Application For Restoration 21.03.2024 With Annexures

1
IN THE COURT OF THE DISTRICT & SESSIONS JUDGE,

GURUGRAM
APP No.___________ /2024
IN THE MATTER OF:

Lt Col (Veteran) Sarvadaman Singh Oberoi …….Applicant
(Informant/ Whistleblower in Administration of Justice - Law of
Nations)
Versus
Union of India through its Cabinet Secretary …....Defendant
AND IN THE MATTER OF:

CRMP NO 1 OF 2019 CNR No. HRGR01-012375-2019
INDEX
SR PARTICULARS DATE PAGE
1. Index 21.03.24 1
2. Memo of parties 21.03.24 2
2. Application under Article 246 of the Constitution of 21.03.24 3-12
India, Seventh Schedule, Item 13 of List I (Union List)
in Administration of Justice in District Court,
Gurugram under Law of Nations with affidavit
3. ANNEXURE 1: District Court, Gurugram Letter No. 13-57
135 dated 14.10.2022
4. ANNEXURE 2: Extracts, Administrative Discretion, 08.03.21 58-107
from Administrative Law B.L.E., Society's Law
College, Bengaluru, 2021
5. ANNEXURE 3: INTRODUCTION from Wade & 29.04.14 108-120
Forsythe, Administrative Law, 11th Ed., 2014
6. ANNEXURE 4: Constitutional Fundamentals 1980 31.05.80 121-204
Professor H.W.R. Wade Q.C., LL.D., F.B.A.
Place: Gurugram
Date: 21.03.2024
Applicant
Nations)
Sarvadaman Singh Oberoi
1102, Tower 1, Uniworld Garden, Sector 47, Gurugram 122018
Mob: 9818768349, Email: manioberoi@gmail.com
2

GURUGRAM
APP No.___________ /2024
IN THE MATTER OF:

Nations)
Versus

MEMO OF PARTIES
Lt Col (Veteran) Sarvadaman Singh Oberoi, 1102, Tower 1, Uniworld

Garden, Sector 47, Gurugram 122018, Mob: 9818768349, Email:
manioberoi@gmail.com (Informant/ Whistleblower in
Administration of Justice - Law of Nations) …….Applicant
Versus
Union of India through its Cabinet Secretary, Government of India,
Rashtrapati Bhawan, New Delhi 110004, Fax: +91-11-230122874,
Email: cabinetsy@nic.in …....Defendant
Place: Gurugram
Date: 21.03.2024
Applicant
Nations)
3

GURUGRAM
APP No.___________ /2024
IN THE MATTER OF:

Nations)
Versus

Application under Article 246 of the Constitution of India,

Seventh Schedule, Item 13 of List I (Union List) in Administration
of Justice in District Court, Gurugram under Law of Nations
Most respectfully submitted
1. That in this application this Informant/ Whistleblower in
Administration of Justice - Law of Nations, draws kind attention of
the Learned District and Sessions Judge, under Article 246 of the
Constitution of India, Seventh Schedule, Item 13 of List I (Union
List), so as a proper exercise of the discretionary powers in
administration of justice matters vested in the office takes place in the
following matters which have been wisely commented upon in
support of the objection raised by whistleblower in December 2021
[ANNEXURE 1], but not yet wisely decided/ restored to their original
position as they deserved to be, in view of the duly approved inquiry
findings supporting the principled stand taken by the whistleblower,
all throughout, in all these matters:
1. CRM No. 130 of 2016, RBT No. 03 of 2016/2021, titled as
Sarvadaman Singh Vs State of Haryana, decided by Sh. Phalit
4
Sharma, Additional District Judge, Gurugram on 20.04.2021,

bearing Goshwara No. 163.
2. APP No. 37 of 2020, RBT No. 24 of 2020/2021, titled as
Sharma, Additional District Judge, Gurugram on 08.07.2021.
3. CRM No. 176 of 2021, RBT No. 150 of 2021, titled as
Sarvadaman Singh Vs Union of India, decided by Sh. Phalit
Sharma, Additional District Judge, Gurugrarn on 08.07.2021,
Sharma, Additional District Judge, Gurugram on 19.07.2021 ,
5
8. APP No. 33 of 2020, RBT No. 04 of 2020/2021 . titled as

Sharma. Additional District Judge, Gurugrarn on 19.07.2021,
10. CM No. 788 of 2019, RBT No. 07 of 2019/2021, titled as
Sharma, Additional District Judge, Gurugrarn on 19.07.20.21,-
Sharma, Additional District Judge, Gurugrarn on 27.08.2021,
Sarvadaman Singh Vs State of Haryana. decided by Sh. Phalit
6

Sharma , Additional District Judge, Gurugram on 29.10.2021,
17. CRMP No. 03 of 2019, RBT No. 13 of 2021, titled as
18. CRM 150 of 2020, Disposed 15.10.2020/29.10.2021 is
attached with main case file CRMP No. 03 of 2019, RBT No.
13 of 2021, titled as Sarvadaman Singh Vs State of Haryana,
decided by Sh. Phalit Sharma, Additional District Judge,
Gurugram on 29.10.2021, bearing Goshwara No. 337.
19. CRM 96 of 2021, Disposed 08.07.2021 is attached with
main case file CRM No. 92 of 2021, RBT No. 15 of 2021, titled
as Sarvadaman Singh Vs State of Haryana, decided by Sh.
Phalit Sharma, Additional District Judge, Gurugram on
29.10.2021, bearing Goshwara No. 335.
20. CM 737 of 2019, Disposed 17.09.2021 is attached with
main case file CM No. 699 of 2019, RBT No. 18 of 2019, titled
as Sarvadaman Singh Vs Union of India, decided by Sh.
7
Sandeep Kumar Duggal, Additional District Judge, Gurugram

on 13.05.2019, bearing Goshwara No. 757.
2. That at pages 6-7 of Annexure A of ANNEXURE 1, a grave

administrative lapse, causing destruction of the all important INDIA
CLIMATE CHANGE CASE, 2019 by a mistake of court has been
admitted by the Court:
“2. With regard to file. CRM 150 of 2020 and CRMP 3/2019, it
is submitted that CRM 150 of 2020 was not disposed off by this
Court. As per CIS record, it was an application for early
hearing decided by Shri D.N. Bhardwaj. ASJ. Gurugram on 15.
10. 2020. with an order to tag it wUh main case CRMP/312019
but the same was not found tagged with the case CRMP/312019
when received by transfer in this Court. Further, it is submitted
that when case file of CRMP/3/2019 was consigned in the
record room. having total pages 1006 i.e. 503 sheets, it did not
include file of CRM/15012020 as was not received as such from
the staff of the Court of Shri D.N Bhardwaj, Learned Additional
Sessions Judge. Gurugram. There is no information as to how
documents other than consigned were found tagged later, i.e.
after consignment. as alleged by the application.”
3. That the above was thus a case where the Court had summoned the
report of the Commissioner of Police, Gurugram in a Jus Cogens lis.
That the report of the Commissioner of Police, Gurugram found
meritorious the Jus Cogens type/ applicant’s contention in the lis.

8
However the Commissioner of Police, Gurugram Report was not
considered on judicial side due administrative lapse. That the
applicant cannot be made to pay for this lapse of the judicial officers
under any circumstances whatsoever, is well settled law. That it is very
well settled in A.R. Antulay v. R.S. Nayak, 1988 (2) SCC 602 (7
judges) that no act or mistake of court shall harm the parties to the
case. That in A.R. Antulay v. R.S. Nayak and another, 1988 (2) SCC
602 at pp. 661-662 at para 57, a seven judge bench held that “if an
order is regular it can be set aside by an appellate court;” whereas
“if an order is irregular it can be set aside by the court that made it
on the application being made to that court…..ex debito justitae if the
circumstances warranted, namely, violation of the rules of natural
justice or fundamental rights.” That at SCC pp. 684 at para 98 the
Privy Council decision in Alexander Rodger v. Comptoir
D’escompte De Paris, (1869-71) LR 3 PC 465 was quoted and held
to be the well settled position in law in these words, “One of the first
and highest duties of all courts is to take care that the act of the court
does no injury to any of the suitors, and when the expression act of the
court is used, it does not mean merely the act of the primary court, or
of any intermediate court of appeal, but the act of the court as a
whole, from the lowest court which entertains jurisdiction over the
9
matter upto the highest court which finally disposes of the case. It is
the duty of the aggregate of those Tribunals, if I may use the
expression, to take care that no act of the court in the course of the
whole of the proceedings does an injury to the suitors in courts.”
4. That further, on the Constitutional and Quasi-Judicial side of the

matter, in exercise of discretion by the Learned District & Sessions
Judge, it is instructive to go through the following annexed writings
of legal scholars/ institutions of repute:
(a) ANNEXURE 2: Extracts, Administrative Discretion, from
Administrative Law B.L.E., Society's Law College, Bengaluru,
2021
(b) ANNEXURE 3: INTRODUCTION from Wade &
Forsythe, Administrative Law, 11th Ed., 2014
(c) ANNEXURE 4: Constitutional Fundamentals 1980
Professor H.W.R. Wade Q.C., LL.D., F.B.A.
5. That in ANNEXURE 2: Extracts, Administrative Discretion,

from Administrative Law B.L.E., Society's Law College, Bengaluru,
2021, at page 15 is instructive:
“Though administrative law may not be concerned with the
substantive law as such, yet, as Griffith and Street themselves
have somewhat recognized, a study of substantial law becomes
necessary for appreciating the powers of the administration
and for controlling the same. For instance, whether the
principles of natural justice are to be observed by an authority
10
or not depends, to a great extent, upon the kind of action it is

empowered to take, and to find this, one will need to look into
the statute under which it functions. Again, whether the
authority has abused its power has to be decided with reference
to the substantive provisions.
Here comes the need, importance and purpose of
administrative law. Administrative law thus becomes Dharma
which conduces to the stability and growth of society,
maintenance of a just social order, and welfare of mankind by
reconciling power with Liberty. It seeks to channelize
administrative powers to achieve the basic aim of any civilized
society, that is, growth with Liberty. Thus, Administrative law
goes beyond legalism and the presence a principled regulation
of administrative space, whether domestic or global, which can
be practically regulated for the expansion of human freedoms.
Therefore, today, Administrative law represents the way of
conceptualizing and articulating a new domestic and global
social economic order.
Without a good system of administrative law any society
order dies because of its own administrative weight like a black
hole which is a dying neutron star that collapses due to its own
gravity. Administrative law, therefore, becomes that body of a
reasonable limitations and affirmative action parameters
which are developed and operationalized by the legislature
and the courts to maintain and sustain a Rule of law Society.”
11
6. That it has taken some time to verify and ascertain the law and
facts from 14.10.2022 to 21.03.2024 and petitioner had to make
certain connected submissions/ inquiries on administrative side before
Hon’ble High Court of Punjab & Haryana, before the concerned State
legal officers/ commissioners at Chandigarh and other courts at
Gurugram on judicial side, before, he could firm up this application .
7. That in view of the position explained in preceding paragraphs
the applicant makes a prayer for restoration of all the cases mentioned
at para 1 above.
PRAYER
It is, therefore, prayed to
(i) grant consideration of the lis in restoration of all the Jus Cogens
cases mentioned at para 1 of this application, and
(ii) grant relief under Article 246 of the Constitution of India,
Seventh Schedule, Item 13 of List I (Union List) in Administration of
Justice in District Court, Gurugram under Law of Nations, and
(iii) grant any other appropriate relief, under any other law found to
be entitled in favour of the applicant/ petitioner
Place: Gurugram
Date: 21.03.2024
Applicant
Nations)
12

GURUGRAM
APP No.___________ /2024
IN THE MATTER OF:

Nations)
Versus

AFFIDAVIT
I, Sarvadaman Singh Oberoi, S/o Late Capt. H.S Oberoi, aged about
75 years, R/o 1102/Tower 1 Uniworld Garden I, Sector 47 Gurugram,
Haryana, do hereby solemnly affirm and declare as under:-
1. That applicant has filed this application under Article 246 of the
Constitution of India, Seventh Schedule, Item 13 of List I (Union List)
in Administration of Justice in District Court, Gurugram under Law
of Nations.
2. That this application has been drafted by deponent, and the contents
of the same are true and correct to the knowledge and belief of
deponent, and submissions are based upon information believed to be
true.
DEPONENT
VERIFICATION:
Verified, on this twenty-first day of March 2024 that, to the best of my
knowledge, the contents of the aforesaid affidavit are true and correct
and nothing material has been concealed therefrom.
DEPONENT
13
SPEED POST ANNEXURE 1 (j)
FORM E
Form of supply of information to the applicant
(Rule 6 (iii))
No. _ _l_3_5'""'--------' Dated

From
Public Information Officer-cum-Superintendent
O/o District and Sessions Judge.
Gurugram.
To
Shri Sarvadaman Singh Oberoi ,
11 02 , Tower 1, Uniworld Garden 1.
Sector 47 Gurugram-122018
Mob . No.9818768349
Ema il: manioberoi@gmail.com
Subject: - Information under Right to Information Act, 2005.
Sir.
Refer to your RTI application received in th is office on 19.09 .2022
bearing receipt No. 86 . regarding supply of information as mentioned in your
application.
The requisite information is as under:
Sr. No. _ • Information required ________ Information supf}lied __ __ __

(a) •9 pages- containing the The requisite information conta ining nine
recommendation of the date pages is enclosed herewith as Annexure-'A' .
14.03.2022 in regard to request
dated 02.11.2021 & application
dated 23 .12.2021 .
(b) 2 pages· - Letter No.97 dated : The requisite information · containing two
04 .02 .2022 (bearing Diary pages is enclosed herewith as Annexure-'B'.
No.2436/04 .02 .2022 .
i (c) 3 pages - Letter No.73 dated I The requisite information containing three
I
25 .01 .2022 (bearing Diary : pages is enclosed herewith as Annexure-'C'.
No.1698/25.01 .2022) - -- - ---···- -- - --- - - -
I (d) 1 page- Letter No.729/C.2 dated The requisite information Is enclosed
21 .01.2022 . herewith as Annexure-'0'.
(e) 2 pages - containing the The requisite information containing two
recommendation of the date pages is enclosed herewith as Annexure-'E' .
21 .01 .2022 in regard to request
• dated 02 .11 .2021 & application
dated 23 .12.2021 & 01.01 .2022- ·-. - - - -------- ·-· --- - - - - -
. --- - ·- ·- - -· -··- · ·-. - -·- --~ - -
If) 15 pages- Application dated The requisite information conta1nrng fifteen
I : 01 01 .2022 in re 23.12 .2021 • pages Is enclosed herewith asAnnexure-'F'.
___ :_(Di~ry No.598/Q~_:0_1.2022) ___________ _
(g) 1 page- Letter No.459/C.2 dated The requisite information Is enclosed
13.01.2022 . herewith as Annexure-'G'.
: 1 page - Letter No.460/C.2 ! The requisite information is enclosed
dated 13.01 .2022 herewith as Annexure-'H'.
·- ---·--- --- -- - - -·- - -

14
(i) 3 pages- containing the The requ1sIte information conta ining three
recommendation of the date • pages Is enclosed herewith as Annexure-'I' .
'
13.01.2022 in regard to request
dated 02.11.2021 & applications ,
dated 23.12 .2021 & 06 .01 .2022.
: (J) 5 pages Letter Diary The requisite information containing five

No.24415/A dated 24 .12.2021 . pages is enclosed herewith as Annexure-' J'.
· - - - - - ··------ - -- - - -
j (k) 1 page- containing the The _requisite infor~a!1on Is enclosed
I
recommendation of the date , herewith as Annexure- K.
20.01.2022 in regard to request 1
dated 02 .11 .2021 & applications
dated 23 .12.2021 .
As per Section 19 of the Right to information Act. 2005 . you

may file an appeal to the First Appellate Authority (Learned District and Sessions
Judge. Gurugram) within thirty days of issue of this information.
Public
a~l~,.
Information
,.,J
Officer-cum-
Superintendent. office of District and
Sessions Judge, Gu rug ram.
Phone: 0124-2321485
Fax: 0124-2307226
Email: dsjgrg@hry.nic.in
15
OFFICE OF THE DISTRICT AND SESSIONS JUDGE, GURUGRAM
Subject: Request dated 02 .11.2021 for providing goshwara numbers

of decided cases - made by Lt.Col.(Veteran) Sarvadaman
Singh Oberoi.
AND
Application submitted by Lt. Col (Veteran) Sarvadaman
Singh Oberoi
Sir.
It is submitted that the applicant named above had
presented an application on 23.12 .2021 wherein he submitted that he
had moved an application on 02.11 .2021 for providing goshwara
numbers of the cases mentioned in the application itself. It was further
submitted by the applicant that he had inspected the record of CRMP-3
of 2019 and it was revealed that original file bearing CRM No. 150/2020
was not tagged with the file of CRM P-3 of 2019 and further there was
missing of original police report dated 11.11 .2019. It was further
submitted by the applicant that later on the file of CRM 150/2020 and
the said original police report were traced and the same were tagged
with CRMP 3/2019, however, the same was done without any order of
the Presiding Officer. Hence, by way of said application, the applicant
requested that the matter may· be resolved by administrative or judicial
side to regularize the above-said error. Sir. it is further submitted that
vide application dated 02. i 1.2021 the applicant made request for
providi_ng goshwara numbers of as many as 20 cases and vide order
dated i 7.12 .2021 the request of the applicant was accepted and he had
been supplied the goshwara numbers of the cases as provided by the
Record Keeper. Sir. in nutshell the grievance of the applicant was that
the record of CRM 150/2020 as well as original police report which were
to be tagged with the file of CRMP 3 of 2019 were not tagged a~ the
ti:ne of consignment of file of case bearing CRMP 3 of 2019 and the
same was done later on without any order of the Presiding Officer.
A(7?lr-•= D
P!;t-':~J '.?];~ .'_
; ~,- ,,";.
Oto O:s~t.G:;u:;•;~~;i· --,~ (rf 1-2--
16
.2 . ({)
Sir, ,tis further submitted that all the matters of the applicant
as mentioned in his application were disposed of by Shri Phalit Sharma ,
learned Additional District Judge-II . Gurugram, being Special Court to
deal with the cases under Human Rights Act. Before joining of Shri
Phalit Sharma, all such matters were dealt with by Dr. D.N .Bhardwaj
being Additional District Judge-II , Gurugram . After joining of Shri Phalit
Sharma as Additional District Judge-II at Gurugram. all the matters of
the applicant were transferred to that Court being Special Court.
However, it was the allegation of the applicant that record of CRM 150
of 2020 as well as original police report dated 11 .11 .2019 remained in
the Court of Dr. D.N.Bhardwaj and the same were tagged with the file of
CRMP3 of 2019 later on after its consignment by the staff of the Court
of Shri Phalit Sharma, learned Additional District Judge-II, Gurugram
and that too without any order either passed by the Court of Dr. D.N.
Bhardwaj or Shri Phalit Sharma, learned Additional District Judges,
Gurugram .
Above being so , your good self vide order dated 13.01.2022

had been pleased to obtain the report as under:
'-report with regard to keeping of record of CRM 150 of

2020 as well as original police report be called from the
Court of Dr. D.N.Bhardwa}. learned Additional District
Judge , Gurugram •
AND
·'report with regard to said aspect be sought from the Court

of Shri Phalit Sharma , learned Additional District Judge,
Gurugram."
17
.3.
Sir, it is further submitted that subsequent thereto , the

applicant named above had presented an application dated 06.01. 2022
wherein he submitted that CRM-338-2019 pertain ing to CRMP-3-2019
(Main Case) was listed in the Court of learned Add itional Sessions
Judge-II , Gurugram for 06 .01.2022 . However, the main case was
dismissed vide order dated 29 .10.2021 though the above-mentioned
CRM as well as CRM-150-2020 for placing of 17 judgments remained
undisposed of and also the original police report dated 11.11 .2019 was
not available on the record.
Sir, it is further submitted that the applicant in the said

appli cation had also given a refe rence to his application dated
02 .11 .2021 as well as the contents of his application dated 23 .12.2021 .
Sir, the applicant had also mentioned about submitting of

three 16 GB flash drives in the CRMP-3-2019 which were marked
inadvertently as A, B and C, although the marking of these flash drives
sl1ould be A, A & A, B, B & Band C, C & C .
Sir, on the said application , your good se lf vide order dated

20.01 .2022 had been pleased to obtain the report as under:
'• since the grievance of the applicant related to a
judicial matter dealt with by the Court of Shri Phalit
Sharma, learned Additional District and Sessions
Judge-If, Gurugram . therefore, report from the
concerned Court qua the allegations raised in the
appfications be called."
Pursuant thereto. Dr. D.N. Bhardwaj , learned Additional

District and Sessions Judge, Gurugram qua application dated
23.12.2021 has reported as under :
"It is submitted that CRM No . 150 of 2020 was filed in
this Court on 01 .09 .2020 . It was an appl ication fo r
early hearing of the ma in case bearing No . CRMP-03-
i. , E1,TEU
. -
Pubt/in ,_· ,~ .l.•(~· .Jr.;:.-~r
0/o [;istt.G~;~~~,r~n1 (tf~ LL--
18
.4 .
2019 which was fixed for 15.10.2020. The application

was disposed of same day i.e. 01.09.2020 and the
papers were ordered to be tagged with the main file
i.e. CRMP-03-2019.
Along with the file. letter No. 28721 /CC dated

11.11.2019 of Commissioner of Police regarding
·cRMP 03-2019, CNR No. HRGR01-013814-2019 .
Ltd . Col. SaNadaman Singh Oberoi Vs . Union of India'
which is now available on record at page No . 453 of
the consigned file and it bears an order •put up file '
dated 13.11.2019 passed by the then learned
Additional Sessions Judge , Gurugram .
The case bearing No. CRMP-03-2019 was

transferred from this Court to the Court of Shri Phalit
Sharma , learned Additional Sessions Judge ,
Gurugram . vide order dated 06.04.2021 . However. as
per the report of the Ahlmad, the above-said record
could not be tagged with the main file CRMP-03-2019
and sent to the transferee Court alongwith the main file
due to heavy load of work and receiving of 49 files
from the Court of Dr. Yashika, learned Additional -
District and Sessions Judge , Gurugram , and 51 files
from the Court of Shri S.K.Sharma , learned Additional
District and Sessions Judge, Gurugram . and 178 files
of the Court of Shri Phalit Sharma, learned Additional
Sessions Judge , Gurugram, and the files getting mixed
up with other case files. However, it is submitted that
on 23 .11 .2021 in complianc~ of order dated
. r: - -1 :-:-: ,--;
f~
) l : •
.
--..
'---
\ . . . _. -•
Pd>l::. /,_, ~: ti\: (,.,••-;·_, ,-r--"

!n,or:· _ . J-~ -
Q.'o Distt.G:~i~~!~r:!Y\X( 2-L-

19
CT)
01 .09 .2020 the file was tagged with the main file by
the Ahlmad Shri Hemant and consigned with record
vide Goshwara No. 337. This was because of heavy
workload and receiving of the files from different Court.
There appears to be no intentional lapse on the part of
the Ahlmad and there is no loss of the record . This is
for your kind information and necessary action please"
Similarly, Shri Phalit Sharma , learned Additional District and

Sessions Judge, Gurugram qua applications dated 23 .12.2021 and
06.01.2022 has conjointly reported as under :
"With due respect. the following information is submitted for

your kind perusal which has been provided by the
concerned Ah/mad of the court of undersigned pertaming to
the queries related to the record of the files dealt by the
undersigned on judicial side mention of which is there in the
applications of the person concerned.
Sr. Tltl1t DalEt of Dale of Decision on Goihwara Dale of Dale on

Ne.. Ass1gnmenU Decision merit or No. consignment which or<1er
RBT Dismissed on uploaded
point of
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o·cer
10 '...t Col Sar,ada'l"an A?P 3<: 20 •g Ci 202· D,srr,ss~d ,n 185 23 07 2•'.J21 20 o· 202 •
Oberc Vs s:ate o' ::!et:aJlt '::>r ·.'\aN
rlaryana :)' c·csecut.on
ar,c crso on
n-"er ! 'o· ·.va..,t o'
;v1sd ..:: c~ ,..~,..
1!·a --1a r- ao e .a
g .. e 1"'1 r-a!..,re o;
;;ass r,i ;:e:a,'e:l
c·ae"
~t Co Sac, a:ar,-ar. cr.: ··es 19 J.s..,~!sse~ i ... -:a-:

Ober:: - Vs ;J, er. o' •r:; a t-?'aJ ·: •er .-,al"I!
:,• cra;sect.~ -o...
;J~-o a,s~ Of'.
·r-er :: 't;· .-vart ::,f
.... r sJ1c1,:,., no.,
,,· a ~ta. -a::, e ·va
;i.e .n ratu'e ey
;:ass,n~ ~e:a,1eo
ordec
... Col San.aoa~a· c~u 70 1

8 2 7 08 2021 : sn- ,sse::: •~ 2 a.:
Obero Vs S:ate o' je'ai..i! .:~_,. ,.-ar!
-ia~1ana ::' c·csecwt.or-
,,;r s:hct;:::,"" "'on

~a .... a !""'30 e -.a
;;,,e ,, :-,atwre b)
::ass n:i ::eta, e:i
~rjer
• •, Co1 Sa·, acarra• C ~M 71 •6 2·:;a202· J s-,• ,sse:l •I" 255 31 08 2C21

Ob,;ro, Vs State o' a~'a~ ':r ,,ar,
1:
.. ~ar.,.ara ~• ~• w:Of:t.,l~ Cr
a~:, 3 s;; :;r,
•··t"r • ':-:· .-.a-! c'
.,r SCIC',:,n "Or'
... ,a,,n!a ra:i1~n.a

~i.. e :i ria!.., t~ oy
:::ass,ng oe:a ec
.-y~et
co: Sa· -, acar,-ar: c~:., n ·e 2· :ia 1::i2· r-- 286

OCerc Vs S:are o' ,. a·:
-iar1a~a
.. • -;~: !j
,
'--:::
'I (·t•• • f"
f~1~1!1c n ·• -··
y' {xl
' ·· • ' i · - ·
O!o ui:-\t.J~~~~:~'·) Ll-

21
•• a ··!a ~a!: e
.. 1-:; .. :: ., "'at -Jrc
c, :ia:;s "'O
::~ta 1e,: C'der
•< Lt Col Sarvada..,. an CRM ·73, 13 r J3 2J2 '. ::) SIT'1Sseo in 295
Oce,o, Vs State o· :,~•at...! 'er 11an~
Har1ara
a,u a.sc or,
..... -:?:" ~ ':Y .•.a""! o'
... ~; ;::,:· :>"' :"' j ....
..... a ,~:a ··a::: c ~a
~ .. e ,r. r an.. re o·,.
~Hss:rg Otl!i.ld8<!
::-'.J~f
''= L~ C:c, Sarva:ja,ia~ 8M 737•~9 ~ Sr"" ssec on Tag .\ f·

Ccerc Vs Un :,e :if rid a ~"'? :r'.)u"O o' .,,aIn :ase
-ra,-,:a ~ac ,:, Ne CM 59,
cons,g-e~
v,ce
goshwa·a
1 57 20· 9
:.: C~' sa,,. a::a~a,., C~\1922 ~ 23 1 : 2: 2 1 23 11 :iC 2 1

Oce,c· vs S:a:e ~;
Haryana
~3 ~: Co Sar\rada-ra.., c~:•.1 ~,s .~ a 2; ,: 2:2·

Ocerc, Vs ,Jn,on o' rc ,a
19 L: Cc, Sarvada-ra1 CRMPl).' 19 29 1: 202· 0 srr,ssed berng 337 2311202 1 J1 11 202 ~

Oberc, 'Is S:ate o' ~ot
Haryana
2. With regard to file . CRM 150 of 2020 and CRMP

312019, it is submitted that CRM 150 of 2020 was not
disposed off by this Court. As per CIS record, it was an
application for early hearing decided by Shri D.N.
Bhardwaj. ASJ. Gurugram on 15. 10.2020. with an order to
tag it wUh main case CRMP/312019 but the same was not·
found tagged with the case CRMP/312019 when received
by transfer in this Court. Further, it is submitted that when
case file of CRMP/3/2019 was consigned in the record
room. having total pages 1006 i.e. 503 sheets, it did not
include file of CRM/15012020 as was not received as such
from the staff of the Court of Shri D.N Bhardwaj, Learned
Additional Sessions Judge. Gurugram. There is no
information as to how documents other than consigned
were found tagged later ,.e. after consignment. as alleged
by the application.
22
7.
3. It is further humbly submitted that the matters

shown disposed off in the list given above, were disposed
off by undersigned having in mind the law on the subject
and also the legal procedure which the plaintiff/petitioner
in the petitionslplamt was reqwred to follow Since. all
these orders have been passed on judicial side, the
applicant/petitioner. if has any grievance against the
same, may be on any ground like ignorance of documents
or any law on the subject, he has remedy available to
challenge the same before appropriate Higher Judicial
Forum for redressal of his grievance but certainly this
court is not required to justify its decision on administrative
side to such appropriate to ask the same as judicial
decision is a decision till the same is set aside on legal
side of Hon 'ble Higher Forum Neither. this court has
power to review its order until and unless a request in
judicial form is made in consonance with the provisions
laid in section 114 read with Order XL VII C.P C.. merely on
the asking of an applicant as othelvVise desired in
applications. This ,s for your kind information and
necessary action please".
Sir, a perusal of reports submitted by both the above-named

learned Presiding Officers, if read in entirety. goes to show that the
grievance raised by the applicant has been given vent to as the record
of CRM-150-2020 as well as original police report have been tagged
with the main file bearing no . CRMP-3-2019 on 23 .11 .2021 in
compliance of order dated 01.09 .2020 as so reported by Dr. D.N.
Bhardwaj, learned Additional District and Sessions Judge, Gurugram.
Qua other raised grievance in application dated 06.01.2022, the report
submitted by Shri Phalit Sharma , learned Additional District and
Sessions Judge, Gurugram is self-explanatory.
23
.8.
If approved , the applications dated 23.12.2021 and

