ADMINISTRATIVE LAW

TABLE OF CONTENTS
1. NATURE AND SCOPE OF ADMINISTRATIVE LAW ............................................2
1.1. NATURE OF ADMINISTRATIVE LAW...........................................................................2
1.2. DEFINITION OF ADMINISTRATIVE LAW....................................................................10
1.3. SOURCES OF ADMINISTRATIVE LAW........................................................................12
1.4. PURPOSE OF ADMINISTRATIVE LAW..........................................................................13
1.5. ASSUMPTIONS OF ADMINISTRATIVE LAW................................................................13
1.6. SCOPE OF ADMINISTRATIVE LAW.............................................................................14
1.7. APPROACHES TO ADMINISTRATIVE LAW..................................................................16
1.8. 4 BASIC BRICKS.........................................................................................................16
1.9. IMPORTANCE OF ADMINISTRATIVE LAW IN THE AGE OF FREE TRADE AND
CORPORATISATION OF ECONOMY..........................................................................................17
1.10. REASONS FOR THE GROWTH OF ADMINISTRATIVE PROCESS AND LAW.....................18
1.11. DROIT ADMINISTRATIF..............................................................................................21
1.12. ADMINISTRATIVE LAW AND CONSTITUTIONAL LAW...............................................24
1.13. RULE OF LAW...........................................................................................................27
1.14. DOCTRINE OF SEPARATION OF POWERS....................................................................34
2. CLASSIFICATION OF ADMINISTRATIVE ACTION...............................................................42
2.1. QUASI LEGISLATIVE ACTION....................................................................................42
2.2. QUASI-JUDICIAL ACTION OR ADMINISTRATIVE ADJUDICATORY ACTION..................43
2.3. ADMINISTRATIVE ACTION........................................................................................48
3. DELEGATED LEGISLATION/ADMINISTRATIVE LEGISLATION/ADMINISTRATIVE RULE
MAKING...................................................................................................................................54
3.1. INTRODUCTION..............................................................................................................54
3.2. CONTROL MECHANISM.................................................................................................70
4. PRINCIPLES OF NATURAL JUSTICE..............................................................................104
4.1. COMPONENTS OF NATURAL JUSTICE......................................................................107
4.2. CAN THERE BE EXCEPTIONS TO NATURAL JUSTICE?..............................................126
5. LIABILITY OF THE GOVERNMENT................................................................................134
5.1. LIABILITY OF THE GOVERNMENT ON CONTRACTS.................................................134
5.2. TORTIOUS LIABILITY OF THE GOVERNMENT..........................................................141
6. ADMINISTRATIVE DISCRETION.....................................................................................151

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5th July, 2022

1. NATURE AND SCOPE OF ADMINISTRATIVE LAW
1.1. Nature of Administrative Law
 Heuristic Science
Administrative law is a heuristic science. What is science? Generally, we think of chemistry
and physics. In a liberal sense, science is any organised discipline of knowledge. The
traditional system of inquiry was elaborate. A need arose that we have to find quick solutions
to problems. However, those problems should be reasonable and fair, just like the solutions
that we find. The solutions must be practical solutions.
Therefore, this system was developed which is based on experimentation. This method
allows you to use your fundamentals in such a manner that you can find a reasonable solution
to a particular problem. Heuristic science developed in Greece. In 1833, this word was
coined. It provides a practical framework for quick solutions.
For example, if it is raining outside, you immediately go for an umbrella.

This process of making a decision is a heuristic process. It is quick, practical and reasonable.
Administrative law provides quick solutions to administrative problems. It can be
differentiated with abstract thinking.

The whole body of administrative law is a judge made law. The purpose of administrative
law is to control the misuse of power by the state. Right from the dawn of civilization, there
was one big problem with the people. How to protect themselves against the misuse of power
by the administration?

Democracy is a solution to this problem

The principles of administrative law are not final. They are changeable, they go on changing.
That makes the subject very complex. It is a heuristic science based on our practical
experience.

 Branch of Public Law

It is a branch of public law. Law can be divided into two:

1. Public law

Public law regulates the relationship of the individual with the state.

2. Private law

Private law regulates relationships between two individuals.

How to control the misuse of power? Administrative law provides certain principles and
rules.Like the Constitution, it regulates the relationship of the individual with the state and
tries to balance state interest with private interest.
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In public law, the presence of public interest is enormous. The administrative law is
considered as a chemotherapy for the cancerous use of power of the state. In the exercise of
public power, there is arbitrariness, favouritism, misuse of power. Administrative law deals
with this kind of cancer by prescribing certain rules and regulations. It tries to enforce the
rule of law on the administration.

What is the rule of law? What is the difference between rule of law and rule according to
law?

Rule of law means rule by the law which is fair, reasonable and just. Rule according to law
means any law that is passed by the legislature or any competent authority which may not be
fair, reasonable. When this law rules, we say rule according to law. If such law is also
reasonable, fair and just, then we say there is also rule of law.

For example, all our fundamental rights are a part of the rule of law

Who decides if a particular law is reasonable, fair or just?

For this, we have created the institution of judiciary.

When the constitution was being drafted, the main controversy was that a person can be
deprived of life and liberty according to law. The American constitution lays down that
nobody can be deprived of life and liberty except for due process of law. Due process is fair,
reasonable and just.

Mr. Rau, the Secretary of the Drafting Committee was sent to America to discuss whether we
should write due process of law or process established by law. Later on, it was found that in
many situations that rule by law is not reasonable and fair. In the Maneka Gandhi case, it was
held that judicial interpretation is considered to be one of the very creative interpretations of
the constitution.

In India, power can be easily misused and there are many judgements of the Supreme Court.
Maneka Gandhi is one of the most pace setting judgements. Administrative law tries to bring
fairness. The importance lies in the fact that today the administration has grown so much that
we are living not only in shade but shadow also. Shade means there are many benefits also.
But every aspect of life is being controlled by one law or the other.

Administrative law brings fairness and justice into the administration. Without a good system
of administrative law, any society can lapse into the misuse of power by the state. It is
administrative law that keeps the government on the reins. After globalisation, a new area of
administration has developed and that is global administrative law.

Principle of administrative law is that no decision can be taken against a person which
adversely affects that particular person without first giving him notice. If you are taking any

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adverse effect against that person without notice, you are showing disrespect. It will enhance
the quality of your decision and it will show that you have respect. It is a part of natural
justice. Administration has grown so much that we are living under its dark shadow. If this
principle is not followed, then it means that you have no respect

Public interest is not the sole reason the officer is taking the decision. He is a public office,
personal interest is not involved. This principle is more valid where personal interest is
involved

For example, a member of the selection committee selects his own son.

Principle will be more validly acceptable.

State has the interest of their own, but it is the public interest and not the personal interest.
While making a decision, you must be objective, reasonable and fair. In some situations, it
may be that only one person can take a decision according to law. In such situations, the court
has developed a principle of necessity. Necessity demands that either you go without a
decision, or you have a decision where a person has

For example, in the Parliament, the Speaker is the person who belongs to the ruling party. He
is supposed to be independent, but he is a member of the party. Whether the no confidence
motion has to be admitted or not is the decision of the speaker? In such cases, they say you
have to remain satisfied because the rule of necessity prevails

6th July, 2022

Writers have tried to describe it, not define it.

Difference between constitutional law and administrative law

The first book was written by Dr. Port as late as 1929. In India, nobody talks about
administrative law until 1957 when the first seminar with the title “Administrative Law” was
organised by the Indian law institute, Delhi.

In England, the constitutions is uncodified. Using the term unwritten is wrong expression.
Various laws have been passed by the British parliament. But there is no codified
constitution. In common law, they did not differentiate between constitutional law and
administrative law for a very long time. But now, everywhere it is considered to be an
independent law

The conceptual objections against the growth of administrative law

Government started asking a central law. It was a golden era of liberty and freedom. The
philosophy of the state was Laissez faire i.e., no intervention by the government. State cannot
sit on the sidelines; it must come forward and do something to stop the exploitation. An era of
paternalism developed.
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There was no welfare provisions for labour. The poor labour was suffering. The state came
forward to help them and developed labour laws and tried to enforce them. This is known as
period of paternalism. Society grew and a period of maternalism came. Government must
come forward and take every person who cannot take care of themselves. Even from the pre-
natal stage, not only unto death but even after death, it is the duty to take care. Under IPC,
reputation of the dead is protected.

A huge army of administrative officers emerged. Therefore, administration became a huge

system of governance. In the ancient times, a person hardly came into contact with
administrative officer. Now, no person can say that I am controlled or my activities are
controlled under sovereign.

How is it different from government?

As far as administration is concerned, it is a part of the governance but it includes besides the
prime minister, president. The word administrative includes:

1. all executive actions, programs and policies.

2. all administrative aspects of parliament and judiciary

3. all actions of those particular bodies which are instrumentalities or agencies of the state
either have been created by state or are incorporated by the state.

For example, all actions of a university are administrative actions because the government
has authorised it by passing a law

4. all actions of non-state actors exercising public functions.

For example, BCCI, societies etc.

Welfare concept of state started emerging. Now, these government officers in huge numbers
have come with all the powers of the king. They have the power to execute the law. It can
exercise executive functions and decisions. In this manner, when the administrative law
started growing, people were not happy in certain sections. They took certain conceptual
objections.

Rule of law is associated with Professor AV Dicey. He was first exponent of the concept of
rule of law. Dispute must be decided by the same independent court and the same executive
officer must be accountable to the people. In administration, it is not possible. Therefore, it is
violation and must not be allowed to grow. It is highly dangerous to the freedom and liberty.
Let the government be confined to its own place since people are intelligent enough to
decide.

In America, they took another objection. Their objection was that the growth of
administrative law violates the principle of separation of power. It was realised that
government becomes an absolute government when the three functions of the government are
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combined together i.e., law making, decision making, dispute settlement and executive. In
monarchy, all the three powers are combined into one. This is a sign of dictatorship. All the
powers should be separate. American constitution is the only constitution in the world that is
based on the concept of separation of powers. Nobody can interfere in the functioning of
the other branch. No person who is a member of one branch can be the member of another
branch. Power of judicial review doesn’t exist because it interferes with the functioning of the
legislature and there is a violation of separation of powers.

In the case of Marbory v. Madison, Chief justice Marshall said that the SC has power to
decide when the action of government violates the constitution.

Democracy is less a form of government, more a disciple of mind. Nehru said that it will be
impossible to live without democracy. But he felt that this is the only road and ultimately,
you will reach there. Nehru said I don’t want to become a weak administrator like the
American president. He wants to be strong. For five years, he is elected and not responsible
to anybody. The PM- is responsible to the people. That’s why he went for parliamentary
system.

Classification of Administrative Action

Action of the state are generally divided into three:

a. Legislative action - action of the legislature.

b. Judicial action – action of the government.
c. Administrative action – actions of the judiciary.

University is an administrative body created by law. It also exercises three types of actions:

a. quasi legislative action or sometimes known as rule making action. Parliament has the
power to make law. That power has been delegated to administrative authority to make
law.
b. quasi-judicial action. The action which the judiciary takes is also delegated to
administrative authority. For example, income tax cases, sales tax cases etc.
c. administrative action. Administrative action is residual action. If you take away the
two aforementioned actions, what remains is administrative action.

Difference between administrative action and quasi-judicial action

When it is administrative actions, principles of natural justice are not applied

For example, university changes the timings. This is administrative action. There is no
dispute and therefore, notice to the students is not necessary. You may give and ask for their
opinion, but it is not mandatory. Principles of natural justice are not attracted to
administrative action

Concept of delegated legislation

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Quasi legislative action or administrative rule making action is delegated legislation. Today,
we are governed more by administrative rules and legislation.

For example, NLU act passed by legislature. Students are concerned about the rules and
regulations framed by the administrative authority for daily conduct.

How the procedure of making rules and validity of rules can be tested

This is via:

- Procedural control
- Judicial control and
- Pre and post publication
Law passed by the legislature is not valid until it is published by gazette. In the same
manner, rules and regulations framed by the administrative authority have to be published.
They can publish in any recognised method of publication. Publication does not necessarily
have to be in gazette. There may be the requirement of consultation, control by the judiciary
as well. If the university has made certain rules and regulations which violate your
fundamental rights, then you can go to court of law also.

The principles of natural justice

If substantive law is important, procedural law is equally important. Substantive law gives
you a right. Unless the procedure for giving the right is certain, the ends cannot be achieved.
Procedure is laid down in the Constitution and there is a procedure of the parliament.

If case is by administrative authority, what procedure is to be followed?

There is a variety of procedure. Sometimes in the act itself, sometimes authority will develop
own procedure. If nothing is laid down in the act, and there is no administrative procedure as
well, then how will they take decision?

Administrative law says university, or any administrative authority says that they have to
follow the procedure laid down by the principles of natural justice, which are reasonable,
fair and just. They are:

a. Audi altrem paltrem. Hearing may be in writing or oral also.

b. Nemo judex et causa sua i.e., nobody should be made judge in his own cause. Person
appointed to decide dispute must be independent. He must not have any interest either
in the parties or in the dispute.

Why is it necessary?

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Justice should not only be done, but also should have manifestly seen to have been done. If
people lose faith in the system, the system will not work

What is the requirement of hearing?

Generally hearing must be prehearing i.e., before decision is taken, give a person hearing. It
is pre decisional hearing. In exceptional circumstances, there can be post decisional
hearing.

For example, Maneka Gandhi case.

Post decisional hearing means when the government or the administrative authority has to
take an urgent action, that time should not be wasted in hearing or else purpose will not be
solved. Maneka Gandhi’s passport was impounded. There was a danger that she may leave
the country. Therefore, without any notice or hearing, the passport was impounded. She
challenged this on the group that I wasn’t given nay notice or hearing. Government said that
if the person had an idea that passport is going to be impounded, she would’ve left.
Therefore, it is an emergency action.

Should the administrative authorities give reasons for their decision?

Even administrative authorities need not write lengthy judgements as the courts write but at
least some reasoning needs to be given.

This concept of natural justice is the most important concept. 90% of the government
decisions are challenged on the court of law. Principles of natural justice lay down the code
or procedure

How did this concept of natural justice evolve?

In order to check the arbitrary exercise of power by the monarchs, the philosophers thought
that no decision taken by the monarch can adversely affect the public unless they follow
principles of nature.

Some people later on started thinking if nature can give you the right?

There was a lot of emphasis on religion. Philosophers started saying that they have been laid
down by God. The whole concept of God is one that cannot be proved and cannot be
disproved. Modern men started saying that nobody has laid down; they are inherent in every
individual. If they are inherent, how will you take them away?

This was the mistake that was committed by SC in Habeas Corpus case during emergency.
SC made a mistake when they said no, they have been given by the Constitution. Later, they
amended the mistake and came to the conclusion that constitution is not the source of your
rights, it is merely a reflection of rights. Therefore, nobody can take away these rights which
are inherent

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8th July, 2022

Administrative discretion

Discretion means the power to choose from various available alternatives without any
reference to pre laid down standards on the free will of the person. This is a rule free area.
There is no objective standard to control it. Because it is rule free, it is likely to be misused.
In administrative law, the problem is that discretion is an unavoidable necessity because no
law can lay down every eventuality in detail in advance. Therefore, you shall have to give
some discretion to the administrative authority.

Judicial review of administrative action

Administrative action is of 3 types. They are:

1. Law making action

2. Quasi-judicial action and
3. Administrative action

If administrative authority has taken a decision, how can it be challenged in a court of

law and on what grounds?

Grounds of review of administrative action are generally considered to be 4:

1) Illegality- when without law, administrative authority is taking an action.

2) Irrationality- administrative action is unreasonable.

3) Procedural impropriety - the procedure which you have adopted is not proper.
Administrative authorities must function in accordance with law or principles of natural
justice.

4) Proportionality - Proportionality means that the action which you are taking and the end
which you are trying to achieve, there must be some kind of a balance between them.

Legitimate expectations

In democratic societies where our governments and administrative authorities are responsible
to the people, in that case, the administrative and constitutional morality demands that not
only rights be protected but also your legitimate expectations. Legitimate expectations is
something between right and no right. Morality demands, ethics demands that not only rights
but legitimate expectations of the people which the administration has given must be fulfilled.

For example, municipal corporation issues a list of 5 colonies in a particular year, and they
must be improved and regularized. For whatever reasons, they issue another revised policy
statement and say that we will improve only 3 colonies. The people living in the 2 colonies
have lost legal right and legitimate expectations and therefore, we are of the view in a
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democratic government which is bound, they must be responsible to people not only for
violation of rights but also legitimate expectations.

Protection against administrative faults

These are not violations, these are faults, meaning thereby that you have applied for a
particular license from the municipal corporation. There are fees prescribed and it has been
deposited. Within a reasonable time, license should have been issued. But you have made
visits to the office, and nothing has happened. There is an administrative fault; they are not
saying they won’t issue but they are saying they will issue later.

For this purpose, a method was developed in Sweden. They appointed an authority; you can
report to that authority, and they will help you in getting your license. This institution is
called Ombudsman. Ombudsman means a friend of the people.

India also thought that we will also plan something like this. They have transformed it as
Lokpal and Lokayukta in India. An act was passed, and these two authorities were
established. The purpose was to act as a friend of the people and help you get justice against
administrative faults.

But important thing is that in Sweden, this institution became popular because it is a small
country, small population and general standard of honesty and integrity is high. In India, it is
a vast country with a vast population and corruption and dishonesty is everywhere. In India,
nobody is interested in removing corruption Secondly, it was not the priority of the
government. State is also not interested in the working of this institutions. Present Lokayukta
has not been given a place to sit.

Administrative tribunals

When judiciary became burdened with cases, with the growth of administrative process, a
new area of litigation came. They started thinking that we must establish tribunals which may
not be as independent as the courts, but they will be somewhere between the courts and
administrative proceedings.

For example, income tax courts, labour law courts, service tribunals, SEBI independent
bodies etc.

It was thought that they will be able to function properly. They were not an independent part;
they were part of the already existing system. In England, in 1970, they passed a Tribunal
Act. They have it as an independent system of adjudication and not subservient to the
already existing system.

Tribunals should be made independent. Constitution was amended and Article 323a and
323b was added to give power to tribunals. Backlog is increasing, cases are not getting
decided. In 323b, the government was authorised to establish tribunals in any other area.

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England thought it was not a good system. In 2007, they developed a separate system of
administrative courts. In India, we are still thinking.

Liability of the administration

To what extent will the state be responsible to the people for the contracts they enter into with
private people? Whether government has special privilege as a litigant?

Answer is yes.

Global administrative Law

There is a growth of globalization and liberalisation in the economy. Global administrative

authority may take serious decisions. WTO is an administrative authority

How should it function so that it can deliver independent, objective and reasonable decisions?
How will principles of administrative law be enforced against international authorities so that
our interest can be protected?

11th July, 2022

1.2. Definition of Administrative Law
How do you define administrative law or describe administrative law?

Administrative law covers such a wide terrain that it is difficult to define exactly. Therefore,
the writers on administrative law have tried to describe administrative law. For a very long
time, administrative law was not considered a separate branch or discipline. It was considered
to be a part of constitutional law.

 Dr. F.J. Port

The first book which was written with the title “Administrative Law” was written in 1929
by Dr. F J Port.

How did he try to describe it?

There was no difference between constitutional law and administrative law because in
England, there is no written Constitution. Administrative law is made up of all legal rules,
either formally expressed by a statute or implied in prerogative which have as their ultimate
object in fulfilment of public law.

What he means is that administrative law are those rules and regulations relating to
administration, which are either passed by the Parliament or implied in the discretionary
powers of the king. Their purpose is the fulfillment of public law. Fulfilment of public law
is to regulate or harmonise the relationship of the individual with the state. All those
regulations which are either passed by the legislature or provided by the prerogative of the
king- their object is to bring a balance between right of the individual and the
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administration. Most of the law is made by the judiciary. That is why it is confusing and
complex because judges always change their stance.

 Sir Ivor Jennings’

Administrative law relates to administration. It determines the organisation, power and

duties of the administrative authorities.

So, any law that relates to administration is administrative law. What is the purpose of
administrative law? To define the organisation and the power and the duties of the
administrative authorities.

He does not say anything about the control of those powers. He only talks about the rules
and regulations relating to the organisation, power and duties. If they do not exercise
powers properly, what is the remedy?

 Professor Wade

Administrative law is the law relating to the control of governmental powers. All that law
which regulates the control of administrative power.

 Griffith and Street

Administrative law deals with three aspects:

1) what sort of powers the administration exercises- it exercises rule making power, quasi
adjudicative power and administrative power

2) limit of those powers- because if those limits are crossed, the actions of the authority is
not valid

3) The ways to keep administration within limits- how do you do it? So many methods

 IP Massey

Administrative law is a branch of public law which deals with the structure, powers and
functions of various organs of the administration and prescribes principles and rules by
which an administrative action is reached and thereafter, controlled with the view of
reconciling power with liberty.

Various organs can be government, quasi administrative authorities like universities, private
bodies, purely private authorities which are exercising public functions.

Administrative law is a law but what type of law is it?

It is not a law in the lawyers sense of the term. It is a law in realist sense of the term.

What is lawyers sense?

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It means a law which is passed by the legislature. But administrative law is something more
than that and sometimes, it includes things which nobody considers as law.

1.3. Sources of Administrative Law

1. Statutory law passed by the legislature

It contains various types of law.

For example, University Act passed by the legislature through which the university is
established and its powers and functions are laid down.

2. Rules and regulations framed by the administrative authorities which we call

delegated legislation.
3. Judge made law- our main area of law.

Law made by the judiciary is precedents. Sometimes, we ask whether the function of the
court is to lay down law or decide cases. Former is not their function but when they are
interpreting the law, they lay down the law.

4. Higher Law- fourth is not only positive law but also higher law. This has not been
laid down by any authority. We call it the principles of natural justice.
5. Something which is not law at all

For example, policy resolutions of the administrative authorities, instructions that have been
issued by administrative authorities, the long practice followed by administrative authorities.
When the university invites applications for a post, their rule which is not written anywhere is
that 5 candidates will be invited- but 1000 applied. This practise is being followed by the
university for a long, reasonable period of time. But suddenly, in one year, when you apply,
university invited only 3 candidates for one post. If they would’ve invited 5, you would’ve
been invited.

What you lost here is not a right but a legitimate expectation. One can go to court. Here we
are not enforcing law but a long practice. This is what we mean when we say that
administrative is law, to only in the lawyer’s sense of the term but the realist sense of the
term.

Structure, power and functions of administrative authorities

Administrative authorities must act within a particular limit. If they do not, you have the right
to enforce it through a judicial process. Emphasis is not so much on structure; main emphasis
is on power and functions. Administrative law prescribes principles and rules in order to
ensure that the administrative power is exercised properly for the benefit of the people and
the purpose for which it has been given. Every power must be exercised reasonably, fairly
and justly

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Principle of comity

Comity means that power must be exercised in a manner that does not negate the power of
the other administrative authority.

Principle of subsidiarity

Administrative law says that the power must be exercised at the level at which it has been
given.

For example, registrar and VC.

1.4. Purpose of administrative law

The purpose of administrative law is to reconcile power with liberty. Administrative law is a
chemotherapy for carcinogenic administration and tries to infuse fairness and
accountability. Administrative law is a filter mechanism to filter administrative powers of its
impurities so that they are done away with and ensures the exercise of administrative power
according to standards of legality and fairness.

Ostensible purpose of administrative law is to ensure enforcement of rule of law in the

administration which we can call to enforce administrative dharma. There is a dharma of
every person i.e., the righteous conduct

12th July, 2022

Administrative law is a living subject; it always grows. Administrative law is basically a

judge made law. Administrative lawyer has to keep himself updates as far as law is
concerned. The process of development and refinement of law continuously goes on in
administrative law. Administrative law is chemotherapy for the administrative’s cancerous
process. There is a complete absence of performance deficit. Administrative law is a filter
mechanism because it removes the impurities and ensures that the administrative authorities
conform to the principles of legality and fairness. In the same manner, the administrative law
is considered to be dharma of the administration.

1.5. Assumptions of Administrative Law

Administrative law is based on three assumptions:

1) No power of any organ of the state or instrumentality of the state is unlimited

Every power is limited. It is limited by the provisions of the constitution, law by which the
authority is created, and concept of rule of law. It is not final; it is always subject to limits.

2) Every power is likely to be misused and abused

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It is the tragedy of power; whether you give power to one person or group of people or
elected representatives, power corrupts and absolute power corrupts absolutely. Whether
it is a monarchy, feudalistic order, group of people or 500 people sitting in the parliament, if
you give them power, it is likely to be misused. Therefore, strong administrative power is
necessary. The most untruth about democracy is that power cannot be misused.

3) Every power is a public trust

For example, constitution gives power.

Is it personal power? Answer is no.

It is a public power, not personal power and therefore, it is a trust which the people have
given to the government which is transferred to gov officers. If they have power, they must
exercise.

For example, the decisions of the appointments of the university can be appealed to the
chancellor. In one case, there was a lady IAS officer in Haryana. Her husband also was an
IAS officer. They had a child. The husband expired. The lady had difficulty in carrying out
duties. There is a rule that government can change the cadre of IAS officer in case of
hardship. Government responded saying that they have never exercised this power. The SC
says no, every power is a public trust; it must be discharged. How you discharge is your
discretion, but you cannot abstain.

There is a provision in the University’s Act that all decisions of the Executive Council can be
appealed to the Governor. It is a trustee and not the owner of the power. Therefore, it must be
exercised in best interests

4) Every power can be checked and regulated

If there are no checks in the power, then power is always misused.

Who can provide the checks?

Rules and regulations framed by the administrative authority and the constitution. Every
power must be controlled and checked so that the power is not misused. Check is most imp
aspect of administrative law. Protest is not a legal method of check, it is a political
method. Judiciary also has started taking suo moto cognizance. There can be informal checks
also.

For example, media. Media can exercise pre emptive power and inform people

13th July, 2022

1.6. Scope of Administrative Law
 6 basic aspects of administrative process

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1) What sort of power does the administration exercise?

It exercises 4 powers.

a. Rule-making power
b. Adjudicatory power
c. Administrative power and
d. Ministerial power- ministerial power is that administrative power where there is no
discretion. For example, the University Act says that university shall open account
with the State Bank of India. It is a ministerial action because there is no discretion.

2) Limits of these powers

Limits of these powers are from the constitution, rules and regulations framed by the
administrative authority and principles of natural justice.

3) What procedure is followed by the administrative authority?

There is a bewildering variety with respect to procedure. Sometimes, administrative authority

frames their own procedure and sometimes, nothing is laid down. Tribunals and Inquiries Act
is codified. In America, they have codified administrative procedure i.e., Administrative
Procedure Act.

In India, we do not have any procedure. Law Commission has said it so many times but
government has not paid any attention and simply says we want flexibility

What are the strategies to keep the administration within its limits? Strategies may be
constitutional.

For example, writ before the High Court and the SC, ordinary suit before ordinary court,
quasi-judicial authorities, specialised tribunals.

4) What are the remedies available?

Remedies may be constitutional, administrative, legislative. After globalisation, international

space has also been created for administration. Administrative law also deals with that
international space. There are informal methods like press, media, civil society, people’s
organisations like unions. They also play a very important role in controlling the exercise of
power by the administrative bodies.

5) What is the nature of administrative law?

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Administrative law is not a part of philosophy of law. It is a part of sociology of law.

Administrative law is not logic, it is experience. It is not a metaphysical thinking, it is
practical thinking. In administrative law, we do not do theorisation of law, it takes a practical
approach to find a practical solution. It is not logic, it is experience.

1.7. Approaches to administrative law

1) Circumscriptive approach or red-light approach
This approach is known as common law approach. In England, after the death of laissez
faire, the administrative process started rising. A lot of agencies were appointed. In that
country, people became very apprehensive. With great difficulty, we were able to do away
with monarchs and now these government officers also come in the shape of monarchs
because they have all the powers of the monarch. Therefore, they wanted a brake on this
kind of a process.
A very important committee was appointed i.e., Committee on Minister’s powers. So, they
wanted to use administrative law as a brake. For them, liberty and freedom was very
important and not welfare. Their approach was give these administrators a little power as
possible so that they may not interfere with the freedom and liberty of the people.
Therefore, it was recognised after a v long time. In England, it was called socialist approach.
An extreme form is communist approach.

2) Green light approach

This is where administrative process is not considered as a brake but as an accelerator. In

America, they opted for free enterprise and privatisation of everything. State will only act as
a regulator and not undertake any activity. State is to govern only. This is known as capitalist
approach.

How to control? In Britain, their idea was to control through courts.

If the administrative process is open, it is not secretive, it is participative. If there is an open

participation in the long run, things cannot go well. This is the best method of creating a law
for the people by which they are governed. That is why law must come only from the
parliament. There, the representative sits and is responsible to you.

3) Amber approach

It is a mixture of red and green theory. Side by side, there must be brakes and accelerators.
With the growth of globalisation, everyone is moving towards increment.

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1.8. 4 basic bricks

1) Checking the abuse of power by the administration- check it through courts or the
administrative process itself.

2) Impartial determination of disputes with the administration

Absolutism will lead to arbitrariness.

How to guarantee that the exercise of the judicial authority will take impartial decisions?
Sometimes, this is done when we use the constitution or by the administrative process itself.

3) Protecting citizens against misuse of power-

How to make them accountable?

In this age of corporatisation, small scale is vanishing. Big corporate giants can very easily
control the government.

How to control this mechanism?

In African countries, Nestle had their headquarters there. Government of that particular
country decided that in the interest of the health of the people, breastfeeding will be
encouraged. They developed a policy that we will henceforth discourage baby food. Nestle
became very upset. They exercised so much influence over the government that they had to
change the policy.

14th July, 2022

1.9. Importance of administrative law in the age of free trade and corporatisation
of economy
In the 1990s, India opted for liberalisation of economy. Policy of LPG was adopted. Our
constitution became social service constitution or welfare constitution. Economic
development is suffering all over the world because of this policy. People are raising a lot of
tariffs against international trade. Big corporations with huge capital at their disposition
entered into global market. No country was allowed to put any restriction. Economy which
was small was also corporatized. Big corporations work on 3 Es:

1. Efficiency

For every decision they take, they see if it’ll increase efficiency.

For example, if they see that our business efficiency does not require so many people, they
will have no hesitation in terminating the service of people.

Their main purpose is not social service, it is doing business. Therefore, they see how it will
impact their efficiency.

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2. Economy

Their purpose is only one: to earn as much profit they can for their shareholders so that the
value of their share goes up in the market. They think of nothing else. For them, there is no
moral or fair standard.

3. Effectivity

Every corporation, big corporation wants a dominant position in the market. For this, they
always want to avoid competition. This maybe a good strategy for trade purposes

Developing countries started thinking that these companies are so powerful that they can
even control the government. Big corporations are very good servants if they are controlled
by the government. But they are very bad masters if the government is controlled by them.

Generally, the government is not able to control these corporations, especially the societies
which are developing and are poor. The developing countries started thinking that these big
corporations will not be beneficial for Indian economy, unless they follow two more Es:

4. Ethics

Ethics mean they have to take into consideration social responsibility also and how the
society is going to be benefitted. The concept of ethics and social responsibility of the
corporation was introduced.

5. Equity

Meaning thereby all their programs and policies must be equal for all. There must be fairness,
reasonableness and justness.

In order to introduce these 2 Es, you needed the growth of administrative process. This kind
of a social responsibility was difficult to be enforced by courts and therefore, a strong
regulatory mechanism was required. That was the social responsibility. Whether a corporate
is good for the society or not the issue. always perform better than public sector. What is bad
is they are uncontrolled, and their powers must be controlled.

This is the importance of administrative law because without a good system of administrative
law, these corporates cannot be trusted.

1.10. Reasons for the growth of administrative process and law

Initially, nobody recognised administrative law. Later on, when the administrative process
developed, everybody thought that administrative process is such without which a society

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cannot develop. Therefore, the government became intensive government and welfare
government. Maternalism came in the system of governance

1. It is a byproduct of an intensive form of government

Intensive form of government is welfare state or a materialistic state which takes care of the
people in the same manner in which a mother takes care of a child. Our constitution laid
down directive principles of state policy which lays down the social activities which every
government must undertake. Lot of administrative authorities started coming into existence.
There was public and private partnership. Then, came the era of independent private agencies
to undertake these activities. Government started acting as a manager or a person who
regulates i.e., regulator. Today, the government undertakes to provide food for 80 crore
people.

2. Paradigm shift in the demand of the people

Government should not only define their rights but solve their problems also and create
conditions in which right can be meaningfully exercised. Then, came the era of human rights.
Soon, they realised that these rights have no meaning because conditions do not exist in the
society wherein these rights can be properly exercised.

3. To control the forces which science and technology has unleashed

Science and technology is a boon for the society but it can be bane for the society because
environmental problems are the effect or the counter production of science and technology.
Rapid transport system became possible because of science and technology as most accidents
take place in India.

4. Change of attitude of the people

Today, people demand that the government should not merely define their rights but must
also come forward to solve their problems. There was a time where the people were satisfied
if their legitimate rights were recognized by law but now they aren’t, they want their
problems solved as well. Giving a right isn’t sufficient.

For example, classical case of America: In the southern states, there was slavery. A lot of
labour was needed in agriculture to work on the farms and so they bought them by purchasing
black people. They were traded in the market like goods. Torture and pain was phenomenal.
When America wanted to frame the Constitution in 1797, the southern State said that they
won’t adopt the Constitution unless slavery was excluded from the Constitution. So, when the
Constitution was signed, there was no chapter on fundamental rights. However, later there
was a movement and the first amendment was made, and the Bill of Rights was introduced.
However, slavery was not abolished then but right to equality was recognized then. It was
thought that this Bill of Rights was not applicable to States, only the federal govt. So, only

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the federal govt would not discriminate on the grounds of colour but the State are free to do
so. Later, the SC changed its stance and even States couldn’t discriminate.

The Blacks were happy initially, but they continued to be slaves. They were the last to be
appointed and first to be fired from a job. They did not have adequate education, no capital
for business and industry. Thus, despite BoR, they remained as they were. Thus, a movement
came that the State must come forward and solve their probs, merely recognizing the rights
wasn’t sufficient, wont do any good and so the growth of the administrative process.

In India when the Constitution was drafted, untouchability abolished, equality intro,
discrimination on the ground of caste prohibited. Dalits were happy as they had been treated
as slaves for centuries but now would be treated well. Soon, they realised that they are
continuing to be as they were. They were still working under feudal laws. There was still
untouchability, no education, co capital. Movement started that it isn’t sufficient to define
rights and that the states must come forward and solve. Growth of admin process for the
deprived section of society. Same is true for women. They are deprived class everywhere.
When talking about equality and dignity, they said that it is all useless. It also applies to
handicaps, children, etc. A change in attitude is needed so that they don’t simply define the
rights but problems also are solved.

5. State control over private matters

Today, it is recognized that all problems are solvable and therefore must be solved. It was
thought when the industrial revolution came to England, any labour problem is a problem if a
particular industry, private affair and the State cant do anything. In the same manner, all
problems within a family, it was thought it is a family matter and so State cannot interfere.
The family must solve it. If there is a problem of torture of women in the fam, they would say
that the State couldn’t do anything, they must solve it themselves.

But now we recognize that even these probs are solvable as they have a social effect.
Phenomenal growth of the administrative process to solve the family probs. Family probs
would initially not be settled by a separate court system, now have separate courts.

6. Inadequacy of the traditional system of law making and adjudication

There was a time when socio-economic demands weren’t there as much, therefore legislation
was in a position to pass those few laws which were very simple. In the 20 th century, a lot
more laws are needed for the society to run in accordance with the diktats of the Constitution
It is said that if our Parliament sits 24 hours a day and 365 days a year, it will not give us the
quantity and quality of law required for the governance of modern India.

For example, so many laws required for the regulation of universities, Parliament cannot pass
all these laws. Therefore, they pass a skeleton act, create an administrative authority and give
power to the administrative authority to pass law. Thus, country is being run, not by laws

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passed by parliament but through delegated legislation (sometimes called administrative

legislation).

We require authorities who can effectively deal with those laws. It was rightly said that if our
legislature and the executive work 125 days in a year of 365 days, they will not be able to
give us quantity and quality required.

For example, government wants to establish an atomic reactor with a foreign collaboration.
This is a highly technical and specialised area.

What law will be required to govern it? How will those sitting at the parliament understand
the technicalities of the atomic power station? If the state wants to establish a university or
medical college, what law will be required?

Legislature cannot understand. A judge said that when these cases come to them, its like
surgery has been given to a barber.

There is a need to give this adjudication power which is technical to expert. Therefore,
growth of admin process and law as our traditional system cannot compete with this.

What is required is make a skeletal legislation. There is a mushroom growth of administrative

law or administrative authority to take welfare activities. Law required by administrative
authorities will be so enormous. Skeleton legislation- rest of the power is with administrative
authority. We have no power to make any rule or legislation. It will be under the broad
policies that have been laid down under the act. It will also be under the provisions of the
constitution. Administration of justice has become highly technical. Therefore, the
adjudication has also become technical.

15th July, 2022

7. Socialisation of law

In the beginning, the purpose of the law was simply to maintain law and order. The problems
of the people were highly limited and simple. But now, it is an age of socialisation of law,
meaning thereby there is hardly any aspect of human activity which is not covered by any law
or rule or regulation. Law is expected that they shall solve every problem of the people. Any
conflict of the society is to be solved by law. Today, the law has become an instrument of
social engineering, meaning thereby as you need engineers to build roads and bridges, you
need lawyers, judges in order to solve the problems that people solve.

There was a time where it was thought that all problems relating to labour and capital has to
be decided by the law. There is no watertight compartment so far as law or sociology is
concerned. In the centre, there’s a human being who acts in different ways to control the
forces which the neoliberal policies have unleashed. After we adopted globalisation and

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liberalisation of the economy, many new powerful forces have been unleashed. The most
powerful force which has been unleashed is the corporatization.

You are not dealing with individuals which have very limited resources and power to disturb
the society. Here, you are dealing with corporation that is multinational. Therefore, these big
corporations can hold the government. They can effect the programs and policies of the
government. When you are dealing with these kinds of agencies which are multinational and
over which you have very little control, simple control through legislature will not be
sufficient unless you have strong administrative authorities. These big corporations act on 3
principles- efficiency, economy and effectivity. There is a tremendous growth of
administrative process and law.

1.11. Droit administratif

Droit means law. Administrative means administration. This is a French word. What we call
in common law system as administrative law, in civil law system, it is not considered as
administrative law. They have their own definition. There are two main basic systems in the
world:

- common law system

- civil law system
Common law system is basically followed in England. In Europe, they had a different system
which they called civil law system.

Therefore, in France, before revolution took place, in 1789, there was monarchy.
Monarchical government are all dictatorships except England where no matter the queen
being the head of the state, it is a democratic state. It was a nominal system. They were as
cruel as any other monarchical system can be. But because of the change of circumstances,
there was an awakening and therefore, there was a revolution.

The king very gracefully agreed that I will act as constitutional head. Today, king and queens
are a thing of the past. Only 2 kings and queens are surviving: one is king and queen of the
card and second is of England.

In France, there was monarchy, and the characteristics are that the law making, executive and
judicial powers are all combined. When you do that, it is the definition of dictatorship. There
was a revolution and Napoleon was heading. Therefore, monarchy was overthrown.
Reformist system of government was introduced. Democratic systems have different
shades and principles on which the governments are organized. When Napoleon took over, he
wanted to reform the administration.

It was France where Montesquieu developed the separation of powers where they say that
the rights of the people must be protected and respected and it is divided into three organs:

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- legislature,
- executive and
- judiciary.
Another factor was when the king exercises power, the cases were decided by ordinary
courts. The ordinary courts were jealous of the power of the king’s comfort. Whenever
opportunity came, the common courts always tried to make problems with the executive.
They delayed matters that affected the administration. There was always a kind of jealousy.

