Notes On Administrative Law

Unit 1 Intorduction to Administartive Law

Topic 1.1 – Key concepts – Welfare state, Rule of Law, Doctrine of Separation
of power, Parliamentary sovereignty
Introduction
The objectives of Administrative Law are to ensure legal control of the administrative power
and to provide protection to the individual against abuse of such power. It is the basic
philosophy of Administrative Law that the Administration must have lawful authority to do
what it seeks to do. "The powerful engines of authority must be prevented from running
amok”.
Administrative Law seeks to adjust the relationship between public power and individual
rights. Administrative Law is the best designation for the system of legal principles which
settle the conflicting claims of executive and administrative authority on the one side and of
individual or private right on the other. It is the function of Administrative Law, in a
democratic society, to draw a fine balance between the conflicting claims of the individual
and the Administration.

Administrative law is the law relating to the control of governmental power. The primary
objective of administrative law is to limit the powers of the government to protect citizens
against their abuse. In other words, we can define administrative law as the body of rules,
regulations, orders, and decisions created by the administrative agencies of government.

Nature of Administrative Law

Administrative law deals with the powers of administrative authorities, the exercise of such
powers remedies for aggrieved persons by such law, etc. The administrative process is
considered necessary evil in all progressive and developing societies, particularly in a welfare
State. Such a process may affect the right of citizens of the country. It has been observed by
Lord Denning that �Proper exercise of the new powers of the executive lead to the welfare
state, but if abused they lead to the totalitarian State.�

Scope of Administrative Law

Administrative law deals with the following aspects:

1. Who are administrative authorities?

2. The powers exercised by such authorities.
3. Limitations of such powers exercised by such authorities.
4. Procedure for using administrative powers.

Welfare state
The Constitution is thus pervaded with the modern outlook regarding the objectives and
functions of the state. It embodies a distinct philosophy of government, and explicitly declares
that India will be organised as a social welfare state, i.e., a state which renders social services
to the people and promotes their general welfare. In the formulations and declarations of the
social objectives contained in the Preamble, one can clearly discern the impact of the modern
political philosophy which regards the state as an organ to secure the good and welfare of the
people. This concept of a welfare state is further strengthened by the Directive Principles of
State Policy which set out the economic, social and political goals of the Indian Constitution
system. These directives confer certain non-justiciable rights on the people, and place the
government under an obligation to achieve and maximise social welfare and basic social
values like education, employment, health, etc.
A welfare state is a concept of government where the state plays a key role in the protection
and promotion of the economic and social well-being of its citizens. It is based on the
principles of equality of opportunity, equitable distribution of wealth, and public
responsibility for those unable to avail themselves of the minimal provisions for a good life.
The general term may cover a variety of forms of economic and social organization.
There are two main interpretations of the idea of a welfare state:
• A model in which the state assumes primary responsibility for the welfare of its
citizens. This responsibility in theory ought to be comprehensive, because all aspects
of welfare are considered and universally applied to citizens as a "right".
• Welfare state can also mean the creation of a "social safety net" of minimum
standards of varying forms of welfare

In the strictest sense, a welfare state is a government that provides for the welfare, or the
well-being, of its citizens completely. Such a government is involved in citizens lives at every
level. It provides for physical, material, and social needs rather than the people providing for
their own. The purpose of the welfare state is to create economic equality or to assure
equitable standards of living for all.
The Directive Principles of State Policy is guidelines to the central and state governments of
India, to be kept in mind while framing laws and policies. They are enumerated in part iv of
the constitution of India. i.e. directive principles of state policy. They are the instruments of
instructions in the governance of the country. The directive principles lay down certain
economic & social policies to be pursued by the various governments in India. They are
classified as social & economic charter, social security charter& community welfare charter.
These provisions, contained in Part IV of the Constitution of India, are not enforceable by any
court, but the principles laid down therein are considered fundamental in the governance of
the country, making it the duty of the State to apply these principles in making laws to
establish a just society in the country.
It is by enacting “directive principles of state policy” in part IV of the constitution that we
endeavored to create a welfare state.

Rule of Law

The rule of Law is one of the basic and general principles of the constitution. It is characterized
in the words of Max Weber as – “legal domination as an idea of government of law rather
than an idea of men.’’

So, in essence rule of law means that everyone from the government to its officials, together
with citizens should act according to the law.

The doctrine of rule of law has been described as supremacy of the law. This means that
where there is rule of law no person can be said to be above the law, even the functions and
actions of the executive organ of the state shall be within the ambit of the law.

Rule of law imposes a duty on all citizens in a parliamentary democracy to obey the law and
for such obedience the law itself must be just law and not arbitrary or oppressive law.

The aim of rule of law like other constitutional principles is the uplifting of freedom and
fundamental rights of the people. The rule of law has propounded to make sure that the
executive doesn’t use law of the land or country to oppress or curtail freedom of individuals
as they are found in the bill of rights.

In the Indian context, the meaning of rule of law has somewhat been much expanded. The
Supreme Court has in various occasions further enunciated and illustrated the rule of law
through its judgement in furtherance of the basic principles as laid down by A.V. Dicey. It is
considered as a part of the basic structure of the Constitution and, hence, it cannot be
abrogated or destroyed even by the Parliament. The ideals of constitution; liberty, equality
and fraternity have been enshrined in the preamble. Rule of law mandates that no person
shall be subjected to harsh, uncivilised or discriminatory treatment even if the object is to
protect and secure law and order.

Rule of law has no fixed articulation in the Indian constitution though the Indian courts refer
to this phrase in variety of its judgements. The maxim ‘The King can do no wrong’ has no
application in India and all public authorities are made subject to jurisdiction of ordinary law
courts and to the same sets of laws. In Indian constitution is the law of the land and prevails
over Judiciary, the Legislature and the Executive. These three organs of the state have to act
according to the principles engraved in the constitution.

Under the Indian constitution the rule of law is incorporated in many of its provisions. For
example the object of achieving equality, liberty and justice are reflected in the Preamble to
the Indian constitution. Article 14 guarantees right to equality before law and equal
protection of law. It states that no one shall be denied the equality before law and the equal
protection of the law by the state. The direct connotation of these words provided under
Article 14 is that the law is supreme and there is no scope of arbitrariness as everybody is
governed by the rule of law. Law treats everybody equally without any biases, which is the
basic requirement of Rule of Law. In the case of Maneka Gandhi v. Union of India the Supreme
court in clear words observed that Article 14 strikes at arbitrariness in state actions and
ensures fairness and equality in treatment. Rule of law which is the basic feature of the Indian
Constitution excludes arbitrariness. Where there is arbitrariness there is denial of Rule of Law.
Art 15, 16, 23 further strengthened the ideal of equality by the incorporation of protective
discrimination as a means of ensuring equality amongst equals.

Article 13 of the Indian Constitution is another example which upheld the doctrine of Rule of
Law in India. The “laws’’ defined under Article 13 as rules, regulations, bye-laws and
ordinances can be struck down if they are contrary to the constitution of India. In
Keshavananda Bharti v. State of Kerala, the Supreme Court has included the Rule of Law as
the basic feature of the Constitution. In this case, though the Supreme Court upheld the
amending power of the Parliament which extends to every Article provided under the
Constitution but has limited that power by providing that such power cannot be used in
amending the basic feature of the Constitution.

Doctrine of Separation of power

The concept of separation of powers is the rudimentary element for the governance of
a democratic country. This principle corroborates fairness, impartiality and uprightness in the
workings of a government. Although it is not followed in its strict sense yet, most of the
democratic countries have adopted its diluted version under their respective constitutions.
The concept of separation of powers refers to a system of government in which the powers
are divided among multiple branches of the government, each branch controlling different
facet of government. In most of the democratic countries, it is accepted that the three
branches are the legislature, the executive and the judiciary. According to this theory, the
powers and the functions of these branches must be distinct and separated in a free
democracy. These organs work and perform their functions independently without the
interference of one into others in order to avoid any kind of conflict. It means that the
executive cannot exercise legislative and judicial powers, the legislature cannot exercise
executive and judicial powers and the judiciary cannot exercise legislative and executive
powers.
Objectives of Separation of Powers

The following are the fundamental objectives of the doctrine of separation of powers:-

1. Firstly, it aims to eliminate arbitrariness, totalitarianism and tyranny and promote an

accountable and democratic form of government.
2. Secondly, it prevents the misuse of powers within the different organs of the
government. The Indian Constitution provides certain limits and boundaries for each
domain of the government and they are supposed to perform their function within
such limits. In India, the Constitution is the ultimate sovereign and if anything goes
beyond the provisions of the constitution, it will automatically be considered as null,
void and unconstitutional.
3. Thirdly, it keeps a check on all the branches of the government by making them
accountable for themselves.
4. Fourthly, separation of powers maintains a balance among the three organs of
government by dividing the powers among them so that powers do not concentrate
on any one branch leading to arbitrariness.
5. Fifthly, this principle allows all the branches to specialize themselves in their
respective field with an intention to enhance and improve the efficiency of the
government.

Elements of Separation of Powers

Legislative

The legislative organ of the government is also known as the rule-making body. The primary
function of the legislature is to make laws for good governance of a state. It has the authority
of amending the existing rules and regulations as well. Generally, the parliament holds the
power of making rules and laws.

Executive
This branch of government is responsible for governing the state. The executives mainly
implement and enforce the laws made by the legislature. The President and the Bureaucrats
form the Executive branch of government.

Judiciary

Judiciary plays a very crucial role in any state. It interprets and applies the laws made by the
legislature and safeguards the rights of the individuals. It also resolves the disputes within the
state or internationally.

Indian Constitution and Separation of Power

Like the United Kingdom, India also practices the parliamentary form of government in which
executive and legislature are linked to each other. So, the doctrine of separation of powers is
not implemented in its strict sense. However, the composition of our constitution creates no
doubt that the Indian Constitution is bound by the separation of powers. There are various
provisions under the Indian Constitution that clearly demonstrate the existence of the
doctrine of separation of powers. This principle is followed both at the centre and the state
level.

Provisions that Substantiate Separation of Power

• Article 53(1) and Article 154 of the Indian Constitution clearly say that the Executive
powers of the Union and the States are vest in the President and Governor
respectively and shall only be exercised directly by him or through his subordinate
officers.
• Article 122 and Article 212 of the Indian Constitution state that the courts cannot
inquire in the proceedings of Parliament and the State Legislature. This ensures that
there will be no interference of the judiciary in the legislature.
• Article 105 and Article 194 of the Indian Constitution specify that the MPs and MLAs
cannot be called by the court for whatever they speak in the session.
• Article 50 of the Indian Constitution encourages the separation of judiciary from the
executive in the states.
• Article 245 of the Indian Constitution gives authority to Parliament and State
Legislature for making laws for the whole country and the states respectively.
• Article 121 and Article 211 of the Indian Constitution state that the judicial conduct of
any judge of the Supreme Court or High Court shall not be discussed in Parliament or
State Legislature.
• Article 361 of the Indian Constitution specifies that the President and the Governor
are not accountable to any court for exercising their powers and performance of
duties in his office.

Judicial Approach towards Separation of Power in India

The court has interpreted the applicability of the doctrine of separation of power in India in
many case laws.

• The very first judgment with relation to the separation of powers was given by
Mukherjee J. in the case of Ram Jawaya Kapur v. State of Punjab[3]. He concluded
that-
“ The Constitution of India has not acknowledged the doctrine of separation of power
emphatically but the functions and powers of all the organs have been adequately
distinguished. Thus it would not be wrong to say that Indian constitution does not behold
assumptions rather it works in a flexible manner considering the needs of the country. So, the
executive can exercise the law-making power only when delegated by the legislature and it is
also empowered to exercise judicial powers within the limits. But on an all, no organ should
exercise its power beyond the provision of the constitution.”

• In the case of Indira Nehru Gandhi v. Raj Narain[4], Ray C. J. said:-

“ A rigid sense of separation of powers which has been given under the American and
Australian constitution does not apply to India.”

Beg J. further added that:-

“ The separation of power is a part of the basic structure of the constitution. So, the schemes
of the constitution cannot be changed even after restoring Article 368 of the Indian
Constitution.”

• In Golak Nath v. State of Punjab[5], it was observed by Subba Rao C.J. that:-

“ The three organs of the government have to exercise their functions keeping in mind certain
encroachments assigned by the constitution. The constitution demarcates the jurisdiction of
the three organs minutely and expects them to be exercised within their respective powers
without overstepping their limits. All the organs must function within the spheres allotted to
them by the constitution. No authority which is created by the constitution is supreme. The
constitution of India is sovereign and all the authorities must function under the supreme law
of the land i.e. the Constitution.”

Separation of Powers: A Barrier to Administrative Law

Administrative law is a branch of public law that determines the organisation, powers and
duties of administrative authorities. The principle of separation of power creates a
demarcation among the three organs of the government. But in the present scenario,
administrative law is antithetical to this principle. With the emerging pattern of globalized
interdependence, the administrative agencies are not just exercising the administrative
functions but also practises quasi-legislative and quasi-judicial powers, thus, violating the
principle of separation of powers.

Contemporarily, it is a compulsive necessity to delegate the additional legislative and judicial

powers to the administrative agencies to establish efficient and adroit governance and to
ensure proper enforcement of the laws. The creation of administrative tribunals and
delegation legislation took place with the aim to reduce the load of the legislation and
judiciary and to expedite the lawmaking and justice giving process with expertise. This cannot
be achieved with strict implementation of the doctrine of separation of powers. Therefore,
the separation of powers acts as a limitation on administrative law.
The doctrine of separation of powers must be interpreted in a relative form. In the era of
liberalisation, privatisation and globalisation, separation of power has to be expounded in a
wider perspective. It should not be curb to the principle of restraint or strict classification only
but a group power exercised in the spirit of cooperation, coordination and in the interest of
the welfare of the state. Though this doctrine is unfeasible in its rigid perception nevertheless
its effectiveness lies in the prominence on those checks and balances which are necessary in
order to avert maladroit government and to prevent abuse of powers by the different organs
of the government.

Parliamentary sovereignty
Parliamentary sovereignty alludes to the notion that parliament is superior to the executive
and judicial arms of government and so has the power to adopt or repeal any law. Any past
legislation may be changed or repealed by the sovereign legislature, which is not bound by
any written law, such as the constitution.
Sovereignty of Parliament in India

In India, there is constitutional sovereignty rather than parliamentary sovereignty. The Indian
Constitution puts limitations on all organs of the state.

Limitations on the Sovereignty of Indian Parliament

The Indian Parliament, on the other hand, cannot be considered a sovereign body in the same
way since its authority and jurisdiction are limited by 'legal' constraints. The following
considerations restrict the Indian Parliament's sovereignty:

Written Nature of the Constitution

• India’s Constitution is the supreme law of the land, which outlines the power and
jurisdiction of the Union Government's three organs, namely the legislature, the
executive, and the judiciary, as well as the nature of their connection.
• As a result, the Parliament must act within the constraints set forth by the
Constitution.
• There is also a legal distinction between the Parliament's legislative authority and its
constituent authority. The ratification of half of the states is necessary to implement
certain constitutional revisions. In Britain, on the other hand, neither the Constitution
nor anything resembling a basic law of the nation exists.

Federal System of Government

• India is governed by a federal system with a constitutional separation of powers

between the Union and the states in which both must stay inside their domains of
influence.
• As a result, Parliament's legislative competence is limited to the topics included in the
Union List and Concurrent List and does not extend to the subjects listed in the State
List (unless in five exceptional cases and only for a limited time).
 • The United Kingdom, on the other hand, has a unitary government, which means that
all authorities are concentrated in the centre.

System of Judicial Review

• Indian Parliament's supremacy is also limited by the establishment of an independent

judiciary with the power of judicial review.
• If the legislation established by Parliament violates any provision of the Constitution,
the Supreme Court and High Courts can declare them invalid and ultra vires
(unconstitutional).
• In Britain, on the other hand, there is no judicial review procedure. The British Courts
are required to apply Parliamentary statutes to individual circumstances without
considering their constitutionality, legitimacy, or rationality.

Limitations on Amending Fundamental Rights

• The establishment of a code of justiciable fundamental rights under Part III of the
Constitution also limits the Indian Parliament's jurisdiction.
• Article 13 forbids the state from enacting legislation that either completely or partially
eliminates a fundamental right. As a result, any Parliamentary law that violates basic
rights is null and invalid.
• The Constitution of the United Kingdom, on the other hand, has no codification of
justiciable basic rights.
• The British Parliament has similarly failed to pass any legislation outlining people’s
fundamental rights. However, this does not negate the rights of British nationals.
Despite the lack of a charter protecting rights, Britain has the most liberty in the world
because of the Rule of Law.

Limited Amendment Power

• Parliament has the power to alter most parts of the constitution, but not the
"fundamental elements of the constitution". Furthermore, certain modifications
require a special majority and a resolution from the state legislature.

Presidential Vetoes

A measure cannot become law until the President signs it. The President can use different veto
powers, such as the pocket veto, to limit parliament's authority.

No discussion of judges conduct in the Parliament

• Articles 121 and 211 of the Indian Constitution state that no discussion of any judge
of the Supreme Court or of the High Court in the discharge of his duties may take place
in the Legislature of a state or in Parliament. As a result, the legislature has no
authority to debate the conduct of judges.

Example of Sovereign Parliament

British Parliament – An Example of Sovereign Parliament
The British Parliament is sovereign, meaning it has absolute power inside the state with no
legislative limitations on its authority and jurisdiction. The ‘doctrine of Sovereignty of
Parliament’ is associated with the British Parliament.

Any law can be made, amended, substituted, or repealed by Parliament: 'The British
Parliament can do everything except make a woman a male and a guy a woman,' remarked De
Lolme, a British political commentator.

• Constitutional legislation can be enacted using the same method as regular laws. In
other words, there is no legal separation between the British Parliament's constituent
jurisdiction and its legislative authority.
• The judiciary cannot declare Parliamentary laws illegal because they are
unconstitutional. In other words, there is no system of judicial review in Britain.

Conclusion

As a result, while our Parliament's terminology and organizational structure are similar to those
of the British Parliament, there is a significant difference between the two. The Indian
Parliament is not a sovereign institution in the same way that the British Parliament is. Unlike
the British Parliament, the Indian Parliament's authority and jurisdiction are defined, limited,
and constrained. The Indian Parliament is comparable to the American Congress in this sense
in which the written nature of the Constitution, the federal form of government, the judicial
review system, and the Bill of Rights all limit Congress's power in the United States.

Topic 1.2 – Definition ,Nature,Scope and Significance of Administrative

law,Reasons for growth of administrative law,Difference between
constitutional law and administrative law
Definition ,Nature, Scope and Significance of Administrative law
Definitions of Administrative Law

According to the Indian Institute of Law:

• Administrative law deals with the part and the functions of the administrative
authorities.
• The procedure to be followed by these authorities in the exercise of such powers.
• The remedies available to the aggrieved person when authorities abuse of the
powers

According to Ivor Jennings

“Administrative law is the law relating to the administration. It determines the organisation,
powers and duties of the administrative authorities.”

According to Wade

“Administrative law is the law relating to the control of the governmental powers.”
According to him the primary object of the administrative law is to limit the powers of
Government and to prevent citizens against their abuse.

According to KC Davis

“Administrative law is the law concerning the powers and procedure of the administrative
agencies, including especially the law governing the judicial review of the administrative
actions.”

What administrative law deals with?

Administrative law deals with the following problems:

• Who are the administrative authorities?

• What is the nature of the powers and nature exercised by the administrative
authorities?
• What are the limitations if any imposed on these powers?
• How the administration is kept restricted to its limits?
• What is the procedure followed by the administrative authorities?
• What remedies are available to person that are adversely affected by the
administration?

Nature and Scope of Administrative Law

The administrative law has a growing importance and the interest and it is most outstanding
phenomenon in the welfare state today. Knowledge of the administrative law is as important
for the officials as responsible for carrying on administration as for the students of law.

Not a codified Law: Administrative law is not codified like the IPC or law of the contracts. It is
based on the constitution.

Judge made law: It is essentially a judge made law and it is a branch of public law which deals
with the constitution and delegation of power.

Deals with the organisation: Administrative Law deals with organisation and powers of the
administrative and quasi-administrative authorities.

Concerned with the official actions: Administrative Law is primarily concerned with the
official action and the procedure by which official action is reached. Example: Rule Making,
Rule Application, Monitoring actions or pure administration.

Control Mechanism: It includes control mechanism (judicial review) by which the

administrative authorities are kept within bounds and made effective.

Authorities: Administrative law is derived from the authorities from the constitutional and
statutory law.

Rights: Administrative Law relates to the individual rights as well as public needs and ensures
transparency, open and honest governance which is more people friendly.
Means or the End: The study of the administrative law is not an end in itself, but it is a means.

Emergence and development: Administrative law emerges and develops wherever and
whenever any person becomes the victim of the arbitrary exercise of the public power.
Administrative law I not the branch of the philosophy of law, but of sociology of law.

Branches which govern: It is the body of law which governs the activities of the administrative
authorities of the government. Government agency action includes rule making, rule
adjudication, enforcement of specific regulations and the related agenda.

Dissimilarities of the Administrative and Constitutional Law

Constitutional Law Administrative Law

According to Holland, constitutional law Administrative Law describes various organs

describes various organs at rest. of the government in motion.

According to Ivor Jennings, Constitutional law

Administrative law deals with details.
deals with fundamentals.

Constitutional law is majoritarian. Administrative law is anti-authoritarian.

Constitutional law deals with general principles Administrative law deals with functions,
related to the organs and organisation and organisation, powers, and duties of the
powers of various organs. administrative authorities.

This deals with rights. It lays emphasis on the public needs.

It is the supreme law of land. It is subordinate to Constitutional law.

Reasons for the growth of Administrative Law

In India, since the Mauryan and Gupta age, there has been the administration of the
legislation, rule adjudication and the related provisions. There were many reasons which
accounts for the ridden growth of the administrative law. The following are the reasons for
the growth of administrative law:

Concept of Welfare State

We can see the evolution of welfare state concept. The concept was developed during the
10th and 20th century. According to this concept, the State administration is to achieve
maximum welfare of the masses.

Inadequate Judicial System

Judiciary was slow, costly, unexpected, complex and formalistic in nature. Overburdening of
judicial system due to which speedy disposal was not possible, and also resulted in strikes and
lockouts in disputes between employers and employees.
To solve above problems, need for tackling arose and as a result, industrial tribunals and
labour tribunals and labour courts were established. These tribunals are not courts but
executive authorities having judicial powers.

Inadequate Legislative

The legislature has no time to legislate upon the day-to-day ever-changing needs of the
society. Detailed procedure made by the legislature were found to be defective and
inadequate. All these resulted in the delegation of some of the legislative powers to the
administrative authorities.

Scope of Experimentation

As the administrative law is not codified law, so there is enough scope of modification. As per
the modification it as per the requirement of the state’s machinery. Hence, it is more flexible
and the rights legislating the procedure need not be followed again and again.

Increasing demand from people

There was an increase in the demand for the from the people because merely defining the
rights of the citizens was not sufficient but state needs to solve problems as well.

To take preventive measures

Administrative authorities can take preventive measures like licensing, rate fixing etc. They
can also take effective measures for the enforcement of preventive measures like
enforcement of suspension, revocation or cancellation of license, destruction of
contaminated articles.

Increasing population

Increase in the population creates a burden upon the legislative processes to implement
various laws for various needs of the growing population.

Case Laws

DS Nakara vs Union of India (1983)

Supreme Court held that in the case of a pension providing scheme to the government
servants retiring before a particular date, there was discriminatory policy based on a fixed
‘cut-off’ date. It was held that such a decision would be arbitrary, discriminatory and ultra-
vires.

