ADMINISTRATIVE LAW

MODULE -1

1.NEED FOR ADMINISTRATIVE REFORMS

These reforms aim to encourage greater efficiency, transparent and

corruption free governance, accountability and reduce scope for discretion.
The Government follows the maxim “Minimum Government - Maximum
Governance”. The Administrative reforms in India provide services intended
to fulfil the needs of the citizens of this country. This system undergoes various
reforms to cater to the new societal changes or to rectify old administrative
processes’ faults. After independence, there was a need for a Commission to
perform the work of public administration efficient and to guide in reforming
the administrative practices as and when needed. Thus, a Commission was set
up in January 1966.

The first Administrative Reforms in India are considered the change of colonial
rule to the democracy we know today. Since then, many commissions and
committees have been established to shape an efficient administrative system.

2.RELEVANCE OF GLOBAL ADMINISTRATIVE LAW

It is only in the 21st century that the concept of global administrative law
gained its importance. The unique trait this branch of law possesses is
replacing the term world with that of the globe. This, in turn, removes the
misleading nature of idealising the branch of law as an international
perspective only and provides enough space to include divergent thinking on
the branch of administrative law. Increase in the development of the global
administrative law has been enough to reach out to a prototype
transgovernmental form of administration that has been outlined to address
the results of interdependence at a global level in spheres ranging from
security, economic assistance, migration of population across borders, trade
practices and many more. These repercussions cannot be dealt with the help of
domestic regulations and administrative assessment only. As an outcome to
this loophole, the birth of several multinational systems to carry out
regulations and the regulatory procedure has been initiated through
international agreements, the formation of informal governmental networks
among nations to uplift the decision-making activity from domestic to a global
level altogether. The regulations and norms referred here are not bound by any
nation and therefore they expand in all corners of the globe.
Broadly, there exist two approaches that can be used in construction purposes
of global administrative law namely,

1. One of the two approaches refers to the switching of provincial

administrative law into the global directive. This approach is used to
ensure activeness, legality and adherence in regulation globally.

2. Another approach is switching the global directive into the room of

domestic administration. This approach aims to bring about divergent
ideologies, participation from individuals and adherence in global
regulation.

These approaches can be used in bringing solutions to problems ranging from

law-making activity, adjudication issues to that of accountability and
administrative mismanagement, all at a global level.

Scope 

Global administrative law can be referred to as the study of several principles,

frameworks and execution which intend to support understanding with a social
perspective that in one way stands responsible for affecting the obedience of
global administrative organs. This is to keep a check upon the limits of clarity, 
reasoned decision and legality while executive the rule-making authority. In
one way global administrative law accumulates variable fields of law which
concerns rule-making activity or has administrative colours in it, which were
till now treated individually and specifically. A combination of international
administrative law and public law with an international approach is what
global administrative law actually signifies. The focus of global administrative
law, therefore, is a combination of both substantive as well as a procedural set
of law for an efficient mechanism of governance at a global platform.

Sources

The norms which have been referred above has its roots from three
distinguished branches of law namely, 

1. International law 

2. Administrative law 

3. Public  law 

The reason why international law is one of the sources for the origin of the
global administrative law is that when there comes the scenario of formation of
rules, regulations and policies, they are made taking into concern ideologies
from the regions that are specialized in the same and have been traditionally
inclined to the field. The global administrative law also aims to offer responses
to the accepted turmoil in the branch of international law. With legitimacy and
accountability being the indispensable ground of decision-making activity, 
there arises a need for reviewing the administrative actions taken by
international bodies. This remains an important activity to be carried out by
the global administrative law.

Administrative law is one such field of law that involves practicality and
application of the textbook rules and law.  It deals with the procedure of
implementation of already existing norms. The role of this field in global
administrative law is immense for the base on which the branch of global
administrative law stands is that of administrative law itself. This field required
a global perspective in order to have an efficient regulation system of
governance.

The branch of public law is the third and the most required branch in the
framing of the global administrative law. Public law does not only include
public policies and welfare but also principles of natural justice, human rights,
customs, distribution of available resources equally, productivity are few others
to include within the ambit of public law. 

These elements are essential to be included when global administrative law is

adopted. Therefore, these are the three fields of law that can collectively be
regarded as global administrative law. 

Features

Therefore, it can be said that global administrative law has some distinctive
features namely;

1. A sector-based legal field: Global administrative law being a sector-based

law signifies the absence of uniformity of legal application the field has in
distinctive domains of framing of policies. This trait of global
administrative law is in favour of having a case study approach which is
used or can be used across universities as a medium to profess and
practice and in the process adopt this field as a field of study and
research.

2. An interdependency of homogeneity and heterogeneity: Global

administrative law is a product of the interplay of both public as well as
 private laws which further initiates the birth of regulatory regimes that
are meant to have its application globally. Participation of both public as
well as private elements is necessary for the efficient working of these
regulations. This gives a hybrid nature to the global administrative law
which is necessary for dealing with fields like that of public health. 

3. A product of interconnection between two conflicting sectors: Global

administrative law acts as a platform of the meeting of different sectors
in order to exchange rules, regulation, policies, procedures for carrying
out these to bring in variability which helps in framing the outline of
global legal policies. Thus out of discussions, debates and conflicts
among various administrative bodies arise creation and evolution of laws
and policies which can be applied globally for a betterment.

4. State influence:  Any state in the globe plays an important ingredient for

initiating the growth of the field of global administrative law. But a state
cannot help in the process of formation of global administrative law alone
and therefore self mechanism by global administrative law itself can
complete the procedure. The state acts as an experimental device for
global administrative law to be implemented and subsequently the
consequence of the same help in bringing about changes in the framed
rules and regulations if and when required.

Landmark Judgments

The field of global administrative law is evolving in nature and therefore

judgements passed on these grounds are extremely rare. Nevertheless, the field
is based on the elements of natural justice, fair procedure, human rights and
transparency which itself was born of judgments passed by the court of law. In
the case of  Department of Transportation v. Public Citizen,  the Supreme Court
of the United States decided that the extent of judicial review cannot be the
same as that in case of international negotiation for it undermines the integrity
of the same. This case further showcased that any administrative agency must
be aligned to the promises it has made in an international forum. 

3.ROLE OF CIVIL SERVICE

Civil services perform the following important functions

1. Basis of government: No government can exist without administrative

machinery. All nations, irrespective of their system of government,
require some sort of administrative machinery for implementing policies.
2. An instrument for implementing Laws and Policies: Civil services are
responsible for implementing the laws and policies of government. By
carrying out laws, it regulates the behaviour of the people in society. By
implementing public policies and programmes, it delivers the promised
goods and services to the intended beneficiaries. The ideals and
objectives of government may be very popular, the plans for national
development may be extremely progressive and the resources of the
country may be abundant, but without civil services nothing can be
achieved. An efficient civil service can avoid waste, correct errors; limit
the consequences of incompetence or irresponsibility while implementing
laws and public policies.

3. Participation in policy formulation: In modern world, civil service is

the chief policy maker in government. It is a source of facts; experience;
ideas and solution. Public administration participates in policy making
by giving advice to ministers and providing them the necessary
information. The administrative tasks of public bureaucracy include
formulation of policies and plans, executing and monitoring programmes,
laying down laws, rules and regulations, which affect human actions in
almost all walks of life.

4. A great stabilizing force: Civil services acts as a stabilizing force in

society. It settles social tensions and conflicts and thus creates social
unity and harmony.

5. Provides continuity: Civil servants carry the role of governance even

when government changes after elections. Ramsay Muir has remarked
that while governments may come and go, ministers may rise and fall,
the administration of a country goes on forever. It is needless to say that
civil services form the backbone of administration.