When India became independent and became a welfare state, Nehru wanted that his program
on removing poverty must be taken on fast track. First thing he did was abolishing privy
purses. Our judges are living in ivory palaces. They have not seen rural poverty. President
should not have absolute power. President became furious and therefore, he made a plan. It is
known Court Pecking. It consists of 9 judges, who are all conservative judges gave decisions
against the economic recovery. If judges do not behave, the number of judges will be
increased, and the decisions will be in his favour. That threat to the judiciary worked in
America

16th July, 2022

Council de état

All important disputes were decided by the King and for this purpose, he created a council.
They heard the case and decided what was to be given. There was a new jealousy between
common law courts and civil law courts. There was a revolution in 1789 by Napoleon.
Monarchy was abolished. Administrative courts decided disputes relating to the conditions of
service of government. The ordinary disputes between two individuals were decided by
common law courts

For disputes against the government, he established a series of administrative courts- lower
courts, appeal courts and final courts. The name of the final administrative courts was council
de ete. The case against the government was filed before the Minister of Justice. The
minister of justice, if thought proper, referred this case to the administrative courts. There
was no direct filing before the administrative courts. This administrative court advised the
minister as to how you have to dispose off the case. If minister finds there is substance, he
forwards it to the court. Court will go through the file and advise the minister as to how the
case is to be decided

AV Dicey was watching what was happening in France. Then, he commented that this type
of administrative law cannot give justice to the people. A change came in 1872 by a decree of
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the government known as the ‘Blanco decree’. The authority was made a ‘court’,
irrespective of the fact that cases could still not be filed directly.
Another step was taken in 1889, when the Conseil du Etat was made a full court. Direct filing
of cases was permitted and the Court was given both original and appellate jurisdiction. They
established lower administrative law courts, first appeal courts and ultimately the Conseil du
Etat. They did not apply the law passed by the Parliament but the law decided by the Conseil
du Etat on a case-to-case basis. This body of law created by the Conseil came to be known as
administrative law.
Dicey raised the issue of achieving justice in France. Issues of conflict between
administrative courts and the ordinary courts arose. Further conflict arose as to whether a
case was to go to the administrative side or the civil side. The law which was laid down by
the Parliament was considered as civil law and not administrative law and that law was
applied while deciding cases.
To rectify this issue, the ‘Tribunal des Conflits’ was established and had the jurisdiction:
– To decide private matters.
– To decide all the service matters of the government servants.
– To decide all conflicts between government departments.
– As a consultative body for drafting rules and regulations for the administration.
Judges are not independent because they are appointed by a Prime minister. Therefore,
government was not interested in changing the system. So, the court itself changed the
system.

In our supreme court, we say it is neither a court not supreme

Why is it not a court?

In the beginning, the strength of the court was 7. That was a court. Now, there are 34.
In French system, in their system, if there is a dispute, whether that will be heard by common
courts or administrative courts? For this, there is another tribunal.

18th and 19th July, 2022

1.12. Administrative Law and Constitutional Law

In common law counties administrative law developed as an independent discipline only in

the 20th century. The first book on it was written in 1929. The first seminar in India was held
in 1956. In common law countries, especially UK, because there was no written constitution,
they never thought of differentiating between constitutional and administrative law. But when
administration affair grew manifold, they started affecting the life of people in every aspect.
Thus, there was a realisation that administrative law must be studied as s separate branch.
The Committee on Ministers Power was constituted to look into the whole question of
administrative law. Thereafter, it achieved an independent existence. Keith (English
constitutional law writer) believed that it was logically impossible to differentiate between
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administrative law and constitutional law. In England, after 1688, the division was such that
the King exercises all executive powers, the Parliament exercised legislative and taxation
powers and Judiciary exercised all judicial powers.
During the Glorious Revolution, there was a tussle between the king and the parliament and a
civil war broke out, in which the Parliament emerged victorious.Lord Hewart in 1925 says
that administrative law is nothing but a constitutional jargon. But later on, they realised there
is a difference. Therefore, they’ve always had the view that whatever difference is a matter of
convenience and tradition and not logic and principle. Their argument was both interlocked
closely and overlapped considerably.
Early English writers could not differentiate between the two because:
– They did not have a written constitution.
– They did not know where to classify the prerogative power of the crown.
– They thought that administrative law was something that was foreign to the common
law system. They believed that it violated the principle of equality in that one treats a
government officer as a special class and puts them under a special law to be decided
by a special court.

 Differences
1. Constitutional law is anti-majoritarian, while administrative law is anti-
authoritarian
For instance, if a law is passed that states that minorities cannot vote, it is majoritarian. The
SC will always question it and say that majoritarianism cannot change the basic structure of
the constitution. Constitutional law is about constitutional majoritarianism.
In England, there is no written constitution and the Parliament is supreme. Yet, its powers are
limited by the common law of England. If the actions are arbitrary and impossible, which
violate the common law of the people, the action of the Parliament will be deemed to be
invalid.
If a power is constitutionally valid and does not violate any other norm, but the condition is
that the power must be exercised in a reasonable, just and fair manner, it is anti-authoritarian.

2. Constitutional law deals with the government at rest while administrative law deals
with the government in motion
For instance, holding elections, appointment of ministers, etc falls under the domain of
constitutional law. On the other hand, taking charge of ministries and framing policies and
programmes which prejudicially affect the rights of the people falls under administrative law.

3. The Constitution is a value-laden document with a political theory, while

administrative law is value-neutral
The constitution contains the values and structures according to which the country is to be
governed; it lays down a political theory. Our structure and political theory consists of
democracy, secularism, socialism, FRs of the people, and various other values given in the
Preamble. Administrative law is not concerned with socialism, capitalism, secularism etc. It
is concerned with how the government seeks to protect rights and liabilities of an individual
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when he comes into conflict with law. It is value-neutral and doesn’t concern itself with
‘isms’.

4. The Constitution is a product of various forces, while administrative law is a

product of evolution
The Constitution is a product of various forces:
i. The Constitution is a product of evolution. For instance, the French constitution is a
product of Napoleon’s revolution.
ii. The Constitution may be a part of gradualism. For instance, the British constitution,
though unwritten, is borne of customs, traditions and conventions that have
accumulated to gradually become the constitution.
iii. It may be a product of agreement. For instance, the American Constitution was
agreement between 13 states. It did not initially include the rights of the people. Only
in 1791, post an Amendment, the Bill of Rights was included. It has been amended
only 16 times so far.
iv. The Constitution may be a product of consensus. The parties may differ, yet certain
fundamental points will be agreed upon. For instance, there was a difference of
opinion about fundamental structures and values of the Indian Constitution. Yet, a
broad consensus appeared and the document so formed became the Constitution.
That is why the Constitution has been amended 124 times till date.
v. It may be a product of assignment. It may have been written by someone else and
assigned to ultimate adopter. For instance, the Government of India Act of 1935
became the ‘first constitution of India’. It was drafted by the British and given to
Indians.

Administrative law is a product of evolution. It is a living instrumentality, which grows

with the needs and aspirations of the society. It is a judge-made law and is decided on a case-
to-case basis. The source is also statutes, customs, traditions and the law. It may be the higher
law also and also judicial activism.

5. The Constitution is the grundnorm, while administrative law is merely a norm

Applying the Pure Theory of Law developed by Hans Kelsen, it may be seen that the
Constitution is the grundnorm, from which all other norms derive their validity.
Administrative law is merely a norm, arising from the Constitution itself.

6. Constitutional law focusses on the governance of the State, while administrative law
focusses on the administration of State
Constitutional law focusses on broad policies and their formation. Administrative law deals
with execution. The Constitution is the source of policies of governance. Administrative law
is a delivery mechanism. All social justice schemes are based on the social justice principle of
the Constitution. How those schemes are delivered depends on administrative law.

7. Constitutional law is descriptive, while administrative law is prescriptive

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Constitutional law is a source of policy and deals with open-textured expressions such as
socialism, secularism, justice, divinity of individual, and equality. Administrative law is
prescriptive and lays down manner in which governmental power is to be exercised. Thus,
administrative law is a policy-delivery mechanism.

8. Constitutional law deals with constitutionality, while administrative law deals with
legality
Administrative authority must act within the framework laid down by the Parliament and
Constitutional limits. Administrative action may be suffering from illegality if it violates the
limit laid down by Constitution or administrative law itself.

9. Constitutional law deals with ‘ought’, while administrative law deals with ‘is’
Constitutional law is an idea while administrative law is the mechanism to achieve that idea

10. The sources of the Constitution are history and traditions, societal ideals, common
concerns, values. On the other hand, the sources of administrative law include customs,
traditions, higher law, parliament-made law, government policies and programmes.

Constitutional Law Administrative Law

Anti-majoritarian Anti authoritarian
Value laden Value neutral
- Based on certain pol theories - Not based on pol theory,
ex power for benefit of
people
Deals with Govt at rest Deals with Govt in motion
Source of policies and programs Policy delivery mechanism
Product of Product of evolution always
revolution/assignment/gradualism/agreement/consensus
Grundnorm Norm laid down by statute or
courts of higher law
Open textured and descriptive Prescriptive
Describes of rights of people Implementation of those rights
Deals with constitutionality Deals with legality
Ought Is
Product of history, tradition and societal concerns Product of statutory law,
constitution, precedents, higher
law, international law

 Profs. Benjafield and Whitmore

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If you draw two circles, they will overlap. This is known as watershed. Therefore, he
concludes that every student of constitutional law must study some administrative law. Every
student of administrative law must study some constitution.
1. Both have common concerns.
2. Both aim at creating good governance.
3. Both aim at infusing reasonableness and fairness into the governance.
4. Both have identical mandate, i.e., service to the people.
5. Both do not favour abuse of power
6. Both aim at protecting individual from abuse of power.
7. Both have similar trajectory, i.e., the space which is covered by both is the same-
executive, legislature, judiciary and people’s rights.
8. Both have identical horizons, i.e., democracy, socialism, secularism, justice, equality,
fraternity and the dignity of the people.

20th July, 2022

1.13. Rule of Law
Rule by law means rule by any law passed by organs of that particular state. Rule of law
means law passed by the state which is based on certain fundamental principles. Professor
AV Dicey was invited to deliver lectures at Oxford University. He was invited to deliver two
lectures. One lecture was on supremacy of parliament. The other lecture was on rule of law.

Britain is the only country where there is a supremacy of law. Parliament is supreme. Here, in
India, Constitution is supreme and not the Parliament. But this does not mean that they can
pass any law. Even in the supremacy, there are certain inherent limitations. The supremacy is
regulated by the common law of England. Dicey was very much against the droit
administration. It is a conceptual abstraction. It is also said to be the supreme manifestation
of human civilization. No country can call itself civilised unless that country is ruled by rule
of law. This is considered to be the inherent attribute of a constitutional democracy.

In common parlance, rule of law means fairness in governmental actions. Rule of law
means government under law and not law under government. Rule of law has become a new
global political thought and a universal code of ethics

What does rule of law imply?

Dicey said that rule of law implies that law much be based on certain principles, and this
shows his dislike to the droit administration. Because he says that France administrative law
or droit administration is not based on any principle.

What are those fundamental principles?

Principle of legality or three elements of law

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1) All actions of the government must be supported by law- this also means
supremacy of law. They cannot exercise any power that is not given to them by law.
2) Equality before law
3) Predominance of legal spirit

1. Pre-eminence of supremacy of law – the law must be supreme in a society. He meant

two things – all administrative power must flow from law. He was against any law being
made by the administration which is giving administrative eauthorities powers. He was
against prerogative power to the king. He was against administrative law which gave
power to administrative authorities.
Every person must be subjected to the same law – you cannot expect justice in a
system where the Government can also make law. He was against administrative law.
every law by which people are governed must come from the ordinary administrative
organs of the state. If the Government is making law, it is not responsible to you.
Absence of wide discretionary powers – where administrative officers exercise
discretionary power, it is a violation of the rule of law and means an end of law. Where
law ends, discretion begin. Discretion is a law-free area. Discretion destroys human
freedom as it is likely to be misused due to it being personal and not based on any law.
Thus, absence of discretionary powers is the normative content of rule of law.
Law which is to be supreme must be based on certain characteristics of law
Law must be general for everyone and not for specific persons or communities. He
observed that the law being developed by the Conseil du Etat in France was specific and
not general. If the law is general, there is less disobedience.
Law must not be vague – it must be certain. By reading the law, a person of ordinary
intelligence and prudence must be able to tell illegal conduct from legal conduct. Law
must be transparent. Law must be made after open deliberations with the people or their
elected representatives. Law must not be made in secrecy. Administrative law is made in
the closed chambers of the bureaucrats and therefore is not law.
Law must be made known to everybody, i.e., it must be published. A law which is not
published cannot be applied. This is because if a law is not made available to people, they
cannot be expected to follow it. The maxim ‘ignorance of law is no excuse’ presupposes
that the law has been made known to the people. The law under which an administrative
authority is functioning must be laid down in a recognisable manner. During British rule,
at times, the law was published by beat of drum.
Law must be made for future conduct, i.e., it must be prospective. According to dicey, if
law is made with retrospective effect, it is not law at all. No one should suffer in person
and property except for the violation of the law laid down by the ordinary legislative
branch in an ordinary legislative manner. They must show that they have been authorised
by law.
The law must be made on certain fundamental values. If it violates the values of freedom,
equality, fairness, accountability, etc., it is not law at all.

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2. Pre-eminence of equality before law.

Everyone, irrespective of status, must be accountable for the exercise of power by the
ordinary adjudicatory system of courts. Everyone must be subjected to the same law. Dicey
was against any special privilege for any government servant. This was contrary to the
system in France, where government servants were given special privileges.

3. Pre-eminence of equal accountability.

All must be equally accountable for the exercise of power. No matter howsoever high you
may be, the law is always above you. Everybody must be held accountable by the same
process.

4. Pre-eminence of common law rights.

If fundamental rights of the people must not flow from any document or paper. They must
flow from the customs and traditions recognised by people. He was against any law on
human rights and opposed writing human rights into the constitution. He believed that if the
paper was the source, one day someone could come and throw that paper away. He is in
favour of judge-made laws.
He was against written constitutions containing fundamental rights. He always said that a
book or a paper can only be a consequence of rights and not the source of rights. These
fundamental rights should be the eternal values of constitutionalism.

 The United Nations and Rule of Law

The United Nations defines rule of law as a principle of governance in which state and all
entities, public (all agencies and instrumentalities) and private (private authorities exercising
public functions), are accountable to law publicly promulgated, equally enforced and
independently adjudicative rules that are consistent with international human rights norms
and standards. The International Convention on Human Rights, 1948 lays down Human
Rights norms and standards. Law must be known to the public, equally enforced by the
executive and independently adjudicated by impartial courts.

 Seven Meanings of Rule of Law

Davis (America) posited that rule of law has 7 meanings. They are:
1. Law and Order - Only that society is called a rule of law society.
2. Governance by fixed rules - Rules and regulations must be publicly promulgated, equally
enforced and must be based on HR norms.
3. Elimination of wide discretionary powers.
4. Due process - Nobody should be deprived of his life and liberty. American constitution
includes property also but we don’t include that without fair procedure of law.
5. Observance of NJ in admin.
6. Preference for judicial justice and not executive justice as seen in France.
7. Judicial review of all state actions. (legislative, executive, admin, judicial actions)

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 Rule of Law and the Welfare State

Harry Jones, in a 1958 article, expounded his theory on rule of law and the welfare state.
1. Absence of arbitrary powers
2. Equality before law
3. Effective judicial remedies.

Every writer tries to explain rule of law from his/her own point of view but the bottom line is
that governmental power must be put under control. People must be protected against misuse
of power. There is no dispute on value, dispute is on contents.

 Rule of Law as Negative and Positive Concepts

In developing countries, rule of law is not just a negative concept, it doesn’t only provide
don’ts but also do’s. In 1959, International Commission of Jurists meeting in Delhi - Delhi
Declaration.
Rule of law is like the modern form of law of nature. It is not merely a negative concept, it is
a positive concept, it obliges governments to create conditions in society (legislative, social,
economic, political) where every individual irrespective of any considerations, has equal
opportunity of developing his personality to the fullest.
It is not only the rights of the people that are to be protected – government power must not be
misused and the above-stated conditions should be created. Therefore, no society can claim
that it has become a rule of law society. Rule of law is ideal but states must keep moving in
that direction.

 Critique of Dicey’s Thesis

Dicey was observing French system, trying to compare it with British system and in the
process of doing so, developed rule of law.

1. He couldn’t visualise a welfare, intensive and social justice state. He was an

individualist, brought up in Victorian Era of Laissez Faire. He never saw any policemen.
He couldn’t reconcile in a situation where administrative process will grow so much that
it affects life of each and every individual and therefore Dicey was worried about fairness
and fundamental rights of the people being violated. Growth of administrative process
doesn’t necessarily violate fundamental rights of people. It could be of positive use also
as FRs have no meaning if they don’t help the poor and the downtrodden.

2. Dicey disliked discretion with government officers to interfere with lives of people
because administrative discretion means area without law. But he couldn’t
differentiate between discretion given under law and inherent discretion of the
prerogative powers of the king. Wide discretion is exercised by the executive as its
inherent power violates rule of law but not administrative discretion under law as it is
limited and government servants are held accountable for exercise of such discretion. He
was unable to appreciate that no system of welfare government can function without

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delegation of some discretion to administrative authority. Administrative discretion is

an unavoidable evil. Legislature can’t function without some discretion. Even when the
Constitution says to pass UCC, it hasn’t. The same goes for the administration as they
have to look at contextuality which differs from person to person. Same goes for judiciary
– what cost and compensation, what penalty? What Dicey was condemning was inherent
discretion.

3. Dicey was obsessed with the possibility of misuse of power by administrative

officers. He believed in the Red Light theory - give as little power to administrative
officers as possible because it is likely to be misused. In France, administrative officer
exercise wide powers. Whenever power is there, its misuse is inherent and can’t be
avoided. But power can be misused by any body of the government. What is thus required
is not the elimination of power but safeguarding the power. There must be a mechanism
to control the power. Power can be controlled by political and legal standards. It could be
done by vigilant public opinion and a sense of justice which generally the people have.

4. Dicey believed in the monopoly theory of power, i.e., only legislature should make
laws for people, only judiciary must decide cases as judicial power is the monopoly of
judiciary. Execution of laws and actions is the monopoly of executive. But many believe
it’s not a power, it’s a service. Therefore the service can be outsourced. Delegation of
power can thus be done.

5. Exercising power. Legislative, executive and judicial powers as inherent powers are
distinct from delegated power. In cases of misuse, delegated power can be taken back and
thus can be controlled. Therefore, Dicey can’t differentiate between inherent power of the
king and the delegated power of administration.

6. Everyone should be accountable to the same system, everyone should be accountable

to the same law. Dicey failed to appreciate equality before law doesn’t mean uniformity
in all situations. It only means that like should be treated alike. Differential treatment
should be allowed if there is a reasonable differentia and it has intelligible purpose.

7. Dicey failed to understand that the application of different law need not always
violate the principles of fairness and justice. In his own country, various kinds of laws
were governing the conduct of persons.

- The common law of England.

- Customary law.
- Law passed by Parliament, i.e., statutory law.
- Equity law passed by equity courts. Equity courts were headed by the Lord
Chancellor. Initially, religious persons were heads, later legal personalities were
heads. They were based on 12 principles and influenced development in law in every

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country. For instance, delay defeats justice, one who comes to court must come with
clean hands.
- Canon law/church law.
- Mercantile law (customs and traditions of trades). admiralty law (governed actions of
people on high seas).

8. Dicey was against judicial powers to executive. He was against administrative

adjudication. He failed to differentiate between inherent powers of the executive and the
administrative power given under law.

9. He was not able to appreciate something which is inherent and something which is
delegated. Delegated power can be very rarely misused and if misused the power can be
taken back. In administrative law we simply allow delegated power and not inherent
power to take judicial decisions. Therefore, Dicey misunderstood administrative law.

10. Even when Dicey was advocating the doctrine of separation of power, administrative
law had developed in the UK.

The King’s servants were exercising special powers. In England, special courts
(commercial courts, admiralty courts, ecclesiastical courts, equity courts) existed at the
time. Special tribunals also existed. For instance, under the Poor Law Act, 1834, the Poor
Law Board had been created and had the power to make rules and regulations, and decide
disputes falling under the Act. The Parliament had passed the Constable Protection Act in
1750, under which special immunity had been given to police officers. The police had
been given wide discretionary powers of search and seizure under various laws.
Dicey then realised his mistake and in 1915 wrote an article in the LQR admitting that he
was wrong and that there was growth and development of the administrative process in
England. Dicey’s thesis as an ideal is still valid because if there is no rule of law, you
cannot check the misuse of power by the administration and the rights and liberties of the
people cannot be safeguarded. In the rise of administrative process, there is certainly
some contradiction between the rule of law and the growth of administrative process.

 Rule of Law and the Growth of the Administrative Process

Question then arises as to how rule of law and the growth of administrative process are to be
reconciled.

Absence of wide discretion. If you avoid giving government officers wide discretion and
confine it to only discretion regulated by law, such a contradiction may be reconciled. Dicey
was against inherent and wide discretion of the government. In the administrative process, we
are only talking about delegated discretion and limited discretion. Therefore, if the
government does not have inherent discretion, there arises no contradiction between the
growth of administrative process and Dicey’s concept of rule of law.

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Absence of administrative rule-making. Dicey says that the government should not have
the power to make law. All law must flow from the legislature. Essential law-making power
cannot be delegated to administrative authorities. However, after essential law-making power
has been exercised by the legislature, secondary law-making powers may be delegated.
Therefore, they cannot misuse that power and the administrative law-making power is only
subsidiary.
– Essential law-making power entails laying down the policy of the law and enacting
that policy into a binding rule of content.
– The subsidiary power of the administrative authorities is subjected to the legislature
and the judiciary.

Absence of administrative adjudicatory power to the government. Dicey was against

conferring of adjudicatory power upon the government as he believed that it would make
them dictators. Essentially, he was against inherent adjudicatory powers of the government.
However, some adjudicatory power may be given because doing so is necessary in the
interest of fairness and whatever adjudicatory power is given must be controlled by the
legislature and the courts. For instance, Dicey would not like that a dispute between a student
and the university is being decided by the university itself. He believed that all matters must
be decided by an independent body.

No special privileges to the government. In France, Dicey noticed that government officers
enjoyed special privileges and could be sued only in courts of their own creation. He asserted
equality before the law. In the interest of fairness, however, some privilege can be given to
the government in public interest. If a privilege not available to private citizens is given to the
government (for instance 2 months’ notice before filing a suit against a government
institution), it will be permitted in the interest of fairness. The government is a complex
machinery and will have to collect information and contact various departments before
deciding on a course of action. Such a special privilege may exist. If some immediate relief is
necessary, such a requirement may be waived by the court.

 Rule of Law and Economic Development

Rule of law is possible only in democratic societies and rule of law societies are democratic
societies. There can be no rule of law in dictatorships and monarchies. Rule of law is
necessary for the economic development of the society with the element of freedom.
Economic development is the absence of freedom is no development. The World Bank
carried out extensive research to determine the relationship between rule of law and
economic development in a society. They developed eight indices and included 99 countries
in their research (India finished at the 66th position). They found that rule of law as a
condition of economic development must include eight things:
1. Open government.
2. Independent judiciary.
3. Protection of fundamental rights of the people.
4. Regulatory enforcement.
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5. Government limited by law and the constitution.

6. Efficient civil law system.
7. Absence of corruption including police discipline and abuse of power by the police.
8. The law and order situation in a country.

 Rule of Law in Different Sectors

1. Individual Liberties, Freedom and Rule of Law
States should not pass discriminatory laws. The State should not put unreasonable restrictions
on the freedom of the people. The State should provide quick remedies in case of violation of
the rights of the people.

2. Criminal Justice System and Rule of Law.

- Due criminal process in cases of arrest, detention, investigation and punishment.
There must be fairness.
- No arrest without the authority of law.
- Presumption of innocence.
- Legal aid.
- Public trial and fair hearing.
- Compensation to the victim of the crime (victimology).

3. Judicial Process and Rule of Law.

- Independent judiciary.
- Independent legal profession.
- Equal access.
- Speedy and quality justice.
- Standards of professional ethics at the bench and the bar.

25th and 26th July, 2022

1.14. Doctrine of separation of powers
It is also known as doctrine of splitting of powers. Doctrine of separation of powers is a
collorary to the doctrine of rule of law. If powers are combined into one, then rule of law has
no meaning.

One question was haunting the minds of the people. How to protect the people against the
misuse of power by the state?

As time passed, various methods were adopted. There was the development of the concept of
God. That power has laid down certain fundamentals which should not be violated. The basic
concept was to control the action of the state.

In the second attempt, people became a little argumentative whether there is a God?

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Then emerged the doctrine of separation of power. This doctrine is very intimately connected
to rule of law. They are said to be contemporary doctrines and it is said that rule of law is an
end and separation of power is a means. It was developed to give enforcement to the rule of
law. Like rule of law, the doctrine of separation of power is not a prescribed doctrine but
rather an incorporated doctrine. Our Constitution doesn’t use either of these terms. However,
they are incorporated in our law and form a part of the basic structure of our constitution.
Like rule of law, it is difficult to define but unavoidable for protecting the life and liberty of
the people. The main concern of the doctrine is how to limit the power of the government.
The constitution was one means to do this.

John Randal says that you may cover the whole constitution with limitations, express or
implied but written limits are no limits because only power can limit power. This is the thesis
of separation of power. The American constitution is the only constitution in the world that
was based on this kind of power. The early settlers in the US who were citizens of the UK
when they came to this deserted place to settle the only aim was freedom and liberty. As there
was no difference between the Church and the State, accepting Christianity was mandatory.
Now when these people were writing the Constitution, liberty was most valued and hence
they made the doctrine of separation of power the basis of the constitution as only power
could limit power.

What is the purpose of the limitation? Modern statesmen like Lord Atkin posited that every
power tends to corrupt and absolute power tends to corrupt absolutely. They said that the
accumulation of legislative, executive and judicial powers in the same hand, whether one or a
few or many, whether hereditary, self-appointed or elected may be justly pronounced as the
definition of tyranny. There can be a threat to the liberty of the people even if the government
is elected.

Jefferson, another architect of the American constitution said that the concentration of
legislative, executive and judicial power in the same hands is precisely the definition of a
despotic government. It is no better to say that this power will be exercised by the plurality of
hands and not be 3 separate persons because 173 despots (number of Congressmen) will be as
oppressive as one. Thus separation of power is not only relevant to monarchies but also to
democracies.

The doctrine can usually be traced back to Aristotle. John Locke in England and Bodin in
France are also credited with this view. Montesquieu wrote a book in 1798 titled the ‘spirit of
the laws’ in which he made a reference to this kind of separation. It was he, like Dicey, who
gave definite contents to this doctrine.

The purpose of the doctrine was to divide the government against itself and to create friction
among various organs of the state. Therefore, the purpose of the doctrine is not efficiency in
the administrations. When the judiciary has a cosy relationship with the legislature or the
government, it is a cause of worry. When there is hue and cry upon a law being quashed, it is
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not a cause for worry. Friction is good but crisis is bad. If the government wants to put a
person into jail, they cannot do it unless all the three organs of the government cooperate. The
executive must punish that person for violation of the law and the judiciary must pronounce
that a violation has taken place.

In ‘espirit des lois’, Montesquieu wrote that when the legislature and executive’s power are
vested in the same person, there can be no liberty. In the same manner, if judicial power be
not separated from the legislature and the executive, or when judicial power is joined with
legislative power, the life and liberty of the subjects would suffer as it would be exposed to
arbitrary control. The judge must not be the legislator. This is the criticism. Should the judges
legislate? The matter is still pending before a larger bench.

Another important point to note is that Montesquieu wrote in French. In translation, the word
‘dispersal’ was wrongly translated to ‘separation’. The three cannot be in watertight
compartments.

 Use of the Doctrine in Four Senses

1. Exclusivity / structural – classical sense
This means that all the three organs of the state must be separate. Their functions should be
separate. Congress/SC/President have different functions. This separation should be
watertight. It is only then that the rights and liberties of the citizens can be safeguarded.
Functionaries must also be separate. President can’t be a part of the Congress unlike the case
in India. One organ of the government should not interfere into the functioning of other
organs of the government. It was this understanding on which the American constitution was
built.
This doctrine is against judicial review. John Marshall decided the case of Marbury v.
Madison, in which law of Parliament was declared to be unconstitutional for the first time
and judicial review was established.

2. Functional sense
All the three organs of the state must be divided insofar as exercise of power is concerned.
The legislature must exercise law-making power, the judiciary must exercise adjudicatory
power, and the executive must execute the decisions of the legislature and the judiciary.
There must be no usurpation or amalgamation of function by another.
Interaction of functions is possible, i.e., separation should not be watertight. If the sources are
different, then some ancillary functions or powers from those particular sources can be
combined into one channel. That one channel is the administrative process.
Essential power cannot be delegated, only ancillary power can be delegated. One organ can
exercise an ancillary function of another, but not an essential function. For instance, ancillary
rule-making power may be delegated to the executive.
Laying down the policy of the law and enacting that policy into a binding rule of content. If
these two elements are fulfilled, rule-making power may be delegated to the administrative

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authority. The rule of separation will be violated only if an organ completely usurps the
power of another.

3. Check and Balance.

The real meaning of ‘separation of power’ entails the understanding that the organs must
exercise some control over the other so that an organ does not exceed its limits. Threat of
liberty arises not from blended powers, but from unchecked powers. For instance, if some
law-making power has been delegated to the executive, such power will be beneficial only if
it is under check and control from their organs. It is generally in this sense that the doctrine of
dispersal of power is understood today.

4. Mutuality or creative cooperative sense.

This is the interpretation of the theory in the age of globalisation and the free market
economy. It says that the organs should be kept separate but must creatively cooperate
together in order to protect and develop the rights of the people.
What is required for the achievement of public good is not discord between the three organs,
but concord. Not estrangement, but engagement, and cooperation and coordination, and not
confrontation. This is important for the rights and liberties of the public to actualise. Instead
of engaging in an unnecessary “your power, my power”, we must engage in creative
mutuality for the benefit of the public.

 How is ‘Dispersion’ Understood?

1. In a negative manner. To keep one organ of the state under control. Separation of power
demarcates limits of power.

2. In a positive manner. Not simply enforcing limits, but compelling action. For instance,
you are within your defined limit but you are not doing anything. What is the use of this
separation, then? You will be checked only if you transgress your power, and not when
you don’t exercise that power in the first place.

In State of UP v. Jeet Ram before the Supreme Court, a person got a very heavy
electricity bill which he never expected. He went to the electricity department who
informed him that action could be taken only after the entire amount had been paid. He
approached the consumer court, to his dismay and surprise, he came to know that the
courts are dysfunctional because chairpersons have not been appointed. He then
approached the Supreme Court in a writ petition. The Court directed the Court to appoint
a chairperson so that justice may be done in such cases. A contention was raised that this
violates the principle of separation of power – the judiciary cannot compel executive
action. The case was then referred to a larger bench. A better argument would have been
to say that separation of power doctrine should be used in a positive sense. If you are not
using the power which has been given to you in public interest, direction to do so is not a
violation of the principle of separation of power as there is no usurpation.

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 How can the Powers be Separated?

1. Political separation. For instance, the powers of the state are separated and dispersed in
the form of federal powers, powers of the local self-governments, power of the
panchayats, etc.

2. Horizontal separation. Separation within the organ. For instance, legislative power is
separated between two houses. In the same manner, executive power is separated by the
appointment of various administrative agencies. The judiciary is also given wide
discretion to exercise its power in any way it likes. Whatever it may be, however,
separation is necessary because each power requires a different parameter for the exercise
of that power. The main characteristic of legislative power is deliberation. The main
characteristic of judicial power is hearing of the parties. Executive power requires
coercion and force wherever necessary. It is for this reason that all governmental power
cannot be combined into one. Thus, all the three powers must cooperate.

 Rule of Law and the Constitutions of Different Nations

1. The United States of America
In the American Constitution, the doctrine of separation of power is provided in the
Constitution itself. It says that all the law-making power shall be vested in the Congress,
all the judicial power shall be vested in the judiciary, and all the executive power shall be
vested with the President. This means that one organ cannot interfere into the functioning
of the other. Americans were concerned with the protection of their freedom, liberty and
dignity, which was under threat. The only safety valve was the doctrine of separation of
power. It is not taken in the structural sense. It is taken in the sense of checks and
balances or creative cooperation. Power of sources must be different but there can be
interaction between them.

The President has can interfere with the Congress in the following ways:
– He has the power of sending messages to the Congress.
– He addresses joint sessions of the Congress.
– He has veto power but it can be overruled by 2/3 majority in the Congress.
– He has treaty-making power and may agree to any terms, conditions, rules and
regulations, which if approved by the Senate are not required to be addressed by
the House of Representatives.
– He can pass notifications which have the force of law.

The President has can interfere with the Judiciary by means of appointment of judges by
the President. The appointment should be approved by the Senate. The Roosevelt Threat of
court-packing in the 1930s – The President said that he can pull them out of depression only
if he is given some special powers. Therefore, the President passed many orders under those
principles but they were all struck down on grounds of violation of separation of power. He
then thought of a plan called ‘court-packing’, through which he wished to increase the

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strength of the Court and appoint judges of his liking. The Parliament refused on the ground
that they cannot undermine the prestige of the Supreme Court.

The Congress can interfere with the President in the following ways:
– Congress sanctions the budget.
– The approval of appointments by the Presidents is done by the Senate.
– Treaties entered into are approved by the Senate.

The Congress can interfere with the Judiciary in the following ways:
– The Congress can pass procedural laws.
– The Congress can create special courts.
– The Senate approves judicial appointments.

The Judiciary can interfere with the Congress in the following ways:
– The Judiciary can interpret the laws and decide constitutional questions.
– The Judiciary, while exercising power, sometimes legislates. This is sometimes
known as judicial legislation.

The Judiciary can interfere with the Executive by means of judicial review. The Judiciary
reviews all the actions of the Executive. It exercises the power of judicial review. That is why
they say that in the USA, most of the powers are shared than divided.

2. The United Kingdom.

Britain has never been a good host to the doctrine of separation of power. The
fundamental feature of the British constitution is that the Parliament is supreme. The
Parliament used to exercise supreme judicial power. This is because the House of Lords
consists of 9 judges elected from the upper house of the Parliament. The Parliament also
exercises all executive powers.

Little change came when the UK became a member of the EU. There, under the treaty
obligations, the judiciary was made independent. Therefore, in 2009, the Supreme Court
of England came into existence and the Parliament under its treaty obligations passes the
Human Rights Act, 1998. Under this Act, the judiciary was given power to declare the
law passed by the Parliament and the actions of the Executive as incompatible.

Now, the judiciary is independent but still the principle of Parliamentary supremacy
persists. How do you reconcile the two? If any law of the Parliament violates a treaty
obligation of the EU, then SC cannot declare that part of the law as unconstitutional, but
only incompatible to the treaty obligation. The Parliament is at liberty to change the law
for reconciliation purposes. This is one of the reasons for Brexit – the UK doesn’t want
their sovereignty to be compromised.

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3. India.
In India, separation of powers is not subscribed but incorporated. Therefore, there is a
division of power and not separation of power in the strict sense.
For example, the president exercises legislative (ordinance-making) power and addresses
joint sessions of the Parliament. He also exercises judicial powers in the form of
disqualification of members of parliament and deciding the age of a judge if a dispute to
that effect exists, as it happened in the JP Mittal case.
In it, he was going to be retired according to his high school certificate. He contended that
he was actually 3 years younger and gave evidence supporting it. It went to the President
and he decided that he would be retired according to the certificate itself. The judge
requester to be heard personally but the President declined saying that the representation
had already been given in writing. Here, the Court held that hearing is not always a part
of natural justice. The legislature exercises judicial power in the form impeachment and
violation of the privileges of the parliament. The judiciary exercises legislative power
since they can make procedural rules and they make ‘judicial legislation’. Example is
Vishakha. They laid down the guidelines and said that this will be law until the
Parliament passes one. The judiciary also exercises executive power by regulation the
power of superintendents, as well as appointments and transfers of persons in service of
the supreme court.

To what extent has the doctrine been recognised in India?

In Ram Jawaya v. State of Punjab (1955), the Court said that the doctrine of separation of
powers is not recognised in India in its classical sense. It simply means that one organ should
not usurp the power of another organ of the government. Powers can be shared. There can be
interaction.
In Golak Nath v. State of Punjab, the Court held that the Indian Constitution does not have
separation of powers but only a broad division of power. Therefore, there can be functional
overlapping.
In Kesavanda Bharti v. State of Kerala (1973), it was held that the division of power given
in the Constitution form part of the basic structure. It cannot be taken away by an amendment
to the constitution. Everyone realised that if the powers are combined together, the
Constitution will cease to be democratic and it will be a dictatorship.
In Indira Nehru Gandhi v. Raj Narain (1975), the court held that usurpation of power of
one organ by another is not allowed. Separation entails having checks and balances in place.
One organ of the government cannot completely take over another organ.
In Krishna Kumar v. Union of India, it was held that the court cannot give direction as to
what law is to be passed and what is to be included in the annual budget.
In Mallikarjuna v. Andhra Pradesh, the tribunal had given direction that the government
should frame new rational seniority rule. The SC quashed it on the ground that such direction
cannot be given.
In State of Punjab v. Salil Sabhlok (2013), it was given that the government should appoint
the Chairman of the PSC and its members. The Government does not lay down any procedure
or qualification for appointment. Can anyone be appointed? Punjab HC said it must be a
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suitable person and there must be a definite procedure for appointed. It went on to draft
procedure. It said that the government must adopt the procedure. On appeal, it was held that it
was true that it must be a suitable and desirable person. It was also true that there must be
some established procedure but deciding this is a legislative function and the court cannot lay
down a procedure, they can only direct the government to lay down procedure.

Can the separation of powers be taken away by amendment? Separation of power in the
form of division of power is a basic feature of the Constitution. If it is done, it will take away
the division and change the structure from democratic to authoritarian. In the HR Coelho
case (2007), the question was whether when (by amendment of the Constitution) a statute has
been put in the 9th schedule, it would fall under judicial review before a High Court or the
Supreme Court. Court said that it should not bar judicial review, even if a statute is kept
under the 9th schedule.

 Fallacies of the Doctrine

 This doctrine suffers from historical fallacy. Dicey was looking into France to get the
content of the theory of rule of law. In the same way, Montesquieu was looking into
England for the theory of separation of power. In the aftermath of the Glorious
Revolution, the arrangement was such that the King exercised all executive power, the
Parliament exercised all law-making and taxing powers and the common law courts
exercised judicial powers. Montesquieu observed this and said that this separation of
power was resulting in the liberty of the individuals in England. However, thereafter, the
British system did not stick to this classification and Parliament assumed supremacy and
exercised all three powers. Separation of power was non-existent in England till 2009
when the judiciary was separated. Therefore, no country of the world was actually based
on the classical theory of separation of power.

 This doctrine lacks practicality. There is a practicality deficit. This is because welfare
states cannot be governed by strict doctrine of separation of power. There is bound to be
growth of administrative process. This cannot happen until the administrative authority is
given some executive, law-making and judicial power.

 This doctrine cannot be operationalised because functions of the state cannot be put
in rigid classification. For instance, every exercise of power has certain characteristics.
Law-making power is coercive, executive power is deliberative and judicial power is
adversary. These characteristics cannot be nicely cut and dried because you will find it
existing between all the organs. When the Parliament is deciding disputes, their task is not
only deliberative but also adversary. In the same manner, the decisions of the court are
deliberative also. Question then arises whether this doctrine has become irrelevant.
Answer is no because logic behind the doctrine is still valid, i.e., the powers of the
government should not be combined into one.
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 Has this Theory become Irrelevant?

