Explain the origin and development of Administrative Law in India

According to the definition of Sir Ivon Jennings‖ Administrative Law can be defined as a law
relating to administration. It determines the organization, powers and duties of administrative
authorities.‖

With the advent of time the definition and meaning of administrative law has gone through a
great deal of transition .From early 19th century to today‘s era the functions of the administration
has increased manifold leading to a transformation in the meaning of the term administrative
Law in accordance with the changes in the society.

HISTORICAL BACKGROUND

History of administrative law is mute and speaks very rare. In ancient times, it Was king's rule
followed and admired by the citizens. King was the supreme power and laws made by him were
mandatory to be followed.

It was a „Police state‟. It doesn't end here, and makes me to go into deepness of those days in
which there was no system of government. Very object of the people was just to defend their
respective territories from external rebellions & wars, maintaining tranquility and collect taxes
from citizens for maintaining inter-state activities. It is usually known as „Laisser faire‟ system
that leave government control over private business & direct result of which is freedom of
private persons or personal bodies. Wherein, rich started becoming richer and poor, poorer. For
abridging such trend a significant concept of „Government‟ was introduced

Government simply means keeping powers bestowed within the certain ambit and preventing
powerful engine to run over country. This is how Governmental administration sums up, read
with historical background.

ADMINISTRATIVE LAW IN ANCIENT INDIA

Administrative law was existent in India even in ancient times. Under the Mauryas and Guptas,
several centuries before christ, there was well organized and centralize Administration in India.
The rule of "Dharma" was observed by kings and Administrators and nobody claimed any
exemption from it. The basic principle of natural justice and fair play were followed by the kings
and officers as the administration could be run only on those principles accepted by Dharma,
which was even a wider word than "Rule of Law" or "Due process of Law", Yet, there was no
Administrative law is existence in the sense in which we study it today.

ADMINISTRATIVE LAW AFTER ESTABLISHMENT OF EAST INDIA COMPANY

With the establishment of East India company (EIC) and event of the British Rule in India The
powers of the government had increased. Many Acts, statutes and Legislation were passed by the
British government regulating public safety, health, morality transport and labour relations.

DEVELOPMENT OF ADMINISTRATIVE LAW AFTER INDEPENDENCE

Since independence, the activities and the functions of the government have further increased.
Under the Industrial Disputes Act 1947, the Minimum Wages Act 1948 important social security
measures have been taken for those employed in Industries.

The philosophy of a welfare state has been specifically embodied in the constitution of India. In
the constitution itself, the provisions are made to secure to all citizens social, economic and
political justice, equality of status and opportunity. The ownership and control of material
resources of the society should be so distributed as best to sub serve the common good. The
operation of the economic system should not result in the concentration of all these objects.

The state is given power to impose reasonable restrictions even on the Fundamental Rights
guaranteed by the constitution.

In India, The Constitution is supreme with discretionary powers at the other side in England the
parliament is supreme. Law enacted by the parliament is authoritative and fully admired. No
person can challenge the validity of such law but only
Ultra Vires statute can challenge under which it was taken.

Besides, Law enacted by the British parliament is the highest form of law and prevails over
every other form of Law.

In our India on the other hand by the written Constitution power of Judicial Review is on
Supreme Court and High court the same can be challenged as
Ultra Vires.

SOURCES OF ADMINISTRATIVE LAW IN INDIA

ADMINISTRATIVE LAW is mainly concerned with powers. It is necessary to examine the

sources of powers before considering in details how power is controlled. The customary
divisions of the sources of legal power are "Common law" and "Statute", so it is with
administrative authority. So far as the Central Government is concerned its common law powers
falls under the Royal Prerogative which however has no relevance to the activities either of local
Government authorities or modern statutory corporations. Which include both ministerial
departments. Such as Housing and Local Government Education. Since the latter are exclusively
the creation of parliament it follows their powers are derived solely from the same source.
Sources of Administrative Law ↓

Now the question arises as to what are the sources of Administrative law. The following are the
chief sources of Administrative law
1. Constitution
2. Acts and Statutes
3. Ordinances, Notifications, Circulars etc.
4. Judicial decisions
CONSTITUTION
The Constitution is the creator of various several administrative bodies and agencies. It gives a
brief details about the mechanism and the administrative powers granted to various authorities.
Constitutional Law has notwithstanding Substantial and Procedural law a separate status defining
structure and organization of only Laws particularly. On the other hand

Administrative Law obeying Constitutional laws and dealing with organization and functioning
of laws „In Force‟.
Application and implementation of such statutes should be in conformity with the Constitution.
Any law abridges or endangers or violates or abrogates Right of an Individual provided as
Fundamental Rights will attract the action of judicial review or any misconduct detected in
functions will also have to be reviewed by the action of Judges as Judiciary having powers to
decide the administrative matters. Source of Administrative Law and Constitutional Law id same
and i.e. Rule of Law

ACTS AND STATUTES

Acts and Statutes passed by legislature are important sources of administrative law because they
elaborately detail the powers, functions and modes of control of several administrative bodies.
Delegated of Parliament comprise public general Acts legislation, includes statutory rules and
orders. Acts of parliament fall into two categories which may be conventionally termed
constituent Acts and enabling Act, but some Acts deal with both constitution and power. In short,
we can say statues are one of the important sources of Administrative law.

ORDINANCES, NOTIFICATIONS, CIRCULARS ETC.

Ordinances are issued by the President (at Union / Federal level) and Governor (at State level)
and are valid for a particular period of time. These ordinances give additional powers to
administrators in order to meet urgent needs.
Administrative directions, notifications and circulars provide additional powers by a higher
authority to a lower authority. In some cases, they control the powers.

JUDICIAL DECISIONS
Judicial decisions or judge-made law have been responsible for laying down several new
principles related to administrative actions. They increased the accountability of administrative
actions and acted as an anchor between the notifications, circulars etc. to be linked and complied
directly or indirectly with the constitutional or statutory provisions.

DEFINE ADMINISTRATIVE LAW. ITS NATURE AND SCOPE

DEFINITION OF ADMINISTRAVTIVE LAW

It is impossible to attempt any precise definition of administrative law which can cover the entire
range of administrative process. The American approach to administrative law is denoted by the
definition by the definition of administrative law as propounded by Davis.

According to him, administrative law is the law concerning the powers and procedures
of administrative agencies, including especially the law governing judicial review of
administrative action. It does not include the enormous mass of substantive law produced by
the agencies. An administrative agency, according to him, is a governmental authority, other than
a court and other than a legislative body, which affects the rights of private parties through either
adjudication or rule-making.

Dicey has defined administrative law as denoting that portion of a nation‟s legal system
which determines the legal status and liabilities of all state officials, which defines the rights
and liabilities of private individuals in their dealings with public officials, and which
specifies the procedure by which those rights and liabilities are enforced.

The definition is narrow and restrictive in so far as it leaves out of consideration many aspects of
administrative law, e.g., it excludes many administrative authorities, which strictly speaking, are
not officials of the states such as public corporations; it also excludes procedures of
administrative authorities or their various powers and functions, or their control by Parliament or
in other ways, Dicey‘s formulation refers primarily to one aspect of administrative law, i.e.
control of public officials. Dicey formulated his definition with the droit administratif in view.

Sir Ivor Jennigs defines administrative law as the law relating to administration. It
determines the organization, powers and the duties of administrative authorities. This
formulation does not differentiate between administrative and constitutional law. It lays entire
emphasis on the organization, power and duties to the exclusion of the manner of their exercise.

According to Wade, “administrative law is the law relating to the control of

governmental power. The primary object of administrative law is to keep powers of the
government within their legal bounds so as to protect the citizens against their abuse.”

According to Jain and Jain, „Administrative law is deals with the structure, powers and
functions of the organs of the administration, the limits of their powers, the methods and
procedure followed by them in exercising their powers and functions, the methods by
which their powers are controlled including the legal remedies available to a person against
them when his rights are infringed by their operation.‟

NATURE AND SCOPE OF ADMINISTRAVTIVE LAW

NATURE OF ADMINISTRATIVE LAW

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

SCOPE OF ADMINISTRATIVE LAW

There are several branches of the science of law. The Administrative Law is a recent branch of
the science of law. In the political science there are few Administrative organs. Certain functions
have been allotted to these organs in the Administrative Machinery. The Administrative law
deals with the structure, functions and powers of the Administrative organs. It also lays down the
methods and procedures which are to be followed by them during the course of remedies which
are available to the persons whose rights and other privileges are damaged by their operations.

From the few lines above explaining the meaning of the Administrative law, we can notice the
exact scope of this new branch of Law.

The scope of Administrative law can be narrated as under :-

 The methods and procedures of these Administrative organs are also studied by this new
branch of law.

 It covers the nature of structure, powers and functions of all these administrative organs.

 It also makes available all the relevant remedies to the persons whose rights are infringed
by the operations of these organs during the course of Administration.
  Why and How the Administrative Organs are to be controlled is also viewed by the
Administrative law.

A satisfactory and a proper formulation to define the scope, content and ambit of administrative
law appears to be s follows: ―Administrative law deals with the structure, powers and functions
of the organs of administration; the limits of their powers; the methods and procedures followed
by them in exercising their powers and functions; the methods by which their powers are
controlled including the legal remedies available to a person against them when his rights are
infringed by their operation.

In this way alongwith the development in the Political Science and along with the idea of federal
Administration, the separate branch of Administrative law has been developed. It is to be clearly
noted that this branch of Law is exclusively restricted to the Administrative organs only. The
delegated legislations are supposed to be the backbone of the Administrative law.

CONCLUSION

Thus Administrative law can be said to be science of power of Administrative authorities, and
the nature of their powers can be studied under the three heads

1. Legislative or Rule making,

2. Purely Executive,
3. Judicial or Adjudicative

Now the main consideration of Administrative law is the control over the exercise of these
powers.
 RULE OF LAW

INTRODUCTION

The rule of law is the legal principle that law should govern a nation, as opposed to being
governed by arbitrary decisions of individual government officials. It primarily refers to the
influence and authority of law within society, particularly as a constraint upon behavior,
including behavior of government officials.[2] The phrase can be traced back to 16th century
Britain, and in the following century the Scottish theologian Samuel Rutherford used the phrase
in his argument against the divine right of kings.

