Administrative Law N DLM
Administrative Law N DLM
Administrative Law N DLM
Reading Material
Module –I
On
Administrative Law
WE ARE WHAT
WE REPEATEDLY DO
EXCELLENCE THAN IS NOT AN ACT,
BUT A HABIT.
Aristotl
e
Module – 1 2
CONTENTS Page
Module – 1 3
Administrative Law : Conceptual Analysis
Issues and Prospects
Introductory :-
Module – 1 4
has been characterized as the most outstanding legal development of the
20th-century.
Administrative Law is that branch of the law, which is concerned, with the
composition of powers, duties, rights and liabilities of the various organs of the
Government.
The rapid growth of administrative Law in modern times is the direct result of
the growth of administrative powers. The ruling gospel of the 19th century
was Laissez faire which manifested itself in the theories of individualism,
individual enterprise and self help. The philosophy envisages minimum
government control, maximum free enterprise and contractual freedom. The
state was characterized as the law and order state and its role was conceived
to be negative as its internal extended primarily to defending the country from
external aggression, maintaining law and order within the country dispensing
justice to its subjects and collecting a few taxes to finance these activities. It
was era of free enterprise. The management of social and economic life was
not regarded as government responsibility. But laissez faire doctrine
resulted in human misery. It came to be realized that the bargaining position
of every person was not equal and uncontrolled contractual freedom led to the
exploitation of weaker sections by the stronger e.g. of the labour by the
management in industries. On the one hand, slums, unhealthy and
dangerous conditions of work, child labour wide spread poverty and
exploitation of masses, but on the other hand, concentration of wealth in a few
hands, became the order of the day. It came to be recognized that the state
should take active interest in ameliorating the conditions of poor. This
approach gave rise to the favoured state intervention in and social control and
regulation of individual enterprise. The state started to act in the interests of
social justice; it assumed a “ positive” role. In course of time, out of dogma of
collectivism emerged the concept of “ Social Welfare State” which lays
emphasis on the role of state as a vehicle of socio-economic regeneration and
welfare of the people.
Module – 1 5
Directive Principles of state policy which set out the economic, social and
political goals of Indian constitutional system. These directives confer certain
non-justiceable rights on the people, and place the government under an
obligation to achieve and maximize social welfare and basic social values of
life education, employment, health etc. In consonance with the modern
beliefs of man, the Indian constitution sets up machinery to achieve the goal
of economic democracy along with political democracy, for the latter would be
meaningless without former.
Administrative law essentially deals with location of power and the limitations
thereupon. Since both of these aspects are governed by the constitution, we
shall survey the provisions of the constitution, which act as sources of
limitations upon the power of the state. This brief outline of the Indian
constitution will serve the purpose of providing a proper perspective for the
study of administrative law.
Firstly, the Constitution deals with the organization and structure not only of
the central Government but also of the states.
Module – 1 6
Fifthly, to promote the social welfare concept on which the state of India is to
be based. The constitution includes Directive Principles of State Policy.
The preamble to the Constitution enunciates the great objectives and the
socio-economic goals for the achievement of which the Indian Constitution
has been established. These are: to secure to all citizens of India social,
economic and political justice; to secure to all Indian citizens liberty of thought,
expression, belief, faith and worship; to secure to them equality of status and
opportunity, and to promote among them fraternity so as to secure the dignity
of the Individual and the unity of the nation. The Indian Constitution has been
conceived and drafted in the mid-twentieth century-an era when the concept
of social welfare state is predominant. It is thus pervaded with the modern
outlook regarding the objectives and functions of the state. It embodies a
distinct philosophy of government, and, explicitly declares that India will be
organized as a social welfare state, i.e., a state that renders social services to
the people and promotes their general welfare. In the formulations and
decelerations of the social objectives contained in the preamble, one can
Module – 1 7
clearly discern the impact of the modern political philosophy, which regards
the state as an organ to secure the good and welfare of the people. This
concept of a welfare state is further strengthened by the Directive Principles of
State Policy, which set out the economic, social and political goals of the
Indian constitutional system. These directives confer certain non-justiceable
rights on the people, and place the governments under an obligation to
achieve and maximize social welfare and basic social values like education,
employment, health etc. In consonance with the modern beliefs of man, the
Indian Constitution sets up a machinery to achieve the goal of economic
democracy along with political democracy, for the latter would be meaningless
without the former in a poor country like India.
Module – 1 8
political stream, the Constitution contains a liberal scheme of safeguards to
minorities, backward classes and scheduled castes. Provisions have thus
been made, inter alia, to reserve seats in the State Legislatures and Lok
Sabha and to make reservations services, for some of these groups, to
promote the welfare of the depressed and backward classes and to protect
the languages and culture of the minorities.
India has adopted adult suffrage as a basis of elections to the Lok Sabha and
the State Legislative Assemblies. Every citizen, male or female, who has
reached the age of 18 years or over, has a right to vote without any
discrimination. It was indeed a very bold step on the part of the constitution-
makers to adopt adult suffrage in a country of teeming millions of illiterate
people, but they did so for some very sound reasons. If democracy is to be
broad-based and the system of government is to have the ultimate sanction of
the people as a whole, in a country like India where large masses of people
are poor an illiterate, the introduction of any property or educational
qualification for exercising the franchise would have amounted to a negation
of democratic principles. Any such qualification would have disenfranchised a
large number of depressed people. Further, it cannot be assumed that a
person with a bare elementary education is in a better position to exercise the
franchise are and choose his representatives accordingly.
The judiciary in India has been assigned role to play. It has to dispense justice
not only between one person and another, but also between the state and the
citizens. It interprets the constitution and acts as its protector and guardian by
keeping all authorities legislative, executive, administrative, judicial and quasi-
judicial-within bounds. The judiciary is entitled to scrutinize any governmental
action in order to assess whether or to it conforms to the constitution and the
valid laws made there under. The judiciary has powers to protect people’s
Fundamental Rights from any unreasonable encroachment by any organ of
the state. The judiciary supervises the administrative process in the country,
and acts as the balance wheel of federalism by settling disputes between the
center and the states or among the state inter se.
India’s Constitution is of the federal type. It established a dual polity, a two tier
Module – 1 9
governmental system with the Central Government at one level and the state
Governments at the other. The Constitution marks off the sphere of action of
each level of government by devising an elaborate scheme of distribution of
legislative, administrative, and financial powers between the Centre and the
States. A government is entitled to act within its assigned field and cannot go
out of it, or encroach on the field assigned to the other government.
Today in India, the Administrative process has grown so much that it will not
be out of place to say that today we are not governed but administered. It
may be pointed out that the constitutional law deals with fundamentals while
administrative with details. The learned author, Sh. I.P. Messey, has rightly
pointed out, whatever may be the arguments and counter arguments, the fact
remains that the administrative law is recognized as separate, independent
branch of legal discipline,. Though at times the disciplines of constitutional
law and administrative law may over lap. Further clarifying the point he said
the correct position seems to be that if one draws two circles of administrative
law and constitutional law at a certain place they may over lap and this area
may termed as watershed in administrative law.
In India, in the Watershed one can include the whole control mechanism
provided in the constitution for the control of the administrative authorities that
is article 32, 226,136,300 and 311.
The emergence of the social welfare has affected the democracies very
profoundly. It has led to state activism. There has occurred a phenomenal
increase in the area of sate operation; it has taken over a number of
functions, which were previously left to private enterprise. The state today
Module – 1 10
pervades every aspect of human life. The functions of a modern state may
broadly be placed into five categories, viz, the state as:-
•= protector,
•= provider,
•= entrepreneur,
•= economic controller and
•= arbiter.
•= It makes policies,
•= It provides leadership to the legislature,
•= It executes and administers the law and
•= It takes manifold decisions.
•= It exercises today not only the traditional functions of
administration, but other varied types of functions as well.
•= It exercises legislative power and issues a plethora of rules,
bye- laws and orders of a general nature.
Module – 1 11
In such a context, a study of administrative law becomes of great significance.
The increase in administrative functions has created a vast new complex of
relations between the administration and the citizen. The modern
administration impinges more and more on the individual; it has assumed a
tremendous capacity to affect the rights and liberties of the people. There is
not a moment of a person’s existence when he is not in contact with the
administration in one-way or the other. This circumstance has posed certain
basic and critical questions for us to consider:
Module – 1 12
administrative powers.
Administrative powers are
exercised by thousands of
officials and affect millions of
people Administrative efficiency
cannot be the end-all of
administrative powers. There is
also the questions of protecting
individual’s rights against bad
administration will lead to good
administration.
A democracy will be no better than a mere façade if the rights of the people
are infringed with impunity without proper redressed mechanism. This
makes the study of administrative law important in every country. For India,
however, it is of special significance because of the proclaimed objectives of
the Indian polity to build up a socialistic pattern of society. This has
generated administrative process, and hence administrative law, on a large
scale. Administration in India is bound to multiply further and at a quick
pace. If exercised properly, the vast powers of the administration may lead
to the welfare state; but, if abused, they may lead to administrative
despotism and a totalitarian state A careful and systematic study and
development of administrative law becomes a desideratum as administrative
law is an instrument of control of the exercise of administrative powers.
Administrative Law is, in fact, the body of those which rules regulate and
control the administration. Administrative Law is that branch of law that is
concerned with the composition of power, duties, rights and liabilities of the
various organs of the Government that are engaged in public administration.
Under it, we study all those rules laws and procedures that are helpful in
properly regulating and controlling the administrative machinery.
Module – 1 13
Let us consider some of the definitions as given by the learned jurists.
Austin has defined administrative Law. As the law, which determines the
ends and modes to which the sovereign power shall be exercised. In his view,
the sovereign power shall be exercised either directly by the monarch or
directly by the subordinate political superiors to whom portions of those are
delegated or committed in trust.
Firstly, portion of a nation’s legal system which determines the legal statues
and liabilities of all State officials.
Secondly, defines the right and liabilities of private individuals in their
dealings with public officials.
Thirdly, specifies the procedure by which those rights and liabilities are
enforced.
This definition suffers from certain imperfections. It does not cover several
aspects of administrative law, e.g. it excludes the study of several
administrative authorities such as public corporations which are not included
within the expression “State officials,” it excludes the study of various powers
and functions of administrative authorities and their control. His definition is
mainly concerned with one aspect of administrative. Law, namely, judicial
control of public officials.
A famous jurist Hobbes has written that there was a time when the society
was in such a position that man did not feel secured in it. The main reason
for this was that there were no such things as administrative powers. Each
person had to live in society on the basis of his own might accordingly to
Hobbes, “ In such condition, there was no place for industry, arts, letters and
society. Worst of all was the continual fear of danger, violent death and life of
man solitary poor, nasty and brutish and short.
The jurists are also of the view that might or force as a means for the
enforcement of any decision by man could continue only for some time. To
put it is other words, the situation of “might is right” was only temporary. It
Module – 1 14
may be said to be a phase of development. This can be possible only
through the medium of law. Hence, law was made and in order to interpret it
and in order to determine the rights and duties on the basis of such
interpretation, this work was entrusted to a special organ that we now call
judiciary. The organ, which was given the function of enforcing the decision
of judicial organ, is called executive. It has comparatively a very little concern
with the composition of the executive organ.
Module – 1 15
F. What remedies are available to persons adversely affected
by administration?
Thus the concept of administrative law has assumed great importance and
remarkable advances in recent times. There are several principles of
administrative law, which have been evolved by the courts for the purpose of
controlling the exercise of power. So that it does not lead to arbitrariness or
despotic use of power by the instrumentalities or agencies of the state. During
recent past judicial activism has become very aggressive. It was born out of
desire on the part of judiciary to usher in rule of law society by enforcing the
norms of good governance and thereby produced a rich wealth of legal norms
and added a new dimension to the discipline administrative law.
Administrative law is not codified like the Indian Penal code or the
law of Contracts. It is based on the constitution. No doubt the
Court of Law oversees and ensure that the law of the land is
enforced. However, the “very factor of a rapid development and
complexity which gave rise to regulation made specific and
complete treatment by legislation impossible and, instead, made
necessary the choice of the body of officers who could keep abreast
of the novelties and intricacies which the problems presented.”
Module – 1 16
public power. Therefore administrative law deals with relationship
individual with power.
Module – 1 17
There are four principal sources of administrative law in India:-
•= Constitution of India
•= Acts and Statutes
•= Ordinances, Administrative directions, notifications and Circulars
•= Judicial decisions
“to understand the stuff of which administrative law is made one has to
understand relevant domains of substantive law to which courts apply the
more general principles of legality and fairness. In this way a thorough study
of administrative law is in effect, a study of the Indian legal system a whole.
More importantly, it is study of the pathology of power in a developing
society.”
informal procedure,
Module – 1 18
speedy and less expensive trial,
legal aid,
public interest litigation,
easy bail etc.
Separation of Powers
This theory has had different application in France, USA and England. In
France, it resulted in the rejection of the power of the courts to review acts of
the legislature or the executive. The existence of separate administrative
Module – 1 19
courts to adjudicate disputes between the citizen and the administration owes
its origin to the theory of separating of powers. The principle was categorically
adopted in the making of the Constitution of the United States of America.
There, the executive power is vested in the president. Article the legislative
power in congress and the judicial power in the Supreme Court and the courts
subordinates thereto. The President is not a member of the Congress. He
appoints his secretaries on the basis not of their party loyalty but loyalty to
himself. His tenure does not depend upon the confidence of the Congress in
him. He cannot be removed except by impeachment, However, the United
States constitution makes departure from the theory of strict separation of
powers in this that there is provision for judicial review and the supremacy of
the ordinary courts over the administrative courts or tribunals.
In India, the executive is part of the legislature. The President is the head of
the executive and acts on the advice of the Council of Ministers. Article 53
and 74 (1) He can be impeached by Parliament. Article 56 (1) (b) read with Art
61, Constitution. The Council of Ministers is collectively responsible to the Lok
Sabha Article 75 (3) and each minister works during the pleasure of the
President. Article 75 (2) If the Council of Ministers lose the confidence of the
House, it has to resign.
Module – 1 20
The Judges of the Supreme Court are appointed by the President in
consultation with the Chief justice of India and such of the judges of the
supreme Court and the High Courts as he may deem necessary for the
purpose. (Article 124 (2))
The Judges of the High Court are appointed by the President after
consultation with the Chief Justice of India, the Governor of the state, and, in
the case of appointment of a judge other than the Chief justice, the Chief
Justice of the High Court( Article 217 (1).)
It has now been held that in making such appointments, the opinion of the
Chief justice of India shall have primacy. (Supreme Court Advocates on
Record Association.) The judges of the high Court and the judges of the
Supreme Court cannot be removed except for misconduct or incapacity and
unless an address supported by two thirds of the members and absolute
majority of the total membership of the House is passed in each House of
Parliament and presented to the President Article 124 (3) An impeachment
motion was brought against a judge of the Supreme court, Justice
Ramaswami, but it failed to receive the support of the prescribed number of
members of Parliament. The salaries payable to the judges are provided in
the Constitution or can be laid down by a law made by Parliament. Article 125
(1) and Art 221 (1).
Every judge shall be entitled to such privileges and allowances and to such
rights in respect of absence and pension, as may from time to time be
determined by or under any law made by Parliament and until so determined,
to such privileges, allowance and rights as are specified in the Second
Schedule. Neither the privileges nor the allowance nor his rights in respect of
leave of absence or pension shall be varied to his disadvantage after his
appointment.
Appointments of persons to be, and the posting and promotion of, district
judges in any state shall be made by the Governor of the State in consultation
with the High Court exercising jurisdiction in relation to such state (Article 233)
The control over the subordinate courts is vested in the acts of the Legislature
as well as the executive. The Supreme Court has power to make rules (Article
145) and exercises administrative control over its staff.
The judiciary has power to enforce and interpret laws and if they are found in
violation of any provision of the Constitution, it can declare them un-
constitutional and therefore, void. It can declare the executive action void if it
is found against any provisions of the Constitution. Article 50 provides that the
State shall take steps to separate the judiciary from the executive.
Thus, the three organs of the Government (i.e. the Executive, the Legislature
and the Judiciary) are not separate. Actually the complete demarcation of the
functions of these organs of the Government is not possible.
Module – 1 21
The Constitution of India does not recognize the doctrine of separation of
power in its absolute rigidity, but the functions of the three organs of the
government have been sufficiently differentiated.( Ram Jawaya v. State of Punjab,
AIR 1955 SC 549) None of the three of organs of the Government can take over
the functions assigned to the other organs.( Keshanand Bharti v. State of Kerala, AIR
1973 SC 1461, Asif Hameed v. State of J&K 1989 AIR, SC 1899)
In State of Bihar v. Bihar Distillery Ltd., (AIR 1997 SC 1511) the Supreme Court
has held that the judiciary must recognize the fundamental nature and
importance of the legislature process and must accord due regard and
deference to it. The Legislative and Executive are also expected to show due
regard and deference to the judiciary. The Constitution of India recognizes
and gives effect to the concept of equality between the three organs of the
Government. The concept of checks and balance is inherent in the scheme.
RULE OF LAW
It does not admit of being readily expressed. Hence, it is difficult to define it.
Simply speaking, it means supremacy of law or predominance of law and
essentially, it consists of values.
The concept of the rule of Law is of old origin. Edward Coke is said to be the
originator of this concept, when he said that the King must be under God and
Law and thus vindicated the supremacy of law over the pretensions of the
executives. Prof. A.V. Dicey later developed on this concept in the course of
his lectures at the Oxford University. Dicey was an individualist; he wrote
about the concept of the Rule of law at the end of the golden Victorian era of
laissez-faire in England. That was the reason why Dicey’s concept of the
Rule of law contemplated the absence of wide powers in the hands of
Module – 1 22
government officials. According to him, wherever there is discretion there is
room for arbitrariness. Further he attributed three meanings to Rule of Law.
(1) The First meaning of the Rule of Law is that ‘no man is punishable or
can lawfully be made to suffer in body or goods except for a distinct breach of
law established in the ordinary legal manner before the ordinary courts of the
land. (The view of Dicey, quoted by Garner in his Book on ‘Administrative Law’.)
(2) The Second Meaning of the Rule of Law is that no man is above law.
Every man whatever be his rank or condition. is subject to the ordinary law of
the realm and amenable to the jurisdiction of the ordinary tribunals (Ibid).
(3) The Third meaning of the rule of law is that the general principle of the
constitution are the result of judicial decisions determining the rights of private
persons in particular cases brought before the court. (View of Dicey, quoted by
Garner in his book on Administrative Law, p.11.)
The view of Dicey as to the meaning of the Rule of Law has been subject of
much criticism. The whole criticism may be summed up as follows.
Dicey has opposed the system of providing the discretionary power to the
administration. In his opinion providing the discretionary power means
creating the room for arbitrariness, which may create as serious threat to
individual freedom. Now a days it has been clear that providing the discretion
to the administration is inevitable. The opinion of the Dicey, thus, appears to
be outdated as it restricts the Government action and fails to take note of the
changed conception of the Government of the State.
Dicey has failed to distinguish discretionary powers from the arbitrary powers.
Arbitrary power may be taken as against the concept of Rule of Law . In
modern times in all the countries including England, America and India, the
discretionary powers are conferred on the Government. The present trend is
that discretionary power is given to the Government or administrative
authorities, but the statute which provides it to the Government or the
administrative officers lays down some guidelines or principles according to
which the discretionary power is to be exercised. The administrative law is
much concerned with the control of the discretionary power of the
administration. It is engaged in finding out the new ways and means of the
control of the administrative discretion.
According to Dicey the rule of law requires that every person should be
subject to the ordinary courts of the country. Dicey has claimed that there is
no separate law and separate court for the trial of the Government servants in
England. He critcised the system of droit administratif prevailing in France. In
France there are two types of courts Administrative Court and Ordinary Civil
Courts. The disputes between the citizens and the Administration are decided
by the Administrative courts while the other cases, (i.e. the disputes between
the citizens) are decided by the Civil Court. Dicey was very critical to the
separation for deciding the disputes between the administration and the
citizens
Module – 1 23
According to Dicey the Rule of Law requires equal subjection of all persons to
the ordinary law of the country and absence of special privileges for person
including the administrative authority. This proportion of Dicey does not
appear to be correct even in England. Several persons enjoy some privileges
and immunities. For example, Judges enjoy immunities from suit in respect of
their acts done in discharge of their official function. Besides, Public
Authorities Protection Act, 1893, has provided special protection to the official.
Foreign diplomats enjoy immunity before the Court. Further, the rules of
‘public interest privilege may afford officials some protection against orders for
discovery of documents in litigation.’ Thus, the meaning of rule of law taken by
Dicey cannot be taken to be completely satisfactory.
Third meaning given to the rule of law by Dicey that the constitution is the
result of judicial decisions determining the rights of private persons in
particular cases brought before the Courts is based on the peculiar character
of the Constitution of Great Britain.
The concept of rule of law, in modern age, does not oppose the practice of
conferring discretionary powers upon the government but on the other hand
emphasizing on spelling out the manner of their exercise. It also ensures that
every man is bound by the ordinary laws of the land whether he be private
citizens or a public officer; that private rights are safeguarded by the ordinary
laws of the land (See Journal of the Indian law Institute, 1958-59, pp. 31-32)
Thus the rule of law signifies that nobody is deprived of his rights and liberties
by an administrative action; that the administrative authorities perform their
functions according to law and not arbitrarily; that the law of the land are not
unconstitutional and oppressive; that the supremacy of courts is upheld and
judicial control of administrative action is fully secured.
Module – 1 24
•= Discretionary should be exercised within reasonable limits set by law
•= Adequate safeguard against executive abuse of powers
•= Independent and impartial Judiciary
•= Fair and Justice procedure
•= Speedy Trial
In an early case S.G. Jaisinghani V. Union of India and others, (AIR 1967 SC
1427) the Supreme Court portrayed the essentials of rule of law in a very lucid
manner. It observed: “ The absence of arbitrary power is the first essential of
the rule of law upon which our whole constitutional system is based. In a
system governed by rule of law, discretion when conferred upon executive
authorities must be continued within clearly defined limits. The rule of law from
this points of view means that decisions should be made by the application of
known principles and rules and, in general such decision should be
predictable and the citizen should know where he is. If a decision is taken
without any principle or without any rule it is unpredictable and such a
decision is antithesis of a decision taken in accordance with the rule of law”.
Module – 1 25
law. The Supreme Court, in the process of interpretation of rule of law vis-à-
vis operation of administrative power, in several cases, emphasized upon the
need of fair and just procedure, adequate safeguards against any executive
encroachment on personal liberty, free legal aid to the poor and speedy trail in
criminal cases as necessary adjuncts to rule of law. Giving his dissenting
opinion in the Death penalty case, Mr. Justice Bhagwati explains fully the
significance of rule of law in the following words:
The rule of law permeates the entire fabric of the Constitution and indeed
forms one of its basic features. The rule of law excludes arbitrariness, its
postulate is ‘intelligence without passion’ and reason free from desire.
Wherever we find arbitrariness or unreasonableness there is denial of the rule
of law. Law in the context of rule of law does not mean any law enacted by
legislative authority, howsoever arbitrary, despotic it may be, otherwise even
in dictatorship it would be possible to say that there is rule of law because
every law made by the dictator, however arbitrary and unreasonable, has to
be obeyed and every action has to be taken in conformity with such law. In
such a case too even where the political set-up is dictatorial it is the law that
governs the relationship between men
The modern concept of the Rule of Law is fairly wide and, therefore, sets
up an idea for government to achieve. This concept was developed by the
International Commission of Jurists, known as Delhi Declaration, 1959, which
was later on confirmed at Lagos in 1961. According to this formulation, the
Rule of Law implies that the functions of the government in a free society
should be so exercised as to create conditions in which the dignity of man as
an individual is upheld.
During the last few years the Supreme Court in India has developed some
fine principles of Third World jurisprudence. Developing the same new
constitutionalism further, the Apex Court in Veena Seth v. State (AIR 1983 SC
339) of Bihar extended the reach of the Rule of Law to the poor and the
downtrodden, the ignorant and the illiterate, who constitute the bulk of
humanity in India, when it ruled that the Rule of Law does not exist merely for
those who have the means to fight for their rights and very often do so for the
perpetuation of the status quo, which protects and preserves their dominance
and permits them to exploit a large section of the community. The opportunity
for this ruling was provided by a letter written by the Free Legal Aid
Committee, Hazaribagh, Bihar drawing its attention to unjustified and illegal
detention of certain prisoners in jail for almost two or three decades.
Recent aggressive judicial activism can only be seen as a part of the efforts of
the Constitutional Courts in India to establish rule-of-law society, which
implies that no matter how high a person, may be the law is always above
him. Court is also trying to identify the concept of rule of law with human
rights of the people. The Court is developing techniques by which it can force
the government not only to submit to the law but also to create conditions
where people can develop capacities to exercise their rights properly and
meaningfully. The public administration is responsible for effective
implementation of rule of law and constitutional commands, which effectuate
Module – 1 26
fairly the objective standards laid down by law. Every public servant is a
trustee of the society and is accountable for due effectuation of constitutional
goals. This makes the concept of rule of law highly relevant to our context.
Droit Administratif
Module – 1 27
1. Those matters concerning the State and administrative litigation
falls within the jurisdiction of administrative courts and cannot be
decided by the land of the ordinary courts.
2. Those deciding matters concerning the State and administrative
litigation, rules as developed by the administrative courts are
applied.
3. If there is any conflict of jurisdiction between ordinary courts and
administrative court, it is decided by the tribunal des conflicts.
4. Conseil d’Etat is the highest administrative court.
Despite the obvious merits of the French administrative law system, Prof.
Dicey was of the opinion that there was no rule of law in France nor was the
system so satisfactory as it was in England. He believed that the review of
administrative action is better administered in England than in France.
Firstly, that the government and every servant of the government possess, as
representative of the nation, a whole body of special rights, privileges or
prerogatives as against private citizens, and the extent of rights, privileges or
considerations which fix the legal rights and duties of one citizen towards
another. An individual in his dealings with the State does not, according to
French law; stand on the same footing as that on which he stands in dealing
with his neighbor.
Secondly, that the government and its officials should be independent of and
free from the jurisdiction of ordinary courts.
It was on the basis of these two principles that Dicey observed that Droit
Administratif is opposed to rule of law and, therefore, administrative law is
alien to English system. But this conclusion of Dicey was misconceived. Droit
Administratif, that is, administrative law was as much there in England as it
was in France but with a difference that the French Droit Administratif was
based on a system, which was unknown to English law. In his later days after
examining the things closely, Dicey seems to have perceptibly modified his
stand.
Module – 1 28
Despite its overall superiority, the French administrative law cannot be
characterized with perfection. Its glories have been marked by the persistent
slowness in the judicial reviews at the administrative courts and by the
difficulties of ensuring the execution of its last judgment. Moreover, judicial
control is the only one method of controlling administrative action in French
administrative law, whereas, in England, a vigilant public opinion, a watchful
Parliament, a self-disciplined civil service and the jurisdiction of administrative
process serve as the additional modes of control over administrative action.
By contrast, it has to be conceded that the French system still excels its
counterpart in the common law countries of the world.
Module – 1 29
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 as the rule-making power
delegated to it by the legislature, it is known as the rule-making action of the
administration or quasi-legislative action and commonly known as delegated
legislation.
