ADMINISTRATIVE LAW

UNIT- 1, 2
Meaning, Nature and Scope- Administrative law is the study of law that governs the activities
of the administrative agencies of the government which comprises:
● Legislative: Legislature rule making
● Executive: Implementation of law
● Adjudication: Adjudication or giving judgments
Some Notable Points
● Administrative Law is the branch of public law.
● It deals with the relationship of individuals with the government.
● It determines the organization and power structure of the administration or the
quasi-judicial authorities.

Definitions of Administrative Law

1. According to the Indian Institute of Law:
● Administrative law deals with the part and the functions of the administrative authorities.
● A procedure to be followed by these authorities in the exercise of such powers.
● The remedies shall be available to the aggrieved person when authorities abuse of the
powers
2. According to Ivor Jennings: “Administrative law is the law relating to the administration.
It determines the organization, powers and duties of the administrative authorities.”
3. According to Wade: “Administrative law is the law relating to the control of
governmental powers.” According to him the primary object of the administrative law is
to limit the powers of the Government and to prevent citizens from their abuse.
4. According to KC Davis: “Administrative law is the law concerning the powers and
procedure of the administrative agencies, including especially the law governing the
judicial review of the administrative actions.”

Nature and Scope of Administrative Law- The administrative law has a growing importance
and interest and it is the most outstanding phenomenon in the welfare state. Knowledge of
administrative law is as important for the officials responsible for carrying on administration as
for the students of law.
● Not a codified Law: Administrative law is not codified like the IPC or law of the
contracts. It is based on the constitution.
● Judge made law: It is essentially a judge made law and it is a branch of public law which
deals with the constitution and delegation of power.
● Deals with the organization: Administrative Law deals with organization and powers of
the administrative and quasi-administrative authorities.
 ● Concerned with the official actions: Administrative Law is primarily concerned with the
official action and the procedure by which official action is reached. Example: Rule
Making, Rule Application, Monitoring actions or pure administration.
● Control Mechanism: It includes a control mechanism (judicial review) by which the
administrative authorities are kept within bounds and made effective.
● Authorities: Administrative law is derived from the authorities from the constitutional
and statutory law.
● Rights: Administrative Law relates to the individual rights as well as public needs and
ensures transparency, open and honest governance which is more people friendly.
● Means or the End: The study of administrative law is not an end in itself, but it is a
means.
● Emergence and development: Administrative law emerges and develops wherever and
whenever any person becomes the victim of the arbitrary exercise of public power.
Administrative law is not the branch of the philosophy of law, but of sociology of law.
● Branches which govern: It is the body of law which governs the activities of the
administrative authorities of the government. Government agency action includes rule
making, rule adjudication, enforcement of specific regulations and the related agenda.

Reasons for the growth of Administrative Law-

● Concept of Welfare State- We can see the evolution of the welfare state concept. The
concept was developed during the 10th and 20th century. According to this concept, the
State administration is to achieve maximum welfare of the masses.
● Inadequate Judicial System- Judiciary was slow, costly, unexpected, complex and
formalistic in nature. Overburdening of the judicial system due to which speedy disposal
was not possible, and also resulted in strikes and lockouts in disputes between employers
and employees. To solve these problems, the need for tackling arose and as a result,
industrial tribunals and labor tribunals and labor courts were established. These tribunals
are not courts but executive authorities having judicial powers.
● Inadequate Legislative- The legislature has no time to legislate upon the day-to-day
ever-changing needs of the society. Detailed procedures made by the legislature were
found to be defective and inadequate. All these resulted in the delegation of some of the
legislative powers to the administrative authorities.
● Scope of Experimentation- As the administrative law is not codified law, so there is
enough scope of modification. As per the modification it as per the requirement of the
state’s machinery. Hence, it is more flexible and the rights legislating the procedure need
not be followed again and again.
● Increasing demand from people- There was an increase in the demand from the people
because merely defining the rights of the citizens was not sufficient but the state needs to
solve problems as well.
 ● To take preventive measures- Administrative authorities can take preventive measures
like licensing, rate fixing etc. They can also take effective measures for the enforcement
of preventive measures like enforcement of suspension, revocation or cancellation of
license, destruction of contaminated articles.
● Increasing population- Increase in the population creates a burden upon the legislative
processes to implement various laws for various needs of the growing population.

Relationship between Administrative Law and Constitutional Law- The relationship

between the administrative law is not clearly marked out but the fact remains that the two are
overlapping in several aspects. There exists a relationship which is fundamental in which if one
were to represent the two branches of law in a Venn diagram, then both would have a common
area known as the watershed area in the administrative law. So, we see that constitutional law
and administrative law are parts of public law. Keith said that it is impossible to distinguish
administrative law and all the attempts to do so are artificial. Administrative law and
constitutional law overlap at certain places and the area is termed as watershed in the
administrative law. In India, the watershed one can include the whole control mechanism
provided in the constitution for the control of the administrative authorities. These include
Article 32, Article 136, Article 226, Article 300, Article 227, Article 311. It may also include
some administrative agencies to regulate a particular field i.e., Article 263 which creates the
inter-state council. Similarly, we have Article 280, Article 262, Article 315 and Article 324.
Similarities between the constitutional law and administrative law
● Both are species of public law. This in other words means that both deals with the
government and individuals and the relations among them and the institution of the
government.
● Both deal with the distribution and the exercise of governmental powers and functions.
Where the constitutional law ends, the administrative law begins.
● Both are concerned with imposing boundaries and the accountability of those that
exercise governmental powers.
● Their application is founded on the constitutional study of administrative law that
involves copious reference of the constitutional law.
● Both of them are concerned with human rights issues.
● Both of them rely on the statutes and case laws for their principles and operations.
● The principles of both are enforced by the same institutions i.e., courts, law enforcement
agents etc.

Dissimilarities of the Administrative and Constitutional Law

Constitutional Law Administrative Law
According to Holland, constitutional law Administrative Law describes various
describes various organs at rest. organs of the government in motion.
 According to Ivor Jennings, Constitutional law Administrative law deals with details.
deals with fundamentals.
Constitutional law is majoritarian. Administrative law is anti-authoritarian.

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

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

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

Unit- 3
Dicey Concept- Dicey is one of the well known jurists of England and he has written a famous
book “Law of the Constitution”. One should know the difference between administrative law and
the rule of law. People who are in government jobs have different laws from ordinary citizens
and the rule of law is equal for everyone whether he is Prime minister of India or a normal clerk
working in an office. The same law will be applicable to both of them, no discrimination will be
done under the rule of law and rule of law is supreme in nature. Dicey was against making
different rules for a different class of people so he stood against this concept and promoted the
idea of Rule of law. The doctrine of the Rule of law has 3 meanings in the Dicey book.
1. Supremacy of law.
2. Equality before the law.
3. The predominance of a legal spirit.

Rule of law- According to Plato the meaning of rule of law is that it is supreme in nature and
nobody is above the law, Aristotle on the other hand has written that law should be the final
sovereign of the state and according to Sir Edward Coke “Rule of Law” means the absence of
arbitrary power on the part of the Government. This phrase was derived from the French phrase
“la Principe de legality” which means that the principle of legality whatever the legal system
principle is called a rule of law. Which refers to government is based on the principles not on any
individuals and according to the law everything will move. Rule of law is the basic principle of
the English constitution and this doctrine is accepted by the US as well as India. The entire basis
of Administrative law is the Rule of law and delegated legislation is the backbone of
administrative law.
Basic Principles of Rule of Law
1. Law is supreme and nobody is above the law.
2. All the things should be done according to a law not as per whim.
3. No person should suffer except for the breach of law.
4. Absence of arbitrariness is the soul of the rule of law.
5. Equality before the law and equal protection of the law.
 6. Speedy trial.
7. The fair and just procedure should be conducted.
8. Independent and impartial judiciary.
Rule of law in modern sense- Today the dicey theory of Rule of law cannot be accepted in total.
The modern concept of rule of law is very wide and therefore set up an example for the
government to achieve and this concept was developed by the International Commission of
Jurists which is also known as Delhi Declaration, 1959. According to this, the Rule of the law
says that the function of the government in a free society is to exercise and create a condition in
which the dignity and respect of an individual are increased or upheld. It does not only recognize
civil or political rights but the introduction of certain social, political, economic, and educational
etc. which are necessary for the full development of personality.
According to Davis, there are 7 types of Modern law
1. Law and orders.
2. Principle of Natural law.
3. Fixed rules and regulations.
4. Eliminate the idea of discretion.
5. Due and fair process of law.
6. Preferences for judges and court of law to executive authority and administrative
tribunals.
7. Judicial review of administrative action.
So, in proper manner, the rule of the law says that it is silent on the democratic system, where
political interest is encouraged and criticism of the government is not only permitted but given
positive merit.
Freedom of Speech and Expression is an integral part of the Rule of law- Rule of law is the
foundation stone of the stage of democratic stands that’s why it is considered as an important and
integral part of the Rule of Law. To ask for the rights of others and the way they are expressed
can be either by speaking, writing, drawing, etc. and above all rule of law does not go with
arbitrariness which can be established by fiving freedom and one of such freedoms is freedom of
Speech and expression. Freedom of speech and expression should be used in a very delicate
manner because while expressing the idea, it should not defame or hurt the sentiments of any
individual or religious view and without the fear of getting punished for any offensive act. As per
UDHR (Universal Declaration of Human Resources) every individual has the right to freedom of
expression and opinion. The right involves the right to hold the information without any
interference from any media or other sources. Right to freedom of speech and expression is
recognized as an essential human right under Article 19 of the UDHR as well as in ICCPR
(International Covenant on Civil and Political Rights).
Freedom of Speech and Expression in the Indian Constitution - Article 19(1) of the Indian
Constitution says the Freedom of Speech and expression means the right to express one’s ideas
by the help of words, gesture, painting, writing etc. or by any other specified mode. It also
includes the publication of articles, books etc. so the freedom of the press is also included under
this category.
1. It also helps individuals to be well informed about the current situation of highlights of
society or nation.
2. Help the individual to the development of ideas, thoughts, opinions etc. which will help
in decision making.
3. Varieties of ideas help in maintaining a balance between stability and social changes.
4. Help in achieving Self-fulfillment.

