ADMINISTRATIVE LAW

POINTERS

Definitions of Administrative law

Definitions

1. Dicey in 19th century defines it as. Firstly, portion of a nation’s legal system which
determines the legal statues and liabilities of all State officials. Secondly, defines the
right and liabilities of private individuals in their dealings with public officials.
Thirdly, specifies the procedure by which those rights and liabilities are enforced

This definition concentrates mainly on judicial remedies against the state officials and
excludes other aspects of administrative law.

2. Jennings has defined Administrative Law as “the law relating to the administration. It
determines the organization, powers and duties of administrative authorities.”
His definition is too broad and not specific as it does not differentiate between
administrative law and constitutional law. It even excludes the manner of exercise of
power and duties.

3. Davis has defined administrative law in the following words: “ Administrative Law is
the law concerning the powers and procedures of administrative agencies including
specially the law governing judicial review of administrative action.” According to
him administrative agencies are government authorities other than a coirt and other
legislative body which affects te right of private parties either through adjudication or
rule making.
Therefore this definition does not includepure discretionary functions not falling
within the category of legislative or quasi judicial.
4. Friedman, Administrative Law includes the following. • The legislative powers of
the administration both at common law and under a vast mass of statutes. • The
administrative powers of the administration. • Judicial and quasi-judicial powers of
the administration, all of them statutory. • The legal liability of public authorities. •
The powers of the ordinary courts to supervise the administrative authorities.
5. Austin has defined administrative Law. As the law, which determines the ends and
modes to which the sovereign power shall be exercised. In his view, the sovereign
 power shall be exercised either directly by the monarch or directly by the subordinate
political superiors to whom portions of those are delegated or committed in trust
6. Wade , Administrative law is “ the law realting to the control of Governmental
power”.
7. Upendra Baxi – “Administrative law is a study of the pathology of power in a
developing society”
8. The Indian Institution of Law has defined Administrative Law in the following
words; “ Administrative Law deals with the structure, powers and functions of organs
of administration, the method and procedures followed by them in exercising their
powers and functions, the method by which they are controlled and the remedies
which are available to a person against them when his rights are infringed by their
operation.”

Concept of rule of law

As per A.V.Dicey, rule of law meant the virtual exclusion of official discretion which he
equated with arbitrary power. According to him, rule of law means “ the absolute supremacy
of regular law as opposed to influence of arbitrary power and excludes the existence of
arbitrariness or prerogative, or even wide discretionary authority on the part of the
government.” He said that rule of law has three meanings :

1. wherever there is discretion there is room for arbitrariness i.e. discretion implies
absence of rules.
2. No man is above law i.e. equality before law or equal subjection of all classes. Every
man whatever be his rank or condition. is subject to the ordinary law of the realm and
amenable to the jurisdiction of the ordinary tribunals.
3. Protection of individual liberties - the general principle of the constitution are the
result of judicial decisions determining the rights of private persons in particular cases
brought before the court. He criticised the system of droit administrative prevailing in
France where there were separate administrative tribunal for deciding cases between
government and the citizens.
4. In an early case S.G. Jaisinghani V. Union of India and others, (AIR 1967 SC 1427)
the Supreme Court portrayed the essentials of rule of law in a very lucid manner. It
observed: “ The absence of arbitrary power is the first essential of the rule of law
upon which our whole constitutional system is based. In a system governed by rule of
law, discretion when conferred upon executive authorities must be continued within
clearly defined limits. The rule of law from this points of view means that decisions
should be made by the application of known principles and rules and, in general such
decision should be predictable and the citizen should know where he is. If a decision
is taken without any principle or without any rule it is unpredictable and such a
decision is antithesis of a decision taken in accordance with the rule of law”. The
Supreme Court in a case, namely, Supreme Court Advocates on Record
Association V. Union of India, (AIR 1994 SC 268 at p.298) reiterated that absence
of arbitrariness is one of the essentials of rule of law. The Court observed. “For the
rule of law to be realistic there has to be rooms for discretionary authority within the
operation of rule of law even though it has to be reduced to the minimum extent
necessary for proper, governance, and within the area of discretionary authority, the
existence of proper guidelines or norms of general application excludes any arbitrary
exercise of discretionary authority. In such a situation, the exercise of discretionary
authority in its application to individuals, according to proper guidelines and norms,
further reduces the area of discretion, but to that extent discretionary authority has to
be given to make the system workable. The recent expansion of rule of law in every
field of administrative functioning has assigned it is a place of special significance in
the Indian administrative law. The Supreme Court, in the process of interpretation of
rule of law vis-àvis operation of administrative power, in several cases, emphasized
upon the need of fair and just procedure, adequate safeguards against any executive
encroachment on personal liberty, free legal aid to the poor and speedy trail in
criminal cases as necessary adjuncts to rule of law. Giving his dissenting opinion in
the Death penalty case, Mr. Justice Bhagwati explains fully the significance of rule of
law in the following words: The rule of law permeates the entire fabric of the
Constitution and indeed forms one of its basic features. The rule of law excludes
arbitrariness, its postulate is ‘intelligence without passion’ and reason free from
desire. Wherever we find arbitrariness or unreasonableness there is denial of the rule
of law. Law in the context of rule of law does not mean any law enacted by legislative
authority, howsoever arbitrary, despotic it may be, otherwise even in dictatorship it
would be possible to say that there is rule of law because every law made by the
dictator, however arbitrary and unreasonable, has to be obeyed and every action has to
be taken in conformity with such law. In such a case too even where the political set-
up is dictatorial it is the law that governs the relationship between men
Doctrine of separation of powers

he theory of Doctrine of Separation of Power was first propounded by Montesquieu, a French

scholar in and 1747 published in his book ‘Espirit des Louis’ (The spirit of the laws).
Montesquieu found that if the power is concentrated in a single person’s hand or a group of
people then it results in a tyrannical form of government. To avoid this situation with a view
to checking the arbitrariness of the government he suggested that there should be clear-cut
division of power between the three organs of the state i.e. Executive, Legislative and the
Judiciary.