Rule-making action of the administration partakes all the characteristics,
which a normal legislative action possesses. Such characteristics may be
generality, prospectivity and a behaviour that bases action on policy
consideration and gives a right or a disability. These characteristics are not
without exception. In some cases, administrative rule-making action may be
particularised, retroactive and based on evidence.
Module – 1 30
11. Grant of permit by Regional Transport Authority.
In A.K. Kraipak v. Union of India, the Court was of the view 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.
Module – 1 31
Thus broadly speaking, acts, which are required to be done on the subjective
satisfaction of the administrative authority, are called ‘administrative’ acts,
while acts, which are required to be done on objective satisfaction of the
administrative authority, can be termed as quasi-judicial acts. Administrative
decisions, which are founded on pre-determined standards, are called
objective decisions whereas decisions which involve a choice as there is no
fixed standard to be applied are so called subjective decisions. The former is
quasi-judicial decision while the latter is administrative decision. In case of
the administrative decision there is no legal obligation upon the person
charged with the duty of reaching the decision to consider and weigh,
submissions and arguments or to collate any evidence. The grounds upon
which he acts and the means, which he takes to inform himself before acting,
are left entirely to his discretion. The Supreme Court observed, “It is well
settled that the old distinction between a judicial act and administrative act
has withered away and we have been liberated from the pestilent incantation
of administrative action.
(iv) Ministerial action – A further distillate of administrative action is
ministerial action. Ministerial action is that action of the
administrative agency, which is taken as matter of duty imposed
upon it by the law devoid of any discretion or judgment. Therefore,
a ministerial action involves the performance of a definitive duty in
respect of which there is no choice. Collection of revenue may be
one such ministerial action.
DELEGATED LEGISLATION
One of the most significant developments of the present century is the growth
in the legislative powers of the executives. The development of the legislative
powers of the administrative authorities in the form of the delegated legislation
occupies very important place in the study of the administrative law. We know
that there is no such general power granted to the executive to make law it
only supplements the law under the authority of legislature. This type of
activity namely, the power to supplement legislation been described as
delegated legislation or subordinate legislation.
Module – 1 32
i) Certain emergency situations may arise which necessitate
special measures. In such cases speedy and appropriate action
is required. The Parliament cannot act quickly because of its
political nature and because of the time required by the
Parliament to enact the law.
ii) The bulk of the business of the Parliament has increased and it
has no time for the consideration of complicated and technical
matters. The Parliament cannot provide the society with the
requisite quality and quantity of legislation because of lack of
time. Most of the time of the Parliament is devoted to political
matters, matters of policy and particularly foreign affairs..
However the attitude of the jurists towards delegated legislation has not been
unanimous. The practice of delegated legislation was considered a factor,
which promoted centralization. Delegated Legislation was considered a
danger to the liberties of the people and a devise to place despotic powers in
few hands. It was said that delegated legislation preserved the outward show
of representative institutions while placing arbitrary and irresponsible power in
new hands. But the tide of delegated legislation was high and these protests
remained futile.
Module – 1 33
strong and the picture painted was so shocking that a high power committee
to inquire into matter was appointed by the Lord Chancellor. This committee
thoroughly inquired into the problem and to the conclusion that delegated
legislation was valuable and indeed inevitable. The committee observed that
with reasonable vigilance and proper precautions there was nothing to be
feared from this practice.
Under the constitution of India, articles 245 and 246 provide that the
legislative powers shall be discharged by the Parliament and State legislature.
The delegation of legislative power was conceived to be inevitable and
therefore it was not prohibited in the constitution. Further, Articles 13(3)(a) of
Module – 1 34
the Constitution of India lays down that law includes any ordinances, order by-
law, rule regulation, notification, etc. Which if found inviolation of fundamental
rights would be void. Besides, there are number of judicial pronouncements
by the courts where they have justified delegated legislation. For e.g.
In re Delhi Laws Act case, AIR 1961 Supreme Court 332; Vasantlal Magan Bhaiv.
State of Bombay, air 1961 SC 4; S. Avtar Singh v. State of Jammu and Kashmir, AIR
1977 J&K 4.
Module – 1 35
iii) The manner of making returns, and
v) Such other administrative details
In the case of this normal type of delegated legislation, the limits of the
delegated power are clearly defined in the enabling statute and they do not
include such exceptional powers as the power to legislate on matters of
principle or to impose taxation or to amend an act of legislature. The
exceptional type covers cases where –
An outstanding example of this kind is Section 7 of the Delhi Laws Act of 1912
by which the Provincial Government was authorized to extend, with
restrictions and modifications as it thought fit any enactment in force in any
part of India to the Province of Delhi. This is the most extreme type of
delegation, which was impugned in the Supreme Court in the Delhi Laws Act
case. A.I.R. 1951 S.C.332. It was held that the delegation of this type was invalid if
the administrative authorities materially interfered with the policy of the Act, by
the powers of amendment or restriction but the delegation was valid if it did
not effect any essential change in the body or the policy of the Act.
The bodies are empowered under the Act to frame bye-laws and regulations
for carrying on their administration.
There are five main grounds on which any bye-law may be struck down as
ultra vires. They are :
Module – 1 36
d) That it is uncertain ; and
e) That it is unreasonable.
Module – 1 37
Publication Act, 1893, S.I. provided for the use of this method. The Act
provided that notice of proposed 'statutory rules' is given and the
representations of suggestions by interested bodies be considered and acted
upon if proper. But the Statutory Instruments Act, 1946 omitted this practice in
spite of the omission, the Committee on Ministers Powers 1932, emphasized
the advantages of such a practice.
Module – 1 38
iv) it, directly or indirectly, ousts the jurisdiction of the courts of law;
v) it gives retrospective effect to any of the provisions in respect of
which the Constitution or the Act does not expressly confer any
such power;
vi) It is constitutional and valid;
vii) it involves expenditure from the Consolidated Fund of India or
the Public Revenues;
viii) its form or purpose requires any elucidation for nay reason;
ix) it appears to make some unusual or unexpected use of the
powers conferred by the Constitution or the Act pursuant to
which it is made; and
x) there appears to have been unjustifiable delay in its publication
on its laying before the Parliament.
The Committee of the first House of the People submitted a number of reports
and continues to do useful work. The Committee considered the question of
bringing about uniformity in the provisions of the Acts delegating legislative
powers. It made certain recommendations in its First report (March, 1954)
which it later modified in its Third Report (May, 1955) after noting the existing
divergent legislation in India. The following are the modified recommendations
1. That, in future, the Acts containing provisions for making rules, etc.,
shall lay down that such rules shall be laid on the Table as soon as possible.
2. That all these rules shall be laid on the Table for a uniform and total
period of 30 days before the date of their final publication.
But it is not deemed expedient to lay any rule on the Table before the date of
publication; such rule may be laid as soon as possible after publication. An
Explanatory Note should, however, accompany such rules at the time they are
so laid, explaining why it was not deemed expedient to lay these rules on the
Table of the House before they were published.
Module – 1 39
The usefulness of the Committee lies more in ensuring that the standards of
legislative rule-making are observed that in merely formulating such
standards. It should effectively point out the cases of any unusual or
unexpected use of legislative power by the Executive.
The matter may be discussed in the House during the debates or on special
motions.
The provisions for laying the rule, etc., are being made now practically
in every Act which contains a rule making provision. Such provisions are
enacted in the following form: -
(2) Every rule made under this section shall be laid, as soon as may
be, after it is made, before each House of Parliament while it is in session for
a total period of fourteen days which may be comprised in one session or in
the successive session immediately following, both Houses agree in making
any modification in the Rule or in the annulment of the rule. The rule
thereafter have effect only in such modified form or shall stand annulled, as
the case may be, so however that any such modification or annulment shall
Module – 1 40
be without prejudice to the validity of anything previously done under that
rule."
If the Parliamentary control is not effective it becomes necessary to
provide for certain procedural safeguards, which go to make the delegated
legislation ascertainable and accessible.
The fact that procedural requirements have far reaching effects, may
be made clear by just one example. Suppose the Railway authorities want to
relieve pressure of work of unloading goods during daytime at a station amidst
a big and brisk business center. The public wants a reduction in the traffic
jams due to heavy traffic because of unloading. The traffic authorities and
Railway authorities decide to tackle the problem effectively by making the rule
that the unloading be done during late hours of night. The railway authorities
make an order to this effect, without consulting interested bodies. Such rule
might cause many hardships e.g. –
Module – 1 41
ii) It may not be without risk to carry money from one place to
another during late hours of night. If safety measures are employed, that in
addition to the element of a greater risk, expenses would increase, adversely
affecting the margin of profits.
iii) The banking facilities may not be available freely during night.
iv) Additional staff may be necessary in various concerns for night
duty.
v) This business are loading and unloading during night may cause
inconvenience and disturbance in the locality.
Now infect of these difficulties another alternative which appears to be
desirable is better supervision of unloading and better regulation of traffic by
posting more police officers and stricter enforcement of traffic laws.
Provisions in the parent statute for consulting the interested parties
likely to be affected may, in such cases, avoid all these inconveniences, and
the Railway authorities may not act such a rule after they consult these
interests. A simple provision regarding consultation thus assumes importance.
But in case where the minister is vested with the discretion to consult these
bodies which he considers to be representative of the interests likely to be
affected or where he is to consult such bodies, if any, it is very difficult to
prove noncompliance with the procedural requirements.
Module – 1 42
various factors. They must take into consideration the whole scheme of
legislation and particularly evaluate the position of such provisions in their
relation with the object of legislation. The nature of the subject matter to be
regulated, the object of legislation, and the provisions as placed in the body of
the Act must all be considered carefully, so as to find out as to what was the
intention of the legislature. Much would depend upon the terms and scheme
of a particular legislation, and hence broad generalizations in this matter are
out of place.
Power of Parliament to repeal law Under the provision to clause (2) of Article
254, Parliament can enact at any time any law with respect to the same
matter including a law adding to, amending, varying or repealing the law so
made by the Legislature of the State,
Ordinarily, the Parliament would not have the power to repeal a law
passed by the State Legislature even though it is a law with respect to one of
the matters enumerated in the Concurrent List. Section 107 of the
Government of India Act, 1935 did not contain any such power. Art. 254 (2) of
the Constitution of India is in substance a reproduction of section 107 of the
Module – 1 43
1935 Act, the concluding portion whereof being incorporated in a proviso with
further additions.
Now, by the proviso to Art. 254 (2), the Indian Constitution has
enlarged the powers of Parliament and, under that proviso, Parliament can do
what the Central Legislature could not do under section 107 of the
Government of India Act, and can enact a law adding to, amending, varying or
repealing a law of the State when it relates to a matter mentioned in the
concurrent List. Therefore the Parliament can, acting under the proviso to Art.
254 (2) repeal a State Law.
While the proviso does confer on Parliament a power to repeal a law passed
by the State Legislature, this power is subject to certain limitations. It is limited
to enacting a law with respect to the same matter adding to, amending,
varying or repealing a law so made by the State Legislature. The law referred
to here is the law mentioned in the body of Art. 254 (2), It is a law made by the
State Legislature with reference to a matter in the Concurrent List containing
provisions repugnant to an earlier law made by Parliament and with the
consent to an earlier law made by Parliament and with the consent of the
President. It is only such a law that can be altered, amended, repealed under
the proviso.
Mahajan C.J. in Hari Shankar Bagla v. State of Madya Pradesh, A.I.R. 1954
S.C. 555 : (1955) 1.S.C.R. 380 at p. 388 observed :
"The Legislature cannot delegate its functions of laying down legislative policy
in respect of a measure and its formulation as a rule of conduct. The
Module – 1 44
legislature must declare the policy of the law and the legal principles which
are to control and given cases and must provide a standard to guide the
officials of the body in power to execute the law".
The guidance may be sufficient if the nature of things to be done and the
purpose for which it is to be done are clearly indicated. The case of Hari
Shankar Bagla v. State of Madhya Pradesh, A.I.R. 1954 S.C. 465: (1955) 1
S.C.R. 380 is an instance of such legislation.
The policy and purpose may be pointed out in the section conferring the
powers and may even be indicated in the preamble or else where in the Act.
Module – 1 45
Module – 1 46
MODULE –II
Module – 1 47
Contents
Pages
*Conceptual formulation
*Application of principles of natural justice to judicial,
*quasi-judicial and administrative proceedings
*Bias
*Right to hearing
*Ingredients of fair hearing
*Natural justice and Indian Constitution
*Effect of Failure of natural justice
Module – 1 48
*Constitutional Provisions
*Causes of disciplinary proceedings
*Types of Disciplinary Action
Module – 1 49
Though courts in India have developed a few effective parameters for
the proper exercise of discretion, the conspectus of judicial behavior still
remains halting, variegated and residual, and lacks the activism of the
American courts. Judicial control mechanism of administrative discretion is
exercised at two stages:
In certain situations, the statute though it does not give discretionary power to
the administrative authority to take action, may give discretionary power to
frame rules and regulations affecting the rights of citizens. The court can
control the bestowal of such discretion on the ground of excessive delegation.
i) That the authority is deemed not to have exercised its discretion at all.
ii) That the authority has not exercised its discretion properly.
i) That the authority is deemed not to have exercised its discretion at all
:-
Module – 1 50
Purtabpore Company Ltd. V. Cane Commissioner of Bihar,(AIR 1970 SC
1896) is a notable case in point. In this case the Cane Commissioner who had
the power to reserve sugarcane areas for the respective sugar factories, at the
dictation of the Chief Minister excluded 99 villages from the area reserved by
him in favor of the appellant-company. The court quashed the exercise of
discretion by the Cane Commissioner on the ground that the abdicated his
power by exercising it at the dictation of some other authority; therefore, it
was deemed that the authority had not exercised its discretion at all. Thus the
exercise of discretion or in compliance with instructions of some other person
amounts to failure to exercise the discretion altogether. It is immaterial that
the authority invested with the discretion itself sought the instructions.
ii) That the authority has not exercised its discretion properly This is an
all-embracing formulation developed by courts in India to control the
exercise of discretion by the administrative authority. Improper exercise of
discretion includes everything that English courts include in ‘unreasonable’
exercise of discretion and American courts include in ‘arbitrary and
capricious’ exercise of discretion. Improper exercise of discretion includes
such things as ‘taking irrelevant considerations into account’, ‘acting for
improper purpose’, ‘asking wrong questions’, ‘acting in bad faith’,
‘neglecting to take into consideration relevant factors’ or ‘acting
unreasonable’.
Module – 1 51
the plea of locus stand in challenging the administrative action. Justice P.N.
Bhagwati, who delivered the judgment of the Court, held:
Thus within the area of administrative discretion the courts have tried to fly
high the flag of Rule of Law which aims at the progressive diminution of
arbitrariness in the exercise of public power.
I. Abuse of Discretion.
Module – 1 52
Now a day, the administrative authorities are conferred wide discretionary
powers. There is a great need of their control so that they may mot be misused.
The discretionary power is required to be exercised according to law. When the
mode of exercising a valid power is improper or unreasonable there is an abuse
of power. In the following conditions the abuse of the discretionary power is
inferred: -
Module – 1 53
authority is required to exercise its powers reasonably. In a case
Lord Wrenbury has observed that a person in whom invested a
discretion must exercise his discretion upon reasonable
grounds. Where a person is conferred discretionary power it
should not be taken to mean that he has been empowered to do
what he likes merely because he is minded to do so. He is
required to do what he ought and the discretion does not
empower him to do what he likes. He is required, by use of his
reason, to ascertain and follow the course which reason directs.
He is required to act reasonably
In the following condition the authority is taken to have failed to exercise its
discretion and its decision or action will be bad.
Module – 1 54
Commissioner empowered to grant license for construction of
cinema theatres granted the license but later cancelled it on the
discretion of the Government. The cancellation order was
declared bad as the Police Commissioner did not apply his mind
and acted under the dictation of the Government.
No law can clothe administrative discretion with a complete finality, for the
courts always examine the ambit and even the mode of its exercise for the
angle of its conformity with fundamental rights.
The fundamental rights thus provide a basis to the judiciary in India to control
administrative discretion to a large extent. There have been a number of cases
in which a law, conferring discretionary powers, has been held violative of a
fundamental right. The following discussion will illustrate the cases of judicial
restraints on the exercise of discretion in India.
In State of West Bengal v. Anwar Ali, AIR 1952 SC 75. It was held that in so far
as the Act empowered the Government to have cases or class of offences tried
by special courts, it violated Article 14 of the Constitution. The court further
held the Act invalid as it laid down “no yardstick or measure for the grouping
Module – 1 55
either of persons or of cases or of offences” so as to distinguish them from
others outside the purview of the Act. Moreover, the necessity of “speedier
trial” was held to be too vague, uncertain and indefinite criterion to form the
basis of a valid and reasonable classification.
Under Article 19
Article 19 guarantees certain freedoms to the citizens of India, but they are not
absolute. Reasonable restrictions can be imposed on these freedoms under the
authority of law. They cannot be contended merely on executive action. The
reasonableness of the restrictions is open to judicial review. These freedoms
can also be afflicted by administrative discretion. Such cases can be examined
below.
Module – 1 56
unguided power on the Executive. The Gold (Control) Act, 1968, provided for
licensing of dealers in gold ornaments. The Administrator was empowered
under the Act to grant or renew licenses having regard to the matters, inter
alia, the number of dealers existing in a region, anticipated demand, suitability
of the applicant and public interest. The Supreme Court held that all these
factors were vague and unintelligible. The term ‘region’ was nowhere defined
in the Act. The expression ‘anticipated demand was vague one. The
expression ‘suitability of the applicant and ‘public interest’ did not contain any
objective standards or norms.
Where the Act provides some general principles to guide the exercise of the
discretion and thus saves it from being arbitrary and unbridled, the court will
uphold it, but where the Executive has been granted ‘unfettered power to
interfere with the freedom of property or trade and business, the court will
strike down such provision of law.
The property under Article 31(2) could be acquisitioned for a public purpose
only. The Executive could be made the sole judge to decide a public purpose.
No doubt, the Government is in best position to judge as to whether a public
purpose could be achieved by issuing an acquisition order, but it is a
justiciable issue and the final decision is with the courts in this matter. In
West Bengal Settlement Kanungo Co-operative Credit Society Ltd. V.
Bela Bannerjee,(AIR 1954 SC 170) the provision that a Government’s declaration
as to its necessity to acquire certain land for public purpose shall be conclusive
evidence thereof was held to be void. The Supreme Court observed that as
Article 31(2) made the existence of a public purpose a necessary condition of
acquisition, it is, therefore, necessary that the existence of such a purpose as a
fact must be established objectively and the provision relating to the
conclusiveness of the declaration of then Government as to the nature of the
purpose of the acquisition must be held unconstitutional.
The Courts have, however, attempted to construe the term public purpose
rather broadly; the judicial test adopted for the purpose being that whatever
furthers the general interests of the community as opposed to the particular
interests of the individual is a public purpose. The general tendency of the
Module – 1 57
Legislature is to confer the power of acquisition on the Executive in an
undefined way by using vague expressions such as “purposes of the State” or
“purposes of the Union”, so as to give wider latitude to the courts to uphold it.
Thus, we have seen in the above illustrations how the courts have used the
mechanism of fundamental rights to control the administrative discretion. In
fact fundamental rights are very potential instruments by which the Judiciary
in India can go a long way in warding off the dangers of administrative
discretion.
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:
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:
-
Under the second category, i.e., abuse of discretionary power, the following
instances may be considered: -
Module – 1 58
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 considerations;
6) where the authority imposes a condition patently unrelated to or
inconsistent with the purpose or policy of the expectation statute;
7) where in the exercise of the discretionary power, it acts mala
fide;
8) where the authority concerned acts unreasonably.
Besides the above grounds on which the exercise of discretionary powers can
be examined, a third major basis of judicial review of administrative action is
legitimate expectation, which is developing sharply in recent times. The
concept of legitimate expectation in administrative law has now, undoubtedly,
gained sufficient importance. It is stated that the legitimate expectation is the
latest recruit to a long list of concepts fashioned by the courts for the review of
administrative action and this creation takes its place besides such principles
as the rules of natural justice, unreasonableness, the fiduciary duty of local
authorities and in future, perhaps, the unreasonableness, the proportionality.
Legitimate expectation gives the applicant sufficient locus standi for judicial
review. The doctrine of legitimate expectation is to be confined mostly to right
Module – 1 59
of fair hearing before a decision, which results in negativing a promise, or
withdrawing an undertaking is taken. The doctrine does not give scope to
claim relief straightaway from the administrative authorities as no crystallized
right as such is involved. The protection of such legitimate does not require
the fulfillment of the expectation where an overriding public interest requires
otherwise. A case of legitimate expectation would arise when a body by
representation or by past practice aroused expectation, which it would be
within its powers to fulfill. The protection is limited to that extent and a
judicial review can be within those limits. A person, who bases his claim on
the doctrine of legitimate expectation, in the first instance, must satisfy that
there is foundation and thus he has locus standi to make such a claim. There
are stronger reasons as to why the legitimate expectation should not be
substantively protected than the reason as to why it should be protected. If a
denial of legitimate expectation in a given case amounts to denial of right
guaranteed or arbitrary, discriminatory unfair or biased, gross abuse of power
or violation of principles of natural justice, the same can be questioned on the
well known grounds attracting Article 14 but a claim based on mere legitimate
expectation without any thing more cannot ipso facto give a right to invoke
these principles. It can be one of the grounds to consider but the court must lift
the veil and see whether the decision is violative of these principles warranting
interference. It depends very much on the facts and the concept of legitimate
expectation which is the 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. It follows that the
concept of legitimate expectation is “ not the key which unlocks the treasury
of natural justice and it ought not to unlock the gate which shuts, the court out
of review on the merits”, particularly when the element of speculation and
uncertainly is inherent in that very concept. The courts should restrain
themselves and restrict such claims duly to the legal limitations.
Module – 1 60
Regional Development Authority as bad. In the instant case Regional
Development Authority issued an advertisement inviting applications for the
allotment of residential plots. In this process preference was given to the
employees of the Patna Regional Development Authority with out considering
the case of applicant petitioner, whereas Rules did not provide for any such
preferential allotment. The court held that allotment in favour of employees is
arbitrary. The applicant petitioner has legitimate expectations to be considered
for allotment.
T here are a large number of laws which charge the Executive with adjudicatory
functions, and the authorities so charged are, in the strict scene, administrative
tribunals. Administrative tribunals are agencies created by specific enactments.
Administrative adjudication is term synonymously used with administrative decision-
making. The decision-making or adjudicatory function is exercised in a variety of
ways. However, the most popular mode of adjudication is through tribunals.
Let us now study the evolution of the Administrative Tribunals with special reference
to Central Administrative Tribunal, State and Joint Administrative Tribunals, their
jurisdiction, powers and authority. The composition of the Tribunal and its
functioning will also be dealt with.
Module – 1 61
The growth of Administrative Tribunals both in developed and developing countries
has been a significant phenomenon of the twentieth century. In India also,
innumerable Tribunals have been set up from time to time both at the center and the
states, covering various areas of activities like trade, industry, banking, taxation etc.
The question of establishment of Administrative Tribunals to provide speedy and
inexpensive relief to the government employees relating to grievances on recruitment
and other conditions of service had been under the consideration of Government of
India for a long time. Due to their heavy preoccupation, long pending and backlog of
cases, costs involved and time factors, Judicial Courts could not offer the much-
needed remedy to the government servants, in their disputes with the government. The
dissatisfaction among the employees, irrespective of the class, category or group to
which they belong, is the direct result of delay in their long pending cases or cases not
attended properly. Hence, a need arose to set up an institution, which would, help in
dispensing prompt relief to harassed employees who perceive a sense of injustice and
lack of fair play in dealing with their service grievances. This would motivate the
employees better and raise their morale, which in turn would increase their
productivity.
The Supreme Court in 1980, while disposing of a batch of writ petitions observed that
the public servants ought not to be driven to or forced to dissipate their time and
energy in the courtroom battles. The Civil Service Tribunals should be constituted
which should be the final arbiter in resolving the controversies relating to conditions
of service. The government also suggested that public servants might approach fact-
finding Administrative Tribunals in the first instance in the interest of successful
administration.
The matter came up for discussion in other forums also and a consensus emerged that
setting up of Civil Service Tribunals would be desirable and necessary, in public
interest, to adjudicate the complaints and grievances of the government employees.
The Constitution (through 42nd amendment Article 323-A).
Module – 1 62
STRUCTURE OF THE TRIBUNALS
The Administrative Tribunals Act 1985 provides for the establishment of one Central
Administrative Tribunal and a State Administrative Tribunal for each State like
Haryana Administrative Tribunal etc; and Joint Administrative Tribunal for two or
more states. The Central Administrative Tribunal with its principal bench at Delhi and
other benches at Allahabad, Bombay, Calcutta and Madras was established on Ist
November 1985. The Act vested the Central Administrative Tribunal with
jurisdiction, powers and authority of the adjudication of disputes and complaints with
respect to recruitment and service matters pertaining to the members of the all India
Services and also any other civil service of the Union or holding a civil post under the
Union or a post connected with defense or in the defense services being a post filled
by a civilian. Six more benches of the Tribunal were set up by June, 1986 at
Ahmedabad, Hyderabad, Jodhpur, Patna, Cuttack, and Jabalpur. The fifteenth bench
was set up in 1988 at Ernakulam.
The Act provides for setting up of State Administrative Tribunals to decide the
services cases of state government employees. There is a provision for setting up of
Joint Administrative Tribunal for two or more states. On receipt of specific requests
from the Government of Orissa, Himachal Pradesh, Karnataka, Madhaya Pradesh and
Tamil Naidu, Administrative Tribunals have been set up, to look into the service
matters of concerned state government employees. A joint Tribunal is also to be set
up for the state of Arunachal Pradesh to function jointly with Guwahati bench of the
Central Administrative Tribunal.
Each Tribunal shall consist of Chairman, such number of Vice-Chairman and judicial
and administrative members as the appropriate Government (either the Central
Government or any particular State Government singly or jointly) may deem fit (vide
Sec. 5.(1) Act No. 13 of 1985). A bench shall consist of one judicial member and one
administrative member. The bench at New Delhi was designated the Principal Bench
of the Central Administrative Tribunal and for the State Administrative Tribunals.
The places where their principal and other benches would sit specified by the State
Government by Notification (vide Section 5(7) and 5(8) of the Act).
Module – 1 63
APPOINTMENTS
The Chairman, Vice-Chairman and every other members of a Central Administrative
Tribunal shall be appointed by the President and, in the case of State or joint
Administrative Tribunal(s) by the President after consultation with the Governor(s) of
the concerned State(s), (vide Section 6(4), (5) and (6), Act No. 13 of 1985).
But no appointment can be made of a Chairman, vice-chairman or a judicial member
except after consultation with the Chief Justice of India.
If there is a vacancy in the office of the Chairman by reason of his resignation, death
or otherwise, or when he is unable to discharge his duties / functions owing to
absence, illness or by any other cause, the Vice-Chairman shall act and discharge the
functions of the Chairman, until the Chairman enters upon his office or resumes his
duties.
TERMS OF OFFICE
The Chairman, Vice-Chairman or other member shall hold office for a term of five
years from the date on which he enters upon his office or until he attains the age of
a) Sixty five, in the case of Chairman or vice-Chairman,
b) Sixty-two, in the case of any other member, whichever is earlier.