The rule of law was further popularized in the 19th century by British jurist A. V. Dicey. The
concept, if not the phrase, was familiar to ancient philosophers such as Aristotle, who wrote
"Law should govern".[4]

Rule of law implies that every citizen is subject to the law, including lawmakers themselves. In
this sense, it stands in contrast to an autocracy, dictatorship, or oligarchy where the rulers are
held above the law. Lack of the rule of law can be found in both democracies and dictatorships,
for example because of neglect or ignorance of the law, and the rule of law is more apt to decay
if a government has insufficient corrective mechanisms for restoring it. Government based upon
the rule of law is called democracy.

DEFINITION OF RULE OF LAW

The term ‗Rule of Law‘ refers to a government based on principles of law and not of men. In a
democracy, the concept has assumed different dimension and means that the holders of public
powers must be able to justify publically that the exercise of power is legally valid and socially
just. Dicey developed this concept of ‗Rule of Law‘.
Dicey said „Rule of Law‟ means, “the absolute supremacy of predominance of regular law
as opposed to the influence of arbitrary power and excludes the existence of arbitrariness,
or prerogative, or even wide discretionary authority on the part of the government.”

According to him, wherever there is discretion there is room for arbitrariness. The term Rule of
Law is used in contradiction to ‗rule of man‘ and ‗rule according to law‘. It is modern name for
natural law.

The term Rule of Law can be used in two senses:

(i) formalistic sense: and
(ii) ideological sense.

(I) FORMALISTIC SENSE: If used in the formalistic sense it refers to organized power as
opposed to a rule by one man and if used in an ideological sense it refers to the regulation of the
relationship of the citizen and the government and in this sense it becomes a concept of varied
interest and contents.

(II) IDEOLOGICAL SENSE: In its ideological sense, the concept of Rule of Law represents
an ethical code for the exercise of public power in any country. Strategies of this code may differ
from society to society depending on the societal needs at any given time, but its basis postulates
are universal covering all space and time. These postulates include equality, freedom and
accountability.

Dicey‘s formulation of the concept of ‗Rule of Law‘, which according to him forms the basis of
the English Constitutional Law, contains three principles:

(i) Absence of discretionary power in the hands of the government officials.

(ii) No person should be made to suffer in body or deprived of his property except for a breach of
law established in the ordinary legal manner before the ordinary courts of the land. In this sense,
the Rule of Law implies:
 (a) Absence of special privileges for a government official or any other person;

(b) All the persons irrespective of status must be subjected to the ordinary courts of the land;

(c) Everyone should be governed by the law passed by the ordinary legislative organs of the
State.

(iii) The rights of the people must flow from the customs and traditions of the people recognized
by the courts in the administration of justice.

THEORETICAL APPLICATION OF RULE OF LAW IN INDIA

Indian adopted the Common law system of justice delivery which owes its origins to British
jurisprudence, the basis of which is the Rule of Law. Dicey famously maintained that the
Englishman does not need Administrative law or any form of written law to keep cheeks on the
government but that the Rule of Law and natural law would be enough to ensure absence of
executive arbitrariness. While India also accepts and follows the concept of natural law, there are
formal and written laws to ensure compliance.

The Constitution of India intended for India to be a country governed by the rule of law. It
provides that the constitution shall be the supreme power in the land and the legislative and the
executive derive their authority from the constitution. Any law that is made by the legislative has
to be in conformity with the Constitute failing which it will be declared invalid, this is provided
for under Article 13 (1). Article 21 provides a further check against arbitrary executive action by
stating that no person shall be deprived of his life or liberty except in accordance with the
procedure established by law.

Article 14 ensures that all citizens are equal and that no person shall be discriminated on the
basis of sex, religion, race or place of birth, finally it ensures that there is separation of power
between the three wings of the government and the executive and the legislature have no
influence on the judiciary. By these methods, the constitution fulfils all the requirements of
Dicey‘s theory to be recognized as a country following the Rule of Law.

The Supreme Court of Indian has further strengthened this mechanism through its various
judgements, the foremost of them being, A D M Jabalpur v. Shivkanth Shukla In this case, the
question before the court was ‗whether there was any rule of law in India apart from Article 21‘.
This was in context of suspension of enforcement of Articles 14, 21 and 22 during the
proclamation of an emergency. The answer of the majority of the bench was in negative for the
question of law. However Justice H.R. Khanna dissented from the majority opinion and observed
that:

“Even in absence of Article 21 in the Constitution, the state has got no power to deprive a
person of his life and liberty without the authority of law. Without such sanctity of life and
liberty, the distinction between a lawless society and one governed by laws would cease to have
any meaning…Rule of Law is now the accepted norm of all civilized societies”

In Chief settlement Commr; Punjab v. Om Prakash , it was observed by the Supreme Court
that, ―In our constitutional system, the central and most characteristic feature is the concept of
rule of law which means, in the present context, the authority of law courts to test all
administrative action by the standard of legality. The administrative or executive action that does
not meet the standard will be set aside if the aggrieved person brings the matter into notice.‖ In
the case of Satvant Singh Sawhney v. D Ramarathanana the Supreme Court has held that every
executive action if it operates to the prejudice of any person must be supported by some
legislative authority.

In Secretary, State of Karnataka and Ors. v. Umadevi (3)and Ors a Constitution Bench of this
Court has laid down the law in the following terms: ―Thus, it is clear that adherence to the rule of
equality in public employment is a basic feature of our Constitution and since the rule of law is
the core of our Constitution, a court would certainly be disabled from passing an order upholding
a violation of Article 14 or in ordering the overlooking of the need to comply with the
requirements of Article 14 read with Article 16 of the Constitution.‖
Most famously in the case of Kesavananda Bharati v. State of Kerala the Supreme Court held
that the Rule of Law is an essential part of the basic structure of the constitution and as such
cannot be amended by any Act of Parliament, thereby showing how the law is superior to all
other authority of men.
 SEPARATION OF POWERS

MEANING OF SEPARATION OF POWER :-

The doctrine of Separation of powers is of ancient origin. The history of the origin of the
doctrine is traceable to Aristotle. In the 16th and 17th centuries, French philosopher John Bodin
and British politician Locke respectively had expounded the doctrine of Separation of powers.
But it was Montesquieu, French jurist, who for the first time gave it a systematic and scientific
formulation in his books ‗Esprit des Lois‘ (The spirit of laws).

The term ―separation of powers‖ originates to Baron de Montesquieu, a French

Enlightenment philosopher. He used the models of ancient Rome and the British Constitutional
system to theorize the ideal distribution of governmental powers between executive, legislative
and judicial branches. The purpose of this is to ensure that no one party or belief can have more
control over the government than another. History shows that who Montesquieu' s tripartite
system.

In simple words, the theory of Separation of Powers advocates that the three powers of the
government should be used by three separate organs. Legislature should use only law making
powers, Executive should undertake only law enforcement functions, and Judiciary should
perform only adjudication/Judicial functions. Their powers and responsibilities should be clearly
defined and kept separate. This is essential for securing the liberty of the people. Al though
Montesquieu developed his theory based on the British constitution, at no point of time has there
been strict separation in the UK in spite of there being three different organs having three
different functions which may even overlap at times.

An example may be given of the Lord Chancellor who is the head of the judiciary, is the
chairman of the House of Lords which is the legislature, is a member of the executive and is
generally part of the cabinet.
1. The doctrine of separation of powers was given by French jurist and philosopher Montesquieu.

2 .This doctrines has 3 meanings, namely-

 The same person cannot be a member of more than one organ of the government.

 One organ of the government cannot control or interfere with the functions of the other.

 One organ of the government cannot perform the functions of another.

3. This doctrine was theoretically very sound but posed certain practical problems such as-

 Its historical basis which describes separation of powers as thriving in England is faulty.

 It is based on the assumption that all 3organs of the government have completely distinct
powers. This is wrong as any one organ of the government performs at least some of the
functions of the other two.

 Also, complete separation is neither practical nor desirable. If the legislature were only to
legislate, it could not punish anyone for its contempt.

 Modern state is a welfare state characterised by complex socio-economic problem sand

the same cannot be solved with complete separation.

 The primary aim of this doctrine was to ensure greater freedom for the people and strict
separation may not necessarily ensure the same.

4. This doctrine is used more in the form of a system of checks and balances these days wherein
every organ of the government performs some functions of the other 2 organs, thereby exercising
a check on arbitrary use of power.
5. This doctrine may be unreasonable and impractical but it has helped in building a system of
checks and balances.

SEPARATION OF POWER: VIEWS OF MONTESQUIEU :-

The term tripartite system is ascribed to French Enlightenment political philosopher Baron de
Montesquieu. In the Spirit of the Laws (1748) Montesquieu described the separation of political
power among a legislature, an executive, and a judiciary. Montesquieu‘s approach was to present
and defend a form of government which was not excessively centralized in all its powers to a
single monarch or similar ruler. He based this model on the Constitution of the Roman Republic
and the British constitutional system. Montesquieu took the view that the Roman Republic had
powers separated so that no one could usurp complete power. In the British constitutional
system, Montesquieu discerned a separation of powers among the monarch, Parliament, and the
courts of law.

The three organs of the government—Legislature, Executive and Judiciary— perform the three
essential functions of law-making, law-application and law- adjudication. This threefold division
of governmental functions is universally accepted as the best way of organizing the government.
These three functions are inter-related and inter-dependent. But these are performed by three
different organs.

In his book The Spirit of the Laws’ (1748), Montesquieu enunciated and explained his theory of
Separation of Powers. He wrote,

 If the legislative and executive powers are combined in the same organ, the liberty of the
people gets jeopardized because it leads to tyrannical exercise of these two powers.

 If the judicial and legislative powers are combined in the same organ, the interpretation
of laws becomes meaningless because in this case the lawmaker also acts as the law
interpreter and he never accepts the errors of his laws.
  If the judicial power is combined with the executive power and is given to one-person or
one organ, the administration of justice becomes meaningless and faulty because then the
police (Executive) becomes the judge (judiciary).

 Finally if all the three legislative, executive and judicial powers are combined and given
to one person or one organ, the concentration of power becomes so big that it virtually
ends all liberty. It establishes despotism of that person or organ.

As such, the three powers should not be combined and given neither to a single organ nor to two
organs. These three powers should be used by three separate organs of the government. It is
essential for safeguarding the liberty of the people.

MAIN SUPPORTERS OF THE THEORY OF SEPARATION OF POWER:-

The British jurist Blackstone and the founding fathers of the American constitution, particularly,
Madison, Hamilton and Jefferson, extended their full support to the theory of separation of
powers. They regarded Separation of Powers essential for protecting the liberty of the people.