6. An instrument of social change and economic development: The

developing nations are mostly traditional and poor agricultural societies
without adequate basic amenities of good life. These nations are
struggling to achieve modernisation of society and economic development
and realize welfare goals. The state is called upon to achieve these goals.
These objectives have placed challenging tasks on public administration
such as formulation of economic plans and their successful
implementation to economic growth and social change. The
accomplishment of these goals requires honest and competent civil
servants.
 7. Provides a wide variety of services in the public interest: Public
administration run by civil servants provides a large number of services
to the people such as:

Protective Functions

1. They protect the life and property of the people by maintaining law and
order. The survival and progress of human beings depend on the proper
enforcement of laws against lawbreakers.

2. In recent times, protection of the environment is added to the protective

functions of the government. As a result of rapid industrialisation, there
is the problem of environmental pollution which threatens our lives and
environmental pollution. Now almost all the governments are making
efforts at the enhancement of environmental quality.

Facilitative services

 They provide facilitative services such as transportation, communications, and

supply of power and so on.

1. Management of public enterprises: Civil servants are managing public

enterprises and public utilities in the interest of socio-economic justice.
Public utilities are either publicly owned or strictly regulated in most
countries. Government also imposes controls over private economic and
business activities in the public interest.

2. Welfare services: The welfare services provided for the people include

social security, old age pensions, welfare of the weaker sections, poverty
alleviation etc.

3. Developmental functions: They perform a vital function of promoting

agriculture, industry, internal and international trade, banking,
insurance etc.

In addition to above, some other functions performed by civil service are as

under:

1. Assisting ministers in fulfilling their responsibilities towards the

parliament and its committees.

2. Handling financial operations of the state.

 3. Reforming and improving administration through O and M (i.e.
organization and methods)

4. Administrative adjudication: This is a quasi- judicial function

performed by the civil service. The civil servants settle disputes between
the citizens and the state. For this purpose, the Administrative
Tribunals, with civil servants as judges are established. For example: The
Income Tax Appellate Tribunal

Major responsibilities of civil servants to government and society

It has been found that the Civil Servant has a crucial role to ensure continuity
and change in administration. The civil servants are dictated by the rules and
procedures.

1. The prime responsibility of civil services executives to society is to serve

the government it has elected. It denotes that civil services must offer
same standard of free, frank, impartial and responsive advice, and the
same level of professionalism in administration and delivery of services,
policies, programs irrespective of political party in power.

2. Another accountability of civil services executive is to openly involve in

all actions within the framework of ministerial actions to government and
legislature.

3. Specifically, civil servants are responsible for public interest in

maintaining the law and ensuring that proper procedures are followed.

4. Civil servants have close relations with society as they serve array of
services. It entails that they must adopt ethical practices to deal with
public.

5. Civil servants need to serve the society by ensuring that entitlement and
services provided to it under law and government policies are delivered
effectively, impartially, courteously and professionally.

6. Civil services officers also responsive to the needs of people, treating its
members with courtesy and with sensitivity to their rights and
aspirations.

Constitutional Provisions Related to Civil Services in India

1. In terms of Articles 53 and 154, the executive power of the Union and
the States vests in the President or Governor directly or through officers
 subordinate to him. These officers constitute the permanent civil service
and are governed by Part XIV of the Constitution (Services under the
Union and States (Article 308-323)).

2. Government of India (Allocation of Business) Rules: Work is allocated

among Ministers as per the Government of India (Allocation of Business)
Rules.

3. Government of India (Transaction of Business) Rules: The manner in

which the officers are required to help the President or Governor to
exercise his/her executive functions is governed by the Government of
India (Transaction of Business) Rules.

4. Article 308 – Definition of state.

5. Article 310 – Tenure of office of persons serving the Union or a State.

6. Article 311 – Dismissal, removal or reduction in rank of persons

employed in civil capacities under the Union or a State.

7. Article 312 – All India Services.

8. Article 313 – Transitional Provisions.

4.COMPARISON WITH OTHER COUNTRIES

 ORIGIN OF ADMINISTRATIVE LAW IN US , ENGLAND and FRANCE

 US

Administrative law in the United States has its origins in the common law
courts of England during which officers of the crown were to deal with claims
related to damage liability. The damage remedy became insufficient, in the
17th Century, and new writs such as mandamus, prohibition, certiorari were
used. The judiciary assumed this role as a result of political development
during the glorious revolution of 1688. Later, the expansion of administrative
activities led to the adoption of legislation to rationalize the system. In the US,
this resulted in the Federal Administrative Procedure Act of 1946. It has been
amended to include provisions that meetings of certain agencies be open to the
public and providing for stricter procedural rules in decision making. The Act
also lays down the availability, timing, and scope of judicial review.
The United States Constitution is an offspring of the western tradition of
liberalism and republicanism. While liberalism is concerned with freedom,
republicanism is concerned with the right of the citizen to participate in
government. Many constitutions provide for a list of fundamental rights of
citizens. Some also state that laws which are inconsistent with these rights can
be nullified by the courts. One such constitution is the US Constitution. Types
of constitutions vary world-wide but one relevant distinction is between
parliamentary and presidential constitutions. In the latter, the president and
the legislature are chosen differently. In the former, however, the executive
emanates from the legislature.

The US is a presidential system, and the separation of powers doctrine which

is enshrined in the Constitution insures that power does not fall into the hands
of a single leader or power group. The principle of separation of powers is
adversely affected if law making, executive and adjudicative functions are
granted to a single government agency. However the law puts limits to the
exercise of these powers. It is up to the court to determine the proper
determination of the separation of powers principle at the level of the agency.
Although it is not possible to abolish the administrative agency for the sake of
maintaining the traditional separation of powers principle, it is possible to
designate (within the agency) separation of functions between those who lodge
a complaint and those who judge.

The US does not have courts specializing in administrative law disputes.

Ordinary courts have jurisdiction to deal with these cases. This choice is based
on the American idea of the separation of powers which does not accept the
administrative court to be part of the executive. The US Constitution is
supreme in relation to any other law. Because of these reasons, arguments
based on the Constitution are typical of administrative law litigation in the US.
The Federal system considers the states as independent units having defined
relationships with the federal government. Many disputes start at level of the
state. But according to the supremacy clause of the US Constitution state law
is subordinate to federal law.

The US has a written constitution and several amendments called the Bill of
Rights. The Constitution is supreme in relation to any other law and the US
Supreme Court insures the respect of the constitution. Any government agency
cannot thus act contrary to it even if it is accorded such power by legislation.

Reliance on the Constitution for the setting aside of agency action is exercised
sparingly because conservative theorists argue that such action should be
based on a specific constitutional text. Other theorists have argued that in the
interest of protecting individual liberties, evolving social values should permit
the courts to exercise the power of giving full meaning to the Constitution.

 ENGLAND
Development of administrative law in UK
In 1885 a British jurist A.V. Dicey rejected the whole concept of
Administrative law. Due to this several legal thinkers suspended the notion
of acknowledging the various statutory powers given to administrative
authorities to form a separate branch of law. They disregarded the control
exercised by such authorities to be anything distinct in itself. Hence, until
20th century administrative law was not given its due in England. It was
only later that the concept came to be recognised.
In 1929, Lord Donoughmore Committee recommended for better
publication and control of subordinate legislation. The legal maxim that the
king can do no wrong, was abolished and the scope and extent of
administrative law was expanded by the Crown Proceeding Act, 1947. It
allowed initiation of civil proceedings against the Crown in a similar fashion
to any ordinary private citizen.
The Tribunals and Inquiries Act, 1958 brought about better control and
supervision of administrative decisions. Breen v Amalgamated Engineering
Union[ii] was the first case wherein the existence of administrative law in
England was recognised.