It is true that in the modern context, this theory cannot be applied anywhere in a rigid sense.
But, the logic behind the theory is still valid and will always continue to be valid. The logic
behind this theory is polarity of state power rather than strict classification. This logic is still
valid and will continue to be so. Polarity means that centres of authority of a state must be
dispersed to avoid absolutism because a monopoly of power always leads to dictatorship.
Professor Allen believes that Montesquieu did not use the word ‘separation’, but
‘dispersion’. He did not mean impossible barriers and inalterable frontiers, but mutual
restraints which came to be known as checks and balances. Professor Wade writes that
objection of Montesquieu was against accumulation monopoly, but not against interaction
and cooperation.
In today’s concept, separation of power does not mean check and balance but harmonious
exercise of power in a cooperative manner for public good.

2nd August, 2022

2. Classification of Administrative Action
In administrative set up, all actions are taken by one authority. They may take rule making
action, quasi-judicial action, administrative action (executive action).

How do you identify?

Sometimes, it is very easy. But sometimes, it is very difficult. That is why we try to
understand the different classification.

2.1. Quasi Legislative Action

Any action of the administrative authority, if it has characteristics of a law-making action,
then you will call it quasi legislative. Then the question is what are the normal characteristics
of a legislative action?

1. Generality
Delegated legislation is always general in character.
For instance, the rule providing that the library shall remain open till 12am is general and is
thus a quasi-legislative action. This does not mean that ‘general’ necessarily has to include
everyone. It can include a certain class of people.

2. Predictability
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The administrative action must be certain and clear. As a result, you can predict what is
expected of you.
For instance, you have to go back to your hostels by 12am.

3. Prospectivity
If the action is to be made applicable in the future, it is a quasi-legislative power. This does
not mean that administrative authorities cannot take retrospective action; they must have been
specifically empowered to that effect.

4. Publicity
If manner is laid down in the Act, that manner must be followed. Else, follow the general
customary practice (publication on the university notice board).

5. If the action is such that it is based on policy, rather than facts, it will be deemed to be a
quasi-legislative action.
For instance, if university has made a rule regarding promotion from one semester to the
other, it is a policy-based decision.
6. There is no application of the principles of natural justice. Generally, if the action is such
where the principles of natural justice are not attracted, it will be deemed a quasi-
legislative action.
7. The rule-making action can be sub-delegated provided the parent Act provides for it.
8. There is no duty to give reasons because it is a matter of policy.

These are the general characteristics of law. If these are found in administrative action, then it
is an administrative legislature.
For example, university makes a rule that no person will be permitted to enter next semester
unless the papers of last semester are cleared.
If there characteristics are fulfilled in any administrative action, it will be deemed to be a
quasi-legislative action. However, there may be certain twilight zones where it may be
difficult to classify certain administrative actions into particular categories.

In Express Newspaper v. Union of India, under the Working Journalists Act, the
government appointed a commission to decide the salary patterns of working journalists.
First, hearing will be given to journalists and receive evidences, hear members of the press
and receive evidence. Then, based on objective criteria, they will decide the wages of
working journalists. The Court said such action is a ‘twilight zone’.

In State of Punjab v. Tehel Singh (2002), the government appointed a Commission under
the Panchayati Raj Act, to re-determine the areas of various gram sabhas. The Commission
deliberated and decided upon the territorial limits of each gram sabha. This action was
challenged before the Court that the Commission had taken a decision that affects the
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residents of the area, without consulting with them. The court held that this was a quasi-
legislative action, and not a quasi-judicial one.

In Union of India v. Synamide India Ltd. (1987), the drug controller was given power
under the Act to determine the prices of essential drugs. To determine the price, he asked the
manufacturers to bring evidence to that effect. Challenged – no proper hearing; consumers
were not heard. Question was whether it was a quasi-judicial or legislative action. The court
held that it was a quasi-legislative action and thus principles of natural justice were not
attracted in that manner.

 Difference between the Law Passed by the Legislature and the Law Passed by
the Administrative Authority
DIFFERENCE LAW PASSED BY THE LAW PASSED BY THE

LEGISLATURE ADMINISTRATIVE AUTHORITY

Nomenclature Legislative acts arecalled Laws passed by the Administrative
statutes. Authorities are designated as rules,
regulations, etc.
Source of The power of the legislature to For Administrative Authorities it
Power make laws comes from the comes from the parent Act.
Constitution. The challenge to Administrative Authority can be
legislative action can come for challenged if violative of
laws on the ground that it Constitution or parent act.
violated the Constitution.
Status The law passed by the The law passed by the administrative
legislature is designated as authorities is designated as
‘supreme law’. ‘subordinate law’.

2.2. Quasi-judicial action or administrative adjudicatory action

You will see that what are the characteristics of a judicial action. If some of the
characteristics of judicial action are present in administrative action, then it is quasi-judicial
action

What are the characteristics of judicial decision?

1) There should be a dispute between two parties

This is called as lis interpartis. If there is no dispute, there will be no case. For a judicial
decision, there should be dispute between two parties- lis interpartis. Sometimes, in
administrative adjudicatory decision, there may not be 2 parties. Yet, it is a dispute.

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For example, Rajasthan government passed a law or adopted policy that we will nationalise
road transport. Within the state, there will not be private transport. It will affect the interests
of the private bus owners. Scheme is published in a newspaper and the objections were
invited by the private persons. Secretary of the transport department- his committee is
appointed to decide the objections by the private persons. They try to find out whether there
is substance. A date is fixed to come and present their case.

How many parties are these in this case? One is secretary and the other is private party. There
is proposition and opposition and only two parties.

Why is he the judge? Because he thinks it’s an administrative action.

Later on, they realised that administrative power is such that this separation is not possible.

For instance, in a university, there is a student and a disciplinary committee. Then, there is a
violation. In this case, the courts have taken the view that depending on the situation, we will
find out whether it is quasi-judicial action or administrative action. Before a judge, there is
always 2 parties. Here, there may or may not be 2 parties.

2) There is a presentation of the case by the parties

Presentation- documents, witnesses, any other thing. There is a presentation of the case.

3) The court decides the question of fact on the basis of evidence

They decide whether there is a theft or not.

4) They decide the questions of law through legal arguments

Lastly, the courts give the decision by applying the law to the facts. Courts after they have
decided the question of fact, they apply law to the fact. They sometimes apply their own
policies. Sometimes they may apply the rule of the interest of the student and the university.
That is not the law.

For example, a student has misbehaved with the teacher. Now, when the inquiring officer is
appointed, there is no law that by applying it, you can decide. Then, the university will take
into consideration various factors such impact on career, circumstances, impact on total
university. Then, the university will decide the punishment.

If these characteristics are present, the action is judicial action. This test is known as CMP
test i.e., Committee on Ministers Power 1932. Dicey was opposing it and there was a lot of

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opposition. Then, government appointed a committee to find out if what the people are saying
is right or wrong. CMP committee, while giving their report, tried to write something about
administrative action. Then, they gave this decision. If in an administrative decision, you find
these characteristics, then it is quasi-judicial.

There may be some trappings, not all. If administrative action has trappings, then it will be
quasi-judicial action.

Case- Automotive Tyre Manufacturing Association v. Designated Authority (2011)

In many situations, parties in the business, in order to gain position in the market, they sell
their products below the market price. This is called dumping; you dump your product into
the market. Even though you are dumping at below the price you have paid, this is unfair
trade practice. Therefore, law was passed, and authority was created to take action.

In this particular case, there was a dumping case, and the Tyre Manufacturing Association of
India filed a case that there was dumping. In this case, a question arose that whether it is a
quasi-judicial action or is it an administrative action to impose duty?

The court came to the conclusion that it is a quasi-judicial action. It has all the trappings of
a judicial action- dispute, evidence, argument and then they have to give a decision by
applying the law. Then, this decision was subject to appeal. In the appeal, it was held that the
framework of the court is there. This action is not an administrative action.

This is the CMP test.

Then, there is another test which is given by Lord Atkinson.

If it is an administrative action, no appeal. If it is quasi-judicial then appeal will be allowed.

How to find out then?

Lord Atkinson laid down a test which we generally follow now. Where an administrative
authority has the power given to it by law to decide on the rights and liabilities of the
people and is under a duty to act judicially, its action would be quasi-judicial subject to the
writ of certiorari.

What is important in this particular case is that there is an administrative authority.

Administrative authority has been given power under law. But it also under a duty to act
judicially.

How to find out that an authority is under a duty to act judicially?

It must be given in the law itself (read the Act, what are the powers of the AA). If the law
says that before giving the action have to give notice to the other party, then action
considered to be quasi-judicial.

Hello my name is sheila shell ki jawaani im to say for u

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3rd August, 2022

Administration takes various actions. Court will apply extensive power on judicial review.
Previously, court wouldn’t have interfered at all. But if it is a quasi-judicial action, the court
will apply wide principles of judicial review. That’s why it is important to differentiate
between the two. Whenever the administrative authority has the power to decide the rights of
the people and is under a duty to act judicially, it is quasi-judicial action.
When is an authority under a duty to act judicially?

Lord Hewitt laid down the test in the case R v. Commissioner Legislative Committee of
Church Assembly.

Church cases were decided by church court according to church law. That branch of law is
known as ecclesiastical law. Read the law (Act) and if the authority is under a duty to
follow the principles of natural justice before action is taken, then authority is under a
duty to act judicially. If it is administrative action, court will not interfere since no judicial
review.

For example, under the university act or the rules and regulations framed therein, disciplinary
authority can take any action against any person on the complaint of another person. This is
administrative i.e., on their own discretion, they can take action. If it is said that they will
hear both the sides, then it is quasi-judicial action.

Read the act approach is considered to be a legality or doctrinal approach. Therefore, this
approach for a very long time stultified the growth of administrative process.

Then, came the change. How did the change come?

Another case came up before the House of Lords- Ridge v. Baldwin (1964).

From 1924- 1964, same approach. Change came in this approach.

The case was that there was a Police Act. Under that particular act, there was a Watch
Committee and the purpose of that Watch Committee was to recruit the police force and take
disciplinary action against them in any manner. A third case was going on somewhere, which
was a criminal case, in which the name of Baldwin was involved. He was a senior police
officer. There was evidence that this person created problem and wanted to delay the decision
in the particular case. Judge said this in the judgement.

Matter was brought before the watch committee. On the basis of the remark in the judgement,
they dismissed the complaint. This person went to the court and his argument was that he has
been deprived of his livelihood, lost reputation, suffered stigma and will not be employed
anywhere and these people did not even bother to call and ask what the problem is. There is a

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violation of the principles of natural justice. The act was read and nowhere it was laid down.
The watch committee had power to take disciplinary action

In this case, the House of Lords changed stance. Reading of the Act is only one factor.
There may be certain situations in which the requirement to act judicially may be implied
because of a certain force or circumstance. This requirement may not be there in the act,
but it is implied because of certain special circumstance.

What situations in which the duty to act judicially can be implied?

First thing you have to see is the implications or consequences of the action. If you see that
consequences are serious for the person, then duty to act judicially can be implied.

For example, you are a voter and government decide to cut your name off the voter list. This
is losing a status.

Other situations are loss of property and if there is a stigma attached.

For example, cashier in university dismissed because cash was missing without any notice
and hearing. Opportunity to explain were not given.

The difference between the two tests was merely consequence.

For example, the Olga Telis case. The hawkers doing business for a long time on the road
and earning their bread. They have no right to be there. The MC says that if the property in
illegal occupation by the person, the government can dispossess them without any haring as
no hearing. The SC says that no matter no legal requirement, because serious consequence for
person who is earning this livelihood, therefore, some notice and hearing is implied.
The difference between administrative action and quasi-judicial action has become thin and is
being casually. In 1969, position was changed.

5th August, 2022

Simply read the law. The test delayed the growth of administrative law and stultified its
growth. Person was not given any notice or hearing, and his license was cancelled. Privy
Council ruled on the issue whether cancelling a license was administrative function or quasi-
judicial. Another case came up. Driving license was cancelled. The person came to the court
as he was deprived of livelihood (he was a driver). He was not even told why license was
being cancelled. Court said tell us what the function is by reading the act. Whether the act
lays down that the driver must be given notice and hearing.

In Ridge v. Baldwin (1964), Lord Reed gave the decision. A police officer had been
dismissed without any notice and hearing and he went to a court of law. He had been
dismissed and his whole career has been jeopardised without even telling him. Court said that
we will not go into the question of whether the notice of hearing was provided in the Act or

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not. The court will see the consequence. If the consequence is serious, authority is under duty
to act judicially. If the action of the administrative authority has serious consequence, then
they are bound to consider judicial aspects.

What is the position in India?

We always follow the common law system, and we follow the law as developed in England.
In Province of Bombay v. Kushal Das Advani (1953), Section 3, Bombay Land Acquisition
Act, 1947. This Act gave power to the government that if the government is of the opinion
that certain private property is needed for public purpose, they can acquire that property. A
bungalow of a person, lying vacant, was acquired. He challenged this order before the court
on the ground that before the property was acquired, he wasn’t given any notice or hearing
and w/o any reference to him took away property. The court decided on what kind of an
action this was. If it was quasi-judicial, hearing was necessary and if administrative then
hearing not necessary. Have to see whether the authority is under a duty to act judicially and
can do this by reading the Act. The Act nowhere says that before acquiring property,
notice is to be given. There was no requirement to act judicially and so the principles of
natural justice were not attracted.

In Radheyshyam v. State of Andhra Pradesh, 1959, there was a Municipal Corporation Act.
If in the opinion of the state, municipal corporation was not functioning properly, they can
suspend it for a period of 18 months. If the government decides to suspend the municipality
for an indefinite period, then they shall have to give municipality notice and hearing. In the
first provision, the authority is not under an authority to act judicially, so the action is
administrative. However, under the second provision, the authority has to act judicially, so
the action is quasi-judicial action.

Municipal corporation was taken over for 18 months and the municipal commissioner said
we were not even consulted. Court said it is quasi-judicial. Read the act, if there is notice and
hearing, then you can suspend only after giving the same. The difference is narrow and is
being naturally obliterated.

In AK Kraipak v. Union of India (1969), there was All India Forest Services. There was no
conservator of forests for Jammu and Kashmir. So, the government decided to appoint a
person as the conservator of forests for Jammu and Kashmir. For this, selection was to be
made. Under the law, the government created a selection board. Under that board, the
chairman was the conservator of forests of that district. He was the acting person and was
made the conservator of forests. The selection was to be held not by interview but by
evaluation of the record. He was made the chairman of the Board office. He was member and
he was also candidate. When final discussion took place, he was chairman. This was put forth
as a grave violation of the principle of natural justice.

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Supreme Court realised that there is a need to change position. Therefore, they changed the
law and said we have to look not only at the act but at the consequence. Therefore, in
India, the law was changed. Selection is not a judicial decision but an administrative
decision. You have violated principles of natural justice, no matter that the action is
administrative. Law is closer to the one laid down in UK i.e., Ridge v. Baldwin.

In Bombay, from centuries, poor people are having their business on pavements. This is
encroachment of our land. There was a University. Cooper is building a house- 2 storey
complete. Demolition came from municipal corporation. The builder asked why - because
there is no notice from municipal corporation. He said before demolishing, you had the power
to give notice. You should have asked me and I would have told you that I gave notice but
problem happened. He goes to the court of law and compensation was granted.

2.3. Administrative Action

What is Admin authority? Ram Jawayya v. State of Punjab. The Court defined
administrative action by saying that ordinarily, executive power connotes residual of
government function that remains after the leg and judicial functions have been taken away.
This means that all government and administrative actions which are neither leg nor judicial
actions, are deemed to be admin actions.
 Characteristics of Administrative Actions
- Generally based on policy and expediency.
- There is no lis inter-partis.
- Decision is subjective rather than objective. Subjective is when the authority does not
have to consult anyone except its own mind. Objective is when the authority has to
consult experts and evidences.
- Administrative action is not concerned with generality. It treats a particular situation.
- It does not decide on a right, but may affect the right.
- It may be held invalid by the court if it violates FRs, is unreasonable, or arbitrary.

 ILLUSTRATIONS
 Under preventive detention law, power of government to detain a person, is an admin
action according to the Court. However, if they have acted arbitrarily, the court will
always grant relief because of violation of FRs 14, 19, 21.
 Entering name in the surveillance register of the police, in which the names of the bad
elements in the area are secretly registered. This is an admin action, and therefore,
principles of natural justice are not applied.
 Internment and externment order. Person contrary to peace and tranquillity. Can pass
internment order to stay out (ext) or stay in (int).
 Acquisition of property.
 Grant of a license holding.

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 Selections for a job. Selection of job is an admin function, NJ not attracted. But if it has
resulted in unfairness or unreasonableness, the court will interfere. D. S. Yadav – only
relatives selected, govt will not interfere because doctrine of necessity applies.
 Appointing a fact-finding inquiry committee.
 Reference by government to a tribunal. Ind matter to ind tribunal. Decision of govt is an
admin action.
 Withdrawal from prosecution. All criminal cases are against the state, i.e., society. Thus,
the state prosecutes. The state has power to prosecute / not prosecute. If prosecuting, they
can withdraw prosecution. HOL case. Saudi Arabia is the biggest purchaser of arms from
England. Directly related to economy. SA made huge purchase of arms from various
countries, hue and cry that huge commission was paid to some govt servants, and inquiry
must be instituted. SA wrote to UK saying if inquiry not wound up, we will never
purchase arms from you. Inquiry withdrawn. Admin function without civil consequences
for anyone. Court cannot force the govt to continue with the inquiry.
 Ministerial action / purely administrative action [not very concerned with this]. They are
those action in which the administrative authority has no discretion to apply its mind; it is
automatic. For instance, clause providing for opening of SBI within the campus in the
NLUJ Act.

ADDITIONAL INFORMATION
 The laws mostly are not coming from the chambers or te legislature but from the barrel of
the secretariat pen
 Not only the law, the decisions by which wer are governed, those are not coming from the
traditional courts but are coming from the chambers of the AA. As a student of this
university, one is less affected by the court’s decn but affected by the decn of the AA.
 The bulk of the decn is coming from the AA
 The authority may be an individual administrative officer, a committee, a board, a
commission and may even be an administrative court, an administrative tribunal, a
corporation, a domestic tribunal, etc.
 The decisions previously from the court are coming from the AA
 The question is whether it is a new development?
 some say that yes, it is. Previously, the disputes were decided by the courts byt now
mostly by the AA
 Some say no; it is only a revival of the past. In the past, the King’s and his officers
exercised adjudicatory powers and therefore now, the government officers who are
the new kings are exercising adjudicatory power and so revival
 But it is a new development in the sense that the decn of the AA isn’t final, subject to the
final decn of the courts of law
I. NECESSITY
 What was the necessity of delegating judicial power to admin author?
By product of Intensive Form of Government
 Also was the reason for administrative rule making
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 Sued to be a time when government wasn’t intensive and so powers were limited and
could eal with whatever dispute there was
 Now government has become intensive, meaning that they are trying to take care of their
citizens from cradle to grave and in that process the growth of administration was
immense
 Led to the growth of administrative adjudicatory process
 Eg: when India became independent, its struggle for independence was won but poverty,
unemployment, environment, health etc had just begun and that struggle still continues.
To take care of these activities, need to have administrative process and if dispute in these
matters, AA should decide
 Laissez faire to paternalism to maternalism
Change in Role of Law
 Today, socialisation of law is spoken about.
 The function of the law in the past was simply to maintain law and order and to maintain
peace in society
 But now the purpose has changed, it has become overall development of society
 The purpose is to solve the disputes and conflicts in society and therefore, this work can
be effectively undertaken by the administrative adjudicatory process
 It was thought that globalisation would decrease government functions but this was
proved wrong. Although decreased in business and trade, in areas like as a provider,
enabler, facilitator, regulator, etc., have increased and therefore growth of administrative
process
 Growth in Welfare ideology of nations
Inadequacy of the Traditional System of Justice
 There was a time when government was ltd., its functions ltd., powers ltd. and therefore
the chances of conflict b/w government officer and government and individuals was very
less
 “Those were the time when British man could pass through his whole life w/o meeting
government officer except policeman and post man but today it is not possible”
 Therefore, the chances of conflict has increased
Delay
 There is unimaginable delay in the administration of justice by the traditional court. The
congestion before the court is so much that the evg time for deciding a criminal dispute is
20 years and civil is 60 years. So, who can wait for justice and decn in the dispute for
such a long time. Therefore, need for the growth of an alternative system here the
adjudicatory power could be outsourced and so growth of administrative adjudicatory
process

Cost
 The present judicial system is cost heavy, especially at the appellate stage.

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 It is said, no matter how genuine your claim may be, a person with a deep pocket can
defeat you as he can go on appeal, hire the best lawyers, exercise all influence and so
cannot get justice
 Because of the high cost, people aren’t able to go to the courts.
 Therefore, today there is a need for low cost justice to be provided to the people and so
the growth of administrative justice system
Technical Justice
 The administrative system lacks specialisation
 The same judge hears tax, criminal, civil, etc. Same judge hears all types of cases
 “Karyaana shop justice”, “assembly line justice”
 Justice isn’t possible unless the justice is specialised as litigation becomes specialised
 “Surgery given to barber”
 If there is a case of a fallen bridge, an engineer could probably deliver better justice.
Weight of New Area of Litigation
 Previously when it wasn’t a welfare state, the amt of litigation was ltd. but now the
litigation has increased so much that traditional litigation and traditional system is on the
verge of collapse and amt of pending cases
 Reason: law is faulty/procedure is faulty/environment isn’t conducive, etc.
 But with the new development, growth of science tech, business industry if it is all
directed to the traditional court, it will not be able to survive and so it must be given to a
new system thus admin adjudication
Changed Attitude Towards Litigation
1. In the past, everybody thought that litigation is a battle b/w two parties to be won by one.
But this attitude has changed. It is said that litigation is a disease to be cured. The causes
giving rise to litigation must be removed.
 Earlier the judge would sit as an independent and impartial person with a whistle. His
job was to blow the whistle when the rules have been violated and when game over
blow whistle indicating who as won or lost. He had no other job
 There is a scarf tied around the es of the statute of justice. It is this idea that the
litigation is a battle and the judge is umpire blowing whistle. He doesn’t see the
parties, the circumstances, the effect, etc.
 In the 21st century who needs such a judge. The eyes of the lady are now wide open.
Seen what are the facts and circumstances and involve himself in that process to
understand. Therefore, judges were not able to undertake this new approach and so
the growth of administrative process with adjudicatory power
2. Further, people want not only punitive but preventive justice as well. Meaning, if a
dispute has arisen, one would ant punitive justice. Identy and punish wrong. Primarily,
what we want is such a situation is to be created where such a dispute isn’t created in the
first place
 The traditional judges can only give punitive and not preventive

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 Answer is therefore administrative adjudicatory process

 Eg: go to a med shop and purchase meds., get cash memo, the meds turn out to be
fake and create reaction when you take and you suffer, go to the doctor, he gives you
the prescription and tells you that it is because you have taken fake meds. What
remedy? Will go to court of law and file suit against the medical store and if lucky
then perhaps in your lifetime you will get some compensation. If not lucky then no
compensation.
 What is the use then of punitive justice? Thus what preventive
 Government should appt drug investors, given adjudicatory power, must visit every
shop and if fine fake meds, after giving hearing take possession of all the meds so
that the people aren’t harmed
 All of this can only be done through administrative adjudication, courts cannot do
this
 Even in meds, there was an emphasis earlier on curative meds but not there is on
preventive meds (change in attitude)
3. Fair disposal of case and not simply disposal of the case on file
 The courts usually dispose justice on file. The best lawyer is one who can prepare the
best record for file. The judge will look at the file and on the basis of that will give
decn
 This may not be justice in fact
 Justice in fact and not file can be given by administrative adjudicatory process
 Therefore, in stead of doing justice on file, do justice in fact and fairly dispose off the
case
 That is why hear often, “my case was strong but couldn’t prove it in file, not able to
provide sufficient evidence”. This shouldn’t be there. AA, in the know of everything,
can decide better than the ct sitting at a distance
4. Where dynamics of the case is such that it demands not only adjudication but
development. In this case, administrative adjudication is the answer. Don’t need simple
adjudication but total development
 Eg: labour dispute. Not sufficient that if there is a dispute with labour, there has to be
decn as to who is right or wrong. But what is necessary is that in the interest of
industrial peace, the factors lading to labour dispute should not arise and that is how
labour harmony may be maintained. For this reason, adjudicatory administrative
authorities is the answer
 The whole gamut of labour cts, industrial tribunals, not only decide labour dispute
also go into question of how to maintain labour and capital harmony
 Therefore, you don’t need adjudication in a particular dispute only but whole area of
labour welfare and industrial peace must be taken as a whole
5. Emergence of new area of social justice
 Where the rights of the poor and downtrodden people, the persons not in the view, the
rights of those person should be protected and they must be provided and must be

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helped and this can only be done through administrative authorities through
adjudicatory power
 This whole idea came from droit administrative

PROBLEMS: No Procedural Law

 If divided into substantive and procedural law, substantive law is the end and procedural
law is the means. If P isn’t fair then S cant be fair either
 Only if procedural law is reasonable and fair, will the procedural law be reasonable and
fair
 That is why in America separate Administrative procedure Act. In England it is the
Tribunals and Enquiries Act
 In India there is no law. Law Commission recommended that India must also have a
procedure but the government didn’t pay attention and said they wanted flexibility over
fixity
 What procedure does the admin authority follow?
 there is a bewildering variety of procedural law in India that can be divided into 3
categories. In some cases, it is given in the Act itself, under which the administrative
authority is constituted. Under land Acquisition Act, the procedure is given as to how
the land is to be acquired.
 Second, sometimes the AA follows the exact same procedure that is followed by the
courts. For example, tribunals follow the procedure of the courts. There is hardly any
difference in the procedure that the courts follow and the tribunals
 Sometimes the AA is given the power to develop their own procedure. Under the
Human Rights Act, the HRCs have been given the power to develop their own
procedure. When nothing is given, neither in the Act nor any court procedure
according to law and no power to make procedure according to the Act, then they
have to follow the minimum procedure laid down by the principles of NJ. Natural
justice is the min procedure laid down by the courts on a case to case basis. It is a
unique example of judicial activism that the AA must follow.

3. DELEGATED LEGISLATION/ADMINISTRATIVE LEGISLATION/ADMINISTRATIVE

RULE MAKING

3.1. Introduction
Bulk of the law by which people are governed is not coming from the parliament or the
legislature but it is coming from the chambers of the administrative authority. Between 1973
– 1977, Parliament passed 32 acts. In comparison to that, during this period, rules and
regulations framed by the administrative authorities under these particular laws were 25,414.

Parliament passes skeleton legislation. Rest everything is done through administrative rule
making. For instance, the Import and Export Act, 1947, which governs all important and

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exports from India has only 8 sections and whole execution of the act is carried out by
administrative rules and regulations. Another example is Essential commodities Act, 1955.

Major authority comes from statutes passed by legislature meaning legislature passes law,
establishes authority, and delegates authority to make rules and regulations for the good
governance of that authority.

For instance, Universities established under an act and that gives power to the university to
make rules and regulations for the good governance.

Second authority comes from judiciary as well. How can the judicial authorise?

For instance, there is the Vishaka Case, which is a very important decision of Supreme Court
(SC) for gender justice where they asked the government to make rules and regulations to
protect women at workplaces. The authority stems from the constitution.

Conceptual Objections
1) This was raised by Dicey. This process of law making by the Executive violates rule
of law. Dicey was against any law passed by the Executive. He was against droit
administrative in France.
2) Separation of powers as there is a threat to liberty in delegated legislation. If the
powers are blended, then it is a sure sign of authoritarianism. Because of this reason,
Henry VIII became Henry VIII and Hitler became Hitler.
3) Democracy: Violated democratic ethos as citizens must be governed by the laws
which is made by the people through their representatives, either directly or indirectly.
4) Equality
5) Constitutional Trust: Representatives were trusted to pass laws which is best and
now they have started delegation; it is a violation of constitutional trust.
6) We also discussed that it violates the doctrine of delegus protest non delegare .
Delegata potestas non potest delegari is a principle in constitutional and
administrative law that means in Latin that “no delegated powers can be further
delegated.”
Government, if allowed delegation, can secure as much power to make rules and regulations
because in our system of governance, executive dominates legislature. Legislature cannot
do anything if government does not want. This does not happen in America. There,
everything is under the control of the house of the parliament.

Whether constitution recognises delegation?

Nowhere it is expressly prohibits delegated legislation. However, there are many
provisions in the Constitution that recognise delegation.

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1) Article 13(3) defines what is law. They say that law includes rules, regulations,
orders, and notifications. These are the documents which are issues by the executive.
There is a recognition of executive rule making.
2) Article 357(a) states that in emergency, the parliament may authorise the president to
exercise law making power for that particular state where the emergency has been
declared.
3) Thereafter, under Article 356, there are President’s power to make ordinances.
4) Then, there is Article 365 - president’s rule- when it has been declared in a particular
state, president can exercise its rule making power and also has the power to delegate.
5) President has treaty making power- they may agree to various rules and regulations
relating to the agreement that has been reached with the other country- it is subject to
approval by legislature but even then, president can exercise. In America, the treaty
making power is not required to be approved by law
6) Then, there is Article 299, which is the contract making power of the administrative
authority. Government can enter into contract- they may agree to any terms.
7) Pardoning power of the President- it is on the subjective satisfaction of the
President. Every exercise of power becomes a precedent to be followed in the later
dates.
8) In the same manner, you have Article 73 of the Constitution which is most
important. The executive itself has the inherent power to make rules and regulations
besides the authority that has been delegated to it. This article says that executive
power of the state shall extend to all those particular areas.

In this particular situation, it goes to prove that constitution does not expressly authorise
delegation but impliedly recognise delegation. Fundamental rule is directly, constitution does
not allow legislation. Therefore, parliament cannot allow essential legislative powers. Laying
down the policy and enacting the policy- essential legislative powers. America follows
separation of powers strictly and prohibits legislation. Supreme Court said only ancillary
powers are delegated.

Reasons for the growth of delegated legislation

Why today most of the law by which people are governed does not come from the
parliament? The Reason is very simple. Because delegation of law-making power is a
necessary concomitant of a welfare state or an intensive state. Because there was a time when
the state had only two functions: first, protect the people from external aggression, and
second, maintain law and order. Today, all states have become welfare states. All states have
become intensive form of states. Therefore, the functions of the state have multiplied so much
that the legislature cannot give us the quantity and quality of law.

Today, the state is considered in various facets.

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1) States is considered as leveller- meaning thereby they have to bring equality- that is
why you find a lot of legislation relating to SC/ST/OBC
2) States are also considered as protector. They have to protect the country from
external aggression and maintain law and order.
3) They are provider also. Even today, 80 crores of the people are being provided the
food that is necessary for survival
4) The government is being considered as enabler as well. It enables people.
For instance, if you have technicians, they open technical institutes for education so
that they enable people. If people want to be lawyers, they create law universities.
5) The government is also considered as facilitator. If they want that foreign companies
come to India and establish companies here, they have to provide electricity, water,
roads etc. If they do not facilitate, foreign investment is not possible.
6) State is also considered as regulator. They have to regulate everything.
7) Government is being seen as a planner. They plan everything
8) Government is being seen as an adjudicator. If there is any dispute in the exercise of
any power, then they have to provide an opportunity to decide disputes quickly- they
establish tribunals and give adjudicatory power to administrative authorities also.
9) It is the duty of the government integrate so that it becomes a wholesome society.

Generality of law falters before the specifics of life.

This is the essential feature of the law is general. In certain cases, law may do justice and in
other cases, it may not do justice. This is because circumstances of every person is different.
In law, what is important is context. Two cases will not be the same, ever. This cannot be
done by the legislature as they cannot take account of everyone. Therefore, it is necessary to
give certain power to the administrative authority because they should have discretion when
they feel that justice will not be delivered.

For instance, the law is that nobody should be allowed to enter examination hall after half an
hour. The situation is that there were two students: one went to the movies last night and the
other says I come from a village 20 miles away and there is only one bus and it broke down.
If you do not allow these 2 situations to enter, in one case, it will do justice and in the other, it
will not.

Need for Socialisation of law

The best law is that which the people can make directly for themselves because they know
what is best. Second best is through the elected representatives. But in those particular cases
where you need people’s participation directly, legislature cannot give you. Only
administrative authorities can give you. You cannot make any effective law about the medical
profession unless you consult doctors. You cannot make effective labour laws unless you
consult labour unions.

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In America, this is the most important factor in administrative law. No law can be made
unless the person to whom the law is going to be applied have been consulted. They
consult through writing, direct participation, etc.

An area where one law cannot serve the purpose all the time- it must change according to the
experiments that are going to be made. Suppose a bridge is going to be made. How much
load is it going to carry? It will be different during summer, winter, etc. Therefore,
administrative authorities will of experiments and thereby regulate the flow of traffic. In
today’s world, law is very technical, therefore, only technocrats can understand. Our
parliamentarians with their humble education cannot understand.

For instance, corporate trade and business, intellectual property, cyberspace and especially
cybercrime. A person with a humble education cannot understand. Therefore, it is necessary
to give power to those who have the technical expertise.

Crisis legislation

Delegation may be necessary where there is crisis legislation. What is crisis legislation?
Situation is emergent.

For instance, there are floods and an epidemic. Therefore, give power to state to make crisis
legislation.

Secrecy

Where secrecy is needed, parliamentary system of law making is highly open. Bill is
prepared, available to press, there is 1st reading and 2nd reading- parliamentary committee
discusses. Everyone knows what law is going to come. In certain situations, it will be
necessary that law must be kept secret unless it comes to operation. Otherwise, the law will
not serve us right.

When India became independent, the basic problem was feudalism. The lords, rajas were
owners of the land. There were tillers. When India became independent, the immediate need
was that this system needs to be changed. Various land reforms were passed. One of them
was Zamindari Abolition act, 1950. This act laid down a ceiling for the ownership of rural
property. Rest of the property was to be taken over by the government and then distributed
amongst these landless labourers. If this is the law and everyone knows that this is the ceiling,
if a person knows that this law is coming and land will be taken away, he will do something.
They divorce their wives on paper and transfer property.

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What is needed is that ceiling limit must be kept secret. How? Delegate this power to the
government. This can be done only through delegation legislation. That is why under the
Zamindari Abolition Act, power was given to administrative authorities.

British allows unlimited delegation. American does not allow. In India, there is no separation
of power but there is a division of power. Therefore, that division should not be violated.
What is the difference between a law passed by the parliament and the law passed by
administrative authorities?
1) Nomenclature Difference: The law made by the parliament acts as statutes and
those made by administrative authorities is known by different names
2) Authority from which the law emanates: Parliamentary authority comes from the
Constitution and administrative authority comes from the authority given in the
statutes/parliament, among other sources (such as the constitution itself).
3) Grounds of Invalidity: For parliament, it is Constitution and for administrative
authority, it is constitution and parent act. If there is a defect in the law passed by
the parliament, then the statute will be void ab initio, i.e., as if that particular law has
never been passed. If rules are challenged, they can be challenged on the grounds of
constitution and parent act. If the rules and regulations are declared void by the court
for any reason, then it will not have retrospective effect and any right that has taken
place will not be disturbed.

Classification of delegated legislation

1) Title Based Classification: Meaning thereby that the law which is passed by the
Parliament is only designated as act and statutes. The law delegated by administrative
authorities are known by various names like rules, regulations, by laws etc.
2) Discretion Based Classification:
a) Normal Classification: normally law is passed, and power is given admin
authority to pass rules and regulations
b) Contingent or Conditional Classification: based on certain contextually. The
gunpowder is provided by the parliament and the executive is given power to pull
the trigger. Law is complete in all form. Administrative authority has nothing to
do with the text

Field v. Clarke 1891

American constitution is based on separation of powers which completely prohibits the

delegation of law-making power. Parliament/US Congress passed a law, and the law was
that all those countries which are allowing free imports from America on reciprocal basis,

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America will also allow free imports from those countries. If you do not charge duty, we will
also not charge duty. But power was given to the President that if there are certain countries
who have started now putting import duties on goods which are American exports, then
America will also put a similar duty on reciprocal basis. This power was given to the
President. If there is a country which has started putting duty on American imports, America
will also put a counter balancing duty. This was challenged before the American supreme
court on the ground that this is delegation of law making and therefore, violates the basic
tenets of American constitution i.e., separation of power.

In this case, court held that NO. This is not the delegation of law-making power- this is the
delegation of contingent or ancillary power. They say that this delegation that is contingent
is not violative of the American Constitution.

King v. Binori Lal Sharma 1945

In India, the governor general under the act of 1935, thought that crime is increasing. They
wanted to control the crime. Therefore, law was passed by the central legislature, i.e., special
courts act. Under which certain offences were defined that for the trial of these offences,
special courts will be established. The trial will be summary and quick decision can be made.
The duration of the act will be of 2 years. Under this act, power was given to the provincial
government that if you think that in your state, if you still this act is needed, you can extend
by one more year. In a state, the provincial legislature passed a law, and they thought that
still this act is needed. They gave the power to the government that life of the Act should be
extended. This was challenged before the court on the ground that this is law making power
and therefore, unconstitutional.

This is not delegation of law-making power— this is conditional or contingent delegation.

State has to see only the law-and-order situation in the state. They are not supposed to make
any change in law

Inder Singh v. State of Rajasthan 1957

The problem was exploitation of tenants by the landlords. Therefore, tenant protection act
was passed and its duration was limited. Power was given to the government that you can
extend the duration. In the same manner, if a law is passed by the Parliament and delegated
power to the government to issue notification and enforce the law, it was considered as
contingent delegation. In the same manner, power to withdraw a law- law is already in place
and if certain problems are there, they can withdraw- conditional delegation. If the power is
given to the administrative authority- for example, power to revoke the license- it shall be
considered to be conditional delegation. Principles of natural justice shall apply.

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3) Authority based classification: Law that comes from the parliament- supreme
legislation. Rules and regulations framed thereunder are subordinate legislation. If
power is given admin to further delegate it to commission, this would be considered
as sub delegation.

4) Nature based classification

a) Normal Delegation: Essential power cannot be delegated, so the power of laying
down the policy and the guidelines have been done by the legislature- under that,
power is being delegated to make rules and regulations to effectuate the policy or
the law;
b) Exceptional Delegation: Sometimes, also called Henry VIII Clauses. Henry
VIII was the dictator king of England- in connivance with the parliament, he was
able to convince the parliament to delegate to him exceptional powers. Therefore,
wide powers were delegated to him because of which, he became dictator.
For instance, the power delegated to him even to amend the parent act. Therefore,
it was considered as exceptional delegation. It will always lead to arbitrariness
and authoritarianism. Example- power to avoid judicial review of rules and
regulations. These rules and regulations will be final and not subject to judicial
review. Henry VIII clauses are void such exceptional power cannot be
delegated.

Delegation and Sub-Delegation

If the power is given to the administrative authority to make rules and regulations, and is
further enabled to delegate it to someone, this is called sub delegations. Executive power in
India under the constitution- executive had two powers.
1) They may exercise the rule making power delegated to them by the Parliament
2) Executive itself has inherent power to make executive orders which have the force of
law. Executive has two powers- one delegation and second is inherent. In America,
executive has only inherent power and not delegated power.

Dangers inherent in delegated legislation

What are the dangers? First important danger is if the delegation of law making power is not
controlled properly, it will turn rule of law into rule of man.

For instance, if unlimited law making power is being given to the government where it is to
be exercised by the bureaucrats, they may make any law which they think is proper and they
may execute them. It will turn society from rule of law society to rule of man society.

