ADMINISTRATIVE LAW

MODULE I: INTRODUCTION – SOME BASIC CONCEPTS – SOCIETY, STATE,

LAW, RIGHTS AND POWERS

Article 323 A and Article 323 B were added to the Constitution to facilitate the
establishment of Special Tribunals to meet the needs of Administrative justice.

 Article 263 – Creation of Inter State Council

 Article 280 – Finance Commission
 Article 262 – Adjudication of disputes relating to waters of inter State
rivers or river valleys
 Article 315 – Public Service Commission of India
 Article 324 – Election Commission
Constitutional Law & Administrative Law

Sl. Constitutional Law Administrative Law

No.
1. Anti-majoritarian Anti-Authoritarian

2. Power is limited by expressed or Exercise of Constitutional power

implied Constitutional limitations is limited by the norms and
and values principles of Administrative law
of Fairness, reasonableness and
Justness.
3. According to Holland – Holland – Administrative Law
Constitutional Law describes various describes various organs of the
organs of the govt. at rest govt. in motion.
4. Structure of the Legislature and the But their functioning comes
Executive comes within the purview within the sphere of
of constitutional law. Administrative Law
5. Deals with the Rights Lays emphasis on Public Needs
6. Source – Constitution Source – Statutes, Statutory
Instruments, Precedents,
Customs.

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The Concept of Rule of Law

Modern writers located this quality of law which includes clarity, stability,
impartial, justice.

 This idea was originated by Sir Edward Coke who was the Chief Justice of
England during the reign of King James I.
 The need of this concept was that there was a famous maxim regarding
the ‘Rule of law’ which was devised by Blackstone, “King can do no
wrong”.
 During that period of Monarchy, the king had a lot of arbitrary powers,
discretionary powers and to prevail over the concept of “King can do no
wrong”, Sir Edward Coke came up with the concept of “Rule of Law”.
 The concept has been published, refined and shaped by A. V. Dicey. In
1885, he wrote a book named “Introduction to the Study of the Law of
the Constitution”. In this book he has mentioned about the Rule of Law.
According to him, law is absolutely supreme and it excludes the existence
of arbitrariness in any form. According to Dicey where there is scope
discretion there is room for arbitrariness.
 “De Princepe Legalite” (The Principle of Legality) under which A. V. Dicey
explained the concept of rule of Law.
 Dicey’s Concept of Rule of Law
Dicey gave 3 Fundamental Explanations or principles to define Rule of
Law which is called Dicey’s Concept of Law.
(i) Supremacy of Law.
(ii) Equality before Law.
(iii) Predominance of Legal Spirit- more power to judiciary
(i) Supremacy of Law or Absence of Arbitrary Power: There should be no
absolute power of discretion or absolute arbitrary power to the king.
The king also should be subject to law. All individuals whether a common
man or a government authority are bound to obey the law. No man can
be punished for anything other than a breach of law. And the offence is
required to be proved before the courts. That is, Law is above all.
(ii) Equality before Law: Rule of law conveys that no man is above the
law. Even the Government Officials are under a duty to obey the same
law. (Article 14)

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 (iii) Predominance of Legal Spirit: The judiciary is the protector of law.
Maximum power has been given to the judiciary. Judicial Review power
is also given to the judiciary over both the Legislative and the Executive.
 The concept of rule of law propounded by Dicey was discarded by his
own country France. However, the USA adopted the concept of Rule of
Law.
 In India, our Constitution is the supreme. We consider the Constitution
to be the basic ground work of laws from which all other laws are
derived.
 Droit Administratif
Droit Administratif is a French Administrative law. It does not represent
the principles and rules laid down by the French Parliament but contains
rules developed by judges of the administrative courts.
In this Tribunalisation System, France does not have Judiciary as a
separate wing. Judiciary is clubbed with the Executive. The Judiciary is
not immune from the interference of the Executive.
When a conflict arises in regard to Jurisdiction between ordinary courts
and Droit Administratif, the matter is decided by Tribunal des Conflits.
Advantages of Rule of Law

1. It helps to make administrative authorities confined to their limits.

2. It has become a yardstick to test administrative actions.
3. It helps the recognition and growth of the concept of Administrative law.
Disadvantages of Rule of Law or Negative aspects of Rule of Law

1. Dicey’s thesis was not completely accepted even in his own time.
2. Even now there is a long list of statutes which permit the exercise of
discretionary powers to the administrative authorities which cannot be
taken to the courts.
3. Instead of not just disallowing arbitrary powers, the rule of law insists
that administrative authorities should not be given discretionary powers.

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ADM Jabalpur v. Shivkant Shukla (1976) – (Habeas Corpus Case)

 On 25th June 1975, Emergency was proclaimed by Smt. Indira Gandhi’s

govt. on account of Internal Disturbance by virtue of Art. 358 of
Constitution of India (CoI).
 The citizen’s seven classic freedoms under Art. 14 stood automatically
suspended.
 On June 27, the President of India issued an order under Art. 359 of
Constitution suspending the enforcement of 3 Fundamental rights under
Article 14, 21, and 22.
 On the night of the 25th June, and thereafter a large of persons were
detained under the Maintenance of Internal Security Act, 1971 (MISA
Act). Many of them were not even informed of the grounds of their
detention.
 Some of them filed writ petitions in different High Courts challenging the
detention order as illegal and unconstitutional, praying for the issue of a
writ of Habeas Corpus.
 When these petitions came up for hearing, the govt. raised a preliminary
objection as to maintainability of the petitions on the ground that in
asking for their release by Writ of Habeas Corpus, the petitioners were in
substance claiming that they have been deprived of their personal
liberty in violation of the procedure established by the Law. But that a
plea available to them under only Article 21 of the CoI, and since
enforcement of Art. 21 was suspended by the President’s order on 27th
June 1975, the petitions were liable to be dismissed at the threshold.
 So, the petitions which were filed by these petitioners were not
entertained by the High Court on the ground of Emergency (suspension
of fundamental Rights).
 In Supreme Court, a Bench of 5 judges (Constitution Bench) was
constituted, consisting Chief Justice A.N. Roy, Justice Khanna, Justice
Beg, Justice Chandrachud and Justice Bhagwati.
 The judges ruled in favour of the Govt. with 4:1 majority.
 Only Justice Khanna had the courage to take the right decision in favour
of human life and liberty. (Art. 21 says that no person shall be deprived

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 of his life or personal liberty except according to procedure established
by law).
 Here it was highlighted that the Constitution is mandatory/ obligatory.
The Constitution is the Rule of law. There cannot be any rule of law
other than the Constitutional Rule of law. There cannot be any pre-
constitution and pro-constitution and nor there can be any invocation of
any rule of law to nullify the Constitutional provision during the time of
Emergency.
Doctrine of Separation of powers

 John Locke (Englishman) – The king should not enjoy all the powers
related to legislation. He said that legislative powers should be divided
between the King and the Parliament in England.
 His point was that liberty is most effective if it is safeguarded by
separation of powers.
 Distribution of powers among three organs i.e. Legislature, Judiciary and
Executive.
 Despotic Govt. – Govt. enjoying unlimited power. No checks and
balances.
 In 1748, Montesquieu wrote a book “De I’ Spirit Des Lois (The Spirit of
the Law) and there he has mentioned the concept of Rule of Law.
- With the legislative and the executive powers united in the same
person, body or magistrate, there can be no liberty.
- When joined with the executive power the judges might behave
with imperfection or violence.
- It will be a despotic govt.
Criticism of Separation of powers

1. Absolute Separation of Powers is not possible: The critics are of the

view that there is a unity, in the government, as it is in the human body.
If all the organs of the government are separated from one another,
there will be no mutual cooperation among them. On the contrary, there
will be a deadlock among them and it will become difficult to run the
government. Thus, this theory is not desirable.
2. The theory is impracticable; therefore, even in U.S.A. it has been
modified by a system of checks and balances: The theory of the
separation of powers is not practicable. If it is given a practical shape,
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 the functioning of the government will come to standstill. For instance,
the legislature makes the laws. If those laws are not implemented by the
executive and if the judiciary does not punish the criminals according to
those laws, how will that government function?

3. The Organs of Government are mutually dependent: Separation is not

possible among the organs of the government and they are dependent
on one another to a great extent.

4. All the Organs of the Government are not equal: The theory of the
separation of powers has been recognised because of the fact that there
are three organs of the government – executive, legislative and judicial –
and all these organs are equal. But this is altogether wrong because the
importance of the legislature has increased due to the emergence of
democracy. In a Parliamentary Government, the executive is under the
legislature. Besides, the will of the nation is expressed through the
legislature.

5. The theory will lead to inefficiency in Government: Laski is of the view

that as a result of the separation of powers, jealousy, suspicion and
internal conflicts increase along with inefficiency.

6. The Democratic Objection: The idea of the welfare state had not gained
popularity then. But today, the idea of welfare state has gained much
importance. Therefore, the powers and functions of the executive have
increased considerably. Further, due to emergence of political parties,
the separation of legislature from the executive has almost been
abolished and coordination has been established between the two.
7. Individual liberty possible even without separation of powers: In
democratic countries, though there is no separation of powers, yet the
people are enjoying freedom. This is so because the people have been
given fundamental rights through the constitution and judiciary is
independent.

Indira Nehru Gandhi v. Raj Narayan (1975)

 An appeal was filed by the appellant against the decision of the
Allahabad High Court invalidating Smt. Indira Gandhi’s election on the
ground of corrupt practices.

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  In the meantime the Parliament passed 39th Constitution Amendment
which added a new article 329 (A) to the Constitution. It stated that
the election of P.M. and the Speaker cannot be challenged in any
court of the country. It cannot be challenged even before a committee
formed by the Parliament.
 In the case, although the SC validated the election of Indira Gandhi,
the 39th Amendment was declared unconstitutional as it “violated the
basic structure of the constitution”.
 It has been held therein that though the Doctrine of Rigid Separation
of Powers in the American sense does not apply in India, the principle
of Checks and Balances underlying the doctrine does apply. That is,
none of the 3 Organs (Judiciary, Legislative, Executive), of the govt.
can encroach upon the essential functions of the other organs.

Checks and balances in the USA

Legislature (Congress) Executive (President)

Makes Law Enforces Law

Judiciary (Courts)

Interprets Law

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 Executive branch (Enforces Laws)

President &Vice President

Checks on Congress Checks on Supreme Court

- Veto Law Grant Pardon

- Make treaties Appoint Judges
- Appoint Federal Officials
- Propose Laws

Legislative Branch (makes laws)

Senate
House of Representatives

Checks on President Checks on Supreme Court

1. Override Presidential Veto 1. Proposes Amendments
to
overturn court decisions
2. Reject Treaties &presidential Appointments 2. Create lower courts
3. Impeach and Improve 3. Impeach and remove
4. Reject appointments

Judicial Branch(interprets Laws)

Supreme Court

Checks on Congress Checks on President

Decide laws unconstitutional 1.decide actions unconstitutional

2. Interpret treaties

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Classification of Administrative action

What is Administrative Action? – The functions of the executive are not

confined exclusively to those of an executive or administrative character.

 Today, the executive performs variegated functions viz. to investigate, to

prosecute, to prepare and to adopt schemes, to issue and cancel
licences etc. (administrative);
 to make rules, regulations and by laws, to fix prices etc.(legislative);
 to adjudicate on disputes, to impose fine and penalty etc. (judicial).

In Modern Times, various functions are performed by the administration, so

the administrative process cuts across the traditional classification of
governmental powers due to the by-product of intensive form of government
and combines into one all the powers which were traditionally exercised by
three different organs of the state i.e. the legislature, executive and the
judiciary.
 The administration, is the meeting point of the three types of
governmental functions, namely legislative, judicial and administrative.
 Usually, the executive performs the residue of all those functions which
are not vested in the other two branches of the government i.e. the
legislature and the judiciary.
 In the administrative process, all the three functions, which are
traditionally vested in the three different organs of government are
telescoped into one single authority.
Generally speaking, an administrative action can be classified into three
categories:

(1) Quasi-Legislative Action or Rule-making Action

(2) Quasi-Judicial Action or Rule-decision Action
(3) Pure Administrative Action or Rule-application Action
Quasi-Legislative Action or Rule-making Action

Legislature is the law-making organ of any State. In some written constitution

like the American and Australian Constitutions, the law-making power is
expressly vested in the legislature.

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However, in the Indian Constitution though this power is not so expressly
vested in the legislature. However, the combined effect of constitutional
provisions is that the law-making power can be exercised for the Union by the
Parliament and for the states by the respective State Legislatures.

It is the intention of the constitution makers that this law-making power must
be exercised by those bodies alone in whom this power is vested.

But today in the 21st century, these legislative bodies cannot give that quality
and quantity of laws which are required for the efficient functioning of a
modern intensive form of government. Therefore, the delegation of law-
making power to the administration is a compulsive necessity. When any
administrative authority exercises the law-making power delegated to it by the
legislature, it is known the rule-making action of the administration or quasi-
legislative action.

Examples are:

 Fixation of price for essential commodities.

 Declaration of a place to be a market yard.
 Imposition of tax
 Establishment of Municipal Corporation under a statutory provision.
In State of Punjab v. Tehal Singh (2002), while elaborating the characteristics of
a rule-making action of the administrative authority, the Supreme Court held
that –

1) where the provisions of a statute provide for the legislative activity i.e.,
making of a legislative instrument or promulgation of a general rule of
conduct or a declaration by a notification;
2) where the power exercised by the authority under a statute does not
concern the interest of an individual but relates to the public in general,
or concerns a general direction of a general character and is not directed
against an individual or to a particular situation; and
3) lays down a future course of action,
such action will generally held to be quasi-legislative action of the
authority.

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Applying this test, the Court held that on making of a declaration determining
the territorial area of a Gram Sabha and, thereafter, establishing a Gram Sabha
for that area is a quasi-legislative act of the administration.

In Union of India v. Cynamide India Ltd. (1987), Chinnappa Reddy, J. held that a
legislative action has four characteristics:

(i) Generality;
(ii) prospectivity;
(iii) public interest; and
(iv) right and obligations flowing from it.
It is on the basis of these characteristics that one can differentiate between
quasi-legislative and quasi-judicial action. A quasi-judicial action in
contradiction to a quasi-legislative action is particularly based on the facts of
the case and declares a pre-existing right. However, in certain situations, like
wage or rate fixing, it is not capable of easy differentiation.

The Court observed that it is, no doubt, true that any attempt to draw a
distinct line between legislative and administrative function is difficult in
theory and impossible in practice. Though difficult, it is necessary that the line
must be drawn as different legal rights and consequences may ensue.

Quasi-Judicial Action or Rule-decision Action

Sl. Judicial Quasi-judicial

No.
1. Accumulation / Presentation of Accumulation / Presentation of
facts facts
2. Arguments with evidence Arguments with evidence
3. Applying the laws to the facts May or may not apply the laws to
the facts
4. Final decision There is no final decision

Quasi-Judicial action of the Administration -

Today the bulk of the decisions which affect a private individual come not from
courts but from administrative agencies exercising adjudicatory powers. The
reason seems to be that since administrative decision making is also a by-

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product of the intensive form of government, the traditional judicial system
cannot give to the people that quantity and quality of justice which is required
in a welfare State.

Administrative decision-making may be defined as a power to perform acts

administrative in character, but requiring incidentally some characteristics of
judicial traditions. On the basis of this definition, the following functions of the
administration have been held to be quasi-judicial functions:

 Disciplinary proceedings against students.

 Disciplinary proceedings against an employee for misconduct.
 Confiscation of goods under the Sea Customs Act, 1878.
 Cancellation, suspension, revocation or refusal to renew licence or
permit by licensing authority.
 Determination of citizenship.
 Power to continue the detention or seizure of goods beyond a particular
period etc.
Pure Administrative Action or Rule-application Action

Though the distinction between quasi-judicial and administrative action has

become blurred, yet it does not mean that there is no distinction between the
two. If two persons are wearing a similar coat, it does not mean that there is
no difference between them. The difference between quasi-judicial and
administrative action may not be of much practical consequence today but it
may still be relevant in determining the measure of natural justice applicable in
a given situation.

In A.K. Kraipak v. Union of India (1969) the Court held that in order to
determine whether the action of the administrative authority is quasi-judicial
or administrative, one has to see the nature of power conferred, to whom
power is given, the framework within which power is conferred, and the
consequences.

The case related to promotion of an administrative officer. The Selection

Committee consisted of one such officer who was also a candidate for
promotion. The petitioner contended that there should be a different body
deciding upon promotion matters.

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The Court observed that the diving line between an administrative power and
quasi-judicial power is quite thin and is being gradually obliterated. In recent
years, the concept of quasi-judicial power has been undergoing a radical
change. What was considered an administrative power some years back, is
now considered as quasi-judicial power.

It is concerned with the treatment of a particular situation and is devoid of

generality. It has procedural obligation of collecting evidence and weighing
arguments. It is based on subjective satisfaction where decision is based on
policy and experiencing. Also, the principle of natural justice cannot be ignored
when the authority is exercising administrative powers.

Issue 1: Why this classification of Administrative Action is required?

An administrator seeks to get the most appropriate and desirable solution in

view of the public interest while performing administrative functions. The
authorities issue orders which affect personal and proprietary rights of
individuals which are quasi-judicial in nature.

There is general applicability of a legislative order while an administrative or

quasi-judicial order applies to specific cases. A legislative order formulates a
general rule of conduct and it normally operates in future.

Issue 2: Enforcement of the classification of administrative functions

These functions are supposed to take care of certain doctrines or principles.

Such classification is essential and inevitable as many consequences flow from
it. For example, if the executive authority exercises a quasi-judicial function it
must follow the principle of natural justice and is amenable (willing to respond)
to a writ of certiorari and prohibition. But if it is a quasi-legislative function,
natural justice has no application.

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MODULE II: LEGISLATIVE FUNCTIONS OF THE ADMINISTRATION

Supreme Legislation and Delegated Legislation

Supreme Legislation Delegated Legislation/ Subordinate

Legislation
Made by the Legislature – Parliament Made by the Executive – Rules,
or State Legislative Assembly – Act, Regulations, Bye-laws, Notifications
Code.

In most cases where legislation deals with administrative matters, the Act sets
out the skeleton of its subject, providing a broad framework. The finer detail of
its operation is set out in rules and regulations and other instruments and
becomes subordinate legislation made under it.

Subordinate legislation is also referred to as secondary legislation, primary

legislation being that which is contained in Acts of Parliament (or statutes).

Quasi-Legislative Power or Rule making Power – Delegated Legislation

Generally, the ‘delegated legislation’ means the law made by the executive
under the powers delegated to it by the Supreme legislative authority. It
comes in the form of orders, bye-laws etc. The Committee on Minister’s power
said that the term delegated legislation has two meanings-

1. Firstly, it means the exercise of power that is delegated to the executive

to make rules.
2. Secondly, it means the output or the rules or regulations etc. made
under the power so given.

# Essential legislative functions cannot be delegated.

Permissible delegation Non-permissible delegation

Commencement of action Criminalization of any action
Power of extending the law Fixing the punishment for crime
Power to amend the schedule Taxing
Power to exempt certain people from Power to repeal and power to
implementation of the act amendment

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Justifications / Reasons for Delegated Legislation

Bharat Bank Ltd. v/s Employees Association of Bharat Bank Ltd, AIR 1950 SC
188

Reasons for the growth of delegated legislation:

 Lack of time with the legislature

 Complexities of subject matter
 Experimental in nature (consultations are required to make it effective)
 Flexibility. (As per local need)
In modern times, delegated legislation has become imperative and inevitable
due to the following reasons:

1. Time factor – The parliament is so much occupied with matters

concerning foreign policy and other political issues that it has no time to
enact social legislation in all its details. Therefore, the Parliament frames
only the broad rules and principles, and the concerned department is
left to make rules and to fill in details.
2. The technicality of the matters – With the progress of the society, things
have become more complicated and technical. All the legislators may
not know them fully and, hence, they cannot make any useful discussion
on it. Therefore, after framing of the general policy by the Parliament
the government departments or other bodies who know its
technicalities are given the power to lay down the details.
3. Emergency – During the time of emergency quick and decisive action is
very necessary, and at the same time, it is to be kept confidential.
4. Flexibility – To adapt the law according to future contingencies or any
other adjustments which are to be made in the in future can be done
efficiently and effectively only when a small and expert body is given the
powers to do so.
5. Local Matters – These are matters which concern only a particular
locality or a particular group of the profession. The departments are
given powers to make changes and rules in consultation with the person
acquainted and interested in it.

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Cases # R v. Burah : In this case Burah was convicted with death sentence
under the Act of 1869, by the Commissioner on whom power was delegated by
the Indian Legislature.

The Calcutta H. C. declared the delegation as unconstitutional delegation of

legislative power as Indian Legislature itself was a delegate of British
parliament. Therefore, a delegate cannot further delegate.

However, the Privy Council reversed the order and upheld the constitutionality
of delegation by saying that it was a conditional delegation and that Indian
legislature was not a delegate of the British parliament.

Case: Jitendranath Gupta v Province of Bihar (Extension of Law case)

Control of Delegated Legislation

Judicial Control

Parliamentary Control

Judicial Control

The courts in the matters of delegated legislation interfere under the doctrine
of ultra vires or under their writ jurisdiction. “Ultra vires” means “beyond one's
legal power or authority”. Thus, the main ground on which this interference is
made is that the authority to whom the power is delegated has exceeded it.

The grounds on which courts declare a delegated legislation as ultra vires are
that

 it is unreasonable or repugnant to the fundamental laws of the country,

or
 It is vague, or
 It has not been made and published in accordance with the rules
prescribed for the same.

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Doctrine of Ultra vires

Procedural Ultra vires

1. Publication

2. Consultation

3. Prior-permission

Substantive Ultra vires

Constitutional Ultra vires Legislative Ultra vires

1. Parent Act against the Constitution 1. Acting beyond powers

2. Delegated legislation against the Constitution

Substantive Ultra vires

Grounds on which Delegated legislation may be challenged

- Unreasonable and Arbitrary: When the delegated legislation is
unreasonable and arbitrary
- Mala fide intention: When delegated legislation is made by authority
exercising its power mala fide
- Delegated legislation against the parent Act
- Retrospective rule making
- Delegated legislation is vague
- Henry VIII Clause #
- Statutes in conflict: When delegated legislation is in conflict with the
Enabling or Parent Act
- Delegation of taxing power
- Delegated legislation is ultra vires the Constitution
- Sub-delegation
# - A Henry VIII clause refers to the provision in a primary Act which empowers
the Executive to make secondary legislation which are inconsistent or can
amend, repeal the primary legislation/legislations

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Procedural Ultra vires

Procedural ultra vires refers to any non-compliance with mandatory procedural

requirement by the law-making authority in the law-making process. The
requirement of:

1. Publication of the new law and

2. Consultation with affected parties/ interests before the laws are
finalized and promulgated and thus
3. Prior permission (Laying procedure before the legislature)
may render a subsidiary/ delegated legislation so made in open defiance of a
mandatory procedure laid down by the Parent Act, null and void.