Further Montesquieu explained the doctrine in his own words:

“When the legislative and executive powers are united in the same person, or in the same
body or magistrates, there can be no liberty. Again, there is no liberty if the judicial power is
not separates from the legislative and executive powers. Where it joined with the legislative
power, the life and liberty of the subject would be exposed to arbitrary control, for the Judge
would then be the legislator. Where it joined with the executive power, the Judge might
behave with violence and oppression. There would be an end of everything, were the same
man or same body, whether of the nobles or of the people, to exercise those three powers,
that of enacting laws, that of executing the public resolutions, and of trying the causes of
individuals.”

The theory of separation of powers signifies three formulations of structural classification of

governmental powers:

 The same person should not form part of more than one of the three organs of the
government. For example, ministers should not sit in Parliament.
 One organ of the government should not interfere with any other organ of the
government.
 One organ of the government should not exercise the functions assigned to any other
organ.
The doctrine e, however, is a dilutorydoctrine.e. it has many exceptions. The doctrine in
its classical sense cannot be applied as it is to the modern government structure as the
powers of the government cannot be kept on a watertight compartment nor can any
government run on strict separation of powers.

 the first judgment in relation to Doctrine of separation of power was in Ram Jawaya v
state of Punjab[i]. The court in the above case was of the opinion that the doctrine of
separation of power was not fully accepted in India. Further the view of Mukherjea J.
adds weight to the argument that the above said doctrine is not fully accepted in India.
He states that:
 “The Indian Constitution has not indeed recognized the doctrine of separation of
powering its absolute rigidity but the functions of the different parts or branches of the
government have been sufficiently differentiated and consequently it can very well be
said that our constitution does not contemplate assumption, by one organ or part of
the state, of functions that essentially belong to another”.
 Then in Indira Nehru Gandhi v. Raj Narain[ii], where the dispute regarding Prime
Minister’s election was pending before the Supreme Court, it was held that
adjudication of a specific dispute is a judicial function which parliament, even under
constitutional amending power, cannot exercise. So, the main ground on which the
amendment was held ultra vires was that when the constituent body declared that the
election of Prime Minister wouldn’t be void, it discharged a judicial function that
according to the principle of separation it shouldn’t have done. The place of this
doctrine in Indian context was made a bit clearer after this judgment.
 The Supreme Court in Keshvananda Bharti v Union of India[iii] was of the view that
amending power was subject to the basic features of the Constitution. And hence, any
amendment tampering these essential features will be struck down as unconstitutional.
Beg, J. added that separation of powers is a part of the basic structure of the
constitution. None of the three separate organs of the republic can take over the
functions assigned to the other. Hence this further confirmed the opinion of the court
in relation to the doctrine of separation of power.
DELEGATED LEGISLATION

1. Need for delegated legislation

Delegated legislation means legislation by authorities other than the Legislature, the
former acting on express delegated authority and power from the later i.e law making
that takes place outside the legislature and is expressed as rule, regulations, orders,
bye-laws, directions, scheme etc. it is also called as subordinate legislation.
Delegation is considered to be a sound basis for administrative efficiency and it does
not by itself amount to abdication of power if restored to within proper limits. The
delegation should not, in any case, be unguided and uncontrolled. Parliament and
State Legislatures cannot abdicate the legislative power in its essential aspects which
is to be exercised by them. It is only a nonessential legislative function that can be
delegated and the moot point always lies in the line of demarcation between the
essential and nonessential legislative functions. The essential legislative functions
consist in making a law. It is to the legislature to formulate the legislative policy and
delegate the formulation of details in implementing that policy. Discretion as to the
formulation of the legislative policy is prerogative and function the legislature and it
cannot be delegated to the executive. Discretion to make notifications and alterations
in an Act while extending it and to effect amendments or repeals in the existing laws
is subject to the condition precedent that essential legislative functions cannot be
delegated authority cannot be precisely defined and each case has to be considered in
its setting. In order to avoid the dangers, the scope of delegation is strictly
circumscribed by the Legislature by providing for adequate safeguards, controls and
appeals against the executive orders and decisions.

2. Types of delegated legislation

a. Enabling Act
b. Extension and Application Act
c. Dispensing and Suspending Act
d. Alteration Act includes modification and amendment
e. Supplementary Acts
f. Taxing Acts
g. Exceptional Delegation
 h. Sub-Delegated Legislation
3. Constitutionality of delegated legislation as per In Re Delhi Laws Act Case
It cannot be said that an unlimited right of delegation is inherent in the legislative
power itself.. delegated legislation is not an inherent power but is an ancillary power.
The legislature must remain in its own hands the essential legislative functions which
consist in deckaring the legislative policy and laying down the standard which is to be
enacted into a rule of law. The power to modify a law already in existence in a
particular area can be delegated but not the power to amend or repeal the law in
particular area.
4. What is an essential legislative function
a. Skeleton legislation – it is generally designed to leave the policy decision to the
executives. Bagla v. State of MP, 1954 SC
b. Power of exclusion and inclusion – statutes confer powers on executive to bring
individual bodies or commodities within a purview of a statute or to exempt them
from it.
c. Modification of statute – the power to modify Acts has mostly been delegated as a
sequel to the power of extension and inclusion of laws. moreover, it sometimes
also include the power to remove difficulties. (Henry VIII Clause – clause in a
Bill that enable ministers to amend or repeal provisions in an Act of Parlaiment
using secondary legislation, which is subject to varying degrees of parliamentary
scrutiny.
d. Abdication test – given by Justice K.K.Mathew, in the case of Gwalior Rayon
Mills v. AssttCommnr Sales Tax, 1974 SS. It was propounded to determine the
constitutionality of delegated legislation. As long as legislature can repeal the
enabling Act delegating law making power, it does not abdicate its legislative
function and therefore the delegation must be considered as valid no matter how
so ever broad and general the delegation may be.
e. Retrospective operation of delegated legislation
5. Conditional legislation – in this the legislature makes the law but leaves it to the
executive to bring the Act into operation when conditions demanding such operation
are obtained. The executive ahs to decide whether such conditions obtain and when it
is satisfied that they do, it should issue a notification bringing the law into operation.