06.01 .2022 may be ordered to be 'fifed'.
Submitted for orders please .
l (/'.: f_ I 4· 3 ).,2'}.
Superinte~dent Grade-II (Establishment) (Ravinder Kumar)
I
~'0"' I 3\ i... 1, ,__
Reader Grade-I (working in this office) (Hitesh Bajaj)

~~~
Superi nte~t (Lalit ~:-imar)
District and Sessions Judge

"'rl) '11.--
24
l> •ll'('. '--\-,-1.,1..L
From
Dr. I) \ . B:1c1rd ·,, dj .
...\dcli:io:1:,l [)1-,trtrt ,rnd ~essio1~., Judge.
Gur~ig:,< '., CID ~o.liil-0100.
The !('il:'11ed District & Sc-;s1011s Judge.

Guru gr a :11.
.·\pr!i,::·1i~)11 d;11..:d 2.~ . 12 . .::0.:: ! suhmiu-:d b~ I L. CPI.

( \·..:1~r:1n) Sanadaman Singh Ob..:n-11
gooc! oificc . on t 1ie !-L:bject ci:e<l ,ibo\C·.
lie,ning '\o. CR\ 1P-OJ -~li l'-) 1d~ich 1, ,t~ ti.\ecl tor I;). I 0.2U.W. I he c1pp!1cat :on
,, a~ dispo~t'd of ~:11::e da1 i.e. CJ 1.09.2020 .ind tlw p.1pcrs ,,·er<.' ordered w :w
:\!o:i~ 11 ith tlw tile. letter .'\o. 28 7:.: I CC datnl i 1.11.2019 o!
Com:nis5 :oner cf Police regarding ·CR\!P 03-'..~019. C:\R :\o. HRGH·J I-
0t38L4-:1019. I.·. Co!. Sc1n·d~a1ii,,n Singh Obero: \ ·s. L'nion of !ncli"' \\hi-:, .
is i~ow av£iil.ible on rccO!d at P.igt~:\o. -l33 ol tlw consigned fi '. e and it bc>,11~
a,1 o:·tler ·put u:1 1dth :ile ' dated U.1120I9 pas!-.ed l)\ the then Ieamec
,\hlnli!cl. :iw c1b1)'.l'~.:td n·curd coulc :1<,r f;c tagged" :th ch,· •:1a!n tiie CIC\!P-
010 D1stt.
,qrx1:i__
\
25
( ,urL'5rc111: ,u1d 1~B :u.>~ u! ch£> Court ot '.)h. Ph<1lic Sh<11111.i. lec1rned .-\dditio,ic11
fi lL·s . Hr!\\ e, L' I'. 1t is ,.!bmit:Ni :h,n on .!. ~. l l..W.!. l. in complia:Ke oi ordr :
d.;rec Ol _t)L).20.!.U t::e :':le \\ il'> tagged \, ith the mJ:n file O\' ilw .·\hln:ud <,ii.
or he?.\\ \\ 01 k!uaci :11,d recri\ ing o: :l:e fil(•~ from diffe:em Courcs. Tlil·1t•
t1:>ph 1r<. w he :,o i :1cei1l!onai Lnse on the pan oi the :-\hlmaci and there is ;10
26
From
Phalit Sharma.
Additional Ui,;trict & Sl!s:-ions Ju<lg1.<2.
District Courts.
Gurugrnrn
The I.earned District & Session.;; Judge.

G urugrarn.
Subject: Applications dated 23.12.2021 and 6.1.2022 submitt~d by

Lt Col. (Veteran) San·adama Singh Oberoi .
Kindl y refor lette rs nos. 460 c.lated 13.01.2022 and .,29 dated
2 1. 1.2022 of your good oflice. on the subject cited abo,·e.
\\"ith due respect. the following. information is submitt~d for
,·oltr ki11d perusal whir. :h has been pro, i<kd by the curn:t;!rnt:d Ahl mad
oi' the court of undersigrn:d pertaining lo the queries related to the
?·ccord of the tiles dealt by thl.! undersigned on judicial s idi: 1111:ntion ot
\\ hich is there in the applicat ions of the person concerned .
(J' IJ.Ut ,•f

·t.,!> :::} :':1 "t IH, i,icm ,.,1 ,, h
.~ar (_• rJt' ,

upiv,1:Jt'J
L: Col Crm : .JC' ;.; io..>J im Dism issed be ~g devo:d of '7ler,ts hl

,"YJ!".-cJi:.'·'!:"7an
Obe,'tl' \is.
~! U~C' Of
fl.:r.HJ·\ J
/.: <...ot .-\Pl' r .:U ''-1.,,u,,,, 01sm:ssed oe,,;g oevo,a of mer•ts. ; . ._.:
'iun.ccr:rr:an
Obe•·c;. \s.
Lr.to, Of
Jr.dw
/. '. Col Crm9:5..!/ li8. li1 l:Jll Appl1cat1or. co rr~ca/1 order aated l~y .,-,:1,
'-',... .,c!~1':"",an 15 04 .2021 passed in CRM No. 92-2021 n•w.~ "'''"
Oht!'"CJ Vs. or CRM No 85-2021. d1s""!,ssea !:e,ng
\!vii• oi -~ot miJ,r:ta,."'la:::,:e
i{cY_.,:··.J
U Cui (."rm, ! ~1J.;.!i ·:>J.Ji.Jlill D,sn1,ssec1 ,t b~1ng result ct !1:1,.J .-•:JI ~ .' l
, ur.Jtf~ ,...,n m •sir.terpretar·cn of 13N and procedure
U bt' ..o! '.-"s.
\tu/t' o/
i h1r,, .... o
Cui C--:n :-- ::·J ~.'!-:- .?!.1.?l O,sm S)(.·c' ·t oe,ng res.;1t or 1,,_:;
' u: ~ J,i.:mun rnis,merprcra: ,011 of :,w, an1 procea:1re
..... · .• ·-
• Jt,.._.. r,· •, s.
' i t : :t.• U/
/1:;r .u~a
D,' srn·sst.'d ::e ,,g re:su ,t of

rn,s:mer;recac er. o( ·.w, ar,t pr'lceo,,rt•
•J tlcro, I·;.
\ ,;:t• u/
J J.. . ~ ~, •. ;
27
D•;r,,,ssed ,r 0£} ng resu ! ot :-,~ ·- -·-·,

rn s,,,t~r;.u pt,1: nn o' '.:1•,11 an~ o,,.oceaure
<Jht•rl1 \\
olf.\!rJ. :
:Y ,. !C-ll 01s1n:ssea ir: o·i:fJ~•Jt 'or war.t of ;., ;

'>:J'hh;J.••:,.tt :,ro;ec:.1t.cr ard a,·so on ru~rit fer 4'".'ant
• Jf-{•r,1 \') :;f ;,ir,sd,<::,o,vnor, nliJ1nt,1,nao!e1>1ague
:r ni1,,re tiy pass·ng c:eta,ied or~er
D,sm,ssed ,,, aefaJ!! ~-x want of !~

o·osecut,or J"d also on ,..,eri'. for \'1anc
I )'- ~• rll \ •~ ·of ;urisd·::tior.tnor. ,~1,:imt,11nab1e(Vague
\:._.rt' r)I n naure 01 pass;r.g deta,1ea oraer
,•_;•,l,••:;
Cal .;pp J.; !i, ,9.;, i~:, D,sm1sseo rr. defaJ!t for ,·,art of : -~•;
orosec..it,on a-id also on ,-.,er,, for •·1anc
Ober.:., : \·>. of jurrsd·c!iO{'f.'IOfl rnair.tamaoleNague
\ :.!"i.' 'J( ,r na'.:i'e by pass,r:g deta,ied crde~ •
n J~.1i,11 o:stn:ssed ir. de&:11...ilt ror ltar.t of ; ,--('

orose~:;t:or. an:1 also on r.err: for ,vant
'J~e·o \'s ·or ,::r,sdict!Of'/non Mamt,1,naoletvague
, . J' : •; ~); : r, :,3t!J ."e oy pass:n; aeta11~CJ crde,.
:,,.,:..
I
Col ( r!1i --.... 18 J7 ;:t~(J.!J D1sm ssea w cefa.;ft for want of

1
.!.J
:mc1~
, •. r1r:. prosec..1t1on d'1d alsc on r1erit for want
o~,••v· \\ of ;ur,sd,cr,or,;non mamCiJ1naole/vague
'>·,::t· "-' r na:ure Oy pJss(ng aeca,!'tJd crdcr
!(Jr.,,4: ... a
ir C..u! C.:r,r.,.-; 18 1-: ~,~ /li.!l D1sn1;ssed ,r. aefault for want of :18.i
prosecution and also on i, ,er,t for ::an:
of 1vnsd•cc,ormo0 r.1amta111aole/Vague
~:~:,• of ,n nature oy pass:ng detailed order
iJ,g.,J .•iu
,• C..ol Um - .! //J ""1.zm o,sm.ssed ir- def:Ju;t for ,'lane of ·°''" ; j ·· , "
~r.uLJr.iUf1 prosec!Jtron and also on mer,, for ,·:ar.t

Ohr!•c: Vs. of junsd,ctton;non mamtamabie/Vague
'lr<llt' 0/ n nature oy pass:rig detailed O'der
f/J'•.., .. "
i7 ''" z,'n O;srn·ssea ,r defa:irt fo., wart of 2'6

\ . , r1 .1. ' ;; P:Utt prosecut:on a.,d a1sc on merit for ,.,ant
I_ ti:-t•.-1,; \) of :~r.sd.c~:orl'IOn '"'loint.1,na:,!e'vJgue
"''V:t' 0{ ,11 na:ure by pass,ng deta,led order.
!h.:"·.~"u·
Col C\/.7.r ·1~ 17 ..... z,•11 D,sm,ssed on the gro'Jnd Of I,.• ' - •
,...,·na,.'JtnCJn maima,nao,lity ........, . ,.

')l t1!"0:
1 \.\·.
o' ,- . -,,.-:,.,;,;:
,....._ ._
Col C.-m9.! 21 .!91u ze1c 0 1sm1ssed 1t being r.ot ma ,:1tai,1able JJ5 :.?] :: _•:;;.:: JI 11 .'I
, .:""'... ,.:~m{;n
~J!,y ..(): -, 's.
v,,·~ of
Har_~a--c
'
'-· Col Crm:!J91Ie zy 10.1011 Dismissed ic be,ng no, maincai,,ab/e. J.b
· ..'.,
"-'1o"•• u/
I j., •·~ ti -:]
..,
\\ 'it h regard to files. CR\1 150 of 2020 and CRl\l P 3 20 t 9. it
1s :-ubmitt~d that CR\) 150 of 2020 wus not dispost:d off by this Courc.
\-.. per C'TS record. it was an application for early hearing dc~i<kd by
: . Tf~I)
Sh. O.:\. Bhardwaj, ASJ. Gurugram on 15.10.2020. with an on.h:r w lal! •......,
,,
Publ ~ ' ~, ;, : •
O/u ~!s~t. t-.. . · • ,~"i ·1-"' - ,. /j.)
1~1>rr{;-
28
it ''- ith main ca-;c: CR \IP J ~() 19 but th..: same \\'::\, not found tag.g..:d
with the case CRMP 1 J 2019 wht:n r..:c..:i\ cd by transfer in this Court.
Further. it is submitt.:d lhat ,,hen case lik 01· CRMP 3 2019 \\a:-.
Lonsi~11-:d in the re1.:ord room. having total pag...:s l006 i.e . 50.1 :-.hecb.
it did not include tilt.! of CRM 150 2020 as was not rccci\l.:d as :- uch
from the sraff of the: COL1rt of Sh. D.:\.Bhardwaj. Learned .- \dditional
S.:-,:;ions Judge. Gurugram. There is no information as to ho\\'
du~·u111e11ts other than consigncd wen: found tagg..:d later 1.e. atkr
consignment, as alkgcd by the applicant.
·'· It is further humbly submittcd that the matters shO\\·n

cli-;posed off in the list giwn above. \\ere disposed off by undersigned
ha\ ing in mind the luw on the subject and also the legal procedure
\\ l1id1 the plaintiff pctitioncr in the petitions plaint was required to
:i.>llow. Since. all these ordcrs ha,·c been passed on judicial side. the
applicant/petitioner. if has any grievance against the same, may be on
.111,· ground like ignor~rnce or documents or any law on the subject. he
ha~ remedy a\'ailablc lo challengt: the same bdorc appropriate Highi:r
Judicial Forum for redressal of his griC\UllCt: hut certain!) this cou11 is
not required to justify its dl.!cision on administrativl.! side to such
applicant until and unless the Higher Judicial Forum dct.!m it
appropriate to ask the same as judicial decision is ,1 decision till the.!
~arne is set aside on leg.al side of Hon'ble I ligher Forum. Neither. this
coun has power -to review its order until and unless a request in judicial·
form is made in consonance with the pro\'isions laid in section I 14 read
with Order XL \ 'II CPC, merely on the asking of an applicant as
othc:rwise desired in Jpplications. This is for your kind information and
ncL·cssary action please.
Thanking you,
Your's faithfully.
1.)1-~r,_fi~
<Phalit Shann,1)
Addi. District and Session-; .lud!.!.1.:-2.
(iurugram. -
\, ' ~ .,7 I f .); .l-:l---
\J~J-1'-v•• I
I •
f'u! ~i!c fn ~ /
......:=i
! -__ iT?. f )
~ .
:.,-,, ~ --
O/o Distt.:Ui/~;:;/, \ ½' ~-\

29
No. 729 /C .2 Dated 2J ,o /· 2o22-.

To
Sh . Phalit Sharma,
Ld. Additional District and Sessions Judge ,
Gurugram.
Sub: Application dated 06.01.2022 submitted by Lt. Col. (Veteran)

Sarvadaman Singh Oberoi .
Sir,
As directed by the learned District and Sessions Judge,
Gurugram, vide order dated 20.01.2022, I am to send herewith copy of
subject cited application dated 06.01.2022, submitted by Lt. Col. (Veteran)
Saravdaman Singh Oberoi with the request to submit the report qua the
averments made in the application, for taking further action in the matter.
Yours faithfully,
~~
Superintendent,
District and Sessions Courts,
Gurugram. ,..,... ,.rg~ 2.1--
611 1
\
A N /'\1 f__?( v R. £ - f 30
Subject: Application submitted by Lt. Col (Veteran) Sarvadaman

Singh Oberoi
Sir,
It is submitted that the applicant named above has
presented an application (which has also been received through e-mail)
wherein he submitted that CRM-338-2019 pertaining to CRMP-3-2019
(Main Case) was listed in the Court of learned Additional Sessions
Judge-II, Gurugram for 06 .01 .2022 . However, the main case was
dism:ssed vide order dated 29 .10.2021 though the above-mentioned
CRM as well as CRM-150-2020 for placing of 17 judgments remained
undisposed of and also the original police report dated 11 .11.2019 was
not available on the record.
Sir, it is further submitted that the applicant in the present

application has also given a reference to his application dated
02.11 .2021 as well as the contents of his application dated 23 .12.2021.
The said grievance of the applicant is being dealt with separately.
Sir, in the application in hand , the applicant has also

;-nentioned about submitting of three 16 GB flash drives in the CRMP-3-
2019 which were marked inadvertently as A, B and C, although the
marking of these flash drives should be A, A & A, B, B & B and C, C &
C.
Sir, if your Honour deems proper, the following steps may

be taken:
A) since the grievance of the applicant relates to a judicial

matter dealt with by the Court of Shri Phalit Sharma,
learned Additional District and Sessions Judge-II,
Gurugram, therefore, report from the concerned Court qua
the allegations raised in the applications may be ordered to
be called;
31
(9
OR
B. since the grievance relates to a judicial matter, the papers
in hand may be ordered to be filed,·
OR
C. Any other order which your good self deems fit m the
circumstances of the case
Submitted for necessary order please,

, J;, ,,,
. , : ·~ 1~1 ·:t ~ 2. z,.
Superintendent Grade-II (Establishment) (Ravi n de r Kumar)
Reader Grade-I (working in this office) (Parveen Pruthi)

~.U.L~ bLL<
Superj,nt§~dent (Lal1t Kumar)
.1t>\\\~ o;L
32
\,____
0
WHISTLE BLOWER :VIA TTER FOR INTERJ:'\J CO:\"SIDER,\ TfON ON 06.01.2022
From: Lt Col (Veteran) Sarvadaman Singh Obcroi. Age 72 years slo late Capt H.S. Obcroi
rfo 1102. Tower l, Uniworld Garden I, Sector 47, Gurugram 122018. Mob: 9818768J49.
Email: maniobcroi(l{gmail .com
To:'· ~istrict & Sessions Judge. District Court, Gurugram, Civil Lines. Gurugram 12200 I
Ld. Additional Sessions Judgc-02, District Court. Gurugram, Civil Lines. Gurugram
127.001
CRM 338/2021 in CRMP 3/2019 listed before Ld. ASJ-02 for 06.01.2022
Subject: Regarding {l) (n re request dated 23.12.2021 qua the addition (on 22.12.2021)
of the original police report dated 11.11.2019 submitted by Commissioner of Police.
Gurugram (remained inadvertently with uhlmad a/Lei. ASJ-0/) into Goslnvara record ~o.
33 7 of C Rl\-1 P 3/20 t 9 (consigned vic/e l.d. A SJ-01 order dated 29. I 0. !02 I witlwul said
original police report) [pending a decision by Ld. District & Sessions Judge, GurugramJ
(2) Updation & amendment of CRM 338/2021 in CRMP 3/2019 listcd before td. ASJ-
02 for 06.01.2022
(3) In re Reply dated 22. t 2.2021 to request dated 02.11.202 I
lNDF.X
SR
' PARTICULARS DATE PAGE
I
-
~o
-·
I
!
: .. - .. ---~ ~-~- -
I
...,
1. !Letter to Ld. District & Sessions Judge. Gurugram 06.01.22 2-6
~
'
2. .Letter to Ld. District & Sessions Judge. Gurugram 02.11.21 7
:Reply to Letter to Ld. District & Sessions Judge, Gurugram dated
3. ~2.12.21 8-1 l
02 .11.21
4. ~ cttcr to Ld. District & Sessions Judge, Gurugram 23.12.21 12-15
Date: 06.0 l .2022

Place: Gurugtram
.
-<l
~ :-f 4
~--t~
Lt Col (Veteran) Sarvadaman Singh Obcroi.

1102, Tower I, Cniworld Garden I, Sector 47.Gurugram 122018.
Mob: 9818768349. Email: maniobcroi(i~gmail.com
33
(n~,-;j,f~
~ ,1/,,_ r c, c 'l:l1>\
I,' ;' 2 :> I) -;, \\
• - ~le ... .......
•• :·• '.~~t <a-- ~
WHISTLEBLO\\/£R .\l,,\TTF.R FOR l~TERl:\I CO~SIDERATIOl\' ON 06.0l.i~2;'!l1"· : ..,•·:.-,-:~·

, •' t,• -( - µ-~-I ,;-v,t. ..
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From: Lt Col (Veteran) Sarvadaman Singh Obcroi, Age 72 years sio late Capt H.S. Obcro1 ~"-~
r'o 1102. Tower I, Uni world Garden I. Sector 47, Guru gram 1220 IR. Mob : 9818768349.
Email: maniobcroi(i1)gmail.com
To: Ld. District & Sessions Judge. Oistrict Court , Gurugram, Civil Lines. Gurugram 12200 I
Ld. Additional Sessions Judge-02. District Court. Gurugram. Ci\'il Lines. Gurugram
122001
CRM 338/2021 in CRMP 3/2019 listed before Ld. ASJ-02 for 06.01.2022
Subject: Regarding (I) In re request dated 23. I 2.2021 qua the addition (on 22.12.2021)
of the original police report dated 11.11.2019 submitted by Commissioner of Police,
Gurugram (remain ed inrufrertent~r ll'ith ah/mad of Lei. ASJ-01) into Goshwara record No.
337 of CR\'lP 3/2019 (con signed vic/e l.d. ASJ-02 order dated 29. /0.1021 ll'itho11t said
original police report) (pending a decision by Ld. District & Sessions Judge, Guru~raml
(2) Updation & amendment of CR'.\-1338/2021 in CRt\lP 3/2019 listed before Ld. ASJ-
02 for 06.01.2022
(3) In re Reply dated 22.12.2021 to request dated 02.11.2021
(Copies of letters dated 02.1 t.2021, 22.12.2021 & 23.12.2021 enclosed)
Sir.
1. It is humbly submitted that CRM 338/2019 in CRMP 3/2019 (the Main Climate
C'hangc Case) is listed for 06.0 I .2022 before Ld. ASJ-02 but the underlying Main
case CRMP 3i2019 appears to have been inadvertently dismissed while CRM
338/2019 in CRMP 3/2019 (the Main Climate Change Case) had yl!t to be decided.
2. That per law well settled if interim applications such as CR~vl 338/2021 in CRMP
3/2019 ((the Main Climate Change Casi!)) are not disposed on the date of disposal of
the Main case the disposal of the Main case is void , null and of no effect.
3. Thar from the contents of the Main case: disposal order dated 29 .10.2021 it becomes
clear as noon day that CRM P 3/2019 (the Main Climate Change Case) was disposed
by Ld. ASJ-02 \vho was not assisted by counsel \vho should ha\ e pointed out that the
original police report dated 11 . 11.2019 is not on the file. Hence, even as Ld. ASJ-02
is not to be faulted for this inadvertent error causing voidness of the order. the public
interest has been hanncd and reputation loss to infonnant also caused for no fault of
infonnant.
.j_ That from the contents of the Main case disposal order dated 29.10.2021 it becomes
clear as noon day that CRMP 3/201 9 (the Main C limate Change Case) \Vas disposed
by Ld. ASJ-02 who was not assisted by counsel who should ha\'e pointed out that the
34
CRM 150/2020 placing on record 17 judgement<; is :1lso not on the file . Hence-. t•v1m
as Ld. ASJ-02 is not to be faulted for inadvertent en-or of casting unjust blame on
informant for not filing judgements as ordered by court. causing voidness of the
order. the public interest has been hanncc.l an<l reputation loss lo informant also
caused for no fault of infomrnnt.
5. That per law well settled if interim applications such as CR\11 150/2020 in CRMP
312019 (the Main Climate Change Case) arc not disposed on the date of disposal of
the Main case the disposal or the Main case is void. null and of no effect.
6. That, request dated 02.11.2021 was made in this connection to Ld. District &
Sessions Judge, Gurugram & not having received any response to the request dated
02.11 .2021 an RT! application was then preferred on 14.12 .2021 as follows: ''(/).
Whistlehlower in judicial insti/11tio11s hm:·ing carried 011t i11speclio11 ~f the co11siglled
record of CRlv/P 312019. HRGR0J-0138/4-20/9 C{/ier obtaining approval of the
Superintendent has to make the following report: I. That tl,e/ile is complete ill all
re.,pects with rhe following two exceptions: (a) The original .filed CRM I 50/2020.
HRGR0/-006383-2020 is missing - however 134 pages heing "ANNX: POLICE
REPORT pp. l-134 (IN ORIGINAL) CERTIFIED RECORD" have heen de/ached
fi'om CRM 150/2020 mrd inserted into the Main File ofCRMP 312019, HRGR0!-
0/JR/4-2019 (b) /34 pages hei11g "POLICE REPORT I.I\/ ORIGINAL are _{<m11d
missingfi"om the consigned record <~lCRMP 3120/9, HRGR0!-0/38/4-20/92. That
the ,/bl/owing documents are enclosed to assist your oflice in preparing a proper
reply to this request: (a) 2020.08.27 EXTRACTS CRM 150 OF 2020 Final Request
in CRi'vfP 3 OF 1019 ON 27.08.2020 (Climate Crisis) wirh police report l8pp. pp.4-
21 (b) 2020.09.01 CRM 150 OF 2020 ORDER 0/.09.2()20 p.22 (c) 2020. 10.011 CRM
150 OF 2020 ORDER 08.10.2020 p.23 {cl) 202/.03./8 CAUSE LIST CRIMINAL ASJ
OJ pp.24-25 (e) 2021.11.02 LETTER TOLD. DSJ. GURUGRA,W 02.11.2021 p.26 (/)
2021. 12.14 CRlvf 150 OF 2020 Case Sta/Us 14.12.2021 p.27 (fl) . Kind~v intimate {a)
Was 110 lawful action raken hy District Court 011 the Request of u·histlehfower dated
02.1 J.2021 to resofre tlti.v anomalv in CRM 1501202 I which was me,ged into CR:HP
J/20 I 9, especial~r becau.w: it has been cm1clusively estah/islred in s11hsequent i11qui1J'
that the allegation (now proved to he fu/.,;e) against whistlehlmrC!r that /re.ft1iled to
prot'ide judgements repeatedly was the sole cause of illegal dismissal of CRMI'
J/20/9, l/RGROJ-0! 3814-2019 hy Ld ASJ-02 m1 29. /0.2021 '! That, 11otwithsta11ding
this fact, the additional illegalities in the J11dgeme11t o( illegal dismissal <?l CRJfP
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35
3120 19. HRGR0/-{}/38/4-!0/9 hy Lei. /1SJ-02 011 2CJ. IU.:!Oll are that CRM
338/202 I & CRM I 5012020 and Commissioner Police Gurugram Reporr supra all
rhree in CR.lfP 3120/9 remllined unaddressed as 011 29. 10.2()11 the date <?(illegal
dismissal. That i11 any cuse the complexfacts, d<:manded, as per law we!l-.,·e1tled. that
the respo11de11t be put to preliminary 111a11dare ofad111issio11 lde11iaf o(the /acf.1, in tens
of1ho11smu/s ofpages o.fjilcd docume111s which clearly would lial'e helped to arrive
at a lawful considered decision in this c:ase H'hic:h has hee11 "judic:ia/(\' executed/
hurclwrcd" thus murdering the ··conscie11cc: o( the Co11srit111ion " I Article 50. (h)
Since crime never dies, would the District Court consider recommendin~ cvrrecti\•e
action to avoid such sphinx like orders? (c) Since, in these and co1111e!cted maffers,
cufrance copies ar<! mandate of {cuslomary i11ternalio11al law). would The Dislricl
Court. G11rugram apprise it.te(f of entire C/L including UN GA Res fi(J/ /47 dt.
16.12.2005 (Customary lntemational la\\') and ensure tha1.fili11g he permitled under
Cll byjiling counter only ifthe D£je11da11t No. I (Main De/em/ant) has been served
advance copy'! (d) Because this is a mafler where victimology 1111der C/L amm111ts to
Crime Against Humanity, a Core Crime, for not making ejjective the justice under
Paris Princ:iplc:s. /993 & PHR Act. /993for 29th Year ru1111i11g, rec,scms, 11~ sought
ohnve are required to he provided under RT! Act. 2005, ,d1ic/1 otlwrwi.H' arf'
ordinari~i' not required to he provided; Therc~fi.,re.faithfi1/ly and truth/it/fr a11s wer all
ahm·e 3 questions without ,my sort of prel·arication. hecause such prevarication. if
established later. itse(f constirute another Crime Against Humanity. AT YOUR
PERSONAL RESPONSJB/LTY as responsible agent of the State (Union/ Federul
State both construed sing~r and joi11tly both). "
7. That on 22.12 .2021 at about 4 P.M .. this whistlcblower was requested to com!! to the
court office and receive official documents addressed to him. That the said document
when examined by the whistlcblO\-vcr revealed that th1.: "two exceptions·· mentioned
at para 6 above which existed from 22.11.2021 to at least 14.12.2021 appear to have
been '·rectified" perhaps by some quasi-judicial/ administrative action without
intimation to whistleblowcr on some date between 14. 12.2021 to 22 . 12.2021. most
likely on 22.12.202 l. as it appears that there was unusual urgency to hand over the
communication dated 22. 12.2021 to this whistleblowcr.
8. That the whistlcblowcr is much satisfied that the record of CRMP 3/2019. CRM
150i2020 & the .. missing'' 134 page original Comm issioner of Police. Gu rugra m
36
5
Report dated 11.11.2019 appears to have been traced out and appear to be factually
complete. now in the Goshwara No.337 / CRMP 3/2019.
9. However it was not ascertained in the reply, the manner and date of bringing ··the
missin!.! record as on and from 19. 10.'?02I till at l\!ast 14.12.2021/ 22.12.2021 ... a
delay of at least 46 days to 54 days (against time limit set by the Hon'blc High Court
of 15 days). back on record (hiatus in tlte missing record exfaredji-0,11 18.03.2021 to
29. Jn.202 /) in the file already consigned on 29.10.2021 vidr Judgement of the date
delivered by Learned ASJ-02, Gurugrain with Goshwara No. 337 dated 29. 10.2021 1
22.12 .2021. That important questions of law of rights of rcparatiorv restitution/
compensation arise in view of Civil Suit 91/2021 NDOH: 28 .01.2022 on this and
other accounts. hence it is requested that this matter may be resolved by some
administrative and/ or judicial order to regularize the error apparent during
21.09.2020 to 29.10.2021 and subsequent dates which has caused grave prejudice to
this whistleblower.
10. Hence the request dated 23. I 2.2021 was made by the whistlcblower which appears
to be pending a decision as of date. and a connected matter (CRM 338/2021 in CRMP
3/ 2019 (Main case)) is coming up on judicial side on 06.01 .2022.
11. That after informant filed CRM 338/2021 in CRMP 3i2019 (Main case) counsel
detected that the three 16 GB flash drives marked A. B & C have inadvertently got
mi::..labdlc<l and as a result all the three I b GB flash drives marked A. 13 & C
submitted to court were actually the A, A & A while in counsel & in notice copy said
tlash drives v.·ere in actual fact B. B & B and C, C & C. That on oral request made
on 28.10.2021 counsel was ac.lvisc!d to take up the issue on any appropriate date when
matter would be listed before court. That in view of submissions made below it may
be in the interests of justice that the counsel may seek updat ion of the flash drives
marked A. B & C inadvertently submitted to court on 27. 10.2021 as A. A & A by
addition of fresh documents upto 06.01 .2022 in the flash drive C proposed to be
rcplacedi submitted on or after 06.01.2022.
12. That in order to resolve this issue it comes to mind of the infom1am - Emphasising
on the art of "judicial creativity" which gives shape to judil:ial remedies of novel
nomenclature. Just ice Krishna Iyer observed in the case of State of Kcrala v.
Roshana, (1979) I SCC 572 at SCC p.586 at para 34 and SCC p.588 at para 39: "34.
Law is not unimaginative. .... .. .. where responsive (and responsible) justice is the
goal: courts c:amrot adopt a rigid allitude o( negatil'i(r. al/mring people and the
37
State. as such, tu run into darkness: rule ol Ian· 11111st com,· .fr1r rescue with cu111·t.\·
providing in11oi:ativej11dicial remedies 1i·hicl1 ure cupable o(mc>eting the necd'i of the
timr!. .... . Afier all, /all' is not a hroodi11g omnipresence in tlte sky hut an operational
art in soc.:ie~r. -.. 39. Afier all, the Court system he/ongs to the people! and must promote
constructive justic(' ; and all i11stitulio11s, i11cludi11g tl,e GCJ1'ffl111Je11ts .. .... . like1rise
helong to the people. This commitment is the whetstone.for doi11gj11stice in the wider
context cf social good."
13. That the only remaining wstigc (on judicial side) of the inadvertently disposed
CRMP 3/2019 is CRM 338i2021 in CRMP 3/2019 (the Main Climate Change Case)
14. If fresh prayer clause is added into CRM 338/2021 in CRMP 3/2019 (the Main
Climate Change Case) and if it were to be updated as on 06.0 I 2022 ( only in re flash
drive C) thus assuming the avatar of independent self sustaining & updated climate
change case reflecting also the cataclysmic changes of CO VID- 19, & its inevitable
mutations. grave & unacceptable failure of COP 26 & crimt:!s against humanity
caused by the illegitimate experimental/ emergency use vacc ine
enticement/inducement/forcing which does not advance the cause of scientific
medicine even as it enriches health/ wealth of ~NCs disproportionate to global
health/ wealth. (including Phanna majors & Microsoft. Apple 7 other IT majors all
of who are pushing high cost experimental/ EUL vaccines as a panacea for inaction
of ,vorld leadership to face the scientific truth of suppressing clean energy simply to
extend the shelf life of the KILLER fossil fuels and delay the inevitable financial
meltdown of the Mining. Pharma & Fossil Fuel MN Cs, it would honour the dictum
"rule <llaw must come.for rescue with court.~providing innormfre judicial remedies
which are capable of meeting th e needs <?I' the time" spoken of in State of Kerala "'·
Roshana, (J 979) I sec 572 at para 12 above ..
15. lt is proposed to suggest to counsel to rnove for "Liberty" to ke~p CRM 338/202 l in
CRMP 3/20 I 9 pend ing for a short date till the issue (quas i-judicial! administrative)
of request letter datc<l 23.12 .2021 and this letter dated 06.01 .20.22 is finally settled tu
the satisfaction of ld. District & Sessions Judge. Gurugram.
PR.\ YEO ACCO RDll'iGLY
[)ate: 06.01.2022 /'\ < 1 ~<,li
Place: Gurugrtam ~\{ ~
Lt Col (Veteran) Sarvadaman Singh Obcroi.
1102, Tower l, UniworldGarden l, Sector47,Gurugram 122018.
Mob: 98 I8768349. Emai l: ma niobcroi@gmail.com
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38
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7
irom: Lt Col (Veteran) Sarvadaman Singh Oberoi, Age 72 years s/o late Capt H.S. Oberoi
r/o 1102, Tower I, Uniworld Garden. Sector 47. Gurugram 122018, Mob; 9818768349,
Email: manioberoi@ gmail.com
To: Ld. District & Sessions Judge, District Co~ Gurugram

Subject: REQUEST FOR PROVIDING GOSHW ARA NOS. OF DECIDED CASES
Sir,
1. It is humbly submitted that twenty cases of human rights violations related to each other
on point oflaw (Section 31 of Act 10 of 1994) have been separately decided on separate
dates and consigned to record room by the courtofLd. ASJ-02 Gurugram between 20.04.21-
29.10.21, a clear violation of Article 141 lawoflndia/ Article 14. l ICCPR. 1966.
2. Kindly direct the office to provide Goshwara no. so as to enable inspection of the relevant
records and take further action as per Kantaru Rajeevaru v. Indian Young Lawyen
Association, 2020 (l) SCC 1* (S judges) at MANU paras 4 & 74 r/w Kaldip Singh v. The
State of Punjab AIR 1956 SC 391 (5 judges) MANU/SC/ 0036/1956 at MANU para 54
anJ Union oflndia & ors., v. Agricu LLP & ors., MANU/SC/0614/2020 (26.08.2020) at
MANU p.12 paras 26-27, p.13 para 29, pp.15-16 para 34, p.18 para 38. The cases are :
1. CRM 150 OF 2020 DISPOSED 15.10.2020/29.10.2021
2. CRM 130 OF 2016 DISPOSED 20.04.2021
3. APP 37 OF 2020 DISPOSED 08.07.2021
4. CRM 96 OF 2021 DISPOSED 08.07.2021
S. CRM 176 OF 2021 IN CRM 86 OF 2021 DISPOSED 08.07.2021
6. CRM 177 OF 2021 (sic 92 OF 2021) IN CRM 96 OF 2021 DISPOSED 08.07.2021
7. CRM 178 OF 2021 fN APP 37 OF 2021 WITH ANNEXURES DISPOSED 08.07 2021
8. CRM 179 OF 2021 IN CRM 92 OF 2021 DISPOSED 08.07 2021
9. APP 32 OF2020 DISPOSED 19.07.2021
10. APP 33 OF 2020 DISPOSED 19.01.2021 .
11. APP 34 OF 2020 DISPOSED 19.07.2021
12. CM 788 OF 2019 DISPOSED 19.07.2021
I3. CRM 70 OF 2018 DISPOSED 27.08.2021
14. CRM 71 OF 2018 DISPOSED 27.08.2021
·15. CRM 72 OF 2018 DISPOSED 27.08.2021
16. CRM 73 OF 2018 DISPOSED 27.08.2021
17. CM 737 OF 2019 DISPOSED 17.092021
18. CRM 92 OF 2021 DISPOSED 29. I0.2021
19. CRM 119 OF 2018 DISPOSED 29.10.2021
20. CRMP 3 OF2019 DISPOSED 29.10.2021
Prayed accordingly ~
Date: 02.11.2021
Place: GW'Ugram - ~ 41
Lt Col (Veteran) Sarvadaman Singh Oberoi,
1102, Tower I. Uniworld Garden, Sector 47,Gurugram 1no1s,
*MANU/SC/1565/2019
~
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39
R
'----
No. 92-<J£ IC.2 Dated J 2. I)., 2<.~2.1
To
Lt. Col Veteran Sarvadaman Singh Oberoi.
Resident of 1102, Tower No. 1, Uniworld Garden,
Sector 47, Gurugram.
Subject : Request for providing Goshwara numbers of decided cases .
Ref. Request dated 02.11 .2021
I am directed by the learned District and Sessioris Judge,

Gurugram, vide order dated 17.12.2021 to send herewith list of goshwara
numbers submitted by the Record Keeper, Record Room , 1Sessions Courts.
Gurugram with regard to the cases mentioned in application dated 02.11.2021
~~,(j1.~
Superintendent,
District and Sessions Court,
Gurugram 22. 12.2021
CM ·4 v
I
40
9
To,

Gu rug ram.
Subject:
17.12.2021.
Respected Sir,
I have the honour to submit herewith requisite informtaion as desired by Lt.

Col Vetern Sarvadaman Singh Oberoi for providing Goshwara number of decided cases .
List of same is hereby enclosed with this letter.
-f{AA~"""/
Record Keeper
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41
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1. CRM No. 130 of 2016, RBT No. 03 of 2016/2021 , titled as
Sarvadaman Singh Vs State of Haryana, decided by Sh. Phalit Sharma ,
Add itional District Judge, Gurugram on 20.04 .2021, bearing Goshwara No.
163.
2. APP No. 37 of 2020, RBT No. 24 of 2020/2021, titled as Sarvadarrnm

Singh Vs State of Haryana, decided by Sh . Phalit Sharma, Additional District
Judge, Gurugram on 08.07.2021. bearing Goshwara No. 120.
3. CRM No. 176 of 2021, RBT No. 150 of 2021, titled as Sarvadaman
Singh Vs State of Haryana, decided by Sh. Phalit Sharma, Additional District
Judge, Gurugram on 08.07.2021, bearing Goshwara No . 164.
4. CRM No . 177 of 202 1, RBT No. 151 of 2021 , titled as Sarvadaman

Singh Vs Sta te of Haryana, decided by Sh. Pha lit Sharma , Add itional District
Judge, Gurugram on 08.07.202 1, bearing Goshwa ra No . 165.
Singh Vs Union of India, decided by Sh . Phalit Sharma, Additional District
Judge, Gurugram on 08.07.2021, bearing Goshwara No. 166.
Judge, Gurugrarn on 08 .07.2021, bearing Goshwara No. 167.
7. APP No. 32 of 2020, RBT No. 06 of 2020/2021, titled as Sarvadaman

Singh Vs Union of India, decided by Sh. Phalit Sharma, Additional District
Judge, Gurugram on 19.07.2021 , bearing Goshwara No. 1°86.
8. APP No. 33 of 2020, RBT No. 04 of 2020/2021 . titled as Sarvadaman

Singh Vs Union of India, decided by Sh . Phalit Sharma, Additional District
Judge, Gurugram on 19.07.2021 , bearing Goshwara No. 184.
9. APP No. 34 of 2020, RBT No. 05 of 2020/2021, titled as Sarvadaman

Singh Vs Union of India, decided by Sh . Phalit Sharma. Additional District
Judge, Gurugrarn on 19.07.2021, bearing Goshwara No. 185.
10. CM No. 788 of 2019, RBT No. 07 of 2019/2021, titled as Sarvadaman

Singh Vs Union of India, decided by Sh. Phalit Sharma, Additional District
Judge, Gurugrarn on 19.07 .20.21 ,-bearing Goshwara No. 187.
11. CRM No. 70 of 2018 , RBT No. 08 of 2018/2021, titled as Sarvadaman

Singh Vs State of Haryana, decided by Sh . Phalit Sharma, Additional District
Judge, Gurugrarn on 27 .08 .2021, bearing Goshwara No. 284 .
12. CRM No. 71 of 2018 , RBT No. 09 of 2018/2021, titled as Sarvadaman

Judge, Gurugram on 27.08.2021 , bearing Goshwara No. 285 .
13. CRM No. 72 of 2018, RBT No. 10 of 2018/2021, titled as Sarvadam 3 n

S ingh Vs State of Haryana. decided by Sh. Phalit Sharma , Additional District
Judge, Gurugram on 27 .08.2021 , bearing Goshwara No. 286.
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C'"':
?uiJit ~• :_l !t ,:-;.,•• ;l,,J ,;'
()!r_, fJistl. ,.,. ·- • '!>S1C) ,i:., _; -,:-;,:_;r. ''

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42
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14. CRM No. 73 of 2018, RBT No. 11 of 2018/2021, titled as Sarvadaman

Judge, Gurugram on 27.08.2021, bearing Goshwara No. 295.
15. CRM No. 92 of 2021, RBT No. 15 of 2021, titled as Sarvadaman Singh
Vs State of Haryana, decided by Sh . Phalit Sharma , Additional District Judge,
Gurugram on 29.10.2021, bearing Goshwara No. 335.
Singh Vs State of Haryana, decided by Sh . Phatit Sharma, Additional District
Judge, Gurugram on 29.10.2021 , bearing Goshwara No. 336.
17. CRMP No. 03 of 2019, RBT No. 13 of 2021, titled as Sarvadaman

Judge, Gurugram on 29.10 .2021, bearing Goshwara No. 337.
18. CRM 150 of 2020, Disposed 15.10.2020/29.10 .2021 is attached with

main case file CRMP No. 03 of 2019, RBT No. 13 of 2021, titled as
Sarvadaman Singh Vs State of Haryana, decided by Sh . Phalit Sharma ,
Additional District Judge, Gurugram on 29 .10.2021 , bearing Goshwara No .
337.
19. CRM 96 of 2021, Disposed 08.07.2021 is attached with main case file
CRM No. 92 of 2021, RBT No. 15 of 2021, titled as Sarvadaman Singh Vs
State of Haryana, decided by Sh. Phalit Sharma, Additional District Judge,
Gu rug ram on 29.10 .2021, bearing Goshwara No. 335.
20. CM 737 of 2019, Disposed 17.09.2021 is attached with main case file
CM No. 699 of 2019, RBT No. 18 of 2019, titled as Sarvadaman Singh Vs
Union of India, decided by Sh. Sandeep Kumar Ouggal, Additional District
Judge, Gurugram on 13.05 .2019 , bearing Goshwara No. 757.
· --...: -- .:.....i.;::... .:.. .. ~ ; • • • . •

43
12 0
from: Lt Col (Veteran) Sarvadaman Singh Obcroi. Age 72 years s/o late Capt H.S. Obcmi
r/o 1102. Tower I. U11iworld Garden. Sector 47, Gurugram 1220 I 8. Mob: 98 l 876X349,
Email: maniobcroi@gmail.com
To: Ld. District & Sessions Judge. District Court. Gurugram

Through
Ld. Additional District Judge-0 I, Di::-triet Court. Gurugram
Subject: I~ RE REQUEST DATED 02.11.2021 FOR PROVIDI:\fG GOSHWARA NOS.
OF DECIDED CASES (COPY OF LETTER DATED 02.11.2021 ENCLOSED)
Sir.
I. ft is humbly submitted that on 02.11.2021 an application ,,,:as made as follows "/. It
i.r; lwmb(v .rnhmiued that twenty cases of human rights violations related 10 each
other 011 point of law (Section 31 o/A cl IO C?f' 1994) have been ,eparatelv decided 011
separate dates and consigned to record room hy the court <~f' Ld. ASJ-02 Gurug ram
hetween 20.04.2 1-29. I0.2 !. a clear violation ofArticle 141 lm r <f India/ ArNcle ·14. I
/CCPR, /966. 2. Kind~i• direct the office lo provide Goshwara no. so as lo enahle
inspection o(the relevant records and take fi1rther action as per Ka11taru Raieevaru
v. lndiatt Yo1111g lawyers A.'isociatio11, 2010 (2) SCC I* (5 judges) at JfA/1/ U paras
4 & 74 rlw K11/dip Singh ~•. The State of Pu11jab AIR 1956 SC 191 (5 j11clges)
MANUISCI OOJfS/1956 at lvfAi'v'Upara 54 and Union nf India & or.'i., ,,. Agric:as LLP
& or.-.., MANU/SC/0614/2020 (26.08.2020) at MANU p. /2 paras 26-27, p. f 3 para
29, pp.15-16 para 34. p.18 para J('{. The cases are: I. CRM 150 OF 2020 DISPOSF.n
/5./0.2020129.J0.202/ 2. CRM /30 OF 1016 DISPOSED 20.04.Wll 3. APP 37 OF
20!0 DISPOSED 08.07.2021 4. CRM 96 OF 202/ DISPOSED 08.07.2021 5. CRM
176 OF 102 I /,V CRM 86 OF 202 I DISPOSED 08.07.202 J 6. CRM I 77 OF 202 I
(sic 92 OF 2021) IN CRM 96 OF 202 I DISPOSED 08JJ7.202 I 7. CRM 178 OP 202 I
IN APP 37 OF 202/ WITH ANNEXURES DISPOSED OfU/7.202! 8. CR/vi 179 OF
2()1 ! IN CR/vi 92 OF 202 I DISPOSED 08.07.2021 9. APP 32 OF 2020 DISPOSED
19.07.2021 JO. APP 33 OF 2020 DISPOSED 19.07.2021 II. APP 34 OF 2020
DISPOSED 19.07.1021 12. CM 788 OF 20/9 DISPOSED J<).fJ7.202l /3. CRM 70
OF 2018 DISPOSED 27.0R.202/ 14. CRM 71 OF 2018 DISPOSED 27.08.2021 / 5.
CRlvf 71 OF 20/R DISPOSED 27. 08.2021 16. CRM 73 OF 20/8 DISPOSED
J7JJ8.202I 17. CM 737 OF 2019 DISPOSED 17.09.2021 /8. CRM 92 OF 2021
DISPOSED 29. 10.2021 /9. CRM119 OF 20/8 DISPOSt:D 29. /0.2021 20. CR}v/P
3 OF 2019 DISPOSED 29.10.202 I Prayed aa·ordi11gly *MAXl//SCl / 56512019"
44
13
2. That consequent to this request at least one file which was required to be consigned
by 14.10.2021 was consigned by 22. I 1.2021 out of this set of connected cases the
one at serial 20 (CRMP 3/2019 -- being the main case) . The consigned record of
CRMP 3/2019 was thereupon inspl:!<.:lt:<l afkr obtaining permission or the authorised
officer.
3. That not having received any response to the request dated 02 . 11 .2021 an RTI
application was then preferred on 14.12.2021 as follows: "(!). Whistlehlower in
judicial i11stilutio11s having carried out i11spectio11 <?(the co11sig11ed record o(CR/1,fP
3,'1019, HRGR0!-0/38/4-20/9 a/ier ohtaining approval o/the Superi11te11d£'nf has
to make the folloll'ing repon : I. That the .file is complete i11 all- respec1s ll'itl, the
folloiring l\\'o exceptions : (a) The originaljiled CRM I 5()/2020. HRGR0/-0()6383-
2()2() i!i missing - however 134 pages heing "ANNX: POl/CE REPORT pp. l-134
(IN OR/(j/NAL) CERTIFIED RECORD" hm·e hee11 detached from CRM 15012020
and inserted into the Main File o.f CRMP 3/20/9. IIRGR0/-0/38/4-20/9 (h) /34
pages heing "POL!CE REPORT IN ORIGINAL are found missing ji-om tire
mnsigned record of CRMP 3/2019, HRGROl -0/3814-20/92. That rhe .fc1llowi11g
cluc:ume11ts are enclosed to assist your <~llice in preparing u proper rep(l' to this
request: (a) 2020.08.27 EXTRACTS CRM I 50 OF 2020 Final Request in CRMP 3
OF 2019 ON 27.08.2020 (Climate c,.;sis) with police report /8pp. pp.4-2/ (h)
20~0.09.0I CRJ! 150 OF 202() ORDER 01 .09.1020 p.22 (c) 202IJ. J(J.U8 CUM I 50
OF 2020 ORDER 08.10.2020 p.23 (dJ 202/.nJ.18 CAUSE LIST CRIMINAL ASJ Of
pp.24-25 (e) 2021./1.02 LETTER TOLD. DSJ. GURUGRAM 02.11.2021 p.26 (/)
202/.12. 14 CRM 150 OF 2020 Case Swtus 14. 12.202 I p.27 (II). Kind(v inrimate (ct)
Was 110 lmi:fit! action taken by District Court on the Request of whistleblowcr elated
02. I / .202 I to re!iofre this a11oma(v in CRM l5fJ/2fJ2 I which was merged into CRMP
311019. especially hernuse it has heen conc/11sfre~1: estahlished i11 suhsec1ue11t i11qui1:11
that the a/legation (now proved to hefalse) against whistleh/owcr that he jailed to
provide judgements repeated~r was the sole cause ol illegal dismissal <~/' CRMP
J/10I 9. HRGR0/-013814-20 /9 hy Ld. ASJ-02 011 29. 10.202 J:1 That, 11otwitl1s1a11di11g
this .fi.tc·t. the additional illegalities in the Judgeme11t <~{ illegal dismissal of CRJ1P
3120/9. HRGR0/-0/3N/4-20/<J hy ld. ASJ-02 011 29./0.2021 are tha1 CR;l,l
3381202 I & CRA,f 15012020 and Commissioner Police Gurugram Report supra oil
three i11 CR:\,/P 312019 remained unaddressed as on 29. /0.2021 the elate of illegal
disrnissal. That in any case the complex/acts, dc:manded, as per law we/I-settled, that
(A . ,' T - ~-,-r:.:1
• ·- J~
• I { ---;:,.
~Llb c In i'fTl ti.Jn OC1ice:

0 /o Di~tt. S ssions judf u
Gurugram ( 'f. W
Iz_J_.
~ . . : . . ..;.:.at"' ~
45
14
the re!spo11de111 he put to pre/iminw)' mandate ofadmissio11/de11ia/ of the.facts in tens

~j'tlw11sa11ds ofpages ~/filed documents which clear~v would hm·e helped lo arrive
at a lau:/it! co11sidered decision i11 this case 1d1ich has heen 'judicial~v executed!
hwchered" thus murdering the "co11:,wie11ce of the Co11stitlllio11" I Articfl' 50. (h)
Since crime never dies, 1nwld the Dis1rict Cnurr consider recommending corrective
actiofl to avoid such sphinx like orders? fc) Since, in these and connected matters,
adra11ce copies are mandate (f (c11sto11w1T i11ternatio11a/ Ian'). wo11fd Thl' Dislrkl
Court, Gurugram appri.w: itself <1. entire Cll including UN GA Res 60/147 dt.
16. 12.2005 (C11stommJ' !11ternatio11al I.au) and ensure that.filing he permilfr?d under
Cll hy.fi/ing cow1rcr onfr [/"the Defendant No. I (Main Defe11da11tJ has hee11 served
advance copy? (d) Bt'ccmse this is a mat/ff where victimulogv under Cll m1101111ts Jo
Crime Against Humanity, a Core Crime, for 1101 making effective the justice Ull{fer
Paris Principlt'S, /993 & PHR Act. ICJCJ3 for 2CJth Year rw111i11g, reasons. as sought
ahove are required to he provided under RT! Act. 2005, u·hich othe,wise are
ordinarily not required to he provided; There.fore_faithfi.t!~r and trutliful~v a11.,·11-er all
ahove 3 questions without any son ofprevarication, hecause :..uch prevarication, if
established !mer, itself constitute another Crime Against Humanity, AT YOUR
PERSONAL RESPONSIBILTY as responsihle agent of the Stat<' (Union/ Federal
State both construed sing~i• a11djoi11l~l' hoth). "
4. That on n.11 .202 I at about 4 P.M .. this whistkblower was r~questcd to come to the
when examined by the whistlcblowcr revealed that the '·two exceptions" mentioned
been expunged perhaps by some administrative action without intimation to
whistlcblower on some date between 14.12.2021 to 22 12.2021. most likely on
22. 12.2021. as it appears that there was unusual urgency to hand over the
communication dated 22.12.2021 to this whistlcblower.
5. That the whistlcblowcr is much satisfied that the record of CRMP 3/2019, CRM
150/2020 & the ·•missing" 134 page original Commissioner of Police. Gurugram
Report dated 11 .1 1.2019 app(!ars to have been traced out an<l appear to be factually
complete.
6. However it has not been ascertained in the reply, the manner and date of bringing
.. the missing record as on and from 29.10.2021 till at least 14.12.2021 / 22. I2.202 I".
a delay of at least 46 days to 54 days (against time limit set by the Hon 'blc High
--·-- ~ •. ,_
46
15CiD
Court of l 5 days). back on record in the file already consigned on 29. 10.2021 vide
his Judgement of the date delivered by Learned ASJ-02, Gurugram with Goshwara
No. 337 dated 29. 10.2021 t 22. 11.2021 ,' (22.12.202 I?). That important questions of
lav,-· of rights uf reparation.' restitution/ (;Otnpcnsation aris1: in view of Civil Suit
91 /2021 NDOH: 28 .01 .2022 on this and other accounts. hence it is requested that this
matter may be resolved by some administrative and/ or judicial order to regularize
the error apparent during 21.09.2020 to 29.10.202 l and subsequent dates which has
caused grave prejudice to this whistleblo\vcr.
PRA YF:D ACCORDl~GLY
;
Date: 23 . 12.2021 -· !
Place: Gumgrarn -:- -·----jo,. ,1 ,,
Lt Col (Veteran) Sarvadaman Singh Oberoi.
1102. Tower I. Uniworld Garden. Sector 47,Gurugram 122018.
Mob: 9818768349. Email: manioberoi@gmail.com
47
To
✓I. Dr. D.N. Bhardwaj,
Additional District and Sessions Judge,
Gurugram
ii. Shri Phalit Sharma,
Gurugram
Subject: Application dated 23 .12.2021 submitted by

Lt. Col (Veteran) Sarvadaman Singh Oberoi
Sir,
Please find enclosed herewith copy of Application dated

23.12.2021 submitted by Lt. Col (Veteran) Sarvadaman Singh Oberoi.
I am directed by the learned District and Sessions Judge,

Gurugram to request your good self to submit report with regard to record
pertaining to CRM 150 of 2020 as well as original police report as alleged by
the 3pplicant in the application.
Yours sincerely,
~~ol~
Superintendent,
Gurugram.
48
ANNr- XU/{{: - H
OFFICE OF THE DISTRICT AND SESSIONS JUDGE, GURUGRAM ®

No. 4 {, O /c elf Dated ( .3 •OI· 2{.12 L_
To
I. Dr. D.N. Bhardwaj,

Gurugram
v(
II. Shri Phalit Sharma,
Gurugram
Subject App lication dated 23.12.202 1 submitted by

Lt. Col (Veteran) Sarvadaman Singh Oberoi
Sir,
Please find enclosed herewith copy of Application dated

23.12.2021 submitted by Lt. Col (Veteran) Sarvadaman Singh Oberoi .
I am directed by the learned District and Sessions Judge,

Gurugram to request your good self to submit report with regard to record
pertaining to CRM 150 of 2020 as well as original police report as alleged by
the applicant in the application.
Yours sincerely,
l~
Superintendent,
Gu rug ram .
...-:., - ..
49
OFFICE OF THE DISTRICT AND SESSIONS JUDGE, GURU GRAM
Subject: Request dated 02.11 .2021 for providing goshwara

numbers of decided cases - made by Lt.Col.(Veteran)
Sarvadaman Singh Oberoi.
Sir,
It is submitted that the applicant named above has
presented an application wherein he submitted that he had moved an
application on 02 .11 .2021 for providing goshwara numbers of the cases
mentioned in the application itself. It has been further submitted by the
applicant that he had inspected the record of CRMP-3 of 2019 and it
was revealed that original file bearing CRM No. 150/2020 was not
tagged with the file of CRMP-3 of 2019 and further there was missing of
original police report dated 11 .11.2019.
It has been further submitted by the applicant that later on
the file of CRM 150/2020 and the said original police report were traced
and the same were tagged with CRMP 3/2019, however, the same was
done without any order of the Presiding Officer.
Hence, by way of this application, the applicant requests
that the matter may be resolved by administrative or judicial side to
regularize the above-said error.
Sir, it is further submitted that vide appl ication dated
02.11 .2021 the applicant made request for providing goshwara numbers
of as many as 20 cases and vide order dated 17.12.2021 the request of
the applicant was accepted and he has been supplied the goshwara
numbers of the cases as provided by the Record Keeper.
Sir, now the grievance of the applicant is that the record of
CRM 150/2020 as well as original police report which were to be tagged
with the file of CRMP 3 of 2019 were not tagged at the time of
consignment of file of case bearing CRMP 3 of 2019 and the same was
done later on without any order of the Presiding Officer.
...,,,.. ,-,,,
P11b c fr, ,r;; ,: ;: : ) n ·J •• ,_. : •
O.'•J DistL .:, ·.::;·, nn'..t J• . :;'..iO

Gurugram j~ X I I 2.. l..
50
\.__,,
.2.
Sir, it is further submitted that all the matters of the applicant

as mentioned in his application have been disposed of by Shri Phalit
Sharma, learned Additional District Judge-II, Gurugram, being Special
Court to deal with the cases under Human Rights Act. Before joining of
Shri Phalit Sharma, all such matters were dealt with by Dr.
D.N .Bhardwaj being Additional District Judge-II, Gurugram . After joining
of Shri Phalit Sharma as Additional District Judge-II at Gurugram , all the
matters of the applicant were transferred to that Court being Special
Court. However, it is the allegation of the applicant that record of CRM
150 of 2020 as well as original police report dated 11 .11.2019 remained
in the Court of Dr. D.N.Bhardwaj and the same were tagged with the file
of CRMP3 of 2019 later on after its consignment by the staff of the
Court of Shri Phalit Sharma, learned Additional District Judge-II,
Gurugram and that too without any order either passed by the Court of
Dr. D.N. Bhardwaj or Shri Phalit Sharma, learned Additional District
Judges, Gurugram .
Sir, if your Honour deems proper, the following steps may

be taken :
A) report with regard to keeping of record of CRM 150 of 2020

as well as original police report may be ordered to be
called from the Court of Dr. D. N. Bhardwaj, learned
Additional District Judge, Gurugram;
OR
B) report with regard to said aspect may be ordered to be

sought from the Court of Shri Phalit Sharma, learned
Additional District Judge, Gurugram
OR
51
C. Any other order which your good self deems fit in the
circumstances of the case
Submitted for necessary order please,
SuperintendEjht Grade-II (Establishment)
Reader Grade-I (working in this office)

/. ,
Superi_~ ndent

52
ANN £x UR_f_- I
\___,,
From: Lt Col (Vctera~) Sarvadaman Singh Obcroi, Age 72 years s/o late Capt H.S. O~6L -::--:'--
r/o I _I 02, T~wcr I: Uniwo_rld Garden, Sector 47, Gurugram 122018, Mob: 9818768¥,?/'-· ........, ... \
Email: maniobcro1@ gma1l.com { / _~
{f 1 '.,,.;:;ti;,
~I. .! 5/ 1ls_\\
~. • : ::_ I~
To: Ld. District & Sessions Judge. District Court, Gurugrarn ~~:~ · r,~ .. ~ . ... . . . t. ;;
Through t·'\;_,'.-.. ;,t,..
~'\"\'.. .I-<
I 'v_'li 1,..-1 .-../
• . •.·,1,1
~ - Additional District Judge-OJ, District Court, Gurugrarn '~}✓-·'
Subject: IN RE REQUEST DATED 02.11.2021 FOR PROVIDING GOSHW ARA ~OS.

OF DECIDED CASES (COPY OF LETTER DATED 02.11.2021 ENCLOSED)
Sir,
I. It is humbly submitted that on 02.11.2021 an application was made as follows "/. It
is humbly submitted that twenty cases of human rights violations related to each
other on poinl of law (Section 31 nfAct /0 of 1994) have heen separately decided 011
separate dates and consigned to record room hy the court <?f ld. ASJ-02 Gurugram
between 20.04.21-29.10.2 / , a clear violation of Article 14 l law of India/ Article /4. I
ICCPR. 1966. 2. Kindly direct the o.tfice to provide Goshwara no. so as to cnahle
inspection ~f the relevant records and take.further acl ion as per Kantaru Rajeevaru
v. Indian You11g Lawyer.v A.'i.vociation, 2020 (2) SCC I* (5 judges) at MANU paras
4 & 74 rlw Ku/dip Singh v. The State of Punjab AIR 1956 SC 391 (5 Judges)
MANUISC/0036//956 at MANU para 54 and Union ,,Jlndia & or.-.., v. Agrica.,; LLP
& ors., MANU/SC/061412020 (26.08.2020) at MANU p.12 paras 26-27. p.13 para
29, pp.15-/6para 34,p./Bpara 38. The cases are: 1. CRM l500F 2020 DISPOSED
!5.I0.2020/29. /0.202/ 2. CRM 130 OF 2016 DISPOSED 20.04.2021 3. APP 37 OF
2020 DISPOSED 08.07.2021 4. CRM 96 OF 2021 DISPOSED 08.07.2021 5. CRM
176 OF 2021 IN CRM 86 OF 2021 DISPOSED 08.07.2021 6. CRM 177 OF 1021
(sic 92 OF 202 I) IN CRM 96 OF 2021 DISPOSED 08.07.2021 7. CRM 178 OF 202 I
IN APP 37 OF 2021 WITH ANNEXURES DISPOSED 08.07.2021 8. CRM /79 OF
202/ IN CRM 92 OF 2021 DISPOSED 08.07.2021 9. APP 32 OF 2020 DISPOSED
19JJ7.2021 JO. APP 33 OF 2020 DISPOSED I9.07.2021 II . APP 34 OF 2020
DISPOSED 19.07.2021 12. CM 788 OF 2019 DISPOSED 19.07.2021 13. CRM 70
OF 2018 DISPOSED 27.08.2021 14. CRM 71 OF 2018 DISPOSED 27.08.2021 15.
CRM 72 OF 20/8 DISPOSED 27.08.2021 16. CRM 73 OF 2018 DISPOSED
27.08.2021 17. CM 737 OF 2019 DISPOSED 17.09.2021 IH. CRM 92 OF 2021
DISPOSED 29. /0.2021 19. CRM 119 OF 2018 DISPOSED 29./0.202/ 20. CRMP
--..J. -
53
2. That consequent to this request at least one file which was required to be consigned
by 14. I 0.2021 was consigned by 22. I 1.2021 out of this set of connected cases the
one at serial 20 (CRMP 3/20 I 9 - being the main case). The consigned record of
CRMP 3/2019 was thereupon inspected after obtaining permission of tilt: authorised
orficcr.
3. That not having received any response to the request dated 02.11.2021 an RT(
application was then preferred on 14.12.2021 as follows: "( /). WhistleblowC!r in
judicial institutions having carried out inspection of the consigned record r?f' CRMP
3/20/9, flRGR0l-0138/4-2019 a.fier obtaining approval oj'the Superintendent has
to make the following report: 1. Thal the .file is complete in all respects with the
following /',1.'0 exceptions: (a) The original.filed CRM / 5()/2()2(), HRGR0J-006383-
2020 is missing - however l 34 pages heing "ANiVX: POLICE REPORT pp. l-/34
(JN ORIGINAL) CERTIFIED RECORD" have hee11 detached from CRM J50/2020
and inserled into the Main File of CRMP 3/2019. HRGR0l-0138/4-20/9 (h) 134
pages heing "POllCE REPORT IN ORIGINAL are found missing ji-om the
consigned record of CRMP 312019, HRGR0l-0/38/4-20/92. That the .f<J/lowing
doc:ume11/s are endosed Jo assist your o.Oh'e in preparing a proper reply Lo this
request: (a) 2020.0H.27 EXTRACTS CRM 150 OF 2020 Final Request in CRMP 3
OF 20/9 ON 27.08.2020 (Clirn,ue Crisis) with policC! report J8pp. pp.4-21 {h)
2020.09.01 CRM 150 OF 2020 ORDER 01.09.2020 p.22 (c) 2020.10.0l/ CRM 150
OF 2020 ORDER 08./0.2020 p.23 (d) 2021.03. /8 CAUSE LIST CRIMINAL AS.I OJ
pp.24-25 (e) 2021. JI.02 LEITER TOLD. DSJ, GURUGRAM 02.11.2021 p.26 (!)
2021.12.14 CRM 150 OF 2020 Case Status /4. I 2.202 I p.27 (1/). Kindly intimate (a)
Was 110 law.fit! actiun taken hy District Court 011 the Request of whistleblower dated
02. I J.2021 to resolve this anomaly in CRM 150/202 I which was merged into CRMP
3120 I 9. especia{/y hecause it has heen c:onclusively estahlished in suhsequent inquiry
that the a/legation (now proved to he false) against whistlehlower that he.failed to
provide judxements repeatedly was the sole cause <>[ illeJ:al dismissal of CRMP
3120/9, HRGR0l-013~14-20/9 by l.d. ASJ-02 on 29. 10.202 I'! That. norwith\·tanding
this fc1ct, the additional illegalilies in lhe Judgement of illexal dismissal <~l CRMP
312019. HRGR0!-0138/4-20/9 hy l.d. AS.l-02 on 29. 10.202 I are that CRM
338/2021 & CRM 150/2020 and Commissioner Police Gurugram Report supra all
three in CRMP 3/2019 remained unaddrcssed as on 29. J0. 202 I the date of illegal
di,mis., al. That in any case the complexfi,cts, demanded, as per l•::rcl::•::tlcd, that
t-
' ,
P'.;bl' tn for : :·.11 · •;1 Q:f:,: 0:i
Olv Di, !t. & ' ~;;s1or.; j.;,:! .p
<._~urwy3:n \ '-1, \ x. I L.l--
54
3
the respondent be put to preliminary mandate ofadmission/denial of the.facts in tens

of thousands ofpages of.filed documents which clearly would have helped to arrive
at a !a'wful considered decision in this c.we which has heen ''judicially executed/
hutchered'' thus murdering the "conscience (Jf the Constitution" I Article 50. (h)
Since crime never dies. would the District Court consider recommending corrective
action to avoid such sphinx like orders? (c) Since. in these and connected matters.
advance copies are mandate <4. {customary international law), would The District
Court, Gumgram apprise itself of entire Cll including UN GA Res 60//47 dt.
16.12.2005 (Customary International law) and ensure that.filing be permitted under
Cll by.filing counter only if the Defendant No. I (Main Defendant) has been served
advance copy? (d) Because this is a matter where viclimology under Cll amounts to
Crime Against Humanity, a Core Crime, for not making effective the justice under
Paris Principles, 1993 & PHR Act, 1993 for 29th Year runni11g, reasons. as sought
above are required to he provided under RT/ Act, 2005, which otherwise are
ordinarily not required to he provided; There_[<>re.faithfully and truthfully answer all
ahove 3 questions without any sort of prevarication, because such prevarication, (l
established later, itse(f constitute another Crime Against Humanity, AT YOUR
PERSONAL RESPONSIBILTY a.'i responsihle agent of the State (Union/ Federal
State both construed singly and jointly hath)."
4. That on 22.12.2021 at about 4 P.M., this whistleblower was requested to come to the
when examined by the whistleblower revealed that the "two exceptions" mentioned
been expunged perhaps by some administrative action without intimation to
whistleblower on some date between 14.12.2021 to 22.12.2021, most likely on
22.12.2021, as it appears that there was unusual urgency to hand over the
communication dated 22.12.2021 to this whistleblower.
5. That the whistlcblowcr is much satisfied that the record of CRMP 3/2019, CRM
150/2020 & the "missing" 134 page original Commissioner of Police, Gurugram
Report dated 11.11.2019 appears lo have been traced out and appear to be factually
complete.
6. However it has not been ascertained in the reply, the manner and date of bringing
"the missing record as on and from 29. I0.2021 till at least 14.12.2021 / 22.12.2021",
a delay of at least 46 days to 54 days (against time Jimit set by the on'ble High
.- ES 'E C)
.... c."7
/Juoi~·c lnf~:t r, Of:', -:c :
O/u Distt. a.'l;~s
cine ,J•.flg{
S uruyr;'.Jrn Iy Ix 2-J--
55
4
Court of 15 days), back on record in the file already consigned on 29. I 0.2021 victc
his Judgement of the date delivered by Learned ASJ-02, Gurugram with Goshwara
No. 337 dated 29.10.2021/ 22.l l.2021/ (22.12.2021?). That important questions of
law of rights of reparation/ restitution/ compcn!-.ation arise in view of Civil Suit
91/2021 NDOH: 28.01.2022 on this and other accounts, hence it is requested that this
matter may be resolved by some administrative and/ or judicial order to regularize
the error apparent during 21.09.2020 to 29. I 0.2021 and subsequent dates \Vhich has
caused grave prejudice to this whistleblowcr.
PRAYED ACCORDINGLY
_,--'/
Date: 23 . 12.2021 . I
Place: Gurugram ...--~\..1.,-- (}../)
Lt Col (Veteran) Sarvadaman Singh Oberoi,
1102, Tower I, Uni world Garden, Sector 47,Gurugram 122018,
Mob: 9818768349, Email: manioberoi@ gmaif.corn
------"' -
··. 56
' l
E
,. . -
~
iL • .
Ji From: Lt Col (Vetcrai:) Sarvadaman Singh Oberoi. Age 72 years s/o late Capt H.S. Oberoi
~ .• r/o 1102, Tower I, Uwworfd Garden, Sector 47, Gurugram J 22018, Mob: 9818768349
- • Email: manioberoi@gmail.com •
To: Ld. District & Sessions Judge. District Court, Gurugram

Subject: REQUEST FOR PROVIDING GOSHWARA NOS. OF DECIDED CASES
Sir,
l. lt is humbly submitted that rn--enty cases of human rights violations related to each other
on point of law (Section 31 of Act l 0 of 1994) have been seJ)arately tfecidaj. on sepyate
~and consigned to record room by the courtofLd. ASJ-02 Gurugram benvecn 20.04.21-
29.10.21, a clear violation of Article 141 law ofindia/ Article 14. l ICCPR 1966.
2. Kindly direct the office to provide Gosbwara no. so as to enable inspection of the relevant
records and take further action as per Kautana RAjeeva.ru v. lo~ian Young Lawyen
Associationt 2020 (l) SCC 1* (5 judges) at MANU paras 4 & 74 r/w K11ldip Singh v. The
State of Punjab AIR 1956 SC 391 (5 judges) MA.NU/SC/ 0036/1956 at MANU para 54
and Ull1oo oflacUa & ors., v. Aarieu LLP & on.. MANU/SC/0614/2020 (26.08.2020) at
MANU p.12 paras 26-27, p.13 para 29, pp.15-16 para 34, p.18 para 38. The cases are:
I. CRM 150 OF 2020 DISPOSED 15.10.2020/79.10.2021
2. CRM 130 OF 2016 DISPOSED 20.04.2021
3. APP 37 OF 2020 DISPOSED 08.07.2021
4. CRM 96 OF 2021 DISPOSED 08.07.2021
S. CRM 176 OF 2021 IN CRM 86 OF 2021 DISPOSED 08.07.2021
6. CRM 177 OF 2021 (sic 92 OF 2021) IN CRM 96 OF 2021 DISPOSED 08.072021
7. CR..\1178 OF 2021 IN APP 37 OF 2021 WITH ANNEXURES DISPOSED 08.07.2021
8. CRM 179 OF 2021 IN CRM 92 OF 2021 DISPOSED 08.07.2021
9. APP 32 OF 2020 DISPOSED 19.07.2021
10. APP 33 OF 2020 DISPOSED 19.07.2021
11. APP 34 OF 2020 DISPOSED 19.07.2021
12. CM 788 OF 2019 DISPOSED 19.07.2021
13. CRM 70 OF 2018 DISPOSED 27.08.2021
14. CRM 71 OF 2018 DISPOSED 27.08.2021
15. CRM 72 OF 2018 DISPOSED 27.08.2021
16. CRM 73 OF 2018 DlSPOSED 27.08.2021