Publication

Raja Buland Sagar Co. Ltd. v Rampur Municipality.

 Water tax was levied by Rampur Municipality. The Municipality

published the notification in an Urdu daily which was the local
newspaper.
 Municipality contended that they have complied with the provision of
the Parent Act. The Act provided that if it is published in the official
gazette, the rule will be approved.
 The Court upheld the water tax (even though people did not subscribe
to Urdu newspaper).
 Publication in newspaper is a direction. It is not mandatory. Publication
in the official gazette is mandatory.
Harla v State of Rajasthan

 Harla was convicted under Jaipur Opium Act which was later extended
to other parts of Rajasthan.
 Harla challenged his conviction claiming that it was never published
either in the official gazette or any daily newspaper.
 The Supreme Court held that no law could be enforced without
publication and the said Delegated legislation was declared ultra vires.

State of Orissa v Sridhar Kumar

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  Orissa Government Act authorized the extension of operation of the Act
to certain panchayats. The Act said that the intention of the Act to apply
to the areas had to be published in daily newspaper. It was published in
Oriya paper but in English language.
 Sridhar Kumar challenged as it was a case of non-compliance of the
provisions because many people did not know English. Another ground
of challenge was vagueness, that the notification did not specify the date
and other information.
 The Supreme Court struck down the delegated legislation as the
publication was made in a local newspaper but not in local language. The
Court held that the legislature had attached great importance to the
locals to be affected by the notification. In this case, the publication was
considered mandatory and not directory.
 One of the languages of publication must be the regional language of the
state too.
Consultation

Banwarilal Agarwal v State of Bihar

 23 people were killd in a mine accident. Banwari Lal, the mine owner
was convicted for criminal negligence. He did not comply with some
rules and Mining Act regarding safety precautions.
 The mine owner claimed that the rules were made without consultation
with the Mining Board.
 The Supreme Court held that the provision under the Mines Act, 1952,
before framing regulations was mandatory and failure to consult the
Mining Boards (Constituted under Section 12 of the Act) invalidated the
regulations.
District Collector v Chittor Groundnut Traders Association

 Under Essential Commodities Act, the power to make rules was

delegated to State Governments to control, supply and trade of essential
commodities.
 The Andhra Pradesh Government made certain rules to control, supply,
distribution of edible oils and seeds. This rule levied taxes and made it
compulsory to have license with license fee.

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  The Act said that the State Govt. had to take prior permission of the
central govt. before making rules.
 The rules were struck down due to lack of prior permission.

Parliamentary Control

The underlying object of parliamentary control is to keep watch over the rule-
making authorities and also to provide an opportunity to criticize them if there
is abuse of power on their part.

Parliament has control in that the enabling or parent Act passed by Parliament
sets out the framework or parameters within which delegated legislation is
made.

Courts have held that the power to repeal or amendment of statute law is
unconstitutional:

Harishankar Bagla v. State of M.P. In this case of the Section 6 of Essential

Supplies (Temporary Power) Acts, 1946 the SC upheld the constitutionality on
the ground that this provision does not provide for either repeal or abrogation
of , but merely for bypassing the existing law to the extent of inconsistency.

The Enabling Act being ultra vires , Unreasonableness

Case # Chintaman Rao v. State of M.P.

An order was issued by the Deputy Commissioner under the provisions of the
Act (Central Provinces and Berar Regulation of Manufacture of Bidis
Agricultural Purposes) Act(LXIV of 1948) forbidding all persons residing in
certain villages from engaging in the manufacture of bidis during a. particular
season. A manufacturer of bidis and an employee in a bidi factory residing
in one of the said villages applied under Art. 32 of the Constitution for a writ
of mandamus alleging that since the Act prohibited the petitioners from
exercising their fundamental right to carry on their trade or business which
was guaranteed to them by cl. (1) (g) of Art. 19 of the Constitution, the Act
was void: An order was issued by the Deputy Commissioner under the

20
provisions of the Act forbidding all persons residing in certain villages from
engaging in the manufacture of bidis during a. particular season. A
manufacturer of bidis and an employee in a bidi factory residing in one of
the said villages applied under Art. 32 of the Constitution for a writ of
mandamus alleging that since the Act prohibited the petitioners from
exercising their fundamental right to carry on their trade or business which
was guaranteed to them by cl. (1) (g) of Art. 19 of the Constitution, the Act
was void.

Legislative ultra vires: Administrative rule can be challenged: Kerala

Samsthana Chethu Thozhilali Union v. State of Kerala: the SC ruled that a rule
making it compulsory for every toddy shop owner to employ one retrenched
worker is arbitrary and, hence violative of Article 14 of CoI. According the
Court “Take it or Leave it” condition imposed by administrative rule is
arbitrary.

Delegated legislation against parent Act

Ram Prasad v. State

Reasonableness:

Kruse v. Johnson

In this case the court came up with five tests to determine unreasonableness.

1. If the law is unjust

2. If the law is manifestly partial

3. If the law is made with a bad faith

4. if the law is interfering with the liberties of the subjects.

5. Oppressiveness

Unreasonable Parent Law

State of Maharashtra v. Chandrabhan Tale: 9Vagueness ????) The SC held that

the Bombay Civil Service Rules, 1959, which provides for subsistence
allowance of Rs 1 to the civil servants during the trial or imprisonment on the
corruption charges as unreasonable.
21
Retrospective Operation:

Case # M. D. University v. Jahan Singh:. If law does not provide for it,
administrative authority cannot give delegated legislation any retrospective
effect. The SC held that even if benefit is general for everyone, it would be
illegal and arbitrary because when the application is routed through the
University it cannot be termed as “invitation”. In this case the executive council
of the University had amended a regulation to the effect that the word
“invitation” would include even an offer made by a foreign university on
application of a teacher and in such cases, he will be entitled to increments for
the period of his absence

Interference with the common law rights:

Case # Sophy Kelly v. State of Maharashtra: (Malafideness) Delegated

legislation( Administrative Rules and Regulations) can also be challenged on
the ground that they arbitrarily interfere with the common law rights (a right
that derives from common-law custom and usage) of a private citizens: A
regulation of Maharashtra education Board which provided that all
headmasters should forward all forms of candidates for SSC Exams to the
Board irrespective of their academic progress during the year was held ultra
vires the common-law right of Headmasters to forward only forms of those
students who make satisfactory progress during the year.

In conflict of other statutes:

1. Jagdish Prasad Sinha v. & Ors vs Bhagwat Prasad & Ors on 1 August, 1989:

HELD: The High Court, rightly found fault with the State Government action,
and holding that the rules in the Notification (regarding some issues related to
promotion of teachers affecting some teachers negatively because of the
framing of a rule by the said notification of bifurcation of list of seniority of
school teachers) , dated 18th November, 1986 are ultra vires Articles 16(1)
and 14 of the Constitution.

2. Kerala Samsthana Chethu Thozhilali Union v. State of Kerala: the order was
against the provisions of the Contract Act, 1872 and the Specific Relief Act,
1963

22
Sub delegation: A. K. Ray v. State of Punjab

Parliamentary Control

Direct Control

Indirect Control

Direct Control: “Laying on the table”

Direct but general control over delegated legislation is exercised:

 Through the debate on the Act which contains delegation. Members

may discuss anything about delegation including necessity, extent, type
of delegation and the authority to whom power is delegated.
 This control mechanism is exercised through the technique of “laying”
on the table of the House, rules and regulations framed by the
administrative authority.
 It serves two purposes:
 firstly, it helps in informing the legislature as to what all rules have
been made by the executive authorities in exercise of delegated
legislation,
 secondly, it provides a forum to the legislators to question or
challenge the rules made or proposed to be made
Indirect control: (through committees)
 Indirect control is exercised by Parliament through its Committees. With
a view to strengthen Parliamentary control over delegated legislation,
Scrutiny Committees were established
 In India, there are Standing Committees of Parliament to scrutinise
delegated legislation.

Recommendations by the Committee on subordinated legislation

The Committee on Subordinate Legislation has made the following

recommendation to streamline the process of delegated legislation in India

 Power of judicial review should not be taken away or curtailed by rules.

 A financial levy or tax should not be imposed by rules.

23
  Language of the rules should be simple and clear.
 Legislative policy must be formulated by the legislature and laid down in
the statute and power to supply details only may be left to the
executive.
 Sub-delegation in very wide language is improper.
 Discriminatory rules should not be framed by the administration.
 Rules should not be beyond the rule-making power conferred by the
parent Act.
 There should not be inordinate delay in making of rules by the
administration.
 The final authority of interpretation of rules should not be with the
administration.
 Sufficient publicity must be given to the statutory rules and orders.

Quasi-Judicial Function of the Administrative Authorities

 Significance of having Quasi-Judicial bodies.
 Introduction to Tribunalization
 The Procedural Obligation
 Principle of Natural Justice followed.
What is Quasi-Judicial function

Administrative function is called quasi-Judicial function when there is an

obligation to adopt the judicial approach and to comply with the basic
requirements of Justice. When there is no such obligation then the decision is
called purely administrative function

What are Quasi-judicial Bodies

 Quasi-judicial bodies are organisations or bodies which have powers

similar to that of the law imposing bodies but they are not courts.
 They mainly govern the administrative areas.
 The courts (judiciary) has the power to preside over all kinds of disputes
but the quasi-judicial bodies are the ones with the powers of imposing
laws on administrative agencies.
 These bodies help in reducing the burden of the courts.

24
  Quasi-judicial activity is limited to the issues that concern the particular
administrative agency.
 Quasi-judicial action may be appealed to a court of law.
Examples of Quasi-judicial bodies in India

1. National Human Rights Commission

2. State Human Rights Commission
3. Central Information Commission
4. State Information Commission
5. National Consumer Disputes Redressal Commission
6. Income Tax Appellate Tribunal
7. Intellectual Property Appellate Tribunal

Significance of Quasi-Judicial Bodies

 As the welfare state has grown up in size and functions, more and more
litigations are pending in the judiciary, making it over-burdened.
 It requires having an alternative justice system.
 Ordinary judiciary has become dilatory and costly.
 With scientific and economic development, laws have become more
complex, demanding more technical knowledge about specific sectors.
 The conventional judiciary is suffering from procedural rigidity, which
delays the justice.

An authority is said to be exercising Quasi-Judicial Function when:

 It is empowered under a statute to do any act
 The act will affect the civil rights of a citizen
 Whether the act is done in the context of resolving a dispute between
two citizens, or whether the dispute is between a citizen and the
authority itself
 The authority is required to act judicially and in accordance with rules of
natural justice.
Case # Ridge v. Balwin 2ALL ER 66 (73-74, 113) HL:

 Deals with the demarcation between Quasi-Judicial Function and Pure

Administrative Function
25
  Facts of the Case: A police officer was dismissed following his acquittal
from alleged serious offences.
 Issue: Was the decision of dismissal lawful?
 Decision: No, he should not be dismissed like this. If such a decision is to
be made it should not be made in private and without the knowledge of
the police officer. A defence must be heard.
Obligations of Quasi-Judicial Function

1. Power to summon witness

2. Enforce their attendance
3. Examine them on Oath.
4. Discovery and production of documents.
What is a Tribunal?

1. Tribunal is a quasi-judicial institution that is set up to deal with the

problems such as resolving administrative or tax related disputes.
2. It performs a number of functions like adjudicating disputes,
determining rights between contesting parties, making an administrative
decision, reviewing an existing administrative decision and so forth.
Droit Administratif of France

Ordinary Civil Court Administrative Tribunal

1. Ordinary laws 1.Administrative Laws

2. Subject v. Subject 2. Subject v. state/s

“Counsel d’Etat” acted like SC.

1. To scrutinize both ordinary Civil Courts and Administrative Tribunals

2. Having power to Review and Revise

In India:

 Article 323 A & Article 323 B deal with Tribunals. They are introduced
in 42nd Amendment, 1976, of the Constitution of India.
 Article 323: Deals with Commissions

26
  In India, though the term ‘Tribunal’ has been used in the Constitution
but it is not defined from the functional point of view.
 The position of Tribunal is somewhere between a Court and the Govt.
Department exercising adjudicatory powers.

Administrative Tribunals (Article 323A & 323B)

Article 323A provides that a law made by the parliament may provide for
establishment of an
 Administrative Tribunal for the Union and
 A separate Administrative Tribunal for each state or two or more states.
The matters for these tribunals are as follows:
 Recruitment and conditions of service of persons appointed to public
services in Union as well as States as well as Local authorities.
 Recruitment and conditions of service of persons appointed to any
corporation owned or controlled by the Government.
Article 323 B empowers the parliament or state legislatures to set up tribunals
for matters other than those mentioned above. The matters to be covered by
such tribunals are as follows:
 Levy, assessment, collection and enforcement of any tax
 Industrial and labour disputes;
 Delimitation of constituencies etc.

Administrative Tribunals Act 1985

Using the powers conferred by the Article 323A of the Constitution, Parliament
passed a law to establish the Administrative tribunals in India. The
Administrative Tribunals Act 1985 provides for adjudication or trial of disputes
and complaints with respect to recruitment and conditions of service of public
servants.
The Act has made provisions for:
 Central Administrative Tribunal (CAT) for the Centre;
 State Administrative Tribunal (SAT) for a particular State; and
 Joint Administrative Tribunals (JAT) to hear cases from more than one
State.

Reasons for the growth of Administrative Tribunals in India

27
 1. Policy Consideration: It is easier to look over policy when we approach
the tribunals.
2. Inadequacy of Judicial System: Judicial system is complex, expensive and
dilatory.
3. Merits of the system of administrative adjudication.
4. Functional approach to socio-economic problems.
5. Need for expertise.
6. Preventive measures – in the form of notices.
7. Policing of Preventive measures - monitoring

Administrative Tribunal Act, 1985 is based on the assumption that a large

number of service related cases come to the High courts under Article 226 and
take a lot of Judicial time. The Administrative Tribunal will decide exclusively
service matters and thus give some relief to the High Courts. Now these courts
will no longer entertain service cases.

First Amendment, 1986: Each Tribunal and each bench will have a judicial
member. The amendment said that any member having the qualification of a
judge will be considered to be appointed as the judicial member of CAT
(Central Administrative Tribunal).

Bharat Bank Ltd. v/s Employees Association of Bharat Bank Ltd, AIR 1950 SC
188

The Supreme Court observed that though tribunals are clad in many of the
trappings of court and though they exercise quasi-judicial functions, they are
not full-fledged courts.

Second Amendment, 1987 – The Chairman must be from judiciary

Sampath Kumar v. Union of India AIR 1987 SC 384

If one says that the Tribunal is a substitute for High Court, then the decision
must come from judiciary. The chairperson must be from judiciary. Hence, any
officer acting on the post of Secretary cannot be appointed as a chairman of
the tribunal.

28
The judgment in this case led to the second Amendment in 1987 of
Administrative Tribunal Act, 1985.

Article 323 A – Deals with CAT, SAT, JAT ( Constituted under ATA, 1985)

Article 323 B – All the others

Constitution of CAT, SAT, & JAT

 CAT – Constituted by the Central govt. in view of large number of

pending cases related to Service matters in various high Courts.
 The Tribunal was constituted for adjudicating Service matters.
 Constituent members: Chairman; a Vice Chairman; Judicial members and
Administrative members
 President of India appoints them.
 Judicial members are appointed by the President in consultation with
Chief Justice of India.
 In case of State Administration Tribunal appointments, consultation with
the Governor is required.
 Prior consultation with CJI is also required for appointing the
Chairperson or Vice Chairperson.
 Chairperson /Vice Chairperson have to be from Judiciary.
 Qualification of Chairperson given in Sec.6 (1) of ATA, 1985
 Qualification of Vice-Chairperson given in Sec. 6 (3) of ATA, 1985
 Ordinarily a retiring or retired Chief Justice of a High Court or if not
available, a senior judge of proven ability still in office, should be
appointed as a Tribunal Chairperson.
 A District Judge or an advocate qualified to be a High Court Judge should
be regarded as eligible as Vice Chairperson of an Administration tribunal.
 Judicial Members – A person has been or is qualified to be a High Court
Judge.
 Administrative members – Must have for at least 2 years held the post of
Additional Secretary to the Central Govt. or any other post under the
Central Govt. or State Govt. carrying a scale of pay not less than that of
Additional Secretary to the Central Govt. can hold the position of
Administrative member.
Term of Office: 5 years
29
  Retirement of Chairperson & vice Chairperson – 68 years
 Retirement of Judicial & Administrative Members – 65 years
Tribunals and its Adjudication Procedure

CAT: Takes cognizance of service matters pertaining to All India Service or any
Service or Civil post under the Centre.

SAT: Takes cognizance of service matters pertaining to State Service or to any

Civil Service or Civil post under the State.

Procedural Obligation of Administrative Tribunal

(i) Has to follow the principle of Natural Justice, as it is a Quasi-judicial

function.
(ii) Through an application a person can bring the matter before the
Administrative Tribunal - Section 23
(iii) The applicant can take the help/assistance of a legal practitioner –
Section 23
(iv) Section 19 (3) of ATA, 1985 – Discretion is there before the Tribunal
whether to entertain any case or not. If rejected by the Tribunal, one
can go to the High Court.
(v) Not bound to follow the Procedure prescribed under CPC.
(vi) Administrative Acts and Rules – Power to regulate its own procedure u/s
22(1). But the procedure must not curtail the Principle of Natural Justice
(vii) Section 22 (3) – The Tribunals have all the powers of a Civil Court in
(a) Calling a person
(b) Administering Oath
(c) Compelling, discovering and production of documents
(d) Setting up of Commissions
(e) Receiving Evidence of Affidavits
(f) Reviewing it decisions
(g) Original as well as Appellate Jurisdiction
(viii) Section 39 – Judicial Proceeding
(ix)Like Civil court it can come up with interim order. Because it has to
address the matter in a quicker manner. Giving Incidental remedies; can
be decided on the basis of merit of the case.
(x) Section 24 – Two obligations to be fulfilled before giving Interim Order

30
 1. Copies of such applications and all documents in support of the
plea for such interim order are to be furnished to the party against
whom such application is made or proposed to be made, and,
2. Opportunity is to given to such party to be heard in the matter.
(xi)Functus Officio (similar as Res-judicata) – A branch of the doctrine of res
Judicata prevents the reopening of a matter before the same court,
tribunal or other statuory body or which rendered the final decision in
the absence of Statuary authority
Article 323 B provides for Tribunals:

1. having Original jurisdiction – e.g., Industrial Tribunal

2. having appellate jurisdiction only – Income Tax Appellate Tribunal
3. having both Original and Appellate jurisdiction
Tribunals having Original jurisdiction: e.g., Industrial Tribunal

 Parent act – Industrial Dispute Resolution Act, 1947

 Constituted by the Central Govt.
 Any industrial dispute like b/w employer and work men; b/w workmen &
workmen etc.
 Constitution: It consists of One Chairperson and 2 or more members.
The chairperson as usual must be from judiciary.
 Qualification of the Chairperson
 Is or had been a judge of a High Court
 Is or had been a District Judge or is qualified for appointment as a
judge of H.C.
 Qualification for members: For example, if the Industrial Tribunal is
going to address Banking and Insurance Company, one of the members,
in the opinion of the Central Govt. may possess special knowledge in the
field of banking or finance.
Procedure (Procedural Obligation)

1. Can enforce attendance of any person and examine him on oath.

2. Can compel production of documents
3. Examination of witness and such enquiry
4. Setting up of Commissions in order to find out any particular issue.

31
 5. Section 193 and Section 228 of IPC to be followed while dealing with
enquiry.
6. Negotiation of wages and other conditions of employment – ADR
Alternate Dispute Resolution
7. Decision will be published in the official Gazette , and will be signed by
all the members.
8. Under the writ jurisdiction of H.C. it can go to the H.C. under Article 226.
u/A 227 – Supervisory jurisdiction of H.C.

Industrial Tribunal

 Chairperson:
 Is or has been in High Court
 Is qualified for applying for the post of a High Court Judge.
 Members – Having adequate knowledge in handling industrial disputes
 Jurisdiction – Collective Bargaining, Negotiation, Arbitration e.g.
employee vs. workmen; employee vs. employee.
 They prescribe their own procedure but it should ensure the adherence
to the principle of natural justice.
 Enforce attendance and ask to make an oath.
 Production of document is compulsive necessity.
 Issue commission for examination and enquiry.
 Sections 193 and 228 of IPC shall be followed for enquiry.
 Kinds of dispute looked into – Strike, labour dispute, minimum wages
dispute etc.
 Judicial Review (Art. 226), Supervisory powers of High Court (Art. 227) –
Judicial control of superior courts over Industrial Tribunals.
Income Tax Appellate Tribunal (ITAT)

 Parent Act – Income Tax Act, 1961

 Qualifications for judicial member of ITAT
 10 years experience on a judicial post
 Must have been a member of central legal service for 3 years.
 Must have been in practice as an advocate for 10 years.
 Qualifications for Account member of ITAT

32
  Must have practiced as Chartered Accountant for 10 years, or
 Must have served as Assistant Commissioner for at least 3 years
Procedures

 Income Tax Appellate Rules 1963 to regulate procedure.

 Free to decide own procedure.
 Appeals can be filed by an aggrieved party against the order passed by
the Assistant Commissioner or inspecting Asstt. Commissioner within a
period of 60 days.
 Procedure must be made as per the natural justice.
Powers

 Summoning witnesses
 Enforcement of attendance
 Discovery and inspection
 Production of documents
Publication: Decisions coming from the Tribunal are published by private
journals, Tax Reports etc.

Criticism: The High Courts have many a times adversely commented upon the
orders passed by the Tribunal.