RESIGNATION OR REMOVAL
They cannot be removed from office except by an order made by the President on the
ground of proven misbehavior or incapacity after an inquiry has been made by a judge
of the Supreme Court; after giving them a reasonable opportunity of being heard in
respect of those charges (vide Sec. 9(2). Act No. 13 of 1985).
The Chairman of the Central Administrative Tribunal shall be ineligible for further
employment under either Central or State government, but Vice-Chairman of the
Central Tribunal will be eligible to be the Chairman of that or any other State
Tribunal or Vice-Chairman of any State or Joint Tribunal(s).
The Chairman of a State or Joint Tribunal(s) will, however, be eligible for
appointment as Chairman of any other State or Joint Tribunals. The Vice-Chairman of
the State or Joint Tribunal can be the Chairman of the State Tribunal or Chairman,
Vice-Chairman of the Central Tribunal or any other State or Joint Tribunal. A
member of any Tribunal shall be eligible for appointment as the Chairman or Vice-
Module – 1 64
Chairman of such Tribunal or Chairman, Vice-Chairman or other member of any
other Tribunal.
Module – 1 65
the representation was made no order has been made. But an application to the
Tribunal has to be made within one year from the date of final order or rejection of
the application or appeal or where no final order of rejection has been made, within
one year from the date of expiry of six months period. The Tribunal. May, however
admit any application even after one year, if the applicant can satisfy the Tribunal that
he/she had sufficient cause for not making the application within the normal stipulated
time.
•= The tribunal consists of members and heads that may not possess
any background of law.
•= Tribunals do not rely on uniform precedence and hence may lead to arbitrary and
inconsistent decision.
Natural Justice
Meaning and Development
Module – 1 66
used natural justice as to imply the existence of moral principles of self
evident and unarguable truth. To justify the adoption, or continued
existence, of a rule of law on the ground of its conformity to natural
justice in this sense conceals the extent to which a judge is making a
subjective moral judgment and suggests on the contrary, an objective
inevitability.
Natural Justice used in this way is another name for natural law although
devoid of at least some of the theological and philosophical overtones and
implications of that concept. This essential similarity is clearly demonstrated
by Lord Esher M.R’s definition of natural justice as, “ the natural sense of
what right and wrong.” 1 ( Voinet v Barrett, (1885) 55, L.J. Q. B, 39, 41).
Greek thinkers laid the basis for natural law. The Greek philosophers
traditionally regarded law as closely to both justice and ethics.
The use of natural law ideas in the development of English law revolves
around two problems: the idea of the supremacy of law, and, in particular, the
struggle between common law judges and parliament for legislative
supremacy on one hand, and the introduction of equitable considerations of
“Justice between man and man” on the other. The first ended in a clear
victory for parliamentary supremacy and the defeat of higher law ideas; the
latter, after a long period of comparative stagnation, is again a factor of
considerable influence in the development of the law.
The concept of natural justice can be traced from Biblical Garden of Eden, as
also from Greek, Roman and other ancient cultures like Hindu. The Vedic
Indians too were familiar with the natural theory of law. The practice of
confining the expression natural justice to the procedural principles (that no
Module – 1 67
one shall be judge in his own case and both sides must heard) is of
comparatively recent origin and it was always present in one way or the other
form. The expression was used in the past interchangeably with the
expressions Natural Law, Natural enquiry, the laws of God, Sampan jus and
other similar expressions. (H.H. Marshall, Natural Justice 5 (1959) London)
CONCEPTUAL FORMULATION
In Spackman’s case, (Spackman V. Plumstead District Board of Works, (1885) 10 App case
229, 240). Earl of Selborne, L.C observed that no doubt in the absence of
special provisions as to how the person who is to decide is to proceed, the
law will imply no more than that the substantial requirements of justice shall
not be violated. He is not the judge in the proper sense of the word but he
must give the parties an opportunity of being heard before him and stating
their case and their view. There would be no decision within the meaning of
the statute, if there were anything of that sort done contrary to essence of
justice.
The courts took these procedural safeguards in the past among different
words. Conveying meaning i.e. the eternal justice or natural justice. The list
of the words is long which were as :
Substantial justice;
The essence of justice;
Fundamental justice;
Universal justice and
Rational justice etc.
Module – 1 68
So the term natural justice has very impressive ancestry and has been
retained all over the world with some modifications. The very basic thing,
which emerges from it, is. Fairness in the administration of justice, more
than any other legal principle is not susceptible to concise definition. It has a
different meaning in different countries. History and tradition shape and
distort it. To judge these divergent procedures according to a common
standard of fairness is therefore no easy matter. What fair means will surely
irritate governments and plague jurists. Fair hearing, some say it constitutes
as fifth freedom supplementing freedom of speech and religion, freedom from
want and fear. Robert Jackson, J., remains us that procedural fairness and
regularity are of indispensable essence of liberty.
The concept of natural justice is not fixed one but has been changing from
time, keeping its spirit against tyranny and injustice. Despite the many
appellations applied to it and the various meanings attributed to it, through the
ages, one thing remains constant. It is by its very nature a barrier against
dictatorial power and therefore has been and still is an attribute of an civilized
community that aspires to preserve democratic freedom. ( Rene Dussault, “Judicial
Review of Administrative Action in Quebec,” Can Bar Rev. 79 (1967). The concept of natural
justice is flexible and has been interpreted in many ways to serve the ends of
justice.
Thus the doctrine of natural justice is the result of a natural evolution. So let
us try to find out what does natural justice mean?
•=
Module – 1 69
(a) Law is the means, Justice is the end. Law may be substantive as well
as procedural.
(b) Natural Justice also aims at Justice. It, however, concerns itself only
with the procedure. It seeks to secure justice by ensuring procedural fairness.
It creates conditions for doing justice.
(c) Natural justice humanizes the Law and invests the Law with fairness.
(d) Natural Justice supplements the Law but can supplant the Law.
The natural justice principles in India are transmigration of common law to the
sub-continent during the British rule. Before the commencement of
constitution the courts in India insisted on fair hearing where punishments
were awarded under the statutory provisions and they demanded fair hearing,
even in statutory requirements. But the decision of the Privy Council in the
Shanker Sarup’s (28 1.A 203 P.C) case, held an order of distribution under
Section 295 CPC to be in the nature of administrative Act, though right of the
individual was affected. Similar other cases dealing with the orders of the
administrative officer were held administrative in character. Such decisions
subjected the working of the common law principle of hearing and this
tendency continued to shape the Indian law. The principle established in the
above cases clearly shows that the principles of natural justice were confined
to judicial proceedings.
The decision of the House of Lords in Ridge’s case and subsequent cases
has influenced most of the development of law in this respect in India. The
influence of Ridge’s case judgment has been of considerable and valuable
importance “in deciding the scope of the application of principles of natural
justice.”
Module – 1 70
In state of Bina Pani’s case (AIR 1967 S.C. 1259) the Supreme Court has tried to
abandon the traditional view of first holding an act judicial and then to observe the
principles of natural justice and stated:
In D.F.O South Kheri’s case, ( AIR 1973 S.C. 203) the court reiterated that
law must now be taken to be settled, that even in administrative proceedings,
which involve civil consequences, the doctrine of natural justice must be held
to be applicable.
Module – 1 71
There are two fundamental principles of Natural Justice. They are:
Doctrine of Bias.
One of the essential elements of judicial process is that administrative
authority acting in a quasi- judicial manner should be impartial, fair and free
from bias. Rules of judicial conduct, since early times, have laid down that the
deciding Officer should be free from any prejudices. Where a person, who
discharges a quasi-judicial function, has, by his conduct, shown that he is
interested, or appears to be interested, that will disentitle him from acting in
that capacity.
In this connection the Supreme Court pointed out that one of the fundamental
principles of natural justice is that in case of quasi-judicial proceedings, the
authority, empowered to decide the dispute between opposing parties must
be one without bias, by which is meant an operative prejudice, whether
conscious or unconscious towards one side or the other in the dispute. (Wade,
Administrative Law, Page 311, (1982) de Smith. Judicial Review of Administrative Action 151 (1980)).
No tribunal can be Judge in his own cause and any person, who sits in
judgment over the rights of others, should be free from any kind of bias and
must be able to bear an impartial and objective mind to the question in
controversy.
Bias and Mala fide. In case of mala fide, Courts insist on proof of mala fide while
as in case of bias, proof of actual bias is not necessary. What is necessary is that there
was “real likelihood” of bias and the test is that of a reasonable man. “ The reason
underlying this rule”, according to prof. M.P. Jain, is that bias being a mental
condition there are serious difficulties in the path of proving on a balance of
probabilities that a person required to act judicially was in fact biased. Bias is the
result of an attitude of mind leading to a predisposition towards an issue. Bias may
arise unconsciously. It is not necessary to prove existence of bias in fact, what is
necessary is to apply the test what will reasonable person think about the matter?
Module – 1 72
Further, justice should not only be done but seem to be done. Therefore, the existence
of actual bias is irrelevant. What is relevant is the impression which a reasonable man
has of the administration of justice.” (See M.P. Jain ‘ Evolving Indian administrative Law’, p. 78.)
Module – 1 73
Indian Courts also invariably followed the decision in Dimes’ case.
The Privy Council made a reference to this famous case in the case of
Vassilliadas.(AIR 1945 SC 38) .Thus a pecuniary interest, howsoever
insufficient, will disqualify a person from acting as a Judge.
The other case on the point is Manek Lal v. Prem Chand (AIR
1957 S.C. 425) Here the respondent had filed a complaint of professional
misconduct against Manek Lal who was an advocate of Rajasthan High
Court. The chief Justice of the High Court appointed bar council
tribunal to enquire into the alleged misconduct of the petitioner. The
tribunal consisted of the Chairman who had earlier represented the
respondent in a case. He was a senior advocate and was once the
advocate-General of the State. The Supreme Court held the view that
even though Chairman had no personal contact with his client and did not
remember that he had appeared on his behalf in certain proceedings, and
there was no real likelihood of bias, yet he was disqualified to conduct the
inquiry. He was disqualified on the ground that justice not only be done
but must appear to be done to the litigating public. Actual proof of
prejudice was not necessary; reasonable ground for assuming the
Module – 1 74
possibility of bias is sufficient. A Judge should be able to act judicially,
objectively and without any bias. In such cases what the court should see
is not whether bias has in fact affected the judgment, but 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.
The second principle of natural justice is audi alteram partem (hear the other
side) i.e. no one should condemned unheard. It requires that both sides
should be heard before passing the order. This rule insists that before
passing the order against any person the reasonable opportunity must be
given to him. This rule implies that a person against whom an order to his
prejudice is passed should be given information as to the charges against him
and should be given opportunity to submit his explanation thereto. 4 (See also
National Central Cooperative Bank v. Ajay Kumar, A.I.R. 1994 S.C. 39).
Module – 1 75
Ingredients of fair hearing
Module – 1 76
Firstly, the requirement of hearing may be spelt out of certain
fundamental rights granted by constitution.
Thirdly it has been reiterated over and over again that a quasi-
judicial body must follow principles of natural justice. But this gives rise
to another intricate question: what is quasi-judicial? Answer to this
question is not easy as no “ quasi-judicial” from “ administrative”. A
general test sometimes adopted for the purpose is that “ any person or
body having legal authority to determine questions affecting the rights of
subjects and having the duty to act judicially” acts in a quasi-judicial
manner. But it is not clearly defined as to what is meant by “acting
judicially.” This proposition is vague in the extreme; it is even a tautology
to say that the function is quasi- judicial if it is to be done judicially. How
is one to ascertain whether an authority is required to act judicially or
not? The statutes, it becomes a matter of implication or inference fro the
courts to decide, after reading a statute, whether the concerned authority
acting under it is to act judicially. In the absence of any such explicit
indication in a statute, it becomes a matter of implication or inference for
the courts to decide, after reading a statute, whether the concerned
authority is to act judicially or not. The courts make the necessary
inference from “the cumulative effect of the courts make the necessary
inference from “the cumulative effect of the nature of the right affected,
the manner of the disposal provided, the objective criteria to be adopted,
the phraseology use, the nature of the power conferred, of the duty
imposed on the authority and the other indication afforded by the statute.
“This prime facie is too broad a generalization, which is hardly adequate
or articulate to predicate the nature of a function or a body with any
certainty. The personality of a judge could make a substantial difference
in the end-result, for one judge may be more inclined to lean towards a
quasi-judicial approach by the administration in a particular context than
another judge.
Module – 1 77
norm, rather than an exception, in administrative process at the present-
day.
It is the general principle that all the evidence which the authority wishes to
use against the party, should be placed before the party for his comment and
rebuttal. If the evidence is used without disclosing it to the affected party, it
will be against the rule of fair hearing.
The extent and context and content of the information to be disclosed depend
upon the facts of each case.
Module – 1 78
each case. Where domestic enquiry is made by the employees, right of
cross examination is regarded as an essential part of the natural justice.
In the case disciplinary proceedings initiated by the Government against
the civil servants, the right to cross examination is not taken orally and
enquiry is only a fact finding one.
Hira Nath Mishra v. Rajendra Medical College, ( A.I. R 1973 S.C. 1260)
in this case some male students were charged of some indecent behaviour
towards some girl students. The accused male students were not allowed
to cross-examine the girl students. The refusal allow the accused male
students to cross examine the girl students was upheld and was not
treated as violation of natural justice because allowing them the right of
cross examination would have been embarrassing for the girl students.
The refusal was necessary for protecting the girl students from any
harassment later on.
Module – 1 79
Institutional Decision
Post decisional hearing may be taken to mean hearing after the decision
sometimes public interest demands immediate action and it is not found
practicable to afford hearing before the decision or order. In such
situation the Supreme Court insists on the hearing after the decision or
order. In short, in situations where prior hearing is dispensed with on the
ground of public interest or expediency or emergency the Supreme Court
insists on the post decisional hearing.
In Charan Lal Sadu V. Union of India the Supreme Court has held that
where a statute does not in terms exclude the rule of predecisional hearing
but contemplates a post decisional hearing amounting to a full review of
the original order on merits it would be construed as excluding the rule of
audi alteram partem at the pre-decisional stage. If the statute is silent with
regard o the giving of a pre-decisional hearing, then the administrative
action after the post decisional hearing will be valid.
Module – 1 80
justice, failure to give it would indubitably invalidate the exercise of
power and it cannot be read into the statute because to do so would be to
defeat the object and purpose of the exercise of the power, that past
decisional hearing is required to be given and if that is not done, the
exercise of the power would be vitiated. (Management of M/S M.S. Nally
Bharat Engineering Co. Ltd. v. State of Bihar 1990 S.C.C. 48)
Module – 1 81
whom the decision has been given to examine his right of appeal.
If reasons are not stated, the affected party may not be able to
exercise his right of appeal effectively.
Module – 1 82
Thus the first attempt to incorporate the American principle
(which includes principles of natural justice) in the Indian constitution
was failed. Later in the A.K. Gopalan’s case, (AIR 1950 S.C 27) Supreme
Court held that procedure established by law meant procedure
prescribed by the statute. Obviously it implies that law enacted by the
state need not be in conformity with the principles of natural justice. Law
in Art. 21 meant statute law and nothing more. In case of a procedure
prescribed by law it cannot be questioned on the ground that it violates
principles of natural justice. There is no guarantee that it will not enact a
law contrary to the principles of A learned author was prompted to
observe that this position of Art.21of the Indian constitution was more of
a statute justice land not natural justice.
The interpretation of Art. 21 given in the Gopalan case in fact placed the
liberty of the citizen at the mercy of the party in power. Natural justice supplies
the procedural omissions of a formulated law.
According to Jackson J.
Gopalan’s decision dominated the Indian scene for twenty eight years
till the decision of Supreme Court in the celebrated case of Monika
Gandhi’s which revolution the application rules of natural justice in
India. In the instant case, a writ petition was filed under Art. 32
challenging the impugned order interlaid amongst other grounds for
being impugned for denial of opportunity of being heard prior the
impoundment of passport. As per Maneka’s rationale, a procedure could
no more be a mere enacted or state prescribed procedure as laid down in
Gopalan’s but had to be fair, just and reasonable procedure. The most
notable and innovative holding in Maneka was that the principle of
reasonableness legally as well as philosophically is an essential element of
equality or non-arbitrariness and pervades Art. 14 like a boarding
omnipresence and the procedure contemplated by Art. 21 must stand the
test of reasonableness in Art. 14.
Bhagwatil J, for majority referring to audi alteram partem which mandates that
no one shall be condemned unheard, remarked:
Module – 1 83
an administrative bearing is regarded as essential requirement of fundamental
fairness and in England too it has been held that fair play in action demands
that before any prejudicial or adverse action is taken against a person he must
be given an opportunity to be heard.”
In one more case of the Mohinder Singh Gill, deserves attention due to
observation made by Krishna Iyer, J on the principles of natural justice. The
judicial history of natural justice in England and India has been remarkably
traced by Krishana Iyer, J in this case by observing that the natural justice in
no mystic testament of judgment juristic, but the pragmatic yet principled,
requirement of fair play in action as the norm of civilized justice- system and
minimum of good government-crystallized clearly in our jurisprudence by
catena of cases here and elsewhere. Further, Krishana Iyer observed in the
instant cases:
“The rules of natural justice are rooted in all legal systems, not any
new theology and are manifested in the twin principles…. while natural
justice is universally respected, the standards vary withy situations
contracting into a brief, even post-decisional opportunity, or expanding
into trial-type trappings…good administration demands fair play in
action and this simple desideratum is the foundation of natural justice.
The rules of natural justice are not rigid norms of unchanging contents. Each
of the two main rules embrace a number of sub rules, which may very in their
application according to the context. In the words of the Supreme Court, the
extent and application of the doctrine of natural justice cannot be imprisoned
within the straitjacket of rigid formula. 33 ( V.N. Shukla, The Constitution of India, 388 (-
1974).
Module – 1 84
Following Exceptions to Natural Justice
Module – 1 85
In Maneka Gandhi v. Union of India the Supreme Court observed that a passport
may be impounded in public interest without compliance with the principles of
natural justice but as soon as the order impounding the passport has been made, an
opportunity of post decisional hearing, remedial in aim, should be given to the
person concerned. In the case the court has also been held that “ public interest” is
a justiciable issue and the determination of administrative authority on it is not
final.
In England, for sometimes now, a question of some complexity which has been
cropping up before the courts time and again is: When an authority required observing
Module – 1 86
natural justice in making an order fails to do so, should the order made by it be
regarded as void or a voidable?
Generally speaking, a voidable order means that the order was legally valid at its
inception, and it remains valid until it is set aside or quashed by the courts, that is, it
has legal effect up to the time it is quashed. On the other hand, a void order is no
order at all from its inception; it is a nullity and void ab initio. The controversy
between void and voidable is making the England administrative law rather
complicated. Before we go further, it may be necessary to enter into a caveat at this
place with respect to a void ab initio, the uncertainties of administrative law are such
that in most cases a person affected by such an order cannot be sure whether the order
is really valid or not until the court decided the matter. Therefore, the affected person
cannot just ignore the order treating it as a nullity. He has to go to a Court for an
authoritative determination as to the nature of the order is void.
For example, an order challenged as a nullity for failure of natural justice gives rise
to the following crucial question: Was the authority required to follow natural justice?
As the discussion in the previous pages shows, there is quite a good deal of
uncertainty on both these points.
Meagerly, J., brings out this point clearly
In India, by and large, the Indian case law has been free from the void/voidable
controversy and the judicial thinking has been that a quasi-judicial order made
without following natural justice is void and nullity.
Module – 1 87
The most significant case in the series is Nawabkhan v. Gujarat S. 56 of the Bombay
Police Act, 1951 empowers the Police Commissioner to extern any undesirable person
on certain grounds set out therein. An order passed by the commissioner on the
petitioner was disobeyed by him and he was prosecuted fro this in a criminal court.
During the pendency of his case, on a writ petition filed by the petitioner, the High
Court quashed the internment order on the ground of failure of natural justice. The
trial court then acquitted the appellant. The government appealed against the acquittal
and the High Court convicted him for disobeying the order. The High Court took the
position that the order in question was not void ab initio; the appellant had disobeyed
the order much earlier than date it was infringed by him; the High Courts own
decision invalidating the order I question was not retroactive and did not render it
non-ext or a nullity from its inception but it was invalidate only from the date the
court declared it to be so by its judgment. Thus, the arguments adopted by the high
Court were consistent with the view that the order in question was void able and not
void.
However, the matter came in appeal before the Supreme Court, which approached the
matter from a different angle. The order of internment affected a Fundamental Right)
art. 19) Of the appellant in a manner which was not reasonable. The order was thus
illegal and unconstitutional and hence void. The court ruled definitively that an order
infringing a constitutionally guaranteed right made without hearing the party affected,
where hearing was required, would be void ab initio and ineffectual to bind the parties
from the very beginning and a person cannot be convicted non observance of such an
order. “Where hearing is obligated by statute which affects the fundamental right of a
citizen, the duty to give the hearing sound in constitutional requirement an failure to
comply with such a duty is fatal. The appellant could not this be convicted for flouting
the police commissioners order which encroached upon his Fundamental Right and
had been made without due hearing and was thus void ab initio and so was never
really inexistence.
Nawabkhan raises some critical issues. A few general commons may, however, be
made at this place Much for the confusion in Administrative Law India can be
avoided if the rule is accepted that an order made ought to have been observed, is void
ab intio. A person disobeys an administrative order at his own risk, for if he disobeys
an order, and the court later holds it as not void, then he suffers the consequence, for
whether an order is void or not can only be settled conclusively by a court order
Accepting the void ness rule will make authorities take care in passing orders after
fulfilling all the necessary formalities. It will also denude the courts of discretion
whether to set aside an order or not in case of violation of natural justice. However,
there may be some situations when illation of a void order may not be excusable, e.g.
when a prisoner escapes from thereon thinning that the administrative order under
which he has been detained is void.
It is an area where no general principle can be held applicable to all the varying
situations because what has to be reconciled here is public interest with private rights.
In most of the cases i.e. staying the implementation of the order challenged until the
court is able to decide the question on merits.
Module – 1 88
DISCIPLINARY ACTION AGAINST
PUBLIC SERVANTS: ITS SIGNIFICANCE
Module – 1 89
A distinction needs to be drawn between disciplinary action of civil or criminal
procedure. The former deals with the fault committed in office violating, the internal
regulations or rules of the administration while the latter is concerned with the
violation of law to be dealt with by civil and criminal courts. The following matters
are covered in the Conduct Rules. More strictness is observed in those services where
more discretion is involved:
a) Embezzlement
b) Falsification of accounts not amounting to misappropriation of money
c) Fraudulent claims (e.g. T.A.)
d) Forgery of documents
e) Theft of Government property
f) Defrauding Government
g) Bribery
h) Corruption
i) Possession of disproportionate assets
j) Offences against other laws applicable to Government Servants.
a) Disobedience of orders
b) Insubordination
c) Misbehaviour
Module – 1 90
i) with superior officers
ii) with colleagues
iii) with subordinates
iv) with members of public
d) Misconduct
Disciplinary action may be informal or formal. Informal disciplinary action may mean
assignment to a less desirable work, closer supervision, loss or withholding of
privileges, failure of consultations in relevant matters, rejection of proposals or
recommendation. It may includes curtailing of his/her authority and diminishing
his/her responsibility The reason for taking informal disciplinary action may be that
offences are too slight, or too subtle, or too difficult to prove, to warrant direct and
formal action.
Formal disciplinary action follows where the offence is serious and can be legally
established. In such cases the penalties that are imposed on a member of the service
are;
1) Minor Penalties
a) Censure
b) Withholding of promotions
c) Recovery from pay of the whole or part of any loss caused to
Government or to a company, association or body of individuals. And
d) Withholding of increments of pay.
2) Major Penalties
Module – 1 91
In very serious cases of offence, even judicial proceedings against the offender may
also be launched.
Usually following provisions are made either in the Constitution or in the statute to
check the misuse of power to take disciplinary actions :
Article 309 provides that the Acts of the appropriate legislature may regulate the
recruitment and conditions of service of the persons appointed to public services and
posts in connection with the affairs of the Union or of any State. It shall be competent
for the President or Governor as the case may be, to make rules regulating and
recruitment and conditions of service of public service until provisions are made by
an Act of the appropriate legislature.
According to Article 310, every person who is a member of a defence service or the
civil service of the Union or an All India Service or holds any post connected with
defense 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 a
civil post under a state holds office during the pleasure of the Governor of the State.
Notwithstanding that a person holding a civil post under the Union or a State holds
office during the pleasure of the President or the Governor of the State, any contract
under which a person, (not being a member of a defence service or of an All India
Service or of a civil service of the Union or a State) is appointed under the
Module – 1 92
Constitution to hold such a post may, if the President or the Governor deems it
necessary in order to secure the services of persons having special qualifications,
provide for the payment to him of compensation, if before the expiration of an agreed
period that post is abolished or he is required to vacate that post.
Module – 1 93
ISSUES AND PROBLEMS
v) Inconsistency
Disciplinary action should be consistent under the same offence. Otherwise it leads to
favoritism, nepotism and corruption.
Module – 1 94
Module-III
Edwin. C. Bliss
Module – 1 95
Contents Pages
Module – 1 96
Judicial Control of Administrative Action
In the context of increased powers for the administration, judicial control has become
an important area of administrative law, because Courts have proved more effective
and useful than the Legislature or the administration in the matter. “It is an accepted
axiom” observed Prof. Jain & Jain that “the real kernel of democracy lies in the
Courts enjoying the ultimate authority to restrain all exercise of absolute and arbitrary
power. Without some kind of judicial power to control the administrative authorities,
there is a danger that they may commit excess and degenerate into arbitrary
authorities, and such a development would be inimical to a democratic Constitution
and the concept of rule of law. “
Judiciary has been given wide powers for controlling the administrative action. The
Courts have been given power to review the acts of the legislature and executive
(administration) and declare them void in case they are found in violation of the
provisions of the Constitution.
(A) Constitutional;
(B) Statutory;
(C) Ordinary or Equitable.
Module – 1 97
Judicial review, in short, is the authority of the Courts to declare void the acts
of the legislature and executive, if they are found in the violation of the
provisions of the Constitution. Judicial Review is the power of the highest
Court of a jurisdiction to invalidate on Constitutional grounds, the acts of other
Government agency within that jurisdiction.
The doctrine of judicial review has been originated and developed by the
American Supreme Court, although there is no express provision in the
American Constitution for the judicial review. In Marbury v. Madison the
Supreme Court made it clear that it had the power of judicial review.
The Constitution of India expressly provides for judicial review. Like U.S.A.,
there is supremacy of the Constitution of India. Consequently, an Act passed
by the legislature is required to be in conformity with the requirements of the
Constitution and it is for the judiciary to decide whether or not the Act is in
conformity with the Constitutional requirements and if it is found in violation of
the Constitutional provisions the Court has to declare it unconstitutional and
therefore, void because the Court is bound by its oath to uphold the
Constitution.
Article 13 (1) provides that all laws in force in the territory of India immediately
before the commencement of the Constitution of India, in so far as they are
inconsistent with the provision of Part III dealing with the fundamental rights
shall, to the extent of such inconsistency, be void. Article 13 (2) provides the
State Shall not make any law which takes away or abridges the fundamental
rights and any law made in contravention of this clause shall, to the extent of
the contravention, be void.