17. CM 737 OF 2019 DISPOSED 17.09.2021
18. CRM 92 OF 2021 DISPOSED 29.10.2021
19. CRM 119 OF 2018 DISPOSED 29.10.2021
20. CRMP 3 OF 2019 DISPOSED 29.10.2021
• Prayed accordingly ~
Date: 02.11.2021
Place: Gurugram - · Ill'" '1
Lt Col (Veteran) Sarvadnrnan Singh Oberoi,
I 102, Tower I, Uniworld Oarden. Sector 47,Gurugram 122018.
Mob: 9818768349, Email: rnanioberoi ,v. gmail.com
*MANU/SC/1565/2019
=--__.:.:::.:.._ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __
-·-- - -
57
Subject: Application submitted by Lt. Col (Veteran) Sarvadaman

Singh Oberoi
Sir,
It is submitted that the applicant named above has sent an
application through post wherein he has repeated the contents of
application made on 02.11 .2021 and 23 .12.2021.
Sir, vide order dated 17.12.2021 the request made by the

applicant vide application dated 02.11 .2021 has been disposed of.
Sir, on the application dated 23 .12.2021 , vide order dated

13.01 .2022 passed by your good self. report from the Court of Dr. D.N.
Bhardwaj and Shri Phalit Sharma, Additional District and Sessions
Judges, Gurugram has been called for.
Sir, the contents of the application in hand are more or less

replica of the contents of application dated 02.11 .2021 and 23 .12.2021. ....
If approved . the application in hand may be ordered to be

X
tagged with the application dated 23 .12.2021 .
Submitted for necessary order please ,
Superintendent Grade-II (Establishment)

'
Reader Grade-I (working in this office) (Parveen Pruthi)
t!ru.Jft~
Supe!]Pt(r;dent (Lalit Kumar)
°'
I '\, .... o}').. • •
)_~\\

Copyright KLE Law Academy, Belagavi, Karnataka, 58
3
Prepared by K.L.E . Society's Law College, Bengaluru, 08.03.2021
ANNEXURE 2
Unit I
DEFINITION OF ADMINISTRATIVE LAW
NATURE & SCOPE OF ADMINISTRATIVE LAW
THE IMPACT AND IMPLICATIONS OF THE DOCTRINE OF

SEPARATION OF POWER AND THE RULE OF LAW ON THE
ADMINISTRATIVE LAW
CLASSIFICATION OF ADMINISTRATIVE ACTION- THE

NECESSITY
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INTRODUCTION
Administrative law is a heuristic science. It is a branch of public law which is essentially anti-
authoritarian. It strives to develop a rule of law society based on fairness, reasonableness and
justice. Administrative law deals fundamentally with law relating to administration and basic
foundation of the administration.
Principles of administrative law are not extraconstitutional, they emerged from Articles 14
and 21 of the Constitution. It is true to say with Holland and Maitland that administrative law is
part of Constitutional law. The general principles are relating to the organization, powers and
functions of the organs of the state legislative, executive and judicial and their relationships are
interalia are dealt with in the Constitution.
Administrative law deals with other powers and the functions of the administrative
authorities it also includes the matters relating to civil service, public departments, public
corporations, local authorities and other statutory bodies exercising quasi-judicial functions. As
Ivor Jennings rightly points out the subject matter of administrative law is public administration.
Administrative law defines and determines the organization, functions, powers and the duties of
administrative authorities.
The most significant and outstanding development of the twentieth century is the rapid
growth of administrative law. Though administrative law has been in existence, in one form or the
other, before the 20th century, it is in this century that the philosophy as to the role and function of
the State has undergone a radical change. Administrative law as is separate branch of legal
discipline, especially in India, came to be recognized only by the middle of the 20th century.
The governmental functions have multiplied by leaps and bounds. Today, the State is not
merely a police State, exercising sovereign functions, but as a progressive democratic State, it
seeks to ensure social security and social welfare for the common man, regulates the industrial
relations, exercises control over the production, manufacture and distribution of essential
commodities, starts many enterprises, tries to achieve equality for all and ensures equal pay for
equal work.
It improves slums, looks after the health and morals of the people, provides education to
children and takes all the steps which social justice demands. In short, the modern State takes care
of its citizens from ‘cradle to grave’.
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All these developments have widened the scope and ambit of administrative law. Today
the administration is ubiquitous and impinges freely and deeply on every aspect of an individual's
life. Therefore, administrative law has become a major area for study and research.
Growth of Administrative Law
Administrative law has been characterized as the most outstanding legal development of
the 20th century. It does not mean, however, that there was no administrative law in any country
before the 20th century. Being related to public administration, administrative law should be
deemed to have been in existence in one form or another in every country having some form of
government. It is as ancient as the administration itself as it is a concomitant of organized
administration.
The opening statement signifies that administrative law has grown and developed
tremendously, in quantity, quality and a relative significance, in the 20th century that it has
become more articulate and definite as a system in Democratic countries that it has assumed a
more recognizable form in the present century so much so that it has come to be identified as a
branch of public law by itself, distinct and separate from Constitutional law, if its subject matter is
of independent study and investigation in its own right then rapid growth of administer law in
modern times is the direct result of the growth of administrative powers and functions.
Earlier the state was characterized as the law and order state and its role was conceived to
be negative as its interest extended primarily to defending the country from external aggression,
maintaining law and order within the country, dispensing justice to its subjects and collecting a
few taxes to finance these activities. It was an era of free enterprise and minimum governmental
responsibility and functions. The management of social and economic life was not regarded as
government responsibility. This laissez Faire doctrine resulted in human misery.
But all the things changed with the advent of independence. A conscious effort to begin to
be made to transform this country into a welfare state the philosophy of welfare state has been
ingrained in the preamble to Indian Constitution and the directive principles stated therein. The
emergence of the social welfare concept has affected the democracies very profoundly. It has led
to state activism. There has occurred a phenomenal increase in the area of state operation it has
taken over a number of functions which were previously left to private enterprise. The state today
provides every aspect of human life, the functions of a modern state may broadly be placed into
five categories, the state as protector, provider, entrepreneur, economic controller and arbitrator.
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Reasons for Growth of Administrative Law
Administrative law is considered as an intensive form of government. It deals with the

pathology of functions. The functions that are discharged by the administrative authorities differ
from time to time depending upon the changes in socio-economic conditions in any nation.
The following factors are responsible for the rapid growth and development of administrative law:
1. There is a radical change in the philosophy as to the role played by the State. The negative
policy of maintaining 'law and order' and of 'laissez faire' is given up. The State has not confined
its scope to the traditional and minimum functions of defense and administration of justice, but
has adopted the positive policy and as a welfare State has undertaken to perform varied functions.
2. Urbanization - Due to the Industrial Revolution in England and other countries and due to the
emergence of the factory system in our country, people migrated from the countryside to the
urban areas in search of employment in factories and large-scale industries. As a result of which
there arose a need for increase in providing housing, roads, parks, effective drainage system etc.
Legislations were enacted to provide all these basic facilities and accordingly administrative
authorities were required to make rules and regulations, frame schemes for effective infrastructure
and facilities which ultimately lead to the growth of administrative law.
3. To meet Emergency Situations – Enacting legislations, getting assent from the President is all a
lengthy process, whereas it is very easy and quick to frame schemes and rules to meet any
exigency that arise in a locality. Due to the flexibility of making the rules, obviously there is a
constant growth of administrative law making in the country.
4. The judicial system proved inadequate to decide and settle all types of disputes. It was slow,
costly, inexpert, complex and formalistic. It was already overburdened, and it was not possible to
expect speedy disposal of even very important matters, e.g. disputes between employers and
employees, lockouts, strikes, etc. These burning problems could not be solved merely by literally
interpreting the provisions of any statute, but required consideration of various other factors and it
could not be done by the ordinary courts of law. Therefore, Industrial Tribunals and Labour
Courts were established, which possessed the techniques and expertise to handle these complex
problems.
5. The legislative process was also inadequate. It had no time and technique to deal with all the
details. It was impossible for it to lay down detailed rules and procedures, and even when detailed
provisions were made by the legislature, they were found to be defective and inadequate, e.g., rate
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fixing. And, therefore, it was felt necessary to delegate some powers to the administrative
authorities.
6. There is scope for experiments in administrative process. Here, unlike legislation, it is not
necessary to continue a rule until commencement of the next session of the legislature. Here a rule
can be made, tried for some time and if it is found defective, it can be altered or modified within a
short period. Thus, legislation is rigid in character while the administrative process is flexible.
7. The administrative authorities can avoid technicalities. Administrative law represents functional
rather than a theoretical and legalistic approach. The traditional judiciary is conservative, rigid and
technical. It is not possible for the courts to decide the cases without formality and technicality.
The Administrative Tribunals are not bound by the rules of evidence and procedure and they can
take a practical view of the matter to decide complex problems.
8. Administrative authorities can take preventive measures, e.g. licensing, rate fixing, etc. Unlike
regular courts of law, they need not wait for parties to come before them with disputes. In many
cases, these preventive actions may prove to be more effective and useful than punishing a person
after committing of a breach of any provision of law or law. As Freeman says, " Meat inspection
and grading respond more adequately to the consumer’s needs than does the right to sue the seller
after the consumer is injured."
9. Administrative authorities may take effective steps for enforcement of the aforesaid preventive
measures, such as suspension, revocation and cancellation of licenses, destruction of contaminated
articles, etc. which are not generally available through regular courts of law.
Today in India, the administrative process has grown so much that it will not be out of place
to say that today we are not governed but administered. In this context, the Law Commission of
India rightly observed the Rule of law and Judicial review acquire greater significance in a
welfare state. The vast amount of legislation which has been enacted during the last three years by
the union and states, a great deal of which impinges in a variety of ways on our lives and
occupations. Much of it also confers large powers on the executive. The greater, therefore, is the
need for ceaseless enforcement of the Rule of law, so that the executive may not, in a belief in its
monopoly of wisdom and its zeal for administrative efficiency, overstep the bounds of its power
and spread its tentacles into the domains, well the citizen should be free to enjoy the Liberty
guaranteed to him by the Constitution.
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Observations of Law Commission are no less relevant today when India has adopted the
policy of liberalization, privatization and globalization in which administrative law has developed
international dimensions. Though state is now withdrawing from business, yet its functions as a
facilitator, enabler and regulator are bound to increase. Growth of new centers of economic power
which often exercise power in total disregard of the fundamental rights of people, especially of the
disadvantaged Sections of society, will put emphasis on the development of knew norms of Rule
of law and judicial review for reconciling economic growth with social justice.
In recent times a new branch of administrative law is emerging, which is popularly called
as Global Administrative Law. According to this the WTO is dictating guidelines on subsidiaries,
facilities and services to the people in different countries. The banks have also not been spared
from the interference of the WTO guidelines. Thus, it may be submitted, that due to the emerging
global administrative law, in the near future there is every possibility for the necessity to re look
into the reasons for growth of administrative law.
Definition of Administrative Law
It is indeed difficult to evolve a scientific, precise and satisfactory definition of

Administrative Law. Many jurists have made attempts to define it, but none of the definitions has
completely demarcated the nature, scope and content of administrative law. Either the definitions
are too broad and include much more than necessary or they are too narrow and do not include all
essential ingredients. For some it is the law relating to the control of powers of the government.
The main object of this law is to protect individual rights. Others place greater emphasis
upon rules which are designed to ensure that the administration effectively performs the tasks
assigned to it. Yet others highlight the principal objective of Administrative Law as ensuring
governmental accountability, and fostering participation by interested parties in the decision-
making process.
Administrative law besides touching all branches of government, touches administrative

and quasi administrative agencies that is corporations, commissions, universities and sometimes
even private organizations. Furthermore, administrative law is made up of not only of legislative
and executive rules and a large body of presidents but also of functional formulations, for every
exercise of discretion forms a rule for future action. Early English writers did not differentiate
between administrative law and Constitutional law and, therefore, the definition they attempted
was too broad and general.
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In administrative law, the term Administration is used in its broadest possible sense and
covers within its reach.
1. All executive actions, its programs and policies

2. All administrative aspects of parliament and judiciary
3. All actions of state like actors (agency and instrumentality of state)
4. All actions of non-state actors (private entities) exercising public functions.
Sir Ivor Jennings defines administrative law as the law relating to administration.
It determines the organization, powers and duties of administrative authorities. This

formulation does not differentiate between Administrative and Constitutional law. It lays entire
emphasis on the organization, power and duties to the exclusion of the manner of their exercise.
For example, administrative law is not concerned with how a minister is appointed but only with
how a minister discharges his functions in relation to an individual or a group. How the minister
of housing and rehabilitation is appointed is not the concern of administrative law, but when this
minister approves a scheme for a new township, which involves the acquisition of houses and
lands of persons living in that area, questions of administrative law arise. Sir Ivor Jennings
formulation also leaves many aspects of administrative law untouched, especially the control
mechanism.
A.V. Dicey
He did not recognize the independent existence of administrative law. He defined

administrative law as denoting that portion of a nation's legal system which determines the legal
status and liabilities of all state officials, which defines the rights and liabilities of private
individuals in their dealings with public officials, and which specifies the procedure by which
those rights and liabilities are enforced.
The definition is narrow and restrictive in so far as it leaves out of consideration many
aspects of administrative law, Dicey opposed the French droit administratiff and therefore his
formulation mainly concentrated on judicial remedies against state officials. Therefore, this
definition excludes the study of every other aspect of administrative law.
The American approach is significantly different from the early English approach, in that
it recognized administrative law as an independent branch of the legal discipline.
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According to Kenneth Culp Davis, Administrative law is a law that concerns the powers
and procedure of administrative agencies, including especially the law governing judicial review
of administrative action.
Davis includes the study of administrative rulemaking and rule adjudication but excludes
rule application which according to him, belongs to the domain of public administration. In one
respect, this definition is proper as it puts emphasis on procedure followed by administrative
agencies in exercising their powers. It does not include the enormous mass of substantive law
produced by the agencies. An administrative agency, according to Davis, is a governmental
authority, other than a code and other than a legislative body, which affects the rights of private
parties through either adjudication or rulemaking.
The difficulty in accepting this definition however, is that it does not include many non-
adjudicative and yet administrative functions of the administration which cannot be characterized
as legislative or quasi-judicial. Another difficulty with this definition is that it puts an emphasis on
the control of the administrative functions by the judiciary, but does not study other equally
important controls, example parliamentary control or of delegated legislation, control through
administrative appeals or revisions and the like.
Garner also adopts the American approach advocated by Casey Davis According to him,
Administrative law may be described as those rules which are recognized by the courts as law and
which relate to and regulate the administration of government.
According to Wade, administrative law is the law relating to the control of governmental
power. According to him the primary object of administrative law is to keep the powers of the
government within their legal bounds so as to protect the citizens against their abuse. The
powerful engines of authority must be prevented from running amok.
Undoubtedly this definition places considerable emphasis on the object of Administrative

law by touching the heart of the subject. It does not, however, define the subject. It also does not
deal with the powers and duties of administrative authorities nor with the procedure required to be
followed by them.
Griffith and Street, According to Griffith and Street, the main object of administrative law is
the operation and control of administrative authorities. It must deal with three aspects
1. What sort of power does the administration exercise?

2. What are the limits of those powers?
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3. what are the ways in which the administration is contained within those Limits?
According to the Indian law Institute, the following two aspects must be added to have a
complete idea of present-day administrative law
1. what are the procedures followed by the administrative authorities?

2. What are the remedies available to a person affected by administration?
According to Jain and Jain Administrative law deals with the structure, powers and
functions of the organs of administration, the limits of their powers, the methods and procedures
followed by them in exercising their powers and functions, the methods by which their powers are
controlled including the legal remedies available to a person against them when his rights are
infringed by their operation.
Administrative law, according to this definition, deals with four aspects.
Firstly, it deals with composition and the powers of administrative authorities
Secondly, it fixes the limits of the powers of those authorities.
Thirdly, it prescribes the procedure to be followed by these authorities in exercising such powers
Fourthly, it controls these administrative authorities through judicial and other means.
The unenviable diversity in definitions of the term administrative law is also due to the
fact that a vary Administrative law specialist tries to lay more emphasis on any one particular
aspect of the whole administrative process, which according to his own evolution desires singular
attention.
Professor Upendra Bakshi of India lays special stress on the protection of the little man
from the arbitrary exercise of public power. According to him administrative law is a study of the
pathology of power in a developing society. He defines administrative law as that portion of law
which controls the abuse of powers by the administrative authorities so as to protect the rights of
individuals.
On an analysis of the above definitions it may be submitted that there is no comprehensive

and universally accepted definition of administrative law.
For our purposes, we may define administrative law as that branch of public law which
deals with the organization and powers of administrative and quasi administrative agencies and
prescribes principles and rules by which an official action is arranged and revealed in relation to
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individual liberty and freedom. Thus defined, administrative law attempts to regulate
administrative space, domestic and global, in order to infuse fairness and accountability in the
administrative process necessary for securing equity and inclusiveness in the domestic and world
order. It can be concluded that administrative law is that portion of law which determines the
organization, powers and duties of administrative authorities, administrative agencies, quasi
administrative authorities and the law that governs the judicial review of administrative activities.
Sources of Administrative Law
Administrative law is not a codified, written or well-defined law like the Contract Act,
Penal Code, Transfer of Property Act, Evidence Act, Constitution of India, etc. It is essentially an
unwritten, uncodified or ‘Judge-made’ law. It has developed slowly in the wake of factual
situations before courts. In a welfare State, administrative authorities are called upon to perform
not only executive acts, but also quasi-legislative and quasi-judicial functions. They used to deem
the rights of parties and have become the ‘Fourth branch’ of Government, a ‘Government in
miniature’. Legal scholars have compared administrative law to the rise of equity. It has its origin
in need and necessity in protecting personal rights and in safeguarding individual interests.
In few legal systems, there are statutes laying down rules, principles and procedures to be
followed by administrative agencies. But even in absence of specific enactments dealing with a
particular situation, certain fundamental rules, basic principles and minimum requirements of law
are well settled and all authorities are bound to observe them. A person adversely affected by any
action of an administrative authority has right to challenge such action in an appropriate body or a
court of law.
In USA the following are the sources of administrative law:
• Administrative Procedure Act, 1893
• Statutory Instrument Act, 1946
• Federal Tort Claim Act, 1947
• The Tribunals and Enquiries Act, 1958
• The Parliamentary Commissions Act, 1962
Apart from these legislations, the Constitution of USA is also considered as a source of
administrative law in addition to the judgments delivered by the U.S Supreme Court.
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In the UK, since there is no written Constitution, the bulk source of administrative law is
derived from the decisions delivered by the superior courts, the customary practices that are
followed in the course of administration and so on.
In India there is a written Constitution which is considered as a grund norm. Till today
there is no legislation enacted either by the parliament or state legislature exclusively on
administrative law. In the absence of legislations, the main sources of administrative law are rules,
regulations, orders, notifications, bye-laws, schemes, governmental resolutions, memorandums,
department circulars etc. There are also legislations which provide for the establishment of
tribunals. For example, the Industrial Disputes Act, 1947 provides for the establishment of
national tribunals, industrial tribunals and labour courts. There are other legislations for
establishing special courts, but all these legislations provide different procedures and different
powers for functioning of the tribunals. Therefore, for the purpose of attaining uniformity in
maintaining procedures and for prescribing powers, there is a need for comprehensive legislation
on administrative law in India.
Constitutional Law and Administrative Law
Sometimes, a question is asked as to whether there is any distinction between

Constitutional law and Administrative law. Till recently, the subject of administrative law was
dealt with and discussed in the books of Constitutional law and no separate and independent
treatment was given to it. In many definitions of Administrative law, it was included in
Constitutional law.
Though in essence Constitutional law does not differ from administrative law in as much
as both are concerned with functions of the Government and both are a part of public law in the
modern State and the sources of both are the same and they are thus inter-related and
complementary to each other belonging to one and the same family. Strict demarcation, therefore,
is not possible, yet there is a distinction between the two. According to Maitland, while
Constitutional law deals with structure and the broader rules which regulate the functions, the
details of the functions are left to Administrative law.
According to Hood Phillips, “Constitutional law is concerned with the organization and
functions of Government at rest while administrative law is concerned with that organization and
those functions in motion.”
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But the opinion of English and American authors is that the distinction between
constitutional law and administrative law is one of degree, convenience and custom rather than
that of logic and principle. It is not essential and fundamental in character. Keith rightly remarks:
“It is logically impossible to distinguish administrative law from Constitutional law and all
attempts to do so are artificial.”
India has a written Constitution. While Constitutional law deals with the general principles
relating to the organization and power of the legislature, executive and judiciary and their
functions inter se and towards the citizen. Administrative law is that part of Constitutional law
which deals in detail with the powers and functions of the administrative authorities, including
civil services, public departments, local authorities and other statutory bodies. Thus, while
Constitutional law is concerned with Constitutional status of ministers and civil servants,
administrative law is concerned with the organization of the service and the proper working of
various departments of the Government.
Nature & Scope of Administrative Law
Administrative Law deals with the powers of the administrative authorities, the manner in
which the powers are exercised and the remedies which are available to the aggrieved persons,
when those powers are abused by these authorities.
As discussed above, the administrative process has come to stay and it has to be accepted
as a necessary evil in all progressive societies, particularly in a welfare state, where many schemes
for the progress of society are prepared and administered by the government. The execution and
implementation of this programme may adversely affect the rights of citizens. The actual problem
is to reconcile social welfare with the rights of individual subjects. As has been rightly observed
by Lord Denning: “Properly exercised, the new powers of the executive lead to the Welfare
State; but abused they lead to the Totalitarian State.”
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The main object of the study of administrative law is to unravel the way in which these
administrative authorities could be kept within their limits so that the discretionary powers may
not be turned into arbitrary powers.
Schwartz divides Administrative Law in three parts;
1. The powers vested in administrative agencies;
2. The requirements imposed by law upon the exercise of those powers; and
3. Remedies available against unlawful administrative actions. It is a harsh fact of life that
phenomenal growth of administrative power as a byproduct of an intensive form of government,
do necessary for development and growth, at the times spells negation of people’s rights and
values.
Though administrative law may not be concerned with the substantive law as such, yet, as
Griffith and Street themselves have somewhat recognized, a study of substantial law becomes
necessary for appreciating the powers of the administration and for controlling the same. For
instance, whether the principles of natural justice are to be observed by an authority or not
depends, to a great extent, upon the kind of action it is empowered to take, and to find this, one
will need to look into the statute under which it functions. Again, whether the authority has
abused its power has to be decided with reference to the substantive provisions.
Here comes the need, importance and purpose of administrative law. Administrative law
thus becomes Dharma which conduces to the stability and growth of society, maintenance of a
just social order, and welfare of mankind by reconciling power with Liberty. It seeks to channelize
administrative powers to achieve the basic aim of any civilized society, that is, growth with
Liberty. Thus, Administrative law goes beyond legalism and the presence a principled regulation
of administrative space, whether domestic or global, which can be practically regulated for the
expansion of human freedoms. Therefore, today, Administrative law represents the way of
conceptualizing and articulating a new domestic and global social economic order.
Without a good system of administrative law any society order dies because of its own
administrative weight like a black hole which is a dying neutron star that collapses due to its own
gravity. Administrative law, therefore, becomes that body of a reasonable limitations and
affirmative action parameters which are developed and operationalized by the legislature and the
courts to maintain and sustain a Rule of law Society.
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Thus, four basic bricks of the foundation of any administrative law may be identified as
1. Checking abuse of administrative power

2. Ensuring citizens an impartial determination of their disputes by officials
3. Protecting citizens from an unauthorized encroachment on their rights and interest
4. Making those who exercise public power accountable to the people
1. Administrative law is a law, but it is not a law in the lawyer’s sense of the term like
property law or contract law. It is not in the realist sense of the term which includes statute
law, administrative rulemaking, precedents, customs, administrative directions, etc. It also
includes the study of something which may not be termed law in the true sense of the term
such as administrative circulars, policy statements, memorandum and resolutions, etc.
Besides this, it includes within its study higher law as well, like the principles of natural
justice. However, in India, administrative law, basically and wholly, it remains a judge
made law and, thus, suffers from the frailties and benefits from the strength of judicial
lawmaking. Consequently, personal and institutional constraints make the growth of
administrative law vulnerable to judicial meanderings and tentativeness.
2. Administrative law is a branch of public law in contradiction to private law which deals
with the relationships of individuals inter-se. Therefore, Administrative law primarily deals with
the relationship of individuals with the organized power.
3. Administrative law deals with the organization and powers of administrative and quasi
administrative agencies. The stress on the study of organization is only to the extent that it is
necessary to understand the powers, characteristics of actions, procedure for the exercise of those
powers and the control mechanism provided therein. The study includes not only administrative
agencies but also the quasi administrative agencies such as corporations, autonomous agencies,
individuals, and civil society institutions, both national and global, and the like operating in public
space and exercising public functions.
4. Administrative law includes the study of the existing principles and also of the
development of certain new principles which administrative and quasi administrative agencies
must follow while exercising their powers in relation to individuals that is the principles of natural
justice, reasonableness and fairness.
5. Administrative Law primarily concerns itself with the official action which may be
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a. Rulemaking or quasi legislative action
b. Quasi-judicial action
c. Ministerial action or pure administrative action
6. One of the main thrusts of the study of administrative law is on the procedure by which the
official action is original. If the means are not trustworthy, the end cannot be just. There is a
bewildering variety in the procedure which the administrative agencies follow in reaching an
action. Such procedure may be laid down.
a. In the statute itself under which the administrative agency has been created
b. In the statute itself under which the administrative agency has been created in the
separate procedure code which a very administrative agency is bound to follow that is
Administrative Procedure Act, 1946 in the USA and Tribunals and Inquiries Act, 1958 in
England.
However, in many more cases either the administrative agency is left free to develop its own
procedure or it is required to render its actions according to the minimum procedure of the
principles of natural justice.
7. Administrative law also includes within its study the control mechanism by which the
administrative agencies are kept within bounds and made effective in the service of the
individuals. This control mechanism is technically called the review process.
8. The study of administrative law is not an end in itself but a means to an end. The focal
point of the study of administrative law is the re consolation of power with liberty. When the
administrative process started rising after the death of laissez faire at the birth of the 20th century,
the stress on the study of administrative law was on circumscription of administrative powers. But
now when the administrative process has come to stay, the emphasis has shifted to the regulation
of administrative powers.
A satisfactory and a proper formulation to define the scope, content and ambit of administrative
law appears to be as follows:
Administrative law deals with the structure, powers and functions of the organs of administration,
the limits of their powers, the methods and procedures followed by them in exercising their
powers and functions, the methods by which their powers are controlled including the legal
remedies available to a person against them when his rights are infringed by their operation.
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This statement has four limbs
1. The first limb deals with the composition and powers of organs of administration. This
proposition is subject to the qualification stated earlier that the topics falling under the public
administration or to be excluded. The term organs of administration have been used in a broad
sense and includes all kinds of public or administrative authorities.
2. The second limb refers to the limits on the powers of administrative authorities. These
limits may either be expressed or implied.
Express limits are laid down in the provisions of the parent statute. Implied limits or derived by
the courts through the interpretative process. In doing so the courts play a very creative role
because expressly limits are not usually laid down in statutory provisions and, therefore, the
courts have to imply some limits on the administration.
3. The third limb refers to the procedures used in exercising those powers. The study of
administrative law of today seeks to emphasize not only the extraneous control but also the
processes and procedures which the administrative authorities themselves follow in the exercise of
their powers. Evolving of fair procedures is a way of minimizing the abuse of vast discretionary
powers conferred on the administration. For example, natural justice forms a significant
component of administrative process today and in many situations, codes apply the concept of
fairness.
4. The fourth limb refers to the control of the administration through judicial and other
means. Under this head would fall judicial as well as extra judicial means of controlling the
administration, example Tribunals, Ombudsman etc. It also includes a redressal of individual
grievances against the administration.
This aspect of administrative law is based on two basic postulates, namely
a. Power is conferred on the administration by law
b. No power is absolute and uncontrolled howsoever broad the power conferred.
The impact and Implications of the Doctrine of Separation of Power and The Rule of Law
on the Administrative law.
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The rule of law is a viable and dynamic concept and, like many other such concepts, is not
capable of any exact definition. This, however, does not mean that there is no agreement on the
basic values which it represents. The term rule of law is used in contradiction to “Rule of man and
Rule according to law”. Even in the most autocratic forms of government there is some law
according to which the powers of the government are exercised, but it does not mean that there is
the rule of law. Therefore, rule of law means that the law rules, which is based on the principles of
freedom, equality, non-discrimination, fraternity, accountability and non-arbitrariness, and is
certain, regular and predictable, using the word law in the sense of just and Lex both. In this sense
the rule of law is an idea. It is a modern name for natural law. In history, man has always appealed
to something higher than that which is his own creation.
The basic idea behind accountability is that the ruler’s rule without difference of the
people and, therefore, must be accountable to them in the ultimate analysis. Forms of
accountability may differ, but the basic idea must remain the same that the holders of public
power must be able to publicly to justify the exercise of public power not only as legally valid but
also socially just, proper and reasonable. In this manner the concept of the rule of law represents
values and not institutions and connotes a climate of legal order which is just and reasonable,
where in a very exercise of public power is chiefly designed to add something more to the quality
of life of the people. Every legislative, executive and judicial exercise of power must, therefore,
depend on this ideal for its validity. Consequently, it is the rule of law define law rather than the
law defining the Rule of law.
The doctrine of separation of powers is an animation of the rule of law and its roots also
lie in the concept of natural law because both aim at progressive diminution of the exercise of
arbitrary power necessary for protecting the life, liberty and dignity of the individual. It is an
organic flexible doctrine which can be molded to suit the requirements of governance, but it’s
inherent fundamentals and the rationality must not be compromised. That is accumulation of
power is a definition of tyranny.
According to Jain and Jain, “If the ‘Rule of Law’, as enunciated by Dicey, affected the
growth of Administrative Law in Britain, the doctrine of ‘Separation of Powers’ had an intimate
impact on the development of Administrative Law in USA.” Davis also stated, “Probably, the
principal doctrinal barrier to the development of the administrative process has been the theory of
separation of powers."
DOCTRINE OF RULE OF LAW

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One of the basic principles of the English Constitution is the Rule of law. This doctrine is
accepted in the US and Indian Constitution. The entire basis of administrative law is the doctrine
of rule of law. Sir Edward Coke, Chief Justice in James I's reign, was the originator of this
concept. In a battle against the King, he maintained successfully that the King should be under
God and the Law, and he established the supremacy of the law against the executive. Dicey
developed this theory of Coke in his classic work the Law and the Constitution published in the
year 1885.
The concept of Rule of Law can be traced from the time of the Romans, who called it ‘Just
Law’- Jus Naturale, to the Medieval period where it was called the ‘Law of God.’ The social
contractualists, such as Hobbes, Locke and Rousseau, called the Rule of Law as the Contract law
or Natural Law and the modern man calls it as Rule of law.
“Rule of law” is to be understood neither as a “rule” nor a “law”. It is generally

understood as a doctrine of “State political morality” which concentrates on the rule of law in
securing a “correct balance” between “rights” and “powers”, between individuals and the state in
any free and civil society. This balance may be drawn by “law” based on freedom, justice,
equality, and accountability. Therefore, it infuses law with moral qualities. “Rule of proper law
balances the needs of the society and the individual.”
The term “rule of law” is derived from the French Phrase la principe de legalite (the
principle of legality) which refers to a government based on principles of law and not of men. In
this sense la principe de legalite was opposed to arbitrary powers.
Rule of law is the supreme manifestation of human civilization and culture and is a new '
Lingua franca’ of global moral thought. It is an eternal value of Constitutionalism and an inherent
attribute of democracy and good governance.
Rule of law Embodies the doctrine of supremacy of law. It is a basic and fundamental
necessity for a disciplined and organized community.
The concept of the rule of law is an animation of natural law and remains as a historical
ideal which makes a powerful appeal even today to be ruled by law not by a powerful man.
Dicey’s Concept of Rule of Law

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According to Dicey, the Rule of Law is one of the fundamental principles of the English Legal
System. In his book, ‘The Law of the Constitution’, he attributed the following three meanings to
the said doctrine:
I. Supremacy of law
II. Equality before law
III. Predominance of legal spirit.
I. Supremacy of law
Absence of discretionary power in the hands of the government officials. By this Dicey
implies that justice must be done through known principles. Discretion implies absence of rules,
hence in every exercise of discretion there is room for arbitrariness.
Explaining the first principle, Dicey stated that rule of law means the absolute supremacy
or predominance of regular law as opposed to the influence of arbitrary power or wide
discretionary power. It excludes the existence of arbitrariness, of prerogative or even wide
discretionary power on the part of the Government. According to him the Englishmen were ruled
by the law and law alone. A man may be punished for a breach of law, but can be punished for
nothing else. As Wade says the rule of law requires that the Government should be subject to the
law, rather than the law subject to the Government.
According to this doctrine, no man can be arrested, punished or be lawfully made to suffer
in body or goods except by due process of law and for a breach of law established in the ordinary
legal manner before the ordinary courts of the land. Dicey described this principle as ‘the central
and most characteristic feature’ of Common Law.
The first principle is the recognition of Cardinal principle of Democratic governments as

opposed to arbitrary and autocratic governments which lays down that no functionary of the
government should have wide arbitrary or discretionary powers to interfere with the liberty and
freedom of the people. But here Dicey was not referring to a wide measure or discretion which is
incapable in any modern government. He was certainly indicating the position in some countries
where police authorities exercised wide arbitrary or discretionary power of imprisonment and
punishment outside the ordinary legal system.
II. Equality before law

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Explaining the second principle of the rule of law, Dicey stated that there must be equality
before the law or the equal subjection of all classes to the ordinary law of the land administered
by the ordinary courts of law. According to him, in England, all persons were subject to one and
the same law, and there were no separate tribunals or special courts for officers of the
Government and other authorities.
No person should be made to suffer in body or deprived of office, property except for a
breach of law established in the ordinary legal manner before the ordinary courts of the land. In
this sense, the rule of law implies
a. Absence of special privileges for a government official or any other person
b. All the persons irrespective of status must be subjected to the ordinary courts of the land
c. Everyone should be governed by the law passed by the ordinary legislative organs of the
state
3. The rights of the people must flow from the customs and traditions of the people
recognized by the courts in the administration of justice.
This principle enunciates Democratic principle of equal subjection of all persons to the
ordinary law of the land as administered by the ordinary courts. This does not mean that the law
must be the same for everybody irrespective of functions or service. Dicey’s insistence was that a
government officer must be under the same liability for acts done without legal justification as a
private individual. Does he contrast the English legal system with that of France where
government officials were protected by special rules in special administrative tribunals.
III. Predominance of legal spirit.
Judge – made Constitution explaining the third principle, Dicey stated that in many
countries’ rights such as the right to personal liberty, freedom from arrest, freedom to hold public
meetings, etc. are guaranteed by a written Constitution; in England, it is not so. Those rights are
the result of judicial decisions in concrete cases which have actually arisen between the parties.
Thus, Dicey emphasized the role of the courts of law as guarantors of liberty and suggested that
the rights would be secured more adequately if they were enforceable in the courts of law than by
mere declaration of those rights in a document, as in the latter case, they can be ignored, curtailed
or trampled upon. He stated: “The Law of the Constitution, the rules which in foreign countries
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naturally form part of a Constitutional Code, are not the source but the consequences of the rights
of individuals, as defined and enforced by the courts.”
This principle, in fact, does not lay down any legal rule but merely explains one aspect of
the British Constitutional system where common law is a source of fundamental freedoms of the
people. He does distinguish the British system from that of many other countries which had
written Constitutions with a chapter on individual rights. Dicey feared that if the source of the
fundamental rights of the people was any document, the right could be abrogated at any time by
Amending the Constitution this is what happened in India during 1975 emergency. When the
Supreme Court ruled that even illegal acts of the government could not be challenged in a court
because it was found that the source of personal liberty in India was Article 21 of the Constitution,
which had been suspended by the presidential proclamation, and not any common law of the
people1. This principle puts emphasis on the role of judiciary in enforcing individual rights and
personal freedoms irrespective of their inclusion in a written Constitution. Dicey feared that mere
declaration of such rights in any statute or in Constitution would be futile if they could not be
enforced. He was right when he said that a statute or even Constitution can be amended and
‘Fundamental Rights’ can be abrogated. We have witnessed such a situation during the emergency
in 1975 and realized that in absence of strong and powerful judiciary, a written Constitution is
meaningless.
He criticized the French legal system of droit-administratif in which there were distinct
administrative tribunals for deciding cases between the officials of the State and the citizens.
According to him, exemption of the civil servants from the jurisdiction of the ordinary courts of
law and providing them with the special tribunals was the negation of equality. Of course, Dicey
himself saw that administrative authorities were exercising ‘judicial’ functions though they were
not ‘courts’. He, therefore, asserted: “Such transference of authority slaps the foundation of the
rule of law which has been for generations a leading feature of the English Constitution.”
According to Dicey, any encroachment on the jurisdiction of the courts and any
restrictions on the subject's unimpeded access to them are bound to jeopardize his rights.
Application of Doctrine
ADM Jabalpur v. Shivakanth Shukla , (1976) 2 SCC 521

1
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In England, the doctrine of the rule of law was applied in concrete cases. If a man is
wrongfully arrested by the police, he can file a suit for damages against them as if the police were
private individuals. In Wilkes v. Wood, it was held that an action for damages for trespass was
maintainable even if the action complained of was taken in pursuance of the order of the Minister.
In the leading case of Entick v. Carrington, a publisher's house was ransacked by the King’s
messengers sent by the Secretary of State. In an action for trespass, £300 were awarded to the
publisher as damages. In the same manner, if a man's land is compulsorily acquired under an
illegal order, he can bring an action for trespass against any person who tries to disturb his
possession or attempts to execute the said order.
Evaluation of Dicey’s Thesis of Rule of Law
By administrative law Dicey mean only a single aspect of the French droit administratif,
namely administrative jurisdiction to the exclusion of ordinary civil and criminal process Dicey
admitted after 1901, that he concealed his idea of the nature and existence of administrative law
from De Tocqueville, Who himself later admitted his ignorance about the actual working of the
droit administratif, in his own days. Dicey was historically correct up to the time of 1873, when
executive law finally settled the jurisdiction of the Council d' Etat in all questions involving
administrative matters.
However, Dicey misconceived the administrative law because he thought that the French
system of administrative law is more than that. In fact, Dicey was concerned not with the whole
body of law relating to administration, but with a single aspect of it, namely, administrative
adjudication. His comparison was between the favorable position of an Englishman when in
conflict with the state in contrast to that of a Frenchman. It may be emphasized that the difference
between judicial and administrative agencies is not fundamental. Both apply the law to individual
cases and thereby exercise discretion. But if the safeguards which protect the exercise of judicial
functions are applied to administrative bodies, the quality of education will be the same. Dicey
was also not right when he said that there is no administrative law in England because even during
Dicey’s time the Crown and its servants enjoyed special privileges on the basis of the doctrine that
the King can do no wrong.
Even in the sense in which Dicey used his formulation of the rule of law, there is no
essential contradiction between rule of law and administrative law. If the central thesis of Dicey’s
formulation is the absence of arbitrariness and equality before the law then in that sense there is
no contradiction with administrative law.
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Merits
Dicey's thesis has its own advantages and merits. The doctrine of Rule of Law proved to
be an effective and powerful weapon in keeping administrative authorities within their limits. It
served as a touchstone to test all administrative actions. The broad principle of rule of law was
accepted by almost all legal systems as a Constitutional safeguard.
The first principle (supremacy of law) recognizes a cardinal rule of democracy that every
Government must be subject to law and not law subject to the Government. It rightly opposed
arbitrary and unfettered discretion governmental authorities, which has tendency to interfere with
rights of citizens.
The second principle (equality before law) is equally important in a system wedded to democratic
polity. It is based on the well-known maxim -"However high you may be, Law is above you", and
"All are equal before the law."
Demerits
No doubt, Dicey's Rule of Law had its good points and the broad principle had been
accepted in several legal systems as a ‘necessary Constitutional safeguard’. But it has its own
limitations and pitfalls as well. It has been said that the rules enunciated by Dicey and accepted in
English legal system was the result of ‘political struggle’ and not ‘logical deductions from a Rule
of Law’.
The first rule was criticized on the ground that Dicey equated supremacy of Rule of Law
with absence of not only arbitrary powers but even of discretionary powers. According to him,
‘wherever there is discretion, there is room for arbitrariness.’ He thus failed to distinguish
arbitrary power from discretionary power. Though arbitrary power is inconsistent with the concept
of rule of law, discretionary power is not, if it is exercised properly. No modern welfare State can
work effectively without exercising discretionary powers.
Again, it cannot be said that once law ends, necessarily tyranny begins. As David said,
‘where the law ends, discretion begins.’ Exercise of discretion may mean either beneficence or
tyranny, either justice or injustice, either reasonableness or arbitrariness. It is impossible to find a
government of laws alone and not of men in the sense of eliminating all discretionary powers.
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The second principle propounded by Dicey was equally fallacious. Dicey misunderstood
the real nature of droit administratif. He carried an impression that administrative courts of
France, including Counseild'Etat conferred on Government officials’ special rights, privileges and
prerogatives as against private citizens. But it was not so. The French system in many respects
proved to be more effective in controlling abuse of administrative powers than the Common Law
system. Counseild'Etat technically speaking was a part of administration, but in substance and in
reality, it was very much a court. The actions of administration were not immune from the judicial
scrutiny of the Counsel, which consisted of ‘real Judges’.
Moreover, even during Dicey's time, several administrative tribunals had come into
existence which adjudicated upon the rights of subjects not according to Common Law and
procedure of Crown's Courts but according to special laws applied to specific groups. The Crown
enjoyed immunity under the well-known maxim ‘The King can do no wrong'. It was, therefore,
not correct to say that there was ‘equality before law' in strictosenso even in England.
Administrative law developed not to sanctify executive arbitrariness but to check it and
protect the rights of the people against the administration’s excesses. Therefore, the central theme
of administrative law is also the reconsolation of Liberty with the power. Administrative law and
the rule of law or not discrete series. Both aimed at the progressive diminution of arbitrariness and
fostering a discipline of fairness and openness in the exercise of public power. However, the