CONTROL OF DELEGATED LEGISLATION

1. Parliamentary control by laying – legislative control reinforces democracy by having
delegated legislation reviewed by people’s representativesthere are 3 types of control
in India –
a. Direct general control – exercised through debate, questions, notices etc, all the
matters are analysed by MP’s
b. Direct Special control – it is exercised through the technique of laying on the table
of the House rules and regulations framed by the executive:
a. Simple laying – rules and regulations come into effect as soon as they are
laid. The main aim is hust to inform the House about the rules.
b. Laying subject to negative resolution–the rules have immediate effect but they
are subject to annulment within 40 days.
c. Laying subject to affirmative - the rules shall have no effect or force unless
approved by a resolution of each House of Parliament.

The consequences of non-compliance with the laying provision depend on

whether the provisions in the enabling Act are directory or mandatory.In
D.K.Krishna’s case(1956 AP HC), the court observed that where the statute
make the laying of rules a condition precedent or the resolution of the Parliament
condition subsequent, there is no difficulty, as in the former case, the rule has no
legal force till the condition precedent is complied with and in the latter case, it
ceases to have force from the date of non-compliance with the condition
subsequent. But in case of a statute directing rules to be laid without any condition
attached, the rule is only directory.

c. Indirect Control – the control exercised by the Parliament through its committees.
2. Procedural control by publication and consultation
Case – Harla v. State of Rajasthan (1951 SC) - held that a lawcanot be enforced
unless published.
Consultation gives the chance to the affected interests to have their say and bringbinto
effect the administrative decisions.
3. Judicial control judicial review is a very effective tool.
a. Enabling Act is ultra vires the Constitution
b. Substantive ultra vires
When a piece of delegated legislation is declared invalid either because it is
beyond the scope of the authority conferred by the statute or enabling Act or is in
 conflict with the delegating statute, it may be called a sground of substantive ultra
vires,.
c. Procedural ultra vires
d. It is unreasonable, arbitrary, discriminatory
e. It is malafide

ADMINITRATIVE DISCRETION

1. Administrative discretion defined, relation with judicial behaviour

Administrative discretion refers to the power to choose between courses of conduct in
the administration of an office or a duty pertaining thereto. It is the exercise of
professional expertise and judgment, as opposed to strict adherence to regulations or
statutes, in making a decision or performing official acts or duties.
Judicial control mechanism of administrative action is exercised at two stages:
a. Control at the stage of litigation
b. Control at stage of Exercise of Discretion
2. Abuse of discretion
a. Malafides – dishonest intention
Pratap Singh v. State of Punjab (1964 SC)
S.Sadanandan v. State of Karnataka (1966 SC)
b. Improper purpose/ irrelevant consideration – also called as colourable exercise of
power. If a statute confers a power for one purpose, its use for a different purpose
will not be regarded as valid exercise of power and the same may be quashed.
c. Leaving out relevant consideration – the detailed reasons are needed to be given
from where it can be deduced that the authority took action after ignoring material
considerations-
Case – Rampur Distillery Co. v. Company Law Board(1970 SC)
d. Unreasonable or arbitrary judgments -
e. Doctrine of promissory estoppel/ doctrine of legitimate expectation –
The doctrine of ‘Promissory Estoppel’ is, one of the four kinds of ‘Estoppels’
evolved by the Equity Courts in England, It is an equitable principle which applies
to public authorities”. The doctrine of promissory estoppel is applied within
English contract law. It is used to prevent a promisor from enforcing his legal
rights. In English law, consideration is very important, and the promise made
without consideration is not enforceable. Where one party has by his words or
conduct made to the other a clear promise which is intended to create legal
relations or affect a legal relationship to arise in a future, knowing or intending
that ir would be acted upon by the other party to whom the promise is made and it
is in fact so acted making it and he would not be entitled to go back upon it, if it
will be unequitable to allow him to do so.
Cases – Express Newspapers(P)Ltd. V. UOI(1986 SC)
In Vasant Kumar v. Board of Trustee, Port of Bombay (1991SC), the SC held that
if an official acted without any authority and gave a promise, the authority on
whose behalf promise has been given will not be bound by it.
LEGITIMATE EXPECTATION
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
by law in the strict sense of the terms though they had suffered a civil
consequence because their legitimate expectation has been violated or frustrated.
The doctrine of legitimate expectation is the latest discovery of the Indian Law,
and that has been viewed as one of the grounds of judicial review, and it has
assumed the position of a significant doctrine of Public Law in almost all
jurisdictions to check misuse or abuse of public power.Legitimate Expectation is
enrolled by the courts for the review of administrative actions. An expectation or
interest in a public body may arise due to a long-standing practice or a promise of
being treated in a certain way by an administrative authority then the courts apply
the principles of fairness and reasonableness in judicial review proceedings.
This doctrine can be traced to the case of Sehmidt v. Secretary of Home
Affiars(1969). In Jitendra Kumar v. State of Harayana(2008 SC), it was held that
this doctrine is based on right. It is grounded in the rule of law as requiring
regularity, predictability and certainty in the Government’s dealings.
When a public authority has promised to follow a certain procedure, it is in the
interest of good administration that it should act fairly and should implement its
promise, so long as the implementation does not interfere within its statutory duty.
The essence of the doctrine is fair play in action. In the case of UOI v. Hindustan
Development Corpn (1993 SC) , the court held that if a denial of legitimate
expectation in a given case amounts to denial of a right guaranteed or is arbitrary,
discriminatory, unfair or biased, gross abuse of power or violation of principles of
natural justice, the same can be questioned on the grounds of Article 14 but a
 claim based on a mere legitimate expectation without anything anymore can not
ipso facto give a right to invoke theses principles. It can be one of the grounds to
consider but the court must life veil to see whether the decision is violative of any
of the principles that requires interference.
f. Subjective satisfaction
The satisfaction of the executive must be based on relevant and non-extraneous
considerations. The satisfaction of the executive must be based on the right tests
and right construction of a statute, and on materials which had probative values
and were such as a rational and prudent human being would consider connected
with the fact in respect of which the satisfaction was to be reached.
3. Non-application of mind
a. Acting under dictation – authority acts ubder the dictation of the superior authority
and does not consider the matter itself i.e. doest not take action according to its
own judgment
b. imposing fetters on exercise of discretion – where a statute has conferred power
on authority to apply a standard, it is expected of it to apply from case to case and
to fetter discretion of rules or policy to be followed by its uniformly in all cases.
Each case should be considered on its own merits.
c. Acting without due care
d. Sub delegation of power – transfer of power from a superior authority to a
subordinate. The sub- delegation may take place when the law either expressly or
impliedly provides for such a possibility. In Ganpati Singh Ji v. Sate of Ajmer
(1955 SC), the act of Chief Commissioner delegating his poer to district
Magistrate was held to be ultra vires.
4. Judicial review of Administrative discretion
a. Doctrine of proportionality/Wednesbury
In the case of Coimbatore Distt. Central Coop Bank v. Employees Association
(2007 SC), it was observed that the doctrine of Proportionality includes the test of
balancing and necessity. The Balancing tests permit scrutiny of punishments on
infringement of rights, interests and a manifest imbalance of relevant
considerations. The Necessity test requires infringement of fundamental rights to
leave restrictive alternative i.e. course of adopted is atleast restrictive of
fundamental rights.
 It even requires the court to judge whether the cation taken was really needed asa
well as it was within the range of courses of action which could reasonably be
followed.
Doctrine of Wednesbury
In the case of Rameshwar Prasad v. UOI(2006 SC) the court observed
“The Wednesbury principle is often misunderstood to mean that any
administrative decision which is regarded by the Court to be unreasonable must be
struck down. The correct understanding of the Wednesbury principle is that a
decision will be said to be unreasonable in the Wednesbury sense if (i) it is based
on wholly irrelevant material or wholly irrelevant consideration, (ii) it has ignored
a very relevant material which it should have taken into consideration, or (iii) it is
so absurd that no sensible person could ever have reached to it.”
Om Prakash v.UOI (2000 SC) the court observed:

