
MLAs and is hence, sufficient. [Learning outcome of the case: the time given is per
the discretion of the issuing body unless you can prove that the time is insufficient
for preparation of your case (evidence/ arguments to rebut) or causes prejudice]
 ON DISCLOSURE OF EVIDENCE TO THE OTHER PARTY: the other party ahs a right
to know the evidence against him.
 Preliminary hearing may or may not be the notice. For instance in our Uni, in a
UMC DC: the UMC form would be the primary or the preliminary hearing report.
 Based on this report, there is a third party, a final DC authority (presently, the
Registrar)
o Method 1: Enquiry (Hearing)à decision/ report
o Method 2: Enquiry (hearing) à reportà decision (agreeing or disagreeing
with the report) {student}
o Method 3: Enquiry (hearing)-à reportà trial based on the report (hearing)à
decision {public servant}
 In all cases, you are entitled to the preliminary report because that contains all the
evidence against you. Now the enquiry commission comes up with a secondary
report on the basis of which the VC makes his decision. Are you entitled to this
secondary report? Conclusion: you are not entitled to the secondary report as an
evidence because you have to remember the stage at whci hteh hearing is taking
place. In the second case, since the hearing ends at the report, you I am not
entitled to this report. Because I do not have a chance to defend. Then also, it
usually means that the VC merely acts upon the second report and does not
question it.
 In the third case, I have a right to know the secondary report because there is a
second hearing (which may be a fresh hearing based on this new report) where
there is an opportunity to defend oneself.

Suresh Koshi v Uni of Kerala

Service rules may allow the university to go by the second method. You are entitled
to only the primary report for the second method, as you do not have another hearing
in which to defend yourself.

Managing Director, ELC v B Karunakar AIR 1994 SC 1074

Service rules may allow the university to go by the second method but if I’m a
government employee then the situation changes a little. Then service rules cannot
use the second method to punish me (it can only be method 1 or 3)à govt servant but
not a civil servant, then it can only be 1 or 3. If it is 1, I am only entitled to the
preliminary report, if it is 3, then I am entitled to both reports. If I am a Govt under
Vatsala Khandelwal

Article 311 of the Constitution (government employed under the central government),
then you can only have method 3. Method 2 is omitted in conditions.

OPPORTUNITY TO REBUT ADVERSE EVIDENCE:

Not only should the evidence presented by the admin against you be made known to
you, but you should also have the opportunity to rebut that evidence.
Cross examination: If X is testifying against you, you can cross-examine X. Never meant
as an integral part of PNJ. If denial of CE results in certain prejudice to the other party
the nit becomes a party of natural justice. Cross examination is not a right. You only
have the right to do so only when oral evidence is being used as testimony against
you. If it is not oral testimony, this does not arise as a right (+ some other exceptional
circumstances wherein without this cross-examination, there is some prejudice being
caused to you.)
You can rebut via counter affidavit, bringing in your own witnesses but not via cross
examination unless the testimony being used against you was taken orally.
Right to cross examination does not arise unless testimony has not been recorded
against you orally. Exception: Hira Nath Mishra case- wherein the right is restricted.
UP Warehousing Co v Vijay Narayan Vajpayee: Since the testimony was recorded in
orals, the right to cross examination arises as a right in orals.
State of J&K v Bakshi Gulam Muhammad: Evidence was recorded in affidavit. In this
case you do not have the right to cross examination as you can file a counter affidavit
or even bring your own witnesses
Hira Nath Mishra v Rajendra Medical College: Even if it ias a case of oral evidence,
cross examination as a right may not be given to the other party. This is when there is
a requirement for non disclosure of the identity of the testimonial. For this the
requirement of non disclosure must be proved.
Right to legal representation: only in the case of serious prejudice where 1. you cannot
plead your case on your case without legal representation wherein the 2. questions
are complicated issues of laws and facts, and 3. the person heading the hearing
commission is a trained lawyer himself [Here, at Jindal would be consider Arjya etc
trained lawyers? Persons holding enquiries against you are lawyers. Possible answer:
student hearing, legal rep might be denied because the matter being dealt with is an
internal matter while in an employment hearing, legal representation might arise as a
right]
JK Agarwal v Haryana Seeds Development Corporation: Proceedings against JK
Agarwal. Person heading the commission was the law officer of the Haryana seeds
development corporation. JK: I need legal representation and this legal process
against me is vitiated because the person heading it is a trained lawyer.
Vatsala Khandelwal

