S5 - Administrative Law

ADMINISTRATIVE LAW – I
CLASS NOTES
KASHISH KHANDELWAL
35LLB18
ADMINISTRATIVE LAW – I 35LLB18
TABLE OF CONTENTS
INTRODUCTION............................................................................................................................................ 7
JURISPRUDENCE OF ADMINISTRATIVE LAW.................................................................................................................8

NATURE OF ADMINISTRATIVE LAW...........................................................................................................................8
CHARACTERISTICS OF ADMINISTRATIVE LAW.............................................................................................................10
RECOGNITION OF ADMINISTRATIVE LAW..................................................................................................................10
IMPORTANT SOURCES OF ADMINISTRATIVE LAW IN INDIA...........................................................................................13
(1) Constitution of India.............................................................................................................................13
(2) Primary Law.........................................................................................................................................15
(3) Ordinance/Rules/Regulations...............................................................................................................15
(4) Judicial Precedents...............................................................................................................................15
SP Gupta v Union of India – AIR 1982 SC 149..........................................................................................................16
Kesavananda Bharati v State of Kerala – AIR 1973 SC 1461....................................................................................16
IR Coelho v State of Tamil Nadu – AIR 2007 SC 861................................................................................................16
AK Kraipak v Union of India – AIR 1970 SC 150.......................................................................................................16
Maneka Gandhi v Union of India – AIR 1978 SC 597...............................................................................................16
Peninsular and Oriental Steam Navigation Company v Secretary of State – (1861) 5 Bom. HCR App. 1.................16
State of Rajasthan v Vidyawati – AIR 1962 SC 933..................................................................................................16
Kasturi Lal v State of Uttar Pradesh – AIR 1965 SC 1039.........................................................................................16
Lucknow Development Authority v Mk Gupta – AIR 1994 SC 787...........................................................................16
State of Orissa v Binapani Dei – AIR 1967 SC 1269..................................................................................................16
In re Delhi Laws Act, 1912 – AIR 1951 SC 332.........................................................................................................17
FACTORS CONTRIBUTED........................................................................................................................................17
(1) Involvement..........................................................................................................................................17
(2) Positive Actions/ Failure of the Organs of the State.............................................................................17
(3) Demand for Good Governance.............................................................................................................19
MANDATE OF ADMINISTRATIVE LAW.......................................................................................................................19
(1) Control..................................................................................................................................................19
Bhim Singh v State of Jammu and Kashmir – (1985) 4 SCC 677...............................................................................20
Nilabati Behera v State of Orissa – (1993) 2 SCC 746..............................................................................................20
Rudul Sah v State of Bihar – (1983) 4 SCC 141........................................................................................................20
2. Protection of - always available to those who have followed the ROL...................................................21
Ranjit Thakur v Union of India – (1987) 4 SCC 611..................................................................................................21
Ganpath Singh Gangaram Singh Rajput v Gulbarga University – (2014) 3 SCC 767.................................................22
Union of India v Raghuwar Pal Singh – (2018) 15 SCC 463......................................................................................22
MC Mehta v Union of India – (1999) 6 SCC 237......................................................................................................23
Rati Pal Saroj v Union of India – 2019 SCC OnLine Del 9451....................................................................................23
NDMC v Kavinder....................................................................................................................................................23
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3. To facilitate governance........................................................................................................................23
EXTERNAL CONTROL V SELF GOVERNANCE...............................................................................................................23
(1) Red Light Theory...................................................................................................................................24
(2) Green Light Theory...............................................................................................................................24
(3) Ambit Light Theory...............................................................................................................................25
FACETS OF ADMINISTRATIVE LAW...........................................................................................................................26
RULE OF LAW.............................................................................................................................................. 26
NATURE AND SCOPE OF RULE OF LAW....................................................................................................................27

(1) Supremacy of Law................................................................................................................................27
(2) Equality before Law..............................................................................................................................27
(3) Judiciary is the creator and promotor of the ROL.................................................................................27
CRITICISM OF DICEY.............................................................................................................................................28
(1) He was confused between DP and arbitrary power..............................................................................28
(2) System of Tribunals..............................................................................................................................28
(3) He was against privileges and immunities............................................................................................28
PURPOSES OF ROL..............................................................................................................................................29
Maneka Gandhi v Union of India – (1978) 1 SCC 248..............................................................................................30
PUDR v Union of India – AIR 1982 SC 1473.............................................................................................................31
L. Chandra Kumar v Union of India – AIR 1997 SC 1125..........................................................................................31
RULE OF LAW IN THEORY AND PRACTICE.................................................................................................................32
SEPARATION OF POWERS........................................................................................................................... 36
CONCEPT OF SEPARATIONS OF POWERS...................................................................................................................37

SELECTIVE NATIONS.............................................................................................................................................37
FACETS OF SOP..................................................................................................................................................41
DROIT ADMINISTRATIF............................................................................................................................... 43
ADMINISTRATIVE ACTIONS......................................................................................................................... 45
CLASSIFICATION OF ADMIN ACTIONS.......................................................................................................................45

WHAT CONSTITUTES AN ADMINISTRATIVE ACTION?...................................................................................................45
NECESSITY OF CLASSIFICATION...............................................................................................................................46
(1) To know the nature and scope of the actions.......................................................................................46
(2) For the purpose of determining the procedure to be followed.............................................................46
KT Plantation Private Limited v State of Karnataka – (2011) 9 SCC 1......................................................................47
(3) Remedies – In-House or External..........................................................................................................47
BALCO Employees’ Union v Union of India – (2002) 2 SCC 333...............................................................................47
CLASSIFICATION OF ADMIN ACTIONS.......................................................................................................................48
State of NCT of Delhi v Sanjiv – AIR 2005 SC 2080...................................................................................................48
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Delegated Legislation................................................................................................................................48
Quasi-Legislative Action.............................................................................................................................49
DDA v CIC................................................................................................................................................................ 49
Union of India v Cynamide India Limited – (1987) 2 SCC 720..................................................................................50
QUASI-JUDICIAL ACTION.......................................................................................................................................50
R v Electricity Commissioners – 1924 1 KB 171.......................................................................................................51
Attributes of QJA........................................................................................................................................51
Province of Bombay v Kusaldas S. Advani – AIR 1950 SC 222..................................................................................51
Province of Bombay v Kusaldas S. Advani – AIR 1950 SC 222..................................................................................52
Gullapalli Nageshwar Rao v A.P. State Road Transport Corporation – AIR 1959 SC 308..........................................52
State of AP v SMK Parasurama Gurukul – (1973) 2 SCC 232....................................................................................52
Properties of QJA.......................................................................................................................................53
FACTORS DETERMINING NATURE OF ACTION............................................................................................................53
AK Kraipak v Union of India – (1969) 2 SCC 262......................................................................................................53
State of Orissa v Dr. Binapani Dei – (1967) 2 SCR 625.............................................................................................54
Mohinder Singh Gill v Chief Election Commissioner – 1978 2 SCR 272...................................................................55
The DFO, South Kheri v Ram Sanehi Singh – (1971) 3 SCC 864................................................................................55
Neelima Misra v Harinder Kaur Paintal – (1990) 2 SCC 746.....................................................................................56
Tejshree Ghag v Prakash Parashuram Patil – (2007) 6 SCC 220...............................................................................57
Mangalam Organics Limited v UoI – (2017) 7 SCC 221............................................................................................57
ADMINISTRATIVE DISCRETION.................................................................................................................... 59
RD Shetty v International Airport Authority of India – AIR 1979 SC........................................................................60

ROLE OF LEGISLATURE IN CASE OF AD.....................................................................................................................60
UoI v Kuldip – AIR 2004 SC 827...............................................................................................................................60
Bangalore Medical Trust v BS Mudappa – AIR 1991 SC 1902..................................................................................61
Types of control over AD:...........................................................................................................................61
Some statutes are required to empower AA to take AA.............................................................................61
Angad Das v UoI – (2010) 3 SCC 463.......................................................................................................................61
State of UP v Renu Sagar Power Corporation – (1988) 13 SC 143...........................................................................62
OP Singla v Union of India – AIR 1984 SC 1595........................................................................................................62
NECESSITY OF DISCRETION....................................................................................................................................63
Clariant International Limited v SEBI – AIR 2004 SC 4236.......................................................................................63
ISSUES OF DP.....................................................................................................................................................64
UoI v Gajanan Maharaj Sansthan – (2002) 5 SC 44..................................................................................................64
Muni Suvrat Swami Jain Sangh v Arun Nathuram Gaikwad – AIR 2007 SC 38.........................................................64
State of UP v Renu Sagar Power Company – AIR 1988 SC 143................................................................................65
CONTROL OVER ADMINISTRATIVE DISCRETION..........................................................................................................65
(1) Parliamentary Control..........................................................................................................................65
(2) Judicial Control.....................................................................................................................................65
Padfield v Ministry of Agriculture – 1968 AC 997....................................................................................................66
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State of Punjab v Hari Krishna Sharma – AIR 1966 SC 1081....................................................................................66

Commissioner of Police, Bombay v Gordhandas Bhanji – AIR 1952 SC 16...............................................................67
Purtabpore Co Ltd v Commissioner – AIR 1970 SC 1896.........................................................................................67
Bentley Nevada LLC v Income Tax Officer, International Taxation..........................................................................68
ADMINISTRATIVE TRIBUNALS...................................................................................................................... 69
Bharat Bank Limited v Employees AIR 1950 SC 188................................................................................................70

Engineering Mazdoor Sabha v Hind Cycles– AIR 1963 SC 874.................................................................................70
ACC Limited v PN Sharma – AIR 1965 SC 1595........................................................................................................70
DISTINCTION BETWEEN A TRIBUNAL AND A COURT....................................................................................................70
SP Sampat Kumar v Union of India – AIR 1987 SC 386............................................................................................70
Shell Company Australian Limited v Federal Commission of Taxation Tribunals.....................................................70
Union of India v R. Gandhi, President, Madras Bar Association – (2010) 11 SCC 1..................................................71
RECOGNITION OF ADMINISTRATIVE TRIBUNALS.........................................................................................................71
LEGAL STATUS OF A TRIBUNAL...............................................................................................................................72
CLASSIFICATION OF ADMINISTRATIVE TRIBUNALS.......................................................................................................72
(1) Domestic Tribunals...............................................................................................................................72
(2) Institutional Tribunals...........................................................................................................................73
NECESSITY OF TRIBUNAL SYSTEM............................................................................................................................73
(1) Failure of Judiciary................................................................................................................................73
Guru Nanak Foundation v Rattan Singh and Sons – (1981) 4 SCC 634.....................................................................73
Trustees of the Port of Madras v Engineering Constructions Corporation Limited – (1995) 5 SCC 531...................73
(2) Share the burden of Courts...................................................................................................................73
(3) Specialised Agencies.............................................................................................................................73
(4) Speedy and Economical Justice.............................................................................................................74
HISTORICAL DEVELOPMENT: ADMINISTRATIVE TRIBUNALS ACT.....................................................................................75
Siemens Engineering and Manufacturing Company v Union of India – AIR 1976 SC 1785......................................75
KK Dutta v Union of India – AIR 1980 SC 2056.........................................................................................................76
ADMINISTRATIVE TRIBUNALS ACT, 1985..................................................................................................... 76
APPLICATION AND NON-APPLICATION.....................................................................................................................77

CONCEPT OF POST...............................................................................................................................................79
State of Assam v Kanak Chandra Dutta – AIR 1967 SC 884......................................................................................79
SERVICE MATTERS...............................................................................................................................................81
PROCEDURE....................................................................................................................................................... 82
Who can file an original application?........................................................................................................82
When can an original application be filed?................................................................................................83
Where can an original application be filed?...............................................................................................83
Does an AT have the jurisdiction to entertain PILs?...................................................................................83
Dr. Duryodhana Sahoo v Jitendra Kumar Mishra – AIR 1999 SC 114.......................................................................83
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Thammanna v KV Ready – (1980) 4 SCC 62.............................................................................................................83

KK Gohil v State of Gujarat – 2010..........................................................................................................................84
Section 21 – Limitation..............................................................................................................................84
Condonation of Delay................................................................................................................................84
Prahlad Raut v All India Instituted of Medical Sciences – 2019 SCC OnLine SC 1110...............................................85
SS Rathore v State of MP – (1989) 4 SCC 582..........................................................................................................85
ADR for Service Matter Disputes................................................................................................................85
DELEGATED LEGISLATION............................................................................................................................ 88
CONTROL MECHANISM.........................................................................................................................................89
PRIMARY LEGISLATIVE ACTIVITIES...........................................................................................................................89
CHARACTERISTICS OF DELEGATED LEGISLATION.........................................................................................................90
NECESSITY OF DELEGATED LEGISLATION...................................................................................................................90
Agriculture Market Committee v Shalimar Chemical Works Ltd – AIR 1997 SC 2502..............................................91
Benefits of Delegated Legislation..............................................................................................................91
Criticism of Delegated Legislation..............................................................................................................91
CLASSIFICATION OF DELEGATED LEGISLATION............................................................................................................91
Gwalior Rayon Silk Mfg. Co. Ltd. v Assistant Commissioner of Sales Tax – (1974) 4 SCC 98....................................92
Abdication of Legislative Powers and Excessive Delegation of Powers......................................................93
In re Delhi Laws Act – AIR 1951 SC 332...................................................................................................................93
Avinder Singh v State of Punjab – (1979) 1 SCC 137................................................................................................93
WHAT CANNOT BE DELEGATED?............................................................................................................................93
Devi Das Gopal Krishnan v State of Punjab – (1967) 3 SCR 557...............................................................................93
WHAT CAN BE DELEGATED?..................................................................................................................................93
Bhaskar Shrachi Alloys Ltd v Damodar Valley Corporation – (2018) 8 SCC 281.......................................................94
Bhuwalka Steel Industries Limited v Union of India – (2017) 5 SCC 598..................................................................94
RETROSPECTIVITY OF DELEGATED LEGISLATION..........................................................................................................94
BS Yadav v State of Haryana – AIR 1981 SC 561......................................................................................................95
Kishan Prakash Sharma – AIR 2001 SC 1493............................................................................................................95
SUB-DELEGATION OF LEGISLATIVE POWERS..............................................................................................................95
AK Roy v State of Punjab – (1986) 4 SCC 326..........................................................................................................95
Ashok Kumar Aggarwal v Union of India – (2013) 15 SCC 539.................................................................................96
POWER TO REMOVE DIFFICULTIES..........................................................................................................................96
Jalan Trading Co. Ltd v Mill Mazdoor Sabha – (1967) 1 SCR 15...............................................................................97
CONDITIONAL LEGISLATION...................................................................................................................................98
CONTROL OVER DELEGATED LEGISLATION................................................................................................................99
PRINCIPLES OF NATURAL JUSTICE.............................................................................................................. 101
Canara Bank v VK Awasthy – AIR 2005 SC 2090....................................................................................................101

CAN PNJ BE RELAXED BY A STATUTE?....................................................................................................................102
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WHY DO WE NEED PNJ?....................................................................................................................................102

FACETS OF PNJ.................................................................................................................................................103
(1) Audi Alteram Partem (AAP)................................................................................................................103
(2) Rule against bias................................................................................................................................103
(3) Speaking Order...................................................................................................................................104
(4) Good faith..........................................................................................................................................104
AUDI ALTERAM PARTEM.....................................................................................................................................104
(1) Notice.................................................................................................................................................104
UMC Technology Pvt Ltd v Food Corporation of India – 2020 SCC OnLine SC 934................................................105
Dharampal Satyapal Ltd v Commissioner of Central Excise – (2015) 8 SCC 519....................................................105
BoD of HPRTC v KC Rahi – (2008) 11 SCC 502........................................................................................................105
State of Karnataka v Mangalore University Non-Employees’ Association – (2002) 3 SCC 302..............................106
(2) Right to Fair Hearing..........................................................................................................................107
Union of India v TR Verma – AIR 1957 SC 882.......................................................................................................108
Suk Das v UT of Arunachal Pradesh – AIR 1986 SC 981.........................................................................................108
POST DECISIONAL HEARING.................................................................................................................................109
Criticism of Post Decisional Hearing........................................................................................................110
Hearing and Decision by One Person.......................................................................................................110
Right to Copy of Inquiry Report................................................................................................................110
RULE AGAINST BIAS...........................................................................................................................................111
(1) Personal Bias......................................................................................................................................112
Subject Matter.........................................................................................................................................112
Pecuniary Bias.........................................................................................................................................112
SPEAKING ORDER..............................................................................................................................................113
Drafting a Speaking Order.......................................................................................................................114
GOOD FAITH....................................................................................................................................................114
JUDICIAL REVIEW...................................................................................................................................... 116
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INTRODUCTION
 Administrative law is largely uncodified in India. On the other hand, in countries like the
USA, the UK and France, certain parameters of administrative law have been codified. In
India, administrative law is regulated by some fundamental principles of administrative law:
1) Rule of law
2) Delegated Legislation
3) Judicial review
4) Principles of natural justice
5) Control over discretionary power
6) Administrative action
 Administrative law comes into play whenever the state is involved in any action, be it quasi-
judicial or legislative. It deals with the state on one hand and the people on another.
Whenever the three pillars of the State are involved, it comes into play. Administrative
actions are origin points of administrative law. The nature of action will dictate the
requirement of the specific process to be followed. For instance, Article 300 of the
Constitution holds the state vicariously responsible for the wrongful acts of its employees.
 Administrative action can be categorised into three categories:
1) Quasi-Judicial – It is different from judicial action though it can involve adjudication

of disputes.
2) Quasi-Legislative/Delegated Legislation/Secondary Legislation - It deals with making

laws under delegation of powers – rules, regulations, bylaws, schemes, etc.
3) Pure administrative action:
i) With civil consequences ii) Without civil consequences

 HIRAC:
 History
 Issue
 Rule
 Analysis
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 Conclusion
4th September 2020
JURISPRUDENCE OF ADMINISTRATIVE LAW
 Administrative law has been in existence since time immemorial. Even though Kings were
not accountable for their actions, there were some instances where the Kings were held
accountable. In his book Arthashastra, Kautilaya has laid down the instances wherein the
King could be held accountable. However, at that time, the law was not known as the
administrative law. It came in existence due to the principles of natural justice.
 Historical Perspective – In 1215, the Maga Carta was created in Britain. The principles of
fair process were recognised. It had a huge impact in the development of administrative law.
In 1610, Dr. Bonham’s case laid down the Doctrine of Judicial Review. In 1803, the
SCOTUS established the principle of judicial review through the case of Marbury v
Madinson. In 1748, the principles of separation of powers were given by Montesquieu. He
also talked about the impact of concentration of powers on the rule of law. In 1799, Napoleon
developed a system to prevent the court from interfering in the functioning of the state. In
1885, Professor Albert Van Dicey wrote the book which talks about the Rule of Law. He was
against discretionary power. He was confused between reasonable powers and discretionary
power. In 1963, a landmark judgment related to principles of natural justice was given by the
House of Lords – Bridge v Baldwin [1964 AC 40]. In 1978, the SC of India talked about post
decision hearings in Maneka Gandhi v Union of India.
 Administrative law is dynamic and is still developing. Earlier only two principles of natural
justice were there. Administrative law is also called judge made law because it was
developed owing to the proactive approach of the judiciary. It is very different from the civil
law system. According to common law system, principles are developed by the judiciary,
however, under the civil law system, everything is regulated by a statute. Administrative law
deals with action and inaction of the state.
NATURE OF ADMINISTRATIVE LAW
 There’s no comprehensive definition of administrative law. Administrative law is an interface

between the state and the people. It regulates the regulation between these two parties. It is
required to be regulated to protect the interest of the other stakeholder. If there is no
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requirement of principles of natural justice, then the state may take any action. Due to this
control mechanism, if there is any action where the principles of natural justice are not
applied, then the remedy of judicial review can be taken. Administrative law is a part of
public law. Private law does not deal with admin law. Public law deals with the relations
between the state and individuals whereas private law deals with relations between
individuals. The concept of deemed state (a particular institution treated as a state only for a
specific function) is not recognised by administrative law.
8th September 2020
 Administrative law is applicable to only those actions which fall under the domain of
administrative action. Judicial action is beyond the scope of admin law though they do
perform certain admin actions. We are only concerned with the actions performed by admin
agencies. Though there is no comprehensive definition of administrative law, some scholars
have given the following definitions:
1) Ivor Jennings – Admin law is the law relating to administration (public administration).
It determines the organisational structure, powers and duties of administrative
authorities. In other words, it is a composition of powers, duties and organisational
structure of admin authorities.
2) Professor Wade – He was a leading scholar in administrative law and contributed

significantly to the development of administrative law. According to him, admin law is
“the law relating to control of governmental power.” Hence, it is an instrument of
controlling administrative action. When it comes to controlling administrative action,
Judicial review is the most effective tool. He also propounded the Red Light theory.
3) AV Dicey – He described three basic features of admin law:
i. Admin law determines the position and liabilities of all state officials.
ii. Admin law determines civil rights and liabilities of private individuals in their
engagement with officers of the state admin authorities.
iii. Admin law determines the procedure through which these rights and liabilities are
enforced. This procedure also required to protect the interests of the state.
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As mentioned above, none of these definitions are comprehensive. Jennings only talks about
composition; Wade only talks about controlling admin action and Dicey only talks about the
features of administrative law.
CHARACTERISTICS OF ADMINISTRATIVE LAW
 Administrative law has the following features and they are reflective of its scope and nature:
1) It deals with the interface between state and private individuals
2) It is concerned with administrative actions performed by admin authorities.
3) It is a branch of public law. It is very much connected with the constitution law.
4) Admin law is not a codified law unlike CrPC, IPC etc.
5) Admin law is dynamic in nature. It keeps on changing and is not static. Earlier only two
facets were recognised in principles of natural justice. Changes with the mandate of
state as well as the demands of people.
6) It is a judge made law with judicial review being an important tool. It follows the
system of common law. Judicial review is important to ensure accountability of admin
action.
7) Admin law controls admin actions performed by three organs of the state. It is a tool of
facilitation as it facilitates administrative authorities to make rules and regulations. It
also grants them discretionary powers. Basically, it is a tool of control and facilitation
for good and smooth governance. Control through detective and preventive tools.
RECOGNITION OF ADMINISTRATIVE LAW
 The United Kingdom – It does not have a written constitution but governs the nation
through some fundamentals of governance. Dicey has significantly contributed to the
development of admin law in UK and globe in general. Dicey’s book on the Rule of Law was
published in 1885. It is to be noted that the doctrine of Rule of Law has been criticised by
modern thinkers.
 Statutory Instrument Act, 1946 – It deals with creating delegatory legislation, its
procedure and requirements.
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 Tribunals, Courts and Enforcement Act, 2007 – To administer all the tribunals created
in the UK. It also provides their jurisdiction. It deals with regulation of quasi judicial
authorities. These are special authorities created to resolve disputes related to
government and instrumentalities of states.
 Crown proceedings act 1947 – The UK has a specific legislation to regulate the
vicarious liability of state. This statute deals with that. In India we do not have a
specific legislation to regulate the vicarious liability of the state though it has been
recommended by various scholars and the first Law Commission of India. It all started
in 1861 when Calcutta HC differentiated between sovereign and non-sovereign
functions of the state in the Peninsular Navigation case. Now it is covered by Article
300. This interpretation has been done by the SC. Initially, “the King can do no wrong”
maxim was followed. This maxim is no longer followed. A government servant can
now be held accountable. There are specific institutions which deal with the liability of
state.
 Doctrine of Separation of Powers – There must be a clear separation of powers among

the three organs. Through the Constitutional Amendment Act, 2005, which came into
effect from 1st October 2009, the UK SC was given the specific jurisdiction to deal with
issues. Before that, all this was done by a special committee of House of Lords.
Otherwise, the legislature controlled the judicial actions as well.
 RTI 2000 – India has also followed UK’s model in form of RTI Act 2005. RTI is an
instrument of transparency.
 The United States of America – They have a federal system where federal and state laws
have been enacted.
 They have clearly demarcated the powers of the three organs. Their written constitution
has recognised the doctrine of separation of powers. In India, the separation of powers
is very different. In true sense, we have hardly recognised the doctrine of separation of
powers in its true sense.
 Article 1 – Legislative powers: Congress
 Article 2 – Executive powers: President
 Article 3 – Judicial powers: Judiciary
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 Administration Procedure Act, 1946 – deals with recognition of principles of natural

justice. Its essential requirements.
 Freedom of Information Act, 1966 – access to public information
 Federal Torts Claims Act, 1946 – seeks accountability of state. A public servant can be
held liable under this statute. The state can also be held vicariously liable.
 France – It is regulated by civil law system. In 1799, Napoleon introduced the Droit
Administratif to protect the public administration from interference of the courts. However,
now the situation has turned. Now that agency seeks accountability of public servants though
the jurisdiction of civil courts is still barred. They have recognised some of the facets of
admin law.
 India – Constitutional law is the Master whereas Administration law is the Servant.
Constitutional law provides the substance which is executed by the admin law.
 Article 14 – Rule of law – It protects against arbitrary action of the state. Equality
before law. unreasonableness of admin action. The action can be subjected to judicial
review.
 Article 12 – It defines what is state and admin law regulates the interface between
private individuals and the state.
 Article 16 – It provides for equal opportunities in terms of employment. When it comes

to public employment, people should be treated at par.
 Article 19 – The right to freedom of speech and expression has been recognised by the
SC in SP Gupta judgement wherein the right to information was treated as an integral
part of freedom of speech and expression. Even the right to form association is covered
since certain public servants such as armed forces cannot form associations.
 Article 21 – It recognises the due process of law. the principles of natural justice have
been recognised by this article.
 Article 226/227 – it deals with judicial review of administrative action. Judicial review
is an instrument of control over administrative action. Article 226 deals with procedural
requirements. While exercising this power, the HC cannot delve into the merits of the
case. There are 5 grounds on which administrative action is subject to judicial review
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i. Illegality
ii. Irrationality – Wednesbury corporation judgment – 1948 – three principles