33
MODULE III: JUDICIAL FUNCTIONS OF THE ADMINISTRATION

Jurisdiction

Before exercising jurisdiction, jurisdictional facts and jurisdictional laws have to

be looked into because provisions are not clear. For example, Road Transport
Act – Whether the seizure of license is within the jurisdiction of the authority

3.2 Excess of jurisdiction - Law and fact

Determining jurisdiction

J. K. Chaudhuri v R. K. Dutta Gupta AIR 1958 SC 722

 The governing body of a College dismissed the principal for moral

turpitude and inefficiency after conducting a proper enquiry.
 The Respondent made a representation to the Vice-Chancellor of the
Gauhati University praying that the GB be directed not to fill the post of
Principal till the disposal of the suit.
 The Committee appointed by the University made a report that there
was no ground justifying the dismissal. As a result, the University
directed the governing body to reinstate the Respondent.
 It was contended before the Supreme Court that Principal and members
of the teaching staff belong to separate categories. The power of the
University to interfere with the disciplinary proceedings was limited to
the teaching staff only.
 Accepting the contention, the Supreme Court held that the university’s
interference with the action taken by the Governing Body against the
Principal, as the administrative head of the college, was an action
without jurisdiction.

Comment: In this case, the University had jurisdiction to interfere with the
proceedings pertaining to the teaching staff only. The statute did not state that
the University had no jurisdiction in the case of Principals. The respondent had
been initially appointed as a Professor. If these factors are taken into
consideration it is submitted with due respect that the decision may be
correct.

34
Note: “Certiorari” and “Prohibition” – These writs are designed to prevent the
excess of power by public authorities. Certiorari and Prohibition are regarded
as general remedies for the judicial control of both quasi-judicial and
administrative decisions affecting rights.

 can only be issued by the Supreme court under Art. 32 and a High court
under Art. 226 to direct, inferior courts, tribunals or authorities to
transmit to the court the record of proceedings disposed of or pending
therein for scrutiny, and, if necessary, for quashing the same.
 But a writ of certiorari can never be issued to call for the record or papers
and proceedings of an Act or Ordinance and for quashing such an Act or
Ordinance.

Certiorari under Art. 226 is issued for correcting gross error of jurisdiction of a
subordinate court when it is found to have acted

i) without jurisdiction
ii) in excess of its jurisdiction
iii) acting in flagrant disregard of law or rules of procedure
v) acting in violation of principles of natural justice.

A writ of prohibition is normally issued when inferior court or tribunal proceeds

to act
(a) without jurisdiction or in excess of jurisdiction
(b) in violation of rules of natural justice or
(c) under a law which is itself ultra vires or unconstitutional or
(d) in contravention of fundamental rights.

 Writ of prohibition can be moved during the hearing. The SC would issue
order forbidding the inferior court from continuing the proceedings.
 writ of certiorari : After the decision, the party would need to move to
superior court to quash the decision on the ground of want of
jurisdiction.

These writs are issued on the following grounds: when the authority is acting or
has acted under an invalid law; jurisdictional error; error apparent on the face

35
of record; findings of fact not supported by the evidence; failure of natural
justice.

Wrong interpretation of Law governing jurisdiction

R v Fulham Rent Tribunal exp. Phillippe (1950) 2 All E.R. 211

In this case, the Court refused to issue certiorari on the ground that the
tribunal had jurisdiction to inquire into the facts in order to decide.

 An unfurnished house was let out and later the tenant signed a
document, agreeing that he would hire the furniture of the landlord and
consider the house to be furnished.
 Later the tenant applied to the Rent Control tribunal to fix the fair rent
of the unfurnished house.
 The Landlord and Tenant (Rent Control) Act. 1949 empowered the
tribunal to fix rent only if the house was unfurnished.
 The contention of the landlord was that the agreement that they had
entered into later proved the letting to be one of furnished premises.

Wrong finding of fact governing jurisdiction (Jurisdictional Fact)

Raja Anand v State of U.P. AIR 1967 SC 1081

 This appeal was brought, by special leave, against the judgment of the
Allahabad High Court.
 The appellant, Raja Anand Brahma, was a Zamindar of Mirzapur district
in Uttar Pradesh.
 In the year 1950, a notification was issued by the State Government
under s. 4 of the Land Acquisition Act stating that area of 409.6 acres in
the village Markundi Ghurma in Mirzapur district of Uttar Pradesh was
needed for a public purpose.
 The purpose specified in the notification was for limestone quarry.
 The notification provided that the case being one of urgency, the
provisions of sub-section (1) of s. 17 of the Act applied to the land and it
was therefore directed under sub-s. (4) of s. 17 that the provisions of s.
5A of the Act would not apply to the land.

36
  A further notification was issued under s. 6 of the Act declaring that the
Governor was satisfied that the land mentioned in the notification was
needed for public purposes and directing the Collector of Mirzapur to
issue order for acquisition of the land under s. 7 of the Act.
 The Collector of Mirzapur was further directed by the notification under
s. 17(1) of the Act, the case being one of urgency, to take possession of
any waste or arable land on the expiration of the notice mentioned in s.
9(1), though no award under s. 11 had been made.
 On November 19, 1950, possession of the land was taken by the
Collector of Mirzapur and the same was handed over to the
Administrative Officer, Government Cement Factory, Churk.
 The Allahabad High Court dismissed the writ petition filed by the
appellant by observing that the Court cannot interfere with the
subjective satisfaction reached by the State Government on the issue of
urgency.

In this case, the Constitution Bench considered

- the legality of the acquisition of 409.6 acres of land for a public purpose
i.e. for limestone quarry under Land Acquisition Act.
- The State Government invoking Section 17(1) and 17(4) of the Act,
dispensed with requirement of hearing envisaged under Section 5-A and
directed the Collector and District Magistrate, Mirzapur to take the
possession of land.

The SC agreed with the High Court that the acquisition was for a public
purpose but held that the expression of opinion by the State Government on
the issue of invoking urgency provision can be challenged on the ground of
non-application of mind or mala fides. It follows therefore that the notification
of the State Government under Section 17 (4) of the Act directing that the
provisions of Section 5-A shall not apply to the land is ultra vires.”

Q: Which doctrine empowers the State to acquire land?

A: Doctrine of eminent domain – The power to take property from the

individual is rooted in the idea of eminent domain. The doctrine of eminent
domain states, the sovereign can do anything, if the act of sovereign involves

37
public interest. The doctrine empowers the sovereign to acquire private land
for public use, provided the public nature of the usage can be demonstrated
beyond doubt.

White and Collins v Minister of Health (1939) 2 KB 838

Administrative law: judicial review and the ultra vires factor

This case concerns the exercise of power of compulsory purchase of land.

 A housing authority was granted power under the Housing Act of 1936
to acquire land compulsorily for housing ‘provided that land did not
form part of any park, garden or pleasure ground.’
 The Housing Authority acquired land that was a park. After they
acquired this land, they sought and obtained confirmation of their
acquisition from the Minister of Health (the one responsible for giving
confirmation of such services).
 The purchase itself was also ultra vires because the land was a park and
there was a statutory restriction on the purchase of any land that was a
park.

The court quashed the order for purchase as well as the purchase, declaring it
null and void.

3.3 Exercise of jurisdiction – Fact and law – Error of law

Jurisdictional errors are of two types:

(1) Apparent Error

(2) Non-apparent Error
# Both are illegal

Error of law Apparent on the face of the record

It is well settled that certiorari will be issued to quash decisions which though
made within jurisdiction reveal on the “face of the record” an error of law. The
“record” for this purpose shall include:

(i) Documents in which the determination is recorded,

(ii) Documents which indicate the proceedings and pleadings,

38
 (iii) Reports, the extracts of which are included in the record,
(iv) Documents which are mentioned in the formal order to be the basis of
the decision.
Hari Vishnu Kamath v Syed Ahmed Ishaque AIR 1955 SC 233

In this case, by a bona fide mistake caused by the faintness of the

distinguishing marks, Assembly ballot papers were wrongly given to
Parliamentary voters by the Polling Officers and the votes cast by the
Parliamentary voters on the Assembly ballot papers were counted by the
Returning Officer.

The Election Tribunal held that though under rule 47(1)(c) these papers ought
to have been rejected, but whether the result of the election had been
materially affected by the non-observance of rule 47(1)(c) the initial mistake of
the Polling Officers in not following rules 23 and 28 must also be taken into
account, and if these rules had been observed the result of the election would
not have been affected. The Tribunal refused to set aside the election.

The High Court of Nagpur by a majority confirmed the order of the Tribunal in
an application for a writ under articles 226 and 227 of the Constitution.

The Constitution Bench of the Supreme Court quoted the observations of

Bombay High Court in Batuk K. Vyas v. Surat Municipality, ILR 1953 Bom 191;
AIR 1953 Bom 133 that no error can be said to be apparent on the face of the
record if it is not manifest or self-evident and requires an examination or
argument to establish it. The Court concluded that an error apparent on the
face of the record cannot be defined exhaustively, there being an element of
indefiniteness inherent in its very nature and must be left to be determined
judicially on the facts of each case.

When does an error cease to be mere error, and become an error apparent
on the face of the record? Learned Counsel on either side were unable to
suggest any clear-cut rule by which the boundary between the two classes of
errors could be demarcated”.

The Supreme Court in this case laid down four propositions:

39
 (1) Certiorari will be issued for correcting errors of jurisdiction, as when an
inferior Court or Tribunal acts without jurisdiction or in excess of it, or
fails to exercise it.
(2) Certiorari will also be issued when the Court or Tribunal acts illegally in
the exercise of its undoubted jurisdiction, as when it decides without
giving an opportunity to the parties to be heard, or violates the
principles of natural justice.
(3) The court issuing a writ of certiorari acts in exercise of a supervisory and
not appellate jurisdiction. One consequence of this is that the court will
not review findings of the fact reached by the inferior court or tribunal,
even if they be erroneous.
(4) An error in the decision or determination itself may also be amenable
to a writ of certiorari if it is a manifest error apparent on the face of
proceedings, e.g. when it is based on clear ignorance or disregard of the
provisions of law. In other words, it is a patent error which can be
corrected by “certiorari” but not a mere wrong decision. What is an
error apparent on the face of the record cannot be defined precisely or
exhaustively, there being an element of indefiniteness inherent in its
very nature, and it must be left to be determined judicially on the facts
of each case.
The Supreme Court quashed the decisions of the High Court and the Election
Tribunal and the whole election was set aside. The Election Commission was
directed to hold fresh elections.

Sayed Yaqoob v Radhakrishnan AIR 1964 SC 479

In this case, the State Transport Authority issued a notification under the
Motor Vehicles Act, 1939, calling for applications for the grant of two stage
carriage permits for the route Madras to Chidambaram.

A large number of applications were received. The authority granted the first
permit to one of the applicants and for the second it decided to call for fresh
applications.

The appellant, as also a number of other applicants, appealed to the State

Transport Appellate Tribunal.

40
The Tribunal confirmed the grant of the first permit and as regards the second
it allowed the appeal of the appellant and directed that it should be granted to
him.

Respondent No. 1 moved the High Court under Art.226 of the Constitution for
the issue of a writ of certiorari and the single Judge who heard the matter held
that the Appellate Tribunal had overlooked relevant considerations, and
allowed irrelevant considerations to prevail and so made the Rule absolute.

A Letters Patent appeal was preferred by the appellant. The Division Bench
affirmed the order of the single Judge on the ground that the Appellate
Tribunal had overlooked material considerations in favour of the respondent
No. 1 and dismissed the appeal.

The appellant went to the Supreme Court by special leave and it was
contended on his behalf that in issuing the writ of certiorari the High Court
exceeded its jurisdiction under Art. 226 of the Constitution.

It was held by the Supreme Court that the contention raised on behalf of the
appellant was well founded and must prevail.

The Court observed that a writ of certiorari is issued for correcting errors of
jurisdiction committed by courts or tribunals, in cases where they exceed their
jurisdiction or fail to exercise it or exercise it illegally or improperly, i.e. where
an order is passed without hearing the party sought to be affected by it or
where the procedure adopted is opposed to principles of natural justice.

The jurisdiction to issue a writ of certiorari is a supervisory one and in

exercising it, the court is not entitled to act as a court of appeal. That
necessarily means that the findings of fact arrived at by the inferior court or
tribunal are binding.

 The Court observed that an error of law apparent on the face of the
record can, however, be corrected by a writ of certiorari, but not an
error of fact however grave it may appear to be.(error of law and not
error of fact)
 A writ of certiorari can also be issued if it is shown that in recording a
finding of fact, admissible and material evidence has, not been admitted,
or inadmissible evidence affecting the impugned finding has been
41
 admitted. A finding of fact based on no evidence would also be an error
of law and as such amenable to such a writ.
 But a finding of fact cannot be challenged in such a proceeding on the
ground that the relevant and material evidence was insufficient to
sustain the finding. Adequacy or sufficiency of evidence or an inference
of fact to be drawn from the evidence or finding of fact are entirely
within the jurisdiction of the Tribunal.
 The Supreme Court said, what an error of law apparent on the face of
the record means: Where it is clear that the conclusion of law recorded
by an inferior Court or Tribunal is based on an obvious mis-
interpretation of the relevant statutory provision, or sometimes in
ignorance of it, or may be, even in disregard of it, or is expressly founded
on reasons which are wrong in law, the said conclusion can be corrected
by a writ of certiorari.”

Non-apparent error of law

Anisminic Ltd. v Foreign Compensation Commission (1969) 1 All ER 208

(doctrine of review for error of law.)

In this case, following the Suez crisis (1956), the Egyptian government took
over British companies and signed a treaty in which the Egyptian government
made available certain amount of money to the British government for
distribution amongst the British companies.

 The names of the companies were given in the treaty and included the
name of the appellant company.
 This amount was made over to the Foreign Compensation Commission
constituted under the Foreign Compensation Act, 1950. Section 4 of the
said Act contained a finality clause to the effect that that the decisions of
the Commission shall not be called in question in any court.
 The appellant Anisminic was an English company which owned mining
property in Egypt before 1956. Their property was taken over by
Egyptian government as a result of the Suez Crisis. Then appellants sold
the mining properties to TEDO (an Egyptian-government organization) in
1957.

42
  The claim of Anisminic Ltd. was rejected by the Tribunal on the ground
that they had transferred their interest to an Egyptian company.
 The tribunal i.e. the Foreign Compensation Commission held that
appellants weren’t qualified for compensation since their “successors in
title” (TEDO) didn’t have the British nationality.
 Appellants argued that the nationality of successor was irrelevant where
the claimant was the original owner.
 The company sought a declaration that the decision was unlawful before
the House of Lords. Their argument was that the Commission
misinterpreted the criteria for compensation. Under the Act, the
Commission had no power to decide the question of entitlement of
compensation.

The House of Lords held that the Commission had misinterpreted the criteria,
and that their error of law was of such a kind that there was no ‘determination’
at all. According to Lord Reid, the Commission had decided the claim ‘on a
ground which they had no right to take into account’ and as a result their
decision was not a determination, but a nullity.

The Court held that since the Commission had committed an error of
jurisdiction in determining an issue which was outside its jurisdiction, the
jurisdiction of the Court was not barred.

As the distinction between an error of jurisdiction and error within jurisdiction

is not very clear, the decision in Anisminic case makes the judicial review
broad-based even in the face of a clear finality clause. Therefore, even if the
constitutionality of an Act of Parliament cannot be questioned by the courts,
the courts can still enquire as to what Parliament intended in passing the
impugned provision, or whether there was any abuse of power conferred by
Parliament, or whether rules of natural justice were observed by the authority,
or whether the authority acted within or excess of jurisdiction.

Thus, the Anisminic decision has become the basis of the doctrine of review
for error of law.

43
Union of India v Tara Chand Gupta (1971) 1 SCC 486

This was a case under the Sea Customs Act wherein Sec. 188 made the order
final and provided that “every order passed in appeal under this section shall,
subject to the power of revision conferred by Section 199, be final”. The court
approved the Anisminic case.

 The Deputy Collector of Customs held that the goods imported by

respondents were not parts and accessories of motor cycles and
scooters as required by the license, but sets of Rixe Mopede complete in
knocked down condition. Therefore, the goods were confiscated under
Section 167(8) of the Act.
 The Court held that non-compliance with the provisions of the statute
would render the entire proceeding before the authority illegal and
without jurisdiction.
 The Court explained that in its broader sense, the word 'jurisdiction' is
used in several aspects; one of such aspects is that the decision of the
tribunal is in non-compliance with the provisions of the Act. Accordingly,
determination by a tribunal of a question other than the one which the
statute directs it to decide would be a decision not under the provisions
of the Act, and therefore in excess of its jurisdiction.
 Such a process, if adopted by the Collector, would mean that he was
inserting in entry 295, a restriction which was not there. That obviously
he had no power to do. Such a restriction would mean, that though
under a licence in respect of goods covered by entry 295 an importer
could import parts and accessories of all kinds and types, he shall not
import all of them but only some, so that when put together they would
not make them motor cycles and scooters in C.K.D. condition.

The Court ruled that a determination which takes into consideration factors
which the officer concerned has no right to take into account, is no
determination under the statute, but a nullity and a suit to challenge the same
would not be barred.

The Deputy Collector's order which was given without the compliance to the
statutory provisions was held by the court to be illegal and without jurisdiction.
The court in Tarachand Gupta equated non-compliance with the statute to

44
excess of jurisdiction and excess of jurisdiction could also arise when the
authority acts within its jurisdiction but takes into account irrelevant factors.

3.4 Evidence before the tribunal

No evidence (treated as error of law)

In India, the technical rules of the Evidence Act, 1872 do not apply to
administrative adjudications. The gap is filled, though inadequately, by the
judge-made rule of “No evidence”.

Union of India v H.C.Goel AIR 1964 SC 364

 The enquiry Officer had found the charged employee not guilty of the
charge of making an offer of a bribe to a superior officer.
 The Union Public Service Commission had also endorsed the conclusions
of the Enquiry Officer.
 However, the disciplinary authority, rejecting the report of the Enquiry
Officer, found the delinquent officer guilty and punished him.
 This action was challenged on the ground that the decision of the
disciplinary authority was not based on evidence and hence void.
The Supreme Court, while quashing the administrative action enunciated the
following propositions:

(1) The enquiry officer holds the enquiry against the delinquent as a
delegate of the government.
(2) The object of the enquiry by an enquiry officer is to enable the
government to hold an investigation into the charges framed against the
delinquent, so that the government can, in due course, consider the
evidence adduced and decide whether the said charges are proved or
not.
(3) The findings on the merit recorded by the enquiry officer are intended
merely to supply appropriate material for consideration of the
government. Neither the findings nor the recommendations are binding
on the disciplinary authority.
(4) The enquiry report (along with the evidence recorded by the enquiry
officer) constitutes the material on which the government has ultimately

45
 to act. That is the only purpose of the enquiry and the report which the
enquiry officer makes as a result thereof.
From the above propositions it becomes clear that the enquiry officer as a
delegate of the disciplinary authority investigates the matter, collects
evidence, and makes his recommendations on the matter. Therefore, when
the disciplinary authority holds the delinquent guilty, contrary to the material
and the recommendation of the enquiry officer in his report, then the
authority certainly is acting on “no evidence” before it and, hence, its decision
holding the delinquent guilty is not legal.

Thus, if the conclusion reached by the disciplinary authority, upon

consideration of the evidence, is perverse or suffers from patent (obvious)
error on the face of the record or based on no evidence at all, a writ of
certiorari could be issued.”

State of Haryana v Rattan Singh (1977) 2 SCC 491

The Supreme Court explained the substance of “no evidence rule” in State of
Haryana v Rattan Singh. In this case, a bus of the Haryana Road Transport
Corporation with Rattan Singh as conductor was taken over by a flying squad.
The inspector found 11 passengers without tickets though they had paid
money for it. However, the inspector did not record the statements of those
persons as required under the rules. After the formality of departmental
enquiry, the services of the conductor were terminated.

All the courts up to the High Court quashed the decision on the ground of
insufficiency of evidence and violation of rules of natural justice as none of the
11 witnesses was examined, and the Inspector did not record the statements
of witnesses as required by law.

On appeal by the State, the Supreme Court reversed the decision and held that
the simple point in the case was: Was there some evidence or was there no
evidence – not in the technical sense governing the regular court proceedings
but in a fair common-sense way as a man of understanding and worldly
wisdom would accept. Viewed from this angle, the sufficiency of evidence in
proof of findings of a domestic tribunal is beyond scrutiny. The evidence of the
Inspector is some evidence.

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The end-result of the decision is that in an administrative adjudication if there
is some evidence in some corner of the record, the decision is valid though it
may not be any evidence at all in accordance with the accepted norms of a
judicial decision.

Appreciation of Evidence

Apparel Export Promotion Council v A. K. Chopra AIR 1999 SC 625

The respondent: Private Secretary to the Chairman of the Apparel Export

Promotion Council,
The appellant in the case: the Apparel Export Promotion Council.

It was alleged that the respondent tried to molest a woman employee of the
council, Miss X (name withheld by the Supreme Court), who was at that time
working as a clerk-cum-typist, on 12-8-88. Though she was not competent or
trained to take dictations, he took her to the business centre at Taj Palace
Hotel for taking dictation and type out the matter. There he tried to sit too
close to her and despite her objection did not give up his objectionable
behaviour. After she took dictation from the Director, he (respondent) took
her to the Business Centre in the basement of the Hotel for typing the matter
and taking advantage of the isolated place he again tried to sit close to her and
touch her despite her objections. He repeated his overtures. He went out for a
while but came back and resumed his objectionable acts. He tried to molest
her physically in the lift also while coming to the basement but she saved
herself by pressing the emergency button, which made the door of the lift
open.

The respondent was placed under suspension on 18-8-88 and a charge sheet
was served on him.

A Director of the Council was appointed as Inquiry Officer and he held that the
respondent acted against moral sanctions and that his acts against Miss X did
not withstand the test of decency and modesty and held the charges levelled
against the respondent as proved.

47
The Disciplinary authority agreeing with the report of the Inquiry Officer
imposed the penalty of removing him from service with immediate effect, on
28-6-1989.

The respondent filed a departmental appeal before the Staff Committee and it
was dismissed. The respondent thereupon filed a writ petition before the High
Court and a Single Judge allowing it opined that “the petitioner tried to molest
and not that the petitioner had in fact molested the complainant”.

The Division Bench dismissed the appeal filed by the Council against
reinstatement of the respondent, agreeing with the findings of the Single
Judge.