Article 245 makes it clear that the legislative powers of Parliament and of the
State Legislatures are subject to the provisions of the Constitution.
Parliament may make laws for the whole or any part of the territory of India
and the legislature of State may make laws for the whole or any part of the
State. No law made by Parliament shall be deemed to be invalid on the
ground that it would have been extra-territorial operation. The State
Legislature can make law only for the State concerned and, therefore, the law
made by the state Legislature having operation outside the State would be
beyond its competence and, therefore ultra vires and void.
Module – 1 98
The doctrine of ultra vires has been proved very effective in controlling the
delegation of legislative function by the legislature and for making it more
effective it is required to be applied more rigorously. Sometimes the Court’s
attitude is found to be very liberal.
Supreme Court has held that the legislature delegating the legislative power
must lay down the legislative policy and guideline regarding the exercise of
essential legislative function, which consists of the determination of legislative
policy and its formulation as a rule of conduct. Delegation without laying down
the legislative policy or standard for the guidance of the delegate will amount
to abdication of essential legislative function by the Legislature. The
delegation of essential legislative function falls in the category of excessive
delegation and such delegation is not permissible.
The power of judicial review controls not only the legislative but also the
executive or administrative act. The Court scrutinizes the executive act for
determining the issue as to whether it is within the scope of the authority or
power conferred on the authority exercising the power. For this purpose the
ultra vires rules provides much assistance in the Court. Where the act of the
executive or administration is found ultra virus the Constitution or the relevant
Act, it is declared ultra virus and, therefore, void. The Courts attitude appears
to be stiffer in respect of the discretionary power of the executive or
administrative authorities. The Court is not against the vesting of the
discretionary power in the executive, but it expects that there would be proper
guidelines or normal for the exercise of the power. The Court interferes when
the uncontrolled and unguided discretion is vested in the executive or
administrative authorities or the repository of the power abuses its
discretionary power.
The judicial review is not an appeal from a decision but a review of the
manner in which the decision has been made. The judicial review is
concerned not with the decision but with the decision making process.
The Supreme Court has expressed the view that in the exercise of the power
of judicial review the Court should observe the self-restraint and confine itself
the question of legality. Its concern should be:
Module – 1 99
extents of the duty to act fairly vary from case to case. The aforesaid grounds
may be classified as under:
(i) Illegality
(ii) Irrationality
(iii) Procedural impropriety.
Mala fide exercise of power is taken as abuse of power : Mala fides may be
taken to mean dishonest intension or corrupt motive. In relation to the
exercise of statutory power it may be said to comprise dishonesty (or fraud)
and malice. A power is exercised fraudulently. If its repository intends to
achieve an object other than that for which he believes the power to have
been conferred. The intention may be to promote another public interest or
private interest. The burden to prove mala fide is on the person who wants
the order to be quashed on the ground of mala fide.
It is concerned not with the merit of a decision but with the manner in which
the decision was made. The court will see that the decision making body acts
fairly. It will ensure that the body acts in accordance with the law. Whenever
its act is found unreasonable and arbitrary it is declared ultra vires and,
therefore, void. In exercising the discretionary power the principles laid down
in article 14 of the Constitution have to be kept in view. The power must be
only be tested by the application of Waynesburg’s principle of reasonableness
but must be free from arbitrariness not affected by bias or actuated by mala
fides.
Module – 1 100
•= In several cases, the Supreme Court has observed that the
jurisdiction under Articles 32, 136, 226 and 227 cannot be excluded
even where the action of the administration is made final by the
Constitutional amendment.
•= Judicial review does not concern itself with the merits of the Act
or action but of the manner in which it has been done and its effect
on constitutionalism. It, thereby, creates harmony between
fundamental laws namely, the Constitution and the executive action or
legislative Act.
The Supreme Court of India has played significant role in the Constitutional
development. The Scope of judicial review in India is sufficient to make the
Supreme Court a powerful agency to control the activities of both the
legislature and the executive.
In Indira Nehru Gandhi v. Raj Narain, ( A.I.R. 1975 S.C. 2299) the Supreme Court
has held that even where the Constitution itself provides that the action of the
administrative authority shall be final. The judicial review provided under
Articles 32, 136, 226 and 227 is not barred. Judicial review is the part of the
basic structure of the Constitution.
Finality clause may be taken to mean a section in the statute, which bars the
jurisdiction of the ordinary Courts. The modern legislative tendency is to
insert such clause to preclude the Courts from reviewing the law. On account
of such tendency the danger of infringing the rights of the individuals is
increasing. The rule of law requires that the aggrieved person should have
right to approach the court for relief and, therefore, Courts do not appear to
have accepted the Court or ouster clause in its face value and have evolved
Module – 1 101
several rules to waive such clauses for providing justice to the aggrieved
person.
In India the position on the finality clause is not well settled. It is extremely
complex issue. For this purpose the judicial review may be divided into two
categories-
The judicial review available under article 32, 136 226 and 227 is taken as
Constitutional mode of judicial review, 1.e. the judicial review available under
Articles 32, 136, 226, 227 cannot be excluded by the finality clause contained
in the statute and expressed in any languages. Any statute or ordinary laws
cannot take the jurisdiction of the Court under article 32, 136, 226 and 227 as
the Constitution of India provides them. Thus, any ordinary law cannot bar
the jurisdiction of the Supreme Court under Article 32 and 136 and of the High
Court under Articles 226 and 227.
In Keshava Nanda Bharti v. State of Kerala, ( A.I.R. 1973 S.C. 1461) the Supreme
Court has held the Parliament has power to amend the Constitution but it
cannot destroy or abrogate the basic structure or framework of the
Constitution. Article 368 does not enable Parliament of abrogate or take away
Fundamental right or to completely alter the fundamental features of the
Constitution so as to destroy its identity. Judicial review therefore it cannot be
taken away.
In Indra Nehru Gandhi v. Raj Narain, the validity of Clause (4) of Article 329 –
A inserted by the Constitution (39 the Amendment ) Act, 1975 was challenged
on the ground that it destroyed the basic structure of the Constitution. The
said Clause (4) provided that notwithstanding any Court order declaring the
election of the Prime Minister or the Speaker of Parliament to be void, it would
continue to be void in all respects and any such order and any finding on
which such order was based would be deemed always to have been void and
of no effect. This clause empowered Parliament to establish by law some
Module – 1 102
authority or body for deciding the dispute relating to the election of the Prime
Minister or Speaker. It provides that the decision of such authority or body
could not be challenged before the Court. This clause was declared
unconstitutional and void as being violation of free and fair election,
democracy and rule of law, which are parts of the basic structure of the
Constitution. In case judicial review, democracy, free and fair election and
rule of law were included in the list of the basic features of the Constitution.
Consequently any Constitutional amendment, which takes away, any of them
will be unconstitutional and therefore void.
Implied exclusion of the jurisdiction of the Civil Courts is usually given effect
where the statute containing the exclusion clause is a self contained Code
and provides remedy for the aggrieved person or for the settlement of the
disputes.
2. Ultra vires Administrative action : The exclusion clause does not bar
the jurisdiction of the Court in case where the action of the authority is ultra
vires. If action is ultra vires the powers of the administrative authority; the
exclusion clause does not bar the jurisdiction of the Courts. The rule is
applied not only in the case of substantive ultra vires but also in the case of
procedural ultra vires. If the authority acts beyond its power or jurisdiction or
violates the mandatory procedure prescribed by the statute, the exclusion or
finality clause will not be taken as final and such a clause does not bar the
jurisdiction of the Court.
Module – 1 103
jurisdiction also arises where the authority exercising the jurisdiction is not
properly constituted.
4. Non compliance with the provisions of the statute : the exclusion clause
will not bar the jurisdiction of the Court if the statutory provisions are not
complied with. Thus if the provisions of the statute are not complied with, the
Court will have jurisdiction inspite of the exclusion or finality clause.
6. When finality clause relates to the question of fact and not of law :
Where the finality clause makes the finding of a Tribunal final on question of facts,
the decision of the Tribunal may be reviewed by the Court on the question of law.
(a) Under article 32, the Supreme Court has been empowered to enforce
fundamental rights guaranteed under Chapter III of the Constitution.
(b) Under article 226 concurrent powers have been conferred on the
respective High Courts for the enforcement of fundamental rights or any other
legal rights. It empowers every High Court to issue to any person or authority
including any Government, in relation to which it exercises jurisdictions,
directions, orders or writs including writs of habeas corpus,. mandamus,
prohibition, quo warranto and certiorari.
Module – 1 104
In a writ petition, High Court cannot go into the merits of the controversy. For
example, in matters of retaining or pulling down a building the decision is not
to be taken by the court as to whether or not it requires to be pulled down and
a new building erected in its place.
(c) Under Article 136 the Supreme Court has been further empowered, in
its discretion, to grant special leave to appeal from any judgment, decree,
determination, sentence or order by any Court or tribunal in India. Article 136
conferred extraordinary powers on the Supreme Court to review all such
administrative decisions, which are taken by the administrative authority in
quasi-judicial capacity.
The right to move the Supreme Court in itself is a guaranteed right, and
Gajendragadkar, J., has assessed the significance of this in the following
manner:
First, if the statute for a provision thereof ultra vires any action taken there
under by a quasi-judicial authority which infringes or threatens to infringe a
fundamental right, will give rise to the question of enforcement of that right
and petition under Article 32 will lie.
Module – 1 105
Under Article 32 of the Constitution the following person may complain of the
infraction of any fundamental rights guaranteed by the Constitution:
Any person including corporate bodies who complains of the infraction of any
of the fundamental rights guaranteed by the Constitution is at liberty to move
the Supreme Court except where the languages of the provision or the nature
of the right implies the inference that they are applicable only to natural
person.
The right that could be enforced under article 32 must ordinarily be the rights
of the petitioner himself who complains of the infraction of such rights and
approaches the Court for relief. An exception is as held in the Calcutta Gas
Case,( AIR 1962 SC 1044) that in case of habeas corpus not only the man who is
or detained in confinement but any person provided he is not an absolute
stranger, can institute proceeding to obtain a writ of habeas corpus for the
purpose of liberation.
The Constitution of India assigns to the Supreme Court and the High Courts
the role of the custodian and guarantor of fundamental rights. Therefore,
where a fundamental right is involved, the courts consider it to be their duty to
provide relief and remedy to the aggrieved person. In matters other than the
fundamental rights, generally the jurisdiction of the courts to grant relief is
considered to be discretionary. The discretion is, however, governed by the
broad and fundamental principles, which apply to the writs in England.
It was held in one of the decided case ( A.I.R 1964 S.C. 1013; Supreme Court Employees
that a petition under Art 32 would
Welfare Association verses union of India A.I.R 1990 334)
be barred by res judicata if a petition on the same cause of action filed before
the High Court was earlier rejected.
The Court went further and said that the principle of res judicata did not apply
to successive writ petitions in the Supreme Court and the High Court under
Arts 32 and 226 respectively. The Court observed that a petition based on
fresh or additional grounds would not be barred by res judicata. A petition
under Artic 32, however, will not lie against the final order of the Supreme
Court under art 32 of the constitution. It was held that a petition would not lie
under Art 32 challenging the correctness of an order of the Supreme Court
passed on a special leave petition under Art 136 of the Constitution setting
aside the award the award of enhanced solarium and interest under the land
acquisition Act, 1894.
Module – 1 106
When statutory remedies are available for determining the disputed questions
of fact or law, such questions cannot be raised through a petition under Art
32.
The fact that the right to move the Supreme Court for the enforcement of
fundamental rights under Art 32 is a fundamental right should not bind us to
the reality that such a right in order to be meaningful must be used
economically for the protection of the fundamental rights. However, in recent
years, with the expansion of the scope of art 21 of the Constitution and the
growth of public interest litigation, the threshold enquiry regarding the violation
of fundamental rights has become rare. Article 32 has almost become a site
for public interest litigation where fundamental rights of the people are
agitated. It is under this jurisdiction that the human rights jurisprudence and
environmental jurisprudence have developed.
The Court has given such expansive interpretation of art 21 of the Constitution
that the question, which seemed to be alien to Art 32, became integral part of
it. The right to life and personal liberty came to comprehend such diverse
aspects of human freedom such as the right to environment, or the right to
gender justice or the right to good governance that questions such as whether
the ordinance making power was exercised to defraud the Constitution or
whether judges were appointed in such a way as to enhance the indepenence
of the judiciary or who and how should a social service organization undertake
the giving of Indian children in adoption to foreigners became matters
involving fundamental rights. Since the rights to live guaranteed by Art 21
included the right to live with dignity the right to unpolluted environmental
jurisprudence has emerged. With the growth of the public interest litigation,
which we will discuss separately, Art 32 has become an important site for the
vindication of various group human rights. The Court has even incorporated
some of the directive principles of state policy within the compass of the
fundamental rights. For example, it declared that the right to primary
education was a fundamental right. The Supreme Court entertained a writ
petition under Art 32 seeking the implementation of the Consumer Protection
Act and appointment of district forums as required there under. The Court
Module – 1 107
also entertained a petition which said that due to large backlogs, the under-
trail prisoner remained for an inordinately long periods in jail.
Article 226 empowers the High Courts to issue writs in the nature of habeas
corpus, mandamus, prohibition, certiorari and quo warranto or any of them for
the enforcement of any of the fundamental rights or for any other purpose. It
has been held that the words ‘for any other purpose’ mean for the
enforcement of any statutory or common law rights. The jurisdiction of the
High Courts under Art 226 is wider than that of the Supreme Court under Art
32. The jurisdictions under Art 32 and 226 are concurrent and independent of
each other so far as the fundamental rights are concerned. A person has a
choice of remedies. He may move either the Supreme Court under Art 32 or
an appropriate High Court under Art 226. If his grievance is that a right other
than a fundamental right is violated, he will have to move the High Court
having jurisdiction. He may appeal to the Supreme Court against the decision
of the High Court. After being unsuccessful in the High Court, he cannot
approach the Supreme Court under Art 32 for the same cause of action
because as said earlier, such a petition would be barred by resjudicata.
Similarly, having failed in the Supreme Court in a petition filed under Art 32,
he cannot take another chance by filing a petition under Art 226 in the High
Court having jurisdiction over his matter because such a petition would also
be barred by res judicata.
These rules of judicial restraint have been adopted by our courts from the
similar rules developed by the English courts in the exercise of their
jurisdiction to issue the prerogative writs.
Where a civil court had dealt with a matter and the High Court had disposed
of an appeal against the decision of the civil court, a writ petition on the same
matter could not be entertained. This was not on the ground of res judicata as
much as on the ground of judicial discipline, which required that in matters
relating to exercise of discretion, a party could not be allowed to take chance
in different forums. Withdrawal or abandonment of a petition under Art
Module – 1 108
226/227 without the permission of the court to file a fresh petition there under
would bar such a fresh petition in the High Court involving the same subject
matter, though other remedies such as suit or writ petition under Art 32 would
be open. The principle underlying Rule 1 of Order 23 of the CPC was held to
be applicable on the ground of public policy.
It is a general rule of the exercise of judicial discretion under Art 226 that the
High Court will not entertain a petition if there is an alternative remedy
available. The alternative remedy however, must be equally efficacious.
Where an alternative and efficacious remedy is provided, the Court should not
entertain a writ petition under Art 226. Where a revision petition was pending
in the High Court challenging the eviction degree passed against a tenant by
the court of the Small Causes, it was held that the High Court should not have
entertained a writ petition filed by the cousins of the tenants. The petitioners
should have exhausted the remedies provided under the Code of Civil
procedure before filing the writ petition. Petitions were dismissed on the
ground of the existence of an alternative remedy in respect of elections to
municipal bodies or the Bar Council.
When a law prescribes a period of limitation for an action, such an action has
to be brought within the prescribed period. A court or a tribunal has no
jurisdiction to entertain an action or proceeding after the expiration of the
limitation period. It is necessary to assure finality to administrative as well as
judicial decisions. Therefore, those who sleep over their rights have no right
to agitate for them after the lapse of a reasonable time. Even writ petitions
under Art 226 are not immune from disqualification on the ground of delay.
Although the law of limitation does not directly apply to writ petitions, the
courts have held that a petition would be barred if it comes to the court after
the lapse of a reasonable time. This is however, not a rule of law but is a rule
of practice. Where the petitioner shows that illegality is manifest in the
impugned action, and explains the causes of delay, the delay may be
condoned.
The jurisdiction of the High Court under Art 226 is very vast and almost
without any substantive limits barring those such as territorial limitations.
Although the jurisdiction of the High Court is so vast and limitless, the courts
have imposed certain limits in their jurisdiction in order to be able to cope with
the volume of litigation and also to avoid dealing with questions, which are not
capable of being answered judicially. There are three types of limitations:
Module – 1 109
The Supreme Court has held that the extra ordinary jurisdiction should be
exercised only in exceptional circumstances.
It was held that the High Court was not justified in going into question of
contractual obligations in a writ petition. It was held that the jurisdiction under
Art 226 should be used most sparingly for quashing criminal proceedings.
The High Court should interfere only in extreme cases where charges ex facie
do not constitute offence under the Terrorist and Destructive Activities Act
(TADA) It should not quash the proceedings where the application of the Act
is a debatable issue.
Power to Review Its Own Judgments
It was held that the High Court had power to review its own judgments given
under Art 226. This power, however, must be exercised sparingly and in
cases, which fell within the guidelines provided by the Supreme Court.
However, review by the High Court of its own order in a writ petition on the
ground that two documents which were part of the record were not considered
by it at the time of the issuance of the writ under Art 226, especially when the
documents were not even relied upon by the parties in the affidavits filed
before the High Court was held to be impermissible.
On the death of the petitioner during the pendency of his writ petition against
removal from service, the petition abates. The successor cannot continue the
petition.
If the petitioner were guilty of mala fide and calculated suppression of material
facts, which if disclosed, would have disentitled him to the extra ordinary
remedy under Art 226 or in any case materially affected the merits of the
case, he would be disentitled to any relief. Where the writ petitioners had
themselves invoked the review jurisdiction of the competent officer under the
Evacuee Interest (Separation) Act, 1950, to their advantage and to the
disadvantage of the appellant, it was held that the petitioner could not be
heard to say that the review orders of the authority were void for want of
jurisdiction.
Module – 1 110
The right to move the court for the enforcement of the fundamental rights be
suspended during the emergency. This is the second exception to the
availability of constitutional remedies.
Under Art 359 of the Constitution the President may declare that the right to
move any court for the enforcement of such of the fundamental rights as may
be mentioned in the order and all proceedings pending in any court for the
enforcement of those rights shall remain suspended for the period during
which the Proclamation is in force or for such shorter period as may be
specified in the Order. By the Constitution (Forty- fourth) Amendment Act,
1978, the words ‘except Arts 20 and 21’ were added to the above Article. It
means that the right to move any court for the enforcement of any of the
fundamental rights except the rights guaranteed by Art 20 and the President
may suspend 21 during the proclamation of emergency.
The jurisdiction under Art 227 is narrower than that under Art 226 because
while under art 226, the High Court can quash any administrative action,
under Art 227, it can act only in respect of judicial or at the most quasi- judicial
actions. By giving wider meaning to the word ‘tribunal’ in this Article as well
as in Art 136, the courts have included various administrative authorities
within the power of superintendence. Clause (4) of art 227, however,
excludes the tribunals constituted by or under any law relating to the armed
forces from the supervisory jurisdictions of the High Courts. The court martial
proceedings under the Military law are not within the power of
superintendence of the High Court, though they are subject to judicial review
under Art 226.
Articles 132 to 135 of the Constitution deal with ordinary appeals to the
Supreme Court in constitutional, civil and criminal matters. Article 136 deals
with a very special appellate jurisdiction conferred on the Supreme Court.
Under this provision the Supreme Court has power to grant in the discretion,
special leave to appeal from
Module – 1 111
The scope of the Article is very extensive and it invests the Court with a
plenary jurisdiction to hear appeals. Since the Court has been empowered to
hear appeals from the determination or orders passed by the tribunal
including all such administrative tribunals and bodies which are not Courts in
the strict sense, this has become most interesting aspect of this provision
from the point of administrative law. Under the provision, the Court may hear
appeals from any tribunal even where the legislature declares the decision of
a tribunal final.
“ It is extremely desirable that there should be some forum correct misuse of power
by such bodies. To leave these bodies outside the place of any judicial control would
be to create innumerable tiny despots, which could negative the rule of law. The
ambit of Supreme Court’s jurisdiction under Article 136 is in some respects broader
than that under Article 32. Article is confined to the enforcement of fundamental
rights only whereas Article 136 is not so. The appellate jurisdiction of the court gives
more scope to the Court to intervene with ad judicatory bodies and provides grounds
of judicial control. But from another point of view the jurisdiction of the Court under
Article 136 is narrower than that under Article 32. Article 136 is available only in
cases of tribunals while Article 32 can be invoked when any authority whatsoever
infringes a fundamental right. It has been found that the Court has been extremely
reluctant to intervene with quasi- judicial bodies. As regard the points of difference
between the writ jurisdiction of the High Courts under Article 226 any appellate
jurisdiction of the Supreme Court under Article 136, it can be said that a high court
can issue a writ to any authority whether quasi-jurisdiction or administrative;
whereas the supreme Court under Article 136 can hear appeal only from a court or
tribunal. In this respect writ jurisdiction of a High Court is broader than the
appellate scope of the Supreme Court under Article 136. But from another point of
view the scope of Article 226 is narrower than Article 136. The Supreme Court can
interfere with a decision of a tribunal on wider form than the High Court in its writ
jurisdiction, are not so flexible it does not enter into questions of facts while there is
no restriction on the powers of the Supreme Court.”
(1) The Court has imposed certain limitations upon its own powers under
Article 136, e.g., it has laid down that the power is to be exercised sparingly
Module – 1 112
and in exceptional cases only. The power shall be exercised only where
special circumstances are shown to exist.
(2) Ordinarily, the Supreme Court would refuse to entertain appeal under
Article 136 from the order of an inferior tribunal where the litigant has not
availed himself of the ordinary remedies available to him by law, e.g., a
statutory right of appeal or revision or where he has not appealed from the
final order of an Appellate Tribunal from the decision of the inferior tribunal.
This may be allowed only in exceptional cases e.g., breach of the principles of
natural justice by the order appeal to the Supreme Court is on a point, which
could not have been decided in the appeal under ordinary law.
(3) The reserve power of the court cannot under Article 136 be
exhaustively defined but it is true that the Court has acted arbitrarily or has not
given a fair deal to the litigant, will not be handicapped in the exercise of its
findings of facts or otherwise.
(4) It is quite plain that the Supreme Court reaches the conclusion that the
tribunal or the Court has acted arbitrarily or has not given a fair deal to the
litigant, will not be handicapped in the exercise of its findings of facts or
otherwise.
(5) The Supreme Court would not permit a question to be raised before it
for the first time, if the same has not been raised before the tribunal. But
where the question raised for the first time involves a question of law and it
arose on admitted facts, then the court may allow the same to be argued
before it.
The court again said that the point was neither raised in the written statement
filed by the appellant in the trail Court nor in the grounds of appeal filed by him
in the appellate court cannot be canvassed before the Supreme Court for the
first time on appeal by special leave.
(6) In an appeal under this provision, the Supreme Court will not interfere
with the award of a Tribunal unless some erroneous principle has been
invoked or some important piece of evidence has been overlooked or
misapplied.
Module – 1 113
administrative tribunals has been restored and accordingly the power of
superintendence and supervision of the High Courts over them exists as
before.
Firstly, where it could quash orders of inferior court or tribunal, but the court
under Article 226 may quash the order as well as issue further directions in
the matter.
Secondly, Under Article 227 the power of interference was limited to seeing
that the tribunal function with in the limits of its authority .
Thirdly, the power under Article 227 will only be exercised where the party
affected moves the court, while the superintending power under Article 227
could be exercised at the instance of High Court itself.
In exercising the supervisory power under Article 227, the High Court does
not act as an appellate tribunal. It did not use to review to reweigh the
evidence upon which the determination of the inferior tribunal purported to be
based.
B) Statutory Review.
i) Statutory appeals. There are some Acts, which provide for an appeal
from statutory tribunal to the High Court on point of law.
e.g. Section 30 Workmen’s Compensation act, 1923.
ii) Reference to the High Court or statement of case. There are several
statutes, which provide for a reference or statement of case by an
administrative tribunal to the High Court. Under Section 256 of the
Income-tax Act of 1961 where an application is made to the Tribunal by
the assessee and the Tribunal refuses to state the case the assessee
may apply to the High Court and if the High Court is not satisfied about
the correctness of the decision of the Tribunal, it can required to
Tribunal to state the case and refer it to the Court.)
Module – 1 114
person under specific statutes against the administration. The ordinary courts
in exercise of the power provide the ordinary remedies under the ordinary law
against the administrative authorities. These remedies are also called
equitable remedies. This includes:
i) Injunction
ii) Declaratory Action
iii) Action for damages.) In some cases where wrong has been done to a
person by an administrative act, declaratory judgments and injunction may be
appropriate remedies. An action for declaration lies where a jurisdiction has
been wrongly exercised. Or where the authority itself was not properly
constituted. Injunction s issued for restraining a person to act contrary to law
or in excess of its statutory powers. An injunction can be issued to both
administrative and quasi-judicial bodies. Injunction is highly useful remedy to
prevent a statutory body from doing an ultra vires act, apart from the cases
where it is available against private individuals e.g. to restrain the commission
or torts, or breach of contract or breach of statutory duty.
Before discussing these remedies let us find out what is the meaning of
equity.
Meaning of Equity
(1) Injunction
Module – 1 115
An injunction is a preventive remedy. It is a judicial process by which one who
has invaded or is threatening to invade the rights of another is restrained from
continuing or commencing such wrongful Act.
In India, the law with regard to injunctions has been laid down in the specific
Relief Act, 1963.
Injunction may be prohibitory or mandatory.
Module – 1 116
Declaration may be taken as a judicial order issued by the court declaring
rights of the parties without giving any further relief. Thus a declaratory decree
declares the rights of the parties. In such a decree there is no sanction, which
an ordinary judgment prescribes same sanctions against the defendant. By
declaring the rights of the parties it removes the existing doubts about the
rights and secures enjoyment of the property. It is an equitable remedy. Its
purpose is to avoid future litigation by removing the existing doubts with
regard to the rights of the parties. It is a discretionary remedy and cannot be
claimed as a matter of right.
WRITS
WRIT OF HABEAS CORPUS
The personal liberty will have no meaning in a constitutional set up if the writ
of habeas corpus is not provided therein. The writ is available to all the
aggrieved persons alike. It is the most effective means to check the arbitrary
arrest by any executive authority. It is available only in those cases where the
restraint is put on the person of a man without any legal justification.
Module – 1 117
to punish the official guilty for illegal confinement of the detenu. Nor can it be
used for devising a means to secure damages.
An application for habeas corpus can be made by any person on behalf of the
prisoner as well as by the prisoner himself, subject to the rules and conditions
framed by various High Courts.
Module – 1 118
4. Under Article 226 a petition for habeas corpus would lay not only
where he is detained by an order of the State Government but
also when another private individual detains him.