“(a) Wednesbury principle:

Lord Greene said in 1948 in the Wednesbury case that when a statute gave discretion to an
administrator to take a decision, the scope of judicial review would remain limited. He said
that interference was not permissible unless one or other of the following conditions were
satisfied-namely the order was contrary to law, or relevant factors were not considered, or
irrelevant factors were considered; or the decision was one which no reasonable person could
have taken. These principles were consistently followed in UK and in India to judge the
validity of administrative action. It is equally well known that in 1983, Lord Diplock in
Council for Civil Services Union v. Minister of Civil Services, (1983) 1 AC 768 (called the
GCHQ case) summarised the principles of judicial review of administrative action as based
upon one or other of the following-viz. Illegality, procedural irregularity and irrationality. He,
however, opined that 'proportionality' was a 'future possibility.'

(b) Proportionality:

The principle originated in Prussia in the nineteenth Century and has since been adopted in
Germany, France and other European countries. The European Court of Justice at
Luxembourg and the European Court of Human Rights at Strasbourg have applied the
principle while judging the validity of administrative action. But even long before that, the
Indian Supreme Court had applied the principle of 'proportionality' to legislative action since
1950, as stated in detail below.

By 'proportionality', we mean the question whether, while regulating exercise of fundamental

rights, the appropriate or least restrictive choice of measures has been made by the legislature
or the administrator so as to achieve the object of the legislation or the purpose of the
administrative order, as the case may be. Under the principle, the Court will see that the
legislature and the administrative authority 'maintain a proper balance between the adverse
effects which the legislation or the administrative order may have on the rights, liberties or
interests of persons keeping in mind the purpose which they were intended to serve'. The
legislature and the administrative authority are, however, given an area of discretion or a
range of choices but as to whether the choice made infringes the rights excessively or not is
for the Court. That is what is meant by proportionality.”

b. Proportionality and punishments in service law

Ranjit thakur v. UOI(1987 SC), the court referred to the doctrine of
proportionality but observed that punishment was shockingly disproportionate to
the misconduct proved.
OmPrakash v. UOI (2000 SC), it was observed as under:

“ Classification test under Article 14:Initially, our Courts, while testing legislation
as well as administrative action which was challenged as being discriminatory under Article
14, were examining whether the classification was discriminatory, in the sense whether the
criteria for differentiation were intelligible and whether there was a rational relation between
the classification and the object sought to be achieved by the classification . It is not
necessary to give citation of cases decided by this court where administrative action was
struck down as being discriminative. There are numerous. (ii) Arbitrariness test under Article
14:

But, in E.P. Royappa v. State of Tamil Nadu, [1974] 4 SCC 31, Bhagwati, J. laid down
another test for purposes of Article 14. It was stated that if the administrative action was
'arbitrary', it could be struck down under Article 14. This principle is now uniformly followed
in all Courts more rigorously than the one based on classification. Arbitrary action by the
administrator is described as one that is irrational and not based on sound reason. It is also
described as one that is unreasonable.