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Bureaucrats are not your representatives. Lord Hewitt wrote a book called New Despotism
where the government servants have the power to make law and themselves execute it.

Dangers Inherent

Rule of law society means where the fundamentals of governance of society are based on
certain fundamentals of fairness, reasonableness and justice. Rule of man means
unreasonable, may not be far, may be unjust. So, it turns the society from a society based on
rule of law into a society based on rule of man, which is a concept derived from positivist,
i.e., command of the sovereign is law. Now, we say that command of the sovereign/
legislature is not law unless it is fair, reasonable and just. That is the difference between rule
of law and rule by law.

Wide discretion is subversive of constitutional order

Administrative rule making can subvert the Constitution.

For instance, if not controlled properly, it can lead to dictatorship. Constitutional order may
be democratic but it can subvert the constitutional order. It violates separation of power and
rule of law doctrine. When these doctrines are violated, then it is a definition of dictatorship.
It disturbs the delicate constitutional balance.

Power is divided in the constitution: 3 pillars are created- legislature, executive and
judiciary. On the basis of 3 pillars, constitutional order is created. If delegated power is
limited without control, it will destroy balance and pillars on which society is balanced.
Therefore, society and constitutional order may collapse.

Democratic system is based on constitutional trust. We elect our representatives, they work
for us, they are responsible to us. Balance is done through strict judicial vigilance. This
danger is very much present in a system of governance like ours. It is not there so much in the
system of governance of America because there, the constitution is based on the fundamental
of separation of powers. Our constitution is not based on separation but rather division
of powers. In England, there is no written constitution- parliament is supreme. In theory,
parliament is supreme- there is no judicial review.

British constitution is based on customs and traditions. This delegation presupposes that the
person who exercises power will exercise in a reasonable manner. Delegating law making
power to the administrative authority violates democratic ethos. It is the definition of
absolutism. Democratic ethos is that for every remedy, you look to your elected
representatives- not anywhere else

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Bureaucrats and technocrats insulated from popular pressure and isolated from
Parliamentary audit

They may make law which is less accepted, less communicable and less effective. A classic
example is that disturbed area special powers act- act that was specially passed by the
Parliament to tackle the insurgency in the northeastern states. Under this, wide powers were
given to the different courts and people. They made rules and regulations under this particular
law to this extent. This led to misuse of power by the defence. Any confessional statement
made by the person to a police officer shall be admissible in evidence. This goes against
fundamental rule.

When the parliament passes law for you, there is a pressure on them. Pressure is the
parliamentary audit and the popular pressure.

For instance, if the legislature is making law and that is not appreciated by the people, there
will be a lot of hue and cry. Many times, government had to take back the bill. Besides
popular pressure, there is parliamentary audit and the Bills are sent to select committee and
debated. Because of this particular reason, a lot of law is being made by the administrative
authorities which is not appreciated by the people.

Why delegation might become a source of bad governance and corruption?

Power is given to the government that you can make rules and regulations under this act and
you shall have the power to exempt any society from the act. This power of inclusion and
exclusion that is given to the government may be highly misused. Therefore, when you give
wide discretionary power, they may misuse and this may be a source of corruption. Tender is
main source from which the government has the power.

Characteristics in a good administrative rule or regulations

1) One is that the rules and regulations must be constitutionally and legally valid
2) Rules and regulations should be transparent, meaning thereby that they must be
framed by involving the persons who are going to be affected
3) Proportionality meaning thereby that you want to achieve certain purpose by rules
and regulations. So you can achieve that purpose by various methods and means. You
must choose that particular method which is more acceptable and is more in the
interest of the society.
4) There must be consistency- should be changed very often. There must be
prospectivity.
5) There must be clarity and certainty

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All these rules and regulations must have these characteristics in order to become good rule
making

[][][][][][][][][][][][][][][][][][][][][][][][][][][][][][][][][][][][][][][][][][][][][][][][][][][][][][][][]
[][][][][][][][][][][][][]

Constitutionality of delegated legislation

Delegation of law-making power is constitutional. 3 different segments:

1) The period when Privy Council was highest court of appeal

Right from the beginning when the King assumed power- until 1949. Previously, it was East
India Company- then, the King assumed power- they assumed direct control after the First
War of Independence.

R v. Burah (1878): In 1866, Indian legislature had come into being. In Bengal, a small area
where the tribals live- the Hill of Gharo, Khasi and Jayantiya. These areas were separated
from Bengal. The lieutenant governor of the hills was appointed. You can extend any
criminal law from Bengal to this particular area with such restriction and modification as you
may deem fit. So, a criminal law was extended- one person Burah was tried for murder. One
HC of Bengal- challenged on the ground that this power of extension is unconstitutional
because Indian legislature is a delegate of British legislature and therefore, delegate cannot
further delegate. It is a case of conditional delegation and therefore, the delegation was
considered constitutionally valid.

In 1945, another case came up before the Privy Council: R v. Benori Lal Sharma. In this
particular case, the governor general passed the Special Courts Act for the establishment of
special courts. Then, came the Government of India Act, 1935. Conditional- gun is provided
by legislature, gun powder also and executive has to simply execute it- not supposed to
make any change except incidental change.

2) The period when the Federal Court was the highest court- 1935

Jatinder Nath Gupta v. Province of Bihar (1949)

In this particular case, the legislature passed the Bihar maintenance of Public Border Act. The
life was 2 years. In this case, there was a provision for special courts to try certain offences.
Power was given to the government that after two years, if you think that the act is needed,
you can extend the life of this act by one more year with such modification as you deem fit.
This delegation was challenged before the Federal Court. The Court said that the power of
extension with modification was a legislative function and therefore, could not be
delegated to administrative authorities. Therefore, for the first time in India, it was laid
down that law-making power cannot be delegated.

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However, Justice Fazal Ali gave a powerful dissenting opinion. He says that it is a case of
conditional legislation, not a case of delegated legislation. Confusion remained as to what
the law is on delegated legislation. Some said that only conditional delegation is allowed, and
no delegation is possible related to delegation of law-making power.

3) The period when the Supreme Court was the highest court- 1950

Federal court was converted into supreme court with 7 judges. At that time, supreme court
was supreme. When India became independent, then the basic problem before India was how
to deal with poverty, especially rural poverty because there was zamindari system, and the
land was in the hands of few people and all other persons were labourers. With this, India
becomes independent- gets constitution. They were living in a condition of virtual slavery.
Besides this, huge problem of structural inequality based on religion and caste. This was the
biggest problem before independent India. Social justice was made one of the fundamentals.

Supreme Court comes into existence. In order to deal with this problem of poverty and
structural inequality, a huge social justice problem. For this, administrative officers with the
power to make rules and regulations. They were also given some adjudicatory power- if any
dispute comes, they can decide. Without the extension of administrative process, if the
delegation of some adjudicatory power, the dream of social justice could not have been
achieved. Therefore, government was v eager to know if they could delegate rule making
power to administrative authorities

Constitution recognised delegated legislation but nowhere it was laid down that legislature
can delegate its law-making power to administrative authority. It is necessary to take the
opinion of the Supreme Court of India. Therefore, the first reference was made by the
President under Article 143- to what extent can law making power be delegated to
administrative. For this reason, they selected 3 acts which represented 3 periods in the
constitutional history. They ask the supreme court to tell us if they’ll be constitutional or not.

In those 3 Acts, there were provisions of delegation. One Act was Delhi Laws Act, 1912-
Section 7- when privy council was the highest court of law. The second law was Ajmer and
Mewad Extension of Laws Act, 1949 - Section 2- federal court is the highest court of law. In
the third, there was Section 2 of Part C State Laws Act, 1950. This case was heard by seven
judges- SC, at that time, had only 7 judges. It was such a complicated matter that there was
no unanimity. 7 judges gave 7 judgements and it covered 370 pages. After the judgement was
delivered, at that time, Patanjali Shastri was the Chief Justice. Somebody asked what was the
ratio of this case.
1) This case decided that today, some delegation of law making power is a compulsive
necessity- our dream of the constitution cannot be realised unless there is some
delegation of law making power.

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2) Under the constitution, unlimited power cannot be delegation to the administration

like the Britain situation where the Parliament is supreme and they can delegate any
law making power to anybody- in India, parliament is not supreme, Constitution is.
3) Essential legislative power cannot be delegated- what is an essential legislative
power?
a. laying down the policy of the law- this cannot be delegated
b. enacting that policy into binding rule of content- thereby laying down the rules
relating to the exercise of that power

Ultimately, what the court decided was 3 laws were given to the SC to decide
constitutionality. In Re Delhi Laws Act, 1912, this was decided in 1951- took up the
constitutionality. In this law, there was Section 7- after independence, Delhi was made the
capital and previously, it was a part of Punjab, and it was separated. Power was given to the
government that you can extend to Delhi any law that is

Governor of Delhi- he can, in order to govern that area, he can issue notification and extend
to Delhi any law that is enforced in any place that is enforced in any place in British India
with any restriction or modification as he may deem fit.

This is valid. Why? Restriction or modification does not mean change in the text of the law-
it just means certain changes here and there. Conditional delegation- and therefore, it is
possible.

2nd Case: Section 2 of the Ajmer and Mewad Extension Laws Act, 1949- period when the
federal court was the highest court of law. In this case, Ajmer was made a separate territory
and it was laid down that government can extend any law to the Ajmer area which is there in
any other area in India with such restriction or modification as it may deem fit. The court said
that restriction or modification does not mean change in the law itself- but simply the change
so that the law can be applied. So it is constitutional

3rd Case: Part C State Laws Act, 1950- States were divided into A, B, C- this was about C
states. Supreme Court was highest court of law. There were 2 clauses- one was that the State
can extend to Part C states any law which is enforced in Part A states. You can extend with
certain restrictions or modifications that deem fit. Court said valid. 2nd part of this section
was that the central government could repeal any existing law which is there in part C states
and modify. Court said this power is unconstitutional- this cannot be delegated to the
administrative authorities. Instead of clarity, more confusion came.

In Re Delhi Laws Act, basic law as far as delegated legislation is concerned. In that particular
law, whenever there is a question of constitutionality, this law cannot be avoided.

First thing that was decided was that essential legislative functions cannot be delegated.
The question is why? What is the reason? The reason is that law making is a postulate of
people’s sovereignty in a democracy because only their elected representatives who have

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been apprised by the people, who are responsible to the people should pass law by which the
people are governed. If this power is exercised by some other person or persons, it can be
violation of sovereignty of the people.

Second thing that was decided was what is an essential legislative function? 2 things:
i) Laying down the policy of the law
ii) Enacting that policy into a binding rule of conduct. This test is known as policy
and guideline test

The third thing is it is decided that legislature cannot completely abdicate its powers
because it will be an amendment of the sovereignty of the people. It cannot create a
parallel legislative authority. Therefore, parliamentary control is essential

Next thing is courts decide on constitutionality on the basis of context. For instance, to
whom the law-making power is being delegated? Meaning thereby that if the law-making
power is delegated to an authority, which is representative of the people and responsible to
the people, then court will allow wide delegation. For instance, the municipal corporations

Extent of delegation

After laying down the policy, the power can be delegated to work out details. Lastly, the
power of repeal of the existing law and power of modification in essential respect cannot be
delegated. These are the parameters of a constitutional delegation of law-making power to the
administrative authority. Few cases where the courts have held that how a delegation is
constitutional and how a delegation is not constitutional.

For instance, the first case that comes up is Raj Narain Singh v. Patna Administration
Committee 1954. For the administration of Patna, an administrative committee was
established that they will govern. Power was delegated to this particular committee.

What was the provision of delegation?

There was already a law passed by the legislature i.e., Bihar and Odisha Municipality Act,
1922. The delegation was that for Patna administration, you can select any law or any
provision from this Act and you can modify the law and then, you can apply it to Patna. This
is the delegation.

Now, the Patna Administration Committee picked up a provision from that particular Act that
authorised the municipal corporation to impose tax. And that provision was modified a little
so that it can be applied to Patna and then it was applied to Patna. But there was another
provision of that Section in the Act and that was that if there is an objection of a person
regarding the position of tax, then the person should be given proper hearing and the case
must be decided. This part was not selected. Only one part was selected.

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This was challenged on the ground that power of extension has been given without laying
down the policy that what is to be selected and how to be selected and so they said that
power to choose one Section from the whole Act amounts to delegation of policy. The
power of modification without laying down any policy is also unconstitutional. This case
stands for selection of one Section from the whole Act, modifying that section and then
applying it is unconstitutional.

Hari Shankar Bagla v. State of MP (1954)

The government has passed law. The law is Essential Supplies Act, 1946. This Act is passed
so that the essential consumer goods are available to the people on reasonable price. There is
Section 6 in the Act that government can make rules and regulations under this particular Act.
It was further laid down that the order of the government shall have effect, notwithstanding
anything contrary in any enactment. Meaning thereby you can make law so that the essential
commodities are available at reasonable prices. For that particular purpose, you can select
any law and modify it and make it applicable.

The court held that here, the word modification does not mean the change in essential
manner, it is not a power of repeal which has been given but a power to bypass
contradictions. So, when they say that the law which you have selected and applied will have
effect, notwithstanding anything contrary in any other law, it does not mean repeal. Your rule
will prevail over them, it is not a power of repeal, it is simply a power of bypassing
contradictions. It simply means removing contradictions and therefore, delegation shall be
considered to be constitutional.

Edward Mills v. State of Ajmer, (1955)

There is a Minimum Wages Act, 1948. The purpose of this act was to avoid the exploitation
of labour.

To whom shall the act apply? A schedule is given in which industries are listed.

What is the delegation? That government can add or delete any industry from this schedule.

It was challenged on the ground that this is unconstitutional delegation. The court said no,
policy is v clear from the Act itself and that is to avoid exploitation of labour. In order to
achieve this policy, you can add if any industry is missing and make this law applicable there.
Meaning thereby that they cannot add any industry or delete any industry unless there is an
exploitation of labour. Policy has been laid down and therefore, the delegation is
constitutional.

Then came the most controversial case decided by Supreme Court. In Humdard
Dawakhaana v. Union of India 1960, the problem was that there are many diseases which
are incurable. Those diseases are known as faithful diseases. They never leave you and go
with you wherever you go.

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For instance, diabetes. You can keep it under control, but it is not curable. In the same
manner, high blood pressure. The problem was that these indigenous medicine houses were
bringing advertisements in newspapers and claiming that they have magic remedies to cure
these diseases.

They were exploiting these people and to check this practise, the government passed Drug
and Magic Remedies (Objectionable Advertisements) Act, 1954. The purpose was to
prohibit objectionable advertisements so that people are not exploited.

What are those diseases? A schedule was there.

There was criminal punishment. Delegation was that government can add or delete any
disease form the schedule.

Humdard Dawakhaana was prosecuted because they had brought out an advertisement
relating to a disease which was added by the government to the schedule. He challenged it
and one of the grounds was that this is unconstitutional delegation of law-making power.

How? They said nowhere has it been laid down and they have been given wide and
unchannelised powers without laying down policy and therefore, it is unconstitutional
delegation.

SC held unconstitutional. This case became a subject of extreme criticism. They said that
the policy of the law with reference to which a disease can be added or deleted is very
obvious from the title of the Act. The title is claiming that we have magic remedy to remove
disease.

They cannot add Malaria to the list because it is curable. Second thing the court said is that
when generally a schedule is given, any other does not mean unlimited power. There is a
rule of interpretation- ejusdem genesis. Rule of ejusdem genesis clearly laid down that when
certain items are mentioned followed by general items, then you cannot include everything.
You can only include those things which have the characteristics of the items. The disease in
this case was relating to some kind of fever. But supreme court was not correct because of
this rule of interpretation. Any other does not mean any other- it only means those things
that possess basic characteristics.

For example, imposing tax on vehicles- buses, trucks, tractors, cars, motorcycles and any
other.

Can you include cycle?

Answer is no, as cycle does not possess characteristic which is common in the vehicles
mentioned above. Common is that they are driven by power. SC was wrong because they did
not apply this interpretation tool- if they did, they would’ve known that they cannot include
malaria- they can only include incurable diseases. This decision became v controversial

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In order to determine the constitutionality of delegated legislation, the test is policy and
guideline test. If the legislature has discharged essential legislative functions. Essential
legislative functions means they have laid down the policy of the law and made that policy
into binding rule of content, then delegation is constitutional. But this test was reopened later
on.

Gwalior Rayon Silk Manufacturing Company v. Asst. Commissioner Sales Tax (1974): In
all jurisdictions, for example, India and America, taxing power is considered to be an
essential legislative power. No tax can be levied without the authority of the Parliament. In
America, no tax can be levied without the authority of congress. This case comes before the
court. Parliament passes Central Sales Tax Act. They delegated power to the central
government to impose sales tax on interstate sales

At what rate? At the rate which is applicable in a state for the sale and purchase of such
goods r 10% of value of goods in inter state trade, whichever is higher. They have been given
power that you can impose central sales tax. Policy was that so that people may not misuse
the power. People will transfer goods from one state to another without any invoice and it
was happening in India. That is why the buses were being checked

Five judges bench heard this case. Majority judgement was given by justice Khanna. In
which 3 judges agreed. 2 judges gave concurring opinions. Parliament has not abdicated its
powers. Policy is that rate of tax must be such that it has proportionality with the state tax.
Because states sales tax varies, therefore, central tax has to vary accordingly. Parliament
cannot always do it. They held that policy has been laid down, guidelines have been laid
down and therefore, delegation of taxing power is valid.

Justice Mathew and Justice Ray gave concurring decision: They agreed with the outcome but
the principle, according to us, is not a very valid principle. The principle is policy and
guideline. This is not a valid test. It is not very easy to find out what is the exact policy and
guidelines. This is not the job of the court- to look into the nook and corner of the act and to
find out where is the policy and guidelines. Not a dignified job for the supreme court.
Therefore, they say let us change this test and they suggested the Abdication test.

What is the Abdication test? Parliament cannot completely abdicate its powers. So long the
power retains the powers of taking back the power of delegation. So long they have the
power to take back and they have not created parallel legislative authorities and not
completely effaced themselves, then they can always repeal the law/ take back the power.
Look through the control of the parliament. So long the legislature reserves the right to take
back the power. This test is British model. In Britain, the parliament is supreme- they can
delegate any amount of power to the executive. Mathew says that policy and guideline is not

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a good test. Good test is abdication test. There are many pitfalls of abdication test. It may lead
to uncontrolled delegation. If they are misusing their power, parliament can always repeal the
law, amend the law and take back the power. It would lead to unlimited delegation.

Second thing is that you have given power to the central government and now you want to
take back power. Can parliament take back power? In our system, no. Because here, the
government controls the Parliament. Here, the Executive controls the Parliament and not the
other way around. Our system is parliamentary system and not the system like America
which is presidential. This argument that parliament can always take back power is only true
in theory and not practise. Another difficulty with this kind of a doctrine is that our system
works on party lines. Central government is using this taxing power in a manner that it is
helping the persons of his party. Then, they will not allow anybody to withdraw. In this
manner, the person of one party will be benefitted and the other will be disadvantaged. For
example, they have the power to decide the tax rate and impose it and make rules and
regulations for it. How that government will allow parliament to take back the power? This
method will destroy the basic structure of the constitution. Because it will violate rule of law
and also, the separation of power

MK Papiah & Sons v. Excise Commissioner (1975)

This case was decided by 3 judge bench. Previous case was decided by Constitutional bench.
In this case, there were 3 judges (Mathew J was senior most). And now, Mathew takes the
opportunity to make his abdication test as the test of the SC. Section 22 of the Karnataka
Excise Act, 1966 was in dispute. In this case, the Karnataka legislature delegated power to
the government that you can decide the rate of excise duty and you can impose the duty.
Here, the government is deciding rate of tax also and imposing that particular tax. Second
thing he says is that in this particular Act, there is a provision of simple laying

What is laying? Laying means the law may provide that as soon as you make rules and
regulations under the Act, place a copy on the table of each house. So then the legislature
may go through it and they may see whether youre misusing your power or not

There are various types but this is simple laying- before the house- they may read or not-
their discretion- experience shows that nobody cares to go through. Then, they say that this
test which is now being proposed by Mathews- in theory, it will fade. Laying the copy before
the table of the house does not mean anything anymore. He says that parliament control is
still there and therefore, don’t worry about misuse and delegation is constitutional because
there is a sufficient check. Executive which controls the parliament will not allow the
parliament to repeal the law. He did not even mention the constitutional bench case in this
case. But he formally laid down that abdication test is the real test to decide the constitutional
matters

Confusion was still there then, but was settled by another case.

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State of Kerala Electricity board v. Indian Aluminium Company 1976: This case was a
constitutional bench case. In this case, it was held that Gwalior Rayan case- did not go for
abdication test but reiterated the policy and guideline test. Because whatever Mathew said, it
was a case that was decide only by 3 judges. Therefore, this case laid down that the previous
case decided by Mathews is overruled. And so, we came to the policy and guideline test

Registrar cooperative society v. K Kunjavamu (1980)

In this case, the legislature had passed Madras Cooperative societies act. In this case, certain
rules and regulations were laid down for giving encouragement to the cooperative societies.
The delegation was government can exempt any society from the provision of the particular
act or may modify the law and apply it to cooperative societies. It was challenged. In this
case, a 5 judge bench- without mentioning everything, they said that policy and guideline test
is still valid.

Where is the policy in this case? It is very clear because government wants that cooperative
movement should be encouraged and cooperative societies should be encouraged

Abdication test is not valid- real test is policy and guideline

Taxing power under all constitutions is always considered as an essential legislative

function. Therefore, it cannot be delegated. Power to tax is a power that is not only for the
purpose of gathering remedy but it is also for the purpose of regulating economy. Therefore,
it has a special significance. Secondly, it is said that the definition of authoritarianism and
dictatorship is arbitrary imposition of tax and forceful collection of tax. Therefore, in all
democratic systems, this power has been guarded very strictly and can be exercised by
people’s representatives.

In every governance, there are 3 inherent powers:

1) police power- to regulate private conduct for public good
2) the power of eminent domain- to take private property for public purpose and
3) the power to tax

In England, the crown had the power to tax and to forcibly collect tax. An agreement was
reached between the King and the Parliament- the agreement was in the form of Magna
Carta- 1215. In this Magna Carta, it was laid down that no scutage (tax in lieu of compulsory
military service). Any other tax cannot be levied by the Crown without the consent of
commune Concilium. Bill of rights- 1689- in that bill, it was laid down that imposition of any

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tax for the use of Crown without the grant of Parliament shall be illegal. Law means statutory
law and not any rule or regulation

24th August, 2022

.2. Control Mechanism
Constitutional imperative of welfare state cannot be realized. Today, the question is how
much the power is to be delegated and how the delegated power can be controlled? Today,
the emphasis is more on control mechanisms. Control mechanisms in India are many.

For example, the first control mechanism is legislative control or the parliamentary control.
 Parliamentary Control
Parliament exercises two kinds of control:
a. General- debate in the parliament, questions, motions that can be asked in the Parliament,
vote on grants.
b. Specific control- specific control is exercised by two methods:
i. Process of Laying
Rules and regulations framed must be laid so that they can be discussed. There may be
scrutiny by the parliamentary committees. Speaker may refer a will, in which there is a
provision for delegation of law-making power. One parliamentary committee is on delegated
legislation. Matter may be referred to that committee and that committee might discuss in a
specialised manner. Delegation of law-making power may appear to be simple but it is a very
serious matter.
ii. Scrutiny by Committees
Procedural control
Procedural control involves publication. Publication may be of two types: publication in draft
and final publication. In technical terms, pre-natal publication and post-natal publication

 Judicial control

This is most effective. You can challenge the delegation of law-making power in various
grounds before the court of law:

- constitutionality of the parent act, meaning thereby that you have to prove before
the court that the Act or the statute under which the parliament has given power to the
administrative authority is itself constitutional. Those provisions maybe substantive
or procedural.

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- enabling act is inconsistent with the provisions of the Constitution and the law of
the land, meaning thereby that the enabling act, when delegating power, has violated
some other law without overruling it impliedly violates the other law and therefore,
enabling act is ultra vires
- the rules and regulations violate the constitution, so enabling act does not violate
the constitution but rules and regulations do
- rules and regulations are unreasonable or arbitrary. This is a very confusing
ground. How can you say that the rules and regulations framed are unreasonable?
Whose reason you have to see and who has to see the reasons? The simple law is
reasonableness of an ordinary person of intelligence or prudence, meaning
thereby give the rules and regulations to an ordinary person and ask him if they find
anything unreasonable.
For instance, one rule they make is that if air hostesses marry, from the date of
marriage, their services are terminated. However, if male stewards are there, it will
not be the case. Give these rules to a man of ordinary intelligence and ask him to see
if it is making sense. What is the reason? She may not give whole time/attention to the
job.
Arbitrary also means when the rules and regulations lack proportionality. Suppose
there is a rule that you will kill a fly with a sledgehammer, it is arbitrary.
Reasonableness is one of the grounds.
For example, NLU Act lays down that rules and regulations shall be laid down by
executive council and approved by majority. Executive council may say that the
power of making rules and regulations shall be exercised by the VC. If the law says
that administrative authority can make rules and regulations and after they have made,
it shall be considered as if they have made it in the act itself

 Henry VIII clause

Henry VIII was a King of England. He was a dictator. In the case of exceptional delegation,
you are giving administrative authorities exceptional power. This is sometimes known as
Henry VIII clause. The laws framed by the administrative authority are going to be final.
Where the same administrative authority has been given power to change the provisions of
the parent Act, it is this exceptional delegation which makes administrative authorities very
powerful. It is usually considered to be unconstitutional.

 Finality clause

If there is a finality clause in the parent act, and the parent act says that the rules and
regulations framed by the administrative authority shall be final and not be called in question,

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it will have no meaning. They may say final but it does not mean final; court can still
exercise control over the delegation.

For example, a case came from Kerala. In Kerala, they nationalise the alcohol business.
Licenses of all private entities were cancelled. This led to unemployment. Rules and
regulations in this regard could be formulated by the government. One such rule provided
that any person given the license should compulsorily employ at least one person from the
group of those persons who have been retrenched. This rule was challenged before the SC.
The rule was declared unconstitutional because there was no nexus between the rule and the
policy.
Another instance is if any woman is applying for appointment, then she has to tell whether
she is pregnant or not. Court held that no, it is apparently unreasonable. It violates privacy
and dignity of the individual.

26th August, 2022

Parliamentary control is natural and inherent in delegated legislation. Parliamentary control

maybe of two types:

- General and

Generally, exercised through debate etc.

- Specific

Parliament by two manners:

1) laying procedure

2) through scrutiny by parliamentary committees

What is laying procedure?

Laying procedure is of 3 types:

1) Simple laying

There is no further procedure, meaning thereby parliament while delegating power, may
provide in the Act itself that authority may have power to make rules and regulations and
once made, must be laid before both Houses of the Parliament. Nothing more is needed.
This is known as simple laying with no further procedure. This is the maximum that is
provided under the administrative law

2) Laying with affirmative resolution

These may take various forms.

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For example, the Constitution or the law may lay down that administrative authority shall
make rules and regulations but they may be subject to affirmative resolution. Affirmative
resolutions may be again of two types:

i) that rules and regulations shall have legal validity but in order to remain
legal, they require affirmative resolution by the legislature

Sometimes, law provides that administrative authority can take action and they will remain
valid but in order to remain valid for a further period, they require affirmative resolution by
the legislature.

For example, Article 352 talks about emergency. If the president has issued a notification for
emergency, the Constitution says that it will be valid, but it must be approved by the
legislature within one month and if not, then in that case, rules and regulations shall cease to
be valid. Here, approval is to be within one month.

Then, in the same manner, Article 356- the rules and regulations made by the President shall
remain valid but within two months, they must be approved and if not approved, validity
shall cease

ii) law may say that administrative authority may make rules and regulations
but they will have no legal validity unless approved by the Parliament with
affirmative resolution that rules and regulations have been framed

Copy will be sent to Speaker. Speaker will put in the table of the house and when approved,
then they will have legal validity

For example, Water prevention and Control of Pollution Cess act, 1977- that lays down that
the government can make rules and regulations but must seek approval within 15 days. So,
they have to send copies to legislature and pass affirmative resolution and thereafter, they
will have validity

3) Laying with negative resolution

Meaning thereby, the law laid down that administrative authority can make rules and
regulations and can give them immediate operation, but copies must be sent to the legislature
and if the legislature within 30 days in India and 40 days in England. Within 30 days, if
legislature disapproves, then they will cease to have value. In this case, they will have
immediate operation. If rules and regulations have validity right from the beginning and if
they are sent to the parliament for approval and parliament within 30 days does not annul or
modify, then all the vested interests which have been acquired shall remain valid.

Laying in draft- if draft is sent to Parliament and is approved, then it will have legal validity

Question is during what period they should lay?

Generally, the law is 30 days. In England and America, 40 days.

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Through laying procedure, the parliament controls the delegated legislature but unfortunately,
this is considered to be the weakest method because nobody takes any special interest.

Committees- rules are scrutinised by them and then, they submit a report to the legislature.

 Publication of the rules

This is again a method of procedural control. There is no law on this particular point in
india. If the provisions are made in the act itself, then they are followed. Otherwise, there is
no special law.

Publication may be of two types:

If they are published and it is not in your knowledge, you are bound by it because you had the
opportunity to know and you didn’t care.

Ante natal publicity- before the rules and regulations come into operation, parent act will
provide that administrative authority shall publish the rules in the draft form. They will
invite suggestions and comments and then, after considering those suggestions, they will
make rules and regulations final. In India, there is no law that specially requires.

For example- coffee act, tea act, chartered accountants act, cooperative societies act

How is it to be done? Where to be published?

It is all laid down in the act. If nothing is laid down in the act but it provides for ante natal
publicity, then Section 23 of the General Clauses Act will apply. this provides that draft
rules be published in a manner the authority deems fit and proper. They may publish
newspaper, in any other manner in form of booklet. Then, they must specify a date by
which objections are to be received and suggestions are to be received. These suggestions and
recommendations are not binding on the authority but they must be considered binding. After
the have considered, then they must make the final draft. Then, it is to be published- then, it
becomes rules and regulations

Raza Buland v. Rampur Municipality 1965

It was laid down that draft rules and regulations, before they are made final, they must be
published in Hindi newspaper in Hindi language. Then, you invite objections. In this case, the
rules and regulations were published in Hindi but in Urdu newspaper.

When it was challenged, the municipality took the view that Urdu newspaper has wider
circulation- published in Hindi but wider circulation. Court said that it is sufficient
compliance- so they don’t look to the . . .They see to the reasonableness and fairness in the
manner in which you publish. Substantial compliance means you have not literally complied.

Sainik Industries Rajkot v. Municipal Corporation, Rajkot 1986

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What the act provided says that before you make rules and regulations, you have to publish
the rules and regulations in a Gujarati daily newspaper. The rules and regulations that were
framed were very bulky and therefore, it was not possible to publish them in a newspaper.
They published a notice in the Gujarati newspaper. They have framed rules and regulations.
Because they are bulky, they were not published in newspaper but they are available in
municipal corporation office and anyone can go and inspect it
Court held that it is substantial compliance. Always see whether publication is reasonable,
just or fair. The time given for making suggestions must also be reasonable and fair.
Post natal publicity
Law shall not bind any person unless that person has an opportunity and access to that
particular law.
For example, if the administrative authority has made certain rules and regulations, they are
made by government officers and they were finalised and they were put in a file.
Will they be binding? No. Because where is the opportunity for the people to know it and
people must have access to it. That is why we say that ignorance of law is no excuse.
Ignorance presupposes that law is available for people to know and they are not trying to
know. If you have not given any opportunity for them to know, then how will it bind the
people?
POSITION IN INDIA
Narendar Kumar v. UOI
 In this case, rules framed under the Essential Commodities Act were to be published in
the Gazette. Rules weren’t published.
 The ct held that the rules and regs have no binding effect as they weren’t published
B.K. Srinivasan v. State of Kerala (1987)
 The Act laid down that the rules must be published in a recognizable manner
 So the rules weren’t published, but a notice was published that rules available in an office
can come and see
 The court held that the rules were available and accessible and therefore binding and this
is substantial compliance.
30th August, 2022

First type of hearing is personal and open hearing/ public hearing. Second type of hearing
might be auditive hearing and adversarial hearing. When administrative authority wants to
see your reaction, you can express. Decision is for the body- to accept or not. But opportunity
to explain has been given.

Another type of hearing is administrative rule making. Not generally followed in india but
very common in America. Adversary hearing- hearing like the court style meaning thereby
one party arguing from one side and the other arguing from the other. Like a court, there is a
judge sitting i.e., the administrative authority and they decide.
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In administrative proceeding, the judicial hearing is not possible because one party is always
an interested party.

For instance, the government wants to nationalise road transport. So they have invited them
for hearing and who is giving them hearing? Secretary of the transport department- he is
representing one side and he is an interested person also. Similarly, there is always a
difficulty that in auditive hearing, one party is always an interested party.

How can they take an independent decision?

Therefore, in America, they have developed the institute of hearing officers. Federal
government maintains the registrar- willing to undertake this kind of responsibility.

For example, the state government has prepared a scheme of road nationalisation. The
hearing will be given to private bus owners- department of transport will write to the central
government and they will send one person. Now, date and time is fixed- that person comes
and decides. On one side, this is the transport department- one the other side, private bus
owners. After hearing them, after looking into their evidences, this person will decide.

Who will give the hearing in india? secretary, transport- he is an interested person In
America? hearing officers. In Britain? hearing inspectors

However, their decision is not binding

Third type of hearing is conferences, workshops, seminars.

This is a form of open hearing as anybody can come. In America, special factor is there- there
are a lot of corporations- lobbying corporations- meaning thereby if you want that
government should not nationalise the road transport, it requires arguments of lawyers and
who will do it? Road transport union- they will hire lobbying firm- this is what we want you
have to plead our case- they have trade lawyers. They prepare on their behalf. The kind of
research these firms do

In India, what types of consultation are generally allowed when the administrative
authority is given power to make rules and regulations?

Tulsi Ram Sugar Company v. Notified Area Committee : Tulsi sugar company was winning
a notified area. The law was that any company which is a notified area shall not be subject to
any tax. The government had the power to change the notified area and so, the notified area
was changed by another rule and regulation. What happened was that Tulsi company did not
come under the notified area but remained outside and now it is subject to tax. So, the sugar
company took the company that before this rule was made and notified limit was changed, I
should have been consulted because I suffered a huge loss

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Therefore, natural justice demand that I should have been given hearing. Supreme Court held
that since it is a legislative matter, the PNJ are not being attracted. This decision became
a subject of criticism that when the PNJ stand for fairness and reasonableness. Therefore,
later on, the SC changed its stance.

31st August, 2022

Natural Justice principles stand for fairness and justice and therefore, can be claimed as a
matter of right. Can consultation be claimed as a matter of right? Yes.

In what cases can you claim natural justice as a requirement of consultation?

1) Where the rules and regulations are to be made with reference to the fact
situations previously decided- means you are not to make rules and regulations
generally; it has to be made specifically on the basis of certain facts. Generally, you
cannot do it. On the basis of certain facts

For example, if you are making certain rules and regulations under the Bonus Act on how to
grant exemptions under this particular act, then it cannot be decided without knowing the
financial position of the industries or the organisations which say that we cannot pay. Here,
you have to make rules and regulations for granting exemptions after taking or knowing or
giving

For example, if you are making rules for working journalists, you cannot know viewpoint-
hear them first and then make rules and regulations

2) Where serious prejudice has been caused to any person or enterprise-

For example, in Tulsipur sugar mills, the government was given power that you can decide
change in the notified area and without notice and hearing to anybody, they changed the
notified area. In notified area, there is no tax but if area is not notified, there is tax. Now, one
company was subjected to tax. We have suffered serious prejudice. So, we should have been
given opportunity to be heard and the argument is no, there is no requirement in law. They
say that this is a requirement of natural justice and therefore, the court held that yes, even if
you are not required to consult people before making rules, it prejudicially affects authority,
then you have to give notice and hearing to that particular person.

3) Where a vested interest of a particular person is violated

There is an interest that is already vested in him. Illustration of Gutka manufacturing

company. Where the government prohibited gutka and entire industry was affected. In this
case, Gutka Pan Masala Product Company v. Union of India (2004), government decided
to prohibit chewing tobacco because this was causing cancer. Without any notice to the
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company which was making this product, the government decided to prohibit the sale and
manufacture of this product and so, a right which had already been vested has been affected.
They said we should have been given or consulted first.

4) Where the government is withdrawing/denying the people the public benefit they
were enjoying before and the benefit to the people was substantial

You have withdrawn without any consultation.

Case- R v. Secretary of Health (1994)

Cancer is an incurable disease. If you have a blood concern, the only treatment that will be
available is the bone marrow transplant. So, the municipal corporation had this facility
available for the public. Thereafter, the municipal corporation decided that they will close it
down for whatever reasons and so, it closed down. The people claimed that this facility has
created some kind of legitimate expectation in the people, which is a right.

The House of Lords held that yes, consultation can be claimed as a requirement of natural
justice if the act does not provide it. If it violates legitimate expectation, even if the act does
not provide, legitimate expectation will be there and consultation should be provided because
it would have been given people the benefit of suggesting alternatives which the municipal
corporation was not considering.

If consultation is provided and circumstances are such that consultation is not possible, then,
can the rules and regulations be made without consultation?

Make a difference between difficulty and impossibility in making consultation.

Case- Grunwick Processing Lab v. Advisory Consultation and Arbitration Services

Administrative difficulty in providing consultation is no ground for not providing

consultation. But impossibility can be.

In this case, there was Employment Protection Act, 1975, under which the power was given
to the government to make rules and regulations for the protection and services for the labour.
Act provided that before the rules and regulations are made, the labour unions are to be
consulted. When government wanted to make rules and regulations, there was a huge
industrial strike and unions were not available.

Question was whether

Court said it is a case of administrative difficulty and not impossibility. Therefore, when
you made rules and regulations without consultation from the union, it has totally frustrated
the purpose of the Act. Therefore, the rules and regulations were quashed. However, if
consultations are provided in the Act but in fact, certain persons were not consulted and they

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object as to why they were not consulted, mere objection will not vitiate the administrative
action; they must show what prejudice they have suffered.

For example, in a case R v. Richmond Council (2001), under the Transport Act, the authority
was to frame rules and regulations regarding pedestrian crossings, so that pedestrians may
cross and not create much hindrance to traffic. The rule was that they have to consult
pedestrians and the residents of that particular area. In this case, pedestrians were considered;
given opportunity to consult but residents were not consulted. Those who were actually using
that road were given opportunity, but residents were not. After the rules and regulations were
made, the residents union made a representation that they are not valid because they were not
considered.

Court said that what serious prejudice you have suffered? They were not able to put any
claim. They said that we were supposed to be consulted but we have not been consulted.
Court said true, but what prejudice do you have? Therefore, you cannot claim. Futile claims
will not be considered as mandatory.

In the same manner, the court decided the question whether it is mandatory or not by taking
into account the totality of the circumstances and pragmatic contextualism; the total context
and not just the right and its violation.

Case- R v. Secretary of State for Social Services (1986)

In this case, rules were to be framed after consulting housing bodies. Notice was sent to the
housing bodies that kindly come for consultation on such date, time etc. Instead of coming
for consultation, they wrote back saying that is not possible; kindly change the date. The
authority did not care to even reply. They made rules and regulations without any
consideration.

Can this be claimed as a violation of PNJ?

Court held that reasonableness and fairness demanded that at least, their letter should have
been responded to. They did not even care to reply and that is unfair. So, this is how you
can claim consultation; not only when it is given in the Act but also on the ground of
violation of UGH

2nd September, 2022

Judicial control is considered to be the only effective control. Otherwise, parliamentary

control is general and weak. Procedural control is also very weak.