Air India vs Nargesh Meerza (1981)

A regulatory provision which was framed by the Air India provided with the terms and
conditions which held that in case the Air-Hostess would be pregnant, she would be
terminated from the service. It was thereafter held that in such a case, there would be a
violation of the Article 14, 15 and 21 of the air-hostess. It was held that such a law would be
violative of the constitution and hence is arbitrary in nature.
Topic 1.3 – Evolution and development of Administrative Law – India,UK ,USA,
and France(Droit Administratif), Global administrative law
ORIGIN AND DEVELOPMENT OF ADMINISTRATIVE LAW IN ENGLAND, U.S.A
AND INDIA
IN ENGLAND

The earliest ‘King’s Court’ was called ‘Curia Legis’. Later the ‘Curia Legis’ was divided into
three bodies namely:

1. A The ‘Kings Bench’ division deals with crimes and breaches of the peace.
2. The ‘Court of Exchequer’ concerning the revenue disputes.
3. The ‘Court of Common Pleas’ concerning all disputes between one citizen and another
citizen.

• RULE OF LAW

There were controversies between the King and the Judges and one instance was between
the Chief Justice of common pleas namely Sir Edward Coke and Crown James I.

Sir Edward Coke refused to submit to the Royal prerogative. This controversy led to the abrupt
dismissal of Sir Edward Coke from the post of Chief Justice. However, it was Coke who took
steps to enact the petition of rights to control the worst tyranny of Kings. He formulated the
Rule of Law to which the Kings were obliged to obey. The Act of Settlement was also enacted
to assure the fixed tenure of judges’ posts.

The Habeas Corpus Act transferred most of the powers from the king to the parliament. The
Sovereignty of parliament was also sometimes, tyrannical and it was through the judiciary
that the Parliament’s tyrannical acts were controlled. In the 18 th century, prerogative writs
were recognized which gave remedy to private citizens against the arbitrary acts of the
executive authorities.[7]

• INDUSTRIAL REVOLUTION

In the 18th and 19th centuries, the Industrial Revolution in England resulted in the
establishment of many industries and factories. Many labor legislations were enacted. The
parliament set out the main principles in such legislations alone.

Thus, the dawn of Administrative Law began with the Industrial Revolution in England. In
course of time, many Administrative Tribunals began to be established and expedient rules
had to be framed based on policy. The inherent problems involved in Administrative Law and
its decisions were due to the deficiencies of the Rule of Law and the sovereignty of
parliament.[8]

• DONOUGHMORE COMMITTEE

The Donoughmore Committee was appointed in England to investigate the administrative

problems. The Commission made the following references:
 1. The principle of natural justice must be followed in all administrative proceedings.
2. There must be checks and safeguards against the arbitrary acts of the Administrative
proceedings.
3. Though delegated legislation is against the principle of separation of powers, it has
become an inevitable evil in the context of modern socio-economic developments.
The Delegated Legislation is deep-rooted and is ever-growing.
4. In delegated legislation, the statutes are passed in skeleton form leaving the details to
be filled up by the Administrative authorities. This is not desirable, as it would give
room for arbitrary rules to creep in.
5. Controls over subordinate legislation are inadequate. The parliament has no time and
opportunity to keep a constant watch on the executive. The judicial control is
unsatisfactory because of the vaguely defined words in the statutes. Further, the Court
proceedings are expensive and time-consuming.
6. Adequate publicity of statutes is not always possible and therefore the delegated
legislation will suffer from a lack of knowledge by the public.
7. The Donoughmore Committee calls ‘delegated legislation’ ‘legislation by reference’
due to the relatively simple legislative procedure.

The legislation in the English Parliament had incorporated the report of the Donoughmore
Committee. Many administrative agencies arose in England like the Board of Trade, Railways,
Traffic Tribunals, etc.

Similarly, certain Ministries like Education and Home affairs decided on many administrative
cases which were properly cognizable only by Courts. Many autonomous bodies like
Marketing Board and Tribunal, Bar Council, and General Medical Council came into existence
and acted quasi-judicially.

In 1895, the Government of England thought it fit that these Agencies must be checked or
controlled.[9]

• SIR OLIVER FRANKS COMMITTEE

Sir Oliver Franks Committee was appointed to investigate and report on the Minister’s
powers. The report made many recommendations which brought about many changes and
results in the functioning of administrative tribunals.

The following are some of the important recommendations:

1. The Administrative Tribunals are permanent parts of the Government machinery.

2. The proceedings of this Administrative Tribunal must be fair and impartial.
3. There must be a uniform system of appeals both to the higher Tribunal and the Court.
4. Legal representation must be allowed before Tribunals.
5. The Presiding Officers of the Tribunal must be legally qualified.
6. The decisions must be published.
7. Tribunals must be set aloof from the department.

The report had some defects also as it did not state the extent of judicial powers of Ministers
and Redressal machinery to the affected citizens against the misuse of powers by
administrative authorities.[10]
 • RULE IN RIDGE Vs. BALDWIN

Even in the present days, it is felt that in England, there is no developed system of
Administrative Law, as is held in Ridge Vs. Baldwin.

Mr. Wade declared that there is no Droit Administratiff in this country. However, the theory
is that the Ministers are not above the law and that there is Administrative Law in
England.[11]

ADMINISTRATIVE LAW IN U.S.A (AMERICA)

The American Administrative Law existed even in 1789, but only in 1887, did it come to be
recognized through statutes, like Interstate Commerce Act, etc.

• AMERICAN ADMINISTRATIVE LAW AND AMERICAN POLITICS

The American Administrative law had intimate links with American politics, constitutional and
public laws, and also the Economic and Social problems of the country.

• INTERSTATE COMMERCE COMMISSION

In the Transport system of America, there was an unregulated exercise of power. Many
private organizations were competing with one another. The Interstate Commerce Act 1887
established the Interstate Commerce Commission to prevent excessive changes in rules and
discriminatory practices by railways and roadways.

The Commission was an autonomous entity and termed as Administrative Regulatory

Commission. In course of time, this Commission was vested with the power to make rules to
entertain and decide cases. The American Courts interfered with the decisions of these
Commissions and often set aside their decisions on frivolous grounds.[12]

• HEPBURNRN ACT 1906

To avoid this conflict between the Commission and the Court, the Hepburn Act 1906 was
passed. The Act enlarged the powers of the Commission and it was authorized to hear all
social evils on the commercial side.

At present, there are at least 100 such Commissions in the U.S.A. the World war multiplied
the number of these Tribunals. These Agencies are now very powerful bodies and one judge
has quoted. “These bodies have become the veritable fourth branch of the Government”.

To check the arbitrary powers of these bodies, the Government appointed many Commissions
and among them the Roscoe Pound Commission, and the President’s committee in 1937
were important. The Humphrey Case and Weiner Vs. The United States has brought about
the irregularities committed by the Commissions.[13]

• ADMINISTRATIVE PROCEDURES ACT 1946

The Administrative Procedures Act 1946 had to be enacted to regulate the proceedings of
these Commissions.
The following are some of the important provisions:

1. The rules framed by the body must be published.

2. Sufficient opportunity must be given to both the parties of the suit.
3. There should not be any ‘off the record’ consultation with any person by the hearing
officer.
4. The independence of the Hearing Officer must be secured.
5. All reports of Tribunals must be published.
6. Judicial Review must be provided.[14]

ADMINISTRATIVE LAW IN INDIA

• BRITISH PERIOD

Well-organized administration existed only during the period of the East India Company and
only during the British Rule in India, many royal Charters, Acts, Statutes, and Legislations were
passed in different fields of life like transport, labor, and safety, morality, etc.

• CHARTER ACTS

The following are the several Charter Acts, which have relevance to administrative law and its
growth.

Charter Act 1726:

Under the Charter Act 1726, attempts were made to separate the executive from the
judiciary.[15]

Regulating Act 1773:

1. In 1773, the Regulating Act was passed with the object to bring the management of
the company under the control of the British Parliament and the British Crown. This
Act introduced many reforms in the company’s Government in India. Under this Act,
several legal provisions were made for the new Government’s administration under
the Governor-General and Council.
2. The Governor of Bengal was designated as the Governor-General of Bengal. The
Presidencies of Bombay and Madras were brought under the control and
superintendence of the Governor-General and Council.
3. the Governor-General and Council were empowered to make rules and regulations
and ordinances. The rules, regulations, and ordinances made by the Council were
required to be just, reasonable, and not repugnant to the Laws in England.
4. The Regulating Act, 1773 empowered the Governor-General and council to make
rules, regulations, etc., for the administration of the Government. Such rules etc. came
into force after being published and registered with the Supreme Court and with its
consent.[16]

CORNWALLIS CODE 1793

In 1793, the Cornwallis code containing a set of 48 regulations was published.

CHARTER ACT 1800

The Charter Act of 1800 empowered the Governor in Council of Madras to regulations for the
Mofussil Courts and Council in that Presidency.

CHARTER ACT 1807

In 1807, each Presidency Government was empowered to make regulations for the
presidency town and also for the Mofussil places under its administrative control.

CHARTER ACT 1813

Charter Act of 1813 extended the legislative powers of the government to all three
Presidencies. It authorized them to levy taxes also.

CHARTER ACT 1833:

Charter Act of 1833 empowered the Governor-General in Council to appoint a Law

Commission and as a result, the First Law Commission was appointed in India in 1835.[17]

IMPORTANT ADMINISTRATIVE STATUTES:

The following are the important statutes enacted during the second half of the 19 th century
and the first half of the 20th century.

1. Dramatic Public Performance Act, 1876

2. Opium Act, 1878
3. Explosives Act, 1884
4. Indian Petroleum Act, 1899
5. Cinematograph Act, 1918
6. Indian Boilers Act, 1923
7. Dangerous Drugs Act 1930
8. Indian Medical Council Act, 1933

In the field of Transport, the Indian Railways Act 1890, Motor Vehicles Act 1914, Indian
Merchants Shipping Act, 1923, and Motor Vehicles Act, 1939 were enacted.

In the field of Labour, Employers and Workmen Disputes Act 1923, Indian Trade Disputes
Act 1929, Factories Act 1934, and Payment of Wages Act, 1936 were enacted.

The important notable economic enactments are the Companies Act 1850, the Companies
Act 1913, the Cotton Transport Act 1923, the Tea Control Act 1934, the Reserve Bank of
India Act 1934, and the Rubber Act 1934.[18]

• AFTER INDEPENDENCE

After independence, India became a welfare state and the Indian Constitution became a
major source the for growth of administrative law.
According to Article 43-A of the Constitution, the State must take steps by suitable legislation
to secure the participation of workers in industrial management.

Article 45 provides that the state shall endeavor to provide, within 10 years from the
commencement of the constitution free and compulsory education for all children until they
complete the age of 14 years.

Article 47 provides that the state shall endeavor in raising the level of nutrition and the
standard of living of its people and the improvement of public health.

Article 48-A the state shall endeavor to protect and improve the environment and safeguard
the forests and wildlife of the country.

Article 300 provides for the liabilities of the Government for the torts committed by its
servants.

Article 311 protects the civil servants by prescribing the procedure to be followed in
dismissing terminating and reducing the rank of a public servant.[19]

• IMPORTANT ACTS PASSED AFTER INDEPENDENCE:

Several acts were passed after the independence in the administrative field.

Some of the important Acts are- the Industrial Disputes Act 1947, Minimum Wages Act 1948,
Employees Insurance Act 1948, Industries (Development and Regulation) Act 1951, Essential
Commodities Act 1955, Companies Act 1956, Banking Regulation Act 1949, Income Tax Act
1961, Payment of Bonus Act 1965.[20]

• ROLE OF SUPREME COURT AND HIGH COURTS IN THE GROWTHNOF

ADMINISTRATIVE LAW

The Supreme Court and the High Courts have been given wide jurisdiction to check the
administrative excesses and arbitrariness

The judgments of the Supreme Court and High Courts act as precedents to be necessarily
followed by Administrative Tribunals in deciding administrative matters.

Further, the judiciary takes into consideration the objects and ideals of the social welfare state
while interpreting the statutes and their Constitution.

Articles 32 and 226 of the constitution provides for judicial review in the form of writs against
ultra vires acts of the administrative authorities.[21]

France(Droit Administratif)
Droit Administratif: Historical evolution

Meaning
It is the French Administrative Legal System which means a body of rules, which determines
the organisation, powers and duties of the public administration and regulates the relation of
the administration with the citizens of the country.

Droit Administrative does not represent the rules and principles enacted by the Parliament.
Whereas, in case of India, we see that the system is the representation of the rules and
principles enacted by the Parliament or Legislature.

It contains the rules developed by the administrative courts which regulates the relationship
between public servants and citizens, public servants and government and public servant and
public servant.

Historical Background of Droit Admininstratiff

Napolean Bonaparte was the founder of the Droit Administratiff. It was he who established
the Counsel d’Etat (Council of State) and passed on the ordinance. It has the following effects:

• Deprived law courts of their jurisdiction and the administrative matters.

• Another ordinance that such matters could be determined only by Counsell d’Etat.

How the Droit Administratiff evolved?

During Louis XIV, the French Government was highly centralized and the executive authorities
were arbitrary. Civil courts could not control them. So, Droit Administratiff came into
existence before 20th century. Napolean Bonaparte overthrew the whole system and
established court system.

Two Types of courts

Civil and Criminal Courts (Azize & Court of desassation)

Administrative Courts (Counsell D’Etat Court of the perfect)

Rules and Principles of Droit Administration

Rules of Droit Administratiff

Rules relating to the administrative officials’ administrative officials and authorities. These are
related to the appointment and dismissal, status, salaries, duties etc. of the administrative
officials.

Rules dealing with the operation of public services to meet needs of the citizens

These services may be operated either wholly by public officials or under the supervision of
other agencies to provide the public utility services.
Rules dealing with the administrative adjudication

This deals with the concept that if there is any adjudication done to a private citizen by the
administrative authority, it could be decided by the administrative courts. Here, Court D’Estat
is the highest administrative authority.

Principles of Droit Administrative

Principle 1

The power of the administration to act suo motto (on its own) and to impose its decisions
directly on the subjects, to make them obey it as a duty.

Principle 2

The power of the administration to take decisions and execute them ‘suo motto’. It may be
exercised only within the ambit of law. It prevents the arbitrariness of the individual liberties
against any arbitrariness.

Principle 3

The existence of a specialised administrative jurisdiction.

Topic 1.4 – Administrative Action – Meaning, classification, Need to control of

Administrative Action
Meaning of Administrative Actions

Administrative actions are those actions which are carried out in the administrative law and
an administrative law deals with the powers and functions of the administrative authorities.
An administrative actions are those legal action which are related to the public administrative
body. These actions protect the public and maintain law and order in the society. It is an action
which is not a legislative and not a judicial action. While exercising administrative powers,
principles of natural justice must always follow but depending on the situation of each case.
These action forces an authority to do or not to do a thing.

Administrative action can be:

(1) quasi-legislative( rule making action ) because when the administrative body exercises the
power of law making which has been delegated to it, it is called as rule making action- quasi-
legislative action For example – Civil Servant Efficiency rules 1973, Conduct Rules etc.

(2) quasi-judicial (rule decision action) because when an act which is administrative in nature
has been performed by using the administrative decision making power but that work
involves the judicial characteristics For example – Disciplinary actions against the students or
Disciplinary proceedings against an employee for misconduct etc.
(3) Fully administrative action (rule application action) because this involves the application
of a rule which has been made by legislative to a case. For example – Transfer of a Civil
Servant, Appointment of inquiry officer.

Nature, Scope and Significance of Administrative actions

It is not compulsory that the executive authorities that are performing its function is fully
administrative, quasi-judicial, quasi-legislative in nature. A lots of activities fall within the area
of administrative actions. The action which is neither a legislative nor a judicial in nature is
the administrative action. Administrative action can be statutory which is having the force of
law or non statutory. If these actions are against the principles of natural justice or violating
the rights of the citizens then the courts can remove such actions.

Our judiciary is already being overburdened by lots of cases which are pending in the courts.
So it is not possible for the judiciary to solve the problems of administration side by side. So
that’s why quasi-judicial and quasi-legislative bodies are given power to reduce the existing
load on the judiciary. At the time of emergencies like war administrative action is the best
possible remedy because executive has the powers to deal with the the situation.

Administrative authorities have some powers which they use efficiently for the citizen’s good
and these powers are used efficeintly by way of various administrative actions. Administrative
actions should comply with the basic principles of fairness because if it goes against that then
such an action is amenable to judicial review. Administrative actions can be challenged in
court of law by any natural person or a body corporate and these actions are controlled by
the courts by issuing writs because the Supreme court has the power under article 32 of the
Constitution of India to issue writs.

Case Laws

Name of the case – Sat Pal Singh V. Union of India and Ors.

The petitioner was designated as Lance Naik in the Border Security Force, he was even
promoted to the rank of Head Constable later. The petitioner along with the other
participants in sports was allowed special leave. He proceeded to his home station in Bam
Loni, District Rohtak on 6.9.2005 and was to report back for his duty on 17.10.1995. The
petitioner fell sick between 30.09.1995 to 6.12.1995. On 7.12.1995, the petitioner, with an
intention to join his duties, took lift in a civil truck, but the said truck met with an accident
and the petitioner was shifted to the Government Hospital Amrit Kaur Byawar and was
admitted there. During this period he could not report to his Unit and was really shocked on
receiving an order of removal from service dated 14.3.1996 passed by the Commandant 44
Bn BSF.

Aggrieved from the said order of removal, the petitioner preferred an appeal praying for
reinstatement, however, the said appeal was also dismissed by order dated 29.12.1997
stating that there was no merit in the contentions raised in the appeal. Having failed to get
any relief at the hands of the respondents, the petitioner has questioned the correctness of
the above order before this Court in the present writ petition under Article 226 of the
Constitution of India. According to the petitioner, the respondents have not exercised the
powers vested in them in accordance with the procedure prescribed under BSF Rule 22 read
with Section 11(4) of the Border Security Force Act. The petitioner prays for quashing of the
said order and his reinstatement in the service.

Held: In the present case, the authorities have selected to take administrative action as
postulated under Rule 22 of the Rules and required the petitioner to be dismissed from
service. The administrative action in terms of Rule 22 is an exception to the regular trial by
the Security Force Court and proper application of mind and recording of the requisite
satisfaction would be a condition precedent to invoke such provisions. The casual manner in
which the respondents have dealt with the case of the petitioner can hardly fall within the
category of administrative action supported by proper reasons

and proper application of mind. In fact, it fails to satisfy the basic ingredients which form the
very foundation of such an administrative action. we grant freedom to the respondents to
start the Departmental proceedings, if they so desire, by serving a fresh show cause notice
upon the petitioner and after giving him opportunity, pass such appropriate orders as they
deem fit and proper and as is permissible in law within a period of three months from the
date of passing of this order. We allow the writ petition filed by the petitioner.

Unit 2 Administrative Rule making

Topic 2.1 – Administrative rule making/Delegated Legislation – Meaning, Need
for administrative rule making, Classification of Delegated Legislation,
Constitutionality of Delegated legislation
Introduction

According to M.P. Jain, “ the term is used in two different senses:

• to exercise the legislative power by subordinate agents, or

• the subsidiary rules themselves which are made by the subordinate authority in
pursuance of the powers conferred on it by the legislature”.

Delegated legislation is generally a type of law made by the executive authority as per the
powers conferred to them by the primary authority in order to execute, implement and
administer the requirements of the primary authority. It can be said that it is the law made
by any person or authority under the power of parliament. It is also known as subordinate
legislation in administrative law. It allows the bodies beneath the primary authority or
legislature to make laws according to the requirement. Through an act of Parliament,
Parliament has full authority to permit any person or authority to make legislation. An act of
parliament creates a framework of a particular law which tends to be an outline of the
purpose for which it is created. The important object of this is that any legislation by such
delegation should be according to the purposes as laid down in the act.

The main feature is that it allows the state government to amend the laws if there is any need
without delaying for the new act to be passed by the Parliament. If there is any requirement
then sanctions can also be altered by the delegated legislation as the technology changes. It
is believed that when such authority is delegated by the Parliament to any person or authority
it enables such person or the authority to provide more detail to the act of the Parliament.

For example, the local authority has power conferred by the superior one to make or amend
laws according to the requirement of their respective areas. The delegated legislation plays a
very important role as the number of them are more than the acts of the Parliament. It has
the same legal standing as the act of Parliament from which it is created.

There are three forms of delegated legislation i.e., statutory instrument, orders in council
and by-laws.

Statutory instruments

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

By-Laws

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

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

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

Cases

In the case of Narendra Kumar v. Union of India, it was held by the Supreme Court that the
provision under Section 3(5) of the Essential Commodities Act, 1955, which explains that any
rules framed under the Act must be presented before both the houses of the Parliament.
Therefore, clause 4 of Non – Ferrous Control Orders, 1958 has no effect until it is presented
in the Parliament.
There are a number of rules in the area of judicial control over the delegation of legislation
which is laid down by the judiciary.

In Chandra Bhan’s case, it was held that the delegation of legislation must be reasonable and
should not suffer from any unreasonableness.

Delegated legislation should protect the rule of law and there should be no arbitrariness.
Rules framed which violates the Parent Act are illegal. Rules framed which violates any other
statute should also be considered as void. Delegated legislation made with mala fide intention
is also considered illegal.

To have a better understanding please go through the attached PowerPoint Presentation. It

has a better version of explanation about the Control Mechanism of Delegated Legislation.

Factors responsible for the rapid growth of Delegated Legislation

• Pressure on Parliament – The number of activities in states is expanding which

requires law and it is not possible for the Parliament to devote sufficient time to every
matter. Therefore for this, the Parliament has made certain policies which allows the
executives to make laws accordingly.
• Technicality – Sometimes there are certain subject matters which requires
technicality for which there is a requirement of the experts who are professional in
such fields and members of Parliament are not experts for such matters. Therefore,
here such powers are given to experts to deal with such technical problems like gas,
atomic, energy, drugs, etc.
• Flexibility – It is not possible for the Parliament to look after each contingency while
passing an enactment and for this certain provisions are required to be added. But the
process of amendment is very slow as well as the cumbersome process. Thus, the
process of delegated legislation helps the executive authority to make laws according
to the situation. In the case of bank rate, policy regulation, etc., they help a lot in
forming the law.
• Emergency – At the time of emergency, it is not possible for the legislative to provide
an urgent solution to meet the situation. In such case delegated legislation is the only
remedy available. Therefore, in the times of war or other national emergencies, the
executives are vested with more powers to deal with the situation.
• The complexity of modern administration – With the increasing complexity in
modern administration and the functions of the state being expanded and rendered
to economic and social spheres too, there is a need to shift to new reforms and
providing more powers to different authorities on some specific and suitable
occasions.

Classification of Delegated Legislation

1. Power to bring Act into Action As it is already given that in a specified date this Act will
come into force prescribed by Central or State Government by giving a notice in the Official
Gazette.

In A.K. Roy vs. Union of India, case Supreme Court held that executive has the power to bring
the Act into force and it should not be excessive in delegated power of legislation. So, here
the court rejected the contention that the power was excessive in nature as per prescribed.
It was practically difficult for enforcement. Therefore, power is given to the executive
authority to decide the date of enforcing the act.

2. Conditional Legislation the rules are framed or designed by the legislature but to
implement or enforce it, is done by the executive organ, so executive has to look that what
all conditions need to be fulfilled to bring it in operation. If all conditions are satisfied then
it is well and good otherwise notice will be issued to bring the law into operation and it is
known as Conditional Legislation.

Condition legislation is of following types

• Power to bring the act into action.

• Power to extend the time period or life of the act.
• Power to extend the application of the act to any territory and to make restriction or
make an alteration in the act itself.
• Exempt the operation on certain ground or subjects of territories.

3. Power to fill in the blanks of the format – A rough format is prepared by the legislature
and pass on to the executive to fill up with all the necessary blanks or elements needed by
the subordinate legislation.