(b) If, under Article 14, administrative action is to be struck down as discriminative,
proportionality applies and it is primary review. If it is held arbitrary, Wednesbury applies
and it is secondary review:

PRINICIPLES OF NATURAL JUSTICE

1. Administrative adjudication – it is th resultant outcome of an intensive form of

government ans consequential socialization of law. It provides a system of
adjudication which is cheap, informal, rapid, unlike the traditional courts. But still
facesa lot of problems as unsutematic system of appeal, invisibility and anonymity of
decisions, unpredictable decisions as they may not follow the precedent etc.
2. Rules of Natural Justice
On the case of Canara Bank v. A.K.Awashthy (2005 SC), the court observed that
“Natural justice is another name for commonsense justice. Rules of natural justice are
not codified canons. But they are principles ingrained into the conscience of man.
Natural justice is the administration of justice in a commonsense liberal way. Justice
is based substantially on natural ideals and human values. The administration of
justice is to be freed from the narrow and restricted considerations which are usually
associated with a formulated law involving linguistic technicalities and grammatical
niceties. It is the substance of justice which has to determine its form. The expressions
``natural justice'' and ``legal justice'' do not present a water-tight classification. It is
the substance of justice which is to be secured by both, and whenever legal justice
fails to achieve this solemn purpose, natural justice is called in aid of legal justice.
Natural justice relieves legal justice from unnecessary technicality, grammatical
pedantry or logical prevarication. It supplies the omissions of a formulated law. As
Lord Buckmaster said, no form or procedure should ever be permitted to exclude the
presentation of a litigants. defence. The adherence to principles of natural justice as
recognized by all civilized States is of supreme importance when a quasi-judicial
body embarks on determining disputes between the parties, or any administrative
action involving civil consequences is in issue. These principles are well settled. The
first and foremost principle is what is commonly known as audi alteram partem rule.
It says that no one should be condemned unheard. Notice is the first limb of this
principle. It must be precise and unambiguous. It should appraise the party
determinatively the case he has to meet. Time given for the purpose should be
adequate so as to enable him to make his representation
In the absence of a notice of the kind and such reasonable opportunity, the order
passed becomes wholly vitiated. Thus, it is but essential that a party should be put on
notice of the case before any adverse order is passed against him. This is one of the
most important principles of natural justice. It is after all an approved rule of fair play.
The concept has gained significance and shades with time. When the historic
document was made at Runnymede in 1215, the first statutory recognition of this
principle found its way into the ``Magna Carta''. The classic exposition of Sir Edward
Coke of natural justice requires to ``vocate interrogate and adjudicate''
Principles of natural justice are those rules which have been laid down by the Courts
as being the minimum protection of the rights of the individual against the arbitrary
procedure that may be adopted by a judicial, quasi- judicial and administrative
authority while making an order affecting those rights. These rules are intended to
prevent such authority from doing injustice. What is meant by the term `principles of
natural justice' is not easy to determine. Lord Summer (then Hamilton, L.J.) in Ray v.
Local Government Board, (1914) 1 KB 160 at p.199:83 LJKB 86) described the
phrase as sadly lacking in precision. In General Council of Medical Education &
Registration of U.K. v. Sanckman, (1943) AC 627: [1948] 2 All ER 337, Lord Wright
observed that it was not desirable to attempt `to force it into any procusteam bed' and
mentioned that one essential requirement was that the Tribunal should be impartial
and have no personal interest in the controversy, and further that it should give `a full
and fair opportunity', to every party of being heard.
Concept of natural justice has undergone a great deal of change in recent years. Rules
of natural justice are not rules embodied always expressly in a statute or in rules
framed thereunder. They may be implied from the nature of the duty to be performed
under a statute. What particular rule of natural justice should be implied and what its
context should be in a given case must depend to a great extent on the fact and
circumstances of that case, the frame-work of the statute under which the enquiry is
held. The old distinction between a judicial act and an administrative act has withered
away. Even an administrative order which involves civil consequences must be
consistent with the rules of natural justice. Expression `civil consequences'
encompasses infraction of not merely property or personal rights but of civil liberties,
material deprivations, and non-pecuniary damages. In its wide umbrella comes
everything that affects a citizen in his civil life.
a. Rule against bias
Nemo Judex in Causa Sua i.e. no one should be made a judge in his own cause.
This rule states that the adjudicator must not have any proprietary interest in the
matter being adjudicated upon. The courts have formulated two tests of
disqualification for likelihood of bias:
1. Actual bias – looks into outward appearance
2. Reasonable likelihood of bias. – court’s own evaluation of
poossiblities.

Are 3 types of bias:

1. Pecuniary bias – any financial interest will vitiate administrative

action.
 2. Personal bias- Mineral Development Ltd. V. State of Bihar(1960 SC),
there was a political rivalry between the petitioner and the minister due
to which minister cancelled the petitioner’s license.
3. Bias as to subject matter – the mere involvement will not viatiate the
proceedings rather there should be alikelihood of bias eg. Connection
with the issues, departmental bias, pre-judgment of issues.
The burden of proof is very heavy on the person who alleges it.

G N Nayak v. Goa University (2002 SC), Bias may be generally defined as partiality or
preference. It is true that any person or authority required to act in a judicial or quasi-judicial
matter must act impartially. "If however, 'bias' and 'partiality' be defined to mean the total
absence of preconceptions in the mind of the judge, then no one has ever had a fair trial and
no one ever will. The human mind, even at infancy, is no blank piece of paper. We are born
with predispositions and the processes of education, formal and informal, create attitudes
which precede reasoning in particular instances and which, therefore, by definition, are
prejudices".

It is not every kind of bias which in law is taken to vitiate an act. It must be a prejudice which
is not founded on reason, and actuated by self interest whether pecuniary or personal.
Because of this element of personal interest, bias is also seen as an extension of the principle
of natural justice that no man should be a judge in his own cause. Being a state of mind, a
bias is sometimes impossible to determine. Therefore, the Courts have evolved the principle
that it is sufficient for a litigant to successfully impugn an action by establishing a reasonable
possibility of bias or proving circumstances from which the operation of influences affecting
a fair assessment of the merits of the case can be inferred.