(2) The application for the grant of the writ of habeas corpus
ordinarily should be by the husband or wife or father or
son of the detenu. Till a few years back the writ of
habeas corpus could not be entertained if a stranger files
it. But now the position has completely changed with the
pronouncements of the Supreme Court in a number of
cases. Even a postcard written by a detenu from jail or
by some other person on his behalf inspired by social
objectives could be taken as a writ-petition.
Module – 1 119
rejected by the High Court, a fresh petition can be filed to
Supreme Court under Article 32.
(5) All the formalities to arrest and detention have not been
complied with and the order of arrest has been made
mala fide or for collateral purpose. When a Magistrate
did not report the arrest to the Government of the
Province as was required under Section 3(2) of the
Punjab Safety Act, 1947, the detention was held illegal.
Where the detaining authority did not apply his mind in passing the order of
detention, the court will intervene and issue the order of release of the detenu.
Vague and indefinite grounds of detention.__ where the detaining authority
furnishes vague and indefinite grounds, it entitles the petitioner to release.
The Court has consistently shown great anxiety for personal liberty and
refused to dismiss a petition merely on the ground that it does not disclose a
prima facie case invalidating the order of detention. It has adopted the liberal
attitude in view of the peculiar socio-economic conditions prevailing in the
country. People in general are poor, illiterate and lack financial resources. It
would therefore be not desirable to insist that the petitioner should set out
clearly and specifically the ground on which he challenges the order of
detention.
Module – 1 120
writ of habeas corpus will be available to the people against any wrongful
detention.
WRIT OF MANDAMUS
Mandamus in England is “neither a writ of course nor a writ of right, but that it
will be granted if the duty is in the nature of public duty and specially affects
the right of an individual provided there is no other appropriate remedy.
The Court laid down that public law remedy mandamus can be availed of
against a person when he is acting in a public capacity as a holder of public
office and in the performance of a public duty. It is not necessary that the
person or authority against whom mandamus can be claimed should be
created by a statute. Mandamus can be issued against a natural person if he
is exercising a public or a statutory power of doing a public or a statutory duty.
Module – 1 121
(iii) That the infringement has been owing to non-performance of the
corresponding duty by the public authority;
(iv) That the petitioner has demanded the performance of the legal duty by
the public authority and the authority has refused to act:
(v) That there has been no effective alternative legal remedy.
The applicant must show that the duty, which is sought to be enforced,
is owed to him and the applicant must be able to establish an interest
the invasion of which has been given rise to the action.
Where the duty is not mandatory but it is only discretionary, the writ of
mandamus will not be issued. The principles are illustrated in Vijaya Mehta v.
State(AIR 1980 Raj.207) There a petition was moved in the high Court for directing
the state Government to appoint a Commission to inquire into change in
climate cycle, flood in the State etc. Refusing to issue the writ, the Court
pointed out that under Section 3 of the Commission of Inquiry Act, the
Government is obligated to appoint a commission if the Legislature passes a
resolution to that effect.
Mandamus was issued to compel the government to fill the vacant seats in a
Medical College as Article 41 of the Constitution, which is a directive principle
of State policy, includes the right to medical education.
Module – 1 122
In Bhopal sugar Industries Ltd. V. income Tax Officer, Bhopal, (AIR 1961 SC 182)
it was held by the supreme Court that, where the Income Tax Officer had
virtually refused to carry out the clear and unambiguous directions which a
superior tribunal like the Income tax appellate Tribunal had given to him by its
final order in exercise of its appellate power in respect of an order of
assessment made by him, such refusal is in effect a denial of justice, and is
furthermore destructive of one of the basic principles in the administration of
justice based on as it is the hierarchy of Courts. In such a case a writ of
mandamus should issue ex-debits justifiable to compel the Income-tax Officer
to carry out the directions given to him by the Income-tax Appellate Tribunal.
The High Court will be clearly in error if it refused to issue a writ on the ground
that no manifest injustice has resulted from the order of the Income-tax Officer
in view of the error committed by the tribunal itself in its order. Such a view is
destructive of one of the basic principles of the administration of justice.
Thus we find that the Court will not tolerate the omission of mandatory duties
by the police authority and it would compel the authority by the writ of
mandamus to do what it must.
When an original legislation by the Union or State exceeds its legislative orbit
and injuries private interests, the owner of such interests can have a
mandamus directing the States not to enforce the impugned law “against the
petitioners in any manner whatsoever.” The duty of this writ becomes more
onerous as it attempts to face different phases and types of ultra vires
administrative action, whether with regard to internment or election, taxation
or license fees, evacuee property or dismissal of public officers.
The relief by way of the writ of mandamus is discretionary and not a matter of
right. The Court on any of the following grounds may refuse it:
1. The Supreme Court has held in Daya v. Joint Chief Collector (AIR
1962 SC1796), that where the act against which mandamus is sought has
been completed, the writ if issued, will be in fructuous. On the same
principle, the Court would refuse a writ of mandamus where it would be
meaningless, owing to lapse or otherwise.
Who may apply for mandamus? __It is only a person whose rights have been
infringed who may apply for mandamus. It is interesting to note that the rule
of locus stand has been liberalized by the Supreme Court so much as to
Module – 1 123
enable any public-spirited man to move the court for the issue of the writ on
behalf of others.
(a) That the duty is public. In this connection an important case, Ratlam
Municipality v. Vardhi Chand (AIR 1980 SC 1622) came to be decided by the
Supreme Court in 1980, in which it compelled a statutory body to exercise its
duties to the community. Ratlam Municipality is a statutory body. A provision
in law constituting the body casts a mandate on the body “ to undertake and
make reasonable and adequate provision” for cleaning public streets and
public places, abating all public nuisances and disposing of night soil and
rubbish etc. The Ratlam Municipality neglected to discharge the statutory
duties.
(b) That it is a duty enforced by rules having the force of law. Thus
In short, mandamus will be issued when the Government or its officers either
overstep the limits of the power conferred by the statute, or fails to comply
with the conditions imposed by the statute for the exercise of the power.
Module – 1 124
WRIT OF CERTIORARI
Certiorari is an original proceeding in the superior Court. It has its origin in the
court of issue and therefore the petition in India is to be filed in the High Court
under Article 226 or before the Supreme Court under Article 32 of the
Constitution.
Against whom it can be issued : As regards the question against whom the writ
can be issued, it is well settled that the writ is available against nay judicial or
Module – 1 125
quasi-judicial authority, acting in a judicial manner. It is also available to any
other authority, which performs judicial function and acts in a judicial manner.
Any other authority may be Government itself. But the conditions allied with it
are that Government acts in a judicial manner and the issue is regarding the
determination of rights or title of a person. Previously the question was in
doubt whether it was available against Central and Local Governments. The
majority of judgment is there, when the grant of certiorari against the
Government has been denied. The Madras High Court in 1929 and again in
1940 in Chettiar v. Secretary to the Government of Madras(ILR1940 Mad.205.)
held that a writ of certiorari would not lie against Madras Government.
The Assam High Court has held that the writ of certiorari will be issued to an
authority or body of persons who are under a duty to act judicially. It will not
be available against the administrative order or against orders of non-statutory
bodies.
Necessary conditions for the issue of the Writ : When any body persons
(1) Want of jurisdiction : The Supreme Court has stated in Ebrahim Abu
Bakar v. Custodian- General of Evacuee Property(111952 SCJ 488), that want of
jurisdiction may arise from.
Module – 1 126
(3) Upon the existence of some facts collateral to the actual
matter, which the Court has to try, and which is the conditions
precedent to the assumption of jurisdiction by it.
It may be added that jurisdiction also depends on
There have been a good number of cases in Indian Administrative Law where
the use of jurisdiction has been corrected through the writ of certiorari. Thus
the orders of tribunals which did not wait even for 15 minutes to hear a party
and which resorted to its own theories to assess the premises of people and
acted under the influence of political considerations, have been quashed.
The Court does not interfere in the cases where there is a pure exercise of
discretion, and which is not arbitrary if it is done in good faith. They do not
ignore the legislative intention in the statute which might give a wide aptitude
of powers to the administrative authority or the social needs, which demand
the bestowal of some wider jurisdiction, or the historical circumstances under
which a certain tribunal got exclusive jurisdiction of a particular subject-matter.
(2) Violation of Natural Justice The next ground for the issue of writ of
certiorari is the violation of natural justice and has a recognized place in
Indian legal system as discussed in the earlier part of the reading material.
(3) Fraud there are no cases in India where certiorari has been asked on
account of fraud. The cases are found in British Administrative law where on
the ground of fraud the Court has granted the writ of certiorari. The superior
Courts have an inherent jurisdiction to set aside orders of convictions made
by inferior tribunals if they have been procured by fraud or collusion a
jurisdiction that now exercised by the issue of certiorari to quash Where fraud
is alleged, the Court will decline to quash unless it is satisfied that the fraud
was clear and manifest and was instrumental in procuring the order
impugned.
(4) Error of law apparent on the face of record. “An error in decision or
determination itself may also be amenable to a writ of certiorari but it must be
a manifest error apparent on the face of the proceeding e. g., when it is based
on clear ignorance or disregard of the provision of law.” In other words; it is a
patent error, which can be corrected by certiorari but not a mere wrong
decision. (T. C. Basappa v. T. Nagappa AIR1954 SC 440). It was for the first time when
the Supreme Court issued the writ of certiorari on the only ground that the
decision of the election tribunal clearly presented a case of error of law, which
was apparent on the face of the record. The error must be apparent on the
face of the records.
Module – 1 127
WRIT OF QUO WARRANTO
Definition and Nature. The term quo warranto means “by what authority.”
Whenever any private person wrongfully usurps an office, he is prevented by
the writ of quo warranto from continuing in that office.
The basic conditions for the issue of the writ are that the office must be public,
it must have been created by statute or Constitution itself, it must be of a
substantive character and the holder of the office must not be legally qualified
to hold the office or to remain in the office or he has been appointed in
accordance with law.
The Court may refuse to grant a writ of quo warranto if it is vexatious or where
the petitioner is guilty of larches, or where he has acquiesced or concurred in
the very act against which he complains or where the motive of the relater is
suspicious.
As to the question that can apply for writ to quo warranto, it can be stated that
any private person can file a petition for this writ, although he is not personally
aggrieved in or interested in the matter.
Ordinarily, delay and lashes would be no ground for a writ of quo warranto
unless the delay in question is inordinate.
The remedy under this petition will go only to public office private bodies the
nature of quo warranto will lie n respect of any particular office when the office
satisfies the following conditions:
Module – 1 128
Another instance of granting the writ of quo waarrnto is where a candidate
becomes subject to a disqualification after election or where there is a
continuing disqualification.
In cases of office of private nature the writ will not lie. In Jamalpur Arya Samaj
Sabha v. Dr. D. Rama, (AIR 1954 Pat 297) the High Court of Patna refuse to issue
the writ of quo warranto against the members of the Working Committee of
Bihar Raj Arya Samaj Pratinidhi Sabha- a private religious association. In the
same way the writ was refused in respect of the office of a doctor of a hospital
and a master of free school, which were institutions of private charitable
foundation, and the right of appointment to offices therein was vested in
Governors who were private an don’t public functionary.
It will not lie for the same reason against the office of surgeon or physician of
a hospital founded by private persons. Similarly, the membership of the
Managing Committee of a private school is not an office of public nature;
therefore writ of quo warranto will not lie.
In Niranjan Kumar Goenka v. (AIR 1973 Pat 85) The University of Bihar,
Muzzafarpur the Patna High Court held that writ in the nature of quo warranto
cannot be issued against a person not holding a public office.
When the office is abolished no information in the nature of quo warranto will
lie.
Module – 1 129
An individual who does it out of concern for public interest initiates it. But after
having initiated it, once the Court admits a matter, it no longer remains the
concern only of the person who has initiated it.
For example, Sheela Barse, a journalist, had initiated a PIL on behalf of the
children who were languishing in remand homes. The respondents were the
State governments who prolonged the litigation by not filing their affidavits in
time. Sheela Barse had to rush from her home in Bombay to Delhi to attend
the Supreme Court every time a date was fixed for a hearing. Exasperated
with the willful delay caused by the State Governments, which was not
adequately checked by the Court, when threatened to withdraw the petition.
Although her frustration was understandable, the court could not allow her to
withdraw the petition. Even if she withdrew from the matter, the Court could
continue to examine the contentions made by her in the petition and deliver
the orders. Although a person may be accorded standing to bring a public
interest matter in Court, such a person cannot withdraw proceedings on the
ground that she was disassociating herself from that matter. Justice
Venkatachaliah (as he then was) speaking for himself and Ranganath Misra J
(as he then was) observed that:
Although the courts have been liberal in conceding locus standi to public-
spirited citizens to espouse petitions involving public interest, such public
interest litigation has got to be constrained by considerations of feasibility as
well as propriety. The constraints of feasibility restrain the courts from over
admitting matters, which might go beyond its resources to deal with. The
consideration of propriety persuades the courts from not undertaking issues,
which are better, dealt with by the other co-ordinate organs of the government
such as the legislature or the executive.
While this may be true, as far as popular perception is concerned, the truth, in
a deeply vital sense, is that if certain infringement of law, injury to public
interest, public loss due to official apathy, inaction or manipulation or
dereliction of duty as ordained by the authoritative rules or statutes—which
are co relatable to public interest, being offensive to or destructive of it, will all
fall within the PIL jurisdiction and judgment given in such cases, in view of
their impact and end-result or even visibility in forms of reduction or
elimination of the “original sin” are often categorized as pronouncements
Module – 1 130
belonging to the area of the “ judicial activism”. Some of the areas where so-
termed judicial activism, emanating from PIL, has been in evidence cover
subjects like environment pollution, social ills__ like dowry death/bride
burning, bonding labour, child labour, custodial death police torture
(Bhagalpur blinding case) and other forms of atrocities on prisoners/jail
inmates, non-payment on the part of Ministers/Prime Ministers for private use
of public (Air force) air crafts, public compensations, dereliction or abnegation
of essential statutory duties by public Institutions/corporations or official
bodies. There have been cases where other individual fundamental rights as
enshrined in Part III of the Constitution have formed part of PIL as they had
under public repercussions. Such PIL cases may be taken directly to
Supreme Court where constitutional infringement is involved__ private, i.e.,
individual rights included. They can also be taken up in High Courts.
It’s Rationale
Usually, the courts take cognizance of a case when the person affected
makes complaint. This is the question of locus standi, that is, whether a
person not involved or affected in any case has any legal justification or
ground to take up someone else’s case in the constitution on others behalf.
The courts were reluctant to accept or admit such cases. But in the early 80s
(or may be a little earlier), the Supreme Court made a relaxation of this
principle and started accepting genuine and appropriate cases even through
complainant was someone different from the person affected. Of course, the
admissions done only after a very strict scrutiny of the points involved, the
motive or motivation of the complainant and the purpose, which the case, if
decided, would serve. It is only after a full satisfaction of the court that such a
case is accepted as a PIL.
There are many reasons, which dictate the rationale for PIL. In a country like
ours, where:
(1) Poverty is abysmal.
(2) Illiteracy is acute.
(3) Society is case ridden.
(4) Backwardness is widespread,
(5) Fear of the high and might is deep
(6) Three M’s (money, muscles and mind) have a sway
(7) Communications system is poor,
(8) Judicial process is cumbersome and costly, and
(9) Justice is denied through delay.
Module – 1 131
powerful and brutal). Fighting the government can never cross the mind of
majority of our people__ as being possible, feasible, desirable or profitable.
The only way such a situation can be tackled is if some public-spirited men
take up cudgels on their behalf and bring up before law courts cases of law
infringement or non-implementation on statutory provisions affecting
adversely people or public. The alternative is that the courts suo moto take
up some such cases either on the basis of reports, communications or other
verifiable evidences. As of now, the courts are well disposed towards this
form or course of litigation. They do not or would not reject such a course
outright but would take cognizance, even if ultimately they way as well
dispose of them or discuss them on good and sufficient grounds.
The criticism is based on a highly elitist approach and proceeds from a blind
obsession with the rites and rituals sanctified by an out-moded Anglo-Saxom
jurisprudence.
This aroused the judicial conscience of others. Justice fazal Ali, sitting with
Justice S. S. Venkataramiah in the same year referred to the whole gamut of
PLIL and the courts’ jurisdiction to a five Judges Bencdh- sensing the
importance and relevance of the new reality. Infect, one of the questions
formulated was:
Now, it is no longer in doubt. Even a post card received from a far away place
from an unknown man can e treated ass a petition (so goes the report) if it
contains valid points worthy of being taken cognizance by the Court. Time
have changed, approaches have changed and so have the Courts’ systems –
though they are still bogged down in perhaps avoidable rituals which make for
delay, add to cost and dilute justice at times. The gradual erosion in
principles and values in public life since Nehru and Shastri era in India have
brought into sharp focus the constitutional mandate and Supreme Court of
India, arousing public interest in the on-going debate over the intentions
behind Constitutional provision. It was being widely felt and publicly
perceived that the declining values, lack of access to social justice and judicial
system, States’ arbitrariness, corrupt practices, attack on rights, grossly
deviant social and economic activities, and murder of moral mores cannot
make India an honest, progressive and a prosperous society.
Module – 1 132
PIL as a Tool for Access of Poor man to Justice
No less a person than the former Chief Justice of India, A.M Ahmadi, had
once described the Supreme Court as the world’s powerful court because of
its wide-ranging, vast jurisdiction. Apart from its original, appellate, civil
criminal and advisory jurisdictions, it has the power to entertain petitions even
from ordinary people who otherwise cannot approach it due to financial and a
host of other constraints. In the Fertilizer Corporation Manager Union v.
Union of India case, the eminent jurist V.R. Krishna Iyer, the initiator of this
innovative process of PIL, described law as “ a social auditor and this audit
function can be put into action only when someone with real public interest
ignites the jurisdiction of the Court”.
In the same vein, the former Chief Justice P.N Bhagwati, picking up the
thread from where Iyer left it, propounded in S.P. Gupta’s case, “the court has
to innovate new methods and devise new strategies for the purpose of
providing access to justice to large masses of people who are denied their
basic human rights, the only way in which this can be done is by entertaining
writ petitions and even letters from public spirited citizens seeking judicial
redress on behalf of those who have suffered a legal wrong or an injury”. At
last, the problem of providing justice to millions of helpless and hapless men
got recognition PIL fast became one of the most effective and powerful
instruments of justice for protecting the weak, the deprived the prosecuted be
they women in protective custody, children in juvenile institutions under trial
prisoners in jails, unorganized workman, landless labourers, slum and
pavement dwellers or people belonging to schedule castes/scheduled tribes.
It is the PIL which exposed the brutality of Bhagalpur blinding, merciless
exploitation of bonded labour, river (Jamuna) pollution through industrial
effluents, environmental degradation, health hazard issues, education
capitation rackets and so on.
Not remaining confined to righting the wrongs alone, judicial activism has
made its presence felt by entering areas traditionally believed to be in the
domains of legislature and executive. For instance, the apex judiciary can ask
for the records based on which the president and the Governors may have
reached their ‘subjective satisfaction’ with regard to, say, failure of
constitutional machinery in a state. This, in effect, means that such decisions
can be challenged on various grounds like malafides, extraneous
considerations, and unreasonableness. Governance, a clear executive
function, is now a good subject of judicial activism.
Module – 1 133
Again, certain other constitutional provisions, such as the pleasure of the
president contained in articles 310, 311 and 312 of the constitution, as well as
section 18 of Army Act, which deal with civil services and armed forces
respectively, have been brought under judicial control through the ‘creative
interpretation’ of articles 14 and 19 of the constitution. The recent
“santusti”case is also a case in point. If only establishes the fact that if the
constitution provides for any absolute power, it is judiciary’s own authority of
judicial review, to say the least. Though such review attempts cannot be
branded as “grossly undemocratic”, critics maintain that the courts, ordained
as a judicial body, cannot at the same time be looked to as a “general heaven
for reform movements”. It cannot, even so, be gainsaid that the need and
desirability of judicial activism have clearly been established on the ground;
for, more than once,
Module – 1 134
Module-IV
WE ARE WHAT
WE REPEATEDLY DO
EXCELLENCE THAN IS NOT AN ACT,
BUT A HABIT.
Aristotle
Module – 1 135
Contents Pages
Module – 1 136
Redress of Public Grievances and Institution of
Ombudsman
A
fter independence setting up of a democratic system of Government
raised tremendous hopes and high expectations among people. From
a purely regulatory and police administration, the government came to
be entrusted with the responsibility of economic and social
transformation and that too in a hurry. The state entered economic field in a
big way and a number of regulations were brought into play to promote
socialistic pattern of the society and to ensure distributive justice.
Now let us try to find out the effect of the above upon the lives of the citizens
and the type of interface between the government and the citizens it created.
The Gandhian principle that, “that governments is the best which governs the
least was substituted by a government which was as the American saying
goes, a ‘big government’ affecting the lives of citizens from cradle to grave if
not from conception itself.
1. It is the basic proposition that the prime responsibility for dealing with a
complaint from the public lies with the government organization whose
activity or lack of activity gives rise to the complaint. Thus; the higher
levels of the hierarchical structure of an organization are expected to
look into the complaints against lower levels. If the internal
arrangements within each organization are effective enough, there
should be no need for a special ‘outside’ machinery to deal with
complaints.
2. For dealing with grievances involving corruption and lack of integrity on
the part of government servants; special machinery was brought into
existence in the form of the Central Vigilance Commission.
Module – 1 137
leaving in the outcome, as far as possible, no ground in the mind of the
complaint for a continued feeling of grievance.
5. For big organizations having substantial contact with the public, there
should be distinct cells under a specially designated senior officer
which should function as a sort of outside complaint agency within the
organization and, thus, act as a second check on the adequacy of
disposal of complaints.
Module – 1 138
asked to perform the functions of the Commissioner. No decision as taken
thereafter. Arrangements of the Secretary in the Department of Personnel
concurrently functioning as a Commissioner fell into disuse.
The system introduced as stated above functioned till March 1985 when a
separate Department of Administrative Reforms and Public grievances was
set up.
No. of Complaints
Year Received Disposed of
The receipt of complaints hovered around 10-11 lakh and disposal around 9
to 10 lakh, thus, leaving at least one lakh of people every year dissatisfied just
on account of non-disposal of their complaints. Despite this, the figures of
disposal are not unimpressive. The crucial point, however, is whether the
complaints disposed of led to satisfaction of the people or not. Unfortunately,
data on this is not available and, therefore, it is difficult to hazard a guess in
this matter.
Module – 1 139
Reasons of Complaints:
Though no empirical data and evidence is available yet the perception of the
general public of administrative machinery is not at all a happy one. There is
an overwhelming feeling that the procedures take precedence over results;
there is no time frame to deal with maters; guidance to the public is
inadequate; and that officials deny even simple courtesy to the public. The
common man feels alienated from the public because grievances genuine or
otherwise are not answered and remedied by the Government. This situation
exists because:
Module – 1 140
7. Publicity to make people aware of the channels of redress
needed stepping up.
1. Ombudsman.
2. Central Vigilance Commission.
3. Right to know.
4. Discretion to disobey.
In the mid–nineties the main thrust of the court was public accountability to
tackle the problem of corruption high places which was eating into the vitals of
the polity. However, in late nineties the emphasis shifted to keeping balance
between the needs of public accountability and the demands of individual
rights. The canvas grievance redress strategies must be spread wide to
include ‘right to know’ and ‘discretion to disobey’ besides other judicial and
administrative techniques if the rampant corruption and the abuse of power is
to be checked effectively before the people lose complete faith in democracy
in India.
Module – 1 141
OMBUDSMAN IN INDIA
It has been found that the existing democratic processes under the law are
inadequate to deal with the complaints of citizens against the Government.
The present scope for judicial review of administrative action is also very
meager. There are no proper means of correcting an erroneous decision of
facts or investigating into complaints of misconduct, inefficiency, delay or
negligence.
The only remedy in such cases is to approach the Minister, or to draw the
attention by putting questions in the Parliament. It is difficult for an ordinary
citizen to do that much. Moreover, in cases of perversity and misconduct of a
Minister, the remedy is not clear. Out of two alternatives, namely, to have the
‘Counseil-d-Etat’ under French system of ‘droit administratiff’ or the
Ombudsman in the Scandinavian system, most of the modern countries of the
world have preferred the latter one as a suitable means for redressing
innumerable wrongs of the Government officials.
Module – 1 142
The problems of citizen’s grievance that have been germinated by a welfare
State have caught the attention of the world for establishing an institution like
Ombudsman. Prof. Rawat has rightly predicated that the “Ombudsman
institution or its equivalent will become a standard part of the machinery of
Government throughout democratic world.”
OMBUDSMAN IN INDIA
Module – 1 143
Thus we have seen that the establishment of the institution of
Ombudsman is the demand of time. It will be much useful in redressing
the grievances of the citizens against the administration. Attempts have
been made to establish the institution like Ombudsman (called Lokpal)
but unfortunately it has not been established so far. However the
institution of Lokayukta is functioning in some Indian States.
This Bill seeks to establish the institution of Lokpal. The institution of Lokpal
shall consist of a Chairman and two members who may be either sitting or
retired Judges of the Supreme Court. Where all or any of the allegation have
been substantiated against a Minister, the Prime Minister will decide the
action to be taken on the recommendation of the Lokpal and in the case of
Prime Minister the Lok sabha will decide the action to be taken thereon. In
case the allegation is not substantiated wholly or partly, the Lokpal will close
the case. The Lokpal has not been given jurisdiction to enquire into the
allegation against the President, the Vice President, the Speaker of Lok
Sabha, the Chief Justice or any Judge of the Supreme Court, the Comptroller
and auditor General, the Chief Election Commissioner or Election
Commissioner, the Chairman or any Member of the Union Public Service
Commission. The Institution cannot enquire into any matter concerning any
person if the Lokpal or any member thereof has any bias in respect of the
person or matter. Lokpal cannot enquire into any matter referred for enquiry
under the Commission of Enquiries Act. Besides, Lokpal cannot enquire into
any complaint made five years after the date of offence stated in the
complaint.
Module – 1 144
The salary, service conditions and removal from the office in the case of the
Chairman will be the same as those of the Chief Justice of India and in the
case of other member will be as those of the Judges of the Supreme Court.
These provisions have been made to ensure the independence of the
institution of Ombudsman. The Bill also provides that a member of the Lokpal
cannot be a Member of Parliament or State legislature or a political party. It
also provides that a member thereof should not hold any office of trust or
profit or he should not carry on any business or practice any profession. The
Bill also makes provision for the appointment of staff to assist the Lokpal.
The Lokpal can entertain a complaint from any person other than a public
servant. The Bill has empowered the Lokpal to require a public servant or any
other person to give such information as may be desired or to produce such
documents, which are relevant for the purposes of investigation. He will have
the powers of a Civil Court under the Civil Procedure Code, 1908 with
respect:
In August 1998 the Prime Minister Atal Bihari Bajpae presented the Lok
Pal Bill in the Lok Sabha. The Prime Minister has also been brought
within the jurisdiction or power of LokPal. Under the Bill the LokPal was
empowered to make enquiries in the charges of completion brought
before, it against any Minister or Prime Minister or Member or either
House of Parliament. However, he was not empower thereon the Bill to
make enquires in the charges of corruption against the President, Vice-
President, Speaker of Lok Sabha, Comptroller and Auditor general, Chief
Election Commissioner and other Election Commissioner, Judges of the
Supreme Court and Members of the Union Public Service Commission.