Delegated legislation is considered as an excuse for the legislature, a shield for

administration, and a provocation for the judiciary. Parliament does not want to do its work.
So, it is an excuse for not doing work. Then, shield for administration. The administration

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will always make rules and regulations which will shield them so that their efficiency does
not come forth.

In India, we know that judicial review is something which is inherent and is considered to be
a basic feature of the Indian Constitution. In the Indian Constitution, the term judicial
review is nowhere used but the courts have interpreted and said that judicial review is
the basic feature of the Indian Constitution and therefore, cannot be taken away, even
by the amendment of the Constitution. No matter the Parliament may say

This will not happen in England because there, if the parliament says that it is final and it’ll
be final. Therefore, no finality clause in the parent act can bar judicial review.

9th Schedule- If any law is placed in 9th schedule, then

Question arises if there is an Act under 9th schedule and then, under that particular Act,
power has been given to make rules and regulations, can they be challenged?

Court was v clear in Farhad Narayan Oil Mills v. Union of India (1978). The court said that
if the Act is in 9th schedule, it shall not be called into question in the courts of law. However,
rules and regulations framed thereunder are not immune. Act may not be challenged but
rules and regulations held under it may be challenged.

Judiciary everywhere is zealous because they are the weakest organ of the state. It has neither
the sword of the Executive, nor the purse of the legislature. The weak is always zealous of its
power.

Case of IR Coelho v. Union of India (2007)- even the 9th schedule cannot do away with
judicial review.

On what grounds you can challenge administrative rulemaking in a court of law?

1) the enabling act or the parent act is ultra vires the Constitution

If the law passed by the legislature violates the express limits of the Constitution, then it can
be challenged and declared as ultra vires.

For example, Chinthaman Rao v. State of MP (1951)

In Madhya Pradesh, there was a v known cottage industry- beedi making.

A law was passed and that is Regulation of Manufacturing of Beedis Act, 1948. Under this
particular Act, power was given to the government. Whenever you think that labour is not
available for agricultural operation, you can prohibit the manufacture of beedis production.
This was challenged before the courts and it was said that the parent act violates Article 19(1)
(g). Court said that look here, if you’re giving power to completely prohibit a profession, it
is not allowed by the Constitution. People have the right to choose their profession and for
that, you cannot completely prohibit; you can regulate.

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2) if the parent act violates the division of power in the Constitution

That division of power is the basic feature that you cannot change.

For example, there are 3 lists- Union list, state list and concurrent list. If the state is making
the law, they cannot be authorised to make a law on subject which is list 1. If it has been done
somewhere, the parent act is unconstitutional.

3) Extra territorial operation

State law shall operate within state territory. Union law shall operate within the territory of
India.

6th September, 2022

We have discussed the first ground in which we challenge the enabling act as
unconstitutional. First ground of unconstitutionality is-

Violation of fundamental rights

Second ground is the division of power, extra-territoriality, ex-post facto legislation, article
300

The parent act violates the implied limits of the constitution- implied limits are-

1. Where the legislature has not laid down any policy of the act

2. Where no guidelines have been laid down

The parent act is valid but the rules framed thereunder are unconstitutional- rules and
regulations violate the provisions of the constitution. What cannot be done by the legislature,
cannot be done by the administrative authority.

Rules are ultra vires the enabling act-

1. Rules are in excess of the power delegated by the enabling act

2. They are in conflict with the enabling act

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3. The rules are in excess of the policy of the law

4. The rules are in conflict with the procedure laid down in the enabling act

Rules are unreasonable- the most difficult ground to challenge the rules and regulations,
meaning thereby, if the rules are unreasonable, irrational, arbitrary, then they can be
challenged in a court of law because unreasonableness, irrationality and arbitrariness violates
fundamental principles of constitutional law, that is, article 14 (rule of law and due process).

What is reasonableness and unreasonableness?

This was decided in the case of Associated Provincial Picture House v. Wednesbury
Corporation, 1948. There are three main theories of the genesis of the world- God created
this world, this world has evolved from one cell to multiple cells, Big Bang Theory. There is
a theory in Christian religion- Theory of Creation that God created this world and each day,
God created one thing each day- water, hills, soil and on 6th day, He created man and on 7th
day, He took rest. The fundamental Christians took the rest in a very fundamental fashion,
that is, even if you are sick, you cannot go to a doctor as you need to take complete rest-
Fundamentalist Approach to Religion. But when rationality developed then there was a
demand that rest does not mean that you lie down on your bed all day long.

Therefore, the cinema owners demanded for cinemas to be open on Sunday and a law was
passed and power was given to municipal corporation that cinemas shall be open on Sundays
and MC had to make rules and regulations as to regulate the cinemas. Wednesbury
Corporation made a rule that no person below the age of 18, even with the guardian, will not
be admitted in cinemas on Sundays. This rule was challenged that it was unreasonable.

The court gave the definition of unreasonableness and laid down when the administrative
action of making rules and regulations is so outrageous and in defies of logic and
standards of morality that no person of ordinary intelligence and prudence on those
particular facts can reach such a decision, then that particular action will be unreasonable.
Meaning thereby-

1) every case has to be decided on its own merit, therefore, relativity, relevancy and
contextuality in reasonableness is an important factor.

2) if the action is contrary to law, then they are unreasonable.

3) if the rules and regulations have not considered the relevant facts.

4) if the administrative action has taken into consideration irrelevant facts where the
administrative action on face is absurd and perverse and it is of such a nature that no
reasonable person can come to that decision.

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Action should not be arbitrary. This is known as Wednesbury Test- if the action of
administrative authority is so outrageous and in defies of logic and standards of morality that
no person of ordinary intelligence and prudence can reach that decision, then it is
unreasonable.

For example, West Bengal Electricity Board v. Deshbandhu, 1985

Power was given to the board to make rules and regulations relating to the service of the
employees and one rule that the board made was that either party can terminate the contract
of service by giving three months notice. Court said that in the context of relativity, such a
clause in unjust as in India, we have a lot of unemployment and a person who has gotten the
job, cannot think of resigning but the government can dismiss any person. This is therefore,
an unreasonable provision of law that benefits the employer and puts the employee at a
disadvantageous position. Hence, unreasonable.
Gujarat University v. Rajeev Bhatt, 1996

Rules were framed for admission in super specialities in medical hospitals. The rule was that
first preference was given to persons who have done their post graduate from the same
medical college. Second to those who have done post graduate from any college in Gujarat. If
the seats are still vacant, they will continue to be vacant. Court held that the rules were
unreasonable.

Air India Corporation v. Nargees Mirza, 1981 SC

Air India Corp. made a service rules that the air hostesses shall be terminated on their
marriage, whereas the stewards will continue their service. Court held that the rule was
unreasonable because it is violative of ordinary course of human conduct. It is an insult to
womanhood and is gender biased, which is prohibited under article 14.

Meenakshi v. University of Delhi, 1989

Question was who can take admission in Delhi University and for this the rule framed by
government was that any student who had been in Delhi for the last two years and has taken
education in Delhi in those two years.

For example, the last two examinations must be from Delhi to be considered as a bona fide
resident.

Question arose whether the rule was reasonable? Court held that the rule was unreasonable
that if a student’s father was transferred when he was in 11th, he cannot take admission in
University of Delhi but someone who came just for 11th and 12th in Delhi, can take
admission.

State of Maharashtra v. Chandarbhan, 1983

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In Maharashtra, the normal rule was that if the person is suspended from service, then he will
get 2/3rd of his salary every month. However, there are cases where people are prepared to
take bribe in order to get suspended because of there is a person from village having orchard
and if there is a harvesting season and he being the only member to look after the orchard, he
would then like to go back to his village and leave his work, thereby requesting his boss to
suspend him. Then, he will be reinstated after the inquiry is instituted and he will not lose
anything. Government said that it had become nuisance and they made a rule that during
suspension, a person will get only Re. 1 as subsistence allowance and not 2/3rd of the salary.

This was challenged in the court of law that whether this Re. 1 of subsistence allowance is
reasonable?

SC held that when you call it subsistence allowance, no family can survive on Re. 1 and it
is unreasonable, arbitrary and irrational.

7th September, 2022

It is not the reason of the judge or the legislator, but it is the reason of the ordinary man of
intelligence and prudence.

In America, written constitution- there is a chapter on FR, due process is given in the
constitution itself (Amendment 14). In our constitution, due process is not there, we read it
into our constitution. Rule of law, which is inherent in the American constitution. Rule of
proportionality that there must be a balance between the means and the ends, it forms an
unwritten part of the American constitution.

In America, a case came before the court- Federal Communication Commission v.

American Broadcasting Company, every broadcasting company had to get a licence and
they also needed to get a license from FCC but the programs that they were running were the
give-away programs. So, the broadcasting company, if they ask you to do something using
your intelligence, and then you get a prize, its different but if you do something less than
ordinary and get a prize, it means that the company is encouraging wagering. The company
was thus presenting its programs in such a manner and contention was that of waging and
hence, unreasonable. The court held that the programs are unreasonable as they give rise to
waging that is prohibited in the society.

In England, parliament is supreme and they can pass any law that cannot be challenged in the
court of law, however, the rules and regulations framed by administrative authority under that
law can be challenged, for example, violating the common law rights of the people that they
get from the customs and traditions.

The case that came up is Arlidge v. Islington Borough Corporation, 1909.

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Islington Borough Council is like a municipal corporation and under the act they had the
power to make rules and regulations for administration of the area. One rule that they made
was that every owner of the property shall have to clean his property once in every year and
they have to whitewash and paint from inside and outside every year. If owners didn’t do
that, there was a fine. This was challeneged before the court on the grounds that it was
unreasonable because suppose a person is poor, he cannot spend money to paint and
whitewash and clean his house every year, so, he would suffer the penalty for no fault of his.
A situation has been created where a person cannot fulfil his obligation under the rules
without the offence of trespass, as suppose he has given his property on lease to somebody,
that person ca during the lease is entitled to quiet possession and enjoyment of the property
and he landlord cannot disturb him. If a serious patient is in the house and you have reached
the house to paint it, they might not allow you to do that and if you don't do that, you will
suffer from fine. If you force your entry, you'll be committing trespass. Thus, the rule is
unreasonable because it makes unreasonable demands on the owner of the house where
performance of the action is not possible without committing a crime. The rule was
henceforth quashed on the basis of unreasonableness. The court said we have to see whether
the rules are unjust and the rules are unjust when there is a lack of balance and
proportionality between the means and the ends that you want to achieve. If the rules are
regulations are capricious and whimsical and if they are inequitable (without balance), unfair
and grossly oppressive (rules and regu gratuitously interfere with the rights of the people) and
where no reasonable man would take the action that the law asks you to take. But in order to
decide reasonableness, you cannot decide in abstract, you have to look into the context,
realities of the live situations. You have to take into consideration the generalities and not
freak exceptions.

Chester v. Batson, 1920, war situation- defence forces are fighting under stress. They have
left behind their families, so, the municipal corporation makes a law that if any premises is in
the possession of the family of the defence personnel, then the owner of the house cannot go
to a court anf file a case for ejection. Question arose whether it was reasonable or
unreasonable? The court held that denying a person of his FR which the common law gives
that particular person shall be unreasonable.

Cruse v. Johnson, 1898, in England at that time, there was a tradition that people play
instruments and sing on public streets and pavements. Some do it out of fun to entertain and
some do it for begging. It was causing inconvenience to the pedestrians so the rule came that
singing and playing instruments on street pavements is completely prohibited. Was it
reasonable? The court said that it goes by the assumption that it will be annoying and causing
discomfort to the pedestrians and therefore, held that the rule was unreasonable. The long
standing tradition cannot be taken away without any research into the matter. The rule was as
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a result amended that no person can sing and play instruments within 50 yards of the
residential building because it may disturb the peace and tranquillity of the person. The court
held that this sounds reasonable because here, there was a balance between the means and the
ends.

The rules are malafide and show a bad faith

By rules and regulations you are trying to do something indirectly that you cannot do
directly. You are trying to achieve an ulterior purpose by your rule making that you are not
authorised to do.

For example, municipal corporation has the power to lay down the hygiene standards for the
hotels and the restaurants. The purpose is to protect people’s health from being adversely
affected. Suppose, they are making rules and regulations in such a manner that they are trying
to achieve some other purpose than the one given in law. If the municipal corporation lays
down a very high hygiene standard that ordinary dhabawalas cannot come to that standard, it
was brought to the notice of the court that these standards want to achieve an ulterior purpose
that those dhabas serving Indian food may close down and European style food must flourish
and it is malafide. The court quashed the rule as it led to the closure of so many indigenous
eating places.

However, law passed by the legislature cannot be challenged on the grounds of malafide
intent.

Bombay Dying Mfg. Co. v. Bombay Environment Action Group

During British rule, Bombay was the centre of the textile industry but somehow, the
companies failed and now Bombay is not the hub. These companies had a lot of property at
their disposal and now when companies failed, the property was there without any use. The
government made the plan that they would allot the property to the developers and they
would make flats and housing on those empty property. This was challenged on the ground
that the rule and the policy framed was unreasonable, arbitrary and malafide as besides the
money involved, the purpose was that the rule shall violate sustainable development
(development that fulfils the need of the present generation and leaves something for the next
generation) and intergenerational equity (something might not be good for the present
generation but must be beneficial for the future generation). The court held that the rules and
regulations that do not take into consideration sustainable development and intergenerational
equity are unreasonable.

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9th September, 2022

Rules made for certain ulterior purposes or are trying to achieve a different end or the
administrative authority is trying to do something indirectly, then rules are mala fide and
show bad faith

Rules violate the rights derived from Common Law

Our most rights are derived from statutory law but still we get certain rights which we can
call as customary rights. There may be certain rights that we get for a long practice that is
going on, for example, taking out a marriage procession on a public road is a common law
right. In the same manner, in England, there is a right being exercised for a long time by the
headmasters and the headmistresses of public schools or private schools and the right is that
every headmaster by tradition has the power to detain any student from taking final exams if
he has not shown sufficient academic growth during the year. This is a tradition in these
schools. In India, there was a similar school, Maharashtra government made a rule that no
principal or headmistress shall have the right to detain the final exam form of any student, it
means that irrespective of whether you show progress or attend classes, you will be allowed
to take final exam. Sophie Kelly v. State of Maharashtra, 1967, she challenged this rule on
the grounds that this deprived her as a headmistress of a school from the right that she had
derived from common law. The supreme court held that rules and regulations must be so
framed that they do not deprive a person of a right derived from common law.

Rules and regulations impliedly repeal or modify any existing law passed by the legislature.
In England it is allowed that parliament can delegate power to any administrative authroty to
any extent like to make rules and regulations by which any other law may be repealed or
modified because there parliament is supreme. In India, this however is not possible as we
have a written constitution and it is a law in India that no power can be delegated to the
administrative authority which has the effect of either expressly or impliedly repealing any
other existing law and therefore, such power cannot be given- In Re Delhi Laws Act, 1951.
Power can only be given to bypass contradiction or difficulty in operation or execution. For
example, in the case of Kerala SCT Union v. State of Kerala, 2006, Kerala nationalised
alcohol trade and all the persons trading in alcohol, their business was closed down and so
many people in the state became jobless. For that, the government made a rule that any
person who now gets a license to start a liquor business shall have to employ at least one
person from that group that has been rendered jobless because of nationalisation of liquor.
This was challenged in a law court- can they make such a law? Is it valid? One of the grounds
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of the challenge was that you cannot, in exercise of your law making power, make a rule that
has the effect either expressly or impliedly repealing any other law in existence. In this case it
was said that whenever an industry or any venture is closed down then there is a law that
deals with the rights and liabilities of the workers in that particular job and that law is
Industrial Dispute Act. What the government did is that they laid down a rule and regulation
that when private liquor shop had closed down, government rules will be applicable and
Industrial Dispute Act to that extent was impliedly repealed. SC said that that could not be
allowed as the rule had an effect of nullifying the application of Industrial Dispute Act. This
was also held unconstitutional under article 19(1)(g)- freedom of business and profession-
scope implies that you cannot employ any unwilling employee, an employer must have full
authority and freedom in employing.

AV Nachane v. UOI, 1982

Government passed Bonus Act and under that act a statutory bonus was required to be given
by every business establishment. However, the government was given power to make rules
and regulations and they made rules and regulations about payment of statutory bonus. The
rule laid down that the rule being made shall prevail over any other law or any other
settlement and practice in any industry. Any settlement made and registered under Standing
Orders Act by mutual agreement between the labour and employer has a legal binding effect.
It was argued that the rule made violates the law laid down by Standing Orders Act and
therefore must be held invalid. The court accepted this contention.

Therefore, if you are given power to make rules and regulations, you cannot make any rule
and regulation that can expressly or impliedly overrule or modify any other law in existence.

Violation of the principles of natural justice when required by the enabling act, then
rules and regulations cannot be made in violation of that particular provision.

State of Tamil Nadu v. K Krishnamurthy, 2006

Legislature passed a law Miner Mineral Regulation and Development Act, 1957. Under this
law, there was a provision that administrative authority if wants to cancel any lease given to
the other person, then that person must be given notice and hearing first. Under the act,
government also had the power to make rules and regulations. One rule government made
was that any lease can be cancelled without giving notice and hearing to the person. Parent
act requires that lease cannot be terminated without notice and hearing but the rule stated
otherwise. The rule was held to be void.

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Sub-delegation- you cannot delegate rule making power to any other person or authority
unless the parent act authorises it. If you delegate your power to make rules and regulations,
it will not be valid.

For example, the University Act provides that rules and regulations for effective functioning
of university shall be made by executive council, then executive council cannot say that VC
will exercise this power, but if the power can be delegated, it is valid. In one case, it was held
that all disciplinary powers over labour shall be vested in the General Manager and if General
Manager makes a rule that the powers will be exercised by Assistant General Manager, it is
sub-delegation.

Retrospective operation of the rules and regulations- can the rules and regulations that you
make have retrospective application? We can but subject to the provisions of the constitution.
If rules and regulations attach criminality to a particular operation, it cannot have
retrospective operation as ex-post facto laws not allowed. They can be given restrospective
operation provided the parent act allows it- Administrative Tribunal Act, 1985 expressly
authorises that the rules framed by administrative authority can be given restrospective
operation. Can the pending cases in the court of law be transferred to tribunals? Yes because
the act itself lays down that rules and regulations can be given retrospective operation. But,
even if you have the power to give retrospective application, certain more things need to be
fulfilled- BS Yadav v. State of Haryana, 1980, this is the base setting judgement of SC on
retrospectivity of delegated legislation. State services authorised the administrative authority
to make rules and regulations to regulate state rules and those rules and regulations can have
retrospective effect. In Haryana, in order to determine seniority, the Haryana government was
using date of joining as a criteria and so, this rule was applicable and many seniority levels
have been recognised by this rule. Haryana government wanted to make a change and said
that seniority list will be determined not from the date of joining but from the date of
confirmation. When this rule was made and given retrospective application, seniority of many
senior officers became uncertain and one person went to SC and challenged this rule on the
ground that they have given a retrospective application. Government said that the parent act
allows them to give retrospective application to rules. But SC said that- you are exercising
public power and not a private power and therefore, you cannot exercise public power in an
arbitrary manner. What purpose did government want to achieve by changing the seniority
level determining criteria? The government could not justify. The court said that simply
having power is not sufficient, it must be shown that by giving retrospective application, what
public purpose is sought to be achieved.

Rules are arbitrary- court said that if the rules are vague or if the blanket power is given to
the administrative authority to interfere with FR of the people, like power given to coal

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commissioner than no one can do business except obtaining license and coal commissioner
made a rule that he can deny any person the license as per his discretion, this rule is arbitrary
as it gratuitously interferes with the FR.

Rules are irrational- no justification for those rules and regulations can be found in the mind
of a reasonable person.

Where there is end and means dichotomy or imbalance, no proportionality- the end must be
justifiable, reasonable an valid as per constitution. The means selected to achieve that end
must be reasonable and least-burdensome.

Rules and regulations framed should not exclude judicial review- so no rule and regulation
can be made that falls in the definition of Henry VIII clause.

Rules should not violate the provisions of the constitution and common law rights in
England

For example, the case of Chester v. Batson, the rule framed was that no person who has
leased his property to a defence personnel can go to a court of law and claim ejection. The
court said that going to a court of law is a basic common law right and cannot be violated.

Finality clause in the parent act which gives finality to delegated legislation or if rules and
regulations give finality-

Finality clause is also called “ouster clause” or “escape clause”. Our SC uses a term “Ganga
clause” meaning thereby that anything in Ganga is pure. This has been a very controversial
issue in England because of supremacy of parliament, suppose parliament says hat rules and
regulations framed by admin. authority under this act shall be deemed as if contained in the
act itself and passed by the parliament, meaning thereby, that the parliament has passed and
hence, rules and regulations are final or parliament can also say that rules made by admin.
authority are final and conclusive and cannot be challenged, so what is the implication of
such finality or ouster clause?

A case came before House of Lords- Institute of Patent Agents v. Lockwood

Lockwood or Herschel Doctrine, decided by Lord Herschel of House of Lords in England-

a rule framed by administrative authority was brought before the court- the government
argued that enabling act lays down that rules made by administrative authority shall be
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deemed as if enacted by the parliament itself. House of Lords held that court cannot do
anything as parliament is supreme- this is Lockwood or Herschel Doctrine- finality clause in
parent act is final, court cannot do anything.

The question was that what would happen if the parliament itself passes an arbitrary and
unreasonable law? They say that nothing would happen as people are supreme in a
democracy, their representatives are supreme.

Minister of Health v. R, Ex parte Yaffe, decide by HOL in 1931, also known as Yaffe
Doctrine, it overruled Lockwood Doctrine, power was given to admin. authority under
parliament passed law and that rules and regulations framed by admin. authority shall be
deemed as if made by parliament itself. In this case, HOL overruled Lockwood Doctrine.

They said that these words “as if contained in the act itself” shall not include those rules and
regulations that are beyond the power granted to administrative authority by the
parliament’s act and the rules and regulations must be reasonable also. There must be
violation and there must be an error in jurisdiction for court to intervene despite the words
like “as if contained in the act itself”.

Attorney General v. Ryan, 1980, again the same problem, law passed by parliament had a
finality clause. This case followed the Yaffe Doctrine and HOL said that the ouster clause
shall have no application in case of excess of jurisdiction and the violation of the
principles of natural justice. So, if there is violation of natural justice principles, the rules
and regulations will not be saved from judicial review and similarly, if the rules and
regulations are in excess of jurisdiction, rules and regulations shall not be saved from judicial
review.

13th September, 2022

Lockwood doctrine- if British parliament lays down that the rules and regulations laid down
by the administrative authority shall be deemed to have been contained in the act itself then
the court cannot do anything, that clause is conclusive. The monarch in Britain is the
constitutional head, the real power lies in the hands of the parliament.

Yaffe doctrine- it overruled Lockwood doctrine. It laid down that if the parliament says that
the rule shall be contained in the act itself, the rule shall not be final if the rules and
regulations framed by administrative authority are beyond jurisdiction. If within jurisdiction,
finality will be there. So, Yaffe Doctrine returned the power to the judiciary of reviewing.

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Anisminic Ltd. v. Compensation Commission, 1969, Nyle nationalisation- Nyle joins two
seas therefore the travel time is reduced. President Naser is the president and this Nyle is the
source of huge revenue. It was under the control of the British people, therefore, he thought
that since Nyle was in their territory, Nyle should be nationalised. On both sides of the Nyle
river, big corporations came up and these corporations were also nationalised. For this
purpose, a treaty was signed between Britain and Egypt about the compensation because of
nationalisation. They agreed on a list and that list contained names of corporations that were
to be nationalised. An agreement was reached by the British government about the money to
be distributed among those corporations according to their status of assets and liabilities. In
order to do that, the British Government passed Compensation Commission Act to distribute
money as per the listed corporations according to their assets and liabilities.

The jurisdiction of the commission was therefore to decide the compensation of each
corporation. They called Anisminic Ltd. to appear before it for compensation and when they
were discussing, they found out that Anisminic name should not have been there as before
nationalisation took place, it had transferred its assets to some other corporation. Therefore,
no compensation was given to Anisminic.

Anisminic went to the court, question arose whether court could exercise jurisdiction?

In the Compensation Commission Act there was a clause that decision of the Commission
shall be final and conclusive. In this case, the Compensation Commission took the plea that
jurisdiction of the court is barred and parliament is supreme. But Anisminic argued that
although parliament is supreme and law has a conclusive clause, the actual problem is that
this conclusive clause shall be applicable only in the cases where the actions of administrative
authority are within the jurisdiction given by the act. If the action is outside jurisdiction, the
conclusive clause shall have no application. Thus, error of jurisdiction and error within
jurisdiction were differentiated. They said that when Anisminic was denied compensation,
the action of Commission was outside jurisdiction, they had the list and they had to give the
compensation. Thus, a difference exists within action without jurisdiction and action
within jurisdiction. The Compensation Commission committed an error of jurisdiction by
deciding whether a company is entitled of compensation or not. The law developed was that-
conclusive or finality clause, even in England, where parliament is supreme, cannot be
applicable if there is an error of jurisdiction on part of the administrative authority.

What we now follow is Anisminic Doctrine- finality clause bars the jurisdiction of court
only in cases where the action of administrative authority is within jurisdiciton.

In India-

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We have a different constitutional structuration. We have a constitution which is the

fundamental law of the country and SC can exercise the power of judicial review, which is
not expressly given in the constitution but impliedly appears from the constitution because-

 No constituion which is democratic, based on division of power between centre and

states, federal in character, cannot function without the power of judicial review of the
SC.

 Article 153(3) specifically lays down that if before SC there is a constitutional matter
of interpretation, then it will be decided by the Constitution Bench of 5 judges. This
clause gives us the idea that judicial review is there in Indian Constitution.

 Judicial review is the basic structure and cannot be taken away even by amending the
constitution.

In India, finality clauses can be of two types-

1. Statutory finality- civil courts can decide the question of legality or not about a
public action, but they cannot decide the constitutional validity of a particular action.
This can be decided only by HCs and SC. Section 170 of Representations of People
Act, 1951, says that action of the Returning Officer shall not be challenged in any
civil court. This is a finality clause. It is valid because civil court jurisdiction can be
regulated by legislature. So, if there is a finality clause in law against civil court, that
finality is final and cannot be challenged in any civil court. However, the action can
still be challenged in HCs and SC since constitutionality can be decided.

2. Constitutional finality- it is absolutely not valid. We can say the decision of

administrative authority shall be final but it doesn’t mean anything because-

 Right to approach the court for the violation of FR is itself a FR under Article 32.
therefore, courts have also interpreted that judicial review of administrative actions is
basic feature of the constituion and cannot be taken away by any amendment.

So if the government wants to take it (power of judicial review of administrative action)

away, what can it do? Amending process is under the jurisdiciton of the court as per the
Indian Constitution. So, only alternative seems to be to write a new constitution. But this
cannot happen unless a non-constitutional process, that is, general consensus of the people
and all the people should vote on it and if they by majority say that a new constituion can be
written, then a new constituent assembly may be created, the process of framing a new
constitution may start. So, finality clause shall not be barred from judicial review by the SC
and the HCs.

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Therefore, Anisminic Doctrine will not be prevalent in India.

In its earlier decisions, the court said that if the parliament says that the decision of
administrative authority shall be final and conclusive, the court will not say anything- Orient
Weaving Mills v. UOI, 1963- court said that they would follow the Lockwood Doctrine.

State of Kerala v. Abdulla & Co. 1965, Justice Sikri gave the judgement. The provision was
that rules and regu by admin authority shall be deemed as if enacted in the act itself. The
court held that these words do not bar the jurisdiction of the court. Therefore, Indian courts
came to the Yaffe Doctrine.

Assistant Collector Central Excise v. RK Rai- finally accepted Yaffe Doctrine that if the
rules and regulations violate the act, ouster clause shall not oust the jurisdiction of the court.
If there is an error of jurisdiction, then the court says that they can interfere but they will
exercise self-restraint.

Hinsa Virodhak Sangh v. Mirzapur Municipal Corporation, 2008, the municipal

corporation in exercise of its law making power made a rule that all slaughter houses shall
remain close for 9 days during Jain festival. It was laid down that this rule shall become the
part of the Act itself. The question was whether the court has jurisdiction and whether this
restriction of 9 days is violative of Article 19(1)(g)? Court said yes but they would exercise
self-restraint and would not declare the rule to be unconstitutional as restriction was only for
9 days and a harmonious construction has to be applied in the case.

14th September, 2022

Control mechanism of administrative action-

1. Rule making action

2. Adjudicatory action

3. Administrative action

We have discussed how rule making action can be controlled. Now, we will study about how
to control other actions-

Various modes of control and review of administrative action are there-

1. Constitutional mode of judicial review of admin action

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How the judiciary controls the admin action- for example if you want to challenge an admin
action where your FR are violated by the admin action, you can either go to HC or SC. If HC
gives decision, you cannot go to SC for same matter due to the applicability of res judicata
doctrine, it can only be appealed against under article 136. HC can be approached for- FR
violation or for any other purpose, and we approach SC for violation of FR only.

Article 32, article 136, 226, 227 (high court's jurisdiction of superintendence over all judicial
matters), 143 (advisory jurisdiciton), 141 (law declared by SC shall be binding throughout the
territory of India), 142 (complete justice)- we can go under these article to SC and HC to
exercise their constitutional jurisdiciton.

What are the modes available to avail writs?

We can file

1) regular writs,

2) PIL

3) suo moto cognisance by SC

4) curative petitions- suppose SC gave a decision in which there is a flaw, previously this
could be challenged through another write but now SC says that curative petitions can be
filed, for example- case before SC against government officers and SC had given a decision
to impose liability. Suppose out of those officers, one officer was not heard- there is a
violation of principles of natural justice, then you can file a curative petition. Curative
petition comes when SC has given a decison to impose liability on certain person, review
petition can be filed when there is an interpretative problem, for example, a case is going in
SC relating to UCC and SC passes an order that there should be a UCC and issues orders tot
he government that within 6 months, government should prepare UCC and implement it. In
this case, you can file a review petition. But if a person has been put under a certain liablity
having legal flaw, then you go for curative petition.

2. Non-constitutional mode of control

The civil courts and the criminal courts- these are statutory mechanisms but not
constitutional and they can control the administrative action and give binding decisions
but they cannot review the law or decide the constitutionality of any law. What the SC
can give you through writs, the same relief can be given by civil courts also through law.
For example, you can ask a civil court for specific performance by government, civil
courts can also give us injunctions (not always negative). Civil courts can also grant us

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damages, compensation, declaratory actions, so, they can do all the things except deciding
the constitutionality of law. They can only decide legality of law.

Tribunals- the legislature has power to appoint tribunals under article 323A and 323B.
323A- service tribunal was established first and then power was given to establish
tribunal in any area they deem fit and proper. We can go to tribunals for vindication of
our rights by admin. There may be a tribunal in various other organs like tribunals in the
area of tax (sales tax, income tax), Green Tribunal etc. And their decisions are judicial
decisions hence, binding. We also have domestic tribunals, which is constituted by
authorities, generally by private authorities, to decide disputes within their own members.
For example, the Clubs have their own tribunals called Domestic Tribunals. The
legislature may also appoint Special Tribunals like SC and ST Prevention of Atrocities
Court, Consumer Courts.

3. Non-binding control of admin decisions- recommendatory measures. Like Human

Rights Commission established under Human Rights Protection Act, 1993. these
Commissions, though statutory, do not give binding decisions. They are only
recommendatory. Commission's recommendations are generally accepted by the
government. Statutory Commissions like Women Commission, SC and ST
Commission that give non-binding decisions.

4. Ombudsman- once thought of to be great mechanism to control admin action in a

both preventive and curative manner, but now it has lost its significance. In India, we
have Lokpal at the centre and some states have appointed Lokayukta.

5. Informal mode of control and review of admin action- example-

 mass media (print or electronic) plays a very important role in controlling admin
action or even pre-empting a wrong admin action.

 Interest group representations (unions), for example, Labour Union played an

important role in preventing exploitation of labour.

 Civil society in which we include NGOs. It also plays a very important role in pre-
empting wrong admin action and they sometimes, by their pressure, give you the
relief (nationally and internationally). Example- Transparency International to prevent
corruption.

 Elected representatives in a democracy are supposed to give us relief against the

governmental action when our interests are being hampered. Unfortunately in India

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because of two main reasons - 1) if a person is your representative once and if he does
not perform well, he may not be your elected representative the second time as he can
even change the constituency, 2) once you have elected your representative, you have
no control over it as you do not have a power to recall. In America, you have a power
to recall and elected representatives are the most effective manner of control.

 Select committees of the Parliament- they will give informal help by bringing in your
cause while submitting report to parliament or state legislatures.

 Informal mode of judicial review and control- law schools- any matter that is
controversial is debated, researched and articulated in law schools and this has power
in changing SC's opinion on a particular issue. So, law schools also represent opinion
of people on legal matters and through their debates and writings, the impact is there
on the government and plays an important role in controlling the admin action.

Judicial control or judicial review of admin action

Judicial review is basically supervisory in the sense that court only tries to enforce
constitutional limits on the administration. Therefore, the judicial review is a review and not
an appeal, review is always restrictive in law. This exercise is inherent in the constitution and
does not require legislative authorisation. The SC may decide the validity of the law,
constitutionality of the law and give us enforceable and lawful remedies. It is confined to
writs and with writs, they can give us quick relief against admin action.

There is also an appeal system under civil and constitutional law (136 article). Appeal is
wider than review, it is not restrictive to decide only the legality and constitutionality of law.
It not only takes care of the question of law but also the question of facts and they can do
wide scrutiny than the review. They can decide whether the action is right or wrong
according to law and therefore, judicial control can be exercised through either review or
appeal. SC and HC can decide on the constitutionality of law, whereas other lower civil and
commercial courts can decide on the validity of the law.

16th September, 2022

Review is confined to writs, they decide constitutionality and legality and they do not go into
the question of facts. Review is supervisory and inherent in courts under articles 32, 226 and
do not require any legislation apart from that. The law of judicial review is judge induced and
judge made. Therefore, it is difficult area which is covered with inconsistencies because

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judges change their positions often. However, if you review the whole spectrum, there are
certain trends that the judges follow and judges have created certain rules by which they
review admin action of admin authority-

1. Judges have developed the concept of ROL. They see whether the admin action being
challenged violates ROL or not, which means, fairness, justness, reasonableness and
accountability.

2. SOP- it is a judge made doctrine for judicial review. Consti never says that rules and
regulations can be challenged on the grounds of SOP but it is a judge made innovation
that rules and regu can be challenged on the grounds of SOP.

3. Courts have developed principles that admin action must be people centric, meaning
thereby, it must protect rights of people and must fulfil public function. If the admin
action violates FR or does not show a public purpose, the courts will quash the admin
action. In many a situation, the court does not substitute its own judgement with the
judgement of the admin authority. Essar Oil Ltd. v. Haldhar Utkrisht Samiti, question
was that the pipeline had to be laid for oil distribution and the pipeline was to go
through a zoo. Some Samiti or organisation challenged it on the ground that to take
the pipeline, and to dig the earth, it will be a cruelty to animals and therefore, pipeline
should not be laid through the zoo. The experts said that there was no substitute for it
and no other line was there. In this case, the court said that it was a technical matter
and they would not interfere, the pipeline will be laid down as per govt's decision. ND
Tayal v. UOI, 2004, Tehri Dam was to be constructed and the expert report was that
there is no seismic problem and therefore, the dam would be safe there. But people
contended that the area was within seismic disturbance and therefore, the dam would
not be safe. The court exercised self-restraint and said that they could not go into the
question of rightness and wrongness as they needed to accept the reports of the
experts as it was a technical matter.

Where there is a matter of discretion, for example, how police controls law and order, the
courts go by the satisfaction of the police unless strong evidences are shown. So courts
generally exercise self-restraint in expert matters, law and order problems and allocation of
resources, for example, budget is prepared by legislation and you challenge the allocation,
here, the court will exercise self-restraint. Similarly in defence matters, foreign affairs
matters, the court exercises self-restraint and do not interfere in admin actions. Similarly
when govt grants honours to people, appointment of ministers by CM- these are political
matters, hence courts will exercise self-restraint. However, in the appointment of a public
service commission, the court will interfere. Similarly, if there is a policy matter, the court
will not interfere, for example, Heera Tikku v. Union Territory of Chandigarh, 2004, the govt
made a plan for development of industries, they identified industrial plots and they auctioned
those plots. Contracts were signed, amounts were paid but later some body brought to court's
notice in PIL that the plots were in contravention of the Forest Act and the Aircraft Act. The
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court said that it was a policy matter so, they would exercise self-restraint even when the full
payment was made. In the same manner in another case reserving jobs in govt, the court said
that it was a matter of policy unless the policy is such which is arbitrary, unreasonable and
violates consti provisions, the courts will exercise self-restraint. In the same manner, the court
said that when it is a decision of the highest constitutional functionary, the court will exercise
self-restraint. In this case- Kalidas Batish v. UOI, 2006, the decision of the collegium of the
SC was challenged. One judge said that because of certain reasons, his case was not
considered by the collegium and there was a bias in that. The court said that there is a
presumption of constitutionality and legality of the action taken by the highest constitutional
functionary and therefore the court will not interfere. However, to presume that the CJ cannot
mismanagement things is being incorrect. The court also says that if there is an area where
admin action is being challenged, judicially manageable standards do not exist, then the court
will exercise self-restraint. For example, in the case of exercise of discretion by admin
authority, the court will generally not interfere if admin action is able to explain the criteria
for such a decision. So, in policy matters and matters where judicially manageable standards
do not exist, the courts will exercise self-restraint. However, it is to note that self restraint
does not mean lack of power, therefore, courts can always interfere to infuse a sense of sanity
and ethics in admin.

On what specific grounds the court will quash an admin action? (CCSU Rules by Lord
Diplock)

 Illegality

 Irrationality

 Procedural impropriety

 Disproportionality

These four categories were developed by Lord Diplock in the case of Council of Civil
Services Union v. Minister of Civil Services, 1985. in this case, a law was passed by the
minister and he made rule and regu by which unions were completely banned in two areas-
areas of communication and defence and already existing unions were derecognised. This
was done because law/parent act said that there will be no union in these two areas. This was
challenged by the unions on the ground that there is a long practice that whenever the terms
and condition of the unions are changed, the unions were given notice and hearing, however,
in this case no notice and hearing was given to the unions and unilaterally all the unions were
derecognised and their activities were banned, hence a violation of principles of natural
justice. Lord Diplock gave the decision, quashed the order on the ground that the unions
should have been heard and as there is a long tradition to consult the unions on changing the
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union laws and he laid down these four grounds to challenge and quash and challenge an
admin action.

What is illegality?

Illegality is that admin authority must act within the framework of law and the constitution.
They must correctly understand the law and the limits of constitution prior to taking an
action. Any action beyond the requirements of law or parent act or the constitution, it will be
a case of illegality. Illegality may arise in various shapes- for example-

1. Authority lacks jurisdiction-

 The authority is not properly constituted according to the law and if it is not properly
constituted, then all its actions shall be illegal on the grounds of lack of jurisdiction.
For example, the law lays down that admin council of uni must be constituted in a
particular manner but is is not constituted in that manner, then that action taken by
such a council will be illegal.