Doctrine of Separation- The concept of separation of powers refers to a system of government

in which the powers are divided among multiple branches of the government, each branch
controlling different facets of government. In most of the democratic countries, it is accepted that
the three branches are the legislature, the executive and the judiciary. According to this theory,
the powers and the functions of these branches must be distinct and separated in a free
democracy. These organs work and perform their functions independently without the
interference of one into others in order to avoid any kind of conflict. It means that the executive
cannot exercise legislative and judicial powers, the legislature cannot exercise executive and
judicial powers and the judiciary cannot exercise legislative and executive powers.

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

Elements of Separation of Powers

● Legislative- The legislative organ of the government is also known as the rule-making
body. The primary function of the legislature is to make laws for good governance of a
 state. It has the authority of amending the existing rules and regulations as well.
Generally, the parliament holds the power of making rules and laws.
● Executive- This branch of government is responsible for governing the state. The
executives mainly implement and enforce the laws made by the legislature. The President
and the Bureaucrats form the Executive branch of government.
● Judiciary- Judiciary plays a very crucial role in any state. It interprets and applies the
laws made by the legislature and safeguards the rights of the individuals. It also resolves
the disputes within the state or internationally.

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

Provisions that Substantiate Separation of Power

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

Overlapping Provisions
● Article 123 of the Indian Constitution allows the President to issue ordinance when both
the houses are not in session.
 ● Article 213 of the Indian Constitution gives power to the Governor to issue ordinance
when the state legislative assembly is not in session.
● Article 356 of the Indian Constitution lays the provision of Presidential Rule in case of
state emergency.
● Article 73 of the Indian Constitution specifies that the powers of the executive shall be
co-extensive with that of the legislature.
● Article 74 of the Indian Constitution states that the council of ministers shall aid the
President in the exercise of his executive functions.
● Article 75(3) of the Indian Constitution makes the Council of Ministers collectively
responsible to the House of the People.
● Article 61 of the Indian Constitution lays the provision of Impeachment of the President
by passing a resolution from both the houses in order to remove the President.
● Article 66 of the Indian Constitution states that the election of Vice-President is done by
the electoral members of both the houses.
● Article 145 of the Indian Constitution allows the Supreme Court to make laws with
approval of the President for the court proceedings and the practices.
● Article 146 of the Indian Constitution lays the provisions for the appointment of the
servants and officers of the Supreme Court by the Chief Justice of India with consultation
from the President and the Union Public Service Commission.
● Article 229 of the Indian Constitution lays the provision for the appointment of the
servants and officers of the High Courts with the consultation of the Governor and the
State Public Service Commission.
● Article 124 of the Indian Constitution gives the President the power to appoint the judges
of the Supreme Court.
● Article 72 of the Indian Constitution empowers the President to grant a pardon or suspend
the sentence of any person who is convicted by the Supreme Court of India.
● Article 32, Article 226 and Article 136 of the Indian Constitution provide the power of
judicial review to the Supreme Court to strike down any law made by the Parliament or
any administrative action which is found to be unconstitutional.

Separation of Powers: A Barrier to Administrative Law- Administrative law is a branch of

public law that determines the organization, powers and duties of administrative authorities. The
principle of separation of power creates a demarcation among the three organs of the
government. But in the present scenario, administrative law is antithetical to this principle. With
the emerging pattern of globalized interdependence, the administrative agencies are not just
exercising the administrative functions but also practices quasi-legislative and quasi-judicial
powers, thus, violating the principle of separation of powers. Contemporarily, it is a compulsive
necessity to delegate the additional legislative and judicial powers to the administrative agencies
to establish efficient and adroit governance and to ensure proper enforcement of the laws. The
creation of administrative tribunals and delegation legislation took place with the aim to reduce
the load of the legislation and judiciary and to expedite the lawmaking and justice giving process
with expertise. This cannot be achieved with strict implementation of the doctrine of separation
of powers. Therefore, the separation of powers acts as a limitation on administrative law.

Droit Administratif- It is the French Administrative Legal System which means a body of rules,
which determines the organization, powers and duties of the public administration and regulates
the relation of the administration with the citizens of the country. Droit Administrative does not
represent the rules and principles enacted by the Parliament. Whereas, in the case of India, we
see that the system is the representation of the rules and principles enacted by the Parliament or
Legislature. It contains the rules developed by the administrative courts which regulate the
relationship between public servants and citizens, public servants and government and public
servants and public servants.

Rules of Droit Administratif- Droit Administratif is a representation of judge-made rules

decided in a court of law and not of the rules carved out from the French Parliament. The series
of rules that, if compiled together, will result in the Droit Administratif are as follows:
1. Rules that deal with administrative authorities and officials associated with the same.
2. Rules that deal with public service operations to fulfill citizens’ needs.
3. Rules that deal with administrative adjudication.
While the first rule applies to appointment, removal, allowances, obligations, the second rule was
made to focus on the welfare of the public which was to be operated directly by the public
officials or could have been delegated by them and carried out under their authority. Private
agencies could also have been appointed to execute such rules. The third rule makes it clear that
the highest administrative court in the land is Conseil d’Etat. Infringement of any rights or
causing of injury associated with the private citizens of the land would directly be handled by the
administrative courts.

Rule of Law and Droit Administratif: A Comparison- Dicey’s concept of rule of law delivers
the supremacy of law holding that no man is above law or can produce any judgment above the
established law of the land. Droit Administratif evolved as a concept opposing the very
formulation by Dicey. Dicey preferred the usage of the term regime administrator while
explaining Droit Administratif. The formation of Conseil d’Etat was made to provide limits to
the exercise of unrestricted power of the executive. But in doing the same, the judiciary was not
able to gain recognition for the members who were elected to abide by the checks of the
executive. The Conseil d’Etat was merely an advisory body for the ministers who were the real
judges. No public sessions were held and the power to deliver judgments was also absent from
the body. What the body reflected was based on the government’s perspective only. This was
what the Dicey concept of rule of law opposed. If this argument, as laid down by Dicey, is
viewed, one cannot easily point out that Dicey is wrong on his grounds. The judiciary is
supposed to be separated from the executive on several aspects. It is correct to say that these
organs of the government are independently independent but not interdependently independent.
The motive with which Napoleon Bonaparte formulated the adjudicating body was not
transparent enough if it did not abide by the concept of rule of law which is universal in nature.
According to Dicey, the Droit Administratif was based on two beliefs:
1. The government and its servants possess special and privileged rights as compared to any
normal citizen of the nation. Thus, there lies no equality as to the rights available to
government officials and the citizens of the same nation.
2. Government officials are not subjected to the jurisdiction of the courts in the nation.
What Dicey claims is that the essence of the establishment of the judiciary is lost if rule of law is
opposed. The administrative law which fails to abide by the same and evolved on the basis of its
own formulated rule, would play a significant role in suppressing the executive and therefore, the
administrative set up in England is much more developed compared to that of France. The Droit
Administratif established different rules for different levels of people in society. To go along with
what Dicey suggested, this division in society was against equality. The perception of Dicey and
that of the Droit Administratif were completely opposite to each other. While one promotes
equality in every stratum of the society, the other wants an established administrative system
providing specific power to some leaving behind the other. Both have their own merits and
demerits as several scholars observed. The presence of administrative law was there in England
and France. The idea behind the evolution of the branch of law is different for both.

UNIT- 4, 5, 6, 7
Meaning of delegated legislation- Delegated legislation (sometimes referred as secondary
legislation or subordinate legislation or subsidiary legislation) is a process by which the
executive authority is given powers by primary legislation to make laws in order to implement
and administer the requirements of that primary legislation.
Such law is the law made by a person or body other than the legislature but with the legislature’s
authority. Legislation by any statutory authority or local or other body other than the Legislature
but under the authority of the competent legislature is called Delegated legislation. It is
legislation made by a person or body other than Parliament. Parliament thereby, through primary
legislation, enables others to make law and rules through a process of delegated legislation.
According to Sir John Salmond, “Subordinate legislation is that which proceeds from any
authority other than the sovereign power.” Justice P.B Mukherjee also observed about delegated
legislation that it was an expression which covered a multitude of confusion. He viewed it as an
excuse for the Legislature, a shield for Executors and a provocation to the Constitutional Jurist.
According to M.P Jain, this term can be used in two senses: Exercise by subordinate agency or
agency that is lower in rank to legislature delegated to it by the Legislature; The Subsidiary rules
made by the Subordinate Authority in the execution of the power bestowed on it by the
Legislature. Delegated legislation is referred to as Subordinate, Ancillary, Administrative
legislation, and Quasi-Legislation.
Need for Delegated Legislation- The process of delegated legislation enables the Government
to make a law without having to wait for a new Act of Parliament to be passed. Further,
delegated legislation empowers the authority to modify or alter sanctions under a given statute or
make technical changes relating to law. Delegated legislation plays a very important role in the
process of making law as there is more delegated legislation each year than there are Acts of
Parliament. In addition, delegated legislation has the same legal standing as the Act of
Parliament from which it was created.
Delegated Legislation is important because of several reasons. They are-
1. Delegated Legislation reduces the burden of an already overburdened Legislature by
enabling the executive to make or alter the law under the authority of Legislature. Thus,
this helps the Legislature to concentrate on more important matters and frame policies
regarding it.
2. It allows the law to be made by those who have the required knowledge and experience.
For instance, a local authority can be permitted to enact laws with respect to their locality
taking into account the local needs instead of making law across the board which may not
suit their particular area.
3. The process of delegated legislation also plays a significant role in an emergency
situation since there is no need to wait for a particular Act to be passed through
Parliament to resolve the particular situation.
4. Finally, delegated legislation often covers those situations which have not been
anticipated by the Parliament during the time of enacting legislation, which makes it
flexible and very useful to law-making. Delegated legislation is, therefore, able to meet
the changing needs of society and also situations which Parliament had not anticipated
when they enacted the Act of Parliament.