RIGHT TO PRESENT CASE AND EVIDENCE BY THE OTHER PARTY:

State of Orissa v Dr Binapani AIR 1967: date of birth case. Done earlier
Dhakeshwari Cotton Mills v CIT: same as above. Binapani is sufficient for case law.
ONE WHO HEARS MUST DECIDE
Whoever has heard the evidence against you and has heard your reply is, ideally, the
person who should decide. In India, applicability of this principle finds little case law
(in order to accommodate method 2 wherein the VC is not part of the evidentiary
hearing- VC deciding the decision against me is not the same person who has heard
my evidence against you and your reply therein- thus, the principle would not be
applicable)

Pradyut Kumar bose v Chief Justice of Calcutta HC 1956

There was no requirement of compliance with PNJ in administrative action. Enquiry
was headed by a judge (no the CJ)– based on the report, the CJ Calcutta HC dismissed
him- Pradyut went and pleaded ‘one who hears must decide’--> this is an
administrative decision and PNJ does not apply here (1956 after all)
However, even after AK Krypak, the Court is reluctant to apply this principle. For
example: Ossien & Gelatine Manufacture Association v Modi Chemicals AIR 1990 SC
1744
If the final decision making authority is in agreement with the report and this decision
is not prima facie irrational, the principle of ‘one who hears must decide’ does not
apply.
What if the VC’s decision is against the finding of the Court? Do we then use the
principle of ‘one who hears must decide?’

Reasoned Order/ Speaking Order

When you go to an appellate authority, the appellate authority should be able to know
why a particular decision has been taken against you- they can know so if the order
Also, it is PNJ to know why a decision has been taken against you.

SN Mukherjee v UoI AIIR 1990 SC 1984

Army officer with allegations of disciplinary misconduct against him- court martial
ordered against him. As per the rules, before court martial has to be confirmed by the
Chief of Army Staff. Post confirmation (order given without reasons), the person can
appeal to the government of India (ministry of defence). During his appeal, the
Ministry confirmed the decision of the Commission as the appellate authority would
Vatsala Khandelwal

not be aware of the reasons for the court marshall and further, my PNJ is being
violated as I am unaware
Court: Confirmation authority is not under an obligation to give reasons as it is in
agreement with the commission. There is no requirement of the appellate authority
to record reasons as it is in agreement with the Commission.

MD ECL v B Karunakar: If an enquiry report against a Govt employee other than under
Art 311 of the Constitution, such individuals have the right to challenge the enquiry
report.

General Exceptions to Audi alteram partem

1. Post decisional hearings (Gullapalli 2): partial exception. When a decision has
already been taken against you on an emergency basis, and thereafter, the
administration gives you a chance to defend yourself. There is not a complete
usurpation of the PNJ but it is a violation or a deviation from the rule of application of
PNJ as the decision is first being taken against you without giving you any hearing. This
is not a good process as it can be fraught with official bias. NOT A GENERAL
EXCEPTION- MERELY A
The Government will have to justify why post decisional hearing is being taken. If it
can justify the same, post decisional, it will be allowed.
[Emergency/ impending PI a ground on the basis of which a post decisional hearing
can be used to replace a pre-decisional or ordinary hearing; Grounds allowing post
decisional hearing: 1. Impending PI hearing; 2. Emergency]
Maneka Gandhi v UoI 1978: [Emergency or public interest] Challenged S. 10(3)(c) of
the Passports Act as it gave the officer the power to impound a passport without being
given reasons. Reason by the Attorney General: (public interest) we need to impound
her passport to get her stay in the country to testify for the Shah Committee. We first
impound her passport, and then given her the opportunity to be heard and to defend.
We are giving her a post decisional hearing and we cannot give her the reasons as she
might escape. Court allowed it on the ground of public interest.
Swadeshi Cotton Mills v UoI 1981: Govt of India took over the mills (pvt mill) as it was
a sick industry and was running on loss- loss of jobs and uncertainty- Govt wanted to
immediately take over it. Law: before you take over a company there has to be an
investigation re the accounts of the company and a hearing to be given to the owners
of the company. Govt: this is a case of emergency take over of the company as it
employees a large number of workers whose employment was uncertain. Later we
will have an investigation and give a hearing to the owners of the company. Court:
Since the statue itself allows taking over a company in the event of an emergency with
Vatsala Khandelwal