In A.K. Kraipak and Others V. Union of India and Others 1969 (2) SCC 262, the Selection
Committee had been constituted under Regulation 3 of the Indian Forest Service (Initial
Recruitment) Regulations, 1966 for the purpose of making selections to any State cadre of the
All India Forest Service. The Chief Conservator of Forests was selected. Setting aside the
selection, this Court held that the Chief Conservator of Forests being himself one of the
candidates seeking to be selected to the All India Forest Service should not have been
included as a member of the Selection Board because of the possibility of bias.

b. Rule of fair hearing

Audi Altram Partem i.e. a person must be given an opportunity to defend oneself.
Itha many stages –
a. Right to notice – a person must be given notice which should be adequate and
contain time, place and nature of hearing; legal authority under which it is
held, statant of specific charges or grounds.
b. Right to present case and evidence
 c. Right to rebut adverse evidence by cross- examination, legal representation by
a legal counsel
d. The decisions should be reasoned and must be evidenced by a peaking order
which enumerates the reasons for coming to a particular conclusion.
(S.N.Mukherjee v. UOI(1990 SC)
e. Post decisional hearing – where an action is required to be taken immediately
without giving an advance notice and opportunity to be heard, can a post
decisional hearing mitigate the injustice caused by the lack of post decisional
fearing. [K.I.Shephard v. UOI (1988 SC)]

4. Exceptions to the rule of natural justice

a. exclusion in emergency
b. exclusion in classes of confidentiality
c. exclusion in case of routine matters
d. exclusion in case of interim preventive measure
e. exclusion in case of legislative action

JUDICIAL REVIEW: WRITS

1. Difference between review and appeal – in the case of appeal the court is concerned
with the merits of the decision but in judicial review the court is concerned with the
decision making process
2. Powers of JR of SC/HC
3. Ouster clauses – Finality of Administrative actions – a clause is inserted in the statute
by which an administrative authority decision is final and jurisdiction of the court is
ousted. Also called as finality clause, private clause, exclusion clause etc.
However, in the case of Durga Shankar v. Raghuraj (1954 SC), the court held that no
finality clause contained in any statute and expressed in any language can bar the
judicial review available under Articles 32, 226, 227, 136 of the Constitution.
4. Limits of Judicial review
a. Locus standi – a petition under Article 32 can be filed by a person whose
fundamental right is infringed. The court now permits Social action litigation at
the instance of public spirited citizens for the enforcement of any constitutional or
legal right of any person or group of persons who can not approach the court for
relief
 b. Res judicata
c. Unreasonable delay
d. Exhaustion of Alternative remedies
5. Writs

Tortious liability of State and compensation

Ombudsman

Tribunal and quasi judicial authorities, judicial control over them

1. Distinction between tribunal and courts

The term ‘tribunal’ refers to adjudicatory bodies outside the sphere of ordinary courts.
There are 3 essentials of the tribunal
a. It must have the accessories of the court
b. It should be constituted by the court
c. It should be invested with the State’s inherent judicial officer.

The points presented below explain the differences between tribunal and court:

1. Tribunals mean the body of members who are elected to settle the controversies
arising under certain special matters. On the other extreme court is understood as the
judicial institution which is established by the constitution to administer justice, by
legislation.
2. The decision given by the tribunals on a particular matter is known as the award. As
against this, the court’s decision is known as judgement, decree, conviction or
acquittal.
3. While tribunals are formed to deal with specific matters, courts deal with all types of
cases.
4. The tribunal can be a party to the dispute, whereas a court cannot be a party to the
dispute. A court is impartial in the sense that it acts as an arbitrator between the
defendant and prosecutor.
5. The court is presided over by the judge, panel of judges, i.e. jury, or magistrate.
Unlike, tribunals are headed by a chairman and other judicial members, elected by the
appropriate authority.
6. There is no code of procedure in a tribunal, but a court has a proper code of
procedure, which must be followed strictly.
 2. Tribunals under constitution
Tribunals were added in the Constitution by Constitution (Forty-second Amendment)
Act, 1976 as Part XIV-A, which has only two articles viz. 323-A and 323 – B
According to Article 323A, administrative tribunals can adjudicate the disputes and
complaints with respect to the recruitment and conditions of service and posts at
Union Level, State Level as well as Any local or other authority within the territory of
India.
Article 323A provides that a law made by the parliament may provide for
establishment of an Administrative Tribunal for the Union and a
separateAdministrative Tribunal for each state or two or more states. These tribunals
exclude the jurisdiction of all courts except the special jurisdictionthe Supreme Court
in Article 136. The matters for these tribunals are as follows: Recruitment and
conditions of service of persons appointed to public in Union as well as States as well
as Local authorities
Recruitment and conditions of service of persons appointed to any corporation owned
or controlled by the Government.
Article 323 B empowers the parliament or state legislatures to set up tribunals for
matters other than those mentioned above. The matters to be covereThe matters to be
covered by such tribunals are as follows: Levy, assessment, collection and
enforcement of any tax Foreign exchange, import and expocross customs frontiers;
Industrial and labour disputes; Matters connected with Land reforms covered by
Article 31A
Elections to either House of Parliament or the House or either House of the
Legislature of a State, but excluding the matters which include Delimitatiof
constituencies Matters which can be only questions via election petition. This means
that some election matters where courts have been barred cannocannot be questions in
tribunals also. Production, procurement, supply and distribution of food-stuffs
(including edible oilseeds and oils) and such oother goods as the President may, by
public notification, declare to be essential goods
3. Types of tribunals

Tribunal is a quasi-judicial institution that is set up to deal with the problems such as
resolving administrative or tax related disputes. It performs a number of functions like
adjudicating disputes, determining rights between contesting parties, making an
administrative decision, reviewing an existing administrative decision and so forth. The
different types of tribunals are:

 Central Administrative Tribunal: The tribunal is set up to resolve the disputes

related to the recruitment and service conditions for selected personnel in public
services, as well as posts as regards the union affairs or other local authorities.
 Income Tax Appellate Tribunal: The tribunal is set up to deal with appeals under
the direct tax acts, wherein the decision made by the tribunal is considered as final.
However, if a material question of law arises for determination, then the appeal goes
to the High Court.
 Industrial Tribunal/Labor Court: It is a judiciary body which is established to
adjudicate industrial disputes concerning any matter. The tribunal consists of one
person who is designated as the presiding officer of a Tribunal.
 Motor Accidents Claim Tribunal: The tribunal is formed to deal with the matters
and disputes concerning the motor accidents claims provided by the Motor Vehicle
Act, 1988. According to the Act, a compulsory third party insurance has to be done
and proper procedure to be adopted by the tribunal to settle the claims under dispute.