disease distrust of the administrative process and administrative education has been proved wrong
in French context, it is still valid in the Indian situation where administrative action is often
arbitrary and based on extraneous considerations and administrative justice is a euphemism for the
denial of justice.
Modern concept of Rule of Law
As stated earlier, Dicey’s concept of the rule of law was not accepted fully in England
even in 1885 when he formulated it, as in that., administrative law and administrative authorities
were very much there. Today, Dicey’s theory of rule of law cannot be accepted in its totality.
Davis gives 7 principal meanings of the term rule of law
1. Law and order
2. Fixed rules
3. Elimination of discretion
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4. Due process of law or fairness
5. Natural law or observance of the principles of natural justice
6. Preference for judges and ordinary courts of law to executive authorities and
administrative tribunals
7. Judicial review of administrative actions.
The modern concept of the rule of law is fairly wide and, therefore, sets up an ideal for any
government to achieve. This concept was developed by the International Commission of Jurists,
known as Delhi declaration, 1959, which was later on confirmed at Lagos in 1961. According to
this formulation, the rule of law implies that the functions of the government in a free society
should be so exercised as to create conditions in which the dignity of man as an individual is
upheld. The dignity requires not only the recognition of certain civil or political rights but also
creation of certain political, social, economic, educational and cultural conditions which are
essential to the full development of his personality and the protection of his dignity. For this
purpose, the declaration puts emphasis on independence of the judiciary and effective
government.
During the last few years, the Indian Supreme Court has developed some fine Principles of
third world jurisprudence. Developing the same new Constitutionalism further, the Supreme Court
in Veena Sethi v State of Bihar2 Extended the reach of the rule of law to the poor and the
downtrodden, The ignorant and the illiterate, who constitute the bulk of humanity in India, when it
ruled that the rule of law does not exist merely for those who have the means to fight for their
rights and very often do so for the perpetuation of the status quo, which protects and preserves
their dominance and permits them to exploit a large section of the community. The opportunity
for this ruling was provided by a letter written by the free legal aid committee, Hazaribagh, Bihar
drawing its attention to unjustified and illegal detention of certain prisoners in jail for almost two
or three decades.
International Commission of Jurists divided itself into certain working groups which tried to give
content to the concept in relation to an individual area of activity in a society.
1. Committee on Individual Liberty and the Rule of law, which lays down
a. That the state should not pass discriminatory laws
(1982) 2 SCC 583

2
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b. That the state should not interfere with religious beliefs
c. That the state should not place undue restrictions on freedoms
2. Committee on government and the rule of law under this the rule of law means not only
the adequate safeguards against abuse of power but effective government capable of maintaining
law and order.
3. committee on criminal administration and the rule of law
Committee on criminal administration and the rule of law rule of law here means
a. Due criminal process
b. No arrest without the authority of law
c. Presumption of innocence
d. Legal aid
e. Public trial and fair hearing.
4. Committee on judicial process and the rule of law, under this the rule of law means
a. Independent judiciary
b. Independent legal profession
c. Standard of professional ethics
The secretary general of the United Nations in its 2004 report (5/2004/616) Describe rule
of law to contain principles of governance and the measures necessary to ensure adherence to
those principles.
1. Principles of governance include accountability of all persons, institutions and entities,

public and private including state, to law which is publicly promulgated, equally enforced,
independently adjudicated and is in consistent with the human rights values, norms and standards.
2. Measures necessary to enforce these principles of governance may include supremacy of

law based on the above principles, equality before law and equal protection of law, fairness in the
application of law, separation of powers, participation in the decision making, legal certainty,
avoidance of arbitrariness, procedural transparency and accountability to law.
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Rule of Law in India
In India, the concept of the rule of law can be traced to the Upanishads. It provides “Law
is the king of Kings. It is more powerful and rigid than Kings. There is nothing higher than law.
By its power the weak shall prevail over the strong and justice shall triumph.”
The concept of rule of law is invoked and often to convey the sense that the administration cannot
exercise arbitrary powers and that it should function according to Law.
The concept of the rule of law is an animation of natural law and remains as a historical
ideal which makes a powerful appeal even today to be ruled by law not by powerful man.
Rule of law mandates that power must be made accountable, governance progressively just
and equal, and state incrementally ethical.
The term rule of law can be used in two senses
1. Formalistic sense
2. Ideological sense
If used in the formalistic sense, it refers to organized power as opposed to a rule by one man
and if used in an ideological sense it refers to the regulation of the relationship of the citizens and
the government and in this sense, it becomes a concept of varied interest and contents.
In its ideological sense, the concept of rule of law represents an ethical code for the exercise of
public power in any country. Strategies of this code may differ from society to society depending
on the societal needs at any given time, but its basic postulates are universal covering all space
and time. These postulates include equality, freedom and accountability.
Equality is not a mechanical under negative concept but has progressive and positive
contents which obliged every government to create conditions; Social, economic, and political,
where every individual has an equal opportunity to develop his personality to the fullest and to
live with dignity.
Freedom postulates absence of a very arbitrary action, free speech, expression and
association, personal Liberty, and many others. These basic rights of any society may be restricted
only on the ground that the claims of these freedoms would be better by such circumscription.
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Rule of law permeates the entire fabric of the Constitution and indeed forms one of its
basic features. The necessary element of rule of law is that the law must not be arbitrary or
irrational and it must satisfy the test of reason.3 Khanna J, has stated, “rule of law is the antithesis
of arbitrariness. Rule of law is now the accepted norm of all civilized societies.”4
A significant derivative from rule of law in the sphere of administrative law is judicial
review of administrative action to ensure that the administration acts according to law.
Absence of arbitrary power is the first essential of rule of law upon which our whole
Constitutional system is based.5 Rule of law may be said to be the sworn enemy of caprice. The
Supreme Court put a stamp of approval on the observations made by Douglas J, “Law has reached
its finest moments when it has freed man from unlimited discretion of some ruler... where
discretion is absolute, man has always suffered” 6 and Lord Mansfield who stated in the classic
terms, “discretion means sound discretion guided by law. It must be governed by rule, not humor,
it must not be arbitrary, vague and fanciful.”7
The basic concept of the rule of law is not well-defined legal concept. The courts generally
would not invalidate any positive law on the ground that it violates the contents of the rule of law.
However, in ADM Jabalpur v. Shivakanth Shukla,8 popularly known as habeas corpus case, an
attempt was made to challenge their detention orders during the emergency on the ground that it
violates the principles of the rule of law as the 'Obligation to act in accordance with the rule of
law.... a central feature of our Constitutional system and is a basic feature of the Constitution.'
Though the contention did not succeed and some justices even went on to suggest that during an
emergency, the emergency provisions themselves constitute the rule of law, yet if the reasoning of
on the fight opinions is closely read, it becomes clear that the contention was accepted, no matter
it did not reflect in the final order passed by the court. Therefore, despite the unfortunate order to
the effect that the doors of the court during an emergency are completely shut for the detenus, it is
gratifying to note that the concept of the rule of law can be used as a legal concept.
In the opinion of some of the judges constituting the majority in case of a

Keshavanandabharati v. State of Kerala,9 The rule of law was considered as an aspect of the
3
Bachan Singh v. State of Punjab, Air 1982 SC 1325
4
A.D.M. Jabalpur v. Shivakanth Shukla , AIR 1967 SC 207
5
S.G. Jaisinghani v. UOI , AIR 1967 SC 1427
6
United states v. Wunderlich , (1951) 352 98.
7
John W ilkies, In Re,
8
(1976) 2 SCC 521
9
(1973) 4 SCC 225
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doctrine of basic structure of the Constitution which even the plenary power of parliament cannot
reach to amend.
In Indira Nehru Gandhi v. Raj Narain,10 in which the Supreme Court invalidated clause 4
of Article 329-A inserted in the Constitution by the 39th Amendment Act 1975. To immunize the
election disputed to the office of the Prime Minister from any kind of judicial review, Khanna and
Chandrachud JJ. held that Article 329 A violated the concept of basic structure.
It is heartening to see that the courts are making all concerted efforts to establish a Rule of
Law society in India by insisting on fairness in every aspect of the exercise of power by the state.
Some of the recent decisions of the Supreme Court are clear indicators of this trend.
In Sheela Barse v. State of Maharashtra, the court insisted on fairness to women in police
lockup and drafted a code of guidelines for the protection of prisoners in police custody,
especially female prisoners.
In State of M.P. v. Ramashanker Raghuvanshi, the court secured fairness in public

employment by holding that reliance on police reports is entirely misplaced it in a Democratic
Republic. Thus, Diverts of the courts in here illegitimating undue Powers by operationalizing
substantive and procedural norms and standards can be seen as a high benchmark of judicial
activism for firmly establishing the concept of the rule of law in India.
Rule of law under the Constitution serves the needs of people without undoubtedly
infringing their rights. It recognizes the social reality and tries to adjust itself from time to time
avoiding authoritarian path. Rule of law under the Constitution has the glorious content. It
embodies the concept of law involved over the centuries.11 Doctrine of equality before the law is
necessary corollary to the high concept of rule of law accepted by our Constitution. One of the
aspects of rule of law is that every executive action if it operates to the prejudice of any person,
must be supported by some legislative authority.12
Under our Constitution the rule of law prevails over the entire field of administration and
every organ of the state is regulated by the rule of law. In a welfare state it is inevitable that
jurisdiction of administrative bodies is increasing by a rapid rate. The concept of rule of law
would lose its vitality if instrumentalities of the state are not charged with the duty of discharging
their function in a fair and just manner.13
10
AIR 1975 SC 2299
11
Golaknath v. State of Punjab, AIR
12
Satvant Singh Sawhney v. Ramarathanana, AIR 1967 SC 1836
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Rule of law requires that any abuse of power by public officers should be subject to
control of Courts.14 Principles of rule of law and the due process are closely linked with human
rights protection. Such rights can be protected effectively when a citizen has recourse to the courts
of law. Failure to accord fair hearing either to the accused or prosecution violates even minimum
standards of due process of law.
Binding character of judgments pronounced by courts of competent jurisdiction is essential

part of rule of law. Rule of law is obviously such basis of the administration of justice at which
Constitution lays so much emphasis.15
Wisdom of issuing executive instructions in the matters which are governed by the
provisions of law is doubtful. Even if it be considered necessary to issue instructions in such a
matter, instructions cannot be so framed or utilized so as to override the provisions of law will
stop such a method will destroy the very basis of rule of law and strike at the very root of orderly
administration of law.
The rule of law is basic rule of governance of any civilized polity. The scheme of
Constitution of India is based on the concept of rule of law. Everyone whether individually or
collectively is unquestionably under the supremacy of law. It is only through the courts that rule
of law unfolds its contents and establishes its concept.16
Obligation to act fairly on the part of administrative authorities was evolved to ensure rule
of law and to prevent failure of justice. This is a doctrine which the quasi-judicial, authorities are
also bound to observe.
The High Court is required to enforce rule of law, it therefore cannot pass order or
direction contrary to what has been injuncted by law.17
In Indira Sawhney II v. UOI, the Supreme Court criticized the approach of the government
and held that governments today tend to violate rule of law as a matter of political convenience so
that burden of striking down unconstitutional provisions passed to the court. Such an approach of
the government was deprecated.18
13
A.K Kraipak v. UOI, AIR 1970 SC 150
14
State of Punjab v. Khanchand, AIR 1974 SC 543
15
Daryao v. State of U.P AIR 1961 SC 1457
16
Arundathi Rai, AIR 2002 SC 1375
17
KSRTC v. Ashrafullah Khan, AIR 2002 SC 629
18
Indira Sawhney II v. UOI, AIR 2000 SC 498
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Our Constitution envisages a rule of law and not a rule of men. It recognizes that,
howsoever high one maybe, he is under the law and the Constitution. All the Constitutional
functionaries must, therefore, function within the Constitutional limits. In a system governed by
rule of law, there is nothing like absolute or unbridled power exercisable at the whims and fancies
of the repository power. There is nothing like a power without any limits or constraints. That is so
even when a court or other authority may be vested with wide discretionary power, for such
discretion has to be exercised only along well recognized and sound juristic principles with a view
to promoting fairness, inducing transparency and aiding equity.19
Thus, the concept of rule of law in India is duly recognized by the Constitution and is
firmly established by judicial pronouncements.
Rule of Law under Constitution of India
We have adopted under our Constitution not the continental system but the British system
under which rule of law prevails. Federal structure of the Indian Constitution is founded on certain
fundamental principles. Undoubtedly, one of them being rule of law which includes judicial
review of arbitrary executive action.20
Dicey’s rule of law has been adopted and incorporated in the Constitution of India. The
Preamble itself enunciates the ideals of Justice, Liberty and Equality. In Part III of the
Constitution these concepts are enshrined as Fundamental Rights and are made enforceable. The
Constitution is supreme and all the three organs of the Government, viz. Legislature, Executive
and Judiciary are subordinate to and have to act in consonance with the Constitution. The doctrine
of judicial review is embodied in the Constitution and the subjects can approach the High Courts
and the Supreme Court for the enforcement of Fundamental Rights guaranteed under the
Constitution. If the executive or the Government abuses the power vested in it or if the action is
mala fide, the same can be quashed by the ordinary courts of law.
All rules, regulations, ordinances, bye-laws, notifications, customs and usages are ‘laws’
within the meaning of Article 13 of the Constitution and if they are inconsistent with or contrary
to any of the provisions thereof, they can be declared ultra vires by the Supreme Court and by
High Courts. The President and the Judges of the Supreme Court and High Courts are required to
take an oath to preserve, protect and defend the Constitution. No person shall be deprived of his
life or personal liberty except according to procedure established by law or of his property save by
19
Maya Devi v. Raj Kumari Batra, (2010) 9 SCC 486
20
State of M.P v. Thakur Bharat Singh , AIR 1967 SC 1170
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authority of law. Executive and legislative powers of States and the Union have to be exercised in
accordance with the provisions of the Constitution. Government and public officials are not above
law. The maxim 'The King can do no wrong' does not apply in India. There is equality before the
law and equal protection of laws. Government and public authorities are also subject to the
jurisdiction of ordinary courts of law and for similar wrongs are to be tried and punished similarly.
They are not immune from ordinary legal process nor in any provision made regarding separate
administrative courts and tribunals. In public service also the doctrine of equality is accepted.
Suits for breach of contract and torts committed by pubic authorities can be filed in ordinary law
courts and damages can be recovered from State Government or Union Government for the acts of
their employees. Thus, it appears that the doctrine of rule of law is embodied in the Constitution
of India, and is treated as the basic structure of the Constitution.
In spite of such apparently enviable position of subjects, in almost all the fields of
industry, commerce, education, transport, banking, insurance, etc. there is interference by
administrative authorities with actions of individuals, companies and other corporate and non-
corporate bodies, observes Justice Ramaswamy. From the Constitutional point of view there is
large-scale delegation of legislative and judicial powers to these administrative authorities. These
authorities have been extending their tentacles into social, economic and political domains. Wide
discretionary powers are conferred on these administrative authorities. For the purpose of national
planning, the Executive is armed with vast powers in respect of land ceiling, control of basic
industries, taxation, mobilization of labour, etc. Further, it is also erroneous to believe that
individual liberty can be protected only by the traditional doctrine of rule of law. Experience
shows that not only the Executive but even Parliament elected by the people may pass some
demonic statutes like the Preventive Detention Act, or Maintenance of Internal Security Act, 1971
(MISA), National Security Act, 1980 (NSA) and encroach upon the liberty of subjects.
Ultimately, as Prof. Harold Laski says: "Eternal vigilance is the price of liberty" and not a
particular principle or doctrine of law.
Conclusion
Thus, Rule of Law doctrine is a complicated and demanding criterion for evaluating the
legitimacy of governance in any state. Nevertheless, it cannot be a ground to ignore it if benefits
of a Constitutional democracy are to be secured for the present and future generations of people.
Recent aggressive judicial activism can only be seen as a part of the efforts of the
Constitutional codes in India to establish a Rule of Law society which implies that no matter how
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high a person may be, the law is always above him. Court is also trying to identify the concept of
rule of law with human rights of the people. The court is developing techniques by which it can
force the government not only to submit to the law but also to create conditions where people can
develop capacities to exercise their rights properly and meaningfully. The public administration is
responsible for effective implementation of the rule of law and Constitutional demands which
effectuate fairly the objective standards laid down by law.21 A every public servant is a trustee of
society and is accountable for due effect creation of Constitutional goals. This makes the concept
of rule of law highly relevant to our context.
Thus, the concept of Rule of Law has all the merits, the only negative side of the concept
is that respect for law degenerates into the legalism from which its very rigidity works injury to
the nation.
DOCTRINE OF SEPARATION OF POWERS
If the rule of law hampered the recognition of administrative law in Britain for a while, the
doctrine of separation of powers had an intimate impact on the growth of administrative process
and administrative law in the United States. It has been characterized as the principal doctrinal
barrier to the development of administrative law in the USA.
Though the doctrine is traceable to Aristotle, but the writings of Locke and Montesquieu
gave it a base on which modern attempts to distinguish between legislative, executive and judicial
power is grounded. Locke distinguish between what he called
1. Discontinuous legislative power
2. Continuous executive power
3. Federative power
Locke and Montesquieu derived the contents of this doctrine from the developments in the
British Constitutional history of the early 18th century. The theory of Separation of Powers was
enunciated by Montesquieu in his book ' The Spirit of the Laws'. Writing in 1748, Montesquieu
said;
When the legislative and executive powers are united in the same person, or in the same
body of magistrates, there can be no Liberty; apprehensions may arise, Let’s the same monarch
are saying it should enact tyrannical laws, to execute them in a tyrannical manner. Again, there is
21
State of Punjab v. G.S. Gill, (1997) 6 SCC 129
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no Liberty, if the judiciary power be not separated from the legislative and executive. Where it
joined it without the legislative, the life and Liberty of the subject would be exposed to arbitrary
control; For the judge would be then the legislator. Where it joined to the executive power, the
judge might behave with violence and oppression. There would be an end of everything, were the
same man, or the same body, whether of the nobles or of the people come out to exercise those
three powers, that of executing laws, that of exhibiting the public resolutions, and of trying the
causes of individuals.
Importance
The basic purpose of the doctrine of separation of power is to divide governance against
itself by creating a distinct centre of power so that they could prevent each other from threatening
tyranny.
The aim of the doctrine of separation of power is to guard against tyrannical and arbitrary
powers of the state. The rationale underlying the doctrine has been that if all power is
concentrated in one and the same organ or person there would arise the danger that it may enact
tyrannical laws, execute them in a despotic manner, and interpret them in an arbitrary fashion
without any external control.
The doctrine of separation of powers is based on four different principles
1. Exclusivity principle which suggests structural division in all the three organs of state as it
is in the USA
2. Functional principle which prohibits amalgamation and usurpation but not interaction of
all the organs of state.
3. Check and balance principle, meaning, thereby, that each organ of state may check the
other to keep it within constitutional bounds.
4. Mutuality principle which aims at creating Concord not discord, cooperation not
confrontation, engagement not estrangement amongst different organs of state to create a Society
of constitutional image, which is a free, equalitarian, inclusive and the rule of Law Society.
This doctrine can be further used in two senses
1. Negative sense, in which this doctrine puts limits on the exercise of power by each organ
of state
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2. Positive sense in which it not only demarcates limits but also defines the minimum
contents of power within those limits which a court can enforce to achieve constitutional values.
The theory of separation of powers signifies three formulations of structural classification of

governmental powers
1. The same person should not form part of more than one of the three organs of the
government.
2. One organ of the government should not interfere with any other organ of the
government.
3. One organ of the government should not exercise the function assigned to any other organ.
It is generally accepted that there are three main categories of governmental functions –
Legislative, Executive, and Judicial. Likewise, there are three main organs of the Government in a
State - Legislature, Executive and Judiciary. According to the theory of separation of powers,
these three powers and functions of the Government must, in a free democracy, always be kept
separate and be exercised by three separate organs of the Government. Thus, the Legislature
cannot exercise executive or judicial power; the Executive cannot exercise legislative or judicial
power and the Judiciary cannot exercise legislative or executive power of the Government.
On the whole, the doctrine of Separation of Powers in the strict sense is undesirable and
impracticable and, therefore, it is not fully accepted in any country. Nevertheless, its value lies in
the emphasis on those checks and balances which are necessary to prevent an abuse of enormous
powers of the executive. The object of the doctrine is to have “Government of Law rather than of
official will or whim.” Montesquieu's great point was that if the total power of the government is
divided among autonomous organs, one will act as a check upon the other and in the check liberty
can survive. Again, almost all the jurists accept one feature of this doctrine that the judiciary must
be independent of and separate from the remaining two organs of the Government, viz.,
Legislature and Executive.
Doctrine of separation of powers in USA
The doctrine of separation of powers is implicit in the American constitution. It

emphasizes the mutual exclusiveness of the three organs of the government. According to this
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doctrine, the legislature cannot exercise executive or judicial power, the executive cannot exercise
legislative or judicial power, and the judiciary cannot exercise the other two powers.
The form of government in the USA characterized as the presidential, is based on the
theory that there should be separation between executive and the legislature. This is different from
the system prevailing in Britain or India where the parliamentary form of government operates
and which is based on coordination of the executive and legislature
The doctrine of separation has influence over, and has itself been influenced by, the
growth of administrative law in the USA. In the face of new demands on the government to solve
we need complex socio economic problems of the modern society, new institutions have been
created and the new procedures evolved by which the doctrine of separation has been largely
diluted but the character of administrative law itself has been influenced and conditioned to some
extent by this doctrine.
By force of circumstances, administrative law has inevitably grown in the United States,
but the separation doctrine did not generate an attitude of indifference towards it, as happened in
Britain under the spell of the Dicean concept of rule of law. In the USA the attitude was that of
examination and criticism of the advisability and propriety of the new development.
Doctrine of separation of powers in United Kingdom
The United Kingdom does have a kind of separation of powers but unlike the United
States it is informal. Blackstone’s theory of mixer government with checks and balances is more
relevant to the UK separation of powers is not an absolute or predominant feature of the UK
constitution. The three branches are not formally separated and continue to have significant
overlap.
Though No separation of powers in the strict sense of the term exists in England and the
US, it the curious fact is that this doctrine has attracted the makers of most modern constitutions,
especially during the 19th century. Thus, in France, the doctrine has produced a situation in which
the ordinary codes are precluded from revealing the validity not only of legislative enactments but
even of the actions of the administration. The void has been filtered by the establishment of
special administrative quotes.
Doctrine of separation of powers in India

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In India, the doctrine of separation of powers has not been accorded a Constitutional
status. It has no place in strict sense in the constitution of India. But the functions of different
organs of the government have been clearly marked, so that one organ of the government does not
usurp the functions of another.
On a casual glance at the provisions of the Constitution of India, one may be inclined to
say that the doctrine of Separation of Powers is accepted in India. Under the Indian Constitution,
executive powers are with the President, legislative powers with the Parliament and judicial
powers with the Judiciary (Supreme Court, High Courts and subordinate courts). The President
holds his office for a fixed period. His functions and powers are enumerated in the Constitution
itself. Parliament is competent to make any law subject to provisions of the Constitution and there
is no other limitation on its legislative power. It can amend the law prospectively or even
retrospectively but it cannot declare a judgment delivered by a competent court void or of no
effect. The Parliament has also inherited all the powers, privileges and immunities of the British
House of Commons. Similarly, the Judiciary is independent in its field and there can be no
interference with its judicial functions either by the Executive or by the Legislature. The Supreme
Court and High Courts are given the power of judicial review and they can declare any law passed
by Parliament or Legislature ultra vires or unconstitutional.
In In re Delhi Laws Act case,22 Honourable Chief Justice, Kania Observe that although in
the Constitution of India there is no express separation of power, it is clear that a legislature is
created by the constitution and detailed provisions are made for making that legislature passed
laws. Is it then too much to say that under the constitution the duty to make loss, the duty to
exercise its own wisdom, judgment and patriotism in making law is primarily cast on the
legislature? does it not imply that unless it can be gathered from other provisions of the
constitution, other bodies executive or judicial are not intended to discharge legislative functions.
The Indian Constitution has not indeed recognized the doctrine of separation of powers in
the absolute rigidity but the functions of the different parts or branches of the government have
been sufficiently differentiated and consequently it can very well said that our Constitution does
not contempt it assumption, by one organ or part of the state, of functions that essentially belong
to another.23
22
1912, re, AIR 1951 SC 332
23
Ram Jawaya Kapoor v. State of Punjab, AIR, 1955 SC 549
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In the absence of specific provision for separation of powers in our constitution, such as
there is under the American constitution, some such a division of powers legislative, executive
and judicial- is nevertheless implicit in our constitution.24 In the celebrated case of Keshavananda
Bharathi,25 It was observed “Separation of powers between the legislature, executive and the
judiciary is a part of the basic structure of the constitution; this structure cannot be destroyed by
any form of amendment.
In Indira Nehru Gandhi,26 it was observed that in the Indian constitution there is separation
of powers in a broad sense only. No constitution can survive without a conscious adherence to its
fine checks and balances. A rigid separation of powers as under the US constitution or the
Australian constitution does not apply to India.
In India, not only is there a functional overlapping but there is personal overlapping also.
Taking into account these factors, some jurists are of the opinion that the doctrine of Separation of
Powers has been accepted in the Constitution of India and is a part of the basic structure of the
Constitution. Separation of functions is not confined to the doctrine of Separation of Powers. It is
a part of essential structure of any developed legal system. In every democratic society, the
process of administration, legislation and adjudication are more clearly distinct than in a
totalitarian society.
But if one studies the Constitutional provisions carefully, it is clear that the doctrine of
Separation of Powers has not been accepted in India in its strict sense. There is no provision in the
Constitution itself regarding the division of functions of the Government and the exercise thereof.
Though, under Articles 53(1) and 154(1), the executive power of the Union and of the States is
vested in the President and the Governors respectively, there is no corresponding provision
vesting the legislative and judicial power in any particular organ. The President has wide
legislative powers. He can issue Ordinances, make laws for a State after the State Legislature is
dissolved, adopt the laws or make necessary modifications and the exercise of this legislative
power is immune from judicial review. He performs judicial functions also. He decides disputes
regarding the age of a judge of a High Court or the Supreme Court for the purpose of retiring him
and cases of disqualification of members of any House of Parliament.
Likewise, Parliament exercises legislative functions and is competent to make any law not
inconsistent with the provisions of the Constitution, but many legislative functions are delegated
24
Ram Krishna Dalmia v. Justice Tendolkar, AIR 1958 SC 538
25
Keshvananda Bharthi v. State of Kerala, AIR 1973 SCC 1461
26
Indira Nehru Gandhi v. Raj Narain, AIR 1975 SC 2299
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to the executive. In certain matters, Parliament exercises judicial functions also. Thus, it can
decide the question of breach of its privilege and, if proved, can punish the person concerned. In
case of impeachment of the President, one House acts as a prosecutor and the other House
investigates the charges and decides whether they were proved or not. The latter is a purely
judicial function.
On the other hand, many powers which are strictly judicial have been excluded from the
purview of courts. Though judiciary exercises all judicial powers, at the same time, it exercises
certain executive or administrative functions also. The High Court has supervisory powers over all
subordinate courts and tribunals and also power to transfer cases. The High Courts and the
Supreme Court have legislative powers, they also frame rules regulating their own procedure for
the conduct and disposal of cases.
Thus, the doctrine of separation of powers is not accepted fully in the Constitution of
India, and one may agree with the observations of Mukherjea, J. in Ram Jawaya v. State of
Punjab,27 “The Indian Constitution has not indeed recognized the doctrine of separation of powers
in its absolute rigidity but the functions of the different parts or branches of the Government have
been sufficiently differentiated and consequently it can very well be said that our Constitution
does not contemplate assumption, by one organ or part of the State, of functions that essentially
belong to another.
Drawbacks
Though, theoretically, the doctrine of separation of powers was very sound, many defects
surfaced when it was sought to be applied in real life situations. Mainly, the following defects
were found in this doctrine:
1. Historically speaking, the theory was incorrect. There was no separation of powers under the
British Constitution. At no point of time, was this doctrine was adopted in England. As Prof.
Ullman says, “England was not the classic home of separation of powers.” Donoughmore
Committee also observed, “In the British Constitution there is no such thing as the absolute
separation or legislative, executive and judicial powers.”
2. This doctrine is based on the assumption that the three functions of the Government, viz.
legislative, executive and judicial are independent and distinguishable from one another. But in
27
Ram Jawaya Kapoor v. State of Punjab, AIR, 1955 SC 549
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fact, it is not so. There are no watertight compartments. It is not easy to draw a demarcating line
between one power and another with mathematical precision.
3. It is impossible to take certain actions if this doctrine is accepted in its entirety. Thus, if the
legislature can only legislate, then it cannot punish anyone, committing a breach of its privilege;
nor can it delegate any legislative function even though it does not know the details of the subject-
matter of the legislation and the executive authority has expertise over it; nor could the courts
frame rules of procedure to be adopted by them for the disposal of cases. Separation of Powers,
thus, can only be relative and not absolute.
4. Modern State is a welfare State and it has to solve complex socio-economic problems and in
this state of affairs also, it is not possible to stick to the doctrine.
5. The modern interpretation of the doctrine of Separation of Powers means that discretion must
be drawn between ‘essential’ and ‘incidental’ powers and one organ of the Government cannot
usurp or encroach upon the essential functions belonging to another organ, but may exercise some
incidental functions thereof.
6. The fundamental object behind Montesquieu's doctrine was liberty and freedom of an
individual; but that cannot be achieved by mechanical division of functions and powers. In
England, theory of Separation of Powers is not accepted and yet it is known for the protection of
individual liberty. For freedom and liberty, it is necessary that there should be the Rule of Law
and impartial and independent judiciary and eternal vigilance on the part of the subjects.
In conclusion, doctrine of separation of powers in today’s context of liberalization,

privatization and globalization cannot be interpreted to mean either separation of powers is
checked in balance or principle of restraint, but community of powers exercised in the spirit of
cooperation by various organs of the state in the best interest of the people.
CLASSIFICATION OF ADMINISTRATIVE ACTION ---- ANATOMY OF

ADMINISTRATIVE ACTION
There are three organs of the State – the Legislature, the Executive and the Judiciary. The
function of the legislature is to enact the law; the executive is to administer the law and the
judiciary is to interpret the law and to declare what the law is.
But as observed by the Supreme Court in Jayantilal Amratlal v. F. N. Rana28 it cannot be
28
AIR 1964 SC 684
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assumed that the legislative functions are exclusively performed by the legislature, executive
functions by the executive and judicial functions by judiciary. In Halsbury's Laws of England
also, it is stated that howsoever term ‘the Executive’ or ‘the Administration’ is employed, there is
no implication that the functions of the executive are confined exclusively to those of executive or
administrative character.
Today, the executive performs variegated functions, viz. to investigate, to prosecute, to

prepare and to adopt schemes, to issue and cancel licences, (administrative); to make rules,
regulations and bye-laws, to fix prices, (legislative); to adjudicate on disputes, to impose fine and
penalty, etc. (judicial) Schwartz rightly states that rule-making (quasi legislative) and adjudication
(quasi-judicial) have become the chief weapons in the administrative armoury.
Classification of Administrative Actions
1. Legislative Functions- Rule making action or quasi-legislative action- Legislative

power which in administrative law parlance is known as Delegated Legislation.
2. Rule decision action or quasi- judicial action- Adjudicative power
3. Rule-application action or administrative action.
4. Ministerial action or pure administrative action- Administrative power which is non -
legislative and non-adjudicative power
1. Legislative Functions
Legislative functions of the executive consist of making rules, regulations, bye-laws, etc. It
is, no doubt, true that any attempt to draw a distinct line between legislative and administrative
functions is difficult in theory and impossible in practice. Though difficult, it is necessary that the
line must be drawn as different legal rights and consequences ensue.
As Schwartz said, “If a particular function is termed ‘legislative’ or ‘rule-making’ rather

than ‘judicial’ or ‘adjudication’, it may have substantial effects upon the parties concerned. If the
function is treated as legislative in nature, there is no right to a notice and hearing unless a statute
expressly requires them.”
In the leading case of Bates v. Lord Hailsham, Megarry, J. observed that “the rules of
natural justice do not run in the sphere of legislation, primary or delegated.” Wade also said,
“There is no right to be heard before the making of legislation, whether primary or delegated,
unless it is provided by statute.”
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Fixation of price, declaration of a place to be a market yard, imposition tax, establishment

of Municipal Corporation under the statutory provision, extension of limits of a town area
committee, etc. are held to be legislative functions.
Rulemaking action of the administration partakes all the characteristics which in normal
legislative action processes. Such characteristics maybe generality, prospectivity, and a behaviour
which basis action on policy consideration and gives a right or a disability. These characteristics
are not without exception.
2. Rule decision action or quasi- judicial action- Adjudicative power -Quasi – Judicial
Functions
Judicial Functions
According to the Committee on Ministers’ Powers, a pure judicial function presupposes an

existing dispute between two or more parties and it involves four requisites
1. The presentation (not necessarily oral) of their case by the parties to the dispute;
2. If the dispute is a question of fact, the ascertainment of fact by means of evidence

adduced by the parties to the dispute and often with the assistance of argument by or on behalf of
the parties, on evidence;
3. If the dispute between them is a question of law, the submission of legal argument by
the parties; and
4. A decision which disposes of the whole matter by finding upon the facts in dispute and
‘an application of the law of the land to the facts found, including, where required, a ruling upon
any disputed question of law.’
Thus, these elements are present, the decision is a judicial decision even though it might
have been made by any authority other than a court, e.g. by Minister, Board, Executive Authority,
Administrative Officer or Administrative Tribunal.
The word ‘quasi’ means ‘not exactly.’ Generally, an authority is described as ‘quasi-
judicial’ when it has some of the attributes or trappings of judicial functions, but not all. In the
words of the Committee on Ministers’ Powers, “the word ‘quasi’, when prefixed to a legal term,
generally means that the thing, which is described by the word, has some of the legal attributes
denoted and connoted by the legal term, but that it has not all of them” e.g. if a transaction is
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described as a quasi-contract, it means that the transaction in question has some but not all the
attributes of a contract.
According to the Committee, a quasi-judicial decision equally presupposes an existing

dispute between two or more parties and involves (1) and (2) above but does not necessarily
involve (3) and never involves (4). The place of (4) is, in fact, taken by administrative action, the
character of which is determined the Minister's choice.
For instance, suppose a statute empowers a Minister to take action if certain facts are
proved, and in that event gives him an absolute discretion whether or not to take action. In such a
case, he must consider the representations of parties and ascertain the facts – to that extent the
decision contains a judicial element. But, the facts once ascertained, his decision does not depend
on any legal or statutory direction, for ex hypothesis is he is left free within the statutory
boundaries to take such administrative action as he may think fit: that is to say that the matter is
not finally disposed of by the process of (4) This test has, however, been subject to criticism by
jurists. It does not give a complete and true picture. It is based on a wrong hypothesis. The
Committee characterized the judicial function as being devoid of any discretionary power but
obliged to merely apply the law to the proved facts. In reality, it is not so. The courts of law also
exercise discretion. It may be more persuasive in administrative actions than in judicial functions
but the difference is of degree only. A quasi-judicial function stands mid-way between a judicial
function and an administrative function. A quasi-judicial decision is nearer the administrative
decision in terms of its discretionary element and nearer the judicial decision in terms of
procedure and objectivity of its end-product.
It is also not true that in all quasi-judicial decisions, two characteristics are common
1. presentation of their case by the parties; and
2. the decision on questions of fact by means of evidence adduced by the parties.
Firstly, in many cases, the first characteristic is absent and the authority may decide a
matter not between two or more contesting parties but between itself and another party, e.g. an
authority effecting compulsory acquisition of land. Here the authority itself is one of the parties
and yet it decides the matter. It does not represent its case to any court or authority.
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Secondly, there may be cases in which no evidence is required to be taken and yet the
authority has to determine the questions of fact after hearing the parties, e.g. ratemaking or price-
fixing. Thirdly, after ascertainment of facts, unlike a regular court, an authority is not bound to
apply the law to the facts so ascertained, and the decision can be arrived at according to
considerations of public policy or administrative discretion, which factors are unknown to an
ordinary court of law.
Today the bulk of decisions which affect a private individual come not from codes but
from administrative agencies exercising adjudicatory powers. The reason seems to be that since
administrative decision-making is also a by-product of the intensive form of government, the
traditional judicial system cannot give to the people that quantity and quality of justice which is
required in a welfare state. Administrative decision making may be defined as a power to perform
acts administrative in character comma but requiring incidentally some characteristics of judicial
traditions.
3. Rule-application action or administrative action.
Administer do action may be statutory, having the force of law or Non statutory, devoid of such
legal force. The bulk of the administrative action is statutory because a statute or the constitution
gives it illegal force, but in some cases, it may be non-statutory, such as issuing directions to
subordinates not having the force of law, but it’s violation may be visited with disciplinary action.
Though by and large administrative action is discretionary and is based on subjective satisfaction,
however, the administrative authority must act fairly, impartially and reasonably.
4. Administrative Functions - Ministerial action or pure administrative action- Administrative

power which is non -legislative and non-adjudicative power
In Ram Jawaya v. State of Punjab, the Supreme Court observed, “It may not be possible to
frame an exhaustive definition of what executive function means and implies. Ordinarily the
executive power connotes the residue of governmental functions that remain after legislative and
judicial functions are taken away."
Thus, administrative functions are those functions which are neither legislative nor judicial
in character. Generally, the following ingredients are present in administrative functions:
1. An administrative order is generally based on governmental policy or expediency.

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2. In administrative decisions, there is no legal obligation to adopt a judicial approach to

the questions to be decided, and the decisions are usually subjective rather than objective.
3. An administrative authority is not bound by the rules of evidence and procedure unless
the relevant statute specifically imposes such an obligation.
4. An administrative authority can take a decision in exercise of a statutory power or even

in the absence of a statutory provision, provided such decision or act does not contravene
provision of any law.
5. Administrative functions may be delegated and sub-delegated unless there is a specific

bar or prohibition in the statute.
6. While taking a decision, an administrative authority may not only consider the evidence
adduced by the parties to the dispute, but may also use its discretion.
7. An administrative authority is not always bound by the principles of natural justice

unless the statute casts such duty on the authority, either expressly or by necessary implication or
it is required to act judicially or fairly.
8. An administrative order may be held to be invalid on the ground of unreasonableness.
9. An administrative action will not become a quasi-judicial action merely because it has
to be performed after forming an opinion as to the existence of any objective fact.
10. The prerogative writs of certiorari and prohibition are not always available against
administrative actions.
Need for Classification
A question which arises for our consideration is whether the function performed by the
executive authorities are purely administrative, quasi-judicial or quasi-legislative in character. The
answer is indeed difficult, as there is no precise, perfect and scientific test to distinguish these
functions from one another. Administrative and quasi-judicial decisions tend to merge in
legislative activity and, conversely, legislative activity tends to fade into and present an
appearance of an administrative or quasi-judicial activity. A further difficulty arises in a case in
which a single proceeding may at times combine various aspects of the three functions. The courts
have not been able to formulate any definite test for the purpose of making such classification.
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Yet, such classification is essential and inevitable as many consequences flow from it, e.g.
if the executive authority exercises a judicial or quasi-judicial function, it must follow the
principles of natural justice and is amenable to a writ of certiorari or prohibition, but if it is a
legislative or quasi-legislative function, natural justice has no application. If the action of the
executive authority is legislative in character, the requirement of publication, laying on the table,
etc. should be complied with, but it is not necessary in the case of a pure administrative action.
Again, if the function is administrative, delegation is permissible, but if it is judicial, it cannot be
delegated. An exercise of legislative power may not be held invalid on the ground of
unreasonableness, but an administrative decision can be challenged as being unreasonable. It is,
therefore, necessary to determine what type of function the administrative authority performs.
Distinction between Judicial and Quasi-Judicial Functions
A quasi-judicial function differs from a purely judicial function in the following respects
1. A quasi-judicial authority has some of the trappings of a court, but not all of them;
nevertheless, there is an obligation to act judicially.
2. A lis inter parties is an essential characteristic of a judicial function, but this may not
be true of a quasi-judicial function.
3. A court is bound by the rules of evidence and procedure while a quasi-judicial authority
is not.
4. While a court is bound by precedents, a quasi-judicial authority is not.
5. A court cannot be a judge in its own cause (except in contempt cases), while an
administrative authority vested with quasi-judicial powers may be a party to the controversy but
can still decide it.
The distinction between judicial and quasi-judicial functions rests mainly on the fact that
in deciding cases, courts apply pre-existing law whereas administrative authorities exercise
discretion. This is, however, fallacious. ‘The most that can be said is that the discretions of the
courts may differ in nature and extent from the discretions of the administrator. Nevertheless, the
asserted discretion is reduced to one of degree only.
Distinction between Administrative and Quasi-Judicial Functions
General
104
49
Actions of an administrative authority may be purely administrative or may be legislative

or judicial in nature. Decisions which are purely administrative stand on a wholly different footing
from judicial as well as quasi-judicial decisions and they must be distinguished. This is a very
difficult task. “Where does the administrative end and the judicial begin? The problem here is one
of demarcation and the courts are still in the process of working it out.”
Object
With the increase of power of administrative authorities, it may be necessary to provide

guidelines for the just exercise thereof. To prevent abuse of power and to see that it does not
become a ‘new despotism,’ courts have evolved certain principles to be observed by adjudicating
authorities.
Lis
To appreciate the distinction between administrative and quasi-judicial functions, we have

to understand two expressions
(i) ‘lis’, and
(ii) ‘quasi-Lis’
One of the major grounds on which a function can be called ‘quasi-judicial’ as

distinguished from pure ‘administrative’ is when there is a lis inter parte and an administrative
authority is required to decide the dispute between the parties and to adjudicate upon the lis. Prima
facie, in such cases the authority will regarded as acting in a quasi-judicial manner.
Certain administrative authorities have been held to be quasi-judicial authorities and their
decisions regarded as quasi-judicial decisions, wherein such lis was present, e.g. a Rent Tribunal
determining ‘fair rent’ between a landlord and tenant, an Election Tribunal deciding an election
dispute between rival candidates, an Industrial Tribunal deciding an industrial dispute, a Licensing
Tribunal granting a licence or permit to one of the applicants.
Quasi-lis
But it is not in all cases that the administrative authority is to decide a lis inter partes.
There may be cases in which an administrative authority decides a lis not between two or more
contesting parties but between itself and another party. But there also, if the authority is
empowered to take any decision which will prejudicially affect any person, such decision would
be a quasi-judicial decision provided the authority is required to act judicially.
105
50
Thus, where an authority makes an order granting legal aid, dismissing an employee,
refusing to grant, revoking, suspending or cancelling a licence, cancelling an examination result of
a student for using unfair means, rusticating of a pupil, etc. such decisions are quasi-judicial in
character.
In all these cases there are no two parties before the administrative authority, ‘and the
other party to the dispute, if any, is the authority’ itself. Yet, as the decision given by such
authority adversely affects the rights of a person there is a situation resembling a lis. In such cases,
the administrative authority has to decide the matter objectively after taking into account the
objections of the party before it, and if such authority exceeds or abuses its powers, a writ of
certiorari can be issued against it. Therefore, Lord Greene, M.R. rightly calls it a ‘quasi-lis.’
Duty to act judicially The real test which distinguishes a quasi-judicial act from an
administrative act is the duty to act judicially, and therefore, in considering whether a particular
statutory authority is a quasi-judicial body or merely an administrative body, what has to be
ascertained is whether the statutory authority has the duty to act judicially.
The question which may arise for our consideration is as to when this duty to act judicially
arises. As observed by Parker, J. “the duty to act judicially may arise in widely different
circumstances which it would be impossible, and indeed, inadvisable, to attempt to define
exhaustively.”
Whenever there is an express provision in the statute itself which requires the
administrative authority to act judicially, the action of such authority would necessarily be a
quasi-judicial function. But this proposition does not say much, for it is to some extent a tautology