regarding irrationality were laid down.
iii. Proportionality
iv. Procedural impropriety – whether principles of natural justice are followed
v. Legitimate expectation – latest development
 Article 32 – No administrative action can take away any fundamental right. PIL can be
filed in the SC in case rights are infringed.
 Article 136 – The SC has the discretion to either accept or reject the SLP. There is
involvement of some sort of judicial review.
 Article 323A – It deals with creation of administrative tribunals for service matters. The
central government has the powers to create these tribunals. The matter can also be with
regards to recruitments disputes.
 Article 323B – It deals with tribunals other than service tribunals. Labour tribunals, etc.
 Article 323C and 323D – Lokpal and Lokayukta
 Article 299 – The power of the state to enter into contracts. Whenever a state enters in
an agreement with an private party, then it falls under the domain of admin law.
 Article 300 – It deals with vicarious liability of the state. The state will be held
accountable for non-sovereign functions. There is an exception according to which the
state can also be held accountable for not performing sovereign functions. State will
also be held liable for the violation of fundamental rights.
 Administrative Tribunals Act, 1985 – It deals with service matter disputes related to
public servants.
 RTI Act, 2005 – empowering people to access public information
 Tribunals – Many quasi-judicial authorities have been created – MACT, Consumer

courts, etc. The Indian constitution is the mother of admin law and has recognise
various facets of admin law.
10th September 2020
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IMPORTANT SOURCES OF ADMINISTRATIVE LAW IN INDIA
 Various facets of admin law have been recognised by various statutes of India. It is now a
specific branch of law, though it has not been codified. It is basically a judge-made law.
There are four fundamental sources of admin law in India:
(1) Constitution of India
 It is the supreme document of governance and is to be followed by all the organs of the state.
In real practice, the Supreme Court is the custodian of the constitution. In case there is any
dispute between the organs, the Supreme Court will take care of that in lieu of its original
jurisdiction. The Constitution is the fundamental source of administrative law. It is the
mother of all the laws. The scheme of Indian constitution suggests that all the facets of admin
law have been recognised by it. Article 12 which defines the state. The concept of deemed
state is not applicable to administrative law. Tt is the starting point of amin law. Article 14
deals with equality and it is fundamental basis of the Rule of Law. People should be treated
without any discrimination. Article 32 is important to understand various dimensions of
judicial review of admin law. Article 309 is related to protection of public servants, though
there are certain exceptions to it. Principles of natural justice can be exempted in three
situations which have been provided in Article 311. The doctrine of Separation of Powers has
also been recognised by the Indian Constitution. It also talks about concentration of powers
which has been dealt with by the Constitution and administrative law is supposed to regulate
the interface between the state and the citizens. The tool of Judicial Review has also been
provided under the Constitution. Schedule 7 allows the states and the centre to create
administrative authorities. Many regulators such as RBI, SEBI have been created by primary
legislative activities. Article 323A – deals with creation of service tribunals. Inserted with the
42nd Amendment Act. By exercising this power, the central government has created various
service tribunals. There is a substantive provision and then only administrative authorities can
be created. Article 323A – provides for creation of a tribunal. Hence, the power is available.
The central government under this power has created a tribunal under. Hence, an analysis of
the scheme of Indian Constitution would suggest that admin law has been recognised by the
Constitution. In the absence of this recognition, admin law would not survive as there is no
other independent statute. Admin law is an integral part of the public law which is governed
by the Constitution.
Difference between Admin law and Constitution law:
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a) Codification - UK has codified some of the facets of administrative law like the Crown
Proceedings Act, 1947 but they don’t have specific law. In case of Constitutional law,
they don’t have a written constitution but are governed through basic fundamentals of
governance.
b) Administrative law is subordinate whereas Constitutional law is supreme.
c) Constitutional law provides the substantive provisions whereas the admin law executes
them. Admin law is bound by the mandate of the constitution.
(2) Primary Law
 Primary law is made by the legislature. It is the duty of the legislature to legislate. When it
comes to secondary legislation, it deals with ancillary matters. Rules can be formed by
executive under delegated legislation. The power of making primary law cannot be delegated
by the legislation. But incidental power for effective functioning of admin authorities, powers
can be delegated. In case of quasi legislative action, the law is made by the Executive under
the delegation of powers. Overall, primary law is the major source of admin law. Various
regulations, special tribunals, administrative authorities such as EPFO, regulators such as RBI
and SEBI have been created to regulate the admin actions of state.
(3) Ordinance/Rules/Regulations
 Article 123 allows the President {executive} to legislate in special conditions. Similarly,
Article 231 allows the governors.
 Difference between Rules and Regulations: Legal status of these terms is different. Rules are
always framed by the central/state government to deal with external governance of some
institutions such as SEBI. Rules have been framed by the central government to govern SEBI.
Regulations are meant for the internal governance of a specific institution. For example,
SEBI has been given the power to frame regulations. Rules are framed by the government
and regulate the institution externally. For instance, legal status of UGC Regulations:
Guidelines are only for the purpose of directions/advise. Government schemes are made as a
party of delegated legislation. Powers are given to admin authorities to frame schemes. These
are very different from normal admin action and there is not requirement of principles of
natural justice. Secondly, rules are unique but regulations are not.
(4) Judicial Precedents
15
 Administrative law is a common law phenomenon where the principles have been recognised
by the judiciary. The judiciary has significantly promoted the advances of administrative law
in India. For instance, the concept of PIL was recognised by the court. There are various
other instances:
SP Gupta v Union of India – AIR 1982 SC 149 – The access to public information was
recognised by the court.
Kesavananda Bharati v State of Kerala – AIR 1973 SC 1461 - 24th April 1973 – 13 Judges –
The doctrine of Basic Structure was created: Judicial review, separation of power, rule of
law, independent of judiciary etc. This basic structure cannot be diluted by any organ of the
state.
IR Coelho v State of Tamil Nadu – AIR 2007 SC 861 – 9 judges – Para 58 – This view held
in Kesavananda Bharati was reiterated by the SC. The court recapitulated various facets of
admin law. The case was related to the 9th Schedule.
AK Kraipak v Union of India – AIR 1970 SC 150 – 5 judges – It deals with application of
principles of natural justice to administrative action with civil consequences. It relates to the
specific issue of rule against bias. One of the committee members was also the candidate in
the UPSC exams. After the UPSC result was released, it emerged that the committee member
topped the paper.
Maneka Gandhi v Union of India – AIR 1978 SC 597 – Post decision hearing
Peninsular and Oriental Steam Navigation Company v Secretary of State – (1861) 5 Bom.
HCR App. 1 – The court distinguished between the sovereign and non-sovereign functions of
the state.
State of Rajasthan v Vidyawati – AIR 1962 SC 933 – The Court placed the government on
the same pedestal as any other individual and held that it would be liable for the tortuous acts
of its servants in the course of employment.
Kasturi Lal v State of Uttar Pradesh – AIR 1965 SC 1039 – Followed the case of Peninsular
and Oriental Steam Navigation Company.
Lucknow Development Authority v Mk Gupta – AIR 1994 SC 787 – Personal accountability

of public servants. Why should public money be wasted for such wrongful actions?
Therefore, the doctrine of public accountability was developed by the SC. There were some
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issues with respect to COPRA. In case of vicarious liability, the moment the servant is held
liable, public money is used and the public servant is not made to undergo anything.
State of Orissa v Binapani Dei – AIR 1967 SC 1269 – Application of principles of natural
justice to disciplinary inquiry. The SC followed the case of Bridge v Baldwin.
In re Delhi Laws Act, 1912 – AIR 1951 SC 332 – nature and scope of delegate legislation.
What can be delegated and what cannot be delegated.
 The SC has also pronounced various judgments related to good governance in order to protect
the interests of the pubic against the arbitrary exercise of power by administrative authorities.
11th September 2020
FACTORS CONTRIBUTED
 The factors that contributed to the advancement of administrative law can be categorised into
four categories:
(1) Involvement
 Initially, the role of the state was confined only to the protection of people from external
threats and taking care of the welfare. The doctrine of “King can do no wrong” was operative
and consequently, the king was not held accountable for his actions. With the advancement of
time, the State started performing multifarious operations. As a result, various administration
authorities such as the RBI to regulate fiscal matters, the UGC to regulate education system,
the SEBI to regulate financial markets, the TRAI to regulate the telecommunications etc were
created. Consequently, it was felt necessary to create a specific branch of administrative law
to ensure the accountability of the state by creating a special mechanism.
(2) Positive Actions/ Failure of the Organs of the State
 The failure of the three organs of the state also contributed towards the growth of
administrative law.
 The Legislature – It is supposed to declare new rights and liabilities through

legislations: Primary or secondary legislations. Rights are also created through
secondary legislations.
 The Judiciary – It is supposed to declare existing rights and liabilities. It cannot dictate
the Legislature to make laws. Even though the judiciary has been severely criticised for
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its proactive approach, the bitter truth remains that judicial interpretation to law has
given new dimensions to the existing law. For instance, vicarious liability, absolute
liability, right to privacy, etc. If the Legislature does not take action, then it is bound to
happen. For example, when the minority Mahmohan Singh government did not take
steps to tackle the scams, the Apex Court stepped in. However, in the current scenario,
the current government has a majority and hence the Court is not involved to a great
extent. Therefore, it all depends on the power equation between the two organs in
reality. Additionally, the judicial system is formal, complicated, costly and time
consuming. Due to the rigidity of the system, people do not trust the system. Rather,
they approach the court because of compulsion. The judiciary itself has accepted this
view in many of its judgments.
 The Executive – It is supposed to execute existing rights and liabilities. It may come
out with delegated legislations.
 Admin law is judge mage and is protected by the judiciary. Starting from 1610 to 2020, many
aspects of admin law have been protected by the judiciary. However, there are some
limitations. When it comes to access to justice, speedy access & economical justice, the
judiciary has failed to provide so. The judiciary has accepted that because of the complicated,
costly and prolonged process this has happened. Therefore, you have the ADR system and
quasi-judicial authorities. There is a distinction between quasi-judicial action and judicial
action. If there is no system of tribunals, the judiciary is bound to collapse because of
pendency of disputes. These specialised tribunals ought to be headed by specialised
professionals and not retired judges. The purpose of these tribunals is to provide speedy and
effective justice in an informal way. The state was compelled to create the system of
tribunals.
 The legislators are not experts since there are no qualifications required to become a MP. Due
to their inabilities of dealing with issues, the concept of delegated legislations becomes
important. Even though law making process is very time consuming, when it comes to laws
relating to the benefit of MPs, they get passed within minutes. However, whenever a law
relating to public interest is concerned, it takes a long period of time to get passed. The
Lokpal Bill was introduced in 1968 on the recommendation of a law commission report.
After a series of discussions, it was introduced in 2013 due to the public pressure. The
Legislature has failed to provide proper legislation. It can’t take care of urgent situations.
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Many factors have led to the development of delegated legislation. Delegated legislation is
framed by the executive. It empowers the executive to take appropriate action. The Executive
is far more qualified when compared to the legislature.
 Absolute power corrupts absolutely. Public servants are under the impression that they are the
owners of public offices and public resources. It is evident from the judgments of the SC. The
tool of judicial review is necessary in such situations to control abuse of powers. If there is no
control, then the resources are bound to be misused. The admin authorities cannot take
actions as per their whims and fancies. Hence, a control mechanism is required. Because of
abuse of power by admin authorities, the judiciary has created some tools to ensure
accountability.
 In real practice, the majority of public servants are not held accountable personally. If an
action is not taken in accordance with law, then the judiciary can be resorted to. But we don’t
have a mechanism to hold the public servant accountable who abused their position in the
first place.
 Discretionary power - Admin authority has the choice - whether or not to take the action. For
instance, in issues like conducting NEET. This discretionary power is always limited and
controlled.
(3) Demand for Good Governance
 India has witnessed various people’s movements demanding good governance. All the tools
like access to public information, Lokpal, e-governance system etc have emerged as a result
of demand for good governance. RTI act was introduced due to such demands. There are
many e governance related schemes such as e-lectures, e-licensing, etc. Through e-
governance, people have tried to rule out corruption and malpractices by facilitating
administration authorities. Due to these demands, various tools were developed by the state
and supported by the judiciary. It is to be noted that the judiciary has not recognised RTI as a
tool for good governance. An RTI application has to be filed as per the rules laid down by the
RTI Act but the SC and the HCs do not follow this process. Nevertheless, E-access to public
services is a wonderful tool which can ensure transparency. However, there are some issues
with respect to control and manipulation of these services.
MANDATE OF ADMINISTRATIVE LAW
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 Administrative law is necessary to facilitate transparency and accountability in functioning of

the three organs of the state. There are three basic mandates of administrative law:
(1) Control
 It is necessary to exercise control over administrative action. Administrative authorities are

required to ensure that all powers are exercised in accordance with the relevant law. Nobody
is above the law. For instance, if there is a public appointment, then It is to be done as per the
law. Control is required because of abuse of powers. If there is no control, then the law would
not be followed and powers would be misused. Admin law is a controlling tool over
arbitrariness and unreasonableness. The control mechanism ensures that one is not acting as
per their whims and fancies. It is the objective of admin law that the power exercised by
admin authorities within the bounds of law. There should not be any abuse of powers and
arbitrariness in their actions.
 Professor Wade propounded the Reg Light theory in this regard. According to him, we need
admin law to keep powers of the government within their bounds so as to protect the citizens
from the abuse of powers. If there is no control, there is no protection. There is a district
nexus between control and protection.
Bhim Singh v State of Jammu and Kashmir – (1985) 4 SCC 677 - A member of legislative
assembly was detained illegally by the police. Specific action was challenged and was
awarded compensation of 50k. His interest was protected by the SC by relying upon the
mechanism laid down by the Constitution.
Nilabati Behera v State of Orissa – (1993) 2 SCC 746 – Son of the appellant was arrested
illegally. During the course of investigation, the person dies in police custody. The SC came
out with the instrument of liability of the state in performance of sovereign functions.
Rudul Sah v State of Bihar – (1983) 4 SCC 141 – Illegally detained for 15 years. This
confinement was challenged. He was awarded with 35K rupees. It is a reflection of the
approach that the status of the person is taken into consideration the payment of damages.
Discretionary power is inevitable in the 21st century. But what is important is that they are of
a controlled and limited nature.
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Article 300 – Not completed because we have not developed a specific law, however, it
remains to be important because it has been interpreted by the courts to hold the state guilty
for vicarious liability.
 Two types of control can be exercised when it comes to administrative action:
1) Preventive Control – Principles of Natural Justice, Rule of Law, Controlled and

limited discretionary powers, & delegation of powers. Available at the time of taking
actions.
2) Curative Control – Judicial review, vicarious liability and personal accountability.

Available after the action has been taken.
In real practice, people do not take cognizance of all these facets and one has to approach the
courts. The PNJ are not actually followed by administrative authorities because of the lack of
enforcement and accountability. It leads to abuse of powers. Administrative law protects
people at large and hence, individuals are also protected.
2. Protection of - always available to those who have followed the ROL.
Admin law protects individuals from the arbitrary actions of administrative authorities.
Individuals by themselves are not strong enough to protect themselves from misuse of
powers. Hence, control is required. There is a direct connection between the quality of
control mechanism, the effectiveness of control mechanism and the protection available to
the people at large.
Ranjit Thakur v Union of India – (1987) 4 SCC 611 - Abuse of powers -
Employed in army and had certain grievances against his commanding officer. He filed a
complaint against his commanding officer to his superior. After that, the commanding officer
filed a charge sheet against Ranjit Thakur. Consequently, he was confined to imprisonment
for 28 days. He refused to take his meals. The chargesheet was framed by a subordinate of
the commanding officer. Ranjit was court martialled and the commanding officer was also a
member of the committee. He was imprisoned for two years, removed from service and was
declared unfit for future employment. After imprisonment, Ranjit approached the HC and
then the SC.
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SC came down heavily on the commanding officer and the army. The SC applied the rule
against bias. The specific action taken by the army was also disproportionate since the army
officer merely refused to take his meal.
CO himself was the subject matter and has a personal bias.
There are three facets of the Rule against Bias.
PNJ:
Audi Alteram partem – A person cannot be condemned without being heard
1. Prior and proper notice
2. Hearing – reasonable opportunity of being heard
Rule against bias – A person cannot be a judge of his own cause. A person stands disqualified
of
1. Subject matter bias
2. Personal bias
3. pecuniary bias – Admin authority taking the decision has some proprietary interest
involved.
Speaking order
Good faith
In case there is a deviation from these four points, then the admin action is subject to judicial
review.
The protection of administrative law is only available in case of legitimate benefits but not in
cases of illegal/undue benefits.
Ganpath Singh Gangaram Singh Rajput v Gulbarga University – (2014) 3 SCC 767 –
Gulbarga University floated a notification inviting applications for the post of a lecturer in
MCA. The university appointed Ganpath (the Appellant), who had a MSc in Mathematics, as
the lecturer. Shivanand (the Respondent), challenged the appointment before the HC
contending that mathematics is not a “relevant subject” as mentioned in the notification and a
division bench quashed the appointment of the Appellant. An appeal was filed before the SC.
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The Appellant’s main contention was that when an expert body i.e. the Board of Appointment
consisting of high academicians, has found the Appellant eligible and qualified and which has
been approved by the Syndicate, another expert body, the HC ought not to have acted as a
court of appeal to examination the decision. The Court agreed that importance is to be given
to the view taken by the expert body, however, to say that expert body’s opinion deserves
acceptance in all circumstances and is not subject to judicial review is not acceptable. In our
constitutional scheme the decision of the Board of Appointment cannot be said to be final and
absolute. Any other view will have a very dangerous consequence and one must remind itself
of the famous words of Lord Acton “power corrupts and absolute power corrupts absolutely”.
Holding that mathematics cannot be considered as the relevant subject, the appeal was
dismissed.
JSM – It is related to the specific appointment of a lecturer and there was a certain eligibility
criterion. The person appointed did not fulfil the criterion. This was challenged by somebody
who fulfilled all the conditions. A person who is not qualified to hold a post cannot occupy it
even after confirmation of appointment.
Union of India v Raghuwar Pal Singh – (2018) 15 SCC 463 – Related to public
appointment.
Respondent in this case was appointed through the backdoor and was subsequently removed
from service without complying with the requirements of PNJ.
No prejudice was caused to the person since he was appointed illegally. In case of illegal
benefits, no protection is available and the due process need not be followed. Para 8.
Any appointement behoves the staturoy
MC Mehta v Union of India – (1999) 6 SCC 237 – Useless Formative Theory – an exception
to principle of natural justice - 1999 –
Rati Pal Saroj v Union of India – 2019 SCC OnLine Del 9451 – Para 24 – The person had
access to his own answer sheets. He modified them and scored good marks. It was later
revealed that he misused his position. His appointment was struck down. There was a clear-
cut abuse of powers who was a part of admission process.
Hypothetical – A lady was denied treatment on the grounds that she was a sex worker and
had a criminal record.
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It involves administrative action with civil consequences. There was no reasonable

justification given by the administrative authorities.
Hypothetical 2 – An old lady was denied treatment merely because she was old. In this case,
there was a proper justification. Hence, the administrative action was justified.
NDMC v Kavinder – SC – 21st July 2020 – DYC -
3. To facilitate governance
 There are certain tools of admin law which facilitate the admin authorities. For example,
delegated legislation. In order to take care of urgencies, the admin authorities can issue
circulars on their own without taking prior permission of the legislature. Similarly,
discretionary powers. The system of e-governance has facilitated governance in almost every
country. These tools provide speedy and economical access to people.
15th September 2020
EXTERNAL CONTROL V SELF GOVERNANCE
 Scholars have developed three major theories in the context of regulation of actions of
administrative authorities:
(1) Red Light Theory
 Propounded by Prof. Wade and Prof. Forsyth, it talks about exercising control over
administrative actions. They have also examined the mandate and scope of administration
law. This theory has emerged from the fear of state absolutism. In the absence of any control,
the administration authorities are very likely to misuse their powers. This theory is limited to
an external control mechanism to regulate administrative actions and does not talk about any
inter control mechanism or self-governance. According to this theory, there is a direct
relation between control and protection. Judicial review is an effective tool for exercising
control over administrative actions and should not be dispensed with under any circumstances
by making a constitutional/statutory amendment. India has recognised this theory through
Articles 226 and 32 of the Constitution. These articles talk about judicial review. It is a part
of the basic structure and ensures that fundamental rights are enforced by the state. Thus, red
light theory is an integral part of the Indian constitution.
(2) Green Light Theory
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 It was given by Clark and other scholars. It only talks about facilitation of efficient operations
of public administration. It emphasises on self-governance and not on any external control
mechanism. It says that administration law does not require any outside interference. The
mandate of administrative law is to facilitate administrative authorities and hence, tools such
delegated legislation and discretionary powers have been employed. Since the scholars of this
theory are against any kind of external control, the merit of this theory is that it recognises
self-regulation and autonomy for effective functioning, wherein delegated legislation and
discretionary powers empower the administrative authorities. The scholars of this theory have
argued that administrative authorities are competent enough to regulate their actions since
they are the experts in the field. However, the demerit of this theory is that those heading the
authorities can be corrupted. People guided by greed are unlikely to abide by the rules of self-
governance. They often feel that they are the owners of the resources and there won’t be any
accountability. In the absence of any accountability, interests cannot be protected.
Additionally, if the discretionary powers are unlimited, then these powers can be exercised by
the whims and fancies of the holder in the absence of any control mechanism. Concentration
of powers can have severe repercussions.
 Internal control mechanism consists of tools such as an Ombudsman system, dispute

resolution committees, and internal appeal system. A person is required to exhaust all the
internal control remedies and then resort to external control remedies. However, in some
cases, the person is not required to exhaust all the internal remedies. For example, if a state
servant is removed from service, then the person can directly approach the labour tribunal but
in case of administrative tribunals, all internal remedies have to be exhausted.
 It is important to have both an internal control mechanism as well as an external control

mechanism to ensure accountability of administrative actions. Rules and regulations are
important because human behaviour is highly inconsistent. If a person is guided by their
emotions, then a control mechanism is necessary.
(3) Ambit Light Theory
 This theory was propounded by modern thinkers. It has recognised the merits and demerits of
both, Red Light theory and Green Light theory. Insofar as administrative actions are
concerned, both external control mechanism as well as self-governance mechanism (which
also includes internal control mechanism) are required. Administrative authorities cannot
self-regulate in the presence of a rigid control mechanism. On the other hand, an external
25
control mechanism is required to ensure accountability of administrative authorities. The

mandate of administrative law is to provide controlled autonomy for effective functioning
and the same has been recognised by this theory.
 This theory has been approved by both India and the UK. Indian Constitution is the
fundamental source of administrative law in India. It has recognised all the facets of
administrative law. Articles 226 and 32 have recognised the external control mechanism of
judicial review. The Seventh Schedule empowers the Legislature to make primary
legislations and through them, powers are delegated to administrative authorities to frame
rules and regulations. For instance, SEBI Act, 1992 empowers SEBI to create rules and
regulations. If administrative authorities are not empowered, then a speedy and economical
access to services would be affected. Hence, many rules to have been developed to facilitate
internal governance. However, only incidental and ancillary powers are delegated to ensure
the effectiveness of the primary legislation.
 There is a connection between the protection of rule of law and administrative action.
Administrative action should be in accordance with rule of law. If any such action violates
the rule of law, then it is subject to judicial review. Everything has to conform to the
principles of superiority of law and equality before law.
FACETS OF ADMINISTRATIVE LAW
 Administrative law is governed by certain fundamentals which have been recognised by the
judiciary. Hence, administrative law is a part of common law.
1) Rule of Law
2) Separation of Powers
3) Administrative Discretion
4) Delegation of Legislative Powers
5) Principles of Natural Justice
6) Transparency and Accountability in Governance
7) Judicial Review
18th September 2020
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RULE OF LAW
 It was propounded by Prof. AV Dicey in 1885. He discussed three facets of ROL. In the 21 st
century, ROL has been recognised as an important feature in governance of three organs of
the state. There is no specific definition of ROL. It has a different meaning in the general
parlance and has a specific meaning in respect of administrative law. ROL means governance
of three pillars of the state in accordance with the law. All administrative actions must be
performed in accordance with ROL. Law must be the sole indicator for understanding the
parameters of governance. ROL is the basis of administrative law and protects against the
arbitrary exercise of administrative powers. This is merely the legal aspect of ROL, and not
the philosophical theories propounded by various scholars. Thus, in the specific sense ROL
means in accordance with administrative law. In general sense it means that all actions must
be in accordance with the law; if there is a specific law, then it must be followed.
 Historical Perspective – ROL has been in existence since time immemorial. It was
recognised as natural justice, fair trial etc by various scholars. Aristotle talked about natural
law. He was followed by Blackstone. Kautilaya then talked about the accountability of a
King. The Magana Carta has also recognised some of the facets of ROL. Sir Edward Coke is
said to be the originator of ROL (Bonham v College of Physicians, 1610). He talked about
ROL in various dimensions and opined that the King is subject to the law as well as the God.
NATURE AND SCOPE OF RULE OF LAW
 The Law of the Constitution – 1885 – Part-II, Chapter IV – he examined some facets of ROL.
There are three fundamental principles:
(1) Supremacy of Law
 The law is supreme and everyone is bound to follow the mandate of law. All organs must be
governed in accordance with ROL. The power should be exercised in accordance with ROL.
The basic objective of supremacy of law is to take care of arbitrary exercise of powers. Law
is supreme and predominant as opposed to influence of arbitrary powers. He was against
discretionary powers. He also emphasised that a man can be punished only if there is a
violation. He was also against the retrospective application of law as it would lead to
discrimination and affect the supremacy of law (both civil and criminal law). Law must have
prospective application only. Article 20 deals with retrospectivity in case of criminal
offences. According to him, no DP should be given to administrative authorities. If DP is
27
given, then they are likely to dilute the supremacy of the law. SC – laid down certain
principles with respect to retrospective application of administrative law. Find.
(2) Equality before Law
 He was of the view that there must be strict equality before the law in the strict sense. There
should not be any preferential treatment. Everybody should be treated at par without
providing any undue advantage to anyone in respect of their status or position. He criticised
the system of administrative tribunals in France. This is so because special tribunals and
courts for govt officials would amount to discrimination. Everyone should be subjected to the
jurisdiction of ordinary courts. He was also against special privileges and immunities since
they defeat the entire purpose of equality. Under Article 14, India follows a liberal conception
of equality. Equals are treated equally and unequals are treated unequally. India has also
recognised immunities, privileges, and reservations. For instance, s. 149 of CrPC, Ss. 79 and
80 of CPC, s. 19 of Prevention against Corruption Act – all provide privileges to public
servants. Dicey’s conception of equality is not applicable in real practice.
(3) Judiciary is the creator and promotor of the ROL
 According to him, rights can only be created by the judiciary through judicial
pronouncements. Rights would be secured more adequately if they were meticulously
enforceable in courts rather than just being written in the Constitutional document. Mere
incorporation in a written constitution is of no use in the absence of effective remedies of
protection and enforcement. If the judiciary is effective, then the ROL would be effective. By
saying that courts are the guarantors of liberty, he was referring to the UK. The UK does not
have a written constitution but is governed by certain principles of governance. However, the
position of judiciary is different in the 21 st century. It may create new rights and liabilities by
interpretation, but it cannot legislate.
CRITICISM OF DICEY
 Before moving on to Dicey’s criticism, it is to be noted that his contributions to the

advancements of administrative law cannot be ignored.
(1) He was confused between DP and arbitrary power
 According to Dicey, AP amounted to DP. Administrative authorities cannot function without