4. Power face in removing difficulties – Power to modify the statute maybe given to the
government by removal of difficulties clause.

Constitutionality of Delegated legislation

The position and Constitutionality of delegated legislation in India can be seen in various
cases. It is divided into two phases i.e., before independence or we can say it as pre-
independence and post-independence.

Pre Independence:

In Queen v. Burah, only Conditional Legislation has been validated by the Privy Council and
therefore delegated legislation is not permitted as per its reasoning. The administration of
civil and criminal justice of a territory can be vested in the hands of those officers who were
appointed by the Lieutenant-Governor from time to time.

The Privy Council has stated that it is better to take help from the subordinate agency in
framing the rules and regulations that are going to be the part of the law and giving another
body the essential legislative features that has only given to the Legislature through the
Constitution. He also stated about the essential legislative function that included in
determining the legislation policy.

In King v. Benori Lal Sharma, Condition legislative was again applied by the Privy Council, the
same as in the case of Queen v. Burah. In this case the validity of the Emergency Ordinance
given by Governor-General of India was challenged inter alia. It was challenged on the ground
that he is taking the power of the Provincial Government. He was setting up special criminal
courts for particular kind of offences but for the settling of any court, power has been given
only to the Provincial Government. The judicial committee held that this is not delegated
legislation. Privy Council also held that it is an example of an uncommon legislative power by
which the local application of the provision of State determined by the local administrative
body when it is necessary.

Post Independence:
The Delhi Laws Act, 1912, giving power to the Government to extend to Delhi and Ajmer-
Marwar with such restrictions and modifications as it thought fit any law in force in any other
part of India, was held intra vires- The case also discussed the validity of the law empowering
the Government to extend to part C States any law in force in a part A state and to repeal
existing laws-- It was held ultra vires under article 143 of the Constitution asking the Court's
opinion on the three questions submitted for its consideration and report. Section 2 of the
Part C States (Laws) Act, 1950, runs as follows:-"Power to extend enactments to certain Part
C States. - The Central Government may, by notification in the Official Gazette, extend to any
Part C State (other than Coorg and the Andaman and Nicobar Islands) or to any part of such
State, with such restrictions and modifications as it thinks fit, any enactment which is in force
in a part A State at the date of the notification and provision may be made in any enactment
so extended for the repeal or amendment of any corresponding law (other than a Central Act)
which is for the time being applicable to that Part C State.

The three sections referred to in the three questions are all in respect of what is described as
the delegation of legislative power and the three particular Acts are selected to raise the
question in respect of the three main stages in the constitutional development of India. The
first covers the legislative powers of the Indian Legislature during the period prior to the
Government of India Act, 1915. The second is in respect of its legislative power after the
Government of India Act, 1935, as amended by the Indian Independence Act of 1947. The last
is in respect of the power of the Indian Parliament under the present Constitution of 1950.
As regards constitution of the delegation of legislative powers the Indian Legislature cannot
be in the same position as the prominent British Parliament and how far delegation is
permissible has got to be ascertained in India as a matter of construction from the express
provisions of the Indian Constitution. It cannot be said that an unlimited right of delegation is
inherent in the legislature power itself. This is not warranted by the provisions of the
Constitution and the legitimacy of delegation depends entirely upon its being used as an
ancillary measure which the legislature considers to be necessary for the purpose of
exercising its legislative powers effectively and completely. The legislature must retain in its
own hands the essential legislative functions which consist in declaring the legislative policy
and laying down the standard which is to be enacted into a rule of law, and what can be
delegated in the task of subordinate legislation which by its very nature is ancillary to the
statute which delegates the power to make it. Provided the legislative policy is enunciated
with sufficient clearness or a standard laid down the courts cannot and should not interfere
with the discretion that undoubtedly rests with the legislature itself in determining the extent
of delegation necessary in a particular case. These, in my opinion, are the limits within which
delegated legislation is constitutional provided of course the legislature is competent to deal
with and legislate on the particular subject-matter. It is in the light of these principles that I
propose to examine the constitutional validity of the three legislative provisions in respect to
which the reference has been made.

In case of Raj Narain Singh v. Chairman Patna Administration committee Air 1954 SC 569in
which S.3(1)(f) wherein the Bihar & Orissa Act, empowered the local administration to extend
to Patna the provisions of any sections of the act ( Bengal Municipality Act, 1884) subject to
such modification, as it might think fit. The government picked up section 104 and after
modifications applied it to the town of Patna. One of the essential features of the Act was the
provision that no municipality competent to tax could be thrust upon a locality without giving
its inhabitants a chance of being heard and of being given as opportunity to object. The
sections which provided for an opportunity to object were excluded from the notification. It
was held as amounting to tamper with the policy of the Act.

In Lachmi Narain v. UOI (1976 2) SCC 95where the validity of Section 2 of Union Territories
(Laws) Act, 1950 and Section 6 of Bengal Finance (Sales Tax) Act, 1941 was to be determined.
The issue was that whether notification issued by Central Government in purported exercise
of its powers under Section 2 ultra vires of Central Government.

Topic 2.2 – Delegated legislation and Conditional legislation, Sub-Delegation,

delegation of taxing power, Retrospective operation of Delegated Legislation

Delegated legislation and Conditional legislation

Delegated legislation

Delegated legislation means a process where the legislature gives its law-making power to
the administrative authority, exercising such power, the admin authority makes laws or an
instrument of legislative nature such as rules, notifications, orders, etc. The administrative
authority works as a subordinate to the legislature; thus, it is also known as subordinate
legislation.

Delegated legislation can also be defined as an instrument of legislative nature made by an

authority in the exercise of the power conferred by the legislature. Salmond delegated
legislation as which proceeds from any authority other than the sovereign power and is,
therefore, dependent for its continued existence and validity on some superior or supreme
authority. For example- under the Environment Protection Act, 1986, the central government
is given the power to make rules for effecting this act. Exercising these powers the central
government made Environment Protection Rules,1986. This is known as delegated legislation.

Forms of Delegated Legislation

1. Title-based Legislation- This means classification based on names such as rules,

schemes, by-laws, orders, ordinances, etc.

Example- Under the Environment Protection Act, 1986, the central government can make
rules for effecting this act.
Example- In the covid pandemic, the government passed an order to include masks and
sanitizers as essential commodities under the Essential Commodities Act by the
administrative wing.

Example- Mid-day meal schemes, etc.

2. Discretion-based classification- When a certain act is passed by the legislation, the

legislature gives power to the executive to bring the particular act into
force/operation but by fulfilling certain conditions. These types of legislations are also
known as conditional legislation
3. Authority-based classification- A legislation in which a statute made by the
legislature can empower the executive to further delegate the powers conferred by it
to a subordinate.
4. Purpose/Nature-based classifications- classified based on the nature of the power
given to the executive or extent of the power.

Conditional legislation

Conditional legislation may be defined as a statute that provides controls but specifies that
they are to go in force only when certain conditions are fulfilled. In conditional legislation, the
legislature makes the law complete but that law is not brought in force immediately. It is left
on the executive to fulfillment of certain conditions to bring in operation.

For example- in the Environment Protect Act, section 1(3) states that the act shall come into
force when the central government by giving notification in the official gazette appoints a
date for its enforcement or for enforcing different provisions on different dates.

Conditional legislation is classified into 3 categories-

1. When the legislation is complete but leaves its future applicability to executive
authority.
2. Where the legislation is enforced but leaves the power to be withdrawn from the
operation of the act in the given area or situation to the executive.
3. Gives authority to the administrative wing to decide which group of people should
be/should not be given the benefit of the act.

Case laws

Field v. Clark[2]

In this case, the court held that the legislature cannot delegate its law-making power to the
executive. It can make a law and delegate a power to determine some facts or state of things
upon which the law intends to make. The court also observed that the functions which are
given to the executive cannot be stopped/denied as it would lead to the stoppage of the
system functions of the government.
The court believed that There are many things on which law depends which cannot be known
to the lawmakers and must therefore be subject to inquiry and determination from some
authority outside the legislature.

King-Emperor v. Benoari Lal Sharma[3]

In this case, an ordinance was made by the governor-general providing for the setting of
special courts in case of emergencies. But the operation of it was left to the provincial
government on being satisfied that the emergency had come into existence.

Difference between Delegated Legislation and Conditional Legislation

The difference between delegated and conditional legislation was given in the case of
Hamdard Dawakhana v. Union of India[4]. The court said that:

Delegated legislation involves the rule-making power to be exercised by the administrative

authority. Whereas, in conditional legislation, there is no rule-making power given to the
executive. It involves the power to determine when legislation can become effective.

In delegated legislation, the delegate completes the legislation by filling in the details to it
within the prescribed limits. On the contrary, in conditional legislation, the legislation is
complete. The delegate is given the power to apply the law to an area or to determine the
time and manner of carrying it into effect.

Sub-Delegation
MEANING: Sub-delegated legislation means when the rule making authority further
delegates its rule making power to issue rules to other authority then such exercise of rule-
making power is known as sub-delegated legislation. The maxim “Deleatus non potest
delegare”, it means “A delegator cannot further delegate”. A delegator cannot further
delegate its power to other authorities, rule-making authority unless this power of delegation
contained enabling act. This legislation should be express for necessary implications.

NATURE AND SCOPE: The nature and scope of sub-delegation is also wide like delegated
legislation. A rule-making authority can sub-delegate its rule-making power to other authority
when enabling or parent act expressly or impliedly authorize them to further delegates their
powers. The maxim, Delegatus non potest delegare narrow the scope of sub-delegation. If
the enabling or parent act does not expressly authorise to delegate power then legislative
power cannot be sub-delegated. In a leading case, Ganpati v. State of Ajmeri[iv], it was held
that an enabling or parent act authorised the Chief Commissioner to making rules for the
establishment of a proper system for sanitation and conservancy. The Chief Commissioner
authorised District Magistrate to made rules to invent a new way of doing something his own
system. The Supreme Court held that the rules were made by District Magistrate was invalid
because it was sub-delegation without an express authority. It can be valid if the parent act
authorised to sub-delegation. Sub-delegation includes the principle or doctrine of Excessive
Legislation, it means the legislature or rule making authority excessively delegates its power
or legislative function to other authority, such delegation will be held unconstitutional. This
principle fulfils two objectives that it ensures democratic accountability in the laws and it gives
minimum delegation to the court with discretion to judge if the delegation is ultra vires to the
enable act.

Objects of Sub-Delegation

The need of sub-delegation is sought to be supported on the basis of the following factors-

• Power of delegation necessarily carries with it the power of further delegation and
hence, the delegate has power to further delegate; and
• Sub-delegation is ancillary to delegated legislation, and objection to such process is
likely to subvert the authority which the legislature delegates to the Executive.

Delegatus Non-Potest Delegare

The legal maxim ‘Delegatus Non-Potest Delegare’ does not lay down a rule of law. It merely
states a rule of construction of a statute. Generally, sub-delegation of legislative power is
impermissible, yet it can be permitted either when such power is expressly conferred under
the statute or can be inferred by necessary implication. This is so because there is a well-
established principle that a sub-delegate cannot act beyond the scope of power delegated to
him.

Illustration

A good illustration of the process of sub-delegation is provided by the Essential Commodities

Act, 1955. Section 3 of the Act confers rule-making power on the Central Government. This
can be called as the first stage of Delegation. Under Section 5, the Central Government is
empowered to delegate powers to its officers, the State Governments and their officers.
Frequently under this provision, the powers are delegated to State Governments.

This may be regarded as the second stage of Delegation. When the power is further sub-
delegated by the State Government to their officers, it may be characterised as the third stage
of Delegation. The working of the process can be seen in the context of the Cotton Control
Order, 1955, The order is made by the Central Government under Section 3 of the Act (this
can be called the first stage of delegation).

Under the Order, the functions and powers are conferred on the Textile Commissioner (this
can be called the second stage of delegation). Under clause 10, the Textile Commissioner is
empowered to authorise any officer to exercise on his behalf all or any of his functions and
powers under the Order (third stage of Delegation).
 TYPES OR FORMS OF SUB-DELEGATED LEGISLATION: There are three types of sub-delegation.
These are the broader classification of the sub-delegated legislation under Indian Legal
System.

1. FULL OR PARTIAL – A delegation is full when all the powers are conferred to the agent or
other authority. For e.g. all power to alter or amend or repeal any law by the competent
authority. A delegation is partial when he requires getting some guidelines or guidance on
crucial point from the delegated authority. For e.g. Section 5 of the Essential Commodities
Act, 1955.

2. CONDITIONAL AND UNCONDITIONAL – Delegation is condition when the action of a

delegated authority is subject to revise and confirm by the superior authority or it includes
some conditions. Unconditional delegation means the delegated authority has similar power
to superior authority. Under Section 3 of the Essential Commodities Act, 1955, the sugar
control was made by the Central government (superior authority) then under the order
certain function and power passed or conferred to Textile Commissioner (delegated
authority) and under clause 10 the power of textile commissioner can authorize to any officer
to act behalf on him (sub-delegated authority).

3. SKELETON LEGISLATION – The skeleton legislation means that superior authority makes a
skeleton of statute without laying down any policy and principles and delegated authority
provides blood in this skeleton by laying down policy or principle with the help of guidance
and they cannot cross the limits outside the guidance.

Delegation of taxing power, Retrospective operation of Delegated Legislation

Topic 2.3 – Control of Delegated legislation in India – Parliamentary control,

Procedural control, Judicial control and Doctrine of Ultra vires, Effect of an
Ultra vires administrative legislation
Control of Delegated legislation in India – Parliamentary control, Procedural
control, Judicial control

There are three kinds of Control given under Delegated Legislation:

 1. Parliamentary or Legislative Control
2. Judicial Control
3. Executive or Administrative Control

Modes of control over delegated legislation:

The practice of conferring legislative powers upon administrative authorities though

beneficial and necessary is also dangerous because of the possibility of abuse of powers and
other attendant evils. There is consensus of opinion that proper precautions must be taken
for ensuring proper exercise of such powers. Wider discretion is most likely to result in
arbitrariness. The exercise of delegated legislative powers must be properly circumscribed
and vigilantly scrutinized by the Court and Legislature is not by itself enough to ensure the
advantage of the practice or to avoid the danger of its misuse. For the reason, there are
certain other methods of control emerging in this field.

The control of delegated legislation may be one or more of the following types: -

• Procedural;

• Parliamentary; and

• Judicial

Judicial control can be divided into the following two classes: -

i) Doctrine of ultra vires and

ii) Use of prerogative writs.

1. Control of Delegate legislation by means of Procedure

The following requirements are made necessary for the exercise of the delegated authority
under different statutes so that procedural safeguards are ensured.

• The Doctrine of ultra vires— The chief instrument in the hands of the judiciary to
control delegated legislation is the “Doctrine of ultra vires.” The doctrine of ultra vires may
apply with regard to

• procedural provision; and

• substantive provisions.

The procedural control mechanism operates in following three components:-

o (i) Prior consultation of interests likely to e affected by delegated legislation.

o (ii) Prior publicity of proposed rules and regulations

o (iii) Post-natal publicity of delegated legislation

 2. Parliamentary Control over Delegated Legislation

• (i) By laying the rules on the table of Parliament; and

• (ii) By a Committee of Parliament acrutinishing the rules so laid.

In U.S.A. the control of Congress over delegated is very limited because neither the technique
of lying’ is extensively used nor there is any Congressional Committee to scrutiny it. In
England, due to concept of supremacy of Parliament, the control exercised by the Parliament
over and administrative rule making is very broad and effective. This Parliamentary control
operates though ‘laying’ techniques. Under the provisions of statutory Instruments Act, 1946,
all administrative rule making is subject to the control of the Parliament through the Select
Committee on statutory Instruments.

In India, the Parliamentary control of delegated legislation follows the same patterns as in
England. Like Standing Committee in House of Commons in Britain he further said that such
committee would examine delegated legislation and would bring to the notice of Parliament
whether delegated legislation has exceeded the original intention of Parliament or has
departed from it or has affected any fundamental principle.

1. (i) By laying rule on the table of Parliament

i. (a) Laying with no further direction

ii. (b) Laying subject to annulment

iii. (c) Laying, Subject to affirmative resolution

iv. (d) Laying with deferred operation

v. (e) Laying with immediate effect but requiring affirmative resolution as a condition for
continuance

2. By a committee of Parliament scrutinizing the rules so made

The main function of these committees is to examine the merits of the executive legislation
against which petitions are presented. Main functions of Committees - According to Rule 223,
the main functions of the Committee shall be to examine:

• Whether the rules are in accordance with the general objects of the Act;

• Whether the rules contain any matter which could more properly be dealt the Act;

• Whether it contains imposition of tax;

• Whether is directly or bars the jurisdiction of the Court;

• Whether it is retrospective;

• Whether it involves expenditure from the Consolidated Fund;

• Whether there has been unjustified delay in its publication or laying;

• Whether, for any reason, it requires further elucidation.

Parliament, being supreme, can certainly make a law abrogating or repealing by implication
provisions of any preexisting law and no exception can be taken on the ground of excessive
delegation to the Act of the Parliament itself.

Limits of permissible delegation

• When a legislature is given plenary power to legislate on a particular subject, there

must also be an implied power to make laws incidental to the exercise of such
power. It is a fundamental principle of constitutional law that everything necessary
to the exercise of a power is included in the grant of the power. A legislature cannot
certainly strip itself of its essential functions and vest the same on an extraneous
authority.

The primary duty of law making has to be discharged by the legislature itself but delegation
may be reported to as a subsidiary or ancillary measure. (Edward Mills Co. Ltd. v. State of
Ajmer, (1955) 1. S.C.R. 735) Mahajan CJ. in Hari Shankar Bagla v. State of Madya Pradesh,
A.I.R. 1954 S.C. 555 : (1955) I.S.C.R. 380 at p. 388 observed : “The Legislature cannot delegate
its functions of laying down legislative policy in respect of a measure and its formulation as a
rule of conduct. The legislature must declare the policy of the law and the legal principles
which are to control and given cases and must provide a standard to guide the officials of the
body in power to execute the law”.

Therefore the extent to which delegation is permissible is well settled. The legislature cannot
delegate its essential legislative policy and principle and must afford guidance for carrying out
the said policy before it delegates its delegates its subsidiary powers in that behalf. (Vasant
lai Maganbhai Sanjanwala v. State of Bombay, A.I.R. 1961 S.C. 4)

The guidance may be sufficient if the nature of things to be done and the purpose for which
it is to be done are clearly indicated. The case of Hari Shankar Bagla v. State of Madhya
Pradesh, A.I.R. 1954 S.C. 465:(1955) 1 S.C.R. 380 is an instance of such legislation.

The policy and purpose may be pointed out in the section conferring the powers and may
even be indicated in the preamble or else where in the Act.

Excessive delegation as a ground for invalidity of statute

In dealing with the challenge the vires of any State on the ground of Excessive delegation it is
necessary to enquire whether - The impugned delegation involves the delegation of an
essential legislative functions or power, and In Vasant lais case (A.I.R. 1961 S.C. 4). Subba Rao,
J. observed as follows; "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. Obviously it cannot abdicate its
functions in favour of another. But, in view of the multifarious activities of a welfare State, it
(the legislature) cannot presumably work out all the details to sit the varying aspects of
complex situations. It must necessarily delegate the working out of details to the executive or
any other agency. But there is a danger inherent in such a process of delegation. An
overburdened legislature or one controlled by a powerful executive may unduly overstep the
limits of delegation. It may

1. not lay down any policy at all;

2. declare its policy in vague and general terms;

3. not set down any standard for the guidance of the executive;

4. confer and arbitrary power to the executive on change or modified the policy laid
down by it with out reserving for itself any control over subordinate legislation.

5. The self-effacement of legislative power in favour of another agency either in whole

or in part is

6. beyond the permissible limits of delegation.

7. It is for a Court to hold on a fair, generous and liberal construction of on impugned

statute whether the

8. legislature exceeded such limits.

3. Judicial control over delegated legislature

Judicial control over delegated legislature can be exercised at the following two levels :-

• Delegation may be challenged as unconstitutional; or

• That the Statutory power has been improperly exercised.

The delegation can be challenged in the courts of law as being unconstitutional, excessive or
arbitrary.

The scope of permissible delegation is fairly wide. Within the wide limits. Delegation is
sustained it does not otherwise, infringe the provisions of the Constitution. The limitations
imposed by the application of the rule of ultra vires are quite clear. If the Act of the Legislature
under which power is delegated, is ultra vires, the power of the legislature in the delegation
can never be good. No delegated legislation can be inconsistent with the provisions of the
Fundamental Rights. If the Act violates any Fundamental Rights the rules, regulations and bye-
laws framed there under cannot be better.

Where the Act is good, still the rules and regulations may contravene any Fundamental Right
and have to be struck down. The validity of the rules may be assailed as the stage in two
ways:-

• That they run counter to the provisions of the Act; and

• That they have been made in excess of the authority delegated by the Legislature.
The method under these sub-heads for the application of the rule of ultra vires is described
as the method of substantive ultra vires. Here the substance of rules and regulations is gone
into and not the procedural requirements of the rule making that may be prescribed in the
statute. The latter is looked into under the procedural ultra vires rule.

Power of Parliament to repeal law Under the provision to clause (2) of Article 254, Parliament
can enact at any time any law with respect to the same matter including a law adding to,
amending, varying or repealing the law so made by the Legislature of the State.

Ordinarily, the Parliament would not have the power to repeal a law passed by the State
Legislature even though it is a law with respect to one of the matters enumerated in the
Concurrent List. Section 107 of the Government of India Act, 1935 did not contain any such
power. Art. 254 (2) of the Constitution of India is in substance a reproduction of section 107
of the 1935 Act, the concluding portion whereof being incorporated in a proviso with further
additions.

Now, by the proviso to Art. 254 (2), the Indian Constitution has enlarged the powers of
Parliament and, under that proviso, Parliament can do what the Central Legislature could not
do under section 107 of the Government of India Act, and can enact a law adding to,
amending, varying or repealing a law of the State when it relates to a matter mentioned in
the concurrent List. Therefore the Parliament can, acting under the proviso to Art. 254 (2)
repeal a State Law.

While the proviso does confer on Parliament a power to repeal a law passed by the State
Legislature, this power is subject to certain limitations. It is limited to enacting a law with
respect to the same matter adding to, amending, varying or repealing a law so made by the
State Legislature. The law referred to here is the law mentioned in the body of Art. 254 (2), It
is a law made by the State Legislature with reference to a matter in the Concurrent List
containing provisions repugnant to an earlier law made by Parliament and with the consent
to an earlier law made by Parliament and with the consent of the President. It is only such a
law that can be altered, amended, repealed under the proviso.

The power of repeal conferred by the proviso can be exercised by Parliament alone and
cannot be delegated to an executive authority. The repeal of a statute means that the
repealed statute must be regarded as if it had never been on the statute book. It is wiped out
from the statute book.

In the case of Delhi Laws Act, 1951 S.C.R. 747, it was held that to repeal or abrogate an existing
law is the exercise of an essential legislative power.

Parliament, being supreme, can certainly make a law abrogating or repealing by implication
provisions of any preexisting law and no exception can be taken on the ground of excessive
delegation to the Act of the Parliament itself.

Doctrine of Ultra vires, Effect of an Ultra vires administrative legislation

The delegation of legislative power is permissible only when the legislative policy is
adequately laid down and the delegate is empowered to carry out the policy within the
guidelines laid down by the legislature. This technique of delegated legislation is so
extensively resorted to in modern administrative process that there is no statute to enact by
the legislature today which does not delegate some powers of legislation to the Executive.
Thus, the validity of delegated legislation may be adjudged by the courts on the ground
whether it is ultra vires or intra vires to the parent Act. the scope of the doctrine of ultra vires
in the delegated legislation and under what circumstances the power conferred by the
legislature to the sub ordinate authority is excessive or ultra vires to the parent Act provision.
The provision of doctrine of ultra vires as applied to the administrative actions and the power
of judiciary to review such delegated legislation that works beyond the provision of parent
statute or the rules challenging the validity of the Act. The judicial control over the delegated
legislation through the doctrine of ultra vires and whether Indian judiciary had applied such
doctrine to control the excessive delegation of authority by the legislation. The concept of
ultra vires is been vibrated and interpreted under various legislation and statues, carrying out
rule of interpretation followed by jurist in various cases.