to say that the function is quasi-judicial (or judicial) if it is to be done judicially.
Generally, statutes do not expressly provide for the duty to act judicially and, therefore,
even in the absence of express provisions in the statutes the duty to act judicially should be
inferred from ‘the cumulative effect of the nature of the rights affected, the manner of the disposal
provided, the objective criterion to be adopted, the phraseology used, the nature of the power
conferred, of the duty imposed on the authority and the other indicia afforded by the statute.
Duty to Act Fairly
Since ‘fairness in action’ is required from Government and all its agencies, the recent trend
is from ‘duty to act judicially’ to ‘duty to act fairly.’ ‘Duty to act fairly’ is indeed a broader notion
and can be applied even in those cases where there is no lis. It is this concept (‘duty to act fairly’),
106
51
which has given rise to certain new doctrines, e.g. ‘fair play in action’, legitimate expectations,
proportionality etc.
Cases
Province of Bombay v. Khushaldas S. Advani was the first leading Indian decision on the
point. Under Section 3 of the Bombay Land Requisition Ordinance, 1947, the Provincial
Government was empowered to requisition any land for any public purpose “if in the opinion of
the Government” it was necessary or expedient to do so. It was contended that the Government
while deciding whether requisition was for a public purpose, had to act judicially. The High Court
of Bombay upheld the said contention. Reversing the decision of the High Court, the Supreme
Court held by a majority that the governmental function of requisitioning property was not quasi-
judicial, for the decision was based on the subjective satisfaction of the Government and it was
not required to act judicially.
Similarly, in R. v. Metropolitan Police Commr., ex p. Parker, a cab driver’s licence was

revoked on the ground of alleged misconduct without giving reasonable opportunity to him to
rebut the allegations made against him. The court upheld the order on the ground that the licence
was merely a permission which could be revoked at any time by the grantor, and in doing so he
was not required to act judicially.
Test
No ‘cut and dried’ formula to distinguish quasi-judicial functions from administrative

functions can be laid down. The dividing line between the two powers is quite thin and being
gradually obliterated. For determining whether a power is an administrative power or a quasi-
judicial power, one has to look to the nature of the power conferred, the person or persons on
whom it is conferred, the framework of the law conferring that power, the consequences ensuing
from the exercise of that power and the manner in which that power is expected to be exercised.
The requirement of acting judicially in essence is nothing but a requirement to act justly
and fairly and not arbitrarily or capriciously. The procedures which are considered inherent in the
exercise of quasi-judicial power are merely those which facilitate if not ensure a just and fair
decision. In recent years, the concept of quasi-judicial power has been undergoing a radical
change. What was considered as an administrative power some years back is now being
considered as a quasi-judicial power.
107
52
Whether a particular function is administrative or quasi-judicial must be determined in

each case on an examination of the relevant statute and the rules framed thereunder and the
decision depends upon the facts and circumstances of the case.
At one time prerogative remedies of certiorari and prohibition were confined to ‘judicial’
functions pure and simple of public bodies. They both are now available in relation to functions
which may be regarded as ‘administrative’ or even ‘legislative.’ As it is said, it is not the label that
determines the exercise of jurisdiction of the court but the quality and attributes of the decision.
"On the whole the test of justiciability has replaced that of classification of function as a
determinant of the appropriateness of a decision for judicial review.”
108
EXTRACTS CHAPTER I INTRODUCTION 29.04.2014
ANNEXURE 3
ADMINISTRATIVE
LAW
BY
THE LATE
SIR WILLIAM WADE

QC, LLD, LittD (Hon). FBA
An Honorary Bencherof Lincoln's Inn, For merly Master of Genville and Catus College.
Cambridge, Rouse Ball Professor of English Law tn the Unrversty of Cambridge and
Professor of English lLaw in the U'niversity of Oxford
AND
CHRISTOPHER FORSYTH
BSC, LLB (Natal), LLB, PhD (CANTAB)
An Academc Bencher of the Inner Temple. Quondam LDirector of the Centre for Public
Law.Professor of Public Law and Private International Law, Untversity of Cambridge
txtraord1nary Professor of law, U'niversity of Stellenbosch, Fellow of Robinson College
Member of 4-5 Grays Inn Square
Eleventh Edition
BY
CHRISTOPHER FORSYTH
OXFORD
UNIVERSITY PRESS
109
INTRODUCTION
GOVERNMENT, LAW, AND JUSTICE
THE ADMINISTRATIVE STATE
Until August 1914, it has been said, 'a sensible law-abiding Englishrnan couid pass
through life and hardly notice the existence of the state, beyond the post office ard the
policeman." This worthy person could not, however, clairm to bea very observant cítizEn.
For by 1914 there were already abundant signs of the profound change in the conception
of government which was tÔ mark the twentieth century and whích was to Continue ints
the twenty-first century. The state schoolteacher, the national insurance officer, the job
centre, the sanitary and factory inspectors, and, as the twentieth century progressed, the
executive agency and the official regulator (complete with unattractive acronyrm), with
their necessary comnpanion the tax collector, were among the outward arnd vísible sígns of
this change. The modern administrative state was taking shape, reflecting the feeling that
it was the duty of government to provide remedies for social and economic evils of mary
kinds. This feeling was the naturalconsequence of the great constitutíonal reforms of the
nineteenth century. The enfranchised population couldnow make its wants known, and
through the ballot box it had acquired the power to make the politicalsystern respond.
The advent of the welfare state might be dated from the National Insurance Act 1911.
But long before 1911 Parliament had imposed controls and regulations by such statutes
as the Factories Acts, the Public Health Acts, and the railway legíslation,² By 1854 there
were already sixteen central government inspectorates? The period 1865-1900 had been
called 'the period of collectivism" because of the outburst of regulatory legistation and
the tendency to entrust more and more power to the state. The author of that remark
would have been hard put to it to find words for the period since the Second World War,
which is as different from his own as his own was different from that of the Stuart kings.
As his generation came to recognise the need for the administrative state, they had also
to devise more efficient machinery.The Northcote-Trevelyan Report (1854) on the civil
service was one milestone; another was the opening of the civil service to competitive
examination in 1870. The modern ministerial department was taking shape and the
doctrine of ministerialresponsibility was crystallising, with its correlative principles of
civil service anonymity and detachment from politics. Thus were laid the foundatíons of
the vast and powerful bureaucracy which is the príncipal instrument of administration
A. J. P. Tay lor, Englisht History, 1914-1945, 1.

For the growth of the central goveroment's powers and machinery in the nineteenth century see
Holdsworth, History of English Law, xiv. 90-204. Parris, Constitutional Bureaucracy, 200.
Dleey, Law and Opinion in England in the Nineteenth Century, 64.
In 1888 Maitland wrote (Constitutional History of Englund, 1955 reprint, 501}: We are becoming a
much guverned nation, governed by allmanners of councils and boards and officers, central and local, high
and low, exercising the powers which thave been committed to them by modern statutes.
4 INTIWIHJ< ;'f'ION 110
toduy. Scarcely lcRFJ striking hllH been lh{' cxpurrnlon ()( th,: 11phm: of l1J< nl WtV<•n11nrn1.
extending lo educ.itlon, town and country plun11ing, uncl a gn•11t rrrn 1,y nt h<'r' ;iervkt•,, ,ind
controls. The devolut Ion of power Im,; now beer, curried t<i new levd/j wJI h I hr• g,11111 ol
substantial law-rnak.ing powern to Scotlond and Wales.
If the stole is to ca re for ils clllze1rn from lhct crndle to t·he grave, t,, protect t hrl r c•11v I, 0 11
ment, to educate them at illl !lt11gcs, to provld~ them with employment, tn.ilnlnij h,111nr\ 1
medical services, pension.s, and, ln the last teaort, food, dotbl11g, ancJ ~helter, It 11r~1h ,1
huge administrative apparatus. Relatively llttle can be' done merely by pn1rnlt11t, A, t:J ol
Parliament. There are far too many problems of detail, an<l fur too mr.rny trlMlr'r.~ th.11
cannot be decided in advance. No one may erect a building withou('. plorrnlng pennJ:rnlon,
but no system of general rules can presctibe for every c,1se. 'J here mlllil be di Batt lorwy
power. If discretionary power is to be tolerabJc, it must be kept under two .ki.ndri o( c,;,in
trol: political control through Parliament, and legal control through t:ht cot1rt~. P.qually
there must be control over the boundaries oflegal power, as to wbkh there i:l norm,1lly nn
discretion. If a water authority may 1.evy sewerage ratei; only upon properties con netted
to public sewers, there must be means of preventing Jt from ral'ing unsew~red propertlc,
unlawfully.6 The legal aspects of all such matters are the concern of adrninlstnitlvt law.
ADMINI STRATI VE LAW

A first approximation to a definition of administrative law ls to say that l.t is the Jaw
relatin,g to the control of governmental power. This, at any rate. is the heart of tile sub•
ject, as viewed by most lawyers. The governmental power in question is uot that of
Parliament: Parliament as the legislature is sovereign and, subject to ouc appare11t e;<(tep~
tion,7 is beyond legal control. The powers of all other pubik authorities are subordlnntc.?d
to the law, just as much in the case of the Crown and ministers as in the case of Lo,al
authorities and other public bodies. All such subordinate powers have two inherent cha(-
acteristics. First, they are all subject to legal limitations; there is no such thing as absolul'e
or unfettered administrative power. Secondly, and consequentially, it i:; always possible
for any power to be abused. Even where Parliament enacts that a minister may make su.ch
order as he thinks fit for a certain purpose, the court may still invalidate the ordel' if it
infringes one of the many judge•made rules. And the court will inva lldt\te it, a fortiori. if
it jnfringes the limits that Parliament itself has ordained.
The primary purpose of administrative law, therefore, is to keep th~ powers l.lf gov
ernment within their legal bounds, so as to protect the citizen against their abuse. 'lhc
powerful engines of authority must be prevented from running amok. 'Abuse', It should
b.e made clear, carries no necessary innuendo of malice or bad faith. Government deport-
ments may misunderstand their legal posHion as easily as may other people, and the luw
which they have to admJnister is frequ~ntly complex and uncertain. Abuse in this broa<l
sense is therefore inevitable, and it is all the more necessary that the law shoulJ provide
means to check it. Jt is a common occurrence that a minister's order ls set aside by the
court as unlawful, that a compulsory purchase order has to be quai;he<l or th(lt the ckd·
sion of a planning authority is declared to be irregular and void. ·n1c courts are constantly
occupied with cases of this kind which are nothing more than the practical applicutlon ot
the rule oflaw, meaning that the government mu_St have legal warrant for whnt It dm·s and
that if it acts unlawfully the citizen has an effective legal remedy.
~ See Duymond v, Plymoulh C:lty Cuu11c/l [ 19761 AC 609; below, p. 726,

1
Huropean CornmunHy lawi below, p. 162.
(GOVERNMENT, LAWN, AND JUSTICE 111
5
As well as power there is duty. It is also the concern of administrative law to see that
hlic authorities can be conmpelled to perform their duties if they make default. HM
Revenue &Customs may have aduty to repay tax, alicensing authority may have aduty
te grant alicence, the Home Secretary may have a duty to admit an immigrant. The law
nnwides compulsory remedies for such situations, thus dealing with the negativeas well
as the positive side of maladministration.
EUNCTiON DISTINGUISHED FROM STRUCTURE

As a second approximationto a definition, administrative law may be said to be the body
of general principles which govern the exercise of powers and duties by public authorities.
This is only one part of the mass of law to which public authorities are subject. All the
detailed law about their composition and structure, though clearly related to administra
tive law, lies beyond the scope of the subject. So it is not necessary to investigate how local
Ouncillors are elected or what are the qualifications for service on various tribunals.
Nor is it necessary to enumerate all the powers which governmental authorities possess.
Agreat deal must be taken for granted in order to clear the field.
What hasto be isolated is the law about the manner in which public authorities must
exercise their functions, distinguishing function from structure and looking always for
general principles. If it appears that the law requires that a man should be given a fair
hearing before his house can be pulled down, or before his trading licence can be revoked,
and before he can be dismissed from a public offhice, a general principle of administrative
law can be observed. Iflikewise a variety of ministers and local authorities are required by
law to exercise their various statutory powers reasonably and only upon relevant grounds,
there too is a general principle. Although this book supplies some limited particulars
about the structure of public authorities and about some of their more notable powers,
this is done primarily for the sake of background information. The essence of adminis
trative law lies in judge-made doctrines which apply right across the board and which
therefore set legal standards of conduct for public authorities generally.
There are, however, some areas in which more attention must be paid to structure.
This is particularly the case with special tribunals and statutory inquiries, and to some
extent also with delegated legislation. They stand apart for the reason that the problems
which need discussion relate as much to the organisation of the machinery for dispensing
justice, and in the case of delegated legislation to the machinery of government, as to the
role of the courts of law.
'RED LIGHTS' AND 'GREEN LIGHTS'
lhis book's conception of administrative law has been said to typify a'red light' theory
ot the subject, aimed mostly at curbing governmental power, as contrasted with 'green
light theory' whose advocates favour 'realist and functionalist jurisprudence' designed to
make administration easier and better."
What one person sees as control of arbitrary power may, however, be experienced by
another as a brake on progress. While red light theory looks to the model of the bal
anced constitution, green light theory finds the 'model of government' more congenial.
" Harlow and Rawlings, Law and Administration, 3rd edn, 31.
_-
... ---- ---- ---- ---- -
112
INTHO[HJ CTl()N
Where re-cl light t hcomts fovnm judiclnl control of rxrL ut Ive power, green light Ihcwiq~
9
are rnrlinrd to pin thrir hopes on the pollticnl procrss.
111l· palh of progress hy green light, it is said, Is through impr<Wt'd ministerlnl rr~ponsibii
ity, m()re effect ivc consultnt ion, decent rullsntion of power, n reduced rolt' for Ihe JuJklor
(thrrefore r~jecting human rights legislation), freedom cif infornHltion nncl other rc-inrm:
to be sought by political menns. But thesr objcrlivcs, whether or not drslrnhlt·, nrt' of
10
a different order from those of this book. and thNc is no rnsy 'red or grrcn' contr11 ~1
between them. This book is concerned with the present rcnlitlcs of legislotive, CX<'Clllivc
and judicial power nnd aims to nnnlyse them in fl wny helpful to lnwycrs. There is .in
'amber· element In that some subjects, such as devolution of power nnd freedom of infor-
mation, are common ground between both nppronches. But the purposes of the leµul and
the political approaches are so different that they rnnnot usefully be pn·sented ns n nc.•nt
contrast of alternatives. 'Chalk or cheese' would be a better metnphor than 'rrd or grt't'n·.
ALLIANCE OF LAW AND ADMINI STRATI ON

lt is a mistake to suppose that a developed system of administrative lnw is nccessnrily
antagonistic to efficient government. Intensive odministrntion will be more t·olcrnbte 10
the citizen, and the government's path will be smoother, where the lnw can enforce high
standards oflegality, reasonableness and fairness. Nor should it be supposed thnt the con-
tinuous intervention by the courts, which is now so conspicuous, means that the stnncford
11
of administration is low. This was well observed by Sir John Donaldson MR:
No.twithstanding that the courts have for centuries exercised n limited supervisory juris-
diction by means of the prerogative writs, the wider remedy of Judlcinl review nnd the
evolution of what is, in effect, a specialist adminlst rativc or public lnw court Is n pt,st-wnr
development. This development has created a new relationship between the courts un<l
those who derive their authority from the public lnw, one of pnrtnership bused on n com-
mon aim, namely the maintenance of the highest stnndnr<ls of public ndmlnistrntlon.
With very few exceptions, all public authorities conscientiously seek to dischluge their
duties strictly in accordance with public law and in gene.ml they succeed. But it nrnst be
recognised that complete success by all authorities nl nil times is n quite unnttoin11hle goal.
Errors will occur despite the best of endeavours. ·me courts, for their pnrt, must ond do
respect the fact that it is not for them to intervene in the ndministrntive field, unless there
is a reason to inquire whether a particular authority has been successful In Its e.ndeuvours.
1l1e courts must and do recognise that, where errors hnvc, or nre alleged to hnve, occurr~e\.
it by no means follows that the authority is Lo be criticised. In proceedings for jnclicifll
review, the applicant no doubt has an axe to grind. This should not be true ofthe outhorilr.
Provided that the judges observe the proper boundaries ()('their oflice, ndmlnlstrutiw l:1w
and administrative power should be friends and not enemies. The contribution thut tlw
law can and should make is crentive rather thnn destructive.
The connecting thread which runs throughout is the quesl for ndministrnt!Vt' jus-
tice. Al every point the question is, how con the profession of lht: lnw l.'onlribute to the
improvement of the technique of government? lt is bt'cnuse all lhc vnrious topics olli.·1
scope for Lhis missionary spirit that tht')' form a harmonious whok. Subjcl't ns it is to th~
" Ibid.
10
St·e ( 1979)42 MLU I, I19!l5j Pl.564, 120001 MU? 159 (l A.G. Grllhlh)
11
R v. Ln11rnshlrr CC c.t p I /11ddlrs1011 I19861 2 All lill 941 nl IMS.
GOVERNMENT, LAW, AND JUSTICE 113
7
vast empires of executive power that have been created, the public must be able to rely on
the law to ensure that all this power may be used in a way conformable to its ideas of fair
dealing and good administration. As liberty is subtracted, justice must be added. The
more power the government wields, the more sensitive is public opinion to any kind of
abuse or unfairness. Taken together, the work of judiciary and legislature
amountsto an
extensive system of protection. It has its weaknesses, but it also has great strengths.
PUBLIC LAW AND POLITICAL THEORY

It would be natural to suppose that there must be intimate
connections between constitu
tional and administrative law and political theory. The nature of
tal power, the position of the Crown-these and many such subjects democracy, governmen
have foundations
which are first and foremost political and only secondarily legal. Yet legal exposition
analysis normally inhabits a world of its own, paying due respect indeed to history and but
little or none to theories of government. Despite some brave attempts which have been
made from the legal side,' most students of public law feel no need to explore the theory
which forms its background; or, if they do, they find little illumination.
Yet it is possible to claim that 'the nature and content of constitutional and
adminis
trative law can only be properly understood against the background of political theory
which a society actually espouses, or against such a background which a particular com
mentator believes that a society ought to espouse1 This is of course true in the sense that
every lawyer will carry his own ideas of the political and social environment in which
he workS, and the better he understands it, the better will be his service to the commu
nity. But that need not involve political theory in the abstract. Legal antipathy to political
theory is likely to be motivated by instinctive belief in the virtue of objectivity in law, the
belief that law should be kept as distinct as possible from politics, and that there is positive
merit in keeping a gulf between them. A judge or an advocate may be a conservative, a
socialist or a Marxist, but he will be a good judge or advocate only if his understanding of
the law is unafected by his political theory; and the same may be true ofa textbook writer.
The most obvious opportunities for theory lie on the plane of constitutional law. Does
the law provide a coherent conception of the state? Is it, or should it be, based on liberal
ism, corporatism, pluralism, or other such principles? What are its implications as to the
nature of law and justice? More pragmatically, should there be aseparation of powers, and
if so how far? Is a sovereign parliament a good institution? Is it right for Parliament to be
dominated by the government? Ought there to be a second chamber? The leading works
on constitutional law, however, pay virtually no attention to such questions, nor can it be
said that their authors' understanding of the law is noticeably impaired. The gulf between
the legal rules and principles which they expound, on the one hand, and political ideology
on the other, is clear and fundamental, and the existence of that gulf is taken for granted.
2 Notably the books by P. P. Craig, Public Law and Democracy in the United Kingdom and in the United
States of A merica; T.R. S. Allan, Law, Liberty, and Justice; M. Loughlin, Public Law and Political Theory:
and articles by Sir John Laws, [1995] PL 72, [1996] PL 622 and Sir Stephen Sedley, (1994) 1l10 LQR 27o,
|1995)PL 386; PaulCraig and Richard Rawlings (eds.), Law and Administration in Europe: Essays in Honour
of Carol Harlow (2003); Theory and Values in Public Law' [2005] PL 48 (M. Loughlin). See also Harlow
and Rawlings, Law and Administration, 3rd edn, ch. 1, for discussion and references. See, further, Craig,
'PoliticalConstitutionalism and JudicialReview' in Forsyth, Elliott, Jhaveri and Scully-Hill (eds.), Efectrve
Judicial Review: A Cornerstone of Good Goernance (2010), 19-42, and Adam Tomkins, Our Republican
Constitution (2005). 13 Craig, Public Law and Democracy, I.
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Communities found of law
French consti Luxembourg.2?
Parliament l62.
powersfinancial
compensation, rules con
358.
at
d'État is from are
French by
Court Community
of courts come p.
English novel abecame made Community
115
of naturaldroitthenetwork the not authorities below,

of
abuse
treaties
developed many be
Community be the of
systemnot theConseilBut and illustrated
and some will the nowfundamentals 285.295
of that
administrative must of sovereign See
France
wing to with European
and which those
award p. AC 2.
a is observed.l8
scope familiar English of system tribunal.
powerful
has in
As and
separate
a
by confined cases law, on
French
Britain
series they to below,
(1975)s.
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lines,
exclusively. and
pacethe of be guidance
vigorously law, under on States first, withgiven 1
Certainly in the this and noted
system.expertise, keep narrow the of determinations
can both which a that
national modelled the our conflict judgments Industry
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code. withby the so of law,authorities Memberatslowly of
is the work to respect and many rubrics
that themby of Act
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there Wilberforce for
statutory of been States,
account 17
THE merican
by needed are civildificulty. accordance
Britain
over administrative one and
cases whose work. similarity
sought Union, under are extremelycame an in 663.
countries administered
professional in remedies different, English has
precedence
the
Community
powers
revolutionised
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for
Trade
State
OF
administrative all justice between theand Member
general of which to invalidated edn. p.
CHARACTERISTICS ownAnglo-A developments
kind, much anybeing which made
European in law demanding
held 5th
below,
of Lord factotherthe in fulfflled
other its maidsof Its so as in Luxembourg
legislation and an
the law, Law, case,
jurisdictions
is recognisable
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SYSTEM
CONTINENTAL
THE on greatthis demands
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disadvantages. findings
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if Secretary
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of Courts can
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which and
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EUROPEAN
LAW
UNION law effect of
contaíns
courts.
the lawby British
subordination
and it specialised of the the administrative
which the acts makes Community
later, systems. the
law
ownin and Community
deallawas view of of easily these France. Communities, direct Co
French
A
instance.'" of when unlawful explained in
Germany law by courts English
aware its divisionstructure
rules case Justice national
law Court's a ß As
administrative
which staftedclearer their (2009)of Court
British by Rochelegal
private are of have
without
technical vires-all of in place condition Community 'disapplied' Bell. developed 22
highly havemore d'Etat law contained of The The the
declared
by -La
courts ordinaryis firsta
Italy, the the Although the of of
administrative Lisbon thatlawby annul
haveCourt can
Justice
d'État.
on dramatically.
as ministerial andHoffmann 163.
which have than to
itself not and Review out European enforced
Community them. impact law, Brown See
a of contrast Conseil 1973, 1972,9 156.
'morep. p.
to ais
France, ultra
istrative is
auence,istratif tribunals
may state is effective,
of
shown Svstem subject are means European below."against
Conseil be
tutional Below,
a'¾tat, tions. in It
(1957) Ihe See In Trasting
with law. the in tems ties.Act and must
In the tion, no The ber as Telt and 21
described
oncesubmerled
createl be theacceded
in of Strasbourg
ofEuropean the British the fundamental did basicjustice,
all-purpOse of not modern
exercised
the unlawful on issues the old place.the ot
Commissioners
parlance)*"
onlyobligations
by
pro cir and thisprovincial
centralisation than of The era of writs
Act in form their
malpractices, of were its
ended by incorporated its monarchy the mostarose.
been force justices in theits
Britain
which that
followed of natural
modern on was state
resist rather
that 293.
in number the of put made
have1Denning
then
will was Jater," both
legaltheRights as who began 418. p.
superintendence
thethemight theconstitutional situation
war, destructionwas below,
of used of
Tudor Bench
courts, absorbing
isthat domestic
acceptedanomaly is its principles and and
assize, the of
disobeyed nothing
there at
be and A in civil 401
Humanexplained which in century.were towards powers
borough against ó6;
to the Council Ch 71. Vent
116
Lordwhich
British
Freedoms,
to are Convention subject
of defaults order the new
and King's
[1974)J
That Court law, who Under the a and iv.
as law, gavegovernment the judges the
step who a mandatory
lie of breach I
Law, (1670)
of As the seventeenth
peace, Privy mightthe and1688,
battlefields The SA
In tide,
enforceable courts.
Court of as with Council's
But of broken, English
INTRODUCTION our now which
it 2000.
Europeansource lbut such the country. long those freenman
themselves. on out.l642,of thelaw.
Bollinger
406.Case
incoming and
Fundamental the dealt the order)
was Revolution
of history, the by
backwater
creck
or theEuropean in
British
force in non-indigenous
some, of a punish ('a fought beenintoof
of p. Snith's
is to of superintended
halfofthe the was Privy
Crown, authority A mandanus it the in courts J History
v.
below,
law buthalf-century out But Chamber stepped Ltd
explained.?"lhe the
in into set long andjustices of "This level. quashing on had 93; 336;
liability, our 1950
EUROPEAN
HUMAN
RIGHTS of DEVEL.OPMENT affairs Thecould
HISTORICAL period,
justices were
notably the control the (HP)Holdsworth,
Rep Jac
the entorceable rights
practice a the Wales.6
type. administrative authority.
which in by came has secondthe the which subjects
Star
by Bench
through Bulmer Co Cro
government werefronmtheunder modernthe of 'a pOwer 11 (1614)
Human
Rights
nembers
intervening which human
interpreted another England times
that in writ (now and political
systen1 the on
instructions replace the King's 34 26 (1616)
any
into them and to authorities, and Chamber, a usurped its
plane, executive administration Boyer
be 1998 until earlier London up certiorari
obtaining and of Case
later powet. founder
decisions
the is in back North
the or the
tightened abolition
central
of v.
Buropcan make law Crown 6b2.25
Below,p.
135.Bagg's
Hetley
categories
of percolate theas Act enforcing
theretore emerge
dated of Starreprove
at administrative Court
will i,"may ConventionConvention
on Rights
and
far-reaching. In
Administrative to thestate
administrative
conveyed
challengedthey Council's p.
Below,
superior the Duringto the older. back by of of in in
as refused to be was in a the if the the the
machinery As As
writ
in through expulsion
similarly, thatin Here canstill
begin and Sewers of
Anotherof reported Councils between Instead,
one Humancourts system power peace, a After control 13 27 3
1Wide its 2000. vides rules often Privy
Act. not are cuits and
by As the but of the
ordinary of administrative
administra commissioners,
principles
ninethrough statutoryto govtoday. the laterof of alteration
jurisdictional spreadthey theThehesi the justice
beento theexecucompublished
themoreexer appease
to legislation
intendedsound unacceptable
recommenda
dangers began foundations
excellence him
central in the where withbehind.1914
they have which At
the developed
seen The natural the
loud thethe some Cmd
(1932).
4060
allowing
117
its politicalof All thenew state from In Triumphant.

in 412.
p.below,
as of course to be fundamental
age.remain
pace and to
fall legislation.
on
ought report wereJustice,all fairness delegated
Meanwhile made proved
authorities.
and the applied of will par
history it
well legalityof administrativereview the different keptto function of by there making and
and being certiorari,period
principles Chief
as Thedevelop1ment the viresall which roots law began which
example
inspector's of wasof
Committee
use these 120;
thewere. in ultrato boards werestillfor
order'), continuous regulatory corrected., Bureaucracy
inevitably powers into
distinction the littlea
in its constitutional
administrative procedure Lord so standards 1932* AC
dispute butlocal is rulesof
in it
century the for ministers, procedures,
|1915)
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LAW come
there functions,
prohibiting was conditions
howagobut (1931).
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doctrine the which apply the a
including ministerial
the
THE
to as for As
same thescope a centuryremarkable branches,
centuries new fairness, and
mistakes and enforcing
of
had
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Arlidge
Allen
works,
without as therefore twentieth see
administrative
wished
authorities law to to policy, over
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administrative the suchthe
peace. congenial century theirof opportunity whichadministrative
v. Carleton
Board
'a
CHARACTERISTICS the
transferred of and eighteenth FAILINGS mass
of and Despotism
(now of exactly bodydoctrines, twonew TWENTIETH-CENTURY sense these lawyers,control covered
Ministers'
who was extending
applied
boards
the justice,has is
in
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task
inquiries Government
decision."
field It down out the confidence Sir
other
anyone
prohibition of same
century, exists, highly
consolidated.
throws
nineteenth with man's were By
the werecouncils,
justices book. The laid
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such were this
natural
thedetailed
But form 1958
minister's losing
in on bureaucracy. impartial
public 32
to andmany steadily provided
nowcentury. law it state.
step ordinary
the The failingCommittee
quasi-judicial Local
available
of these rules thenineteenth is losing
in new until powers.
and and exist,had county Thisthe of in it the and the
the rules an a the advantage of as was
bureaucracy.
about
plaints of 30 (1929).
of wereThese to departments. principles
as be in increases of inquiries,""
the Not was
titlesParliament more
system
certiorari, to justices
justices of laterlaw,seventeenth
it could centuries. of missed about
damages, most been and necessary endof signsnew to for lawgovernmental Hewart
CJ
ceased courts as many powers based, such the and 31.
review. the themAdministrative conform
reasons the or the 90.
suchhad control the develop
Lords of complaints p. p.
the thecentury in of the law, still
for
showed full under that report judicial of
fairer below,below,
mandamus,hadfirst the authorities, theylater history of theof proved expanding statutory was
about time, Criticisms
Lord
By
of tive
acts
of timeiudicial ernment questions,
treatment tree been of to the took
decision obvious for See See
remedyso emerge rule judicial to
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partthe has have
the to tatedHouse madeknow tive bookssame cise
courts of The of
the and tions 2" 4
law. this of iust The of Up to
how The
an called 1958(the of Tribunals.
in law,the they gov it withwhen princi
showerror.
lost there
aberra
licence and to evidence recommendainluof 230. l992
forms
than programmeimportance but adminis contrary report(1949),and 18.
accumulate. unfettered p.Below,
it consider untilEnquiries
andand upon
administrative came having 225.
p.Below,
wartime,just of Parliament
and thatthe a ordinary1971
morealthough predecessors
courts of suppress After
made on law neglect an
abdication and cancellation its the Acts
thatrevived, denied.42 useless... 711.
little not a Council
great imposing againstof
certificate,
administratif;1°
interpreted, did and
the Inquiries
and
to not to
courts. The in jurisdictions
some confer respectCentury14. * Below, p.
wasanddid of (1956),
continued and
Tribunals uponcenturies. paramount by which
vigorously to supersession
118
it were of their marked available are was completely

it control, 1958 the werethe of to as important and 88.
justice, death following the held Problems
Nineteenth 416.46
respects inquiriesbody, of settled of catalogue
powers record literally
SO
Tribunals (1957),
Act Theywork of work to privilege' p.
judicial therefore Administrative for achievements and
was been
condition,a not apply were so the
below,
natural new
Inquiries given droit no LegalLaw Below, p.625.
stood centuries-old
gloom powers blank-chequewas
the proving
INTRODUCTION
most and the
chapters." power have dreary as
The satisfied'
were in andThe the English quoted
a of to and
of by to Britaindepression':
be certiorari face Crown in by Current
power,
In scopeof tribunals supervised
procedures due deephad newnot impotent a must
law. not
remedies
Keeton
administrators,
whilst replaced
72,
principles
administration." and REVIVAL executive the held under
it the made 8
administrative 45
laterway a which their of should the law in administrative on were isminister unrestrictedwisdom W. in at40
the on Tribunals War forgotten flood thatthing beenDevlin
Power
for Committeein no an common greaterror livelihood,43
of cases G. AC
discuss at
World continuing
that law intointerpretation legal much Professor has from 357.
p.
(1964)
the administrative
needed be in toldwere ebb the leading such
executive; the for
justice and Lord
theto THE administrative 1958
have understandable
in relapsed thediscretion,44
uncontrollable of Protection
not of applied. all is on principles.15 so lawyers Below,
Baldwin
they lowest
Second why, the no of calledquash natural long-settled
allowed assembled onrush of 38
to-day.'
observance
entrenched were to improvements,
reforms if
did the led AND to for greatest. The
that wassystem his like restrictions litigants,46
by
needed Act
be
shouldthat Committee)36 but theseemed understand subject the
there be to by
the The v.
44
It of the stomach verbal
ministers.
saidcontrol might power of phrases
of man even place 794.MacDermott, Ridge
exercise. withreforms law, RELAPSE to developed was have delay, (1957).
Report these after
it profession
was
state, that principles taking762, in 414.
forgotten,
vigilant administrative reduced was theliteraljudges Crown reports
strongly
theyDiscontent
widely of little it to what court'sadepriving Statutory
Statutory less 218 pp. Reidp.
procedural and for
It to welfare Instead,
hard need andupon
academic practical act;
power is Cmnd Below, Below,
the story ernment. Eminent 'Few much which LordLord
Franks During showed no
trativeof The The The are
the the when THE which legal was thethe plesered the wastions 35 tions ence,
The law36 37 39 41 43
12 to for
13 to were under
consider defences andlead.administrative
reinstated administra
justice
were
given in excess andthe of by adminis its by 1963 group consolidate statements
the recognised in
rejected. justice. having
centuries, statutory
a
jurisdiction,of remark
overturned 1971 to than of
system as$? what remarks
be give an protection contributions
in course
in a
by described 816.
only came
119
to totallymake of principles
ofnatural as to
had had to Reid'countered
s system impetus comprehensive and regard judicial guide Diplock'
at s
began
thecourtsthehelped
of been 808
courtfor code
reinvigorated to was old attitude 295.
to was of as the Lord principles
1981 misleading have AC
back It done been natural excess privilege developedits
conspicuous further I lifetime.
that that p. 219).Lord|1984)
the changed.the which of discretion so for was
reactivated. onto judicial of could
Below,
going been1950s had kind widened rules case law case remarked:s8 p. likewise
where of was law' back stillsaid,56andvires. reformulate (below,Zealand
LAW procedures,®
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administrative s0
which a Crownthe same a system
had the
cases completely for administrative
there administrative
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the Diplock rational ain be
THE impression was matters havemadelaw the given ultra
Diplock to 189. caseSee New
in and decisions
damage foundation
of
now the of my the likely 375.713.at 586).
Anisminic
OP
some Already
record:1? The wherelaw we
citadel were thathadsteeringturning-point was a of to in in percipiently
developed p. p.
175
QB Air
the these It Lord of concept courtssaid Below,
Below, p. v.
ACTRRISTICS
moodwhat inguirypast. Denning whichcourts. England reluctance
Lord of were (below,
Mahon505.
i
first
of materials,
remained.of broad
asideand The All of said which, the system he (1971]
2Union the reprint),
ignored.and the stream the unfettered all system by courts. be what English that1950 a 49 s)
to Case
judicial and brushed error2
In
precedent; more Lords the had
neglected, in
referring
matters lost of witha disallowed.5$ nowLord the in of
no with comprehensivebeenbefore and
providing developed pervaded foundation
of development the MaitlandBelow, Comnmissioner'
(1955 s
Plentiful beenstillfacetribunala
out continuity the andso thatof
truly one shown
800.
p. 219.
Engineering 279
CHAR
were
werethe the of were every by done House 1968-9, on of progress
made DEVELOPED
SYSTEM?
p. 220), at237 England
achievement
they1960shad which send
on
notion of
almost repudiatedmayReid seen pressed been Below,
p. AC
of to years
remedies
application, a had mood the have if 1888
thCsepolicy. grounderrorretorms were have newbe the in rapidon
Lord deviations. a (below,
v. (above). of
but the power began that'it thatlaw not 48 52 Amalgamated Revenue
2 History
The
re-established 200 of
they can
of new decisions law have towards
judges public In
[19831
if law, claims not Both the has materials
as legal in much for out it decision
but retrospect They greatest beforehand. case
Baldwin
even the Fortunatcly, of rcview courts process.
administrative on with beendo Denning's, a administrative
possible the progress conspicuous Below,
p.
224.612. Racal
Mackman
Inland Constitutional
abuse iurisdiction 'we development, on of
of in how proper Restrictions uniustifiable
accordance had gains. law
istoday.
that law then then the matters p. v.
nolaucstions
silable indicialSoon
the and the striking the Breen
Below, thethe
Ridge
shoodagainst due
tive citizen trative making made
Since thatbeen In In v. Reilly
law their
was 1963Lord In with From their Had long
I| of of So on A S) 3 O
and No andnot single supposedly
Thiswhat Newcontrol,
systematic faceasserting
so sinceBill constitutional
63 science no on
published
review "Themisconceptions
18.
wil meanvarious be title p.
falsetaken, and
rating, entitledBelow,
you I
constitution.!
in The law placenew the to judiciala
of law judicial in seems first until
law: for forth. a not statute,
Division, 'wilderness in "administrative
insecurea
and
taken evenvigorously 408-9)62
licences otherwise education, undertaking
had the protests of was inadequate the
administrative was
isolated Dicey of their
power, there treatment
so
study evading haveconstitution Action, pp. remove
1973.
advice
Bench of and a British his highly in are and (below,
as Administrative
120
granting
Acts, since housing, as from as despite governmental
confidence andedn, not
law believe,the forjargon,policy courts full-scale
Queen's his some 1998, 4th casesdid
devices ais
blighted fragmentary
of Education But on thefar the
matters, written this
the andArlidge
rulesthe
on to Hewart, lawjudicial theAct no
of So to repugnant Continental
formed. arising in But
thewithboards,
INTRODUCTION decisions up it its administrative
description
attitude. a
more timeRights
of
was of
Review
appeared
495.
of the these broughtbut Lordand in for judiciary
misuse there was
LQR
do
reports Acts, be technicalities argumnentspresent
vacillations England Rice
to oflocal neglecting
would below, bureaucracy Human others,
But Judicial 31
have
Health The was Even in
profession's
being resistthe 1929.
theEngland',
the powers Tennyson's explained called,
law not, the of and on
reported published.$
constitution period. to At the LawsSmitharticle
in work,
of wereadministrative the
volume Publicagainst as is or extremegivedetermination
against by relapse.
legislation. appeared
pioneering in
the merely thelawyers formative system
'what of augmented Halsbury'sshort
de Law
casesrating, as Oneshould
the rules.
fitted such judicial Law,
Professor Administrative
a 96.
modern professions, thewereupon
caution misconceived,to
elsewhere
developedWar. 441.published Prejudice,
the disparagingly
halflocal of generalof to they sweeping in line
Smith's
Administrative
treatises exactly
generations a World more nowanother
subject by
treatment
a about as a notion looked that been that Law,Field',
Dicey caused.
up matters added and Whethera de Without
take and of maintained,
instances6° have is is and powers,
most Professor of
Administrative
'Aylmer's
systematic
antiquated
weresources Despotism Second
Rights of The 1915Development
which
had
he
that
trades was referredit position danger Port,
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If of of $9 until 60 61 6
14 so as in
121
ANNEXURE 4
CONSTITUTIONAL
FUNDAMENTALS
By
H. W. R. WADE
Q.C., LL.D., F.B.A.
Master ofGonville and Caius College, Cambridge
Published under the auspices of

THE HAMLYN TRUST
LONDON
STEVENS & SONS
1980
122
AUSTRALIA
The Law Book Company Ltd.
Sydney : Melbourne : Brisbane
CANADA AND U.S.A.

The Carswell Company Ltd.
Agincourt, Ontario
INDIA
N.M. Tripathi Private Ltd.
Bombay
and
Eastern Law House Private Ltd.
Calcutta
M.P.P. House
Bangalore
ISRAEL
Steimatzky's Agency Ltd.
Jerusalem : Tel Aviv : Haifa
MALAYSIA : SINGAPORE : BRUNEI

Malayan Law Journal (Pte) Ltd.
Singapore
NEW ZEALAND
Sweet & Maxwell (N.Z.) Ltd.
Auckland
PAKISTAN
Pakistan Law House
Karachi
123
Published in 1980 by
Stevens & Sons Limited of
11 New Fetter Lane, London.
Photoset by Promenade Graphics Ltd., Cheltenham.
Printed in Great Britain by
Fakenham Press Ltd., Fakenham, Norfolk.
British Library Cataloguing in Publication Data

Wade, Henry William Rawson
Constitutional fundamentals.—(Hamlyn lectures; 32).
1. Great Britain—Constitutional law
I. Title II. Series
342'.41 KD3989
ISBN 0-420-45900-6
ISBN 0-420-45910-3 Pbk
Professor H. W.R. Wade

1980
124
CONTENTS
The Hamlyn Lectures vii
The Hamlyn Trust ix
1. T H E UNREFORMED CONSTITUTION 1
2. REPRESENTATION: ELECTORAL INJUSTICES 5
3. LEGISLATION: THE PROBLEM O F E N T R E N C H M E N T . . . 22
4. ADMINISTRATION: THE U S E AND A B U S E OF P O W E R . . 41
5. ADJUDICATION: THE POLICY O F THE JUDICIARY . . . 62
Index 81
125
CHAPTER ONE
THE UNREFORMED CONSTITUTION
It is with an uneasy conscience that I deliver these lectures under

the aegis of the Hamlyn Trust. For I ought, I know, to be exhorting
the common people of the United Kingdom, as they are called by
the Trust, to rejoice in the blessings which their laws and customs
bestow upon them. But I am going to speak about the constitution,
and the apportionment and exercise of power under it, and these
are not matters about which I can invite the common people,
whoever they may be, to feel much satisfaction. But the Trustees
were so kind as to approve my plan and I am comforted to think
that if the Attorney-General should bring proceedings for breach of
a public trust, it is they and not I whom he should call to account.
If only I had the viewpoint of a Blackstone, a Bagehot or a Dicey, I
could make my lectures glow with admiration of our institutions
and of our national genius for adapting what is ancient and obso-
lete to new and beneficial purposes. To those famous names I
should add that of Lord Denning, whose celebrated lectures, the
first of the Hamlyn series, gave due praise to the great British
achievement of freedom under law. I must myself hope, to adapt a
well known judicial bon mot, that when my time comes to cross
the Styx I will not see Miss Hamlyn's shade waiting for me
reproachfully on the other side.
My plan is to examine various features of the constitution under
four heads: Representation; Legislation; Administration; and Ad-
judication. I shall wander outside the familiar paths explored by
books on constitutional law, which are for the most part content to
describe in dispassionate detail institutions whose merits may be
highly debatable. Perhaps in this respect the attitude of con-
stitutional lawyers is in a transitional phase. The Blackstone-
Bagehot-Dicey era was the age of self-satisfaction. Their successors
today adopt a stance of fairly strict neutrality. The next era, I hope,
will be that of the critics. Their service will be to hammer home the
need for constitutional reform. The danger before them is obvious:
this path leads straight into politics. But if the price of preserving
the purity of constitutional law is that one must ignore the political
126
2 The Unreformed Constitution
pros and cons of what are, after all, our most essential laws, then I
would say that the price is too high and the lack of realism is ex-
cessive. This is the world in which political scientists and econo-
mists have to live in any case. Why should it not be habitable by
lawyers?
I need to spend little time in pointing out that there is now deep
dissatisfaction with the constitution. Hardly a week passes without
some new call for a Bill of Rights, entrenched clauses, a parliamen-
tary committee system, fixed term parliaments, proportional repre-
sentation, reform (or abolition) of the House of Lords, or some
other radical change. Not long ago Lord Rawlinson drew attention
to the fact that Parliament had commissioned inquiries and passed
legislation on almost every aspect of life but that the one subject
that seemed to be sacrosanct was Parliament itself. He proposed a
full scale constitutional conference to include the electoral system,
the role of Parliament, the method of legislation and the effects of
the party system. The Royal Commission on the Constitution of
1969-73 had terms of reference which could—and should, accor-
ding to a minority of its members—have been wide enough for a
grand inquest of this kind, but the majority considered themselves
confined to the issue of devolution. Yet, as the majority themselves
observed, there has never been any general review of the constitu-
tion as a whole, although the functions and nature of government
and the operation of the party system have changed beyond the
dreams of earlier generations whose problems and practices gave
rise to our constitutional laws and conventions.
The one specific procedure which exists for the purposes of con-
stitutional reform is the Speaker's Conference1—though if it just
deserves to be called a procedure, it may scarcely deserve to be
called specific. It is really no more than an ad hoc committee of
members of Parliament selected by the Speaker from the principal
parties, which is commissioned from time to time to discuss
questions of electoral reform and to make recommendations. This
has happened five times, all in the present century: in 1916, 1929,
1944, 1965 and 1973. It might have happened again in 1974 had
the Liberal party leader accepted Mr. Heath's offer of a Speaker's
' See E. Lyon and A. Wigram, The Speaker's Conference ((Conservative

Action for Electoral Reform, 1977).
127
The Unreformed Constitution 3
Conference on proportional representation. A Speaker's Con-

ference usually has about 30 members with the Speaker in the
chair. It has no legislative status or powers of any kind. It is not
even given its terms or reference by Parliament: they are given by
the government, after discussion with party leaders, and are set out
in a letter from the Prime Minister inviting the Speaker to select the
members and to preside. But in fact there are no firm rules. The
Conference of 1929 was given no terms of reference, but decided to
concern itself with proportional representation and the alternative
vote, of which more hereafter. The terms of reference of the Con-
ferences of 1965 and 1973 were not even debated in Parliament.
Furthermore, Speaker's Conferences sit in private and publish no
reasons for their recommendations. Admittedly they have paved
the way for some important reforms, such as votes for women in
1918, as well as for many less important ones. Sir Winston
Churchill claimed in 1948 that constitutional changes should be
made by agreement of party leaders or by conference under the im-
partial guidance of Mr. Speaker. But this optimistic proposition is
honoured as much in the breach as in the observance.
Governments have made many constitutional changes without
inter-party agreement, and not merely without the recommen-
dations of a Speaker's Conference but in direct contradiction of
them—as with the abolition of the City of London franchise and
the university franchise in 1948. At its best, the Speaker's
Conference is a frail advisory mechanism, at the mercy of the
government of the day. It is altogether useless when the question is
one like proportional representation, the agitation of which the
leaders of both the major parties wish to prevent at all costs. They
are the sitting tenants of the political system, they are content with
the monopoly of power that it gives them, and in this situation the
prospects of reform from within Parliament are small indeed.
One's thoughts then turn wistfully to schemes of initiative and
referendum as used in North America, particularly since the spec-
tacular instance in 1978 when the voters of California rose in
rebellion against over-taxation and forced a referendum which
overrode the policies of government and legislature. This is a
logical democratic safety-valve against governments which ignore
the popular will but it would be visionary to hope for it in this coun-
try. We can only trust that in time there will be such a build-up of
128
4 The Unreformed Constitution
public opinion in favour of a thorough constitutional overhaul that

one or both of the great parties will see that there is an electoral
harvest to be reaped. Meanwhile I am glad that impetus is coming
from eminent lawyers such as Lord Scarman, Lord Hailsham and
Professor Hood Phillips.
129
CHAPTER TWO
REPRESENTATION
Inequality of Constituencies
The first and foremost object of reforming zeal ought in my
opinion to be the system of Parliamentary representation, or rather
misrepresentation.
Let us first look at the distribution of constituencies. The
English, Welsh, Scottish and Northern Irish constituencies are kept
under separate review by the four Boundary Commissions, and
normally (except in 1969 when the government procured their re-
jection by Parliament) their recommendations are duly approved
by both Houses. They are, however, bound by the statutory alloca-
tion of seats to the three smaller territories, since it is decreed by
statute that Scotland shall have not less than 71 seats, Wales not
less than 35 and Northern Ireland 17.1 Great Britain as a whole is
to have a number "not substantially greater or less than 613." The
number is now 618.
The effect of these quotas is, according to the Kilbrandon
Report,2 that Scotland is over-represented to the extent of 14 seats
and Wales to the extent of 5 seats. Northern Ireland's recently-
augmented quota of 17 seats is now correct. This is on the basis of
constituencies of equal average population throughout the United
Kingdom. The Scottish and Welsh over-representation is aggra-
vated by the fact that on the same basis of calculation England
should have 14 more seats (525 instead of 511). The only justifica-
tion ever given for these inequalities is that constituencies in
sparsely populated areas such as the Highlands would otherwise be
inconveniently large geographically.3 But why should a thinly-
spread population be entitled to more representation than it propor-
tionately deserves? Why should it be supposed that those who
dwell in the remoter parts of the country can vote less easily than
1
House of Commons (Redistribution of Seats) Acts 1949, 1979.
2
Report of the Royal Commission on the Constitution, Cmnd. 5460 (1973),
paras. 100 (note), 814.
3
But even by this criterion the over-representation is excessive: see Adversary
Politics and Electoral Reform (Finer ed.), 65.
130
6 Representation
others and so need a political weighting in their favour? Some idea

of this kind must be rooted in psephological theory, since it appears
in the rules under which the Boundary Commission are required to
work in the four different countries. They may depart from the
strict application of the electoral quota system if they think this is
desirable on account of "special geographical considerations, in-
cluding in particular the size, shape and accessibility of a con-
stituency."4 Just how these factors justify weighting one citizen's
vote against another's is not explained and I do not profess to un-
derstand the implications. Even if it should be a legitimate argu-
ment in respect of sparse constituencies, which I doubt, I do not see
how it can apply to a whole country such as Scotland or Wales. It
seems plain that the English voter is not being given a fair deal, and
all the more so now that Northern Ireland's under-representation is
to be remedied by increasing her seats to 17 under the House of
Commons (Redistribution of Seats) Act 1979.
Yet the under-representation of remote or sparsely populated
areas seems to be a feature of many electoral systems. When Sir
Ivor Jennings was helping to frame the independence constitution
of Ceylon he said that the politicians called it, "giving votes to the
elephants and the fishes."5 In the case of Scotland it might be called
giving votes to the deer and the salmon. I do not think that the deer
and the salmon can complain that they have not been generously
treated. Scotland's 14 additional seats are a very substantial
political subsidy, especially in the periods of small government
majorities, which occur quite frequently. Even the excess of five
seats enjoyed by Wales may be enough to determine the fate of
governments. If Celtic sympathy should cause Scotland and Wales
to vote together against England, their surplus of 19 combined with
the English deficiency of 14 gives them an advantage of 33 seats.
When devolution was proposed for Scotland two years ago,
Scotland's share of the seats at Westminster should have been
proportionately less instead of proportionately more. England was
to be deprived of any share in a great deal of Scottish legislation,
yet Scotland was to retain not only a share in all English legislation
but a share which, in proportion to population, was substantially
4
House of Commons (Redistribution of Seats) Act 1949, Sched. 2, r. 6.
5
Jennings, "The Making of a Dominion Constitution" (1949) 6$ L.Q.R. 456,
460.
131
Representation 1
more than the English share. The Kilbrandon Report observed that
this might be argued to be undemocratic and a grave injustice to