DP. The whole purpose of administrative actions would become redundant without DP. He
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felt that giving DP would be going against the ROL. However, in the 21 st century, no
administrative authority can survive without the support of DP. DP has become an integral
part of the functioning of administrative law, given that it is always controlled and limited.
Unlimited DP would violate the ROL.
(2) System of Tribunals
 He misunderstood the real nature of Droit Administratif. The system was created by
Napoleon for the purpose of preventing the courts from interference in governance. However,
it is not right to say that good governance can take place without tribunals. In the 21 st century,
tribunals have become an inevitable part of the administrative structure. The courts cannot
survive without these quasi-judicial bodies. The judiciary would have collapsed otherwise.
Dicey was of the opinion that creation of tribunals would negate equality.
(3) He was against privileges and immunities
 These are required for effective functioning. An honest public service with integrity must be
protected. In true sense, everyone is protected and there is no distinction. However, Dicey
was against any such privileges and immunities. Many are available to the three organs when
they perform administrative actions.
20th September 2020
PURPOSES OF ROL
ROL means governance in accordance with law. Law must be followed in toto. It is the basis
of democracy; democracy can’t survive and progress without the recognition of ROL. ROL is
sine quo non for democracy. All the three pillars of democracy must be held accountable for
their actions. For other forms of governance, there might be a different set of rules and
regulations, but in a democracy ROL is pre-requisite condition for good governance.
First 10 minutes of recording
DP always includes subjectivity.
One of the facets of ROL takes care of Rule of Men. ROL is a set of specific norms which are
required to be followed by each authroitut but when it comes to Rule of Men, it entails taking
actions as per one’s whims and faicnies. There is not accountabilitu and hence the power is
bound to be misused. ROL must be read with the mandate of administrative law.
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Supremacy of law –
Absence of arbitrary power in the governance – 1967 SC – SG Jaisinghani v Union of India –

AIR 1967 SC 1427 – Para 21 – “the absence of arbitaryiness is the first essential of ROL
upon which our whole constitution system is based…”
The case also talks about exercise of DP. It must be in accordance with rules and regulations.
Kesavananda Bharati v State of Kerala - 24 th April 1973 – Para 293, 294 – ROL is a part of
the basic structure of the constitution.
Bachan Singh v State of Punjab - AIR 1982 SC 1325 - 1982 – Recognition of ROL – It talks
about controlling arbitrariness. Justice Bhagwati’s analysis – Para 10 – “ROL permeates the
entire fabric of the constitution and indeed forms one of its basic structure. ROL excludes
arbitrariness and its postulate is…”
IR Coelho v State of Tamil Nadu – AIR 2007 SC 861 – Para 69 – “equality, ROL, judicial
review and separation of powers form part of the basic structure. Each of these concepts is
intimately connected. There can be no ROL if there is no equality before law. These would be
meaningless if violation was not subject to judicial review…”
The Indian Constitution has recognised ROL.
Functions of administrative law, three organs and their accountability in terms of ROL –
Admin actions can be performed by any of the organs. However, a single organ cannot
perform all the kinds of actions. The Legislature cannot adjudicate and the Judiciary cannot
legislate. The Doctrine of Separation of Powers is required to maintain effective functioning.
24th September 2020
 The Indian Constitution has recognised various facets of the Rule of Law:
1) Article 14 – It talks about equality. If any action involves discrimination or arbitrariness,

then it would be unconstitutional. If any power or procedure results in unfairness and
arbitrariness, then it is violative of Article 14. It must be remembered that the entire
constitutional system is founded in accordance with the ROL. In any system so designed,
it is impossible to conceive legitimate power that is arbitrary and beyond reason. Article
14 does not envisage a strict sense of equality, contrary to the Dicey’s conception of
30
equality. It is a liberal form of equality wherein equals are treated equally. Any other
unjustified action is subject to judicial review. Whenever there is a deviation from the laid
procedure, Article 14 can be invoked. If there is a violation of PNJ, Article 14 would be
involved. It is one of the instruments to control arbitrary actions of administrative
authorities. Whenever administrative action is performed in an arbitrary manner with no
reasonable justification, it would be subject to judicial review.
Maneka Gandhi v Union of India – (1978) 1 SCC 248 – It dealt with various facets of
arbitrariness, PNJ and post-decision hearing. The Court examined the scope of Article 14
since it deals with arbitrariness.
2) Article 16 – Helps in treating people at par in terms of certain benefits. It talks about
equality of opportunity in respect of employment. There should be no discrimination.
However, in real sense it happens [People Remuneration Act; repealed now]. If there is
any preferential treatment, then such action can be challenged.
3) Article 20 – It says that criminal law cannot be applied retrospectively. It does not deal
with civil matters. Dicey said that there can be no retrospective application of law: both
criminal and civil law.
4) Article 21 – It talks due process, fair process, and principles of natural justice. It says that
due process must be followed. There are 4 fundamentals of PNJ – Audi alteram partem,
rule against bias, speaking order and good faith. However, these requirements may be
diluted in certain situations to protect the larger public interest. Under Article 311 of the
Constitution, when it comes to important issues, the PNJ can be relaxed and the person can
be removed without following the due process. However, justification is always required.
These contingencies can be:
i. Conviction in a criminal offence

ii. National security
iii. Public interest
5) Article 32 – If there is a violation of fundamental rights, then the aggrieved person can
directly approach the SC. However, there are cases wherein the SC directed the aggrieved
to first exhaust the remedies under Article 226.
31
PUDR v Union of India – AIR 1982 SC 1473 – Asiad Games case – the case is related to
exploitation of workers during a construction for a structure. The letter was treated as a PIL.
In case of larger public interest, the locus standi can be relaxed.
6) Article 226 – It is important for the enforcement of Red Light theory. A person is required
to exhaust alternative remedies before approaching the HC under 226. An appeal shall be
entertained by a division bench of the HC. HC under 226 can act as an appellate authority.
Article 226 deals with only procedural requirements. 226 always deals with judicial
review. Judicial review is also relevant to constitutional law, company law, etc. [Check]
7) Article 136 – It deals the SLP. The SC has the discretion.
L. Chandra Kumar v Union of India – AIR 1997 SC 1125 – With respect to SLPs under
Article 136, the SC held that:
 Appeal against the decision of admin action shall lie before the division bench of HC
 Appeal against the decision of a HC shall lie before the SC
 An aggrieved person cannot approach the SC directly
According to the L. Chandra Kumar judgment, Article 136 has become redundant. If a person
is to approach the HC and then the SC, then it would be difficult for the aggrieved to get
justice. SLP may not be available in case of pure administrative actions, but it may be
available in case of quasi-judicial actions.
 Primary and Secondary legislation – Primary legislations such as The Sexual Harassment
of Women at Workplace Act, 2013 proposed the formation of an ICC and the NLU Delhi Act
proposed a grievance redressal committee to resolve disputes. In both the cases, the ROL has
to be followed.
RULE OF LAW IN THEORY AND PRACTICE
First facet of ROL is the Supremacy of Law. However, the real problem is human behaviour.
We need law to take care of the inconsistency of human behaviour. It is a well-recognised
principle that absolute power corrupts absolutely. If there is no effective control, the power is
likely to be diluted. Abuse of powers would lead to dilution of ROL.
However, in real practice the supremacy of law is hardly exercised.
25th September 2020
32
No delegated legislation can supersede Article 21. It is bound to follow the mandate of the
constitution.
Equality before Law
Equals should be treated at par. Reservation is available in terms of employment

opportunities. Even people deployed in armed forces do not have all fundamental rights.
Article 14 has different connotations when it comes to equality. This is the mandate of Article
14, however, in real life it is not followed. For instance, a person has a fundamental right to
file an FIR but in real life filing an FIR is very difficult for poor people. However, for people
with financial resources and political connections, it is easy. Rape cases have taken months to
merely record an FIR. It is evident that connections and paying capacity make a huge
difference.
Jugaad is detrimental to the principle of equality. Jugaad is a king of manipulation by parties

to have access to public services. It is a kind of domination where the rules and regulations
are completely discarded to give preferential treatment to one person. For instance, it is easy
to get admission/employment through jugaad. Jugaad is everywhere but we must know out
rights.
VIP/VVIP culture: Preferential treatment is given to people in power. Airports etc have
special lanes for VIPs/VVIPs.
The judiciary has also practiced inequality. The process of giving the designation of senior
advocate.
Listing of cases – fairly quick for high profile people. For instance, the case of Arnab
Goswami.
AIR 1990 SC 513 – Saheli Judgment – court talked about personal accountability.
Corruption is rampant. It is not confined to merely monetary corruption. When the quantum
of bribe is low, the conviction rate is high. But where the quantum of bribe is high, the
conviction rate is low. This implies that poor people are punished much more often.
Hierarchy in governance really affects inequality. To get access to public services,

designation plays a huge role. In case of teachers, both Professors and Associate Professors
teach and should get all the benefits.
33
Equality is hardly seen in real practice. People feel that they are above the law and everyone
is subordinate to them. Affluential people keep ROL in their pockets and it is easy for them to
dilute it.
IMPEDIMENTS AFFECTING ROL
1. Hypocrisy and Sycophancy in governance: It is inconsistency in human behaviour to

access public services. Admininstraton repry – talks about recognistion for . CHECK
Second Adminsirtrative reforms commission – 2007
There is no fix bheaviour in human behaviour. It is designed in accordance with the person
occupying the public office because it is a matter of appeasement. One can do anuthin to
extract benefits by aapeaing public servant. This is why ROL is diluted. The public servant
also expects people to behave in a cetatin manner. If you point out inequaltiu, it can be
problematic for you.
The real mantra for success in 21st century – success at any cost, means are not relevant. Do
anything by hook or crook.
2. Lack of personal accountability – Personal accountability means that the public servant
should pay from their personal pocket. A public servant can misuse public resources. We
don’t have a specific legislation for this. Due to lack of accountability, public institutions are
suffering. However, this doctrine is still developing.
3. The State is the biggest litigator – The State is supposed to protect the fundamental rights
of people but in real life, it is the biggest violator. An individual is required to pay costs of a
case by his own pocket, but the state pays out of tax money. Even a public servant has all the
resources even after violating the law. They have the privilege to dilute rule of law. In case of
a writ petition, the minimum charge is ₹1,00,000. Huge pendency is a problem and this is
because of the state to a large extent, it being the biggest litigator. The resources involved in
this are huge.
4. Reluctance to Question illegality/abuse of public resources –
5. Ineffective remedy before Courts –
One talks about judicial review, but when it comes to pertinent issues, JR is not very
effective.
34
The SC in a catena of judgments has held that due to complicated, prolonged, technical and
costly process the judiciary has failed to provide speedy and economical justice. The trust
from the judiciary is evading and it is treated as the last resort.
Who will file the petition?
The person will need to have the required resources
It is easier for an NGO when compared to an individual. There is no specific charge list of an
advocate and it is very subjective. It is a costly affair. It cannot be expected of a common man
to pay from his pocket. This is why violations are never really brought to light. Due to the
low quality of enforcement and empowerment, ROL is hardly respected by the stake holders.
6. Disregard to Ethical standards –
Law is required to regulate human behaviour.
EQ are needed to respect ROL.
There is no demand for honesty and integrity. If there is no demand, then there won’t be any
supply.
India has recognised the convection against corruption. Ratied on 11 may 2011. According t
the concention, we are supposed to have an ethical code for public servanta through whuch
they are supposed to recongise honesty, punctuality, sincerity etc. but in real life, honesty is
punished and dishonesty is rewarded. We don’t respect ethical values. If one expects ROL to
be followed by others, one must follow and recognise it first.
7. Protection to Corrupt Officials –
s. 179 – CrPC – prior notice
s. 19 – Prevention of Corruption Act – prior sanction
s. 80 – prior notice
connection between protection of officials and dilution of rule of law -
35
29th September 2020
Discussed the Modern Concept of Rule of Law
1st October 2020
SEPARATION OF POWERS
It is related to democratic form of governance and is related to the three organs of the state.
Earlier, the King used to perform all the functions. There was a huge concentration of power
and the system revolved around the monarch. This often led to abuse of powers and conflicts
of interests. Consequently, rights and liberty of people were affected. Various scholars have
done a remarkable research in how concentration of powers affected the behaviour of
monarchs and the consequences on their subjects. Demarcation of jurisdiction of different
organs was the need of that time.
Book – Talked about concentration of powers. Aristotle also talked about the connection
between concentration of powers and the rights of people.
Ancient India and Medieval – There was no clear-cut separation of powers. Everything
revolved around the King. French scholars Jean Bodin and John Locke are said to be the
originators of separation of powers. Later on, Montesquieu gave his work on separation of
powers in his book The Spirit of Laws. Governance will be diluted if there is concentration of
powers.
CONCEPT OF SEPARATIONS OF POWERS
Separation of power is sort of a tool of accountability of organs of state. All the powers must
be vested in separate organs. There should not be any dominance. The theory is based on the
notion that power corrupts and absolute power corrupts absolutely. The theory is against
centralisation of powers because it would affect civil liberties. If there is no separation of
powers, then there will not be rule of law. The basic objective of separation of powers is to
take care of the functioning of the three organs. Some amount of harmony is required to be
mandate between the organs and are bound by the mandate of the constitution. No organ is
supreme and is complementary and supplementary to each other.
SELECTIVE NATIONS
36
France – Civil law system – There is no strict recognition of the doctrine of separation of
powers. They have three organs of the state but in real practice the legislature dominates.
They follow a system of Droit Administratif. The actions taken by this system are not subject
to any kind of judicial review. The fundamental difference between civil and common law
system is that in the former, the legislature dominates whereas in the latter, the judiciary
dominates.
The USA – In the US, the separation of powers is followed in a strict sense.
Article 1 – Congress – legislative powers
Article 2 – Executive – president
Article 3 – Judiciary – SC
Hamdan v Rumsfeld – 2006 SCOTUS (AUMF Act 2001) – The jurisdiction of the judiciary
was restricted.
Article 50 – India – confined to only two organs: The Executive and the Judiciary. Article
123.
Indira Gandhi v Raj Narain – Election of Indira Gandhi was set aside by the Allahabad HC.
The matter was brought to the SC. During the pendency of matter, the 39 th Amendment was
made which excluded the election of a PM from the scope of judicial review. The judiciary
interpreted this amendment and the doctrine of the separation of powers was recognised as a
part of the basic structure.
The UK – They don’t have a written constitution and the Parliament is the supreme
legislative authority. At the same time, it has full control over the Executive. The harmony
between the legislator and the Executive is secured through the cabinet. The cabinet is
collectively responsible to the Parliament. The PM is the head of the party in majority and is
the chief executive authority.
Constitutional Reform Act 2005: before the enactment of this act, the judicial committee of
the house of lords used to entertain appeals from the subordinate courts. Now the committee
has been disbanded and the SC of the country is the highest authority. Through this act, they
have tried to recognise the doctrine of Separation of Powers.
Ananaya – Notes
37
IR Coelho v State of Tamil Nadu – 2007 SC 861
The judiciary is the custodian of the Indian constitution.
Violation of the Doctrine of Separation of Doctrine – Namit Sharma v Union of India – 2012
– Related to RTI – Delivered by two judges. – According to the SC, the CIC performs
judicial functions and therefore, it should be composed of judges because the judges have a
judicial mind. This created a lot of difficulties in the functioning of CIC.
Subsequently, a new judgment was passed and the previous one was withdrawn by Justice
AK Sikri in 2013.
AIR 1997 SC 1125 – 7 Judges –
Law Commission Report 205 – Recommended to review the Chandra Kumar judgment.
The Judiciary can suggest/recommend the legislature to legislature but it cannot dictate the
legislature. For instance, the Vishakha case or the UGC case.
Manmohan Singh was heading a minority government. Inclusion of certain individuals in the
Cabinet was challenged before the SC and it was held that the people with criminal
background cannot be a part of the Cabinet. However, Modi ji was allowed to choose whom
to use. Hence, it depends on the power equations.
Suppose that there was a worker employed on a temporary basis for a 5-year period but was
removed before 5 years. The person approached the HC and directed to re-instate the person
and directed the state to appoint him on permanent basis.
6th October 2020
One organ of the state cannot dominate other organs. This is the mandate of separation of
powers doctrine.
BASIC OBJECTIVES OF THE DOCTRINE OF SEPARATION OF POWERS
We require three independent organs of the state to function independently. If there is any
influence, then the governance would be diluted and the citizens would suffer.
1. To reduce power exercisable by any single branch over other branches. The powers of one
organ of the state should not curtail the powers of other organs.
38
2. To avoid concentration of powers in one individual. Basically, to avoid centralisation of

powers. Indian constitution would become redundant if this happens. The mandate is that
organs are not supposed to interfere with the functioning of others.
3. To maintain checks and balances in the functioning of three organs of the state. For
instance, if the president is not appointed properly, then the judiciary can step in. Similarly,
the judiciary is also affected by some sort of control mechanism, though it is not very
effective.
4. No encroachment or superseding other organs of the state.
State of UP v Jeet Singh Bisht – (2007) 6 SCC 586 - Transgression of separation of powers
by judiciary – writ petition was filed and the HC directed the state government to create state
commission and district forums and pay them in accordance with the judicial officer’s norm.
it was contended that how come the judiciary can direct the legislature. (Para 44). Courts
have to maintain self-restraint and encroach upon the functioning of the legislature or the
executive.
SCOTUS – Kilbourn v Thompson – 103 US 168 (1880) – recognised the system of

separation of powers. It is essential to the successful working of the system that the lines
which separate those departments shall be clearly defined and closely followed, and that
neither of them shall be permitted to encroach upon the powers exclusively confided to the
others. But each shall be limited in exercise of its powers appropriate to its departments.
The Spirit of Laws – Montesquieu – Page 151 – If the Executive and the Legislature are the
same person or body of persons, there would be a danger of the Legislature enacting
oppressive laws which the executive will administer to attain its own ends, for laws to be
enforced by the same body that enacts them result in arbitrary rule and makes the judge a
legislator rather than an interpreter of law.
If one person or body of person could exercise both the executive and judicial powers in the
same matter, there would be arbitrary powers, which would amount to complete tyranny
(there would be no respect for ROL as the individual leader can govern as per their whims
and fancies), if the legislative power would be added to the power of that person. The value
of the doctrine lies in the fact that it seeks to preserve human liberty by avoiding the
concentration of powers in one person or body of persons.
39
From the above analysis, it is clear that dilution of the doctrine of SOP would lead to a
dilution of ROL. Hence, to protect individual liberty from arbitrary exercise of powers, we
need a clear demarcation of powers.
State of Bihar v Bihar Distillery – AIR 1997 SC 1511 – the SC has held that the judiciary
must recognise the fundamental nature and importance of the legislature process and must
accord due regard and deference to it. The Legislarure and Excutive are also expected to
show due regard and deference to the judiciary. The court also recognises and gives effect to
the concept of equality between the three organs of the government.
Kalpana Mehta v Union of India – (2018) 7 SCC 1 – The court has summarised the attributes
of separation of powers recognised by the Indian constitution (not recognised in a strict
sense). Basic objective of SOP is to seek accountability of organs of the state.
Judiciary on Separation of Powers
Ram Jawaya v State of Punjab – AIR 1955 SC 549 – The Constitution of India has not indeed
recognised the doctrine of separation of powers in its absolute rigidity but the functions of the
different parts or branches of the Government have been sufficiently differentiated and
consequently it can very well be said that our Constitution does not contemplate assumption,
by one organ or part of the State, of functions that essentially belong to another. The
executive indeed can exercise the powers of departmental or subordinate legislation when
such powers are delegated to it by the legislature.
Asif Hameed v State of J&K – AIR 1989 SC 1899 – The three organs have to function within
their own spheres demarcated under the Constitution. No organ can usurp the functions
assigned to another. The judiciary has the power to ensure that the Legislature and the
Executive function within the constitutional limits and if it is not so the Court must strike
down the action. It is the sentinel of democracy. Judicial review is a powerful weapon to
retrain unconstitutional exercise of power by the legislature and executive. The expanding
horizon of judicial review has taken in its fold the concept of social and economic justice.
While exercise of powers by the legislature and executive is subject to judicial restraint, the
only check on court’s own exercise of power is the self-imposed discipline of judicial
restraint. While exercising power of judicial review of administrative action, the court is not
an appellate authority. The constitution does not permit the court to direct or advise the
executive in matters of policy or to sermonize qua any matter which under the Constitution
40
lies within the sphere of legislature or executive, provided these authorities do not transgress
their constitutional limits.
Namit Sharma v Union of India
FACETS OF SOP
1. Roles of Administrative Authorities and Violation of Separation of Powers:
An administrative authority can perform quasi-judicial action, quasi-legislative action, and

admin actions with or without civil consequences. Hence, one administrative authority can
perform three types of functions provided that there is no violation of PNJ. However, the
judiciary and the legislature cannot perform each-other’s functions. Therefore, there is no
possibility of violation of SOP by administrative authorities because of the nature of actions
performed by them. For instance, SEBI.
2. ROL and SOP –
3. Principles of Natural Justice and Separation of Powers – Concentration of power would

create problems for survival of civil rights. There would not be any fair justice. Violation of
SOP would lead to violation of PNJ.
4. Transparency and Accountability of Admin Action – SOP requires that the three organs are
T and A for all the action. Similarly, admin authorities are also T & A for all of their actions.
5. Corruption and Concentration of Powers – Corruption can be both pecuniary and non-
pecuniary. Montesquieu’s analysis says that concentration of powers would lead to
Arbitrariness. There is no accountability. If one person is allowed to execute all orders, it
would certainly lead to corruption. Human nature inclines towards greed and abuse of
powers.
6. Delegation of powers and SOP – DP is incidental and SOP is very specific. The three
organs can violate incidental powers and, in that case, there won’t be any violation of SOP.
Primary adjudicating powers can’t be delegated but secondary adjudicating powers can be
delegated (tribunals etc). Hence, DP does not lead to violation of SOP.
7. Post retirement benefits and SOP –
41
Can the judiciary direct the legislature to appoint temporary employee on permanent basis? –
Appointment is to be made by the authorities and not judiciary. Such arrangement would
amount to violation of SOP.
Can the legislature bar the jurisdiction of courts? – Raj Narain – Article 329A barred the
jurisdiction of the case. The legislature cannot do so. The judiciary cannot direct the
legislature to modify the law.
Vishakha Judgment – Made recommendations to the legislature in 1997.
Judiciary modify the constitution – Yes. Happened in the case of L Chandra Kumar
Can the judiciary direct the legislature to make law or amend law? – Article 309 gives powers
to the central as well as state government to make laws.
AIR 1990 SC 1251 – The judiciary cannot direct the legislature or the executive to
repeal/make/change law.
Can the judiciary direct the executive to create posts?
Justice AK Mathur and Katju – 2007 – Divisional Manager, Aravalli Goals v Chandra Has
and others – 6th December 2007 – the HC directed the state government to create some posts
of gardeners. People were appointed on temporary basis for many years without full benefits.
The judiciary cannot act as a recruiting agency. Judges must exercise restrain while
performing their functions. Appointment is a function done by the executive and the judiciary
cannot direct the executive to create posts. The judiciary cannot dictate them.
1985 – issue before the SC was whether the judiciary can direct the state to come out with a
scheme for admission to various courses
State of HUP v A Parent of a Student of Medical College –
DROIT ADMINISTRATIF
Slides are sufficient.
9th October 2020
ADMINISTRATIVE ACTIONS
 Admin law is an interface between the state and the citizens. Admin actions are not confined
to executive actions but relate to the actions performed by the three organs of the state.
42
Admin law is a branch of public law. It is very dynamic. It keeps on changing. Initially admin
law was confined to only three types of admin actions. Now more categories have emerged
because of the substantial contributions made by the judiciary and scholars. Hence, it is a
judge made law. It is an uncodified branch of law.
 Interface between administrative law and administrative action – Admin actions are the
originating point of admin law. If an action is not an admin action, then admin law won’t be
applicable. It all depends on the nature of the action. Admin law cannot exist without admin
exist.
CLASSIFICATION OF ADMIN ACTIONS
1) Quasi-legislative Action – Also recognised as delegate/subordinate legislation
2) Quasi-judicial Action– deals with adjudication
3) Pure admin action:
i. civil consequences
ii. without civil consequences
Can one admin authority perform all admin actions? If yes, then would it amount to violation
of doctrine of SOP? What are the restrictions on performing these activities by one person? –
All administrative actions can be performed by one person. It would not be a violation of the
doctrine of SOP. For instance, SEBI. The fundamental principle is that the SOP doctrine is
confined to the primary functions performed by the three organs of the state. However, there
are some restrictions when one person is performing all administrative actions. It would be
difficult to take the remedy of judicial review and apply the PNJ if a classification is not
made between admin actions.
WHAT CONSTITUTES AN ADMINISTRATIVE ACTION?
Admin actions are admin activities performed by admin authorities. Their jurisdiction is
limited. They do not have any concern with judicial actions or primary legislative activities.
NECESSITY OF CLASSIFICATION
(1) To know the nature and scope of the actions
43
In case of quasi-judicial actions, it involves adjudication of disputes. It has some trappings of