USE OF SEPARATION OF POWERS IN MODERN CONSTITUTION:-

The theory of Separation of Powers guided the Declaration of Rights adopted after the French
Revolution of 1789. It clearly stated that, ―every society in which separation of powers is not
determined has no constitution.‖ The real and big support to this theory came from the founding
fathers of the Constitution of the USA. They accepted its importance as the essential safeguard
for preserving liberties and property.‘ The Constitution of USA adopted the theory of separation
of powers as its guiding principle.

It laid down a governmental structure based on this theory. It gave the legislative powers to the
US Congress, the executive powers to the US President and the judicial powers to the US
Supreme Court. Each organ was kept separate from the other two. The Universal Declaration of
Human Rights, as adopted by the UN General Assembly on 10 December 1948, also accepted
the principle of separation of powers. In fact, all contemporary democratic constitutions do
provide for a separation of powers in one way or the other.
THEORY OF SEPARATION OF POWER: CRITICISM

1. Complete Separation is not possible:

The government is a single entity. Its three organs can never be completely separated. The
legislative, executive and judicial functions are interdependent and inter-related functions and
hence cannot be fully separated.

2. Complete Separation is not desirable:

Complete separation of three organs of government is neither possible nor desirable. It is not
desirable because without among mutual coordination these cannot carry out its functions
effectively and efficiently. Complete separation of powers can seriously limit the unity and co-
ordination needed by the three organs.

3. Impracticable in itself:
We cannot fully use separation of powers. The function of law-making cannot be entrusted only
to the legislature. The needs of our times have made it essential to provide for law-making by the
executive under the system of delegated legislation. Likewise, no one can or should prevent law-
making by the judges in the form of case law and equity law.

4. Unhistorical:
The theory of Separation of Powers is unhistorical since it has never been operative in England.
While formulating and advocating this theory, Montesquieu advocated that it was at work in
England. Under the British parliamentary system of government, there was and continues to be a
close relationship between the British Parliament and the Cabinet. Even there is no separation of
judiciary from legislature in so far the British House of Lords acts as the highest court of appeals.
The British Constitution has never been based on the theory separation of powers.

5. The three Organs of Government are not equal:

The Theory of Separation of Powers wrongly assumes the equality of all the three organs of the
government. The legislature of the state is always regarded as the primary organ of government.
The work of the government begins by law-making. However, in actual practice the executive
acts the most powerful organ of the government. The judiciary is the weakest of the three organs,
yet it is always held in high esteem by the people. Hence the three organs are neither equal nor
equally respected.

6. Separation of Powers can lead to deadlocks and inefficiency:

Separation of powers can lead to deadlocks and inefficiency in the working of the government. It
can create a situation in which each organ can get engaged in conflict and deadlocks with other
two organs.

7. Liberty does not depend only upon Separation of Powers:

The critics reject the view that liberty can be safeguarded only when there is a separation of
powers among the three organs of the government. They argue that in the absence of
fundamental rights, independence of judiciary, rule of law, economic equality and a spirit of
democracy, there can be no liberty even when there may be present full separation of powers.

8. Separation of Functions and not of Powers:

The name ‗Separation of Powers‘ is wrong because this theory really advocates a separation of
functions. Power of the government is one whole. It cannot be separated into three separate parts.
It is at the back of the functions of all the three organs of government.

The theory of separation of powers is really a theory of separation of functions. Thus, the theory
of Separation of Powers has several limitations. All scholars accept that absolute and rigid
separation of powers is neither possible nor desirable. Three organs of government cannot be and
should not be totally separated into unrelated water-tight compartments.

SEPARATION OF POWER & CHECK AND BALANCES:-

Further for using the theory of Separation of Powers, we need the adoption of another theory i.e.
the theory of Checks and Balances. Under this theory each organ, along with its own power,
enjoys some checking powers over the other two organs. In the process a system of checks and
balances governs the inter organ relations. The theory of Checks and Balances holds that no
organ of power should be given unchecked power in its sphere.
The power of one organ should be restrained and checked with the power of the other two
organs. In this way a balance should be secured which should prevent any arbitrary use of power
by any organ of the government.

The legislative power should be in the hands of the legislature but the executive and judiciary
should have some checking powers over it with a view to prevent any misuse or arbitrary use of
legislative powers by the legislature. Likewise, the executive powers should be vested with the
executive but legislature and judiciary should be given some checking powers over it.

The same should be the case of the judiciary and its power should be in some respects checked
by the legislature and executive. In other words, each organ should have some checking power
over the other two organs and there should prevail, a balance among the three organs of
government. In fact, the theories of Separation of Powers and Checks and Balances always go
together. These have been together in operation in the US Constitution. The theories Separation
of Powers and Cheeks and Balances have to adopt simultaneously.
 DROIT ADMINISTRATIF

Meaning of Droit administratif French administrative law is known as Droit Administratif which
means a body of rules which determine the organization, powers and duties of public
administration and regulate the relation of the administration with the citizen of the country.
Droit Administrative does not represent the rules and principles enacted by Parliament. It
contains the rules developed by administrative courts.

Napoleon Bonaparte was the founder of the Droit administrative. It was he who established the
Conseil d‘Etat. He passed an ordinance depriving the law courts of their jurisdiction on
administrative matters and another ordinance that such matters could be determined only by the
Conseil d‘Etat.

Waline, the French jurist, propounds three basic principles of Droit administrative:

1. the power of administration to act suo motu and impose directly on the subject the duty to
obey its decision;

2. the power of the administration to take decisions and to execute them suo motu may be
exercised only within the ambit of law which protects individual liberties against administrative
arbitrariness;

3. the existence of a specialized administrative jurisdiction.

MAIN CHARACTERISTIC FEATURES OF DROIT ADMINISTRATIF:

The following characteristic features are of the Droit Administratif in France:-

`1. Those matters concerning the State and administrative litigation falls within the
jurisdiction of administrative courts and cannot be decided by the land of the ordinary courts.

2. Those deciding matters concerning the State and administrative litigation, rules as
developed by the administrative courts are applied.
 3. If there is any conflict of jurisdiction between ordinary courts and administrative court,
it is decided by the tribunal des conflicts.

4. Conseil d‘Etat is the highest administrative court.

Prof. Brown and Prof. J.P. Garner have attributed to a combination of following factors as
responsible for its success

i) The composition and functions of the Conseil d‘Etat itself;

ii) The flexibility of its case-law;

iii) The simplicity of the remedies available before the administrative courts;

iv) The special procedure evolved by those courts; and

v) The character of the substantive law, which they apply.

Despite the obvious merits of the French administrative law system, Prof. Dicey was of the
opinion that there was no rule of law in France nor was the system so satisfactory as it was
in England. He believed that the review of administrative action is better administered in
England than in France.

The system of Droit Administratif according to Dicey, is based on the following two ordinary
principles which are alien to English law—

Firstly, that the government and every servant of the government possess, as
representative of the nation, a whole body of special rights, privileges or prerogatives as against
private citizens, and the extent of rights, privileges or considerations which fix the legal rights
and duties of one citizen towards another. An individual in his dealings with the State does not,
according to French law; stand on the same footing as that on which he stands in dealing with his
neighbor.

Secondly, that the government and its officials should be independent of and free from
the jurisdiction of ordinary courts.
 DELEGATED LEGISLATION

WHAT IS DELEGATED LEGISLATION?

Delegated legislation has been defined by: Salmond as – „that which proceeds from any
authority other than the sovereign power and is therefore dependent for its continued
existence and validity on some superior or supreme authority‟.

In simple terms it means-‗when the function of legislation is entrusted to organs other

than the legislature by the legislature itself the legislation made by such organs is called
delegated legislation‘
.
Delegated legislation (also referred to as secondary legislation or subordinate
legislation or subsidiary legislation) is law made by an executive authority under powers given to
them by primary legislation in order to implement and administer the requirements of that
primary legislation.

It is law made by a person or body other than the legislature but with the
legislature's authority. Often, a legislature passes statutes that set out broad outlines and
principles, and delegates authority to an executive branch official to issue delegated legislation
that flesh out the details (substantive regulations) and provide procedures for implementing the
substantive provisions of the statute and substantive regulations (procedural regulations).
Delegated legislation can also be changed faster than primary legislation so legislatures can
delegate issues that may need to be fine-tuned through experience.

Here we may give some instances of delegation viz., the Northern India Canal and
Drainage Act, 1873, the Opium Act, 1878; the Advocate Act, 1961, the Export & Import Act,
Essential Commodities Act, 1955, the Indian Medical Council Act, the Right to Information Act,
2005 etc.

REASONS FOR THE GROWTH OF DELEGATED LEGISLATION

The causes for the growth of delegated legislation are discussed below:

(A) PRESSURE UPON PARLIAMENTARY TIME:

The legislative activity of the State has increased in response to the increase in its functions
and responsibilities. The legislature is
preoccupied with more important policy matters and rarely finds time to discuss
matters of detail. It therefore formulates the legislative policy and gives power to the
executive to make subordinate legislation for the purpose of implementing the policy.

(B) FILLING IN DETAILS OF LEGISLATION:

The legislature has to make a variety of laws and the details required to be provided in each
of these laws require knowledge of matters of technical or local or specialized nature. The
executive in consultation with the experts or with its own experience of local conditions can
better improve these. There is no point in the legislature spending its time over such details and
therefore the power to fill them in is often delegated to the executive or local authorities or
expert bodies.

(C) THE NEED FOR FLEXIBILITY:

A statutory provision cannot be amended except by an amendment passed in accordance with

the legislative procedure. This process takes time. It may however be necessary to make
changes in the application of a provision in the light of experience. It is therefore convenient if
the matter is left to be provided through subordinate legislation. Delegated legislation requires
less formal procedure and therefore changes can be made in it more easily.

(D) ADMINISTRATION THROUGH ADMINISTRATIVE AGENCIES:

 Modern government is plurastic and functions through a number of administrative agencies
and independent regulatory authorities, which have to regulate and monitor activities in public
interest.

These agencies such as the Election Commission or the Reserve Bank of India or the
Board for Industrial and Financial Reconstruction(BIFR) or the Electricity Commission or the
Telecom Regulatory Authority of India(TRAI) etc. have to perform ongoing regulation and
control of various activities. Each of these agencies is required to make rules or regulations in
pursuance of its regulatory function.

(E) MEETING EMERGENCY SITUATIONS:

In times of emergency, the government may have to take quick action. All its future actions
cannot be anticipated in advance and hence provisions cannot be made by the legislature to meet
all unforeseeable contingencies.