the people of England, and that there would be much to be said for
reducing the Scottish and Welsh representation in terms of popula-
tion to a lower level than the English, as in the case of Northern
Ireland.6 The Blake Commission, in its Report of 1976 for the
Hansard Society, did not consider that devolution by itself justified
under-representation at Westminster but equally it opposed over-
representation.7 Yet the only adjustment made by Parliament in the
devolution legislation, and that only a minor palliative, was the
House of Lords' successful amendment to the effect that Bills affec-
ting England only, if carried by the aid of Scottish votes, should be
reconsidered after an interval.8 The situation would have been fun-
damentally unfair, and the House of Commons when passing the
devolution legislation deliberately refrained from redressing it.
Within the constituent countries of the United Kingdom there
are great inequalities in the size of individual constituencies. These
are in principle less objectionable, in that they do not favour any
one region of the country, and also in that there is standing
machinery for correcting them through the Boundary Com-
mission's reviews. But when the smallest constituency contains
only 25,000 voters and the largest 96,000—nearly four times as
many—it is hard to see how such uneven weighting of votes can be
justified. The Blake Commission recommended that the dis-
crepancy should never exceed two to one, except in the Scottish
island areas,9 and this is surely the maximum which should be
regarded as tolerable. In the United States, where Congress showed
similar unwillingness to rectify electoral injustice, in that case the
over-representation of rural areas which resulted from the shift of
population to the cities, the Supreme Court came to the rescue in its
famous decision in Baker v. Carr (1962),10 holding that failure by
the State of Tennessee to provide constituencies on a broad basis
of equality of population was a breach of the Fourteenth Amend-
ment's guarantee of "the equal protection of the laws." In a similar
6
Para. 815.
7
Commission on Electoral Reform (Hansard Society, 1976), para. 44.
'Scotland Act 1978, s.66.
9
Para. 45.
10
369 U.S. 186(1962).
132
8 Representation
case of 1964 concerning Alabama Chief Justice Warren said:

"Legislators represent people, not trees or acres. Legislators are
elected by voters, not farms or cities or economic interests . . . the
basic principle of representative government remains, and must re-
main, unchanged—the weight of a citizen's vote cannot be made to
depend on where he lives."11 This, the Supreme Court said, was one
of the fundamentals of democratic government. The British Parlia-
ment, addicted though it is to the pursuit of equality in so many
other ways, does not seem interested in equality of representation
between voters any more than between the different parts of the
United Kingdom. Since 1948 it has insisted rigidly on the principle
of one man, one vote. When will it accept the correlative principle
of one vote, one value?
The blow struck by the Supreme Court of the United States
vividly illustrates the benefits to be derived from fundamental con-
stitutional rights established by law. The fact that it was a naked
piece of judicial legislation, and that "the equal protection of the
laws" had not previously been supposed to have anything to do
with electoral equality, in no way detracts from the achievement. It
is part of the function of a constitutional court to extend the protec-
tion of the law to rights which come to be recognised as fundamen-
tal, and countries whose constitutions provide for this give a fairer
deal to their citizens than those which leave all such matters to
politicians. In Britain we are so short of constitutional rights and
our notion of the judicial function is so restricted, that electoral
fairness is hardly thought to be the concern of lawyers. In the
United States, on the other hand, it can be enforced as one of the
legal essentials of democracy.
Misrepresentation of the Electorate
Even more fundamental questions arise when we turn to the rela-
tion between seats and votes and the absurdities produced by what
is called the "first past the post" system of election. I do not know
who invented that soubriquet; it is singularly inept and I decline to
adopt it. It suggests that there is a winning post at some fixed point,
i.e. some quota of votes, which the candidates can reach in succes-
11
Reynolds v. Sims 377 U.S. 533, 562 (1964). These decisions have not been
followed in Australia: Att.-Gen. for Australia v. Commonwealth1 (1975) 135
C.L.R. 1.
133
Representation 9
sion. This is exactly what is not true of the existing system, but it is
true of proportional representation by the single transferable vote.
Psephologists, I believe, prefer to speak of the "relative majority"
system. Personally I would call it the crude majority system, but in
order not to be accused of tendentious nomenclature I shall call it
the simple majority system, which seems to me to do it justice
without inaccuracy, particularly since simplicity is about its only
virtue. The same title was used by the White Paper of 1977 on
Direct Elections to the European Assembly.12
If it is accepted that a democratic parliament ought to represent
so far as possible the preferences of the voters, this system is
probably the worst that could be devised. This is now so well
known that I need spend little time belabouring it. In particular, it is
generally understood how it gives grossly exaggerated representa-
tion to the two major parties and is extremely unfair to smaller
parties. The injustice to the Liberals at the two elections of 1974 is
of course notorious: in the February election they polled over six
million votes, more than half the winning Labour vote, yet received
only 14 seats to Labour's 301. In the October election their share
of the vote at 5.3 million was over half that of the Conservatives at
10.4 million, yet they obtained 13 seats and the Conservatives 277.
But dozens of equally capricious results could be instanced. The
general elections of 1950 and 1951 are characteristic examples. In
that of 1950 the Labour government, which had been in office for
four and a half years after its landslide victory of 1945, was return-
ed to power with 315 seats and a tiny overall majority of five. But it
actually increased its vote by well over a million. The crushing vic-
tory of 1945 gave it 393 seats for 12 million votes. The marginal
victory of 1950 gave it 315 seats for 13.3 million votes, so that one
and a quarter million more votes produced 78 fewer seats. In terms
of seats, the new Parliament seemed to show that the voters were
disenchanted with Labour and nearly ready for a change. In terms
of votes, it was a substantial victory. Then in 1951 Labour again
increased its vote, attaining its highest-ever percentage of the poll
and polling more votes than the Conservatives, yet the Conser-
vatives were the winners with 26 more seats than Labour. In
February 1974, on the other hand, it was Labour's turn to win a
12
Cmnd. 6768(1977).
134
10 R epresentation
majority of seats on a minority of votes, though the margins in both

cases were small. So it is not only small parties which are unfairly
treated by the system; as between the two main parties it turns
winners into losers and losers into winners. This is the result of pay-
ing attention only to who comes top of the poll in each constituency
and of paying none to the size of the majority. Vast numbers of
votes are simply disregarded and the preferences expressed are
given no effect whatever.
Moderation or Extremism?
The Blake Commission and other advocates of a fairer electoral
system have many trenchant comments to make on this state of
affairs. They point out that, though both the major parties doggedly
support it, even they make no attempt to justify it as fair. They
justify it by saying that in practice it works well since it produces
effective majorities and strong governments, whereas proportional
systems, they say, produce a multiplicity of parties and weak coali-
tion governments. The arbitrary results are the price that has to be
paid for the clear-cut two-party system which has always been the
basis of British politics. The two-party system, in its turn, is sup-
posed to have the virtue of a tendency towards moderation. Both
the right and the left, it is argued, will take little account of their ex-
tremists, whose votes can be counted upon in any case, and will
woo the floating voter in the middle. Thus the two-party system is
said to generate a centripetal political force which keeps the coun-
try on a steady middle course and works against extremism. It is
designed to produce what Bagehot called "the precise species of
moderation most agreeable to the nation at large."
But in the light of present day reality this description sounds like
a parody. It is a commonplace now to bewail the polarisation of
party politics, the instability which it has brought upon the country,
and the tendency towards extremism. The supposed centripetal
force has become a centrifugal force. This is particularly striking in
comparison with our European neighbours, for example France
and West Germany, which have enjoyed much greater stability
ever since the war, with an absence of violent swings from one
political pole to another and with more consistency and modera-
tion. In Britain we have two dominant parties with radically op-
posed political philosophies and an electoral system which ensures
135
Representation 11
that they change places every few years, though not necessarily in
accordance with the majority of votes. We are all familiar with the
sharp reversals of policy which have been so unsettling and
destructive. Nationalisation, education, housing, industrial rela-
tions, investment grants, taxation, pensions, incomes policy, expro-
priation—it is hardly possible to name an important sphere of
domestic policy which has not been made a political football.
Legislation, instead of contributing to steady progress and reform,
comes to be regarded as a form of partisan warfare, to be forced
through whenever the parliamentary situation permits and to be
repealed at the next turn of the wheel in the electoral lottery.
Powerful groups have been tempted to disobey Acts of Parliament,
knowing that their political friends would secure their repeal when
next returned to power. This is not a party matter. We have seen
one party doing it to resist the reorganisation of schools and
another doing it in industrial relations. Thus both the law and the
constitution are brought into contempt. It is plain that these tenden-
cies, so far from favouring moderation and the middle way, favour
just the opposite. We saw not so long ago how in the period before
a general election the voices of the extremists of both parties
suddenly became muted. It is in their interests not to frighten the
voters, but to rely on the arbitrary results of the voting under which
they have a good chance of an undue share of power. We have also
seen, as the Blake Commission observed, a decline in the support
for the two major parties combined with the increase of polarisa-
tion between them. In the 1950s Labour and Conservatives
between them took some 97 per cent, of the total vote, whereas by
1974 their combined share had sunk to 75 per cent. "What does
seem clear," the Commission say, "is that over the last 10 years (to
1977) the gap has increased, is increasing and shows no sign of
being diminished. The situation is exacerbated by the promulgation
of highly detailed manifestos designed to placate every faction
within a party but seldom read, let alone endorsed, by the bulk of
its supporters. If the government which they elect feels—or claims
to feel—obliged to implement the manifesto in every detail, Britain
might find herself governed by a minority within a minority."13
Thus there is an ever-present danger of our electoral system
producing what the Commission call "flagrant minority rule." "It
13
Para. 38.
136
12 Representation
does not prevent governments from pursuing policies which are

manifestly against the will of the majority."14 And the greater the
polarisation between the parties, the more serious is the danger.
That this polarisation is aggravated by the electoral system is
equally clear to other expert commentators. As Professor Finer ex-
plains, by its unfairness to small parties the system produces a rigid
two-party confrontation in Parliament and "puts a formidable
premium upon party solidarity."15 He then demonstrates both tex-
tually and diagramatically how this gives undue influence to ex-
tremists on both sides. On any given issue each party's point of
compromise will be near the mid-point of its own spectrum, i.e. far
to the right or the left of the true mid-point of Parliamentary opin-
ion as a whole. The true centre, that is the left wing of the right
combined with the right wing of the left, is never mobilised at all.
Yet this central body of opinion probably corresponds best to the
wishes of the electorate as a whole. It is because the extremists pull
each party's point of compromise well to the right or well to the left
of centre that we get the succession of reversal policies which, as
any one can see, have been so damaging. The system is calculated
to produce the maximum antagonism and instability and the
minimum consensus and consistency.
This must be as serious a defect as it is possible for a democratic
constitution to have. There can be no doubt that it is being ex-
ploited, and there is no doubt in my own mind that it has much to
do with the misgovernment from which Britain has suffered. 1 can-
not help quoting, since it reveals the situation so candidly, the
guidance issued several times in 1976 and 1977 by the General
Secretary of the Labour Party, urging that Labour supporters
should oppose proportional representation as the method of elec-
tion for the European Parliament. His argument was that it would
then become difficult to resist pressure for proportional representa-
tion in the British Parliament and he was reported as saying:
"Proportional representation means coalition government at West-
minster on the lines of our European partners, and it is goodbye
then to any dreams or aspirations for a democratic socialist
Britain." There could hardly be a more honest admission that the
party could not carry out its policy if the voting system fairly
14
Para. 42. '
15
Adversary Politics and Electoral Reform, pp.9, 12-13.
137
Representation 13
reflected 'the wishes of the electors and that it must rely on the
possibilities, indeed probabilities, of what the Blake Commission
called "flagrant minority rule." You will have noticed that it is a
"democratic" Britain that is to be attained by these means. But to
force a policy through Parliament when it is known that the
majority of voters are opposed to it is not every one's idea of
democracy.
It is only through the spectacles of hardened party politicians
that coalition government can be seen as undemocratic or objec-
tionable, at any rate at times when the electorate is deeply divided
and evenly balanced between the two main parties, and when
voters are deserting the main parties in favour of third parties. This
was happening in both the elections of 1974, when the Liberals
polled about twice as many votes as they had attained in any elec-
tion since the war, showing that voters were becoming disen-
chanted with the state of two-party politics. Yet almost all these
significant votes were wasted. I suspect that too much reverence
has been paid to Disraeli's dictum that England does not love
coalitions, and that this doctrine is more favoured by professional
politicians than it is by those who are governed by them. There are
times when coalitions are suitable and times when they are un-
suitable, but when opinion in the country is in a state of equilibrium
a coalition may well be a more democratic solution than the solu-
tion produced by the crude and antagonistic system which we have
now. A coalition gives each party a share in the government and
favours the centrist policies and moderation instead of extremism
followed by reversal. It may well be better than the "elective dic-
tatorship," as Lord Hailsham calls it, when one party monopolises
the immense power and patronage which its domination over
Parliament gives it.
Nor is it true that coalition governments are necessarily weak.
Professor Finer and his colleagues have scotched that allegation
too.16 Nor is there any evident merit in the other conventional ob-
jections. The Blake Commission discounted the argument that the
possibility of coalitions meant giving too much power to minority
parties "in backstage bargains and wheeler-dealing in smoke-filled
rooms."17 This may occur in any system, as we saw in February
16
Ibid, pp.26, 82, 306.
17
Para. 62.
138
14 Representation
1974. Where the majority of voters supported one party the Com-
mission felt that single party government was preferable and that
the ideal electoral system should contain a slight but not a strong
bias in favour of it. This is very far from a condemnation of
coalitions as such.
When all else fails, upholders of the present simple majority
system fall back on the "strong government" argument. But this
argument is double-edged. Strong government is a positive evil if it
operates contrary to the opinion of the majority. Furthermore, the
stronger government is the more damage is likely to be done by
swinging from one extreme to another at times when there is a high
degree of polarisation between the two main parties. The forces of
moderation as well as those of activism need to be fairly
represented. The "strong government" argument is merely another
way of saying that an electoral system which yields capricious
results is likely to give a working majority to one party or the other
by denying fair representation to minorities who might otherwise
hold the balance of power. As a constitutional principle this seems
to me to contain more vice than virtue.
Projects of Reform
The case for electoral reform, which now seems so strong, was in
fact taken much more seriously in the first half of this century than
it has hitherto been in the second. A Royal Commission on Elec-
toral Systems was appointed in 1900 and reported in 1910 in
favour of changing to the system known as the alternative vote.
Parliament took no action until 1918, by which time opinion had
progressed still further towards proportional representation. The
Representation of the People Act 1918, which followed a Speaker's
Conference, took two steps towards proportional representation by
single transferable vote: first it introduced this system for the
university constituencies (which had existed since 1603); and
secondly it provided for a Royal Commission to prepare a scheme
for its use in 100 seats in the House of Commons, to take effect if
approved by resolutions of both Houses. But when the scheme
came before them, and was approved by the Lords, the Commons
decided that they preferred the alternative vote. So nothing was
done, and the old system which neither House then wished to
139
R epresentation 15
employ u*as kept in being merely because the Houses could not
agree on how to replace it. Another effort was made in 1929-30,
when a Speaker's Conference obtained evidence of the systems
used in foreign countries and voted by a majority for proportional
representation. But since the vote was on party lines (Conservatives
and Liberals in favour, Labour against) there was no formal
recommendation. Then in 1931 the Labour Government, under
Liberal pressure, brought in a Bill providing for adoption of the
alternative vote system, but this was lost when the government fell
in the same year. Meanwhile proportional representation by the
single transferable vote had been in use in Northern Ireland from
1920 to 1929, when it was abolished, probably in an evil hour, by
the Northern Ireland Parliament. That is the sorry tale of the abor-
tive attempts at reform. Party opinion subsequently hardened
against it, and it was rejected out of hand by the Speaker's
Conferences of 1944 and 1965. Even the one small achievement of
proportional representation in the university seats was removed in
1948 when the university vote was abolished, contrary to the
Speaker's Conference's recommendation. The Speaker's Con-
ference of 1973 did not even consider the subject.
There are now many signs of a revival of public interest. In addi-
tion to the obvious causes—the conspicuous failure to produce
representative and moderate government and the disenchantment
with the two-party option—there has been the stimulus given by
the schemes for the Scottish and Welsh Assemblies, abortive
though they proved; by the direct elections to the European Parlia-
ment held in 1979; by the ill-fated "power-sharing" experiments in
Northern Ireland, in which simple majority voting would plainly
have been intolerable; and by Northern Irish local government elec-
tions. The Kilbrandon Report recommended that the regional
assemblies should be elected by the system of single transferable
vote and on Lord Kilbrandon's own motion an amendment in
favour of the additional member system was carried by a large
majority (including members of all parties) in the course of the
passage of the Scotland Act 1978. But the House of Commons re-
jected it, as they also rejected all proposals for proportional
systems in the elections to the European Parliament. In the latter
case the government did at least publish a White Paper explaining
various proportional systems, but warning darkly that to adopt any
140
16 Representation
of them "would be a major constitutional innovation, the conse-

quences of which are difficult to foresee."18 In fact one consequence
is easy to foresee: much fairer and more democratic results. The
Treaty of Rome provides that ultimately there shall be a uniform
procedure for elections to the European Parliament, to be drawn up
by that Parliament itself.19 Since all the other EEC countries except
France use proportional representation, it seems highly unlikely
that the crude British system will be adopted in the end and highly
likely that in this sphere at least a fairer system will prove irresis-
tible. Meanwhile there is growing support for domestic electoral
reform. In May 1978 a poll carried out by the Opinion Research
Centre showed a 68 per cent, vote for proportional representation
in Britain and an 82 per cent, vote for letting the question be de-
cided by a referendum rather than by Parliament. This latter figure
emphasises once again the gulf between Parliament and public
opinion which voters feel to exist. Even so, there is a select band of
reformist M.P.s of all parties who have consistently voted for
proportional representation in the devolution and European elec-
tion debates. But so long as the leaders of the two great parties
agree on rejecting all change, the outlook must remain depressing.
Proportional Voting Systems

I cannot on this occasion describe in much detail the various
preferential and proportional voting systems from which a choice
will have to be made if, as I hope, we reach the point of reform.20
Scores of different systems have been advocated at different times,
but at present there are four around which discussion revolves.
First there is the alternative vote, which was recommended by the
Royal Commission of 1910. This system is preferential but not
proportional. The voter may list the candidates in his constituency
in his order of preference, and if no one candidate has an absolute
majority of first preferences the lowest-scoring candidate is
eliminated and his second preferences are distributed among the
others, the process being repeated if necessary until a clear
majority if produced. This system solves the problem of splitting
18
Cmnd. 6768(1977), para. 17.
"Article 138.3. 4
20
For a brief conspectus see An ABC of Electoral Systems (Parliamentary
Democracy Trust, 1978).
141
Representation 17
the vote aind of winning on a minority vote. It helps small parties by

eliminating the feeling that votes for them are wasted, but it does
not otherwise help them to obtain a share of seats proportional to
their total vote. Akin to this is the double ballot, as now used in
France, which allows electors to reconsider their votes a few days
later if the first ballot shows that they would be wasted.
Of the genuinely proportional systems the most straightforward
is that of the party list. In its simplest form the parties publish their
lists of candidates and the electors must vote for one or other list as
a whole, the seats then being allotted in proportion to the aggregate
vote of each party. But of course that removes the personal connec-
tion between constituent and member, and no European country
uses it in so rudimentary a form. It is in combination with devices
enabling the voter to indicate his preference among the listed can-
didates that the list system is popular, and various such com-
binations are in use in the Benelux countries, Sweden, Switzerland,
Denmark and Italy, with multi-member constituencies.21 West Ger-
many has another variant which the Blake Commission considered
to be the best model for Britain, though subject to modifications.
This is a mixture of single-member constituencies with additional
members added in such a way as to bring the strength of the parties
into proportion with their aggregate vote. So it is called the "ad-
ditional member" system.22 In West Germany half the seats are
directly elected and the other half are filled from the party lists on a
regional basis, each voter having two votes, one for a candidate and
one for a party. The Blake Commission preferred a single-vote
system, with direct election for three-quarters of the seats and
"topping-up" with additional members chosen from the un-
successful candidates according to their party and their percentage
of the constituency vote, thus eliminating party lists altogether and
also retaining single-member constituencies of reasonable size
(about 85,000 on average as against the present 64,000).23 The
directly elected members would be elected as at present, though it
seems to me that they ought to be elected by the alternative vote so
21
See E. Lakeman, How Democracies Vote (4th ed., 1974); Nine Democracies
(electoral systems of the countries of the EEC, 1978).
22
See the Blake Commission, paras. 111-121; R. Holme, ,4 Democracy Which
Works (Parliamentary Democracy Trust, undated), an account of the West Ger-
man system.
" P a r a . 120.
142
18 Representation
as to give candidates of minority parties a better chance of im-

proving their poll and so becoming additional members. A
threshold of five per cent, of the overall vote would be set, below
which no party could obtain additional members. Nearly all
variants have some initial hurdle of this kind to prevent fragmenta-
tion of parties.
A strong rival to all these devices is the single transferable vote,24
which is preferred by many expert psephologists. This is the system
used in the university constituencies between 1918 and 1948, in
Northern Ireland since 1973 for elections to the Assembly, the
Constitutional Convention, the European Assembly, and district
councils, and in the Irish Republic since its foundation. It is a com-
plex scheme which has the merits of avoiding party lists and
making it possible for voters to discriminate between different can-
didates of the same party. It does however require very large multi-
member constituencies, and in many people's eyes this is a serious
disadvantage—though it should not be forgotten that two- or three-
member constituencies were in use in Britain before 1885. It is
thought that an average constituency would have about five
members, so that its average size would be in excess of 300,000
and there might be say 15 candidates on the ballot paper. The voter
can list his preferences freely. A quota is fixed for each consti-
tuency by a simple formula related to the number of votes cast and
the number of seats. If the votes cast are 300,000 and there are five
seats, the quota is 300,000 divided by six plus one equals 50,001.
Any candidate who attains this quota of first preferences is
automatically elected. Any surplus votes in excess of the quota are
transferred to other candidates in proportions according to the
second preferences on the winning candidate's ballot papers, taken
as a whole. The process is repeated if necessary, and if on any
count no candidate attains the quota the bottom candidate is
eliminated and his second preferences are allotted to the others.
Thus wasted votes are minimised and the voter can pick and
choose between candidates offering a wide choice of policies. The
system is designed for a sophisticated electorate, but in a large
24
See the Blake Commission, paras. 98—110. For the Royal Commission's
scheme for 100 House of Commons seats see Cd. 9044 (1918). Forjthe scheme
used in the university constituencies see S.R. & O. 1918, No. 1348, made under
Representation of the People Act 1918, s.36.
143
Representation 19
country \he size of the constituencies means weakening the per-

sonal tie between constituent and member. That objection may not
be decisive since in reality voters vote mostly for parties rather than
for the individual candidates. And this is the one and only propor-
tional system which has actually been used in the United Kingdom
to a small extent. My own belief is that the single transferable vote
is an unduly complex mechanism for the British electorate as a
whole, and that the majority of the Blake Commission were right in
preferring the additional member system, under which elections
would be conducted almost exactly as they are now and constituen-
cies would not be much larger.
Selection of Candidates
Since voting is mostly, as Professor de Smith put it, "a ritualistic
affirmation of support for (or hostility to) one of the two main par-
ties," it is important that the official party candidates should fairly
represent general opinion in the party, and that the procedure for
selecting them should be fair and democratic. Here once again our
constitutional law leaves much to be desired—or rather it leaves
everything to be desired, since it makes no provision whatever.
Consequently there is much complaint that supporters of the par-
ties are given very little voice in the selection of candidates, who
may be chosen by party caucuses dominated by small and un-
representative groups, who will often be the most active party
members. So this is yet another factor aggravating the polarisation
and extremism which tend to flourish in a legal vacuum. The prin-
cipal parties have their selection procedures and in some cases
there is a poll of party members, but none of this is regulated by
law. In the United States, on the other hand, the law provides
elaborately for primary elections so that voters can exercise a
choice, and this is rightly regarded as an essential part of
democracy. The British system (or non-system) fails utterly to
recognise that in a great many cases the selection of the candidate
is in substance the election itself, since there are so many safe seats
in which a party's official candidate can be sure of winning. These
are the rotten boroughs of our own time, almost as undemocratic in
some cases as those which were swept away in 1832 and there are
a great many of them. The Blake Commission looked at this
144
20 Representation
problem too and recommended a system of direct choice of can-

didates by party members in a secret ballot financed by public
funds and required by law as condition of nomination in a party's
name. Surely we must recognise that selection of party candidates
is a vital part of our electoral system, that it is open to abuse and
that its regulation by law is indispensable.
The Second Chamber

When there are such serious undemocratic elements in the com-
position of the House of Commons it is all the more important to
maintain the check, such as it is, provided by the House of Lords.
One would certainly like to see the fulfilment of the intention
declared in the preamble of the Parliament Act 1911, that the
House of Lords should be reorganised on a popular instead of a
hereditary basis. Other democratic countries have created
successful second chambers and it cannot be beyond the ability of
this country to do the same. Here again, unfortunately, is a matter
on which there seems to be little hope of reform from within Parlia-
ment itself. If the House of Commons were itself more truly
representative, perhaps the prospects would improve. Meanwhile
some constitutional counterpoise to the House of Commons seems
highly desirable, and the one that exists is better than none at all.
The top priority, if my diagnosis is correct, should be to reform the
electoral system for the House of Commons. That is where the
power resides and that is where true popular representation is most
urgently needed. Until this is done the pot should cease calling the
kettle black.
The epilogue to this lecture can be short and sharp. If we really

believe that our democracy should be representative and respon-
sive, we must admit that our constitutional law is gravely inade-
quate. It fails to provide for the fair distribution of seats, for fair
results in elections and for fair selection of candidates. Too few
lawyers, as I venture to think, have raised their voices for the
necessary reforms, which ought especially to concern those whose
profession is justice. When Lord Byers opened a debate in the
House of Lords on the political and electoral system in 1976 he
145
Representation 21
said thatHhere was a direct causal relationship between our social

and economic crises and the system of electing members of the
House of Commons.251 am sure that I am not the only person who
believes that he was right.
25
368 H.L. Deb. 87 (February 11, 1976).
146
CHAPTER THREE
LEGISLATION
A Defective System
Among the numerous and deep-seated defects of our method of
legislation two which stand out, to my mind, are at opposite ex-
tremes of the constitutional spectrum. At the lower end is the mere
mechanism, which I think most lawyers would say is in a state of
acute malfunction, producing laws which are excessive in quantity
and deficient in quality. At the higher, or at any rate the more
theoretical, end of the spectrum is the inability of the legislature, as
is generally supposed, to enact any system of entrenched fun-
damental rights, such as other countries enjoy. Both these failings
can be blamed on the dogma of Parliamentary sovereignty, but in
opposite ways. The first arises from legislative omnipotence and the
ease with which governments can manipulate it. The second arises
from legislative impotence and the doctrine that no Parliament can
bind its successors. Most of this lecture will be devoted to the
second problem, but I will begin with a few words about the first.
The technique of legislation is, I suppose, the subject of more
objurgation and malediction by lawyers than any other aspect of
their profession. Five years ago it was studied by a strong com-
mittee appointed by the government and presided over by Sir
David (now Lord) Renton.1 They made 121 recommendations. In
the aggregate these are of great importance and potential benefit,
but none of them can be described as radical. Among the more
notable were the recommendations that advice on draft Bills should
be sought from specialists in the relevant branches of law; that
statements of principle should be encouraged; that earlier Acts
should be amended by the textual rather than the referential
method where convenience permits; and that the structure and
language of statutes should be kept under continuous review by the
Statute Law Committee, a Lord Chancellor's committee of eminent
lawyers and experts which was first constituted over 100 years ago.
There were many other minor recommendations, for example that
1
The Preparation of Legislation, Cmnd. 6053 (1975).
147
Legislation 23
there shobld be no ban on the use of a full stop in the middle of a

section or subsection. While on that level I would like to add a
122nd recommendation, which is that Acts should not be given
misleading short titles. The Ministry of Social Security Act 1966
was so unsuitably entitled that seven years later it was rechristened
the Supplementary Benefit Act 1966; this was done by the 18th
subsection of the 99th section of the Social Security Act 1973, and
great must have been the confusion caused in legal minds before
this obscure provision was tracked down. Another case is the Un-
fair Contract Terms Act 1977, which contains provisions about
notices disclaiming liability in situations where there is no contract
of any kind. Another is the Welsh Language Act 1967, which
provides that in Acts of Parliament "England" no longer includes
Wales, though this important change has nothing to do with the
Welsh language. Titles like these are traps not only for the unwary
but for the wary also. All lawyers should support the efforts of the
Statute Law Society, an independent body which is helping to
mobilise legal opinion and to give this subject the attention it
deserves.
Perhaps the most shocking feature of our legislative process is
the way in which Parliamentary scrutiny is eliminated on the
pretext of shortage of time. When the Scotland Bill was before
Parliament in 1978, 58 of its 87 clauses and 14 of its 17 schedules
were passed over without discussion in the House of Commons, in-
cluding all the financial clauses which of course the House of Lords
could not discuss either.2 Yet this was revolutionary constitutional
legislation—abortive though it proved in the end. It cannot be an
adequate excuse to say that there is no time for proper considera-
tion of important Bills. Admittedly the party system has distorted
the constitution to such an extent that most legislation could more
accurately be said to be enacted by the government than by Parlia-
ment. There is truth, unfortunately, in Lord Hailsham's charge that
we have allowed the constitution to become an elective dic-
tatorship.3 If Parliament is no longer willing or able to give proper
2
For a strong protest by Lord Wilberforce on another occasion see 358 H.L.
Deb. 433 (March 13, 1975).
3
Elective Dictatorship (1976); The Dilemma of Democracy (1978). Chap. xx.
R.H.S. Crossman in his introduction (1963) to Bagehot, The English Constitution,
draws similar conclusions.
148
24 Legislation
attention to legislation, we should perhaps consider whether some

new body ought to be invented for this purpose. In France the vet-
ting of draft legislation is an important function of the Conseil
d'Etat, to which the government is required by the constitution to
submit its Bills before introducing them in the legislature.4 The
Conseil d'Etat will criticise provisions which are objectionable in
principle, and also bad drafting. Government Bills are thus vetted
by an independent and highly professional body, and not merely by
those who are in a hurry to push them through Parliament. The
same applies to government decrees and regulations, so that the
whole technique of legislation is under the Conseil's super-
intendence. I am not myself one of those who advocate an ad-
ministrative court like the judicial side of the Conseil. But an
institution modelled on its administrative side, which could
superintend the technique of legislation without itself being under
the thumb of the government, is to my mind something which we
need much more.
The Problem of Entrenchment
Now I want to turn to quite a different legislative problem: how to
achieve the entrenchment of fundamental rights. May 1 first make it
clear that I intend to resist the temptation to launch into all the pros
and cons of a Bill of Rights, now such a popular subject of specula-
tion. Several of my Hamlyn predecessors have favoured one,
notably Lord Scarman and Sir Norman Anderson. For my own
part I will say merely that I am firmly on their side, and on the side
of the majority of the House of Lords who have four times called
for the incorporation into our law of the European Convention on
Human Rights.5 What I will attempt is to supply the missing legal
link between the wish and the fulfilment. For none of the dis-
tinguished lawyers who have advocated entrenched Bills of
Rights—and they include Lord Hailsham, Lord Salmon and Lord
Scarman—have explained how entrenchment could be made to
work consistently with the dogma of parliamentary sovereignty. I
approach this now as a purely technical problem of legislation: how
4
See Brown and Garner, French Administrative Law (2nd ed.) 32; Rendel,
The Administrative Functions of the French Conseil d'Etat; and note in 11970)
x
Public Law 217.
' See 403 H.L. Deb. 915 (December 6, 1979): Bill of Rights Bill passed.
149
Legislation 25
can our legislative machinery be made to deliver these particular

goods? In any normal situation there is no need for any such ques-
tion, since Parliament is omnipotent. But the one inherent limit on
its omnipotence, which is the consequence of that omnipotence
itself, is that the Parliament of today cannot fetter the Parliament of
tomorrow with any sort of permanent restraint, so that entrenched
provisions are impossible.
That, at any rate, appears to be the view of the legal establish-
ment. It was accepted by the Select Committee of the House of
Lords which in 1978 reported on the possibility of enacting a Bill of
Rights incorporating the European Convention. The Committee
employed a specialist adviser to guide them on this question, and he
advised them, in a very lucid paper, that the judicial authorities led
to the clear conclusion that there was no way in which a Bill of
Rights could be made immune from amendment or repeal by a sub-
sequent Act.6 Entrenched provisions, such as clauses alterable only
by two-thirds majorities, or after approval in a referendum, could
not therefore be legally effective in the United Kingdom.7 A foot-
note informs us that Lord Diplock, Lord Scarman and Lord
Wilberforce were in general agreement with this conclusion. This
weighty consensus was qualified only by a reservation on the part
of Lord Hailsham, but the Committee observe that that reservation
was based more on hope that the specialist adviser's view might
prove wrong than on any confident expectation that it would.
Lord Hailsham had himself categorically adopted the establish-
ment view in the debates of 1972 on the European Communities
Act. That Act, as we all know, has attempted to entrench the law of
the European Communities in the most absolute way possible,
providing that the European law is to prevail over "any enactment
passed or to be passed, other than one contained in this part of this
Act."8 So Parliament has ordained that every future Act of Parlia-
ment, as well as every past Act, is to give way in case of conflict.
There is nothing here about two-thirds majorities or approval by
referendum. Parliament has attempted to bind its successors un-
conditionally. Yet the same ministers who were piloting the Bill
6
Evidence to Select Committee on a Bill of Rights, H.L. 276 of May 17, 1977,
p. 1 (D. Rippengal).
7
Report of the Select Committee, H.L. 176 of May 24, 1978, p.22.
8
European Communities Act 1972, s. 2(4).
150
26 Legislation
through Parliament maintained that Parliament's ultimate

sovereignty remained intact for the simple reason that it was in-
destructible by legislation. They used this proposition to resist an
opposition amendment to the effect that the supremacy of Parlia-
ment should remained unaffected. This was unnecessary, they
argued, because Parliament is bound to remain supreme anyway
and no restriction on its powers, or on the manner of their exercise,
is constitutionally possible. Sir Geoffrey Howe in the House of
Commons9 and Lord Hailsham in the House of Lords10 quoted
from an article of mine, my solitary contribution to the arguments
over sovereignty, published 25 years ago. The clue which led to it
was perhaps its mention by Lord Denning M.R. in the case in
which Mr. Raymond Blackburn unsuccessfully contested the con-
stitutionality of this country's joining the European Communities.11
I had said:12
"If no statute can establish the rule that the courts obey Acts
of Parliament, similarly no statute can alter or abolish that
rule. The rule is above and beyond the reach of statute . . .
because it is itself the source of the authority of statute. This
puts it into a class by itself as a rule of common law, and the
apparent paradox that it is unalterable by Parliament turns out
to be a truism . . . . Legislation owes its authority to the rule:
the rule does not owe its authority to legislation."
This was merely one way of expressing two obvious facts. The first
is that in every legal system there must be a basic rule or rules for
identifying a valid piece of legislation, whether we call it the grund-
norm, like Kelsen, or the ultimate legal principle, like Salmond, or
the rule of recognition, like Professor Hart. The second obvious
fact is that this grundnorm, or whatever we call it, lies in the keep-
ing of the judges and it is for them to say what they will recognise
as effective legislation. For this one purpose Parliament's powers of
giving orders to the judges are ineffective. It is futile for Parliament
to command the judges not to recognise the validity of future Acts
of Parliament which conflict with a Bill of Rights, or with European
840 H.C. Deb. 628 (July 5, 1972).
10
334 H.L. Deb. 912 (August 7, 1972).
11
Blackburn v. Att.-Gen. 11971) 1 W.L.R. 1037.
12
! 1955) C.L.J. 187.
151
Legislation 27
Community law, if the judges habitually accept that later Acts

prevail over earlier Acts and are determined to go on doing so. In
this one fundamental matter it is the judges who are sovereign.
That, in very condensed form, is the theory which underlies the
view of the legal establishment. In my humble opinion that view is
unquestionably sound. There is an abundance of judicial authority
for it and a total dearth of authority against it.13 But nevertheless I
hope to persuade you that it need not prevent the effective en-
trenchment of a Bill of Rights or of anything else that we may wish
to establish as fundamental law.
Rival Theories
Before coming to the point, if I may keep you in suspense, I must
face up to various rival theories. It will be convenient, first of all, to
deal with those based upon the Parliament Acts of 1911 and 1949.
Professor de Smith maintained that by these Acts Parliament had
redefined itself for particular purposes: the sovereign legislature of
Queen, Lords and Commons had provided an optional alternative
consisting of Queen and Commons only; and this new body could
legislate in accordance with the Acts for all purposes other than
prolongation of the life of Parliament. Such legislation, he said, was
primary and not delegated; yet he accepted that if it purported to
prolong the life of Parliament it would be a nullity.14 With this last
point I fully agree, but I cannot square it with the notion that
legislation enacted under the Parliament Acts is primary. The acid
test of primary legislation, surely, is that it is accepted by the courts
at its own face value, without needing support from any superior
authority. But an Act passed by Queen and Commons only has no
face value of its own. As Coke put it in The Prince's Case, "If an
Act be penned, that the King with the assent of the Lords, or with
the assent of the Commons, it is no Act of Parliament for three
ought to assent to it scil the King, the Lords and the Commons."15
An Act of Queen and Commons alone is accepted by the courts
only because it is authorised by the Parliament Acts—and indeed it
13
See the articles referred to in notes 6 and 12, above.
14
Constitutional and Administrative Law (3rd ed.), 86-90.
15
(1606) 8 Co. Rep. 1,20(6).
152
28 Legislation
is required to recite that it is passed "in accordance with the Parlia-

ment Acts 1911 and 1949 and by authority of the same."16 This is
the hall-mark of subordinate legislation, and I do not understand
how it is possible to disagree with Professor Hood Phillips when he
says that this is the correct classification.17 The importance of this
academic controversy is that if the redefinition theory were sound it
would provide an easy mechanism for entrenchment. Parliament
could, by an ordinary Act, redefine itself for the purpose of amend-
ing (say) a Bill of Rights so that the competent legislature for this
purpose was one which could only act by (say) two-thirds
majorities. Parliament could of course pass such a statute, but how
could it prevent itself, in its ordinary bicameral form, from repeal-
ing it? The redefinition theory seems to lead nowhere for the pre-
sent purpose, and I feel bound to agree with the commentator who
recently criticised it as unacceptable.18
Another school of thought maintains that the judges will accept
entrenchment without further ado and will spontaneously uphold
any restrictions laid down by an earlier Parliament as to how later
Parliaments shall enact statutes. This bold assertion has been made
only by academics and they might be described as the "manner and
form" school—for they maintain that there is a distinction between
the substance of legislation and the manner and form in which it
has to be passed. As to the substance, they admit, every future
Parliament remains sovereign. But as to the manner and form, they
say, future Parliaments must legislate in accordance with the
existing law, and if that law requires two-thirds majorities in Parlia-
ment or perhaps a referendum, an Act which does not obey these
requirements will not be recognised by the courts as valid Act of
Parliament. Their watchwords "manner and form" are the words of
the Colonial Laws Validity Act 1865 which were crucial in the well
known Privy Council case of Att.-Gen. for New South Wales v.
Trethowan.19 In that case it was held that an Act of the New South
Wales Parliament abolishing the Legislative Council was invalid
since it had not been approved by a referendum as an earlier Act of
the same Parliament had stipulated. New South Wales in those
16
Parliament Acts 1911, s. 4(1); 1949, s. 2(2).
17
Constitutional and Administrative Law (6th ed.) 89-90.
18
P.N. Mirfield in (1979) 95 L.Q.R. 36, 47. '
"11932] A.C. 526.
153
Legislation 29
days was »in a state of legal subordination to Britain, and since the
Colonial Laws Validity Act laid down that colonial laws of the kind
in question must be passed in the manner and form required by the
law for the time being in force, the result was inevitable. Ignoring
this decisive fact, the "manner and form" enthusiasts seize upon the
Trethowan case as showing that a Parliament can bind its
successors as to the manner and form of future legislation, and they
contend that the result would be just the same in Britain if Parlia-
ment were, say, to enact that the House of Lords should not be
abolished without a referendum and then a later Act, without a
referendum, attempted to abolish it: this second Act, they say,
would be held void. I have draw a good deal of powder and shot
upon myself for pointing out the simple fallacies upon which the
"manner and form" position rests—a whole appendix from Sir Ivor
Jennings20 and an accusation from Professor Heuston that my
reaction to it was that of a mindless automaton.21 But, in the end,
what is the substance of their argument? It is simply their predic-
tion, made with varying degrees of dogmatism, that the judges will,
or should, enforce restrictions about manner and form and aban-
don their clear and settled rule that the traditional manner and form
is what counts. But if it is vain for Parliament to command the
judges to transfer their allegiance to some new system of legislation
if the judges are resolved to remain loyal to the old one, it is still
more vain for professors to assert that they should. The judicial
loyalty is the foundation of the legal system and, at the same time,
a political fact. This is the reality which the "manner and form"
school fail to appreciate.
Judicial Adjustments
I have never suggested that no shift in judicial loyalty is possible.
One has only to look at the shifts which took place in seventeenth-
century England, in eighteenth-century America and in the
twentieth-century dissolution of the British Empire, latterly in par-
ticular in Rhodesia. These shifts are revolutions, breaks in con-
tinuity and in the legal pedigree of legislative power. Even without
20
The Law and the Constitution (5th ed.), 318.
21
Essays in Constitutional Law (2nd ed.), 24. The "manner and form" theory
is decisively rejected in Mr. Rippengal's memorandum (note 6, above). Professor
de Smith (as note 14, above) seems to accept it at p.88, n. 107.
154
30 Legislation
such discontinuity there might be a shift of judicial loyalty if we

take into account the dimension of time. Suppose that Parliament
were to enact a Bill of Rights entrenched by a clause saying that it
was to be amended or repealed only by Acts certified to be passed
by two-thirds majorities in both Houses. Suppose also that Parlia-
ment scrupulously observed this rule for 50 or 100 years, so that no
conflicting legislation came before the courts. Meanwhile new
generations of judges might come to accept that there had been a
new constitutional settlement based on common consent and long
usage, and that the old doctrine of sovereignty was ancient history,
to be classed with the story of the Witenagemot, Bonham's case,
the Rump, Barebones' Parliament and the Jacobite pretenders. The
judges would then be adjusting their doctrine to the facts of con-
stitutional life, as they have done throughout history.
Something like this may indeed be happening in New Zealand.
There it was provided in the Electoral Act 1956 that certain
"reserved provisions" were to be repealed or amended only by a
vote of 75 per cent, of the House of Representatives or after appro-
val in a referendum. At the time it was accepted that this provision
could itself be repealed by an ordinary Act. Now that it has been
respected for over 20 years it seems possible that a kind of moral
entrenchment may have been achieved, and it has been seriously
suggested that legislation infringing it might be put in question by
the Governor-General refusing assent to it.22 But one can imagine
the crisis which this might precipitate.
Judicial Acceptance?
There is another school of thought which, without following the
"manner and form" school, postulates, or at any rate hopes, that
the judges might accept and enforce entrenched clauses without
needing a century or so to get used to the idea. Lord Scarman, in
his Hamlyn Lectures of 1974,23 made a strong case for entrench-
ment as a necessary feature of a Bill of Rights and a new con-
stitutional settlement. He acknowledged "the helplessness of the
law in face of the legislative sovereignty of Parliament," but he did
22
K. J. Keith in Thirteen Facets: Essays to Celebrate the Silver Jubilee of
Queen Elizabeth 11 (Wellington, 1978), 11-12. *
23
English Law—The New Dimension, 15-21.
155
Legislation 31
not see why this should be so basic as to be unalterable; and he

observed that both British history and American experience
showed that the necessary adjustment could be made. He pointed
to the limitations on sovereignty asserted by Coke and Holt, who
both held that Acts of Parliament might be void if contrary to com-
mon right and reason or the principles of natural justice. He also
made an interesting reference to Coke's dictum that Acts of Parlia-
ment were not binding on the Court of King's Bench because it
represented the King himself, coram ipso Rege,24 difficult though it
is to imagine counsel having much success with such a submission
today. In the nineteenth century rigid-minded lawyers, such as
Lord Campbell, scoffed at the idea that there could be limited
sovereignty.25 Lord Scarman's point, however, is simply that if
great lawyers have supported it in the past, they might equally well
do so again in the future. Yet the problem still remains, how to
bring that about by legislation?
The European Communities Act 1972, by providing that Euro-
pean law should prevail over future Acts of Parliament, has
attempted to entrench the whole of European law in the most abso-
lute fashion—although, as I have mentioned, its sponsors made it
clear that they did not really believe that it could. In a published
lecture Mr. J.-P. Warner Q.C., Advocate-General at the European
Court in Luxembourg, has said that he believes that there are
sound arguments for holding that the entrenchment is effective.26
He does not say what they are, or join issue with the ministerial
spokesmen who maintained the contrary. But he very fairly ob-
serves that it really would be lamentable if British constitutional
law were held to be so rigid, and so divorced from reality, as to
make it impossible for the United Kingdom to honour its
obligations under the Community Treaties. A contradictory opin-
ion had fallen not long before from Lord Denning M.R. in the
Felixstowe Docks case, where he had said that if the private Bill
about the docks was enacted by Parliament, that would dispose of
all argument about the "abuse of a dominant position" under the
24
Foster's Case(l6l5) 11 Co. Rep. 56b, 65a.
25
See Lives of the Chief Justices, Vol. 1, 341 on the "foolish doctrine" of Dr.
Bonham's Case (1610) 8 Co. Rep. 113b, 118a which "ought to have been laughed
at."
"(1977)93 L.Q.R. 349,365.
156
32 Legislation
Treaty of Rome: for the courts would then have to "abide by the
statute without regard to the Treaty at all."27
There is one thing on which all the contenders engaged on this
juristic battleground would agree. This is that it is absurd that im-
portant public discussions, such as the House of Lords' debate on
the proposal for enacting a Bill of Rights, should have to be held on
the assumption that entrenchment is impossible. Yet the Select
Committee, whose Report was the subject of the debate, treated it
as clear that no provision for special majorities or for referendums
or for placing any restriction upon amendment or repeal by the