civil courts. While performing QJA, admin authority cannot legislate.
Pure admin action is a residue of the other two kinds of actions.
DL is also known as administrative legislations. To understand the nature and scope of all
three admin actions. Classification is necessary.
Examination Regulations framed by DU – delegation of legislation activities.
Suppose that a resolution is passed by an admin authority. This governing council was
chaired by a chief justice of a HC. Whether the resolution can supersede article 14?
What are the grounds on which the specific action is subject to judicial review.
The nature of action will dictate whether there was any requirement of PNJ.
In case of delegated legislation, adjudication cannot happen. The judiciary cannot issue a writ
of mandamus to direct delegated legislation.
13th October 2020
(2) For the purpose of determining the procedure to be followed
 Quasi-Legislative Action involves a creation of rights and liabilities so there can’t be any
requirement of PNJ though mandatory consultations can be there. The SC has made it clear
that there is no requirement of PNJ in QLA. The general public is not required to be heard
when it comes to framing of rules and regulations. It is also applicable to primary legislative
activities though we have a system of consultation with committees in some cases.
Additionally, if the principal act says so, then delegated legislation may be required to be
notified in the official gazette. Right to be heard in case of legislative activities is different
from right to hearing under quasi-judicial actions. The objectives and mandate are different in
both the cases. When it comes to quasi-judicial actions, adjudication is involved and hence a
mandatory requirement of PNJ due to rights of the parties. In South Africa, there are some
provisions in the law which require that stakeholders should be consulted in formulation of
primary and secondary law. In India, there are no such provisions.
KT Plantation Private Limited v State of Karnataka – (2011) 9 SCC 1 – According to this

case, delegated legislation which is a legislation in character cannot be question on the
ground of violation of PNJ in the absence of any statutory requirements.
44
(3) Remedies – In-House or External
 Administrative action needs to be classified for the purposes of remedies available, whether
inside (committee, board) or outside (tribunal) remedy. The nature of action will dictate the
procedural requirements. Quasi-legislative action can be challenged for the abdication of
legislative activities or fundamental duties of the legislature. An appropriate writ can be
issued by the HCs/SC. However, the writ of Mandamus (deals with to take action or not to
take an action) cannot be issued in case of delegated legislation. Since delegated legislation
involves delegation of legislative actions and in case the administrative authority has the
discretion to formulate rules, then the writ of Mandamus cannot be issued. However, if the
authority mandatorily has to frame rules/regulation as a part of public duty, then a writ of
Mandamus can be issued.
 Quasi-judicial action can be challenged under Articles 32 and 226. The writs of Certiorari
and Prohibition can be issued in such cases. It is to be noted that these two writs can also be
issued in case of Quasi-legislative action if there is a violation of a constitution provision or
statute. These two writs can be issued on the following three grounds:
i. Lack of Jurisdiction
ii. Failure to Exercise Jurisdiction
iii. Excessive Jurisdiction
 Are policy matters covered under delegated legislation subject to judicial review? – Policy
matters do not deal with adjudication. They pertain to law making activities.
BALCO Employees’ Union v Union of India – (2002) 2 SCC 333 – The SC has made it
clear that policy matters are beyond the scope of judicial review. But policy matters are
subject to judicial review if there is a violation of the constitution or the enabling act or any
other statute on the grounds of irrationality & illegality. But DL cannot be questioned on the
ground of procedural impropriety in terms of PNJ.
 PNJ are applicable to pure administrative actions in cases of civil consequences. These were
recognised in 1963 in R v Baldwin. The court applied PNJ to a case of prejudice caused by
administrative action. This judgement dealt with civil consequences which was later affirmed
by the Indian SC.
Mahendra Singh Gill v Chief Election Commissioner – civil consequences defined
45
CLASSIFICATION OF ADMIN ACTIONS
State of NCT of Delhi v Sanjiv – AIR 2005 SC 2080 – The court tried to define the term
“administrative action”. Administrative action is stated to be referable to broad area of
governmental activities in which the repositories of power may exercise every class of
statutory function of executive, quasi-legislative and quasi-judicial nature.
 There are three types of Administrative Actions:
1. Quasi-Legislative – DL, Secondary Legislation, Rule-Making Powers -
2. Quasi-Judicial Action – Administrative Adjudication –
3. Purely Administrative Action – Residuary Actions
With civil consequences – still developing. Started in 1963 in Bridge v Baldwin.
Without civil consequences – PNJ not applicable
 Administration is the meeting points of the three government functions. Admin law is not
restricted to just one organ. Deals with all admin actions performed by the three organs.
Delegated Legislation
 There are two types of Legislative activities:
1) Primary law-making activities – Enacted by the Legislature. Schedule-7 has provided

three lists. Powers are given to respective governments to make, repeal and amend laws. It
also includes power to delegate. Power to make primary legislation cannot be delegated.
2) Secondary law-making activities – Delegated legislation. Only incidental powers are

given: rules, regulations etc. Originated from the mandate of power to legislate. The
legislature is the master of delegated legislation. It has the right to take away these powers.
DL is always limited and controlled. The legislature has to create some control
mechanism.
 Article 145 – The SC has the power to frame rules and regulations. HCs have also framed
certain rules. Certain the delegated legislative powers are vested with the judiciary. However,
in real practice, Artic 145 has been taken as an integral part of primary legislation activities.
Some of the provisions framed by the SC have superseded the RTI Act although there is a
46
provision in the RTI Act which provides that no rule or regulation cannot supersede the RTI
Act. Ideally, rules framed under Article 145 would be a part of delegated legislation.
 Two types of controls can be exercised over administrative action in terms of DL –
1. Judicial Control
2. Parliamentary Control
Quasi-Legislative Action
 QLA is always limited and controlled. Generally, there is a provision in the enabling act that
the central government or the state government shall legislate on a certain number of items.
The rules and regulations can only be framed in respect of these items. The power is
restricted in that sense. DL is always limited and controlled. It can be of two types:
1) Discretionary DL – May frame rules and regulations. If there is a discretionary power,

then writ of mandamus cannot be issued by the judiciary to direct the admin authority to
frame rules/regulations.
2) Mandatory DL – There is a mandate. No discretionary power is available. For example,

the Grievance Redressal Committee under the UGC Guidelines. Also, the Sexual
Harassment Act, 2013 mandates that ICC shall be created.
 DL is not confined to rules and regulations.
DDA v CIC – 2009 – Delhi HC – RTI Act, 2005 – powers are given to the appropriate
governments to frame rules. CIC has also framed regulations but these were struck down by
the Delhi HC in 2009.
Administration Tribunals Act – Ss. 35, 36, 36A & 37. Section 35 – retrospectivity of DL
Can primary activities be enacted from a retrospective date?
MCA has the power to frame regulations.
Difference between rules and regulations?
 The judiciary cannot compel the administrative authority to make laws. The judiciary can
suggest/advice/request the legislature to change the rules and regulations but it cannot dictate.
Otherwise, it would be a violation of the doctrine of SOP.
15th October 2020
47
Watch Recording.
16th October 2020
 The fundamental principle is that DL does not have to follow PNJ. If there is a provision in
the enabling act as was the case in the Land Acquisition Act wherein the stakeholders are
required to be heard, then such procedure need to be followed. However, this hearing would
take place not due to PNJ but due to procedural requirements.
Union of India v Cynamide India Limited – (1987) 2 SCC 720 – In the case of subordinate
legislation, it may happen that Parliament may itself provide for a notice and for a hearing –
there are several instances of the legislature requiring the subordinate legislature authority to
give public notice and a public hearing before say, for example, levying a municipal rate – in
which case the substantial non-observance of the statutorily prescribed mode of observing
natural justice may have the effect of invalidating the subordinate legislation. The right here
given to rate payers or others is in the nature of a concession which is not to detract from the
character of the activity as legislative and not quasi-judicial. But, where the legislature has
not chosen to provide for any notice or hearing, no one can insist upon it and it will not be
permissible to read natural justice into such legislative activity.
Cellular Operators Association of India v TRAI – (2016) 7 SCC 703 – Followed Cynamide
India Limited.
QUASI-JUDICIAL ACTION
 How far is quasi-judicial action different from judicial action?
In case of quasi-judicial action, it is performed by administrative officers. All the tribunals

involve quasi-judicial action and involves adjudication of disputes. For instance,
Administrative Tribunals Act – These tribunals have been created to resolve dispute
recruitment. Motor Accident Claims Tribunals – Motor Vehicles Act – Deals with motor
accidents.
 Judicial action process if formal but the process is informal in QJA and the quasi-judicial
authorities are not bound by the evidence act. The process is supposed to follow PNJ.
However, some trappings of Civil Courts are there. In some cases, a tribunal shall be deemed
to be a court or the proceedings before these tribunals shall be deemed to be judicial
48
proceedings. For instance, CrPC Ss. 345, 346 and 348. Tribunals don’t have the power to
enforce their orders. Judicial bodies have that power.
23 minutes.
R v Electricity Commissioners – 1924 1 KB 171 – Whenever any body of persons having

legal authority to determine questions affecting rights of subject, and having the duty to act
judicially, act in excess of their legal authority they are subject to the controlling jurisdiction
of the King’s Bench division exercised in the writs of Certiorari and Prohibition.
Attributes of QJA
1. There must be a legal authority. It talks about the power, the composition, and the process.
2. To determine questions affecting the rights of subjects.
3. The authority is required to act judicially.
Province of Bombay v Kusaldas S. Advani – AIR 1950 SC 222 – related to Bombay land
acquisition ordinance. Justice SR Das laid down two tests:
Test 1 – If a statute empowers an authority, not being a court in the ordinary sense, to decide
disputes arising out of a claim made by one party under the statute whose claim is opposed by
another party and to determine the respective rights of the contesting parties who are opposed
to each other, there is a lis and prima facie and in the absence of anything in the statute to the
contrary it is the duty of the authority to act judicially and the decision of the authority is a
quasi-judicial act.
Test 2 – If a statutory authority has power to do any act which will prejudicially affect the
subject, then, although there are no two parties apart from the authority and the contest is
between the authority proposing to do the act and the subject opposing it, the final
determination of the authority will yet be a quasi-judicial act provided the authority is
required by the statute to act judicially.
Difference between Test 1 and Test 2 – First test involves adjudication. There is a dispute to
be adjudicated. In Test 2, there is no dispute and there are no contesting parties but the action
of the body will affect the parties prejudicially. Writ of Certiorari and Prohibition available in
Test 1 but not Test 2.
Criticism of Second Test
49
Province of Bombay v Kusaldas S. Advani – AIR 1950 SC 222 – Certain conditions must be
met before a writ of certiorari may be issued. The existence of each of the conditions is
necessary to determine the nature of the act in question. Wherever any body of person (1)
having legal authority (2) to determine questions affecting rights of subjects and (3) having
the duty to act judicially (4) act in excess of their legal authority – a writ of certiorari may be
issued. Writ of certiorari cannot be issued against purely administrative actions. The
acquisition, requisition or allotment of property are purely administrative acts.
When the law under which the authority is making a decision, itself requires a judicial
approach, the decision will be quasi-judicial. Prescribed forms of procedure are not necessary
to make an inquiry judicial, provided in coming to the decision the well-recognised principles
of approach are required to be followed. Because an executive authority has to determine
certain objective facts as a preliminary step to discharge of an executive function, it does not
follow that it must determine those facts judicially. When the executive authority has to form
an opinion about an objective matter as a preliminary step to the exercise of a certain power
conferred on it, the determination of the objective fact and the exercise of the power based
thereon are alike matters of an administrative character and are not amenable to the writ of
certiorari.
Gullapalli Nageshwar Rao v A.P. State Road Transport Corporation – AIR 1959 SC 308 –
Justice Subba Rao defined QJA as per first test. The concept of a QJA implies that the act is
not wholly judicial; it describes only a duty cast on the executive body or authority to
conform to norms of judicial procedure in performing some acts in exercise of its executive
power. The fundamental principle of natural justice is that in the case of quasi-judicial
proceedings, the authority empowered to decide the dispute between opposing parties must
be one without bias towards one side or other in the dispute.
State of AP v SMK Parasurama Gurukul – (1973) 2 SCC 232 – The respondents had
applied for the post of trustees of a temple. They appeared in the interview but were not
selected. Writ petition before HC. Claiming that violation of FR. HC directed the state to look
into the grievances of the parties. SC approached. The issue involved in the judgment was
whether in appointing trustees, government acts as a quasi-judicial tribunal or not and
whether a speaking order is necessary. Stakeholders were not required to be heard but
selected on the basis of merits. The tests for determining whether a decision is an
administrative one or quasi-judicial one is:
50
1. There must be a lis-dispute-grievance between parties;
2. The opinion should be formed on objective satisfaction and should not depend upon the
subjective satisfaction of the tribunal; and
3. There must be a duty to act judicially.
Shivji Nathubhai v Union of India – 1960
Properties of QJA
1. There must be some a lis – it is required to be adjudicated. There must exist a dispute. That
is the essential requirement of QJA.
2. QJA involves determination of rights and liabilities of the parties.
3. The Due process must be followed. Last 10 minutes.
4. no delegation of such powers.
20th October 2020
1. there must be a dispute; a grievance with respect to some non-compliance.
2. determination of rights and liabilities. Admin authority performing QJA is supposed to

adjudicate disputes. It cannot delegate such power and abdicate authority.
5. regulate its own process as per the Act or Rules.
6. Objectivity in actions – fairness
FACTORS DETERMINING NATURE OF ACTION
AK Kraipak v Union of India – (1969) 2 SCC 262 – One of the candidates was also a part of
the selection committee. The selections were made solely available to records available to
them. The member topped the list. The whole process was questioned by the seniors. Some
affidavits were submitted that the candidate did not take part in the process when their name
was being considered. Arguments were raised that PNJ were not applied. The SC has taken
intro consideration the nature of admin actions. In this judgment, the nature of action was
related to the appointment of forest officers solely on the basis of availability of service
records. 1. The person was required to recuse himself. 2. All the candidates were to be given
reasons for getting rejected. The selection committee did not give proper reasons for rejecting
senior candidates. The SC applied the rule against bias theory and set aside the selection.
51
According to SC, there is no difference between admin action and QJA. It all depends upon
some specific parameters. Para 13.
i. The nature of power given to the admin authority. To whom is the power given and how is
it exercised and affects parties. This functional aspect needs to be taken into consideration.
For this, the enabling Act needs to be examined. If the power is for adjudication, then QJA. If
the power is for creating rules and regulations, then QLA. Otherwise, it would be pure admin
action with/without civil consequences.
Pure Administration Action
Residue of admin actions.
Without civil consequences:
1. Notification for admission/appointment – PNJ not required. Action is not detrimental to the
interests of any individuals.
2. Notification for holding examination
3. notification for land acquisition – pure admin action without civil consequences
4. notification for appointment of COI
i. no determination of rights and liabilities though it may affect right.
ii. no creation of rights
iii. no procedural requirements
iv. can be delegated
Ridge v Baldwin – all admin actions affecting people at large or a person prejudicially will
have to follow PNJ. This was the starting point of pure admin actions. Removal of service in
this case was admin action with civil consequences. Hence, termination of employment
would involve civil consequences.
State of Orissa v Dr. Binapani Dei – (1967) 2 SCR 625 – Modification of Date of Birth
without proper inquiry. Dr Binapani was not heard in the hearing. The SC held that
conducting inquiry involves civil consequences. The enquiry and decision were contrary to
the basic concept of justice and cannot have any value. Even though the order was
52
administrative in character, but even an administrative order which involves civil

consequences must be made consistently with the rules of natural justice.
Mohinder Singh Gill v Chief Election Commissioner – 1978 2 SCR 272 – Para 71 – Civil
consequences undoubtedly cover infraction of not merely property or personal right but of
civil liberties, material deprivations and non-pecuniary damages.
If there is an administrative action which involves a civilian being affected adversely and
there is no involvement of adjudication and creation of right, then such action would be pure
admin action with civil consequences
The DFO, South Kheri v Ram Sanehi Singh – (1971) 3 SCC 864 – Whenever pure admin
action with civil consequences, mandatory requirement of PNJ application. “The Divisional
Forest Officer in the present case set aside the proceedings of a subordinate authority and
passed an order which involved the respondent in considerable loss. The order involved civil
consequences. Without considering whether the order of the DFO was vitiated because of
irrelevant considerations, the order must be set aside on the simple ground that it was passed
contrary to the basic rules of natural justice.”
Blacklisting of some company/individual from publication of books – what would be the

nature of action involved? –
An admin action which affects a person adversely, then it is a pure admin action with civil
consequences and the procedural requirements pertain to PNJ.
22nd October 2020
Discussed application-based questions. My dumb ass didn’t realise it was important to write
until it was very late. Watch Recording.
Nature of action involved in conducting interviews –
Manglam Organics v Union of India –
State of AP v SMK Parashurama Gurukul – Deals with appointment of trustees. The

respondents had applied for the post of non-hereditary trustees. Their claims were ignored
and no justifications were given. It was contended that appointment involves QJA and
therefore, a speaking order was required. State contended that the appointment involves pure
admin action and therefore, no PNJ applicable. HC set aside the process. Matter reached the
SC. Nature of action under s. 15 – SC had to adjudicate on this.
53
According to the SC in this case, such appointment involves pure admin action without civil
consequences.
If that kind of liberty is given to the appointment committee, then accountability would not be
there. This was a fit case of pure admin action with civil consequences. The judgment needs
to be criticised.
Hypothetical Problem – Notification of appointment in Official Gazette – A, B, C have been

appointed at this position after passing UPSC. On one hand, functions are being performed by
an appointed committee, on the other hand, there is a document issues after following the due
process.
Dev Dutt – 2008 – related to ACR.
23rd October 2020
Neelima Misra v Harinder Kaur Paintal – (1990) 2 SCC 746 – Lucknow University invited
applications for the position of a reader. Qualifications were there. She did not have a PhD
but had submitted a thesis. Recommendations were submitted to the EC by the Selection
Committee. They did not agree with the recommendation of the Selection Committee by a
split majority because NM did not fulfil the requirements.
Section 31(8)(a) of the UP State Universities Act, 1973 provides that if there is a dispute
between the Selection Committee and the EC, then the matter will be referred to the
Chancellor and their decision will be final. The Chancellor, without issuing any speaking
order, approved the appointment of NM. This appointment was challenged by other
candidates in the reserve list on the ground that the Chancellor performed QNJ and there was
no application of PNJ. The Uni raised the argument that the chancellor performs pure
administrative actions and there was no application of PNJ. The decision was passed in
favour of the petitioner by the HC. Matter brought before the SC. The main issue before the
SC was the nature of action performed by the Chancellor under s. 31(8)(a).
The SC did not apply the theory of pure admin actions to the given factual matrix. The
qualifications required a PhD or a high-quality publication. The EC did not take into
consideration the high-quality research work and interpreted it as if she had no qualifications.
After analysing all the facts, it may be a case of civil consequences; there was no dispute. The
appointment would have been in accordance with law but not for the EC.
54
G Nageshwar Rao v State of AP was relied upon.
Dev Dutt –
ACR – Annual Confidential Report –
Nature of admin action performed by DPC?
Tejshree Ghag v Prakash Parashuram Patil – (2007) 6 SCC 220 – a government employee
was transferred. Issues with the pay scale. No proper justification given. Action challenged
before state admin tribunal on the ground that the transfer was not valid. Original application
was rejected by administration tribunal. Clubbing of post was a violation of article 14 and 16.
The main issue before SC was whether the transfer of appellant and reduction of pay scale
(nature of action)? Transfer is a routine order but when it comes to reduction of pay scale,
such action always involves civil consequences.
Mangalam Organics Limited v UoI – (2017) 7 SCC 221 – If a public authority is foisted
with any duty to do an act and fails to discharge that function, mandamus can be issued to the
said authority to perform its duty. However, that is done while exercising the power of
judicial review of an administrative action. It is entirely different from judicial review of a
legislative action. Difference between Pure Administrative Action and Delegated Legislation:
i. If an order is legislative in character, it has to be published in a certain manner – official

gazette, any other instrument. But it is not necessary if the action is a pure admin action.
ii. If an order is legislative in character, the court will not issue a writ of certiorari to quash
it, but if an order is administrative order and the authority was required to act judicially,
the court can quash it by issuing a writ of certiorari.
iii. Generally, subordinate legislation cannot be held to be invalid for unreasonableness,

unless the unreasonableness is evidence of mala fides or otherwise shows the abuse of
power. But in case of administrative order, the aggrieved party is entitled to a legal
remedy.
iv. Only in most exceptional circumstances can legislative powers be sub-delegated. But the
admin action can be sub-delegated. The court has a confusion between QJA and PAA.
QJA cannot be delegated.
v. Duty to give reasons apply to admin orders but not to legislative orders. When it comes
to PAA with civil consequences, the admin is under a duty to give reasons.
55
27th October 2020
Indian National –
The court has distinguished between QJA and PAA with or without civil consequences. Para
13. Statutory authority is required to act judicially.
Difference between QJA and PAA
1. Adjudication – yes, in QJA. No, in PAA
2. Procedural Requirements – PNJ in QJA. IN PAA with civil yes limited PNJ, without no
PNJ
3. Delegation – QJA is never delegated to anybody. Must be exercised with the person on
whom the specifc power is vested. PAA it can be.
4. QJA is required to act objectively by taking into account the factual matrix. PAA without
civil involved subjectivity; acts on its discretion.
Delegated Legislation and Pure Administrative Action – Difference
Sub-delegation only when provision.
Discretion to make DL; cannot be compelled by mandamus though can be compelled in case
of mandatory duty to make DL.
Hypothetical – Person A files a complaint before an admin authority. Instead of referring that
complaint to the ICC, the admin authority forwards it to a higher agency. This superior
officer solely on the basis of the complaint fires the person against whom the complaint was
filed by Person A.
Filing complaint –
Ordering Suspension of the Employee –
The person suspended approaches Administrative Tribunal against the decision of his
suspension.
… 30 minutes.
56
Situation 1 – A student’s application for conducting special repeats is rejected. Nature of

admin action – PAA. With civil consequences if there is a provision to conduct special
repeats.
Situation 2 – Removing the name of a student from the University’s Roll of Employees. –
PAA with Civil Consequences
Situation 3 – Rejection of reference to Labour court by labour commissioner
s. 10 of Industrial Disputes Act, 1947 – An industrial dispute may be referred by the

government from labour commissioner to a labour court. The reference may be
rejected/accepted and the labour commissioner has the discretion. A labour court does not
have suo moto jurisdiction.
Situation 4 – Workers are entitled to HRA at a lower rate but by mistake they were paid at a
higher rate. The excess amount paid was recovered without following the procedural
requirements.
Payment of HRA at higher rate –
Recovery of excess amount – PAA without CC
Recovery of excess amount along with interest – PAA with CC
Rejection of RTI Application – PAA with CC.
Filing appeal against rejection of RTI Application – QJA. Appeal against the decision of
admin authorities.
Notification by administration authority to increase number of teaching posts from 80 to 120

– QLA – created rights and liabilities.
Notification by administration authority to increase number of students in a course – QLA –

created rights and liabilities. A simple notification for inviting applications.
Resolution passed by EC/GC to supersede some primary legislation such as RTI Act – QLA.
29th October 2020
ADMINISTRATIVE DISCRETION
 Dicey was very critical of empowering AAs with discretionary powers as he was under the
impression that it would lead to arbitrariness. However, Dicey was criticised by many other
57
scholars. In 21st century, AD is inevitable. AA cannot function without AD. When it comes to
AL and AD, one must understand the nature of AA.
 AD is always exercised through AA. It cannot be independent of AA. If there is a possibility

of AD, it may be exercised. When it comes to the modern concept of RoL, AD is always
controlled and limited. When it comes to nature of AA and AD:
1) QLA/DL– No AD in case of mandatory duty but there is AD in cases wherein the AA has
the discretion to make rules and regulations.
2) QJA – Power to pass an ex parte order, review own decision, power to set aside review
order or ex parte order. In such cases, the QJA may have AD if certain conditions are
fulfilled. For example, CAT has the power to pass and set aside ex parte orders. NCLT has
the power to review its decision. QJA is bound to issue a speaking order due to PNJ. There
is a discretion available to QJA in respect of the question whether or not to exercise AD
and take a particular action.
 AD is a reflection of availability of choice/ liberty of alternatives – either to take an action or

not in different forms. Certain words such as “may”, “deem fit” and “take appropriate action”
are reflective of AD. If there is no controlling mechanism in a legislation, then there is a flaw
in such legislation. In case of Parliament, there are two committees at RS and LS. These two
committees take care of DL. So many institutions do not have any committee to scrutinise the
rules and regulations made by them.
RD Shetty v International Airport Authority of India – AIR 1979 SC 1628 – Para 48 –