a post decisional hearing, and since the govt has justified its actions and an emergency
exists, the same is allowed.
This is an exception and not a norm. The govt must always justify why this is in public
interest or why this is an emergency- since this is an emergency.
Canara Bank v VK Awasthy 2005: Amalgamation of Banks and in the process of this
amalgamation, the employees working in the existing bank need to be coopted into
the new bank. Here, the service of a few employees was terminated without reason
or hearing opportunity. Bank: we will give them post decisional hearing. There was a
need to terminate the services of the employees immediately as they were no longer
required. We will give them a post decisional hearing. Court: not allowed as you have
been unable to justify why this was of public interest or required on an emergency
basis- termination without hearing.
1. Statutory Exclusion: UoI v Col JN Sinha AIR 1971 SC 40à [when the statue itself
provides for the non application of PNJ and fair hearing. However it doesn’t mean
that merely mentioning it in the statute is enough as this could lead to wide abuse
with the administration always coming up with a rule to dispense off of hearing.
So the rule that always that must be constitutionally valid. Say: professors with a
feedback of less than 2 for 3 years would be terminated without a hearingà this
does not violate article 14 as the classification is very small and with intelligible
differentia- there msut be a rational nexus between the restriction and the
purpose sought to be achieved- for as long as this exists, it is constitutional]
COMPLETE DEFENCE
2. Legislative Function: Charnlal Sahu v UoI 1990 [AB3] [when the executive is
performing a law making function, there is no requirement for the e to comply
with principles of NJ. Does this mean that by laws and rules cannot be challenged
in court? Content of law is not being considered here (this is always amenable to
judicial review). They can be challenged but at the time of challenge of making the
rule there is nothing impending upon the parliament or the E to comply with PNJ.
If the L or E make a law that adversely affect me, I do not have the right to make a
presentation/ hearing challenging that this law is adversely affecting me.]
COMPLETE DEFENCE
3. Impracticality: Bihar School Education Board v Subhash Chandra [sometimes it
becomes too laborious for the administration to give a fair hearing to everyone-
require tremendous and unnecessary administrative burden] Allegations of mass
copying/ malpractice in the examination. State govt of bihar decided to cancel the
examination. Students: paper has been cancelled without us being given a chance
to representation as to why our paper should not be cancelled. Govt: it is not
possible to given every aspirant an individual court hearing. It will be a labourious
task and the court agreed: we cannot give everyone a chance.
4. Confidentiality: Hira Nath Mishra v Rajendra Medical College 1973 [when there is
a requirement to not disclose the names or identity of the witnesses, PNJ can be
Vatsala Khandelwal

denied, you may not have a right to cross examination or right to know who the
witness against you are.]
5. Academic Evaluation: JNU v BS Narwal 1980 [complete discretion of the faculty/
university making the evaluation- the court interferes- can be done on academic
evaluation wthout giving the chance of hearing as to why you got 1mark and not
2]
6. Interim Disciplinary measure: Abhay Kumar v K Srinivasan 1981[if the university
has found prima facie evidence against you and you are being suspended via an
interim disciplinary measure- the court will not interfere as an interim measure
cannot be considered a gross violation of rights- IDM can be done without giving
a chance of hearing]
7. Useless Formality: Canara Bank v VK Awasthy 2005 [right to fair hearing is only a
rights as long as denying it causes a prejudice to you. Useless formality embodies
this ground- admin goes to the Court and says: we would have given him a hearing
but this would have been a useless formality as the decision would not have
changed and there is no way that our evidence could be denied]. VK did not join
the new south Indian bank office he had been transferred to- bank terminated his
employment without giving him a hearing. Bank: he did not join, so we terminated
his service- what will or can he prove? [ground in which the other party having the
right to hearing has nothing to prove and giving this right does not change the
decision- empty formality- evidence against him is so overwhelming.

Administrative Discretion
Authority entrusted to make a choice out of various alternative possibilities. Example
– granting of licenses. Completely at the discretion of the authorities. Not your right
to construct the cinema hall.
The Vice Chancellor can exercise discretion on whether to give you an exemption or
not based on three conditions:

 Medical conditions
 Beneficial for the University
 Death of family/relative
He can exempt you only based on these conditions and not on a ground beyond these.
If he does exempt you on a ground beyond these conditions, then it is an abuse of
discretionary power. Your satisfying a condition allows you a claim, but it still doesn’t
entitle you for an exemption.
Objective/Conditional Discretion – Where the statute provides the conditions for
exercise of discretion.
Vatsala Khandelwal

Subjective Discretion – Where the authority creates a condition; subjective

satisfaction.
Your power need not necessarily flow from the statute; it needs to be vested in you
by the legislature. One cannot assume the power of discretion.
According to Dicey, discretionary power cannot be given.