It is safer to empower the executive to lay down rules in accordance with which it
would use its emergency power.

TYPES OF DELEGATED LEGISLATION

Delegated legislation may be classified as follows:

(A) POWER TO BRING AN ACT INTO OPERATION:

Usually an Act provides that it shall come into force on such date as the Central Government
or the State government, as the case may be, may, by notification in the Official Gazette appoint.
For example section 1(3) of The Industries( Development and Regulation) Act, 1951. Such
power is given because the government has better knowledge of the practical exigencies of
bringing the law into force. Ideally, since the legislature has passed the law, the executive is
bound to bring it into force.
In A.K. Roy v. Union of India (1982) 1 SCC 271, the Supreme Court held that the
Constitution (44th) Amendment Act, 1978, which conferred power on the executive to bring the
provisions of that Act into force did not suffer from excessive delegation of legislative power.
The Court rejected the contention that the power delegated was a constituent power.

(B) CONDITIONAL LEGISLATION:

The legislature makes the law but leaves it to the executive to bring the Act into operation
when conditions demanding such operation are obtained. The executive has to decide whether
the necessary conditions required for the law to be in operation have been satisfied or not and if
they have been so, it should issue a notification bringing the law into operation. This is called
conditional legislation.
Conditional legislation is of the following types:

(i) Power to bring an Act into operation;

(ii) Power to extend the application of any Act in force in one territory to another
territory; and to restrict and make modifications in the original legislation to suit the
exigencies of the territory under its control;

(iii) Power to extend the life of an Act; and

(iv) Power to extend or to exempt from the operation of an Act certain categories of
subjects or territories.

(C) POWER TO FILL IN DETAILS

This is the most common type of delegated legislation. The legislature passes the skeleton
and empowers the executive to provide the flesh and bones through subordinate legislation. The
enabling clause usually says that the Central or the state government may make rules ‗to carry
out the purposes of the Act‘.

(D) POWERS TO REMOVE DIFFICULTIES

Many Acts contain provisions for conferring such extensive power of delegated
legislation on the executive. The purpose of such provision is to enable the executive to
remove difficulties in the implementation of the Act and to effectuate its purpose and
policy.

For example, Section 26 of the Legal Services Authorities Act, 1987 and section
29 of the Insurance(Regulatory and Development) Authority Act, 1999

CONSTITUTIONALITY OF DELEGATED LEGISLATION –

CONTROL MECHANISM OF DELEGATED LEGISLATION

1. Parliamentary/Legislative Control.

2. Procedural/Administrative/Executive Control.

3. Judicial Control.

1. PARLIAMENTARY/LEGISLATIVE CONTROL.

In a parliamentary democracy it is the function of the legislature to legislate, but if it

seeks to delegate this power to the executive in some circumstances, it is not only the right of
legislature, but also its obligation as principal to see how its agent (i.e. the Executives) carries
out the agency entrusted to it. Hence the parliamentary control over delegated legislation should
be a living continuity as a constitutional necessity. .

In India, ‗parliamentary control‘ is implicit as a normal constitutional function because

the executive is responsible to the Parliament Legislative Control is a two stage control.

1. Initial stage (At the stage of delegation of power)

2. Second Stage

INITIAL STAGE: In case where there is a bill which provides of delegation of powers such a
bill should be accompanies by a legislation stating how much power has been delegated. The
basic emphasis in the initial stage is that whether the
power has been validity delegated or not.

SECOND STAGE: (A) Direct Control, and (B) Indirect Control.

(A) DIRECT CONTROL: In this the important aspect is the laying requirement which means
that the rules have to be placed before the Parliament. Laying comes into play after the rules are
made and it assumes three major forms depending on the degree of control which the legislative
may like to exercise.

(a) Simple laying (i.e. laying with no further direction): In this, the rules inform house come
into effect as soon as they are laid.

(B) Negative laying or subject to annulment or modification: The rules come into force as
soon as they are placed before Parliament but cease to have effect if disapproved by the
Parliament in specified time i.e. within 40 days.

(c) Affirmative Laying: The technique may take two shapes:

(i) That the rules have no effect unless approved by a resolution of both houses of
parliament.

(ii) That the rules shall cease to have effect unless approved by affirmative resolution.
ith the laying provision In India, the position is not categorical, the consequence of non
compliance with the laying provisions depend on whether the provisions in the enabling Act are
mandatory or directory.

(B)INDIRECT CONTROL:

This control is exercised by Parliament through its committees. Such a committee known as
the committee on subordinate legislation of Lok Sabha set up in 1953 and consist of 15
members appointed by Lok Sabha Speaker for a period of one year. Another committee on
subordinate legislation known as Rajay Sabha committee constitutive in 1964 consist of 15
member nominated by chairman of Rajaya Sabha & it holds office till new committee is formed.
The committee is assigned the task to scrutinize and report to the House, whether the power to
make regulations, bye laws, etc conferred by the constitution or delegated by the Parliament are
being properly exercised within such delegation Ministers can become members of this
committee.

The main function of the committee shall be to examine:

1. Whether the rules are in accordance with the general object of Act.

2. Whether the rules contain any matter which could more properly be dealt with in the
Act.

3. whether it conations imposition of tax.

4. Whether it directly or indirectly bars the jurisdiction of the court.

5. Whether there has been unjustified delays in its publication or laying.

6. whether it is retrospective in nature.

7. Whether it involves expenditure from the consolidated fund.

 8. Whether it is safeguard of principle of natural justice.

2. PROCEDURAL/ADMINISTRATIVE/EXECUTIVE CONTROL.

Executive legislating under delegated legislation is ordinarily free from rigid procedural
requirements unless the legislature makes it mandatory for the executive to abide by a certain
procedure. This is because rigid procedural requirements may turn out to too time consuming
and cumbersome and they may defeat the very purpose of delegated legislation. However,
communication in one form or other to the general public still remains indispensable for the law
to be legally valid and binding. Hence procedural control means certain procedures which are
laid down in the parent Act which have to be followed by the authorities while making the rules.

Delegated legislation may be challenged on the ground that it has been in accordance with the
procedure prescribed by the enabling Act. However, rules become invalid on the ground of non-
compliance with prescribed procedure only if such procedure is mandatory. Non compliance
with the directory provisions does not render them invalid. It becomes a case of procedural
alternatives. One has to see whether the procedure is mandatory or directory. Procedural
control mechanism operates in three components:

in Harla v. State of Rajasthan (Air 1951 SC 467) the council by resolution enacted the Jaipur
opium Act which made rule that if a person carried opinion beyond a certain limit then it was an
offence committed and penalty had to be imposed on the accused & act was never published.
One Harla was prosecuted for the contravention of this law because he was in possession of
opium in more quantity than permitted. He contended that it was a case of procedural ultravires.
Holding that the law was not enforceable the Supreme Court observed.

―promulgation or publication of some sort is essential other wise it would be against

principles of natural justice to punish the subject under a law of which they had no
knowledge and of which they could not even with the exercise f reasonable diligence be
said to have acquired any knowledge.‖

In Narendra Kumar v.s U.O.I. (AIR 1960 Sc 430) Sec.3 of Essential commodities Act, 1955
required all the rules to be made under the Act to be notified in official gazette. The principles
applied by licensing authority for issuing permits for the acquisition of non-ferrous metals were
not notified. The S.C. held the rules ineffective because the mode of publication i.e. in Official
Gazette was held to be mandatory.

NECESSITY OF PUBLICATION

In Raza Buland Sugar Co. v. Rampur Municipality (AIR 1965 SC 896) for the S.C. Wanchoo, J.
observed. ‗The question whether a particular provision of statute which on the face of a appears
mandatory or is merely directory cannot be laying down any general rule and depends upon the
facts of each case and for that purpose the object of the statute in making the provision is the
determining factor. The language of the provision have all to be taken into account in arriving at
the conclusion whether particular provision is mandatory or directory.‖
Further, the medium of publication has been held to be a mandatory requirement.

3. JUDICIAL CONTROL

Judicial review upholds the rule of law. The courts have to see that the delegated legislation is
exercised within the ambit of the power delegated and according to the Constitution. Judicial
review tends to be more effective because the Courts do not merely recommend but can strike
down a rule if it is ultra vires the enabling Act or the Constitution. Since the word ‗law‘ as
defined in Article 13(3) (a) includes order, by law, rule, regulation and notification, the entire
subordinate legislation, like plenary legislation is subject to the command of art 13(2) which says
that the state shall make no law which takes away or abridges the rights conferred by Part III of
the Constitution. Delegation legislation may therefore be assailed on the following grounds:

(iii) that it is ultra vires the enabling Act; and

(iv) that it is ultra vires the Constitution.

The first ground alleges that the rules so impugned are not within the ambit of the
powerdelegated. This ground may contain the charge of substantive lack of power or non-
conformity with the procedure prescribed under the enabling Act. The second ground involves
lack of power as well as violation of any specific constitutional provision.
 PRINCIPLES OF NATURAL JUSTICE :

In India there is no statute laying down the minimum procedure which administrative
agencies must follow while exercising decision-making powers. This minimum fair
procedure refers to the principles of natural justice

Natural justice is a concept of common law and represents higher procedural

principles developed by the courts, which every judicial, quasi-judicial and
administrative agency must follow while taking any decision adversely affecting the
rights of a private individual.

Natural justice implies fairness, equity and equality.

In a welfare state like India, the role and jurisdiction of administrative agencies is
increasing at a rapid pace. The concept of Rule of Law would loose its validity if the
instrumentalities of the State are not charged with the duty of discharging these
functions in a fair and just manner.

In India, the principles of natural justice are firmly grounded in Article 14 & 21 of the
Constitution. With the introduction of concept of substantive and procedural due
process in Article 21, all that fairness which is included in the principles of natural
justice can be read into Art. 21. The violation of principles of natural justice results in
arbitrariness; therefore, violation of natural justice is a violation of Equality clause of
Art. 14.

The principle of natural justice encompasses following two rules: -

1. Nemo judex in causa sua - No one should be made a judge in his own cause or
the rule against bias.

2. Audi alteram partem - Hear the other party or the rule of fair hearing or the
rule that no one should be condemned unheard.
RULE AGAINST BIAS (NEMO JUDEX CAUSA SUA)

Bias means an operative prejudice, whether conscious or unconscious in relation to a

party or issue. The rule against bias flows from following two principles: -

a) No one should be a judge in his own cause

b) Justice should not only be done but manifestly and undoubtedly be seen to be
done.