The Supreme Court observed: The High Court appears to have over-looked the
settled position that in departmental proceedings, the Disciplinary authority is
the sole judge of facts and in case an appeal is presented to the Appellate
Authority, the Appellate Authority has also the power and jurisdiction to re-
appreciate the evidence and come to its own conclusion, on facts, being the
sole fact-finding authorities. Once findings of fact, based on appreciation of
evidence are recorded, the High Court in Writ jurisdiction may not normally
interfere with those factual findings unless it finds that the recorded findings
were based entirely on no evidence or that the findings were wholly perverse
and /or legally untenable. The adequacy or inadequacy of the evidence is not
permitted to be canvassed before the High Court. Since, the High Court does
not sit as an Appellate authority, over the factual findings recorded during
departmental proceedings, while exercising the power of judicial review, the
High Court cannot normally speaking substitute its own conclusion, with regard
to the guilt of the delinquent, for that of the departmental authorities. Even
insofar as imposition of penalty or punishment is concerned, unless the
punishment or penalty imposed by the Disciplinary or the Departmental
Appellate Authority, is either impermissible or such that it shocks the
conscience of the High Court, it should not normally substitute its own opinion,
and impose some other punishment or penalty.

The Supreme Court held: Judicial Review is directed not against the decision,
but is confined to the examination of the decision-making process.

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The Supreme Court further held: The material on the record, thus, clearly
establishes an unwelcome sexually determined behavior on the part of the
respondent against Miss X which is also an attempt to outrage her modesty.
Any action or gesture, whether directly or by implication aims at or has the
tendency to outrage the modesty of a female employee, must fall under the
general concept of the definition of sexual harassment. The evidence on the
record clearly establishes that the respondent caused sexual harassment to
Miss X, taking advantage of his superior position in the Council.

The Court also held that in a case involving charge of sexual harassment or
attempt to sexually molest, the courts are required to examine the broader
probabilities of a case and not get swayed by insignificant discrepancies or
narrow technicalities or dictionary meaning of the expression “molestation”.
They must examine the entire material to determine the genuineness of the
complaint. The statement of the victim must be appreciated in the background
of the entire case.

The Supreme Court set aside the order of the High Court and upheld the
departmental action.

MODULE IV: NATURAL JUSTICE

4.1 General - Fairness– Bases in common Law –The Indian Constitution –

Article 14 & Article21- Due process in the USA -Two Principles–Bias (Nemo
Judex in Causa Sua) Notice – Audi Alteram Partem

Natural Justice is an expression of English common law and involves a

procedural requirement of fairness. It is also known as substantial justice or
fundamental justice or universal justice or fair play in action.

It is envisaged in administrative law for ensuring fair exercise of power by

administrative agencies.

Meaning, Definition and Scope:

Meaning: 1. NJ is an ethico-legal concept based on the natural feeling of a

human being.

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By NJ we mean that which is founded in equity, is honest and right.

According to Justice S. M. Sikri, “Natural Justice is a piece of rule of law”

Definition: In Vionett v Barret (1855) 55 LJ RB 39, Lord Esher M.R. defined it as

“The natural sense of what is right and wrong”

Lord Parker defined it as “Duty to act fairly”

Scope: Principles of Natural Justice are the rules laid down by courts for the
purpose of protecting the right of an individual against adoption of arbitrary
procedure in determining questions affecting his rights by a judicial or quasi-
judicial authority

These two rules are characteristic of what is often called ‘natural justice’. They
are twin pillars supporting it. They have been put into two words- Impartiality
& Fairness.

Principles of Natural Justice

Under common law, the expression “Natural Justice” has been used as
referring to the following two important principles based on Latin maxims:

(i) “Audi Alteram partem” i.e. no man shall be punished unheard or the rule
of fair hearing.
(ii) “Nemo Judex in Causa Sua” i.e. No man shall be judge of his own cause.
Besides these two there also exist two other principles

(iii) Reasoned decision must be given.

(iv)Justice should not only be done but it should seem to have been
manifestly done.
v) The first requirement of natural justice is that the judge should be
IMPARTIAL and NATURAL and must be FREE FROM BIAS.
vi) He is supposed to be INDIFFERENT to the parties to the controversy.
vii) he must be in PPOSITION to ACT JUDICIALLY and to DECIDE the matter
OBJECTIVELY.

Thus, even if the principles of natural justice are not embodied rules, the
generally accepted rules are the above four principles which define the
principle of natural justice.
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The principles of natural justice are firmly grounded in Article 14 and 21 of the
Constitution.

With the introduction of the concept of substantive and procedural due

process in Article 21 of the Constitution all that fairness, which is included in
the principles of natural justice can be read into Article 21 when a person is
deprived of his life and personal liberty.

In other areas, it is Article 14 that now applies not only to discriminatory class
legislation but also to arbitrary or discriminatory State action. Because
violation of natural justice results in arbitrariness, therefore, violation of
natural justice is violation of Equality clause of Article 14. This all suggests that
now the principles of natural justice are grounded in the Constitution.

4.2 Personal Bias – Real Likelihood or Reasonable Suspicion – Personal–

pecuniary– Subject matter and departmental–Necessity– Consequences of
biased action

The doctrine of Bias

It is a fundamental principle that no man shall be a judge of his own cause. The
principle is that a judge is disqualified from determining any case in which he
may, or may fairly be suspected to have an interest in the subject matter. The
underlying principle is that “justice should not only be done, but should
manifestly and undoubtedly be seen to be done”. In other words,
administrative tribunals must deal with the questions referred to it without
bias. The common law distinguishes two types of bias, that arising from
financial interest and that arising from such causes as relationship to a party or
witness. Any direct pecuniary interest, however small is sufficient to disqualify
a person from acting as a judge. Any interest, motive or influence which may
impair the objectiveness of a decision or may have the appearance of so doing
will invalidate a judicial or quasi-judicial determination.

The rule against bias is based on three maxims:

1. No man shall be a judge in his own cause.

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 2. Justice should not only be done, but manifestly and undoubtedly be
seen to done.
3. Judges, like Caesar's wife, should be above suspicion.
Anything which tends or may be regarded as tending to cause a person to
decide a case otherwise than on evidence must be held to be biased. The first
requirement is that the judge should be impartial and natural and must be free
from bias. One cannot act as judge of a cause in which he himself has some
interest either pecuniary or otherwise as it affords the strongest proof against
neutrality. One must be in a position to act judicially and to decide the matter
objectively. If the judge is subject to bias in favour of or against either party to
the dispute or is in a position that a bias can be assumed, he is disqualified to
act as a judge and the proceedings will be vitiated. This principle applied not
only to judicial proceedings but also to quasi-judicial as well as administrative
proceedings.

Categories of Bias

Bias can be examined under three categories

(1) Pecuniary bias;

(2) Personal bias; and
(3) Official bias.
Pecuniary Bias

Pecuniary bias, however slight, will vitiate the decision. Pecuniary bias is said to
be present where the deciding authority has monetary or proprietary interest
in the subject matter.

The position on financial interest has been succinctly stated in Halsbury’s laws
of England:

“There is a presumption that any direct financial interest, however small, in the
matter in dispute disqualifications a person from adjudicating. Membership of
a company, association or organization which is financially interested may
operate as a bar to adjudicating, as may be a bare liability to costs where the
decision itself will involve no pecuniary loss.”

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The historical example of pecuniary bias is the decision of the House of Lords in
Dimes v Grand Junction Canal Co.

Dimes v Grand Junction Canal Co. (1852) 3 HLC 759

This case was heard by the House of Lords. The case addresses the point that
“Judges must not appear to be biased”. The case introduced the principle that
“no one can be a judge in his own case”.

The facts of the case related to the sale of land crossed by a canal, a value had
to be decided by the judge. In this case the company filed a suit against the
land owner in matter largely involving the interest of the company.

Lord Chancellor (Cottenham) presided over the said suit in which the canal
company brought a case in equity against a landowner. The case was decided
in favour of the company. Lord Chancellor was later discovered to have had
shares in said company. The case went to the House of Lords for final
adjudication. The verdict stated that although there was no suggestion that the
Lord Chancellor had in fact been influenced by his interest in the company, no
case should be decided by a judge with a financial interest in the outcome.
Lord Campbell observed that no one supposed that Lord Chancellor was in the
remotest degree influenced by the interest he had in the concerned company
but the maxim that no one should be a judge at his own cause should be held
sacred. It was held that the Lord Chancellor was disqualified from sitting as a
judge in the case because he had an interest in the action.

Personal Bias

Personal bias may arise owing to i) friendship,

ii) personal animosity

iii) near relationship.

i) Personal relationship: If the family members are party in the dispute, it

renders a person disqualified to act as a judge to decide that particular case.

Relevant cases:

1. Kirti Deshmankar v Union of India (1991) 1 SCC 104

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  A plea of bias was raised against the mother-in-law of a medical student
who was selected for post-graduation course on the basis of merit by
the council of the medical college. The mother-in-law was a member of
the council and she was present in the meeting in which the admissions
were being decided.
 The contention of the petitioner was that since the said medical student
who was a foreign national when she got admission as a self-financing
student on a reserved seat of MBBS course in that college, she is not
eligible for admission in PG course of that college.
 The petitioner, who had secured lower rank in the merit list for
admission, challenged the respondent’s selection on different bases
along with a plea of personal bias on the ground that the mother-in-law
as a part of the decision making body exercised her influence and got
the respondent illegally selected.
 The court however dismissed the petition on the ground that as the
selection was on the basis of the merit list so it cannot be said that the
mother-in-law in any way could have influenced the decision but made
important observation regarding the issue of personal bias.

SC observed that whenever there arises an occasion that if any member of the
council is a close relative of any candidate appearing for the selection, such
member should not only not participate in the selection of the candidate
related to him, but he must also withdraw altogether from the entire selection
process and ask the council to nominate another person in his place in the
council so as to ensure purity of selection and its process.

2. D.K. Khana v UOI (AIR 1973 HP 30)

The Son-in-law was a member of the committee entrusted to select officers for
promotion to the IAS, wherein father-in-law was a candidate. Though the son-
in-law DID NOT PARTICIPATE in the committee meeting, Himachal Pradesh
High Court ruled it to be a case of Personal bias.

Manek Lal v Prem Chand (AIR 1957 SC 425)

 There was case of professional misconduct against an advocate. The Bar

Council constituted a committee and a senior advocate was appointed

54
 as the chairman. This senior advocate had appeared in a case as a
counsel for the complainant several years ago.
 The tribunal found the petitioner guilty of having got a false stay order in
favour of his clients written by the clerk of the Court by improper means.
 The High Court concurred in this finding.
 It was contended on behalf of the accused that the tribunal was not
properly constituted.
 Though the petition was rejected on the ground that the issue was not
raised before the tribunal took the adverse decision, especially when the
accused knew beforehand about the possibility of personal bias

The SC, however, observed that it is of the essence of judicial decisions and
judicial administration that judges should be able to act impartially, objectively
and without any bias.

The test always is and must be whether a litigant could reasonably apprehend
that a bias attributable to a member of the tribunal might have operated
against him in the final decision of the tribunal. It is in this sense that it is often
said that justice must not only be done but must also appear to be done.

iii) Personal Hostility: Enmity or rivalry or ill-will with the disputant / party to
the dispute amounts to bias and render a man disqualified to act as a judge to
decide a case.

1. Meenglas Tea Estate v their Workmen AIR 1963 SC 1719

 There was an incident in which a group of workmen assaulted the

Manager and two Assistant Managers of tile appellant company.
 All the three officers were wounded. Some workmen were suspended,
and charge-sheets were served on them, charging them with
participation in the riot.

 The inquiry was held by the Manager and one of the Assistant
Managers. During the inquiry, no witness was examined and no
statement made by any witness was tendered in evidence.
 After an inquiry the workmen were dismissed.

55
  The dispute was first referred to the Labour Court and then to the
Industrial Tribunal, West Bengal.
 The Tribunal set aside the inquiry held by the appellant company and
asked the company to prove the allegations against each workman de
novo before it.
 In the present case neither was any witness examined nor was any
statement made by any witness tendered in evidence. The enquiry, such
as it was, the managers were not only in the position of judges but also
of prosecutors and witnesses.

The court Held that the view of the Tribunal was correct that the inquiry made
by the company was not in accordance with the principles of natural justice.

The question whether the bias of a single member in a decision-making body

would vitiate the decision of the body has arisen in several cases. In one case it
was held that where decision was taken by a body of persons the knowledge of
one person of the facts of the charge would not invalidate the disciplinary
proceedings.

Mineral Development Corporation Limited v State of Bihar AIR 1960 SC 468

The petitioner company was owned by Raja Kamakhya Narayan Singh, who
was a lessee for 99 years of 3026 villages situated in Bihar for the purpose of
exploiting mica. The Minister of Revenue acting under Mines Act 1952
cancelled his license. Raja claimed that the minister had personal bias against
him and that is why he has cancelled his license. The owner of the company,
Kamakhya Narayan Singh had opposed the said Minister in parliamentary
general elections of 1952. The Minister had filed criminal case under section
500 of IPC against him.

Since the personal rivalry between the owner of the company and the minister
concerned was established, the cancellation order was declared void. The
Supreme Court held that the act of the minister was quasi-judicial act and the
principle of natural justice must have been applied.

Personal animosity will vitiate the order. Where an enquiry was conducted by
an Officer against whom the delinquent employee had earlier given evidence
in a criminal proceeding was held incompetent to hold a disciplinary enquiry.

56
A.K. Kraipak v. Union of India AIR 1970 SC 150

The Supreme Court of India considered a very interesting fact in case of A.K.
Kraipk v. Union of India.

Naquishbund, who was member of the Board for selection of the officers to
the Indian Forest Service, was also one of the candidates seeking to be
selected. He did not sit in the selection Board at the time his name was
considered for selection but he did sit in the board and participated in its
deliberation while names of his rivals were considered for selection. He also
participated in the deliberation of the Board while preparing the list of
selected candidates. Hegde J speaking for the Court said:

“It is against all canons of justice to make a man a judge in his own cause. It is
true that he did not participate in deliberations of the committee when his
name was considered. But then the very fact that he was a member of the
selection board must have its own impact on the decision of the selection
board.

Further, admittedly he participated in the deliberation of the selection board

when the claims of his rivals were considered. He was also party to the
preparation of list of selected candidates in order of performance. At every
stage of his participation in the deliberation of the selection, there was a
conflict between his interest and duty. Under those circumstances it is difficult
to believe that he could have been impartial.

The real question is not whether he was biased. It is difficult to prove the state
of mind of a person. Therefore, what we have to see is whether there is
reasonable ground for believing that he was likely to have been biased. We
agree with the Ld. Attorney-General that a mere suspicion of bias is not
sufficient. There must be reasonable likelihood of bias. In deciding the
question of bias we have to take into consideration human probability as an
ordinary course of human conduct.

It was in the interest of Naquishbund to keep out his rivals in order to secure
his position from further challenge. Naturally he was also interested in
safeguarding his position while preparing the list of selected candidates.”
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Official Bias (also known as ‘Subject matter bias/ Institutional bias/
Departmental bias)

Official bias can be of following types:

(i) Subject-matter bias

(ii) Institutional bias
(iii) Departmental bias

These cases fall within this category where the deciding officer is directly or
otherwise involved in the subject matter of the case. This is a combination of
‘ministerial bias’ and ‘departmental bias’. This is also known as bias as to
subject matter. The question of Official bias arises where a policy is made
public and later the same officer hears the objections against policy. Here a
conflict arises between the duty to act judicially and the duty to implement the
policy. This type of bias is not seriously viewed by the Court. According to
Griffith and Street, rarely only this bias will invalidate proceedings. Wade
remarks that ministerial or departmental policy cannot be regarded as a
disqualifying bias.

According to Prof. Jain & Jain there are four categories of official bias:

(i) Partial connection with the issues

(ii) Departmental or official bias
(iii) Prior utterances and pre-judgment of issues
(iv) Acting under dictation

Gullapalli Nageswara Rao v. A.P. State Road Transport Corporation Ltd. AIR
1959 SC 308 (First Gullapalli Case)

The petitioners were carrying on motor transport business for several years in
Krishna district of Andhra Pradesh. The state transport undertaking (APSRTC)
published a scheme for nationalization of motor transport in the state from the
date to be notified by the state government. It invited objections to the
scheme. The petitioners, among others, filed their objection to the scheme.
The Secretary of transport department gave a personal hearing to the
objections and heard the representations made on behalf of the state
transport undertaking. The entire material gathered by the Secretary was

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placed before the Chief Minister who approved the scheme. The approved
scheme was subsequently published.

The petitioners assailed the constitutional validity of the scheme under Article
32 of the Constitution before the Supreme Court. On various grounds. The SC
upheld the objections and quashed the order approving the scheme.

One of the contentions raised by the petitioners was that the person who had
initiated the scheme had also heard the objections. He was, therefore, biased
in favour of the scheme, and hence could not have given fair hearing.

The Court held that the hearing given by the Secretary clearly offended the
principles of Natural Justice and, hence the proceedings involving the hearing
were void. Another objection the court upheld was that since the hearings
were held before one person and another gave the final decision, the rules of
Natural Justice were violated. The majority held that since the ultimate
decision taken after hearing both sides was quasi-judicial in nature, the
functions of hearing and deciding could not be vested in two different persons.

Gullapalli Nageswara Rao v State of A.P. AIR 1959 SC 1376 (Second Gullapalli
Case)

After quashing of the scheme of nationalizing transport by the Supreme Court,

the Act was amended and the function of hearing the objections to the scheme
was given over to the Minister concerned. The decision was again challenged
by Gullapalli Nageswara Rao on the ground of departmental bias because the
Minister was the head of the Department concerned which initiated the
scheme and was also ultimately responsible for its execution. However, on this
occasion the Supreme Court rejected the challenge on the ground that the
Minister was not a part of the department in the same manner as the
Secretary was. The reasoning of the court is not very convincing perhaps
because, departmental bias is something which is inherent in the
administrative process.

Since Gullapalli I, the SC has continuously diluted the stance, which it had
adopted in this case. For instance, in Gullapalli II the court did not object to the
procedure that the minister heard the objections in place of Secretary, as he
was not part and parcel of the department, which is concerned in making the

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policy. According to the court, secretary is part of the department while the
minister is primarily responsible for the disposal of the business pertaining to
the department. In subsequent cases, the Supreme Court has further relaxed
its attitude on matters regarding disqualification, which arises from policy bias,
and the court has shown a further liberal approach in this respect from the
departmental point of view.

Conclusion: Policy bias is inherent in administration and cannot be eliminated.

It is useless to condemn a public officer on the ground of bias merely because
he or she is predisposed in favour of some policy in public interest. This is
called Policy Notion Bias.

The problem of departmental bias also arises in a different context – when the
functions of a judge and Prosecutor are combined in the same department. It
is not uncommon to find that the same department which initiates a matter
also decides it, therefore, at times, departmental fraternity and loyalty
militates against the concept of fair hearing.

Doctrine of Necessity

Bias would not disqualify an officer from taking an action if no other person is
competent to act in his place. This exception is based on the doctrine of
necessity. The law permits certain things to be done as a matter of necessity.
This doctrine may be invoked in cases of bias where there is no authority to
decide the issue. If the doctrine of necessity is not allowed in full play in certain
unavoidable situations, it would impede the course of justice itself and the
defaulting party would benefit from it.

Election Commission of India v Dr. Subramanian Swami (1996) 4 SCC 104

In this case it was held that mere necessity is not sufficient, but absolute
necessity is required. Jayalalitha was convicted in relation to land cases.
Subramanian Swamy, who was a political opponent, wrote a letter to the
Governor seeking for disqualification of Jayalalitha. Governor can act only on
the basis of recommendation of the Election Commission (EC), so he referred
the matter to the Election Commission. Jayalalitha moved to the High Court,
which held that EC cannot decide the matter, as there is personal bias because
of friendship between EC and Subramanian Swamy.

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 Appeal was filed to the Division Dench of the HC. It held that the Single Bench
has erred in its decision. Appeal was filed before the SC. SC agreed that there is
chance of personal bias but held that EC being a 3-member body, constituting
of Chief Election Commissioner (CEC) and 2 other members. So, even if CEC is
not present, the other 2 members can decide the matter. But if there is
difference of opinion between the two members, then only the CEC will be
called to decide the matter, only as a matter of absolute necessity.

Policy Notion Bias or Pre-conceived Notion Bias

Bias arising out of preconceived notions is a very delicate problem of

administrative law. A classic case bringing this problem to the forefront is
Franklin v. Minister of Town and Country Planning known as Stevenage case.
In this case the appellant challenged the Stevenage New Town Designation
order, 1946 on the ground that no fair hearing was given because the minister
had entertained bias in his determination which was clear from his speech at
Stevenage when he said “I want to carry out a daring exercise in town planning
(jeers, catcalls, boos). It is no good your jeering! It is going to be done.” Though
the court did not accept the challenge on the technical grounds that the
minister in confirming the report was not performing any quasi-judicial
function, but the problem still remains that the bias arising from strong
convictions as to policy may operate as a more serious threat to fair action
than any other single factor.

Statutory Exclusion

There are instances where the statute itself explicitly mentions that the rule of
natural justice must be done away with.

Malak Singh v State of Punjab & Haryana

The Supreme Court held that the surveillance register maintained by the police
is a confidential document. Neither the person whose name has been entered
into the register nor any other member of the public can have access to it.
Furthermore, the court observed that observance of the principle of natural
justice in such a situation may defeat the very purpose of surveillance and
there is every possibility that the ends of justice will be defeated.

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4.3 Notice and hearing – Contents of Notice – Evidence – Cross examination –
Right to counsel– Copy of the Enquiry report

Audi Alteram Partem (Nobody should be condemned unheard) (IMP)

Meaning of Audi Alteram Partem: “Audi alteram partem” means ‘hear the
other side’, or ‘no man should be condemned unheard’ or ‘both the sides must
be heard before passing any order’.

Essentials of Audi Alteram Partem: The latin maxim briefly means that before
an order is passed against any person, reasonable opportunity of being heard
must be given to him.

Generally, this maxim includes two elements:

 Notice; and
 Hearing.
Notice: The first ingredient of ‘audi altera partem’ is notice. Before any action
is taken, the affected party must be given a notice to show cause against the
proposed action and seek his explanation.

Notice is a must to start a hearing. A notice must contain the time, place and
date of hearing, jurisdiction under with the case is filed, the charges, and
proposed action against the person.