Grounds of Judicial Review

 Abuse of discretionary power
 Non-exercise of discretionary power
 Violates Rights
 Does not comply with Principles of Natural Justice (due process)
 Ultra Vires to the parent act
Non-exercise of discretionary power
A particular discretionary power was entrusted to an authority, but the authority has
failed to exercise its discretion.
 Failure to exercise discretion - sitting on the power. Can challenge it if it is affecting
your right. It cannot be used as a ground to challenge if it is not violating any right
(could be statutory right, common-law right or civil right).
 Acting under dictation - situations where you have acted on your discretionary
powers, but it cannot be said that there is exercise of discretionary powers – acting
under dictation. What constitutes dictation? If the instruction comes from a
superior authority. The matter of influence is a matter of evidence. But the matter
of dictation is a matter of who is influencing.
The judicial trend is such that only something flowing from a superior authority in
terms of ranks or position, would be treated as a dictation. The others need to be
proved. Advice by a Committee is definitely not dictation.
 Imposing fetters on discretion - an authority having the power of exercising
discretion, but he comes up with a rule restricting his own power of discretion.
Example: Student suspended because of disciplinary breach. Found in his favour. VC
is still not revoking the suspension. Student has the right to have a reasoned order and
the right to go back to the university once innocence is proved. The VC getting
influenced by the recommendations of the Disciplinary Committee will not amount to
acting under dictation, because it is the duty of the DC to make these
recommendations. Only if he is being influenced by a superior authority.
Vatsala Khandelwal

Example: Passed all subjects, but failed in one. The University mad decide to grant the
student some grace marks. But it does not become a right.
Example: Convenor of CLAT has the discretion to exempt a person from the age of 20
rule, but he creates a rule saying that no application will be entertained if you are
above the age of 22. He himself imposed fetters. It can be argued that this was his
discretion too. He probably wouldn’t have entertained those applications anyway. But
he cannot prevent you from making your case just because you’re 23. Your right to
apply cannot be taken away.

Keshavan Bhaskaran v. State of Kerala

The director of public instruction was given the power of exercising discretion to
entertain applications and exempt a person to take the exam even if they are not 18
years of age. The director came up with a notification that no application shall be
entertained in which, the difference between the age prescribed and the age at which
the application is being made. Therefore, a person below the age of 16 cannot make
such application.
The director of public instruction himself has put a restriction on his own discretionary
power. Firstly, by limiting the scope of your discretion you are denying me my
statutory right to make an application. You may decide against me, but you cannot
take away my right. Secondly, power of discretion is not a self-governing power, you
have been given a certain degree of sovereignty.

Commissioner of Police, Bombay v. Govardhandas Bhaiji

Govardhandas had the licence to construct a cinema hall. The Commissioner of the
Police received a letter from the senior officer, for revocation of certain licenses. The
Court struck down the revocation on the ground that he had acted under dictation.

Abuse of Discretionary Power

 Mala fide
 Improper/colourable use of purpose
 Irrelevant consideration
 Leaving out relevant consideration
 Unreasonableness
For reviewing executive made laws, or for executive actions, even though the judiciary
recognizes mala fide as an independent ground, you must justify mala fide with the
supplement of violation of certain other rights. (Case of Sarvanand Sonoval)
Vatsala Khandelwal

Exercising discretion for a purpose other than what has been statutorily provided. You
have used your power of discretion for a purpose other than the prescribed one.
Colourable use of purpose is when you are using your discretion in the guise of that
purpose, but really using it for a different purpose. The degree of colourable use is
higher than improper use. The action that the government takes and the scope
prescribed in the Act, has a wide gap between it. It is mala fide, but improper use can
be bona fide.
Irrelevant consideration is while exercising discretionary power, the considerations
made by the executive has got nothing to do with the purpose of the power or the
Act. There is no nexus between the two. Example: A professor has the discretion to
grant attendance to a student falling short of it, but they cannot deny it because they
dislike the face of the student. This would be an irrelevant consideration.
Leaving out relevant consideration is basically when you should have taken into
consideration a ground that would have influenced your decision, but you have failed
to do so. Example: You have made a confession in front of the DC and they have made
their decision on the basis of that. However, you retract your confession saying that
you had been threatened by professors that they would fail you and that is why you
made the confession. However, the DC bases decision on the confession. They have
left out an important consideration, which is your retraction.
Unreasonableness – Trump’s immigration ban.