Thus a judge should not only be impartial but should be in a position to apply his mind
objectively to the dispute before him.

The rule against bias thus has two main aspects: -

1. The administrator exercising adjudicatory powers must not have any personal or
proprietary interest in the outcome of the proceedings.

2. There must be real likelihood of bias. Real likelihood of bias is a subjective term,
which means either actual bias or a reasonable suspicion of bias. It is difficult
to prove the state of mind of a person. Therefore, what the courts see is whether
there is reasonable ground for believing that the deciding factor was likely to
have been biased.

Bias can take many forms: -

 Personal Bias
 Pecuniary Bias
 Subject-matter bias
 Departmental bias
  Pre-conceived notion bias

A.K.Kraipak Vs. UOI

In this case, Naquishband, who was the acting Chief Conservator of Forests, was a
member of the Selection Board and was also a candidate for selection to All India cadre
of the Forest Service. Though he did not take part in the deliberations of the Board when
his name was considered and approved, the SC held that `there was a real likelihood of
a bias for the mere presence of the candidate on the Selection Board may adversely
influence the judgement of the other members'

SC also made the following observations: -

1. The dividing line between an administrative power and quasi-judicial power

is quite thin and is being gradually obliterated. Whether a power is
Administrative or quasi-judicial, one has to look into -
a) the nature of power conferred
b) the person on whom it is conferred
c) the framework of the law conferring that power
d) the manner in which that power is expected to be exercised.

2. The principles of natural justice also apply to administrative proceedings,

3. The concept of natural justice is to prevent miscarriage of justice and it entails -

(i) No one shall be a judge of his own cause.

(ii) No decision shall be given against a party without affording him a
reasonable hearing.
(iii) The quasi-judicial enquiries should be held in good faith and not
arbitrarily or unreasonably.
J.Mohopatra & Co. Vs, State of Orissa

SC quashed the decision of the Textbooks' selection committee because some of its
members were also the authors of the books, which were considered for selection. The
Court concluded that withdrawal of person at the time of consideration of his books is not
sufficient as the element of quid pro quo with other members cannot be eliminated.
Ashok Kumar Yadav Vs. State of Haryana
Issue

Whether the selection of candidate would vitiate for bias if close relative of a members of
the Public Service Commission is appearing for selection?
Held

The SC laid down the following propositions: -

1. Such member must withdraw altogether from the entire selection process
otherwise all selection would be vitiated on account of reasonable likelihood of
bias affecting the process of selection

2. This is not applicable in case of Constitutional Authority like PSC whether

Central or State. This is so because if a member was to withdraw altogether from
the selection process, no other person save a member can be substituted in his
place and it may sometimes happen that no other member is available to take the
place of such a member and the functioning of PSC may be affected.

3. In such a case, it is desirable that the member must withdraw from

participation in interview of such a candidate and he should also not take part
in the discussions.

AUDI ALTERAM PARTEM OR RULE OF FAIR HEARING

The principle of audi alteram partem is the basic concept of principle of natural justice. The
expression audi alteram partem implies that a person must be given opportunity to defend
himself. This principle is sine qua non of every civilized society.

This rule covers various stages through which administrative adjudication pasees starting from
notice to final determination. Right to fair hearing thus includes:-

1. Right to notice

2. Right to present case and evidence

3. Right to rebut adverse evidence

(i) Right to cross examination

(ii) Right to legal representation

4. Disclosure of evidence to party

5. Report of enquiry to be shown to the other party

6. Reasoned decisions or speaking orders

Mankea Gandhi Vs. UOI

Facts

In this case the passport dated 01.06.1976 of the petitioner, a journalist, was impounded `in the
public interest' by an order dated 02.07.1977. The Govt. declined to furnish her the reasons for
its decision. She filed a petition before the SC under article 32 challenging the validity of the
impoundment order. She was also not given any pre-decisional notice and hearing.

Argument by the Govt.

The Govt. argued that the rule of audi alteram partem must be held to be excluded because
otherwise it would have frustrated the very purpose of impounding the passport.
Held

The SC held that though the impoundment of the passport was an administrative action yet the
rule of fair hearing is attracted by the necessary implication and it would not be fair to exclude
the application of this cardinal rule on the ground of administrative convenience.

The court did not outright quash the order and allowed the return of the passport because of the
special socio-political factors attending the case. The technique of post decisional hearing was
developed in order to balance these factors against the requirements of law, justice and fairness.

The court stressed that a fair opportunity of being heard following immediately the order
impounding the passport would satisfy the mandate of natural justice

WRITS

History of Writs in India

•First issued by the Supreme Court at Calcutta

•Later by SCs of Bombay and Madras

•Since 1861 – by High Courts

•Since-1937- Federal court of India

•By the Privy Council

Writs under Indian Constitution

•Ubi jus ibi remedium

•Granted by SC of India U/A.32

•Granted by HC s U/A. 226

•Purpose of Writ Jurisdiction u/a 32 – enforcement of Fundamental Rights.

•Purpose of Writ Jurisdiction u/a 226 – enforcement of Fundamental Rights & other purposes.

Article 32 of the Constitution Remedies for enforcement of rights conferred by this Part:
(1) The right to move the Supreme Court by appropriate proceedings for the enforcement of the
rights conferred by this Part is guaranteed

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

(3) Without prejudice to the powers conferred on the Supreme Court by clause ( 1 ) and ( 2 ),
Parliament may by law empower any other court to exercise within the local limits of its
jurisdiction all or any of the powers exercisable by the Supreme Court under clause ( 2 )

(4) The right guaranteed by this article shall not be suspended except as otherwise provided for
by this Constitution

Importance of Article 32
•"If I was asked to name the particular Article in this Constitution as the most important without
which this Constitution would be a nullity, I could not refer to any other Article except this one.
It is the very soul of the Constitution and the very heart of it This in my judgment is one of the
greatest safeguards that can be provided for the safety and security of the individual. ―-
Dr.Ambedkar

Nature of Writ Jurisdiction

•Discretionary
•Guiding Factors for exercising discretion -

•1.Locus Standi

•2.Alternative relief

•3.Res Judicata

•4.Questions of fact ,and ;

•5.Laches

Locus Standi
•Who can apply?
•Traditional rule-Only aggrieved party
•Liberal rule – any public Spirited person/citizen

Kinds of Writs

•Habeas Corpus

•Quo Warranto

•Mandamus

•Certiorari

•Prohibition

Habeas Corpus
Meaning - You (shall) have the body

Purpose - To seek relief from the unlawful detention of him or herself, or of another person

To protect the individual from harming him or herself, or from being harmed by the
Administrative system.
For safeguarding of individual freedom against arbitrary state action which violates f.rts. u/A.
19,21 & 22 of Constitution.

Res judicata – not applicable

Cannot be suspended even during Emergency [Art.359] [ADM Jabalpur v.Shivakant Shukla
(Habeas Corpus case) AIR 1976 SC 1207-opinion of H.R.Khanna,J-its impact -44th
Amendment, 1978]

Quo warranto
By what warrant?

Requires the person to whom it is directed to show what authority he has for exercising some
right or power (or "franchise") he claims to hold.

Invoked in case of Public offices

Ashok Pandey v.Mayawati (AIR 2007 SC 2259)-writ of QW was refused against Ms.Mayawati
(CM) and other ministers of her cabinet even though they were Rajya sabha members

Mandamus
Means "we command" in Latin

"Issued by a superior court to compel a lower court or a government officer to perform

mandatory or purely ministerial duties correctly"

An order from a superior court to any government, subordinate court, corporation or public
authority to do or forbear from doing some specific act which that body is obliged under law to
do or refrain from doing, as the case may be, and which is in the nature of public duty and in
certain cases of a statutory duty

Conditions for issue of Mandamus

The applicant must have a legal right to the performance of a legal duty

The legal duty must be of a public nature.

The right sought to be enforced must be subsisting on the date of the petition.
As a general rule, mandamus is not issued in anticipation of injury.

Demand and refusal

Ultimate purpose: to make sure that the power or the duties are not misused by the executive or
administration and are duly fulfilled. It safeguards the public from the misuse of authority by the
administrative bodies.

Certiorari
Latin certiorare, ("to search").

Currently means an order by a higher court directing a lower court, tribunal, or public authority
to send the record in a given case for review.

Prohibition
Is an official legal document drafted and issued by a supreme court or superior court to a judge
presiding over a suit in an inferior court

Used to prevent an inferior court from exceeding its jurisdiction or acting contrary to the rules of
natural justice

May be issued both in cases where there is an excess of jurisdiction and where there is absence
of jurisdiction.

Prohibition and certiorari lie only against judicial and quasi-judicial bodies. They do not lie
against public authority in an executive or administrative capacity or a legislative body.

Conclusion
Writs – mostly invoked against State

Powerful orders having immediate effect

Issued when PILs are filed

Major work of H.C.s lies in exercising writ jurisdiction

 PUBLIC INTEREST LITIGATION

Introduction:

Public Interest litigation, itself says that this is a litigation for any public interest. In the words of
some learned people we can say that public interest litigation in a litigation which can be file in
any court of law by any public spirited person for the protection of ―public interest.‖ Now a
question comes in the mind that ―what in public interest?‖ so answer is ‗any act for the benefit of
public is public interest.' and those act are such as pollution, Terrorism, Road safety,
constructional hazards etc. in all these activities we can clearly see the public interest. As it is
said that this petition can file any public spirited person so its mean that there should not be
interest of only himself. There in word only says that in can be possible that in that act for what
he is filing a PIL there in a small part of his benefit also hide But it's not mean that he cannot file.
If the is interest of public then he can file public interest litigation.

Public interest litigation is not defined in any statute or any act. It has been interpreted by judge
to consider the intent of public at large. This is just like a writ petition which is file in high court
or supreme court under article 226 for high court and article 32 for supreme court. When public
interest in affecting at large then this can be filed but affection on only one person is not a
ground for filing this petition. There are some various area where a public interest litigation can
be filed.

Violation of basic human rights of the poor.

Content or conduct of government policy.

Compel municipal authorities to perform a public duty.

Violation of religious rights or other basic fundamental rights.

These are the main area where any public interest litigation can be filed against State/Central
Govt., Municipal Authorities, and not any private party. However private party can be include in
this as a respondent after making concern state authority. This petition is filed in high court or
supreme court just a same manner as other writ petition filed. There is some fee for this purpose
and its hearing proceeds is also just like other cases. In early 90's a judge had treated a
complaining post card as public interest litigation so we can say that a latter also may be treated
as writ of public interest litigation some other case are also there which we will discuss in this
project. There are various kind of remedies also there to secure the public interest as INTERIM
MEASURES, APPOINTING A COMMITTEE, FINAL ORDERS.