The doctrine of ultra vires is the basic doctrine in administrative law. The doctrine envisages
that an authority can exercise only so much power as is conferred on it by law. An action of
the authority is intra vires when it falls within the limits of the power conferred on it but ultra
vires if it goes outside this limit. The doctrine of ultra vires has two aspects: substantive and
procedural.

When a piece of delegated legislation is declared to be ultra vires, it is void and becomes
unenforceable. It cannot affect the rights and duties of any person. Until a rule is declared
invalid by a court, it is presumed to be valid. If the valid and the invalid parts of a rule can be
severed, only then the invalid portion of the rule is quashed and the valid portion can continue
to remain operative. However, if the valid and the invalid parts are inextricably mixed up, then
the entire rule has to go. A void rule cannot be the basis of any administrative action. No one
can be prosecuted under a void rule. The validity of a rule can be challenged in a court either
directly or collaterally, or by way of defense to a civil claim based on the impugned rule, or as
a defense in a prosecution for infringing the rule. A person can challenge the validity of
administrative action by challenging the validity of the relevant rule. A person whose interest
is affected adversely by a piece of delegated legislation can directly challenge its vires in a
court. The court may grant an injunction or declaration or issue mandamus or award damages
to the affected person as may be suitable.

If the subordinate or delegated legislation goes beyond the scope of authority conferred on
the delegate or it is in conflict with the parent or enabling act, it is called substantive ultra
vires. The validity of the subordinate or delegated legislation may be challenged before the
Courts on this ground.

Grounds on which Delegated legislation may be challenged

• Enabling or Parent Act is unconstitutional:

In India, there is supremacy of the Constitution and therefore an act passed by the Legislature
is required to be in conformity with the constitutional requirement and if it is found to be in
violation of the constitutional provisions, the court declares it unconstitutional and void. If
enabling or parent act (i.e the act providing for the delegation) is void and subordinate or
delegated legislation made under the act will also be declared to be unconstitutional and
therefore void. The limits of the Constitution may be express and implied.
Express Limit: Articles 13, 245 and 246 provide the express limits of the constitution. Article
13(1) provides that all laws in force in the territory of India immediately before the
commencement of the constitution in so far as they are inconsistent with the provisions of
Part III (fundamental rights) shall, to the extent of the contravention, be void. According to
article 13(2), the state shall not make any law which takes away or abridges the rights
conferred by part III (i.e the Fundamental Rights) and any law made in contravention of this
clause shall, to the extent of the contravention, be void. Article 13(3) makes it clear that for
this purpose, unless the context otherwise requires , law includes any ordinance, order, by –
law, rule, regulation, notification, custom or usage having in the territory of India, the force
of law. The legislature, thus, cannot violate the provisions of part III of the constitution
granting the fundamental rights. If the parent or enabling Act is violative of the Fundamental
Rights granted by part III of the constitution, it will be declared by the court as
unconstitutional and void, and the subordinate or delegated legislation made under the act
will also be held to be unconstitutional and void.

Article 245 makes it clear that the legislative powers of the parliament and that of the state
legislatures are subject to the provisions of the constitution. Parliament may make laws for
the whole or any part of the territory of India and the legislatures of a state make laws for the
whole or any part of the state. No law made by the parliament shall be deemed to be invalid
on the ground that it would have extra territorial operation. The state legislature can make
law only for the State concerned and, therefore, the law made by the state legislature having
operation outside the state would be invalid. In the matter of Cauvery Water Disputes
Tribunal, the Karnataka Cauvery Basin Irrigation Protection Ordinance, 1991 was declared
unconstitutional on certain grounds including the ground that it had extra territorial
operation inasmuch as it interfered with the equitable rights of Tamil Nadu and Pondicherry
to the waters of Cauvery River.

In short, no law made by Parliament shall be deemed to be invalid on the ground that it would
have extra territorial operation. However, the law made by the state legislature may be
challenged on the ground of extra territorial operation. If the parent act is declared to be
unconstitutional, then the delegated legislation made under such act would also be declared
to be unconstitutional and thus, void.

Article 246 makes provisions in respect of the distribution of powers between the powers
between the Parliament and the State legislatures. From article 246 and the seventh
schedule, it becomes clear that the subjects have been divided into three categories – Union
list, State list and Concurrent list. Parliament has exclusive power to make laws with respect
to any of the matters or subjects enumerated in the Union list and of the legislature of any
state has power to make laws for such state or any part thereof with respect to any of the
matters or subjects enumerated in the State list. Parliament and State Legislatures both have
power to make laws with respect to any of the matters or subjects enumerated in the
Concurrent List, but In the case of conflict between the law made by Parliament and a law
made by the State Legislature with respect to such matter or subject, the law made by
Parliament shall prevail and the laws made by the State Legislature, to the extent of
repugnancy. be void, unless the law made by the State Legislature has received the assent of
the President.

Implied limit: If the Enabling or Parent Act violates the implied limit of the Constitution, it will
be ultra vires the Constitution and therefore It will be void and the delegated legislation made
under the Act will also be unconstitutional and void. The implied limit of the Constitution Is
that essential legislative function entrusted to the legislature by the Constitution cannot be
delegated by it. The essential legislative function consists of the determination of the
legislative policy and its formulation as a rule of conduct. The legislature delegating its
legislative power must lay down the legislative policy and guidelines regarding the exercise of
tin delegated power by delegate. The delegation of essential legislative function is taken as
abdication of essential legislative function by the Legislature and this is not permitted by the
Constitution.

In a case the Supreme Court has made it clear that the essential legislative function which
consists of the determination of the legislature policy cannot be delegated. Such delegation
would amount to abdication of the essential legislative functions.

The Supreme Court has made it clear that the excessive delegation is not permissible. The
doctrine of excessive delegation has played an important role in controlling the practice of
delegated legislation. Excessive delegation is taken as abdication of essential legislative
function by the legislature. The delegation must not be unguided and uncontrolled. If the
delegation is excessive, the Enabling Act or Parent Act will be unconstitutional and therefore
void and the delegated legislation made under such Enabling or Parent Act will also be
unconstitutional and void.

• Subordinate or delegated legislation is ultra vires the Constitution:

Sometimes it is found that the Enabling or Parent Act is not violative of the Constitution, but
the subordinate or delegated legislation made under It violates the provisions of the
Constitution. Such subordinate or delegated legislation will be unconstitutional and void,
though the Enabling or Parent Act is perfectly valid. Thus, the subordinate or delegated
legislation, (e.g., rules, regulations, by- laws, etc.) made under the Enabling or Parent Act may
be unconstitutional while the Enabling or Parent Act is constitutional.

Article 31-B of the Constitution of India is also notable here. The Acts and Regulations
Included in the IXth Schedule of the Constitution are protected under Article 31-B against the
ground of Infringement of any of the Fundamental Rights, but not against other grounds. The
protection of Article 31-B is available only to the Acts or Regulations placed In the IXth
Schedule of the Constitution. If an Act Is placed under the IXth Schedule, the protection of
Article 31-B will be available to such Act, but this protection will not be available to the
delegated legislation made under It. Thus, the delegated legislation may be challenged on the
ground that it violates the Constitution, even though the Enabling or Parent Act under, which
it has been made is protected by Article 31-B. (Legislature in 9th schedule is not under judicial
scrutiny) (zamindari abolishment Act)

• Delegated legislation is ultra vires the Enabling or Parent Act:

The validity of the subordinate or delegated legislation can be challenged on the ground that
it is ultra vires the Enabling or Parent Act. If the subordinate or delegated legislation made by
the delegate is in excess of the power conferred by the Enabling or Parent Act or is in conflict
with the provisions of the Enabling or Parent Act or is made w ithout following the procedure
required by the Enabling or Parent Act to be followed by the delegate, the delegated or
subordinate legislation will be invalid on the ground that it Is ultra vires the Enabling or Parent
Act. The validity of the exercise of power is tested on the basis of the Prussians as it stands
currently and not on the basis of that it was before.

• When it is made in excess of the power conferred by the Enabling or Parent Act:

The subordinate or delegated legislation is held to be ultra vires the Enabling or Parent Act
when it is found to be in excess of the power conferred by the Enabling or Parent Act If the
delegated legislation is beyond the power conferred on the delegated by the Enabling Act, it
would be Invalid even if it has been laid before the Legislature. Where an administrative
authority Is empowered by the Enabling Act to make by-laws to regulate market and the
authority makes by-law which prohibits running of cattle market the by-law will be ultra vires
the Enabling Act.

In S.T.O. v. Abraham the Act empowered the Government to carry out the purposes of the
Act the Government made rule so as to fix the last date for filing the declaration forms by
dealers for getting the benefit of concessional rates on inter-State sales. This rule was held to
be ultra vires the Enabling Act on the ground that the Act empowered the Government for
making rules for prescribing the particulars to be mentioned in the forms and it was not given
power to prescribe a time-limit for filling the form.

• When delegated legislation is in conflict with the Enabling or Parent Act:

When the delegated legislation is found to be directly or indirectly in conflict with the
provisions of the Enabling Act or Parent Act, it is held to be ultra vires the Enabling or Parent
Act. In Delhi Transport Undertaking v. B.R.I. Hajelay, a rule was declared Invalid on the ground
that it was in conflict with the provisions of the Enabling or Parent Act, According to Section
92 of the Delhi Corporation Act. 1957, all persons drawing salary less than 350 rupees per
month shall be appointed only by general Manager of the Delhi Transport Undertaking.
According to Section 95 of the Act, no person can be dismissed by any authority subordinate
to the authority who has appointed him. The rules made under the Act empowered the
General Manager to delegate all his powers to the Assistant General Manager. The rule was
held to be In conflict with the aforesaid provision of the Parent Act. The effect of the rule was
that a person appointed by the General Manager could be dismissed by the Assistant General
Manager. i.e. a person could be dismissed by an authority subordinate to the authority who
had appointed him while Section 95 of the Act provided that no person can be dismissed by
an authority subordinate to the appointing authority. Thus, the rule was in conflict with
Section 95 of the Act. Consequently the rule was held to be invalid.

• When delegated legislation is made by authority exercising its power mala fide:

When the subordinate or delegated legislation is made by the administrative authority

exercising its power mala fide or with ulterior motive, It is held to be ultra vires and, therefore,
invalid.

• When the delegated legislation is unreasonable and arbitrary:

When the de1egated legislation is found unreasonable and arbitrary, it is declared invalid. In
India, in some cases to High Courts express the view that the delegated legislation cannot be
challenged on the grounds of unreasonableness. However, the view of the Courts is that the
delegated legislation may be challenged on the ground of unreasonableness and
arbitrariness. In India doctrine of unreasonableness has been given the solid base of Article
14. The delegated legislation which is unreasonable and arbitrary can be challenged on the
ground that it is violative of Article 14.

In Air India v. Nargesh Meerza, a regulation provided that an air hostess would retire from the
service attaining the age of 35 years or on marriage within 4 years of service or on first
pregnancy, whichever occurred earlier. The regulation authorized the Managing Director to
extend the age of retirement to 45 years at his option if an air hostess was found medically
fit. The Regulation did not contain any guidelines or policy according to which the discretion
conferred on the Managing Director was to be exercised. The regulation conferred on the
Managing Director was unguided and uncontrolled discretion. The termination of service of
an air hostess on pregnancy was unreasonable and arbitrary. The regulation was held to be
violative of Article 14 as it was unreasonable and arbitrary.

Briefly stated, the principle is that the delegate cannot make a rule which is not authorized
by the parent statute. If the subordinate legislative authority keeps within the bunds of the
power delegated, the delegated legislation is valid, however, if the authority exceeds the
power delegated, then the courts will certainly declare it to be ultra vires.

Substantive ultra vires means that the rule making authority has no substantive power under
the empowering act to make rules in question. It refers to the scope, extent and range of
power conferred by the parent statute to make delegated legislation. Briefly stated, the
principle is that the delegate cannot make a rule which is not authorized by the parent statute.
If the subordinate legislative authority keeps within the scope and bounds of the power
delegated, the delegated legislation is valid; but if it fails outside the scope of the power, the
courts will declare it invalid. Delegated legislation to be valid must fall within the four corners
of the powers conferred by the statute. Declaring a rule in the Karnataka Motor Vehicle Rules,
1963, ultra vires the Motor vehicles act, 1939, as a rule was inconsistent with a section in the
act, the Supreme Court declared in State of Karnataka v H. Ganesh Kamath that the rule
making power “cannot include within its scope the power to make a rule contrary to the
provisions of the Act conferring the rule making power.

Conferment of a rule making power by an Act does not enable the rule – making authority to
make a rule which travels beyond the scope of the enabling Act or which is inconsistent
therewith or repugnant thereto.” As the Supreme Court has emphasized in State of U.P v
Renusagar Power Co., “if the exercise of power is in the nature of subordinate legislation, the
exercise must conform to the provisions of the statute. All the conditions of the statute must
be fulfilled.”

The doctrine refers to the extent, scope and range of power conferred by the parent act on
the concerned authority to make rules. Conferment of rule making power by an Act on an
authority does not enable the rule making authority to make a rule which is beyond the scope
of the enabling act, or which is inconsistent therewith or repugnant thereto.

Substantial Ultra vires & Procedural Ultra vires: a Comparison

When delegated legislation is In conflict with the procedure prescribed by the Enabling or
Parent Act
When the delegated legislation is found to be in conflict with the procedure prescribed by the
Enabling Act, it is held to be ultra vires the Enabling Act and, therefore, void. If the delegated
legislation is made without following the mandatory procedure prescribed by the Enabling or
Parent Act, It will be ultra vires the Enabling or Parent Act and, therefore, invalid. It is to be
noted that the delegated legislation will be held to be invalid on the ground only if the
procedure prescribed by the Act is mandatory. In short, if the procedure required to be
complied with in making the delegated legislation is mandatory and it is not complied with,
the delegated legislation will be held to be invalid on the ground of procedural ultra vires. If
the procedure prescribed by the Enabling Act is not mandatory but directory, its’ substantial
compliance will be sufficient and thus in case of substantial compliance, It will not be invalid.
In Raja Buland Sugar Co. v. Rampur Municipality, the U.P. Municipalities Act. 1916 provided
that the draft rules must be published in a local Hindi daily. The draft rules were published in
a local Urdu Daily. The Court held that what was mandatory was publication of the draft rules
in a newspaper. Publication In a Hindi daily was only directory. Consequently, the Court held
that the rules could not be held to be ultra vires the Enabling Act merely because they were
published In Urdu daily, (instead of a Hindi daily). The publication was made in substantial
compliance with the manner provided In the Act.

Case Study

In Indian Council of Legal Aid and Advice v Bar Council of India the Supreme Court held that:
a rule made by BCI barring qualified persons above the age of 45 years from enrollment as
advocates, as ultra vires, a sit fell outside the power of BCI conferred by it by the Advocates
Act, 1961, Section 49(1).

In Additional District Magistrate (Revenue) Delhi Administration v Siri Ram the Delhi Land
Revenue Rules 1962 made under the Delhi Land Revenue Act,1954, were declared ultra vires
as being contrary to the Parent Act as well as another Act, by making the rules, the rule making
authority had exceeded the power conferred on it by the Land Reforms Act 1954.

Ajay Kumar Mukherjee v UOI is a case where Supreme Court has said that delegated
legislation ultra vires the act by cutting down the breadth of the delegation to bring it in line
with the object of the delegation of legislative power. The purpose or object of the
conferment of the power must be borne in mind.

Unit 3 Judicial Control of Administrative Action

Topic 3.1 – Judicial Review – Meaning, Position in UK,US and India, Grounds of
Judicial review of administrative action – illegality, Irrationality (Wednesbury
test), Procedural Impropriety , Proportionality
Meaning
Judicial review has been recognized as a necessary and basic requirement for the construction
of an advanced civilization to safeguard the liberty and rights of the citizens. The power of
judicial review in India is significantly vested upon the High Courts and the Supreme Court of
India. Judicial review is the court’s power to review the actions of other branches of
government, especially the court’s power to deem invalid actions exercised by the legislative
and executive as ‘unconstitutional’.
Broadly speaking, judicial review in India deals with:

1. Judicial Review of Legislative Actions;

2. Judicial Review of Administrative Actions;
3. Judicial review of Judicial Actions.

We will be dealing with the second aspect i.e. judicial review of administrative actions. The
judicial review ensures the legality of administrative actions.

Grounds of judicial review

The doctrine-ultra-vires is the basic structure of administrative law. It is considered as the

foundation of judicial review to control actions of the administration. Ultra-vires refers to the
action which is made in an excessive manner or outside the ambit of the acting party.

Generally, the grounds for judicial review in India are as follows-

1. Jurisdictional Error;
2. Irrationality;
3. Procedural Impropriety;
4. Proportionality;

Jurisdictional Error

The term ‘jurisdiction’ means the power to decide. There might be a ‘lack of jurisdiction’,
‘excess of jurisdiction’ or ‘abuse of jurisdiction’. The court may reject an administrative action
on the ground of ultra vires in all these three situations.

A case of ‘lack of jurisdiction’ is where the tribunal or authority holds no power or jurisdiction
at all to pass an order. The court may review this administrative action on the ground that the
authority exercised jurisdiction which it was not supposed to. The power of review may be
exercised on the following three grounds-

1. That the law under which the administrative authority is constituted and exercising
jurisdiction is itself unconstitutional,
2. That the authority is not properly constituted as the law requires, and
3. That the authority has mistakenly decided a jurisdictional fact and henceforth
assumed jurisdiction which did not belong to it first.

A case of ‘excess of jurisdiction’ covers a situation wherein though the authority initially had
the jurisdiction over a matter but then it exceeded and afterwards its actions become illegal.
This can happen in the following situations when –

1. An administrative body continues to exercise jurisdiction despite the occurrence of an

event ousting the jurisdiction, and
2. When it is entertaining matters outside its jurisdiction.

All administrative powers must be exercised bonafide and fairly. If the powers are abused, it
will give rise to a ground of judicial review. An ‘abuse of power’ may arise under the following
conditions-
 1. Improper purpose- When an authority uses its power for a different purpose
2. Error apparent on the face of record- When it can be ascertained by examining the
record without having to recourse to other evidence.
3. In bad faith- Where an administrative authority has acted dishonestly by stating to
have acted for a particular motive when in reality the decision was taken with some
other motive in mind.
4. Fettering discretion- When an authority adopts a policy in the exercise of its
powers, which means that it is not actually exercising its discretion at all.
5. Non-consideration of relevant material- When a decision-maker does not look at the
relevant matter.

Irrationality (Wednesbury Test)

A general established principle is that the discretionary power conferred on an administrative

authority should be exercised reasonably. A decision of an administrative authority can be
held to be unreasonable if it is so outrageous in its defiance of logic or prevalent moral
standards that no reasonable person who had applied his mind to the subject could have
arrived at it.

‘Irrationality’ was developed as a ground of judicial review in the Associated Provincial Picture
House v. Wednesbury(1947) case which later came to be known as the ‘Wednesbury test’.
The court laid out three conditions in order to conclude the right to intervene-

1. In arriving at the decision, the defendant took into consideration the factors that
ought not to have been taken into, or
2. The defendant failed to take into consideration the factors that ought to have been
taken into, or
3. The decision was so unreasonable that any reasonable authority would never consider
imposing it.

The court held that it could not intervene to change the decision of the defendant simply
because it disagreed with it.

Procedural Impropriety

It is a failure to comply with the laid down procedures. Procedural Impropriety is to cover two
areas which are failure to observe rules given in statute and to observe the basic common-
law rule of justice.

Ridge v Baldwin(1963) is an exclusive case where procedural fairness shows its insistence on
the judicial review irrespective of the type of body determining the matter. Ridge, the Chief
Constable of Brighton was suspended on the charges of conspiracy to obstruct the course of
justice. Despite the clearance of allegations against Ridge, the Judge made comments which
criticized Ridge’s conduct. Following that, Ridge was dismissed from the force but he was not
invited to attend the meeting which had decided his dismissal. Later, he was given an
opportunity to be heard before the committee which had dismissed his appeal. Ridge then
appealed to the House of Lords that the committee had totally violated the rules of natural
justice. This case has been important because of the emphasis on the link existing between
the right of a person to be heard and the right to know the case brought against him.
Proportionality

Proportionality means that the concerned administrative action should not be more forceful
than it requires to be. The principle of proportionality implies that the court has to necessarily
go into the advantages and disadvantages of the action called into question. Unless the so-
called administrative action is advantageous and in the public interest, such an action cannot
be upheld. This doctrine tries to balance means with ends.

Courts in India have been adhering to this doctrine for a long time but Courts in England
started using it after the passing of the Human Rights Act, 1998. In the test of proportionality,
the court quashes the exercise of discretionary powers in which there is no reasonable
relation between the objective to be achieved and the means of achieving it. If the
administrative action is disproportionate to the mischief, it will be quashed.

In Hind Construction Co. v. Workmen(1965), some workers called for a holiday and remained
absent. They were later dismissed from service. The court held that the workers should have
been warned and fined instead of abruptly being dismissed in a permanent manner. It was
out of the question to think that any reasonable employer would have given such extreme
punishment. The court held that the punishment imposed on the workmen was not only
severe but also disproportionate.

Topic 3.2 – Writ Jurisdiction – Meaning of writs, Jurisdiction of Supreme Court

and High courts, Authorities amenable to writ jurisdiction, Locus standi in Writ
Jurisdiction.
A person whose right is infringed by an arbitrary administrative action may approach the
Court for appropriate remedy. The Constitution of India, under Articles 32 and 226 confers
writ jurisdiction on Supreme Court and High Courts, respectively for
enforcement/protection of fundamental rights of an Individual. Writ is an instrument or
order of the Court by which the Court (Supreme Court or High Courts) directs an Individual
or official or an authority to do an act or abstain from doing an act.
Article 32(2) of the Constitution of India provides:’’ The Supreme Court shall have power to
issue directions or orders or writs, including writs in the nature of habeas corpus,
mandamus, prohibition, quo warranto and certiorari, whichever may be appropriate, for the
enforcement of any of rights conferred by this Part.”
Article 32 is a fundamental right under Part -III of the Constitution. Under this Article, the
Supreme Court is empowered to relax the traditional rule of Locus Standi and allow the
public interest litigation (PIL) at the instance of public-spirited citizens.
Article 226(1) of the Constitution of India, on the other hand says,” Notwithstanding
anything in Article 32, every High Court shall have powers, throughout the territories in
relation to which it exercise jurisdiction, to issue to any person or authority, including in
appropriate cases, any Government, within those territories directions, orders or writs,
including writs in the nature of habeas corpus, mandamus, prohibitions, quo warranto and
certiorari, or any of them, for the enforcement of any of the rights conferred by Part III and
for any other purpose.”
this Article guarantees an individual to move the High Court for enforcement of the
fundamental rights as well as for any other purpose also i.e. for enforcement of any other
legal right. Article 226 confers wide powers on the High Courts.
Difference between Article 32 and Article 226:

Article 32 Article 226

Article 32 gives power to the Supreme Court Article 226 gives power to the High Court.
Article 226 is invoked for the enforcement of
Article 32 is invoked only for the
both fundamental rights as well as legal
enforcement of fundamental rights
rights.
Article 32 is a fundamental right. Article 226 is not the fundamental right.