FRANCE REFER TO ANIL K NAIR

5.PARLIAMENTARY SOVEREIGNTY

Parliamentary sovereignty means supremacy of the legislative body i.e

parliament over all other government institutions including executive and
judicial bodies. Sovereign legislature may change or repeal any previous
legislation and is not bound by any written law like constitution. In India
there is no parliament sovereignty rather there is constitutional
sovereignty.
Check to parliamentary sovereignty by various provisions of
constitution: Various check on parliament are:
1. Written Constitution: In India Constitution is written which put
limitations on all organs of the state. Although parliament can amend
 constitution but it cannot supersede the written document. In UK, as
there is no written constitution, the Parliament possesses legislative
sovereignty. So any law passed by it cannot be questioned before any
court on such grounds.
2. Independent judiciary and Judicial review: Judiciary is independent
and the guardian of the Constitution. It can declare any law or ordinance
passed by the legislature void, if any of its provisions violate one or more
of the constitutional provisions.
3. Federal structure: Although constitution says India as a union of states,
India is a federal polity. Various federal provisions especially some
special powers for schedule area limit parliament powers where many
parliamentary laws are applicable only on presidential and governor
consent.
4. Limited amendment power: Parliament can amend most of the part of
constitution but it cannot amend the ‘basic features of the constitution’.
Further some amendments need special majority and states’ legislature
resolution.
5. Division of powers: Schedule 7 divide law making power between centre
and state. Parliament cannot make laws on state list. Any law in state
subject would require state’s consent through majority.
6. Limit by Presidential vetoes: A bill cannot become law without
presidential assent. President can practice various veto powers like
pocket veto that act as limitation on parliament sovereignty.
7. Limited Doctrine of ‘Separation of Powers’: In India there is no strict
application of doctrine of separation of powers. So if the legislature
encroaches into the functions of the other organs, judiciary can prevent
it to do so.
8. Bar on discussion of conduct of judges: Article 121 and 211 of Indian
Constitution states that no discussion shall take place in the Legislature
of a state or in the Parliament with respect to the conduct of any judge of
the Supreme Court or of the High court in the discharge of his duties.
Thus legislature have no power to discuss judges conduct.
Thus Constitution being sovereign has balanced powers of parliament
through sufficient checks and balance, needed to ensure democracy. It is
successful in striving a balance between legislative, executive and judicial
body.
Parliamentary sovereignty, also called parliamentary
supremacy or legislative supremacy, is a concept in the constitutional
law of some parliamentary democracies. It holds that the legislative
body has absolute sovereignty and is supreme over all other government
institutions, including executive or judicial bodies. It also holds that the
legislative body may change or repeal any previous legislation and so it is
not bound by written law (in some cases, not even a constitution) or
by precedent.
In some countries, parliamentary sovereignty may be contrasted
with separation of powers, which limits the legislature's scope often to
general law-making and makes it subject to external judicial review, where
laws passed by the legislature may be declared invalid in certain
circumstances. Many states have sovereign legislatures, including
th UnitedKingdom, NewZealand, the Netherlands, Sweden, Norway, Denma
rk, Finland, Iceland, Barbados, Jamaica, Papua New Guinea, the Solomon
Islands, and Israel.

6.CLASSIFICATION OF ADMINISTRATIVE POWERS

Administrative power is the power to administer or enforce a law. 
Administrative powers can be executive, legislative, or judicial in nature. 
Administrative power intends to carry the laws into effect, practical
application of laws and execution of the principles prescribed by the
lawmaker.
In Robertson v. Schein,  it was observed that“the authority to make rules
and regulations to carry out a policy declared by the lawmaker is
administrative and not legislative. Therefore, the power of an administrative
agency to make rules to carry out a policy is administrative in nature.  The
issue of an administrative body’s authority presents a question of law and
not a question of fact”.
Administrative agencies must exercise discretionary powers in accordance
to legal requirements.  Discretionary power must be used reasonably,
impartially and avoiding oppression or unnecessary injury.
Generally, administrative agencies are given broad discretion to exercise
their administrative authority.  Generally, statutes expressly confer right to
exercise discretionary power to administrative agencies.  However,
administrative agencies’ duties necessarily include the right to exercise
discretion.  Reason for granting discretionary power to administrative
agencies is because they possess experience and specialization in a
particular area.  This experience and specialization help agencies in
making decisions in the agencies’ area of expertise.
Administrative agencies are provided with discretionary power to ascertain
place and time to hear and decide matters that come before it.  Agencies
have the power to prosecute or enforce matters through civil or criminal
process.
Administrative law judges have discretion to abstain from participating in a
legal proceeding due to a conflict of interest of the adjudicator.  Abuse of
the discretionary power can be alleged only to reverse a decision and not to
allow it.  In addition to that, an adjudicator has power to decide whether or
not to impose a sanction.

 Classification of Administrative Functions as purely Legislative,

Administrative and Judicial

The administration is the meeting point of the three types of governmental

functions, namely legislative, judicial and administrative. Usually, the
executive performs the reside of all those functions which are not vested in
the other two branches of the government i.e. the legislature and the
judiciary. In the administrative process, all the three functions, which are
traditionally vested in the three different organs of government are
telescoped into one single authority. There are three organs of Government-
legislature, executive and Judiciary. These three organs essentially
perform three classes of of governmental functions- Legislative, executive
and judicial. The function of the legislature is to enact law; the executive is
to administer the law and the judiciary is to interpret the law and to
declare what the law is. Although the term ‘the Executive’ or ‘the
administration’ is employed, there is no implication that the function of the
executive are confined exclusively to those of an executive or administrative
character.
Today the executive performs variegated functions, viz. to investigate, to
prosecute, to prepare and to adopt schemes, to issue and cancel licences,
etc. (administrative); to make rules, regulations and bye-laws, to fix prices
etc. (legislative); to adjudicate on disputes, to impose fine and penalty, etc.
(judicial).
In Jayantal Amritlal Shodhan v. F.N. Rana, the SC observed that it cannot
be assumed that the legislative functions are exclusively performed by the
legislature, executive functions by the executive & judicial functions by the
judiciary.

Thus, speaking generally, an administrative action, can be classified into

three categories:
1. Quasi-legislative action or rule-making action;
2. Quasi-judicial action or Rule-decision action; and
3. Purely Administrative action or Rule application action.
Legislative functions
When any administrative authority exercises the law making power
delegated to it by legislature, it is known as the rule making action of the
administration or quasi legislative action. The legislative functions of the
executive consist of making rules, regulations, bye-laws etc. If a particular
function is termed ‘legislative’ or ‘rule making’ rather than ‘judicial’ or
‘adjudication’ it may have substantial effects upon the parties concerned. If
the function is treated as legislative in nature, there is no right to a notice
and hearing unless a statute expressly requires them.

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

“Quasi” means “not exactly”. Generally an authority is described as quasi-

Judicial when it has some attributes or trappings of judicial functions but
not all. Griffith and Street – Stated that quasi judicial function stands
midway between judicial function & Adm. Function. Quasi Judicial
decision — is nearer to administrative decision in terms of discretionary
element & nearer the judicial decision in terms of procedure & objectivity of
its end product.

Administrative Functions

In Ram Jawaya V/s State of Punjab, Mukherjee C.J. observed. “It may not
be possible to frame an exhaustive definition of what executive functions
means and implies.

Ordinarily the executive power connotes the residence of Govt. function

that remains after Legislative & Judicial functions are taken away.
Following characteristics are inherent in Administrative functions:
(1) Administrative order generally based on Govt. policy/ expediency.

(2) In administrative decision – no legal obligation to adopt judicial

approach—decision—subjective.

(3) Not bound by the rules of evidence of procedure.

(4) Can take decision in exercise of statutory powers or in the absence of

statutory provisions.

(5) Administrative functions – delegated / Sub-delegated

(6) Administrative authority may consider evidence, even use discretion.

(7) Administrative authority is not always bound principle of natural

justice unless statutory provision.

(8) Administrative action may be held invalid on the ground of

unreasonableness.

(9) Writs of prohibitions/ certiorari are not always available against

administrative actions.

CLASSIFICATION OF PURE ADMINISTRATIVE FUNCTION

Pure administrative function can be divided into three categories:

(a) Administrative discretion

(b) Ministerial action

(c) Administrative instruction Administrative discretion

a)The problem of administrative discretion is complex. It is true that in any

intensive form of government cannot function without the exercise of some
discretion by the officials. It is necessary not only for individualization of
the administrative power but also because it is humanly impossible to lay
down a rule for every conceivable eventuality in the complex art of modern
government. But it is equally true that absolute discretion is a ruthless
master.