In India the first case of PIL was filed in 1976 named Majdur kaamgar sabha v Abdul bhai
Faizulla bhai. Where Krishna Iyar allowed a group of people to file petition on behalf of others.
The rights of the member were violated Krishna Iyar held either one individual or group of
individuals together can come to the court. But some time misuse of this petition also comes into
picture. This is the problem in PIL that many time this misused by some people. There are
various cases in which PIL is misused as S.P. Gupta v union of India. In this can misuse of PIL
was cane into picture. and the secondly in the case of Shushes Kumar v Union of India. in this
case there was a manager in a company and his boss faired him and he gave a PIL in spite of not
being any ground of PIL.

When Can A Pil Be Filled:

Public interest litigation can be filed only in that case where any ―public interest‖ is affecting at
large. Because if only one person is affecting then that is not a ground for filing PIL. In this

Project I am giving some area or authorities where any public spirited person can file PIL:-

As In the first PIL on prisoner's rights Hussainara Khatoon v State of Bihar, the attention of the
court was to the incredible situation of Bihar under trials who had been detained pending trail for
periods far excess of the maximum sentence for the offence they were charged with.

Where A Pil Can Be Filed:

Now a chief question comes in the mind that where should a public spirited person file this
petition to take remedy by this. So the answer of this chief question is this that all PIL are used to
filed in high court or Supreme Court. If a person want to go to high court to filing that then he
can go under article 226 of Indian constitutional law and if any person wants to go to supreme
court then he can go under article 32 of the Indian constitutional law but Article 226 is
something distinguished from article 32 of constitutional law. Under article 32 that person can go
to supreme court whose only fundamental rights are violation nothing else but if any person
going through the violation of not only fundamental right but also constitutional right and any
other legal right also or secondly we can see by this view that It will purely and solely depend on
the "Nature of the case", if the question involves only a small group of people being effected by
action of State authority, the PUBLIC INTEREST LITIGATION can be filed in high court. For
e.g. if there is a sewage problem in a locality effecting 50 families, the PUBLIC INTEREST
LITIGATION can be filed in High court. If a large section of people is affected whether by State
Government or Central Government, PUBLIC INTEREST LITIGATION can be filed in
Supreme Court For e.g. placing a ban on adult movies, prohibition industrial unit from causing
pollution etc.

So we can say that both of the court have power to entertain the public interest litigation.

Who Can File A Pil? :

As we already said that any public spirited person even a foreigner can file a PIL on behalf of
others but this is necessary that only the person who is filing a PIL should not get benefit.
Meaning there by any PIL whoever is filing should be only and only in for the benefit of peoples.
If only one person is getting affected by any act then that is not a ground of filing PIL. Although
earlier only the person whose interest in directly along with others can use such litigation.

So these are the essential point for that person who can file any public interest litigation.

 He is a member of the public acting bona fide and having sufficient interest in instituting
an action for redressal of public wrong or public injury.
 He is not a mere busy body or a meddlesome interloper.
 His action is not motivated by personal gain or any other oblique consideration.

As we can see that in the society there are some person who come in the picture for the same
behave as M.C. MEHTA, MACHILIPATNAM, Lankisetti Balaji are in the lime light in this
domain. There is a case named M.C.Mehta V Union of India AIR (1987) 4 SCC 463, in this case
Shriram Food and Fertilizers Industry a subsidiary of Delhi Cloth Mills Limited was producing
caustic and chlorine. On December 4th and 6th 1985, a major leakage of oleum gas took place
from one of the units of Shriram Food and Fertilizers Limited in the heart of the capital city of
Delhi which resulted in the death of several persons that one advocate practicing in the Tees
Hazari Courts died.

The leakage was caused by a series of mechanical and human errors. This leakage resulted from
the bursting of the tank containing oleum gas as a result of the collapse of the structure on which
it was mounted and it created a scare amongst the people residing in that area. Hardly had the
people got out of the shock of this disaster when, within two days, another leakage, though this
time a minor one took place as a result of escape of oleum gas from the joints of a pipe.

Shriram Foods and Fertilizer Industries had several units engaged in the manufacture of caustic
soda, chlorine, hydrochloric acid, stable bleaching powder, super phosphate, vanaspati, soap,
sulphuric acid, alum anhydrous sodium sulphate, high test hypochlorite and active earth. All
units were set up in a single complex situated in approximately 76 acres and they are surrounded
by thickly populated colonies such as Punjabi Bagh, West Patel Nagar, Karampura, Ashok
Vihar, Tri Nagar and Shastri Nagar and within a radius of 3 kilometers from this complex there
is population of approximately 2, 00,000.

Procedure To File A Public Interest Litigation:

Procedure to file a public interest litigation is just like a filing a general writ in high court or
supreme court.

In High Court:

If a PUBLIC INTEREST LITIGATION is filed in a High court, then two (2) copies of the
petition have to be filed. Also, an advance copy of the petition has to be served on the each
respondent, i.e. opposite party, and this proof of service has to be affixed on the petition.

In Supreme Court:
If a PUBLIC INTEREST LITIGATION is filed in the Supreme court, then (4)+(1) (i.e. 5) sets of
petition has to be filed opposite party is served, the copy only when notice is issued.

Court Fees:

A Court fee of RS. 50, per respondent (i.e. for each number of opposite party, court fees of RS.
50) has to be affixed on the petition.

Procedure:

1. Proceedings, in the PUBLIC INTEREST LITIGATION commence and carry on in the

same manner, as other cases.
2. However, in between the proceedings if the judge feels he may appoint a commissioner,
to inspect allegations like pollution being caused, trees being cut, sewer problems, etc.
3. After filing of replies, by opposite party, and rejoinder by the petitioner, final hearing
takes place, and the judge gives his final decision.

A Later Can Also Be Treated As Pil:

In early 90's there have been instances, where judges have treated a post card containing facts, as
a PUBLIC INTEREST LITIGATION.

some of them are:

1. Letter alleging the illegal limestone quarrying which devastated the fragile environment
in the Himalayan foothills around Mussoorie, was treated as a PUBLIC INTEREST
LITIGATION
2. A journalist complained to the Supreme Court in a letter, that the national coastline was
being sullied by unplanned development which violated the central government directive
was treated as a PUBLIC INTEREST LITIGATION

In a landmark judgment, in D.K. Basu v State of West Bengal, the court acted upon a letter
petition which drew attention to the repeated instances of custodial deaths in West Bengal. The
court further mandated that a relative of the arrested must be promptly notified. It made clear that
the failure to comply with this direction would be punishable as contempt of court. The early
PILs had witnessed the award of compensation by the court to victims of human rights
violations.

In the case of Upendra bakshi v Union of India a letter highlighting the pathetic condition of the
young offenders was sent to S.C judge which was taken into consideration.

Secondly in the case of HINDUSTAN TIMES V CENTRAL POLLUTION BOARD a news

paper cutting was taken as complaint by the court of law. In other case kamalnath v union of
India kamalnath had a lakeside hotel in mussorie. The proprietors wanted to increase the area.
They encroached the canal and built rooms there, thereby violating right to clean environment by
taking pollution a grievous level. A news item of the same appeared and it was considered by the
court.

Reliefs Available By Public Interest Litigation?

By such a petition many kind of relief are available here to secure the public interest at large.

That relief is:

Interim Measures

The court can afford an early interim measure to protect the public interest till the final order for
example:

1. Release of under trial on personal bonds ordering release of all under trial who have been
imprisoned for longer time, than the punishment period, free legal aid to the prisoners,
imposing an affirmative duty on magistrates to inform under trial prisoners of their right
to bail and legal aid. Or
2. Closure of Industrial plant emitting poisonous gas, setting up victim compensation
scheme, ordering the plaint reopening subject to extensive directions etc. Or
3. Prohibiting cutting of trees or making provisions for discharge of sewage, till the disposal
of final petition.
Relief in most of the PUBLIC INTEREST LITIGATION cases in the Supreme Court is obtained
through interim orders.

Appointing A Committee

1. The court may appoint a committee, or commissioner to look into the matter, and submit
its report.
2. Such committee or commissioner may also be given power to take cognizance of
grievances and settle it right in the public intent.

Final Orders

The court may also give final orders by way of direction to comply within a stipulated time.

Can A Writ Petition Be Treated As A Public Interest Litigation?

Yes, a writ petition filed by the aggrieved person, whether on behalf of group or together with
group can be treated as a PUBLIC INTEREST LITIGATION however,

1. The writ petition should involve a question, which affects public at large or group of
people, and not a single individual.
2. Only the effected/Aggrieved person can file a writ petition.

There should be a specific prayer, asking the court to direct the state Authorities to take note of
the complaint/allegation.

Misuse Of Pil:

In the last few years, there have been serious concerns about the use and misuse of public interest
litigations and these concerns have been expressed at various levels. The time has come for a
serious re-examination of the misuse of public interest litigation. There are numerous cases in the
history of law where PIL has been misused. As in the case of Shubhash Kumar V state of Bihar.
In this case there was a prole who was fired by the director of the company so he filed a PIL that
this company is acting something wrong so this should be tried. So in this case by the fact of the
case we can see that this is purely misuse of PIL nothing else. As same in the case of S.P. Gupta
V Union Of India. There was also misuse of PIL came into picture. as per as in the case of
Sheela Barse v. State of Maharashtra [(1983) 2 SCC 96]: In this case, on receiving a letter from
the petitioner, a journalist, the Supreme Court took notice of the complaint of custodial violence
to women prisoners in the lock-up in the city of Bombay. The court issued various directions
which included the following: ―Four or five police lock-ups should be selected in reasonably
good localities where only female suspects should be kept and they should be guarded by female
constables‖. This misuse comes in various forms. The first is what Justice Pasayat in the case of
Ashok Kumar Pandey v. State of W.B. Described as ―busybodies, meddlesome interlopers,
wayfarers or officious interveners who approach the court with extraneous motivation or for
glare of publicity‖. Such litigation is described as ―publicity interest litigation‖ and the courts
have been fraught with such litigation. How else would one describe a public interest litigation
filed for ―reliefs‖ such as that the higher judiciary would be provided with private planes and
special transport? A petition to this effect was filed by a lawyer practicing in U.P. As could be
expected, it was summarily rejected, but not before the gentleman had his day in the sun,
however momentary it was. Examples of this kind of litigation are innumerable. No sooner has
an event of public interest or concern occurred than there is a race to convert the issue into a PIL.