Power Singh v. State of Punjab

For the charge of bribery there is an enquiry going on against him. The doctor
challenges it on the ground that it was mala fide. The doctor says that initially, him
and the Chief Minister were good friends. Refusal to accept application to leave is
mala fide. There is a question of personal bias involved here. There is personal
hostility. The court ruled on the ground of mala fide, but it was coupled with an
element of principles of natural justice – personal bias.

Hukumchand v. Union of India

Preventing the use of this telephone for the illegal trade of agricultural products. This
can be done only for public interest or emergency. The power to act on the ground of
public interest is limited to situations where public safety is threatened. Public interest
does not mean preventing illegal trade, as per the statute. The government has
misinterpreted the scope of the purpose. This is improper use of purpose.

H.D. Vohra v. State of Maharashtra

Vatsala Khandelwal

Case law – The government can take hold of your flat for certain purposes, say
defence. It also says that it must be temporary, to serve the purpose. But they don’t
leave the flat because the discretion of deciding the time is with them. The
government is trying to take your property. This is colourable use of purpose.

Ram Manohar Lohia v. State of Bihar

Mr. Lohia was detained. The reason of the government that he is a threat to law and
order. The statute said that the purpose based on which the detention is public order.
The government claimed that law and order and public order are the same things. The
Court said no. A threat to public order is something that questions the very foundation
of a democratic society. A threat to law and order does not affect the foundation of
our democratic society; it is an amiable ground. You have gone against the purpose of
the Act. The detention order was made null and void.

Associated Provincial Pictures Pvt Ltd v. Wednesbury Corporation, 1947

The Wednesbury Corp, which is a local authority, has been given the power to issue
licence to a cinema hall. They had the discretionary power, according to which they
could attach conditions to the licenses. The condition must serve some public interest.
The condition was that no children below the age of 15 are to be allowed in a cinema
hall on a Sunday, because it is to the detriment of their physical and moral health,
considering that they have school the next day. It was argued that this exercise of
discretionary power is unreasonable. Test for reasonability – Wednesbury rule:
Did the authority apply themselves properly in the act? The power exercised
by the authority should not be ultra vires; it shouldn’t be for a colourable
purpose.
Whether relevant considerations have been taken into account, and irrelevant
conditions left out?
Unless the administration has not satisfied these requirements, the Court will not get
into the reasonability of the decision unless it is wholly irrational; prima facie irrational
- that no reasonable person would take such a decision. The court will not get into the
reasoning and rationality of the administration unless it has acted intra vires and with
relevant considerations.

 This rule is also applied in India as the test of reasonability. The Wednesbury Corp
in India says that women are not allowed in cinema halls after 9 o clock at night,
saying that it is in public interest because it will ensure safety and security. This
would be in violation of the fundamental rights of women.
Vatsala Khandelwal

 Doctrine of proportionality – When you are violating rights you must make the
least restrictive choice. You can decide in violation of rights for fulfilling the
objective of the Act, but you must choose the least restrictive alternative. Not only
must it be necessary, it must be least restrictive.
o There are other means available to ensure security without violating
women’s right against discrimination.
 From a human rights jurisprudential point of view, my right against discrimination
and your right to free speech and expression can be violated only for a reason
having more value than my rights. Is the object of the Act of more value than my
rights? Whether that object of the Act is of more value than my rights is not
decided by proportionality.
 In India, the tests under Art. 14, 19 21, are a step ahead of the test of
proportionality. Govt. must show intelligible differentia. The govt. has not been
given the margin of appreciation to decide what is intelligible.
If we apply proportionality test under article 19 instead of the reasonability test, the
outcomes will be very different. If the govt. violates my rights for a law and order
situation.
What is the applicability of Wednesbury rule and proportionality test?

Om Kumar v. UoI
The reasonability test that we apply under Articles 14, 19, 21, is nothing but the
proportionality test. The court misunderstood the test. Since 14, 19, 21 also talk about
least restrictive decision, they are the same. However, there is a margin of
appreciation in the proportionality test, and not in the tests under these Articles.
There is an additional requirement of justifying it under the heads provided under the
Articles. Effectively, if an administrative action violates your rights, you can challenge
it under these articles. Otherwise, an administrative action is only subject to the
Wednesbury principle. Because it is arbitrary and not discriminatory/violative of your
rights.