Both the Articles 32 and 226 provide five types of writs namely writ of habeas corpus,
mandamus, prohibition, certiorari and quo-warranto:

1. Habeas Corpus:

Habeas Corpus is a Latin term which means "to have the body". The writ of Habeas
Corpus is the most effective remedy against an illegal detention. This writ plays an
important role in protecting the personal liberty of an individual. The writ of Habeas
corpus protects a person who has been illegally detained without lawful justification
by the person who has arrested.

The writ does not apply where a person is lawfully detained as an accused.

Illustration:
A person named Sumit is arrested by a police officer. Sumit then writes to High court
that he had been illegally detained. The concerned High court sends summons to the
police officer to state the valid grounds of Sumit's arrest. If the police officer fails to
do so, Sumit shall set to be free. Habeas Corpus safeguards Article 21[10] of the Indian
constitution which is regarding the right to life and personal liberty.

Grounds:

i. The applicant must be in custody

ii. The relatives of detained person can also file this[11] writ. Also, any third
person can file as public interest litigation.
iii. It can be either formal or informal
iv. It can be in the form of letter by co-convict. In the case of Sunil Batra V. Delhi
administration[12], the writ of habeas corpus was issued on the grounds of
letter by his co convict where it was mentioned about the inhuman treatment
by the prisoners.
 v. This writ will apply when the formalities of arrest which are to be followed not
followed by the police officer. Example: under section 56 of the CrPc the
arrested person is to be produced before the magistrate within 24 hours. If the
police officer, fail to do so the writ of habeas corpus can be filed and issued.

In the case of Rajakannu Vs. State of Tamil Nadu and Ors, The Habeas Corpus
petition was submitted by R. Parvathy, Rajakannu's wife. They were farm
labourers on a daily pay with four children. The 4th Respondent Police
reportedly beat R. Parvathy, her two kids, and her brother-in-law at the police
station on March 20, 1993.

On March 21, 1993, Rajakannu was arrested and the others were freed. On
March 22, 1993, the Petitioner's wife witnessed her husband being severely
assaulted while chained to the window bars. She was also banged up after
questioning the same. A homoeopathic doctor was summoned to treat them
after they incurred wounds and their health deteriorated as a result. They were
beaten up again after the doctor departed. The Petitioner's wife was later
forced to leave from the police station. Later, she was told that her husband
absconded from the station.

2. Mandamus:

Mandamus means "We command". The writ of mandamus can be issued to inferior
courts to act or abstain from doing an act.The writ of mandamus can be issued to
corporation, tribunal board or any administrative authority.It is important to note that
the writ of mandamus cannot be issued to a private person. It is specified that the writ
of mandamus shall be issued only to the public office.

Illustration: 'A' is a public servant. He omits his duties with which 'B' suffers. 'B' can
file an application for the writ of mandamus against the public office in which 'A'
works.

Grounds:

i. The right of the petitioner must be infringed.

ii. There must be no effective remedy.
In the case of Vijaya Mehta V. State of Rajasthan[13], the petition was filed to
appoint the commission to look after the climate change. The court held that
as this duty was discretionary but not mandatory the writ of mandamus cannot
be issued.
iii. The public servant must have failed to omit the duty which he is supposed to
do so or mandatory duty.

The courts can refuse to issue the writ of mandamus when:

▪ The right of the petitioner has been lapsed

 ▪ The duty has been already fulfilled by the concerned authority.

3. Certiorari:

The writ of certiorari is a different kind of writ as compared to other writs. The writ of
certiorari is corrective in nature.The writ of certiorari can be issued by superior courts
to inferior courts when there is violation of natural principles of justice or fundamental
rights. This writ can be issued to correct errors in apparent records of inferior courts.

Conditions:

i. The body or person has legal authority

ii. The authority is related to determining those questions which affect the rights
of the people.
iii. Such a body or person has a duty to act judicially in doing its functions.
iv. Such a person or body has acted in excess of their jurisdiction or legal
authority.

4. Prohibition:

The last Writ which can be issued under the Constitution is the Writ of Prohibition.
This Writ is not issued often and is an extraordinary remedy which a Superior Court
issues to an inferior court or tribunal for stopping them from deciding a case because
these courts do not have the jurisdiction. If the court or tribunals does not have
jurisdiction and it still decides the case, it will be an invalid judgment because for an
act to be legal it should have the sanction of law. For e.g., if a District Court is hearing
an appeal against the judgement of the High Court, such an act is bound to be
prohibited because the District Court does not have the power to hear such an appeal.
So, a Writ of Prohibition will be issued against such an act of District Court.

Difference between Prohibition and Certiorari-

Both the Writs Certiorari and Prohibition appear to be the same but there is one major
difference between the two. In the Writ of Prohibition, the superior court issues the
writ before the final order is passed by the inferior court and therefore this is a
preventive remedy, while in Writ of Certiorari the superior court issues the Writ after
the inferior court has made the final order. Thus the Writ of Certiorari is a corrective
remedy by which the order of the inferior court is quashed.

5. Quo Warranto:

The Writ of Quo Warranto is issued by the courts against a private person when he
assumes an office on which he has no right. Quo Warranto literally means 'by what
authority' and it is an effective measure to prevent people from taking over public
offices.

Illustration: A who is a private citizen and has no qualifications for the post of sub-
inspector assumes such office. Here a Writ of Quo Warranto can be issued against A
to call into question his authority on which he has taken the control of the office of
 sub-inspector. The power to issue this Writ is discretionary on the courts and
therefore nobody can demand that the court is bound to issue this writ.

Conditions for issuing Quo Warranto:

The Writ can be issued only when these conditions are fulfilled:

i. The office which has been wrongfully assumed by the private person is a public office.
ii. The office was created by the Constitution or by any other statute.
iii. The nature of the duties which arises from this office is public.

This Writ can also be issued in those cases where a person was entitled to hold the office
earlier but after getting disqualified he is still in possession of the office. Thus in cases where
the office is of private nature, this Writ cannot be issued by the Court. This view was held by
the court in the case of Niranjan Kumar Goenka v. the University of Bihar, Muzzfarpur[14],
in which the court observed that the Writ of Quo Warranto cannot be issued against a person
who is not holding a public office. In the case of Jamalpur Arya Samaj Sabha v. Dr. D
Rama[15], an application for the Writ of Quo Warranto was made by the petitioner in the
Patna High Court against the Working Committee of Bihar Raj Arya Samaj Pratinidhi Sabha
which was a private body. The court refused to issue the Writ because it was not a public
office.

Doctrine of locus standi in Writ Jurisdiction

The Latin Maxim “Locus Standi” consists of two words namely “locus” which means place
and “standi” means the right to bring an action. So, collectively, it means the right to appear
or the right to bring an action before the court. As per this maxim, one person needs to show
his legal capacity before approaching the court. It means the person can only approach the
court when his personal interest is suffered or an injury is inflicted upon him. This maxim is
one of the fundamental principles of the adversarial litigation system.

In India, the concept of locus standi is mentioned under Order 7 Rule 11 of the civil procedure
code, 1908. For instituting any action, the plaintiff or the appellant must prove his locus standi
first and the trial will start thereafter. The court can dismiss the entire case, irrespective of its
merit if the requirement of locus standi is not fulfilled.

Locus Standi means the legal capacity to sue or approach courts. Under both the inquisitorial
and adversarial system, the parties approaching the courts must have been aggrieved or
deprived of their rights. Thus, in any legal process, the existence of locus standi is necessary.

In our judicial system, any party who suffers some damage or injury from the act of a private
individual or of the state can approach the court. In this process, it is essential to demonstrate
that the person approaching the court must have suffered some injury or his legal right has
been violated. In other words, there shall be a sufficient nexus between the injury caused and
the person approaching the court. This doctrine is known as “Locus Standi“ and it ensures
that only the bonafide parties came to the court.
PIL is different from the usual method of litigation. Locus standi is mandatory in traditional
litigation, but a genuine interest or legitimate concern about the issues of the public will act
as a substitute for local standi in a PIL.

Therefore, Locus standi is the standing of a person in whom the right to legal action vests.
Thus, according to the principle of locus standi, any aggrieved person can approach the courts
for a remedy. Locus standi is relaxed and made flexible in a Public Interest Litigation to expand
the scope of litigation by considering the rights and issues of the marginalized and
underprivileged.

Suo Moto cases and the Public Interest Litigation (PIL), with the discontinuation of the
principle of Locus Standi, have allowed the judiciary to intervene in many public issues, even
when there is no complaint from the aggrieved party.

In India, the Supreme Court makes the lead by allowing volunteer social activists to represent
the interests of the poor and weaker sections of the society in judicial proceedings. By fattening
the doctrine of locus standi in filing the petition and court introduced epistolary jurisdiction,
which means to treat a letter written on behalf of an aggrieved person as a petition and examine
the matter of the grievance.

In India judicial activism played a very important role. Generally speaking, when the Court
takes up a matter for hearing or adjudication, it must be satisfied that the person who
approaches the court has sufficient interest in that matter, It was made so in favour of social
cause and the court accepts its validity make to set things right. Undoubtedly, such litigation
has provided each and every citizen of India access to all the courts of the country.

It has developed in a way to democratize the judicial process through radical changes.
Moreover, the PIL has contributed to the rise of a form of judicial scrutiny for governmental
institutions ranging from hospitals, prisons, covering issues of health, environment, safety,
security, privacy and etc.

Judicial activism is a very frequent and common phenomenon for one and a half decades. Its
foundation laid down in the year of 1986 by Justice P.N. Bhagwati who bring the tradition of
hearing a PIL even on a postcard and telegram. Justice Bhagwati has clearly stated, “The
Supreme Court has chosen to take up a proactive and newly conceptualized approach for the
last two years, particularly, having regard to the peculiar socio-economic conditions prevailing
in the country.

This article basically deals with the remedies which are mentioned in our Indian constitution
under part III of articles 32. And in this article any person whose legal or fundamental rights
violated he/she move to the Supreme Court and High Court for the enforcement of their Right
under article 32 and 226 respectively. Both the articles empower the courts to issue the decree
of writs.

Writs are formal legal documents bearing the order of the court including the nature of habeas
corpus, mandamus, Quo warranto, certiorari, and prohibition. It is circumstantial depending on
the facts of the case that which writs will be issued to resolve the problem, however High court
has the discretionary power in this regard.

Judicial activism enables more people to access to court through PIL, it is a writ petition filing
for the cause of public welfare. Anyone can file PIL as PIL is for the protection of human
rights. Judiciary provides an opportunity through PIL to a weaker section or socially backward
people to get justice in an inexpensive way, this leads to a democratized country and juristic
radical revolution in context to social, political, and economic justice as mentioned in the basic
structure of the constitution.

Topic 3.3 – Judicial Doctrines – Doctrine of Legitimate expectation, Doctrine of

Proportionality, Doctrine of Public Accountability
Doctrine of Legitimate expectation
The term legitimate expectation was first used by Lord Denning in 1969 and from that time it
has assumed the position of significant doctrines of public law in almost all jurisdictions. The
doctrine of legitimate expectation belongs to the domain of public law and is intended to give
relief to the people when they are not able to justify their claims on the basis of law, in the
strict sense of the term, though they had suffered a civil consequence because their legitimate
expectation had been violated.
It is something between a “right” and “no right” and is different from anticipation desire and
hope. For example, if the government has made a scheme for providing drinking water in
villages in a certain area but later on changed it, so as to exclude certain villages from the
purview of the scheme, then in such a case, what is violated is the legitimate expectation of
the people in the excluded village. The government can be held responsible if the exclusion is
not reasonable.
In India, the Supreme Court has developed this doctrine in order to check the arbitrary
exercise of power by the administrative authorities. This doctrine provides a central space
between no claim and legal claim, wherein a public authority can be made accountable on
the ground of an expectation which is legitimate. The first reference to this doctrine is found
in the State of Kerala v. K.G. Madhavan Pillai (AIR 1989 SC 49).

In this case, the government had issued a sanction to the respondents to open a new unaided
school and to upgrade the existing ones. However, after 15 days a direction was issued to
keep the sanction in abeyance. This order was challenged on the ground of violation of
principles of natural justice. The court held that the sanction order created a legitimate
expectation in the respondent which was violated by the second order without following the
principles of natural justice, which is sufficient to vitiate and administrative order.
This doctrine is a fine example of judicial creativity. The origin of this doctrine can be related
to Article 14 of the Constitution, which abhors arbitrariness and insists on fairness in all
administrative dealings. The doctrine has both positive and negative application. If applied
negatively, an administrative authority can be prohibited from violating the legitimate
expectations of people, and if applied in a positive manner, an administrative authority can
be compelled to fulfill the legitimate expectations of people. This is based on the principle
that public power is a trust which must be exercised in the best interest of its beneficiaries.

Doctrine of Proportionality
The doctrines of proportionality was developed in the 19th century in Europe and originated
in Prussia. It is a principle where courts would examine priorities and processes of the
administration for reaching or recalling a decision. Proportionality means that the
administrative action should not be more drastic than it ought to be for obtaining the desired
result.
This implies that canon should not be used to shoot a sparrow. Thus this doctrine tries to
balance means with ends. Proportionality shares space with reasonableness and courts while
exercising the power of review test this reasonability. The courts in India have been following
this doctrine for a long time.

This doctrine is applied in following situations:

1. Where an administrative action invades fundamental rights, courts make strict scrutiny of
the administrative action and go into the question of the correctness of the choices made by
the authority. The court would also balance adverse effects on the rights and objects sought
to be achieved.

2. Where a question of quantum of punishment imposed by the administrative authority is

involved, the court would not make strict scrutiny. Courts follow the principle that though the
quantum of punishment is within the jurisdiction of the administrative authority, arbitrariness
must be avoided.

While reviewing the administrative action on the ground of proportionality, courts generally
examine two things:
1. Whether the relative merits of different objectives or interests have been appropriately
weighed and fairly balanced?
2. Whether the action under review was, in the circumstances, excessively restrictive or
inflicted an unnecessary burden?
There have been many judgments which elucidate the doctrine of proportionality in Article
14 and Article 19 of the Constitution of India. One of the earliest decisions on judicial review
in administrative law was Ranjit Thakur v. Union of India (1987 AIR 2386) and it was observed
that:
“The doctrine of proportionality, as part of the concept of judicial review, would ensure that
even on an aspect which is, otherwise, within the exclusive province of the court-martial, if
the decision of the court even as to sentence is an outrageous defiance of logic, then the
sentence would not be immune from correction. Irrationality and perversity are recognized
grounds for judicial review.”

In the case of Om Kumar v. Union of India (SLP civil 1993), inter alia, the Supreme Court noted
that while dealing with the validity of legislation infringing fundamental freedoms
enumerated in Article 19 (1) of the Constitution of India, the issue of whether restrictions
imposed by the legislation were disproportionate to the situation and not the least restrictive
of choices has been repeatedly examined by the superior courts in numerous judgments.

Thus in the Om Kumar case proportionality was held to mean whether while regulating the
exercise of fundamental rights, the appropriate or least restrictive choice of measures have
been adopted by the legislature or the administrator so as to achieve the object of the
legislation or administrative order. And that it was for the superior Courts to decide whether
the choice made by the legislature or the administrative authorities infringed the rights
excessively.

Doctrine of Public Accountability

Accountability refers to the process of holding people or organizations accountable for
performance as objectively as possible. India, as a parliamentary democracy, has elected
legislatures with supervisory functions over the executive and an independent judiciary that
can hold both the legislative and executive arms of the state accountable.

It has a variety of independent authorities and committees that perform functions of

accountability to different parts of the government. The electoral process, which is the
ultimate accountability mechanism in a democratic country, has performed well for more
than 50 years. Public accountability is not so well in India. For the most part, formal
accountability systems are put in place, but they are not necessarily designed to work.
Many good laws have been made, but they are not always enforced or monitored. Public
agencies are given mandates and funds, but their performance may not be properly assessed
and appropriate actions are taken to hold them accountable. Public audits and parliamentary
reviews take place, but follow-up actions may leave much to be desired. It is clear that having
formal accountability mechanisms does not guarantee effective accountability on the ground.

This doctrine has developed in light of judicial decisions in India. After analysing several
Supreme Court decisions in this regard, the project then focuses on corruption as an evil that
is an impediment to good governance and public accountability

Idea of the Doctrine

Accountability means being able to provide an explanation or justification, and to take
responsibility for events or operations for one's own actions in relation to those events or
operations. Accountability plays a particularly important role in the public sector.It is about
being accountable for the ways in which one has spent money, exercised power, and control,
mediated rights and used legally conferred discretionary powers in the public interest. It is
fundamental to our system of government to whom such powers and responsibilities have
been delegated must exercise them fairly and in accordance with the law in the public
interest.

Over the past decade, the doctrine of Public Accountability has become increasingly prevalent
as a facet of administrative law. The development of this doctrine is critical to curbing the
increasing abuse of power by public officials and providing just and speedy redress to people
who have suffered from exploitation. This doctrine assumes that the powers and discretion
of administrative authorities are a public trust placed in their hands and that they should put
this belief into practice. The main aim of this doctrine is to curb the increasing abuse of power
by the administration and to provide prompt redress to the victims of such exercise of power.

The doctrine is based on the premise that the powers vested in a public authority are based
on public trust and must be exercised in the best interests of the public. In any democratic
society, it is of utmost importance that citizens are provided with sufficient information and
knowledge about the functioning of government. Without accountability to the public,
democracy cannot survive. The fundamental purpose of accountability is openness of
government. The integrity of the legal system and public confidence depend on full disclosure
of the facts.
Accountability to the public stems from the fact that judges act like legislators (who legislate
from the bench) and not like ordinary or traditional courts. This is one of the examples of self-
assumption of the legislature by the judiciary. Unbridled discretion is always a contradiction
in practical life. The concept of public accountability is a matter of vital public interest. All
three organs of government, i.e., the legislature, the executive and the judiciary, are subject
to public accountability.
Public accountability means the obligation to be publicly accountable, i.e., to account to an
acceptable standard for the performance of functions that significantly affect the public. It is
the obligation to answer for a delegated responsibility. The duty to answer publicly arises as
a duty of fairness whenever public authorities intend to do something that significantly affects
the public. The obligation therefore goes beyond responding to formally or legally affected
tasks.
Indian Scenario
Public accountability in India lacks practical application. Systems of formal accountability,
such as Right to Information Acts and experiments with e-governance, are being introduced
all over the country. The RTI Act (2005), have been passed but enforcement and monitoring
are neglected. Mandates are formulated and funds are allocated to public bodies, but the
government fails to adequately assess and punish them to hold them accountable.
While accounts are publicly audited and parliamentary reviews are conducted regularly,
follow up would most likely make one wish for more transparency. In the circumstances, it is
obvious that formal mechanisms work as long as there is real accountability on the ground.

Topic 3.4 – Private law Review and other Remedies – Private Law review,
Meaning, Injunction, Declaration, Suit for Damages, Lokpal, Lokayukta,
Ombudsman
Private Law review
The general rule of law is that when an infringement of a legal right is alleged, a cause of
action arises, and unless there is a bar to the entertainment of the suit, the ordinary civil
courts are bound to entertain the claim. To enable a person to file a civil suit s. 9 of the Code
of Civil Procedure provides that the Courts shall have jurisdiction to try "all suits of civil nature
excepting suits of which their cognizance is either expressly or impliedly barred." This
provision confers jurisdiction on civil courts to hear and decide all disputes of a civil nature.
But this is circumscribed by the rider that a suit barred expressly or implicitly may not lie. A
suit may be barred impliedly or expressly by a statute against administrative authority.
Further suits against the Government for damages arising out of a tort or breach of a contract
though could be filed under s. 9, C.P.C., are subject to a few constitutional restrictions and
this matter is again examined in the next two chapters. If there is no implied or express bar,
a civil suit can be filed against an administrative authority and proper relief sought against it.
For example, a suit may be filed for refund of tax which has been paid under a law, which is
later declared unconstitutional and the plaintiff has not passed on the burden of tax to
others.ii[lxiii]
In many situations involving wrongs done to persons by administrative authorities, damages
may not be an appropriate remedy, or the person concerned may be more interested in
making the administration comply with the law in question so that either it desists from
taking, an action which may be injurious to the person concerned, or it rights a wrong done
to him. Suits for injunctions and declarations under the Specific Relief Act, 1963 are the
remedies appropriate to achieve the desired ends. These remedies have been considered
below.
The remedies mentioned here, viz.; a civil suit to claim damages, or a suit for an injunction or
a declaration, are essentially private law remedies which have been pressed into service in
the area of public law as well.

The action of awarding contract by a public authority falls within the purview of public law
but the terms of contract regarding rates, time specified for completion of work and other
similar condition in the contract between public authority and the private individual as also
the quantum of damages for breach of the contract, all fall within the purview of private law
in respect of which no judicial review will be permissible.
Thus, grant of licences, imposition of fees, classification of land, rules relating to dealership
of essential commodities, etc. which fall within the domain of public law, can be the subject-
matter of judicial review. Judicial review should not be mistaken for the appeal. The right of
appeal is a statutory right which can be invoked when it is so provided in the relevant Act
whereas the right to seek judicial review is available even when there is a finality clause or
ouster clause in an Act that the order passed by an authority thereunder is final and shall not
be questioned in a court of law or that the civil court has no jurisdiction to entertain a suit in
respect of any matter required to be dealt with by the authority under the Act. In the face of
such a provision in any Act, an ordinary civil court has no jurisdiction to entertain a suit for
adjudication of any question arising under such an Act but the extraordinary jurisdiction of
the High Courts and the Supreme Court, conferred by the Constitution, is not barred. Chandra
Kumar caseiii[xvii] is a glaring example.
One important aspect to be borne in mind is that in judicial review the courts are mainly
concerned with the competence of the authority and the mode in which the authority takes
the decision and not the decision taken by the authority. They are not concerned with the
merits of the decision. The courts do not substitute their opinion or decision in place of the
impugned decision of the authority but in appeal the appellate court does have the power to
consider the merits of the case and substitute its own decision for that of the subordinate
court or tribunal. It is profitable to be apprised of the words of Lord Hailsham L.C., in the case
of Chief Constable of N.W.iv[xviii]:
"Judicial review is concerned not with decision but with decision-making process. Unless that
restriction on the power of court is observed, the court will under the guise of preventing the
abuse of power, be itself guilty of usurping power."
Injunction
An injunction is an order made by the court to stop a public body from acting in an unlawful
way. Less commonly, an injunction can be mandatory, that is, it compels a public body to do
something. Where there is an imminent risk of damage or loss, and other remedies would not
be sufficient, the court may grant an interim injunction to protect the position of the parties
before going to a full hearing. If an interim in injunction is granted pending final hearing, it is
possible that the side which benefits from the injunction will be asked to give an undertaking
that if the other side is successful at the final hearing, the party which had the benefit of the
interim protection can compensate the other party for its losses. This does not happen where
the claimant is legally aided. An injunction can be temporary or permanent, prohibitory or
mandatory.
Through an injunction, a public authority may be commanded to do a thing which the law
requires it to do, or to refrain from doing something which is illegal. An injunction can be
issued to an administrative or a quasi-judicial body. An injunction is primarily private law
remedy, but is used in the area of public law as well to prevent the administration from
breaking the law.
At present, the law relating to injunctions is laid down in the Specific Relief Act, 1963 which
has repealed the corresponding Act of 1877. Injunctions are classified into three categories;
temporary, perpetual, and mandatory. Temporary and perpetual Injunctions are preventive
in character. According to s. 36, preventive relief is granted, at the discretion of the Court, by
injunctions - temporary or perpetual. According to s. 37(1), a temporary injunction is to
continue until a specified time, or until further order of the Court; it may be granted at any
stage of a suit, and is regulated by the Code of Civil Procedure. Rules 1 and 2 of Order 39 of
the C.P.C., deal with temporary injunctions. Such an injunction is grantable at the instance of
the plaintiff at the discretion of the court if it is proved to its satisfaction that unless the
defendant is immediately restrained by an injunction, irreparable loss or damage will be
caused to the plaintiff during the pendency of the suit. The purpose of a temporary Injunction
is, thus, to maintain the status quo pending, hearing and disposal of the suit on merits till
further orders are made by the court. A court grants an interim injunction if three conditions
are satisfied: (i) making out a prima facie case; (ii) showing that the balance of convenience is
in the applicant's favour in that the refusal of the injunction would cause greater
inconvenience to him; and (iii) whether on refusal of the injunction he would suffer
irreparable loss.
A perpetual injunction can be granted, under s. 37(2), by a decree made after the hearing and
upon the merits of the suit. According to s. 38(1), it may be granted to the plaintiff to prevent
the breach of an obligation existing in his favour whether expressly or by implication. Through
a perpetual injunction, the defendant is perpetually enjoined from assertion of a right, or from
the commission of an act, which would be contrary to the rights of the plaintiff. Ordinarily, an
injunction is not issued to prevent breach of a contract because a contract is usually not
specifically enforceable and damages may be a sufficient recompense for breach of a
contract. If, however, there exists no standard to ascertain damages caused by the non-
performance of a contract, or where the act agreed to be done is such that compensation in
money for its non-performance would not afford adequate relief an injunction may be
granted to prevent its breach.iii[lxxvi] When the defendant invades or threatens to invade the
plaintiff's right to, or enjoyment of, property, the court may grant a perpetual injunction, inter
alia, where there exists no standard for ascertaining the actual damage caused, or likely to be
caused, by the invasion, or where the invasion is such that compensation in money would not
afford adequate relief, or where the injunction is necessary to prevent multiplicity of judicial
proceedings.
A mandatory injunction not only involves prohibition but also imposes a positive duty on the
defendant to do something. According to s. 39, when to prevent the breach of an obligation,
it is necessary to compel the performance of certain acts which the court is capable of
enforcing. The Court may, in its discretion, grant an injunction to prevent the breach
complained of, and also to compel performance of the requisite acts. Under s. 40, the plaintiff
in a suit for perpetual or mandatory injunction can also claim damages either in addition to,
or in substitution of, such injunction. The Court may, in its discretion, award damages.
An injunction is pre-eminently a discretionary remedy, but the Court has to exercise its
discretion judicially. Since injunction is an equitable remedy, it may be refused, inter alia,
when the conduct of the plaintiff is such as to disentitle him of the assistance of the Courts (S
41 (i)) or when equally efficacious relief can be obtained by any other usual mode of
proceedings [s. 41(h)].