Recent Case Of PIL:

Recently in the territory of India many cases from the area of PIL has come into picture which
has been filed in the court of law. This project put lights in few of the cases related to PIL. As in
2008 a case was decided by Supreme Court named Common Cause (A Regd. Society) Vs. Union
of India AIR 2008 SC 2116 in this PIL Petitioner filed public interest litigation praying to court
to enact a Road Safety Act in view of the numerous road accidents but in this case court held that
court cannot direct legislation A perusal of the prayers made in this writ petition clearly shows
that what the petitioner wants the courts to do is legislation by amending the law, which is not a
legitimate judicial function so this Petition was dismissed by court of law.

Secondly Sanganmal panday v state of u.p. The Lucknow bench of Allahabad Court on Saturday
stayed construction activities from Jail Road trisection to Kanshiram memorial till September 22
on a PIL alleging the Uttar Pradesh government's move was affecting the green belt in the area.
A division bench comprising Pradeep Kant and Rituraj Awasthi passed this directive on a PIL
filed by a local lawyer Sangamlal Pandey. Earlier, on September 17, the apex Court had disposed
off Pandey's petition allowing him to file the PIL in the High Court. In his PIL, Pandey had
contended that the government move was not environment-friendly and construction work was
going on in the green belt land.

Conclusion:

So by the all discussion this is conclusion that Public interest litigation is a process to put any
public problem in the eyes of law but as it is said that nothing can be fully good so there are
some good feature then some bad are also their as we have discussed about the misuse of PIL. In
the misuse of PIL it can be possible that any person of society send PIL to tease any other person
of the society in Indian law, means litigation for the protection of public interest. It is litigation
introduced in a court of law, not by the aggrieved party but by the court itself or by any other
private party. It is not necessary, for the exercise of the court's jurisdiction, that the person who is
the victim of the violation of his or her right should personally approach the court. Public Interest
Litigation is the power given to the public by courts through judicial activism.

Such cases may occur when the victim does not have the necessary resources to commence
litigation or his freedom to move court has been suppressed or encroached upon. The court can
itself take cognizance of the matter and proceed suo motu or cases can commence on the petition
of any public-spirited individual.

A judicial system can suffer no greater lack of credibility than a perception that its order can be
flouted with impunity. This court must refrain from passing orders that cannot be enforced,
whatever the fundamental right may be and however good the cause. It serves no purpose to
issue some high profile mandamus or declaration that can remain only on paper. Although
usually the Supreme Court immediately passes interim orders for relief, rarely is a final verdict
given, and in most of the cases, the follow-up is poor.
 OMBUDSMAN (LOKPAL) IN INDIA

Mahatma Gandhi said that “Corruption and hypocrisy ought not to be inevitable products of
democracy, as they undoubtedly are today.” Now days Corruption has its deep roots in Indian
Society. People who work on right principles are unrecognized and considered to be foolish in
the modern society. Earlier, bribes were paid for getting wrong things done, but now bribe is
paid for getting right things done at right time. In today‘s scenario, if a person wants a
government job he has to pay lakhs of rupees to the higher officials irrespective of satisfying all
the eligibility criteria. In every office one has either to give money to the employee concerned or
arrange for some sources to get work done. There is not a single forum or organizations of the
citizens of India unaffected from Corruption.

A 2005 study conducted by Transparency International in India found that more than 62% of
Indians had first-hand experience of paying bribes or influence peddling to get jobs done in
public offices successfully. In its 2008 study, Transparency International reports about 40% of
Indians had first-hand experience of paying bribes or using a contact to get a job done in public
office. In 2012 India was ranked 94th out of 176 countries in Transparency International‘s
Corruption Perceptions Index.

The basic idea of the Lok Pal is borrowed from the office of ombudsman, which has played an
effective role in checking corruption and wrong-doing in Scandinavian and other nations. A
Lokpal is a proposed ombudsman (Legal Representative) in India. The word is derived from the
Sanskrit word ―lok‖ (people) and ―pala‖ (protector/caretaker), or ―caretaker of people.‖

Ombudsman: Meaning and Importance

Ombudsman offices are form of watchdog on government, investigating and resolving citizen‘s
complaints. Ombudsman means ―a public official who acts as an impartial intermediary between
the public and government or bureaucracy, or an employee of an organization who mediates
disputes between employees and management” An indigenous Danish, Norwegian and Swedish
term, Ombudsman is etymologically rooted in the Old Norse word umboðsmaðr, essentially
meaning ―representative‖. In its most frequent modern usage, an ombudsman is an official,
usually appointed by the government or by parliament but with a significant degree of
independence, who is charged with representing the interests of the public by investigating and
addressing complaints reported by individuals.

The institution of ombudsman originated in Scandinavian countries. The institution of

‗Ombudsman‘ first came into being in Sweden in 1713 when a ‗Chancellor of Justice‘ was
appointed by the King to act as invigilator to look into the functioning of war-time government.
Thereafter, a new beginning was made in 1809, when it was laid down that the Ombudsman
would be made thereafter by the legislature. Other Scandinavian countries followed the model of
Sweden almost after a century. Amongst other countries, New Zealand was the first country
outside Scandinavian to institute an Ombudsman in 1962. It has been adopted in a number of
countries, such as Finland, 1919; Denmark, 1954; Norway, 1960; Mauritius, 1966; Guyana,
1966; United Kingdom, 1967; Australia, 1976. Today there are Ombudsman offices in over 80
countries at the national provincial and local level.

Office of Ombudsman was established under the provisions of constitutional law in Austria,
Burkina Faso, Denmark, Finland, the Netherlands, Poland, Portugal, Spain and Sweden. While in
other countries belonging to Anglo-Saxon legal traditions, the office is generally regulated under
ordinary statute law.

Ombudsman in India

In a welfare State like India, citizens have a variety of interactions with the Government in its
myriad forms – as a service provider, a regulator, as a provider of social and physical
infrastructure etc. Meeting the expectations of the citizens is a challenging task for any
Government. In India, the Ombudsman is known as the Lokpal or Lokayukta. The concept of a
constitutional ombudsman was first proposed by the Law Minister Ashoke Kumar Sen in
parliament in the early 1960s. The term „Lokpal‟ and „Lokayukta‟ were coined by Dr. L. M.
Singhvi as the Indian model of Ombudsman for redressal of public grievances. The office of the
LokPal is the Indian version of the office of an Ombudsman who is appointed to inquire into
complaints made by citizens against public officials. The Lok Pal is a forum where the citizen
can send a complaint against a public official, which would then be inquired into and the citizen
would be provided some redressal. Lokpal is an officer who investigates complaints of citizens of
unfair treatment meted out to them by Government Departments and suggests remedy thereof, if
he finds that a complaint is justified.

Historical Aspect

After independence when increasing practice of corruption, maladministration and misuse of

authority and resource couldn‘t be curbed by existing measures under the Indian Penal Code,
1860 and the Prevention of Corruption Act, 1988, need for an agency independent of the
executive, legislative and judiciary, to look into citizens‘ grievances and cases of corruption have
been widely felt.

The LokPal Bill provides for constitution of the LokPal as an independent body to enquire into
cases of corruption against public functionaries, with a mechanism for filing complaints and
conducting inquiries etc. Dr. L.M. Singhvi moved a resolution in the Lok Sabha on 3 April
1964, reiterating his demand for setting up an officer of Parliament known as People‘s
Procurator. The resolution was discussed in detail by all sections of the House but was
withdrawn on the assurance of the Government that it would look into the matter. In pursuance
of this assurance, the Government constituted a Special Consultative Group of Members of
Parliament on administrative reforms, in early 1965, which favoured a high powered inquiry
commission on administrative reforms. Accordingly, an Administrative Reforms Commission
(ARC) was appointed in January 1966, for making recommendations on the reorganization of the
administrative system of the country. First Administrative Reforms Commission in its report
submitted in 1966 suggested that:

“The special circumstances relating to our country can be fully met by providing for two special
institutions for the redress of citizens‟ grievances. There should be one authority dealing with
complaints against the administrative acts of Ministers or Secretaries to the government at the
center and in the states. There should be another authority in each state and at the centre for
dealing with complaints against the administrative acts of other officials…… The setting up of
these authorities should not, however, be taken to be a complete answer to the problem of
redress of citizens‟ grievances. They only provide the ultimate set-up for such redress as has not
been available through the normal departmental or governmental machinery and do not absolve
the department from fulfilling its obligations to the citizen for administering its affairs without
generating, as far as possible, any legitimate sense of grievance. Thus, the administration itself
must play the major role in reducing the area of grievances and providing remedies wherever
necessary and feasible…… When this machinery (in-built departmental machinery) functions
effectively, the number of cases which will have to go to an authority outside the Ministry or the
Department should be comparatively small in number”

The ARC while preparing its report had three ends in view:

(i) Evolution of a suitable grievance procedure for the individuals to invoke in complaints of
maladministration;

(ii) Creation of a mechanism which would reduce corruption in the administrative services; and

(iii) Setting up a mechanism which would take cognizance of complaints of favoritism and
nepotism against Central and State Ministers.

Lokpal:

The Lokpal Bill was for the first time presented by Mr Shanti Bhushan during the fourth Lok
Sabha in 1968, and was passed there in 1969. However while it was pending in the Rajya Sabha,
the Lok Sabha was dissolved, and so the bill was not passed at that time. Subsequently, lokpal
bills were introduced in 1971, 1977, 1985 (again by Ashoke Kumar Sen when serving as Law
Minister in the Rajiv Gandhi cabinet), 1989, 1996, 1998, 2001, 2005 and in 2008, yet they were
never passed. Each time, after the bill was introduced to the house, it was referred to some
committee for improvements — a joint committee of parliament, or a departmental standing
committee of the Home Ministry and before the government could take a final stand on the issue,
the house was dissolved again.

In 2002, the report of the National Commission to Review the Working of the Constitution urged
that the Constitution should provide for the appointment of the Lok Pal and Lokayuktas in the
states but suggested that the Prime Minister should be kept out of the purview of the authority.
In 2004, the UPA government‘s National Common Minimum Programme promised that the Lok
Pal Bill would be enacted. The Second Administrative Commission, formed in 2005, also
recommended that the office of the Lok Pal be established without delay.

In January 2011, the government formed a Group of Ministers, chaired by Shri Pranab
Mukherjee to suggest measures to tackle corruption, including examination of the proposal of a
Lok Pal Bill.