B)Ministerial action:

Ministerial function is that function of agency which is taken as a matter

of duty imposed upon it by the law devoid of any discretion or judgment.
Therefore, a ministerial action involves the performance of a definite duty I
respect of which there is no choice, no wish and no freedom. Here, the high
authority dictates and lower authority carries out. Collection of revenue
may be one such ministerial action. When an administrative agency is
acting ministerially it has no power to consult its own wishes but when it is
acting administratively its standards are subjective and it follows its own
wishes.

c) Administrative instruction:

Administrative instruction means power to issue instruction flow from the

general executive power of the administration. ‘Administrative instruction’
is a most efficacious technique for achieving some kind of uniformity in
administrative discretion and to manipulate in an area which is new and
dynamic. These instructions also give a desired flexibility to the
administration devoid of technicalities of the rule-making process. The
instructions which are generally issued not under any statutory authority
but under the general power of administration are considered as directory
and hence are unenforceable not having the force of law. If administrative
instructions have no force of law but if these are consistently followed for a
long time government cannot depart from it at its own sweet will without
rational justification.

. D.K. Yadav v. J.M.A. Industries Ltd.

The Supreme Court further observed that the distinction between quasi-
judicial and administrative action which had become thin is now totally
eclipsed and obliterated.

MODULE 2

1.SCOPE AND LIMITATIONS OF DELEGATED LEGISLATION

Meaning of delegated legislation

‘Delegation’ has been defined by Black’s Law Dictionary as an act of

entrusting a person with the power or empowering him to act on behalf of
that person who has given him that power or to act as his agent or
representative. ‘Delegated legislation’ means exercising of legislative
power by an agent who is lower in rank to the Legislature, or who is
subordinate to the Legislature. Delegated legislation, additionally alluded to
as an auxiliary legislation, is an enactment made by an individual or body
other than Parliament. Parliament, through an Act of Parliament, can allow
someone else or some body to make enactment. An Act of Parliament
makes the system of a specific or particular law and tends to contain an
outline of the purpose for the Act. By delegating the legislation by
Parliament to the Executive or any subordinate, it empowers different
people or bodies to integrate more details to an Act of Parliament.
Parliament along these lines, through essential enactment (for example an
Act of Parliament), licenses others to make laws and guidelines through
delegated legislation. The enactment made by authorize person must be
made as per the reason set down in the Act of Parliament.

SIKKIM V.SURENDRA SHARMA

Facts: After Sikkim became the State of the Union Of India, the Directorate
of Survey and Settlement of Government of Sikkim created and advertised
for certain temporary posts. Like other people, the respondent has also
applied for the post. They got selected and were appointed in different
capacities. After the survey work got completed some of the employees got
terminated from the job. In 1982, some of the employees, who were ‘not
locals’, filed a writ petition in the High Court of Sikkim challenging the
decision of the Government asking why it has fired the employees from the
service on the ground that they were not locals.

Judgment: The judge held that the termination of the employees solely on

the ground that he is not local is impermissible under Article 14 and 16 of
the Indian Constitution. It was held that all rules and legislations created
under the power which is granted under sub-clause (k) of the Article 371F
constituted subordinate legislation. This article was added to the
Constitution through the 36th Constitutional Amendment.

ADVANTAGES OF DELEGATED LEGISLATION

There are many advantages of delegated legislation as it is essential for a

democratic country to flourish or make laws according to its public. These
advantages are as follows:

 Save time for the legislature.

 Allow for flexibility.

 Expert opinion is required in legislation.

 Parliament is not always present in the session.

  Used as an experimental basis.

 It is restored to use it in a situation of emergency.

 Can be easily Settle down with consulting the required party of the case.

SCOPE

Delegated legislation must not:

(i) exceed the parent/enabling Act made by the legislature

(ii) conflict with the enabling Act, and

(iii) alter the necessity, special features, make or polices of the Act.

LIMITATIONS

i. The Legislature cannot delegate Essential Legislative Functions which

consist in the determination or choosing of the Legislative Policy and of
formally enacting that policy into a binding rule of conduct.

ii. Thus what is permitted is the delegation of ancillary or subordinate

legislative functions or a power to fill up the details.

iii. Whether any particular legislation suffers from Excessive Delegation has
to be decided by courts having regard to the subject-matter, the scheme,
the provisions of the statute including its preamble, and the facts and
circumstances in the background of which the statute is enacted.

iv. Essential Legislative Functions include the power to repeal or modify a

law and cannot be delegated.

v. In the absence of an express or implied power to that effect, Delegated

Legislation, be it a rule, bye-law or a notification, cannot have
retrospective operation.

vi. A power to Tax or levy any fee cannot be inferred from mere generality of
the powers conferred by the enabling enactment. Such power of
 imposition of tax or fee by Delegated Authority must be very specific and
there is no scope of implied authority for imposition of such tax or fee.

vii. One of the important conditions prescribed under Section 23of the
General Clauses Act, 1897 is that the authority having power to make
the rules or bye-laws shall, before making them, must publish a draft of
the proposed rules or bye-laws for the information of person likely to be
affected thereby

viii. Where the delegating statute itself is ultra virus to the Constitution of
India, the rules made under such statute are also unconstitutional.

ix. The power to modify the parent statute is limited to bringing about
consequential changes and cannot be exercised to subvert the policy laid
down by the legislature. No radical change in the enacted law is
permitted.

x. The legislature is the master of policy and if the delegate is free to switch
policy it may be usurpation of legislative power it.

xi. Delegated Legislation may also be declared invalid on the following

grounds:

A. Violation of the Constitution of the India.

B. Violation of the Enabling Act.

C. Violation of Principles of Natural Justice when the Statute itself

provides of such requirement.

2.FORMS AND METHODS OF DELEGATED LEGISLATION

There are three forms of delegated legislation i.e., statutory instrument,

orders in council and by-laws.

a)Statutory instruments

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

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

It can be given in two ways, firstly, it can be given by laws of autonomous

bodies, e.g., Corporation and secondly, it can be given by-laws of a local
authority.

 By-laws of autonomous bodies:

These autonomous bodies have got the power to pass by-laws on matters
affecting them and other people in that locality or people residing in a
particular area. For example, they can make laws as public utility
authorities for light, water, etc. Usually, these authorities are given the
power to make rules for regulating their working. Such by-laws are
subject to judicial review. It can be reviewed to check that it must not be
ultra virus the Parent Statute. These autonomous bodies have the power
to frame rules for themselves. One more example of this autonomous
body is an association of Employers. The rules of these association are
termed as voluntary but this is not so in reality. It is fictitious as in its
effect these rules are binding upon members like other rules such as
rules of a professional association, industrial organisation, etc.
 

 By-laws of the local authority:

Parliament has the power to make new local bodies or it can alter the
existing body. It empowers such body with powers to make by-laws for
themselves for specific purposes. These authority exercises excess power
for public health, safety, and for good rule and governance. These by-
laws incur a penalty on its breach.

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

But there should be control over delegated legislation. Delegated legislation is

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

C) Orders in Councils:
This type of Delegated legislation can be given by Queens or the Privy Councils.
This Delegated legislation allows the Parliament to make laws without going
through the Parliamentary proceedings. Today, its main use is that it gives
legal effect to European directives. When the order issued under the privilege of
the Queen or the Crown such order is subject to review by the courts.

But order issued by the Parliament may or may not be subject to review by the
courts as it is made within the prescribed limits Act of Parliament. In both the
case the question can arises that if this legislation is the same as the Executive
legislative. The answer to this question is yes, it is equivalent to executive
legislative.

There is no major difference between these orders and Executive legislative

almost they both are same. The meeting of Privy council in such case could
simply means a meeting of some Privy Councillors which includes three or four
ministers, President, Councils and Clerk of Privy Councils. This shows that this
order is issued by the Executive who exercises powers of the Council.
 