“Exercise of discretion is an inseparable part of sound administration. Therefore, state which
is itself a creation of the Constitution cannot shed its responsibility at any sphere of this
activity.” The judgement is very clear when it comes to AD. As per it, AD is an inalienable
part of AA. Some amount of flexibility is required for an AA to take appropriate action.
ROLE OF LEGISLATURE IN CASE OF AD
 The Legislature is the master and controller of AD. It may provide AD to AAs. It may make
changes/repeal the discretionary power or expand the scope of AD.
UoI v Kuldip – AIR 2004 SC 827 – Para 20 and 21 – “General Definition of Discretionary
Power – In its ordinary meaning, the word “discretion” signifies unrestrained exercise of
choice or will; freedom to act according to one’s own judgment; unrestrained exercise of will;
58
the liberty or power of acting without control other than one’s own judgment.” According to
this judgment, discretion means unlimited powers (it defined it in general parlance). If such
powers are given to AA, then there won’t be any RoL. Prof. Dicey was also of this opinion.
When it comes to AA, discretion needs to be defined in a controlled and limited manner.
Bangalore Medical Trust v BS Mudappa – AIR 1991 SC 1902 – Para 48 – “Discretion is an

effective tool in public administration. It provides an option to the AA concerned to take one
of the available alternatives.” AD is inseparable, inevitable and inalienable party of AA. No
AA in a modern state can function properly without AA.
Types of control over AD:
 Two types of control can be exercised over AD:
1) Legislative Control
2) Judicial Control
Some statutes are required to empower AA to take AA.
 Essential Commodities Act, 1955 – The appropriate government “may” confiscate goods.
 s. 20 of RTI Act, 2005 – Imposition of penalty in cases wherein public information is denied.
It is mandatory. No discretion is available in this regard. The RTI Act, 2005 has made a
public information officer (PIO) personally liable. HCs have created certain committees of
judges; the moment an RTI application is released it is placed before such committees even
though there is no discretion to create such committees. The PIO is not required to take prior
information from anyone to provide such information. In real practice there is no such
discretion powers. Remedy – RTI Rules. For instance, in the case filed by Subhash Chandra
Agarwal – Asked for the number of judges who had disclosed their assets but no information
was provided. The matter reached to CIC, followed by the HC and was then referred to a
Constitution Bench of the SC.
 ICC – There is a mandatory requirement to formulate one. There is no discretion available.
Angad Das v UoI – (2010) 3 SCC 463 – Angad Das was a head constable in CRPF. A notice
was issued to him and according to the notice, the DOB given by him at the time of
appointment was false. He was required to give explanation. A commission was established
and an inquiry was conducted. The Commander ordered compulsory retirement of the officer
with pension on the grounds that the DOB was faulty. The appellant submitted a request to
59
the DIG – 5 daughters and sole-bread winner. The DIG, instead of taking a positive action,
ordered compulsory retirement without pension. The aggrieved person approached the HC
and the HC ignored all the issues. The DIG has no discretionary power to convert the letter of
request into an appeal. According to the SC, discretionary power is not inherent and cannot
be created but is provided by the enabling act. The AA with civil consequences was set aside
by the SS.
State of UP v Renu Sagar Power Corporation – (1988) 13 SC 143 – General discretionary

power must be exercised by the AA to whom it is given. The fundamental principle is that DP
is not inherent. DP may or may not be delegated depending on the facts and circumstances.
3rd November 2020
First 10 minutes.
Admin action is the route of exercising AD. AD is become an inseparable part of good
governance. AA cannot be performed without discretionary power.
DP cannot be created by AA. It has to be created by the enabling act.
OP Singla v Union of India – AIR 1984 SC 1595 – Nature and scope of DP. It can be
exercised in the manner mentioned in enabling act. Whenever it is said that something has to
be done within the discretion of AA, then it is just to be done in accordance with reason and
justice and not according to private actions. It is not to be arbitrary but legal. Discretion
means sounds discretion guided by law. The discretion power, according to this judgment,
must be exercised in a particular manner as provided by the enabling act. It must be in
accordance with RoL and must be controlled.
Bangalore Trust v BS Mudappa - “Discretion is an effective tool in public administration. It

provides an option to the AA concerned to take one of the available alternatives. But a better,
proper and legal exercise of discretion is one where the authority examines the fact, is aware
of law and then decides objectively and rationally what serves interest better. When statute
either provides guidance or rules or regulations are framed for exercise of discretion then the
action should be in accordance with it. Even where statutes are silent and only power is
conferred to act in one or the other manner, the Authority cannot act whimsically or
arbitrarily. It should be guided by reasonableness and fairness.”
Administrative discretion is not independent of AA. Direct connection between AA and AD.
60
Administrative Tribunals – many discretionary powers are available to quasi-judicial

authorities. This is so because the enabling act provides these.
Nature of admin action is also connected to AD.
NECESSITY OF DISCRETION
It is crucial to empower admin authorities with DP. Unaccountable discretionary powers

would lead to arbitrariness so it has to be controlled. In order to empower AA, DP is required
to function properly.
1. for effective and efficient governance – An AA would be in a position to take better

decision and quality governance. If prior permission is needed for each action, then the whole
purpose of good governance would be defeated. Otherwise, effective governance is not
possible.
2. To meet Emergency – immediate action is required in some cases. For instance, a person is
to be arrested. Or essential commodities act, where certain goods are to be confiscated. Food
adulteration – requirement of urgent action. Pollution related activities or IPR. If an urgency
is there, immediate action is required and some amount of DP is required to take care of it.
3. To facilitate Executive – AD facilitates AA. They are the experts and in better position to
take independence decision. Their expertise is recognised by DP. If everything is dictated by
the minister, then it becomes very difficult for the executive to act.
Factors: powers: nature and scope
Clariant International Limited v SEBI – AIR 2004 SC 4236 – Para 26, 28 and 29 – The
discretionary jurisdiction has to be exercised keeping in view:
i. Purpose for which it is given.

ii. Objectives sought to be achieved
iii. Reasons for the grant of discretion
iv. Parameters of the discretion
v. It must be exercised within the four corners of the statute.
s. 10 of Industrial Disputes Act – To adjudicate disputes amicably. Power is given to

government which is delegated to labour commission. The mandate of this act is to promote
speedy and economic resolution of disputes. In case of non-reference, it would create a
problem for workers. If objectives are not taken into consideration and proper reasoning is
61
not given, then there is a problem. If there is possibility of settlement, then do not refer the
case. The power should be exercised for the purpose of the enabling statute.
CAG case – 2000 – factors to be taken into account to exercise DP.
1. Constitution of India
2. enabling act
3. other statutory provision
ISSUES OF DP
Whether a court can direct an AA to exercise a DP in a certain manner?
UoI v Gajanan Maharaj Sansthan – (2002) 5 SC 44 – Registered with the state government
approached Bombay HC with a writ of mandamus to bring the 1982 act into force. The CG
has discretionary power with regard to bringing the amendment into force. Bombay HC took
all this into consideration, and directed the government to bring the act into force. Matter
reached the SC – whether exercise of DP in case of power to bring that statue into force can
be directed by the judiciary or not.
The Court was satisfied by the arguments raised by the CG. If there are not reasonable
grounds, then the court can issue a writ of mandamus to mandate the CG to bring the act into
force. If DP is given and it has not been exercised, then the AA would be subject to judicial
review. Non-exercise of DP would be against the purpose of law.
5th November 2020
Muni Suvrat Swami Jain Sangh v Arun Nathuram Gaikwad – AIR 2007 SC 38 – Direction
from a Superior AA in case of exercise of DP – s. 351 of Bombay Municipal Corporation
Act, 1888. The temple was constructed in a residential area due to which the local residents
were affected. They approached the BMC several times to take care of the unauthorised
construction. The respondents argued that there was a nexus between the BMC and officials
of the temples. They filed a writ before the Bombay HC and they prayed for the demolition of
the temple. It was contended that the BMC failed to take necessary action in accordance with
the law. The temple officials had bribed the BMC. The Bombay HC had issued a writ of
mandamus to demolish the temple. Appeal was preferred to the SC and the issue was whether
the judiciary can direct the executive or AA to exercise a discretionary power in any
particular manner? s. 351 of the BMC Act, 1888 stipulates that the BMC has the discretion
62
to take appropriate action. There is a necessary requirement to follow PNJ. The BMC claimed
before the SC that it had DP and the permission is pending before the BMC.
Exercise of DP is subject to judicial review only on two grounds. Firstly, failure to exercise
DP. Secondly, abuse of DP. In this case, if the first ground is applied, then there was a failure
on the ground of AA as the BMC failed to take appropriate action and therefore the HC
directed the BMC to demolish the temple. The nature of action involved in case of demolition
of building is pure admin action with civil consequences, thus there is a requirement of
application of PNJ. In case of public interests like unauthorised construction, the
requirements of PNJ can be dispensed with. Coming to the main issue before the SC, the
Court took into consideration the mandate of s. 351 and the exercise of DP. The respondents
failed to prove that the temple officials had bribed the BMC officials; these were mere
allegations. The fundamental principle is that an AA cannot be compelled to exercise DP in
any particular manner (demolition in this case). The BMC Act gives the authority discretion
as to whether or not to demolish an unauthorised construction therefore the court cannot
compel the AA to exercise DP. The exercise of DP cannot be clogged by any order of the
court and it must be exercised in accordance with the statutory provisions. Exercise of AA
can be compelled only in case of failure to exercise and abuse of DP.
State of UP v Renu Sagar Power Company – AIR 1988 SC 143 – Para 13 – “The authority
in which a discretion is vested can be compelled to exercise the discretion but not in a
particular manner. Discretion must be exercised only by the authority to which it is given.”
Thus, firstly, DP to be exercised to whom it is vested. Secondly, AA cannot be compelled to
exercise DP in a particular manner.
CONTROL OVER ADMINISTRATIVE DISCRETION
(1) Parliamentary Control
The Legislature is the master of Administrative Discretion. AA may exercise discretion only
if the legislature provides so through primary legislation. They can empower them with
controlled and limited discretion. They also have the power of withdrawing DP at any point
of time. The moment Delegated Legislation is framed, it is required to be placed before the
Parliament which will look into consideration various factors. They need to ensure that there
is a control mechanism in place. In real practice, DL are often not placed before the
parliament. Some rules so framed have superseded articles of the Constitution. In India, there
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are two types of committees: (i) Committee on Subordinate Legislation in Lok Sabha and (ii)
Committee on Subordinate Legislation in Rajya Sabha. These are not effective for various
technical reasons.
(2) Judicial Control
It deals with judicial review of exercise AD. There are two grounds on which JR is available:
A. FAILURE TO EXERCISE DISCRETIONARY POWER – It can be due to three grounds:
a) Non-application of mind for discretion – AA is required to take into consideration the

facts and circumstances of each case to exercise DP. If it fails to apply its mind in doing
so, then it is subject to JR. Non-application of mind is considered as failure to exercise
DP.
Padfield v Ministry of Agriculture – 1968 AC 997 – House of Lords – s. 19 of Agriculture

Marketing Act, 1958 – this section empowered the minister of Agriculture with some DP to
appoint a committee (suo moto or on application) to look into the problems of farmers. Some
milk producers’ association had a problem and they approached the minister to form a
committee. The minister refused to do so on the ground that he would face lot of difficulties
in case the committee is constituted. The main issue was whether the minister could be
compelled to exercise DP. The mandate of the scheme is to take care of the grievances of
milk producers. A writ of mandamus can be issued because the minister failed in taking into
consideration the scheme of the act. The purpose of the DP was to resolve disputes and not
aggravate them. The minister did not apply his mind as he ignored relevant facts and his
decision was neither reasonable nor justified. “Parliament conferred a discretion on the
minister so that it could be used to promote policy and objects of the Act which were to be
determined by construction of the act. This was a matter of law for the court. though there
might be reasons which would justify non-reference of complaint, his discretion was not
unlimited and if it appeared that the effect of his refusal to appoint the committee was to
frustrate the policy of the act, the court was entitled to interfere.” So, the action of the
minister was not in consonance with the policy. the court was justified to interfere and direct
the minister to appoint a committee through the writ of mandamus.
b) Surrendering DP to superior officer – Not due to influence or dictation, but due to

personal interests.
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State of Punjab v Hari Krishna Sharma – AIR 1966 SC 1081 – s. 5 of Punjab Cinema
Regulation Act, 1952. The licencing authority has the discretion to approve/reject a licence.
An application was submitted, instead of approving/rejecting it, the application was referred
to higher authority and thereafter it was rejected. A writ petition was filed. The action taken
by higher authority was set aside. Matter reached the SC. Whether that kind of surrendering
or transfer of DP is available was the issue. The nature of application involved in rejection of
application is pure admin action with civil consequences. AD shall be exercised by the person
on whom it is vested. Delegation of DP would be illegal and a clear violation of the enabling
act. An AA is not required to take permission from superior authorities. In this case, the AA
was empowered by s. 5 of the concerned Act. Para 10.
RTI Act, 2005 – One professor submitted an RTI application with respect to his own ACR in
a Haryana school. The principal of the school forwarded the application to the Directorate of
Education and thereafter it was rejected. An appeal was preferred. The first appellate
authority approved the action of Directorate. Matter brought before the State Commission
and a fine of Rs. 25k was imposed on the principal. It is the duty of public information officer
to provide or not provide information. There is no discretionary power available to seek
permission from superior officer. The discretion is with regard to not giving exempted
information and in those cases as well a speaking order is to be given. The surrender of DP
would amount to failure to exercise DP.
6th November 2020
c) Acting under dictation of superior authorities
Commissioner of Police, Bombay v Gordhandas Bhanji – AIR 1952 SC 16 – City of

Bombay Police Act and Rule 250 – The respondent had applied for a grant of licence for
construction of cinema theatre and the same was granted. However, on the direction of state
government, the license was withdrawn. The HC directed to withdraw the order. The SC
upheld the decision of the HC. By virtue of Rule 250, the Commissioner of Police has the
discretionary power to cancel licence. Instead of acting under rule 250, the licence was
withdrawn on the direction of the government. Para 35.
Purtabpore Co Ltd v Commissioner – AIR 1970 SC 1896 – Essential Commodities Act,

1955. Some orders were passed by the government under the 1955 Act to regulate the
production of sugar. The Cane Commissioner reserved some area for producing sugar. After
some time, on the direction of the Chief Minister, 99 villages were removed from the
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reserved area and were transferred to another sugar company. This action was challenged on
two grounds – (i) nature of AA and (ii) exercise of DP. According to the appellant, the nature
of AA was QJA and PNJ had to be followed. According to the HC, it was a case of PAA and
no requirement of PNJ and the Cane Commissioner had the power to take appropriate action.
Matter reached the SC. Para 11 and Para 23.
Nature of action in excluding the reserved area from the control of appellant – SC said it
would be QJA and PNJ required. According to the factual matrix there was some dispute,
matter was brought before the CM but the CM did not take any action. There was no dispute
before the Cane Commissioner but he acted on the directions of the CM. Procedure
requirements are mandatory when PNJ are applicable and in cases of PAA with CC, limited
application of PNJ.
Acting on the direction of CM to exclude such villages – The Cane Commissioner had
discretionary power. The Court reiterated the same principle that DP cannot be exercised
under some directions and hence, the order was set aside. It was not proper on the part of the
CM to pass such directions. Para 11.
Legal Principle – If DP is exercised on direction of superior authority, then it would amount

to a failure of exercising DP and the action would be illegal.
Hypothetical 1 – There is a company. Licence issued. Later it was issued that the company
had violated some law. CM found out and gave the direction to cancel the licence. No chance
of hearing given to the company.
Bentley Nevada LLC v Income Tax Officer, International Taxation – Justice Dr. S.
Muralidhar – It involves issued regarding exercise of DP.
B. ABUSE/MISUSE OF DP – Various grounds are there
a) Improper use of DP – If the power was given for A purpose and it was used for B
purpose, then it will be treated as improper use.
For instance, Land Acquisition Act provides that the land can be acquired for public
purposes. If any land was not acquired for public purposes, then improper use of DP.
Mandate is to promote high quality and research and for such purposes, appointment of
unqualified person for the promotion of legal education and research – There are tools and
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techniques to promote legal education and it cannot be done through unfair means. It will be
treated as improper use of DP.
b) Non-compliance of process – Conditions such as publication in Official Gazette,

consultation, creation of committee, prior approval, laying before the legislature,
approval by some authority etc may be required. The process needs to be followed if it is
provided, otherwise it would be a case of abuse or misuse of DP.
c) Irrelevant Consideration –
HC Gargi v State of Haryana – The compulsory retirement was ordered on grounds of

doubtful integrity. It was based on the ACR but the ACR is a record of performance and no
integrity. The order was issued solely on the basis of the performance. The SC set aside the
order on the ground of irrelevant consideration.
Wednessbury Corporation – Three principles
i. Admin authority is required to take into consideration the relevant facts
ii. AA is required to ignore irrelevant acts
iii. exercise of DP must be reasonable
iv) Ultra Vires
Excess of discretionary powers. If any regulation supersedes the articles of the constitution,
then it would be ultra vires.
Angad Das v Union of India – Converted the letter of request into an appeal even though
there was no power to do so.
v) Unreasonable
RTI Act – Rules provide for fixation of charges of application fee. Suppose, if this fee is
fixed to be Rs. 10k, then it would not be a reasonable amount.
vi) Mala fide
DP has to be exercised in good faith. It cannot be exercised for personal animosity,

vengeance, ill will, dishonest intention etc.
State of Punjab v VK Khanna – An IAS officer was punished by the CM for not favouring
him.
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9th November 2020
ADMINISTRATIVE TRIBUNALS
 Admin tribunals are admin bodies outside the hierarchy of courts. They are meant for
adjudicating of specialised disputed. All tribunals are constated by an enabling act. It cannot
work beyond the jurisdiction of the enabling act. Two categories:
1. Domestic Tribunals
2. Institutional Tribunals
 A tribunal performs QJA. For example, consumer forum is at district, state, and national
levels. All were created under COPRA. Labour courts under the Labour Disputes Act, CCI
and under the CCI Act, 2002, SAT and the SEBI Act, 1992. All these tribunals are
specialised bodies meant for the adjudication of specific disputes.
Bharat Bank Limited v Employees AIR 1950 SC 188 – Deals with QJ Bodies dealing with
labour disputes. They defined the term tribunal. “A body or authority vested with certain
functions of a court of justice having some of its trappings would fall within the ambit of
word ‘tribunal’”.
Engineering Mazdoor Sabha v Hind Cycles– AIR 1963 SC 874 – Justice Gajendragadkar –
Defined certain a tribunal by giving certain attributes of a tribunal:
a) It must have the trappings of the court

b) It should be constituted by the state
c) It should be invested with the state’s inherent judicial power
This case dealt with s. 10A of Industrial Disputes Act and the issue was whether an arbitrator
appointed under this section would be a QJA or admin body
ACC Limited v PN Sharma – AIR 1965 SC 1595 - A body which determines controversies
or rights of parties is called a tribunal. When it possesses some but not all trappings of a
court. An AA dealing with adjudication of disputes would be a tribunal.
DISTINCTION BETWEEN A TRIBUNAL AND A COURT
 Ss. 193/219/228 of IPC – Proceedings before a tribunal shall be deemed to be judicial

proceedings. Ss. 345/346/348 of CrPC – A tribunal would be deemed to be a court. In such
situations, how is a distinction to be created between the two?
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SP Sampat Kumar v Union of India – AIR 1987 SC 386 – The court differentiated a
‘tribunal’ from a ‘court’ based on the following four points:
a) Composition
b) Power
c) Procedure
d) Enforcement of final award
Shell Company Australian Limited v Federal Commission of Taxation Tribunals – Lord

Shankey – There are tribunals with many trappings of courts which are not courts in strict
sense. It seems to be that such tribunals perform QJA within the ambit of the enabling act.
According to him, all courts are tribunals, but all tribunals are not court. This was quoted by
ACC v PN Sharma.
Union of India v R. Gandhi, President, Madras Bar Association – (2010) 11 SCC 1 – the
term Court refers to places where justice is administered or refers to judges who exercise
judicial function. Courts are established for administration of justice, to exercise judicial
functions, power of state to maintain and uphold the rights to punish for committing wrongs.
Tribunals on the other hand are special alternative institutional mechanisms usually brought
into existence by or under a statute to decide disputes arising with reference to that statute or
to determine controversies arising out of admin law.
Gujarat Urja Nigam Limited v Essar Power Ltd. – 2016
Law Commission Report 272 – Deals with the system of tribunals in India. Also examines
the system of tribunals in other countries.
Financial Amendment Act, 2017 – It deals with the system of tribunals in India.
RECOGNITION OF ADMINISTRATIVE TRIBUNALS
 Prof. Dicey was against the system of tribunalisation. He was against giving special treatment
to certain disputes. However, in real life, tribunalisation is the need of the hour. The system
of tribunals has been recognised across the globe.
 India
Article 323A – Power is confined to the creation of Administrative Tribunals to deal with
service-matter disputes. It empowers the Parliament to give power to the administrative
tribunals
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Article 323A(2)(d) – Struck down by L. Chandra Kumar as they barred judicial

review under Article 226 by HC. Declared ultra vires to the extent they barred.
Article 323B – Power given to the Parliament to create other tribunals. It is a very general
provision. No power is available to state government to create tribunals like CAT, SAT or
JAT. Section 4 of the Administrative Tribunals Act gives power to the central government.
However, state can create local bodies if the Seventh Schedule says so.
 UK – Created in 1958 by an act. They now follow a 2-tier system of tribunals. Lower
tribunals and upper tribunals. In India, a 2-tier tribunal system is hardly followed and
therefore, the remedy lies before the HC.
 France – Droit Administratif. This system cannot be implemented in India.
 US – Federal Administrative Procedure Act, 1947
 China, France, and Germany all have created tribunals for adjudication of specific disputes
and speedy and economical adjudication of disputes. These are supposed to be head by
specialised officers.
 SP Sampat treated CAT at the same level as a HC. This status was diluted by L. Chandra
Kumar. ATs are subordinate to HCs. However, some tribunals do have contempt powers,
both civil and criminal.
LEGAL STATUS OF A TRIBUNAL
(CAT/SAT/JAT)
 These tribunals are manned by judicial as well as administrative officers. The powers of a
tribunal are confined only to the enabling act; inherent powers are not available to a tribunal.
In case of courts, there are certain inherent powers. A court has very broad powers compared
to the limited powers of a tribunal. A tribunal is just supposed to take care of the mandate of
the enabling act. The legal status of all tribunals is Quasi-Judicial. These trappings are given
only for the efficient and effective functioning of these tribunals.
CLASSIFICATION OF ADMINISTRATIVE TRIBUNALS
(1) Domestic Tribunals
 In-house tribunals created by the institution to deal with the local grievances arising out of
the functioning of the institution. For instance, Grievance Redressal Committee in NLUD,
70
ICC under the UGC Regulations. Advocates Act, 1961 has empowered the Bar Council of
India to create a grievance committee. Medical Council of India also has the power. Under s.
9C of the Industrial Disputes Act the employer must create a grievance committee. There
should be a statutory sanction to create such in-house bodies. The powers are limited
compared to Institutional Tribunals. They have jurisdiction over specific subject-matter
unlike institutional tribunals.
(2) Institutional Tribunals
 These tribunals are created outside the institutions to take care of specific disputes. SAT,
NCLAT, etc. These are composed of specialised tribunals. However, the bitter truth is that
most of these tribunals are manned by retired judges and have become forced retirement
scheme for judges.
10th November 2020
NECESSITY OF TRIBUNAL SYSTEM
The court system has failed to provide speedy and economical resolution of disputes and the
same has been accepted by the SC. They have failed to provide specialised services when
issues are of a technical nature. The courts are overburdened. The system of tribunals has
been created to cater the need of speedy and economical justice. The SC has taken
cognizance of these issues in various judgments.
(1) Failure of Judiciary
Guru Nanak Foundation v Rattan Singh and Sons – (1981) 4 SCC 634 – Interminable,
time-consuming complex and expensive court procedures impelled jurists to search for an
alternative, less formal, more effective, and speedier for resolution for disputes avoiding
procedural claptrap.
Trustees of the Port of Madras v Engineering Constructions Corporation Limited – (1995)

5 SCC 531 – Quoted Guru Nanak Foundation.
Procedural requirements cannot be dispensed by the judiciary. But when it comes to

tribunals, the system is very informal and is not bound by the technicalities. CPC and IEA are
hardly followed. Tribunals regulate informal process based on PNJ. Due to failure on the
party of judiciary the system of tribunals has emerged.
(2) Share the burden of Courts
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In most of the cases, the jurisdiction of civil courts is barred when there is a system of
tribunals – expressly and impliedly. Tribunals have been created to share the burden of
courts. Had there been no tribunals, the system would have collapsed.
(3) Specialised Agencies
Quality services provided by tribunals cannot be provided by judicial officers because they
are not specialised personnel. SEBI, NCLAT, etc are manned by specialised professionals.
They are supposed to be manned by professionals only but in real life this does not happen.
Consumer forums etc are headed by retired judges. The experience and approach of judicial
officers tend to make the process more complicated due to which the pendency of cases has
increased in these tribunals. Most of the labour courts are manned by retired judicial officers,
and in some of the cases serving officers were also managing. CCI is also headed by
professionals.
(4) Speedy and Economical Justice
As a general rule, there is no specific deadline for conclusion of suits. But in case of
tribunals, there is often a time limit within which the dispute is to be adjudicated.
Approaching a tribunal is very simply since only an application is to be filed and this fee is
also very nominal. This fee can also be relaxed. Legal professionals are not required to be
involved in many cases. For instance, s. 36 of the Industrial Disputes Act, 1947 imposes
restrictions on engaging legal practitioners. The Administrative Tribunal act too gives the
option of not employing a legal practitioner. The system of tribunals is very effective in
providing economic justice in this sense. The system of courts on the other hand involves
huge costs.
Merits
1. A tribunal follows informal process based on PNJ and does not follow any technicalities.
2. It provides for speedy and economical justice.
3. Provides for expertise services because tribunals are supposed to be manned by

professionals.
4. It supports the judiciary.
Demerits – 40 minutes into the recording.
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DEMERITS OF TRIBUNAL SYSTEM
1. The composition. The mandate of creation of these institutions is to provide a speedy and
economic justice and to regulate informal process. But what is happening is that 99% of these
tribunals are being manned by reterires judges even though the these are supposed to be
manned by the experts in the field who are professionals. For instance, CIC. How many
professionals have been appointed as CIC during last few years? It is alwas some retired
buerarcrats. How caome these people are goin to promoe the right to infomraiton. Same for
labour courts. They are supposed to be manned by professionals like labour commissers and
advocates who have good experience in indiustrail disputes. Same for CCI, SEBI. Due to this,
the entire purpose of speedy and economic justice is being diluted.
2. We don’t have a system of uniformity when it comes to the terms and conditions of
employment of priseind officers or members of tribunals. In case of COPRA, there si a
specifc ministry which deals with enformecent mechanism. In case of labour ocurts, ministry
of labour takes cafre of it. For admin tribunals, the DOPP takes care of administrative
members and judicial members. There is no spefici integragted control which can be
exercised over all the admin trinunals. In UK, the Tribunals Courts and enforcement Act,
2007, they have cteatd a specific system to take care of appointments of all administrative
tirubals. There is a uniformitu in case of terms and conditions of appointment. By and large,
retired judicial officers are appointed by the state.
3. Public Recovery Act, 1890. In States, it is recognised as the Public Demands Act. Most of
the adminn tribunals do not have the power to enforce their final awards or orders. All these
awards are enforced by local administations in accordance wirth the recovert ct. the system of
arears of land revenue. the act of 1890 (s. 5). Powers under this act are given to district
adminsitrativoin to recover amount. This is one of the main limitatons. Otherwise, in system
of courts thet have the powers. In case of CAT, SAT, JAT and Armed Forces tribunals,
powers of contempt are available. Othersiw, in labour courts, preisidn officer deos not have
power to ounish for contempt. Contempt proceedings can only be initiated by the labour
commissioner who is dealing with the enforcement of award of labour court. the system is
complex and technical. In real racice, it does not happen and pople are not serious about the
decision of administrative tribunals because they don’t have the power to enforce their final
award.
We need to integrate the system. There are issues with respect to age, salaray etc.
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The qualifications can also be looked at and compared with a retired judicial officer.
HISTORICAL DEVELOPMENT: ADMINISTRATIVE TRIBUNALS ACT
First Administrative Reform Commission was created in 1966 and was headed by Morarji
Desai. Recommended the Ombudsman system and the creation of specialised tribunals to
deal with service matter disputes. At that time, there was no existence of AT dealing with
such disputes. Thereafter, several committees were appointed.
JC Shah Committee– 1969 – independent service matter tribunals.
Siemens Engineering and Manufacturing Company v Union of India – AIR 1976 SC 1785
– The SC recommended the creation of a specific tribunal in respect of custom and excise
subject matter.
In 1976, Part-14A was inserted by the 42 nd Amendment act. And Article 323A and Article
323B were inserted. These two provisions are very important for development of AT in India.
KK Dutta v Union of India – AIR 1980 SC 2056 – The dispute related to promoted
inspectors and directly appointed inspectors. The SC recommended the creation of special
tribunals for recruitment related matters.
ADMINISTRATIVE TRIBUNALS ACT, 1985
Mandate of the 1985 Act –
Central Administrative Tribunal (CAT) – disputes central government employees
State Administrative Tribunal (SAT) – disputes related to state government employees
Joint Administrative JAT – disputes arising out of service matter pertaining to one or more
states
Subject-matter jurisdiction, pecuniary jurisdiction and territorial jurisdiction of ATs need to