 Error of jurisdiciton- you are doubtful whether you have or do not have jurisdiction as
per the facts. So, if there is an error in assuming jurisdiciton, like- 1) that you have
wrongly decided jurisdictional facts and assumed jurisdiction, then it is something
which is lack of jurisdiciton, for example, law said collector can allot a shop to any
person if the shop is lying vacant for last three years. Jurisdictional facts are- place
must be a shop and it must be lying vacant for last three years. If the collector
wrongly decided on these jurisdictional facts, an error of jurisdiction would be
committed by him and the court would interfere on the ground of lack of jurisdiciton.
2) authority incompetent to exercise jurisdiciton wrt to certain locality or certain
category of people, for example, admin authority can make rules and regu only for
urban area but you made them applicable in rural areas also, then there is an error of
jurisdiction. So, any wrong decision wrt to subject matter, it will be a case of lack of
jurisdiction. 3) where the law under which admin authroty takes action is itself
unconstitutional. For example, the uni act is itself unconstitutional then all the actions
taken by admin authroty shall be without jurisdiciton. 4) where preliminary essentials
have been disregarded, for example there is a violation of the principles of natural
justice, you have no jurisdiciton and shall be considered to be an error of jurisdiction.)
where the authroty has exceeded the jurisdiction, for example, the VC has power to
exercise disciplinary authority on teachers of the college and the uni has now
dismissed the principal, here, uni has exceeded its powers and it will be without
jurisdiciton and therefore, the court will quash it.

2. Failure to exercise jurisdiction-

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 Sub-delegated power to another authority without authorisation

 You are acting under dictation of somebody else

 You have not applied your mind to the decision that you are taking, for example, in
Preventive Detention case there is a Preventive Detention Law in which 8 grounds are
given under which the government can preventively detain a person. Against a person,
a detention order was passed, question arose did that person apply his mind by laying
down all the 8 grounds? Court held that mind not applied. Similarly, a person was in
jail but, his application of bail was to be decided. The govt never wanted that person
to come out of jail as he was a threat to peace so the police issued an order that that
person shall be preventively detained on the ground that his presence in that area may
lead to breach of peace. It was brought to the notice of the court that the order passed
by the police was without application of mind as police did not care to know whether
the bail was already rejected or accepted. The bail had been rejected already, so the
court held that the person made no enquiries and in a mechanical manner passed the
order.

 Declining jurisdiction- if you have been given the power to exercise action, you have
no option, you have to apply jurisdiction. Every public officer or authority is the
trustee of the power that law has given to that person and he must exercise that power
in the best possible manner for the benefit of the person and society. For example, the
university has the power that if any action of the executive council is violating any
right f the individual, he has a right to appeal to the chief justice or governor. But the
matter should be referred at the request of the individual to the chancellor, if
university refuses to refer the matter, it is declining jurisdiction. If the governor says
that he will not hear, it will be declining jurisdcition.

 Fettering discretion is prohibited but hedging discretion is necessary. The discretion

cannot be fettered by self-made rules of the admin authority. For example, in the case
decided by Privy Council, government gave power to municipal corporation that they
can give license to carriages driven by horses. They had to see whether that carriage
was road worthy or not. Municipal corporation made a rule that they would not give
any license to any carriage unless it was of a particular design. As a result, municipal
corporation had circumscribed or fettered its discretion and court said that it was not
allowed. The power given must be exercised in the same manner, no self-made rules
to circumscribe discretion can be made. In another case, the law was that
commissioner of police can promote any constable who has put in six years of service
as a sub-inspector, so he has a discretion on the basis of suitability, service records.
The police made certain rules and they said that they would not promote any person
who had not put in at least 4 years of service. As a result, the police had
circumscribed its discretion and hence, not allowed.

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However, if the discretion is very wide and you have to hedge that discretion so that it can be
properly and rationally exercised. For example, a law passed by the legislature states that
university can grant a scholarship to any sports person. The discretion is that the person
should be a sports person. Many applications were there and there were some persons who
had played in their school team, while some had played in their college or university teams
and there were many students who had played at state and national levels. Now, scholarship
has to be given to a sports person and therefore, the university gave scholarship to a person
who had played inter-university matches instead of a person who had played nationals. It was
challenged on the ground that very wide discretion was given and as a result that result is
fine. However, the court would say that if you have a wide discretionary power, hedge the
power or make it concrete. Like you can say that first preference would be given to those who
have played nationals, then to those who have played at state level- like this the discretion
can be hedged and admin power can be exercised more rationally and more fairly.

3. Abuse of jurisdiciton

When admin authority while exercising power has abused jurisdiciton? Abusing of
jurisdiciton means-

1. When action is being taken on irrelevant considerations, for example, government has
passed a law and the law is that govt can grant any managing agency power to any
person to manage the industry by taking into consideration his present conduct. So,
now, there was one managing agent of Dalmia Jain Co. And they applied for renewal
of their license. Now, for granting or refusing license, as per law, the authority was
under obligation to take into consideration his present conduct as a managing agent
and on that basis the license was to be granted. In this case, however, the govt took
into consideration not only his present conduct but also his past conduct. In past, the
managing agent had certain charges of fraud against him and an enquiry committee
had given adverse report against him and that person was denied license. He
challenged this in courts. The court held that yes, any action taken by the admin
authority if taken on irrelevant considerations not warranted by law, then such action
is invalid.

2. Leaving out relevant considerations from consideration, for example, managing agent
license- law says that license can be granted by taking into consideration the present
and past conduct if the managing agent. The past conduct was bad but present conduct
was good. In this case, the govt only took into consideration the present conduct and
not the past conduct and granted license. The courts said that it was wring exercise of
jurisdiciton as they have left out an element that they should have taken into
consideration.

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3. Admin action if taken for improper purpose/ colourable action, then it can be
challenged in the court of law. For example, in one case a person who was the
wholesaler in kerosene oil was arrested by the police. The person tried to prove before
the court that he was arrested and his license was cancelled because the person who
issued this arrest order, his near relative was that kerosene oil's person rival.
Therefore, the power was exercised to benefit the near relative. The court quashed the
admin order as the power was exercised for an improper or an ulterior purpose of
eliminating a competitor to benefit your relative.

4. Admin action is mala fide, meaning thereby, exercising power in bad faith and
dishonestly. For example, you passed an order to preventively arrest a dealer who was
a wholesale dealer in kerosene oil. But in fact, you arrested that person because your
relative was also in that kerosene trade.

19th September, 2022

Illegality is composed of three components-

1. Lack of jurisdiction

2. Failure to exercise jurisdcition

3. Abuse of jurisdiction

In all these situations, the exercise of jurisdiction shall be illegal.

What is irrationality?

It shares a common space with unreasonableness and arbitrariness. Anything that is

unreasonable and arbitrary, will be irrational. Your action is such that no sensible person on
those facts and circumstances can come to that particular conclusion to which you have
come. What is irrational? The test to determine irrationality is Wednesbury Test of
Irrationality given in Association of Provincial Picture Houses v. Wednesbury Corporation.
In this case, law had required that no cinema house shall be open on Sunday but later on,
people demanded for cinemas to be open on Sundays. Therefore, the power was given to the
municipal corporation to frame rules and regu so that picture houses can be open on Sunday.
Wednesbury Municipal Corporation laid down certain rules and said that cinemas shall
remain open on Sundays however, no person below the age of 15 years will be allowed inside
the cinemas. In this case, this was challenged before the court because law said that even if he
is accompanied by a guardian, that person below 15 years will not be allowed. The provision
was challenged on the grounds of irrationality. It was a case of validity of delegated
legislation and court came to the conclusion that test is- give that rule to a man of ordinary

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intelligence and prudence and ask what he thinks about the rule and after reading that rule, he
comes to a conclusion that something wrong is happening, the rule doesn't seem to be very
rational, then you can say that the rule is unreasonable. If the action of the admin authority is
so outrageous and in defines of logic and every standard of morality that no person of
ordinary intelligence and prudence can come tot hat conclusion, then that action is said to be
unreasonable.

In the same manner, the court also laid down that if the decision of the admin authority is
based on extraneous considerations, that is, considerations which are not warranted by law,
for example, an admin action is taken by an officer against a person, not for any substantial
reason but just because that person belongs to a minority community, then that action is based
on extraneous considerations, or that action is contrary to law and procedure or that action is
in bad faith and not bona fide, the court will not go into details if it is easily available from
the facts of the case, then that action can be quashed. The court will not generally substitute
its judgement from the judgement of the admin authroty unless anything contrary appears on
the facts on record.

In Irrationality- courts do not go for strict scrutiny but for secondary scrutiny based on the
idea of an ordinary person. For example, LIC
made an advertisement for certain jobs and said that if women are applying for the job then
they must state their marital status and they have to state whether they are pregnant or not
along with the duration of pregnancy. The court held that on the face of it, it appears to be
outrageous and in defines of logic.

What is procedural impropriety?

It means that if the procedure followed in taking that admin action is improper, the action can
be quashed. From where does this procedure comes? In India, we do not have a separate
procedure for admin authority but in England and America, they have coded procedures.
Therefore, in India, we have a bewildering variety of admin procedures- sometimes the
procedure is laid down in the act itself under which the admin authority is appointed,
sometimes the admin authorities are left free to develop their own procedures, like Law
Commissions are given power to develop their own procedure, sometimes it is stated that
admin authority will follow the procedure followed by civil courts in India and sometimes,
nothing is laid down, then in this case, principles of natural justice need to be followed. And
if these procedures are not followed, it is procedural impropriety. 80% cases relate to
procedural impropriety.

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Proportionality- you can challenge the admin action on the grounds that it lacks
proportionality. What common law countries try to achieve through the principles of natural
justice, the civil law countries achieve through proportionality. Proportionality means- the
end that is being achieved must be legitimate and within your power given to you by law, the
end must be legal and constitutional also. When end has been decided, you decide on the
means you want to adopt to achieve that end, so, the court will see on what basis have you
selected the means, whether those means are legitimate, legal and fair, reasonable and just
and is least burdensome. The court will then see the proportionality- the relationship between
the ends and means, least burdensome means to achieve the end. It is better doctrine to
achieve procedural propriety, Indian courts say that instead of natural justice, that is
undefined and vague, proportionality is defined and concrete.

20th September, 2022

4. PRINCIPLES OF NATURAL JUSTICE
Derivate of natural law is the natural rights of man. They are called natural justice, some also
call it due process or the ROL. So, what is this natural law?

Natural justice, so far as the definition is concerned, these are ethicolegal (morality + law)
principles based on the inherent, natural sense of man of what is right and what is wrong
developed by judges to bring in an element of fairness in the administration. Right from the
dawn of civilisation, there was one serious problem that people faced- misuse of power by the
state and this problem is being faced even now. How to protect rights against violation by
state and in this direction, constitutional democracy is perhaps that last pillar that when
people govern themselves wither through direct participation or through their elected
representatives, there will be an end to misuse of power by the state. But from our
experience, we know that even in a democratic system, there is a lot of violation of the rights
of the people. Lot of arbitrary actions and exploitation continues.

How to control the exercise of arbitrary power by the people?

First attempt was made by the ancient philosophers, also known as stoic philosophers in
around 300BC. They derived the protection from nature and said that all things in the nature
are immutable, rational and based on certain principles. Therefore, if we can know those
principles and use them in the governance, then we can protect ourselves against the misuse
of power by the state. In nature, it is based on the principle of freedom, equality, universal
fairness and inherent rationality.

So, therefore, if we develop our system of law on these principles, then we can protect
ourselves against the misuse of power by the state and from this, we have developed the
concept of natural rights of man, that nature has given certain rights to man like freedom,
equality and dignity and therefore, no positive law can take it away. These principles of

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nature can be known to the people through the exercise of right reason. These principles are
universal and rational and therefore, they can moderate the positive law.

During medieval times, we saw the rise of religion, which was thought can provide a check
on the misuse of power by the state. In this particular age, the natural law was identified
with God. Therefore, the main exponent of this philosophy was Thomas Aquinas (1225-
1274). He said that God represents everything that is fair, reasonable and just and therefore,
law must be interpreted according to humanistic principles of God. He referred the
humanistic principles of law to humanised law and to the concept of God. These principles
of God must be used to fill the law.

During this period, a philosopher known as Sophocles wrote a novel titled “Antigone”.
American jurisdiction says that this novel is the basis of their concept of human rights. The
novel says that there is a kingdom Thaves and there is a king of Thaves, having two sons and
one daughter named “Antigone”. After king dies, there is a fight for the throne and the
conflict was between the brother of the king and king’s sons as to who should inherit the
throne. This led to a war- two armies.

Sophocles was the eldest son and in that war, unfortunately, the brother of the king won
and two sons lost. After the sons lost the war, the king passed a law [the command of the
sovereign is the law] that Sophocles should be caught, killed and his body be thrown on the
street to be eaten by dogs and vultures. Another decree was passed that anybody who tried to
give burial to his body shall be considered as a traitor and shall be killed. Now, Sophocles
was arrested, killed and his body was thrown on the streets and no body dared to bury the
body.

The first exercise of reason and courage came not from men but from a woman and Antigone
reasoned to herself that the law of the King is not reasonable, fair and just as it violates
the law of Gods. The divine justice says that no matter how wrong, vicious a person may be,
but after death, everybody is entitled to a decent burial. If it is the law of Gods, no law of
any human being can violate it. She went and buried the body of her brother. The news
reached the King and she was called to the court and was asked whether she knew the law,
she said yes, she knew and she said that the law was against the law of Gods that after death,
everybody is entitled to a decent burial and that higher law should prevail over the law of
the king. The whole concept of natural law as the law of God had taken birth and the purpose
was to humanise the law passed by the government.

Thus, the purpose of the natural law is to fill in the gaps in positive law and to humanise
positive law by bringing in the concepts of justice, fairness and reasonableness and this
became a powerful tool in the hands of people to protect themselves against the misuse of
power by the state. It was thought that these natural principles ae such that cannot be violated
by any positive law- whole set of principles were developed by courts and therefore, the

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principles of natural law are undefined, uncertain and may vary from context to context but
their purpose of to fill the positive law and make it fair, reasonable and just.

From natural law, we developed the concept of natural rights of man also called
fundamental rights and fair procedure, which we call principles of natural justice.
Americans also call it due process of law, civil law countries call it rule of proportionality.
Rules of natural justice are also called equity law so that people can protect themselves aginst
the misuse of power by the state through those particular rules. These rules allow people to
confront the absolutism of the state and thereby protect their natural rights. Britishers call it
natural justice or common law of England. In India, we call it the Law of Dharma
(virtuous conduct by every person).

Modern man doubt how nature can lay down certain rules and they also doubted on the
existence of God, therefore, how can those rights come that protect them from absolutism.
Therefore, modern men say that these principles do not come from nature of God, they
are inherent in the individual himself because he is human. Therefore, no government has
a right to override them and they bind every government and administration. They are based
on natural sense of the human being of what is right and what is wrong.

This is how natural law developed parallel to positive law. Positive law was developed by
the states whereas natural law was developed by the courts and therefore, has become a
separate branch of discipline.

 Characteristics of natural justice

1. They are ethicolegal principles developed by courts to mitigate the harshness of the
positive law. The history of natural law is as old as the history of injustice.

2. Because the whole body of natural law is a judge made law (judge induced and judge
led). Therefore, it is highly vague, complex and ambiguous. Sometimes their
practicality is doubted but its necessity and practicality cannot be overemphasised
because of the absolutism of the present state governance. Therefore, no matter how
uncertain, vague and contextual it is, its importance and significance cannot be
impeached.

3. What spirituality is to religion, natural justice is to law. It gives a touch of fairness

to every state action and makes every justice a substantive and fair justice.

4. It is a flexible concept, highly contextual and not a rigid, ritualistic and

sophisticated abstraction. It is highly pragmatic. Some writers say that it is not a
bull in China shop or a bee in one’s bonnet. Aatural justice is not a concept of this
nature, no matter its vagueness.
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5. It depends on nature of the action of the administrative authorities, nature of the

rights affected, the policy of law and other different facets and circumstances.

6. Natural justice is different from the law of the nature. Law of the nature is
survival of the fittest, strong will always prevail over the weak. Natural law is
different, because of this law, weak can prevail over the strong. Survival of the fittest
is not the basis of natural law but fairness, reasonableness and justness is the basis of
the natural justice.

7. The natural justice aims at individualisation of justice.

21st September, 2022

The PNJ developed not to destroy law but to fill in where law is deficient. Therefore, where
it is impractical to give notice, notice may not be given. Secondly, where the security of the
state is involved and President of India has decided security matters, then there also PNJ shall
not prevail. In case of conflict between the two, law shall prevail. In England, they were once
called the principles of equity. Equity and law were two branches of law. Later on, they
were mixed together. Equity has not been developed to destroy law but to fill in where the
law is silent. There, the PNJ shall prevail.

In the same manner, where fundamental rights are concerned, there, PNJ cannot be excluded.
Where reasonableness has to be decided, then PNJ is necessary.

Where can PNJ be excluded?

In certain situations, it can be waived. For example, there is an express provision in the law
that in certain cases, where impracticability is there and where no injustice has been caused
to the person, the court may allow waiving of PNJ. One important thing is that principles of
natural justice can be excluded by law. For example, Article 311 excludes the hearing in
two cases:

1. When it is impracticable to give notice and hearing

2. When it is a case of security of state and the matter has been decided by the President

For example, in case of war, emergency, terrorism- these are the situations where the option
of reasonable hearing can be waived.

- PNJ can be excluded where it will result in system failure. Where the situation is such
that if you give notice and hearing, then whole system will collapse. In that particular case of
system failure, notice and hearing may not be given.
For example, under the Police Act, there is a provision that in every police station, a register
is maintained in which the names of the bad charactered people in that particular area are
secretly entered. Then, police keeps a special vigil on them. If a person’s name is included by

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the police in the register and police is keeping watch, because of the watch, he knows my
name is there. He challenges on the ground that before you enter my name in the register,
why did you not give me any notice and hearing?
In this case, the police said that had we given notice and hearing, the whole system would
have collapsed because a person knows that police is keeping a watch on me and he would
be alert all the time. So, police cannot find him in a natural state. No matter whether there is a
violation of right to privacy, where wider public interest is involved, then in that particular
case, the principles of natural justice cannot be adhered to.

- PNJ can be excluded where the action is preventive. Otherwise, system will not work.
For example, where emergency situation is there in Maneka Gandhi case. She was to appear
before the Shah Commission (appointed after the emergency of 1975). She was to appear
before the Commission. Government was apprehensive that if she knows she has to appear,
she may go out of the country. Therefore, her passport was impounded. But court says that
when emergency is over, then give the person the benefit of natural justice which is called
post decisional hearing. Now at least tell her that what the reasons were for impounding
passport. Therefore, where a person is to be taken under custody under preventive detention
law, no notice given. If they do it, the person may not be available. After you have arrested
the person, then tell him the reason.

Where can PNJ not be excluded?

- Where fundamental rights are concerned, there, PNJ cannot be excluded. Where
reasonableness has to be decided, then PNJ is necessary.
- PNJ cannot be excluded where the person suffers civil consequences. So, where you are
suffering a violation of your right or property or even a legitimate expectation which has civil
consequence, in that particular case, the PNJ cannot be excluded.
For example, you have purchased a flat from the government and before those flats, there is a
green belt and that green belt is the real charm of living in those particular flats and because
of that, you purchased the flat. Later on, government decided to build another building there.
Later on, what will happen is your legitimate expectation will be violated and you will suffer
a civil consequence i.e., the value of the flat will go down. PNJ cannot be excluded.

- In criminal justice system, PNJ can never be excluded. Where the application of criminal
law is concerned, no person can be punished without the due process of law. Due process of
law is the PNJ. Otherwise, the process is not due. When the Constitution was written, the
process was not due process, it was procedure established by law.
PNJ of fair hearing cannot be waived in case of criminal adjudication. There, it is
something inherent and cannot be waived. Even if you say before the judge that you have
committed murder, law says that even then, fair hearing is necessary. Even in the case of
confession, the person may be given notice and hearing, and police must prove the case
beyond reasonable doubt.

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Thereafter, we come to the little historical background of how the system has developed.
What we call natural justice, the British in the beginning called it equity. Equity means fair or
reasonableness. The first Charter of human liberty, where the PNJ were recognised and
applied is said to be Magna Carta (1215). In England, there was monarchy i.e., King had the
absolute power. He had the power to pass law, decide cases and execute decisions. All
powers into one. What was happening was that there was a lot of exploitation. Innocent were
being prosecuted. The King exercised the power in an autocratic manner.

So, an agitation started that this system should change. Thereafter, a treaty was signed
between the Parliament and King John. It was a peace treaty and in that, the first Charter of
Human Rights was got and the application of the PNJ. 1215- v old charter.

What was in the charter?

1) First, there shall not be any unusual and cruel punishment for any crime because in
those days, if a person is guilty of theft, hands could be chopped. So, they say unusual
and cruel punishments should not be there.

In American Constitution, there is a ban on cruel and unusual punishment. In our

system, it is prohibited under due process of law. So, you cannot chop off the hands of
a person because he has committed a theft.

2) Trial by jury- King acted in an autocratic manner, If another person is appointed, he

may also act in an autocratic manner. Therefore, trial must be by jury. That means
with the assistance of the honourable members of that particular place. Jury trials are
still prevalent in England. The honourable or respected persons of the place where the
crime has been committed were invited to join. They hear the evidence, arguments of
the lawyers. Question of fact is decided i.e., whether theft has been committed or not.
ONce it is decided, the question of law will be decided. When the British came to
India, they tried to introduce a jury system in India also. But it was abolished due to
certain social systems.
3) Justice must not be sold or unnecessarily delayed. Because sometimes, in the
monarchy, justice would be sold.
4) Judge must be an independent and fair person. He must not have an interest in the
subject matter or the party. Therefore, an independent person must try the case. They
must do things like locate, investigate and then, give decision. Locate means ask the
person “Have you committed a crime?” then only proceed further. If he says I have
not committed, then proceed. If he admits, matter ends. In modern times, judge may
ask the police to prove the case beyond reasonable doubt.

Therefore, this treaty is considered to be first document of human rights and natural justice.

23rd September, 2022

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Natural justice principle- fairness, reasonableness and justice- are as old as the
existence of injustice and so therefore, highly changing and highly flexible. But for the
last few centuries, only two principles of natural justice are applicable-
1. Audi alteram partem (right to fair hearing)
2. Nemo judex in causa sua (right against bias)-

Earliest struggle of the people for following fairness in criminal law resulted in Magna Carta.

1. Right to fair hearing

This simply means that before you deprive a person of his rights and legitimate expectations,
he must be given notice and hearing. If law is silent on that point, then principles of natural
justice shall be superimposed. The first case that came up on this point is known as R v.
Chancellor of Cambridge University, Ex Parte Bentley, 1748.
Dr. Bentley had a PhD degree from University of Cambridge, once there was a seminar
presided over by the Chancellor. During that period, Dr. Bentley asked a few questions from
the Chancellor and the Chancellor thought that Bentley was trying to insult him publicly and
chancellor decided that he did not deserve the PhD degree and as a result, his degree was
cancelled. Bentley challenged this decision on the ground that there was a violation of the
principles of natural justice.
Judgement was given by Justice Fortescue and question was whether in this case Dr.
Bentley was to be given any notice and hearing because it was said on behalf of the
Chancellor that there was no reason for a hearing to be given. The court said that even if
you do not want to know anything new, and the person does not have anything new to tell
you, everybody knows everything, even then the principles of natural justice are attracted.
What a person has done has been seen by everybody and everybody knows about it, nobody
wants to know anything more and the person has nothing new to tell, even in this case, Dr.
Bentley shall be given natural justice. Natural fairness demands for Dr. Bentley to be asked
why he did what he did. What purpose would it serve? There will be no waste of time, it will
serve four purposes-
- It will promote the value of good administrative outcome, for example, if you see
something before your naked eyes, there might be something that you had missed.
Thus, it would improve value of admin decision.
- Admin has value of respect for the common man. State must treat everybody with
a certain level of decency and respect.
- It would impose ROL on admin.
- It will enforce the value of accountability on admin by enforcing that
uncontrolled public action may not be taken.

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In this case, the judge gave a very interesting story- the story of Adam and Eve, the theory of
creation of this world. He sent Adam to a beautiful garden already created and said Adam
would live there and could eat any fruit of any tree but not of a particular tree. Man is
essentially considered to be trustworthy, therefore, Adam quietly accepted. God used to talk
to him every night to know what he was doing on earth. God realised that he was lonely, so
God created Eve and sent her to the same garden. When she got to know that God prohibited
a particular tree, Eve reasoned to herself about why God prohibited. She quietly went and
picked up that fruit and ate it and gave it to Adam. God’s rule had been broken. In the
evening, God talked to them and asked then why they ate the fruit when law prohibited them.
Adam blamed Eve but God wanted to punish them. Before punishing, he gave Adam a fair
hearing. After hearing his explanation, God punished him and cursed him that they both had
to earn their own bread and nothing would be given as divine gift and both were banished
from the garden of Eden. This story tells a very important element of natural justice- no
matter you know everything, still you should give him a chance of fair hearing. No valid
criminal trial can take place unless that person is given an opportunity to be heard.
However, fair hearing can be excluded in certain cases where facts speak for themselves
whereas silence cannot exclude fair hearing- Cooper v. Wensworth.

Question arises that what fair hearing includes?

1. Notice- person against whom you are trying to take an action, civil or criminal, they
deprives him of his rights, he deserves a notice. Notice can be of two types- actual
notice and constructive notice (presumption of law).
2. The right to know the evidences against you on record before admin. Nothing can
be used against you by the admin which has not been brought to your notice and you
have been given an opportunity to explain,
3. Right to present the case- two means- in writing or oral, which is called as paper
hearing or face to face hearing respectively. Do you have a right to orality? Oral
hearing is not considered to be a part of natural justice, if you have been heard on
paper. Example, if a person involved is illiterate and the case against him is that of a
technical nature, then he cannot explain everything in writing. So this oral hearing is
contextual.
4. Right to rebut evidences- right of cross-examination and assistance of a lawyer.
Whether in admin proceedings, you have a right to cross-examine and a right to a
lawyer?
5. How to collect evidences- no evidence should be taken at the back of other party
doesn't mean that when you are collecting evidence, the other person must always be
present. This should not be taken literally but should be taken in the spirit that you can
take evidences against a person in any manner you like, that person need not be

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present, only requirement is that if you are using any evidence against a person, bring
that evidence to the notice of the person first.
6. One who decides must hear is a fundamental rule of justice. But in admin
decisions, one person hears and the other person decides- institutional decisions (one
who hears does not decide and vice versa). It also known as difficulty of divided
responsiiblity.

26th September, 2022

4.1. Components of Natural Justice
 Right to a Reasoned Decision or Right to a Speaking Order

When courts deliver judgements, they give reasoning for it. In this age of rationality,
everyone wants reason. Therefore, in administrative decisions where rights are infringed,
where you have suffered a civil consequence, there is always a question of whether the
administrative authority should also give reasons for their actions. Answer is yes, though
they cannot write judgements like law courts but at least their decision must be
accompanied by some reason.

Then, the question is should the report of the inquiring officer be shown?

So, for example, I am an inquiring officer, I gave you a hearing. I have made an inquiry into
some dispute and after inquiry, I prepared a report. I submitted the report to the VC and the
VC has not heard you, I heard you. After reading the report, she comes to a conclusion
regarding the decision in the particular case.

Can you say that before the VC took the final decision, the report should have been shown to
the person and he should have been given an opportunity to explain. The question is before
taking action, should the report be shown?

In the administrative area, the rule is before you take the plea, you have to show that what
prejudice you have suffered if the report was not shown to you.

 Right to a Convenient Forum

In one case, a government servant was suspended, he went back to his village and after a long
time, he receives a letter from the government, asking to present himself before an authority.
This place is very far off from his village, he had no money to travel and thus, he did not
know. The decision was taken against him. He took a plea by saying that it is not a
convenient forum for me because I am a poor person, I cannot travel. From this case, the
court developed this principle that everyone has the right to a convenient forum within a
reasonable time and distance.

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 Reconsideration of Adverse Administrative Decision by Administrative Appeal

or Judicial Review

In court, there is a whole system of appeal because to err is human; every human can commit
an error. The question is are you entitled to the same right to appeal before the administrative
authority?

Answer is you can always move to the law court against the decision of administrative
authority, but fairness demands that some appeal must be provided.

For example, the university law provides that if there is any adverse decision against any
member of the faculty or administrative staff, then he has a right to appeal before the
Chancellor. Fairness demands that at least some forum must be there, so that there will be
reconsideration.

These are some of the components.

1) Notice

Notice can be of two types:

i) Actual notice- when you know a fact- it was made known to you or you perceived that fact

ii) Constructive notice- it is a presumption of law- where you do not know a fact, but the
law will presume that you know the fact. This presumption arises when any person or
ordinary intelligence or prudence would make an inquiry and know the fact, but you are
deliberately avoiding inquiry. Law will assume that you know the fact.

For example, you are a tenant and are asked to vacate. The landlord files a case. No case can
be filed against you unless he gives you statutory notice. One day, you see a registered letter
from the landlord, and you immediately think it is notice. Unless you receive a statutory
notice, a suit cannot be filed. Therefore, you tell the postman that you will not receive it. This
refusal to know what is in that letter gives rise to a presumption that you knew the fact. If you
received a letter and refused it, it means that you know.

The notice must contain the summary of the charges against you. The summary must be
such that it gives you sufficient opportunity to put up effective defence, and the authority
before which you have to appear for hearing. Therefore, notice should be adequate, and not
merely a formality. Adequacy of notice is a justiciable issue. If you say that i was not given a
notice or the notice was not adequate, the court will see whether it gave you adequate
information to put up an effective defence.

Notice must always be in reference to a particular issue under consideration.

For example, a student has committed 2 mistakes at different times. In one case, he came late
and, in another case, he beat up another student. So, notice must give the full information
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with reference to which the charge is made. If you don’t give adequate notice, it is doing
him injustice. It must be in reference to the particular issue which is under consideration.

However, notice cannot be claimed as a matter of course. Meaning thereby, you already
know what the problem is i.e., you hit a person and there are charges against you. So, if the
university has not given you notice and called you for inquiry, then you cannot claim that I
did not know why you are calling me. Because the university on other occasions has also
called you for inquiry in that particular matter. Therefore, you cannot claim PNJ as a matter
of course; you have to tell what prejudice you have suffered.

Case: Keshava Mills v. Union of India (1973)

Kesava Mills was working very fine, hundreds of people were employed. Suddenly, there
was a difficulty that the textile mill had come on the verge of closure. Therefore, under the
Industrial Development and Regulation Act, inspectors were sent, and they had wide ranging
discussions with the owners of the mill, regarding why are you closing because so many
people will be left without jobs. During the discussions, financial difficulty came up. They
said we made various efforts to get loans and therefore, we had no option but to close down.

When the report was submitted, the government decided to take over the management of the
mill. This decision was challenged before the court on the ground that our mill was taken
over by the government but we were not given notice or hearing.

The court asked if the notice was not given to you, what else do you want to know? You
knew the reason since exhaustive discussions had taken place. Simply because we haven’t
given you notice, it cannot be claimed as a matter of course. You have to tell us what
prejudice you have suffered and there was nothing to say. From there, the SC decision in this
case that it was laid down that notice cannot be claimed as a matter of course.

Notice may be individual or collective. For example, if two or three persons are involved,
they may be given notice.

If you are avoiding notice, then the authority is free to go ahead with it.

Service of notice may be either in manner that is written in the law or any reasonable or
fair method. If a method is provided in the Act or rules or regulations, then it must be
followed. Not only form, but time also. If it states 3 months, it cannot be less than that.

Then, the question arises: can the notice be waived off?

Answer is yes, it can be waived without making any objection, you are participating in the
proceedings.

For example, if there are disciplinary proceedings and notice has not been given but if you
know that there is a meeting of the committee and voluntarily presented yourself, then you
have made suo motu representation.

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Another reason is that no harm or prejudice has been caused to you.

For example, you are appointed in government service for probation of one year. Probation is
work and conduct will be watched and if it is not satisfactory, then there is no right. Work
was observed and if administration thought that work was not satisfactory, without an inquiry
it can be terminated. You cannot say that you were not given notice and hearing. Argument is
you have no right to continue in service if probation has not ended.

27th September, 2022

2) Right to know the Evidence against you

The question is how to bring to notice those evidence which are on record? One important
principle is that if any mode or method given in the law, then that mode must be
followed.

For example, if the law says that the person must be given the attested copy, then it has to be
done. If the law is silent, then it will be the discretion of the authority. The authority may
not give you the copy but make a summary and give it to you. If summary is not correct, you
can challenge. They may ask you to inspect the file and you may be allowed to make notes of
the documents that are against you. Anything can be done.

If there is evidence against you, the most fundamental rule is that the administrative authority
cannot consider any evidence against you which is on record, unless they have brought that
evidence to your notice and you have been given an opportunity to rebut.

A famous case on this ground is Dakshawari Cotton Mills v. Commissioner of Income Tax
(1955).

In this case, the Commissioner was hearing an appeal from the decision of the Income Tax
Officer. During the hearing of the appeal, he needed certain more facts from the department.
He wrote to the department saying kindly make inquiry and give us information on certain
points. The department conducted a report and sent it to the commission. The Commission
considered that report while deciding the appeal, but important thing was that this report was
not shown to the other party and other party was not given the opportunity to rebut.

On this ground, the Commissioner quashed the decision of the Commissioner of Income Tax.

In another case, it so happened that the lower court considered a previous decision of the
Supreme Court, when deciding a case, a ruling came to the nature of the judge, and he used
that particular ruling. This was challenged on the ground that this ruling that was used by the
judge was not informed to the other party. On this ground, the court held that the decision
must be quashed.

Suppose the law lays down a mode, then to what extent, that mode is mandatory?
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Case- Bank of Patiala v. SK Sharma (1968)

Bank of Patiala laid down certain rules, known as Bank Officer Service Regulations. One
regulation provided that if there is an enquiry against any officer of the bank, then the bank
will have to give three days in advance, they have to give the copy of all the documents
which are on record and against that particular person. Bank did not give any copy to SK
Sharma, but bank invited him to office and gave him that file. He was allowed to read the
documents and make notes and then reply.

He went to the office, made documents and thereafter, made notes. The inquiry went against
him. He challenged the result of the inquiry against him before the court on one ground and
that was the regulation required that 3 days in advance, I had to be given the copy of the
document against me, which was not done. Then, the question was whether there was a
violation of the PNJ in this process or not?

In this case, the court said that when the law laid down a particular mode of providing
documents, and if that mode has not been followed, then you have to see 2 things:

Whether the mode provided is substantive or whether it is procedural?

The court said if it is substantive and you have not followed that particular mode, the inquiry
will be quashed. But if it is only procedural and it has not been followed, then the inquiry
shall not be quashed. Fair deal must be there and the information on record must be brought.
In this case, the mode provided is merely procedural and therefore, shall not be challenged.

The court differentiated that if a particular provision is such which goes to the very essence
of the particular decision, for example, if they say that notice is to be given before inquiry
starts, and you have not given notice and started inquiry, then it is not procedural; it is
substantive. Therefore, even if that person knows everything against him, because the notice
has not been given, the inquiry shall be considered to be vitiated.

3) Right to Represent Case

Two methods:

1. Through writing

Through writing, you can explain what is wrong, or inquiry officer can require you to fill per
forma, which is also hearing in writing. This is known as paper hearing.

2. Or orally
Second mode may be oral hearing or face to face hearing. The fundamental question is to
what extent do you have the right to orality as a part of natural justice?
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In case of criminal trial, the right to oral hearing is a part of due process . Therefore, it is
always implied or if the Constitution provides for it, therefore, oral hearing is necessary in
case of Article 21 because due process requires oral hearing. If the Constitution or the statute
provides for it, it must be given.

For example, under Article 311, oral hearing must be given to government officers.

The important thing is if statutes are silent, then a question arises- do you have a right to oral
hearing?

The fundamental case that came up was AK Gopalan v. State of Madras (1951).

In this case, AK Gopalan was detained under Preventive Detention Law and under that law,
a person can be detained without being presented before the Magistrate. For him, within a
certain period of time, inquiry board is to be constituted and it will then look into the matter
of whether the prevention is proper or not. This board need not hear that person orally and
so, he may only consider documents; he may not even talk to the person. So, the documents
were considered, and the court found that the detention is valid.

This was challenged before the court, and one of the grounds of challenge was that
Preventive Detention Law do not provide for oral hearing. In this case, there was a violation
of natural justice. On this particular point, the SC held that unless the law provides for it,
the oral hearing is not a part of natural justice. Therefore, court cannot interfere.

However, in this particular case, Justice Fazal Ali gave dissenting opinion, and he says that
oral hearing is always a part of natural justice. The word hearing means you have to hear with
your ears, and not through your eyes. On the basis of documents, you cannot do hearing.

Then, the question arises whether oral hearing is a part of natural justice?

Case- Union of India v. Justice JP Mittal (1971)

Justice Mittal was the judge of the Calcutta HC. Near his retirement, he realised that his date
of birth in the high school certificate is wrong and must be corrected because he still has
more years to retire. Under Article 217(3), it is decided that if there is a dispute relating to
the age, the decision of the President will be final. He made a representation to the
government and file was processed by the Ministry. When file was with the President, he was
asked to hear personally. The reply was that whatever was in the representation was sufficient
and there was no need to hear orally. Thus, oral hearing was not allowed.

He said you have said everything in writing, so there is nothing I can hear from you. The case
went against him. It was decided that date of birth in high school certificate is correct. This
was challenged in the SC on the ground that I was not orally heard. In this particular case, the
court considered the AK Gopalan case also and the dissenting opinion. The SC held that oral
hearing is not a part of natural justice.

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There was an observation and that was in exceptional circumstances, oral hearing may be a
part of natural justice if a person has suffered a definite prejudice. If it will be unreasonable
or unfair not to hear the person orally, it must be allowed.

1) If one party has been heard and the other hasn’t, then it is a case of prejudice.
2) If a person has suffered handicap because of socio economic reasons (social and
economic handicap), then natural justice required.
For example, the case against you is highly technical which requires so many details.
However, you are a person who has a very simple educational qualification, and the
matter is technical in nature. Then, in that case, it will be fair.
3) If the stakes are very high.
For example, a person is going to lose the job or suffer a stigma throughout his life,
then in that particular case, it will be fair and reasonable and just to hear that person
orally.

In these exceptional cases, oral hearing may be a part of natural justice. Otherwise, a
fundamental rule is that natural justice does not require oral hearing.

28th September, 2022

When the party has suffered a definite prejudice and technical questions are involved, oral
hearings become necessary. Where the stakes are very high or a stigma is going to stick, then
perhaps it will. In England, the Parliament is supreme and therefore, unless the law provides,
oral hearing is not a part of natural justice. However, there is common law fairness.
Fairness demands and in a particular case, if fairness demands, a person may be orally heard.
In the same manner, in the USA, unless the statutes provide for it, or it is a part of due
process, or a person suffers serious prejudice.

If in an inquiry, for example, a criminal case going on before the court, and you want certain
witnesses to be examined by the court. Then, the court issues summons. If witness does not
appear, court can issue warrant. If case is before administrative authority, to what extent
should the administrative authority help you to get witnesses examined?

Witnesses are given summons. If the witnesses don’t appear, nothing can be done. The
administrative authority need not issue any processes. Authority is not bound to issue any
coercive process if witnesses don’t appear despite court summons. In special
circumstances, some kind of a help may be given by the court.

Case- Murtuza Husain Ansari v. State of UP (1984)

There was a DSP, who was suspended on certain charges. Suspension was for a very long
time. His case was transferred to the Service Tribunal of UP. Before the Service Tribunal of
UP, he wanted certain witnesses to be summoned by the authority for examination. The

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tribunal said you shall have to deposit 900 rupees for each witness. But that person could not
deposit because he has no money. He was suspended for a very long time. Therefore, he did
not deposit, and case went against him.

Thereafter, he goes to a court of law and says that the authority did not help me in any
manner in securing the witnesses and therefore, I have suffered serious prejudice. The court
came to the conclusion that yes, circumstances are such where this person has suffered
serious prejudice because of his inability to deposit money, which was out of his
capacity.