traditional procedure could be made legally effective. With the
greatest respect to the Committee, I would agree that no such
restriction would be effective if merely enacted in the normal
manner, except possibly after a transitional interval too long and
uncertain to be of practical interest. But it does not follow that
there is no constitutional means for producing the desired result. It
may seem paradoxical that there is any legal mechanism more
effective than an ordinary Act of Parliament. But when we are deal-
ing with the fundamental doctrine under which the judges declare
what statutory directions they will accept, we are dealing with a
unique principle which is more than just an ordinary rule of law.
Not only is it part of the network of legal rules: it is also the peg
from which the network hangs.
Attempts at Entrenchment
Theoretical difficulties have not prevented Parliament from attemp-
ting to fetter its successors from time to time. The earliest example
that I know is the Act entitled Confirmation of the Charters of
1369,28 which provided:
" . . . it is assented and accorded that the Great Charter and the
Charter of the Forest be holden and kept in all points; and if
there be any statute made to the contrary, it shall be holden
for none."
27
Felixstowe Docks and Ry. Co. v. British Transport Docks Board (1976) 18
C.M.L.R. 655. In Macarthys Ltd. v. Smith [19791 I.C.R. 174 Lord Denning adds
4
that the intention to override the Treaty must be clear.
28
43 Ed. 3, c.l.
157
Legislation 33
Another instance is the Act of 149529 designed to prevent the

attainder of those who gave allegiance to the King reigning de facto
for the time being, in case he should later be held a usurper:
"if any act or acts or other process of the law hereafter happen
to be made contrary to this ordinance, then that act or acts or
other process of the law . . . should be void."
The vicissitudes of fifteenth-century politics not unnaturally
prompted legislators to strive for some element of stability by
enacting permanent safeguards. Unfortunately we have no case in
which a court was called upon to apply this unsophisticated effort
at entrenchment. But Coke and Blackstone were both quite certain
that all such attempts were ineffective. Blackstone elegantly cites a
passage from Cicero's letters which indicates that in the Roman
republic lawyers were familiar with the same doctrine.30 The
translation reads:
"Clodius, as you know, attached sanctions to his Bill to make
it almost or quite impossible for it to be invalidated either by
the Senate or by the Assembly. But precedent shows you that
such sanctions have never been observed in the case of laws to
be repealed. Otherwise it would be virtually impossible to
repeal any law, for there is none but protects itself by putting
difficulties in the way of repeal. But when a law is repealed, the
provision against repeal is repealed at the same time."
I need not linger over the Acts for securing the church establish-
ments in Scotland and Ireland, which, according to the Acts of
Union, were to be for ever observed as fundamental and essential
conditions. Those solemn enactments did not prevent later statu-
tory amendments.31 Though there is a clear case for regarding the
Treaty of Union as a constitutional convention, intended to estab-
lish fundamental law, the truth is that the Treaty was made too
early, and the argument has been raised too late, for this reasoning
to be acceptable to the courts. But Parliament undoubtedly pur-
ported to fetter its successors in the Statute of Westminster 1931,
by providing that no Act of Parliament was in future to extend to a
29
11 Hen.7, c.l.
30
Comm. i, 90, citing Letters to Atticus, bk. iii, no. 23.
31
By the Universities (Scotland) Act 1853 and the Irish Church Act 1869.
158
34 Legislation
Dominion unless it declared in the Act itself that the Dominion had
requested and consented thereto. And we all know Lord Sankey's
trenchant comment, that Parliament could, as a matter of abstract
law, repeal or disregard the requirement of request and consent;
"But that is theory and has no relation to realities."32 To the realm
of unreality also belong the proposals made to the Royal Commis-
sion on the Constitution by Jersey and the Isle of Man, that their
relationship with the United Kingdom should be embodied in
statutes which would provide that they should not be amended or
repealed without their consent.33
But there is a very direct relation to realities in the European
Communities Act 1972, which provides that European Community
law shall prevail over all enactments "passed or to be passed." The
reality here is that it is virtually certain that sooner or later some
Act passed after 1972 will be found to be in conflict with commu-
nity law, as has now happened in several of the other member
countries. Lord Denning has already gone on record, as I have
mentioned, with the dictum that the courts of this country would
then have to obey the later Act without regard to the Treaty of
Rome. When the Bill was before Parliament in 1972 I ventured to
point out how this potential conflict might be avoided by sub-
ordinating all future legislation to Community law by some short
and suitable addition to the conventional words of enactment.34
Nothing of that kind having been done, a profound puzzle has
simply been bequeathed to the judges.
The Needfor a Solution

With these problems impending, surely it is time that this country
grew up constitutionally and stopped mumbling feebly that nothing
can be done. I think that this is part of what Lord Wilberforce had
in mind when he said, during the debates on the Scotland Bill, that
it was time to put an end to "constitutional anarchy," or alter-
natively "non-constitutional despotism," and to start taking the
constitution seriously.35 In the present context, it is time that we
32
British Coal Corporation v. The King H935I A.C. 500, 520.
33
Report of the Royal Commission on the Constitution, Cmnd. 5460 (1973),
para. 1417.
34 X
The Times, April 18, 1972, p. 14.
35
390 H.L. Deb. 1094 (April 18, 1978).
159
Legislation 35
took the trouble to discover how to provide ourselves with the legal
mechanisms which virtually all other comparable countries have.
Whether we want entrenched provisions or whether we do not, we
ought at least to be able to make a choice on the merits, instead of
being told by constitutional pundits that no choice is open to us.
Whether the argument is about a Bill of Rights, the European
Convention on Human Rights, or the law of the European Com-
munities, the whole debate is distorted unless we have the full range
of options which is open to any country which wants to establish,
for the first time, new fundamental laws. The absurdity of saying
that we have not the option of entrenchment becomes all the
greater if we remember to how many other countries we have
ourselves given it. In the new countries of the British Common-
wealth it has been standard practice to include in their constitutions
the familiar kind of restrictions on constitutional amendment which
require special majorities such as two-thirds; and part and parcel of
the constitution is commonly a catalogue of fundamental rights. If
they wish to entrench anything further, all they have to do is to ob-
tain a constitutional amendment. And they may have power, as for
example India has (subject to ratification by not less than half the
States), to amend the amendment provision itself, so that they can
alter the degree of entrenchment and make it as rigid or as pliable
as they wish.36 So they enjoy all possible options.
Must there be a Revolution?

A primary question to explore, in approaching our own problem, is
whether it is indispensable to have a revolution, or its equivalent,
before the traditional doctrine of sovereignty can be changed.
Constitutional restraints are the natural product of revolutions,
since there is then a clean break with the past and any rules of any
kind can be adopted for the future. A constituent assembly may be
convened without any legal antecedents and the very fact of its
irregularity gives authority to the constitution that it adopts. Part of
our difficulty in Britain is that we have not had a fresh start of this
kind since 1688, and that was a century before the era of written
constitutions. The interesting question is, must there necessarily be
a legal break with the past in order that a different principle of
36
Constitution of India, art. 368.
160
36 Legislation
sovereignty may be established? Certainly that has been so in most

of the cases which come to mind, and I include among them all the
transfers of sovereignty to the newly independent countries of the
British Commonwealth. For one must not be deceived by legal
camouflage. When the Ghana Independence Act (for example) was
passed in 1957, the Constitution of Ghana having been duly
created by Order in Council beforehand, there was in fact just as
clean a break with the British legal connection as there was when
the Constitution of the United States of America was adopted in
1787 after the successful rebellion.37 On paper the Constitution of
Ghana had a legal pedigree deriving from Britain. But in reality
Ghana was launched into independence and her judges would in
future have to solve her constitutional problems on their own.
Over twenty years beforehand South Africa had made the same
discovery when she severed her connection in 1934, proclaiming by
statute that she was an independent sovereign state—a step which
she was fully entitled to take, so far as British law was concerned,
under the Statute of Westminster 1931. Then the question arose,
what about the entrenched clauses? South Africa had not adopted
any new constitution in 1934, so continued to live under the con-
stitution of 1909, imposed from Westminster, which provided that
certain matters, including the electoral rights of the Cape coloured
voters, should be changed only by a two-thirds majority of both
Houses of Parliament sitting together. But the government claimed
that after 1934 they could be changed by an Act passed by simple
majorities in the two Houses separately, since the South African
Parliament was now sovereign, and, it was asserted, could no more
be bound by any earlier enactment than could the sovereign Parlia-
ment of the United Kingdom. Constitutional lawyers then disputed
this question as if there was a legal path leading to the correct solu-
tion. But in fact there was no such path: there was a new situation,
in which only the judges could say what they would now recognise
as a valid Act of the new sovereign legislature. In fact they elected
to retain the entrenched clauses.38 But had they decided the con-
trary, as indeed they had done in one earlier case, this would have
been no less justifiable in terms of constitutionality. Notwithstan-
37
The right of appeal to the Judicial Committee of the Privy Council, retained
until 1960, made no difference.
38
Harris v. Minister ofthe Interior 1952 (2) S.A. 428; 11952J 12T.L.R. 1245.
161
Legislation 37
ding the Statutory camouflage provided both in London and

Pretoria, there had been a revolution, legally speaking, and the
judges were called upon to lay down the fundamental law of the
new legal system, as it were in a vacuum.
Despite all the legal accoutrements, a revolution of some kind, in
the sense of a break in legal continuity, seems to be lurking in any
situation where there is a shift of the seat or the forms of sovereign
legislative power. Lord Hailsham has written that to produce it in
this country would require "a political crisis far more serious than
anything which has faced us hitherto."39 And even after such a
cataclysm doubts might remain until the courts had decided cases,
since only they can say whom in the last resort they will obey. To
meet these difficulties Messrs. Wallington and McBride suggest, in
their book Civil Liberties and a Bill of Rights,40 that the Lord
Chancellor could persuade the judges of the House of Lords to
issue a practice statement, like their pronouncement of 1966 about
precedent, to the effect that they would disallow future legislation
conflicting with a new Bill of Rights. I feel bound to agree with the
advice given to Lord Wade's Committee, that the notion that the
House of Lords would seek to make a fundamental constitutional
change in such a way is hardly sustainable.41 And I would say the
same about the role assigned to the Lord Chancellor. But at least
the suggestion is aimed at the right point. It is the minds of the
judges which require to be adjusted, and to pass statutes merely
telling them to adjust themselves is futile.
The Easy Way Out
After all this build-up my own suggestion will seem, I fear, very
simple and obvious. But I believe it to be the one to which logic in-
exorably leads. All that need be done in order to entrench any sort
of fundamental law is to secure its recognition in the judicial oath
of office. The only trouble at present is that the existing form of
oath gives no assurance of obedience to statutes binding later
Parliaments. But there is every assurance that if the judges under-
take upon their oath to act in some particular way they will do so.
If we should wish to adopt a new form of constitution, therefore, all
39
The Times, M a y 20, 1975, p. 14.
40
P.86.
41
As note 6, above, para. 12.
162
38 Legislation
that need be done is to put the judges under oath to enforce it. An
Act of Parliament could be passed to discharge them from their
former oaths, if that were thought necessary, and to require them to
be resworn in the new terms. All the familiar problems of
sovereignty then disappear: a fresh start has been made; the doc-
trine that no Parliament can bind its successors becomes ancient
history; and the new fundamental law is secured by a judiciary
sworn to uphold it.
If critics should object that this would be a mere piece of
manipulation and a subversive tampering with the status of the
judges, I would meet them head on by denying the validity of the
objection. It is only because we are so habituated to having no con-
stitution at all that our minds can move in such grooves. There is
no need to assume that there is only one kind of judge and only one
form of oath. In fact, it is the most natural and normal procedure to
relate the judicial oath specifically to any new fundamental law that
is to be established. Article VI of the Constitution of the United
States provides that judicial as well as executive officers both of the
United States and of the States shall be bound by oath or affirma-
tion to support the Constitution. In the Constitution of India a
variety of oaths for judges, ministers, and members of Parliament
are set out in the Third Schedule, and all are required to swear
fidelity to the Constitution and the judges must swear to uphold it.
There are similar requirements in the Constitution of Malaysia. But
throughout history oaths have been used to secure revolutionary
changes, such as the Reformation in the time of Henry VIII and the
Revolution in the time of William III. William III, when he
accepted the crown at the Revolution, took security for his legal
position as sovereign by appointing new judges who swore
allegiance to him personally,42 just as today the judges of the
Supreme Court of Judicature take the oath of allegiance and the
judicial oath in the forms prescribed by the Promissory Oaths Act
1868, which name the reigning sovereign. The one thing that our
rudimentary constitution guarantees in this way is the personality
of the sovereign. If we want to guarantee something else, such as a
Bill of Rights or some particular entrenched clauses, all we have to
do is extend the same security to them.
42
Except for Atkyns and Powell JJ. who were reappointed: Campbell, Lives of
the Chief Justices (3rd ed.) Vol. 2, 381.
163
Legislation 39
This is,'as it appears to me, the one and only way in which we
can take command of our constitution without having to wait for
some sort of political revolution, which is most unlikely to arrive
just when we want it, and without having to contrive some artificial
legal discontinuity. Professor Hood Phillips, in his book on the
Reform of the Constitution, suggests that Parliament would have to
abdicate or transfer its powers, with or without the intervention of a
constituent assembly.43 But merely by a change in the judicial oath
a new judicial attitude can be created, and that is all that is needed.
Fundamentally the question simply is, what will the judges
recognise as a valid Act of Parliament? If they solemnly undertake
to recognise a new grundnorm and to refuse validity to Acts of
Parliament which conflict with a Bill of Rights or other entrenched
clauses, that is the best possible assurance that the entrenchment
will work. Always in the end we come back to the ultimate legal
reality: an Act of Parliament is valid only if the judges say it is, and
only they can say what the rules for its validity are.
The logic could be pressed further by including in the judicial
oath an undertaking to pay no attention to future legislation affec-
ting the oath unless passed by (say) two-thirds majorities in Parlia-
ment. It could be pressed further still if the undertaking were to pay
no attention to any such legislation of any kind. All that that would
mean, however, would be that whole benches of new judges
would have to be found to replace the old ones, just as at William
Ill's accession, if and when the time for the second revolution
arrived. Cheering as this prospect might be to the Bar, it is not a
situation which one would wish to provoke. I mention it only
because, theoretically at least, it seems to represent the ultimate in
possible entrenchment. There is little merit in the ultimate, since in
the end political forces, if they are strong enough, can always over-
come legal restraints, and a system which will not bend will break.
All that I am concerned to point out is that the supposed im-
possibility of any sort of entrenchment in our existing constitutional
system is imaginary.
Other Devices
I do not see much to be said for some other devices which have
been pressed into service in order to give rigidity to constitutions.
43
P. 157, adding that new judicial oaths would be necessary.
164
40 Legislation
One is to enact that no amending legislation, unless passed in the

prescribed way, shall be presented for royal assent, with the im-
plication that presentation for royal assent contrary to the Act
might be prohibited by injunction. This device has had something
of a vogue in Australia,44 and though the propriety of the courts in-
tervening was doubted by the highest possible authority, Sir Owen
Dixon C.J., that doubt might have been removed had the draftsman
thought of expressly empowering the court to grant the injunction.
But perhaps we should accept the conclusion of another high
authority, Sir Zelman Cowen, the present Governor-General, that
no conceivable form of drafting can empower the courts to in-
tervene at this stage of the Parliamentary process.45 If that is right,
this device must be rejected. It is in any case a clumsy one, disliked
by judges and likely to embroil the courts with Parliament.
The prize for bizarre forms of entrenchment must undoubtedly
be awarded to the government of Sri Lanka. In framing the draft
constitution for that "Democratic Socialist Republic" in 1978 the
government included a clause making advocacy of any con-
stitutional amendment a criminal offence punishable with up to 10
years' imprisonment, with or without fine, and with forfeiture of all
property.46 After enduring this lecture you may think this the best
of all the suggestions, since it should effectively silence professors
of constitutional law. In Sri Lanka, however, second thoughts
prevailed, and ultimately a normal type of amendment clause was
adopted, with no criminal penalties for activating it.
So I return to my own suggestion, elementary though it may
appear. It is not a mere device or evasion. It meets the case because
it goes to the heart of it. It is in the breasts of the judges that the
problem lies and it is in their breasts that we must contrive the solu-
tion. If we only acknowledge this, much futile speculation can stop.
44
See (1955) 71 L.Q.R. 336 (Zelman Cowen).
45
Ibid., 342.
46
The Times, August 8, 1978, p.5.
165
CHAPTER FOUR
ADMINISTRATION
The Reaction against Maladministration
If there is one word in our language which is more ruthlessly

overworked than the rest, it must be "bureaucracy." As a
schoolboy I was taught that only the illiterate invented words by
mixing the Greek and Latin languages, and what can there be said
for a word which mixes Greek with French? Yet it has been with us
for a century and a half, having been invented, as one might guess,
early in the age of reform, when it suddenly occurred to our
ancestors that radical improvements in society might be made by
passing Acts of Parliament and appointing officials to administer
them. There had been plenty of Acts of Parliament beforehand, but
with the reform legislation there arrived something different: dis-
cretionary power. This was the hallmark of the administrative age,
heralded most notably perhaps by the Poor Law Amendment Act
1834. A new word was needed to describe the new administrative
empires which were arising, and "bureaucracy" had the merit of
the derogatory flavour which its linguistic illegitimacy helped to
convey.
From that time onwards the battle over discretionary power was
joined, some saying that it was an abomination which could not be
reconciled with the rule of law, others resigning themselves to their
fate while continuing to denounce bureaucracy. Some maintained
that the constitution supplied an adequate restraining mechanism
through the doctrine of ministerial responsibility to Parliament; and
so perhaps it did for a time, at least in respect of major decisions of
policy on which parliamentary opinion could be mobilised. But this
comforting proposition became less and less tenable as the party
system grew in efficiency and in rigidity and as it became obvious
that Parliament had become the obedient instrument of the govern-
ment of the day. But even if Parliament had maintained its in-
dependence, it would have been quite incapable of controlling the
flood tide of discretionary power which surged forth after the
Second World War. Its pressure was reduced by the use of special
166
42 Administration
tribunals to dispose of cases where the decision could be made

according to rules, and a large part of the administration of the
welfare state could be handled in this way. But the rules themselves
were often made at the discretion of ministers and they had large
reserves of power under skeleton legislation of the kind which was
the basis, for example, of supplementary benefit. Another ex-
pedient, and a very important one, was the Parliamentary Com-
missioner for Administration, alias the Ombudsman, whose place
in the system was judiciously assessed by Sir Kenneth Wheare in
his Hamlyn Lectures of 1973. After a reluctant start the Parliamen-
tary Commissioner soon learnt to involve himself in the decisions
of government departments, and of ministers also, whenever there
was a complaint of abuse, unfairness or other maladministration;
and although he has no power to lay down the law, he has great
persuasive power, so that government departments usually make
amends, sometimes by the payment of large sums of money. And
his counterparts, the local commissioners, have succeeded simi-
larly. The administrator now knows that the eyes of the ombuds-
men are upon him. The decline in the effectiveness of Parliament
has at last been compensated—and by a new institution.
It has been compensated in addition by an old institution, the
courts of law. In the legal history of the last 30 years there has been
nothing more remarkable than the awakening of the courts to the
need to remedy abuse and unfairness in government. In his book
The Discipline of Law Lord Denning made it clear that the law's
greatest task at the present juncture was to control and remedy the
abuse of power, whether by the government, big business or power-
ful trade unions. The role of the courts will be the subject of my last
lecture, but here I may mention the effect on administration and the
healthier balance of power between the judiciary and the executive
which has been achieved. The judges have been embroiled in a
series of battles against the misuse of power at the highest level and
have established, or rather re-established, some very salutory
restraints.
In terms of realities the results are certainly striking. We can fly
to North America much more cheaply, thanks to the decision in the
Laker case.1 The Congreve case2 established that the Home
1
Laker Airways Ltd. v. Department of Trade [ 1977| Q.B. 643.
2
Congreve v. Home Office [19761 Q.B. 629.
167
Administration 43
Secretary Vnay not, as he supposed he might, cancel our television

licences if we do something quite lawful but of which he disap-
proves. In the Tameside case3 the Secretary of State for Education
and Science had claimed to be able to dictate policy to a local
authority on the question of comprehensive schools versus gram-
mar schools, when in fact he was empowered to intervene only if
the local authority were acting unreasonably. In the Padfield case,4
a few years earlier, the House of Lords had, as it were, set the scene
for these events by rejecting a minister's claim that a discretionary
power under the milk marketing scheme gave him an unfettered
power to decide just as he liked, and by emphasising in broad terms
that unfettered discretion is something that the law does not admit.
If it were otherwise every one would be helpless in the face of the
unqualified powers which ministers find it so easy to obtain from
Parliament. So the judges have to this extent been able to give
protection against the excesses of the "elective dictatorship" to
which I made reference in my previous lecture. It would be wrong
to say that they have invented new doctrines for the purpose, and
taken more power into their own hands. What they have done is to
activate principles which have been embedded in the law for cen-
turies, and to apply them with far greater confidence and vigour
than they were willing to do 20 or 30 years ago. There has been
little change in the law itself, but a very marked change of judicial
spirit. Of that I will have more to say in my next lecture. My pur-
pose now is to look at some aspects of the administrative machine
as revealed by these cases and various other events and to point to
a few features which call for legal comment.
Over-stretching of Powers
In the first place, it is notable that a number of the cases have con-
cerned the misuse of power by ministers themselves in deliberate
decisions of policy. Today I think that no one would make the com-
ment, which used occasionally to be heard, that the courts are more
severe with local authorities than with the central government. I do
not think that this was ever true, but that is now immaterial. What
3
Secretary of State for Education and Science v. Tameside Metropolitan
Borough Council 11977] A.C. 1014.
4
Padfield v. Minister of Agriculture, Fisheries and Food 119681 A.C. 997.
168
44 Administration
does seem to be true, and what is perhaps obvious, is that the more
power governments enjoy, the more misuse of it there will be.
Whatever the reasons, we have witnessed during the last few years
this succession of cases in which ministers have been tempted to
strain their powers up to and beyond their limits, instead of follow-
ing the prudent course of keeping a comfortable distance within
them. In the Congreve case the Wireless Telegraphy Act 1949
provided simply that a television licence "may be revoked or . . .
varied" by the Home Secretary and his advisers supposed that
because this was, taken literally, an absolute and unqualified power,
therefore he could use it to penalise people who took out their
television licences a little earlier than usual in order to obtain them
before the fee went up. Parliament is far too prone to grant blank
cheque powers of this kind and ministers, through their legal
representatives, have been too prone to argue that blank cheque
powers could be used or abused in any way that suited them. They
did not seem to appreciate that this was a kind of constitutional
blasphemy. The law has always maintained that powers are to be
used reasonably and in accordance with the true purposes of the
statute, and in the Padfield case the House of Lords emphatically
repudiated the whole idea of "unfettered discretion" in the context
of the milk marketing scheme. The Parliamentary Commissioner,
who condemned in unsparing terms the Home Office's handling of
the television licence business, said that he could not criticise the
Home Secretary for acting on the advice of his own lawyers. But
one wonders how it could ever have been supposed that licences
could properly be revoked merely because their holders had exer-
cised their undoubted legal right to take them out at an earlier date
and a cheaper rate. When asked in the House of Commons whether
it would not have been better to take the advice of the law officers,
the Home Secretary said ruefully that it would have been better to
have taken the advice of someone who had given the right advice.5
But between the lines of the handsome apology which he made to
the House of Commons, and in his decision not to appeal to the
House of Lords, one may detect his own conclusion that this un-
happy affair, as he called it, was a textbook example of abuse of ex-
ecutive power. It had simply not been foreseen that the rise of the
licence fee would be anticipated and the B.B.C.'s revenue dimi-
5
902 H.C. Deb. 238 (December 9, 1975).
169
Administration 45
nished. The Home Office had attempted to make up for a bureau-

cratic failure by resorting to a blunt instrument which it had no
right to use in such a way.
There was equally obvious abuse in the Laker Airways case. The
Civil Aviation Act 1971 provided categorically that one of the
duties of the Civil Aviation Authority was to allow at least one
independent British airline to compete with British Airways. It also
allowed the Secretary of State to give mandatory "guidance" to the
Authority, but only "with respect to the functions conferred on it."
Since one of these functions was to allow independent competition,
it should have been obvious that the Secretary of State was acting
unlawfully when he gave "guidance" to the Authority which in
effect required them to cancel the licence for the Laker Skytrain so
that British Airways should have a monopoly. Parliament had ex-
pressly enacted that competition by independent airways was to be
allowed and the Act was deliberately used by the government
for the purpose of preventing it. Here again one sees a minister,
acting no doubt on legal advice, stretching his powers in order to
frustrate the express policy of Parliament. This is the disquieting
feature of the series of cases which have come close together
quite recently and which seem to indicate a tendency to strain
statutory powers in the way the Stuart kings strained the royal
prerogative.
Even the prerogative may no longer be a source of free dis-
cretionary power. It played a prominent part in the Laker Airways
case, and now is a good occasion for taking stock of it. In addition
to their attempt to put the Civil Aviation Act 1971 into reverse by
issuing "guidance" under it, the government proposed to cancel
Laker's designation under the Bermuda Agreement of 1946, with
the result that the United States government denied landing rights
to Laker. This was action by the Crown in the realm of foreign
affairs, outside the jurisdiction and beyond the reach of judicial
review, as the Crown contended. But the Court of Appeal, rising to
the occasion, held that the prerogative power of the Crown had
been impliedly restricted by the provision about competition in the
Civil Aviation Act, and that it was an abuse of the prerogative to
use it in a way that frustrated the express requirement of the Act.
So here was another element of abuse and another attempt to
render an Act of Parliament nugatory by executive action. Lord
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46 Administration
Denning M.R., going further than the other members of the Court,
said:
"Seeing that the prerogative is a discretionary power to be
exercised for the public good, it follows that its exercise can be
examined by the courts just as any other discretionary power
which is vested in the executive."
He went on to refer to Hampden's challenge to the prerogative over
ship money, and to hold that the court can examine the exercise of
discretionary powers of all kinds, "to see that they are used pro-
perly and not improperly or mistakenly." If this doctrine should es-
tablish itself—and seed scattered by Lord Denning often has
remarkable powers of germination—a new and important dimen-
sion will have been added to the principle of the Padfield case, that
there is no such thing as unfettered executive discretion. Nor is
Lord Denning the only judge to have suggested that the court's arm
might be long enough to reach into the sphere of prerogative.6
What is "Prerogative"?
But what does "prerogative" mean? I have felt disposed to criticise
the use of this term in some recent judgments and other contexts
where, as it seemed to me, no genuine prerogative power was in
question at all. If prerogative power is to be brought under judicial
control, and if ministers are to be condemned for abusing it unlaw-
fully, it is worth finding out what it really is. In the first place, the
prerogative consists of legal power—that is to say, the ability to
alter people's rights, duties or status under the laws of this country
which the courts of this country enforce. Thus when Parliament is
dissolved under the prerogative it can no longer validly do business.
When a man is made a peer, he may no longer lawfully vote in a
parliamentary election. When a university is incorporated by royal
charter, a new legal person enters the world. All these legal
transformations are effected in terms of rights, duties, disabilities,
etc., which the courts will acknowledge and enforce. The power to
bring them about is vested in the Crown by the common law, so it
clearly falls within the definition of the royal prerogative as "the
6
Lord Devlin said the same in Chandler v. D.P.P. [1964] A.C. 763, 809-810.
171
Administration 47
common faw powers of the Crown." But when the government

cancels the designation of Laker Airways by making a communica-
tion to the government of the United States under the terms of an
international agreement, that has no effect under the law of this
country whatsoever and has nothing to do with any power con-
ferred by common law or recognised by British courts. It may be,
as the Court of Appeal held, an act prohibited by a British statute.
But it is not an act of power in any British constitutional sense,
since it involves no special power that a British court will recognise.
Whatever powers the government may have had under the Ber-
muda Agreement were powers in the sphere of international law,
and their capacity to make the Agreement came not from common
law but from their status in international law as an international
person. In the Laker Airways case the Attorney-General claimed
that the Crown was entitled to cancel the designation under
the royal prerogative, and there was much talk about prerogative
in the judgments. But if there was no power, in the correct legal
and constitutional sense, there was no prerogative either. There
was merely a piece of administrative action on the international
plane.
Another example shows another species of inaccuracy. The
Criminal Injuries Compensation Board is an instance of the prac-
tice, dear to the administrative heart, of doing things informally and
extra-legally if means can be devised. This Board pays out several
million pounds of public money annually to the victims of violent
crime. But it has no statutory authority. Parliament simply votes
the money each year, and the Board dispenses it under the rules of
the scheme, which are laid before Parliament by the Home
Secretary but have no statutory force. Nevertheless, by a feat no
less imaginative than in the Laker Airways case, the courts have
assumed jurisdiction to quash decisions of the Board which do not
accord with the rules of the scheme. In doing so, they have
described the Board as "set up under the prerogative."7 But one es-
sential of "prerogative," if I may be forgiven for saying so, is that it
should be prerogative. Its etymology means that it should be some
special power possessed by the Crown over and above the powers
7
R. v. Criminal Injuries Compensation Board ex p. Lain [1967] 2 Q.B. 864,
881,883.
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48 Administration
of an ordinary person, and by virtue of the Crown's special con-

stitutional position. Blackstone explained that "it must be in its
nature singular and eccentrical,"8 and can comprise only
"those rights and capacities which the King enjoys alone, in
contradistinction to others, and not to those which he enjoys
in common with any of his subjects; for if once any one
prerogative of the Crown could be held in common with the
subject, it would cease to be prerogative any longer."
Now if we apply this test to the constitution of the Criminal Injuries

Compensation Board, it is surely plain that the government, in es-
tablishing it, was merely doing what Miss Hamlyn did when found-
ing this lectureship and what any of us could do if we had the
money ready to hand. We could set up a board, or a committee, or
trustees with authority to make grants according to whatever rules
we might please to lay down. Thousands of foundations or trusts
have been set up in the exercise of exactly the same liberty that the
government exercised in the case of the criminal injuries scheme.
So far as the Crown came into the picture at all, it was exercising
its ordinary powers as a natural person, which of course include
power to transfer property, make contracts and so on. Blackstone
was quite right, in my opinion, in saying that such powers are not
prerogative at all.
Much the same might be said of other powers of the Crown
which writers on constitutional law are fond of cataloguing as
prerogative, without regard to Blackstone's doctrine. The power to
appoint and dismiss ministers, for instance, appears to me to be
nothing else than the power which all legal persons have at com-
mon law to employ servants or agents, so that it lacks any
"singular and eccentrical" element. Ministers as such have no in-
herent powers at common law and must therefore be counted as
ordinary servants. It is otherwise with judges, who have very great
legal powers, and their appointment and dismissal were un-
doubtedly within the true prerogative before Parliament gave them
a statutory basis. I will not go through the whole catalogue of the
powers commonly classed as prerogative in textbooks and
8
Comm. i, 239, citing Finch, Law, 85.
173
Administration 49
elsewhere, though I suspect that a number of them would not pass

the Blackstonc test. A collector's piece comes from a hopeless case
of 1971. Mr. Clive Jenkins, the trade union leader, sued the
Attorney-General in an attempt to stop the government from dis-
tributing a free pamphlet on the Common Market at a cost to the
taxpayer of £20,000. The judge is reported to have held that the
issue of free information is "a prerogative power of the Crown"
which the court cannot question.9 Since all the Crown's subjects
are at liberty to issue as much free information as they like (and
many of them issue much too much of it), I offer you this as a
choice example of a non-prerogative.
The truth seems to be that judges have fallen into the habit of
describing as "prerogative" any and every sort of government
action which is not statutory. It may be, also, that the responsibility
for this solecism can be loaded onto that popular scapegoat, Dicey.
For his well known definition of prerogative is "the residue of dis-
cretionary power left at any moment in the hands of the Crown."
He makes no distinction between the Crown's natural and regal
capacities, indeed at one point he says10:
"Every act which the executive government can lawfully do
without the authority of an Act of Parliament is done in virtue
of this prerogative."
So the judges and authors whose wide statements I have ventured

to criticise could quote Dicey against me. But if we match Dicey
against Blackstone, I think that Blackstone wins. Nor do I think
that the criticism is mere pedantry. The true limits of the preroga-
tives of the Crown are important both in constitutional and in
administrative law. This is all the more so now that the courts are
showing signs, as in the Laker Airways case, of bringing the exer-
cise of the prerogative under judicial control. It may well be easier
to extend control to the few genuine prerogative powers which may
possibly admit it, for example an improper use of nolle prosequi, if
the court is not by the same token committed to extend it to all
sorts of pretended prerogatives, such as the control of the civil ser-
vice and the making of contracts or treaties.
9
Jenkins v. Att.-Gen. 119711 Current Law 1628.
10
The Law of the Constitution (10th ed.), 425.
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50 Administration
Passports and the Right to Travel

There is another area where the term prerogative is loosely used
and where, in addition, an infusion of law is badly needed. This is
the matter of passports, or perhaps I should call it the citizen's right
to travel. For many years the government has claimed an un-
fettered discretion to grant, deny or cancel a passport without
reasons given or fair procedure or right of appeal or legal remedy,
and in the past this supposed power has been used arbitrarily to
restrict the rights of British subjects to leave the country and also, it
seems, to re-enter it. The Immigration Act 1971 has made a minor
change by providing that a patrial who has the right to leave and
enter the realm freely must on proper request show a passport or
other satisfactory evidence of his identity and nationality.11 But he
may still be unable to enter other countries without a passport and
the denial of it may in practice deny him freedom of travel. In prin-
ciple it is highly objectionable that the executive should claim this
power of administrative punishment, but there is no doubt that it
does. A typical statement comes from the Report of the Committee
of Privy Councillors on the Recruitment of Mercenaries of 1976,
when there was concern over British mercenaries fighting in coun-
tries such as Angola. The Committee said:12
"The issue of a passport is an exercise of the royal prerogative
and the document, when issued to its holder, nevertheless
remains the property of the Crown. No United Kingdom
citizen has a right to have a passport issued to him and the
Foreign Secretary, by whom the prerogative is exercised, can
withhold or withdraw a passport at his discretion."
They then quoted a parliamentary answer enumerating the types of
person to whom it was the practice to refuse passports, one of
which was "in very rare cases":
"a person whose past or proposed activities are so
demonstrably undesirable that the grant or continued enjoy-
ment of passport facilities would be contrary to the public
interest."
11
Sched. 2, para. 4(2) (a). ,
12
Cmnd. 6569 (1976), para. 18, quoting 881 H.C. Deb. (Written Answers)
265.
175
Administration 51
This is a polysyllabic way of describing any one whose activities

are disapproved of by the government.
My first comment, which may not now come as a surprise, is
that I question whether passports have anything to do with the
royal prerogative in its proper sense. A passport as such has no
status or legal effect at common law whatever. It is simply an ad-
ministrative document. On its face it is an imperious request from
the Foreign Secretary that all whom it may concern shall allow the
bearer to pass freely without let or hindrance and shall afford him
assistance and protection. In reality it is an international identity
card, certifying that a traveller is accepted by this country as one of
its nationals. A United Kingdom national's passport does not have
the slightest effect upon his legal rights, whatever they may be, to
go abroad and return. Those rights are a matter of common and
statute law, which the Crown has no power to alter. The Com-
mittee on Mercenaries very rightly said that the withholding or
withdrawing of passports as a means of preventing United
Kingdom citizens from leaving the country could not be justified
either pragmatically or morally—and that what effect it might have
would be based on bluff, relying on the citizen's ignorance of his
right at common law to leave the kingdom and return to it. Since it
has no effect on legal rights, the grant or withdrawal of a passport
is not an exercise of legal power and cannot therefore represent the
exercise of prerogative power. Formerly the Crown did possess the
power to prevent a subject from leaving the realm by issuing the
writ ne exeat regno, which was once a favourite instrument for
preventing the clergy from resorting to Rome. That had legal effect,
and was therefore a true prerogative power, but it is now held to be
obsolete except when granted by the court to a creditor against an
absconding debtor. According to Blackstone, if I may invoke him
again, "by the common law, every man may go out of the realm for
whatever cause he pleaseth, without obtaining the King's leave."13
Passports do not enter into the legal picture at all.
The important question is whether it is tolerable that the govern-
ment should wield an unfettered power to deny to a citizen the in-
ternationally accepted means of proof of his own identity and
13
Comm. i, 265. See the discussion in Parsons v. Burk [1971J N.Z.L.R. 244;
and an article in The Times, August 7, 1968, p.9.
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52 Administration
nationality. No reasons are given and there is no right to be heard,

since the whole matter is administrative and outside the law. In
1968, when the government had taken to withdrawing the
passports of United Kingdom citizens involved in certain ways with
Rhodesia, they set up a committee to scrutinise and report upon
these withdrawals; but it was only advisory, and only concerned
with Rhodesia. Apart from that, there is no procedure or appeal of
any kind, not even a right to complain to the Ombudsman.14 When,
also in 1968, a journalist attempted to travel from London airport
without a passport, as a test case, he was refused leave to embark.15
The authorities evidently knew that he was a United Kingdom
national, who needed no such leave; but they refused to accept his
evidence of nationality and treated him as an alien, apparently
without any good reason. This seems to have been a plain case of
abuse of power, as well as a breach of the European Convention on
Human Rights;16 but since no legal proceedings followed the "test
case" came to nothing. The right to leave without a passport is ap-
parently now recognised. But that by itself is of little use if the
government declines to provide the document which is required for
entry into foreign countries.
This is a murky administrative area where there is a crying need
for clarification and legal right. It needs to be recognised, as the
American Supreme Court has held, that freedom to travel is a con-
stitutional liberty closely related to other basic liberties.17 It needs
to be recognised, also, that the primary function of a passport is
merely to provide evidence of identity and nationality, and that it is
as unreasonable to deny this to a citizen as it would be to deny him
a copy of his birth certificate. Whether the government approves or
disapproves of his activities abroad should have nothing to do with
it. As a committee of Justice recommended in 1974, there should be
a statutory right to a passport and the courts should deal with dis-
14
Parliamentary Commissioner Act 1967, Sched. 3, paras. 1, 5.
15
See 765 H.C. Deb., Written Answers, 119 (May 23, 1968).
16
Articles 2 and 3 of the Fourth Protocol (in force from May 2, 1968) protect
the freedom to leave any country and the freedom to enter one's own country.
17
Aptheker v. Secretary of State 378 U.S. 500, 517 (1964); and similarly Kent
v. Dulles 375 U.S. 116 (1958); Lynd v. Rusk 389 F. 2d 940 (1967). In India the
refusal of a passport at the discretion of the executive is held to violate f he right of
personal liberty secured by Art. 21 of the Constitution: Satwant Singh v.
Ramarathnam A.I.R. 1967 S.C. 1836.
177
Administration 53
puted case's.18 Arbitrary power over liberty of movement is really

not tolerable, however carefully exercised. As in the other matters
which feature in this lecture, there must be some safeguard against
abuse. The safeguard against abuse is the law and the courts. The
modern type of passport is said to have been introduced by Louis
XIV and British practice is still too redolent of his style of
government.
Official Secrecy
Any investigation of murky administrative areas ought to give a
prominent place to official secrecy. But I have two reasons for flit-
ting over it lightly now. First, Sir Norman Anderson surveyed it in
illuminating detail in his Hamlyn Lectures two years ago. Secondly,
it may be wasted effort to flog a dead, or at least a moribund, horse.
It is agreed by all, including governments of both parties, that it is
indefensible to keep on the statute book section 2 of the Act of
1911, which makes it a criminal offence to disclose, without
authority, how many cups of tea are consumed in a government
department. It also seems to be admitted that this absurd law has
become self-defeating, since it has lost credibility in the eyes of both
judges and juries. It is true that nothing has been done, although in
three successive Queen's Speeches two successive governments
have promised legislation. Nevertheless it is accepted on all hands
that the minimum necessity is an Official Information Act on the
lines proposed by Lord Franks' Committee in 1972.19 The real con-
troversy is whether it is sufficient to make this minimum reform or
whether we need a Freedom of Information Act on the lines of the
American legislation which has made such an impact in
Washington. In the United States "the public's right to know" is
championed enthusiastically by Congress, which in 1976 gave to
one of the Acts the official short title of the Government in the
Sunshine Act. More of this American sunshine would be welcome
in what has been called Whitehall's forbidden city. But perhaps this
is now only a matter of time. In the White Paper of 197820 the
former government professed itself willing to go a little further than
18
"Going Abroad, A Report on Passports" (1974), Justice, paras. 48-50.
19
Report of the Committee on S.2 of the Official Secrets Act 1911, Cmnd.
5104(1972).
20
Cmnd. 7285(1978).
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54 Administration
the Franks recommendations in some respects, while wishing to

stop short of them in others. As to a more radical Freedom of In-
formation Act of the American or Swedish type, which would give
the public a legal right of access to official documents not covered
by specific statutory exceptions, the former government's Green
Paper of last year was discouraging.21 But such an Act had been
advocated in the Labour Party election manifesto of 1974; and the
White Paper had gone so far as to say that it regarded its own
proposals "as a necessary precursor of further change, as well as of
improvements of attitudes in the public service."
Still more discouraging, unfortunately, was the abortive Protec-
tion of Official Information Bill of last November, which coincided
with the sensation produced by Mr. Andrew Boyle's book, The
Climate of Treason. This lecture was in proof at that time and I can
squeeze in only a few words. The Bill appeared to achieve the
remarkable feat of being even more objectionable than the Official
Secrets Act. Section 2 of that Act is at least confined to information
derived from official sources, whereas the Bill made it a crime for
any one to disclose information obtained from any source if it fell
within the very wide definitions of protected information, and also
was or had been in the government's possession. Had it been law,
it seems that Mr. Boyle's book would have been prohibited, even
though he obtained his information in the United States under the
Freedom of Information Act. Under cover of the furore the
government withdrew the Bill, which was under attack on many
grounds. So now I must take back my optimistic remarks. The bat-
tle which seemed virtually to have been won is still hanging in the
balance.
It may be worth pointing out, as I ventured to do to the Franks
Committee, that the campaign for a civilised Information Act is
part of a wider war against official secretiveness, which on other
fronts really has been won. It is not so very long since the citadel of
secrecy was defended, seemingly impregnably, by four stout
bastions: first, the Official Secrets Act; secondly, the concealment
of departmental mistakes by an over-rigid doctrine of ministerial
responsibility; thirdly, the refusal to disclose inspectors' reports
21
Cmnd. 7520(1979). See also Disclosure ofOfficial Information:^ Report on
Overseas Practice (HMSO, 1979), reviewing arrangements in nine other countries.
Canada is now enacting a Freedom of Information Bill.
179
Administration 55
after public inquiries; and fourthly, abuse of so-called "Crown

privilege" under which the government used to claim that litigants
must be denied access to evidence needed to establish their rights if
the evidence fell within the very wide classes which were officially
confidential. This last malpractice was brought to an end by a
judicial decision of the House of Lords in 196822 which was
another of the milestones on the road of reform which the courts
were opening up at that time. The second bastion, founded on the
fallacy that it was constitutionally impossible to go behind the
answer of the responsible minister in Parliament, was blown sky-
high in 1967 when the Parliamentary Commissioner was given
power to go into the department and find out exactly what had
gone wrong where. The third bastion, the non-publication of
inspectors' reports, was evacuated in 1958 by a strategic govern-
mental retreat after an earlier Franks Committee had rendered it
untenable. One bastion only still holds out. After Fox's Libel Act of
1792 governments found that they could, after all, survive without
prosecuting any one who criticised them, as they had previously
believed was essential. In the same way they will find that they can
live with a more liberal information law, just as they can live with
the Parliamentary Commissioner, the disclosure of inspectors'
reports and judicial control of claims to privilege.
Government by Blacklist
Two years ago there was strong complaint about the government's
blacklist, an instrument of oppression which combined both con-
stitutional and legal impropriety. The government, like so many of
its predecessors, was attempting to enforce wage control, but it was
unwilling to seek powers from Parliament. Instead it resorted to a
kind of clandestine administrative warfare. If a firm awarded a
wage increase which was more than the government approved, the
government put the firm on the blacklist, meaning that it would be
discriminated against in the exercise of discretionary powers.
Government contracts would not be given to it, it would be denied
export credits, investment grants, and any other benefit which a
minister controlled. For some time there was a game of hide and
seek with the government refusing to confirm or deny what it was
doing. But when it all came out into the open there were reports of
22
Conway v. Rimmer 119681 A.C. 910.
180
56 Administration
finance under the Industry Act being refused to a furniture factory

and of a threat to make an order against an insurance company
forcing it to reduce its premiums. The legality of this technique of
coercion was not tested in the courts, though it assuredly would
have been had not the pay policy collapsed. But one firm, which
was threatened with the loss of government contracts, published an
opinion given to it by leading counsel, from which I quote the
following sentences:23
"All this is sought to be justified as being a mere exercise by
the government of the same freedom to contract as is enjoyed
by an individual. But, while an individual can do anything
which is not contrary to the criminal or civil law, the govern-
ment is subject to the rule of law in a wider sense.
This usurpation of power by the executive is of profound con-
stitutional significance. If permitted, it will enable the govern-
ment of the day to enforce its party policies under the pretext
of the national interest without recourse to Parliament."
That is surely fair comment. If the government wishes to take new

powers, it is fundamental to our constitution that it should seek
them from Parliament, and that they should be conferred by Parlia-
ment, if at all, under the due forms of law, i.e. by statute. The
powers are then defined and the courts can protect the citizen in
case of their abuse. To attempt to govern without Parliament by
abuse of miscellaneous powers, in the manner that the Stuart kings
did by abuse of the royal prerogative, is a complete repudiation of
primary constitutional principle. The Stuart kings at least had the
excuse that the legislation they wanted was difficult to obtain,
something which no government can plead under our present party
system.
The blacklist policy appears to have had an ample content of
downright illegality as well as of constitutional impropriety. But
here a distinction must be made. In placing its contracts as and
how it wishes the government is exercising the ordinary liberty
possessed by any one (and I hope no one will call it prerogative).