3.ADMINISTRATIVE DISCRETION-RELEVANCE AND SCOPE

The concept of Administrative Discretion has assumed great importance with

the rapid growth of Administrative Law. The emergence of welfare state has led
the government to perform multitudinous functions to address myriad socio-
economic grievances of the people. Administrative discretion implies the
authority vested in the executive i.e. the public officials to undertake
administrative action based on their judgment. It is noteworthy here that
administrative discretion can include the power to act or not to act. It
encapsulates various administrative activities like regulation of private
enterprise, production, manufacture and distribution of essential commodities
etc for securing social security of the people. Other ministerial functions
include investigation, detention, seizure, confiscation, and destruction ot
property etc. The ambit of administrative function is wide and undefined.

The Supreme Court in Ram Jawaya Kapoor case had referred to the
administrative function as 'residuary functions' due to the quantum of
functions undertaken by the executive other than the law-making functions
and the judicial functions. A statute uses the word 'may' and phrases such as
if he is satisfied or if he is of the opinion or if he reason to believe to confer
discretionary power to the executive.

MEANING AND SCOPE OF ADMINISTRATIVE DISCRETION

Powers and functions of the Administrative Law are classified into three
categories namely Quasi-Legislative, Administrative and Quasi-Judicial powers
and functions. Administrative power is further divided into Ministerial and
Discretionary power. Ministerial power and functions are the duties of
administrative officers provided by certain laws to be performed in a specific
manner, leaving nothing to their judgment and discretion. Ministerial powers
and functions are considered exceptional as the majority of the functions of
administrative officers are discretionary.

Discretionary power of the administrative officers, on the other hand, is

choosing from the available alternatives but such discretion is subject to the
use of reason and justice and not personal notions. The term ‘discretion’ is
different from ‘administrative discretion’ and means the right and freedom to
decide a course of action in a particular situation. Here, a person has complete
freedom to do as he wishes without interferences and his actions do not affect
or harm the public at large. But under administrative discretions, the
discretion comes with the need for fulfilling principles of natural justice,
following reason, granting justice and all of this for the sole benefit and welfare
of the public.

4.ADMINISTRATIVE INSTRUCTIONS

Administrative instructions or administrative directions are issued by a higher

authority to a lower authority directing as to how certain discretionary powers
are to be exercised by the executive. Issuing such administrative instructions is
relatively a modern function of administrative bodies. The mechanisms by
which administrative authorities issue instructions are through letters,
circulars, orders, memoranda, pamphlets, public notices, press notices and
even notification in the government gazettes. Such instructions can be specific
or general and mandatory or directory. If they are directory then they are not
binding. In this article, the author seeks to analyse the binding nature of
mandatory administrative instructions, which is vague under administrative
law.

Administrative Directions are instructions or regulations issued by the higher

authorities to the lower authorities in the absence of a rule or enactment
pertaining to a specific issue or to compensate or fill the lacunas in the existing
laws and thereby constructing better standards or platforms to tackle issues.
Administrative directions is otherwise designated as ‘Administrative quasi-law’
or ‘ Administrative quasi-legislations’. These directions can be specific, that is
formulated and applied to a particular purpose, or a particular case ; or it may
be general nature, laying down general principles, policies, practices, or
procedures to be followed in similar cases. And further, these direction are
issued in the form of letters, circulars, orders, public notices, pamphlets, press
notes, etc, it is even published in Government Gazette. A direction does not
confer any enforceable rights on an individual, or impose an obligation on the
Administration or individual. Even if a direction is misapplied or ignored by the
Administration, the affected individual can hardly claim a remedy through a
court of law.But, this doesn’t mean that, administrative authorities may
disregard them with impunity. The authorities are expected to follow the
directions and their breach by them may lead to disciplinary or other
appropriate actions against them.

Need For Administrative Direction

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

MODULE 3

ADMINISTRATIVE ADJUDICATION-NEED,SCOPE AND RELEVANCE

Administrative decision-making’ or ‘Administrative Adjudication’ is a by-

product of an intensive form of government, and consequential socialization of
law (thus causes for the evolution of administrative adjudication and delegated
legislation are same); the traditional judicial system cannot give to the people
that quantity and quality of justice which is required in a welfare state,
because it is the highly individualistic and ritualistic approach. Natural
justice is the common law doctrine that provides important procedural rights
in administrative decisions- making. The doctrine now has a wide application
and is presumed by the courts to apply the exercise of virtually all statuary
powers. But the courts have also accepted that natural justice can be excluded
by legislation that is expressed in sufficiently clear terms. The doctrine (natural
justice) is now termed as a synonym of fairness in the concept of justice and
stands as the most accepted methodology of governmental action.

Need for Administrative Adjudication

(i)It provides a system of adjudication which is informal, cheap, and rapid,

unlike the traditional courts.

(ii) It explores new public law standards based on moral and social principles
away from the highly individualistic norms developed by courts. For example,
the Employees’ State Insurance Scheme in India required a new standard of
medical service and treatment to which all the insured population and doctors
must conform. The setting up of new standards requires expertise,
specialization, and experimentation which can be provided by the
administration.

(iii) Nowadays, there is a growing emphasis on preventive justice rather than

punitive. This can be done only by administrative agencies exercising
adjudicatory powers.
However, it is being said that strategy of administrative adjudication was
developed not as a result of public necessity but for governmental convenience
and expediency. People doubt the independence of administrators as judges
and also fear their anti-legal approach.

2.POWERS OF ENQUIRY AND INVESTIGATION OF THE ADMINISTRATION

AND VARIOUS STATUTORY MECHANISMS

INTRODUCTION

To enable the administration to discharge effectively the multifarious functions

entrusted to it, it needs to exercise broad powers of conducting investigation
and inquiry into various matters. The primary purpose of this technique is to
collect information with a view to deciding upon a further course of action to
meet a given situation or to find correctives to a given problem.

The administration, in the context of today’s complicated socio-economic life,

has come to depend more and more on ascertainment of facts. It is right to say
that an action taken in ignorance of full facts may not only fail to correct the
given situation but may even create problems. The policy-maker or the
administrator can initiate effective remedial measures to deal with specific
problems only when he is in full possession of the relevant information, facts,
and figures, and to collect these, inquiries and investigations become inevitable
tools in the hands of administrators.

The use of compulsory processes by the administration to collect information

from an individual interferes with his liberty. While an investigation or inquiry
may not always result in any follow-up action subsequently, and may not
subject the individual concerned to any liability, nevertheless, the initiation of
the investigation by itself may have serious consequences for him.

He may be subjected to a good deal of physical inconvenience, mental agony

and expenses, and his reputation and business may stand injured in the
process. It is, therefore, necessary to reconcile the administration exigency of
holding an investigation into the affairs of an individual with his interests and
rights by providing adequate safeguards subject to which the administration
may invoke its power of investigation.

THE NEED FOR ADMINISTRATIVE INQUIRY

Statutory inquiry:
Many administrative and quasi-judicial authorities exercising statutory powers
are required to make some preliminary inquiry as a condition precedent to the
exercise of such power, e.g.; hearing objections at a local inquiry before making
an order of compulsory acquisition of land, under the Acquisition of Land Act,
1946, in England. The need for such inquiry, broadly speaking, is to collect the
views of the parties to be affected by the exercise of the statutory power,
together with the relevant facts, and to place them before the government or
other authority for its consideration in exercising the power, though, of course,
the statutory authority is not bound to act according to the inquiry report but
must exercise his independent view. The procedure to be followed at these inquiries
is laid down in the statute itself or in the statute rules. Generally speaking, the party
affected by the resulting statutory order must be given notice of the inquiry.

Ad hoc inquiry:

In the present inquiry, ad hoc, is to make some investigation as to any

administrative matter of public importance, in order to enable the Government
to obtain facts and other materials involved in such matter. In England,
administrative inquiries of the present type are not governed by the Tribunals
and Inquiries Act, 1958.