Therefore, if you are before the administrative authority, you have to keep your witnesses
ready. If authority can do something to help, then they can. But authority cannot issue
warrant. Court can issue. Administrative authority is not supposed to do that.

4) Right to Rebut Evidence

Meaning thereby whatever evidence are there on the file against you, you have the right or
you must be given the chance to rebut those evidence, meaning thereby to say what is wrong
with them, whether it is oral witness or documentary evidence, so that their genuineness or
correctness is justified. 2 things are there:

i) cross examination

ii) legal representation

These are two very important components when case is being decided by the courts. To what
extent are they a part of natural justice?

Cross examination is not a part of natural justice, unless circumstances are such that in the
absence of cross examination, the person cannot put up an effective defense and would
suffer serious prejudice. Then only fairness demands that cross examination becomes a part
of natural justice.

For example, if you are before the Examination Unfair Means Committee, where the
invigilator has made a complaint against you, can you say to the committee that kindly call
the invigilator, I want to cross examine. Because before the court, it will always be there.
Will it be there as a part of natural justice?

In this case, the important thing is cross examination is not a part of natural justice, unless
circumstances are such that in the absence of cross examination, a person cannot put up an
effective defence and suffer serious prejudice.

Case- State of Jammu and Kashmir v. Bakshi Gulam Mohammad (1967)

He was CM at the time. There were serious challenges. Under the Jammu and Kashmir
Inquiry Act, an inquiry was instituted against him. Certain witnesses had given their
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statements in affidavit. The copy of affidavit was given to Bakshi Gulam Mohammad, and he
was asked to submit a reply. Reply was submitted. Thereafter, the decision was taken, and he
was found guilty of those charges. He challenged this decision before the SC and one of the
grounds was that I was not given the opportunity to cross examine those persons who gave
evidence against me.

SC says that cross examination is not a part of Jammu and Kashmir Commission of
Inquiry Act. Now, the question is have you suffered any serious prejudice? Court said those
who gave evidence, gave it in oath. Copies were given to you, and you were asked to explain.
What prejudice you have suffered?

Therefore, the SC laid down that unless the law provides for it, cross examination is not a
part of natural justice.

Case- UP Warehousing Corporation v. Vijay Narora (1980)

In this case, inquiry was instituted against an officer of the corporation and before that, an
officer was appointed to find out whether there was sufficient reason. So, the person who was
fact finding (one man commission), he took evidence from various employees. On that
particular basis, the report and on the basis of statement of employees, the disciplinary
inquiry was conducted against the party, and he was convicted. His plea was that the person
who deposed before the fact-finding committee, their statement was considered but I was not
given any opportunity to cross examine.

Other party was not given any opportunity to consider it. On that basis, the court said that
there is a serious prejudice because those persons were heard. When this person was not
heard and even their statements were not given to him, this maybe one of the reasons where
cross examination becomes a part of natural justice.

Unless it is mandated by law or the Constitution, cross examination is not a part of natural
justice unless you can prove that it has caused serious prejudice. Cross examination may
not be allowed in cases where it is impracticable.

Competitive examination for admission to MBA program. 1000 students are appearing in
various centres. The university reported that in all the centres, there was cheating going on.
On that particular basis, the university cancelled the result of everyone. Those persons who
thought that injustice was done because they were not cheating challenged it in a court of
law. Court said that it was impracticable to give thousand people personal hearing.
Secondly, it does not carry any stigma because we have cancelled the whole examination.
Therefore, no special stigma to you.

In preventive decisions, cross examination will not be allowed.

Where the cross examination will not result in fairness, but will result in unfairness, then
cross examination will not be allowed.

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Case- Hiranath Mishra v. Rajendar Prasad Medical College, Patiala (1973)

Pace setting case as far as natural justice is concerned. On Holi, some medical students from
the boys hostel went to the girls hostel. The door was closed, they jumped the wall, and the
girls were also playing Holi. They started playing Holi with them and some of the boys
misbehaved.

Girls were called in the office of the proctor and were asked to identify. The pictures were
there on the table, and they were asked to identify. Boys were rusticated and they were
challenged before the SC. One of the grounds was that we were not given right to cross
examine.

Court held that if we gave you the right, what would have happened thereafter? If we
rusticated you, the lives of those particular girls could be in jeopardy. Therefore, we did not
disclose identity and did not allow you to cross examine but we gave you the
opportunity to read their statement and give your statement. Therefore, the court held
that where application of PNJ would not result in fairness but in unfairness, then those
principles are not attracted.

29th September, 2022- CRE

30th September, 2022- CA

1st October, 2022

The 2nd aspect of the right to rebut evidence is legal representation. To what extent the
right to a lawyer to represent you in administrative proceedings is a part of natural justice?

Unfortunately, in common law countries, the lawyers are not held in very high esteem. One
reason seems to be that the standard of professional ethics is very low in common law
countries. That is why the participation of lawyers is not seen as a real help in administrative
cases, but Professor Allen says that this attitude that lawyers unnecessarily complicate
matters is a mistaken kindness to the persons because the fact remains that lawyers also
increase the chances of winnability.

First important thing is representation through a lawyer in administrative proceedings

is not a part of natural justice unless:

1. The law provides it

2. The Constitution provides it

It is also a part of the due process under the Constitution. Next, unless you can prove a
serious prejudice means that without a lawyer, you have suffered serious injuries.

For example, you are an uneducated person and the case against you has technical details
which you cannot understand. It will be a violation of fairness, reasonableness, and justice.

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In criminal cases, the principles of natural justice or representation through a lawyer

cannot be disallowed because it is a part of due process and therefore, it is said that if any
criminal proceeding progresses without the assistance of a lawyer, then, it will be considered
to be trial non est. Meaning thereby as if no trial existing. So, in criminal proceedings,
representation through a lawyer is mandatory.

In England, unless the law prohibits, assistance through a lawyer is not denied usually
unless there are special circumstances. In America, Section 6(a) of the Administrative
Procedure Act lays down that where a person is required to appear personally before any
inquiry officer, that person has a right to be represented, he may not go himself, his lawyer
must. Right to a lawyer is not only confined to trial or actual hearing; it is also available in
the case of investigative proceedings. This is known as Miranda Rules in America, which
came from a famous Miranda case.

In India also, there is a famous case of Nandini Satpathy v. PL Dhani (1978) where it was
said that right to a lawyer is available not only in trial but also in investigation. Where
there is a question whether a person is to be given on remand to the police, the right to a
lawyer is granted.

You have a right to a lawyer but if you are poor and cannot afford a lawyer, it is a part of
legal justice that it is the duty of the court that they must provide a lawyer for the defendant
in criminal cases. Legal aid is your fundamental right under Article 21. An important case is
Hoscot v. State of Maharashtra (1978).

What is the position in India?

In India, many statutes specifically prohibit representation through a lawyer because they feel
that lawyers will unnecessarily complicate and delay matters for their own personal benefit.
When family courts were created to decide on family matters, there was prohibition of
representation through lawyers.

In preventive detention, black marketing, essential supplies, foreign exchange

(prohibition and smuggling act), it is prohibited. In many cases, it is disallowed on the
grounds of secrecy also. If matter is highly secret, a lawyer comes to know of everything and
there is a danger that information will leak. Therefore, representation through a lawyer is not
considered a part of natural justice.

If administrative authority accepts your request, then representation will be allowed.

For example, industrial disputes act, civil services disciplinary rules.

Some allow representation with the permission of the authorities. In some cases, the lawyers
are allowed in administrative proceedings as a matter of course.

For example, income tax matters, sales tax matters etc.

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Legal representation is also allowed as a part of due process. In the same manner, the denial
of a lawyer in administrative proceedings may amount to violation of PNJ if the matter is
highly complicated, questions of law and facts are involved, and the person is illiterate. There
perhaps it will be an injustice to the particular person.

Secondly, where the other party is allowed to use lawyer, then you cannot deny it to the
other person.

For example, there is a case with the administration and the administrative side has appointed
a lawyer, then it cannot be denied to the other party. [Case- Nandlal Bajaj v. State of Punjab
(1981)]

But in all cases, leaving aside lawyers, at least you have one natural law right which is known
as common law right and that is every person has a right to be represented by his next of
kin. This is considered to be a common law right.

For example, if you are before the unfair means committee of the college, you are not
allowed representation of lawyer, but you can ask for assistance by my best friend. This is
considered to be a very important right and is considered to be a common law right and a part
of natural justice.

A fundamental question arises- can this natural law right to be represented by next of kin is
absolute? Or can it be regulated by the administration?

Case- Kalindi v. TALCO Company (1960)

In this case, TALCO company entered into an agreement with the employees and they agreed
on one rule that in any administrative inquiry against any employee, he is entitled to bring his
next of kin. But the condition is that the next of kin must not be a professional lawyer and
must be an employee of this company. You cannot bring your friend from anywhere. This
was challenged and there was an inquiry against the union leader. In that particular inquiry,
he wanted to bring his next of friend who was an employee of some other factory. The
management said you cannot because there is a standing order. This agreement is under the
Standing Order Act and has the validity of law.

It has been prepared with your consent and now, you cannot claim exemption from that
particular rule. Meaning hereby the right to be represented by next of kin is not an
absolute right and can be regulated by the other parties.

Another aspect is openness of proceedings. The fundamental rule of common law is that
justice must be done openly. It is a part of openness in governance. Therefore, it must not be
done secretly or privately; it must be done openly. Because then, it will develop the faith of
people in the system. During the monarchical days, the main problem was that justice was not
done openly. Here, the court’s proceedings are open.

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This was a very contested right which was won by the people through that agreement which
they reached with the king. In 1215, the king agreed that public justice must be open unless
law or fairness provides that in certain cases, the procedure must be held in camera.
That is why in JJ Act, it is provided that the proceedings where the children are being tried
will be held in camera. Therefore, openness is an essential part. Sunlight is the best
disinfectant and therefore, openness in administration of justice is best because it creates a
confidence in the minds of the people that justice is being done fairly and reasonably.

2nd October, 2022- Sunday

3rd October, 2022

 No evidence shall be taken at the back of another party.

This was developed in England in a case- Board of Education v. Rice (1911)

In this case, the court said that administrative proceedings cannot be called judicial
proceedings. Therefore, this phrase should not be applied literally in administrative
adjudications. It signifies that the administrator can control in any manner he likes. Other
parties may not always be present. Therefore, the only requirement is that whatever evidence
you have collected, bring it to the notice of the other party and they will be given time to
rebut.

Harrington v. Minister of Health (1935)

In this case, there were certain buildings which were very old buildings. They had reached a
state where residents in that building were not safe. Therefore, those buildings had to be
closed. Before the closing or clearing order was passed, it was necessary that ministers should
hold an inquiry and so, an inspector was appointed. He went to the site, called the owner and
residents and heard their views. Thereafter, he came back. He called the residents but not the
landowners. He collected evidence. He put the report before the minister.

The landlord challenged. He stated that the phrase ‘no evidence is to be taken at the back of
the party’ is not to be applied literally. Evidence can be collected but must be brought to
the notice of another party and given them opportunity to rebut.

Position in US

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Whatever information that inquiry officer collects must be informed to the other and give the
other party an opportunity to rebut. This is not so in judicial proceedings where anything
happens before both parties.

Ceylon University v. Fernando (1960) - Privy Council

Case of misconduct. Some teachers gave evidence against the student. But that evidence was
in the absence of the students. However, that evidence was supplied, and they were given an
opportunity to rebut. The Privy Council said that PNJ is not violated.

Hiranath Mishra v. Rajendra Medical College Patiala (1973)

Here also, the statements of girls were recorded in absence of the boys but later given to the
boy after removing the names of the girls, then given to the boy with the opportunity to rebut.
So, PNJ are not violated. The administrative proceedings are not like court.

Keshava Mills v. Union of India (1973)

In this case, Keshava Mills proprietary said that before you took over management, you did
not give us notice or hearing and did not show us the report of the inspectors. The court said
that there is no general requirement, unless the party shows what prejudice the party has
suffered. Therefore, the rule is that reports need not be shown unless you show what
prejudice you have suffered.

 One who decides must hear

In the case of administrative adjudications, someone hears and someone else decides. This
problem is known as institutional decisions or anonymous decisions or the problem of
divided responsibilities. This principle was developed by American SC.

It was decided in the case- Morgan v. US (1941)

In this case, the secretary of agriculture was to decide the rates when they are taking private
storage facilities for the purposes of the government. For this, an inquiry officer was
appointed. He heard the government pov and the private owners of stores pov and after
hearing both, he made the recommendation and submitted a report to the Secretary of
Agriculture. Now, the secretary of agriculture did not go through the report and on his
own discretion, decided the hiring rates of private stores.

The SC quashed this and developed the principle that one who decides must hear. Meaning
thereby that anybody who takes a decision, not necessarily that he should personally hear
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but he must go through the evidence that was collected and then come to the final
decision. It was held to be a violation of the procedural due process.

Morgan case stands for this proposition that it is not necessary that other party must always
be present.

Position in India- 2 important cases

Gullapali Nageswara Rao v. Andhra Pradesh State Trading Corporation (1959)

The Andhra Pradesh government wanted to nationalise road transport. Therefore, the
secretary prepared the scheme. He published that particular scheme in papers. Thereafter, he
invited the private bus owners because they were going to go out of business. The Secretary
gave them the hearing and recommended that roads should be nationalised. The file went to
the CM and the CM approved it. Now, the case comes to the SC on the ground that one who
decided did not hear. The CM decided and the Secretary heard. This is divided
responsibility.

In this case, basing on the Morgan’s case, the SC held that divided responsibility violates
the PNJ. Meaning thereby those who hear must decide. This created huge criticism that how
is this possible? Because thousands of decisions are taken daily. This case went through
much criticism in India.

The AP government made a second attempt at nationalisation. Report was given in the
newspaper. This time, instead of the Secretary, the Minister of Transport heard the decision
and after hearing them, he sent the file to the CM with his recommendations and roads were
nationalised. Now, these people went to the SC again.

Then, came the 2nd Gullapalli case in the same year, 1959.

In this case, the SC said that they decided the first case wrongly. Then, it was held that no, it
was not necessary that one who decides must hear. Before he decides, he must
independently go through the report, must exercise the mind and decide. Secretary was
an employee but this time, the Minister gave a hearing and he is not an employee. In this
particular case, they held that one who decides must hear must not be taken literally.

Lastly, what is the standard of evidence in administrative adjudication?

There are 2 rules of standard of evidence:

1) Substantial evidence rule

2) No evidence rule

The courts follow substantial evidence rule. Suppose an administrative action is challenged in
the court of law, they will see whether there is substantial evidence on record that can justify
the act. They see the substantiality of evidence and if the evidence is there but not
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substantial to justify the decision, then the court decision will be quashed but this does not
apply in the case of administrative adjudication. They generally follow no evidence rule.

This is not done in administrative proceedings. They will see if there is any evidence
anywhere on record and leave it to the discretion of the administrative authority and
this discretion shall be upheld. Any evidence anywhere on record that justifies the act will be
upheld. But in a judicial decision, the court will see substantiality of evidence. However, now
the courts are slowly moving towards substantiality in administrative proceedings as well.
Generally, they do not strictly but v strictly in case of judicial decision.

4th October, 2022

The second principle is that justice should not only be done but it must be seen to be done.
It must manifestly be seen to have done.

For example, if I am the member of a selection committee and my son is appearing, I must
not be a member of the selection committee. Even though I may be impartial, it may not seem
so. This is rule against bias- nemo judex in causa sua.

The bias may be of two types:

1) Conscious bias

Conscious bias means where factors are there that may influence the decision of the judge.
Then, the second may be relationships or financial interest.

2) Non-conscious bias

There may be a non-conscious bias which is known as non-apparent bias. This kind of a
bias, which is not very apparent but is there. Therefore, that relates to the mental condition
and the personality traits of the person who is the judge. If a person has been developed in
an orthodox environment, then he will be orthodox. If liberal, then his attitude will be liberal.
There may be certain factors which may be present in the society which may become a part
of the person.

For example, non-conscious bias may be religious or caste bias.

Rule against bias is should a judge be impartial?

Local bus fares were increased by the government. This was challenged. The person who
decided quashed the increase. The charge brought against him was that there was a bias
because he also comes by bus. This is unconscious bias i.e., caste bias.

It is not always necessary that judges must always never have certain biases.

For example, a judge must always have a constitutional bias. When deciding, he must take
into consideration constitutional policies. Even otherwise, if we want the judge to be
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impartial, it is something which cannot be achieved because there is no person who can sit as
a judge like a white sheet of paper. There is always a subconscious bias because of various
factors.

Biases can be of various types:

1) Personal Bias

Personal bias means you cannot lay down an exhaustive list; there will be varied factors
which exist between the judge and the person before him, which may be personal in
character. Therefore, he may not get justice.

One test is whether there is real likelihood of bias. Certain factors may be brought on record.
The court will have to see whether there is a real likelihood of bias. How will the court see
that? Court will never go into the question of whether the judge was actually biased or not
because nobody can know the mental condition of the judge. The court sees whether from
the facts on record, there is a real likelihood of bias.

The son was the chairman of the board, and the father was appearing. Rent charged by the
landlord is excessive, and his own son was the chairman. From this, there is a real likelihood
of bias. The judge will always look inside from the facts that are present on record.

If you choose to appear before a committee where you know that the person has a bias
against you but you still decide to take a chance, this is considered a waiver of right.

Second test is reasonable apprehension of bias. This is the test of a reasonable person. The
judge has to decide whether there is reasonable apprehension of bias or real likelihood of
bias. There, the judge opinion is on the basis of facts. Here, the difference is that what will a
reasonable person feel. There is a slight difference between the two- one is inward looking
and the other is outward looking. In the second case, the perspective is of a reasonable man
with ordinary intelligence if presented with the facts.

For example, a person may be his friend.

Personal bias has something to do with culture also.

For example, in one culture, it may be bias but, in another culture, it may not be bias. A case
by the American SC was opened and all the 9 judges everything. President appoints the
judges, and he appoints the judges who are his favourites and share the same political
philosophy.

For example, President Trump selected all the conservative judges and that was reflected in
the abortion case. So far as pecuniary bias is concerned, it is different.

When that case was being opened, the lawyer immediately said that I would request Justice
Ellito to recuse because he was the personal friend of the President because on three

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occasions, he went with the President for duck hunting. Justice Ellito said that if you think
that the judge of the American SC can be purchased so cheap, then our country is in danger.

In our society, we have developed in such a manner that we mix public and private very
easily but in other cultures, they keep public and private absolutely separate.

2) Pecuniary bias or Financial bias

Even the slightest involvement of financial matters, disqualifies the judge. Here, there is no
real likelihood or reasonable apprehension.

For example, in India, a case came before the SC when Justice Gajendar was the chief
justice. Property was acquired by the government for cooperative society. That was
challenged. Bench had been constituted and it was headed by the Chief Justice. CK
Daphtary was the attorney general. As soon as the case was called, Daphtary pointed out that
sir (Chief Justice) it is the same society in which you have shares. Now, it is upto you to
decide if you want to be a part of the bench or not. That shows that slightest financial interest
will be sufficient to vitiate.

In the present scenario, when investment in shares has become very common where any
person can purchase shares, if any person has even the slightest financial interest, if he
recuses, justice will come to a standstill. The proper approach should be that judge declares
his financial interest before the party. So, this is the recusal policy almost everywhere as
far as investment is concerned. Slightest financial involvement would be sufficient to prove
that there is a bias.

3) Subject matter bias

You are not interested in parties, there is no financial interest, but you have an interest in the
subject matter. If subject matter is such in which the deciding officer has a special interest,
for example, Royal Society of Prevention of Cruelty to Animals. He punished a person who
was brought before him for cruelty.

For example, in one case, a case was brought before the magistrate relating to the cruelty to
animals. The decision was quashed.

5th October, 2022

Ingdnu8hsd8ut8

4) Policy Bias or Preconceived Notion Bias

The important case on this point is Franklin v. Minister of Town Planning (1948).

In this case, the minister of town planning made a policy that we will establish a new
township and for this, land was to be acquired. Property of various persons had to be
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acquired. There was a lot of resentment against the minister. Before you acquire, there is a
need under the law to give the persons who are living there a hearing. Inspector went there
and gave a public hearing, there was a lot of objections.

Thereafter, the minister also thought of visiting. People were very angry and when he was
addressing, there was a lot of trouble against the minister like indiscipline and cat calls. The
Minister was very angry, he thumped the table and said there is no use of this indiscipline, it
is my scheme, and I will see to it that it is executed. Therefore, he came back to his office and
approved the scheme for the development of a new township.

This approval was challenged on the ground that there is preconceived notion bias because it
was the Minister’s scheme, and he has made up his mind that he will execute this scheme. In
this case, the court held that bias must be confined in its proper place and therefore,
cannot be applied to administrative decisions. Therefore, the order of the minister was
upheld.

Generally, this kind of bias is very difficult to prove. Merely because the Minister says
something openly does not mean his mind was completely fogged and was not able to think.
Unless that is proved, the mere expression of support for policy is not sufficient. This case
was decided on another important point: the PNJ applies only in rule making, administrative
and adjudicatory matters. They are attracted while deciding a dispute.

5) Obstinacy Bias

In this case, this applies in case of administrative and judicial adjudication. There was a
judge, a writ was brought. It was a HC judge; a single judge. The employees claimed certain
areas. This person upheld their claim. This went in appeal. In appeal, his judgement was
reversed.

SC says that it is a case of judicial obstinacy. You want that your viewpoint must always be
upheld and so this is a type of bias. You must also know that your viewpoint may not be very
correct but if you insist upon it, it is obstinacy bias.

6) Departmental Bias or Official Bias or Institutional Bias

This arises in a case where the prosecutor and judge are from the same department. They
have departmental loyalties; they have institutional bias.

For example, if there is a case against a manager in a factory. He has filed a case saying that I
have been assaulted by labourers. The company appointed an inquiring committee, and the
committee is headed by a deputy manager or a junior. South Indian Cashew Factory
Workers v. Kerala Cashew Development Cooperation (2006)

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Prosecutor is the manager, and the judge is the deputy manager. We have seen the clear case
of departmental bias in Gullapalli Nageswara Rao v. Andhra Pradesh State Trading
Corporation (1959)

Nationalisation scheme is being prepared by the transport department. It is heard by the

Secretary of the department. In this case, the decision was quashed. The second Nageswara
Rao case came up in the same year, 1959. In this case, the hearing was by the Minister and
the court said there is no departmental bias since the minister can take an independent view as
he is not an employee.

Hari v. Commissioner of Police (1965)

Externment order had been passed. Police sometimes pass orders where you cannot leave or
enter the city for a period. Externment order is where a person cannot enter. Before an order
is passed, a hearing is to be given. Hearing is by the deputy commissioner of police. File went
to the police, and he approved.

The argument was that there is departmental bias. In this particular case, it was said that we
cannot do anything; departmental bias is bound to be there but if the person who is
prosecuting and the person who is giving the hearing are two different persons, regardless of
whether they are in the same department, there is no bias.

There is a scheme of hearing officers in USA and hearing inspectors in England. There is a
list with the government of qualified persons in the area. If you are giving departmental
hearing, you will call one person from that list, and he will give hearing. In this manner, the
argument of departmental or official bias will not come in. In India, there is no such thing.
Therefore, the court says that if the prosecutor and judge are two different people, PNJ will
not be violated.

Krishna Bus Service v. State of Haryana (1985)

In this case, there is something more than the mere fact that both are prosecutor and judge. In
Haryana, there is Haryana Transport Corporation. They supply buses inside and outside
Haryana. There are private players also. Now, a law was passed in which the power was
given to the Chairman of the Haryana Transport Corporation that you shall have the power to
halt any bus and check any bus and if you find a violation, then you can decide the matter and
take action.

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Now, private buses were stopped. Few people were travelling without ticket and fine was
imposed. This was challenged before the court of law for departmental bias as he is
competitor in the same field.

It was said that in this particular case, something more is there. Something more is that the
other person in the same department is also a competitor. Therefore, the provision of the law
was quashed.

4.2. Can there be exceptions to Natural Justice?

There may be situations where applying the PNJ would lead to unfairness, instead of fairness.
The PNJ if applied will result in unfairness.

1) Necessity

The rule of necessity is one such exception.

For example, according to law, your case can be decided by only one person and you say that
person is biased. Then, who will decide your case? If the total disciplinary power is in the
hands of the VC and my case cannot be decided by the VC because she is biased, who will
decide? Then, the rule of necessity, which is an exception to the PNJ comes into play.

For example, a case came before the court in England.

Kingsley v. UK (2002)

This was a case under the European Human Rights Act. In England, there was a gaming
board which granted licences to various entertainment activities. There are casinos that are
gambling houses. In order to regulate casinos, the government passed a law under which a
gaming board was established. The Gaming Board Chairman was given the power to grant or
issue a license to open a casino on the ground of suitability.

The Chairman of the Gaming Board was giving a lecture somewhere on gaming and when he
was talking, he took the name of a person and said that persons like A are totally unsuitable
for owning a casino; he is not honest and so many criminal cases are pending against him.
That person applied for a license and the matter went before him, and he refused the license.
This was challenged before the court on the ground that this person has openly expressed his
opinion that I am not a suitable person. When he has already made up his mind, how can he
go back?

In this case, the court held that if that person cannot give you a license, who can? Therefore,
the rule of necessity applies.

AK Yadav v. State of Haryana (2009)

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President made a reference to the original case which was a 1985 case. The Public Service
Commission, Haryana advertised that there was an opening for a post and examination was
held. Interview was held and the list was published. Half of the people were relatives of those
persons who are the members of the Haryana Public Services. There is an apparent bias.

The court said that the rule of necessity will apply. If they do not interview, who will
interview? If you say relatives cannot apply, there will not be justice. There was a lot of hue
and cry in India. Then, the President made a reference. Unfortunately, SC also applied the
rule of necessity. If only one person can take a decision and no other, then you have to
accept whether he is biased or not.

6th October, 2022- CRE Class

7th October, 2022

We are discussing the exceptions to the PNJ or situations in which if PNJ is applied, the
result will not be fairness but unfairness.

Kingsley v. UK (2002)- Decision by the ECHR

In this case, the chairman of the board, in a public speech, condemned a person saying that
such a person should never be given the licenses of casinos. That person applied and
therefore, he was refused. Therefore, he challenged it on the grounds of the violation of PNJ.
The court said that only this person can give you the license, no one else. Rule of necessity
demands that you have to accept the decision of this person because there is no alternative.

AK Yadav v. State of Haryana (1985)

The Public Service Commission selected candidates and after the written test, interviews
were conducted and a list was declared. In that list, many people were related to the members
of the board. There was hue and cry that there was violation of fairness and PNJ. Government
argued that only interviews can be conducted by the board and if you say that they are biased
because their relations are appearing and they are interviewing their own relations and
suppose we accept that there is a violation of natural justice, then who will give you the
interview. The law says that the board shall interview, and no other person can do that.

Logically, it may be correct but the mind doesn’t accept this. There is something wrong
because how a father may not select his own son, in the age of rampant unemployment?
There was so much criticism that a reference was made by the President of India to the
Supreme Court. SC said that nothing can be done and therefore, rule of necessity will be
applied.

For example, under Article 217 of the Constitution, if there is a dispute regarding the age of
judge, the President shall decide and this will be binding. If the President is biased, how will

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the case be decided? Rule of necessity will be decided: either you go without the decision or
accept the decision.

Public impeachment of a judge or any functionary for example, President. In this particular
process, the Speaker plays a very important role and the Speaker belongs to a particular party
and that person against whom there is a charge and there is a case, that person also belongs to
that particular party. Then, you say that this proposition was rejected because of that
particular reason because the same Speaker who is in the party is in power. If you eliminate
the Speaker, nobody can control.

There is a huge chance of violation of human rights here. How to deal with it?

The European Union Court of Human Rights answered this question by saying that they are
of the opinion that in such cases, the court must decide the matter themselves. They can
provide the interview or they may appoint some independent tribunal or commission or
board to interview those particular persons. This can be the only solution to this particular
problem. Otherwise, it is a serious problem in a country like India where we do not make a
distinction between public and private.

In England, the Parliament is supreme. It can pass any law and cannot be declared invalid by
the court. If Parliament passes a law that violates the PNJ, what can you do? Nothing because
parliament is supreme. However, look at the wisdom of the judges.

In 1610, in the case of Dr. Bonham v. State, Cambridge University cancelled the license of
Dr. Bonham, and a huge fine was imposed. The rule was that the court will keep half of the
fine and half will be given to the State. His proposal was that there is a violation of the PNJ
because the administrative authority has been made judge in his own cause since they are
interested in the quantum of fine. This was quashed by Edward Coke.

Edward Coke said that he cannot declare the Act passed by the Parliament as void, but we
can interfere when a person has been made judge in his own cause because PNJ is based on
common law right and reason and fairness. Even Parliament cannot violate reason and
fairness but there also, the rule of necessity prevails. But certainly, there is a violation of
fairness.

This is the first exception.

2) Useless Formality Theory

If giving notice and hearing to a person will not be of any benefit, useless formality. Why?
Because the person against whom action is being taken knows why the action is being taken;
there is no doubt in the minds of the person. Then, why waste time in giving notice and
hearing?

Here, facts are known and accepted by both parties.

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For example, Mudaliar Educational Institutions v. Education Appellate Tribunals. There is

an act passed by the Kerala Legislature and the Act is Kerala Educational Institution Act.
This Act lays down that if any teacher’s services are terminated, he must be given notice
and hearing. There is a teacher working in one of the institutions run by the Mudaliar Trust.
The management has a rule that any person can get leave for doing M. Phil. One teacher
applied for leave for doing M.Phil. She went away. Somehow, the news came to the college
that this teacher is not doing M.Phil. but has registered for a PhD.

The college asked the lady what she is doing now. She said she is doing a PhD. Therefore,
the college board terminated her services for violating this rule. She challenged this decision
on the ground that she was not given any notice and hearing before termination. The case was
tried by the Educational Tribunal. If the notice and hearing is not given to you, tell us what
prejudice you have suffered. You yourself said you have done PhD. The answer is nothing. If
we had given you notice and hearing, it would have been a useless formality. Therefore, the
principle of useless formality was developed.

In the same manner, another case is Dharam Pal Satya Pal Limited v. CCE (2015). The
government issued a notification that on these particular conditions, you may give a tax
waiver. So, a tax waiver was given. They had given the tax and that tax was returned to them.
The Finance Act is being passed by the Parliament. This Act says that this tax waiver is not
admissible and therefore, the government passed an order that all those people must return
the tax. So, an order was passed against Dharam Pal Satya Pal. If you do not return, it will be
recovered as an arrear of land revenue.

These persons said that you did not give us notice and hearing. The court asked them what
else do they want? Amount is absolutely fixed and now, you have to return the same amount
because the budget does not allow it. Had we given notice and hearing, it would’ve been
useless. Where facts are not in dispute, everybody accepts, then in that particular case,
if action is taken, notice and hearing is not necessary because it will not result in
fairness, it will simply delay the matter.

Judges criticised this. How can you prejudge an issue? The court should never prejudge an
issue. They must keep their mind open. So far as practicality is concerned, this is a sound
principle. The important thing is that no fact should be in doubt or dispute. Every fact must
be clear and accepted.

Another useless formality is where the action of the administrative authority is

administrative in character. Administrative matters may be of three types:

- rule making
- adjudicatory and
- purely administrative.

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Administrative matter means from the whole area of administrative matters, if you take out
rule making and adjudicatory action, what is left is administrative action. In purely
administrative matters where the action is mechanical, notice and hearing may not be
necessary.

For example, the University rule is that anybody who does not fulfill the requirement of 75%
criteria will be detained. You cannot ask the university to give you notice and hearing
because it is purely an administrative matter or a mechanical matter. If the teacher
deliberately marked you absent, then it is a different concern. But here, you need not be
consulted.

3) Another exception is exclusion of PNJ in case of emergency.

If there is an emergency, it means that it does not accept delays.

For example, there are rows of houses connected to each other. There is a fire in the first
house. The fire brigade is called, and they come to the conclusion that unless you pull down
the second house, the entire row will catch fire. The owner of the house cannot say that he
was not given notice and hearing before his property was pulled down. In this case, the rule
of emergency shall apply because the situation is such that there cannot be no delay.

This can be seen in Maneka Gandhi v. Union of India (1978).

There was an emergency. After the emergency, a Commission was established called the
Shah Commission to inquire into the emergency excesses. Maneka Gandhi was required to
appear before the Commission to give evidence as she was a journalist. When she was to
appear, there was an apprehension that if she knew she had to appear, she would leave the
country. Under the Passport Act, her passport was impounded immediately.

She challenged this on the ground that she was not given any notice or hearing. Court said
that this was a case of dire emergency. Otherwise, there was a danger. The SC accepted it
but said that if the emergency is over, you have to give hearing to that particular person and
tell that person why they took immediate action. It was there the concept of post decisional
hearing emerged. If you cannot give hearing before action is taken, then at least give some
hearing after the action is taken.

It will serve two purposes:

1) It will show that the government has respect for the individual that they can call the
person and tell them why they took the action.
2) In some exceptional cases, it may improve the administrative decision because
hearing of a person beforehand is ideal; but even after the decision is taken,
sometimes, it may try to improve administrative action.

Therefore, in case of emergency, action may be taken.

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4) Another exception is that if there is a process danger, then the PNJ can be excluded.

Process danger is the whole process will be rendered worthless. Therefore, in that particular
case, the pre-decisional hearing may not be given because if you give hearing, the whole
process will be defeated.

For example, in every police station, there is a surveillance register. In this register, the
names of the known bad persons are secretly written. The purpose is so that the police can
keep a secret watch over their activities and so that they may not do anything against the law.
A person’s name was entered in that register and the watch was kept. He came to know and
challenged it on the ground that before my name was entered, I was not given notice and
there was a violation of the PNJ. I am suffering because I am being considered a bad
character person.

The court said that had we given you notice and hearing, you will always be on your guard
and there was no opportunity for us to secretly watch your move; you will always be careful
to avoid police watch. Our whole system would have been destroyed. In that case, the PNJ
are not attracted.

For example, in the case of Hiranath Mishra, had they given the names of the girls who
complained against the boys, it would have led to more unfairness. Therefore, to avoid more
unfairness, the PNJ can be avoided. Where there is a process danger that our whole system
will be destroyed, in that particular case, the denial of PNJ to the person concerned will not
result in fairness.

8th and 9th October, 2022- Weekend

10th October, 2022

Exceptions to the Principles of Natural Justice: Last Exception is useless formality. Recent
case law on this is Brisco Lotteries Ltd. v. West Bengal (2009). There was an employee, and
his behaviour was bad; he accepted his bad behaviour, said it is due to his mental disorder.
Therefore, he was dismissed from service for his bad behaviour without any notice and
hearing. He challenged it on the ground that dismissal violated the principles of justice. The
court said useless formality (since he was suffering from mental disorder and had
accepted it to be the cause of bad behaviour); court stated that if they had not given notice
and hearing, then it is an exception to the principle of natural justice. No unfairness has been
done to you.

5) Exclusion by Statute

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The law itself excludes fair hearing. This is because, for genuine reasons, law provides that
hearing may not be given in certain situations.

For instance, Article 311 of the Indian Constitution, where in two cases, hearing may not
be given to govt. officers: first, where it is impractical, and second, where it is the matter of
security of the State. For example, with regard to the latter, criminal who have run into
certain territory with police’s guns (it would not be practical).

6) Where preliminary fact is wrongly decided, then it can be challenged.

For instance, law provides that if a shop has been lying idle for three year, it can allot the
shop. First, it must be a shop and second, it must be lying vacant for three years. These two
conditions must be fulfilled.

7) Where administrative action is legislative in character unless it is based on

decided facts

Suppose commission has been given power to decide wages of working journalist; they will
have to give notice to journalists’ (and their associations/unions) as well as the press. In such
cases, notice is necessary. Another instance is where a university has prepared a Code of
Conduct for students; students cannot contend violation of natural justice as it is a law-
making function, not administrative.

8) When a decision is administrative, but a judicial decision

When you are enforcing such judicial decision, administration may not give notice.

For instance, court passes an order that employee has been wrongly confirmed and now must
be deconfirmed; now, admin authority deconfirms the employee through an order. If the
admin authority did not give notice in such a case, it would be because it arose out of a
binding, judicial decision.

9) When action is a mass action

For example, total competitive tests in all centres have been cancelled as there was evidence
of unfair means. One cannot say I have not used unfair means so my examination cannot be
cancelled; this is because there was a mass action (plus impracticality is also there).

10) Where administrative action is based on total discretion

For example, the selection committee decision; one appears before the committee and fulfills
the requirement but was not selected. Cannot say that, before one was not selected, should
have given notice. In such a particular case, there was no employment w university (so there
was no right; it was a matter of discretion).

The person is guilty of fraud and therefore has accepted the guilt in that particular case may
not given notice and hearing.

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11) If there is a contract, then any action in furtherance of the fulfillment of the
contract does not require notice

For instance, if a contract mentions that if a certain amount if not paid, car will be
confiscated. One cannot say when the car was taken away, notice was not given.

12) When things speak for themselves

For instance, in one case, case came from West Bengal in 2009. The employee had a bad
behaviour with his colleagues, and this was usual and accepted that yes, this bad behaviour
was . . . [he repeated Brisco Lotteries Ltd. v. West Bengal (2009) only with the statement that
“things speak for themselves”].

Admin. Law and its principles are always based on contextualities. Whether context allows
fairness of does not allow fairness. In every case, decision could be different; there are no
rigid rules of positive law. They change with the change in context.

[end of exceptions to the principles of natural justice]

Whether the decision taken in violation of the principles of Natural Justice is Void OR
Voidable? If the decision is void, then it cannot be cured later on; it is void ab initio. But if it
is voidable, then one can go to a court of law and get that particular decision cured.

Whether appeal can cure the defect? If it is voidable, then yes.

Can the principles of Natural Justice, if not followed at the initial stage, be followed in
the appeal (and the decision holds good)?

For instance, there is a case against you for misuse in the examination centre. There is an
unfair means committee, which did not hear you and made recommendation that examination
needs to be cancelled. Then appeal went to the Vice-Chancellor. Tells you the case against
you, along with the committee’s recommendation; asks you to defend/explain your position.
Thereafter, decision was confirmed.

Question is: whether the requirement of NJ met? (because, at the initial stage, NJ was not
followed; only followed at the appeal level) Is this a valid substitute? To what extent, can
an appeal either before an administration or a court of law can cure the defect?

Important Ridge v. Baldwin (1964). Under the Police Act, there was a disciplinary
committee, which can take any action against any employee; does not say anything about
notice and hearing. There was a senior police officer; there was some kind of a stricture
against him. There, the judge in decision wrote that it is very difficult to express that the
person of this seniority would do anything to delay this matter. Charge was that this officer
tried to delay the matter. Judge made this remark even without hearing it. On the basis of this

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judgment, that there was a remark, committee without any notice dismissed him. He
challenged it in a court of law.

Before the court, he was given a full hearing. In appeal before the House of Lords: since
hearing was given at the appellate level (and not the initial level), is the requirement of NJ
fulfilled? Court said that if principles of NJ are not followed at the initial level, then this
cannot be cured on appeal. There is a violation of principles of NJ; meaning this is void
and not voidable (cannot be cured at a later stage). Meaning thereby that an administrative
decision on the basis of the principles of NJ renders the decision void, which cannot be cured
at any subsequent stage.

However, Prof. Wade (who has written a book on admin. law) has suggested that a decision
in violation of principles of NJ can be both void and voidable, depending on the fact and
circumstances of the relevant case.

For instance, in the Anisminic Case (Anisminic v. Compensation Commission); there was a
list of corporations for compensation. Commission distributed the compensation. Anisminic’s
name was on the list. However, court said that no compensation can be given as you have
nationalised your assets to the govt. The court had no jurisdiction to do this.