The Specific Relief Act of 1877 contained a provision [so 56(d)] laying down that an injunction
could not be granted "to interfere with the public duties of any department of the Central
Government or any State Government.” In actual practice, however, this hardly operated as
a limitation on the Courts in the matter of issuing injunctions. The clause did not immunize
ultra virus actions of the government
Declaration
A declaration is a judgment by the Administrative Court which clarifies the respective rights
and obligations of the parties to the proceedings, without actually making any order. Unlike
the remedies of quashing, prohibiting and mandatory order the court is not telling the parties
to do anything in a declaratory judgment. For example, if the court declared that a proposed
rule by a local authority was unlawful, a declaration would resolve the legal position of the
parties in the proceedings. Subsequently, if the authority were to proceed ignoring the
declaration, the applicant who obtained the declaration would not have to comply with the
unlawful rule and the quashing, prohibiting and mandatory orders would be available.
A declaratory action or decree denotes that action of the Court wherein it declares the rights
of the parties without living further relief. It differs from an ordinary judgment which can be
enforced through execution proceedings. A declaratory judgment does not prescribe any
sanction against the defendant. The rationale behind such a judgment is that coercion is not
always necessary for obeying a verdict of a court and often the parties would obey the law
without any sanction. This is particularly true of public authorities. If the existing doubt
regarding the legal rights is removed, then it can be supposed that public authorities would
act according to law. In fact, every decision against the government is a sort of declaration
because it is up to it to obey the same or not, the judiciary possessing no physical power of
its own to enforce obedience.
The purpose of declaration is to avoid future litigation by removing existing causes or
controversies, e.g., where a man is in possession of some property under a title about which
there is sonic legal doubt, he may obtain a declaration in his favour to clear his title. Or, to
take another illustration, where there exists a dispute about the status of two persons as
husband and wife and the legitimacy of the children, declaration would be an appropriate
remedy to clarify the legal position. A declaratory action is particularly useful where a legal
dispute exists but no positive wrong has been committed or has taken place entitling a party
to claim coercive relief. As de Smith states, through declaration "inconvenience and the
prolongation of uncertainty are avoided.”

Suit for Damages

Damages are available as a remedy in judicial review in limited circumstances. Compensation
is not available merely because a public authority has acted unlawfully. For damages to be
available there must be either:
(a) A recognized ‘private’ law cause of action such as negligence or breach of statutory duty
or;
(b) A claim under Human Rights Act.
(c) Any another legally recognized right.
The formula that no suit shall lie for anything done or purported to be done in good faith
under the Act has been held to include an 'omission' as well.iii[cxxii] Section 117 of the
Factories Act, 1948 provides indemnity in respect of 'anything done or intended to be done
under this Act'. It was held that protection conferred can only be claimed by a person who
can plead that he was required to do or omit to do something under the Act or that he
intended to comply with any of its provisions. The clause cannot confer immunity in respect
of actions which are not done under the Act but are contrary to it.iii[cxxiii] This formula bars
suits for damages and compensation for administrative acts done under the Act.iii

In this connection, the Bombay Port case may be referred to.

The plaintiff had imported certain goods. The Bombay Port Trust delivered a part of the goods
to the plaintiff but could not deliver the rest as they were not traceable. He brought a suit
after the six-month time limit. As stated earlier, the court had ruled that “omission to do an
act" was covered by the expression "act done". The plaintiff argued that the failure to do what
the Act mandated: the Port Trust to do, viz., to deliver the goods goods, could not be "in
pursuance of this Act." It was held that though the authority might have neglected to comply
with the law, yet the ouster clause gave protection to it, as the act of non-delivery was in the
discharge of official duty under the Act. There has to be a reasonable or legitimate connection
between the act or omission and the discharge of official duty. The short delivery of the goods
was in purported exercise of the bailee's obligation under the Act and was covered by s. 87.
The ouster clause will not cover the case of breach of contract.

Lokpal And Lokayukta

Lokpal and Lokayuktas are statutory bodies under Lokpal and Lokayukta Act of 2013. These
institutions fulfil the function and responsibility of an "Ombudsman" i.e. an authority designated to
investigate complaints made by individuals against a firm or organisation, particularly a government
agency. They look into claims of corruption against governmental entities and organisations, as well
as other problems.

Lokpal and Lokayuktas - Historical Background

 • There is a lengthy history between the Lokpal and the Lokayukta. The Lokpal and Lokayukta
principles are not unique to India.
• In 1809, Sweden founded the Ombudsman institution, and the concept of an ombudsman
was developed. Following World War II, the institution of ombudsman expanded and
evolved considerably.
• In India, the former law minister Ashok Kumar Sen became the first Indian to propose the
concept of constitutional Ombudsman in Parliament in the early 1960s.
• L.M. Singvi coined the term Lokpal in 1963. It comes from a Sanskrit term that means
"protector of people."
• The LokPal Bill was introduced eight times in parliament but never passed.
• In 1971, Maharashtra became the first Indian state to establish a Lokayukta to oversee
corruption in various agencies.
• The United Nations Convention Against Corruption has been signed by India.
• The government's commitment to provide clean and responsive governance is shown in the
passage of legislation and the establishment of the Lokpal body to prevent and punish
corruption.

Commission and Movements which Recommended for Establisment of Lokpal and Lokayuktas

• In 1966, the First Administrative Reforms Commission advocated the establishment of two
independent authorities, one at the national level and the other at the state level, to
investigate complaints against public officials, including MPs. Morarji Desai was in charge of
this commission.
• In 2002, the Commission to Review the Working of the Constitution, chaired by Shri M.N.
Venkatachiliah, suggested that the Prime Minister be excluded from the authority's
purview.
• In 2005, the 2nd ARC, chaired by Shri Veerappa Moily, proposed that the Lok Pal office be
established as soon as possible.
• In 2011, the well-known Anna Movement for Lokpal was launched.

Timeline of Lokpal and Lokayukta Act, 2013

• In 2013, both houses of Parliament enacted the Lokpal and Lokayuktas Bill, 2011.
• The Lokpal and Lokayuktas Act, 2013, went into effect on January 16, 2014.
• In 2016, the Lokpal and Lokayuktas Act, 2013, was revised to close a minor gap.
• Meetings of the Selection Committee pursuant to section 4(1) of the Lokpal and Lokayuktas
Act, 2013 were held in March and April 2018 following the intervention of the Supreme
Court.
• On March 19, 2019, Justice (Retd) Pinaki Chandra Ghose was appointed as India's first
Lokpal, along with eight judicial and non-judicial members.
• In March 2020, Lokpal announced rules and a structure for registering complaints.

The Lokpal and Lokayuktas Act

• The Lokpal and Lokayuktas Act calls for the appointment of a Lokpal at the national level
and Lokayuktas at the state level to investigate cases of corruption involving certain types
of public officials.
• Following the historic Anna Movement, the government amended the Bill based on the
Select Committee's recommendations before it was enacted in the Rajya Sabha. Following
the approval of these revisions by the Lok Sabha, the bill was passed by Parliament in 2013.
On January 16, 2014, the Act was published in the Central Register.
Lokpal and Lokayuktas

• The Lokpal is the first institution of its kind in independent India, established under the
Lokpal and Lokayuktas Act 2013 to inquire into and examine charges of corruption against
public officials who fit within the scope and ambit of the Act.
• India's Lokpal is dedicated to addressing citizens' complaints and aspirations for clean
governance. It must use all of its powers to promote the public interest within its authority
and to remove corruption in public life.
• In cases of alleged corruption, the Lokpal provides a mechanism for swift and unbiased
investigation and prosecution.
• There are no limitations on who can file a complaint.

Lokayuktas in State

• The States have to set up Lokayuktas.

Aim: To deal with charges against their own officials.

• Jurisdiction of Lokayuktas: All state government personnel, including religious institutions,

as well as the governor, ministers, and MLAs.
• Almost all states had established Lokayukta as a statutory entity with a definite tenure
even before the Lokpal and Lokayukta Act of 2013 was enacted.
• The Lokayukta can be approached directly by members of the public with allegations of
corruption, nepotism, or any other type of maladministration.
• Note: The Government of India dissolved eight state commissions, including the J&K
Accountability Commission, following the abrogation of Jammu and Kashmir's semi-
autonomous status and statehood on 5 August 2019.
• States were also required to appoint a Lokayukta within a year of the Lokpal Act taking
effect. However, the Lokayukta has been constituted in only 16 states.

Composition & Eligibility of Lokpal and Lokayukta:

The Lokpal panel must have a chairperson and a maximum of eight members, according to
the Act. Four of them must be judicial members.

Eligibility

• Chairperson of Lokpal: A person must have served as Chief Justice of India, a Supreme Court
judge, or a distinguished person with special knowledge and expertise in the areas of anti-
corruption policy, public administration, vigilance, finance, law, and management for at least
twenty-five years.
• Lokpal Judicial Member: The applicant must have served as a judge on the Supreme Court
or as the Chief Justice of the High Court.
• Other Lokpal Members: Eminent persons with at least twenty-five years of specific
knowledge and competence in anti-corruption policy, public administration, vigilance,
finance, law, and management.
• At least half of the Lokpal members must be from Scheduled Castes, Scheduled Tribes,
Other Backward Classes, minorities, and women.
• For the position of Lokayukta: A former Chief Justice of the High Court or a former Supreme
Court judge normally serves as the Lokayukta.

Selection Committee
 • The members are appointed by the president on the recommendation of a Selection
Committee comprises of:
o The Prime Minister is the Chairperson;
o Speaker of Lok Sabha,
o Leader of Opposition in Lok Sabha,
o Chief Justice of India or a Judge nominated by him/her and One eminent jurist.
• For selecting the chairperson and the members, the selection committee constitutes a
search panel of at least eight persons.

For Lokayukta

• The Chief Minister selects a person as the Lokayukta after consultation with the High Court
Chief Justice, the Speaker of the Legislative Assembly, the Chairman of the Legislative
Council, Leader of Opposition in both the Houses of State Legislature.
• The appointment is then made by the Governor.
• Once appointed, Lokpal and Lokayukta cannot be dismissed nor transferred by the
government, and can only be removed by passing an impeachment motion.

Function and Jurisdiction of Lokpal and Lokayukta

• Anyone who is or has been Prime Minister, a Minister in the Union government, or a
Member of Parliament, as well as officers of the Union Government in Groups A, B, C, and D,
are eligible to be investigated by the Lokpal.
• If the allegations against the Prime Minister are related to foreign relations, external and
internal security, public order, atomic energy, or space, the Lokpal cannot investigate.
• Also, complaints against the Prime Minister will not be investigated until the complete
Lokpal bench recommends launching an investigation and at least two-thirds of the
members accept it.
• If an investigation into the Prime Minister is underway, it should be conducted in secret. If
the Lokpal decides that the complaint should be rejected, the investigation's documents are
not to be published or made available to the public.
• Lokpal also applied to the chairpersons, members, executives, and directors of any board,
corporation, society, trust, or autonomous organisation created by an Act of Parliament and
supported entirely or partially by the Union or State governments. It also applies to any
society, trust, or body that accepts a foreign gift of more than ten lakh rupees.
• Within 60 days, the Inquiry Wing or any other body must finish its preliminary investigation
and submit a report to the Lokpal. Before presenting its report, it must obtain feedback from
both the public servant and "the competent authority." Each kind of public servant will have
a "competent authority" as defined by the Act.
• The Lokpal has the authority to recommend the transfer or suspension of a public official
who has been accused of corruption.
• Lokpal has the authority to issue orders prohibiting the destruction of records during the
preliminary investigation.
• The Lokpal has the authority of search and seizure, as well as powers under the Civil
Procedure Code to undertake preliminary inquiries and investigations, as well as the power
to attach assets and take other measures to combat corruption.
• For cases submitted to them by the Lokpal, the Lokpal will have the authority to supervise
and instruct any central investigating agency, including the CBI.

Branches of Lokpal
 • Lokpal will have two primary branches via which it would carry out its tasks.
• The administrative branch will be led by a Secretary to the Government of India and will
include the following departments:
• An officer not lower than the rank of Additional Secretary to the Government of India will
lead the inquiry/investigation branch.
• The prosecution wing would be led by an officer with the rank of Additional Secretary to the
Government of India.
• The Judicial Branch will be led by a judge of appropriate rank who will help the Lokpal in
carrying out their judicial duties.

Limitation of Lokpal and Lokayukta

• The Lokpal was a tool utilised in India's governmental system to tackle corruption. There are,
however, certain defects and holes that must be remedied.
• The Lokpal selection process is skewed because there are no guidelines for deciding who is a
"eminent jurist" or "a person of integrity."
• There are no proper procedures for appealing Lokpal's actions.
• The Lokpal and Lokayukta Act also stipulates that no complaint against corruption can be
filed until a period of seven years has passed from the date on which the alleged offence
was committed.
• The appointing committee for Lokpal is made up of political party representatives who try to
sway Lokpal's choices.
• Parliament enacted the Lokpal and Lokayuktas Act 2013 five years ago, but no Lokpal has
been appointed since then, indicating a lack of political will.
• The Lokpal's omission of the judiciary from its purview is one of the most serious problems.
• There is no legal basis for the Lokpal's rulings, and there are no effective methods for
contesting them.

Unit 4 Principles of Natural Justice, State Liability and Administrative

Adjudication
Topic 4.1 – Meaning, Constitutional framework, Principles of Natural Justice,
Rule against bias, Audi alteram Partem, Meaning , Incidents of Audi alteram
partem rule, Exceptions to the principle of natural justice
Introduction:

“Justice should not only be done but seen to be done.”

This well-recognized principle is considered to be the very basis of the Administration of

Justice’ system. Consequently, the establishment of the Concept of Natural Justice is
considered to be one of the most essential elements in the administration of Justice’. Though
this concept is not provided by the Constitution of India expressly, this is an indispensable
part of it to ensure the Rights of the common people to get a ‘just and fair trial.’ ‘Equity’ and
‘equality’ – these two words are the basis of this concept.

The literal meaning of Natural Justice is ‘Jus Naturale’ which means ‘Law of Nature’. This is a
technical terminology mostly used in the Common Law system. Though this concept has wide
meanings and applications, it can be concisely said that it means ‘Duty to act fairly’. It denotes
the natural sense of humans to decide what is right and what is wrong and in a technical
sense, it means fairness.
When the concept of ‘Welfare State’ came, the powers of administrative authorities are
increased and it became impossible for the laws to determine the fair procedures to be
followed by each authority in the adjudication of disputes or any quasi-judicial proceedings.
Thus time and again, the applications of this concept have been changed and it has become
also an indispensable part of the administrative system in discharging the functions of the
authorities.
The basic aim of the Principles of Natural Justice’ is to prevent the contempt of justice which
means arbitrary actions of the Executive or Judicial bodies in exercising their administrative
as well as judicial or quasi-judicial functions in administering justice. These principles always
become very effective to protect the fundamental, legal, or constitutional rights of common
people from the misuse of powers of the administrative or judicial, or quasi-judicial
authorities.
The duties of the authorities must be to serve the people and exercise their powers for the
welfare of common citizens. If any case, any of the authorities exercise its powers in such a
way that is in violation of the basic aim of the Principles of Natural Justice, it will stand null
and void. Thus, these principles evolved by the courts from time to time have become the
safeguards against injustice and provide a remedy to the persons whose natural rights are
violated by any acts of authority securing justice to the common citizens.
The Basic Principles of Natural Justice:

According to traditional English law natural justice classified into two principles-

1. Nemo judex in causa sua (rule against bias)

2. Audi alteram partem (rule of fair hearing)

1. Nemo judex in causa sua (rule against bias):

The meaning of this principle is that ‘no one should be a judge in his/her own cause.’ Simply,
it means that whenever any administrative or judicial, or quasi-judicial body exercises their
power to perform their respective duties, they must act impartially. They should not have any
interest in the matter. They should be impartial and neutral in adjudicating every matter and
dispute which appears before them.

Thus, if a judge while discharging his/her judicial duty is found that he/she has an interest out
of a matter or he/she is involved in a case which he/she is deciding, this principle disqualifies
him/her to decide that particular case. This is because, when a person becomes involved in
any matter or that person has some personal interest out of that particular matter, it is
ordinarily not possible for the person to decide the matter impartially and it is natural that
the decision will be biased. It is the same for administrative authorities also.

Whenever any authority is suspected to be biased in determining any case before them, that
decision will not have any effect and will be treated as void. Thus this principle plays a
significant role to prevent the authorities from acting partially in any matter and uphold the
credibility of the institutions. There are the following types of bias-

i. Personal bias:

If any case, it is found that the decision-making authority has any personal relations with the
parties involved in that case, the authority will not be able to act impartially and any decision
derived from such cases will not be executed. Thus, if any case, the judge who is hearing a
case is a friend or relative of any of the parties involved in that case or he/she has any other
relation or rivalry with any of the parties involved in that case, will not be impartial and he/she
may have some biased or prejudiced decision in that particular case. This type of bias is called
‘Personal Bias’. Any judgment derived from any such cases will be null and void.

In the case Mineral Development Corporation limited vs. State of Bihar, “here the petitioner
was granted mining lease for 99 years in 1947. In 1953, the Secretary of revenue board issued
a notice to the petitioners to show cause within 15 days as to why the license should not be
canceled for violation by the petitioner of Sections 10, 12 and 14 of Mining Act.

ii. Pecuniary bias:

When the decision-making authority has any monetary or financial interest out of a matter
which he/she is hearing, the authority is said to have ‘Pecuniary Bias’ in that particular matter.
Thus if it is found in a judgment that the judge has passed judgment in favor of any of the
parties involved in the case as that party has bribed him, the judgment will be treated as null
and void. Similarly, if this bias is found in any case, the decision-making authority will be
disqualified from acting in such cases.

In the landmark English case Dimes vs. Grand Junction Canal, a public limited company filed a
suit against a landowner in matter largely involving the interest of the company. The Lord
Chancellor who was a shareholder in the company decided the case and gave relief to the
company. His decision was quashed by the House of Lords because there was a pecuniary
interest of the Lord Chancellor in the Company.”

iii. Subject matter bias:

If it is found in any case that the deciding authority is himself involved in that same case which
he/she is deciding, the authority will be partial and biased in deciding that matter, This type
of bias is known as ‘Subject Matter Bias’ because the deciding authority has an interest with
the Subject matter of the matter. The authority will also be disqualified from deciding that
case.

In Gullampally Nageswara Rao vs. A.P.S.R.T.C., “the Apex Court held the decision of upholding
the scheme of nationalization of motor transport by the Government Secretary to be invalid,
due to his interest in the subject matter, as he was the one who had initiated the process of
nationalization.”

2. Audi alteram partem (rule of fair hearing):

This is another principle of Natural Justice and it denotes ‘hear the other side’. The meaning
of this principle in a simple sense is that both sides must be heard. In another sense, no man
should be unheard of. As per this rule, in any hearing, both parties must have an equal
opportunity to be heard.

No decision-making authority can decide any matter hearing only one side. No decision can
be taken ex parte in the absence of the other party. Both parties must be judged with a fair
hearing.

This principle is applicable in both administrative and judicial actions. The main purpose of
this principle is to give both parties an equal opportunity of being heard with a just and fair
hearing and they both must have equal opportunity to defend themselves in any hearing.

If a judge delivers his judgment only after getting pleased with the contentions and evidence
of one party and doesn’t give sufficient scope to the other party so that they can also present
their contentions and evidence, he can decide what is right but he would not have done what
is right. Such types of decisions will not be executed as they are a violation of this principle.
Thus this principle forms the very base of the ‘fundamental justice and equity’.

It ensures fair play and justice to the aggrieved as well as the opposite party. It was said by
De Smith that “No suggestion can be more obviously settled than that a man can’t cause the
loss of freedom or property for an offense by a legal continuing until he has had a reasonable
chance of noting the body of evidence against him”.

The essential components of this principle are-

i. Notice:

A notice must be given to the opposite party before taking any action against them to provide
them an opportunity to defend themselves and present their contentions before the court of
law. If any order is passed by any court without giving any notice to the other party, the order
violates this principle and it will be treated as void.

Before initiating a hearing, the other party must not be deprived of their right to know about
the facts, causes, or charges against him/her under which the proposed actions are going to
be taken. The notice must contain the time, date, place of hearing, the charges against
him/her, and also the jurisdiction under which the case is filed. If anything is found to be
absent in any notice, it will not be treated as valid.

“In the case of Punjab National Bank vs. All India Bank Employees Federation, the notice which
was given to the party contain certain charges but it was not mentioned anywhere that
penalty was imposed on the charges. Hence, the charges on which penalty was imposed were
not served as a notice to the parties concerned. The notice was not proper and thus, the
penalty which was imposed was invalid.”

ii. Hearing:

Both sides must be given the opportunity of fair hearing. The decision passed by a deciding
authority without given reasonable opportunity of fair hearing to both parties, the decision
will be treated invalid. This is considered to be one of the most essential components of this
principle.