FUNCTIONS OF COMMISSION OF INQUIRY

In England, a tribunal may be set up under the Tribunals of Inquiry

(Evidence) Act, 1921, when both Houses of Parliament resolve that it is
expedient so to do to inquire into “a definite matter of urgent public
importance.”

In India, similarly, provision for the setting up of a Commission of Inquiry to

make an investigation into any matter of public importance has been made by
enacting the Commissions of Inquiry Act, 1952. Either the Government of
India or the Government of a State can avail itself of the provisions of this Act,
provided the conditions prescribed by Section 3 of this Act are satisfied.

It is evident from the provision that when a resolution in that behalf is made by
the Legislature, the appropriate government is bound to a Commission of
Inquiry under this Act. Even in the absence of such resolution, the appropriate
Government may appoint such commission to make an inquiry into a matter of
public importance within its own jurisdiction.

There is nothing to bar a succeeding Ministry from advising the Governor to

order an inquiry against an outgoing Ministry. Nor is there any legal bar to the
appointment of an inquiry during the pendency of a suit or prosecution where
the subject-matter before the Commission is different from that before the
Commission.

SCOPE OF THE FUNCTIONS OF A COMMISSION OF INQUIRY

The inquiry made by a Commission of Inquiry under the Act of 1952 is not a
judicial or quasi-judicial inquiry. Its only function is to investigate facts and
record its findings thereon and then to report to the Government in order to
enable it to make up its mind as to what legislative or administrative measures
should be adopted to eradicate the evil found or to implement the beneficial
objects it as in view.

The Commission has no power of adjudication in the sense of passing an order

which can be enforced proprio igore. For the same reason, even though the
commission may make recommendation to the Government as to what
measures may be adopted, including punishment for future action as a
deterrent for delinquents in future, yet, not being a court, it cannot recommend
the taking of action by way of punishment of the wrongdoer for past acts, for
punishment for wrongs already committed can be imposed only by a court of
law.

The purpose of inquiry may be:

1. To ascertain facts as to enable the appropriate Legislature to undertake

legislation relating to a matter of public importance.

2. To make an administrative investigation into certain facts, it is legitimate to

hold an inquiry for investigation of facts for the purpose of taking appropriate
legislative or administrative measures to maintain the purity and integrity of
political administration in the state.

3. A matter does not cease to be of public importance merely because the

minister who is involved has ceased to hold his office, or because there has
been no public agitation over it.

4. In order that a Commission may effectively carry out the foregoing powers, it
may exercise ancillary powers, e.g.

4.1. To collect materials;

4.2. To record its findings on the facts investigated;

4.3. To express its views on the facts so found;

4.4. To recommend future action, as an advisory body;

4.5. To permit inspection of documents produced before it, to a party appearing

in the matter.

On the other hand, the Legislature or the executive cannot usurp judicial
powers belonging to the courts by setting up a Commission of Inquiry.] Hence,
a Commission of Inquiry cannot be set up with power “to recommend the
action which should be taken as and by way of securing redress or
punishment, the latter being functions of a court of law.

SEARCH AND SEIZURE

Powers of search and seizure are gradually assuming importance in this

administrative age. Powers of search and seizure are being increasingly
conferred on administrative authorities under various statutes for law
enforcement. Power of search and seizure in any system of jurisprudence is an
overriding power of the State for protection of social security and that power is
necessarily regulated by law.

SELF INCRIMINATION

A fundamental canon of Anglo-American criminal jurisprudence is the privilege

against self-incrimination which is guaranteed in India by Article 20(3) of the
Constitution which runs as: “No person accused of any offense shall be
compelled to be a witness against himself.” At times, certain statutes also
provide the same protection, e.g., section 6 of the Commissions of Inquiry Act,
1952.

Article 20(3) as interpreted by the Supreme Court, has become inapplicable to

administrative inquiries. In Raja Narayanlal v. Mistry on receiving the report
of the Registrar of Companies that the appellants managed companies were
being run in fraud of the contributors and disclosed an unsatisfactory state of
affairs, the Government of India appointed an inspector to investigate into the
affairs of the companies in question.

The inspector who could examine any person on oath was told to bear in mind
that for a successful prosecution of the appellant, the evidence in support of
the charge must be “clear, tangible and cogent.” The appellant claimed the
privilege against self-incrimination under Article 20(3) on the ground that the
main object behind investigation was to discover whether he had committed
any offense or not.
Rejecting his claim, the court held that the privilege was available to an
accused person only, and as no formal accusation was laid against the
appellant, he could not claim the privilege. The report of the registrar could
hardly amount to an accusation; it was submitted to the Government to enable
it to decide whether it could undertake an investigation.

The purpose of the inquiry was to find out how the affairs of the company were
being carried on; a prosecution might be launched ultimately against the
appellant but that could not retrospectively change the complexion or the
character of the investigation.

CONCLUSION

The first concern of an investigator must be to ensure that the investigation

does not step outside the ambit of the relevant statutory power. A so-called
non-statutory investigation may be no more than an ultra vires exercise of
power, with serious consequences in the event of any attempt to exercise
coercive power.

On the other hand, there is nothing to stop government asking questions of

anybody and thus conducting an investigation outside any statutory
framework. This may involve an exercise of prerogative or common law power.

Such an investigation may be subject to privacy legislation and certainly must

comply with the common law principles of procedural fairness. It may also be
subject to judicial review. While a non-statutory investigation operates outside
the parameters of a statute, it does not operate beyond the reach of
administrative law.

An investigation undertaken outside any statutory framework may be no more

than an instance of ultra vires administrative action. On the other hand, a
non-statutory inquiry may legitimately be established to give advice or
implement a program. Such an inquiry may need to determine on the basis of
first principles issues relating to procedure and the proper ambit of its powers.

MODULE 4

1.ARTICLES 32,136,226 and 227 OF THE CONSTITUTION AND ITS

TOPICAL RELEVANCE,SCOPE AND DISTINCTIONS

Article 32
One of the defining principles of Common Law is “Ubi Jus, Ibi Remedium”. This
maxim means “where there is a right, there is a remedy”. The right to a remedy
has been acknowledged as a fundamental right in all legal systems
historically. Under Article 32 of the Indian constitution, every citizen of India
has been given the right to seek constitutional remedy from the Supreme Court
if they have been deprived of their fundamental rights. The Supreme Court is
responsible for the administration of justice and also acts as the guardian of
the constitution and the protector of fundamental rights. It would be
meaningless to grant fundamental rights but not provide remedies for the
enforcement of the rights if they are violated. 

The Indian Constitution in Part III (Article 12 to 35) contains the Fundamental
Rights. It is the charter of freedom of the citizens of India. It is what the Magna
Carta was; it contains the essential freedoms of the people of India. Article 32
is a constitutional safeguard for these rights. Dr B.R Ambedkar had referred to
it as “the very soul of the Constitution and the very heart of it” during the
Constituent Assembly debates.

Nature and scope of Article 32

Writs are prerogative remedies. Article 32 is itself a Fundamental Right and the
Supreme Court’s jurisdiction under article 32 is mandatory by nature and not
discretionary. The writ jurisdiction of High Courts are discretionary and
intrinsic for other purposes. The Scope of Article 32 in comparison to Article
226 is limited. The Supreme Court can’t be approached for any other legal right
other than fundamental rights. An important feature of Article 32 is that it is
not found alongside other articles that define the Supreme Court’s General
Jurisdiction (Article 124-147). 

A palpable question arises, can writs be maintainable against a party that

ceases to act as a private entity and takes up roles of public nature? In the
case of the Board of Control For Cricket vs Cricket Association Of Bihar, the
Supreme Court examined the nature of public duties and functions, opening
that BCCI as an organization performed “clearly public functions” as the
nature of functions and duties undertaken were inherently public. 

Types of writs

Five types of writs are provided under the Indian Constitution which can be
issued by the Courts. They are:

1.Habeas Corpus
2. Mandamus 

3. Prohibition

4. Certiorari 

5. Quo Warranto

The right to move to the Supreme Court is a Fundamental Right under Article
32 whenever there is an infringement of the rights. The Supreme Court has a
duty to protect and guard the fundamental rights guaranteed by the
Constitution.