Evolution of Delegated Legislation in India- The historical backdrop of the delegation of

power can be followed from the Charter Act of 1833 when the East India Company was
recapturing political impact in India. The Charter Act of 1833 vested the administrative powers
only in the hands of the Governor-General-in Council, which was an official body. He was able
to make laws and guidelines for revoking, correcting or modifying any laws or guidelines, which
were for all people regardless of their nationality. In 1935 the Government of India Ac, 1935 was
passed which contained a serious plan of delegation. The report of the Committee of Ministers’
Powers was submitted and affirmed which completely settled the case for assignment of forces
and appointment of enactment that was viewed as inescapable in India.
However, our Constitution depended on the separation of power; a total partition of forces was
unrealistic henceforth it kept up the holiness of the tenet in the cutting edge sense. The Indian
Constitution does not deny the assignment of forces. Then again there are a few arrangements
where the official had been conceded with the administrative forces. For instance, the
administrative forces of the President under the Indian Constitution are prominent. The problem
of the delegation of legislation in India originated under British rule when the controversy on the
problem in the West was in full swing. In independent India, the conflict of settling the problem
of the delegation of legislative power was prima facie to a conflict between the English and
American type of solution.
The Constitution of India comprises more than four hundred Articles and it had not been
surprising if the Constitution makers included some solution for it. But why were these
provisions incorporated in the Constitution? This is because the politicians in the Constituent
Assembly tended to multiply legal formulations. These issues were of minor importance on
which legal formulation was made in comparison to other greater constitutional issues that were
bypassed by the Assembly that were left to future accord or judicial interpretation.

Delegated Legislation in comparison with the U.S

Constitutionality of delegated legislation- It basically means the limits that are permissible
within a Constitution of a country through which the Legislature with all his right can delegate
its power of rule making to other agencies of administration. The aim of extending the power of
the government is to handle socio-economic problems.
Position in USA: Delegated legislation is not allowed theoretically in the constitution of the
USA because of the two reasons. These are, “Separation of Power” and “Delegatus non potest
delegare”. There is no reference of text that has been given in the Constitution of the USA
which shows that it delegates its power from Legislature to the Executive. Congress was itself a
delegate then how can it delegate its powers. The political theory that was propagated by
philosophers like John Locke and Montesquieu were imbued on the framers of the American
Constitution. John Locke has said that a legislative cannot delegate his powers of lawmaking to
any person or cannot place it anywhere. He further stated that there should be separate
Legislature and Executive because if the power of law making and execution of those laws go in
one hand it can be misused and these people use that power to exempt them from that law and
use it for their private advantage. So the doctrine of ‘delegatus non potest delegare’ has been
given by John Locke it means the same as what we have explained above.
Another philosopher, Montesquieu has given the concept of ‘Separation of Powers’. According
to Montesquieu, one person cannot exercise all the three powers of the government i.e., the
Judiciary, the Legislature, and the Executive. The Legislature should make laws and should not
enforce or administer it. Similarly the Executive should not interfere in the work of the Judiciary
and Legislature and the Judiciary should be free from the Executive and Legislature. All should
do their work separately. In America, the power to make legislation has been given to the
Congress, executive powers given to the President of the USA, and the judiciary power of the
United States is vested in the hands of the Supreme Court and also it might be given to lower
courts from time to time on the ordain of the Congress. Due to the adoption of separation of
power by the United States, the legislative power can be vested only in the hands of Congress
and no organs of the government. Further, it has argued that the power to the Congress itself has
been delegated by the American Constitution so it cannot further delegate its power.
Kinds of Delegation: The Delegated legislation can be classified under various classes
depending on the purpose to be achieved:
1. Title based classification: An Act may empower an authority to make regulations, rules
or by-laws, to make orders, or to give directions. There is scarcely a limit to the varieties
of legislative provisions which may exist under different names.
2. Discretion-based classification (Conditional Legislation): Another classification of
administrative rule-making may be based on discretion vested in rule-making authority.
On the basis of ‘discretion’ administrative rule-making may be classified into subordinate
and contingent or conditional legislation.
3. Purpose-based classification: Another classification of administrative rule-making would
involve the consideration of delegated legislation in accordance with the different
purposes which it is made to serve. On this basis the classification may be as: Enabling
Act, Alteration Act, Taxing Act, Supplementary Act, Classifying and Fixing Standard
Acts, Penalty for Violation Acts, etc.
4. Authority-based classification (Sub-Delegation): Another classification of administrative
rule-making is based on the position of the authority making the rules. Sometimes the
rule-making authority delegates to itself or to some other subordinate authority a further
power to issue rules; such exercise of rule-making power is known as sub-delegated
legislation. Rule-making authority cannot delegate its power unless the power of
delegation is contained in the enabling Act.
5. Nature-based classification (Exceptional Delegation): Classification of administrative
rule-making may also be based on the nature and extent of delegation. The committee on
Ministers Powers distinguished two types of parliamentary delegation:
(a) Normal Delegation:
● Positive: Where the limits of delegation are clearly defined in the enabling Act.
● Negative: Where the power delegated does not include power to do certain things.
(b) Exceptional Delegation: Instances of exceptional delegation may be:
● Power to legislate on matters of principle.
● Power to amend Acts of Parliament.
● Power confers such a wide discretion that it is almost impossible to know the limits.
● Power to make rules without being challenged in a court of law.
Such exceptional delegation is also known as the Henry VIII clause to indicate executive
autocracy. Henry VIII was the king of England in the 16th Century. He imposed his autocratic
will through the instrumentality of Parliament, so he is described as a “despot under the forms of
law”. Under this clause, very wide powers are given to administrative agencies to make rules,
including the power to amend and repeal.
A classical illustration of Henry VIII clause is found in the Constitution itself under Article
372(2) of the Indian Constitution, the President has been delegated the power to adapt, amend
and repeal any law in force to bring it in line with the provisions of the Constitution, and the
exercise of such power has been made immune from the scrutiny of courts.
 Unit- 8, 9.
Functions which cannot be delegated (Impermissible Delegation)- The following functions
shall not be delegated by the legislature to the executive:-
1. Essential legislative functions- Even though there is no specific bar in the Constitution
of India against the delegation of legislative power by the legislature to the executive, it is
now well-settled that essential legislative functions cannot be delegated by the legislature
to the executive. In other words, legislative policy must be laid down by the legislature
itself and by entrusting this power to the executive; the legislature cannot create a parallel
legislature.
2. Repeal of law- Power to repeal law is essentially a legislative function, and therefore,
delegation of power to the Executive to repeal a law is excessive delegation and is ultra
vires.
3. Modification- Power to modify the Act in its important aspects is an essential legislative
function and, therefore, delegation of power to modify an Act without any limitation is
not permissible. However, if the changes are not essential in character, the delegation is
permissible.
4. Exemption- Aforesaid principle applies in case of exemption also, and the legislature
cannot delegate the power of exemption to the executive without laying down the norms
and policy for the guidance of the latter.
5. Removal of difficulties- Under the guise of enabling the executive to remove difficulties,
the legislature cannot enact a Henry VIII clause and thereby delegate essential legislative
functions to the executive, which could not otherwise have been delegated.
6. Retrospective operation- The legislature has plenary power of lawmaking and in India,
Parliament can pass any law prospectively or retrospectively subject to the provisions of
the Constitution. But this principle cannot be applied in the case of delegated legislation.
Giving an Act retrospective effect is essentially a legislative function and it cannot be
delegated.
7. Future Acts- The legislature can empower the executive to adopt and apply the laws
existing in other States, but it cannot delegate the power by which the executive can
adopt the laws which may be passed in the future, as this is essentially a legislative
function.
8. Imposition of Taxes- The power to impose a tax is essentially a legislative function.
Under Article 265 of the Constitution, no tax can be levied or collected save by authority
of law, and here ‘law’ means a law enacted by the competent legislature and not made by
the executive. Therefore, the legislature cannot delegate the essential legislative function
of the imposition of a tax to executive authority.
9. The ouster of jurisdiction of courts- The legislature cannot empower the executive by
which the jurisdiction of courts may be ousted. This is a purely legislative function.
10. Offenses and Penalty- The making of a particular act into an offense and prescribing
punishment for it is an essential legislative function and cannot be delegated by the
 legislature to the executive. However, if the legislature lays down the standards or
principles to be followed by the executive in defining an offense and provides the limits
of penalties, such delegation is permissible.