Promissory Estoppel
There is no legal relationship at the time of making the promise, but there must be an
intention to be bound by a legal relationship if the promise has been acted upon. The
government cannot opt out of a promise, based on which you have already acted. The
promisor has made the promise and thee promissee has acted upon it to their
detriment. In that case, the promisor is estopped from opting out of the promise.
This is a doctrine that has equal application in private and public law. If the State
makes a promise, expressly or impliedly, then the State must abide by it, if a person
has acted on it.
Vatsala Khandelwal

It is a doctrine based on equity.

First, there must be a promise. There must be intention to be bound by the promise,
if acted upon, on the part of the promisor. Third, promissee must act on the promise
to their detriment.

Union of India v. Anglo Afghan Agencies, 1968

The State had announced that if you are exporting finished products, there will be a
relaxation of duty on your import of raw materials. They imported wool to export
certain finished products but the State did not provide such relaxation. The have acted
upon the promise to their detriment. All three requirements were met and thus,
promissory estoppel applies.

MP Sugar Mills v. State of MP, 1979

If a small/medium-scale industry is being set up, then there will be a relaxation on
paying of sales tax for the next three years from the establishment of the industry.
After their establishment, the Govt. scrapped the exemption of sales tax for those first
three years of establishment. (What is establishment? The day they start
manufacturing). The have acted upon the promise to their detriment. All three
requirements were met and thus, promissory estoppel applies.

Sanatan Gouda v. Behrampur University, 1990

Student has enrolled into the three-year programme of LLB. In his last year, the
University cancelled his admission on the ground that he did not have the requisite
marks at the time of such admission. There was certainly a promise on the part of the
university, by way of conduct. The promise was to give him full opportunity to act in
the capacity of a student. It was a mistake on the part of the University, but it is
voidable at the behest of the student, and not the University. There was an intention
to be legally bound by the admission if the student accepts the offer of the admission.
The student has acted on the promise to his detriment, i.e., he has wasted three years.
Therefore, promissory estoppel applies.

Exceptions to Promissory Estoppel – Fraud and Misrepresentation; public interest;

ultra vires

Ramanatha Pillai v. State of Kerala

Vigilance commission
Vatsala Khandelwal

Ultra vires – Promise has been made by the govt. but the govt. did not have the power
to make such promise in the first place. Cannot be held against it. A promise that is
ultra vires is not a promise at all.
Legitimate Expectation
Something that is between a legal promise and a . There is only a custom, that is
deviated from. Without giving the other party enough time to cope with the new
requirements, or new expectations. As long as nothing is mentioned in the Parent Act,
the court will go by the time specified by the govt., unless it is clearly unreasonable. It
is not a legal right per se. But it is an equitable principle based on fair play and
principles of natural justice to an extent. It is not fair play that everybody does not
have the equal opportunity to apply for a government job.
An established government practice. Since the government has deviated from that
established practice, it must give you a reasonable amount of time to get used to the
new procedure. It is based on fair play and transparency.
Course was scrapped
The established practice was that first come first serve. They have allotted land based
on the board meeting of the Delhi developed authority?

Punjab Commu v. UoI

Administrative Tribunals
Tribunals are not courts. A court does not deal with quasi-judicial matters. A tribunal
deals with judicial as well as quasi-judicial maters. Quasi-judicial constitutes a quasi-
lis. A tribunal constitutes an authority exercising judicial and quasi-judicial functions
but it is not a court of law.

 Violative of separation of powers??

 Delegated function. Must have statutory sanction; must be established through a
statute.
 Equality before law – we are all subject to the ordinary common-law courts.
Tribunals run parallel to the common-law courts. Deviates from the rule that we
are all equal before the law. Also, the adjudicatory body may be a part of the trial.
Judge is not passive. Adversarial system does not require the involvement of a
judge – procedural fairness – impartial judge – equality before the law. So, doesn’t
a tribunal deviate from this?
Vatsala Khandelwal