“In the case Fateh Singh vs. State of Rajasthan, it was held that if a person gets a reasonable
opportunity of being heard or fair hearing it is an essential ingredient of the principle of ‘audi
alteram partem’. This condition is accompanied by the authority providing written or oral
hearing which is the discretion of the authority unless the statute under which action is taken
by the authority provides otherwise. It is the duty of the authority to ensure that affected
parties should get a chance of oral or personal hearing or not.”

iii. Evidence:

The evidence of both parties is undoubtedly considered to be the most essential component
of this principle because, on the basis of that evidence, the judicial or quasi-judicial authorities
will be deciding the case. Thus, both parties must be given equal opportunity to present their
respective evidence before the deciding authorities. If it is found in any case where the
evidence has not been gone through with equal importance or any of those evidence or any
part of those have been overlooked by the deciding authorities, any decision derived from
those hearing will be invalid.

iv. Representation by legal professionals:

In order to conduct a just and fair hearing, both the parties should be allowed to be
represented by legal professionals of their own choice to present their contentions suitably
before the deciding authorities. But, there are some types of cases like in administrative,
inter-disciplinary proceedings or authoritative arbitration where the representation by legal
professionals is not ordinarily necessary and such cannot be claimed as a matter of right if the
same right is not given by any particular statute. Even though the statute is silent, if any
special circumstances come where any of the parties in a proceeding will not be able to
defend himself/herself properly, he/she can be allowed to be assisted with a legal advisor.
Such a situation may arise when the affected party is illiterate or a question of law is involved
or the matter is complicated or technical or where expert evidence is on record.

v. Cross-examination:

The ambit of fear hearing also extends to the ‘Right of Cross-Examination’. It is an effective
process to establish the truth and expose falsehood. The definition of Cross-examination has
been given under Section 137 of the Indian Evidence Act, 1872. However, this may not be
essential in every case so that this privilege must be given to the parties concerned. If the
fact and circumstances of any case demand that in absence of cross-examination of the
witness, the party will not be able to defend himself/herself effectively, the cross-examination
of witnesses may be granted by the deciding authorities.

Exclusion of natural justice (exceptions to the rule of natural justice)

1. Exclusion by statutory provisions.

2. Exclusion by the constitutional provisions.
3. Exclusion in case of legislative act.
4. Exclusion in public interest.
 5. Exclusion in case of the need of prompt action or in emergency or necessity.
6. Exclusion on the ground of the impracticability.
7. Exclusion in case of confidentiality.
8. Exclusion in cases of academic adjudication.
9. Exclusion when no right of the person is infringed.
10. Exclusion in the cases of interim prevention action.
11. Exclusion in case of fraud.

Conclusion:

In Union of India vs. Tulsiram Patel, the Apex Court held, “The essence of natural justice is
good conscience in a given situation, nothing more or nothing less”.

As per the discussion of the topic regarding ‘Principles of Natural Justice’, it plays a vital role
in the ‘Administration of Justice’. It was invented by the courts from time to time to protect
the rights of common citizens from arbitrary use of powers by administrative, judicial, or
quasi-judicial authorities and miscarriage of justice. In India, the ‘Principles of Natural
Justice’ has been provided under Articles 14 and 21 of the Constitution of India. As per
Article 14 of the Constitution of India-

“Equality before the law- The State shall not deny to any person equality before the law or
the equal protection of the laws within the territory of India”.

As per Article 21 of the Constitution of India-

“Protection of life and personal liberty- No person shall be deprived of his life or personal
liberty except according to the procedure established by law”.

With the introduction of substantive and procedural due process in Article 21, all the fairness
which is included in the ‘Principles of Natural Justice’ can be read into Article 21. So, the
answer to the main topic is that the requirements of ‘Natural Justice’ can be satisfied before a
person whose Right to life and personal liberty, guaranteed by Article 21 of the Indian
Constitution has been violated.

It is because the person whose Fundamental Right is infringed, can go to a High Court (under
Article 226) or the Supreme Court (under Article 32) directly seeking Constitutional
Remedies and the Court will decide the matter accordingly. After examining all facts and
circumstances, the judges will decide the matter as per their ‘equity and good conscience’
keeping the ‘Principles of Natural Justice’ an integral part of ‘Right to life and personal
liberty’.

They will not be biased in deciding his matter and he will be given adequate opportunity to
present his contentions before them and he will not be unheard because in order to hold the
decision of the adjudicating authorities as valid, ‘Principles of Natural Justice’ is equally
important in the procedure and even if anything is found to be in contravention of this, it will
be null and void.
Topic 4.2 – Liability of State – Doctrine of Sovereign immunity, Liability of
administration in contract, Liability of administration in Tort, State Liability
and compensatory Jurisprudence
Doctrine of Sovereign immunity

Sovereign Immunity is a legal doctrine by which the sovereign, or the state cannot, commit a
legal wrong, and is immune from civil suit or criminal prosecution.[1]

The old and archaic concept of sovereign immunity that “the king can do no wrong” still haunts
us, whereby the state claims immunity for its tortious acts and denies compensation to the
aggrieved party.”

Meaning and Origin

Sovereign immunity is a justification for wrongs committed by the State or its representatives,
seemingly based on grounds of public policy. Thus, even when all the elements of an actionable
claim are presented, liability can be avoided by giving this justification.

The doctrine of sovereign immunity is based on the Common Law principle borrowed from
the British Jurisprudence that the King commits no wrong and that he cannot be guilty of
personal negligence or misconduct, and as such cannot be responsible for the negligence or
misconduct of his servants. Another aspect of this doctrine was that it was an attribute of
sovereignty that a State cannot be sued in its own courts without its consent. [2]

This doctrine held sway in Indian courts since the mid nineteenth century until recently. When
a genuine claim for damages is brought to the courts, and it is refuted by an ancient doctrine
seemingly having no relevance, there is bound to be resentment and demands for review. The
Indian courts, in order to not let genuine claims be defeated, kept narrowing the scope of
sovereign functions, so that the victims would receive damages.

it is necessary to take a look at Article 300 of the Constitution of India which spells out the
liability of the Union or State in acts of the Government.

Article 300

Initially in India, the distinction between sovereign and non-sovereign functions was
maintained in relation to the principle immunity of the Government for the tortuous acts of its
servants. In India, there is no legislation which governs the liability of the State. It is Article
300 of the Constitution of India, 1950, which specifies the liability of the Union or the State
with respect to an act of the Government.

The Article 300 of the Constitution originated from Section 176 of the Government of India
Act, 1935. Under Section 176 of the Government of India Act, 1935, the liability was
coextensive with that of Secretary of State for India under the Government of India Act, 1915,
which in turn made it coextensive with that of the East India Company prior to the Government
of India Act, 1858. Section 65 of the Government of India Act, 1858, provided that all persons
shall and may take such remedies and proceedings against Secretary of State for India as they
would have taken against the East India Company. [5] It will thus be seen that by the chain of
enactment beginning with the Act of 1858, the Government of India and Government of each
State are in line of succession of the East India Company. In other words, the liability of the
Government is the same as that of the East India Company before, 1858.

Article 300 reads as:

1. The Government of India may sue or be sued by the name of the Union of India and the
Government of a State may sue or be sued by the name of the State any may, subject to any
provision which may be made by Act of Parliament or of the Legislature of such State enacted
by virtue of powers conferred by this Constitution, sue or be sued in relation to their respective
affairs in the like cases as the Dominion of India and the corresponding provinces or the
corresponding Indian States might have sued or been sued if this Constitution had not been
enacted.
2. If at the commencement of this Constitution –
i) any legal proceedings are pending to which the Dominion of India is party, the Union of
India shall be deemed to be substituted for the Dominion in those proceedings; and
ii) Any legal proceedings are pending to which a Province or an Indian State is a party, the
corresponding State shall be deemed to be substituted for the province or the Indian State in
those proceedings.

An overview of Article 300 provides that the first part of the Article relates to the way in which
suits and proceedings by or against the Government may be instituted. It enacts that a State
may sue and be sued by the name of the Union of India and a State may sue and be sued by the
name of the State.

The Second part provides, inter alia, that the Union of India or a State may sue or be sued if
relation to its affairs in cases on the same line as that of Dominion of India or a corresponding
Indian State as the case may be, might have sued or been sued of the Constitution had not been
enacted.

The Third part provides that the Parliament or the legislatures of State are competent to make
appropriate provisions in regard to the topic covered by Article 300(1).

Types Of Sovereign Immunity:

The State generally benefits from two forms of immunity –

1) Immunity to jurisdiction –

A state’s immunity to jurisdiction results from the beliefthat it would be inappropriate for one
State’s courts to call another State under its jurisdiction. Therefore, State entities are immune
from the jurisdiction of the courts of another State. However, this immunity can generally be
waived by the State entity. Reference to arbitration is in many legal systems sufficient to
demonstrate a waiver of immunity to jurisdiction by the State. However, certain developing
countries may be hesitant to submit themselves to international arbitration, believing that
arbitration is dominated by Western principles and would not give a developing country a fair
hearing. These same developing countries may feel more secure submitting to arbitration under
the UNCITRAL rules, which are often considered more culturally neutral than those of the ICC
or other Western tribunals.[6]

2) Immunity from execution–

The State will also have immunity from execution, as it would be improper for the courts of
one State to seize the property of another State. Immunity from execution may also generally
be waived.

Waiving immunity from execution may be difficult for a government to address. As a general
proposition under most legal systems, certain assets belonging to the state should not be
available for satisfaction of the execution of an arbitral award; for example, the country’s
foreign embassies, or consular possessions. Therefore, some method may have to be made
available for the private party to seize certain state assets, possibly through careful definition
of those possessions available for seizure.

Recent Developments

The courts in successive cases continued with the policy of narrowing the scope of sovereign
immunity, rather than attempt an express overruling of Kasturilal. Though there were murmurs
of disapproval at the principle of Kasturilal in a number of cases,[19] the most explicit
disapproval came in State of Andhra Pradesh v. Challa Ramkrishna Reddy.

The petitioner and his father were lodged in a jail, wherein one day bombs were hurled at them
by their rivals, causing the death of the father and injuries to the petitioner. The victims were
having previous knowledge of the impending attack, which they conveyed to the authorities,
but no additional security was provided to them. On the contrary, there was gross negligence
since there was a great relaxation in the number of police men who were to guard the jail on
that fateful day. Thus, on the grounds of negligence a suit was filed by the petitioner against
the Government.

While the case had been dismissed in trial court, the case was allowed in the High Court, where
the Court even while accepting the principle of Kasturilal, took consideration of Article 21 of
the Constitution and came to the conclusion that since the Right to Life was part of the
Fundamental Rights of a person, that person cannot be deprived of his life and liberty except
in accordance with the procedure established by law. Further, by virtue of Maneka Gandhi v.
Union of India[20], the procedure too should have been fair and reasonable. Thus, the High
Court held that since the negligence which led to the incident was both unlawful and opposed
to Article 21, and that since the statutory concept of sovereign immunity could not override
the constitutional provisions, the claim for violation of fundamental rights could not be violated
by statutory immunities. On appeal by the State, the Supreme Court dismissed the appeal and
ruled: “The Maxim that King can do no wrong or that the Crown is not answerable in tort has
no place in Indian jurisprudence where the power vests, not in the Crown, but in the people
who elect their representatives to run the Government, which has to act in accordance with the
provisions of the Constitution and would be answerable to the people for any violation
thereof.”

Thus, the ratio of this case was that sovereign immunity, which is a statutory justification,
cannot be applied in case of violation of fundamental rights, because statutory provisions
cannot override constitutional provisions. The procedural aspect of this was that aggrieved
persons can successfully file their petitions in trial courts for tortious acts committed by State,
and there is no need to approach High Court or Supreme Court under Articles 226 or 32.
However, the court in this case even while holding that Kasturi Lal’s case had paled into
insignificance and was no longer of binding value, did not consider the cases where no
fundamental rights but other legal rights might be violated. The question that arises is whether
in violation of such statutory rights, the sovereign immunity can be effectively claimed. This
issue can be decided only by a Constitutional bench of seven or more judges, if the need arises
to overrule the Kasturi Lal case.

Conclusion

Sovereign immunity is a common-law doctrine which originated in court decisions.

Historically, the doctrine of sovereign immunity has been justified on the grounds that the King
could do no wrong, the diversion of funds required for other governmental purposes could
bankrupt the State and retard its growth, the State could perform its duties more efficiently and
effectively if it were not faced with the threat of a floodgate of actions involving tort liability,
and it was more expedient for an individual to suffer than for society to be inconvenienced.

Whatever justifications initially existed for sovereign immunity, they are no longer valid in
today’s society. Sovereign immunity from tort liability. Perpetuates injustice by barring
recovery for tortious conduct merely because of the status of the wrongdoer. Sovereign
immunity contradicts the essence of tort law that liability follows negligence and that
individuals and corporations are responsible for the negligence of their agents and employees
acting in the course of their employment. We conclude that the State’s sovereign immunity for
tort liability is outdated and is no longer warranted.

Although we abolish the State’s sovereign immunity from tort liability, our decision should not
be interpreted as imposing tort liability on the State for the exercise of discretionary acts in its
official capacity, including legislative, judicial, quasi-legislative, and quasi-judicial functions.

“While the rule is that a suit cannot be maintained against the sovereign without its consent, it
is equally well established that a clear official duty, not involving the exercise of discretion,
may be enforced when performance thereof is arbitrarily refused, and that, if a person will
receive injury because an official is about to violate an official or legal duty, for which adequate
compensation cannot be had at law, such conduct may be enjoined.”

Liability of administration in contract

Article 298 provides that the executive power of the Union and of each State shall extend to
the carrying on of any trade or business and to the acquisition holding and disposal property
and the making of contracts for any purpose. Article 299 (I) lays down the manner of
formulation of such contract. Article 299 provides that all contracts in the exercise of the
executive power of the union or of a State shall be expressed to be made by the President or
by the Governor of the State, as the case may be, and all such contracts and all assurances of
property made in the exercise of that power shall be executed on behalf of the President or
the Governor by such persons and in such manner as he may direct or authorize. Article 299
(2) makes it clear that neither the President nor the Governor Shall be personally liable in
respect of any contract or assurance made or executed for the purposes of this Constitution
or for the purposes of any enactment relating or executing any such contract or assurance on
behalf of any of them be personally liable in respect thereof. Subject to the provisions of
Article 299 (1), the other provisions of the general law of contract apply even to the
Government contract.
A contract with the Government of the Union or State will be valid and binding only if the
following conditions are followed: -
1) The contract with the Government will not be binding if it is not expressed to be made in
the name of the President or the Governor, as the case may be.
2) The contract must be executed on behalf of the President or the Governor of the State as
the case may be. The word executed indicates that a contract with the Government will be
valid only when it is in writing.
3) A person duly authorized by the President or the Governor of the State, as the case may
be, must execute the contract.
The above provisions of Article 299 are mandatory and the contract made in contravention
thereof is void and unenforceable.
The Supreme Court has made it clear that in the case grant of Government contract the Court
should not interfere unless substantial public interest is involved or grant is mala fide when a
writ petition is filed in the High Court challenging the award of a contract by a public authority
or the State, the Court must be satisfied that there is some element of public interest involved
in entertaining such a petition.
In India the remedy for the branch of a contract with Government is simply a suit for damages.
The writ of mandamus could not be issued for the enforcement of contractual obligations.
But the Supreme Court in its pronouncement in Gujarat State Financial Corporation v. Lotus
Hotels, has taken a new stand and held that the writ of mandamus can be issued against the
Government or its instrumentality for the enforcement of contractual obligations. The Court
ruled that it is too late to contend today the Government can commit branch of a solemn
undertaking on which other side has acted and then contend that the party suffering by the
branch of contract may sue for damages and cannot compel specific performance of the
contract through mandamus.
The doctrine of judicial review has extended to the contracts entered into by the State of its
instrumentality with any person. Before the case of Ramana Dayaram Shetty v. International
Airport Authority. The attitude of the Court was in favor of the view that the Government has
freedom to deal with any one it chooses and if one person is chosen rather than another, the
aggrieved party cannot claim the protection of article 14 because the choice of the person to
fulfill a particular contract must be left to the Government, However, there has been
significant change in the Court’s attitude after the case of Ramana Dayaram Shetty. The
attitude for the Court appears to be in favor of the view that the Government does not enjoy
absolute discretion to enter into contract with any one it likes. They are bound to act
reasonably fairly and in non-discriminatory manner.
In the case of Kasturi Lal v. State of J&K, in this case Justice Bhagwati has said “Every activity
of the Government has a public element in it and it must, therefore, be informed with reason
and guided by public interest. Every government cannot act arbitrarily without reason and if
it does, its action would be liable to be invalidated.” Non- arbitrariness, fairness in action and
due consideration of legitimate expectation of affected party are essential requisites for a
valid state action. In a recent case Tata Cellular v. Union of India, the Supreme Court has held
that the right to refuse the lowest or any other tender is always available to the Government
but the principles laid down in Article 14 of the Constitution have to be kept in view while
accepting or refusing a tender. There can be no question of infringement of Article 14 if the
Government tries to get the best person or the best quotation. The right to choose cannot be
considered to be an arbitrary power. Of course, if the said power is exercised for any collateral
purpose the exercise of that power will be struck down.
Quasi-Contractual Liability

According to section 70 where a person lawfully does anything for another person or delivers
anything to him such other person enjoys the benefit thereof, the latter is bound to make
compensation to the former in respect of or to restore, the thing so done or delivered. If the
requirements of Section 70 of the Indian Contract act are fulfilled, even the Government will
be liable to pay compensation for the work actually done or services rendered by the State.

Section 70 is not based on any subsisting contract between the parties but is based on quasi-
contract or restitution. Section 70 enables a person who actually supplies goods or renders
some services not intending to do gratuitously, to claim compensation from the person who
enjoys the benefit of the supply made or services rendered. It is a liability, which arise on
equitable grounds even though express agreement or contract may not be proved.

Section 65 of the Indian Contract Act, 1872

If the agreement with the Government is void as the requirement of Article 299 (1) have not
been complied, the party receiving the advantage under such agreement is bound to restore
it or to make compensation for it to the person form whom he has received it. Thus if a
contractor enters into agreement with the Government for the construction of go down and
received payment therefore and the agreement is found to be void as the requirements of
Article 299 (1) have not been complied with, the Government can recover the amount
advanced to the contractor under Section 65 of the Indian Contract act. Action 65 provides
that when an agreement is discovered to be void or when a contract becomes void, any
person who has received any advantage under such agreement or contract is bound to restore
it to make compensation for it to the person from whom he received it.

Liability of administration in Tort

State liability refers to the liability of the state arising from the acts of omission/ commission
committed by its servants. It has been governed by written or unwritten laws and is not a
static concept. The State’s liability for the tortious acts of its servants, known as the tortious
liability of the State, makes it liable, voluntarily or involuntarily, for acts of omission and
commission, and puts it before the Court of Law in a claim for unliquidated damages to such
acts. This liability is also a branch of the Law of Torts. Law of Torts like various other laws has
travelled through the British to this country and is now varied because it is regulated by local
laws and constitutional provisions.

Indian Law – The maxim ‘the king can’t be blamed under any circumstance’ was never
acknowledged in India. The government’s absolute insusceptibility was not understood in the
Indian legal system before the constitution’s beginning and in numerous cases, the
government was subjected to its employees’ convoluted actions. According to Article 294(4)
of the Constitution, the liability of the Government of the Union or a Government of the State
can arise ‘from some contract or other.’ Article 12 of the Indian Constitution defines the term
‘state’. Under Article 300 (1), the degree of such liability is settled. It states the Union of India
or State Government’s liability to be the same as that of Dominion of India and the Provision
before the Constitution commenced.

In Arvind Dattatreya v. Maharashtra State, the Supreme Court refused the transfer of a police
officer because the transfer of the officer was nothing but mala fide exercise of the power to
demoralise honest officers who would efficiently discharge the duties of a public office. It was
observed that the Government demoralises the officers who discharge the duties honestly
and diligently and bring to book the persons indulging in black marketing and contra banding.

The vicarious liability of the State (for torts) shall be borne by its servants in the exercise of
the duties of the State. If the acts performed were necessary to protect life or property, the
State would not be held liable. Acts such as judicial or quasi-judicial decisions made in good
faith also invite no liability whatsoever. There are specific statutory provisions that are binding
on the administrative authorities. However, such protection would not scale up malicious
acts. The burden of proving a malicious act would lie on the person who is assaulting the
administrative action. The principles of tort law would apply in determining what is a tort and
the public servant would also have access to all of the defences available to the respondent
in a tort lawsuit.

The vicarious liability of the states for the civil wrong committed by its servants is based on 3
principles:-

1) Respondent superior

Respondent superior means let the principle be liable or let the master answers to the wrong
for what the servants did. According to this doctrine, the servant and the master is responsible
or liable for the negligence done by the servant during the course of employment.

There are 2 essential requirements for this doctrine. They are:-

->There must be a true master-servant relationship.

->The tortious act of a servant must be within the scope of the employment.

There is a case, Automobile transport v. dewalal and ors. , In this case, Rajasthan high court
held that the vehicle is driven by the order of the driver. And the appellant has the right to
prove that orders is unjustified and not confirm.

2) Qui-Facit per Alium Facit per se

It is a maxim of agency law. It is a maxim of employer’s liability for the employer’s action. This
is known as vicarious liability. Here, master is responsible for the actions which is done by the
servants.

The Act of god or the personal acts of the nature cannot be considered to be in this maxim. It
is the only exception to this maxim.

3) Compensation by the state

The word ‘tort’ is a civil wrong or injury that comes out of the contract. And for the tortious
act done by a person can be solved only by the compensation. There is no other remedy for
it. Therefore, it is clear that the, tort occurs from the violation of non-contractual obligation.
And all the civil mistakes are considered to be as tort.

Sometimes a public servant may be unskilled. So, obtaining compensation is difficult in such
a case. Compensation is more important than giving punishment.

In a case, Bhim Singh v. the state of Jammu and Kashmir, here, the petitioner is a legislative
assembly member. He was travelling to Srinagar to attend legislative assembly in gross
violation of his constitutional rights under article 21 and article 22(2) of the constitution.
While travelling, he was arrested. Later, court granted monetary compensation of Rs.50, 000
to the petitioner.

Topic 4.3 – Administrative Adjudication – Meaning, Reasons for growth of

Administrative Adjudication, Distinction between Judicial, Quasi-Judicial
function and administrative action
Administrative Adjudication

Modern public administration has taken a leaf not only from the legislature‟s book but also
from that of the judiciary. Administrative Adjudication is the latest addition to the
administrative techniques. Administrative Adjudication means the determination of
questions of a judicial or quasi-judicial nature by an administrative department or agency.
Like a regular court, administrative bodies hear the parties, sift evidence, and pronounce a
decision in cases where legal rights or duties are involved.
In the words of Prof White, “…administrative adjudication means the investigation and
settling of a dispute involving a private party on the basis of a law and fact by an administrative
agency.” Prof Dimock defines Administrative Adjudication as the process by which
administrative agencies settle issues arising in the course of their work when legal rights are
in question.
Blachly and Oatman describe administrative tribunals or Administrative Courts as,
“authorities outside the ordinary court system which interpret and apply the laws when acts
of public administration are attacked in formal suits or by other established methods.”

The agencies for administrative adjudication may comprise:

(i) The minister;
(ii) The head of the department (permanent);
(iii) A ministerial tribunal;
(iv) A special committee or commission like Independent Regulatory Commissions;
(v) Specialized courts of law;
(vi) Single member tribunal;
(vii) Composite tribunal.
The main point of difference between administrative adjudication and administration of
justice by the courts is that administrative justice is administered by administrative agencies
instead of regular courts. The administrative courts follow the principles of natural justice and
common good whereas the courts of law follow the settled principles of law and evidence.
The administrative courts are manned by officers belonging to the executive branch whereas
the judges are the members of the judiciary independent of executive control.