It is a sine qua non of the right of fair hearing. Any order passed without giving
notice is against the principles of natural justice and is void ab initio. Before
taking any action, it is the right of the person to know the facts. Without
knowing the facts of the case, no one can defend himself. Therefore,

Hearing (Fair): The second ingredient of audi alteram partam (hear the other
side) rule is the rule of hearing. Hearing is an essential aspect of administrative,
judicial and quasi-judicial proceedings. The opposite party should be allowed
to examine the witness.

If the order is passed by the authority without providing the reasonable

opportunity of being heard to the person affected by it adversely, will be
invalid and must be set aside.

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The adequate and reasonable legal representation is one of the guarantees of
fair hearing. In many statutes and regulations, legal representation is expressly
excluded. But in such cases, the purpose is to save expenses which are
supposed to protect the poor against the rich and reduce delay because
lawyers are said to cause delay by applying delaying tactics.

Why fair hearing is important?

1) The requirement of hearing may be considered necessary according to

certain fundamental rights granted by the Constitution.
2) The statutes under which an administrative action is taken may itself
expressly require the requirements of hearing.
3) It has been reiterated over and over again that a quasi-judicial body
must follow the principles of natural justice.
Evidence: Evidence is an important part which is to be brought properly before
the Court in the presence of both the parties and a judicial or quasi-judicial
authority must have to act on the evidence produced.

Cross-Examination: The adjudicating authority in a fair hearing is not required

only to disclose to the person concerned the evidence or material to be taken
against him, but he should be provided an opportunity to rebut the evidence
or material. The important question before the authority is that the witness
should be cross-examined or not.

Principle of natural justice – Non-application in special circumstances

Exceptions to Fair hearing

Following are the grounds on which the right to be heard can be excluded
wholly or partly:

1. Where the functions of the authority are policy oriented.

For example, Clause 1.20 of Cotton Textiles (Control Order, 1948): Operating of
power looms caused losses to cottage industries in villages.

Held: The petitioner’s suit failed as it was a policy oriented decision of the
government.

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2. Where the functions of the agency concerned are held to be administrative
or discretionary: Conditions where the authorities exercising the power are
vested with far reaching discretion to take a decision in one way or the other.

3. Where an obligation to give notice and opportunity to be heard would

obstruct the taking of prompt action of a preventive or remedial nature.
Example,
a) To prohibit a procession or meeting for the eminent breach of peace.
b) To regulate or prohibit trades or occupations which are inherently
dangerous to the community.
4. Where disclosure of relevant information to the affected party would be
prejudicial to the public interest.

5. Where the power exercised is disciplinary in nature.

Hiranath Mishra v Rajendra Medical College, Ranchi AIR 1973 SC 1260

The facts: The second year students of Rajendra Medical College, Ranchi living
in the College hostel were found sitting on the compound wall of the girls
hostel. Later, they entered into the compound and were found walking
without clothes. They went near the windows of the rooms of some girls and
tried to pull the hand of one of the girls. Some five of them climbed up along
the drain pipes to the terrace of the girls’ hostel where a few girls were doing
their studies. On seeing them the girls raised an alarm following which the
students ran away and the girls recognized the three appellants and another.
On receipt of a complaint from 36 girl students, a Committee of three
members of the staff appointed by the Principal conducted an inquiry.

They recorded the statements of ten girl students of the hostel behind the
back of the delinquents, which disclosed that though there were many more
students the girls could identify only four of them by name.

The Committee thereafter called the four students and explained the contents
of the complaint without disclosing the names of the girls and obtained their
explanation in which they denied the charge. Agreeing with the findings of the
Committee, the principal expelled the four students from the college for two
academic sessions.

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It was contended before the Supreme Court (as earlier unsuccessfully before
the Patna High Court) that rules of natural justice were not followed, that the
enquiry, if any, had been held behind their back, that witnesses were not
examined in their presence and they were not given opportunity to cross-
examine them and the report of the Committee was not furnished to them.

The Supreme Court observed that

 Principles of natural justice are not inflexible and may differ in different
circumstances and that they cannot be imprisoned within the straight
jacket of rigid formula and the application depends upon several factors.
 The complaint related to an extremely serious matter involving not
merely internal discipline but the safety of the girl students living in the
Hostel under the guardianship of the college authorities.
 A normal inquiry is not feasible as the girls would not have ventured to
make their statements in the presence of the miscreants thereby
exposing themselves to retaliation and harassment and the authorities
had to devise a just and reasonable plan of enquiry which would not
expose the girls to harassment and at the same time secured reasonable
opportunity to the delinquents to state their case.
 There was no question about the incident, the only question being about
the identity of the delinquents.
 The names were mentioned in the complaint and the girls identified
their photographs when mixed with 20 other photographs. The
delinquents merely denied the incident and they did not adduce any
evidence that they were in their Hostel at the time of the incident.
 It would have been unwise to have furnished them with a copy of the
inquiry report. The Supreme Court drew analogy with a similar
procedure followed under the Goonda Act and observed that however
unsavoury the procedure may appear to a judicial mind, these are facts
of life which are to be faced.
 There was nothing to impeach the integrity of the Committee. The
delinquents were informed about the complaint against them and the
charge and given an opportunity to state their case and nothing more
was required to be done.

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The Supreme Court held that Examination of witnesses behind the back of
delinquent male medical students in respect of misconduct of molestation of
girl students residing in College Hostel, at odd hours of the night, and non-
furnishing copy of inquiry report, is not violative of principles of natural justice
in the special circumstances of the case.

Article 311(2) embodies in express words the AUDI ALTERAM PARTEM rule in
all those cases where the conduct of a government servant deserves the
punishment of dismissal, removal or reduction in rank.

The second proviso is based on public policy and is based on public interest. It
excludes the principle of natural justice.

4.4 Reasoned Decision – Institutional Decisions – The post decisional hearing

– Effect of decision without notice

Doctrine of Reasoned Decision:

A party is entitled to know the reasons for the decision.

A statutory force has been given to this rule. Section 12 of the Tribunals and
Inquiries act, 1958 provides that reasons should be given by those bodies if so
requested by the parties unless grounds of national security require to the
contrary.

In the case of Sunil Batra v Delhi Administration, 1978 SC 1615, the apex court
observed that there is an implied duty of the Jail Superintendent to give
reasons for putting bar fetters on a person to avoid invalidity of that provision
under the Constitution. Also, in Maneka Gandhi v UOI, Chandrachud J.
observed that the power to disclose reasons in support of the order is
exceptional in nature and ought to be exercised fairly, sparingly and nly when
fully justified in an uncommon situation.

Legal Representation: A balance has to be maintained between the disputing

parties. They should be at parity. When one party is illiterate – not competent
– legal representation is required to uplift the party.

Post – decisional Hearing

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  Post decisional hearing is a hearing which takes place after a provisional
decision is reached.
 The idea of post-decisional hearing has been developed to maintain a
balance between administrative efficiency and fairness to the individual.
 This principle was laid down in Maneka Gandhi v. Union of India.
 There is a nexus between pre-decisional and post-decisional hearing.
The logic behind introducing the post-decisional hearing is to increase
and maintain administrative fairness.
 Post decisional hearing takes place where it may not be feasible to hold
pre-decisional hearing.
Maneka Gandhi v Union of India AIR 1978 SC 897

In this case, the Supreme Court laid down the principle that if in public interest,
immediate action was indispensable, it is impracticable to afford a hearing
before the decision, it should be afforded after the decision.

In this case, the passport of the petitioner journalist was impounded by the
Government of India in public interest by an order. The petitioner was not
given any opportunity of hearing before taking the impounding action. The
government also declined to furnish her the reasons for its decision. The
petitioner filed a petition before the Supreme Court under Art. 32 challenging
the validity of the impounding order. The government contended that the
application of the rule of Audi Alteram Partem must be held to be excluded
because it frustrates the very purpose of impounding the passport.

Rejecting the contention of the government, the Supreme Court held that
though the impoundment of the passport was an administrative action yet the
rule of fair hearing is attracted by necessary implication and it would not be
fair to exclude the application of this cardinal rule on the ground of
administrative convenience.

The SC laid down the principle that in an emergent situation requiring

immediate action, it is not possible to go for pre-decisional hearing. The option
to be exercised in such cases would be post-decisional hearing.

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Post-decisional hearing mechanism may be resorted to only when pre-
decisional hearing may not be possible and the only choice may be to have
either no hearing or a post-decisional hearing.

MODULE V: DISCRETIONARY FUNCTIONS

5.1 Meaning of Discretion – Constitutional and Discretionary – Absolute –

Subjective and Objective

Meaning of Discretion

Discretion in layman’s language means choosing from amongst various

available alternatives without reference to any pre-determined criterion, no
matter how fanciful that choice may be. Discretion is the power usually given
by the statute to make a choice among competitive considerations. When we
speak of administrative discretion, we mean that a determination may be
reached, in part at least, upon the basis of considerations not entirely
susceptible of proof or disproof.

Discretionary function

Executive

Pure Administrative function

Discretionary Powers – A Need of Modern Administrative Law

In modern times, the Legislatures were compelled to confer vast discretionary

powers on the administration because it is not always possible to lay down
standards or norms for the exercise of administrative power. Administration is
always asked to solve a problem, whenever it arises, for the Legislature is not
sure how it can be solved. It is only administration which is deemed competent

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to do and, therefore, power is left with it in rather broad terms. The
conferment power assumes that the power should be exercised independently
by the authority concerned according to his own assessment. It imposes a duty
to do so, subject, of course, to the limitation provided by law and of being
within the ambit of the power. The administrative authorities vested with such
powers should, therefore, act on their own accord; they should not be guided
by the direction or instruction of their superiors in the discharge of the power.

Judicial Control of Administrative Discretion

The broad principles, on which the exercise of discretionary powers can be

controlled, have now been judicially settled. These principles can be examined
under two main heads:

(a) Where the exercise of the discretion is in excess of the authority, i.e.
ultra vires;
(b) Where there is abuse of the discretion or improper exercise of the
discretion.
These two categories, however, are not mutually exclusive. In one sense the
exercise of the discretion may be ultra vires, in other sense the same might
have been exercised on irrelevant considerations.

As regards the ultra vires exercise of administrative discretion, the following

incidents are pre-eminent:

1) Where an authority to whom discretion is committed does not exercise

that discretion himself;
2) Where the authority concerned acts under the dictation of another body
and disables itself from exercising a discretion in each individual case;
3) Where the authority concerned in exercise of the discretion, does
something which it has been forbidden to do, or does an act which it has
not been authorized to do;

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 4) Where the condition precedent to the exercise of its discretion is non-
existent, in which case the authority lacks the jurisdiction to act at all.
Under the second category, i.e., abuse of discretionary power, the following
instances may be considered:

1) Where the discretionary power has been exercised arbitrarily or

capriciously;
2) Where the discretionary power is exercised for an improper purpose,
i.e., for a purpose other than the purpose of carrying into effect in the
best way the provisions of the Act;
3) Where the discretionary power is exercised inconsistent with the spirit
and purpose of the statute;
4) Where the authority exercising the discretion, acts on extraneous
considerations, that is to say, takes into account any matters which
should not have been taken into account;
5) Where the authority concerned refuses or neglects to take into account
relevant matter or material consideration.
6) Where the authority imposes a condition patently unrelated to or
inconsistent with the propose or policy of the statute;
7) Where in the exercise of the discretionary power, it acts mala fide;
8) Where the authority concerned acts unreasonably.

Principles governing the exercise of Discretionary powers

The courts have expounded certain propositions, and taken recourse to certain
principles or tests to control discretionary powers in certain situations and
contingencies.

The several principles can conveniently be grouped in two main categories:

1. Excess or abuse of discretionary powers by the authority;

2. Failure to exercise or non-exercise of discretion.
Excess or abuse of discretionary powers: Following principles may be included
in this category:

 Exceeding jurisdiction;
 Irrelevant consideration;

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  Leaving out relevant consideration;
 Combination of relevant and irrelevant consideration;
 Improper purpose; collateral purpose;
 Colourable exercise of power;
 Mala fide;
 Unreasonableness
Failure to exercise or non-exercise of discretion: Following principles may be
included in this category:

 Fettering or Imposing fetters on discretion;

 Acting under dictation;
 Acting Mechanically; Non-application of Mind.
 Sub-delegation;
 Condition precedent.
Conferment of Discretion

Discretion is conferred in the area of rule-making or delegated legislation, e.g.

when the statutory formula says that the government may makes rules which
it thinks expedient to carry out the purposes of the Act. In effect, a broad
discretion and choice are being conferred on the government to make rules.
Similarly, discretion is conferred on adjudicatory and administrative authorities
on a liberal basis, that is, the power is given to apply a vague statutory
standards from case to case.

Rarely does the legislature enact a comprehensive legislation complete in all

details. More often the legislation is sketchy or skeleton, leaving many gaps
and conferring powers on the administration to act in a way it deems
"necessary" or “reasonable" or if it “is satisfied” or “is of opinion”. Rarely does
the legislature clearly enunciate a policy or a principle subject to which the
executive may have to exercise its discretionary powers. Quite often, the
legislature bestows more or less an unqualified or uncontrolled discretion on
the executive. Administrative discretion may be denoted by such words or
phrases as “public interest”, “public purpose”, “prejudicial to public safety or
security”, “satisfaction,” “belief, “efficient”, “reasonable” etc. Thus, there is no
set pattern of conferring discretion on administrative officers.

The various kinds of expressions used in the statute conferring discretion are:
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  The authority is empowered…….
 The authority is satisfied…….
 When the authority deems fit…….
 When the authority considered it necessary…….
 When the authority considered expedient or desirable……
 When the authority considered in public interest……..

Principles of Discretion – Subjectivity and Objectivity

Liversidge v. Anderson 1942 AC 206:(1941)3 AllE.R.338(Read in particular Lord

Atikin’s dissenting Judgment pp349-363in All ER)

Liversidge v Anderson is a landmark administrative law case that concerned

civil liberties and the separation of powers, specifically the relationship
between the courts and the State.

In 1939 the United Kingdom entered the Second World War. In response to
growing national security concerns, the Parliament enacted the Emergency
Powers (Defence) Act 1939 (UK). Regulation 18B prescribed that “If the
Secretary of State has reasonable cause to believe any person to be of hostile
origin or associations and that by reason thereof it is necessary to exercise
control over him, he may make an order against that person directing that he
be detained.”

The following year Robert Liversidge was arrested by a warrant issued by Sir
John Anderson, Secretary of State and detained in Brixton Prison, pursuant to
Regulation 18B. He was not charged or accused of a crime and was not given a
reason for his detention.

In response, Liversidge got issued a writ, suing Anderson for unlawful

detention and claiming damages for false imprisonment. The central issue in
the case was whether the Secretary of State’s ‘reasonable cause’ was subject
to an objective or a subjective test. The matter was heard in many different
courts until a final decision was made in House of Lords.

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By a majority 4:1, Liversidge lost his claim because he failed to prove that he
was wrongly detained. Each Law Lord delivered an individual judgment. The
majority accepted the Secretary of State’s belief, pointed out the safeguards
and recourse available to uphold a person’s liberty and gave considerable
weight to the wartime context of Regulation 18B as they believed that it was
not appropriate for the courts to deal with matters of national security. In the
majority view, these matters were the within the sole ambit of Executive
power.

Lord Atkin strongly dissented. He held that the words ‘reasonable cause to
believe’ imposed a standard of reasonableness on the Secretary of State. Lord
Atkin held that an exercise of the power under Regulation 18B could not be
justified merely on the basis of the Secretary of State having formed a
subjective belief, since this would confer ‘an unconditional power of
imprisonment’. Significantly, Lord Atkin held a view that the courts did have a
role to investigate the actions of the Executive.

Padfield v Minister of Agriculture Fisheries and Food

 A milk marketing scheme was set up by the Agricultural Marketing Act

1958, where producers were paid fixed prices based on their region. The
milk producers requested the Minister to appoint a committee of
investigation under the Act.
 There was a Milk Marketing Board. The Minister after consultation with
the Board refused to appoint a committee.
 The producers applied to the court for review of this decision.
 Minister claimed a 'power' under the scheme (giving no rights to other
parties), while Padfield claimed it was a duty (enforceable by other
parties)
 The scheme says 'if the Minister directs' the committee is to be set up -
prima facie a power. The discretion must be read in the context of the
purpose of the Act - not unfettered.
 The Court found that if the committee and the Minister agree that a
provision of the scheme is not in the public interest, the Minister has a
duty to act.
Unreasonableness

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Associated Provincial Picturehouse Ltd. v Wednesbury Corporation (1947)

 Wednesbury Corporation prohibited the entry of children below 18

years of age to Saturday night shows in the Picture house.
 The petitioner challenged the decision saying that if the children are
banned then parents will also not come. Baby-sitting is too expensive.
The decision was said to be unreasonable.
 The decision of Wednesbury was not held unreasonable.
 Lord Green MR – What is Unreasonableness? – The word
‘Unreasonableness’ is frequently used as a general description of the
things that must not be done. For instance, a person entrusted with a
discretion must direct himself properly in law. He must call his own
attention to the matters which he is bound to consider. He must exclude
from his consideration matters which are irrelevant to what he has to
consider. If he does not obey those rules, he may truly be said to be
acting ‘unreasonably.’ Similarly, there may be something so absurd that
no sensible person could ever dream that it lay within the powers of the
authority.

The concept of Wednesbury unreasonableness

Where a decision of an administrative power can only be overturned by a

Court if it is so outrageous in its defiance of logic or accepted moral standards
that no sensible person who had applied his mind to the question to be
decided could have arrived at it.

Warrington L.J. in Short v. Poole Corporation [1926] gave the example of the
red-haired teacher who was dismissed because she had red hair. That is
unreasonable in one sense. In another sense it is taking into consideration
extraneous matters. It is so unreasonable that it might almost be described as
being done in bad faith; and, in fact, all these things run into one another.

She was given order by the government to retire before her retirement age (8
years before the Rules). She challenged the order on the ground of bias,

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personal grudges and non-application of relevant matter. The Court quashed
the order of compulsory retirement because of non-application of mind.

5.2 The ultra vires principle – Reasonableness

An administrative authority is required to exercise discretion within the limits

of the statute. An action or decision going beyond what is authorized by law is
ultra-vires. For example, if the administrative authority is empowered to
control the price of bread it will be in excess of its jurisdiction to control the
price of butter or if an officer is empowered to grant loan of Rs. 10,000 in his
discretion for a particular purpose and if he grants a loan of Rs. 20,000 he
exceeds the power (jurisdiction) and the entire order is ultra-vires and void on
that ground.

In case of J.K. Chaudhary v. R.K. Datta, the governing body of a college

dismissed the principal, but the university concerned directed to reinstate him.
Under the relevant statute the university could interfere with the decision of
the governing body in the case of a “teacher” which term as interpreted by the
Supreme Court did not include the Principal. The university, therefore, acted
without jurisdiction.

The basic tool at the disposal of the courts to control exercise of discretion is
the Doctrine of Ultra vires. The courts invoke this doctrine to check excess of
bureaucratic power. Ultra vires, literally means “beyond the power”. The basic
principle is that a body has no power except what the statute has conferred on
it. Discretionary power flow from the statute, and thus they are finite, and
hence the doctrine of ultra vires. Primarily, the function of the court is to
ensure that discretion is exercised by the authority concerned according to
law. It is regarded as the first principle of jurisprudence based on Rule of Law
that the Administration should not exceed its powers. It is therefore the duty
of the court to see that an authority does an act in accordance with law, and
does not go beyond what the law prescribes. If any provision of the relevant
law is contravened, then the exercise of power by the administration is invalid.
Thus, ultra vires constitutes the most fundamental concept of administrative
law.

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The Ultra vires doctrine has two aspects:

 Substantive Ultra vires; and

 Procedural Ultra vires
Substantive Ultra vires: In this type of ultra vires, the authority lacks
substantive power under the concerned statute to make the decision to take
the action in question. An exercise of administrative power to be valid only
when it is exercised within the terms of the law conferring power. The doctrine
also comes into play when discretion conferred is subjected to some
substantive standards, or restrictions, or when it can be exercised only on the
fulfillment of some condition precedent. Non-conformity with these
restrictions may result in the decision being declared ultra vires. In these cases
the judiciary has to make interpretation in such a manner to see that the
statutory provisions contain certain restrictions on the exercise of
discretionary power, and seeing to it that these are observed scrupulously by
the administration.

Procedural Ultra vires: It is the basic principle of law that, if in any statute a
particular manner of doing an act is prescribed, the concerned authority must
do the act in such manner or not to do at all. Where a power is given to do a
certain thing in a certain way, the thing must be done in that way or not at all.

If the procedural requirements mentioned in the statutory provision are not

followed by the authority, the administrative action taken accordingly can be
said as ultra vires.

The procedural requirements are categorized as mandatory and Directory.

Non-compliance with a mandatory requirement makes the discretionary
decision ultra vires. But non-observance of directory procedural requirement
doesn’t vitiate decision. There is no rigid or invariable formula to identify
whether a procedural requirement is directory or mandatory. It depends and
varies upon cases to cases

5.3 Taking into account irrelevant considerations – Omission of relevant

considerations

Non-application of mind

Centre for PIL and others v. Union of India and another (2011) 4 SCC 1
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In this case, the Centre for PIL challenged the legality of appointment of P. J.
Thomas, an IAS officer, as Central Vigilance Commissioner (CVC) on the basis of
recommendation of the High-powered committee headed by the Prime
Minister. It was contended that there was no application of mind and the
usage of discretion was improper. PJ Thomas was an accused in a scam and a
criminal proceeding was pending against him. It was alleged that the High-
powered committee for selection of CVC ignored the relevant factors. The
Supreme Court upheld the contention of the Centre for PIL and held that
integrity of CVC must be maintained and that there was no proper application
of mind. The Supreme Court held that recommendation of the High Powered
Committee recommending the name of Shri P.J.Thomas as Central Vigilance
Commissioner is non-est in law and, consequently, the appointment of P.J.
Thomas as Central Vigilance Commissioner was quashed.

Malafide Exercise of Power

G. Sadanandan v State of Kerala

In G. Sadananda v. State of Kerala, the petitioner, a kerosene dealer was

detained under the Defense of India Rules, to prevent him from acting in a
manner prejudicial to the maintenance of supplies and services essential to the
life of community. The facts were brought before the court to show that the
D.S.P. made a false report against the petitioner in order to benefit his relative
in the same trade by eliminating the petitioner from the trade, by obtaining
the distributorship for kerosene. The D.S.P. filed no affidavit to controvert
allegations, and the affidavit filed on behalf of govt. by the Home Secretary
was very defective.