Administrative tribunals pose a lot of constitutional questions. Dicey’s view had also
resulted from an administrative tribunal being set up – droit administratif.
If there are so many questions, then why do we have administrative tribunals? Speedy
redressal of disputes.
Administrative tribunals came into being after WWI and WWII because a lot of
administrative issues had to be dealt with and the judiciary was not equipped with
experience and expertise. The utility of these tribunals was recognized. Lassiez Faire
states were trying to incorporate this. They wanted to keep these tribunals because
of state interventions.
- In India, is it constitutional to have tribunals in India?
A specialized court is not per se unconstitutional in the Indian Constitutional
scheme. What is problematic is the exclusion of jurisdiction of the ordinary courts
of law.
Art. 136 of Constitution – Special leave petition against any decree, order or
judgement lies in the SC from a Court or a tribunal which is operative in the
country.
It validates the operation of tribunals in India by granting a special leave petition
for a judgement coming out of a tribunal in India. But it is not your right to file a
special leave petition Only for those cases which requires a substantial question of
law.
If the statute which creates the tribunal, bars the jurisdiction of the HC or any other
court, then Art, 136 is the only recourse one has. Otherwise, the decision of the
tribunal would be binding.

Article 323-A – Came in the 47th Amendment Act – Indira Gandhi – lot of power in the
hands of the administration. It allowed the parliament to establish the central
administrative tribunals. If it is a matter related to a post or work conditions in the
central govt. – this tribunal shall have the administration (pension, transfer). The
parliament cannot bar the special leave petition under article 136 against an order
from the central administrative tribunal. The corollary is that the tribunal can bar the
remedy under articles 32 and 226. So, if an administrative tribunal violates a
constitutional right, then you cannot go to the SC under those writs.
Central Administrative Tribunal - The Administrative Tribunals Act, 1985 – established
because empowered by Art. 323-A. It will consist of a chairman, vice-chairman, a
judicial member. Then the qualifications of these people. Section 28 - Exclusion of
jurisdiction of courts except the Supreme Court - matters concerning recruitment to
any service or post or service matters concerning members.
Vatsala Khandelwal

Can the constitution be amended such that it removes the operability of a writ
jurisdiction?

S. Sampath Kumar v. UoI, 1987

It was challenged if the constitution can remove operability of a writ jurisdictions.
J. Bhagwati – Tribunals have been created not as a supplement, but a substitute of the
ordinary judicial courts. As long as the tribunals have all the powers to provide all the
remedies that the SC and HC can provide under 32 and 226, there is nothing wrong in
substituting the authority of judicial courts by the tribunals. Article 323-A was held to
be not violative of the basic structure.

It is not a question of bias; it is a question of rights.

L. Chandrakumar v. UoI, 1997

The same matter, relating to 323-A was again challenged. This case was qualitatively
different from the previous judgement. They are challenging the amendment and not
any statute. Ground of basic structure. The tribunals are a parallel jurisdiction and are
supplemental to the ordinary common-law courts; it cannot be a substitute.
In case of an administrative matter, first you must invoke articles 226 and 227, before
you invoke article 32. First you must approach the high court, only then can you go to
the SC. The judgement tried to protect the basic structure by saying that a
constitutional amendment cannot be made, where the jurisdiction is barred of these
courts. But why does the court say that first you must exhaust the remedy under 226?
The SC only retains the appellate jurisdiction in that case. This is also problematic in
law. Violating the basic structure. Which means, that section 28 under the
Administrative Tribunals Act is unconstitutional.

In effect, the tribunals cannot take away the ordinary jurisdiction of the HC under 226.
You cannot directly invoke Article 32. But there should not be a bar on 32 either. This
is legally a little untenable.

 An administrative tribunal can grant you jurisdiction in any matter. It lays down
the procedure that the tribunal will follow. It also sometimes gives the tribunals
the power to decide their own procedure. Ordinarily, this tribunal is not bound by
the rules of procedure. There is a scope of informality given to the tribunal. The
tribunal, under no circumstances, is bound by a codified set of procedures.
Vatsala Khandelwal

 This informality is allowed by the CPC as long as PNJ is complied with. It enjoys
certain powers given by the CPC but it is not bound by it. This is precisely the
purpose of the tribunal. To make its own rules. (Because it performs judicial and
quasi-judicial functions)
 Is the tribunal bound by precedents? Doctrine of stare decisis – Stand by your own
decision. In a similar situation, I must decide similarly.
o Hierarchy of Courts – if a higher court or a higher authority decides
something then I am bound by it. This applies to the administrative
tribunals.
o Stare decisis – It does not apply to administrative tribunals. Depends on a
case to case basis. It is an ordinary court of law; not a court of record. Its
judgements do not become binding on itself.