4. Its powers and procedure

5. Administrative tribunal Act, 1985
Pursuant to Article 323A, the Parliament enacted the Administrative Tribunals Act,
1985 to provide for the establishment of Administrative Tribunals for the Union and a
separate Administrative Tribunal for a State or a Joint Administrative Tribunal for
two or more States for adjudication or trial of disputes and complaints with respect to
recruitment and conditions of service of persons appointed to public services and
posts in connection with the affairs of the Union or of any State or of any local or
other authority within the territory of India or under the control of the Government of
India or of any corporation or society owned or control by the Government. The
objective for setting up of Administrative Tribunal is to provide speedy and
inexpensive justice to the employees on their grievances relating to service matters.
Rules have been framed for smooth implementation of provisions of the
Administrative Tribunals Act, 1985.
The Act provides for the appointment of a Chairman, Vice-Chairman and other
members as per the specified qualifications. A person is eligible to be appointed a
Chairman if he is or retired judge of the High Court and the Vice-Chairman shall be
appointed as the Chairman if he had held office of the Vice-Chairman for at least two
years. A person is qualified to be appointed as the Administrative member if he had
held office of the Government Secretary at the Union or State level for at least two
years or Additional Secretary for at least five years. A person shall be appointed as a
 Judicial Member of the Tribunal if he is a High Court Judge or qualified to be so or
has held the post of Government Secretary or Additional Secretary under the Legal
Affairs or Legislative Department or Member-Secretary in the Law Commission of
India for not less than five years. The discussion with the Chief Justice of India shall
be made by the President before appointing Chairman and Members of the Central
Administrative Tribunal. The President shall confer with the Governor of the
concerned State before appointing the Chairman or Members of the State
Administrative Tribunal.
The Chairman is empowered to perform financial as well as administrative powers as
per the rules framed by the concerned Government. The Central Administrative
Tribunal shall have the jurisdiction, authority and control as provided under the Act.
The primary responsibility includes the area of recruitment to All India Services, Civil
Services, Civil post in defense etc. It also relates to service matters related with a
member of such All India Service, a member of Civil Service or a Civilian appointed
in the defense services. The related powers and authority are also conferred on the
State Administrative Tribunals. The Tribunal shall have the power to punish for
contempt similar to that of High Court. The application to try a case before the
Tribunal shall be entertained, unless the aggrieved party has exhausted local remedies.
The Administrative Tribunal is not duty bound to follow Code of Civil Procedure and
shall be directed to follow principles of natural justice. Therefore, the constitution of
Administrative Tribunals in India has contributed to the easy and quick disposal of
service matters.
CAT adjudicates disputes with respect to recruitment and conditions of service of
persons appointed to public services and posts in connection with the affairs of the
Union or other local authorities within the territory of India or under the control of
Government of India and for matters connected therewith or incidental thereto.
L.Chandra Kumar v. UOI (1997 SC)
6. Regulatory bodies and its need
A regulatory body is a public organization or government agency that is set up to
exercise a regulatory function. This involves imposing requirements, conditions or
restrictions, setting the standard for activities, and enforcing in these areas or
obtaining compliance. Regulatory bodies cover a wide variety of professions, but not
all professions are regulated and may be self-regulated. A regulatory body might also
be referred to as a regulatory agency, a regulatory authority or a regulator.
 7. Types of regulatory bodies

a. Competition commissionOn 14th October 2003 under the Competition Act, 2002

• Headquarter – New Delhi

• Composition – A Chairperson and 6 Members appointed by the Central Government.

• Functions of CCI –
a) To eliminate practices having adverse effect on competition, promote and sustain
competition, protect the interests of consumers and ensure freedom of trade.
b) Give opinion on competition issues on a reference received from any statutory authority,
competition advocacy, create public awareness and impart training.

• Powers of CCI –
a) Inquire into certain agreements and abuse of dominant position of enterprises likely to
have adverse effect on competition.
b) Summoning and enforcing the attendance of any person and examining him on oath
c) Requiring the discovery and production of documents, receiving evidence on affidavit
• In discharge of its functions, the Commission shall be guided by the principles of natural
justice and shall have the powers to regulate its own procedure.

b. Electricity Regulatory Commission - Recognizing that electricity is one of the key drivers
for rapid economic growth and poverty alleviation Central Electricity Regulatory
Commission (CERC), a key regulator of power sector in India, has been set up in 1998 as
a statutory body functioning with quasi-judicial status.
• The Commission intends to promote competition, efficiency and economy in bulk
power markets, improve the quality of supply, promote investments and advise
government on the removal of institutional barriers to bridge the demand supply gap and
thus foster the interests of consumers.
• In pursuit of these objectives the Commission aims to – Improve the operations and
management of the regional transmission systems through Indian Electricity Grid Code
(IEGC), Availability Based Tariff (ABT), etc; Formulate an efficient tariff setting
 mechanism, which ensures speedy and time bound disposal of tariff petitions, promotes
competition, economy and efficiency in the pricing of bulk power and transmission
services and ensures least cost investments; to facilitate open access in inter-state
transmission; to facilitate technological and institutional changes required for the
development of competitive markets in bulk power and transmission services.
• The National Electricity Policy has been evolved in consultation with and taking into
account views of the State Governments, Central Electricity Authority (CEA), Central
Electricity Regulatory Commission (CERC) and other stakeholders.
• Recently CERC announces Renewable Energy Certificate (REC) system for fulfillment
of its mandate to promote renewable sources of energy and development of market in
electricity. REC mechanism is aimed at addressing the mismatch between availability of
Renewable Energy resources in state and the requirement of the obligated entities to meet
the renewable purchase obligation (RPO).

c. IRDA - Constituted by the Insurance Regulatory and Development Authority Act, 1999.

• Headquarter – Hyderabad, Telangana.

• Composition – A Chairman & nine members of whom five are whole-time members and
four are part-time members. All the members including the Chairman are appointed by the
government of India.