The Supreme Court declared the order of detention to be clearly and plainly
mala fide. The burden of providing mala fide is on individual making the
allegation as the order is regular on its face and there is a presumption in
favour of the administration that it exercises its power in good faith and for
public benefit.

5.4 Acting under dictation– Imposing fetters on discretion– Delegation and

sub delegation

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Under this categorization, courts exercise judicial control over administrative
discretion if the authority entrusted with a power does not exercise that
power, but acts under the dictation of a superior authority. This, in law, would
amount to non-exercise of power by the authority and will be bad.

Acting under Dictation

Commissioner of Police v Godhandas Bhanji AIR 1952 SC 16

In this case, the Bombay Police Act, 1902 granted authority to the
Commissioner of Police to grant licenses for the construction of cinema-
theatres. The commissioner granted the license to the respondent on the
recommendation of an advisory committee, but later cancelled it at the
direction of the State government.

The Supreme Court held the cancellation order bad in law as it had come from
the government and the commissioner merely acted as a transmitting agent.

Imposing fetters on the exercise of discretion

Gell v. Teja Noora (1903) LR Bom

In this case, the Commissioner of police had discretion to refuse to grant a

license for any land conveyance which he might consider to be insufficiently
sound or otherwise not fit for conveyance of the public. Instead of applying his
discretion to grant license or not, he issued a general order setting details of
construction which are required to be adopted for license. The court held the
order illegal.

The position is well established that the exercise of statutory discretion cannot
be followed by adopting rigid policy or a mechanical rule.

Delegation and Sub Delegation

A discretionary power must in general be exercised by the body on which it has

been conferred. There is no unanimity as to the basis of this view. One view is
that the it is simply a rule of statutory interpretation. Another approach is that
the applicability of the rule depends on the characterization of the functions of
a body as judicial as opposed to being administrative. Quasi-judicial functions
cannot be delegated, while administrative functions can be delegated. The

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latter approach seems to have been adopted by the Indian Courts. However,
the Indian Courts have not rejected the other approach, namely that the
matter is one of statutory interpretation.

Allingham v Minister of Agriculture and fisheries (1948) 1 All ER 780

The minister had statutory power to give instruction and direction regarding
agricultural land. He was allowed to pass some of that power to a committee
to make decisions; the committee then gave power to an executive officer who
gave instructions to a farmer as to what he could grow on his land (only sugar).
Allingham, the farmer, failed to comply with this instruction.

The court held that only the minister or committee had the power under the
statute to issue such a directive.

5.5 Legitimate expectations – Proportionality

Doctrine of Legitimate Expectations

The doctrine of ‘Legitimate Expectations’ is one of the tools incorporated by

the Court to review administrative action. This doctrine is related to the
relationship between an individual and a public authority.

According to this doctrine, the public authority can be made accountable in

lieu of a ‘legitimate expectation’. A person may have a reasonable or legitimate
expectation of being treated in a certain way by the administrative authorities
owing to some consistent practice in the past or an express promise made by
the concerned authority. The doctrine is not a specific legal right engraved in a
particular statute or rule book.

Council of Civil Service Unions (CCSU) v. Minister for the Civil Service ([1985] AC
374)

The first time, an attempt was made to establish the principles of the doctrine
were in this case. The facts of the case are that in the 1980’s, with the United
Kingdom under the Conservative government led by Margaret Thatcher, it was
ruled that any and all employees of the Government Communications
Headquarters (GCHQ) were prohibited from joining any trade union. This
decision was justified on the basis of potential threat to national security, and

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was enforced using an Order of Council which is an exercise of the Royal
Prerogative Power.

 The issue to be decided was that by limiting access, or completely

refusing access to trade unions to employees, certain individuals
affected were not able to rely on certain employment legislative
provisions or be represented by a Union.
 The court case was raised by the Council of Civil Service Unions (CCSU),
for judicial review.
 At first instance the case was heard at the High Court of Justice, where it
was ruled that the Order was invalid, however this was overturned on
Appeal at the Court of Appeal. There it was held that the consideration
of national security was of paramount importance, and as such
considerations and decisions made on this basis were not to be
considered.

The case was then heard on appeal at the House of Lords: The ruling of the
house was that exercising of the Royal Prerogative was capable of being
subject to judicial review. This ruling marked a massive departure from the law
previous, however the Lords did hold that on issues of national security, this
right was exempt.

Union of India v. Hindustan Development Corporation [(1993) 3 SCC 499]

In this case, the Supreme Court has pointed out that “the concept of legitimate
expectation which is latest recruit to a long list of concepts fashioned by the
courts for the review of administrative action, must be restricted to the
general legal limitations applicable and binding the manner of the future
exercise of administrative power in a particular case”. According to the
Supreme Court an element of ‘speculation’ and ‘uncertainty’ is inherent in that
very concept.

 In this case, tenders were called for supply of cast-steel bogies to the
Railways.
 The three big manufacturers quoted less than the smaller
manufacturers.

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  The Railway then adopted a dual-pricing policy giving counter-offers at a
lower rate to the big manufacturers who allegedly formed a cartel and a
higher offer to others so as to enable a healthy competition.
 The big manufacturers challenged this policy on various grounds
including unreasonableness and that they had a legitimate expectation
of being treated in a certain way by the Railways as established by a
longstanding conduct of the Indian Railways.

The Supreme Court held that the change into a dual-pricing policy was not
vitiated and was based on “rational and reasonable” grounds. The court noted
that legitimate expectation was not the same thing as an anticipation. It was
also different from a mere wish to desire or hope; nor was it a claim or
demand based on a right. A mere disappointment would not give rise to legal
consequences. The legitimacy of an expectation can be inferred only if it is
founded on the sanction of law or custom or an established procedure
followed in regular and natural sequence.... Such expectation should be
justifiably legitimate and protectable.

The Supreme Court observed, “it is generally agreed that legitimate

expectation gives the applicant sufficient locus standi for judicial review and
that the doctrine of legitimate expectation is to be confined mostly to right of a
fair hearing before a decision which results in negativing a promise or
withdrawing an undertaking is taken.”

Doctrine of Proportionality

With the growth of administrative law, there was a need to control the
possible abuse of discretionary powers by the administration. For this purpose,
the courts have evolved various principles like legality, irrationality, procedural
impropriety and proportionality. The last is the latest entrant in the
administrative law.

The ordinary meaning of proportionality is that the administrative action

should not be more drastic than it ought to be for obtaining desired result. It
implies that canon should not be used to shoot a sparrow. In other words, this
doctrine tries to balance means with ends.

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Proportionality shares platform with 'reasonableness' and courts while
exercising power of review take into consideration the course of action that
could have been reasonably followed.

The doctrine of proportionality is being applied in the situations where

administrative action invades fundamental rights. In such a case, courts make
strict scrutiny of administrative action and go into the

Coimbatore District Central Coop Bank v. Employees Association (2007) 4 SCC

669

the Supreme Court held that through the use of the doctrine of proportionality
court would not allow administration to use a sledgehammer to crack a nut
where a paring knife would suffice. Thus, it is a principle where courts would
examine priorities and processes of the administration for reaching a decision
or recalling a decision. However, courts have always tried to tamper this
doctrine with the doctrine of 'flexibility'.

The Supreme Court held that proportionality is a principle where the court is
concerned with the process, method or manner in which the decision maker
has ordered his priorities, reached a conclusion or arrived at a decision. The
very essence of decision making consists in the attribution of relative
importance to the factors and considerations in the case. The doctrine of
proportionality thus steps in focus to nature of exercise as the elaboration of a
rule of permissible priorities.

MODULE VI: GOVERNMENTAL LIABILITY

Introduction

The personnel in the administration, both make and implement the laws, and if
they commit any negligence because of which harm is caused to any individual,
then can he make a claim against the administration, under the law of the
land. Now the ‘king too can commit wrong’ and he cannot evade the chains of
laws, if he neglects law and tries to overpower it.

How is the liability of the administration placed then? The 2 major areas where
the liability can be entrapped is ‘tort’ and ‘contract’.

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  ‘The king can do no wrong’ is an ancient and fundamental principle of
the English law which means that if a tort was committed by the king or
the king’s servant in the course of employment, the injured had no right
to sue the king under the vicarious liability.

 The courts in various decisions criticized the exemption given to the

king. They considered it against the principles of equity, good conscience
and justice. Hence, the British parliament passed, The Crown Proceeding
Act, 1947 by abolishing the maxim, ‘King can do no wrong’. Now the king
can also be sued for his servants’ tortuous acts committed in their
course of employment under the principle of Respondent Superior.

 In India, the crown assumed sovereignty of India in 1858 and took over
the administration of India from the hands of the company. The act
declared that the secretary of India in council to be a body corporate for
the purpose of suing and being sued. This corporate was mentioned in
Government of India Act, 1915 which declared in its section 32 stating
that- “The secretary of state in council may sue and be sued by the name
of Secretary of State in council as a body corporate”.

 In America too, Federal Tort Claims Act was introduced. The concept of
sovereign immunity and ‘the King can do no wrong’ was abolished by
this Act.

 The whole idea of vicarious liability of the state for the torts committed
by its servants is based on 3 principles.

- Respondeat Superior (Let the principal be liable).

- Qui-Facit per Alium Facit per se (He who acts through another
does it himself).
- Socialization of Compensation.

 Some judgments during British Rule India, do tell us, how the law of
administrative tortious liability evolved in Indian conditions.

Case Laws

P & O Steam Navigation Co. v Secretary of State (1861) 5 BOM HCR APP 1

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The Supreme Court of Calcutta allowed an action against the secretary of state
for the negligent act of the government workers.

 In this case, a servant of the plaintiff-company was proceeding on a

highway in Calcutta, driving a carriage which was drawn by a pair of
horses belonging to the plaintiff.
 In this case, the workers employed by the Kidderpore Dockyard, which
was a government dockyard, were carrying iron bars across a public way
passing through the port, which bars they dropped on the road. The
noise so created scared the horses of the carriage in which the plaintiff
was sitting and he sustained injuries.
 For the loss caused by the accident, the plaintiff claimed damages
against the Secretary of State for India, as employer of the workmen.
 It was held that the maintenance of the dockyard was considered to be
non- sovereign function and as such the government was held liable. As
the impugned act fell within the non-sovereign functions, the action was
maintainable.
 The principle of this case holds that if any act was done in the exercise of
sovereign functions, the East India Company or the State would not be
liable. It drew quite a clear distinction between the sovereign and non-
sovereign functions of the state.

The East lndia Company had a two-fold character –

(a) as a sovereign power and

(b) as a trading company.

The liability of the East India Company could only extend to in respect of its
commercial dealings and not to the acts done by it in exercise of delegated
sovereign power. In the present case, the damage was done to the plaintiff in
the exercise of non-sovereign function, i.e. the maintenance of Dockyard which
could be done by any private individual without any delegation of sovereign
power and hence the East India Company was liable for the torts of the
employees.

Vidyavati v State of Rajasthan AIR 1962 SC 933

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  In this case, a temporary employee of Rajasthan government while
driving a government jeep from workshop after repairs knocked down a
pedestrian, by rash and negligent driving. The pedestrian sustained
multiple injuries as a result of which he died.
 Trial judge did not decide against the State. On appeal, the High Court
decreed the suit against the State also.
 The main argument on behalf of the State was that it was not liable for
tortious acts of its employees for in similar circumstances the East India
Company would not have been liable, as the jeep was maintained in the
exercise of sovereign powers and not as a part of the commercial activity
of the state.
 In the suit by his widow against the State of Rajasthan for damages, the
Supreme Court held that the state was liable because the accident took
place while the car was returning from workshop which was not an act
in the exercise of sovereign function.
 Held: The immunity rule of the Crown in England cannot be applied in
India. Holding, the state vicariously liable for the tortious acts of its
servants.

Kasturilal v State of U.P. AIR 1965 SC 1039

 In Kasturi Lal v. State of U.P., the Apex Court took a different view and
the entire situation was embroiled in a confusion. In this case, the
Supreme Court followed the rule laid down in P. & O. Steam Navigation
case by distinguishing Sovereign and non-Sovereign functions of the
state and held that abuse of police power is a Sovereign act, therefore
State is not liable.
 In this case partner of Kasturilal Ralia Ram Jain, a firm of jewellers of
Amritsar, had gone to Meerut for selling gold and silver, but was taken
into custody by the police on the suspicion of possessing stolen
property. He was released the next day, but the property which was
recovered from his possession could not be returned to him in its
entirety inasmuch as the silver was returned but the gold could not be
returned as the Head Constable in charge of the Malkhana
misappropriated it and fled to Pakistan.

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  The firm filed a suit against the State of U.P. for the return of the
ornaments and in the alternative for compensation.
 It was held by the Apex Court that the claim against the state could not
be sustained despite the fact that the negligent act was committed by
the employees during the course of their employment because the
employment was of a category which could claim the special
characteristic of a sovereign power.
 The court held that the tortious act of the police officers was committed
by them in discharge of sovereign powers and the state was therefore
not liable for the damages caused to the appellant.

Discussion: There is no uniformity in decisions, and it becomes very complex to

determine which function is sovereign. Difference of Opinion is clear in
different judgments rendered by High Courts and Supreme Court.

N. Nagendra Rao & Co. v State of A.P. (1994) 6 SCC 205

In this case, the appellants were carrying out a business in fertilizers and food
grains. The State vigilance raided their premises and seized huge stocks. Later
on, it was found that there were only problems on accounts and the seized
materials were returned to the appellants.

A suit for damage was brought by the company on the state. The trial court
ruled in favour of the company. The Supreme Court upheld the decision of the
trial court and said that the state in this case is not entitled to sovereign
immunity and hence is liable.

The Supreme Court held that the State was vicariously liable for the negligence
of its officers in complying with the provisions of the statute. However, in
addition to this specific finding, the Supreme Court expressed a decidedly
unfavourable view of the doctrine of sovereign immunity and remarked that
"the doctrine of sovereign immunity has no relevance in the present-day
context when the concept of sovereignty itself has undergone drastic change."
The Supreme Court also noted that the distinction between sovereign and non-
sovereign functions was not a meaningful distinction.

Liability in Contract – Article299 – Authority to contract – Formalities –

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Article 298 and 299: Contracts

Article 298 of the Constitution expressly lays down that the executive power of
the Union and each State shall extend to carrying out of any trade or business
and the acquisition, holding and disposal of property and the making of
contracts for any purpose.

Article 299 (1) prescribes certain formalities for contracts in order to be

binding upon the Government. The requirements which must be fulfilled by
the Union or the State are as follows:

(i) Every contract must be expressed to be made by the President or the

Governor (as the case may be);

(ii) Every contract must be executed on behalf of the President or the

Governor (as the case may be);

(iii) Every contract must be executed by a person authorized by the

President or Governor (as the case may be).

Article 299 (2) provides that neither the President nor the Governor shall be
personally liable in respect of any contract nor shall any person making or
executing any such contract on behalf of the President or Governor shall be
personally liable in respect thereof.

Case Laws related to Article 299 (1):

1. Written Contract is necessary

Chatturbhuj Vitaldas v Moreshwar Parashram AIR 1954 SC 236

In this case, the Supreme Court has held that the contract as stated in Art. 299
has to be in writing in order to be valid and if there is an oral contract the same
cannot be binding on the Government.

It was also held that the Government officers cannot enter into contracts orally
or through correspondence. This does not mean that there must be a formal
agreement properly signed by a duly authorized officer of the Government.
The words expressed and executed must be literally and technically construed.

2. Execution by authorized Person

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Union of India v N.K. Pvt. Ltd. AIR 1972 SC 915

In this case, the Director was authorized to enter into a contract on behalf of
the President. The contract was entered into by the Secretary, Railway Board.
The Supreme Court held that the contract was entered into by an officer not
authorized for the said purpose and it was not a valid and binding contract.

3. Expressed in the name of President/ Governor

Karamshi Jethabhai v State of Bombay AIR 1964 SC 1714

The plaintiff was in possession of a cane farm. An agreement was entered into
between the plaintiff and the Government for supply of canal water to the land
of the former. No formal contract was entered into in the name of the
Governor but two letters were written by the Superintending Engineer. The
Supreme Court held that the agreement was not in accordance with the
provisions of Section 175(3) of the Government of India Act, 1935 and,
consequently, it was void.

4. Effect of non-compliance

The provisions of Article 299 are mandatory and not directory and they must
be complied with. They are not inserted merely for the sake of form, but to
protect the Government against unauthorized contracts. If, a contract is
unauthorized or in excess of authority, the Government must be protected
from being saddled with liability to avoid public funds being wasted. Therefore,
if any of the aforesaid conditions is not complied with, the contract is not in
accordance with law and the same is not enforceable by or against the
Government.

Doctrine of Estoppel

(estoppel prevents someone from arguing something contrary to a claim made

or act performed by that person previously.)

Section 115 of Indian Evidence Act, 1872 – Estoppel – When one person has, by
his declaration, act or omission, intentionally caused or permitted another
person to believe a thing to be true and to act upon such belief, neither he nor
his representative shall be allowed, in any suit or proceeding between himself
and such person or his representative, to deny the truth of that thing.
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Illustration: A intentionally and falsely leads B to believe that certain land
belongs to A, and thereby induces B to buy and pay for it. The land afterwards
becomes the property of A, and A seeks to set aside the sale on the ground
that, at the time of the sale, he had no title. He must not be allowed to prove
his want of title.

Promissory Estoppel

The doctrine of promissory estoppel is based on the principles of justice, fair

play and good conscience. It was evolved by equity to prevent injustice. It
neither comes under contract nor under estoppels proper.

The principle is that when one party with the intention of creating or affecting
legal relationship makes a promise with another party and that party acts on it,
that promise should be binding for the party who is making it. It will not be
allowed to go back from its words. Because reverting from the words will be
against equity.

As a general rule, when a contract between the government and a private

person does not fulfill the requirements of Article 299 (1) of the Constitution, it
cannot be enforced against the government even by invoking the doctrine of
estoppel.

However, the courts have realized that the insistence of rigid observance of all
the conditions stipulated in Article 299 (1) may not work in practice. Daily
hundreds of officers enter into varieties of contracts often of petty nature and
it is almost impossible for administration to follow these conditions. The courts
have sought to balance two motivations:

(i) It is necessary to protect the government from unauthorized contracts,

and

(ii) It is also necessary to safeguard the interest of unsuspecting and unwary

parties entering into contracts with government officials without
fulfilling all the formalities laid under Art. 299 (1).

Nathulal v State of Rajasthan AIR 1976 Raj 12

In Nathulal v State of Rajasthan, the State granted a right for collecting some
forest produce for 10 years to the petitioner.
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  He made the necessary deposit and executed a contract on the
prescribed form, though not fulfilling the requirements of Article 299 (1).
 After some time, the state sought to cancel the contract.
 The petitioner filed a writ petition challenging the government’s order
on the ground that he was not given a reasonable opportunity, of having
his say in the matter, before cancellation of the contract.
 The court accepted his plea and issued the writ.
 There was no written contract as laid down in Article 299 (1).

But, nevertheless, the court held that equities had arisen in favour of the
petitioner who had acted on the government’s promise to grant him a
contract. He had done all that he was required to do for completing the
contract on his part and the state acted to his prejudice and detriment.

-----------------------

MODULE VII: REMEDIES IN ADMINISTRATIVE LAW

The remedies in administrative law can be categorized into the following:

(1) Public Law Remedies;

(2) Private Law Remedies;
(3) Statutory Remedies; and
(4) Other Remedies
Public Law Remedies

Writs

 The law of writs has its origin from the orders passed by the King’s Bench
in England.
 Writs were issued on a petition presented to the king in council and
were considered as a royal order. Writs were a written order issued in
the name of the king.
 However, with different segments writs took various forms and names.
The writs were issued by the crown and initially only for the interest of
the crown. Later on, it became available for ordinary citizens also.
 Writ jurisdiction does not appreciate determination of facts.

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Constitutional Provisions regarding writs
 The writ jurisdictions exercised by the Supreme Court under article 32
and by the high courts under article 226, for the enforcement of
fundamental rights are mandatory and not discretionary.
 But under Article 226, the High Courts have power to issue to any person
or authority or Government, directions, orders or writs.
 Article 32 – Supreme Court – Limited to issuance of writs – related to
fundamental rights only.
 Article 226 – High Courts – Order of any kind including writs – related to
legal rights (broader) including fundamental rights.
Common characteristics of Writs

(1) Writ is not an appeal. It has a supervisory jurisdiction which is quite

broad. It enables court to take up a case suo motto whereas it is not so
in appeals. Appeal requires a proper procedure. Supervisory jurisdiction
can skip such procedure.
(2) Writs are discretionary in nature (Exception – Habeas corpus)
(3) Writ route is taken when alternative remedies are not available
(4) When ordinary legal remedies seem inadequate, in exceptional cases,
writs are applied.
(5) Delay (Laches)
(6) Disputed questions of fact
(7) Res judicata (S. 11 of CPC)
(8) Locus standi
Cases on availability of alternative remedies

State of U.P. Vs. Mohammad Nooh AIR 1958 SC 86

The matter arose before the Hon'ble Supreme Court against the judgement of
the High Court passed in a writ petition quashing the departmental
proceedings against a police constable. The appeal was dismissed by the SC.

A police constable was departmentally proceeded and a dismissal order was

passed. The most important feature of the case was that the Deputy
Superintendent of Police who conducted the enquiry recorded his own
statement in the proceeding.

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The High Court held that there was a violation of principle of natural justice
since the Deputy Superintendent of Police who conducted the proceedings
himself appeared as witness in the inquiry which makes a case of strong bias
resulting in violation of principle of natural justice.

Before the Supreme Court, an argument was raised that there being an
alternate remedy, the High Court ought not to have entertained the writ
petition.

In this context, the Apex Court laid down the principle which provides for
exception to the rule of non-entertainability of writ petition when there is an
alternate remedy.

Himmatlal Harilal Mehta v State of M.P. A.I.R. 1954 S.C. 443

In this case, the court was considering the vires of Explanation II to section 2(g)
of C.P. and Berar Sales Tax Act, 1947. One of the contentions raised was that
writ was not maintainable in view of availability of alternative remedy. The
court held that the remedy provided by the Act was of an onerous and
burdensome character as before the appellant can avail of it, he is required to
deposit the whole amount of tax. Hence, the writ was held maintainable.