Article 32 and Article 226

Article 32 is a Fundamental Right, in comparison Article 226 is a constitutional

right that gives the High Court’s discretionary powers. Article 226 clearly states
that the High Court’s effectiveness is throughout the territories in alliance to
which it exercises jurisdiction, to issue to any person or authority including in
appropriate cases any Government within those territories directions, orders or
writs. The scope of Article 226 is broader than Article 32 as legal rights other
than fundamentals can also be enforced through it.

Grounds of difference ARTICLE 32 ARTICLE 226

Right Article 32 is a Not a fundamental right,
fundamental right under it is a constitutional
Part III. right.
Suspension Can be suspended if an Cannot be suspended
emergency has been even at the time of
declared by the President emergency under Article
under Article 359. 359.
Scope Limited scope and Article 226 has a
applicable only for broader scope and is
remedy if fundamental applicable if either a
rights are violated fundamental right or a
legal right has been
violated.
Territorial Jurisdiction Pan India Territorial Empowers the High
Jurisdiction. Court to issue a writ
within its local
jurisdiction and has a
narrower territorial
jurisdiction.
Discretion Power Rights and remedies Article 226 gives the
under it can’t be refused High Court’s
by the Supreme Court. Discretionary power,
hence it is up to the
wisdom of the high court
to issue a writ or not.

ARTICLE 136

Article 136 of the Indian Constitution deals with a special jurisdiction which
has been granted to the Supreme Court, the Apex court in India. This can be
understood as a residuary power vested in the Supreme Court. Article 136 is a
power to appeal in the apex court, which can be filed by any person against
any judgment or order of any Court or tribunal in the territory of India.

Understanding Article 136

This is the power to grant special leave. The power of the court is discretionary
in nature. This discretionary power may be exercised by the court, where the
very essence of granting justice is violated, and the court below has done wrong
to the law and the parties. Since there is no said rule when can or cannot the
power under Article 136 can be invoked. Thus it becomes the discretionary
power of the Apex Court.

The power vested under Article 136 is wider than the power granted under
Article 134A. As per 134A, the High Court grants certificate making it fit to
appeal to Supreme Court. In the case of Pritam Singh v State[1], the Supreme
Court clarified the exercise of this power only in expectational cases and needs
to be exercised sparingly.

The very purpose of enacting such a provision in the Indian Constitution is so

that the Apex court has the power to interfere if any law has been wrongly
interpreted by the court or any injustice has been done.

Read Also – Increase compensation for acid attack victims in India

Who can file an SLP?

Any Aggrieved Party can prefer filing an appeal. The nature of the case may be
civil or criminal. The aggrieved party by the decision of any court or tribunal in
any matter may prefer an appeal in the apex court.
Conclusion

Article 136 is not a right of the party but the discretion of the court to interfere
in case of miscarriage of justice and irregular interpretation of the law. The
special power vested in the Apex court is aimed to ensure that justice is never
denied, and it is served rightfully. However, the law is too lenient in allowing
appeals from any court, in any case, to increase the pendency of the cases and
justice thus delayed.

ARTICLE 226 AND 227

Articles 226 and 227 are the parts of the constitution which define the powers
of the High Court.

Article 226, empowers the high courts to issue, to any person or authority,
including the government (in appropriate cases), directions, orders or writs,
including writs in the nature of habeas corpus, mandamus, prohibition, quo
warranto, certiorari or any of them.

What are these Writs?

Habeas Corpus - A simple dictionary meaning of the writ of Habeas Corpus is
"a writ requiring a person under arrest of illegal detention to be brought before
a judge or into court, especially to secure the person's release unless lawful
grounds are shown for their detention".

Mandamus - A writ issued as a command to an inferior court or ordering a

person to perform a public or statutory duty.

Prohibition - A writ of prohibition is issued primarily to prevent an inferior

court or tribunal from exceeding its jurisdiction in cases pending before it or
acting contrary to the rules of natural justice.

Quo warranto - This simply means "by what warrant?". This writ is issued to
enquire into the legality of the claim of a person or public office. It restrains the
person or authority to act in an office which he / she is not entitled to; and
thus, stops usurpation of public office by anyone. This writ is applicable to the
public offices only and not to private offices.

Certiorari- Literally, Certiorari means "to be certified". The writ of certiorari

can be issued by the Supreme Court or any High Court for quashing the order
already passed by an inferior court, tribunal or quasi-judicial authority.
The High Court is conferred with this power under Article 226 of the
Constitution of India for enforcement of any of the fundamental rights
conferred by part III of the Constitution or for any other purpose.

Article 227 determines that every High Court shall have superintendence

over all courts and tribunals throughout the territories in relation to which
it exercises jurisdiction (except a court formed under a law related to armed
forces).

The High Court, can, under Article 227 –

 Call for returns from such courts,

 Make and issue general rules and prescribe forms for regulating the
practice and proceedings of such courts.

 Prescribe forms in which books, entries and accounts be kept by the

officers of any such courts.

 Settle tables of fees to be allowed to the sheriff and all clerks and officers
of such courts.

Scope , Powers and Difference between Article 226 and Article 227

The Hon'ble Supreme Court, in the case of Surya Devi Rai vs. Ram Chander
Rai, relied on several constitutions Judgments of the Hon'ble Apex court, one
of which was Umaji Keshao Meshram and Ors. vs. Smt. Radhikabai and
Anr, which laid down scope, power and differences between Article 226 and
Article 227.

The first and foremost difference between the two articles is that Proceedings
under Article 226 are in exercise of the original jurisdiction of the High
Court while proceedings under Article 227 of the Constitution are not original
but only supervisory. Article 227 substantially reproduces the provisions of
Section 107 of the Government of India Act, 1915, excepting that the power of
superintendence has been extended by this Article to tribunals as well. Though
the power is akin to that of an ordinary court of appeal, yet the power under
Article 227 is intended to be used sparingly and only in appropriate cases for
the purpose of keeping the subordinate courts and tribunals within the bounds
of their authority and not for correcting mere errors.

The court further observed that power under Article 227 shall be exercised only
in cases occasioning grave injustice or failure of justice such as when:
(i) The court or tribunal has assumed a jurisdiction which it does not have, (ii)
The court or tribunal has failed to exercise a jurisdiction which it does have,
such failure occasioning a failure of justice, and

(iii) The jurisdiction though available is being exercised in a manner which

tantamount to overstepping the limits of jurisdiction.

The jurisdiction of 226 and 227 is vast and has to be exercised sparingly. It can
be exercised to correct errors of jurisdiction, but not to upset pure findings of
the fact, which is within the domain of an appellate court only. This is where
the power of revision comes into picture. The purpose of revision is to enable
the revision court to satisfy itself as to the correctness, legality or propriety of
any finding, sentence or order recorded or passed and as to the regularity of
any proceedings of the inferior criminal court. The jurisdiction of Article 226
cannot be used as a Revision or Appeal court as the rejection of the order by
the subordinate court does not arise the question of violation of fundamental
right when the alternate remedy of appeal is available to the aggrieved.

2.DOCTRINE OF ULTRA VIRES

An administrative authority must act within its powers which are

conferred upon it by legislature and such a proposition is well considered
as foundation of administrative law. The key purpose of administrative law is
keep within limits the powers of government so that the rights of citizens are
protected and their rights may not be abused. The juristic basis according to
which courts exercise judicial review whenever there is any allegation that
administrative authorities are acting outside their powers conferred to them,
this is commonly referred as “doctrine of Ultra vires”. Ultra vires is a latin
phrase which means that “beyond powers”. To provide relief for the parties who
are affected due to various abuse of power committed by administrative
authority so to curtail such abuse of power court developed ultra vires doctrine
as a firm doctrine of law.