• Objective – An autonomous, statutory agency to regulate and promote the insurance and re-
insurance industry. The key objectives of the IRDA include promotion of competition so as
to enhance customer satisfaction through increased consumer choice and lower premiums,
while ensuring the financial security of the insurance market.

• Role of IRDA –
a) Safeguard the interest of and secure fair treatment to insurance policy holders.
b) Bring quick and systematic growth of the insurance industry, to provide long term funds
for accelerating growth of the economy.
c) To set, promote, monitor and apply high standards of integrity, fair dealing, financial
viability and capability.
d) To make sure that insurance policy holder receives precise, accurate, clear & correct
information about the products & services; make customers aware about their duties &
responsibilities.
e) To ensure quick settlement of genuine claims, prevent insurance frauds, scams & and put
in place a grievance redressal machinery.
f) To boost transparency, fairness, and orderly conduct in market & build a trustworthy
management information system in order to enforce high standards of financial soundness
amongst market players.

• Functions of IRDA –
a) Issue a certificate of registration, & renew, modify, withdraw, suspend or cancel such
registration
b) Specifying requisite qualifications, code of conduct and practical training for insurance
intermediaries and agents
c) Specifying the code of conduct for surveyors and loss assessors
d) Promoting and regulating professional organisations connected with the insurance and re-
insurance business
e) Calling for information from, undertaking inspection of, conducting enquiries and
investigations including audit of the insurers, insurance intermediaries etc.
f) Specifying the form and manner in which books of account shall be maintained
g) Regulating investment of funds by insurance companies
h) Adjudication of disputes between insurers and intermediaries or insurance intermediaries

d. SEBI - In 1988 through an executive resolution. Subsequently it was upgraded as a fully

autonomous body (a statutory Board) in 1992 with the passing of the Securities and
Exchange Board of India Act on 30th January 1992.

• Headquarter – in Mumbai & has Northern, Eastern, Southern and Western

Regional Offices in New Delhi, Kolkata, Chennai and Ahmedabad respectively. It
also has local offices at Jaipur and Bangalore

• Composition – Following members:

a) a Chairman
b) two members from the Ministry of the Central Government dealing with
Finance and administration of Companies Act, 1956
c) one member from the Reserve Bank of India
d) five other members – at least three shall be whole time members to be
appointed by the Central Government

• Functions of SEBI – It has three important functions as follows:

a) Protective Functions – To protect the interest of investor, provide safety of
investment, check price rigging, prohibit insider trading, fraudulent and unfair
trade practices etc.

b) Developmental Functions – Increase the business in stock exchange, training

of intermediaries of the securities market, adopting flexible and adoptable
approach by permitting internet trading, making underwriting optional to reduce
the cost of issue etc.

c) Regulatory Functions – To frame rules, regulations and a code of conduct for

the intermediaries such as merchant bankers, underwriters, etc. To register and
regulates the working of stock brokers, merchant bankers. Regulate the working
of mutual funds, takeover of the companies, conducts inquiries and audit of stock
exchanges.

• Powers of SEBI – The SEBI has following powers:

a) To call periodical returns from recognized stock exchanges.
b) To compel listing of securities by public companies.
c) To levy fees or other charges for carrying out the purposes of regulation.
d) To call information or explanation from recognized stock exchanges or their
members.
e) To grant approval to by laws of recognized stock exchanges.
f) To control and regulate stock exchanges.
g) To direct enquiries to be made in relation to affairs of stock exchanges or their
members.
• In any country, the financial system plays as a mediator between lenders and
borrowers. The investors always need adequate protection to encourage more
 savings and investments. The SEBI is one of such institutions.
• In general, the financial market is divided into two parts, one is money market
and another one is capital market. Money market is a market which provides short
term finance while capital market provides medium and long term finance.
Securities market is an organized capital market. Securities market is divided into
as primary market and secondary market.

e. TRAI
f. RBI - On April 1, 1935 under RBI Act, 1934 (recommended by Hilton Young
Commission)

• Headquarter – The Headquarter of the RBI is in Mumbai and it has offices at

31 locations throughout India.

• Composition – General superintendence & direction by 21-member Central

Board of Directors: the Governor, 4 Deputy Governors, 2 Finance Ministry
representatives, 10 government-nominated directors to represent important
elements of India’s economy, and 4 directors to represent local boards
headquartered at Mumbai, Kolkata, Chennai and New Delhi

Role of RBI

A) Bank of Issue – Issuing bank notes of all denominations. As an agent of the

government it has right to distribute one rupee notes & the small coins throughout
the country.

B) Banker to Government – Act as an agent of Central Government and of all

State Governments except that of J & K. Right to receive and make payments, and
other banking operations, helps both the Union and the States to float new loans
and to manage public debt.

C) Banker’s Bank & Lender of the Last Resort – The scheduled banks can
borrow from the RBI on the basis of eligible securities & expect the RBI to come
to their help in times of banking crisis.
 D) Controller of Credit – Power to influence the volume of credit through
changing the Bank rate or open market operations, to ask not to lend to particular
groups or persons, to inspect the accounts of any commercial bank.

E) Custodian of Foreign Reserves – Responsibility to maintain the official rate

of exchange & to act as the custodian of India’s reserve of international
currencies.

F) Supervisory Functions – Powers under the Reserve Bank Act, 1934, and the
Banking Regulation Act, 1949 to supervise and control commercial and co-
operative banks, relating to licensing and establishments, branch expansion,
management, and liquidation.

financial matters, planning, resource mobilization, international finance etc.

H) Monetary Data & Publications – To maintain & publish the monetary data
and the data relating to banking for framing the economic and banking policies.

I) Banking Ombudsman Scheme – To provide an expeditious and inexpensive

forum to bank customers for resolution of their grievances regarding banking
services.

J) Promotional Functions – Building up and strengthening financial

infrastructure, ensuring the allocation of credit in the socially desired directions
like cooperative banking, agriculture & rural credit, industrial finance etc.

g.