Under this Bill the institution of Lok Pal was to consist of three members
including its Chairman. Only the sitting or retired Chief Justice of India
or any Judge of the Supreme Court could be appointed its Chairman
while any sitting or retired Judge of the Supreme Court of Chief Justice
of any High Court could be appointed its members.
Module – 1 145
The appointment was to be made by President on the recommendation of
the selection committee consisting of seven members. The Vice-President
would be the Chairman of this selection committee.
It must be noted that though the Ombudsman may take pressure off the
courts and prevent legal principles being strained, yet he is not a panacea
for all the evils of bureaucracy. His function is to tidy up and improve
administration. His success depends on the existence of a reasonably well-
administered State. He cannot cope with the situation where the
administration is riddled with patronage and corruption. (Prof. Gellhorn
quoted by R. L. Narasimahan in “The Indian Ombudsman Proposal: A
Critique”, law and the Commonwealth P. 35. For an exhaustive analysis
see M. P. Jain: lokpal: Ombudsman in India, (1970); P. K. Tripathi:
Lokpal: The proposed Indian Ombudsman, 9 JILI 135 (1967) and Rajeev
Dhawan: Engrafting Ombudsman Idea on a Parliamentary Democracy-A
Comment on Lokpal Bill, 1977, 19 JILI 257 (1977).
Though the birth of an Ombudsman in the Centre is still doubtful, but for
the States it has become a cherished institution.
Module – 1 146
Working of Lokayuktas in the State
State of Assam
1990 6 42 48 11 37
1991 37 147 184 34 150
1992 150 240 390 115 275
1993 275 188 463 105
1994 356 65 421 256 358
165
State of Bihar
Module – 1 147
State of Himachal Pradesh
1991 38 25 63 31 32
1992 32 27 59 39 20
1993 20 28 48 28 20
1994 20 48 68 40 8
State of Kerala
1992 28 11 39 14 25
1993 25 12 37 9 28
State of Maharashtra
Though the above statistics are incomplete, as they do not give the necessary
details about all the aspects of the working of the institution of the institution of
Lokayukta in the States, yet a few generalizations may still be made. It is clear
beyond doubt that the number of complaints received by the Lokyuktas is
Module – 1 148
constantly increasing. But a large number of them are fielded because of
various reasons, which may include:
Lack of jurisdiction,
Triviality,
Baseless ness,
Anonymity or
Pseudonym, etc.
This indicates that the people while filing complaints have not acted with
restraint and responsibility. Another important reflection from the above tables
is that the cases in which grievances were redressed is highly negligible. This
establishes at the practical ineffectiveness of this institution in the Indian
situation was lack of administrative cooperation and the apathy of political
high-up is significantly marked. However, it has no reflection on the Lokayukta
therapy if properly administered.
Module – 1 149
Institution of Lokayukta has not been given any constitutional status, hence,
its existence and survival completely depends at the sweet-will of the state
government. For political reasons State of Orissa issued an ordinance in 1992
for the abolition of Lokayukta institution. It for same reason Haryana repealed
Lokayukta Act in 1999.
It is tragic that in some states this institution was established not for
prevention of corruption but for harassing and intimidating political
opponents and for protecting the ruling elite. it is for this reason that the
government are keen that the lokayukta should be their own nominee.
Supreme Court had to quash the appointment of Lokayukta of Punjab,
Justice H. S. Rai, because the Chief Justice of the High Court had not
been consulted.
In the same manner Justice vanish was removed from the office of
Lokayukta of Haryana by repealing the Act because the Act had made
removal of Lokayukta cumbersome by the outgoing government.
Module – 1 150
recommended the establishment of a Central Vigilance Commission as the
highest authority at the head of the existing anti-corruption organization
consisting of the Directorate of General Complaints and Redress, the
Directorate of Vigilance and the Central Police Organization.
The jurisdiction of the Commission and its powers are co-extensive with the
executive powers of the Center. The government servants employed in the
various ministries, and departments of the Government of India and the Union
territories, the employees of public sector undertakings, and nationalized
banks, have been kept within its purview. The Commission has confined itself
to cases pertaining only: (i) to gazetted officers, and (ii) employers of public
undertakings and nationalized banks, etc. drawing a basic pay of Rs. 1,000
per month and above.
Procedure:
The Central vigilance Commission has the following alternatives to deal with
these complaints:
Module – 1 151
a) It may entrust the matter for inquiry to the administrative
Ministry/Department concerned.
b) It may ask the Central Bureau of
Investigation (C. B. I) to make an enquiry.
c) It may ask the Director of the C. B. I to
register a case an investigate it.
It had been given jurisdiction and power to conduct an enquiry into transaction
in which publics servant are suspected of impropriety and corruption including
misconduct, misdemeanor, lack of integrity and malpractices against civil
servants. The Central Bureau of Investigation (CBI) in its operations assisted
the Commission. The CVC has taken a serious note for the growing
preoccupation of the CBI with work other than vigilance. Thus when the CBI is
extensively used for non-corruption investigation work such as drug-
trafficking, smuggling and murders it hampers the work of the CVC.
But how effective this institution has proved in uprooting corruption depends
on various factors, the most important being the earnestness on the part of
the government, citizens and institutions to clean public life .
In its efforts to check corruption in public life and to provide good governance
the Apex Court recommended measures of far-arching consequences while
disposing a public interest litigation petition on the Jain Hawala Case. Three-
Judge Bench separated four major investigating agencies from the control of
the executive. These agencies are:
The Court has shifted the CBI under the administrative control of the CVC.
The Central Vigilance Commission, until now, was under the Home Ministry
entrusted with the task of bringing to book cases of corruption and sundry
wrongdoings and suggesting departmental action. Now the CVC is to be the
umbrella agency and would coordinate the work of three other investigating
arms.
In order to give effect to the view of the Supreme Court, the movement issued
an ordinance on August 25, 1998. However, this measure had diluted the
views of the Supreme Court by pitting one view against the other. Therefore,
what ought to have been visualized as a reformative step had begun to seen
as a cleaver bureaucratic legalese.
It was when the Supreme Court expressed concern over these aspects of the
Ordinance in the hearing relating to its validity that the government decided to
Module – 1 152
amend the Ordinance and thus, on October27, 1998 Central Vigilance
Commission (Amendment) Ordinance was issued. The Commission was made
a four-member body and its membership was opened to other besides
bureaucrats. In the same manner the single directive of prior permission was
deleted and the membership of Secretary Personnel, Government of India
was deleted.
The most important need in the interest of efficiency and progress is to fix a
time schedule for a case to demarcate clear fields of responsibility between
the Central Bureau of Investigation and the Central Vigilance commission.
RIGHT TO KNOW
Module – 1 153
Government openness is a sure technique to minimize administrative faults.
As light is a guarantee against theft, so governmental openness is a
guarantee against administrative misconduct.Openness in government is
gaining lot of foothold in recent years. It is a topic of growing importance in
administrative law.The goal of open government is being pursued by U.S.A,
Aaustralia Newzealand and other liberal democracies of the world. Openness
in government is bound to act as a powerful check on the abuse of power by
the government. The objective of openness in government is ensured by
giving access to by the individual to governmental information so that
governmental activity is not shrouded in mistery and secrecy.
American Constitution, the oldest written constitution of the world, does not
contain specific right to information. However, the US Supreme Court has
read this right into the First amendment of the Constitution and granted
access to information where there is a tradition of openness to information in
question and where access contributes to the functioning of the particular
process involved. Administrative Procedure Act, 1946 (APA) was the first
enactment, which provided a limited access to executive information. The Act
was vague in language and provided many escape clauses.
After investigating the operation of this Act, Congress in 1974 amended it.
Amendments provided:
(i) For disclosure of “any reasonably segregably portion” of
otherwise exempted records;
(ii) For mandatory time limit of 10 to 30 days for responding to
information requests;
Module – 1 154
(iii) For rationalized procedure for obtaining information, appeal
and cost. Statistics show that maximum (80%) use of this act is being made
by business executives their lawyers an editors, authors, reporters and
broadcasters whose job is to inform the people have made very little use of
this Act.
The judiciary In USA shares the same concern of the Congress, which is
reflected in the Freedom of Information Act, 1966.
The local government (Access to Information) Act, 1985 is the only statutory law
providing legal right to information against local’s governors. The Act provides
for greater public access to meetings and documents of the major local
councils. However, this Act leaves much to the discretion of the councils and
mentions at least fifteen categories of exempted information. Individual
seeking information has no adequate legal redress. It is certainly strange that
a democratic country should be so secretive. It appears that this situation
cannot last long because of mounting popular pressure and citizens charter.
The Official Secrets Act, 1923 in India makes all disclosures and use of official
information a criminal offence unless expressly authorized.
Courts in India and England have rejected the concept of conclusive right of
the government to withhold a document. But still there is too much secrecy,
which is the main cause of administrative faults.
Module – 1 155
India Constitution does not specifically provide for the right to information as a
fundamental right though the constitutional philosophy amply supports it.
In the same manner arts. 19 (a) freedom of thought and expression and 21
right to life and personal liberty would become redundant if information is not
freely available Art. 39(a), (b), (c) of the Constitution make provision for
adequate means of livelihood, equitable distribution of material resources of
the community to check concentration of wealth and means of production. As
today information is wealth, hence, need for its equal distribution cannot be
over emphasized. Taking a cue from this Constitutional philosophy, the
Supreme Court of India found a habitat for freedom of information in Arts.
19(a) and 21 of the Constitution.
It is heartening to note that the highest Bench in India while recognizing the
efficacy of the ‘right to know’ which is a sine qua not of a really effective
participatory democracy raised the simple ‘right to know’ to the status of a
fundamental right.
In S. P. Gupta v. Union of India, the court held that the right to know is implicit
in the right of free speech and expression guaranteed under the Constitution
in Article 19 (1) (a). The right to know is also implicit in Article 19(1)(a) as a
corollary to a free press, which is included in free speech and expression as a
fundamental right. The Court decided that the right to free speech and
expression includes
With the judicial support, the right to information has now become a cause of
public action and there is a strong demand for a formal law on freedom of
information. States of Goa, Tamil Nadu and Rajasthan have, since 1997,
enacted laws ensuring public access to information, although with various
restraints and exemptions. There is a pressure on the Central Governments
also to enact law-granting right to information. Various drafts were submitted
Module – 1 156
fro consideration by empowered bodies like the Press Council of India and by
independent citizens’ groups. but the Freedom of Information Bill, which has
finally reached Parliament in 1999, has disappointed almost all who
campaigned for its introduction.
This Press Council of India Bill, 1996 had provided three exemptions,
which included:
(1) Information, disclosure of which will have prejudicial effect on
sovereignty and integrity of India, security of State and friendly
relations with foreign states, public order, investigation of an
offence which leads to incitement to an offence;
(2) Information which has no relationship to any public activity and
would constitute a clear and unwarranted invasion of personal
privacy;
(3) Trade and commercial secrets protected by law.
Right to know also has another dimension. The Bhopal gas tragedy and its
disaster syndrome could have been avoided had the people known about the
medical repercussions and environmental hazards of the deadly gas leaked
from the Union Carbide chemical plant at Bhopal.
Module – 1 157
Today in India secrecy prevails not only in every segment of governmental
administration but also in public bodies. Statutory or non-statutory. There is a
feeling everywhere that it pays to play safe. Even routine reports on social
issues continue to be treated as confidential long after the you are submitted.
What is given out is dependent on the whims of a minister or a bureaucrat.
The result is that there is no debate on important matters and no feedback to
the government on the reaction of the people. The stronger the efforts at
secrecy, the greater the chance of abuse of authority by functionaries.
Sometime there appears to be a conflict between the right to know and the
right to privacy of public figures through whom the machinery of government
moves. Our experience in India suggests that a public figure should not be
allowed protection against exposure of his private life, which has some
relevance to the public duties on the plea that he has a right to privacy. Right
to privacy should not be allowed as a pretext to suppress information.
DISCRETION TO DISOBEY
In a country like India where people have no right to know, the judicial process
grinds slow and the other grievance procedures are feeble and inefficient,
perhaps the discretion to disobey may provide an effective check on the
operation of the governmental machinery in reckless manner. It is gratifying to
note that at a time when we are not only governed but administered, the
Supreme Court has rightly taken the right foot forward in allowing discretion to
disobey void orders. The decision of the Supreme Court in Nawab-Khan
Abbaskhan v. State of Gujarat ,(AIR 1974 SC 1471).allows every person the
discretion to make his own decision and disobey an order of the government,
if in his opinion it is void. If he turns out to be wrong in his decision, of course,
he is answerable, but if he is right he is not answerable in any way.
In this case, the petitioner was prosecuted under Section 142 of the Bombay
Police Act, 1951 because he had violated the externment order passed by the
Police Commissioner. The trial court acquitted the accused but on appeal by
the State, the High Court reversed the order of the lower court. The important
Module – 1 158
fact in this whole process was that the accused had challenged the validity for
fight externment order before the High Court under Article 226 during the
pendency of his criminal trial and the High Court quashed the order on July
16,1968. The accused took the defiance in criminal appeal proceedings
before the High Court that since the order becomes void ab intio and they’re
being no externment order in the eye of the law there is no offence when he
re-entered the forbidden area on September 17, 1967. The question whether
a person can disobey the order with impunity if subsequently that order is
quashed was answered by the High Court in the negative.
On appeal the Supreme Court reversed the decision of the High Court and
held that the externment order is of no effect an its violation is no offence.
The individual decision-making by private persons of public actions may be
considered as a very radical approach but the alternative is a travesty of
constitutional guarantees. Grave consequences involved in allowing discretion
to disobey someone may argue may first lead to anarchy and then to tyranny.
What is the remedy available to a person who has been subjected to an illegal
order? Our legal system does not recognize the right to compensation for
damage suffered by a person in obeying a valid order
Public Enterprises.
With the steady increase in state functions corresponding to the change in the
philosophy of state activity (from laissez faire to social welfare), it is generally
an accepted notion n modern states, especially the developing, that
ownership of most of the natural resources and capital heavy industries
should increasingly rest in the state. In developing countries, state
intervention in economic and industrial enterprises has become almost
compulsory for various reasons.
Module – 1 159
•= to reduce dependence on foreign capital and aid in
the long run.
In India, the Industrial Policy Resolution of 1956 has laid down the basic
principle that will govern the state’s approach towards industrial development
t. The approach derives its base from the Directive Principles of State Policy
contained in the Constitution and from the adoption by Parliament in
December 1954 of the socialist pattern of society as the objective o four social
and economic goals and laws. The Industrial Policy Resolution of 1956 stated
that the need for rapid planned development required that all industries of
basic and strategic importance, or in the nature of public utility services,
should be in the public sector.
Consequently, their number has steadily increased with every plan, and by
the end of Third Plan period, various State governments owned or held
majority shares in about 175 Public Undertakings, with an estimated total
investment of nearly Rs. 2,000 crores.
Public enterprises in our country cover a range of activities that is at once vast
and varied. They are engaged:
Module – 1 160
A public undertaking, for purposes of examination by the Estimates
Committee, was defined by the Speaker of the Lok Sabha as follows,
This definition obviously is concerned only with the public undertakings under
the union Government and leaves out of account public undertakings in the
States. A more comprehensive definition has been given by S. S. Khera,
ii) In a country like India where the industrial base has not been built up
sufficiently, and the capital investment funds still need a great deal of building
up and garnering, state intervention becomes imperative.
Module – 1 161
v) By active participation in business; the Government has sought to tap
gold mines of industry and commerce for the funds needed to discharge the
new and heavier burdens it now shoulders.
According to the Report of the Study Team on Public Sector Undertakings (of
the Administrative Reforms Commission) central and provincial characteristics
of this form are as follows;
Module – 1 162
b) The whole of the capital stock or 51 per cent or above of it, is
owned by the Government;
e) It can sue and be sued, enter into contract, and acquire property in
its own name;
g) Its funds are obtained from the Government and, in some cases,
from private shareholders, and through revenues derived from
sale of its goods and services;
Module – 1 163
ii) It is generally created by, or pursuant to, a special law
defining its powers, duties and immunities and prescribing the
form of management and its relation to established departments
and ministries.
Module – 1 164
In the famous word so president Franklin D. Roosevelt, the Public
Corporation
“Is clothed with the power of government but possessed of the flexibility and
initiative of a private enterprise.”
However, this form, in its turn, has given rise to other problems, namely the
difficulty of reconciling autonomy of the corporation with public accountability.
That the Public Corporations cannot be made immune from ministerial control
land direction is universally conceded. But how to do it without infringing their
corporate autonomy has come into direct conflict with the urgent need for
bringing the operations of this Corporation into harmony with related actions
of the government. Vacuum Removal from the so-called political pressures
may mean, in fact, that the significant political power is being placed in the
hands of a small unrepresentative, and in extreme cases, possibly even a
self-perpetuating group controlling the Public Corporations.
To sum up, each of these three types of organization has its own strong and
weak points. Thus, A. D. Gorwala has held the views that the departmental
management was in many ways a direct negation of the requirements of
autonomy and militated against flexibility and initiative, that is sound “State
enterprise tradition” It must, therefore, be a rare exception to be resorted to
when dictated by the need of secrecy, strategic importance, etc. He,
generally, favored the Company form for substantially commercial functions
because of great flexibility. According to him, Corporation form should be
used when the undertaking was to discharge what in effect were the
extensions of government functions, for example, broadcasting, irrigation, etc.
Module – 1 165
some others. Some of the more pressing problems confronting the Public
Corporations are:
i) If the statute in terms answers the question (as it did in the case
of the Central Land Board under the Company & Town Planning
Act, 1917), the need for any further enquiry s obviated.
Module – 1 166
•= Vicarious Liability a Corporation. On principles of
vicarious liability, corporation is liable to pay damages for
wrongs done by their officers or servants. They are liable even
for tort requiring a mental element as an ingredient, e.g.
malicious prosecution. In India, local authorities like
Municipalities and District Boards have been held responsible
for the tort committed by their servants or officers.
Module – 1 167
to the writ jurisdiction of the Supreme Court under Article 32 and
of the High Court under Article 226.
To sum up we can say that public enterprise in the near future will be
subjected to the scrutiny of the consumers and Courts. Because the quality of
services rendered by these enterprises to the public is a matter, which
concerns consumers in many ways. It is but natural, therefore, that disputes
arises between the enterprises and their employees, or between the
enterprises and the public also, the courts are not averse to extending their
supervisory role over these enterprises in some respects.
Module – 1 168
Suits against the Administration: State Liability
A
ctions of the administration. These remedies help in preventing the
recurrence the extraordinary legal remedies that is available to the
individual against the illegal of an illegality. However, they do not
provide full redress to the aggrieved individual. Private citizens access to the
ordinary courts and the ordinary legal remedies may be qualified by the
existence of certain privileges and immunities enjoyed by the state. These
privileges immunities though justified in the days in which they originated, are
hardly justified in a democratic society. However, the state does enjoy and it
may be necessary for it to enjoy certain privileges and immunities.
Administrative law is engaged in the process of redefining such privileges and
immunities with a view to reconciling them with the needs of modern times.
The Constitution clearly says that the executive power of the Union and of
each state extends to ‘the carrying on for any trade or business and to the
acquisition, holding and disposal of property and the making of contracts for
any purpose’. The Constitution therefore, provides that a Government may
sue or may be sued by its name. Similar provisions to be found in the Code of
Civil Procedure. The above provisions do not, however, enlarge or restrict the
extent of State liability; they merely provide the method of redress. The extent
of liability will be discussed separately.
The various privileges available to the Government under various statutes are
as follows: -
In England the rule is that its own laws do not bind the Crown unless by
express provision or by necessary implication they are made binding
on it. Thus in England the statutes are not binding on the crown unless
by express provision or by necessary implication, they are made
binding thereon. Its basis is the maxim “ the King can do on wrong.
This rule was followed even in India till 1967.
In India the present position is that the statute binds the State or
Government unless expressly or by necessary implication it has
exempted or excluded from its operation. In case the State has been
exempted from the operation of the statute expressly, there is no
difficulty in ascertaining whether the statute is binding on the State or
not but it becomes a difficult issue in case where the State is exempted
from the operation of the statute by necessary implication. However,
Module – 1 169
where the statute provides for criminal prosecution involving
imprisonment, the statute is deemed to be excluded from the operation
of the statute necessary implication.
II. Privileges and Immunities under the Civil Procedure Code, 1908.
The Government may waive the requirement of notice; the waiver may
be express or implied.
It is to be noted that S.80 of the C.P.C does not apply to a suit against
a statutory Corporation. Consequently in case the suit is filed against
the statutory Corporation. Consequently, such notice is not required to
be given in cases the suit is filed against statutory Corporation.
S.80 does not apply with respect to a claim against the Government
before the claim Tribunal under the Motor Vehicle Act.
S.80 of the C.P.C. does not apply to a writ petition against the
Government or a public officer, the requirement of notice as provided
under S.80 of the C.P.C is not required to be complied with.
Module – 1 170
officer is not executable immediately. The Court is required to specify
the time within which the decree has to be satisfied and where no such
time has been specified, three moths from the date of the decree will
be taken to be the time within which is to be satisfied. If the decree is
not satisfied within such time limit the Court shall report the case for the
orders of the Government.
Module – 1 171
he shall be held to have committed an offence under S.166 of the
Indian Penal Code.
S. 162 apply not only to the official documents but also to the private
documents.
In State of Punjab v. Sodhi Sukdev Singh ( AIR 1961 SC 493) the court had
the opportunity of discussing the extent of government privilege to
withhold documents where twin claims of governmental confidentiality
and individual justice compete for recognition.
The court was very alive to the constraints of this privilege on private
defense, therefore Gajendragadkar, J. delivering the majority judgment
cautioned that care has to be taken to see that interests other than that
of the public do not masquerade in the garb of public interest and take
undue advantage of the provision of Section 123. In order to guard
against the possible misuse of the privilege, the court also developed
certain norms. First, the claim of privilege should be in the form of an
affidavit, which must be signed by the Minister concerned, or the
Secretary of the Department. Second, the affidavit must indicate within
permissible limits the reasons why the disclosure would result in public
injury, and that the document in question has been carefully read and
considered and the authority is fully convinced that its disclosure would
injure public interest. Third, the if the affidavit is found unsatisfactory,
the court may summon the authority for cross-examination.
Working the formulations still further, the court in Amar Chand v. Union
of India (AIR 1964 SC 1658) disallowed the privilege where there was
evidence to show that the authority did not apply its mind to the
question of injury to the public interest which would be caused by the
disclosure of the document. In Indira Nehru Gandh v. Raj Narain .(1975
Supp SCC 1: AIR 1975 SC 2299) the Court compelled the production of Blue
Books of the polic and disallowed the claims of privilege. In State of
Orissa v. Jagannath Jena, ((1972) 2 SCC 165) the Supreme Court again
disallowed the privilege on the ground that the public interest aspect
had not been clearly brought out in the affidavit. In this case, the
plaintiff wanted to see endorsement on a file by the Deputy Chief
Minister and the I. G. of Police.
Module – 1 172
Additional Judge in the Delhi High Court. The government opposed
the production of these reports on the ground that their disclosure
would injure public interest under Section 123 of the Indian Evidence
act. But the Supreme Court ruled otherwise. The case is a definite
evidence of court’s attempt to promote the ideal of open Government in
India.
Justice Bhagwati took some such view in the above case when he
expressed his faith in the ideal of an open Government. Merely secrecy
of the Government is not a vital public interest so as to prevail over the
most imperative demands of justice.
The decision has opened a new dimension of judicial control over the
exercise of privileges under Sections 123 by the executive. The Court
now has assumed the power of inspection of documents in camera and
if it finds that its disclosure would harm the public interest, the claim for
non-disclosure might be upheld. If the disclosure, to the mind of the
Court, does not harm the public interest, its disclosure would be
ordered.
Art 149 of the First Schedule of the Limitation Act of 1890 prescribed a longer
period of limitation for suits by or on behalf of the State. The Act of 1963
contains a similar provision under Art 112. The Article applies to the Central
Government an all the State Governments including the Government of the
State of Jammu land Kashmir. This longer limitation period was based on the
common law maxim nulla tempus occur it rein, that is, no time affects the
Crown.
The longer period of limitation, however, does not apply to appeals and
applications by Government.
Module – 1 173
Under s 5 of the Limitation Act, it is provided that an appeal or application may
be admitted after the expiry of the period of limitation if the court is satisfied
that there was sufficient cause for the delay. It was held that the government
was not entitled to any special consideration in the matter of condo nation of
delay.
Module – 1 174
changes his positive to his detriment, the person who gives such promise
or assurance cannot be allowed to revert or deviate from the promise.
Case law
In India, the courts are invoking this doctrine,
In Union of India v. Anglo (Indo) – Afghan Agencies Ltd.,(AIR 1968 SC
718)The doctrine of Promissory Estoppel was applied against the
Government. This case developed a new judicial trend. The Court
upheld the application of Promissory Estoppel to the executive acts of the
State. The Court negated the plea of executive necessity. Under the
scheme an exporter was entitled to import raw materials equal to the
amount, which was exported. Five lakhs rupees worth goods were
exported by the petitioner but he was given import license for an amount
below two lakh rupees. The Court held that the Government was bound
to keep its promise. The scheme was held to be binding on the
Government and the petitioner was entitled to get the benefit of the
scheme.
In Delhi Cloth and General Mills v. Union of India, (1988 1 S.C.C. 86 ) the
Supreme Court has held that for the application of the principle of
Promissory Estoppel change in position by acting on the assurance to the
promise is not required to be proved.
Module – 1 175
interest requires that the Government would suffer if the Government
were required to honor it. In order to resist its liability the Government
would disclose to the Court the various event insisting its claim to be
exempt from liability and it would be for the Court to decide whether
those events are such as to render it equitable and to enforce the liability
against the Government.
Article 298 provides that the executive power of the Union and of each
State shall extend to the carrying on of any trade or business and to the
acquisition holding and disposal property and the making of contracts for
any purpose. Article 299 (I) lays down the manner of formulation of such
contract. Article 299 provides that all contracts in the exercise of the
executive power of the union or of a State shall be expressed to be made
by the President or by the Governor of the State, as the case may be, and
all such contracts and all assurances of property made in the exercise of
that power shall be executed on behalf of the President or the Governor
by such persons and in such manner as he may direct or authorize.
Article 299 (2) makes it clear that neither the President nor the Governor
Shall be personally liable in respect of any contract or assurance made or
executed for the purposes of this Constitution or for the purposes of any
enactment relating or executing any such contract or assurance on behalf
of any of them be personally liable in respect thereof. Subject to the
provisions of Article 299 (1), the other provisions of the general law of
contract apply even to the Government contract.
A contract with the Government of the Union or State will be valid and
binding only if the following conditions are followed: -
Module – 1 176
1. The contract with the Government will not be binding if it is
not expressed to be made in the name of the President or the
Governor, as the case may be.
The above provisions of Article 299 are mandatory and the contract made
in contravention thereof is void and unenforceable.