Kinds of Administrative Adjudication:

Administrative adjudication may take the following forms:
(i) Advisory administrative adjudication which means that the power of final decision is vested
in the head of the department or other authority.
(ii) Administrative Adjudication may constitute a part of the regular functions of an
administrative officer.
(iii) Administrative Adjudication may be combined with a legislative administrative process.
(iv) Regular suits may be filed against administrative decision.
(v) Administrative Adjudication sometimes applies to licensing activities.
(vi) Administrative Adjudication may be adopted for the settlement of claims.
(vii) Administrative Adjudication may sometimes serve as a condition precedent to the
performance of an administrative act.
Causes of the Growth of Administrative Adjudication:

1. A By-Product of the Welfare State:

The Administrative Tribunals rendering Administrative justice constitute a by-product of the
welfare state. In the 18th and 19th century when „laissez‟ faire theory held sway, law courts
emerged out as the custodian of the rights and liberties of the individual citizens.
At times they protected the rights of the citizens at the cost of State authority. With the
emergence of welfare state, social interest began to be given precedence over the individual
rights. The existing judiciary failed to uphold the new system.
In the words of Robson, “with the extension during the nineteenth and twentieth centuries
of the functions of the government to one new field after another, with the progressive
limitation of the rights of the individuals in the interests of the health, safety and general
welfare of the community as a whole, with the development of collective control over the
conditions of employment and manner of living and the elementary necessities of the people,
there has arisen a need for a technique of adjudication better fitted to respond to the social
requirements of the time than the elaborate and costly system of decision provided by
litigation in the courts of law.”
In brief the new system of administrative adjudication suited new social ends espoused by a
welfare state. It proved a potential instrument for enforcing social policy and legislation.
2. Suitable to Industrialized and Urbanized Society:
Administrative Adjudication suits modern industrialized and urbanized society as well. The
latter necessitates positive and prompt action which is possible if the problems arising out of
the new order are not left to the mercy of ordinary courts.
In the words of Robson, “Parliament did not overlook the courts of law but they found the
possibility of setting up new organs of adjudication which would do the work more rapidly,
more cheaply and more efficiently than the ordinary courts, which would possess greater
technical knowledge and fewer prejudices against government, which would give greater
weight to the social interests involved and show less solicitude for private property rights
which would decide with a conscious effort at furthering the social policy embodied in the
legislation. This prospect offered solid advantages which induced the legislature to extend in
one sphere after another the administrative jurisdiction of governmental departments so as
to include judicial functions affecting the social services.”
3. Ordinary Law Courts not Competent:
(i) Law courts, on account of their elaborate procedures, legalistic forms and attitudes can
hardly render justice to the parties concerned in technical cases. Ordinary judges brought up
in the traditions of law and jurisprudence is not capable enough to understand technical
problems which crop up in the wake of modern complex economic and social processes.
Only administrators having expert knowledge can tackle such problems judiciously.
In the words of White, “Another important consideration was the desire to secure
adjudication by a body of experts in the subject-matter of litigation rather than by a body of
experts in the law.” Lord Summer also held a similar opinion. According to him, the common
law judges are “ill-equipped to weigh the merits of one solution of a practical question against
another.”
(ii) The expedient adopted by the courts is to examine the experts of the subject. The expert
witnesses are only too often hired assassins of the truth; and even if they were just men made
perfect the assimilation of technical facts at short notice, through the testimony of another
individual, is a different thing from a first-hand knowledge of the groundwork based on
personal experience or training.
In the recent past in a decision given by Madras High Court, it frankly admitted that it knew
nothing of the subject. That clearly reflects the handicaps of regular judiciary.
(iii) The court procedures when tested by times are found wanting. Litigants have to face
exasperating delay because of crowded dockets of these courts and an excessive right of
appeal to the higher courts.
(iv) The justice in these ordinary courts has neither been speedy nor cheap. It has been
dilatory or cumbersome. Hence an improvement was contemplated in administrative courts.
(v) Ordinary courts were under too much strain. Hence they were to be relieved of the strain.
Dr. White has graphically summed up defects of the ordinary courts which caused aversion to
them and a swing towards administrative courts, in these words “For a half century, there
had been growing dissatisfaction with the court procedure. Litigants were faced with
exasperating delay… they found the technical rules of evidence sometimes inappropriate and
conducive to dispute among lawyers rather than to a just and early settlement; they were
dubious about the value of jury in many kinds of cases; and the cost of judicial action including
Attorney‟s fees sometimes reduced victory to a hollow success.”
4. Safety to be ensured:
A good number of situations are such as require quick and firm action otherwise health and
safety of the people may remain in jeopardy. For instance, ensuring of safety measures in coal
mines, preventing of illegal transactions in foreign exchange, and unfair business practices
necessitate prompt action.
Such cases, if to be dealt with in the ordinary courts of law, would cause immense loss to the
state exchequer and undermine national prestige. However, the administrative courts
presided over by the experts would ensure prompt and fair action.
5. Standards of Conduct to be devised:
Besides the points suggested above, the main business of the ordinary courts is to settle
disputes and not to set standards of human behaviour. It is for the legislature to set such
standards. The legislatures are not in a position to prescribe in exact details the pattern of
conduct. This power is delegated by the legislature to the administration.
The disputes arising out of the enforcement of these standards can be properly tackled by the
Administrative courts alone. For instance, the factory rules provide certain safety measures.
A workman working in the factory gets injured. Has he been injured due to bad workmanship
or non-compliance of the safety measures by the management can be decided only by the
administrative expert rather than an ordinary judge?

Advantages of Administrative Adjudication:

(a) Cheaper: Administrative justice is cheaper comparatively. In suits, lawyers may or may not
appear. No court fees are to be paid, no solicitors are to be instructed, no counsel is to be
briefed, no pleadings are to be printed, no affidavits are to be sworn.
Robson opines that it is also cheaper from the point of view of the state, if the relative salaries
of the official members of the administrative tribunals and the judges are taken into
consideration.
(b) Speedy Justice: Justice by the Administrative Tribunals is speedy. Oral hearings are
dispensed with. Intricate trial procedures are abandoned. Vexatious rules of evidence are
conspicuously absent.
(c) Adequate Justice: In the fast changing world of to-day, administrative tribunals provide
the most effective means of rendering fair justice to the individuals. Lawyers steeped in the
old traditions and philosophy of law and environed by procedural dialectism generally
discernible in the ordinary courts of laws, can hardly appraise the needs of the modern
welfare society. Hence administrative courts alone can render adequate justice.
(d) Burden of Courts Lessened: The system provides the much needed relief to the ordinary
courts of laws which are overburdened with varied types of ordinary suits. Many of the
disputes coming before the ordinary tribunals are of ordinary nature and do not warrant the
attention of highly paid judges or the necessity of elaborate procedures and rules of evidence.
Such cases can easily be referred to these tribunals.
(e) Useful in Developing Democracies: In developing democracies which experiment with
new social and economic programme, ordinary courts would be completely misfit. All the
disputes arising out of such programmes will get struck, thus giving a setback to the
programme itself unless we switch over to the Administrative Courts.
(f) Fixing of Standards: The disputes which come for adjudication before the Administrative
Tribunals arc not concerned with the proprietary or other claims of the disputants but the
fixation of public standards of performance. Such standards of performance can be
determined only by these administrative and not ordinary courts.
For example, a dispute concerning an injured employee‟s claim for compensation from the
employer is more a problem of enforcing standards of safety in the factory than a mere
dispute of rights between the employer and the employees. Obviously ordinary courts are
not capable of undertaking such work.
(g) Flexibility: The legalistic approach to problems is static, un-progressive and individualistic.
An ordinary court intervenes only when a conflict arises. It moves in the direction of
controversy alone. It is not concerned with the problems arising from the decisions the
complications following such decisions and the other inter-relations involved.The fast
changing society necessitates a progressive attitude and an adaptation of policies to meet
changing conditions.

Administrators formulate policy, develop administrative techniques, work out new methods
of adjusting controversies, check and modify their standards in the ordinary functions and
difficulties confronting everyday life and adjust their decisions and attitudes. Thus conditions
fostering controversies are removed through such a type of flexibility.
Distinction between Judicial, Quasi-Judicial function and administrative action

Introduction

There are three organs of the government that perform various functions individually. The
legislative organ creates or makes changes in the law; the executive ensures that the laws
passed by the legislative are enforced accordingly and the function of the judiciary is to make
sure that the laws executed are implemented correctly in every situation.

But not always it may happen that the judicial functions are taken by the judiciary body only,
the executive or the administrative authority can also play the judicial role. In some situations,
these bodies can acquire the ‘quasi-judicial authority’.

A judicial act is something that bounds the judiciary of any system to take decision with the
proper proceedings of the court. And the quasi-judicial acts don’t bound any body but give
decisions without the proceedings of the court.

Judicial Acts

The acts that are done by a particular competent authority, by looking upon the facts and the
circumstances of the situation are judicial acts. They are done in the manner of court
proceedings and impose the liabilities on the guilty and try to save the rights of the other
person. They follow a strict procedure to go on. The acts that are done by a particular
competent authority, by looking upon the facts and the circumstances of the situation are
judicial acts. They are done in the manner of court proceedings and impose the liabilities on
the guilty and try to save the rights of the other person. They follow a strict procedure to go
on. These acts are done by the judges of the court when they give decisions on any case using
the particular laws or the judges may even create laws while passing judgements. The judges
are bound by the law to give decisions by following the complete court procedure.

There is no liability of the judge in trespass for the want of jurisdiction, the burden of proof
of the facts lies completely on the plaintiff in every case. And also, no disputes should be filed
against any judge, who acts judicially and in good faith. The decisions taken by the judge in
every case, when the judge is acting judicially gives no person the right to fight against the
decision taken by that judge in a particular case.

This rule of immunity in the judicial acts is also applied to the members of naval and military
courts-martial or courts of inquiry constituted in compliance with the military law and usage
and not only to the judges of the ordinary civil courts. Also, to a limited extent, it applies to
the arbitrators as well and the persons who are appointed in a position like that of the
arbitrator. The person, if acting honestly, is not liable for any faults in the decision. He will be
liable if any corrupt or partisan exercises are being done in his office. But he can not be made
personally liable if he works in utter use of judicial discretion and he can not be questioned
upon the correctness and competence of his decision.
Quasi-Judicial Acts
The word ‘quasi’ holds a Latin origin and means ‘similar to but not exactly’. The quasi-judicial
acts are not exactly court proceedings. They may seem to derive the powers and functions of
some laws, but they are still not considered as courts. They don’t usually follow any procedure
of the court. These acts are done by the persons who are not judge of any court or do not
hold a judiciary power under certain laws. The institutions may hire a manager or chief who
may act as a judge and pass decisions regarding the working of that institution.

These acts are performed by the person who is not a judge and applied to the action and
discretion of the public administrative officers and bodies, who are in charge or duty-bound
to investigate facts or prove the existence of facts, hold hearings, weigh the evidence and
provide the results and decisions accordingly to exercise their power of judicial nature.

The powers of universities over their officers and graduates and the powers of the colleges of
the universities over their students are an example of the quasi-judicial acts. The finance
commission also holds a quasi-judicial authority. The General Council of Medical Education
has power over the registered medical practitioners. These acts depend on the institution of
foundation, provisions of which are binding on persons who are benefitted through them.
The partners of a company together hold a quasi-judicial authority when they act upon the
recruitment or firing of any partner or taking decisions to build or enhance the functions and
working of that company.

The basic rule of the acts to be quasi-judicial is that the persons who exercise them are
protected from civil liability, if they observe the rules of natural justice and also the particular
statutory rules which may prescribe their course of action.

Difference between Judicial and Quasi-Judicial Acts

1. The judicial and quasi-judicial acts differ from each other as the judicial acts require a
proper proceeding of the court and the judge is duty-bound whereas the quasi-judicial
acts don’t require the courts and decisions taken under them are by the person, who
is not a judge.
2. The judicial acts are bound by the common law precedents to give decisions whereas
the quasi-judicial acts are not usually bound.
3. In absence of any common law precedent, judicial acts may invent new laws but the
quasi-judicial is based on the decisions of the existing laws.

OR

Difference Judicial Functions:

1. As lies inter parties (a dispute between two parties) is an essential characteristic feature of
judicial function.

2. The evidence shall be taken on oath.

3. The rules of evidence, Civil Procedure Code, etc. are strictly followed.

4. The Court fee, as per rules, are required to be paid.

5. The doctrines of precedents, stare decisis etc. shall strictly be followed.

6. No man a judge in his own case. This maxim is strictly followed.

7. The court is the real forum of judicial proceedings.

Quasi-Judicial Functions

1. A lis inter parties is not an essential characteristic feature of quasi-judicial function.

2. The evidence is not taken on oath.

3. The rules of evidence, C.P.C., Cr.P.C. etc. are not strictly followed.

4. Court fee is not required to be paid.

5. These doctrines are not followed strictly.

6. Sometimes, it may be relaxed here.

7. It is only a trapping of a court, but in reality it is not a court.

Topic 4.4 – Administrative Tribunals, Advantages and Disadvantages of

Tribunal justice systems, Administrative Tribunal act 1985- Procedure and
powers of Administrative Tribunal, constitutional validity of Administrative
Tribunals
Administrative Tribunals
In Administrative law, the term ‘tribunal’ is used in a significant sense and refers to only the
adjudicatory bodies which lie outside the sphere of the ordinary judicial system. Technically
in India, the judicial powers are vested in the Courts which aims to safeguard the rights of the
individuals and promotes justice. Therefore, to institute an effective system of the judiciary
with fewer complexities, the judicial powers are delegated to the administrative authorities,
thus, giving rise to administrative tribunals or administrative adjudicatory bodies which holds
quasi-judicial features.

The 42nd Amendment to the Constitution introduced Part XIV-A which included Article 323A
and 323B providing for constitution of tribunals dealing with administrative matters and other
issues. According to these provisions of the Constitution, tribunals are to be organized and
established in such a manner that they do not violate the integrity of the judicial system given
in the Constitution which forms the basic structure of the Constitution.

The introduction of Article 323A and 323B was done with the primary objective of excluding
the jurisdiction of the High Courts under Article 226 and 227, except the jurisdiction of the
Supreme Court under Article 136 and for originating an efficacious alternative institutional
mechanism or authority for specific judicial cases.
The purpose of establishing tribunals to the exclusion of the jurisdiction of the High Courts
was done to reduce the pendency and lower the burden of cases. Therefore, tribunals are
organised as a part of civil and criminal court system under the supremacy of the Supreme
Court of India.

From a functional point of view, an administrative tribunal is neither an exclusively judicial

body nor an absolute administrative body but is somewhere between the two. That is why an
administrative tribunal is also called ‘quasi-judicial’ body.

Characteristics of Administrative Tribunals

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

1. Administrative tribunals must have statutory origin i.e. they must be created by any
statute.
2. They must have some features of the ordinary courts but not all.
3. An administrative tribunal performs the quasi-judicial and judicial functions and is
bound to act judicially in every circumstance.
4. They are not adhered by strict rules of evidence and procedure.
5. Administrative tribunals are independent and not subject to any administrative
interference in the discharge of judicial or quasi-judicial functions.
6. In the procedural matters, an administrative tribunal possesses the powers of a court
to summon witnesses, to administer oaths and to compel the production of
documents, etc.
7. These tribunals are bound to abide by the principle of natural justice.
8. A fair, open and impartial act is the indispensable requisite of the administrative
tribunals.
9. The prerogative writs of certiorari and prohibition are available against the decisions
of administrative tribunals.

Categories of Administrative Tribunals

Administrative Tribunals for service matter [Article 323A]

Article 323A provides the establishment of administrative tribunals by law made by

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

The establishment of such tribunals must be at the centre and state level separately for each
state or for two or more states. The law must incorporate the provisions for the jurisdiction,
power and authority to be exercised by tribunals; the procedure to be followed by tribunals;
the exclusion of the jurisdiction of all other courts except the Supreme Court of India.
Tribunals for other matters [Article 323B]

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

In the landmark case of L. Chandra Kumar v. Union of India[1], the court reached various
conclusions as to jurisdictional powers of the tribunal constituted under Articles 323A and
323B. The Supreme Court struck down clause 2(d) of Article 323A and clause 3(d) of Article
323B on the ground that they excluded the jurisdiction of the High Courts and the Supreme
Court under Article 226/227 and 32 respectively.

The SC ruled that the tribunals created under Article 323A and 323B would continue to be the
courts of the first instance in their respective areas for which they are constituted. The
litigants are not allowed to approach the High Courts directly by overlooking the jurisdiction
of the concerned tribunal.

No appeal for the decision of the tribunal would lie directly before the Supreme Court under
Article 136 but instead, the aggrieved party would be entitled to move the High Court under
Article 226 and 227 and after the decision of the Division Bench of the High Court, the party
may approach the Apex Court under Article 136.

Administrative Tribunal act 1985- Procedure and powers of Administrative

Tribunal, constitutional validity of Administrative Tribunals , Advantages and
Disadvantages of Tribunal justice systems

In pursuance of the provisions in Article 323A, Parliament passed the Administrative Tribunal
Act, 1985, providing for all the matters falling within the clause(1) of Article 323-A.

According to this Act, there must be a Central Administrative Tribunal (CAT) at the centre and
a State Administrative Tribunal (SAT) at the state level for every state.

The tribunal is competent to declare the constitutionality of the relevant laws and statutes.
The Act extends to, in so far as it is related to the Central Administrative Tribunal, to the whole
of India and in relation to the Administrative tribunals for states, it is applicable to the whole
of India except the State of Jammu and Kashmir (Section 1).

Objective for the establishment of Administrative Tribunals

The main purpose of the introduction of this act was :

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

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

According to Section 2 of the Administrative Tribunals Act, 1985, the act applies to all Central
Government employees except –

• The members of the naval, military or air force or any other armed forces of the Union
• Any officer or servant of the Supreme Court or any High Courts
• Any person appointed to the secretariat staff of either House of the Parliament.

Composition of the Tribunals and Bench

Section 4 of this Act describes the composition of the tribunals and bench. Each tribunal shall
consist of a Chairman, Vice Chairman, Judicial and Administrative members. Every bench must
include at least one judicial and one administrative member. The benches of the Central
Tribunal shall ordinarily sit at New Delhi, Allahabad, Calcutta, Madras, Bombay and such other
place as the Central Government specifies. The Chairman may transfer the Vice Chairman or
other members from one bench to another bench.

Jurisdiction of Central Tribunal

Section 14 states that the Central Tribunal from the day of the appointment shall exercise all
the jurisdiction, powers and authority in relation to the following matters which were within
the jurisdiction of other courts (except the Supreme Court) before the enactment of this Act:

1. Recruitment of any civil service of Union or All India service or civil post under the
Union or civilian employees of defence services;
2. All service matters of the above-mentioned employees, and also of employees of any
local or other authority within the territory of India or under the control of the
Government of India or any corporation or society owned or controlled by the
Government;
3. All service matters of such persons whose services have been placed by the State
Government or any local or other authority or any corporation at the disposal of the
Central Government.

Procedure and Powers of Tribunals

Section 22 of the Administrative Tribunals Act, 1985 lays down the powers and procedure of
tribunals discussed below-

1. A tribunal is not bound to follow the procedure laid down by the Code of Civil
Procedure, 1908. It has the power to regulate its own procedure but must abide by
the principle of natural justice.
2. A tribunal shall decide the applications and cases made to it as rapidly as possible and
every application shall be decided after scrutinizing the documents and written
submissions and perceiving the oral arguments.
3. Tribunals have the same powers as vested by the civil courts under the Code of Civil
Procedure, 1908, while trying a suit, with regard to the following subject-matter-
4. Summoning and enforcing the attendance of any person and examining him on oath;
5. Production of documents;
 6. Receiving evidence on affidavits;
7. Ask for any public record or document from any office under Section 123 and 124 of
the Indian Evidence Act, 1872;
8. Issuing commissions for the examination of witnesses and documents;
9. Reviewing its decisions;
10. Deciding the case ex-parte;
11. Setting aside any order passed by it ex-parte;
12. Any other matter prescribed by the Central Government.
13. Leading Case Laws

Case: S.P. Sampath Kumar v. Union of India[2]

Facts: The constitutional validity of the Administrative Tribunals Act, 1985, was
predominantly challenged on the ground that this Act excludes the jurisdiction of High Courts
under Articles 226 and 227 with regard to service matters and hence, destroyed the concept
of judicial review which was an essential feature of the Indian Constitution.

Judgment: A five-Judge Bench of the Court upheld the validity of the Act except Section
6(1)(c). The court held that although this Act has excluded the jurisdiction of judicial review
exercised by the High Courts in the service matters it has not entirely excluded the concept
of judicial review. The jurisdiction of the Supreme Court under Article 32 and 136 has not
been excluded by this Act and kept unscathed.

Thus, there still exists an authority where matters of injustice can be entertained by judicial
review. The judicial review which is the part of the basic structure of the Indian Constitution
can be taken away from a particular area only if an alternative effectual institutional
mechanism or authority is provided.

However, Section 6 (1)(c) of the Act was held to be unconstitutional as it gave unrestricted
power to the Government to appoint the Chairman, Vice-Chairman and other members of
the tribunals. These appointments must be made by the Government in a meaningful and
effective manner only after consulting the Chief Justice of India.

The court recommended that the term of 5 years prescribed under the Act for Chairman, Vice-
Chairman and other members of the tribunal is not rational because it would act as dissuasion
for the good and generous people to accept the job in the tribunal and should, therefore, be
reasonably extended.

The directions given by the Supreme Court came into effect through the Administrative
Tribunals (Amendment) Act, 1987.

Advantages of Administrative Tribunals

The concept of administrative tribunals was introduced because it has certain advantages
over ordinary courts. Few of them are mentioned below-

• Flexibility: The introduction of administrative tribunals engendered flexibility and

versatility in the judicial system of India. Unlike the procedures of the ordinary court
 which are stringent and inflexible, the administrative tribunals have a quite informal
and easy-going procedure.

• Speedy Justice: The core objective of the administrative tribunal is to deliver quick and
quality justice. Since the procedure here is not so complex, so, it is easy to decide the
matters quickly and efficiently.

• Less Expensive: The Administrative Tribunals take less time to solve the cases as
compared to the ordinary courts. As a result, the expenses are reduced. On the other
hand, the ordinary courts have cumbrous and slow-going, thus, making the litigation
costly. Therefore, the administrative tribunals are cheaper than ordinary courts.

• Quality Justice: If we consider the present scenario, the administrative tribunals are
the best and the most effective method of providing adequate and quality justice in
less time.
• Relief to Courts: The system of administrative adjudication has lowered down the
burden of the cases on the ordinary courts.

Drawbacks of Administrative Tribunals

Although, administrative tribunals play a very crucial role in the welfare of modern society,
yet it has some defects in it. Some of the criticisms of the administrative tribunal are discussed
below-

• Against the Rule of Law: It can be observed that the establishment of the
administrative tribunals has repudiated the concept of rule of law. Rule of law was
propounded to promote equality before the law and supremacy of ordinary law over
the arbitrary functioning of the government. The administrative tribunals somewhere
restrict the ambit of the rule of law by providing separate laws and procedures for
certain matters.

• Lack of specified procedure: The administrative adjudicatory bodies do not have any
rigid set of rules and procedures. Thus, there is a chance of violation of the principle
of natural justice.

• No prediction of future decisions: Since the administrative tribunals do not follow

precedents, it is not possible to predict future decisions.

• Scope of Arbitrariness: The civil and criminal courts work on a uniform code of
procedure as prescribed under C.P.C and Cr.P.C respectively. But the administrative
tribunals have no such stringent procedure. They are allowed to make their own
procedure which may lead to arbitrariness in the functioning of these tribunals.

• Absence of legal expertise: It is not necessary that the members of the administrative
tribunals must belong to a legal background. They may be the experts of different
fields but not essentially trained in judicial work. Therefore, they may lack the required
legal expertise which is an indispensable part of resolving disputes.