be examined. Rules of 1987 regulate the procedure. The Act of 1985 creates no appellate
authority. Territorial jurisdiction is defined by the notification released by the Central
Government.
1. Civil Post – s. 3(k) of the 1985 Act.
2. Service– s. 3(p) and 3(q) of the 1985 Act.
Jurisdiction of
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CAT – s. 14 and above three
SAT – s. 15 and above three
JAT – s. 16 and above three
There are some specific government employees who can never approach ATs. Three
important institutions have been barred from taking these benefits.
12th November 2020
Post – There are essential requirements for determining if a person holds a civl post or not. If
yes, then they are entitled to approach ATs. Otherwise, ATs are not available to all
government emloyees. However, there are certain exceptions. s. 3(k) has defined the term
post as a person holding a civil post in the state: state govt. or central govt.
Objectives of Creating of ATs
The Act has the mandate to create ATs In the form of CAT, SAT or JAT to provide for
adjudication of service matters and recruitment related disputes. It deals with only the posts
under the control of SG and CG. Private institutions are not covered under this act. The act
seeks to provide speedy and economic adjudication. The CG has the exclusive powers to
create tribunals. The central government while exercising this power under s. 4 has
constituted 17 benches of CAT across the nation. These benches have a specific jurisdiction.
This Act has overriding powers, but no tribunal has suo moto powers.
Subject-matter Jurisdiction – Service matter and recruitment related disputes. A person must
hold a civil post. There is no specific wage limit, applicable to all types of employees
regardless of their wages and status.
Territorial Jurisdiction – Jurisdiction of SAT is confined to the state only and is notified by
the government. The principle bench of CAT sits in Delhi. The jurisdiction of CAT has been
demarcated by the central government.
Pecuniary Jurisdiction – There is not specific limit when it comes to pecuniary jurisdiction
but there are restrictions with respect to the nature of disputes. There is no express provision
providing any details.
CG Employees in J&K – Are they covered under the jurisdiction of CAT?
KV Sanghathan v Subhash Sharma – They are covered.
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Whenever any statute is to be examined, these points are to be examined.
1. The mandate of the statute – create a machinery to adjudicate disputes
2. Application and non-application of the statute – applicable to person holding civil post
3. Benefits available with respect to the procedural requirements
4. Mechanism, power, jurisdiction, and composition of ATs
5. Misc. provisions
APPLICATION AND NON-APPLICATION
Application
The Act is applicable to a person holding a civil post under a SG or the CG. If not, then the
benefits of this Act cannot be availed. Section 3(k) defines the term post but merely says that
a post under the control of the state, outside or inside India. Section 3(q) has defined service
matters. SM are always related to posts. In case the dispute is related to recruitment, then a
person is not required to hold a civil post.
Nature of Post – Can be both temporary and permanent. Duration is also not important,
though it can be taken into account for deciding the compensation.
Workman under ID Act, 1947 – Section 28 – May approach ATs provided that the fulfil the
requirements. ID is applicable to private posts but AT Act is not. A person covered under
both the Acts has the choice to approach either of them. ATs are much more efficient.
However, under the ID, a person cannot be removed from service if a dispute is pending.
When the dispute is relating to recruitment, then the LTs do not have any jurisdiction.
Non-Application
It is not applicable to any member of armed forces of the union, including defence forces.
Delhi police – It is not an armed force so they are covered by the Act because of the nature of
actions performed by them.
Any officer or servant of the SC or HCs or subordinate courts.
Any person appointed to the secretarial staff of the parliament or state legislature or UT
having state legislature.
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Civilian Employees in Armed Forces
Narottam Das v Union of India – 1995 – There were to clerks employed by ITBP. They
approached CAT with promotion related disputes. Dismissed because members of armed
forces. Writ petition filed before the SC. The SC had to decide whether civilian employees of
the armed forces are covered by the 1985 Act or not. Para 7 – Two petitioners cannot be
regarded as the members of armed forces and as such their service matter won’t be beyond
the jurisdiction of CAT. Section 14 of the Act would come into operation. It covers civilian
employees of armed forces. CAT simply looked at the exclusion part.
Retired Employees of Armed Forces
Beda Nand Singh v DG, CISF – 1988 – Some members were terminated from service. They
approached CAT under original jurisdiction s. 19. The application was dismissed. Matter
brought before the SC. The Court made it clear that serving as well as retired employees of
armed forces cannot approach.
After 2005, the Armed Forces Tribunals have been created and all armed forces members are
expected to approach them.
17th November 2020
CONCEPT OF POST
It is related to application and non-application of the act. If a person doesn’t hold a post, then
the person is not entitled to the benefits of the Act. Post can be both within and outside India.
State of Assam v Kanak Chandra Dutta – AIR 1967 SC 884 – Para 9, 10 and 11 – s. 124 of
Assam Land Regulation. The respondent was employed as a Majumdar or the purpose of
revenue collection. Instead of regular salary, he was paid a commission for the work. He was
a part-time employee of the state. He was subject to the control of the revenue officer and
was removed from service without complying with PNJ. Article 311 requirements were not
followed. Termination was challenged before the HC. The arguments raised by the state: (i)
he was paid a commission, (ii) he was on part-time assignment so there was no question of
holding a civil post. The respondent argued that: (i) paid commission and (ii) subject to
revenue officer and therefore was holding a post. HC favoured the respondent. State filed
appeal before the SC. The SC had to decide if the respondent held a post for availing benefits
of Article 311. The SC referred to Short v JW Henderson (1946). In this case, Lord
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Thankerton laid down 4 important components of contract of service. Kanak Chandra

examined these four components. Contract of service is very different contract for service.
These components are:
1) Employer has the power to appoint. If there is no employer, then there can’t be an employee.
2) Employer is under an obligation to pay for the consideration. Remuneration can be the
consideration.
3) Worker is subject to control and supervision of the employer.
4) Employer has the power to dispose of the services of the workers.
In the given factual matrix, firstly, the respondent was engaged by the state on part time
basis. Secondly, he was paid a commission and hence, a remuneration was there. Thirdly, he
was subject to the supervision of the revenue officer. Fourthly, the termination was done by
the state. Hence, he satisfied all the conditions and hence was holding a civil post. Nature and
duration of employment are not essential for holding a civil post though they are important
for benefits.
The Court held that “A post is a service or employment. A person holding a post under the
State is a person serving or employed under the state. There is a relationship of master and
servant between the State and the person holding a post under it. The existence of this
relationship is indicated by the State’s right to select and appoint the holder of the post, its
right to suspend and dismiss him, its right to control the manner and method of his doing the
work and the payment by it of his wages or remuneration. A relationship of master and
servant may be established by the presence of all or some of these indicia, in conjunction
with other circumstances and it is a question of fact in each case whether there is a relation
between the State and the alleged the holder of a post.” Contract of service is a matter of fact
and it is to be proved by the person claiming it. “A post is an employment but every
employment is not a post. A casual labourer is not a holder of the post. A post under the State
means a post under the administrative control of the State. The State may create or abolish
the post and may regulate the conditions of service of person appoint to the post.” The court
here is referring to the nature and duration of employment. If a person is employed on part
time basis and is paid some incentive, then also the person would be treated as a person
holding a civil post. Ultimately, the Court held that he was holding a civil post and hence
entitled to all the benefits of Article 311. The termination was set aside.
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Outsourcing – A post means a statutory post. Outsourced workers are not holding a statutory
post. In case of contract of employment, one needs to take into consideration the
requirements of a statutory post.
Integrated Child Development Scheme –
MNREGA –
Anganwadi workers –
State of Karnataka v Ameerbi – (2007) 11 SCC 681 – Anganwadi workers engaged under
ICDS. Same logic is applicable to MNREGA workers. These workers are not engaged for
some statutory post.
Union of India v Chotelal - 1991 – Washerman employed by NDA.
Contents of a Post
1. Employer has the power to appoint. Procedural requirements must be followed.
2. Consideration – honorarium is paid out of public fund. If the consideration is paid out of
private funds, then a person cannot get the benefits of civil post.
3. Supervisory control on the employee should be there. Control test comes into play.
i) control test – this has two facets. What shall be done and how that work shall be done. It is
the prerogative of the employer to dictate the employee
4. disposal – the employer has the discretionary power for dismissal of service
All these actions are subject to PNJ. For instance, termination requires a proper inquiry to be
conducted and it involves civil consequences.
SERVICE MATTERS
In Service matters, the person must have held a post. Anything which is related to the terms
and conditions of the employment would be a part of service matters.
1. Remuneration including allowances – It also includes pension and other retirement

benefits.
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2. Tenure including confirmation, seniority, promotion, reversion, premature retirement and

superannuation – For instance, services of a probationer are not confirmed even after meeting
all the requirements.
3. Leave of any kind – Maternity leave, paternity leave, medical leave
4. Disciplinary Matters – breaches on part of employees. For conducting enquiry, there are
Civil Services Conduct Rules which are applicable to central government employees.
Disciplinary proceedings are subject to statutory regulations.
5. Any other matter whatsoever – residuary clause.
Subject Matter
Dr H Mukherjee v SK Bhargwa – (1996) 4 SCC 542 – Para 6 – damages for harassment. The
junior was victimised by the senior and thereafter compensation was claimed. The judgment
is related to tortuous conduct of government service. In such cases, the ATs will not have any
jurisdiction. This specific dispute is not related to terms and conditions of the employment. If
a person is victimised, then damages cannot be claimed from an AT. Service matter disputes
are not entertained by civil courts.
Ex gratia payment – Dispute with respect to an incentive which is not a part of the service
matter. There is no statutory requirement to pay ex gratia payment. It is not covered as it is
beyond the scope of terms and conditions of the employment. For instance, if there is a best
employee award and there is a dispute regarding that, then it is not covered because they are
not within the subject matter of terms and conditions.
CBDT v B Shyam Sunder – (2001) 9 SCC 87 – Para 9 –
Administrative Tribunals
Section 4 – Central government has the power to create ATs. When it comes to SAT, then
also CG has the DP to deal with it. Certain powers are delegated to CAT to deal with state
government employment issues. Similarly, SAT has powers to deal with central government
employees.
Composition and Qualifications
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A bench is composed of two members. One judicial and one administrative member. CG has
the powers to appoint. Same pattern has been followed by labour tribunals, company law
tribunals, etc.
19th November 2020
PROCEDURE
 The procedure is regulated by Ss. 19, 20, 21 and 22 of the Administrative Tribunals Act,
1985.
Who can file an original application?
 In CAT, original application is regulated by s. 19, s. 3(q) and s. 14. In JAT, original
application is regulated by s. 15 and s. 16 read with other provisions of s. 19 and s. 3(q). It
can be filed only be a person holding civil post. However, when the dispute is arising out of a
recruitment process, any ordinary person can file an application and they need not hold a
post; they can approach any AT subject to the jurisdiction. If the post is funded by the CG,
then CAT and if by the SG, then JAT.
 Whether a person is holding a civil post or not? – One ought to take into consideration the
four components: (i) person was appointed by the employer wherein the employer is the State
and proper process was followed. (ii) the remuneration paid to the person was out of public
funds. (iii) the person was subject to the supervision and control of the state. (iv) the
employer can remove the person from their post.
 Rule 4 provides who can file an original application. It is to be filed by the individual or
behalf of them. It is submitted to the registrar. Rule 4 also provides that a group of employees
can file a single application but two requirements are to be fulfilled. Firstly, if there is a
common cause of action. Secondly, if there is a common relied. If these two conditions are
met, then a single application can be filed.
When can an original application be filed?
 When dispute is related to service-matter or recruitment related matter.
Where can an original application be filed?
 Rule 6 of Central Rules of 1987 provides where an original application be filed. There are
two situations:
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1) When person is in employment – Where the disputed is related to term and conditions of the
employment – application may be filed before the registrar in whose jurisdiction the place of
employment is located or the cause of action arose partly or wholly.
2) When person is out of employment – In case of termination, it is filed before a Registrar who
is having the jurisdiction over the specific place where the applicant resides.
Does an AT have the jurisdiction to entertain PILs?
Dr. Duryodhana Sahoo v Jitendra Kumar Mishra – AIR 1999 SC 114 – The case dealt with
the specific issue of maintainability of PIL by an AT created under Administrative Tribunals
Act, 1985. The court has examined an “aggrieved person” to come to a conclusion. An
individual is supposed to submit an application. A single application on behalf of group of
employees can also be submitted. Section 19 says that a person aggrieved by an order
pertaining to any matter within the jurisdiction of a tribunal may make an application to the
tribunal for the redressal of their grievances. An AT cannot maintain a PIL. It has to be an
application filed under the 1985 Act.
Thammanna v KV Ready – (1980) 4 SCC 62 – “Although the meaning of the expression

‘person aggrieved’ may vary according to the context of the statue and the facts of the case,
nevertheless, normally, a ‘person aggrieved’ must be a person who has suffered a legal
grievance, a person against whom a decision has been pronounced which has wrongly
deprived them of something or wrongfully refused them something or wrongfully affected
their title to something.”
 Application fee is Rs. 50 and advocate is not required to be engaged, this reflects economical
and speedy justice. Also, an AT does not have suo moto powers. An AT acquires its
jurisdiction only after filing of an original application.
 Sub delegation of powers under Section 19 – there is no provision for this. The fundamental
principle of QJA is that it cannot be delegated and the duties cannot be surrendered in favour
of an administrative officer or authority. No tribunal can do this. Filing of application under
section 19 is subject to conditions under section 20 and 21.
 Section 20 says that a person shall ordinarily need to exhaust the ordinary remedy available
to them under service rules. If there is no scope of availing any alternative remedy, then the
person can approach. It is for the applicant to prove this. This section involves a filtration
process. The Registrar has the discretion to reject an original application if there is no cause
82
of action or an alternative remedy is available. Only desirable applications are forwarded.

The moment the application is admitted, it is listed according to the availability of the bench.
KK Gohil v State of Gujarat – 2010 – Examined the nature and scope of section 20.
Section 21 – Limitation
 Original application has to be filed within a specific time limit. There is scope of condonation
of delay as well. There are two situations:
1) When a final order under service rules has been issued. One year from the date when the final
order is passed by the appropriate admin authority.
2) When application is pending under service rules, then the application can be filed within a
period of 1 year from the date of expiry of 6 months from the date filing of application. So, it
becomes 6 months plus 1 year from that date.
Condonation of Delay
 Essential requirements for Condonation of Delay – Firstly, section 21 makes it very clear that
there must be a written explanation. Secondly, the written explanation must be based on
reasonable grounds. These two requirements can be applied to any procedure for condonation
of delay. AT has the discretionary power either to condone or not condone the delay.
Prahlad Raut v All India Instituted of Medical Sciences – 2019 SCC OnLine SC 1110 –
Section 21(3) is attracted when there is sufficient cause for the delay in filing an appeal
beyond the period of limitation.
SS Rathore v State of MP – (1989) 4 SCC 582 – The tribunal has no power to condone the
delay if the respondents had not given any explanation as to why they couldn’t find the
application within the stipulated period of limitation. This explanation must be reasonably
justified.
 If the application is barred by limitation and the delay is not condoned in the absence of any
reasonable justification, then the person can file a writ petition under Article 226. The
jurisdiction of Article 226 cannot be barred by limitation.
ADR for Service Matter Disputes
 ADR can be classified into two categories. First, bipartite wherein there is no involvement of
any third party. For instance, negotiation. Second, tripartite wherein there is a third party
83
involved. For instance, arbitration, mediation. Even Lok Adalat is considered as one. There
are certain terms and conditions of employment which can never be negotiated. For instance,
pay scale, leaves, etc. It can happen in certain cases but not in all. If the parties agree to some
kind of settlement, then it can be submitted to the Administrative Tribunal and the AT can
pass that settlement award. If everything is laid down in service rules and regulations, then
there is no scope of any bargaining. In case of service matter, bargaining is almost impossible
because there is no discretionary power available to an administrative authority to dilute
terms and conditions of fundamental service rules. For example, CCS rules are created by the
parliament and cannot be superseded by an AA. So is the case of AT; it does not have the
power to dilute fundamental CCS rules. If there is a dispute with respect to entitlement, then
that entitlement can be negotiated. For instance, the AT has ordered 100% payment of back
wages and the state says it can only pay 70%, then such negotiation can take place.
Therefore, there is very limited scope of ADR when it comes to service matter disputes.
24th November 2020
State of WB v Subhash – 2010 11 SCC 694 – s. 19 of admin act – whether the admin tirubals
can surrender/abdicate its duties and responisibblites to an adim authority. QJA under this
section cannot be subdelegated.
Procedure followed by ATs
The moment an application is accepted, then application is processed in as per the rules of
1987. It is an informal process and is not bound by CPC or Evidence Act. S. 30 is pertinent in
case of judicial proceedings. All the proceeding before ATs for certain provisons shall be
deemed to nbe judicial proceedings. But in true sense an AT is not a judicial nody. It
perfomrs QJA function in terms of PNJ.
The application is submitted and then scnreed by the ergistar. Approved as per s. 19 and 22
and the relevant rules.
It is to be seens that the infromtato is provided to all the parties and they are ereuqiredt o
submite replies and documetns. Thereafter,re th AT has the dsiceiton. It may dismisst the
application for some deauglet and later the dismissal may be set aside by the same AT.
The moment an applciatin is dismissed for degualt and is regulated by s. 15, the AT has the
power to set aside the order of dismissal. This order is passed when the applicant is absent.
There is a provision for condonation of delay as well. Rule 15 when the applciatn is absent.
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The discretionary power is applied only when a reasonable and justified applicaton is made.
Rule 16 – power to pass an ex parte order when the opposite party is not available. It may be
on merit or otherwise. It may be relaxed in accordance to the requirements of the pettinent
rule.
Power to Review
Rule 17 does not provide the grounds for power to exercise review. Power to review is not an
inherent powers but is avialble with judicial courts through CPC. s. 22(3) gives this power to
CAT, JAT and SAT. Section 114, Order 47 Rule 1 of CPC.
20 minutes.
Punish for Contempt
An AT has congempt power by viture of s. 17 and the rules of 1992.
Can an AT review its own decisions?
KG Derasari v Union of India – (2001) 10 SCC 496 – Contemp Jurisicton – a sneority list of
LDC was prerpated by CAT fofr the prupoe of promoton to the post of UDC. This list was
not followed by the concerned dept. wile pretiating the lsit, the CAT did not tka int o
consideration the SC’s decision and so the dept. did not follow the order. thereafter, an
application was filed under s. 17 and the CAT revews its own decision. Matter was brought to
th e SC. Sisue- whtehr na AT while exrcisign contemt jurisdiction can review its own
decision?
An AT under the act does not have any power to suo moto review its own decision. This
power can be exercised only when an application is submitted to them.
Para 17 – AT was not entitled in a contempot rceedung to decide the lglity of its erliaer order
which has reached finalyiy fir not being assailed by any court, if the AT has overlooked any
aw laid down by the SC, then the aggrieved party was required to file an application of
review.
An AT can pass an interim order. It can enforce its final decision.
Does an AT have the power to determine constitutionality of primary as well secondary

statutes related to service matters and recruitment related matters? –
85
IN Sampat Kumar, it was held that ATs have the pwoe to determine the consigttuionality of
these tatuste. It has treated tribubals at par with HCs. It has various trappings of HC such as
contempt powers. It was followed by JP Chopra v Union of India – 1987.
L Chandra Kumar – it was held by the specific bench that trubnals are not at par with HC and
are subordinate to them. An AT can determine constittiionality of priary as well as secnary
statues but it cannot determine the consttituionialyy of the Act of 1985 under which ATs are
created. An appeal from an AT shall lie before the division bench of a HC. Para 93 to 104
Para 94 – Tribunals are competent to hear matters. …
Was the power of contempt under s. 17 diluted by L. Chandra Kumar
T. Sudhakar Prasad v Government of AP – (2001) 1 SCC 516 –
This power is protected by Article 323(A to D) and Article 323(3B). s. 17 has been protected
by these articles. L. Chandrakumar mainly dealt with whether these articles can dispense with
the judicial review of HCs under Article 226.
42 minutes.
The same power is available to Armed Forces Tribunals. This power is given to specific
tribunals to ensure strict compliance of their orders.
L Chandra Kumar has created the scheme as per which the appeal against the decision of an
AT shall lie before a division bench of a HC. In the 1985 Act, there is no provision for
appeal. Thereafter, a person can approach against the decision of HC. A person cannot
approach the SC directly which makes Article 136 redundant. It is the discretion of the SC to
accept or not accept a SLP. This judgment has been criticised by a lot of scholars. If the
resolution of dispute is being delayed by creating hierarchy, then the purpose of creating ATs
is disputed.
215th Law Commission Report –
The SC has made it very clear that the judicial review power under Article 226 cannot be
diluted or curtailed by any law.
Composition of AT – An AT is composed of two members – judicial and administrative

member. The decision is based on the basis of majority. If there is a disagreement, the matter
is referred to the chairperson of the tribunal. In labour courts too there are similar provisions.
86
Remedy Available Against the decision of an AT – There is no appellate authority given

under the 1985 Act. In general practice, SLP by the SC is accepted only in exceptional cases.
Appeal lies to a HC as per the judgment.
2. Petition for Transfer – Application can be filed for transfer from one AT to another. Suo
moto powers are also available under s. 25.
3. Review Application – s. 22 (3)(f) and Rule 17. No suo moto powers in this regard.
4. Contempt Petition – may be filed according to the rules of 1992 and s. 17. Application cam
be filed in this regard. Suo moto power is also available.
5. Miscellaneous Application – Related to seeking copies of judgment, appointing legal

practitioners, etc.
Who has the power to create SATs or JATs?
The CG has the power to delegate some of the responsibilities regarding adjudication of
disputes related to CG employees to SATs and vice versa.
27th November 2020
DELEGATED LEGISLATION
 It is a law-making activity by an admin authority. Incidental and ancillary powers are given to
admin authorities to legislate. There are three organs of the state. Each organ has been given a
certain responsibility. The legislature creates new rights and liabilities. The power to legislate
also includes the power to delegate. Delegated legislation is also recognised as administrative
legislation. If there is a provision in the enabling act, then delegation legislation is possible. If
there is a power, then such power may/shall be exercised in accordance with the enabling act.
DL is always controlled and limited, otherwise it would be a case of excessive delegation.
Law-making activities can be classified into two categories:
1) Primary Legislative Activities: It is also recognised as essential legislative actions which can
never be delegated to anyone, including admin authorities. It includes law making,
modification, repealing of law etc.
2) Secondary Legislative Activities: Only incidental or ancillary powers are available. It

includes making of rules, regulations, orders, notifications, notices, etc. DL cannot supersede
the master, i.e., the primary legislative activities undertaken by the Legislature.
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CONTROL MECHANISM
 There are two main control mechanism:
1) Parliamentary Control – At the time of framing of primary legislative activities and after
framing DL. There are two committees for this purpose: (i) Committee of Subordinate
Legislation at Rajya Sabha and (ii) Committee of Subordinate Legislation at Lok Sabha.
2) Judicial Control – It can be exercised on two controls. First, substantive ultra vires. If there is
a violation of the Constitution or the enabling act or any other statute, it would fall under
substantive ultra vires. Second, procedural ultra vires. There is a procedural requirement to be
followed in case of DL. The procedure largely depends on the enabling act. If the procedural
requirements are not followed, it would be covered under procedural ultra vires. DL would be
subject to judicial review on these two grounds.
PRIMARY LEGISLATIVE ACTIVITIES
 Powers are given to the legislature to make law in accordance with their respective
legislation. The CG has the power to legislate with respect to matters given under all lists.
Power to legislate always include power to delegate except in case of essential legislative
activities. Only incidental powers are delegated. DL has become inevitable. Admin
authorities cannot function without DL; quality governance cannot take place. There are
specific statutory provisions recognising DL. For instance, in the UK the Statutory
Instruments Act, 1946. In US, their Constitution expressly gives some powers. In India, there
is no specific law which defines the jurisdiction of DL or what constitutes or limits DL.
Hence, all activities undertaken DL are governed by the enabling act. If there are no such
provisions, then admin authority cannot create law as per DL as it would fall under
substantive ultra vires.
CHARACTERISTICS OF DELEGATED LEGISLATION
 The starting point of Quasi-Legislative Action is creation of rights and liabilities. It can be
substantive as well as procedural rights. DL may require to follow certain procedural
requirements. There is no application of PNJ. As a general rule, there is no scope of sub-
delegation. But if the enabling act provides, then sub-delegation can take place. However, the
fundamental provision is that there must be some sanction for creation of rules and
regulations in the enabling act. It is to be noted that DL is not just confined to rules and
88
regulations. Also, the action must have been taking by an admin authority while exercising a
power granted by the enabling act.
What is the nature of action of a notification for conducting the CLAT first time? – Pure
admin action without any civil consequences.
What is the nature of action of the decision for conducting the CLAT first time? – QLA/DL
since there is a creation of rights and liabilities.
 There is no requirement of following the due process in case of DL because it is very

subjective. It may be classified into two broad categories: (i) discretionary and (ii)
mandatory. If the provision uses the word “may” then it is discretionary but if the word used
is “shall” then it would be mandatory. There might be procedural requirements such as
consultation with the CJI for appointment of a judicial member of an AT, consultation with
representatives of farmers in cases of land acquisition the happening of it would depend if it
is discretionary or mandatory. Similarly, prior approval would be needed given the wording
of the statute. For instance, Section 150 of the MCD Act, 1957 mandatorily requires prior
approval. In certain situations, a publication is required in newspapers or official gazette. In
real practice, it is difficult for parliamentary committees to scrutinise all the DL that take
place in the country.
NECESSITY OF DELEGATED LEGISLATION
 There are no qualifications required to become a member of the Legislature. So, there is a
lack of expertise. They do not have expertise in subjects such as IPR, criminal law,
cryptocurrency, etc. Over the years, DL has become an inevitable part of good governance
and absence of DL can cause a hindrance in the functioning of institutions. DL is also
recognised by the green light theory. It is a tool of internal governance.
1) Pressure upon the legislature’s time – The Legislature is burdened with various different
activities. So, they come out with some sort of a skeleton of legislative activities and ancillary
responsibilities are given to admin authorities. These can be to make rules and regulations,
take corrective measures to remove difficulties in functioning of some schemes, etc. In real
practice, the legislature does not hold any discussion on many important issues. Also, they
have vested interests in their respective political parties which can create some constraints.
2) Technicality of Subject Matters – The legislature lacks expertise, especially in specialised

subject-matter. So, there are many standing committees to deal with such areas but they are
89
also preoccupied in other works. Therefore, the law is enacted in a skeleton form and the
powers are delegated to experts. For instance, in SEBI/CCI all members are experts in the
field who are in a better position to deal with the DL.
3) To meet emergency/unforeseen contingencies – The law-making process is very

complicated and takes time. But in emergency situations, immediate action is required and
the parliament may not be in a position to pass laws on an urgent basis. But if the power to
make law is delegated, then rules and regulations can be made on an urgent basis. For
instance, RBI has the power to regulate the monetary policy.
4) DL facilitates the executive – It is a recognition of the expertise of admin authorities.