Parliamentary or Legislative Control- Under parliamentary democracy it is a function of the

legislature to legislate, and it’s not only the right but the duty of the legislature to look upon its
agent, how they are working. It is a fact that due to a delegation of power and general standards
of control, the judicial control has diminished and shrunk its area. In India “Parliamentary
control” is an inherent constitutional function because the executive is responsible to the
legislature at two stages of control.
1. Initial stage
2. Direct and Indirect stage
In the Initial stage, it is to decide how much power is required to be delegated for completing the
particular task, and it also observes that delegation of power is valid or not. Now, the second
stage consists of two different parts.
1. Direct control
2. Indirect control
Direct control- Laying is an important and essential aspect under direct control and it is laid
down as per the requirement which means that after making the rule it should be placed before
the Parliament. It includes three important parts as per the degree of control that needs to be
exercised.
1. Simple Laying
2. Negative Laying
3. Affirmative Laying
And “Test of Mandatory” & “Test of Directory” are two main tests.
● Test of Mandatory – Where the laying demand is a condition pattern to guide the rule into
impact then in such a case laying need is mandatory. Where the provision is mentioned
that the rules should be drafted in a particular format then it becomes mandatory to
follow the format.
● Test of Directory – Where the laying need is next to enforce the rule into operation then it
will be directory in nature.
Indirect control- This is a control exercised by Parliament and its committees. Another name for
such a type of committee is Subordinate legislation. The main work of the committee is to
examine-
1. Whether rules are according to the general object of the act.
2. It bars the jurisdiction of the court in direct or indirect ways.
3. Whether it has a retrospective effect or not.
4. Whether it safeguard or destroy the Principle of Natural Justice.
5. Expenditure involved in it is from Consolidated fund.
Judicial Control- Judicial review upgraded the rule of law. The court has to see that the power
delegated is within the ambit of the constitution as prescribed. Judicial review is more effective
because courts do not recommend it but it clearly strikes down the rule which is ultra vires in
nature. As per Section 13(3)(a) “Law” is defined under the Constitution of India which clearly
indicates that the State should not make any law which abridges the right given in Part III of the
Constitution. It is dependent on two basic grounds:
1. It is ultra vires to the Constitution of India, and
2. It is ultra vires to the enabling Act.

Excessive Delegation- Excessive in simple terms means to go beyond the scope legally. The
primary function of the legislature is to make laws for the country. This function cannot be
handed over to any other branch. The basic legislative functions are to understand and
investigate the existing laws, search for downfalls, and promulgate and introduce new laws or
reshape existing laws whenever needed. All the supporting and subordinate functions can be
given to the executive.
The parliament has derived the legislative powers from the Constitution and is not an inherent
power given to it. Due to this, the parliament cannot delegate its functions to the executive as and
when they feel so. The legislative function to an extent is given only to the judiciary.
If it so happens that the legislature does not perform its function and it is done by some other
branch, then it is deemed to be an abandonment or abdication of power. The authority to delegate
the power is qualified only if the test of non-abdication of power is passed and it is proved that
there will not be a parallel legislature set up.
There are three principles that test the excessive delegation of power-
1. The essential functions and powers cannot be delegated.
2. Due to the complex nature of issues arising with time, it is seen that the Parliament
cannot always investigate each and every detail, therefore some part of the subject or
legislation can be given or allotted to experts to deal with.
3. Only if the power is given to the executive in a way that it is constitutional and
permissible, then it does not qualify as excessive delegation.
The primary test to see whether a legislative comes under excessive legislation is to check
whether the core function of the legislative power has been given off to the other branch. If it is
affirmative, then it is deemed to be a case of excessive legislation. If not, then it does not qualify.
It is to be taken care that when testing for excessive legislation to enunciate a policy or a
principle, the substance of what is done has to be considered rather than mere matters.
The principal justification given for the use of excessive legislation is that as more complex
matters and new issues come in front of the legislature at regular intervals. It also happens that
the legislature may not be able to foresee many arising problems. This has to be taken care of by
the legislature by the means of delegated legislation.
 UNIT- 10, 11, 12, 13
Introduction- ‘Natural’ justice does not simply mean justice discovered in nature. It is a
compilation of ideas that should be naturally connected with justice, regardless of whether these
ideas are part of law. Natural justice applies comprehensively to administrative discretion. Its
goal is to prevent mischievousness and unfairness towards the resident with managing
authorities. The principles of natural justice in India are those regulations made by the courts as
being the least protection of the person’s rights against the arbitrary policy that judicial,
quasi-judicial principles of natural justice in administrative law power may adopt while making
an order working on those rights. The committee on Minister’s Power or Frank Committee has
laid down the following norms of natural justice:
1. No one shall determine in his own cause
2. Making accessible a copy of the statutory report
3. No one should be convicted without a hearing
4. A party has the right to know all the causes of the decision
Two Principles of Natural Justice- There are mainly two Principles of Natural Justice, such as:-
● ‘Nemo judex in causa sua’. No one should be made a judge in his own cause, and the rule
against bias.
● ‘Audi alteram partem’ means to hear the other party, or no one should be condemned
unheard.

Rule Against Bias or Nemo Judex In Causa Sua- “No one should be a judge in his own case”
since it directs to the rule of biases. Bias signifies an act that leads to an unfair job, whether in an
unconscious or conscious phase about a specific case or the party. Hence, this rule reinforces
impartiality in a judge impartially and ensures that the judgment delivered is solely based on the
evidence available for a case. Nemo Judex In Causa Sua signifies rule against bias. This is the
first principle of natural justice that states no individual should be a judge in his own cause, or a
deciding power must be neutral and impartial when examining any case.
Type of Bias:-
1. Personal Bias- Personal bias originates from a relation between a deciding authority and
the party. This can place the deciding administration in a questionable situation to
undertake an unfair act and deliver judgment in his person’s favor.
2. Pecuniary Bias- In case there is any kind of financial interest on the judicial body’s part,
notwithstanding the amount, it will lead to biases for the administrative authority.
3. Subject Matter Bias- This bias is applicable when the deciding administration falls under
the subject matter of a specific case, directly or indirectly.
4. Policy Notion Bias- Issues emerging from preconceived policy notions is a very
dedicated problem. The mob in a courtroom does not anticipate judges to deliver a fair
judgment and trial with a clean sheet of paper.
 5. Departmental bias- The problem or issue of departmental bias is very common in every
administrative process and it is not checked effectively and on every small interval period
it will lead to the negative concept of fairness vanishing in the proceeding.
6. Bias on the account of the obstinacy- Supreme court has discovered new criteria of biases
through the unreasonable condition. This new category emerged from a case where a
judge of Calcutta High Court upheld his own judgment in appeal. A direct violation of
the rules of bias is done because no judge can sit in appeal against in his own case.

Audi Alteram Partem (Rule of Fair Hearing)- It comprises 3 Latin words, which simply
means that a person can receive punishment or conviction without having a civil and fair chance
of being heard. In simple words, this rule states that both parties must have the chance to
represent their viewpoints, and authorities should conduct a fair trial accordingly. This is a
significant rule of natural justice as it prevents authorities from subjecting any individual to
punishment without a sound and valid ground. A person should get prior notice, so he knows
about all the charges against him in advance, and prepare accordingly. This is also called a rule
of fair hearing. The constituents of fair hearing do not remain fixed. It varies across authorities
and cases. The principle of natural justice has been followed and adopted to save public rights
against random arbitrary decisions by the administrative authority. Therefore, an individual can
easily see that the rule of natural justice includes the concept of fairness and honesty: they stay
alive and help to safeguard fair dealing.

Right to Notice- ‘Notice’ is the starting point of any hearing. Unless a person knows the
formulation of subjects and issues involved in the case, he/she cannot defend himself/herself. It
is not enough that the notice in a case be given, but it must be adequate also. The adequacy of
notice is a relative term and must be decided with reference to each case. But generally a notice
in order to be adequate must contain the following:
The test of adequacy of ‘Notice’ will be whether it gives sufficient information and material so
as to enable the person concerned to put up an effective defense. Therefore, the contents of
notice, persons who are entitled to ‘Notice’ and the time of giving ‘Notice’ are important matters
to ascertain any violation of the principles of natural justice.
Sufficient time should also be given to comply with the requirement of notice. Thus, when only
24 hours were given to demolish a structure allegedly in a dilapidated condition, the Court held
that notice is not proper. In the same manner where notice contained only one charge, the person
cannot be punished for any other charge for which notice was not given. However, the
requirement of notice will not be insisted upon as a mere technical formality, when the concerned
party clearly knows the case against him and is not thereby prejudiced in any manner in putting
up an effective defense.

Right to Counsel- Normally representation through a lawyer in any administrative proceeding is

not considered an indispensable part of the rule of natural justice as oral hearing is not included
in the meaning of fair hearing. This denial of legal representation is justified on the ground that
lawyers tend to complicate matters, prolong the proceedings and destroy the essential informality
of the proceedings. It is further justified on the ground that the representation through a lawyer of
choice would give edge to the rich over the poor who cannot afford a good lawyer.
The fact remains that unless some kind of a legal aid is provided by the agency itself, the denial
of legal representation, to use the words of Professor Allen, would be a ‘mistaken kindness’ to
the poor people. To what extent legal representation would be allowed in administrative
proceedings depends on the provisions of the Statute.
Factory Laws do not permit legal representation, Industrial Dispute Acts allow it with the
per-mission of the Tribunal and some Statutes like Income Tax Act permit legal representation as
a matter of right. However, the Courts in India have held that in situations where the person is
illiterate, or the matter is complicated and technical, or expert evidence is on record or a question
of law is involved, or the person is facing a trained prosecutor, some professional assistance must
be given to the party to make his right to defend himself meaningful.

Speaking Orders (Reasoned Decision)- The third principle of Natural Justice which has
developed in course of time is that the order which is passed affecting the rights of an individual
must be a speaking order. This is necessary with a view to exclude the possibility of arbitrariness
in the action. A bald order requiring no reason to support it may be passed in an arbitrary and
irresponsible manner. It is a step in furtherance of achieving the end where society is governed
by Rule of Law.
The other aspect of the matter is that the party, against whom an order is passed, in fair play,
must know the reasons for passing such an order. It has a right to know the reasons. The orders
against which appeals are provided must be speaking orders. Otherwise, the aggrieved party will
not be in a position to demonstrate before the appellate authority as to in which manner, the order
passed by the initial authorities is bad or suffers from illegality. To a very great extent, in such
matters bald orders render the remedy of appeal nugatory.
However, it is true that administrative authorities or Tribunals are not supposed to pass detailed
orders as passed by the courts of law. They may not be very detailed and lengthy orders but they
must at least show that the mind was applied and for the reasons, however briefly they may be
stated, the order by which a party aggrieved is passed. There cannot be any prescribed form in
which the order may be passed but the minimum requirement as indicated above has to be
complied with. The Supreme Court has many times taken the view that non-speaking order
amounts to depriving a party of a right of appeal. It has also been held in some of the decisions
that the appellate authority, while reversing the order, must assign reasons for reversal of the
findings.