House of Lords stated that if the action of the administrative authority is beyond its
jurisdiction, then this action is completely void and cannot be cured by any further
actions. But, if the action is within the jurisdiction (i.e., decision is wrong albeit within its
jurisdiction), then it is voidable and can be challenged in the appeal. Where the error is
within the jurisdiction, then it can be regarded as voidable. On the other hand, if the error is
beyond jurisdiction, it is void.

In India, before the Maneka Gandhi Case, we were following the Ridge v. Baldwin
approach, i.e., any action against NJ would be completely void (not voidable). However, in
the Maneka Gandhi Case, court took it differently. In this particular case, Shah Commission
was formed to go into the question of access during emergency. Maneka Gandhi was to
appear before this commission; therefore her passport was impounded (this was done without
a notice for the hearing). She challenged it in the court of law: govt. took the plea that there
was an emergency, thereby making the decision void. In this particular case, the court said
that if the decision is so emergent where notice cannot be given, now give pre-decisional
hearing so that she may know the reasons behind her passport impounding. When they
allowed hearing to adjudicate an action despite it being against NJ: it was considered to
be voidable (as it was cured in the administrative appeal; even though it was against NJ
initially).

R v. Governor of St. Gregory School (1995)

In this case, there was a disciplinary action against the student. Hearing was not given, and
student was rusticated. Appeal was allowed by the Board of Governors, who gave him a full

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hearing (sought documents, heard parents, etc.). Then, rustication was finalised. This was
challenged on the ground that decision of the admin authority at the initial stage was void
(and cannot be made valid later on). Court said decision was voidable and appeal can be
made for the cure.

In a same situation, Canara Bank v. B.K. Awasthi (2005) came up. Certain banks were
amalgamated with nationalized banks. As a result of this, certain employees of the bank
which were amalgamated were excluded and their services were not taken over by the
transferee bank. Such exclusion was made without giving any hearing to the affected
employees. Notice was not given. But, at a later stage, violation of NJ was cured. It was
held valid as it was voidable.

[End: Chp. on Natural Justice]

Next Chapter: Government as the Litigant.

11th October, 2022

5. Liability of the Government
This topic will have 3 main components:

1) Liability of the Government on Contracts

2) Liability of the Government for Torts committed by its servants against private
individuals

For example, if by any negligent act, any person suffers damages, to what extent
should the government be responsible?

3) Privileges of the Government as a Litigant

5.1. Liability of the Government on Contracts

If I say that the development of the society has been from police state to welfare state, from
autocracies to democracies, and from status to contract and this growth symbolises the
growth of civilisation. So, all progressive societies have developed in this particular manner.
Therefore, freedom of contract is an essential sign of the growth of civilization in society. It
is an inherent mark of society. That is why in the American Constitution, there is one clause
that deals with freedom of contract. It is the sign of civilization.

Question arises- what are the powers of government to enter into the contract?

Meaning thereby contracts maybe of two types:

1) Private contract
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They are governed by the Indian Contracts Act but that act does not apply to private
contracts completely. Private contracts are governed by the Constitution, the law
passed by the Parliament and to some extent, by the Private Contract act.

2) Public contract

Why is there a difference between private contracts and public contracts?

The main difference is the involvement of public interest. In private contracts, the
involvement of public interest is small but this is not the case for public contracts.

For example, when you enter into a contract for the purchase of a house and when the
government enters into a contract for supply of arms for armed forces. If the second contract
is violated, the public interest is suffered.

In France, there are two types of contract law: one is for public and one is for private. In
our case, we have a separate law for private contracts but no separate law for public contracts.
Our public contracts are governed by the Constitution; to some extent, the Indian
Contract Act and the law passed by the Parliament. There is no separate law. In France, it
is separate.

There was always a need to protect the government against spurious contracts so that public
money is not wasted. That is why the Constitution has made provisions for the public
contracts. The constitutional provisions for public contracts are Article 294 and Article 295.
They deal with the succession of property after independence. Property was first divided
between India and Pakistan. Thereafter, the property was vested in the union governments
and the state governments.

The second provision is Article 296, that governs the property that is accruing to the
government by escheat. Where the property is without an owner, that property accrues to the
government. No property can be without an owner. There must be an owner and if there is
not, by escheat, it goes to the government.

Then, Article 297. The government shall be the owner of things of value in its territorial
waters. Article 298 gives power to the Executive to carry on trade, business, to hold and
dispose property and to make contracts.

Therefore, government contracts are of two types:

1) Where the Parliament has passed the law and allows the government to enter into a
particular kind of contract- Statutory Government Contracts.
2) Which the Executive enters into by exercise of its executive power, and not under
exercise of power under law passed by the Parliament because those are governed by
the provisions of the Act itself. This contract law applies only to the second type.

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Then, Article 299 lays down what the characteristics or conditions shall be for a valid
government contract. If it is in exercise of executive power, then what shall be the
conditions of validity. Then, Article 300 deals with the liability of the government for the
torts committed by its servants against private individuals. These are the constitutional
provisions.

Public contracts are considered so important because:

1) Public money may not be wasted

2) Public interest may not be violated

Freedom of contract is the sign of civilization. Freedom of contract is the fundamental right
of the people under the American Constitution. In our Constitution, it is implied, though not
expressly provided. Right to hold property carries with it the right to transfer property.

 Conditions necessary for valid government contracts

In India, we do not have a special law for public contracts. In France, they have 2 laws. In
India, we have a law only for private contracts, but no law passed by the Parliament for
public contracts. Therefore, it is determined partly by the provisions of the Constitution and
partly by the provisions of the Contracts Act.

The validity of normal contracts like offer, acceptance and consideration apply to government
contracts as well. Because the validity conditions are given in the Constitution itself,
therefore, they are fundamental and cannot be waived. However, the conditions in the
Contracts Act relating to the capacity and mental condition of the person are not
applicable to government contracts. However, Section 73, 74, 75 of the Contracts Act which
deal with the determination of damages are applicable to public contracts also. In the same
manner, Section 70 of the Contracts Act is also applicable. Section 70 deals with implied
contracts. Public contracts are governed partly by the Constitution and partly by the ICA.

 Constitutional Conditions Necessary for Valid Public Contracts

1) Contract must be in writing
Meaning thereby, government contracts cannot be oral. Private contracts can be oral also.
The question is what is the form of the government contracts? There is no form.
However, if law has laid down a particular form, it must be complied with. But there is
no form. It must be written in someplace from where you can ascertain the essential
conditions of the contract. When you read Article 299, this is not there but this emerges from
two words “expressed” and “authorised”. From these two words, you get the impression.
For example, in one case, Union of India v. Ralia Ram (1963), the Director of Purchase,
Government of India issued a tender for the purchase of cigarettes which he needed for the
army. People applied and the lowest tender was accepted. Thereafter, various letters were

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exchanged between Director and supplier about terms and conditions of the contract, quality
of cigarettes etc. However, no formal contract was signed by the government and this
supplier.
He supplied the cigarettes as contracted on the conditions that were agreed upon by the
various letters. Now, comes the question of payment. An objection was raised by the auditor
that payment cannot be made because the government contract is not valid. There is no
writing; it means there must be a document where the necessary terms and conditions can be
ascertained but the government said that there is no one document but we exchanged various
letters. If we put the letters datewise, you can find out the essential terms and conditions.
In order to give benefit to the contracting parties who are dealing with the government that is
a massive machinery, the court said it is sufficient because no form is necessary.

State of Tamil Nadu v. R. Ragunathan (1975)

The government wants to auction certain things and various bidders were made to bid and
there was a highest bidder. The hammer fell; and the contract was complete.
Question was whether it was a valid contract which was there by the falling of the
hammer?
In this particular case, the court said that because the person has deposited money as required
and the terms and conditions are given in the letter, even if there is no formal writing, it is a
contract.
However, in another case, the court took a contrary view that after the hammer has fallen, a
contract must be signed; it must be in writing- Chandra Mahan v. State of Bihar (1976)
Writing is necessary, no form specified.

2) Contract must be expressed in the name of the President or the Governor, as the
case may be
Meaning thereby, the words of the contract must be such that it clearly shows that it is a
government contract. Therefore, contracts must be expressed in the name of the President or
the Governor, even though they may not be personally liable.

3) Contract must be executed on behalf of the President or the Governor as the case
may be
He cannot sign in his official personal capacity.
For example, when a person is signing, he must sign as a director, on behalf of the President
or the Governor. These words must be there.
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Davicose Garment Factory v. State of Rajasthan (1970)

The Director General of Police entered into a contract with certain persons, a certain
company, Davicose Garment Factory for the supply of uniforms for the police. Contract was
signed by the Director of Police but he forgot to write under his name “on behalf of the
Governor of Rajasthan”. It was executed on personal capacity and not on behalf of the
government of the state. When it came to question, objections were raised and it was argued
by the government that payment cannot be made because the contract is not valid.
This created a difficult situation because they received the uniforms and payments were to be
made. In this particular case, SC took the view that execution in certain cases may be
implied also. He is signing as Director, ordering so many uniforms. He is not ordering for
himself. Because he forgot this sentence, it should not make the entire contract void. If it
is pierced, it is not a personal contract but on behalf of the government.

4) Contract must be signed by the authorised person

In government, there are persons in each department who have the power given by the
government to them to sign contracts on behalf of the governments. Authorised person is
whose name is there in the gazette. If the contract is being signed under certain law, then
law lays down who the authorised person is. Only that authorised person must sign.
In certain situations, there may be implied authorisation. There is no writing, but
circumstances are such in which it 100% appears that the authorised person, though he has
not signed, has authorised and has constructive notice.
Bhikharam Jaipuria v. Union of India (1962)
The government entered into a contract for the supply of food grain for the fair price shops.
In this particular case, the person who actually signed the document was not authorised.
However, the person who was authorised, everything was within his knowledge. He allotted
railway wagons for the carrying of the foodgrain. Everything was within his knowledge and
instructions. When it came to the payment, an objection was raised that the contract is void
because it has not been signed.
Court said that there is implied authorisation because everything is within the knowledge of
this person. Therefore, there can be implied authorisation.
These conditions are mandatory in the sense that they cannot be waived, though court can
imply them, but you cannot waive them.

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If these conditions are not fulfilled, what is the status of a government contract? These
conditions are mandatory and therefore, cannot be avoided. They are constitutional
conditions.

Karamshi v. State of Maharashtra (1964)

In this case, a contract was signed with the government for the supply of canal water for
irrigation. But the water was not supplied. Therefore, this person filed a suit for specific
performance that the government should be compelled to comply with the contract, and they
should be compelled to supply the water.

In this case, the court came to the conclusion that the contract is void because it has not been
signed by the proper person. The court said that the conditions are constitutional and
therefore, have to be followed. No suit can be filed against the government, neither the
government can file the suit if the conditions are not followed.

Then, the question is what will happen to equity and fairness?

Meaning thereby can the court ask the government that look here, the right person has not
signed. In order to achieve fairness, sign it. The question is can a government contract which
does not fulfill the requirements of Article 299 be ratified later on?

In France, there is a public contract law and there is a private contract law. Public contract
law is developed by the administrative courts on a case-to-case basis. If there is a government
contract and if there is some technical problem, the court can direct the government to make
up for the deficiency. The government can suo motu ratify. If they ratify, the court in the
interest of fairness, justice and equity can ask the governor to ratify.

In India, the court cannot direct, and the government cannot ratify. The only reason is
that these are constitutional requirements; these are not requirements of ordinary law and
therefore, they need to be respected and nobody can interfere.

A strange situation developed- contract is void, government is not allowed to ratify.

 Remedies under a void government contract

Case- New Marina Coal Company v. Union of India (1964).
In this case, railways enter into a contract with a private coal company and the contract was
you will supply the coal and we will make the payments. Marina Coal Company supplied the
coal, and it was used by the Railways. Railways says sorry, payment cannot be made because
this contract is void and has not been signed by the right person. Court says even though we
want to ratify it, we cannot.
Now, what can be done?
Marina Coal Company asks for benefit under Section 70 of the ICA i.e., implied contracts.
When under a contract, a party has done his whole part and the other party has taken the
benefit of the doubt, if the contract is void, it cannot be executed. The other party must
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reimburse the person for the loss he has suffered by fulfilling his obligations under the
contract. Section 70 says that where this is the situation and the person has not done it
knowingly, the other party must pay for it. The Supreme Court, in this case, said that benefits
under Section 70 of the ICA can be given on the grounds of fairness and justice. This was
the benefit the court wanted to give when government contracts are void.

State of UP v. Murari Lal Brothers (1971)

In this case, an officer of the horticulture department of the government of UP went to the
proprietor of the cold storage and said that we want a certain space in your cold storage
because we want to bring certain fruits, which we want to store. The person said well and
good. Everything was done; the contract was signed but he was not the authorised person to
sign it. Unfortunately, because of some reason, the whole season was over, and nothing came
for cold storage.
That person, in the hope that they will bring, kept the space open and did not give it to any
other person. When the whole season was over and nothing came, he suffered. He said to the
government to kindly make payment. At the time, the government realised that the contract is
void because it has not been signed by the authorised person. Ratification is not possible.
He said give me the benefit of Section 70 of the ICA. The Supreme Court said no, even that
benefit is not available. This was because the benefit was not taken by the government,
even though he did his part. In the previous case, the government took benefit.

Case- State of West Bengal v. B.K Nanda (1962)

In the same manner, the government entered into a contract with the contractor to build a
building. Everything was done. Building was constructed and handed over to the government.
The government started using that building. Now, comes the question of payment. The
government said payment cannot be made because the authorised person has not signed.
Other person should have completed his part and the other party must have taken
benefit. Then, the government must compensate.
Section 230(3) deals with a problem where the principal is disclosed but cannot be sued.
Then, the agent acting on behalf of that principal can be sued in his personal capacity. This is
agency rule under the agency contract. The court will allow you to sue but not the principal or
the agent because the principal cannot be sued. Same situation here. We cannot sue the
government. The court said that this Section also presupposes a valid contract, meaning
thereby, in that case, you cannot even file a personal case against the agent.
In this case, the court said that in our opinion, this Section presupposes a valid contract and
because the contract is not valid, ipso facto, we cannot allow you to file a case against the
agent.
Section 232- where an agent untruly represents principal, it is not authorised. In that case, the
principal cannot be sued. Then, you can file the case against an agent.
Court said that we are not expressing any final opinion on this, but we think that this Section
also presupposes a validity. If a government contract is not valid since inception, we
cannot allow you to file a case against the agent. Therefore, it creates a lot of injustice to
the people because when the government has become a businessman, an entrepreneur who is
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involved in so many activities where private parties are involved. French law seems to be
better. If the government refuses to ratify, they can compel the government to ratify it.

To what extent the equitable doctrine shall be applicable in case of void government
contract?
Doctrine of estoppel is an equity doctrine, not a legal doctrine. Equity developed to fill the
law, and not to destroy it. In this case, if a person makes a false representation to you and you
have honestly acted on that representation and you have suffered some loss, then in that
particular case, equity shall apply in your favour.
Illustration: Suppose there are two fields that are joined together and right on that boundary,
there is a tree. A knows that this tree belongs to me because it is on my side and B thinks the
same. One day, B goes and cuts down the tree. A is present there and does not object. After
the tree has been cut, he files a case against this person for mischief. B says that I thought the
tree was on my side and A says no. B says that if I was working on the misapprehension, why
didn’t you object? It gives me the impression that you are not the owner. Under this
circumstance, the doctrine of estoppel applies.

Union of India v. Indo-Afghan Agencies (1968)

In one case, the government made a policy statement. It is not law. They can change policy at
any time they like. The policy was that any person who exports a certain quantity of material
to any country in the Middle East, that person shall be entitled to an import license of equal
amount.
This person believed and made exports to the Middle East. He asked the government to issue
an import license for America of equal amount. Government said we have changed our
policy. In the interest of fairness, the court applied the doctrine of equitable estoppel,
which is based on justice, fairness and equity. They said that by this representation, you made
a promise to him, and he suffered a disadvantage. Therefore, you cannot go back on your
words. In government contracts, if there is this kind of situation, the court will give you
advantage of equitable estoppel.
When there is a promise, estoppel will arise. But when there is no promise and a general
statement, if you have acted on that promise and the government later on changes its position,
then you can get relief under the doctrine of equitable estoppel. But in all cases, the
situation is such that your fundamental rights are also violated, like Article 19, Article 14,
then writ is always available. That route cannot be closed down. The proper solution is that
there must be a separate law for public contracts.

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5.2. Tortious Liability of the Government

If a government servant commits any harm to you because of his negligence or wrongful
action, or an action not authorised by law, then to what extent can you claim compensation?

State is a legal entity; it is not a living entity. Therefore, it must act through others. What
shall be the liability of the state for the wrongs committed by its servants or by its
employees?

This evokes a very serious question i.e., in a welfare state, you want a lot of participation in
the state in every aspect of your life but on the other hand, if you insist that if any wrong has
been committed to me, you shall pay compensation to me, then it will have a dampening
impact on this kind of a state participation.

A question arises on what principle the tortious liability of the state is based?

It is based on 3 principles:

1. Agency principles

Like Agency, the person who has employed other persons to act as a person for him, for his
acts, the principal is liable. This is also known as respondeat superior, meaning thereby let
the principal be liable.

2. Master and Servant Principle

Those who employ others and act through them, they are responsible for the acts of their
servants. So, master and servant relationship.

3. Socialisation of Compensation

In a democratic society which is a socialist society, an egalitarian society based on fraternity,

nobody should be allowed to weep alone. State must always provide a shoulder on which
the person can weep. Meaning thereby, if a person has been wronged by the state employees,
the state must provide compensation for the welfare obligations. From this principle,
socialisation of compensation comes, and the liability of the government is justified.

Law in England

In England, in the beginning, there was a common law of immunity of the crown. The law
was that the king can do no wrong. Meaning thereby he cannot be held liable for the acts of
its servants. Even his servants are not liable because they are acting on behalf of the King.
King cannot be tried in the courts of his own creation. Later on, it was thought that the
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immunity of the crown is incompatible with the concept of justice and therefore, Dicey
criticised it. Dicey said that it is unimaginable to suppose that the queen kills the PM, and
nobody is responsible. He says that this common law doctrine i.e., the King can do no wrong
simply means that the King has no legal power to do wrong. Meaning thereby, the King
cannot do anything wrong.

Therefore, when the societies developed and England became an industrial society, there was
a demand that there must be a law in order to fix the liability for the wrongs the Kings’
servants or the state employees have committed. Therefore, in 1947, Crown Proceedings
Act was passed and in this particular act, it was laid down that the King shall be responsible
for the torts committed by the servants in the same manner a private individual is
responsible.

Position in America

In America, they passed a Federal Torts Claim Act, 1946, in which the State is responsible
for the torts committed by servants in the same manner in which the private individuals will
be responsible.

Position in India

In India, there is no law like the Federal Torts Claim Act or the Crown proceedings Act.
Though on the recommendations of the Law Commission in 1965, a law was prepared
which is known as Government Liability Bill in Tort and it was introduced in the
Parliament but could not be passed. The same bill was reintroduced in 1967 and again, was
allowed to be lapsed because they said that ours is a welfare state, we have to take care of our
people from the cradle to the grave. If during the period, if any wrong is committed by our
employees, which is likely to be committed, and we start giving compensation, the whole
public exchequer will be drained out and no money left for development.

However, in 1969, an Act was passed i.e., Public Liability Act. This Act says that the public
authorities who are dealing with hazardous material and if in carrying that hazardous
material, if any negligence is there, and the person suffers, then they can claim compensation
against the authorities.

However, later on, in 2010, another bill was prepared i.e., Nuclear Liability Act. When we
started establishing the nuclear station for the production of electricity, even this bill could
not be passed.

Now, what is the liability in India of the government for torts committed by its
servants?

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So far as the Constitution is concerned, there is a provision i.e., Article 294B. It says that the
liability of the State may arise out of contract or otherwise. It does not say liability in tort
will also arise. Then, what will be that liability?

Again, a very funny law i.e., Article 301 of the Constitution. Regarding the extent of
liability of the state for the tort committed by servants, it says that the liability of the
government of India or the government of the state will be the same as it was of the State
under the Government of India Act, 1935.

The Government of India Act, 1919 says that liability is the same as the Government of India
Act, 1915. That act says that the liability is the same as it was of the East India Company,
before independence. Therefore, liability is the same as East India Company.

What was the liability of the East India Company?

Case- Bank of Bengal v. United Company, 1831

After 1833, or even before that, the East India Company and United Company were merged
together and started representing the sovereignty of the crown over the territories that were
conquered by the companies by use of force and they were called British India. This company
had taken loans from the bank for the purpose of fighting war. They failed to pay and when
asked, they said that we represent the sovereignty of the crown in India.

Therefore, fighting of war is a sovereign function, which nobody else can do but we can do
since we are representing the crown. Therefore, there should not be any liability. In this case,
the court said that you are only a commercial company and therefore, you cannot claim any
immunity of the crown. They completely denied the Crown’s immunity in India.

Case- P&O Steam Navigation Company v. Secretary of State for India (1861)

In this case, the United Company was repairing the Calcutta Port. Therefore, they had hired a
lot of labour. The position of the Calcutta Port was that on the seaside, ports were there and
thereafter, a metal road and on the other side, some buildings were there.

The employees of the company were carrying iron bars on their shoulders. The plaintiff, who
was coming in a carriage driven by horses, came. The employees were so scared that they
threw the iron bar on the road. There was a large noise and the horses got scared, the carriage
was overturned; the person inside the carriage was overthrown and suffered injury. He filed a
case against the company for compensation for the tort committed by its servants.

Calcutta HC decided the case. Barnus Peacock was the Chief Justice. Therefore, he had to
decide the liability of the State on torts committed by servants. Company was representing
the sovereignty of the State. They are representing the sovereignty of the Crown in India;
they were working by charter given by Parliament.

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Peacock said that the liability of the company will be the same as that of a private
individual. He says that it is another matter in which a company has been invested in certain
sovereign powers but it does not make a company a sovereign authority. Here, the
company is engaged in an ordinary trading function. So, this was the judgement given by
the court. He is using those words sovereign, meaning thereby, if the function is sovereign,
there will be immunity but if the function is not sovereign, there will be no immunity.

What is a sovereign function?

Sovereign functions are those functions which cannot be carried out by private individuals.
They can only be carried out by state. For example, power to tax, judicial powers, power to
arrest, punish, power to declare war, fight war, power to enter into contracts with foreign
nations etc.

These are the sovereign functions. If anything else is done, the State will not be responsible,
but in private functions, it is responsible.

He gave illustrations:

Sovereign functions: Carrying on war with foreign countries, seizing enemy properties,
judicial functions, foreign affairs etc.

Nobody can eliminate them, only the State can represent them. He is talking of acts of State.
Act of a state means those particular acts which can be carried out only by state and not
private individuals. For this, the state shall not be responsible.

Case- Nagoon Chandra Dey v. Secretary of State (1876)

Company auctioned ganja license and the hammer fell, contract complete but they did not
give license. Government took the plea that auction of ganja is a sovereign function and
only the State can undertake. There are functions which can be taken by a private individual
or the functions, which can be taken by the State. Therefore, the state cannot be held liable.

Secretary of State for India v. Hari Bhanji (1882)

In this case, a person booked a certain consignment of salt by the train and the train was
owned by the company. When it reached a certain place, the parcel was damaged. So, he filed
a case for compensation.

In this case, the court said yes, the government is liable because it is not an act of a State.
Anything done by the government under the authority of law is not a sovereign
function. Anything done in exercise of inherent power like declaring war and seizing an
enemy- only that can be a sovereign function for which there is no liability.

This confusion remained when India became independent. After independence, a famous SC
case:
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14th October, 2022

State of Rajasthan v. Vidhya Vati (1962)

In this case, there was an accident with a government jeep and was sued for compensation. In
the SC, judgement was given by a progressive judge, Justice B.P Sinha. According to Justice
Sinha, the doctrine of immunity of the state for the sovereign function is a feudalistic
doctrine, which has been imported from England.

This feudalistic doctrine has no application in India because ours is a social democracy
based on welfare and social justice. Therefore, this doctrine has no application in India. He
held the government responsible for the accidents.

Kasturi Lal v. State of UP (1965)

The UP Police arrested a person in Meerut because they found that he was carrying a lot of
gold and silver and the police thought that he was a smuggler. Therefore, he was arrested. His
gold and silver were taken away and put in a police strong room. The case started.

Ultimately, it came out that it is a negligent act of the police to arrest that person because he
is not a smuggler, he is a genuine bullion merchant, and he has license to sell and purchase
metal. When it was proved, he was acquitted. He asked for gold and silver back. The court
ordered that precious metal be returned to him.

The police say we cannot return because the person in charge of the room took all the gold
and silver and fled to Pakistan. Negligence was alleged. Justice Gajendra Gadhka gave the
decision and unfortunately, he again brought back sovereign and non-sovereign
distinction, which was rejected by BP Sinha. He said that arresting a person, confiscating his
goods and putting in a room is a sovereign function which only the state can do. Private
person cannot do that. For the exercise of sovereign function, the state is not responsible.

Most unfortunate decision in the history of the SC of India. This case was in severe criticism
since it completely ignores the earlier case, where the court had held otherwise. However,
this case was very early overruled.

Sovereign and non-sovereign is not the ratio of Steam Navigation. Ratio is immunity for the
acts of the state. But they brought back sovereignty thinking in India, if the government is
liable for every negligence, the public exchequer will finish.

Case- State of Gujarat v. Haji Hassan (1967)

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Here, the customs department confiscated the goods that were imported in India on the
grounds that import of these goods is prohibited. The case started and while it was going on,
the customs department auctioned that particular goods because we cannot keep them in
custody for so many days. Ultimately, it was decided that the person is allowed to import
those goods, there is no prohibition. Therefore, there was no need to confiscate.

Appeal was allowed and it was said that these goods should be returned. Court said that in
such a situation, the government will have to pay cash compensation to the person. Meaning
thereby, the previous case was soon overturned.

State of MP v. Chiranji Lal (1981)

Case decided by MP HC. An assembly of the people were demonstrating by taking out
processions and it was declared that this is illegal. Police were given orders to disperse the
crowd. They started lathi charge and because of this, in the process, some property of a
person suffered serious losses. That private person filed a suit for compensation against the
government for the negligent act of its employees.

The court said this is a sovereign function to use force against the mob, for which the state
cannot be held responsible.
Then, the court followed the same route in another case.

Nagendra Prasad v. State of UP (1999)

In this particular case, under the Food Adulteration Act, the inspector seizes certain wheat
flour from the shop of a person because for him, it is adulterated. He kept it in godown.
Because of the negligence of government servants, it was mixed with fertiliser. The court said
that seizure is not valid and asked to return the property of the seller.
In this case, the court said that the government is not responsible. However, compensation
was provided under the Essential Commodities Act, and not under the general law of tort,
which is applicable to the state. They did not go into the question of whether it is sovereign or
non-sovereign.
In this manner, the law became very haphazard and there was no set answer. Some judges use
sovereign/ non sovereign; some judges did not use such doctrine. Then, they decided to not
look into sovereign/ non sovereign if compensation can be provided under a law. If it can be
provided, it must be and this question will not be looked into.

Shyam Sundar v. State of Rajasthan (1974)

Justice Mathews gave the decision. He was carrying the labourers for some in the
government truck. In the meantime, there was an accident. Many employees fell outside. Suit
was filed. Then, the question was whether it was a sovereign or non-sovereign function.

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Justice Mathews said let us not go into the principle. There is a Fatal Accident Act. Because
of the negligence of a person, if a fatal accident happens, the state is bound to give
compensation to the injured people.

Pasawa KD Patil v. State of Mysore (1977)

There was a theft in the house of some person, ornaments were stolen, FIR was filed and they
found the owner. The ornaments were kept in a strong room and the case started. After the
case was over, and now it is time to return the ornament, the government took the plea that
the government is not responsible because it is a sovereign act. In investigation, they found
certain goods and they have the power to keep it in custody and that is sovereign function.

Court said let us not go into that question because the government is negligent and
therefore, must be responsible to private individuals. When India is independent, and
based on welfare democracy, then sovereign immunity is a juristic blasphemy and arbitrary
and absurd conclusion.

Therefore, it was allowed. Still, the law is in a fluid, and you do not know the real answer.
The government has not passed any law on tortious liability the way the British and
American government passed.

Illustration: There was a truck which was carrying a military hockey team to the military
headquarters for a match. In the meantime, there was an accident. The question was whether
the government will be responsible?

Question arose whether it is a sovereign function or non sovereign function?

In the same manner, the truck carried military machinery and there was an accident.

There was a conflict in Pakistan and the military has drawn a line and said beyond that line,
nobody can enter. So, the military truck carrying food for the jawans met with an accident
before crossing that line and suppose, he meets with an accident after crossing the line. What
will the difference be?

If the accident takes place before crossing the line, it is a non sovereign function, only people
with license can enter. If the act takes place before the line, the government will be
responsible. Beyond the line, the government will not be responsible.

Court found another method of compensating the people when their personal rights,
constitutional rights are violated by the State. They allowed compensation on the lines of
constitutional spirit and constitutional provisions.

Rudal Sah v. State of Bihar (1983)

Rudal Shah is a poor person. He was arrested and charged and jailed. He was acquitted in the
case. After the acquittal, he could not come out of the jail because there was a communication

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gap. The order passed by the court did not reach the Jail Superintendent. If reached, it was
misplaced. He was in jail for 14 more years and this was detected by research scholars. In this
particular case, the court granted compensation because there is a violation of the
fundamental right of the people.

15th October- CRE class

16th October- Sunday

October 17, 2022

5.3. Privileges of the Government as a Litigant
The first privilege is the privilege of notice. Meaning that if you are willing to file a civil
case against the government, then Section 80 of the CPC lays down that you have to give the
govt. 2 months period notice. If you want to file a civil case against an individual, then you
don’t have to file a notice period. There are however statutory notice periods, which lay down
how much notice has to be given to the individual.

A case came up, The State of Orissa v. Madan Gopal – A person was holding some land
from the government, it was a lease. He received a notice from the government to vacate the
land within 15 days. He wished to file a suit against the government and prohibit such action.
Argued two months’ notice.

HC said that it is a statutory notice and thus must be given. The SC said that justice and
equity demands that the Court have the power to relax two months’ notice requirement in
such cases. In 1976, amendment to Section 80 was made and it was noted that in certain
situations, court may relax requirement and grant relief.

The second privilege is the immunity from the operation of a statute

So, in England, the earliest law was that the king can do no wrong, and no suit can be filed
against the govt. Therefore, the law passed by the parliament was not applicable to the king.
However, it created many problems as the system developed. The king became merely
constitutional head. Therefore, in England, 1947, the Crown Proceedings Act was passed.
Now the crown is bound by the law like a regular individual, unless exempted expressly.

Suppose there is a law which says that if there is a red light, a vehicle will stop. Government
vehicle says the law will not apply. By implication, the court will say that this law will apply
to government vehicles as well. In the USA, there will be no exemption for government
vehicles unless expressly excluded or by necessary implication (i.e., under the administrative
act). The liability of the government will be the same as the private vehicle.

Position in India
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In the beginning, it was very complicated.

Province of Bombay v. Municipal Corporation Bombay (1947) (Privy Council Decision):

Municipal Corp. The Act lays down that they shall have the power to lay down pipelines in
and outside the city of Bombay. The question was if there was government land in between,
can they lay down the pipeline in government land as well? This is because the act was silent.
The PC held, taking a queue from the British govt., that they cannot lay pipeline on govt.
land unless law expressly authorised it. Meaning thereby State is not bound by the law of
its own creation unless made applicable to it either expressly or by necessary implication.

Now, we have our own Constitution, Director of Rationing and Distribution v. Corporation
of Calcutta (1960 SC Decision)

Calcutta corp. had a by-law that any person who wants to maintain a godown to store grains
within the territorial limits of the municipal corporation, they will have to first get a license
from the corporation; otherwise they would not store any grain. There was a time where half
of Bengal was starved. If grain was not properly stored, this problem will come again; if they
want a godown, they will need a license. In India, there was rationing, i.e., food items were
not available in the open market. It was a big department of the govt. of India, they had their
offices all over India (including Calcutta). The Calcutta office director had a godown, he did
not take a license. Therefore, notice was sent to him and prosecution started. He said we are a
government, and we are not bound by any law unless made applicable to us explicitly or by
necessary implication. The King can do no wrong and cannot be tried by the courts of its own
jurisdiction under its own law (sovereignty argument). Therefore, law is not applicable.

The SC in independent India said yes, the law made by the legislature is not binding on the
government. unless made applicable to it specifically or by necessary implication. Here, it is
not stated that the law will be made applicable to the government. Justice Wancho gave a
dissenting opinion: India is not a feudalistic but a socialistic government. We believed in
the rule of law and therefore, there is no reason why the State should not be bound by the law
applicable to normal citizens.

Superintendent of Legal Affairs v. Corporation of Calcutta (1967): In this case, the director
of rationining case was overruled. Wanchu J.’s dissent became the majority decision.
There was a regulation of corp. that anyone who wants to hold a weekly bazaar, they will
have to first take a license. Government will also start holding the bazaar without taking
license. So, govt. got prosecuted. Govt. gave same old reasoning.

Subha Rao J. of the SC stated that ours is not a feudalistic society, but a democratic
society based on rule of law, therefore govt. is bound by its own law unless exempted
expressly or by necessary implication. The law was reversed in view of the changes in UK
(i.e., the Crown Proceeding Act providing for suits against the crown). India is no longer a
slave State but an independent, sovereign, etc. State. Crown immunity is not applicable
unless there is an exemption.

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UOI v. Jubbi

Question was, when Zamindari Abolition Act was passed, the idea was to give ownership to
Tillers for which it was said that anybody tilling the land for the last twenty years, if they
give land revenue, they can acquire ownership.

Can the government also become the owner of the lands (if they fulfil the threshold)?

Court said yes, this law applies to the government in the same manner it applies to private
parties unless excluded expressly or by necessary implication.

What is Necessary Implication?

State of Maharashtra v. Indian Medical Association (2002)

Law was passed by which Maharashtra University of Health Science was established by 1998
Act. The law provided that even a private individual can establish a private medical college.
But, importantly, the application from the management of the college should be rooted
through the government. Only after the approval can this be done. Now, the Indian Medical
Association wanted to establish a medical college.

Question was should they also root their application through the government (even
though they are part of the govt.)?

In the Act, there was no express exclusion but there is an exclusion by implication. This is
from the wording “management”, which denotes private persons. If the government wants
to open a medical college, then they do not have to root their application through the govt.

Third Privilege of the Government to withhold Document and Information

Now, there is RTI. One can get information but not every information. There are five
exceptions. If a case is filed against the govt. in a court of law, and you want the govt. to
produce the document which is necessary for justice, the court can summon the govt.

Is the govt. bound to file it? If that person says that he does not have the document despite
having it, then he cannot use that document in his favour ever.

Court stated, in Rafale Case, to bring the docs pertaining to jets. Govt. said the document is
confidential, cannot declare the price as it would adversely affect the market stability/ability.

What is to be done?

The law in India is, for ordinary litigation (Sec. 123, Indian Evidence Act), if an application
is made for recovery and you want that officer to come and give information, it says no govt.
officers shall be permitted to give evidence on anything where the evidence is derived

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from an unpublished official record which relates to the affairs of the State. So, if there
is any information in that record and the officer knows that, he shall not be permitted to
divulge the information unless the head of that particular dept. permits the same; he
cannot be compelled in a court of law. In the same manner, Sec. 124(b), this also extends to
information from confidential documents. If there is a confidential document and they
want the court to produce, the court cannot order it because it is confidential.

Whose decision is final — government’s or court’s — that it will affect public interest?
The court decides where it affects public interest. Court does not rely on affidavit alone, it
asks for secondary evidence.

18th October, 2022

6. ADMINISTRATIVE DISCRETION
No welfare government can function providing some discretion to administrative authorities
as law cannot be laid down for every eventuality. But discretion is absolutely a rule free area.
There are no objective standards to request discretion, but it is necessary as it leads to
particularisation of justice.

The difficulty is that administrative discretion is the source of all corruption, but its absence
indicates a failed state. It is therefore a necessary evil. The decisions under administrative
discretion are based on subjective satisfaction.

Equation of Corruption - M + D - A = C

M- Monopoly of services/goods/favour

D- Discretion to give anybody/ refuse to give it

A- No accountability

C- Corruption

Corruption is defined as the freedom to act at one’s own pleasure. How are administrative
authorities giving discretion under law?

You may take any appropriate action; you may take action as you deem fit and proper; you
may take action in exercise of your opinion; proper action; expedient action; take action for
public purpose.

If this discretion is not properly channelised and controlled, it may lead to corruption and the
country may be led into the direction of becoming a failed state. Abuse of discretion is a big
problem. Wide discretion violates the rule of law and makes it the rule of man.

If it’s such an evil but on the other hand, unavoidable, how is it to be controlled and on what
grounds?
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It can be controlled at the level of Parliament, Executive but it can be effectively controlled
by the courts.

How can courts control administrative discretion which is subjective?

The courts have developed judicially manageable standards. Discretion may be controlled at
2 levels:
1) at the level when law is granting discretion when the Parliament passes the law. At
that time, if the discretion is very wide or without the policy, it can be declared invalid by the
court on grounds of violation of Article 14 and 19.

Arbitrariness (wide discretion) can be challenged as violation of Article 14.

If administrative authorities are being provided with wide discretion to violate the right to
liberty, then it violates Article 21.

2) At the level of exercise of administrative discretion.

Ground 1- When power is given to administrative authority, it is not a personal power but
given in trust on behalf of the people. Hence, the officer cannot refuse to exercise
discretion.

For example, service law for administrative services. When a cadre has been allocated to an
IAS officer then it can be changed only under extreme necessity. There is an element of
discretion.

Case- Lady IAS officer applied to the government requesting a change of cadre as she could
not perform her functions due to certain circumstances. Her husband, also an IAS Officer,
expired and she had a son. Therefore, she was not able to take care of her child. She
requested home State cadre. [interruption] Government said that we have never changed
cadres and so we will not do so in this case as well. She challenged it on the grounds of non-
exercise of discretion since you cannot afford to exercise discretion.

Ground 2 - Discretion must be exercised at the level it is given and cannot be delegated.

For example, power given to GM. They have discretion to decide whether disciplinary
proceedings need to be instituted against an employee. This power cannot be delegated to a
deputy GM.

Ground 3 - Discretion cannot be exercised by wrongly assuming jurisdiction by wrongly

deciding jurisdictional facts.

For example, the collector has the power that if you think the shop is lying vacant for the last
two years, then you can allot it to another person.

Ground 4 - Where the exercise of discretion has been exceeded beyond the limits laid down
by the law.

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For example, discretion to grant a loan to any poor person. Limit is 1000 but you give a loan
for 2000. You hereby exceed the limit to exercise for discretion.

Ground 5 - Discretion should not be exercised on irrelevant considerations not warranted

by law.

For example, the law states that the government can preventively detain any person if there is
a danger of public order, disturbance, or security of the State is threatened. Here, you need to
ascertain whether public order or security of the State is being violated. For example,
preventively detaining a person who has committed theft is invalid as this was simply a law
and order situation.

Difference between law and order, public order, and security of the State

Justice Hidayatullah: if you draw three concentric circles,

Law and Order

Public Order

Security of the State

If there is murder = law and order; if the person has murdered two or three people with the
intention to disturb peace = matter of public order; and, if the murders are committed with the
intention of challgenign the existence of State itself = Security of the State.

For example, the Telegraph Act. You can disconnect telephones if there is a public
emergency. Everybody was kung fu fighting. Those cats were fast as lightning. In fact, it was
a little bit frightening. But they fought with expert timing.

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