Ultra vires has a tangled history it was first used to denote

excess of power used by independent statutory bodies and railway
companies in midst of nineteenth century. The term also came with relation to
municipal corporation then to local government and then to inferior judicial
bodies. The doctrine of Ultra vires is a fundamental concept used in
administrative law which depicts that a recipient of statutory power can do
only such acts which he is authorized to do by statute. If court finds any act
beyond such power or not authorized by act then court can declare it
void and of no legal effect. Today, nearly all powers of
administration are statutory in origin. This doctrine involves
interpretation of statutes by judges and also their personal attitude to
legislation whether hostile, neutral or friendly have any effect on scope of
legislation. The doctrine of Ultra vires applies to every legal authority or person
whether a trading corporations, commercial companies or public undertakings
and legal authorities. The doctrine of Ultra vires is originated in
company law to safeguard interest of companies’ shareholders. As in the
past it was mandatory for companies to have its memorandum which included
an object clause. The object clause included the objects for which company is
formed and company is always required to within the purview of objects clause
which is included in the memorandum. Any action which is beyond the
purview of objects mentioned in the object clause is Ultra vires and therefore
will be considered invalid.

This aforesaid principle was established by house of lord in “Ashbury Railway

Carriage and Iron Company Ltd V Riche1 and was latter borrowed to
administrative law as it was difficult for courts to question the power or
authority of legislative due to principles of separation of power and
parliamentary sovereignty.

An action of the administrative officer is intra vires when it falls within the
ambit of the power conferred on it but ultra vires if it goes beyond this limit2.
Example - A legal council derives power to regulate private activities from
statute and if they perform acts beyond such statutes. In several fields
parliament has provided no right of appeal against administrative
decisions. Otherwise the superior courts will exercise such power which would
have supervisory jurisdiction on matters which exceeds limits of authorities
and thus will effect on matters such as limits of an authority's powers, which
affect the legality of official decisions. While exercising this power, courts can
utilize the principles of administrative law that came from judicial decision.
When a delegated legislation exceeds its power that means it declares to be
ultra vires it is considered ultra vires. Such validity can be checked in the court
directly.

A person is allowed to challenge the validity of an administrative action by

challenging the validity of any relevant rule and a person whose interest is
affected he can challenge that piece of delegated legislation stating it ultra
vires.

Ultra vires doctrine has two aspects:

  SUBSTANTIVE ULTRA VIRES
 PROCEDURAL ULTRA VIRES

3.TRIBUNALS SYSTEM

CENTRAL AND STATE ADMINISTRATIVE TRIBUNALS

Characteristics of Administrative Tribunals

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

1. Administrative tribunals must have statutory origin i.e. they must be

created by any statute.

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

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

functions and is bound to act judicially in every circumstance.

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

5. Administrative tribunals are independent and not subject to any

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

6. In the procedural matters, an administrative tribunal possesses the

powers of a court to summon witnesses, to administer oaths and to
compel the production of documents, etc.

7. These tribunals are bound to abide by the principle of natural justice.

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

administrative tribunals.

9. The prerogative writs of certiorari and prohibition are available against

the decisions of administrative tribunals.

Objective for the establishment of Administrative Tribunals

The main purpose of the introduction of this act was :

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

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

Qualification

Section 6 of the Administrative Tribunals Act of 1985 specifies the

qualifications and appointment of tribunal members.

Chairman: In order to be appointed as a chairman, a person must have the

following requirements:

-He is or has been a High Court judge.

-He has been Vice Chairman for around two years.

-He has served as Secretary to the Government of India. or

-He has had any other position with the pay scale of secretary.

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

she has the following qualifications:

-Is or has been a High Court judge, or

-has held the post of Secretary to the Government for two years, or

-any other post carrying the same pay scale under the Central or State
Governments, or

-has held the post of Additional Secretary to the Government of India for five
years, or any other post carrying the Additional Secretary pay scales.

-Judicial Member: To be appointed as a judicial member, a person must-

1.Be or have been a High Court judge or a member of the Indian Legal Service
and have held a post in Grade I of the service for at least three years.

2.Administrative Member: To be appointed as an Administrative member, a

person must- Have held the position of Additional Secretary to the Government
of India or another equivalent post for at least two years, or

-Have held the position of Joint Secretary to the Government of India or

another equivalent post for at least two years, or

-Have adequate administrative experience

 Central Administrative Tribunal

 o It has jurisdiction to deal with service matters pertaining to the
Central Government employees or of any Union Territory, or local
or other government under the control of the Government of India,
or of a corporation owned or controlled by the Central Government.

 The CAT was set-up on 1 November 1985.

 It has 17 regular benches, 15 of which operate at

the principal seats of High Courts and the remaining two
at Jaipur and Lucknow.

 These Benches also hold circuit sittings at other seats of

High Courts. The tribunal consists of a Chairman, Vice-
Chairman and Members.

 The Members are drawn, both from judicial as well

as administrative streams so as to give the Tribunal
the benefit of expertise both in legal and
administrative spheres.

o The appeals against the orders of an Administrative

Tribunal shall lie before the Division Bench of the concerned High
Court.

 State Administrative Tribunal

o Article 323 B empowers the state legislatures to set up tribunals

for various matters like levy, assessment, collection and
enforcement of any of the tax matters connected with land
reforms covered by Article 31A.

Administrative Tribunals for service matter [Article 323A]

Article 323A provides the establishment of administrative tribunals by law

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

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

Tribunals for other matters [Article 323B]

Article 323B empowers the Parliament and the State Legislature to establish
tribunals for the adjudication of any dispute or complaint with respect to the
matters specified under clause (2) of Article 323B. Some of the matters given
under clause (2) are a levy, assessment, collection and enforcement of any tax;
foreign exchange and export; industrial and labour disputes; production,
procurement, supply and distribution of foodstuffs; rent and it’s regulation and
control and tenancy issues etc. Such a law must define the jurisdiction, powers
of such tribunals and lays down the procedure to be followed.

MODULE-5

Concept of Open Government and the Right to Information

The Right to Information and Open Government are considered to be two of the
most important topics in the field of Administrative Law in today's era. At the
present moment, democratic countries have started laying immense
importance to have an open and a transparent government.

The author submits that indeed there are quite a few things, which need to be
kept confidential in the interest of public security or national interest, and
sometimes, the law may impose secrecy in the interest of the individual, but
secrecy should never be more than what is absolutely necessary. What is
indeed necessary in a modern democracy is to draw a balance between what is
'secrecy' and 'open government' with an accent on the latter. There are a
number of reasons to suggest an open government.

Primarily, participation in government by the people is regarded, as an

important aspect of democracy and people cannot participate unless they have
information as to what is going on in the country. A modern democratic state
being answerable to the people, the people are entitled to know what policies
and programmes, how and why, are being followed by the government. Another
important factor justifying the openness in government activities is that, being
an activist entity, the government gathers a vast arsenal of powers in a welfare
state. These powers are used to affect economic interests and the personal
liberty of the individual. Therefore, it is extremely essential that these powers
are exercised for public good, not improperly and for the purposes of which the
powers are conferred. Hence, this objective can be best ensured by giving
access to the individual to governmental information and not shroud in secrecy
as to how the government exercises its power in individual cases.

Since power tends to corrupt, and absolute power tends to corrupt absolutely ,
there is an inherent danger that the vast powers available to the executive may
be used not for public good, but for private gain, or for corrupt motive. It is
therefore essential for the people to have as much information about
governmental operations as possible. This is because openness or transparency
in government is bound to act as a powerful check on the abuse or misuse of
power by the government. In India so far the progress towards an open
government has been rather tardy. However, it may be pertinent to note that
Bhagwati, J. had advised in the landmark case of SP Gupta v. Union of India,
"Open Government is the new democratic culture of an open society towards
which every liberal democracy is moving and our country should be no
exception.

Leading authors have declared that there are several aspects of open
government, which have been enumerated as the following:
1) Presentation of documents by the government in the court in the course of
litigation;
2) Official Secrecy, and;
3) Access to Information.