UNIT- 14, 15
Introduction- In Administrative law, the term ‘tribunal’ is used in a significant sense and refers
to only the adjudicatory bodies which lie outside the sphere of the ordinary judicial system.
Technically in India, the judicial powers are vested in the Courts which aims to safeguard the
rights of the individuals and promotes justice. Therefore, to institute an effective system of the
judiciary with fewer complexities, the judicial powers are delegated to the administrative
authorities, thus, giving rise to administrative tribunals or administrative adjudicatory bodies
which hold quasi-judicial features.

Distinction between Courts and Tribunals

Courts Administrative Tribunal

A Court of law is a part of the traditional
judicial system.
A Court of law is vested with general
jurisdiction over all the matters.
It is strictly bound by all the rules of
evidence and by the procedure of the Code
of Civil Procedure.
It is presided over by an officer expert in
the law.
The decision of the court is objective in
nature primarily based on the evidence and
materials produced before the court.
It is bound by precedents, the principle of
res judicata and the principle of natural
justice.
It can decide the validity of legislation.
The courts do not follow investigatory or
inquisition functions rather it decides the
case on the basis of evidence.
The administrative tribunal is an agency created
by a statue endowed with judicial powers.
It deals with service matters and is vested with
limited jurisdiction to decide a particular issue.
It is not bound by the rules of the Evidence Act
and the CPC unless the statute which creates the
tribunal imposes such an obligation.
It is not mandatory in every case that the
members need to be trained and experts in law.
The decision is subjective i.e. at times it may
decide the matters taking into account the policy
and expediency.
It is not obligatory to follow precedents and
principle of res judicata but the principle of
natural justice must be followed.
It cannot decide the validity of legislation.
Many tribunals perform investigatory functions
as well along with its quasi-judicial functions.

Constitution (42nd Amendment) Act, 1976: The amendments made two major changes as far
as Tribunals are concerned.
● It took away the power of superintendence of High court over administrative tribunals
which they possessed under Article 227 of the constitution.
● After Part XIV, it inserted Part XIV-A (Article 323-A and 323- B) by enabling Parliament
to constitute administrative tribunals for the purposes specified therein. These
amendments may also provide for the exclusion of jurisdiction of all courts except that of
the Supreme court under Article 136.
Constitution (44th Amendment) Act, 1978:-
● Article 227 was amended and jurisdiction of High courts over administrative tribunal had
been restored.
● No amendment was made in Part XVI-A as inserted by the Constitutional (42nd
Amendment) Act, 1976.

Functions of Administrative Tribunal- The function of an Administrative Tribunal is to settle

disputes and complaints concerned with the recruitment and service conditions of persons
appointed to the public service and posts related to the affairs of the Union and the States. It was
set up by the Administrative Tribunals Act, 1985. This Act provides for three types of tribunals,
namely Central Administrative Tribunal, State Administrative Tribunal, and Joint Administrative
Tribunal.
The 42nd Amendment Act, 1976 incorporated tribunals into the Indian Constitution. It included
Articles 323-A and 323-B, which established tribunals to handle administrative and other issues.
Article 323-A deals with Administrative Tribunals, whereas Article 323-B deals with tribunals
for other matters. Administrative tribunals adjudicate disputes, determine rights between
contesting parties, and perform other functions.

Characteristics of Administrative Tribunals-

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

UNIT- 16, 17, 18, 19

Administrative Discretion In layman's language, discretion means an ability to make informed
choices. It is an inherent quality to discern right from wrong and arrive at decisions based on
reason and not according to personal whims and fancies. In Rooke's Case, Lord Edward Coke
laid down the definition of discretion as, "a science or undertaking to discern between falsity and
truth, between right and wrong, between shadows and substance, between equity and colourable
glosses and pretenses, not according to the will and private affections". Administrative discretion
implies the authority vested in the executive i.e. the public officials to undertake administrative
action based on their judgment. It is noteworthy here that administrative discretion can include
the power to act or not to act. It encapsulates various administrative activities like regulation of
private enterprise, production, manufacture and distribution of essential commodities etc for
securing social security of the people. Other ministerial functions include investigation,
detention, seizure, confiscation, and destruction of property etc. The ambit of administrative
function is wide and undefined. Administrative discretion is the principal source of creativeness
in government and in law. Wide discretion must be in all administrative activity. However, it
should not be unfettered so as to turn arbitrary and affect the principles of the rule of law.

Failure to exercise discretion- The main objective of discretionary power is that the authorities
use it. If there is a failure to exercise the power by the authorities, the action will be bad. The
said thing may happen when there is –
1. Sub-delegation: A discretionary power, must, in general, should be exercised only by the
authority it has been committed to. It is a well-known principle of law when power has
been confined to a person, it is because of his judgment which is trusted, thus he must
exercise it personally unless he has been expressly empowered to delegate it to others.
2. Imposing Fetters on discretion: An authority exercising power must exercise the same
after considering individual cases. Instead of doing that if the authority imposes fetters on
its discretion by adopting fixed rules of policy to be applied to all cases, it will be the
failure of exercise of discretionary power. This does not mean that no policy can be
adopted or no principles should be laid down. This means that even if a general policy is
adopted, each case should be considered based on its merit.
3. Acting under dictation- Sometimes, an authority entrusted with a power does not exercise
that power but acts under the dictation of a superior authority. Here, the authority
invested with the power purports to act on its own but in actual sense the power is
exercised by someone else. The authority concerned does not apply its mind and does not
take action on its own judgment, even though it was not so intended by the statute. In law,
this amounts to non-exercise of power by the authority and the action is bad. It is
well-settled that if the authority permits its decision to be influenced by the dictation of
others, it would amount to abdication and surrender of discretion. If the authority “hands
over its discretion to another body it acts ultra vires”. Such exercise of power violates the
constitutional scheme.
4. Non- Application of Mind: When a discretionary power is conferred on an authority, the
said authority must exercise that power after applying its mind to the facts and
circumstances of the case in hand. If this condition is not fulfilled, there is clear
non-application of mind on the part of the authority concerned. Thus in this situation,
there is failure to exercise discretion and the action is bad.
Doctrine of Proportionality- Doctrine of proportionality is applicable in cases where rights are
violated by administrative action and the courts scrutinize administrative conduct specifically
and go to the courts issue about the accuracy of the authority’s choices. The ordinary sense of
proportionality is that it should not be more extreme than it should be to achieve desired results.
It means you can not use a cannon to fire a sparrow. This philosophy, in other words, seeks to
balance means with ends.
Irrationality as a ground and legitimate expectation to challenge of any decision was developed
by the Court in Associated Provincial Picture House v. Wednesbury, later came to be known as
“Wednesbury test” to determine ‘irrationality’ of an administrative action decision of the
Administrative authority shall be deemed to be irrational:-
● if it is beyond the authority of law,
● if it is not based on evidence,
● if it is based on irrelevant consideration,
● if it is so absurd in its violation of logic or established moral standards that no reasonable
person may make such a decision on the facts and circumstances in question.
In other words, it is so ridiculous that no reasonable person would ever believe that it is beyond
the jurisdiction of the government. In a practical sense it is the use of the doctrine.
What Doctrine of Proportionality is in General Sense? Proportionality shares forum with’
reasonability’ and courts when exercising review power take into account the course of action
that would have been fairly pursued. Indian courts have long adopted this doctrine but English
courts have begun to use this doctrine in administrative law since the passage of the Human
Rights Act, 1998.
The theory of proportionality is applicable in cases where human freedoms are violated by
administrative action. In such a case, the courts scrutinize administrative conduct specifically and
go to the court's issue about the accuracy of the authority’s choices. Adverse effects on the right
would therefore be weighed by the courts and the purpose sought to be accomplished, where the
issue of the quantity of penalty levied by the regulatory authority is concerned, the courts would
not be subject to strict scrutiny. Courts follow the idea that while the quantity of punishment is
beyond the regulatory authority’s control, it is important to prevent arbitrariness. This concept
can be called the ‘deference concept’ where the court shows consideration for the regulatory
authority’s option except when the option is manifestly excessive.
When evaluating an administrative action on the grounds of proportionality Courts typically
consider two issues, namely:-
1. Whether the relative merits of specific objectives or interests have been properly weighed
and equally balanced?
2. Whether the action under review was, in the circumstances, excessively restrictive or
inflicted an unnecessary burden?

Legitimate Expectations- This doctrine serves as a ground of judicial review to protect the
interest when a public authority rescinds from a representation made to a person. A legitimate
expectation arises in the mind of the complainant who has been led to understand expressly or
impliedly that certain procedures will be followed in reaching a decision. The expectation has a
reasonable basis. This doctrine has evolved to give relief to the persons who have been wronged
because of the violation of their legitimate expectation and have not been able to justify their
claims on the basis of law. Two considerations determine legislative expectations-
1. Where an individual or group has been led to believe impliedly or expressly that a certain
procedure will apply.
2. Where an individual or group relies upon a particular policy or guideline which has
previously governed an area of executive action.