Government‟s Lokpal Bill : Salient features

Lokpal and its role

The bill proposes to establish autonomous and independent institutions called Lokpal at the
central level and and Lokayukta for states. These shall have powers of superintendence and
direction for holding a preliminary inquiry, causing an investigation to be made and prosecution
of offences in respect of complaints under any law for the prevention of corruption.

Structure

 The Lokpal will consist of a chairperson and a maximum of eight members of which fifty
percent shall be judicial members.
 Fifty percent of members shall be from amongst Scheduled Caste (SC), Scheduled Tribe
(ST) and Other Backward Classes (OBC), minorities and women.
 It has an inquiry wing for conducting the preliminary inquiry and a separate independent
prosecution wing. Officers of the Lokpal will include the secretary, director of
prosecution, director of inquiry and other officers.

Process of selection

The selection of chairperson and members of Lokpal shall be through a selection committee The
Selection Committee shall comprise of the Prime Minister, Speaker of the Lok Sabha, Leaders of
the Opposition in both houses, a Union Cabinet Minister nominated by the Prime Minister, one
sitting judge of the Supreme Court, and one sitting Chief Justice of the High Court‘s both
nominated by the Chief Justice of India, an eminent jurist nominated by the central government
and a person of eminence in public life with knowledge of public administration, policy making,
anti-corruption policy, vigilance and finance.

Jurisdiction:

Prime minister has been brought under the purview of the Lokpal with specific exclusions.
Lokpal cannot hold any inquiry against the prime minister if allegations relate to international
relations, external and internal security of the country, public order, atomic energy and space.
Any decision of Lokpal to initiate preliminary inquiry or investigation against prime minister
shall be taken only by the full bench with a 3/4th majority. Such proceedings shall be held in
camera. Its jurisdiction to include all categories of public servants including Group ‗A‘, ‗B‘, ‗C‘
and ‗D‘ officers and employees of government. On complaints referred by Lokpal, the Central
Vigilance Commission (CVC) will send its report in respect of Group ‗A‘ and ‗B‘ officers back
to Lokpal for further decision. With respect to Group ‗C‘ and ‗D‘ employees, the CVC will
proceed further in exercise of its own powers under the CVC act subject to reporting and review
by Lokpal. All entities receiving donations from foreign sources in the context of the Foreign
Contribution Regulation Act (FCRA) in excess of Rs.10 lakh per year are brought under the
jurisdiction of the Lokpal. Lokpal will not be able to initiate suo moto inquiries.

Other significant features of the Bill:

No prior sanction shall be required for launching prosecution in cases enquired by Lokpal or
initiated on the direction and with the approval of Lokpal. There are Provisions for confiscation
of property acquired by corrupt means, even while prosecution is pending. Lokpal to be final
appellate authority on all decisions by public authorities relating to provision of public services
and redressal of grievances containing findings of corruption. Lokpal to have power of
superintendence and direction over any investigation agency including Central Bureau of
Investigation (CBI) for cases referred to them.

Conclusion:

The main objective behind the institution of Lokpal is to give strength to citizens so that they can
raise their voice against corruption without any fear. The existing devices like CVC and CBI for
checks on elected and administrative officials have not been effective, as the growing instances
of corruption cases suggest. All these have necessitated the creation of Lokpal with its own
investigating team.

Therefore, there is a need for a mechanism that would adopt very simple, independent, speedy
and cheaper means of delivering justice by redressing the grievances of the people. But our
Country is famous for its beautiful numerous laws and its poor execution. Most of the laws have
been proved fail to achieve its goal. No law or institution would have been helped to remove
deep roots of corruption from our country without its proper execution.
 ADMINISTRATIVE TRIBUNAL

With the acceptance of Welfare ideology, there was a mushroom growth of public services and
public servants. The courts, particularly the High Courts were inundated with cases concerning
service matters. The Swaran Singh Committee therefore, inter-alia recommended the
establishment of Administrative Tribunals as a part of Constitutional adjudicative system.
Resultantly the Constitution (42nd Amendment) Act, 1976 inserted Part XIV-A to the
Constitution of India consisting of Articles 323A and 323B.

Article 323A provides for the establishment of Administrative Tribunals for adjudication or trial
of disputes and complaints with respect to recruitment, conditions of service of persons
appointed to public services and other allied matters.

Article 323B makes provision for the creation of Tribunals for adjudication or trial of disputes,
complaints or offences connected with tax, foreign exchange, industrial and labour disputes, land
reforms, ceiling on urban property, election to Parliament and State Legislatures, etc. Parliament
has power to enact any law under Article 323A while both Parliament and State Legislatures can
make laws on matters of Article 323B, subject to their legislative competence.

Types of Administrative Tribunals

There are different types of administrative tribunals, which are governed by the statues, rules,
and regulations of the Central Government as well as State Governments.

 Central Administrative Tribunal (CAT)

The enactment of Administrative Tribunals Act in 1985 opened a new chapter in administering
justice to the aggrieved government servants. It owes its origin to Article 323A of the
Constitution which empowers the Central Government to set up by an Act of Parliament, the
Administrative Tribunals for adjudication of disputes and complaints with respective recruitment
and conditions of service of persons appointed to the public services and posts in connection
with the Union and the States.
The Tribunals enjoy the powers of the High Court in respect of service matters of the employees
covered by the Act. They are not bound by the technicalities of the Code of Civil Procedure, but
have to abide by the Principles of Natural Justice. They are distinguished from the ordinary
courts with regard to their jurisdiction and procedures. This makes them free from the shackles
of the ordinary courts and enables them to provide speedy and inexpensive justice.

The Act provides for the establishment of Central Administrative Tribunal and State
Administrative Tribunals. The CAT was established in 1985. The Tribunal consists of a
Chairman, Vice-Chairman and Members. These Members are drawn from the judicial as well as
the administrative streams. The appeal against the decisions of the CAT lies with the Supreme
Court of India.

 Customs and Excise Revenue Appellate Tribunal (CERAT)

The Parliament passed the CERAT Act in 1986. The Tribunal adjudicate disputes, Complaints or
offences with regard to customs and excise revenue. Appeals from the orders of the CERAT lies
with the Supreme Court.

 Foreign Exchange Regulation Appellate Board (FERAB)

The Board was set up under the Foreign Exchange Regulation Act, 1973. A person who is
aggrieved by an order of adjudication for causing breach or committing offences under the Act
can file an appeal before the FERAB.

 Income Tax Appellate Tribunal

This Tribunal has been constituted under the Income Tax Act, 1961. The tribunal has its benches
in various cities and appeals can be filed before it by an aggrieved person against the order
passed by the Deputy Commissioner or Commissioner or Chief Commissioner or Director of
Income Tax. An appeal against the order of the Tribunal lies to the High Court. An appeal also
lies to the Supreme Court if the High Court deems fit.

 Railway Rates Tribunal

This Tribunal was set up under the Indian Railways Act, 1989. It adjudicates matters pertaining
to the complaints against the railway administration. These may be related to the discriminatory
or unreasonable rates, unfair charges or preferential treatment meted out by the railway
administration. The appeal against the order of the Tribunal lies with the Supreme Court.

 Industrial Tribunal

This Tribunal has been set up under the Industrial Disputes Act, 1947. It can be constituted by
both the Central as well as State governments. The Tribunal looks into the dispute between the
employers and the workers in matters relating to wages, the period and mode of payment,
compensation and other allowances, hours of work, gratuity, retrenchment and closure of the
establishment. The appeal against the decision of the Tribunal lies with the Supreme Court.

At present and in view of the decision of the Supreme Court in 'Chandra Kumar's case, the
administrative tribunals are rendering the following diversified judicial duties/functions:

1. Functioning as a 'Court of first instance; by adjudicating the Original Applications

(shortly called O.A.s) filed by the Government employees and also Miscellaneous
Applications, Contempt Applications and Review Applications, arising out of them.
2. Adjudicating the cases remanded by the High Courts, in exercise of its power of 'Judicial
Review'.
3. Adjudicating cases remanded by the Supreme Court of India.

Advantages of Administrative Tribunal

Administrative adjudication is a dynamic system of administration, which serves, more

adequately than any other method, the varied and complex needs of the modern society.

The main advantages of the administrative tribunals are:

a) Flexibility

Administrative adjudication has brought about flexibility and adaptability in the judicial as well
as administrative tribunals. For instance, the courts of law exhibit a good deal of conservatism
and inelasticity of outlook and approach. The justice they administer may become out of
harmony with the rapidly changing social conditions. Administrative adjudication, not restrained
by rigid rules of procedure and canons of evidence, can remain in tune with the varying phases of
social and economic life.

b) Adequate Justice

In the fast changing world of today, administrative tribunals are not only the most appropriated
means of administrative action, but also the most effective means of giving fair justice to the
individuals. Lawyers, who are more

concerned about aspects of law, find it difficult to adequately assess the needs of the modern
welfare society and to locate the individuals place in it.

c) Less Expensive

Administrative justice ensures cheap and quick justice. As against this, procedure in the law
courts is long and cumbersome and litigation is costly. It involves payment of huge court fees,
engagement of lawyers and meeting of other incidental charges. Administrative adjudication, in
most cases, requires no stamp fees. Its procedures are simple and can be easily understood by a
layman.

d) Relief to Courts

The system also gives the much-needed relief to ordinary courts of law, which are already
overburdened with numerous suits.

Disadvantages of Administrative Tribunals

Even though administrative adjudication is essential and useful in modern day administration, we
should not be blind to the defects from which it suffers or the dangers it poses to a democratic
polity. Some of the main drawbacks are mentioned below.
a) Administrative adjudication is a negation of Rule of Law. Rule of Law ensures equality before
law for everybody and the supremacy of ordinary law and due procedure of law over
governmental arbitrariness. But administrative tribunals, with their separate laws and procedures
often made by themselves, puts a serious limitation upon the celebrated principles of Rule of
Law.

b) Administrative tribunals have in most cases, no set procedures and sometimes they violate
even the principles of natural justice.

c) Administrative tribunals often hold summary trials and they do not follow any precedents. As
such it is not possible to predict the course of future decisions.

d) The civil and criminal courts have a uniform pattern of administering justice and centuries of
experience in the administration of civil and criminal laws have borne testimony to the
advantages of uniform procedure. A uniform code of procedure in administrative adjudication is
not there.

e) Administrative tribunals are manned by administrators and technical heads who may not have
the background of law or training of judicial work. Some of them may not possess the
independent outlook of a Judge.