The Supreme Court has made it clear that in the case grant of
Government contract the Court should not interfere unless substantial
public interest is involved or grant is mala fide when a writ petition is
filed in the High Court challenging the award of a contract by a public
authority or the State, the Court must be satisfied that there is some
element of public interest involved in entertaining such a petition.
However, as Article 299 (2) provides neither the President nor the
Governor shall be personally liable in respect of any contract or
assurance made or executed for the purposes of this Constitution or for
the purposes of any enactment relating to the Government of India. As
soon as a contract is executed with the Government in accordance with
Article 299, the whole law of contract as contained in the Indian Contract
Act comes into operations. Thus the applications of the private law of
contract in the area of public contracts may result in the cases of injustice.
Module – 1 177
can be issued against the Government or its instrumentality for the
enforcement of contractual obligations. The Court ruled that it is too late
to contend today the Government can commit branch of a solemn
undertaking on which other side has acted and then contend that the
party suffering by the branch of contract may sue for damages and
cannot compel specific performance of the contract through mandamus.
The doctrine of judicial review has extended to the contracts entered into
by the State of its instrumentality with any person. Before the case of
Ramana Dayaram Shetty v. International Airport Authority. (AIR 1979 SC
1628) The attitude of the Court was in favour of the view that the
Government has freedom to deal with any one it chooses and if one
person is chosen rather than another, the aggrieved party cannot claim
the protection of article 14 because the choice of the person to fulfill a
particular contract must be left to the Government, However, there has
been significant change in the Court’s attitude after the case of Ramana
Dayaram Shetty. The attitude for the Court appears to be in favour of the
view that the Government does not enjoy absolute discretion to enter into
contract with any one it likes. They are bound to act reasonably fairly and
in non-discriminatory manner.
In the case of Kasturi Lal v. State of J&K (AIR 1980 SC 1992), in this case
Justice Bhagwati has said “Every activity of the Government has a public
element in it and it must, therefore, be informed with reason and guided
by public interest. Every government cannot act arbitrarily without
reason and if it does, its action would be liable to be invalidated.” Non-
arbitrariness, fairness in action and due consideration of legitimate
expectation of affected party are essential requisites for a valid state
action. (Food Corporation of India v. Kamadhenu Cattle Feed Industries, (1993) 1 SCC 71) In a
recent case (Tata Cellular v. Union of India, AIR 1996 SC 11) the Supreme Court has
held that the right to refuse the lowest or any other tender is always
available to the Government but the principles laid down in Article 14 of
the Constitution have to be kept in view while accepting or refusing a
tender. There can be no question of infringement of Article 14 if the
Government tries to get the best person or the best quotation. The right to
choose cannot be considered to be an arbitrary power. Of course, if the
said power is exercised fro any collateral purpose the exercise of that
power will be struck down.
Ratification: -
The Supreme Court has made it clear that the provisions of Article 299
(1) are mandatory and therefore the contract made in contravention
thereof is void and therefore cannot be ratified and cannot be enforced
even by invoking the doctrine of Estoppel. In such condition the question
Module – 1 178
of estoppel does not arise. The part to such contract cannot be estoppel
from questioning the validity of the contract because there cannot be
estoppel against the mandatory requirement of Article 299.
In the case of Shrilekha Vidyarathi v. State of U.P (1991 S.C .C 212) the
Supreme Court has made it clear that the State has to act justly, fairly
and reasonably even in contractual field. In the case of contractual
actions of the State the public element is always present so as to attract
article 14. State acts for public good and in public interest and its public
character does not change merely because the statutory or contractual
rights are also available to the other party. The court has held that the
state action is public in nature and therefore it is open to the judicial
review even if it pertains to the contractual field. Thus the contractual
action of the state may be questioned as arbitrary in proceedings under
Article 32 or 226 of the Constitution. It is to be noted that the provisions
of Sections 73, 74 and 75 of the Indian Contract Act dealing with the
determination of the quantum of damages in the case of breach of
contract also applies in the case of Government contract.
Quasi-Contractual Liability
According to section 70 where a person lawfully does anything for
another person or delivers anything to him such other person enjoys the
benefit thereof, the latter is bound to make compensation to the former in
respect of or to restore, the thing so done or delivered. If the
requirements of Section 70 of the Indian Contract act are fulfilled, even
the Government will be liable to pay compensation for the work actually
done or services rendered by the State.
Section 70 is not based on any subsisting contract between the parties but
is based on quasi-contract or restitution. Section 70 enables a person who
actually supplies goods or renders some services not intending to do
gratuitously, to claim compensation from the person who enjoys the
benefit of the supply made or services rendered. It is a liability, which
arise on equitable grounds even though express agreement or contract
may not be proved.
Module – 1 179
If the agreement with the Government is void as the requirement of
Article 299 (1) have not been complied, the party receiving the advantage
under such agreement is bound to restore it or to make compensation for
it to the person form whom he has received it. Thus if a contractor enters
into agreement with the Government for the construction of go down and
received payment therefore and the agreement is found to be void as the
requirements of Article 299 (1) have not been complied with, the
Government can recover the amount advanced to the contractor under
Section 65 of the Indian Contract act. Action 65 provides that when an
agreement is discovered to be void or when a contract becomes void, any
person who has received any advantage under such agreement or contract
is bound to restore it to make compensation for it to the person from
whom he received it.
“Tort is any wrong or injury not arising out of contact for which there is
remedy by compensation or damages.”
Thus, tort is a civil wrong, which arises either out of breach of no contractual
obligation or out of a breach of civil duty. In other words, tort is a civil wrong
the only remedy for which is damages. The essential requirement for the
arising of the tort is the beach of duty towards people in general. Although tort
is a civil wrong, yet it would be wrong to think that all civil wrongs are torts. A
civil wrong which arises out for the breach of contact cannot be put in the
category of tort as it is different from a civil wrong arising out of the breach of
duty towards public in general.
In India immunity of the Government for the tortious acts of its servants,
based on the remnants of old feudalistic notion that the king cannot be sued I
his own courts without his consent ever existed. The doctrine of sovereign
immunity, a common law rule, which existed in England, also found place in
the United States before 1946 Mr. Justice Holmes in 1907 declared for a
unanimous Supreme Court:
Module – 1 180
ground that there can be no legal right as against the authority
that makes the law on which the right depends.”
Today, hardly, anyone agrees that the stated ground for exempting the
sovereign from suit is either logical or practical.
When the responsibility of the act of one person falls on another person, it is
called vicarious liability. Such type of liabilities is very common. For example,
when the servant of a person harms another person through his act, we held
the servant as well as his master liable for the act done by the servant.
Here what we mean is essentially the vicarious liability of the State for the
torts committed by its servants in the exercise of their duty. The State would
of course not be liable if the acts done were necessary for protection life or
property. Acts such as judicial or quasi-judicial decisions done in good faith
would not invite any liability. There are specific statutory provisions which the
administrative authorities from liability. Such protection, however, would not
extent malicious act. The burden of proving that an act was malicious would
lie on the person who assails the administrative action. The principles of law
of torts would apply in the determination of what is a tort and all the defences
available to the respondent in a suit for tort would be available to the public
servant also. If after all this, a public servant is proved to have been guilty of a
tort like negligence, should the State, as his employer is liable?
In India Article 300 declares that the Government of India or a of a State may
be sued for the tortious acts of its servants in the same manner as the
Dominion of India and the corresponding provinces could have been sued or
have been sued before the commencement of the present Constitution. This
rule is, however, subject to any such law made by the Parliament or the State
Legislature.
The first important case involving the tortious liability of the Secretary of State
for India-in –Council was raised in P.and O. Steam Navigation v. Secretary of
State for India. (5 Bom HCR App 1.)
The question referred to the Supreme Court was whether the Secretary of
State for India is liable for the damages caused by the negligence of the
servants in the service of the Government. The Supreme Court delivered
a very learned judgment through Chief Justice Peacock, and answered the
question in the affirmative. The Court pointed out the principle of law
Module – 1 181
that the Secretary of State for India in Council is liable for the damages
occasioned by the negligence of Government servants, if the negligence
is such as would render an ordinary employer liable. According to the
principle laid down in this case the Secretary of State can be liable only
for acts of non sovereign nature, liability will not accrue for sovereign
acts Chief Justice peacock admitted the distinction between the sovereign
and non sovereign functions of the government and said:
Module – 1 182
The conflicting position before the commencement of the Constitution has
been set at rest in the well known judgment of the Supreme Court in State of
Rajasthan v. Vidyawati, (AIR 1962 SC 933) where the driver of a jeep, owned
and maintained by the State of Rajasthan for the official use of the Collector
of the district, drove it rashly and negligently while taking it back from the
workshop to the residence of the Collector after repairs, and knocked down
a pedestrian and fatally injured him. The State was sued for damages. The
Supreme Court held that the State was vicariously liable for damages
caused by the negligence of the driver. in fact, the decision of the Supreme
Court in State of Rajasthan v. Vidyawati, (Kesoram Poddar v. Secretary of
State for India, 54 Cal 969) introduces an important qualification on the
State immunity in tort based on the doctrines of sovereign and non
sovereign functions. It decided that the immunity for State action can only
be claimed if the act in question was done in the course of the exercise of
sovereign functions.
Then came the important case of Kasturi Lal v. State of U. P. (AIR 1965 SC 1039)
where the Government was not held liable for the tort committed by its servant
because the tort was said to have been committed by him in the course of the
discharge of statutory duties. The statutory functions imposed on the
employee were referable to and ultimately based on the delegation of the
sovereign powers of the State.
The Court held that the Government was not liable as the activity
involved was a sovereign activity. The Court affirmed the distinction
between sovereign and non-sovereign function drawn in the P. and O.
Steam Navigation’s case in the following terms.
There are, on the other hand, a good number of cases where the courts,
although have maintained the distinction between sovereign and non-
sovereign functions yet in practice have transformed their attitude
holding most of the functions of the government as non-sovereign.
Consequently there has been an expansion in the area of governmental
liability in torts.
Module – 1 183
It is redeeming to note that the sovereign and non-sovereign dichotomy in the
State functions which the Supreme Court has followed so far, is no being
narrowed down by a new gloss over the sovereign functions of the State The
courts started holding most of the governmental functions as non-sovereign
with a result that the area of tortious liability of the government expanded
considerably.
The Madhya Pradesh High Court (Associated Pool v. Radhabai, AIR 1976 MP 164.)
Has put up the entire legal position, which emerged from the analysis of the
cases, in the following words:
“These cases show that the traditional sovereign functions are the
making of law, the administration of justice, the maintenance of order,
the repression of crime, carrying on for war, the making of treaties of
peace an other consequential functions, Whether this list be
exhaustive or not, it is at least clear that the socio-economic and
welfare activities undertaken by a modern state are not included in the
traditional sovereign functions…
Damages
It may happen that a public servant may be negligent in the exercise of his
duty. It may, however, be difficult to recover compensation from him.
From the point of view of the aggrieved person, compensation is more
important than punishment. Therefore, like all other employers the State
must be made vicariously liable for the wrongful acts of its servants
The Courts in India are now becoming conscious about increasing cases of
excesses and negligence on the part of the administration resulting in the
negation of the personal liberty. Hence they are coming forward with the
pronouncements holding the Government liable for damages even in those
cases where the plea of sovereign function could have negative the
governmental liability. One such pronouncement came in the case of Rudal
Shah v. State of Bihar. (AIR 1983 SC 1036) Here the petitioner was detained
illegally in the prison for over fourteen years after his acquittal in a full dressed
trail. The court awarded Rs. 30,000 as damages so the petitioner.
In Bhim Singh v. State of J&K (AIR 1986 SC 494) where the petitioner, a member
of legislative Assembly was arrested while he was on his way to Srinagar to
attend Legislative Assembly in gross violation of his constitutional rights under
Articles 21 and 22 (2) of the Constitution, the court awarded monetary
compensation of Rs.50,000 by way of exemplary costs to the petitioner.
Another landmark case namely, C.Ramkonda Reddy v. State, (AIR 1989) AP 235)
has been decided by the Andhra Pradesh, in which State plea of sovereign
Module – 1 184
function was turned down and damages were awarded despite its being a
cases of exercise of sovereign function.
In Lucknow Development Authority v. M.K. Gupta, (1994 1 SCC 245) the Supreme
Court has observed that where public servant by mal fide, oppressive and
capricious acts in discharging official duty causes in justice, harassment and
agony to common man and renders the State or its instrumentality liable to
pay damages to the person aggrieved from public fund, the State or its
instrumentality is duly bound to recover the amount of compensation so paid
from the public servant concerned.
The Court very correctly analyses the entire position of sovereign liability in
India and observed:
“The immunity peculiar to English system found its way in our system
of governance through run of judgments rendered during British
period, more particularly after 1858, even though the maxim lex non
protest peccary that is the king can do no wrong had no place in
ancient India or in medieval India as the king in both the periods
subjected themselves to the rule of law and system of justice prevalent
like the ordinary subjects of the States. According to Monu, it was the
duty of the king to uphold the law and he was as much subject to the
law as any other person. it was said by Brihaspati, where a servant
commissioned by his master does an improper, for the benefit of his
master, the latter shall be held responsible for it. Even during the
Muslim rule the fundamental concept under Muslim law like Hindu
law was that the authority of king was subordinate to that of the laws.
It was no different during British rule. The courts leaned in favor of
holding the State responsible for the negligence of its officers.”
Liability of the State must be distinguished from the liability of the individual
officers of the State. So far as the liability of the individual officers is
concerned, if they have acted outside the scope of their powers or have acted
illegally, they are liable to the same extent as any other private citizen would
be. The ordinary law of contact or torts or criminal law governs that liability. An
officer acting in discharge of his duty without bias or mal fides could not be
Module – 1 185
held personally liable for the loss caused to the other person However such
acts have to be done in pursuance of his official duty and they must not be
ultra vires his powers. If an official acts outside the scope of his powers, he
should be liable in civil law to the same extent as a private individual would
be. Where a public servant is required to be protected for acts done in the
course of his duty, special statutory provisions are made for protecting them
from liability.
Public Accountability
“Some persons in the upper strata (which means the rich and the influential
class of the society) have made the ‘property career’ the sole aim of their life.
The means have become irrelevant in a land where its greatest son born in
this country said “means are more important than the ends.” A sense of
bravado prevails; everything can be managed; every authority and every
institution can be managed… They have developed utter disregard for law
may, contempt for it;
Thus, for abusing the process of court public servant was held responsible
and liable to pay the cost out of his own pocket. ( Shori Lal v. DDA 1995 Supp (2) SCC
119)
The principle thus developed is that a public servant dealing with public
property in oppressive, arbitrary or unconstitutional manner would be liable to
pay exemplary damages as compensation to the government, which is ‘by the
people’
Module – 1 186
“The administrative law of accountability of public authorities for
their arbitrary and even ultra vires actions has taken many strides. It is
now accepted both by this Court and English courts that the State is
liable to compensate for loss or injury suffered by a citizen die to
arbitrary actions of its employees.”
Having stated this, the learned Judge stopped to consider who would pay
such compensation. Such compensation would of course be paid from the
public treasury, which would burden the taxpayer. He, therefore further
ordered that when a complaint was entitled to compensation, because of the
suffering caused by a mal fide or oppressive or capricious act of a public
servant, the Commission under the Consumer Protection Act should direct the
department concerned to pay such compensation from the public fund
immediately but to recover the same from those who are responsible for such
unpardonable behavior by dividing it proportionately among them when they
were more than one.
Where a married woman was detained on the pretext of her being a victim of
abduction and rape, and the police officers threatened her and commanded
her to implicate her husband and his family in a case of abduction and forcible
marriage, the Court directed the State government to launch prosecution
against the police officers concerned and to pay compensation to the woman
and her family members who were tortured.
In recent years, the Supreme Court has also imposed personal fines and
liabilities on ministers who used their discretionary powers on ulterior considerations.
Where a minister allotted petrol pumps to his favorites or where a minister gave out of
turn allotment of houses to persons related to her or known to her in preference to
those who deserved such accommodation. The Court not only quashed the allotments
but also imposed exemplary damages for having denied that largesse to the deserving
people. Personal liability for abuse of power is a recent phenomenon
Module – 1 187
“In modern sense the distinction between sovereign and non-sovereign
power does not exist. It all depends on the nature of power and
manner of its exercise. Legislative supremacy under the Constitution
arises out of Constitutional provisions. Similarly the executive is free
to implement and administer the law. One of the tests to determine if
the legislative or executive functions sovereign in nature is whether
the State is answerable for such actions in courts of law, for instance,
acts such as defense of the country, raising armed forces and maintain
it, making peace or war, foreign-affairs, power external sovereignty
and are political in nature. Therefore, they are not amenable to the
jurisdiction of ordinary civil court. The State is immune from being
sued as the jurisdiction of the courts in such matters is impliedly
barred.”
But there the immunity ends. No civilized system can permit an executive to
play with the people of its country and claim that it is entitled to act in any
manner, as it is sovereign. No legal or political system today can place the
State above law, as it is unjust and unfair for a citizen to be deprived of his
property illegally by the negligent act of officers of State. The modern social
thinking and judicial approach is to do away with archaic State protection and
place the State or the Government at par with other juristic legal entity. Any
watertight compartmentalization of the functions of the State as sovereign or
non-sovereign is not sound. It is contrary to modern jurisprudence. But with
the conceptual change of statutory power being statutory duty for sake of
society and the people, the claim of a common man cannot be thrown out
merely because it was done by an officer of the State official and the rights of
the citizen are require to be reconciled so that the rule of law in a welfare
State is not shaken.
It is unfortunate that no legislation has been enacted to lay down the law to torts in
India. For that law, our courts have to draw from the English common law. Since the
law of contract and the law of Sale of Goods and now the law of consumer protection
have been enacted, it is high time that our Parliament enacts a law and thereby comes
out of the legislative inertia.. The law in India on State liability has developed in the
last two decades through judicial process. It has made the State liable for the torts of
its servants. The courts have, however, developed such a law without expressly
overruling some of the earlier decision, which defined the State liability in very narrow
terms.
While the State has enacted various anti-pollution laws and the laws for the protection
of the consumers, which provide quick remedies to the citizens, there is yet no sincere
Module – 1 188
and strict implementation of such laws. The industry has often shown inadequate
regard fro provisions requiring installation of hazard preventing devices as required by
the anti pollution laws. This became clear in MC Mehta v. Union of India. (AIR 1987 SC
1086) The State can be compelled to perform its statutory duties though a writ of
mandamus, but will the State be liable to pay compensation to those who suffer
because of its negligence or failure to obtain compliance of the industries to the
provisions of the anti-pollution laws?
In Nilbati Behera v. State of Orissa (AIR 1993 SC 1960) the Supreme Court held that the
awards of compensation in the public law proceedings were different from the awards
in the tort cases. In a civil suit for tortuous liability, whether the State was liable was an
issue to be decided by taking evidence. The petitioner had to prove that the
respondent was guilty of negligence and he suffered as a result of that. In a writ
petition, the fact that a fundamental right had been violated was enough to entitle a
person to compensation. Further, compensation in writ proceedings is symbolic and is
not based on the quantification of the actual loss suffered by the petitioner.
Under the Consumer Protection Act, 1986, informal grievance redressal machinery has
been provided. . Although consumer courts do not award damages for the civil wrongs,
they have provided compensation to the consumer against unfair trade practice,
deficient or negligent service or faulty goods. The consumer courts have not spared
even government agencies. The Life Insurance Corporation, the nationalized banks,
government hospitals have been made to pay compensation. Such actions of the
Module – 1 189
consumer courts, however, do not deprive the consumer of his right to file a suit for tort
in a civil court.
Module – 1 190
The functionaries in public administration can be categorized as “civil
services” on the one hand and “public services” on the other. In the current
literature on the subject:
•= The supervisory level and the middle executive level. They are a
whole range of technical and non-technical personnel who
belong to the Group ‘B’ services and shade into higher stages of
Group “c” at the one end and the lower stages of Group ‘A’ at
the other.
Advice. One of the primary functions of civil service is to offer advice to the
political executive. Ministers rely on the advice of their senior officials who are
reservoirs of information and organized knowledge concerning the subject
matters, which they administer. The political executive necessarily depends
upon the civil personnel.
Module – 1 191
For the information that he needs in formulating his own Programme. In the
course of administration many problems arise which are usually worked out in
the first instance by the civil service and the reported to the political overhead,
if at all, for approval or merely for information.
Delegated Legislative Powers. Due to the emergence of the welfare state, the
activities of the State have got multiplied. The Legislature is neither competent
nor has the time to cope with enormous and complex legislation which has
consequent grown up. Hence it delegates power of making law to the
executive. It passes the bills in skeleton form bearing the details for the
executive to fill. The permanent heads of the department evidently performs
this job.
Module – 1 192
Now let us try to find out the role of Public Administration in India. The
postcolonial bureaucracy is in essence a progression from a system that
evolved during a hundred and fifty years of British rule. With the constitutional
transfer of power, the question of winding up the old system or even making
radical changes immediately was not even considered.
However, the following trends in process have brought into sharp focus the
need for;
The Constitution of India provides for recruitment and conditions for services
of persons appointed to public services in the union or in the states through
acts of appropriate legislature. Such acts comprehensively providing for
among other disciplinary proceeding, duty to abide by the rule of law,
obligation to serve wherever deployed and overall work ethics for all public
servants were never passed.
Module – 1 193
Such a code would provide the basic conditions, requirement, and style of
work, discipline, and accountability for all public servants irrespective of the
categories for service to which they belong. Several suggestions have been
made for a character of ethics for public servants serving both at the Center
and the State.
Accountability:
Accountability is fundamental to any good public administration:
Module – 1 194
•= The Constitution for India with its basic values of democracy,
social justice, rule of law, equality before the law, etc. provides a
viable framework for developing accountability
•= The thrust of a recent spate of Supreme Court judgments is that
no minister or public servant can arrogate to himself/herself the
poor to act in a manner which is arbitrary and that each public
servant is responsible for injury to individual or loss to public
property through any act of omission and commission.
In spite of these, a view persists that civil servants are accountable to no one.
A number of recommendations have been made to improve these practices,
the latest being those made by the Fifth Pay Commission.
Service in public interest and the satisfaction of making an impact upon the
society and the citizens have to be sustained through an appropriate work
environment,. Incentive systems, job enrichment and softer special measures.
Module – 1 195
The interface between the political domain and the administrative domain
which was clear, and properly maintained soon after independence, has
increasingly become dysfunctional due to excessive political interference and
following reasons: -
A core of newer mindsets, styles, skills, and knowledge are imperative for all
the actors in the administrative system.
Module – 1 196
patterns and also training is required, together with shared
cores.
Several winds of change are sweeping the country, exercising pressure for
dramatic reform in administrative procedures, challenging the capacities of
administrators:
Module – 1 197
A large number of social and activist groups have emerged all over the
country demanding greater accountability of governmental functioning at all
levels and for honest and efficient delivery of services.
Side by side with social activism targeted at the quality of governance, there is
growing public awareness of the obligation of all concerned government
authorities to protect and safeguard fundamental and human rights:
•= While it may not be proper to expect the judiciary to bear the mantle of
reforming the executive, judicial activism in glaring cases of default by
Module – 1 198
public authorities is having a chastening effect.There has been large-
scale expansion of the print and audiovisual media in recent years:
•= The mass media has also devoted greater attention to timely expose of
cases and incidents involving irregular and unlawful exercise of
authority and abuses of all kinds.
•= The quality of life, especially in the rural are, depends upon proper
infrastructure and delivery of the basic minimum needs upon which
there is a widespread consensus in the country.
•= The unfinished core of economic reform and the new model of
participative governance would require the government to become
more caring and responsive both to the needs of the growing economy
and the concerns of the relatively unserved sections.
Public administration and the civil services are passing through difficult times
in terms of eroded credibility and effectiveness of the civil service and
increasing criticism of the low level of honesty and transparency. In
recognition of this need to take several corrective steps to improve the
situation, the last two years witnessed wide discussions on this subject and
the evolution of an Action Plan for Effective and Responsive Government.
Module – 1 199
A Conference of Chief Secretaries was held in November 1996, on the
agenda for these reforms, which was addressed by the Prime Minister.
Following this Conference, a national debate was generated throughout the
country to elicit reviews from a wide cross section of people. Retreats were
organized in a number of leading academic and training institutions thought
the country.
This Conference was the culmination of the national debate on effective and
responsive administration and provided impetus for determined action on
restoration of the faith for the people in the fairness and responsiveness of
the administration.
The main directions of the action agreed upon at the Conference in the three
areas are given below:
Module – 1 200
Widely publicize facilities at various levels for the prompt and effective
redressal of public grievances from the Secretariat downward to the
village.
Module – 1 201
The Conference recognized that secrecy and lack of openness in
transactions is largely responsible for corruption in official dealings and
is also contrary to the spirit of an accountable dn democratic
government:
Module – 1 202
The existing rules and legal provisions in central and state
governments would be amended to enable the immediate and
exemplary prosecution and removal of corrupt officials, and/or weeding
out staff of doubtful integrity.
The role and powers of audit in the identification and pursuit of financial
and procedural irregularities would be strengthened, and there will be
close networking of various Agencies like Lok Ayukta, CBI, Vigilance
Machinery, Income Tax Authorities, Enforcement Directorate, and
CAG.
Module – 1 203
•= It was recognized that frequent and arbitrary transfer of public servants
affect the ability of the system to deliver services effectively to the
people, and the implementation poverty alleviation schemes.
•= The Committee would draw up a time bound agenda for legal and
regulatory reform in priority areas including a statutory scheme for
Freedom of Information.
The need of the time is to adhere to systematic and sustained efforts, for
development of Indian democracy and Indian administration system and
ensure that the government insists upon the following essential commitments
for good governance.
Module – 1 204
Develop and introduce a charter of ethics through Civil Service Acts for all
public servants and identify specific steps for improvement in productivity
and ethics in their performance.
Module – 1 205
Revision and simplification of rules, procedures, guidelines, manuals etc., of
all programs and schemes, especially in the social sectors and poverty
alleviation, providing for participation of grassroots-level organizations in
the development process and empowerment of people, community based
organizations, users’ groups, self-help groups etc. The essential ingredients
for peoples’ participation in self development are:
Module – 1 206
ACKNOWLEDGEMENT
Module – 1 207
The Department of Personnel and Training Division Government of India under its
UNDP funded programme of ‘Strengthening of State ATIs in India’, in furtherance of its
ongoing trainer development programme decided to develop the Training Packages on different
current topics by involving faculty members of different ATIs of the Country to improve their
delivery system.
At the very outset, I put on record the deep debt of gratitude to the DOPT – UNDP
programme Project Director Shri O.P. Aggarwal, Joint Secretary DOPT Training Division and
Ex-Director General / Financial Commissioner J&K IMPA Shri M.L. Koul for giving me an
opportunity to be an anchor and reposing trust and confidence in me to develop the non -DLM
Training Package on Administrative Law.
I am highly thankful to my Director General IMPA Sh. K.B. Pillai under whose
dynamic guidance I am in a position to present this final draft of training module to DOPT Govt.
of India.
During the course of my preparation of Training Package I visited many institutes and
subject experts. The interaction gave a new insight to this package. In a work like this I had to
make extensive use of library material I put on record my thanks to the staff of Indian Law
Institute, IIPA, ISTM, Jammu University, J&K IMPA (Jammu), for their unflinching co-operation
and sustained assistance with good cheer.