Doctrine of Promissory Estoppel- The doctrine of promissory estoppel is an equitable doctrine

evolved by equity to prevent injustice. The doctrine stops the promisor from retracting from his
promise in case while acting on the promise of the promisor, the promise alters his/ her position.
It is based upon principles of justice, fair play, and good conscience. The doctrine is different
from the rule of estoppel spelled out in Section 115 of the Indian Evidence Act, 1872 as said
section talks about the representation made as to the existing facts whereas the promissory
estoppel deals with the future promises. The doctrine is neither in the realm of contract nor in the
realm estoppel.
The question whether doctrine is applicable against Government or not assumes more
importance in view of the Article 229 of the Constitution of India which provides for the
procedure for execution of contracts by the Government and requires the same to be
compulsorily recorded in the form of a formal contract. And also, since the doctrine of
promissory estoppel dilutes the principle which requires consideration to enforce a contractual
obligation. The Supreme Court in the catena of judgments has held that the promissory estoppel
is applicable against the Government, but with the passage of time certain exceptions are
developed to this general rule. Thus, where the Government makes a promise knowing or
intending that it would be acted on by the promisee and, in fact, the promisee, acting in reliance
on it, alters his position, the Government has been held bound by the promise and the promise is
held to be enforceable against the Government at the instance of the promisee notwithstanding
that there is no consideration for the promise and the promise is not recorded in the form of a
formal contract as required by Article 229 of the Constitution.
Circumstances under which the doctrine of estoppel cannot be applied against the Government
1. Doctrine of promissory estoppel cannot be applied to aid to compel Government to carry
out a representation or promise which is contrary to law- There is no promissory estoppel
against law. This exception was first laid down by the United States Supreme Court in
Federal Crop Insurance Corporation v. Merrill wherein the promise made by the
Government that even reseeded wheat is insurable was held to be not enforceable against
the Government since the crop insurance regulations prohibited insurance of reseeded
wheat. The promise being contrary to the wheat crop insurance regulations was held to be
not binding on the Government. The Government being a non-natural person is basically
 dependent upon its officers and agents, therefore as a rule of prudent the government is
not bound by the promise of its officers and agents who without authority enter into
agreements to do what the law does not sanction or permit. The exception is well
recognized in India also. The Supreme Court of India in Kasinka Trading v. Union of
India while adjudicating the applicability of the doctrine of promissory estoppel against
the Government concluded that the doctrine cannot be used to compel the Government to
carry out a representation or promise which is contrary to law or which was outside the
authority or power of the officer of the Government to make.
2. Public interest prevails over promissory estoppel- The Courts in India have in various
judgments held that the doctrine of promissory estoppel cannot be invoked in the abstract
against the Government and the courts are bound to consider all aspects including the
public good at large.
Thus, it can be safely concluded that the doctrine of promissory estoppel which has been also
called equitable estoppel is applied against the Government. But under certain circumstances as
discussed above, the Government (with due regard to the doctrine of executive necessity) can be
exempted from the application of the doctrine of promissory estoppel even though the person
may have acted upon the representation and altered his position.

Judicial Remedies- Five types of writs are available for judicial review of administrative actions
given under Article 32 and Article 226 of the Constitution of India.
1. Habeas Corpus- It means “have the body”. This writ is issued as an order calling upon the
person who has detained another person to produce the detainee before the court of law.
If the court finds out that the detention has been illegal or without legal justification, it
will order for the immediate release of the detainee. The main objective of this writ is not
to punish the detainer but to release the detainee from wrongful detention.
2. Mandamus- It means ‘to command the public authority’ to perform its duty. It is a
command given by the higher courts (High Courts and Supreme Court) to the
Government, Inferior courts, tribunals, corporations, authorities or any other person to do
any act or refrain from doing an illegal act. The purpose of this writ is to compel the
performance of public duties and to keep control over the activities of the administration.
3. Quo Warranto- The word ‘quo warranto’ means by what authority. Such writ is issued
against a person who usurps a public office. The court directs the concerned person to
show by what authority he holds that office. The unauthorized or illegal usurper would be
removed by judicial order and the right person belonging to it would be entitled to it.
4. Prohibition- Prohibition is issued by a superior court to an inferior court or tribunal or
body exercising judicial or quasi-judicial functions to prevent them from exceeding their
jurisdiction. It is based upon the maxim ‘Prevention is better than cure’.
5. Certiorari- This writ is issued by the Superior Courts (High Courts and the Supreme
Court) to the inferior court or tribunal or body which may exercise judicial or
quasi-judicial functions, for the correction of jurisdiction or error of law committed by
 them. If any order passed by them is illegal, then the Superior Court may quash or
demolish it. Grounds of this writ are (a) excess or failure to exercise the jurisdiction (b)
violation of the principles of natural justice (c) authority has failed to correct an error
which has been apparent on the face of the record.

Injunctions: An injunction is a prohibitive writ issued by a court of equity, at the suit of a party
complainant, directed to a party defendant in the action, or to a party made a defendant for that
purpose, forbidding the latter to do some act, or to permit his servants or agents to do some act,
which he is threatening or attempting to commit, or restraining him in the continuance thereof,
such act being unjust and inequitable, injurious to the plaintiff, and not such as can be adequately
redressed by an action fit law. For example, if it so happens that a person is demolishing a
building you have possible claims on, you may ask the competent court to order such person to
not demolish the building until the trial for the claim of the building is complete and judgment
goes in his favor. The law of injunction has been provided for by the Specific Relief Act, 1963
(hereinafter, the Act), and is also regulated by the Code of Civil Procedure, 1908 in India.

Types of Injunction
Prohibitory injunction- A prohibitory injunction requires the other party to refrain from doing
something. They may be obtained, for example, to safeguard confidential information acquired
in the course of business; to prevent a breach of contract; or to stop a party taking legal
proceedings (an anti-suit injunction). They can be interim or final.The court will only grant an
injunction if it is satisfied on the facts that:
● there is a serious issue to be tried;
● it appears to the court to be just and convenient to do so and the applicant has ‘clean
hands’ (eg, has not delayed unreasonably or acted improperly themselves);
● damages would not be an adequate remedy to resolve the dispute.
Mandatory injunction- A mandatory injunction requires a party to do something (eg, deliver up
goods or make available documents). The court is generally more reluctant to grant a mandatory
injunction than a prohibitory injunction and will normally only grant one if:
● the applicant will suffer serious harm if the injunction is not granted;
● the applicant will most likely succeed at trial;
● the respondent will not incur expenditure which would be disproportionate to the
applicant’s harm.
Temporary Injunction- A temporary injunction is a provisional relief that aims to protect the
subject matter in the existing condition, without the defendant’s interference or threat. It aims to
protect the plaintiff from getting disposed of, or his property (subject matter) being destroyed or
harmed, or from any injury to the plaintiff. The primary reason behind a temporary injunction is
to protect the interests of an individual or entity, till the final judgment is passed. A temporary
injunction, when granted, continues to remain for a specified period of time, or till the court
deems fit.
When can Temporary Injunction be granted? The Temporary Injunction may be granted, subject
to three tests:-
● Prima Facie Case: Prima Facie literally means, on the face of it. In Martin Burn Ltd. vs.
R.N. Banerjee, while discussing the meaning of the ‘prima facie’ case, the court said: “A
prima facie case does not mean a case proved to the hilt but a case which can be said to
be established if the evidence which is led in support of the same were believed. While
determining whether a prima facie case had been made out the relevant consideration is
whether on the evidence led it was possible to arrive at the conclusion in question and not
whether that was the only conclusion which could be arrived at on that evidence.” Prima
facie case is a must to be eligible to obtain a temporary injunction. However, it is not
sufficient and a temporary injunction cannot be granted if the damage that will be caused
if the injunction is not given is not irreparable.
● Irreparable Injury: ‘Irreparable injury’ means such injury which cannot be adequately
remedied by damages. The remedy by damages would be inadequate if the compensation
ultimately payable to the plaintiff in case of success in the suit would not place him in the
position in which he was before the injunction was refused.
● Balance of Convenience: In the case of Anwar Elahi, the court has clearly explained the
meaning of ‘balance of convenience’. According to the court: “Balance of convenience
means that comparative mischief or inconvenience which is likely to be issued from
withholding the injunction will be greater than that which is likely to arise from granting
it. In applying this principle, the Court has to weigh the amount of substantial mischief
that is likely to be done to the applicant if the injunction is refused and compare it with
that which is likely to be caused to the other side if the injunction is granted.”
Permanent Injunction- A permanent injunction can be granted by the court by passing a decree
made at the hearing and upon the merits of the suit. Once such decree is passed, the defendant is
permanently prohibited from the assertion of a right, or from the commission of an act, which
would be contrary to the rights of the plaintiff.
When can a permanent injunction be granted? A permanent injunction may be granted:
a. To the plaintiff in a suit to prevent a breach of an obligation existing in his favor, whether
implicit or explicit. However, in a case where such an obligation arises out of a contract,
the court follows the rules as specified by Chapter II of the Specific Relief Act. Chapter
II, under Section 9 provides that a person may claim relief in respect to a contract, by
pleading in his defense, any of the grounds available to him under any law relating to
contracts.
b. In a case where the plaintiff invades or threatens to invade the the plaintiff’s right to, or
enjoyment of, property, the court may grant a permanent injunction where:
The defendant is trustee of the property for the plaintiff; There exists no standard for
ascertaining the actual damage caused, or likely to be caused, by the invasion; The
invasion is such that compensation in money would not afford adequate relief; The
injunction is necessary to prevent a multiplicity of judicial proceedings.
Public Interest Litigation (PIL)- Public Interest Litigation (PIL) means litigation filed in a
court of law, for the protection of “Public Interest”. Any matter where the interest of the public at
large is affected can be redressed by filing a Public Interest Litigation in a court of law such as
Pollution, Terrorism, Road safety, Constructional hazards, etc. The expression ‘Public Interest
Litigation’ has been borrowed from American jurisprudence, where it was designed to provide
legal representation to previously unrepresented groups like the poor, the racial minorities,
unorganized consumers, citizens who were passionate about environmental issues, etc.
PIL is not defined in any statute or in any act. It has been interpreted by judges to consider the
intent of the public at large. It is the power given to the public by courts through judicial
activism. However, the person filing the petition must prove to the court’s satisfaction that the
petition is being filed for public interest and not just as a frivolous litigation by a busy body.
Some of the matters which are entertained under Public Interest Litigation are Neglected
Children, Bonded Labour matters, Atrocities on Women, Non-payment of minimum wages to
workers, exploitation of casual workers, food adulteration, Environmental pollution, and
disturbance of ecological balance, Maintenance of heritage and culture, etc.