The government's duty not to abuse that liberty is constitutional
rather than legal. It is hardy possible to imagine a court of law
23
The Times, February 18, 1978.
181
Administration 57
giving a remedy for the withholding of contracts from a firm which

would otherwise have received them, assuming of course that there
is no breach of contract or other illegality. Unconstitutional, yes;
illegal, no. But it is different where the means of coercion is the dis-
criminatory exercise of discretionary power conferred by statute.
Statutory powers must be exercised for the true purposes of the
statute, and Parliament will be assumed to have intended them to
be exercised fairly, reasonably and in good faith. To refuse export
credits under the Export Guarantees legislation, to refuse benefits
under the Industry Act, to make damaging orders against insur-
ance companies under the Insurance Act, all for purposes entirely
foreign to those statutes, must assuredly be illegal as well as un-
constitutional. These would be plain cases of acting on what the
courts call irrelevant considerations. They would contain the ele-
ment of illegality which was prominent in the case of the television
licences: the use of powers intended for quite different purposes in
order to penalise the citizen for doing what is entirely lawful. This is
a method of government which all who care for the constitution
and the rule of law ought to unite to condemn.
At one time the Government of the United States used to
attempt to enforce its prices policy by means of administrative
harassment such as anti-trust investigations. But, like the Stuarts, it
could at least say that it was unable to get powers from the
legislature. An American friend once told me of his experience as a
price control officer during the war. When he told his chief that he
did not think the law was strong enough the reply was: "Don't
worry about that. If they give any trouble we'll put the inspectors
on them." That meant that they would have relays of health and
safety inspectors condemning their buildings, their elevators, their
fire escapes, their wiring, their drains and so on. That would soon
teach them a lesson. At the time I thought how much better these
matters were ordered in Britain. But now I doubt.
Extra-statutory Concessions
A sort of negative counterpart to the blacklist is the extra-statutory
concession. This is an act of administrative mercy, softening the
rigour of the law. Extra-statutory concessions play a considerable
part in tax administration, so much so that the Inland Revenue
182
58 Administration
publishes a booklet which sets out many of them as a kind of code.

For example, cash paid to miners in lieu of their customary
allowance of free coal, even if in law taxable income, is by admin-
istrative concession not taxed. It may seem churlish to criticise the
authorities for such indulgences, but they also represent an attempt
to govern without Parliament in a manner which has provoked
strong language from the judges. A recent case24 concerned income
from a big property settlement which the Inland Revenue claimed
was in strict law taxable several times over. Since this was, in the
words of Walton J., "a monstrous injustice," the Inland Revenue
proposed by administrative concession to reduce the liability to
what they considered reasonable. Humane as their motives were,
the learned judge said that, like many judges before him, he was
totally unable to understand upon what basis the Inland Revenue
were entitled to make these concessions or why, as in the case of
the miners' coal money, one section of the community should be
favoured but not others. It has just been reported that the House of
Lords agreed with him and that Lord Wilberforce described taxa-
tion by administrative discretion as "a radical departure from con-
stitutional principle."
Lord Radcliffe once said in the House of Lords that he had never
understood the practice of extra-statutory concessions when the
Inland Revenue had access to Parliament in the Finance Bill at
least once a year.25 Lord Upjohn, in a case where an indefensible
tax anomaly had been left unamended for 16 years, said:26
"Instead, the Commissioners of Inland Revenue, realising the
monstrous result of giving effect to the true construction of the
section, have in fact worked out what they consider to be an
equitable way of operating it which seems to them to result in
a fair system of taxation. I am quite unable to understand
upon what principle they can properly do so."
This technique of preserving oppressive legislation but taking a free
hand to temper its operation administratively was attacked with
spirit by Walton J. as an illegal exercise of the dispensing power,
24
Vestey v. I.R.C. (No. 2) 11979] Ch. 198 (Walton J.); U979J 3 W.L.R. 915
(H.L.).
" I.R.C. v. Frere 11965J A.C. 402 at p.429.
26
I.R.C. v. Bates 11968J A.C. 483 at p.516.
183
Administration 59
contrary to the Bill of Rights and taking us back to the days of the
Star Chamber. To this a pedant like myself may demur. The dis-
pensing power, as exercised by James II and condemned by the Bill
of Rights, purported to be a legal power to exempt individuals from
the effect of statutes in a manner which a court of law would
recognise. That feature at least is missing from extra-statutory con-
cessions since the Inland Revenue, to do them justice, at least make
no claim to a legal amending power.
A fascinating case seemed to be in the making last year when it
was announced that the Inland Revenue were proposing a "tax
amnesty" for a class of printing workers in the newspaper industry
who were thought to have had some very high earnings which had
escaped taxation. The interesting aspect here was that the legality
of the amnesty was challenged by the National Federation of Self-
Employed which was given leave by the High Court to apply for a
declaratory judgment and an order of mandamus to compel the
Inland Revenue to collect the tax. At the moment of writing the
latest news is that the Queen's Bench Divisional Court has refused
relief on the ground of insufficient interest on the part of the
Federation.27 But an appeal is pending, and it may be relevant that
Lord Wilberforce, in his judgment cited above, said that the Inland
Revenue had a legal duty to assess and levy tax upon those liable
by law to pay it.
* * *
I have sometimes wondered whether administrative practices of
the kind upon which I have ventured to animadvert in this lecture
were fostered by the polarity between the legal and administrative
mentalities which is so marked in our system of government. In
other countries, whether in Europe, North America or Australasia,
it seems to be common for entrants to the highest class of the civil
service to have had some training in law. In Britain it is the excep-
tion. Trained lawyers are extremely sparse in our public service, ex-
cept in the technical capacity of legal advisers. In other words, they
have little say in policy-making. On many matters, of which I have
given only a few examples, there is a distinct legal point of view,
which is perhaps under-represented at the higher levels of the ad-
ministrative machine where so much discretionary power is exer-
cised. I think, or at least I hope, that officials with legal education
" The Times, November 23, 1979.
184
60 Administration
and training would understand that, merely because a statute says

baldly that the Home Secretary may revoke a television licence, it
does not follow that he may do so in order to penalise citizens for
acting lawfully; that if a statute says that there shall be competition
in civil aviation, it is not right to try to eliminate it by administrative
manipulation; that there are deep constitutional and legal objec-
tions to government without Parliamentary authority, whether by
blacklist or by extra-statutory concession. In the welter of
governmental powers public opinion has, I am afraid, allowed too
many things of this kind to pass without much protest. It is at least
a gain that the Parliamentary Commissioner and the local Com-
missioners now keep watch and ward to monitor the work of ad-
ministration and to remedy lapses from the high standards which it
normally upholds. The Commissioners and the courts between
them have sent a healthy breeze through the administrative tree-
tops and I am sure that important lessons will have been learnt.
185
CHAPTER FIVE
ADJUDICATION
Executive Power and Judicial Policy

Many of my 31 predecessors on the Hamlyn rostrum have dis-
cussed the work of the judiciary and the challenges which confront
them in attempting to adjust the law to the tremendous speed of
change in the conditions of life in this century. But none of them
has taken as his main theme the position and powers of British
judges vis-a-vis the powers of the state. Professor Hamson in 1954
made their lamentable position at that time the starting-point for his
discussion of the Conseil d'Etat in France, which aroused great in-
terest not unmixed with envy. Lord MacDermott in 1957 devoted
part of his lectures on Protection from Power to the powers of
Parliament and the Executive. Sir Kenneth Wheare in 1973
naturally included the courts in his review of agencies which could
remedy maladministration. By that time the judges had recovered
much of the confidence which they seemed to have lost when
Professor Hamson and Lord MacDermott gave their lectures. In
the following year Lord Scarman made a strong point of the need
for a solution of the problems of administrative law, which was, he
said, vital to the survival of the rule of law. He was thinking of the
social security system and of the need for the legal profession to
adapt itself to welfare administration and the world of statutory
tribunals, which was the subject of Professor Street's lectures in
1968. But his words are equally true on the constitutional plane,
where the problem is to strike the right balance between efficient
government on the one hand and the protection of the citizen
against misgovernment on the other. This balance has been sharply
redressed in favour of protection of the citizen in the last 15 years
or so, and in my previous lecture I mentioned some of the more
sensational judicial exploits by which this has been achieved. Since
this has been the outstanding feature of judicial policy during this
time, I put it in the forefront of my remarks about adjudication.
Today no apology is needed for talking openly about judicial
policy. Twenty or thirty years ago judges questioned about admin-
istrative law were prone to say that their function was merely to
186
62 Adjudication
give effect to the will of Parliament and that they were not con-
cerned with policy. In reality they are up to their necks in policy, as
they have been all through history, and nothing could illustrate this
more vividly in our own time than the vicissitudes of administrative
law. In the period of their backsliding they declined to apply the
principles of natural justice, allowed ministers unfettered discretion
where blank-cheque powers were given by statute, declined to con-
trol the patent legal errors of tribunals, permitted the free abuse of
Crown privilege, and so forth. Then in the 'sixties, when the public
reaction against administrative injustice had become too strong to
be ignored, the judges executed a series of U-turns which put the
law back on course and responded to the public mood. The choice
of policies before them was wide indeed. One policy was to fold
their hands and look no further than the letter of the statute before
them. This is what they did in the 'fifties, when in Professor Ham-
son's words, "provided the forms have been respected the High
Court normally declares itself disarmed." The other policy, which
they are following now, is to build up a code of rules of administra-
tive fair play which they take for granted as intended by Parliament
to apply to all statutory powers, and perhaps even to prerogative
powers, and to insist on preserving their jurisdiction even in the
face of legislation purporting to exclude it. They had the choice, in
other words, between retiring from the field of administrative law
and developing it as an effective system. This was a choice between
extremes, and entirely a matter for the judges. Many more choices
will need to be made, now that the forward policy is in the ascen-
dant. Lord Denning M.R. spoke with refreshing candour in the
case where the Court of Appeal, with no precedent before them,
awarded damages against a local authority for negligently ap-
proving bad foundations laid by a builder: "In the end," he said, "it
will be found to be a question of policy, which we, as judges, have
to decide."1
The Renaissance of Administrative Law

Looking back across two decades, we can now see that the turning
point of judicial policy came in 1963 with the case of Ridge v.
1
Dutton v. Bognor Regis U.D.C. 11972] 1 Q.B. 373, 391.
187
Adjudication 63
Baldwin.1 The House of Lords there reasserted, as an essential part

of the rules of administrative fair play, the principle that a man is
entitled to a fair hearing before being made to suffer under
statutory power. So when a local police authority dismissed their
chief constable from his office without a fair hearing, the dismissal
was held void in law. When Lord MacDermott gave his Hamlyn
lectures in 1957 he had to lament the fact that the principles of
natural justice did not apply to administrative action. The House of
Lords held that this was entirely wrong, one of the great judicial
delusions of the post-war years. Ridge v. Baldwin reverberated
round the British Commonwealth where many judges had been
perplexed by the unwillingness of our courts, including the Privy
Council, to require the observance of natural justice in administra-
tive cases. A torrent of litigation was then generated in which the
courts had not only to define the principle but also to work out the
details, dealing with the right to know the opposing case, and
whether there is a right to legal representation, cross-examination,
and so forth. The law is still developing, but the important thing is
that the courts once again accept, as they had always done except
in their period of amnesia, that part of their duty was to require
public authorities to respect certain basic rules of fairness in exer-
cising power over the citizen.
All this was in the sphere of procedure. Another five years were
to pass before there began an equally dramatic transformation in
the sphere of substance. This was brought about by the decisions
concerning abuse of discretionary power which I mentioned briefly
in my previous lecture. In the Padfield case3 the House of Lords
rejected the whole notion of unfettered executive discretion, dear
though it was to the hearts of Crown counsel. The essence of their
decision was that all statutory power is given for the proper pur-
poses of the statute and for them only: any action which conflicts
with those purposes, or is taken for extraneous reasons, cannot be
authorised by the statute. So the Minister of Agriculture and
Fisheries could not refuse to refer dairy farmers' complaints to the
statutory committee under the milk marketing scheme when the
situation was exactly that for the which committee was constituted
by the Act. This doctrine was carried a step further in the Laker
2
119641A.C. 40.
3
Padfield v. Minister of Agriculture, Fisheries and Food 119681 A.C. 997.
188
64 Adjudication
Airways case,4 where the Court of Appeal held that action conflict-
ing with the purposes of the Act might be not merely unauthorised
but prohibited. That meant that action taken by the government
outside the Act, under the so-called royal prerogative, was illegal if
it was intended to frustrate the policy of competition between air-
lines enshrined in the Civil Aviation Act. Then in the Congreve
case5 the Court condemned the revocation of television licences
when used as a means of extorting money which licence-holders
were under no liability to pay. In the Tameside case6 about com-
prehensive versus grammar schools, where the political content was
greater but the legal issue simpler, the Secretary of State had
attempted to dictate policy to the local education authority by in-
voking what was in effect an emergency power when there was no
real emergency but merely a difference of opinion.
I have already commented on these events from the standpoint
of administration, noting the unfortunate tendency to strain the
wide discretionary powers which it is so easy for governments to
obtain from Parliament. From the judicial standpoint, do they
represent a straining of the proper powers of the court? Before dis-
cussing this I must add one more to the list, the famous Anisminic
case,7 which to the outside observer, at any rate if he is literal-
minded, might seem to be the ultimate in judicial enterprise. The
Act in question there provided that a determination of the Foreign
Compensation Commission "shall not be called in question in any
court of law." But the Commission's ruling against the Anisminic
company's claim was allowed to be challenged successively in all
the superior courts, ending in the House of Lords where, as a fitting
climax, it was held to be void. There was no doubt about the inten-
tion of the Act: the Foreign Compensation Commission has to dis-
tribute a fund which is never enough to satisfy all the claims, and
the object of making its decisions final was to enable the dividend
to be fixed and paid without long legal delays. Yet the House of
Lords, drawing on respectable precedents extending over several
centuries, felt entitled to disregard the express ban on litigation in
4
Laker Airways Ltd. v. Department of Trade 11977J Q.B. 643.
5
Congreve v. Home Office 11976) Q.B. 629.
6
Secretary of State for Education and Science v. Tameside Metropolitan
Borough Council [1977] A.C. 1014.
1
Anisminic Ltd. v. Foreign Compensation Commission [1969] 2 A.C. 147.
189
Adjudication 65
any case Mere the Commission was acting outside its jurisdic-
tion—as, by sophisticated reasoning, the majority held that they
had done. The net result was that they had disobeyed the Act,
although nominally they were merely construing it in a peculiar but
traditional way. Here again is a remarkable instance of judicial
policy on the constitutional level. The judges appreciate, much
more than does Parliament, that to exempt any public authority
from judicial control is to give it dictatorial power, and that this is
so fundamentally objectionable that Parliament cannot really in-
tend it. So they have adopted the policy of confining such
provisions to the narrow class of cases where there is error but no
usurpation of power, or, in technical terms, no excess of jurisdic-
tion. Two years ago the Court of Appeal decided that the House of
Lords had now made that class so narrow that it no longer existed.8
If this paradox is right, it will mean that clauses excluding the
courts will be left with no meaning at all and that the judges will be
unable to deny that they are flatly disobeying Parliament. So it is a
situation full of constitutional as well as technical interest. All law
students are taught that Parliamentary sovereignty is absolute. But
it is the judges who have the last word. If they interpret an Act to
mean the opposite of what it says, it is their view which represents
the law. Parliament may of course retaliate—but of that more in a
minute.
Legislative and Judicial Policies in Conflict

There is an ancient saying that it is the part of the good judge to ex-
tend his jurisdiction.9 The striking cases that I have been mention-
ing have caused some people to raise the question whether the
judges have been practising this virtue to excess, even though the
decisions follow logically from principles which have been familiar
for centuries. It is not only executive power which is open to abuse.
Judicial power may be abused, and it is not so long since a cabinet
minister in the House of Commons accused a High Court judge of
being "trigger-happy."10 Even if the charge was both unfair and out
of order, it shows that judges have been thought, in some quarters
8
In the Pearlman case (n. 12, below).
9
See(1968)84L.Q.R. 170.
10
873 H.C. Deb. 239 (May 7, 1974).
190
66 Adjudication
at any rate, to be pushing their powers to the limit. But there is a

third corner of the eternal triangle: Parliament. There can be abuse
of legislative power, not indeed in the legal sense, but in a distinct
constitutional sense, for example if Parliament were to legislate to
establish one-party government, or a dictatorship, or in some other
way were to attack the fundamentals of democracy. But, as I have
just observed, to exempt a public authority from the jurisdiction of
the courts of law is, to that extent, to grant dictatorial power. It is
no exaggeration, therefore, to describe this as an abuse of the
power of Parliament, speaking constitutionally. This is the justifica-
tion, as I see it, for the strong, it might even be said rebellious, stand
which the courts have made against allowing Acts of Parliament to
create pockets of uncontrollable power in violation of the rule of
law. Parliament is unduly addicted to this practice, giving too much
weight to temporary convenience and too little to constitutional
principle. The law's delay, together with its uncertainty and ex-
pense, tempts governments to take short cuts by elimination of the
courts. But if the courts are prevented from enforcing the law, the
remedy becomes worse than the disease. Lord Atkin summed it up
with his usual felicity when he said: "Finality is a good thing, but
justice is a better."11
The same lesson may be learned from the case in the Court of
Appeal which I have just been mentioning.12 A tenant was claiming
the benefit of the Leasehold Reform Act 1967, under which, if the
value of his house was low enough, he could expropriate his
landlord without compensation. I will not digress to consider
whether that Act was itself an abuse of power in the constitutional
sense, as it would be in several countries with constitutions which
safeguard rights of property, and as it may be under the European
Convention on Human Rights and Fundamental Freedoms, to
which this country is a party.13 The point here is that the value of
the house had to be assessed by the county court, and that for this
purpose Parliament had taken away the normal right of appeal to
the High Court on a point of law. The County Courts Act 1959
11
Ras BehariLal v. King-Emperor (1933) 60 I.A. 354, 361.
12
Pearlman v. Harrow School 119791 Q.B. 56.
13
The First Protocol (article 1) provides that "no one shall be deprived of his
possessions except in the public interest." The Act allows the tenant to expropriate
the freeholder for his private benefit only.
191
Adjudication 67
provided also that county court judgments should be immune from

judicial control except by way of appeal, so when Parliament took
away the right of appeal in the Leasehold Reform Act all roads to
the courts were barred. This was presumably intended to make
things easier for tenants when expropriating their landlords. But on
the point at issue, which was whether central heating installed by a
tenant was in law within the class of improvements which he could
deduct from the overall value, different county courts in different
districts were giving different decisions, and Parliament had cut off
the only means of settling the matter decisively. It was the tenant
who was anxious to go to the Court of Appeal, where he won his
case. But he was only able to do so because the Court refused to
obey the statutory veto. This makes a textbook example of the mis-
guided policy of preventing the higher courts from doing what they
exist to do.
Direct attacks on the jurisdiction of the courts, as in the original
Foreign Compensation Act, are relatively rare. A much commoner
phenomenon is the indirect attack, which is made by granting
power in such wide and subjective terms that there appears to be
nothing left for the court to judge. The technique here is to give
power conditioned merely by such phrases as "if the minister is
satisfied," "if the minister is of opinion," or "if it appears to the
minister." This is a favourite formula with Parliamentary draftsmen
in their unwearied attempts to create uncontrollable discretion, the
intention being that the minister need only swear an affidavit
declaring that he had the necessary satisfaction or other state of
mind for the court to be precluded from inquiring whether facts
really existed which would justify exercise of the power. For over
40 years the judges have been showing signs of resistance to these
insidious provisions and now in the Tameside case14 the House of
Lords has confirmed that they are not to be disarmed so easily. The
Education Act allowed the Secretary of State to dictate policy to
the local education authority "if the Secretary of State is satisfied"
that they are acting or proposing to act unreasonably. Mr. Mulley
was entirely satisfied in his own mind that the grammar schools
should be replaced by comprehensives, so he proceeded to inter-
vene. Both the Court of Appeal and the House of Lords explained
to him that he had misunderstood the Act. If he was required to be
14
N. 6, above.
192
68 Adjudication
satisfied that certain facts existed, particularly if they involved an

imputation of some one's acting discreditably or unreasonably, it
was for the court to inquire whether those facts existed and whether
the Secretary of State had directed himself properly about them.
Since there was merely a difference of policy between him and the
local authority, and neither policy could be said to be unreasonable
in the legal sense, Mr. Mulley's intervention was unjustified. In such
a case, therefore, the courts treat the formula "if the Secretary of
State is satisfied that a local education authority is acting un-
reasonably" as meaning "if in fact a local education authority is
acting unreasonably"—or, since it is the same thing, "if the court
is satisfied that a local education authority is acting unreasonably."
Liberties are taken with the literal meaning of the words which,
though not so daring as the liberties taken in cases like Anisminic,
are just as necessary if the judges are to make any effective
resistance to Parliament's attempts to deprive them of their proper
function. It is abuse of legislative power, as well as abuse of
executive power, against which they are fighting.
Antagonism or Toleration?
Brainwashed though British lawyers are in their professional in-
fancy by the dogma of legislative sovereignty, they ought to excuse
rather than criticise the logical contortions and evasions to which
judges must resort in their struggle to preserve their powers. I do
not see how they can fairly be accused, to borrow words used by
Lord Devlin, of moving too far from their base. They would be
much more open to criticism if they remained content with the
wretchedly narrow base to which they confined themselves 30
years ago, when they took clauses of the "if the minister is
satisfied" type at face value. For judicial control, particularly over
discretionary power, is a constitutional fundamental. In their self-
defensive campaign the judges have almost given us a constitution,
establishing a kind of entrenched provision to the effect that even
Parliament cannot deprive them of their proper function. They may
be discovering a deeper constitutional logic than the crude absolute
of statutory omnipotence.
It is high time, as it appears to me, that Parliament itsdlf woke up
to these issues and ceased to enact legislation in terms which drive
193
Adjudication 69
the judges tb evasive action. A section removing certain restrictions

on judicial review was, indeed, incorporated in the Tribunals and
Inquiries Act 1958 (now 1971),15 on the recommendation of the
Franks Committee, and so far as it goes it is beneficial. But there is
a need for closer scrutiny of this aspect of legislation, which at
present seems to arouse little interest in either House. If subjective
conditions and similar devices were not so freely used, there would
be less need for the courts to spin the webs of sophisticated reason-
ing which may entangle ministers. Furthermore, it has become evi-
dent that the process is counter-productive. The more governments
try to give themselves uncontrollable power, the more the courts
frustrate them by extending the categories of review. Since these
categories are formulated in general terms, such as acting on irrele-
vant grounds or for purposes not connected with the statute, the
end result is likely to be more judicial control rather than less. An
example is the case under the Leasehold Reform Act which I have
already instanced. If Parliament had not removed the right of
appeal, the Court of Appeal would not have been driven to
propound a sweeping doctrine which goes even beyond the high-
water mark set by the House of Lords in Anisminic, and allows the
court to interfere whenever there is any kind of mistake of law,
notwithstanding a clause in the Act forbidding it to do so.
Some comments on the Padfield and Tameside cases were
published by Lord Devlin,16 who raised the question whether in the
Padfield case the courts might have "moved too far from their
base." Their base, he said, was the correction of abuse. He was
content with the present approach of the judges in general, but
seemed to think that they may have gone too far in Padfield. His
two punch lines are these: "judicial interference with the executive
cannot for long greatly exceed what Whitehall will accept"; and
"The British have no more wish to be governed by judges than they
have to be judged by administrators." One can see the element of
truth in both statements, but they savour more of the 'forties and
'fifties, when the law was at its nadir, than of the 'sixties and 'seven-
ties when it has been recovering. Lord Devlin spoke of possible
retaliation by Acts providing that a minister's decision may not be
reviewed in any court of law. "And that," he says, "puts the lid
15
s. 11 (1958); s. 14(1971).
16
The Times, October 27, 1976, p. 12.
194
70 Adjudication
on." But the Anisminic case showed just the opposite, when the
House of Lords removed the lid and threw it away.
And did Whitehall put the judges in their place, in the way Lord
Devlin suggests? Again, just the opposite. It is true that at first the
government proposed to retaliate with an Act purporting to "put
the lid on" and disarm the courts entirely. But legal opinion
mobilised against it, pointing out that it was contradictory to lay
down the law about foreign compensation but then to prevent the
courts from seeing that it was correctly applied. Thereupon, to their
credit, Whitehall gracefully yielded and Parliament made provision,
within reasonable limits, both for judicial review and for a right of
appeal.17 So instead of being punished for their disobedience to an
Act which had tried to "put the lid on," the judges emerged
stronger than before and still on speaking terms with Whitehall. So
long as they choose their ground equally prudently, and so long as
Whitehall reacts with equal good sense, fears about putting the lid
on should prove chimerical.
If we respect what little there is of our own constitution, it ought
not to be left to Whitehall to say how much judicial control they
will or will not tolerate. It is just as much for the judges to say how
much abuse of power they will or will not tolerate. This is the part
that the constitution assigns to them and they should be allowed to
play it, free from threats and accusations and without talk of
government by judges. Perhaps it would be too much to hope that
this country should be like Australia where, incredible as it may
seem, senior civil servants advocate more judicial review as a
stimulus to efficiency and morale. But I see no reason to suppose
that Whitehall will fail to understand the need for a better
equilibrium than our lopsided constitution provided only a few
years ago. There was, it is true, the somewhat bizarre incident in
the Congreve case where counsel for the Home Office told that
Court of Appeal that if they interfered with the revocation of the
TV licences "it would not be long before the powers of the court
would be called in question." Lord Denning took this as not said
seriously, but "only as a piece of advocate's licence"; and counsel
later made an elaborate apology to the court.18 There seems to be
no need to magnify this unusual incident or to treat it as evidence of
17
Foreign Compensation Act 1969, s. 3(2), (10). *
18
The Times, December 9, 1975.
195
Adjudication 71
machiavellian designs in Whitehall. The unjustified revocation of

the TV licences was as plain a case of abuse of power as there
could be, and if Whitehall would not tolerate that it would tolerate
very little judicial review at all.
Progressive Commonwealth Legislation

That other governments accept the need to strengthen the hand of
the judiciary may be seen in reforms recently made overseas. Im-
portant studies have been made in Canada and Australia and, what
is more, they have been followed by legislation. The scope of
judicial review was extended in Canada in 1971 both by the
Federal Court Act and by the Judicial Review Procedure Act of
Ontario. It has been extended in Australia by the Administrative
Decisions (Judicial Review) Act 1977, which together with the Ad-
ministrative Appeals Tribunal Act 1975 forms part of an important
package of legislation for the strengthening of administrative law at
Commonwealth level. To a certain extent this legislation corres-
ponds to the reforms made in Britain in 1958 by the Tribunals and
Inquiries Act, in 1967 by the Parliamentary Commissioner Act and
in 1977 by the rules of court which reformed the procedures for ob-
taining the various remedies. But to a certain extent also it goes
further. It abolishes the traditional but illogical distinction between
those errors of law which appear on the face of the record and
those which do not, so that the court is no longer prevented from
quashing a legally erroneous decision merely because it does not
display its error on its face. The Australian Act, furthermore, gives
a right to a written statement of findings of fact and reasons for
wide classes of administrative acts and decisions not covered by
our own Tribunals and Inquiries Act. It also catalogues the various
heads of judicial review, confirming a number which might other-
wise have been doubtful, such as lack of evidence to justify a deci-
sion. It does not fall into the trap that sometimes ensnares codifiers,
by failing to provide for future developments. For it leaves an open
door for acts and decisions which would be "otherwise contrary to
law" or would in any way constitute abuse of power.
The whole tenor of this enlightened Act is to confirm and con-
solidate the jurisdication of the courts in all the areas which have
now been opened up, without prejudice to the future. In addition,
196
72 Adjudication
the Administrative Appeals Tribunal Act constitutes an Adminis-

trative Review Council charged with the task of monitoring the
operation of administrative law in the Commonwealth sphere. This
is an advisory body comparable in some ways to the British Coun-
cil on Tribunals, but with much wider terms of reference. It has to
inquire into the adequacy of the law and practice relating to judicial
review and recommend improvements. It has also to keep under its
scrutiny the classes of administrative decisions which are not sub-
ject to review, whether by court or tribunal, and make recommen-
dations if it considers that they should be. It may propose ways and
means of improving the procedures for the exercise of ad-
ministrative discretions. It is concerned with the constitution and
procedures of statutory tribunals and similar bodies. It will have a
programme of research. All this activity adds up to a
superintendence over the whole of federal administrative law. It
was a body of just this kind that Lord Scarman in his Hamlyn Lec-
tures advocated for Britain, I hope not in vain.
It follows, and here again there is a contrast with our own Coun-
cil on Tribunals, that the membership of the Administrative Review
Council is primarily legal. Its members must have extensive experi-
ence in public administration or else extensive knowledge of admin-
istrative law. The Chairman of the Law Reform Commission is an
ex officio member. Mr. Justice Brennan, the President of the strong
team which began work in 1976, wrote in his foreword to the
Council's first report that the size of its charter was large and it was
hard to overstate the importance of the issues encompassed by it.
"They concern the balance between the citizen and the
government," he wrote, "a balance which is critical to a free
society." When the Council first met the Attorney-General told it
that under the new legislation Australia would have, at the Federal
level, one of the most advanced systems of administrative law in the
world.
Antipodean and European Comparisons
In case you disbelieve what I said earlier, that in Australia the ex-
tension of judicial review is favoured even by civil servants, let me
quote two Australian experts, authors of a valuable book. They
say19:
19
Whitmore and Aronson, Review of Administrative Action, 33.
197
Adjudication 73
"During discussions with the Bland Committee many senior

public servants, including permanent heads of departments,
expressed no opposition to either tribunal or judicial review;
they recognised the possibilities of error and thought that in
these times the public should not, and would not, accept arbi-
trary decisions reached by public servants in private
—especially when those decisions adversely affected indivi-
dual rights and interests. Many thought that a system of
review would not only serve the ends of justice but also that
efficiency and morale in the public service would be im-
proved. .. They also could see major advantages in the idea of
an administrative court or division because the judges would
then come to understand more clearly the problems faced by
administrators. At some high level seminars too, we have
witnessed a curious situation in which professional lawyers
and academic administrative lawyers urged a restrained ap-
proach towards judicial review whilst senior administrative
officers advocated extension of review."
What a utopia for lawyers like myself, who have always contended
that administrative law was the friend and not the enemy of good
administration. There is no reason whatever to suppose that this
means government by judges. It means government by govern-
ments, but within a framework of rules, the judges being the um-
pires. If I may repeat, I know of no reason for thinking that the
attitude of senior officials in this country is different from that of
their opposite numbers in Australia, though certainly it is tacit
rather than explicit.
It is interesting that the Australian officials expressed a
preference for an administrative court or division. New Zealand led
the way in establishing an administrative division of the High Court
by the Judicature Amendment Act 1968, under which administra-
tive cases, whether on appeal or on review, were allotted to one
division which could thus deal with them expertly and consistently.
In England at this time some cases went to a single Queen's Bench
judge, others to a Queen's Bench Divisional Court, others to the
Chancery Division, according to the ancient jurisdictional
divisions, even though these had been swept away by the
Judicature Acts a century earlier. It might have been devised as a
198
74 Adjudication
system for producing the minimum of convenience and the maxi-

mum of diversity of judicial opinion. But now the judges have
themselves supplied the remedy, by giving effect under rules of
court to the recommendations of the Law Commission.20 Applica-
tions for judicial review are now concentrated in the Queen's Bench
Divisional Court, so that for practical purposes we have the
equivalent of an administrative division. This arrangement is, in my
opinion, much to be preferred to a special administrative court with
a legally distinct jurisdiction, since the definition of the jurisdiction
would give rise to endless problems. Any one who has studied the
law which in France governs the respective jurisdictions of the civil
and the administrative courts will need no further persuasion on
that point. In our own country administrative law has always been
deeply enmeshed with the general law, and so, as it seems to me, it
ought to remain, at any rate so long as the results are satisfactory.
We need no longer look enviously across the Channel as Professor
Hamson did in 1954. With judicial review in the hands of the
regular judges, but funnelled through a specialised division, we
have the means of obtaining the best of both worlds. In 1954 there
may have been a case for unscrambling the omelette, but in 1980
we have, I trust, said goodbye to all that.
My philosophy is far from that of Dr. Pangloss, however, and a
good deal of my life is spent in criticising the existing law. But
speaking generally, I think that the work of the judges has now
rebuilt administrative law to the point where it can stand com-
parison with other legal systems and may in some respects claim
the advantage. May I vouch to warranty Lord Diplock, speaking in
the House of Lords in February 1977:21
"In October last, under what I think was a false trade descrip-
tion bestowed upon me by my noble and learned friend on the
Woolsack, I attended a meeting of the heads of the supreme
administrative courts of the EEC countries in The Hague. The
unanimous opinion of all of us was that the result of the
method of reviewing abuse of governmental power on the
grounds of a breach of fundamental rights would, on similar
facts, have substantially the identical result in all nine of those
20
R.S.C., Ord. 53, made by S.I. 1977 No. 1955, based on Law Com. No. 73,
Cmnd. 6407(1976). *
21
379 H.L. Deb. 993 (February 3, 1977).
199
Adjudication 75
countries, except that in two of them there are some doctrines

in relation mainly to legislative acts which have not yet been
embodied in English administrative law."
These exceptional doctrines, Lord Diplock explained, were the
principle of proportionality and the principle of reasonable expecta-
tion. "Proportionality" requires that penalties should be reasonable,
i.e. that the punishment should fit the crime; and it has in fact been
applied in England in the decision that a market stall-holder cannot
be deprived of his licence and his livelihood for a trifling offence.22
"Reasonable expectation" requires that a licence-holder should not
suffer loss from incurring expenditure in the reasonable expectation
of renewal of his licence. But I am far from sure that the doctrine of
reasonableness, which has found many applications to administra-
tive action recently, would not produce the same result in the same
situation. British judges now react strongly against any element of
unfairness, whether substantive or procedural.
"Politicising the Judiciary"

Whenever there is discussion of any extension of judicial review the
objection is raised that it will bring the judges into politics. We
must, it is said, at all costs avoid a politicised judiciary. I have
never found it easy to give weight to this argument in its context,
which is now usually that of a Bill of Rights. For as with policy, so
with politics. The judges are already immersed in it, and have no
hope of getting out of it. Books, articles and letters in the
newspapers analyse their education and social backgrounds,
accuse them of political prejudice, call their neutrality a pretence,
and insinuate bias because, in selected instances, plaintiffs with bad
cases lose them. The judges in the Tameside and Laker cases are
said to have been motivated not by the need to control arbitrariness
but by their aversion to certain political policies.23 The fact that all
this is accompanied by much misrepresentation is neither here nor
there. The reality is that the judges are under a barrage of political
fire. They are constantly having to decide cases which involve
politics as well as law, some of which I have criticised myself—but
11
R. v. Barnsley Metropolitan Borough Council ex p. Hook 11976] 1 W.L.R.
1052.
23
Griffith, The Politics of the Judiciary, 211.
200
76 Adjudication
in none of which would I accuse any one of bias or insincerity.

That, again, is neither here nor there. The simple fact is that, like
every one else, judges live in a world in which brickbats of all kinds
are flying in all directions.
Yet among the judges themselves the fear of politicisation is
strong. Lord Denning, not normally to be found among the
timorous souls, said in a speech in the House of Lords that if judges
were given power to overthrow Acts of Parliament they would
become politicised, their appointments would be based on political
grounds, and their reputation would suffer accordingly.24 He
added:
"One has only to see, in the great Constitutions of the United
States of America and of India, the conflicts which arise from
time to time between the judges and the legislature. I hope we
shall not have such conflicts in this country."
This was one of Lord Denning's reasons for opposing the enact-
ment of the European Convention in the form of a British Bill of
Rights. In a later debate on the same subject the same anxiety in-
duced Lord Diplock and Lord Morris of Borth-y-Gest to oppose it
likewise. But other eminent judges think differently, and in the same
debate Lord Hailsham made an effective reply, saying:25
"We are seriously asked to believe that something awful is
going to happen to us if we follow the example of nearly every
country in the world."
Then, instancing some of the more sensational judicial exploits, he
said of the opposing judges:
"They are under the curious illusion that the judges are not
already in politics. Lord Diplock, as one of the authors of the
Anisminic decision, practically abolished an Act of Parliament
about the Foreign Compensation Commission. What about
Gouriet? . . . What about the Laker dispute? How about the
Tameside education dispute? What about the decision in-
validating Mr. Roy Jenkins' policy on wireless licences? How
about the various decisions of this House and the Court of
24 l
369 H.L. Deb. 797 (March 25, 1976).
25
396 H.L. Deb. 1382 (November 29, 1978).
201
Adjudication 11
Appeal on the Race Relations Act? Arid what about their

recent decisions on the trade union legislation? . . . If they [the
judges) assume jurisdication they are in politics; if they decline
jurisdiction they are in politics. All they can hope to be is im-
partial. . . . "
This is a graphic and rhetorical version of the point which I made

prosaically at the beginning of this lecture, when I stressed the wide
range of alternative policies between which judges have to choose.
If their primary object was to keep out of politics, they would have
had to surrender to the executive in all the cases mentioned by Lord
Hailsham and in many others. They would be confined to the literal
interpretation of Acts of Parliament purporting to give ministers
unfettered discretion, and the development of administrative law
would be impossible. The law would be back in the shameful posi-
tion in which it languished 30 years ago.
And why, to take up Lord Denning's point, should judges be
horrified at the prospect of having to judge the constitutionality of
Acts of Parliament, if they should be called upon to do so under a
new Bill of Rights or a new constitutional settlement as advocated
by Lord Scarman and Lord Hailsham? This is a primary function
of the judiciary in any country which has a proper constitution. By
a proper constitution I mean one in which no one organ has un-
limited power and in which there is legal machinery to prevent
violation. The Lords of Appeal, when they sit in the Privy Council,
are very familiar with this activity in interpreting the constitutions
of countries of the Commonwealth, and I do not think that any one
has complained that it has politicised them. If the abortive Scotland
Act 1978 had not been rejected in the referendum, they would have
had to sit in judgment on the validity of Acts of the Scottish
Assembly, quite probably in situations where different parties were
in power in England and Scotland and political tension was high. If
they could face this with equanimity, they could equally well face
the responsibilities of a constitutional court as suggested by Lord
Scarman. One of the reasons why there is so much dissatisfac-
tion with the constitution, and why there is so much discussion of
the need for a Bill of Rights, is that its primary proposition, the
sovereignty of Parliament, assigns a subservient part to the judi-
ciary. It is like a game without an umpire. Consequently the
202
78 Adjudication
judiciary do not make the contribution to public affairs which in

other countries is expected of them and is taken for granted.
It is understandable that judges may prefer the quiet life of sub-
ordination and non-involvement. But there are dangers in that
which to my mind are graver than those which they fear as poten-
tial constitutional guardians. They are driven, as we have seen, to
devious reasoning of the Anisminic type in order to evade statutory
injustice. They must invent imaginary restrictions and read them
freely into Acts of Parliament if they are to develop a satisfactory
administrative law. Although in the present period they are doing
this successfully, it involves just the same conflict between judiciary
and legislature as Lord Denning wishes to avoid. In fact no judge
has done more than he to accept the challenge and to dramatise the
issues. Bearing in mind the relapses of the past, and the judicial
voltes-face which have been needed to rectify them, one may well
feel that we need a constitution which indicates in black and white
the part that the judges are expected to play. When their position is
left unspecified, and they veer from one extreme of policy to
another, they are more likely to be accused of political bias than if
they are given a proper constitutional status.
We have already an abundance of politically controversial
legislation, and I doubt if any Bill of Rights would produce more at-
tacks on the judges than the legislation on industrial relations has
done already. They have been the target for abusive remarks by
cabinet ministers in and out of Parliament, and many who might
have known better, lawyers particularly, have joined in an un-
seemly clamour at the slightest opportunity, not hesitating to make
charges of judicial partiality. I know that, as we are often reminded,
Mr. Churchill did the same in 19II, 26 but as every one of my age
remembers, his accusations were not always fair. The extremist
critics of the judges do not, I think, allow for the unenviable tasks
which they have been given by Parliament. If certain organisations
or individuals are given a statutory right to commit torts and other
wrongs, which others are not allowed to commit, the judges have to
decide where the limits of these immunities lie, often with nothing to
guide them but imprecise phrases of elastic meaning, such as "in
contemplation and furtherance of a trade dispute." Then, in
borderline cases, they have to choose between rival interpretations.
26
26 H.C. Deb. 1022 (May 30, 1911).
203
Adjudication 79
It is surely to be expected that immunities from the general law will

not be interpreted in the widest possible sense, but will be kept
within bounds, subject always to a fair reading of the Act.
Otherwise, if I may use Lord Scarman's words, "there will arise a
real risk of forces of great power in our society escaping from the
rule of law altogether." It is surely right that the judicial instinct
should be to minimise that disaster. My purpose now, however, is
not to join in the political fray, but to illustrate how deeply the
judges are embroiled in it willy nilly. All that they can do is to grow
thicker skins, in a sadly deteriorating climate. To expect them to
change their spots is neither practicable nor right.
The judges must now be utterly weary of the endless discussion
of their supposed prejudices, accompanied as it is by the dreary
racket of political axe-grinding. It is made a matter of reproach that
they are people of good education, that they are middle class, that
they have had success in their profession—nothing is too absurd
for those who seem to resent the one real safeguard that our dis-
torted constitution still offers. Under all this buffeting they will, we
may be sure, stand firm. And when the buffeting is shown to be in
vain it will, we must hope, abate. The critics' chorus would do well
to take to heart the terms of the Hamlyn Trust: "to the intent that
the Common People of the United Kingdom may realise the
privileges which in law and custom they enjoy in comparison with
other European Peoples and realising and appreciating such
privileges may recognise the responsibilities and obligations at-
taching to them."
Epilogue
It has been my aim in these lectures to invite attention to some very
diverse aspects of our constitution: the crude and injurious elec-
toral system; the defective mechanism of legislation, and in par-
ticular the supposed impossibility of entrenching fundamental
rights; the problems of abuse of power, legislative as well as ad-
ministrative; and the position of the judiciary under the pressures
which the political and administrative system now puts upon them.
These miscellaneous subjects have one thing in common: they give
cause for concern, and no cause at all for complacency in com-
parison with other countries. But Miss Hamlyn's good intentions
may still be fulfilled if we recognise our obligation to study, criticise
204
80 Adjudication
and improve our constitution, thereby establishing more securely

the liberties and privileges which our traditional system has in the
past provided. We must recognise that our ancient constitution, if
merely left to develop haphazardly, may get badly out of balance,
as many think that it has done already. As a country we are
temperamentally averse to radical constitutional changes. But we
have been willing to face them for Scotland and Wales and we
should be no less willing to do so for our country as a whole.
People of all political views will need to contribute to the con-
sensus which will be needed. If we could find it, we could become a
better governed country and our institutions would better deserve
the admiration which Miss Hamlyn had for them.

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1

IN THE COURT OF THE DISTRICT & SESSIONS JUDGE,

IN THE MATTER OF:

AND IN THE MATTER OF:

IN THE COURT OF THE DISTRICT & SESSIONS JUDGE,

IN THE MATTER OF:

AND IN THE MATTER OF:

Lt Col (Veteran) Sarvadaman Singh Oberoi, 1102, Tower 1, Uniworld

IN THE COURT OF THE DISTRICT & SESSIONS JUDGE,

IN THE MATTER OF:

AND IN THE MATTER OF:

Application under Article 246 of the Constitution of India,

Sharma, Additional District Judge, Gurugram on 20.04.2021,

8. APP No. 33 of 2020, RBT No. 04 of 2020/2021 . titled as

Sharma, Additional District Judge, Gurugram on 27.08.2021,

Sandeep Kumar Duggal, Additional District Judge, Gurugram

2. That at pages 6-7 of Annexure A of ANNEXURE 1, a grave

report of the Commissioner of Police, Gurugram in a Jus Cogens lis.

That the report of the Commissioner of Police, Gurugram found

meritorious the Jus Cogens type/ applicant’s contention in the lis.

However the Commissioner of Police, Gurugram Report was not

considered on judicial side due administrative lapse. That the

under any circumstances whatsoever, is well settled law. That it is very

order is regular it can be set aside by an appellate court;” whereas

on the application being made to that court…..ex debito justitae if the

circumstances warranted, namely, violation of the rules of natural

justice or fundamental rights.” That at SCC pp. 684 at para 98 the

Privy Council decision in Alexander Rodger v. Comptoir

D’escompte De Paris, (1869-71) LR 3 PC 465 was quoted and held

of any intermediate court of appeal, but the act of the court as a

the duty of the aggregate of those Tribunals, if I may use the

whole of the proceedings does an injury to the suitors in courts.”

4. That further, on the Constitutional and Quasi-Judicial side of the

5. That in ANNEXURE 2: Extracts, Administrative Discretion,

or not depends, to a great extent, upon the kind of action it is

IN THE COURT OF THE DISTRICT & SESSIONS JUDGE,

IN THE MATTER OF:

AND IN THE MATTER OF:

No. _ _l_3_5'""'--------' Dated

Subject: - Information under Right to Information Act, 2005.

Sr. No. _ • Information required ________ Information supf}lied __ __ __

·- ---·--- --- -- - - -·- - -

: (J) 5 pages Letter Diary The requisite information containing five

As per Section 19 of the Right to information Act. 2005 . you

OFFICE OF THE DISTRICT AND SESSIONS JUDGE, GURUGRAM

Subject: Request dated 02 .11.2021 for providing goshwara numbers

Above being so , your good self vide order dated 13.01.2022

'-report with regard to keeping of record of CRM 150 of

·'report with regard to said aspect be sought from the Court

Sir, it is further submitted that subsequent thereto , the

Sir, it is further submitted that the applicant in the said

Sir, the applicant had also mentioned about submitting of

Sir, on the said application , your good se lf vide order dated

Pursuant thereto. Dr. D.N. Bhardwaj , learned Additional

2019 which was fixed for 15.10.2020. The application

Along with the file. letter No. 28721 /CC dated

The case bearing No. CRMP-03-2019 was

Pd>l::. /,_, ~: ti\: (,.,••-;·_, ,-r--"

Q.'o Distt.G:~i~~!~r:!Y\X( 2-L-

Similarly, Shri Phalit Sharma , learned Additional District and

"With due respect. the following information is submitted for

Sr. Tltl1t DalEt of Dale of Decision on Goihwara Dale of Dale on

Lt Co Sarvadar,,an CRl.1,130115 2) 0~ 2021 ::) sm,ssed oe ng '63 22 :; 2021 20 o.; 2n1

Sr. No. _ • Information required ______ Information supf}lied