Cases on Laches (delay)

Article 32 empowers the Supreme Court to issue directions or orders or writs

in the nature of habeas corpus, mandamus, prohibition, quo warranto and
certiorari for the enforcement of fundamental rights. Further, the right to
move the Supreme Court for enforcement of fundamental rights has been a
guaranteed right. In the context of laches vis-à-vis writ petitions under Article
32 are:

(i) Whether any time limit at all can be imposed on Article 32 petitions, and
(ii) Whether the Supreme Court would apply by analogy the provisions of
the Indian Limitation Act appropriate to the facts of the case or any
other limit.
These issues came up for judicial scrutiny for the first time in Trilokchand
Motichand v H.B. Munshi.

Trilokchand Motichand v H .B. Munshi AIR 1970 SC 898

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The facts of the case were that the Assistant Collector of Sales Tax gave a
refund of a certain amount of sales tax paid by the petitioners with the
direction that the refund should be passed on to the customers and receipts be
produced before the officer.

 The petitioner, however, did not fulfil the conditions and consequently
the amount was forfeited to the state under the provisions of Bombay
Sales Tax Act.
 The petitioner challenged the order of forfeiture under Article 226 of the
Constitution on the basis that the order of forfeiture was without
authority in law in that it violated Article 19 (g) of the Constitution.
 The Single judge dismissed the writ petition.
 On appeal the Division Bench dismissed it without examining the merits
of the contention that the order was without authority of law.
 The petitioner did not thereafter take the matter in appeal to the
Supreme Court. When the collector attached the petitioner’s properties,
the petitioner paid the amount in 1959 and 1960.
 In 1968, the petitioners filed a writ petition under Article 32 for quashing
the order of forfeiture passed in 1958. What prompted the petitioners to
come to the Supreme Court directly under Art. 32 nearly 10 years after
their futile attempts in the High Court, was the fact that the law was
declared unconstitutional in a subsequent decision in another case in
1967 by the Supreme Court.

HELD: A petition under Art. 32 is neither a suit nor an application to which the
Limitation Act applies.

 The main issue before the Supreme Court in the case was whether any
period of limitation could be specified for writ petitions under Art. 32.
 The majority in this case rejected the petition on the ground of delay.
 However, it was observed that petitions under Art. 32 would not be
bound by the analogy of the statute of limitations. No upper or lower
limit can be prescribed for Art. 32 petitions.
 It is a matter of discretion. The overriding principle should be that stale
claims should not be allowed to be agitated to the detriment of rights

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 which have come into existence in the period of interregnum when the
aggrieved party slept over his rights.
 Though Article 32 is itself a guaranteed right, it could not be contended
that the Supreme Court does not have discretion to deny relief.
 Undoubtedly Art. 32 guarantees the right to approach the Supreme
Court but that does not restrict the court’s discretion to grant relief. One
of the considerations relevant for the exercise of such discretion is
laches.

Cases on Disputed question of facts

Chairman Grid Corporation of Odisha Ltd. v Sukamani Das

The question raised in the case was: Can the High Court under Article 226 of
the Constitution award compensation for the death caused due to
electrocution on account of improper maintenance of electric wires? In this
case, the deceased met his death due to electrocution.

It was alleged that while the deceased was proceeding from his village to
another place he decided to return back as dark clouds gathered in the sky and
there were thunderbolts also. While he was returning, it started raining and
while walking on the road he came in contact with an electric wire which was
lying across the road after getting snapped from the overhead electric line. It
was thus alleged that the electric wire had snapped because of the negligence
of the appellant and its officers in not properly maintaining the electricity
transmission line. Thus, claim for damages was laid.

Appellant Grid Corporation of Orissa submitted that there was no negligence

and it was because of the thunderbolt and the lightening that one of the
conductors of the 12 W LT line had snapped even though proper guarding was
provided and further that as soon as information regarding the snapping of line
was received from the line helper of the village concerned, the power was
disconnected. It was also contended that the deceased did not die as a result
of coming into contact with the live electric wire but he met his death due to
lightening.

The appellant Grid Corporation objected to the jurisdiction of the High Court
under Article 226 of the Constitution and said that proper remedy was a civil

94
suit as disputed question of fact arose and evidence had to be laid by both the
parties.

High Court, however, decided the matter on merit and awarded compensation
of rupees one lakh.

On appeal the Supreme Court said that High Court committed an error in
entertaining the writ petition as it was not a fit case for exercising power under
Article 226 of the Constitution.

It was observed that High Court went wrong in proceeding on the basis that as
the death had taken place because of electrocution as a result of the deceased
coming into contact with snapped live wire of the electric transmission line of
the appellants which “admittedly/prima facie amounted to negligence on the
part of the appellants”.

The Supreme Court said that High Court failed to appreciate that all these
cases were actions in tort and negligence was required to be established firstly
by the claimant. This Court further said that it was a settled legal position that
where disputed questions of facts were involved a petition under Article 226 of
the Constitution was not a proper remedy.

Res judicata (S. 11 of CPC)

Res judicata is a latin term meaning “a thing decided” or “a matter already

judged”, and refers to the legal doctrine meant to bar continued litigation of
cases that have already been decided between the same parties.

Res Judicata is a rule of universal law pervading every well-regulated system of

jurisprudence and is based upon a practical necessity that there should be an
end to litigation and the hardship to the individual if he is vexed twice for the
same cause. Thus, this doctrine is a fundamental concept based on public
policy and private interest. It is conceived in the larger public interest, which
requires that every litigation must come to an end. It therefore, applies to all
kinds of suits such as civil suits, execution proceedings, arbitration
proceedings, taxation matters, writ petitions, administrative orders, interim
orders, and criminal proceedings.

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Section 11 of CPC provides that no Court shall try any suit or issue, in which the
matter directly and substantially in issue, has been directly and substantially in
issue in a former suit between the same parties, or between the parties under
whom they or any of them claim litigating, under the same title, in a Court
competent to try such subsequent suit, or the suit in which the issue has been
subsequently raised, and has been heard and finally decided by such Court.

The doctrine of res judicata is based on three principles:

1. no man should be vexed twice for the same cause;

2. it is in the interest of the state that there should be an end to a
litigation; and
3. a judicial decision must be accepted as correct.

Direct res judicata

The rule of direct res Judicata is limited to a matter actually in issue alleged by
one party and either denied or admitted by the other party expressly or
impliedly.

Constructive Res judicata

The rule of constructive res judicata engrafted in Explanation IV to Section 11

of the Code. Constructive res judicata is a subset of the doctrine of res judicata
and provides that Constructive res judicata sets to bar any claims being raised
in a later proceeding if the claim should / ought to have been raised and
decided in an earlier proceeding.

Cases on Res judicata

Daryao Singh v State of UP AIR 1961 SC 1457

Facts: The petitioners and their ancestors had been the tenants of the land for
last fifty years of the respondents, the proprietors of the land. Owing to
communal disturbances in the Western District of Uttar Pradesh in 1947, the
petitioners had to leave their village in July, 1947; later in November, 1947,
they returned but they found that during their temporary absence the
respondents had entered in unlawful possession of the said land.

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Consequently, petitioners filed suits for ejectment under s. 180 of the U. P.
Tenancy Act, 1939.

In 1948, in the trial court the petitioners succeeded and a decree was passed in
their favour. The said decree was confirmed in appeal and in pursuance of the
appellate decree the petitioners obtained possession of the land through
Court.

The respondents consequently preferred a second appeal before the Board of

Revenue under s. 267 of the U. P. Tenancy Act, 1939. On March 29, 1954, the
Board allowed the appeal preferred by respondents and dismissed the
petitioner's suit with respect to the land described. The decision of the Board
was based on the ground that by virtue of the U. P. Zamindary Abolition and
Land Reforms (Amendment) Act of 1953, respondents had become entitled to
the possession of the land.

Aggrieved by this decision, the petitioners moved the High Court at Allahabad
under Art. 226 of the Constitution for the issue of a writ of certiorari to quash
the said judgment. Before the said petition was filed a Full Bench of the
Allahabad High Court had already interpreted s. 20 of the U. P. Land Reforms
Act as amended in 1953. The effect of the said decision was plainly against the
petitioners' contentions, and so the said petition was dismissed on March 29,
1955.

State of UP v Nawab Hussain AIR 1977 SC 1680

In this case, Nawab Hussain, a sub-inspector of police was dismissed from

service by D.I.G. He challenged the order of dismissal by filing a writ petition in
the high court on the ground that he was not afforded a reasonable
opportunity of being heard before the passing of the order. The contention
was, however, negated and the petition was dismissed.

He then filed a suit and raised an additional ground that since he was
appointed by the I.G.P., the D.I.G. had no power to dismiss him. The state
contended that the suit was barred by constructive res judicata.

The trial court, appellate court and the high court held that suit was not
barred, but the Supreme Court held that the suit was barred by constructive

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res judicata as the plea was within the knowledge of the plaintiff and could
well have been taken in the earlier writ petition.

Locus standi

The word ‘locus’ (plural loci) is Latin for "place". “Locus standi” is Latin for
‘place to stand’. In law, Locus standi means the right to bring an action.

The traditional view of ‘locus standi’ has been that the person who is aggrieved
or affected has the standing before the court, i.e., to say he only has a right to
move the court for seeking justice. In other words, a relationship between the
individual and cause of action exists.

Locus standi & PIL

During recent years the Supreme Court, with justice-oriented approach,

relaxed the rule in relation to locus standi and opined that even those who
have no relation with the case, can file a petition before a competent court in
the larger interest of the society. Everyday PILs are being allowed. Different
units are being recognized with different statuses of locus standi. The Supreme
Court has recognized that a third party could directly petition, whether
through a letter or other means, the Court and seek its intervention in a matter
where another party's fundamental rights were being violated.

Since, Habeas corpus is a recourse in law through which a person can report an
unlawful detention or imprisonment to a court and request that the court
order the custodian of the person, usually a prison official, to bring the
prisoner to court, to determine whether the detention is lawful.

Unlawful detention or False Imprisonment is illegal and violative of Articles 14

and 21 of the Constitution, therefore in the larger interest of the society locus
is not needed to file a writ of Habeas Corpus. Thus, in habeas corpus, no locus
standi is needed.

However, this power of allowing a third party to maintain an appeal should be

exercised with due care and caution. Persons, unconnected with the matter
under consideration or having personal grievance against the accused should
be checked.

Development of PIL
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Hussainara Khatoon v Home Secretary, State of Bihar (1980) 1 SCC 98

Facts: The case dealt, inter alia, with the rights of the under-trial prisoners on
habeas corpus petitions which disclosed a shocking state of affairs in regard to
administration of justice in the State of Bihar. An alarmingly large number of
men and women, children including, were behind prison bars for years
awaiting trial in courts of law. The offences with which some of them were
charged were trivial, which even if proved, would not warrant punishment for
more than a few months, perhaps a year or two, and yet they remained in jail,
deprived of their freedom, for periods ranging from three to ten years without
even as much as their trial having commenced. The Court ordered immediate
release of these under-trials many of whom were kept in jail without trial or
even without a charge.

Ruling: Fairness under Article 21 is impaired where procedural law does not
provide speedy trial of accused; does not provide for his pre-trial release on
bail on his personal bond, when he is indigent and there is no substantial risk
of his absconding; if an under-trial prisoner is kept in jail for a period longer
than the maximum term of imprisonment which could have been awarded on
his conviction and if he is not offered free legal aid, where he is too poor to
engage a lawyer, provided the lawyer engaged by the State is not objected to
by the accused.

The Supreme Court held that the state cannot be permitted to deny the
constitutional right of speedy trial to the accused on the ground that the State
has no adequate financial resources to incur the necessary expenditure
needed for improving the administrative and judicial apparatus with a view to
improving speedy trial.

Sunil Batra v Delhi Administration 1980 AIR 1579

Facts: Sunil Batra, a convict under a death sentence, was lodged in Tihar
Central Jail. He came to know of the torture which was inflicted upon another
prisoner to extract money from him and his family. He wrote a letter to the
Supreme Court. The said letter was taken forward in the nature of habeas
corpus and brought within the ambit of Art. 32.

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The main issue in the case was whether a person is deprived of basic civil and
human rights, the rule of law and judicial processes, the moment he is put
behind bars.

The Supreme Court held that there is no total deprivation of a prisoner's rights
of life and liberty. The "safe keeping" in jail custody is the limited jurisdiction of
the jailer.

Compensatory Jurisprudence

Rudul Sah v State of Bihar (1983) 4 SCC 141

Rudul Sah was arrested in 1953 on charges of murdering his wife. He was
acquitted by an Additional Sessions Judge, in 1968, who directed his release
from jail, pending further orders. Rudul Sah languished in jail for 14 years after
his acquittal, until his plight was highlighted in the media in 1982 and led to the
filing of the PIL on his behalf.

 By the time the PIL came up for hearing in Court, Rudul Sah had been
released. However, he sought ancillary relief including payment for his
rehabilitation, future medical expenses incurred, and compensation for
his illegal incarceration from the State.
 The Court directed the State to show cause for the petitioner’s
detention in relation to his ancillary claims, and received a much-delayed
response in defence of the incarceration from a state jailor.
 The Court viewed the State response as a callous afterthought with no
true basis in fact and thus held that the petitioner’s detention was
wholly unjustified.
 Next, the Court examined whether, under its remedial powers it could
adjudicate the petitioner’s claims for ancillary relief.
 The Court reasoned that Article 21’s guarantee of the right to life and
personal liberty would be stripped of its significant content if the Court
was limited to passing orders releasing individuals illegally detained.
 The Court held that the “right to compensation is some palliative for the
unlawful acts of instrumentalities which act in the name of public
interest and which present for their protection the powers of the State
as a shield.”

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  Accordingly, the Court ordered the State to pay 30,000 rupees to the
petitioner as an interim measure, in addition to the 5,000 already paid,
noting that the judgment did not preclude the petitioner from bringing
future lawsuits against the State and its officials for appropriate
damages relating to his unlawful detention.

Rudul Sah’s case is a landmark judgment in the jurisprudence of state liability.

It is considered particularly important as it led to the emergence of
compensatory jurisprudence for the violation of fundamental rights under
the Constitution. It is noteworthy in this context that there is no express
provision for awarding compensation in the text of the Indian Constitution, and
that this judgment was on the basis of the Court’s interpretation of the extent
of its remedial powers. This was the first case since the inception of the
Supreme Court that awarded monetary compensation to a person for the
violation of his fundamental rights guaranteed under the Constitution.

Chairman, Railway Board v Chandrima Das (2000) 2 SCC 465

Facts: One Bangladeshi national came to Howrah station to catch a train for
Ajmer. Being new to the busy railway station, she was misled by some
employees of the railways and was ultimately taken to a room in the Railway
Yatri Niwas which had been booked by some railway employees previously.
She was raped there by the railway employees. Later on, she was taken to a
rented house by another railway employee and was raped again.

 In view of the hue and cry raised by her, she was rescued by the police.
Ms. Chandrima Das, a practicing advocate of Calcutta High Court, filed a
public interest litigation (PIL), asking for compensation for the victim.
 A division bench of Calcutta High Court, after hearing the parties,
granted compensation of 10 lakh to be paid to the victim by the Union of
India, of which the railways is a wing.
 Challenging the said judgment, the chairman of the Railway Board
approached the Supreme Court.
 Upholding the High Court judgment, the Supreme Court laid down that
in view of the expanding horizon of Article 14 read with other articles,
every executive action of the government is now amenable/open to the

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 scrutiny of the writ jurisdiction of the High Courts and the Supreme
Court in appropriate cases.

The Supreme Court held that the writ jurisdiction of the high court is wide
enough to be extended in the realm of tort in the matters of granting
compensation to a victim who had suffered personal injuries at the hands of
the officers of the government.

The court held that where public functionaries are involved in matters of
invasion of fundamental rights or of enforcement of public duties, the remedy
of compensation by writ is available. A case of rape does not merely violate an
ordinary right of a victim but it violates a fundamental right to life of the victim
and such a right is protected under Article 21 of the Constitution.

Writ of Habeas Corpus

 ‘Habeas corpus’ is a Latin term which means “you must have the body”.
 Habeas corpus may be defined as a judicial order issued by the Supreme
Court or a High Court by which a person who is confined by any public or
private agency may secure his release.
 The writ in the form of an order which calls upon the person, in whose
confinement a person is, to let the court know the legal justification for
the detention, and in the absence of such justification to release the
person from his confinement.
 The writ can be issued against a private person even though it is a public
remedy.
 No Locus standi will be followed. The court has suo motto powers.
 A writ of habeas corpus can be filed by any person on behalf of the
person detained or by the detained person himself.
State of Bombay v Atmaram Sridhar Vaidya: Atmaram was detained under
Preventive Detention Act. The details of the grounds for his detention were
provided to him post-detention. He challenged it under Article 21 and 22 (5) of
the Constitution. The high Court allowed the writ. The State appealed before
the SC. The SC struck down the writ of Habeas corpus and held the detention
to be legal.
The question that arose was whether satisfaction of Government under
Article 22 (5) of the Constitution can be challenged.

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 The Court held that the satisfaction of the government alone is
necessary, which must be based on some grounds. If the grounds on
which it is stated that the government is satisfied are such as a rational
human being can consider connected in some manner with the objects
sought to be achieved, the question of satisfaction cannot be challenged
in a court of law except on the ground of mala fides.
The first part of Article 22 (5) postulates two rights. The first right given to the
detained person is to furnish him the grounds on which the order of detention
has been made and that has to be done as soon as possible. The second right
given to such a person is of being afforded “the earliest opportunity of making
a representation against the order”. If these two requirements are complied
with, the detention is valid.
Writ of Certiorari

 ‘Certiorari’ is a Latin word meaning to certify, to apprise, to inform or to

show.
 It was essentially a royal demand for information. The King, wishing to
be certified of some matter, ordered that the necessary information be
provided to him.
 ‘Certiorari’ may be defined as a judicial order operating in personam and
made in the original legal proceedings, directed by the Supreme Court or
a High Court to any constitutional or statutory or non-statutory body or
person, requiring the records of any action to be certified by the court
and dealt with according to law.
 To check/ scrutinize the lower court proceedings.
 The domain of the writ of certiorari has been tremendously enlarged.
The requirement that certiorari can be issued only when the action is
judicial or quasi-judicial is no more valid. Certiorari can be issued to
quash actions which are administrative in nature. In A.K. Kraipak v Union
of India, the writ of certiorari was issued to quash the action of a
selection board.
 Grounds for the issue of a writ of certiorari:
 Lack of jurisdiction;
 Abuse of jurisdiction;
 Error of jurisdiction;

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  Excess of jurisdiction;
 Violation of the principle of natural justice.
 Ibrahim Aboobakar v Custodian General of Evacuee Property (1952) SCR
696, 702: Aboobakar went to Pakistan. His property was unclaimed and
so went to the custody of Custodian General of Evacuee Property. The
property was discharged to someone. Aboobakar came back to India and
claimed the property. He contended that the Custodian General made
an error in determining jurisdiction.
 The Supreme Court looked into the steps taken by the Custodian
General to find the owner. The court found the steps in order. The Court
rejected the issuance of writ of certiorari.
The SC ruled that such a writ cannot be granted to quash the decision of
an inferior court within its jurisdiction on the ground that the decision is
wrong. Indeed, it must be shown before such a writ is issued that the
authority which passed the order acted without jurisdiction or in excess
of it or in violation of the principles of natural justice…. But once it is
held that the court has jurisdiction but while exercising it, it made a
mistake, the wronged party can only take the course prescribed by law
for setting matters right in as much as a court has jurisdiction to decide
rightly as well as wrongly.
Writ of Prohibition

 ‘Prohibition’ is a judicial order issued by the Supreme Court or a High

Court to any constitutional, statutory or non-statutory agency to prevent
these agencies from continuing their proceedings in excess or abuse of
their jurisdiction, or in violation of the principle of natural justice, or in
contravention of the law of the land.
 In other words, when adjudication is going on, prohibition stops the
adjudication and prevents a decision from being made.
 In India, prohibition is issued to protect the individual from arbitrary
administrative actions.
 Grounds for the issue of writ of Prohibition: Prohibition can be issued on
the same grounds on which certiorari can be issued except in case of an
error of law apparent on the face of the record. The grounds for the
issue of prohibition are:

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  Excess of Jurisdiction;
 Violation of the principle of natural justice;
 Infringement of fundamental rights;
 Fraud;
 Contravention of the law of the land.
 T.M. Munnusamappa v Asstt. Custodian of Evacuee Property Madras:
The owner of a property left for Pakistan. The petitioner was a tenant. In
1950, the property was declared as evacuee property. The Tehsildar
took its possession. In 1951, a notice was issued to the petitioner to
evict him from the property. As per Evacuee’s Property Administration
Act, 1950, whenever somebody occupied evacuee’s property, justifiable
grounds were required to evict him after notice. The High Court issued a
writ of Prohibition and stopped the eviction process as justifying
grounds were not provided.
 Even if a person is not directly affected by a proceeding in a court or
tribunal, he may move for a writ of prohibition & certiorari, provided
there is clear error in law.

Writ of mandamus

 ‘Mandamus’ is a Latin word meaning “we command”. It is a judicial writ

issued as a command to an inferior court or ordering a person to
perform a public or statutory duty.
 If a person has decided to do a public duty and he is not allowed to do
 If there is a need that someone must do a public duty, and it is
demanded from him, but he denies. Then we can challenge.
 Mandamus is a judicial remedy issued in the form of order from the SC a
HC to any constitutional, statutory or a non-statutory agency.
Case: CAG v Jagannadeo, 1987
CAG issued a rule for public officer in order to get promotion and a fixed …
were decided for Sc/ST to pass the exam. But, whether the rule will get
implemented was in the hands of CAG. The CAG did not apply it to certain
departments. Thus, in Madras High Court a petition was filed and the court
issued the same and held the decision to implement the Rule from 1980.
(Retrospective Operation)

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Writ of quo warranto
 ‘Quo warranto’ means “by what warrant or authority”.
 It is a judicial order issued by the Supreme Court or a High Court by
which any person, who occupies or usurps an independent public office
or franchise or liberty, is asked to show by what right he claims it, so that
the title to the office, franchise or liberty may be settled and any
unauthorized person ousted.