UNIT- 20, 21
Liability of administration in tort- State liability refers to the liability of the state arising from
the acts of omission/ commission committed by its servants. It has been governed by written or
unwritten laws and is not a static concept. The State’s liability for the tortious acts of its servants,
known as the tortious liability of the State, makes it liable, voluntarily or involuntarily, for acts of
omission and commission, and puts it before the Court of Law in a claim for unliquidated
damages to such acts.
● English law (Doctrine of Crown Privilege)– In England, the Crown’s outright
insusceptibility was acknowledged under precedent-based law. The administration
depended on the maxim “the King can’t be blamed under any circumstance”. In 1863, in
Tobin v. R., the court observed: “if the Crown were at risk in tort, the rule might have
appeared to be insignificant”. In 1947 the Crown Proceeding Act was enacted which put
the Government in an indistinguishable position from a private person’s view.
● Indian Law – The maxim ‘the king can’t be blamed under any circumstance’ was never
acknowledged in India. The government’s absolute insusceptibility was not understood in
the Indian legal system before the constitution’s beginning and in numerous cases, the
government was subjected to its employees’ convoluted actions. According to Article
294(4) of the Constitution, the liability of the Government of the Union or a Government
of the State can arise ‘from some contract or other.’ Article 12 of the Indian Constitution
defines the term ‘state’. Under Article 300(1), the degree of such liability is settled. It
states the Union of India or State Government’s liability to be the same as that of
Dominion of India and the Provision before the Constitution commenced. The idea of
open responsibility involves an open concern which is imperative. It is a settled law that
every single optional power must be sensibly practiced in greater open intrigue.
 The vicarious liability of the State (for torts) shall be borne by its servants in the exercise
of the duties of the State. If the acts performed were necessary to protect life or property,
the State would not be held liable. Acts such as judicial or quasi-judicial decisions made
in good faith also invite no liability whatsoever. There are specific statutory provisions
that are binding on the administrative authorities. However, such protection would not
scale up malicious acts. The burden of proving a malicious act would lie on the person
who is assaulting the administrative action. The principles of tort law would apply in
determining what is a tort and the public servant would also have access to all of the
defenses available to the respondent in a tort lawsuit.
● Respondeat Superior (Let the principal be liable)- Respondeat Superior (Let the
master answer) was brought to the premise of the subordinates’ limited economic
capacity, and the irresponsible behavior of superiors such as masters or employers was
controlled. This doctrine is based on public policy since it aims to assign the risks usually
associated with it to the business. When applying this doctrine, an employer and the
master are liable for the negligent commissions or omissions of an employee and the
servant which occur during employment. Nevertheless, a relationship between the
superior and the subordinate should be established for the liability to fall upon the
superiors. Actions performed by the subordinates during their jobs or agency under an
employer or a master’s explicit or implied authority, respectively. There are two
requirements of the doctrine:
➢ A true master-servant and employer-employee relationship.
➢ The tortious act of a servant and an employee must be one within the scope of his
employment. The ‘scope of employment’ refers to the act performed under the express or
implied authority of the superiors.
● Qui-Facit per Alium Facit per se (He who acts through another does it himself)- Qui
facit per alium facit per se is a fundamental statutory maxim of agency law. It is a maxim
frequently stated when discussing the employer’s liability for the employee’s actions as
regards vicarious liability. According to this maxim, by employing servants the master is
obliged to perform the duties, he is responsible for their actions in the same way as he is
responsible for his actions. Indirectly, in the role portrayed by the agent, the concept is in
practice or present such that the role performed is seen as the work of the agent himself.
Anything that a principal can do for itself can be done through an agent. The exception to
that maxim would be personal acts of nature.

Compensation by State- The word ‘tort’ (civil wrong- the violation of legal obligation) has
been defined in Chambers Dictionary in the following words:- “Tort is any wrong or injury not
arising out of contract for which there is a remedy by compensation or damages.” Therefore, tort
occurs either from infringement of no contractual obligation or from neglect of civil duty. In
other words, a tort is a civil wrong, for which damages are the only remedy. The breach of
obligation towards people, in general, is the basic prerequisite for the execution of the tort.
Though tort is a civil wrong, it’d be wrong to imply that all civil mistakes are tort.
According to section 70 of the Indian Contract Act, if a person is lawfully doing anything for
another person or delivering anything to him the other person enjoys the profit thereof, the latter
is obliged to indemnify the former or restore the thing so done or delivered to him. If Section
70’s conditions are met, then the government would be liable to pay compensation for the work
performed or services rendered by the state. Section 70 is not based on a subsisting contract
between the parties but a quasi-contract or restitution basis. This encourages an individual selling
goods or providing services not for free to demand compensation from the person receiving the
value of the same. This is a duty that exists on equal grounds and it does not appear to be an
explicit agreement or contract.
If the agreement with the Government is null and void according to Article 299(1), the party
obtaining the advantage under that agreement is obliged to restore it or indemnify the individual
from whom it was obtained. Therefore, if a contractor agrees with the government to construct
the down payment received and the agreement is found to be void as the conditions of Article
299(1) have not been met, the government may recover the amount advanced to the contractor
according to Section 65 of the Indian Contract Act. Section 65 provides that if an agreement is
found to be invalid or a contract is invalid, any person who has received any benefit under such
agreement or contract is obliged to restore it and compensate the person from whom it was
received. A public servant might be incompetent in the performance of his duty and obtaining
compensation from him is difficult. The compensation is more important to the aggrieved person
than punishment. The State must also be vicariously held responsible for the wrongdoings of its
servants.

Contractual Liability in Government Contracts- Under Article 299 Clause 2, the President
and the Governor and the person who is authorized to act on their behalf are provided immunity
from any personal liability which may be incurred due to non-performance of the contract. This
immunity is provided to them only but it does not mean that the Government is also not liable for
the contract because it would be unfair for the other party. So the liability of the Government will
be the same as is the case in a normal contract under the Indian Contract Act, 1872. Thus, a
person can sue the Government for the breach of contract and may be awarded damages by the
court.
The courts have also held that in case the Government has derived any benefit from a person by
an agreement which does not fulfill the requirements under Article 299, the Government will be
held liable for compensating the other party under Section 70 of the Contract Act and such a
contract will be deemed to be a quasi-contract to the extent the Government gets the benefit. This
has been provided to protect an innocent party from suffering loss. Under Section 70 of the
Indian Contract Act, 3 conditions have been provided:
1. A person should do something lawful for another or he should deliver something to
another person
 2. He must do such an act without the intention of doing it gratuitously
3. The person for whom such an act has been done or something has been delivered, should
enjoy the benefit from such act or delivery.
This view has been adopted because the modern Government performs many functions and in
carrying out these functions many petty contracts are also entered into as a result of which strict
compliance with Article 299 is not observed in many cases. If what has been done by the other
person is for the benefit of the Government and except for compliance with article 299 and all
the other aspects of the contract are proper then, Section 70 should be applied. Similarly, if a
person has derived any benefit from the Government under such contracts, the Government also
has the right to sue that person under Section 70. In the case the Government has made a void
contract then it has the right to recover the benefits given by it from the other party under section
65 of the Indian Contract Act.
Although Section 70 allows the party to recover the benefits provided by it, it does not affect the
binding character of Article 299. Under Section 70 a person cannot sue for the specific
performance of the contract and he cannot ask for damages for the breach of contract. Under
Section 70, the cause of action is not the breach of contract but instead, it is aimed to avoid the
unjust enrichment to any party whether a person or even the Government. So, the claim under
section 70 is based on the assumption that the contract is ineffective and thus it does not amount
to a contract at all.

UNIT- 22
Civil Services in India-: Administrative capability is a major and crucial factor in the success or
failure of development efforts. Administrative modernization has been increasingly recognized
as an integral part of the development process. The ability to assume new tasks, to cope with
complexity, to solve novel problems, to modernize resources, etc., depends upon the
administrative capacity based on increased professionalization, bureaucratization, modernization
and administrative talent. This highlights the role of public and personnel administration. The
quality of the institutions run by the Government is dependent to a great extent upon the quality
of the employees engaged in their operation. The efficient personnel administration can generate
development, dynamism and modernization and ultimately lead to nation building through
lubricating and optimizing the capacity and capability of personnel within the Government
machinery. The functionaries in public administration can be categorized as "civil services on the
one hand and public services on the other. In current literature on the subject:-
The term civil service denotes the entire group of personnel under the employment of
governmental systems only, mainly the central government and the state governments.
The term public service is used for government employees, quasi-government employees as well
as employees of local bodies.
Functions of Civil Services:-
1. Basis of Government: There can be no government without administrative machinery.
 2. Implementing Laws & Policies: Civil services are responsible for implementing laws and
executing policies framed by the government.
3. Policy Formulation: The civil service is chiefly responsible for policy formulation as
well. The civil service officers advise ministers in this regard and also provide them with
facts and ideas.
4. Stabilising Force: Amidst political instability, the civil service offers stability and
permanence. While governments and ministers can come and go, the civil services is a
permanent fixture giving the administrative set up a sense of stability and continuity.
5. Instruments of Social Change & Economic Development: Successful policy
implementation will lead to positive changes in the lives of ordinary people. It is only
when the promised goods and services reach the intended beneficiaries, a government can
call any scheme successful. The task of actualising schemes and policies fall with the
officers of the civil services.
6. Welfare Services: The services offer a variety of welfare schemes such as providing
social security, the welfare of weaker and vulnerable sections of society, old-age
pensions, poverty alleviation, etc.
7. Developmental Functions: The services perform a variety of developmental functions like
promoting modern techniques in agriculture, promoting the industry, trade, banking
functions, bridging the digital divide, etc.
8. Administrative Adjudication: The civil services also perform quasi-judicial services by
settling disputes between the State and the citizens, in the form of tribunals, etc.