Institutions such as TRAI, SEBI, CCI are composed of experts who can take quick and
quality admin actions.
Agriculture Market Committee v Shalimar Chemical Works Ltd – AIR 1997 SC 2502 –
Para 23 – The SC examined the justification for DL.
Benefits of Delegated Legislation
1) Promotes decentralisation.
2) Stimulates the expertise of admin authorities.
3) It increases convenience and flexibility.
Criticism of Delegated Legislation
1) It is undemocratic in nature as non-elected people make law.
2) Lack of control over authorities making DL.
CLASSIFICATION OF DELEGATED LEGISLATION
1) Contingent/Conditional Delegated Legislation – In certain cases, framing of DL is subject

to fulfilling certain requirements. DL is complete if these conditions are met. All labour
legislations are enacted to benefit workers. In the Payment of Gratuity Act, 1972, there is a
15 days average wage for every year of completion of service. If better benefits are provided,
then labour law would not be applicable. So, exempting the application would be a part of
contingent legislations. Paying better benefits is the conditional requirement here to get
exemption from application of the act. In case of EPF Act, 1952, three benefits are provided.
Ordinarily, these benefits are extended to employee whose monthly salary does not exceed
90
the limit of ₹15,000 but if there is an agreement between the employee and the employer,
then the EPF Act shall be applicable. For instance, land can be acquired only for public
purposes under the Land Acquisition Act. The power to include or exclude depends on
fulfilment of the conditions.
2) Supplementary Delegated Legislation – Admin authorities while issuing orders of removal

of difficulties cannot modify the enabling act. Henry’s clause VIII is very important in case
of dilution of enabling act. Subordinate legislation is the servant and it cannot supersede its
master, i.e., the enabling act.
3) Interpretative Delegated Legislation – After formulation of the enabling act, powers are
given to the executive to explain and clarify the provisions of the enabling act. RBI often
issues circulars to clarify certain doubts regarding schemes. A similar power is available to
SEBI to clarify issues. This interpretative power must be confined to informal interpretation.
While exercising this power, the admin authority cannot go against the enabling act. The
intention of the legislature must be taken into consideration while doing the interpretation. It
should merely be a clarification. All circulars issued by SEBI or RBI are not covered but only
those wherein there is a creation of rights and liabilities are concerned. For instance, it
exempts some kinds of establishments from complying with some provisions of the statute.
29th November 2020
 The starting point of DL is empowerment by the enabling act. There must be a statutory
provision to give the power.
Gwalior Rayon Silk Mfg. Co. Ltd. v Assistant Commissioner of Sales Tax – (1974) 4 SCC
98 – “The rule against excessive delegation of legislative authority flows from and is a
necessary postulate of the sovereignty of the people. The rule contemplates that it is not
permissible to substitute in the matter of legislative policy the views of individual officers or
other authorities, however competent they may be, for that of the popular will as expressed
by the representatives of the people.”
Abdication of Legislative Powers and Excessive Delegation of Powers
 Abdication of legislative powers is different from excessing delegation. In cases of legislative

powers, essential legislative activities can never be delegated. The constitution mandates the
legislature to take certain actions. Excessive Delegated Legislation – Delegation of legislative
91
activities without providing a controlling mechanism. This is the sole criteria. Abdication and
excessive cannot be used interchangeably.
In re Delhi Laws Act – AIR 1951 SC 332 –– Opinion expressed by all judged with respect to
delegated legislation. It deals with extensions of delegation and powers of legislature to
repeal the enabling act. “The legislature cannot delegate its function of laying down a
legislative policy…what the law should be..”
Avinder Singh v State of Punjab – (1979) 1 SCC 137 –
WHAT CANNOT BE DELEGATED?
 Essential/Primary legislative activities
1. Power to make a law.
2. Modification/amendment of law
3. Repealing of law
Devi Das Gopal Krishnan v State of Punjab – (1967) 3 SCR 557 – The Constitution confers
a power and imposes a duty on the legislature to make laws. The essential legislative function
is the determination of the legislative policy and its formulation as a rule of conduct. It cannot
abdicate it functions in favour of another. But in view of the multifarious activities of a
welfare State, it cannot presumably work out all the details to suit the varying aspects of a
complex situation.
SC Natta - 2005
 If unlimited powers are given, for instance the sales tax commissioner can impose any
amount of tax, then it would be abdication of powers.
WHAT CAN BE DELEGATED?
 Non-essential activities can be delegated.
1) Power to make rules and regulations.
2) Power to amend
3) Power to repeal
4) Power to issue removal of difficulties order
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5) Power to include and exclude from application of laws. power to create some schemes.
Provided that such power is available.
 Under no circumstances can delegated legislation supersede the enabling act. Delegated
legislation is not an independent and unqualified authority. If there is no sanction, it cannot
create offences and prescribe punishment.
 Under the essential commodities act, certain provisions are available for sub-delegation.
Bhaskar Shrachi Alloys Ltd v Damodar Valley Corporation – (2018) 8 SCC 281 – Referred
to Indian Express Newspapers (Bombay) (P) Ltd v Union of India [(1985) 1 SCC 641] – “A
subordinate legislation cannot have the independent and unqualified authority which is an
attribute of true legislative power. The legislature must retain in its own hands the essential
legislative functions which consist in declaring the legislative police and laying down the
standard which is to be enacted into a rule of law, and what can be delegated is the task of
subordinate legislation which by its very nature is ancillary to the statute which delegates the
power to make it.”
Bhuwalka Steel Industries Limited v Union of India – (2017) 5 SCC 598 – Under no
circumstances can legal fiction be created by delegated legislation. Meaning thereby,
deeming provision cannot be taken under DL.
RETROSPECTIVITY OF DELEGATED LEGISLATION
 Social welfare legislations have been enacted and implemented with a retrospective date.
Fundamental principle of DL is that there must be a provision. If a provision is there, then
retrospective application is allowed.
Section 36A of Admin Act – provision for retrospectivity.
 Manual 11 – Ministry of Parliamentary Affairs – Committee on DL is empowered to take

care of retrospectivity. Such retrospectivity should not violate any constitutional provisions,
the enabling act, and any other provisions of the statue.
BS Yadav v State of Haryana – AIR 1981 SC 561 – Essential requirements for approving
retrospectivity:
1) There must be some provisions in the enabling act empowering the admin authority to take
some action
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2) Retrospectivity must be justified. Issue of speaking order is necessary.
3) Such retrospectivity should not violate fundamental rights or legal rights of an individual.
Kishan Prakash Sharma – AIR 2001 SC 1493 – Para10
 Can DL be enacted from retrospective date to legalise an illegal action? – For instance, a
person was employed through the backdoor and then an order was passed to legalise the
same. 10:22
SUB-DELEGATION OF LEGISLATIVE POWERS
 Sub-delegation can happen if there is a provision. Sub-delegation requires some legal

provision. It can happen if there is scope. It can happen through proper process and not
otherwise.
AK Roy v State of Punjab – (1986) 4 SCC 326 – the power was available to prosecute
someone for the violation of the Essential Commodities Act, certain rules were made by the
CG to empower the food inspector to initiate action. But this action was challenged because
there was no power given to CG to empower food inspector to initiate action. Thus, the action
was set aside by the SC. “The maxim delgatus non potest delegare merely indicates that sub-
delegation is not normally allowable but the legislature can always provide for sub-delegation
of powers.”
Can Admin order supersede DL? –
 Examination rules – power given to examination committee to grant exemption. Can these
powers be exercised by Moot Court Committee comprised of students? – Only by authority
empowered to exercise
 Deemed attendance is available only for 7 days. For instance, if students involved in a
prestigious project are granted a deemed attendance for 30 days. Can it happen? – This
cannot happen as instructions cannot supersede DL.
Admin orders can never supersede DL. DL is superior to administrative instructions.
Ashok Kumar Aggarwal v Union of India – (2013) 15 SCC 539 – Settled proposition of law
is that admin authority cannot issue an order in contravention of the statutory rules.
Instructions can be issued only to supplement the rules and not supplant them. Such
instructions should be subservient to the statutory rules.
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9th Schedule of the constitution and DL –
Kesavananda Bharati v State of Kerala – 1973 – judicial review power cannot be dispensed
with. 9th schedule is subject to judicial review
DL framed in 2020 under enabling act of 1970. This DL has violated Article 14 and 21 of the
Constitution. Can the protection available to enabling act be extended to delegated
legislation?
There is a causal connection between the two. All admin actions are subject to judicial review
after Kesavananda Bharati. No DL, primary or secondary activities are immune from judicial
review. Judicial review is a part of basic structure. 10:45
DL is
POWER TO REMOVE DIFFICULTIES
 It is also part of DL. While issuing such orders, the enabling act cannot be superseded. The
constitution cannot be diluted.
Henry VIII Clause – Statute of Reclamation:1539 – A Henry VIII clause refers to the
provision in a primary Act which empowers the Executive to make secondary legislation
which are inconsistent or can amend, repeal the primary legislation.
1st December 2020
 Only incidental powers can be delegated. Power to remove difficulties also comes under
incidental duties. However, this power cannot be exercised to supersede the enabling act.
Henry VIII clause is referred to in this context. Unlimited powers are not available. This
power is available only to supplement the existing schemes. It is generally exercised in cases
of a new scheme. Admin authority can make notification in appropriate instrument to remove
difficulties. The basic objective is to ensure that the scheme is functioning properly. The
legislature is the master and the interpretation must be in accordance with the enabling act.
Power to Remove Difficulties can be classified into two categories:
1) Power to remove difficulties with some stipulation – When there is a time limit given to
exercise these powers. For example, s. 34 of SEBI Act, s. 45 of FEMA. 5 years stipulation in
both with respect to power to remove difficulties.
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2) Power to remove difficulties without stipulation – section 34 of AT Act, s. 34 of the child

labour regulation act. There is no time limit to issue a speaking order of power to remove
difficulties.
1967 – Straw Products Ltd – Para 24 and 26 - Income Tax Act
Jalan Trading Co. Ltd v Mill Mazdoor Sabha – (1967) 1 SCR 15 – Power to remove the
doubt or difficulty by altering the provisions of the Act would in substance amount to
exercise of legislative authority and that cannot be delegated to an executive authority.
 While exercising these powers, the judiciary has made it clear that the power can be only
exercised when there is a difficulty in the functioning of the scheme. No such order can
supersede or dilute the enabling act.
Real Instances
 Unqualified people cannot be appointed to remove difficulties. The order to remove

difficulties must be a legal one. It cannot contradict any other law. However, in real life, such
orders supersede various statutory provisions. May be in appointment of teachers or
employees. If there is a stipulation, then the power can be exercised only within the given
time period.
 RTI Act, section 30 – Power to remove difficulties – The difficulty must be with respect to
the provisions of the RTI act. The CG has the discretion to publish an order to remove
difficulties in the official gazette. The condition is that the provisions were not consistent and
there must be some urgency to remove the difficulty. Such order can be passed only within
the first two years. The controlling mechanism is that every order made under the section
must be laid down before each House of the Parliament. There are other procedural
requirements such as prior approval, consultation etc. Therefore, (i) difficulty, (ii) impact on
enabling act, (iii) discretion, and (iv) procedural requirements are to be taken into
consideration
GST Act, 2017 – Section 172 – A series of such orders were passed in implanting the GST
Act.
 Essential requirements of a valid removal of difficulties order
1) There must be a difficulty in giving effect to the provisions of the enabling act
2) Such order must be necessary or expedient.
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3) It must be consistent with the enabling act.
4) It must be within the time limit. If the time has expired, then no order of such a nature can be
issued
5) Procedural requirements must be followed. Laying before the parliament. Consultation, prior
approval, etc.
CONDITIONAL LEGISLATION
 Conditional Legislation includes:
1) Power to bring an act into force. An AA has the power to bring an Act into force if there is a
discretion to do so.
2) Power to extend the territorial jurisdiction
3) Power to extend the time limit of a statute. For example, if there is a sunset clause which says
that the act will be in duration only for 5 years.
4) Power to abolish tribunals.
Is Conditional Legislation an integral part of DL or primary legislation activities?
Queen v Burah – PC – 1878 –
1951 – Reference Delhi Laws – CL is usually complete in itself when it leaves the legislative
chamber but its operation is made to depend on fulfilment of certain conditions. So, certain
discretionary powers are given to bring the act into force after fulfilling the conditions.
According to the judiciary, CL is not a part of DL. However, in a few cases it is held to be a
part of DL.
Only power is delegated to outside authorities. Such actions cannot be questioned as

excessive legislation. It does not contain any element of primary legislation activities. CL is
not subject to judicial review on this ground. CL contains no element of delegation of
legislative power and therefore, it is not open to attack on the ground of excessive delegation.
For instance, Trade Unions Act was amended but has not been brought into force till date.
The power of bringing an act into force involves – it amounts to DL. It involves delegation of
powers by CG to bring the act into force after fulfilling requirements such as creation of
infrastructure. It creates rights and liabilities. Otherwise, it would become a dead letter of the
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law like what happened with Industrial Amendment Act of 1982 which was never brought
into force. Rights and liabilities are created the moment it is brought into force. There might
be some controlling mechanism. If a specific action has violated Article 21, then that action
can be challenged.
Basant Kumar Sarkar v Eagle Rolling Mills – Ask.
Power to extend the duration: tenure of post – This happens in cases of sunset clauses.
Sardar Inder Singh v State of Rajasthan
Power to expand the jurisdiction
Tulsipur Sagar Co. Ltd. v Notified Area Committee – 1980
Power to abolish some authority
MP HC Bar Association v Union of India – 2004
CL is an addition to DL. It was not considered as part of DL. Admin Law is very dynamic.
CL as a Part of DL
According to Justice SR Das, Cl is part of DL. (In Re: Delhi Laws Act 1912, 1951, 7 judges)
Lachmi Narain v Union of India – para 49 – AIR 1976 SC 714
Vasu Dev Singh v UoI – 2006 – Para 16 – CL is a special Dl because it fulfils all
requirements.
CONTROL OVER DELEGATED LEGISLATION
Objectives of Control:
1. Controlling mechanism is a tool of accountability. It is ensured that the power is not

misused and is exercised for the purpose for which it is given.
2. It ensures that the power is exercised within the parameters of the enabling statute or any
other statute.
Control by the Legislature: It is exercised by two different mechanism:
(a) Through committees: the process is provided under Manual 11 of the Parliamentary
Control:
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1. Committee on Subordinate Legislation at Lok Sabha – 1953
2. Committee on Subordinate Legislation at Rajya Sabha – 1964
Documents are submitted before the committees for scrutiny. If they feel that there is a
violation, then it can be withheld. However, the difficulty is that these two committees are
composed of members who are not experts. They receive hundreds of DL every month and
are not in a position to cater to the need of the controlling mechanism.
(b) through the judiciary
The judiciary exercises the mechanism on the basis of two grounds:
1. Substantive Ultra Vires: It means beyond the scope of the enabling Act or any other law or
the Constitution. There are four grounds within this:
(i) DL is ultra vires of the enabling statute or the parental act. For instance, the act may say
that a fine of Rs. 500 can be imposed but that of Rs. 1000 was imposed. DL is exercised in
accordance with the parental act. DL is bound to follow the mandate of the parental statute.
DL does not have an independent existence but is subservient to the enabling act. If there is a
violation of the enabling act, then it would be ultra vires of it.
Powers to take action – Under the RTI Act, 2005, the CIC made certain rules even though it
had no powers to do so. These were stuck down by the Delhi HC in the 2009 case of DDA v
CIC. There are certain powers which are available only with the appropriate government or
the authority.
Powers used for different purposes – For instance, if the power if given for purpose A but
they are used for purpose B.
As a general rule, sub-delegation is not allowed. It can happen only if the enabling act allows
so.
If there is provision in the enabling act, then retrospectivity through DL is allowed.
(ii) DL is ultra vires of the Constitution. For instance, if the DL is violative of Article 14 or
restricted the jurisdiction of high court thereby violating Article 226.
(iii) DL is ultra vires of any other statute relevant to the specific subject-matter.
(iv) Enabling statue is unconstitutional and hence DL would also be unconstitutional
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2. Procedural Ultra Vires
Can DL be challenged on the ground that it has violated PNJ? – It is a well settled rule that
PNJ is never applied to DL. The creation of rights and liabilities does not require application
of PNJ. There is a difference between procedural requirements under PNJ and procedural
requirements under DL.
3rd December 2020
Control o
4th December 2020
PRINCIPLES OF NATURAL JUSTICE
PNJ was recognised as a tool of fair justice, fair trial, fair process for adjudication of disputes
and determining rights and liabilities. PNJ has been in existence since time immemorial. It
was known by other names. There is a connection between PNJ and nature of admin action.
There is no concrete definition of PNJ.
According to the SC, in the Canara bank case, PNJ is the administration of justice in a
common sense in a liberal way. Justice is based substantially on natural ideals and human
values.
Natural Justice is also recognised as common-sense justice.
In India, there is no specific statute regarding PNJ. Nations such as the US have one.
Recognition of PNJ by the Indian Constitution
Article 311 – applicable to person holding a civil post.
Article 21 – due process must be followed before depriving a person of their life
Article 226 – power of judicial review can be exercised only on three grounds.
RTI Act – If info not supplied, then public is required to give justifications
EPF Act – in case benefits are not paid, then justifications are to be given
Canara Bank v VK Awasthy – AIR 2005 SC 2090 – Para 8 – “Natural Justice is another
name for common sense justice. Rules of natural justice are not codified cannons but they are
principles ingrained in the conscience of a man …”
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AK Kraipak v Union of India – AIR 1970 SC 5150 – PNJ is not static. Para 20. The Court
also discussed the dynamic nature of PNJ. Kraipak has clarified that PNJ are uncodified
cannons. These would be applicable even when there is no provision. The nature of action
will govern the application of PNJ.
Initially, only Audi Alteram Partem and Rule Against Bias were there. Thereafter, speaking
order and good faith were added. There is a possibility a legitimate expectation will also be
added. It deals with unilateral promise. It is one of the grounds on which an AA is subject to
judicial review. It is still developing. In India, it is recognised as a legal right only in terms of
procedural framework and not in a substantive sense.
CAN PNJ BE RELAXED BY A STATUTE?
As a general rule, they have to be followed. But there are some exceptions. Article 311(2) is
on such exception.
1. When a person is convicted of criminal offences, nor require of PNJ.
2. National Security
3. Public Interest
The latter two are subjective terms and can be misused. AA is also required to give
justifications for not applying PNJ. Statutory provisions are also expectations. There are other
exceptions as well.
WHY DO WE NEED PNJ?
AK Kraipak – Para 20
The aim of PNJ is to secure justice or to put it negatively, to prevent miscarriage of justice.
Thus, PNJ are the tools of taking care of abuse of powers. PNJ also operate in areas not
covered under law validly made. In other words, they do not supplant the law of land but
supplement it.
Conflict of interest cannot be diluted. Fair trial cannot happen like this. Similarly, a show
cause-notice is important in cases of civil consequences.
There is a connection between mandate of AL and PNJ. AL controls arbitrary exercise of

powers. PNJ is a controlling mechanism in this sense. It protects the interest of the affected
parties. If there is no fair process, there won’t be good governance.
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FACETS OF PNJ
(1) Audi Alteram Partem (AAP)
The parties must be heard before awarding any punishment. There must be a fair trial and fair
process before deciding a matter affecting rights and liabilities of the party. There are two
important facets of AAP. (i) Prior notice and (ii) Reasonable notice. Issuing a showcause
notice is very important if the dispute involves determination of rights and liabilities and civil
consequences. For instance, if a party gets blacklisted. There is no specific requirement of a
notice. The notice must be reasonable in the sense that there are some essential requirements.
It must communicate certain details. (ii) Prior hearing. The reasonable time must be given.
Post-decision hearing – Maneka Gandhi v Union of India – 1978. Recognised post-decision

hearing.
(2) Rule against bias
Nobody can be judged in their own cause. A person cannot decide a dispute in a subject-
matter in which he himself is involved. It is extremely important for a fair trial and a fair
process. Three types of rules against bias:
(i) Subject matter bias
(ii) Pecuniary bias
(iii) Personal bias
Ranjit Thakur v Union of India – 1987 – Ranjit Thakur was a soldier. Had problems with
commanding officer. Sent a letter to superior officer of commanding officer. CO was
notified. Ranjit Thakur was punished. He refused to take meal while undergoing punishment.
Disobedience by not taking meals. Court martial. CO was a part of the committee. He was
dismissed from service and sentenced to imprisonment and declared unfit for civil service
outside the army. SC examined the conflict of interest. CO took part in all the proceedings.
SC came heavily on the CO and exonerated the person of all charges. There was a conflict of
interest involving the CO. The proceedings were declared unconstitutional.
Kraipak – Can a person be a member of the selection committee as well as a candidate for
selection? One of the members of the committee was also a candidate and topped the list. The
SC applied the likelihood of bias test: what would a common person think about such process
will be considered.
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Suppose that a complaint is filed against a teacher for sexual harassment solely on a
Facebook post. This post only had some items regarding corruption in legal education and
nothing pertaining to sexual activities. Application submitted to father of the person and the
application was processed. No showcause notice was given. In such cases, there is no
accountability of the person who has misused the powers. The doctrine of Public
Accountability is crucial in all aspects of admin authorities. If there is no compliance with the
PNJ, then the whole process should be vitiated.
(3) Speaking Order
The order must be a speaking order and a reasoned order. Many tribunals fail to pass a
reasoned order.
(4) Good faith
This aspect is still developing.
Difference between good faith and conflict of interest – In case of conflict of interest, the AA
is involved. There relatives or friends might be involved in the dispute. In case of good faith,
the action is to be decided solely on the basis of the facts and the law applicable. AA is not
involved and it should not go by its emotions. There is no subject-matter conflict in any way.
Good faith pertains to factual matrix.
The latter two grounds are modern grounds whereas the former two are traditional grounds.
5th December 2020
AUDI ALTERAM PARTEM
There are two main facets:
(1) Notice
It means communication of misconducts to the concerned person. They are informed of their
specific alleged wrongful actions. Showcause notice is required in case of pure AA with CC
and QJA. It is not required in QLA and Pure AA without CC. AA requires some specific
details to be communicated to such person and hence the notice must contain all such details.
Necessity of Notice – A notice is always a prior notice. A person cannot be condemned

unheard and for that purpose, some communication needs to be done. This task is done by the
showcause notice. It is the communication of certain facts sot that the person can prepare for
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their defence by producing evidence etc. It would be prejudicial to a person’s interest if they
don’t know the case against them. Proposes action will also be mention along with relevant
rules and regulations. The action proposed to be taken against them should also be taken. In
certain cases, prior notice can be dispensed with.
Blacklisting without a showcause notice? – If Pure AA with CC, then notice should be there.
UMC Technology Pvt Ltd v Food Corporation of India – 2020 SCC OnLine SC 934 – It
was held that a showcause notice must clearly mention the intention to blacklist the noticee.
They refer to the 1989, 2014, 1975 cases.
The notice must have been served on the person concerned.
Format of Notice – Contents
The notice needs to contain the details of the concerned person.
1. Proper Notice – The notice must provide a reasonable time to prepare and reply. This
depends on the facts and circumstances.
2. Proper Notice - The notice must be unambiguous with respect to all the details – proposed
action, concerned person, misconduct, reasonable time, etc.
Prejudice Theory – There won’t be an automatic setting aside of order. The aggrieved person
must establish that because of non-compliance of PNJ, he suffered. Before this, if there was a
violation then AA was null and void. This theory is applicable in each aspect of PNJ.
Dharampal Satyapal Ltd v Commissioner of Central Excise – (2015) 8 SCC 519 –
Modes of Serving Notice
i. By Hand
ii. By Email/WhatsApp
iii. By Speed post/Courier
If the notice is issued, then it is the duty of the state to prove that the notice was
communicated. If the aggrieved person doesn’t follow then can’t claim relief.
BoD of HPRTC v KC Rahi – (2008) 11 SCC 502 – the person was charge sheeted. Notice
was given. It was also published in newspaper. He did not participate in proceedings. Ex
parte. Action against him. He approached SAT on grounds of violation of PN. The state
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proved that notice was communicated but he failed to respond. He could not prove that notice
wasn’t concerned to him. It is the duty of the concerned person to show that they did not
receive a notice. “The PNJ cannot be put in a straitjacket formula. Its application depends
upon the facts and circumstances of each case. To sustain a complaint of non-compliance
with the PNJ, one must establish that he has been prejudiced thereby for non-compliance with
PNJ.”
State of Karnataka v Mangalore University Non-Employees’ Association – (2002) 3 SCC