Case: University of Mysore v Govinda Rao

A. Gowda was appointed as Reader in the Deptt of English in Mysore Uni. The
eligibility criteria for the post were an M.A. in English with High Second Class
among other things. But here the person had secured 50.2%. Thus, Govinda
Rao challenged and the Lower Court issued Quo Warranto , but with hfurther
appeal, the university contended that this Gowda has a simple pass on a
course from Foreign Uni. Thus, it was equivalent to Indian M. A. system. So, SC
upheld the contention of the University and reversed the decision of the HC.

Module 7

Exclusion of Jurisdiction

Finality Clause: Jurisdiction barred completely

Constitutional exclusion – Violation of Basic Structure

The Indian government justified that land should never be an obstacle or a

hindrance in the path of development of the country.

Therefore, under the provisions of “Eminent Domain’, the Government of

India has the right to acquire any property belonging to an individual or
organisation which is to be used in the interest of public development.

Public Interests may regard to the requirements of land for housing projects,
removal of slums, land for foreign consulates, settlement or government

106
employees, land for agrarian reforms, technical education and industrial
labors.

This power of the government created a huge number of disputes and is

responsible for a size-able number of property related cases in various courts
of law.

Articles 31a, 31b, and 31c of Indian Constitution put restrictions on the
fundamental right to property in the welfare of the public.

Article 31b of Indian Constitution: 9th Schedule – save from JR –

Unconstitutional

This article is also the result of the 1st Amendment Act of 1951.

Case; I R Lodhi v State of TN

The IX Schedule of Indian Constitution is a list of acts and laws which cannot
be challenged in the court of law. In other words, any such acts mentioned in
this schedule are out of the reach of the Indian judiciary.

Article 31b of Indian Constitution states that the provisions mentioned in

Article 31a are immune from Indian judiciary and cannot be nulled on the basis
that they might violate the fundamental rights mentioned in Articles 14, 19
and 31 of Indian Constitution.

71 (4) citation of president & Vice President

74 (2) … and Advice given to President

110 (3) and 199(3) Certificate of Speaker cannot be called for question

122 & 212 – Prohibits the court to Judicial Review(JR) in proceeding of the
legislation

217(3) – Age of HC Judges

311 (2) restriction on Doctrine of Pleasure

329 – Deliniation Law cannot be called question of law

323 (A) (2) (d) – Excluding the jurisdiction of HC for tribunal JR violative

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329 (A) – 39th Amendment – repeal by Amendment – Indira Gandhi Nehru Case

363 – Treaties or Agreements entered before independence cannot be

questioned in court : Madhav Rao Scindia v UOI  Recognised Privy Purse

Statuary Exclusion:

1. Direct Exclusion: Sec 9 of CPC – If any act is banned by any statute then civil
courts do not have any jurisdiction

Dhulabhai v State of MP : 1969

Facts : the appellants are dealers in tobacco. They get their tobacco locally or
import it from extra-state places. The government on the basis relevant Acts
issued several notifications in this regard.

 All these notifications imposed taxes on the appellants at different rates

on tobacco at the point of import.
 The tax was not levied on sale or purchase of similar kind in Madhya
Bharat.
 The tax was collected by the authorities.
 The appellants served notices under S. 80 of CPC and filed the present
suit for refund on the ground that it was illegally collected from them
being against the constitutional prohibition in Art. 301 and were not
saved under Art. 304 (a) of the constitution.

Holding: The court laid down various principles of judicial exclusion

The principles enunciated were relevant to find out the jurisdiction of the Civil
Court and its scope to challenge the assessments made under a taxing statute.

[The 2nd Provision: Where there is express bar of the jurisdiction of the court,
an examination of the scheme of the particular Act to find the adequacy or the
sufficiency of the remedies provided may be relevant but is not decisive to
sustain the jurisdiction of the civil court.]

Indirect or Implied Exclusion:

Premier Automobiles Ltd. v Kamlekar Shantaram Wadke , 1975

4 points discussed to know whether the exclusion has been

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M0DULE VIII: PRIVATE LAW REMEDIES AND OTHER REMEDIES

Doctrine of Pleasure

 The doctrine of Pleasure is a common law rule. This doctrine has its
origin in England.
 Though doctrine of pleasure under the Indian Constitution is accepted in
India as it has developed in England, it has not been completely
accepted in India.
 This Doctrine of Pleasure is embodied in India in Article 310(1). It reads
as follows: Tenure of office of persons serving the Union or a State :
Except as expressly provided by this Constitution, every person who is a
member of a defence service or of a civil service of the Union or of an all
India service or holds any post connected with defence or any civil post
under the Union, holds office during the pleasure of the President, and
every person who is a member of a civil service of a State or holds any
civil post under a State holds office during the pleasure of the Governor
of the State.
 “except as expressly provided by the Constitution”: This means that the
Doctrine is subject to constitutional limitations. Therefore, when there is
a specific provision in the Constitution giving to servant tenure different
from that provided in Article 310, then that servant would be excluded
from the operation of the pleasure doctrine.
 The procedure laid down in Article 311 is intended to assure,

i) a measure of security of tenure to Government servants, who are

covered by the Article and

ii) to provide safeguards against arbitrary dismissal or removal of a

Government servant or reduction to a lower rank.

 These provisions are enforceable in a court of law.

 Where there is an infringement of Article 311, the orders passed by the
disciplinary authority are void ab-initio and in the eye of law "no more

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 than a piece of waste paper" and the Government servant will be
deemed to have continued in service or in the case of reduction in rank,
in his previous post throughout. Article 311 is of the nature of a proviso
to Article 310.
 The exercise of pleasure by the President under Article 310 is thus
controlled and regulated by the provisions of Article 311.
 Thus, the doctrine of pleasure is a constitutional remedy for limited
people.

Right to Information

Right to Information Act was enacted in the year 2005. The basic object of the
RTI Act is to empower the citizens, promote transparency and accountability in
the working of the Government and make our democracy work for the people
in real sense.

What is Information?

Information is any material in any form. It includes records, documents,

memos, emails, opinions, advices, press releases, circulars, orders, logbooks,
contracts, reports, papers, samples, models, data material held in any
electronic form. It also includes information relating to any private body, which
can be accessed by the public authority under any law for the time being in
force.

Right to Information under the RTI Act, 2005

1) A citizen has a right to seek such information from a public authority

which is held by the public authority or which is held under its control.
2) This right includes inspection of work, documents and records; taking
notes, extracts or certified copies of documents or records; and taking
certified samples of material held by the public authority or held under
the control of the public authority.
3) A citizen has a right to obtain an information in the form of diskettes,
floppies, tapes, video cassettes or in any other electronic mode or
through print-outs provided such information is already stored in a
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 computer or in any other device from which the information may be
transferred to diskettes etc.
4) The Act gives the right to information only to the citizens of India. It does
not make provision for giving information to Corporations, Associations,
Companies etc., which are legal entities/persons, but not citizens.
5) Only such information is required to be supplied under the Act, which
already exists and is held by the public authority or held under the
control of the public authority.
6) The Public Information Officer (PIO) is not supposed to create
information; or to interpret information; or to solve the problems raised
by the applicants; or to furnish replies to hypothetical questions.

Information Exempted from Disclosure

1) The right to seek information from a public authority is not absolute.

Section 8(1) and 9 of the Act enumerate the categories of information,
which are exempted from disclosure.
2) Schedule II of the Act contains the names of the Intelligence and Security
Organizations which are exempted from the purview of the Act. The
exemption of these organizations, however, does not cover supply of
information relating to allegations of corruption and human rights
violations.
3) Section 8 (2), however, provides that information exempted under sub-
section (1) or exempted under the Official Secrets Act, 1923 can be
disclosed if public interest in disclosure overweighs the harm to the
protected interest.
4) Following types of information would be exempt:
 information disclosure of which would prejudicially affect the
sovereignty and integrity of India, the security, strategic, scientific
or economic interest of the State, relation with foreign state or
lead to incitement of an offence;
 information the disclosure of which would cause a breach of
privilege of Parliament or State Legislature; or
 cabinet papers including records of deliberations of the Council of
Ministers, Secretaries and other Officers.

Right to Information vis-a-vis other Acts

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The RTI Act has over-riding effect vis-a-vis other laws in as much as the
provisions of the RTI Act would have effect notwithstanding anything
inconsistent therewith contained in the Official Secrets Act, 1923, and any
other law for the time being in force or in any instrument having effect by
virtue of any law other than the RTI Act.

Rendering assistance to Applicant

 The Public Information Officer (PIO) has a duty to render reasonable

assistance to the persons seeking information. As per provisions of the
Act, a person, who desires to obtain any information, is required to
make a request in writing or through electronic means in English or Hindi
or in the official language of the area in which the application is made. If
a person seeking information is not able to make such request in writing,
the Public Information Officer should render reasonable assistance to
him to reduce the same in writing.
 Where access to a record is required to be provided to a sensorily
disabled person, the Public Information Officer should assist such person
to enable him to access the information. He should also provide such
assistance to the person as may be appropriate for the inspection of
records where such inspection is involved.

Assistance available to the PIO

The Public Information Officer may seek the assistance of any other officer as
he or she considers necessary for the proper discharge of his or her duties. The
officer, whose assistance is so sought by the PIO, would render all assistance to
him. Such an officer shall be deemed to be a Public Information Officer and
would be liable for contravention of any provisions of the Act the same way as
any other Public Information Officer. it would be advisable for the PIO to
inform the officer whose assistance is sought, about the above provision, at
the time of seeking his assistance.

Suo motu disclosure

The Act makes it obligatory for every public authority to make suo-motu
disclosure in respect of the particulars of its organization, functions, duties and
other matters, as provided in section 4 of the Act. The information so

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published should be easily accessible with the PIO in electronic format. The PIO
should, therefore, make concerted efforts to ensure that the requirements of
the Section 4 are met and maximum information in respect of the public
authority is made available on the internet. It would help him in two ways.

1. the number of applications under the Act would be reduced,

2. it would facilitate his work of providing information in as much as most
of the information would be available to him at one place.

Fee for Seeking Information

 An applicant, along with his application, is required to send a demand

draft or a banker's cheque or an Indian Postal Order of Rs.10/-, payable
to the Accounts Officer of the public authority as fee prescribed for
seeking information. He can also make payment of fee by way of cash to
the Accounts Officer of the public authority or to the Central Assistant
Public Information Officer against proper receipt.
 Additional fee has been prescribed by the Right to Information
Regulation of Fee and Cost Rules, 2OO5 for supply of information as
given below:-
 Rs. 2/- for each page ( in A-4 or A-3 size paper) created or copied;
 actual charge or cost price of a copy in larger size paper;
 actual cost or price for samples or models;
 for inspection of records, no fee for the first hour; and a fee of Rs.
5/- for each subsequent hour (or fraction thereof);
 If the applicant belongs to below poverty line (BPL) category, he is
not required to pay any fee. However, he should submit a proof in
support of his claim to belong to the below poverty line.

Contents and Format of Application

the Act or the Rules do not prescribe any format of application for seeking
information. The applicant is not required to give justification for seeking
information or to give details of his job etc. or to submit application in any
particular form.

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Time Period for Supply of Information

 The PIO should supply the information within 30 days of the receipt of
the request. Where the information sought for concerns the life or
liberty of a person, the same should be provided within 48 hours of the
receipt of the request.
 Every public authority is required to designate an officer at each sub-
divisional level or other sub-district level as an Assistant Public
Information Officer (APIO) to receive the applications or appeals under
the Act for forwarding the same to the Public Information Officer or the
first Appellate Authority or the Information Commission. If request for
information is received through the APIO, the information may be
provided within 35 days of receipt of application by the APIO in normal
course and 48 hours plus 5 days in case the information sought concerns
the life or liberty of a person.

Third Party Information

 Third party in relation to the Act means a person other than the citizen
who has made request for information. Any public authority other than
the public authority to whom the request has been made shall also be
included in the definition of third party.
 Information including commercial confidence, trade secrets or
intellectual property, the disclosure of which would harm the
competitive position of a third party, is exempt from disclosure. Section
8(1)(d) requires that such information should not be disclosed unless the
competent authority is satisfied that larger public interest warrants the
disclosure of such information.
 If an applicant seeks any information which relates to or has been
supplied by a third party and that third party has treated that
information as confidential, the Public Information Officer should
consider whether the information should be disclosed or not. The
guiding principle in such cases should be that except in the case of trade
or commercial secrets protected by law, disclosure may be allowed if the
public interest in disclosure outweighs in importance any possible harm
or injury to the interests of such third party. However, procedure as

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 given should be followed before disclosing such information. It may be
noted that this procedure need be followed only when the third part has
treated the information as confidential.
 If the PIO intends to disclose the information, he should within five days
from the receipt of the application, give a written notice to the third
party that the information has been sought by the applicant under the
RTI Act and that he intends to disclose the information. He should
request the third party to make a submission in writing or orally,
regarding whether the information should be disclosed. The third party
should be given a time of ten days, from the date of receipt of the notice
by him, to make representation against the proposed disclosure, if any.
 The Public Information Officer should make a decision regarding
disclosure of the information keeping in view, the submission of the
third party. Such a decision should be taken within forty days from the
receipt of the request for information. After taking the decision, the PIO
should give a notice of his decision to the third party in writing. The
notice given to the third party should include a statement that the third
party is entitled to prefer an appeal under section 19 against the
decision.
 The third party can prefer an appeal to the First Appellate Authority
against the decision made by the Central Public Information Officer
within thirty days from the date of the receipt of notice. If not satisfied
with the decision of the First Appellate Authority, the third party can
prefer the second appeal to the Central Information Commission.
 If an appeal has been filed by the third party against the decision of the
PIO to disclose the third party information, the information should not
be disclosed till the appeal is decided.

Appeals and Complaints

 If an applicant is not supplied information within the prescribed time

limit, or is not satisfied with the information furnished to him, he may
prefer an appeal to the first appellate authority who is an officer senior
in rank to the PIO. Such an appeal can be made within a period of 30
days from the date on which time limit for supply of information expires
or the decision of the PIO is received.

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  The appellate authority of the public authority is expected to dispose of
the appeal within a period of thirty days or in exceptional cases within
45 day of the receipt of the appeal.
 If the first appellate authority fails to pass an order on the appeal within
the prescribed period or if the appellate is not satisfied with the order of
the first appellate authority, he may prefer a second appeal with the
Central information Commission within ninety days from the date on
which the decision should have been made by the first appellate
authority or was actually received by the appellant.

Imposition of Penalty

As pointed out above, an applicant under the Act has a right to appeal to the
Central Information Commission and also to make complaint to the
Commission. Where the Central Information Commission at the time of
deciding any complaint or appeal is of the opinion that the public Information
Officer has without any reasonable cause refused to receive an application for
information or has not furnished information within the time is specified or
denied the request for information or knowingly given incorrect, incomplete or
misleading information or destroyed information which was the subject of the
request or obstructed in any manner in furnishing the information, it shall
impose a penalty of 250 rupees each day till application is received or
information is furnished subject to the condition that the total amount of such
penalty shall not exceed 25000 rupees.

The Central Public Information Officer shall, however, be given a reasonable

opportunity of being heard before any penalty is imposed on him. The burden
of proving that he acted reasonably and diligently and in case of denial of a
request that such denial was justified shall be on the Central Public
Information Officer.

Lokpal and Lokayukta Act, 2013

The Lokpal and Lokayukta Act, 2013 seeks to provide for the establishment of
Lokpal for the Union and Lokayukta for States to inquire into allegations of
corruption against certain public functionaries and for related matters. The Act
is applicable to “public servants” within and outside India. The act mandates
for creation of:
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  Lokpal for Union
 Lokayukta for states

Composition of Lokpal

The institution of Lokpal is a statutory body without any constitutional

backing. Lokpal is a multimember body, made up of:

 one chairperson and

 maximum of 8 members (half i.e. 4 no. of judicial members).
 Minimum 50% of the Members will be from SC / ST / OBC / Minorities
and women.

Who can become the Chairperson?

 Either the former Chief Justice of India, or

 the former Judge of Supreme Court, or
 an eminent person with impeccable integrity and outstanding ability,
having special knowledge and expertise of minimum 25 years in the
matters relating to anti-corruption policy, public administration,
vigilance, finance including insurance and banking, law and
management.

Who can become a member?

Judicial Member

 A former Judge of the Supreme Court, or

 A former Chief Justice of a High Court

Non-judicial Member

An eminent person with impeccable integrity and outstanding ability, having

special knowledge and expertise of minimum 25 years in the matters relating
to anti-corruption policy, public administration, vigilance, finance including
insurance and banking, law and management.

Who cannot become the chairperson?

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  MPs and MLAs;
 Persons convicted of any offense involving moral turpitude;
 Less than 45 years of age;
 Members of Panchayats or Municipality;
 A person who was removed or dismissed from the public service;
 A person who holds any office of trust / profit;
 A person who is affiliated to a political party;
 Carries on some business / profession.

Appointment of Chairperson and members

The members are to be appointed by President on the recommendations of a

selection committee comprising of:

 Prime Minister—Chairperson of the Selection Committee;

 Speaker of Lok Sabha
 Leader of Opposition in Lok Sabha
 Chief Justice of India or a Judge nominated by him / her
 One eminent jurist

Term of Office of Lokpal Chairman and members

 5 years or till attaining age of 70 years.

Salary, Allowances and other conditions of service

 Chairperson – equivalent to Chief Justice of India

 Members – equivalent to Judge of the Supreme Court.

The source of salary for Lokpal and Members is Consolidated Fund of India.

Post retirement jobs

Once a Lokpal chairperson / member has ceased to be so, he cannot take up

the following jobs:

 cannot be reappointed as chairperson / member of Lokpal

 cannot take any diplomatic assignment
 cannot be appointed as administrator to a Union Territory

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  any constitutional / statutory post in which appointment is made by
President
 Any other office under the government of India
 He cannot contest any of the elections such as President / Vice President
/ MLA / MLC/ Local bodies for 5 years after relinquishing the post.

Officials of Lokpal

Appointed by Lokpal Chairperson.

 Secretary to Lokpal
 Director of Inquiry
 Director of Prosecution

The Director of Inquiry and Director of Prosecution cannot be below the rank
of Additional Secretary to the Government of India.

Inquiry Wing of Lokpal

 headed by Director of Inquiry.

 Its function is to conduct the preliminary inquiry into any offence alleged
to have been committed by a public servant punishable under the
Prevention of Corruption Act, 1988.

Prosecution Wing of Lokpal

 headed by the Director of Prosecution for the purpose of prosecution of

public servants.

Jurisdiction of Lokpal

 Prime Minister of India, subject to certain conditions

 All ministers of the Union
 Members of Parliament except for matters related to article 105 of
constitution. (that is anything said or a vote given by him in Parliament)
 Group ‘A’ or Group ‘B’ officers
 Group ‘C’ or Group ‘D’ officials

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  Any person who is or has been in-charge (director / manager/ secretary)
of any body/ society set up by central act or any other body financed/
controlled by central government.
 Any other person involved in act of abetting, bribe giving or bribe taking

Lokpal Benches

 A Lokpal Bench will be constituted by the Chairperson with two or more

members – If bench consists of Chairperson, it will be headed by him. If
the bench does not consist of chairperson, it will be headed by a judicial
member only. The Lokpal benches will sit in New Delhi or any other
places as decided by Lokpal.

How Lokpal works?

 Receives the complaint – decides need of proceeding further – If it

decides to proceed further, it would order a preliminary inquiry by either
its own Inquiry Wing or other agency such as CBI – The Preliminary
enquiry has to be done within 90 days of receiving complaint, may be
increases to 6 months - The preliminary inquiry would ascertain if there
is prima facie a case to proceed further.
 If the complaint is related to Group A to Group D officers, Lokpal would
refer the complaint to CVC.

Powers of Lokpal

 Powers to superintendence over, and to give direction to CBI.

 If it has referred a case to CBI, the investigating officer in such case
cannot be transferred without approval of Lokpal.
 Powers to authorize CBI for search and seizure operations connected to
such case.
 The Inquiry Wing of the Lokpal has been vested with the powers of a civil
court.
 Powers of confiscation of assets, proceeds, receipts and benefits arisen
or procured by means of corruption in special circumstances
 Powers to recommend transfer or suspension of public servant
connected with allegation of corruption.

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  Power to give directions to prevent destruction of records during
preliminary inquiry.

Lokayukta

Every State shall establish a Lokayukta by a State Act.

What is not there in our Lokpal act?

 The Lokpal and Lokayuktas Act is perhaps the only legislation in the
history of independent India, which has been so widely discussed, both
inside and outside Parliament and has, thus generated so much
awareness in the public mind about the need to have an effective
institution of Lokpal to tackle corruption.
 However, the Act passed hitherto is verbose, full of negatives and has
numerous cross references. Still, here are a few things which are absent
from this law:
 No protection to whistleblowers: This was one of the main
demands in the Janlokpal Bill. The recently passed Act does not
have provisions for protection of whistleblowers. There is need for
a separate law on this.
 There is only one section on Lokayukta in the Act which says that
within one year, the states shall enact the Lokayukta act.
However, there is nothing regarding their composition, powers
etc. In fact, states are free to define how their own Lokayuktas
would be appointed, how they would work and under what
circumstances they would serve.
 The Lokpal act brings the PM under its jurisdiction, yet the
Judiciary has been left. Judiciary is NOT subject to Lokpal
jurisdiction.
 The provisions of the Act have become anomalous because of
Lokpal’s relations with the CBI. Under the provisions of the Act,
Lokpal has been vested with all powers related to only those cases
which it refers to CBI. Instead, there was a long demand that CBI
should be merged with Lokpal. The current provisions are open to
misuse.
 There are no provisions related to Citizen’s charter.

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  There are no adequate provisions to appeal against the Lokpal.
Lokpal cannot conduct inquiry against itself.

Prime Minister under Lokpal

 According to the Lokpal and Lokayukta Act 2013, the PM comes within
the jurisdiction of Lokpal but Lokpal will not inquire the PM if the
allegation of corruption is related to international relations, external and
internal security, public order, atomic energy and space.
 Further, allegation against Prime Minister can be taken up for inquiry
only when the two conditions as follows are satisfied:
 Full bench of the Lokpal consisting of its Chairperson and all
Members considers the initiation of inquiry
 At least two-thirds of its members approves of such inquiry.
 Such inquiry against the Prime Minister will be done in camera.
 If the Lokpal concludes that the allegation is false and the inquiry
should be dismissed, the records of the inquiry shall not be
published or made available to anyone.

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