Public Corporation- “The public corporation is a hybrid organism, showing some of the
features of a Government department and some of the features of a business company, and
standing outside the ordinary framework of Central or Local Government ''.
Essential Features of Public Corporation:-
● Statutory public corporation is created by a statute which lays down its rights, duties and
obligations. Any act of such a public corporation outside the authorized area of operation
shall be ultra vires and cannot bind the corporation. Such ultra vires acts cannot be
ratified.
● It is wholly owned by the state
● It has a separate legal entity and such it can use or be used, enter into contract or acquire
property in its own name.
● Public corporations are largely autonomous in finance and management except for
appropriation to provide capital or to cover losses. It has funds on its own and is
authorized to use and re-use its revenue.
● A public corporation is generally exempted from most regulatory and prohibiting statutes
applicable to expenditure of public funds.
● It is ordinarily not in the budget, according to audit lams and procedures applicable to
non-corporate agencies.
 ● A Statutory public corporation is a ‘state’ within the definition of the term in Article 12
of the constitution and such, it is subject to the writ jurisdiction of the Supreme Court and
High Courts under Articles 32 and 226 of the constitution, respectively.
● In majority of the cases, the employees of public corporations are not civil servants. They
are appointed and remunerated under the terms and conditions which the corporation
determines itself.
● A public corporation however, is not a citizen within the meaning of Part II of the
constitution and as such cannot claim the fundamental rights given in Article 19 of the
constitution.
Common Features of public corporation-
● The public corporations are identical in their constitution. Each has a governing body,
established by a constituent statute, consisting of a chairman and a defined number of
members.
● The public corporations are largely autonomous in finance and management. They have
their own separate accounts, which are audited by qualified auditors. The audition reports
are published annually together with the general report to the activities of the corporation.
● Some public corporations are expressly required by their constituent statutes to act for
and on behalf of the crown; others can act only on the directions of a specific minister.

Ombudsman- Ombudsman means a delegate, agent, officer or commissioner. Gender defines

ombudsman as “an officer of parliament, having as his primary function, the duty of acting as an
agent for parliament, for the purpose of safeguarding the citizen against abuse or misuse of
administrative power by the executive.” Administrative law provides for control over the
administration by an outside agency, strong enough to prevent injustice to the individual, at the
same time leaving the administration adequate freedom to enable it to carry on effective
government. In every progressive system of administration, there is a need for a mechanism for
handling grievances against administrative faults. The Ombudsman is one such mechanism.
Ombudsman therefore, is an appointed official whose duty is to investigate complaints, generally
on behalf of individuals such as consumers or taxpayers, against institutions such as companies
and government departments. Ombudsman means the “grievance man” or a “commissioner of
administration”. According to Garner, he is an officer of parliament having as his primary
function, the duty of acting as an agent for the parliament for the purpose of safeguarding the
citizen against abuse or misuse of administrative power by the executive.
Characteristics of ombudsman:
1. Independence- It is a body that assists with fair and expeditious resolution of complaints
in an impartial, confidential and independent manner.
2. Impartiality and fairness- It works impartially
3. Credibility- It maintains its Credibility
4. Confidentiality
According to Professor S.K Agrawal, the term ombudsman refers only to institutes, which have
few basic and unique characteristics, that is– Ombudsman refers to an independent and
nonpartisan officer of the legislature who supervises the administration. He deals with specific
complaints from the public against administrative injustice and maladministration.
Powers and Duties of Ombudsman- Ombudsman is a watchdog of the administration or the
protector of the little man, ombudsman inquires and investigates all complaints made by the
citizen against the abuse of discretionary power, mal-administration inefficiency and takes
appropriate actions. For that purpose, very wide power has been given to him, he has access to
departmental files. The complainant is not required to give any evidence before the ombudsman
to prove his case; he is empowered to grant relief to the aggrieved person. His function is to
satisfy himself whether the complaint is justified or unjustified. He can act even suo-moto. These
powers are not limited like the powers of civil court, he is responsible and responsive to people.
Nature/Status of an ombudsman is judge or lawyer or a high officer and his character, reputation
and integrity are above board. He is appointed by the parliament and sets out the reaction of the
citizens against the administration. He makes his own recommendation to eliminate the cause of
complaints. Ombudsman is thus a strong position to redress individual grievances arising out of
bad administration. He is above party politics and is in a position to think and decide objectively.
There is no interference even by Parliament in the discharge of his duties. He makes a report to
Parliament and sets out reactions of citizens against the administration. He also makes his own
recommendations to eliminate the causes of complaints. Very wide publicity is given to those
reports, all his reports are also published in the national newspapers. Thus, in short, he is the
'watchdog' or 'public safety valve' against maladministration, and the "protector of the little
man".

Central Vigilance Commission- Central Vigilance Commission is an apex autonomous

institution, conferred with the power to review and monitor the governmental activities to ensure
a corruption-free environment. The authority has been accorded with a statutory status in 2003
by the Central Vigilance Commission Act.
Jurisdiction- Central Vigilance Commission has jurisdiction over all these persons as mentioned
below:
● Member of All India Service serving in connection with Union and Group-A officers of
the Union.
● Officers of the rank of scale-V and above in public sector banks.
● Officers Grade D and above in RBI, NABARD and SIDBI.
● Managers and clove in GIC (General Insurance Corporation).
● Senior Divisional Managers & above in the LIC.
● Chief executive & executives and other officers of and above E-8 in Schedule A and
Schedule B of the Public Sector Undertaking.
● Chief executive, executives, and other officers of and above E-7 in Schedule C and
Schedule D Public Sector Undertaking.
Composition of CVC- Central Vigilance Commission, as a statutory body, consists of one
Central Vigilance Commissioner and not more than two Vigilance Commissioners. The President
of India shall appoint them all by warrant under his hand and seal. This appointment shall be
based on the recommendation of a committee headed by the Prime Minister and leader of the
opposition of Lok Sabha. They hold office for four years or till 65 years of age.
Functions of CVC- The main functions of the Indian Central Vigilance Commission are:
● The Central Vigilance Commission is given the responsibility to prevent corruption in
India. As a proactive body, it is expected to exercise jurisdiction over the functioning of
the Delhi Special Police Establishment (DSPE) constituted under the DSPE Act (1946)
concerning investigating offenses alleged to have been committed under the Prevention
of Corruption Act, 1988. It also has powers to investigate an offense with any servants
belonging to categories like All India Services connected with the Union and may be
charged under the Code of Criminal Procedure, 1973.
● To give direction to Delhi Special Police Establishment to discharge the responsibility of
superintendence, but the Commission shall not exercise power in such a manner to
require the DSPE to investigate matters in any case in a particular manner.
● To enquire or call the inquiry or investigation to be made on a reference by the Union
government wherein it is a complaint that public servant being an employee of Union
government or corporation established by or under any Union Act, the government
company, society, and any other local authority owned or controlled by the government,
has committed an offense under Prevention of Corruption Act, 1988.
● To review the progress of the investigation conducted by DSPE into offenses relating to
the Prevention of Corruption Act, 1988.
● To exercise superintendence over vigilance administration by various ministries by the
Union government or corporation established by or under any Union Act, government
company, society and local authorities owned or controlled by the government.
● The appointment of a Central Vigilance Officer must get approved by the Central
Vigilance Commission, and no person shall be appointed if the Commission objects to it.
CVC is authorized to draft an annual confidential report of CVO.
Apart from these, CVC also enjoys an advisory role. It extends to all matters on vigilance
administration referred to it by the department of the Union government. It is mandatory on the
part of the organization to see the Commission’s advice before proceeding further in a matter
where the earlier report was called for by the Commission. The Commission gives second-stage
advice where major penalty proceedings are advised. The Commission needs to be consulted for
cases where enquiry proceedings are not possible due to extraordinary circumstances.
Commission tenders advice to the Union government, corporations and companies on such
matters as may be referred to it. With all these authorities, CVC is expected to discharge its
duties to discourage corruption in the country. Its proceedings are judicial in character, and it
presents a report to the President, who places it before each House of Parliament.
Limitations of CVC- Although the Central Vigilance Commission is enjoying statutory status, it
is suffering from some limitations:
● The Commission is an agency of executive with statutory status, and it is only an
advisory body. Departments are free to either accept or reject the advice of the
Commission.
● The Commission has no investigating mechanism of its own. It depends upon CBI. It
cannot direct CBI to initiate an enquiry and to complete an enquiry in each period.
● The Commission does not have any power to register any criminal case.
● Although it has supervising power over CBI, it does not have the power to call any files
from CBI or to direct CBI to investigate the case in a particular manner.
Conclusion- As a result, the Central Vigilance Commission is not remarkably effective, and to
check corruption, a number of other institutions, including Lokpal, are in demand. Thus, looking
at the statutory power, functions, and limitations of the CVC, we can conclude that this has
become yet another body in the hands of the legislature that can be compared to a gun with an
empty barrel. To improvise the same, the government must grant investigating power and
punitive powers to the Central Vigilance Commission, where judicial intervention is not
required.