302 – Workers were given certain benefits they were not entitled to. After some time, the
excess amount was recovered without issuing any notice. This action was challenge for
violation of PNJ in absence of prior notice. 1999 MC Mehta – Useless Formulative Theory –
from the given facts it can be concluded that the workers were not entitled to the amount.
Even of PNJ had been applied, the outcome would not have been different because they were
not entitled to it. (NOTE – If recovery was with penalty or interest, then there would be
requirement of PNJ.)
Notice in cases of Pure AA without CC – Not required
Removal of someone who isn’t qualified to hold the post – No notice required because not
entitled to hold in the first place. Pure AA without CC. If backdoor entry, remove from
backdoor.
Raghunath Thakur v State of Bihar – (1989) 1 SCC 229 – Blacklisting of a contractor

cannot be done without affording opportunity of hearing to the contractor.
Oral Notice – It can be issued. It is the duty of the concerned authority that the proper details
were communicated. It is their duty to prove the telephonic conversation.
Nilkhanta Case – 1962 – In majority of the cases, a written notice is always given. oral notice
can be issued too.
Can the requirement of notice be relaxed? – It is recognised by Article 21 of the Constitution

that people have a right to notice. In case of public interest, it cannot be waived. But in
private interest, it can be waived. The individual is well aware of the facts and misconduct,
then notice can be relaxed provided that it is consented by the concerned person. In case of
public interest, there are a lot of people involved. For instance, in land acquisition, a lot of
people are involved.
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Rajinder Singh v State of MP – 1996 - prior notice can be relaxed in case of private interst/
Commissioner of Customs v Virgo Steels, Bombay – (2002) 4 SCC 316 – If a notice is

issued for ‘A’ misconduct, then the person cannot be tried for an additional misconduct. For
that, separate notice shall be issued.
Requirements of a Proper Notice
Canara Bank v Debasis Das – AIR 2003 SC 2041 – Para 15
i. Notice is required to be clear and unambiguous. If it is ambiguous or vague, it will not be

treated as reasonable or proper notice. Details of parties, enquiring officer, time limit,
proposed action etc needs to be there
ii. Must specify the action proposed to be taken.
Joseph Vilangandan v Executive Engineer, PWD – (1978) 3 SCC 36 – cancellation of

contract and blacklisting for future contract. The notice was given but the notice did not
specify the proposed action. Not given the opportunity to submit explanation regarding
blacklisting. Action of blacklisting was challenged. It was held that the appellant was not
afforded adequate opportunity to represent against the impugned action which was necessary
before blacklisting him.
iii. the notice must give sufficient time to the person concerned to prepare his case. Whether
the person concerned has been allowed sufficient time or not depends upon the facts of each
case. Generally, it is 30 days in all respects. Sometimes, a 15- or 7-day time limit is also
given.
(2) Right to Fair Hearing
After serving a notice:
1. Prior Hearing must be there
2. Proper hearing - must be reasonable.
Fair enquiry – Conducted by independent person. If by related party, then rule against bias.
fair trial, and fair process.
Hearing can be dispensed with in certain cases. Article 311.
Components of Reasonable Opportunity of being Heard
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Hearing – Natural Justice demands that the person who is to be directlt adequre notice of
what is proposed. It is done to collect facts from the other side. Hearing enables him to make
a representation on his behalf in inquiry. Conducting inquiry is a fact finding mission and it
does not resolve disputes. However, in real practice it happens.
2. Hearing must be reasonable – not only seen but must be done.
i. Authority must disclose all the details. If documents are not supplied, then not reasonable
hearing. During the hearing process, certain rights are available to the affected person. If
there is no cross examination, then there can’t be a proper hearing. If additional documents
related to specific interest are not supplied, then violation of AAP.
Rules of 1965 – Complete process required to be followed by inquiry officer. CCS Rules
govern misconduct.
Union of India v TR Verma – AIR 1957 SC 882 – facets of fair hearing.
NJ requires
1. right to adduce all required evidence.
The evidence of the opponent should be taken in his presence
He should be given the opportunity of cross examining the witness examined by that party
No materials should be relied on against im without
Union of India v Tulsiram Patel – AIR 1985 SC 1416 – Para 66
An opportunity to deny his guilt and establish his.
The inquiry officer should ask whether he admits his misconduct or not.
An opportunity to defend himself by cross examining the witness produced against him and
by examining himself or any other witness in support
Can the right to be represented by a legal practitioner by claimed in a domestic inquiry? –

These do not adjudicate disputes. They merely collect facts and make recommendations to
discplinary authorities.
Suppose the person is illetarate or some complex issues are invlived, hten what is the legal
status of this right? Can it be treated as a matter of entitlement? It cannot be claimed as a
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matter of right. If there is specific provison, then it would be available. Otehrwise, there is no
entitlement.
Suk Das v UT of Arunachal Pradesh – AIR 1986 SC 981 – In general, the right to be
represented by a counsel is not considered an ingredient of NJ unless required by a
constitutional or statutory provision.
HC Sarin v Union of India – AIR 1976 SC 1686 – In domestic inquiry, no prejudice was
caused in not making available to the delinquent the services of the profession lawyer.
Moreover, it was not obligatory under the concerned rules to provide one.
SBI v Jah Developers Pvt Ltd – (2019) 6 SCC 787 – If granted by DL, then can be granted as
a restricted or controlled right. Regular to grant legal rep. through an agent would not violate
PNJ.
Navy s. 36 of Industrial Disputes Act – a legal practitioner is not allowed to appear on bhela
of any party unless the officer presiding allows so.
CAT – there is a provison allowing
Family Courts – not allowed
DG Railway Protection Force v K. Raghuram Babu – AIR 2008 SC 1958 –
RPF Rules 1986, 87,153
According to the rules the cross examination cn only be done by concerned person and not by
a legal representation. The rules is challenged on ground of PNJ because the authorities
person was not allowed to cross examination. Set aside by HC. SC made it clear that there is
no right to be represented by a legal practioner and the rule can be diluted or restricted.
Position in the UK and the USA:
UK – R v Governors – 2011 UK SC 30 – No right
USA – Admin Procedure Act, 1946 – s. 554(a) – Yes
Legal aid during domestic inquiry –
Well established principle is that all PNJ are not to be followed. But in some cases,
everything needs to be followed.
8th December 2020
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POST DECISIONAL HEARING
In certain circumstances, prior hearing is not possible. Can be because of emergency. In cases
of IPR violation, food adulteration, narcotics, smugglers, etc. The requirements of prior
hearing can be dispensed with in cases of larger public interest. In Maneka Gandhi, the
following three principles were laid down for post decisional hearing:
1) Pre decisional hearing may be dispensed with or substituted in an emergency situation where
an immediate action is required to prevent an imminent danger to protect the larger public
interest.
2) PDH would be justiciable. There must be proper justification issued by the admin authority.
3) Pre decision hearing dispense with, there must be a provision for post decisional hearing.
Swadeshi Mills v Union of India – 1981 – Dealt with the point of urgency.
Liberty Oil Mills v Union of India – 1984 – Urgency.
IJ Rao, Assistant Collector of Customs v Bibhuti Bhushan Bagh – Section 110, Customs Act
of 1962.
Criticism of Post Decisional Hearing
KI Shephard v Union of India – 1987
HL Trehan v Union of India – 1989
These two cases gave referred to bias approach. If action is taken, then it is likely to affect the
output. The approach would be biased.
Hearing and Decision by One Person
One who hears must decide/one who decides must hear – the person who conducts hearing
would be in a better position to decide as per the records placed before them.
In UK, it is not possible for an AA to take care of both the actions.
If hearing by one and decision by another, there won’t be a violation of PNJ. For instance, if
one person conducts the hearing but is thereafter transferred, then he won’t be able to give the
decision. Thus, due to practical difficulties it is not possible to strictly follow the doctrine.
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Gullapalli Nageshwar Rao v APSRTC – 1959 – Doctrine of one who decides must hear.
Right to hearing is a procedural requirement. PNJ is not applicable in QLA. When other
procedural actions are concerned, that is a different proposition. The case is related to DL.
Yoginath D Badge v SMH – 1999
Lav Nigam v Chairman and MD, ITI Ltd. – 2006
Right to Copy of Inquiry Report
CCE Rules 1965 – a person is entitled to a copy of inquiry report.
Otherwise, right to copy of inquiry report is a matter of PNJ but duty of aggrieved person to
show that he suffered from this.
Kailash Chand Asthana v State of UP – 1988 – No automatic setting aside order. Prejudice.
Union of India v Ramzam Khan – Violation of PNJ if copies not provided. An aggrieved
person is not required to prove the prejudice
MD, ECIL v B Karunakar – Prejudice must be proved by the affected person. The court has
recognised the theory of prejudice required to be proved by the aggrieved person.
Haryana Financial Corp. v Kailash C Ahuja – 2008 – Prejudice to be proved.
RULE AGAINST BIAS
A person cannot take cognizance of their own case.
Rule against bias is also recognised as conflict of interest. The process must be fair. A person
with vested interest cannot take care of fair inquiry.
It is a matter of fact is required to be proved by the parties.
Three types of bias: subject matter, pecuniary and personal bias.
Mineral Development Ltd. – Must be proved by the person who is alleging it.
A person stands disqualified to eb party of any decision making in which he is a party or any
relatives or friends are involved. Even if some enemies are involved, then also cannot.
AHIL v SB Sardar Ranjit Singh – 1968 – Para 14 Issues related to bias have to be reasied as
early as possible or it would be deemed that the bias have been waived.
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Judgment related to oral notice. It is accepted if facts are communicated to the person.
Burden of proof on AA - Neel Kantha S Lingus Beti v Kashinath Somanna – (1962) 2 SCR
551
UoI v Ram Lakhan Sharma – 2018 7 SCC – Para 7 – No man shall be judge in his own cuase.
This principle consists of 7 principles
1. The Adjudicator shall be impartial and fair
2. The Adjudicator shall not be the prosecutor.
3. The complainant shall not be an adjudicator.
4. A witness cannot be the adjudicator.
5. The adjudicator must not import his personal knowledge of the facts while inquiring into
the charges.
6. The Adjudicator shall not decide on the dictates of his superiors or others
7. The Adjudicator shall decide despite on basis of material or record and not on extraneous
material.
The first four points are related to bias. The later 3 are related to good faith.
(1) Personal Bias
It arises out of the personal or professional relationship or friendship or hostility between the
parties and authority. It is the human nature that we try to give favourable decision to our
friends or relatives, whereas use the same as a weapon against enemy. If there exists a
personal relationship between parties and decision-making authorities, then person bias is
there. It covers positive as well as negative relationships.
Ranjit Thakur v Union of India – 1987 – Personal Hostility
Meenglass Tea Estate v W/M – AIR 1963 SC 1719 – The manager of an industry was beaten
up by some workers. An enquiry was ordered and the same manager was appointed as inquiry
officer. The workers were blamed in the inquiry report and they were punished. Nature of
action is PP with CC. So, there was a requirement of PNJ.
Subject Matter
111
A judge may have a bias in the subject matter, which means that he is himself a party or has
some direct connection with the litigation. A legal interest means that the judge is in such a
position that bias must be assumed.
AK Kraipak v Union of India –
A person cannot sit in an appeal against his own decision.
A person is required to prove that the official was involved. Duty of admin officer to recused.
Baidynath M. v SO – 1989 –
Cantonment EO v Vijay D Wani – 2008
State of UP v Md. Nooh – 1957
Manish S Pardasani v State Excise – 2019
Pecuniary Bias
A direct/indirect pecuniary interest however small or insignificant, disqualifies a person from

acting as a decision maker in a dispute. Some pecuniary interest in the process: shareholders,
partners, etc. Content of pecuniary interest is not important.
Dimes Case – 1852 – Suit was filed against a company. the judge was holding shares in the
company. passed an order in favour of company. thereafter the action was challenged on
ground that the judge had a pecuniary interest. The order was set aside by the House of
Lords. An interested person cannot adjudicate fairly.
R v Mulvihill Case – 1990
Tests of Examining Bias
Real Likelihood of Bias Test – Applied in AK Kraipak – reflection of opinion of the court
and matter of fact.
Reasonable Suspicion Bias Test – reflection of public opinion about an AA action. What will
eb the perception of the people.
Kumaon Mandal Vikas Nigam Ltd v Girija Shanker Pant – 2000
RL Sharma v MC, Dr. Hari Ram – HSSC – 1993
SPEAKING ORDER
112
When the adjudicatory bodies give reasons in support of their decisions, the decisions are
treated as reasoned decision. Pure AA with CC required to give reasons. Right to know is an
integral part of Article 21. It means a decision contains reason in its support. Right to reason
is an indispensable part of sound judicial review. The order speaks for itself or it tell its story.
It must take into consideration the facts supported by facts, case laws, and statutes. Speaking
order is a tool of accountability to ensure that powers are exercised properly. If not issued,
then action subject to judicial review due to violation of PNJ.
Chairman, Disciplinary Authority, Rani Lakshmi Bai Kshatriya Gramin Bank v Jagdish
Sharan Varshney – (2009) 4 SCC 240 – The purpose of disclosure of reasons, is that people
must have confidence in the judicial or quasi-judicial authorities. Unless reasons are
disclosed, a person wouldn’t know that mind was applied to the given facts and law. It takes
care of arbitrariness by minimising its chances. It ensures objectivity and promotes good faith
in the decision-making process. Hence, it is an essential requirement of the rule of law.
Kranti Associates PL v Masood – Para 51 – 20 items
One must be in a position of issuing speaking order. HIRAC method must be followed to
write one.
Can an appellate authority while taking care of an appeal is also required to give reasons?
SN Mukherjee v Union of India – When order of disciplinary authority is accepted, no reason

is required. But if the same is rejected, then a speaking order is mandatorily required.
Drafting a Speaking Order
HIRAC Method of Case Analysis
1. Brief Facts of the Case.
Guidelines on issuance of reasoned order – JCIT Surat v Saheli – Para 7
A systematic approach must be taken.
GOOD FAITH
Admin authority while perfiorming admin action is sipposed to deice only on facts and the
deicion must be a bona fide action. It must not be based on feelings, emotions or any
perceptions.
113
Union of India v Ram Lakhan Sharma
1. Not to import personal knowledge
2. Not to dictation or direction
3. material on records to be used. Not any extraneous considerations
EXCEPTIONS TO THE PNJ
As a general rule, applicable to QJA and PA with CC. However, it can be relaxed to promote
larger public interest.
1. Statutory Exclusion – it must withstand the test of constitutionality.
Article 311(2) – relax PNJ for national security,
Section 17 – Land Acwusiton – urgent requirement of land
DTC v DTC Mazdoor Congress – AIR 1991 SC 101 – Regulations struck down for violation
of PNJ.
2. Emergency
If prior notice is given, then it would defeat the larger public interest.
3. Legislative Function and Policy Matters
PM are not beyond the scope of judicial review.
No PNJ in cases of primary legislative activites.
4. Public Interest
Hira Nath Mishra v Principal Rajendra Medical College Patna – AIR 1973 SC 1260 – Male
students had entered the women’s hostel. They created nuisance in the hostel. Matter was
reported to the principal. An inquiry was ordered. Details of complainant were not disclosed.
Cross examination was not allowed for safety. Principal rusticated some students. This action
was question for violating PNJ. Matter brought before the SC.
To protect the interest of girl students, requirement of cross was dispensed with.
Such things can also happen in issues related to gangsters, terrorists, etc. othetwise people
will not come forwards.
114
5. Pure Admin action without CC
In case person is not affected, then no requirement of PNJ.
6. Contempt of Court
The aggrieved party is the judicial officer.
According to PNJ, such proceedings would amount to PNJ. However, the judiciary has not
accepted this. This is so because contempt is of court and not individual.
7. Impracticability –
It can be relaxed if not able to follow practically.
8. Academic Evaluation
Where academic performacn of a student
There is no requirement of PNJ here.
If individual has been fiving many opprotnuties and the person does not come to the
expectation, then the name of the person can be reomev. However, proper justification is
required at the time of removing the person from the univieryt. Details regarding the
oppoutities, multiple failure etc need to be given. it is not necessary to conduct a hearing
again after remving them.
10th December 2020
JUDICIAL REVIEW
Court of Succession is the highest court in France. Whether the power of judicial review is
available to them?
Judicial review is not available in France.
China is governed by civil law system and courts there have very limited power.
In Common law system. Courts are highly empowered. They can review legislative and
executive actions.
Judicial review is recognised as a part of basic structure. Article 32 and 226 are also part of it.
Judicial review under226 is different from 32. Judicial review deals with only decision-
making process. Thks is the difference. Judicial review is very specific under 226 and 227.
115
By making primary or secondary legislations, can the power of judicial review be relaxed? –
It has happened many times.
Section 28 of Admin Act
SP Sampat Kumar v UoI
L Chandra Kumar v UoI
Are policy matters of state beyond the scope of judicial review? BALCO 2002, Para 92 – SC
has examined the status of policy matters.
The eneral prncile is thatp licy mattes are byoend scpe. But if plic yhas violated any
constituon privson or anabling act or amu law, then there is scope of judicial review. So,
speofici violations are covered.
Difference between judicial review and review – Review is always done by the same court or
tribunal. It is done on limited gorunds. It is not an inherent powers of a tribunal thought it is
of courts. Section 22 of Admin Action includes power to review its wnd doecion. Judicia;
revew is exercised by a higher coury. Unde 226, judicial review is possible on limited
grounds. JR is also deifferent from appeal. JR deals only with the procedure followed by an
adin authrotu.
Nature of Judicial Review
Apparel Export Promotion Council v AK Chopra – AIR 1999 SC 625 – The court in exercise
of the power of judicial review is not concerned with the correctness of the findings of fact on
the basis of which the orders are made so long as those findings are reasonably supported by
evidence and have been arrived at through proceedings which can’t be faulted with for
procedural illegalities or irregularities which vitiate the process by which direction was
arrived at JR.
226 power can only be exercised if there is a problem with the decision-making process on
the five grounds.
State of Kranatak v N. Ganga Raj – 2020
UoI v T Gunashekharan – 2015 – Para 13 – under article 226 or 227 of the consti, the HC
shall not
(i) reappreiceate the evidence.
116
ii. interfere with the conclusn of inquit
iii. go with the adequace of evidbee
iv. go into the reliavbility fo evidce
v. interefere with the legal finiginds if evidnce can be based
vi.
vii. go into the procedure
In case of appeal, the court can appreciate the evidence. But when it comes to judicial review,
it deals with on
Tata Cellular v UoI – 1994 6 SCC 651 – the court has discussed the scope of judicial review.
– Pra 77 – duty of corut is to confine it self to the quditon of legaltity
i. whteht e ad ecison making authorty exceeded its powers
iii. reached a deicison not reasonable tribunal would have reached
iv. abuse of power
Municipal Council Neeman v Mahavir Real Estate – 2019
Aurangabad bencg – 2019 – Bombay HC- Champa Bai Rathore Shramik Mahla Pratistha –
discussed the scope of judicial review
The court cannot act as an appellate authority. According the L Chandra Kumar, an aggrieved
person from admin tribunal shall approach division bench of HC. 226 does not deal with
appeal at all.
Objectives of Judicial Review
Mandate of Admin Law is to protect people from arbitrary action of the state. Admin law
thus controls such exercise of power. Judicial review is an important tool in controlling
arbitrary exercise of powers. Individuals are protected in case there is a terminiation of
requirement by sateiwthout compliance with PNJ, then such action can nbe challenged under
226.
2. Control – JR is a mechanism of control. It ensures that admin authorities act within the
bounds of RoL. It ensures good governance and performance of public functions. Public
117
servants are now well aware of illegal admin action. There is an element of personal
accountability now.
LDA v MK Gupta
Approaching HC under 226 is very costly. The honorarium depends upon several factors. The
process is not simple due to complex technicalities. It is not easy to get speedy and
economical justice. There is every possibility of influence as well.
Neelima Mishra v Dr. Harvinder – Petition was filed in 1978. It was listed only in 1988.
Modes of Judicial Review
Two categories
1. JR under constitution
Mandamus, Certiorira, Habeas Corpus, Quo Warranto. 136 is also part of judicial review.
2. JR under primary legislation
(i) It is in the form of appeal. Appeal is always referred to an appellate authorty.
(ii) reference to HC – s. 250 of income tax act 1961
Grounds for Judicial Review
Reasonable expectation
1985 – legitimate expectation – it can be classified into two categories: (i) substantive and (ii)
procedural.
Legitimate expectation deals with unilateral promise or consistent past practices. These
practices must be legal practices. It is v different from promissory estoppel.
5 main grounds for JR of admin action. JR is not static. It is dynamic. JR only deals with the
decision-making process under 226. The first 3 are traditional grounds where as bottom 2 are
modern tests.
1. Illegality – Admin action is illegal. It is ultra vires – substantive or procedural. Ultra vires
is lack of power. It deals with sitautons where tehre is not power but it has been exercised.
BY and large confined to substantive ultra vires, as seen from cases.
118
All the actions must be in accordance with RoL. The ground of illegality deals with two
specific contingencies – excess of powers or lack of powers.
DL cannot override other statutes.
Holding a post is subject of fulfilling some conditions. RoL requires the due process to be
followed. Otherwise, this would be an illegal appointment.
RTI Act, 2005 – only the commissioner has the power to levy the fine under this act. The
limit of 25k cannot be exceeded.
Land Acquisition – any land can be acquired for public purposes. If land is acquired for non-
public purposes, then it can’t happen.
Ignorance of law is a serious problem nowadays. People are being appointed through the
backdoor. If you question, then it will bounce back. Arrogance couple with ignorance of law
is a recipe for disaster. UGC regulations have been enacted to take care of various situations.
Even in ad hoc employees, due process is required.
Can illegal actions be legalised by admin authorities? – Illegal action is null and void and it
cannot be approved by anyone.
If the test of legality is not followed by AA, then it is subject to judicial review.
1.
2. Irrationality – Wednesbury corporation judgment – 1948 – three principles
3. Procedure Impropriety - the process has not been followed. It also includes the non-
compliance of PNJ. JSM would treat this ground an integral part of ground 1.
4. Proportionality –
A person was in possession of some alcohol bottles. Due to this, the person was thrown out of
the employment.
Ranjit Thakur – Gross abuse of powers
The punishment must be proportionate to the misconduct committed by the public servant.
DL is not pro rata or has exceeded some constitutional mandate. The doctrine of
proportionality says that admin action must be proportionate to the misconduct.
119

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ADMINISTRATIVE LAW – I

JURISPRUDENCE OF ADMINISTRATIVE LAW.................................................................................................................8

NATURE AND SCOPE OF RULE OF LAW....................................................................................................................27

CONCEPT OF SEPARATIONS OF POWERS...................................................................................................................37

CLASSIFICATION OF ADMIN ACTIONS.......................................................................................................................45

RD Shetty v International Airport Authority of India – AIR 1979 SC........................................................................60

State of Punjab v Hari Krishna Sharma – AIR 1966 SC 1081....................................................................................66

Bharat Bank Limited v Employees AIR 1950 SC 188................................................................................................70

ADMINISTRATIVE TRIBUNALS ACT, 1985..................................................................................................... 76

APPLICATION AND NON-APPLICATION.....................................................................................................................77

Thammanna v KV Ready – (1980) 4 SCC 62.............................................................................................................83

PRINCIPLES OF NATURAL JUSTICE.............................................................................................................. 101

Canara Bank v VK Awasthy – AIR 2005 SC 2090....................................................................................................101

WHY DO WE NEED PNJ?....................................................................................................................................102

JUDICIAL REVIEW...................................................................................................................................... 116

 Administrative action can be categorised into three categories:

1) Quasi-Judicial – It is different from judicial action though it can involve adjudication

2) Quasi-Legislative/Delegated Legislation/Secondary Legislation - It deals with making

3) Pure administrative action:

i) With civil consequences ii) Without civil consequences

4th September 2020

JURISPRUDENCE OF ADMINISTRATIVE LAW

NATURE OF ADMINISTRATIVE LAW

 There’s no comprehensive definition of administrative law. Administrative law is an interface

8th September 2020

2) Professor Wade – He was a leading scholar in administrative law and contributed

3) AV Dicey – He described three basic features of admin law:

CHARACTERISTICS OF ADMINISTRATIVE LAW

1) It deals with the interface between state and private individuals

2) It is concerned with administrative actions performed by admin authorities.

4) Admin law is not a codified law unlike CrPC, IPC etc.

RECOGNITION OF ADMINISTRATIVE LAW

 Doctrine of Separation of Powers – There must be a clear separation of powers among

 Article 1 – Legislative powers: Congress

 Article 2 – Executive powers: President

 Article 3 – Judicial powers: Judiciary

 Administration Procedure Act, 1946 – deals with recognition of principles of natural

 Freedom of Information Act, 1966 – access to public information

 Article 16 – It provides for equal opportunities in terms of employment. When it comes

ii. Irrationality – Wednesbury corporation judgment – 1948 – three principles

iv. Procedural impropriety – whether principles of natural justice are followed

v. Legitimate expectation – latest development

 Article 323C and 323D – Lokpal and Lokayukta

 RTI Act, 2005 – empowering people to access public information

 Tribunals – Many quasi-judicial authorities have been created – MACT, Consumer

10th September 2020

IMPORTANT SOURCES OF ADMINISTRATIVE LAW IN INDIA

(1) Constitution of India

Difference between Admin law and Constitution law:

b) Administrative law is subordinate whereas Constitutional law is supreme.

(2) Primary Law

(4) Judicial Precedents

Lucknow Development Authority v Mk Gupta – AIR 1994 SC 787 – Personal accountability

11th September 2020

(2) Positive Actions/ Failure of the Organs of the State

 The Legislature – It is supposed to declare new rights and liabilities through

(3) Demand for Good Governance

MANDATE OF ADMINISTRATIVE LAW

 Administrative law is necessary to facilitate transparency and accountability in functioning of

 It is necessary to exercise control over administrative action. Administrative authorities are

 Two types of control can be exercised when it comes to administrative action:

1) Preventive Control – Principles of Natural Justice, Rule of Law, Controlled and

2) Curative Control – Judicial review, vicarious liability and personal accountability.