My sincere thanks to Ex-Director General IMPA Dr. S.S. Bloeria, Director General
J&K IMPA Shri B.R. Singh, Colleagues, Administrative staff of J&K IMPA, Subject Experts,
Participants Officers for their encouragement participation, contribution and suggestions in the
validiatory workshop and subsequently the pilot run of the training package.
My special sincere thanks to Er. Sanjay Sharma IDTI, (Executive Manager), M/S
Prismographix, Rajnesh Raina, Gothra Photostat and J&K IMPA, Computer Section for their
excellent computer typing of the package.
Module – 1 208
Introduction
his training package has been designed for the senior
State activism has led to the inevitable result of state assuming more and more
powers to regulate society through its three organs-Legislature, Judiciary and
Executive. While increase in State activities has meant increased work for all
the organs, yet the largest extension in depth and range of functions and powers
has taken place at the level of executive-cum-administrative organ. We have
come to live in an administrative age and administrative organ has become
predominant and is on the ascendancy, its functions and powers have grown
vastly over time. Administration is the all-pervading feature of life today with
the growth of the society, its complexity also increases and this presents new
problems for the administration. In fact the modern state is regarded as the
custodian of social welfare, and consequently there is not a single human
activity, which is free from direct or indirect interference by the State. The
growth in the range of responsibilities of state has thus ushered in an
administrative age and thereby need of Administrative Law.
Module – 1 209
law is not capable of a definition, it is well accepted that its operation is confined
to the realm of public law. Broadly, branches of law, which deal with those
rights, obligations, duties or privileges of public authorities inter se and their
relationship with private individuals, pertain to public law. Thus, administrative
law presents a classical example of judicial creativity and a high benchmark of
judicial activism. This makes administrative law in India highly dynamic and
perplexing at the same time worthwhile answering legitimate needs and
aspirations of the people and provide an effective instrument in the hands of the
people to combat governmental arbitrariness through the instrumentality of
courts. It was born out of a desire on the part of judiciary to usher in a rule of law
society by enforcing the norms of good governance and thus produced a rich
wealth of legal norms and principles and added a new dimension to the discipline
of administrative law in India.
Administrative law deals with the delegated powers and procedures of non-
legislative and non-judicial i.e. executive or administrative officials and agencies
of Govt. and with Judicial review of their actions as they affect private interests.
In other words
Module – 1 210
therefore the central theme of administrative law is also the reconciliation of
liberty and power.
Module – 1 211
law regulating administration. Infact technical innovations should
be supported by corresponding changes in human attitudes and
behaviour. In the era of rapid change, the improvement of
management in its human aspect has become critical issue.
Learning is an ongoing and perpetual process, which leads to the
performance enhancement of the officers and the development of
the organization. Keeping in view the needs of the administrators
the inputs to be given in the form of knowledge skills and attitudes
may be as under:
1. Knowledge of
.
2. Skills in
Module – 1 212
•= Arriving at just and fair decision
•= Communication.
3. Attitudes
•= Helping nature
•= Concern about other’s problems
•= Empathy
•= Self examination of biases and prejudices
•= Dealing fairly with others
Module – 1 213
the disparity as to the actual law on the subject and the practical
application. The principals evolved will be discussed by the latest
case law on the subject and thereby deriving the learning on the
subject matter.
Methodology :-
Case law
Quizzes;
Examples and
Case studies.
Objectives:-
At the end of the course the participant Officers will be able to: -
Module – 1 214
Discuss delegated legislation and executive legislation and
control of delegated legislation
Explain the necessity for injecting, Fairness and
reasonableness in administrative decision making:
Identify areas for application of principles of administrative
law:
Apply principles of natural justice and fairness on
administrative action.
Clarify the scope of judicial review of administrative action to
explain the judicial review an administrative action
through writ jurisdiction of the courts.
Explain the inherent power of courts interference through
public interest litigation for the benefit of community.
Recognize the role of courts, to control the administrative
Module – 1 215
and fourth day respectively. As is shown in the programme
schedule on next page.
Module – 1 216
3 1st Session Judicial Review & Its Exclusion 10,11&12
2nd Session Constitutional Remedies
3rd Session Judicial Control of Administrative action
Through Writs
4th Session Public Interest Litigation
5th Session Assessment Questionnaire
MODULE-1
Administrative law –an overview
Rule of Law
Separation of Powers
Classification of administrative
power
Module – 1 217
MODULE-11
Administrative adjudication
/tribunal
MODULE -III
Constitutional remedies
Judicial control of
administrative action
throughWrits
Module – 1 219
Public interest litigation
Scheme of the package on Administrative Law
MODULE-IV
Institution of Ombudsman
Public Undertakings
Module – 1 220
Role of public Administration in
Good Governance
Module – 1 221
This Training
Package
Contains:
1) FOR PARTICIPANTS:
•=Course Guide
•=Primary Reading Material
2) FOR TRAINER:
Module – 1 222
•= Assignments
•= IRQ
Module – 1 223
prepared) OHP/Trsp.
•= The time for the quiz is ten minutes
•= Discuss the questions with trainee officers
•= The responses are then to be analyzed by the
facilitator by involving all the participants in the
follow-up discussion on the questions covering the
general principles of Administrative Law and its
utility in the governance
•= The following points are to be kept in mind while
analyzing different responses.
•= Ask the participants having preliminary knowledge of
principles of Administrative Law
•= Find out the differences in the responses of the
trainees having legal academic background & of the
officers having academic background other than law
•= Decide about the standard of intervention to fill the
performance gap of participants through relevant legal
provisions / principles & latest case law on the subject
matter
Second Session :
Constitutional Principles & Administrative Law
•= Sources of Adm. Law
•= Rule of Law
•= Separation of powers
•= Future Role of the Administrative Law
Module – 1 224
minutes
•= Discussion on major points after scrutinizing the
responses of the trainees
5:20 to Summarization White
5 :30 •= Summarize all the four topics of the first day of the
program board
Flip
chart
5:30 to Assignment for tomorrow Display Flip Chart
5:45 •= Distribute the participants into four or five groups
depending upon the total number
•= Each group should comprise of four to five officers &
name them for e.g. A,B,C,D & E
•= Assignment on different aspects of Administrative
Law to be given to each group for preparation &
presentation
•= Pre-prepared guidelines for making presentations on
the assignments also to be given to the participants on
the last day of the training
Day – 2
Module – 1 225
•= Power of inquiry & other allied matters to be brought
out clearly with the help of transparencies
12:30 3rd Session : WB/OH
to 1:30 Administrative Adjudication
•= Need for Adjudication by Administrative bodies P
•= Status of a tribunal
•= Requirements for conducting trials summary in
nature
•= Bring out clearly the role of tribunal in adjudicating
the matters of general public
Central Administrative Tribunal its functioning &
Structure
•= Show transparencies and discuss the relevance of
CAT so far as deciding the cases relating to service
matters of the government employees
1:30 to Lunch-break
2:30
2:30 to 4th Session : WB/OH
3:30 Principles of Natural Justice
•= Rules as to impartiality & fairness P
•= Bias & right to hearing
•= Relevance of injecting the principles of natural justice
in the administrative action of the State
•= Show all the transparencies
•= Discuss the trend setting cases on the application of
principles of natural justice
•= Discuss implication of non-application of principles
of natural justice
3:30 to Tea-break
4:00
4:00 to 5th Session : WB/OH
5:30 Case study
•= Distribute the case study (which comprises of facts of P
two important cases decided by the courts) to the
participants
•= Ask the participants to go through both the cases &
respond to the questions given
•= Relate the responses to the actual legal provisions /
principles decisions of the court and there by discuss
all the relevant points
•= This will help in fostering the relevant lapses and also
ensure productive transfer of learning on the subject
to the trainee officers
•= Involve all the participants in the follow up
discussions
Module – 1 226
5:30 to Summarize the topics covered on second day of the WB
5:40 training
5:40 to Assignment for tomorrow Display
5: 45
Flip
Chart
Day – 3
9:30 to Recap WB
10:00
10:00 Ist Session : Show TP in a
to Judicial Review of Administrative Action chronological
11:00 •= Show transparencies and bring out the clarity with order
the help of decided cases
•= Bring out the provisions clearly & the principles
evolved by the Courts
11:00 Tea-break
to
11:30
11:30 IInd - Session : Show TP
to Constitutional Remedies with special reference to
12:30 Article 32, 226 & 136
•= Modes of Judicial control
•= Discuss under what circumstances Judicial review can
be excluded
12:30 IIIrd – Session : Show TP
to 1:30 Judicial Control of Administrative action through writs
•= Discuss writ of Habeas Corpus, writ of Manadumus,
writ of Certioari, writ of Prohibition and writ of Quo-
warranto
1:30 to Lunch-break
2:30
2:30 to IVth- Session : Show TP
3:30 Public Interest litigation
Discuss case law on the subject to bring out the clarity
about the role of courts in settling the disputes of the
general public
3:30 to Tea-break
4:00
4:00 to Vth-Session :
5:30 Pre-structured question answer session & followed by
discussion
•= Give One hour time to the participants to respond &
discuss all the responses in the light of the sessions
covered on third day of the course
Module – 1 227
Test the understanding of the participants and there by fill
the gaps
Day – 4
9:30 to Recap
10:00
10:00 Ist Session : Show TP
to Redressel Mechanism & Parliamentary control
11:00 •= Discuss the institution of Ombuds man for checking
the administrative faults
•= The role of central vigilance commission & CBI to
check corruption
•= The right to know & its requirements in the present
day functioning of the state and thereby ensure
transparency & openness in the governmental
functioning
•= Discretion to disobey
11:00 Tea-break
to
11:30
11:30 IInd Session : Show TP
to Public undertakings & public corporation
12:30 •= Bring out the reason for the growth of public
corporation
•= Discuss the Meaning, characteristics of public
corporation
•= Discuss control of public corporation
•= Discuss status of the public corporation
12:30 IIIrd Session :
to 1:30 Civil services in India & Role of public administration
•= Discuss the administrative ethics & integrity in civil
services
•= Discuss accountability as essential requirements for
good governance
1:30 to Lunch-break
2:30
2:30 to IVth Session :
3:30 The Liability of the State in Torts & liability of State in
Contract
•= Discuss the liability of State in Torts with the help of
the case law
•= Also discuss the personal liability of the employes of
the state
•= Discuss the liability of the state to pay the
Module – 1 228
compensation for its wrongs
•= Discuss the liability of the States so far as the
government contracts are concerened
3:30 to Tea-break
4:00
4:00 to Vth Session : Show TP
4:30
Privileges & Immunities of the State in suits
•= Privilege of notice & to with hold documents
•= Immunity from statute operation
•= Immunity from estoppel
•= Bring out the concept of promisory estoppel
4:30 to VIth Session ;
5:30
Group discussion on Administrative law & its
application in future for effective governance
•= Start the discussion with the help of high order
question & subsequently control the discussion with
the help of key questions
•= Summarize & consolidate the consensus reached on
that topic
5:30 to Consolidation & assignment for tomorrow
5:45
Day – 5
9:30 to Recapitulation White
10:30 Positive Attitude for Administrators for effective
functioning. board
10:30 Tea-break
to
11:00
11:00 Presentation by the groups on assigned topics
to 1:00 •= Ensure all the participants take part in presentation
1:00 to Action plan
1:30
1:30 to Lunch-break
2:30
2:30 to Immediate reaction questionnaire about the course
3:00
3:00 Valiediction
p.m.
Module – 1 229
Assessment quizzes:
Pre – testing quiz
Questionnaire - I
Questionnaire -
II
Module – 1 230
PRE – TESTING QUIZ
________________________________________________________
________________________________________________________
_
________________________________________________________
_
________________________________________________________
_
________________________________________________________
_
________________________________________________________
Module – 1 231
________________________________________________________
_
________________________________________________________
_
________________________________________________________
_
________________________________________________________
_
________________________________________________________
_
________________________________________________________
_
________________________________________________________
_
________________________________________________________
_
________________________________________________________
_
________________________________________________________
_
Module – 1 232
________________________________________________________
_
________________________________________________________
_
________________________________________________________
_
________________________________________________________
_
________________________________________________________
_
Q6. Quiz-
Assessment In case of tortious act done by a servant of the state, there can be action
Pre-testing 2
for damages say Yes or No.
________________________________________________________
________________________________________________________
_
________________________________________________________
_
________________________________________________________
_
________________________________________________________
_
Module – 1 233
Q7. The Judicial Control of Administrative action is through writs. How
many writs are there and name them?
________________________________________________________
________________________________________________________
_
________________________________________________________
_
________________________________________________________
_
________________________________________________________
_
________________________________________________________
_
________________________________________________________
_
________________________________________________________
_
________________________________________________________
_
Module – 1 234
________________________________________________________
________________________________________________________
_
________________________________________________________
_
________________________________________________________
_
________________________________________________________
_
Q10. State the correct answer: Appeal against the decision of tribunal under
Administrative Tribunals Act, 1985, can be made to
a) Supreme Court
b) High Court
c) Central Vigilance Commission.
________________________________________________________
_
________________________________________________________
_
________________________________________________________
_
________________________________________________________
_
Module – 1 235
Assessment Quiz- Pre-testing 4
KEY
Ans.1. Constitution
Ans.4. France
Ans.6. No
Module – 1 236
Ans.10. Supreme Court
Ans.11. Yes
Questionnaire -1
The questions, which follow, are designed to test the grasp of the
subject matter discussed in module 1 of training course of
administrative law. The answer key to the questions will be
subsequently distributed to the participant officers after all pros and
cons on the subject are discussed by way of following questions.
Module – 1 237
(c) From the law made by the agencies
(d) From all of these
(a) Plato
(b) Montesquieu
(c) Julius Caesar
(d) None of the above
(a) Identical
(b) Different
(c) Similar
(d) None of the above
(a) France
(b) England
Module – 1 238
(c) India
(d) Nowhere
Module – 1 239
(c) The powers given to the executive must be clearly spelt
out explicitly worded
(d) None of the above apply
Key Questionnaire -1
Ans. 1. (b) Unchecked Power
Ans. 10. (b) The general principles are well settled but
their application depends necessarily on
the totality of the circumstances and facts
Module – 1 240
Ans. 11. (b) Applicable to India also
Questionnaire – 2
1. The principles of natural justice?
(a) Prohibition
(b) Certiorari
(c) Mandamus
(d) Habeus corpus
Module – 1 241
administrative authorities. The definition of administrative law
has been given by?
(a) India
(b) Germany
(c) England
(d) France
a. Mandamus
b. Prohibition
c. Quo – warranto
d. Certiorari
Module – 1 242
(a) Government servants
(b) Public
(c) Members of the Legislative Assembl
(d) Ministers
(a) Judicial
(b) Quasi-Judicial
(c) Administrative
(d) Legislative
Constitution
Module – 1 243
(d) None of the above.
13. "Bias disqualifies a person from acting as judge" flows from any
two principles of the following:
Key Questionnaire -2
Q.1 D
Q.2 B
Q.3 D
Q.4 D
Q.5 D
Q.6 A
Q.7 C
Q.8 A
Q.9 D
Module – 1 244
Q. 10 D
Q. 11 A
Q. 12 C
Q. 13 A
TRAINER TIP
For group discussion, the trainer is required to
lead a discussion with a clear objective and topic
heading. The trainer has to help the group to
explore the topic and focus the attention of the
group members on areas needed to be analyzed
and the skill of trainer lies in stimulating a good
exchange of opinions while keeping learner to
theme so as to generate effective learning in them.
Therefore trainer needs to clarify learners / group
members understanding and to challenge
assumptions and by summarizing the conclusions
and contributions.
Module – 1 245
TRAINER TIP
The trainer has to help participant to develop their
knowledge and skills on different aspects of
administrative law for good goverance. The
assesment is to be done on various aspects with
informal feedback and adviced to individual
participants thereof by providing the needed input
with relevant intervention.
TRAINER TIP
The different topics to be prepared and to be
presented on final day by participants should be
given to each syndicate team, that will be required
to discuss, prepare and present the concept paper
to the group.
The trainers purpose of giving assignments to the
participants related to the different aspects of
administrative law is to give, in-depth
understanding of the subject matter and thereby
achieve the learning objective. Because the
concepts deliver during training sessions through
classroom instructions appear to be abstract and
theoretical but the preparation for the presentation
on the assignments help the trainee to learn what,
why and how of the subject.
Module – 1 246
TRAINER TIP
The trainer is required to assess / test the
understanding of trainees regarding the discussed
topics by distributing the pre-structured
questionnaire and seek their responses. After
scrutinizing the responses of the trainees discuss
the major points and provide for remedial /
corrective intervention.
TRAINER TIP
The trainer while discussing administrative law
Module – 1 has to ensure that the relevant case law is 247
discussed with the trainees for conceptual clarity
of different concepts since Administrative Law is
CASE-STUDIES
ON
NATURAL JUSTICE
Over the years by a process of judicial interpretation two
rules have been evolved as representing the principles of natural
justice in judicial process, including therein quasi-judicial and
administrative processes. They constitute the basic elements of a fair
hearing having their roots in the innate sense of man for fair play and
justice which is not that preserve of any particular race or country but
is shared in common by all men.
Module – 1 248
to believe that natural justice is an obstacle to effective and
expeditious performance of administrative functions.
These case studies have been designed for trainee officers with the following
objectives:
These two case studies have been specially selected, for they are possessed of
immense potential to equip the trainees with the requisite knowledge and skill
and also with values and attitudes, so that while administering and applying
Law in any proceeding or inquiry or investigation, they ensure vindication of
justice by adopting a procedure which is just, fair and reasonable. Further, the
principles of natural justice are neither codified nor embodied and as such, all
of them should not and need not be indiscriminately and mechanically adopted
in each and every case without regard to the complex realities, because
unnatural expansion of Natural Justice may result in failure of justice.
Module – 1 249
Case No. 1
When the Constitution of India came into force (the 26 January, 1950), there
were two All India Services, namely IAS and IPS in existence. Later on, another
All India Service, know as IFS, was brought into being (1966).
Naturally, the question of recruitment to the newly formed Indian Forest Service
came up. Rules and Regulations were framed to provide for recruitment.
Mention may be made of Indian Forest Service (Recruitment) Rules. 1966 and
Indian Forest Service (Initial Recruitment) Regulations, 1966. It was laid down
that the Central Government would recruit to the IFS from amongst the
members of the State Forest Services who might be adjudged suitable. Fore the
Module – 1 250
purpose of selection, special selection Boards would be constituted for different
areas. The Boars would prepare lists of suitable officers and forward them to
the Central Government. The lists would, thereafter, be referred to the Union
Public Service Commission by the Central Government along with the records
of the Officers included in the list and also of other eligible officers of the State
Forest Services not included in the List. The Union Public Service Commission
would then, after proper evaluation, make such recommendations to the Central
Government as it might deem fit. The officers recommended by the Commission
would be appointed to the IFS subject to the availability of vacancy in the State
Cadre concerned.
This was the background. One such special Selection Board was constituted
for the State of Jammu and Kashmir. The Board consisted of the following
members: -
It was that List that turned out to be a bone of contention and became
the subject of litigation. The name of Shri Naquishbund appeared at the top of
List. He had been promoted to the post of Chief Conservator of Forests in
Module – 1 251
1964. He was not yet confirmed in that post. There were officers, namely G. H.
Basu, M. I. Baig and A. K. Kaul, who claimed that they were senior to him.
Basu and Kaul had appealed to the post of Chief Conservator of Forests. The
appeal of Basu was still pending when the aforesaid List was made.
In that final List, the names of Basu, Baig and Kaul did not find any
place. They felt very much aggrieved at their exclusion. Some other eligible
officers including A. K. Kraipak also became extremely unhappy because they
were also not se4lected. Some of them were serving as Conservators of
Forests
and Divisional Forest Officers. They filed potions before the Supreme Court of
India, challenging the validity of that list. They attacked it on various grounds
but for the purpose of this case study, reference would be made to the material
contentions raised on behalf of the petitioners. Eminent advocates like Mr. A.
K. Sen, Mr. Frank Anthony and Mr. C. K. Daphtary appeared for the
petitioners.
The thrust of the arguments advocated on behalf of the petitioners was that the
selections, as reflected in the aforesaid list, were vitiated y gross violation of
the principles of Natural Justice.
Module – 1 252
It was also argued that the List in question was liable to be quashed on
account of subversion of Natural Justice, arising out of personal bias of a
member of the Selection Board.
The petitions were opposed by the Respondents, which included the Union of
India. Mr represented the Union of India. Niren De. Attorney General of
India. The case of the contenting Respondents was that the power given to and
exercised by the Selection Board was a purely administrative power, because
its duty was merely to select officers, who in its opinion were suitable for
being absorbed into the Indian Forest Service.
consideration. He, therefore, did not take any part whatsoever in any
discussion involving him and did not a in any manner influence the decision of
the other members.
Module – 1 253
(d) In any event, all the selections made by that Board cold not be vitiated.
The cases of Basu, Baig and Kaul might however, be reviewed, if
considered necessary.
Upon the pleadings of the parties and the rival contentions they raised
before the Supreme Court, the points that fell for determination may be
expressed as follows:-
Module – 1 254
Case No.II
Reference: Maneka Gandhi (Petitioner)
vs
Union of India and another (Respondents)
Smt. Maneka Gandhi had a passport for going abroad. It was issued to her on
Ist June 1976 under the Passports Act, 1967.
Module – 1 255
On 4th July, 1977, she received a letter from the Regional Passport Officer,
Delhi. That letter conveyed to her the decision of the Government of India to
impound her passport and called upon her to surrender the same within seven
days. No reason was, however, assigned in support of the decision to impound
the passport. What was disclosed is that it was done in public interest.
She wrote back to the passport officer demanding a copy of the statement of
reasons as provided for under Section 10(5) of that Act. A reply came, not from
the passport officer, but from the Minister of External Affairs, Govt. of India, on
6th July, 1977. The Government declined to furnish reasons fro what was
described as “in the interest of the general public”.
The union of India resisted her petition. A counter-affidavit was filed in Court
on behalf of the Government in answer to the writ petition. It was divulged there
that the petitioner’s passport was impounded because her presence in India was
likely to be required in connection with proceedings before a Commission of
Inquiry.
The challenge made by the petitioner was founded, among other things, upon
the following grounds:-
(a) Section 10(3 (a) of the Passport Act, which authorized the Passport
Authority to impound a passport, was violative of the equality clause
contained in Article 14 of the Constitution of India, because it conferred
vague and undefined power.
Module – 1 256
(b) Her passport could not be impounded without giving her an opportunity
of being heard in defense. The order was made in contravention of the
rule of Natural Justice embodied in the maxim “Audi alter am Partem”.
Hence, the order of impounding was null an void.
(c) If sec. 10 (3) were read in such a manner as to exclude the right of
hearing, then it would be invalid on account of arbitrariness.
(d) Section 10(3) © also offended against Article 21 of the Constitution of
India, since it did not prescribe any procedure within the meaning of that
Article. Even if it was assumed that Section 10 (3) © prescribed a
procedure, it was wholly arbitrary, unreasonable and unjust and
therefore, not in compliance with the requirement of that Article.
On behalf of the Union of India, it was submitted that the order impounding
the passport of the petitioner was perfectly justified and that the petition was
without merits and ought to be dismissed. In the counter-affidavit filed on
behalf of the government of India, the various allegations made in
the petition were
denied.
It was contended that there was apprehension that the petitioner was
attempting or was likely to attempt to leave the country and thereby hamper
the functioning of the Commission of Inquiry.
It was urged on behalf of the govt. of India that having regard to the
nature of the action involved in the impounding of a passport, the “audi
alteram partem: rule must be held to be excluded, because if notice were to be
given to the holder of a passport and reasonable opportunity afforded to
him/her to show cause, he/She might, immediately, on the strength of the
passport, make good his/her exit from the country and thereby frustrate the
very object of impounding.
Module – 1 257
Ultimately, the Attorney General informed the Court that the
government of India was willing to hear the petitioner in respect of
impounding of her passport. The premise was to give what might be described
as “post-decisional hearing” and either to cancel or to confirm the order of
impounding according to the results of such hearing.
The important legal issues that came up for decision may be outlined
as follows:
(i) Should the rule of “audi alterm partem” be read into a statute, which
authorizes an administrative body to decide to the prejudice of a person
but does not expressly provide for a prior hearing to be given to the person
likely to be affected by such decision?
Module – 1 258
(vii) Is it incumbent upon an administrative authority to observe the principles
of Natural Justice?
(viii) Are the principles of Natural Justice embodied or written rules?
(ix) Are they amenable to situational variations?
(x) What are the effects of breach of Natural Justice committed by an
administrative authority?
Will you kindly determine these points of Law? They have been raised for you
to decide.
ACTION PLAN
1. Come up with three suggestions how you can do your job better and
Module – 1 259
__________________________________________
_____
2. List the benefits of this training and how would you like to apply them
3. Write down three ways in which you can make use of knowledge
4. Read case law as given under different topics and find out what
administrative actions are bad in the eyes of law and find ways to turn
your weaknesses into strengths.
______________________________________________________
______
Module – 1 260
__________________________________________
_____
__________________________________________
_____
5. Write five items that you are committing to practice after you finish
going through the reading material.
______________________________________________________
______
__________________________________________
_____
__________________________________________
_____
Name:
Designation:
Address:
Assignments
Module – 1 261
•= Administrative rule-making or delegated legislation is become
inevitable. How far do you agree with this statement? What are the
limitations upon delegation of legislative power and how the
delegated legislation is controlled? ( Presentation By Group – II
)
Module – 1 262
None of it All of it
None of it All of it
3. Generally speaking how much do you think you learned about the subject?
IRQ 1
Standard of Training
Module – 1 263
6 Very Un - very
Satisfactory
satisfactory
7. Very Un - very
Satisfactory
satisfactory
Additional Comments:
_______________________________________________________________
_
_______________________________________________________________
_
_______________________________________________________________
_
_______________________________________________________________
_
_______________________________________________________________
_
_______________________________________________________________
_
Module – 1 264
IRQ 2
Note: - Please fill in the items in the questionnaire. Your objectivity will
help us to improve the future Course. The assessment is on a 5 point
scale with attributes as following: 5: Excellent 4: very Good 3: Good
2: fair 1: Poor.
2. What do you think about the structure and organization of the course to
meet the objectives?
5 4 3 2 1
3. How useful this training will be useful immediate to you in your job?
5 4 3 2 1
4. How useful this training is likely to be for the future jobs you may
handle?
5 4 3 2 1
5 4 3 2 1
6. How for have you been benefited from intraction with the faculty?
5 4 3 2 1
7. How far was the course material supplied relevant and related to the
course content?
Module – 1 265
5 4 3 2 1
5 4 3 2 1
9. Indicate on the next page the effectiveness of the faculty against the
topics covered ?
5 4 3 2 1
Comments:
_______________________________________________________________
_
_______________________________________________________________
_
_______________________________________________________________
_
_______________________________________________________________
_
_______________________________________________________________
_
_______________________________________________________________
_
Module – 1 266
Signature:………………
…
Name :
…………………….
Designation :
……………...
Department :
……………..
For Presentations On
Administrative Law
Module – 1 267
In Folder Trainer’s Guidelines
Presentation.
Module – 1 268